Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Evidence ‑‑ Expert evidence ‑‑ Child testifying about aggravated assault ‑‑ Expert witnesses called to corroborate Crown and defence versions of events ‑‑ Expert testifying as to whether child telling the truth and as to the psychological effects of abuse ‑‑ Level of competence to be established in inquiry as to child's communication skills under s. 16(1) (b) of the Canada Evidence Act ‑‑ Whether trial judge's warning as to the frailty of child's evidence adequate ‑‑ Whether opinion evidence outside the area of expertise of qualified experts admissible ‑‑ Whether expert's commenting on a child's credibility appropriate ‑‑ Nature of questioning expert witnesses ‑‑ Criminal Code, R.S.C. 1970, c. C-34, s. 245.2(1) ‑‑ Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 16(1) (b), (3) .
Appellant was charged with the aggravated assault (under s. 245.2(1), now s. 268(1) , of the Criminal Code ) of her 3½-year-old granddaughter. At trial, which was held 17 months after the incident, the Crown alleged that appellant had put the child's face against a hot stove door in order to discipline her. The child's unsworn testimony was that her "Nanna" had put her in (or on) the stove. Appellant and her husband both testified that they discovered the child early in the morning, screaming, after she had burned herself trying to light a cigarette with a butane lighter.
Both the Crown and defence called a number of expert witnesses to corroborate their versions of the events. The expert evidence related to the functioning of butane lighters, the nature of the burn, whether the child was telling the truth at the trial, and the psychological effects of abuse. The trial judge admitted, and did not instruct the jury to disregard, evidence of expert witnesses who had gone beyond the area of expertise as qualified. Further, she invited the jury to place weight on these opinions, stating that opinions outside the expertise of the witnesses were to be weighed along with all the other evidence. Defence counsel did not object to the witnesses' giving evidence in these areas. However, he strenuously objected to the judge's charging the jury that they could rely on the opinions outside the stated areas of expertise. The jury found appellant guilty and the judge sentenced her to five years' imprisonment. The Ontario Court of Appeal upheld the conviction but reduced the sentence of imprisonment.
At issue here were: the level of competence that had to be established in an inquiry under s. 16(1) (b) of the Canada Evidence Act with respect to a child's communication skills, the adequacy of the trial judge's warning as to the frailty of the child's evidence, the admissibility of opinion evidence outside the area of expertise of qualified experts, the appropriateness of an expert's commenting on a child's credibility and the nature of questioning expert witnesses.
Held (L'Heureux‑Dubé J. dissenting): The appeal should be allowed.
Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: Testimonial competence is not presumed in the case of a child testifying under s. 16 of the Canada Evidence Act . The child is placed in the same position as an adult whose competence has been challenged. At common law, such a challenge required the judge to inquire into the competence of the witness to testify. Testimonial competence comprehends: (1) the capacity to observe (including interpretation); (2) the capacity to recollect; and (3) the capacity to communicate. The goal is not to ensure that the evidence is credible, but only to assure that it meets the minimum threshold of being receivable. The enquiry is into capacity to perceive, recollect and communicate, not whether the witness actually perceived, recollects and can communicate about the events in question. The test is not based on presumptions of the incompetency of children to be witnesses and is not intended to make it difficult for children to testify. It merely outlines the basic abilities that individuals need to possess if they are to testify.
The phrase "communicate the evidence" indicates more than mere verbal ability. The reference to "the evidence" indicates the ability to testify about the matters before the court. It is necessary to explore in a general way whether the witness is capable of perceiving events, remembering events and communicating events to the court. If satisfied that this is the case, the judge may then receive the child's evidence under s. 16(3), after the child has promised to tell the truth. It is not necessary to determine in advance that the child perceived and recollects the very events at issue in the trial, as a condition of ruling that his or her evidence be received. That is not required of adult witnesses, and should not be required for children.
The examination conducted in this case was sufficient to permit the trial judge to conclude that the child was capable of perceiving, remembering and recounting events to the court. This in turn permitted the trial judge to receive her evidence, upon the child's promise to tell the truth. What the child actually perceived and recollected of the events in question was a matter for the jury to determine after listening to her evidence in chief and in cross‑examination. A trial judge's discretion in determining that a child is competent to testify should not be interfered with unless manifestly abused.
With children, as with adults, there can be no fixed and precise formula to be followed in warning a jury about potential problems with a witness's evidence. Negative stereotypes should not be applied to the evidence of children. The trier of fact must nevertheless be cognizant of the weaknesses of a particular piece of evidence. Here, the child's evidence required a warning from the trial judge as to the risks of accepting it. The trial judge fairly pointed out the problems of her testimony to the jury and adequately cautioned them.
The only requirement for the admission of expert opinion is that the expert witness possess special knowledge and experience going beyond that of the trier of fact. Deficiencies in the expertise go to weight, not admissibility. Here, the witnesses were qualified more narrowly than their areas of expertise, or in one case, not formally qualified at all. The proper practice is for counsel presenting an expert witness to qualify the expert in all the areas in which the expert is to give opinion evidence. If this is done, no question as to the admissibility of their opinions arises.
