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Joseph A Neuberger and Nick Whitfield
The cross examination of child witnesses in sex offence trials presents a unique challenge in Canadian criminal defence work. Despite the introduction of testimonial aids such as CCTV and support persons to assist child witnesses, the cornerstone questioning technique of Canada’s adversarial system can fare poorly in the face of youth’s vulnerability. In the years since the Supreme Court forbid belief in children’s inherent unreliability (R v W(R),  2 SCR 122), attitudes toward the evidence of children have continued to evolve, and material inconsistencies in a child’s testimony may now not be enough to avert a conviction. Where once they roused suspicion, children today claiming sex abuse enter courtrooms with a veneer of credibility, captured in the commonplace refrain, “why would they lie?”
Though lawyers may have compelling theories about a child’s motives for inaccurate testimony – false memories, for instance, or the coaching of a malicious adult –judges will not take kindly to infringements on children’s welfare via aggressive, repetitive, or improper questioning. Under the protective gaze of Canadian courts, the presumed innocence of the child witness has become a fair match for the presumed innocence of the accused. Lawyers must navigate young witnesses with kindness and caution, mindful that triers of fact will not apply adult standards to the assessment of children’s evidence.
I will raise one important point about memory. The controversy surrounding partial or recovered memory remains a legitimate cause for concern as a foundation for wrongful convictions. Children may understandably not remember traumatic events the same as adults and mere inconsistencies are not significant. But when issues of recovered or fractured memories arise, it is vital to consult an expert and carefully scrutinize the evidence and possible influence of experts such as therapists.
Suggestions for Cross Examining Children: Structure
Suggestions for Cross Examining Children: Language and Grammar
Cross-examination is a detailed process that requires preparation and skill. Preparation is the key and plotting out the cross-examination will help to focus the points for a more effective defence.
 See Nicholas Bala, “Child Witness Provisions of the Criminal Code & Canadian Evidence Act: Trends and Issues in Reported Canadian Cases, 2009–2017”, Department of Justice Canada.