Important as the initial qualification of an expert witness may be, it would be overly technical to reject expert evidence simply because the witness ventures an opinion beyond the area of expertise in which he or she has been qualified. As a practical matter, it is for opposing counsel to object if the witness goes beyond the proper limits of his or her expertise. The objection to the witness's expertise may be made at the stage of initial qualification, or during the witness's evidence if it becomes apparent that the witness is going beyond the area in which he or she was qualified to give expert opinion. In the absence of objection, a technical failure to qualify a witness who clearly has expertise in the area will not mean that the witness's evidence should be struck. However, if the witness is not shown to have possessed expertise to testify in the area, his or her evidence must be disregarded and the jury so instructed. Allowing the jury to consider the experts' evidence did not constitute an error of law because all of them clearly possessed expertise sufficient to permit them to testify as they did.
The evidence that the child's maturity in dealing with her injury suggested long-term abuse was only tangentially relevant and its probative value of the issues at trial was low. On the other hand, it was potentially very prejudicial, because it implied that the child was the victim of long‑term abuse, a proposition wholly unsupported by the evidence. Its prejudicial effect clearly outweighed any probative value it might have had on the issues the Crown had placed before the jury. This evidence accordingly should not have been admitted.
The judge's direction on the expert evidence may have misled the jury into believing that this evidence, which was of little or no probative weight, was a definitive expert opinion that the child was indeed abused and that her passivity was a key and highly probative factor supporting that conclusion. The reception of this evidence, coupled with the trial judge's direction on it, warranted a new trial being ordered.
The ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion. A judge or jury which simply accepts an expert's opinion on the credibility of a witness would be abandoning its duty to itself determine the credibility of the witness. The expert who testifies on credibility is not sworn to the heavy duty of a judge or juror. Moreover, the expert's opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty‑bound to render a true verdict. Finally, credibility is a notoriously difficult problem, and the expert's opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve their difficulties.
While expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact. This is particularly the case with evidence of children. Had the expert here restricted her comments to explaining why children may lie to hospital staff about the cause of their injuries, there could have been no objection to her evidence.
The proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if he or she knows the work. If the answer is "no", or if the witness denies the work's authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is "yes", and the witness acknowledges the work's authority, then the witness has confirmed it by the witness's own testimony. Parts of it may be read to the witness, and to the extent they are confirmed, they become evidence in the case.
Per La Forest and Gonthier JJ.: The reasons of McLachlin J. were agreed with, subject however to the comments of L'Heureux‑Dubé J. pertaining to s. 16 of the Canada Evidence Act which were adopted.
Per L'Heureux‑Dubé J. (dissenting): Section 16 of the Canada Evidence Act must be interpreted against a backdrop of reform, increased awareness of the value and reliability of children's evidence and the general trends in evidence law. Although the need for corroboration has been repealed, an inquiry into the testimonial competence of children is still required. Previously courts were required to determine if the child was possessed of "sufficient intelligence" to testify, whereas they now must assess whether the child is able to "communicate the evidence". The amendment is of no great significance. In fact, even under the previous provisions, there was no requirement that the trial judge assess a child's powers of perception and recollection independently of, or in addition to, the child's ability to respond to questions. Parliament would have used much clearer language had it intended to return to the common law test which applied before the enactment of the previous s. 16 of the Act.
The common law rules rest on the presumption that the evidence of certain classes of witnesses is inherently unreliable. To require an inquiry into perception and recollection under s. 16 of the Act implicitly imports the presumption of unreliability back into children's evidence ‑‑ the very notion Parliament revoked in its reforms to s. 16.
Under s. 16, once the child's ability to communicate (understood as the ability to respond to questions) has been established, any limitations due to deficiencies in recollection or perception go to weight rather than admissibility. The basic ability of a child to recollect past events may often be apparent from the inquiry into the child's ability to communicate in any event. The adequacy of a child's powers of perception and recollection, even if set at a low threshold, may be assessed differently by different judges. Limiting the inquiry to the ability to understand and respond to questions, as s. 16 of the Act prescribes, has the virtues of simplicity and ease of determination. This, in turn, will ensure consistency and predictability with regard to the admission of evidence of both children and the mentally challenged. The rest may be left to the trier of fact.
Section 16 governs the reception of evidence of persons besides children, such as the mentally challenged, whose competence to testify is questioned. Notwithstanding obvious limitations to the powers of perception and recollection among some persons whose competence is challenged, the witness may indeed have something very useful to disclose about the events at issue. Handicapped persons, for example, suffer from a very high incidence of abuse and to exclude their evidence could often render prosecution impossible with the consequence that abusers could continue to prey on such victims without fear of being called to account for their actions. Courts must refrain from interpreting statutory provision in a manner that imposes additional barriers to the reception of such evidence which is precisely what the Act aims to prevent.
The charge to the jury was adequately crafted to warn the jury of the frailties of the child's testimony and the danger of convicting on that basis alone.
The function of an expert is to assist the trier of fact in drawing inferences about matters which lie beyond common experience. In the present case, each of the doctors whose evidence was challenged was engaged in medical work which allowed them to form clinical opinions which could be of use to the jury. Their evidence fell well within the criteria for the reception of expert evidence.
The fact that no long-term abuse was alleged does not transform expert evidence on the characteristics of abused children into evidence of an accused's character. The presence of abuse on that one occasion was the central issue of this case. The question was whether the abuse occurred at all, not how many times or over what period of time. On this basis, the relevance of expert testimony about child abuse was clearly established. The defence made no objection to the introduction of this evidence but actively participated in exploring it.
The information from the expert, tendered for the larger purpose of assisting the jury in understanding why a child might react in a certain way if he or she were abused, did not cross the boundary of permissible expert opinion and usurp the jury's function in determining the child's credibility. It was an error to instruct the jury that it was the expert's opinion that the child was an abused child, since the expert did not in fact make such a statement. This error must be considered in light of the entire charge to the jury and the specific direction the trial judge gave to the jury not to decide the case in terms of child abuse but to focus on the assault under consideration. Considering the totality of the charge to the jury, the jury cannot have been mistaken about the nature of the issue before them or their responsibility as triers of fact for the ultimate decision about the credibility of the witnesses in the case.
A learned treatise must first be adopted by the expert as authoritative if it is to be read in to the body of evidence during cross-examination. By contrast, learned treatises may be put to considerably broader use in many U.S. jurisdictions. Under the U.S. Federal Rules of Evidence, learned material can be read into evidence as long as it is called to the attention of the expert on cross-examination and its authoritativeness is reliably established. The American approach was favoured because it prevented a witness from foreclosing an inquiry into the depth or breadth of his or her knowledge by simply refusing to acknowledge a study. The expert here was unaware of the studies cited by the Crown and could not adopt them as authoritative. The appellant could not complain that the cross‑examination of her own expert was prejudicial simply because the Crown may have been successful in circumscribing the limits of his knowledge which thereby rendered his testimony less effective.
Cases Cited
By McLachlin J.
Referred to: R. v. Bannerman (1966), 48 C.R. 110, aff'd [1966] S.C.R. v; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. K. (V.) (1991), 4 C.R. (4th) 338; R. v. Béland, [1987] 2 S.C.R. 398; R. v. Millar (1989), 49 C.C.C. (3d) 193; R. v. B. (G.), [1990] 2 S.C.R. 3, aff'g (1988), 65 Sask. R. 134; R. v. Anderson (1914), 22 C.C.C. 455; Holland v. Prince Edward Island School Board Regional Administrative Unit #4 (1986), 59 Nfld. & P.E.I.R. 6; Cansulex Ltd. v. Reed Stenhouse Ltd. (1986), 70 B.C.L.R. 189; R. v. B. (K.G.), [1993] 1 S.C.R. 740.
By L'Heureux‑Dubé J. (dissenting)
R. v. Khan, [1990] 2 S.C.R. 531, aff'g (1991), 42 C.C.C. (3d) 197; R. v. B. (G.), [1990] 2 S.C.R. 3; R. v. W. (R.), [1992] 2 S.C.R. 122; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. B. (G.), [1990] 2 S.C.R. 30, aff'g (1988), 65 Sask. R. 134 (C.A.); R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Béland, [1987] 2 S.C.R. 398; R. v. Abbey, [1982] 2 S.C.R. 24; R. v. Taylor (1986), 18 O.A.C. 219; R. v. J. (F.E.) (1990), 74 C.R. (3d) 269; R. v. Beliveau (1986), 30 C.C.C. (3d) 193; R. v. Anderson (1914), 22 C.C.C. 455.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C-34, s. 245.2(1) [am. 1980-81-82-83, c. 125, s. 19] (now R.S.C., 1985, c. C‑46, s. 268(1) ).
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 16(1), (2).
Canada Evidence Act , R.S.C., 1985, c. C‑5 , s. 16(1) (a), (b), (2) , (3) , (4) , (5) [rep. & sub. R.S.C., 1985 (3rd Supp), c. 19, s. 18].
U.S. Federal Rules of Evidence, Rules 601, 803(18).
Authors Cited
Bala, Nicholas. "Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System". In W. S. Tarnopolsky, J. Whitman and M. Ouellette, eds., Discrimination in the Law and the Administration of Justice. Montréal: Éditions Thémis, 1993, 231.
Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children: Report of the Committee on Sexual Offences Against Children and Youths (the "Badgley Report"), vol. 1. Ottawa: Minister of Supply and Services Canada, 1984.
Delisle, R. J. "D. (L.E.): Obscuring Similar Fact Evidence" (1989), 71 C.R. (3d) 22.
Goldman, Calvin S. "The Use of Learned Treatises in Canadian and United States Litigation" (1974), 24 U.T.L.J. 423.
McCormick, Charles Tilford. McCormick on Evidence, vols. 1 and 2, 4th ed. J. W. Strong, ed. St. Paul, Minn.: West Publishing Co., 1992.
Mewett, Alan W. "Credibility and Consistency" (1991), 33 Crim. L.Q. 385.
Robb, James C. and Lynda J. Kordyban. "The Child Witness: Reconciling the Irreconcilable" (1989), 27 Alta. L. Rev. 327.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
Spencer, John R., and Rhona H. Flin. The Evidence of Children: The Law and the Psychology. London: Blackstone Press, 1990.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 6. Revised by James H. Chadbourn. Boston: Little, Brown and Co., 1976.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 2. Revised by James H. Chadbourn. Boston: Little, Brown and Co., 1979.
APPEAL from a judgment of the Ontario Court of Appeal (1991), 14 W.C.B. (2d) 49, dismissing an appeal from sentence and varying the sentence following conviction by Gotlib Dist. Ct. J. sitting with jury (1990), 9 W.C.B. (2d) 684. Appeal allowed, L'Heureux‑Dubé J. dissenting.
Marlys Edwardh and Shaun Nakatsuru, for the appellant.
Catherine A. Cooper and Susan Chapman, for the respondent.
The judgment of Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
McLachlin J. -- In the early morning hours of June 4, 1988, Debbie‑Ann LeBlanc, aged 3½ years, suffered a severe facial burn. From her birth until the time of her injury, Debbie‑Ann had lived with her grandmother, the appellant, Mrs. Marquard. The appellant had legal custody of Debbie‑Ann with the consent of Debbie‑Ann's mother.
The appellant was charged with aggravated assault of her granddaughter contrary to s. 245.2(1) of the Criminal Code, R.S.C. 1970, c. C‑34, am. S.C. 1980‑81‑82‑83, c. 125, s. 19 (now R.S.C., 1985, c. C‑46, s. 268(1) ). At trial, 17 months after the incident, the Crown alleged that Mrs. Marquard had put the child's face against a hot stove door in order to discipline her. The oven door was hot, it was suggested, because Mrs. Marquard had forgotten to turn the oven off before going to bed the night before because she had been drinking. The child, unsworn, testified: "My nanna put me on the stove".
Mrs. Marquard and her husband both testified about how they discovered that Debbie‑Ann had been burned. There were only slight differences between the accounts they gave at trial. They testified that they had been awakened at 6:30 a.m. by the child screaming for her "nanna". They ran to the living room where they found the child kneeling in front of a couch with her face down. Mrs. Marquard detected the smell of burned hair and skin. There was also smoke about the ceiling. A butane cigarette lighter lay beside the child on the couch. Mr. Marquard stated that he noticed that the cigarette was charred and that there appeared to be moisture on the filter end, as if the cigarette had been in someone's mouth. The testimony of Mr. and Mrs. Marquard diverged with respect to who had reached the child first and how they noticed the child's burn. Mrs. Marquard said she had reached Debbie‑Ann first and when she patted the child's head, a clump of hair fell away. Mr. Marquard said he had been the first to reach the child, and when he picked her up, he saw a clump of her hair on the couch. He realized the child was burned after Mrs. Marquard brushed off the side of Debbie‑Ann's face. Mrs. Marquard testified that, after they had discovered the child's burn, she said, "my God, baby girl, what did you do?" The child responded, "nanna, I tried to light a cigarette". At this point, they wrapped her and took her to Wellesley Hospital. Mr. and Mrs. Marquard testified that Mrs. Marquard had a loving and caring relationship with Debbie‑Ann and that the child had never been physically disciplined.
The trial was by judge and jury. In addition to the evidence recounted above, the Crown called a number of expert witnesses to corroborate its version of the events as did the defence. The expert evidence related to the functioning of butane lighters, the nature of the burn, whether the child was telling the truth at the trial, and the psychological effects of abuse. At the end of the evidence, the addresses of counsel and the judge's charge, the jury returned a verdict of guilty after deliberating for two days. The judge sentenced Mrs. Marquard to five years' imprisonment. The Ontario Court of Appeal upheld the conviction but reduced the sentence of imprisonment to two years' less a day and added a three‑year probationary period to her sentence. The court stated:
The appellant has raised a number of issues both as to the admission of evidence and the charge to the jury. As to the evidentiary issues, having regard to the manner in which the trial was conducted by the defence we cannot give affect [sic] to these objections now. As to the charge to the jury, we think the trial judge left the issues fairly to the jury, there may be some imperfections in the charge but we are not persuaded that there was any error that would cause us to doubt that this verdict of the jury should stand.
Before this Court, Mrs. Marquard argued that the trial was unfair on a number of grounds. She asked that her conviction be quashed and an acquittal entered, or alternatively, that a new trial be directed.
I have concluded that while a number of the matters complained of by the appellant do not constitute errors, the cumulative effect of the errors which were committed in the course of the trial mandates that a new trial be directed. I will deal with each allegation of error in turn.
1.The Inquiry Under s. 16(1)(b) of the Canada Evidence Act
The appellant, Mrs. Marquard, submits that the trial judge erred in failing to conduct an adequate inquiry into whether the complainant could rationally communicate evidence about the injury. The trial judge questioned Debbie‑Ann on her schooling and on her appreciation of the duty to tell the truth. Several times the child reiterated that "You have to tell the truth". Asked whether it was important or unimportant to tell the truth, she responded that it was important. At the end of the questioning, the judge asked defence counsel whether she had omitted any questions. He replied, "I can't say that there's anything I think Your Honour has omitted." In further questioning by Crown counsel, Debbie‑Ann demonstrated that she knew the difference between the truth and a lie. The judge indicated that while she did not believe the child capable of understanding an oath, her unsworn evidence should be accepted. Some further questioning on remembering took place, and Debbie‑Ann told the judge that yesterday "I went down to the donut shop, and I got a drink and bubble gum." After promising to tell the truth, the child's evidence was taken.
The trial judge was proceeding under s. 16(1) (b) of the Canada Evidence Act, R.S.C., 1985, c. C-5, s. 16(1) [rep. & sub. R.S.C., 1985 (3rd Supp.), c. 19, s. 18], which provides:
16. (1) Where a proposed witness is a person under fourteen years of age or a person whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
...
(b) whether the person is able to communicate the evidence.
The appellant's argument turns on the meaning of the phrase "conduct an inquiry to determine ... whether the person is able to communicate the evidence." She contends that it is not enough to explore the child's ability to understand the truth and communicate. The judge must, in her submission, be satisfied that the child is competent to testify about the events at issue in the trial. To this end, the trial judge must test the child's ability to perceive and interpret the events in question at the time they took place as well as the child's ability to recollect accurately and communicate them at trial. All the latter, she submits, are embraced by the phrase "able to communicate the evidence" in s. 16 of the Act.
The Crown, on the other hand, takes the position that Parliament, in choosing the infinitive "to communicate", evinced the intention to exclude all other aspects of testimonial competence. The ability of the witness to perceive and interpret the events at the time they occurred and the ability of the witness to recollect them at the time of trial are not part of the test. The only requirement is that the child be able to "communicate" the evidence.
It seems to me that the proper interpretation of s. 16 lies between these two extremes. In the case of a child testifying under s. 16 of the Canada Evidence Act testimonial competence is not presumed. The child is placed in the same position as an adult whose competence has been challenged. At common law, such a challenge required the judge to inquire into the competence of the witness to testify.
Testimonial competence comprehends: (1) the capacity to observe (including interpretation); (2) the capacity to recollect; and (3) the capacity to communicate: McCormick on Evidence (4th ed. 1992), vol. 1, at pp. 242‑48; Wigmore on Evidence (Chadbourn revision 1979), vol. 2, at pp. 636‑38. The judge must satisfy him- or herself that the witness possesses these capacities. Is the witness capable of observing what was happening? Is he or she capable of remembering what he or she observes? Can he or she communicate what he or she remembers? The goal is not to ensure that the evidence is credible, but only to assure that it meets the minimum threshold of being receivable. The enquiry is into capacity to perceive, recollect and communicate, not whether the witness actually perceived, recollects and can communicate about the events in question. Generally speaking, the best gauge of capacity is the witness's performance at the time of trial. The procedure at common law has generally been to allow a witness who demonstrates capacity to testify at trial to testify. Defects in ability to perceive or recollect the particular events at issue are left to be explored in the course of giving the evidence, notably by cross‑examination.
I see no indication in the wording of s. 16 that Parliament intended to revise this time‑honoured process. The phrase "communicate the evidence" indicates more than mere verbal ability. The reference to "the evidence" indicates the ability to testify about the matters before the court. It is necessary to explore in a general way whether the witness is capable of perceiving events, remembering events and communicating events to the court. If satisfied that this is the case, the judge may then receive the child's evidence, upon the child's promising to tell the truth under s. 16(3). It is not necessary to determine in advance that the child perceived and recollects the very events at issue in the trial as a condition of ruling that the child's evidence be received. That is not required of adult witnesses, and should not be required for children.
My colleague, Justice L'Heureux‑Dubé, contends that the standard I have outlined is one which is inconsistent (at pp. 255-56) with "the trend to do away with presumptions of unreliability and to expand the admissibility of children's evidence and may, in fact, subvert the purpose of legislative reform in this area." I disagree. The test I have expounded is not based on presumptions about the incompetency of children to be witnesses nor is it intended as a test which would make it difficult for children to testify. Rather, the test outlines the basic abilities that individuals need to possess if they are to testify. The threshold is not a high one. What is required is the basic ability to perceive, remember and communicate. This established, deficiencies of perception, recollection of the events at issue may be dealt with as matters going to the weight of the evidence.
The examination conducted in this case was sufficient to permit the trial judge to conclude that Debbie‑Ann was capable of perceiving events, remembering events and recounting events to the court. This in turn permitted the trial judge to receive her evidence, upon Debbie‑Ann's promise to tell the truth. What Debbie‑Ann actually perceived and recollected of the events in question was a matter for the jury to determine after listening to her evidence in chief and in cross‑examination.
I would add this. It has repeatedly been held that a large measure of deference is to be accorded to the trial judge's assessment of a child's capacity to testify. Meticulous second‑guessing on appeal is to be eschewed. As Dickson J. (as he then was) put it (at p. 135) in the oft‑cited case of R. v. Bannerman (1966), 48 C.R. 110 (Man. C.A.), aff'd [1966] S.C.R. v, a trial judge's discretion in determining that a child is competent to testify "unless manifestly abused, should not be interfered with."
I conclude that the trial judge did not err in the inquiry she conducted under s. 16(1) (b) of the Canada Evidence Act or in receiving the evidence of the child.
2.Charge to the Jury on the Child's Evidence
The appellant submits that the trial judge failed to warn the jury adequately about frailties in the child's evidence. In particular, she alleges that the warning given by the trial judge failed to assist the jury in properly assessing the child's evidence, and that the charge on the confirmatory evidence was unhelpful, confusing and prejudicial to the appellant. The Crown submits that the trial judge's charge was more than adequate and in some respects unduly favourable to the defence.
With children as with adults, there can be no fixed and precise formula to be followed in warning a jury about potential problems with a witness's evidence: Vetrovec v. The Queen, [1982] 1 S.C.R. 811. As Dickson J. (as he then was) stated in that case, at p. 831:
Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula, or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting without more, the evidence of the witness. There is no magic in the word corroboration, or indeed in any other comparable expression such as confirmation and support. The idea implied in those words may, however, in an appropriate case, be effectively and efficiently transmitted to the mind of the trier of fact. [Emphasis added.]
In R. v. W. (R.), [1992] 2 S.C.R. 122, this Court warned against applying negative stereotypes to the evidence of children. At the same time, it emphasized at p. 134 that the trier of fact must be cognizant of the weaknesses of a particular piece of evidence:
Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes [in the way the courts look at evidence of children] do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
In the same spirit, the Court of Appeal of British Columbia in R. v. K. (V.) (1991), 4 C.R. (4th) 338, at p. 350, recognized that there are some cases of child witnesses "where the failure or refusal of the trial judge to exercise the discretion to give such a caution will raise the spectre of an injustice and may, therefore, result in reversible error." Wood J.A. continued, at pp. 350‑51:
As was pointed out by Dickson J. in Vetrovec, supra, there is an infinite range of circumstances that can arise in the criminal trial process, and it would not only be impossible, it would be self‑defeating, to attempt any precise guidelines for the exercise of the discretion in favour of giving the caution.
...
The focus of the new discretion, which has replaced the old common law rules of practice, is the potential for the witness' evidence to be unreliable. No automatic assumptions of unreliability arise because of age, or the nature of the complaint. There must be an evidentiary basis upon which it would be reasonable to infer that the witness' evidence is, or may be, unreliable.
These then are the applicable principles. The questions they pose are, first, whether in the case under appeal the child's evidence required a warning from the trial judge as to the risks of accepting it, and if so, whether the trial judge gave the necessary warning.
I am satisfied that the evidence of the child required a warning from the trial judge as to the risks of accepting it. The child was very young. She was unable to give much detail about the incident. And she had told a different story at an earlier time.
I am also satisfied that the trial judge fairly pointed out these problems to the jury. One of the last things she said to them before they began their deliberations was this:
You will understand that as a matter of common sense that to convict on the unconfirmed and unsworn evidence of a child witness is fraught with dangers and in that you must use your common sense and all the evidence before you. She has not been sworn. She has promised to tell the truth. I found that she was intelligent enough to answer the questions on a promise to tell the truth.
Earlier the trial judge had pointed out particular deficiencies in the child's evidence. She spoke about the fact that the child had earlier told a different story. She said:
You heard evidence, too, of the prior contradictory statement by the child, Debbie‑Ann LeBlanc that in hospital she gave to Dr. Mian, an explanation which, to encapsulate, was effectively "I was trying to light a cigarette and I burned myself," and then in Court, she said, "nanna put me in the stove." The fact that a witness has on a prior occasion made a statement or statements that are contradictory to her evidence at this trial goes to the credibility or the truthfulness of a witness. The testimony of a witness may be discredited in whole or in part by showing that she previously made a statement which is inconsistent with her present testimony.... You are the sole judges as to whether there has been a contradiction of an earlier statement by the witness and the effect, if any, of such contradiction on the witness' credibility.
The trial judge directed the jury to the difficulty defence counsel had in getting responsive answers on cross‑examination:
There was some particular difficulty counsel for the defence had in examining the child, Debbie‑Ann LeBlanc. You will recollect that when he attempted to examine her in cross‑examination, virtually all of his questions were answered, "I don't know", or "maybe", or "I don't remember", and eventually, I think, there was nothing else he could do but give up on that cross‑examination.
The trial judge also pointed out to the jury that there was "very little embellishment" by the child of the statement "nanna put me in the stove."
The trial judge explained the fact that while technical corroboration of a child's evidence was not required, the jury might consider whether other evidence in fact corroborated her testimony and explained the requirements of corroborative evidence. She concluded with this caution:
Before leaving the evidence of the child, I should say that just because you find that her evidence has been corroborated by some other material evidence, that does not mean that you must accept the evidence of the child in whole or in part or that you must convict the accused.
Finally, the trial judge repeatedly warned the jury that the child had not been sworn, but was testifying under a promise to tell the truth. She stated: "It is for you to decide ... what weight is to be given to the child's promise to tell the truth."
In my view, these cautions adequately warned the jury of the risks associated with accepting the child's evidence.
3.Opinion Evidence Outside the Area of the Witness's Expertise
The appellant submits that the judge erred in admitting opinion evidence given by experts outside their area of expertise and further erred by failing to instruct the jury that this evidence was to be disregarded.
Dr. Mian was qualified as an expert in child abuse and paediatrics. She was not qualified as an expert in burns. Nevertheless, she thrice voiced the opinion that the child had suffered a contact burn and not a flame burn. In cross‑examination, she admitted that she was not an expert in burns or plastic surgery.
Dr. Campbell, who saw the child upon her arrival at Wellesley Hospital before referring her to the Sick Children's Hospital, was not qualified as an expert. He acknowledged that he was not an expert on burns. He testified, however, that his experience led him to the conclusion that the child had suffered a contact burn.
Dr. Zuker was qualified to testify as to the nature or origin of burns. He went beyond this area of specialty to testify that passivity during a medical examination was characteristic of abused children.
The trial judge admitted this evidence. Although she accepted that the witnesses had gone beyond the area of expertise as qualified, she did not instruct the jury to disregard the opinions which went beyond the witnesses' areas of expertise. On the contrary, she invited the jury to place weight on these opinions, stating that opinions outside the expertise of the witnesses were "to be weighed along with all the other evidence." Defence counsel did not object to the witnesses' giving evidence in these areas. However, he strenuously objected to the judge's charging the jury that they could rely on the opinions outside the stated areas of expertise.
The problem raised in this case stems from the way the witnesses were qualified as experts. There is little doubt that they all possessed some special knowledge relating to the matters on which they testified, alleged to lie outside their expertise. While Dr. Mian and Dr. Campbell were not medical specialists in burns, there can be no doubt that as practising physicians they possessed an expertise on burns which is not possessed by the ordinary untrained person. Similarly, while Dr. Zuker was not qualified as an expert in child abuse, his long experience working with children who had been injured had no doubt given him a degree of expertise which is not possessed by the lay person. The only requirement for the admission of expert opinion is that the "expert witness possesses special knowledge and experience going beyond that of the trier of fact": R. v. Béland, [1987] 2 S.C.R. 398, at p. 415. Deficiencies in the expertise go to weight, not admissibility. As stated by Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at pp. 536-37:
The admissibility of such [expert] evidence does not depend upon the means by which that skill was acquired. As long as the court is satisfied that the witness is sufficiently experienced in the subject‑matter at issue, the court will not be concerned with whether his or her skill was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence.
The problem in this case is that the witnesses were qualified more narrowly than their areas of expertise, or, in the case of Dr. Campbell, were not formally qualified at all. The proper practice is for counsel presenting an expert witness to qualify the expert in all the areas in which the expert is to give opinion evidence. If this is done, no question as to the admissibility of their opinions arises. But the reality is that counsel sometimes fall short of this ideal, or the questions and answers venture into territory which counsel had not at the outset foreseen. Similarly, witnesses called to testify to facts, like Dr. Campbell, may find themselves drawn into the realm of expert opinion; the line between the actions of an attending physician and the assessments underlying these actions is often less than clear.
Important as the initial qualification of an expert witness may be, it would be overly technical to reject expert evidence simply because the witness ventures an opinion beyond the area of expertise in which he or she has been qualified. As a practical matter, it is for opposing counsel to object if the witness goes beyond the proper limits of his or her expertise. The objection to the witness's expertise may be made at the stage of initial qualification, or during the witness's evidence if it becomes apparent the witness is going beyond the area in which he or she was qualified to give expert opinion. In the absence of objection, a technical failure to qualify a witness who clearly has expertise in the area will not mean that the witness's evidence should be struck. However, if the witness is not shown to have possessed expertise to testify in the area, his or her evidence must be disregarded and the jury so instructed.
This approach was adopted by the Ontario Court of Appeal in R. v. Millar (1989), 49 C.C.C. (3d) 193, at p. 218, where Morden J.A. (as he then was) stated for the court:
... it appears now, as it did at trial, that, assuming that medical witnesses may be competent to express an opinion with respect to the existence of child abuse, the only witness whose competency in this respect was and is challenged is Dr. MacMillan. In other words, even though some of the witnesses were not called experts in child abuse it appears to be accepted that they had sufficient expertise to express opinions on the subject. I do not question this. For example, it would appear that Dr. MacDonald, the paediatric radiologist, has had extensive experience in this field.
While I cannot approve of the procedure adopted at this trial, the fact that the witnesses all clearly possessed expertise sufficient to permit them to testify as they did leads me to conclude that allowing the jury to consider their evidence in its entirety does not constitute an error in law.
4.Evidence that the Child's Cooperativeness Indicated Abuse
Dr. Mian gave evidence that the fact that the child acted maturely in dealing with her injury suggested that she had been the victim of long‑term abuse. In examination-in-chief she stated:
... I assess children not only physically but also pyscha‑socially for any of the indicators of child abuse, I look for behavioral indicators and I look for behavior that is outside the expected range, and I expect a child who's just been burned who comes from a loving home to behave in a frightened manner, to behave as if she's now not supported by her family; if she's in the room alone, to be frightened by the presence of strangers, to be frightened of what that individual will do to her and to seek comfort and to make protests about the examination. I expect the child, however, to be able to be cooperative as a reasonable explanation is given as to what needs to be done so if the child is either overly concerned and upset and angry and screaming and carrying on and cannot be comforted, that would worry me but also the other extreme where the child doesn't express any fear, doesn't seek comfort, uhm, and essentially allows me, a stranger, to do what I want with her. Then I become concerned that this is a child who is pseudo‑mature and we use that word to mean that the child acts as if she's older. She acted like say an adult would who's in a difficult situation. She was going to cope with it. She was going to do with what was expected of her which was simply cooperate. It is a behaviour that I have seen in children who have experienced less than safe environments, where they had to be, uhm, cooperative in order not to elicit more harm on themselves and who cooperate in order to either preserve themselves or when the favor of the adult who's present at the time....
Later, Dr. Mian was called by the defence. The Crown cross‑examined her about the child's original denial that anyone had hurt her. The following question was put:
Q. And it's your assessment that this kind of reaction, the words that she said, not an unusual reaction in a child that may have been physically abused?
A. No, not at all. I think that the initial denial is part of what children experience as a need to fall in with what their care taker or their abuser expects, so as not to heap more abuse on themselves.
Prior abuse of the child was not an issue at the trial. There was no evidence suggesting that the child had been abused before the incident in question. The only relevance of the evidence was to explain the child's reaction to her injury. The potential prejudice of the evidence was that it suggested that the appellant, the person who had custody of the child, had systematically abused her.
In this case, the relevance of the evidence was tangential and its probative value of the issues at trial was low. On the other hand, it was potentially very prejudicial, implying as it did that the child was the victim of long‑term abuse, a proposition wholly unsupported by the evidence. Its prejudicial effect clearly outweighed any probative value it might have had on the issues the Crown had placed before the jury. It should not have been admitted.
The trial judge attempted to offset the damage which the evidence may have done in her charge to the jury:
The fact is, I believe, that there is evidence before you to suggest this may well, if indeed it occurred as the Crown says, have been an isolated incident. The child was otherwise well nourished, well cared for, clearly loved by Mrs. Marquard, and indeed the child said, I believe, that she loved her nanna and wanted to see her again. That is quite apart from the issue that you must decide.
But at the same time, the trial judge told the jury that it was Dr. Mian's opinion that the child was an abused child and on two occasions told them that passivity was a "hallmark" of an abused child. This went beyond even what Dr. Mian had stated.
The net effect of the direction may have been to mislead the jury into believing that this evidence of little or no probative weight was a definitive expert opinion that the child was indeed abused and that her passivity was a key and highly probative factor supporting that conclusion.
In my opinion, the reception of this evidence coupled with the trial judge's direction on it is one of the matters which indicate that a new trial must be ordered.
5.Expert Comment on the Credibility of the Child
The defence called Dr. Mian to prove that the child, upon arriving at Sick Children's Hospital, told the staff that she had burned herself with a lighter. The Crown, in cross‑examination, elicited from Dr. Mian the opinion that the child was lying when she told her that she had burned herself with a cigarette lighter. She testified that it is quite common that children "will initially ... give the accidental explanation and later on will give us a story that is more consistent with her injury which is then put in a more convincing [manner] which we believe is the first disclosure of what actually happened." She also testified that even if the child's burn had looked like a lighter burn, she would have been suspicious of the child's story "because of the way the child said it...."
Dr. Mian went on to buttress her view that the child's actual explanation was a lie by reference to the behaviour of abused children:
There's another reason [why children initially lie] which is that children who have been abused often feel that they are responsible for the behaviour that was done to them, for the injury that was inflicted on them.... Therefore if the care taker then takes them to the hospital and they're feeling that they did something wrong to elicit this punishment, they're certainly not going to want to tell the hospital staff that they did something wrong because they feel if my mom or whoever did this to me because of what I did, I wonder what these people who are strangers are going to do to me because of what I did.
The purport of this evidence was clear. Dr. Mian was of the view that the child was lying when she told the hospital staff that she had burned herself with a lighter, and that the child's second story ‑‑ the one she told at trial ‑‑ was the truth.
It is a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion. This Court affirmed that proposition in R. v. Béland, supra, at p. 408, in rejecting the use of polygraph examinations as a tool to determine the credibility of witnesses:
From the foregoing comments, it will be seen that the rule against oath‑helping, that is, adducing evidence solely for the purpose of bolstering a witness's credibility, is well grounded in authority.
A judge or jury who simply accepts an expert's opinion on the credibility of a witness would be abandoning its duty to itself determine the credibility of the witness. Credibility must always be the product of the judge or jury's view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter: see R. v. B. (G.) (1988), 65 Sask. R. 134 (C.A.), at p. 149, per Wakeling J.A., affirmed [1990] 2 S.C.R. 3. Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis. The expert who testifies on credibility is not sworn to the heavy duty of a judge or juror. Moreover, the expert's opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty‑bound to render a true verdict. Finally, credibility is a notoriously difficult problem, and the expert's opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties. All these considerations have contributed to the wise policy of the law in rejecting expert evidence on the truthfulness of witnesses.
On the other hand, there may be features of a witness's evidence which go beyond the ability of a lay person to understand, and hence which may justify expert evidence. This is particularly the case in the evidence of children. For example, the ordinary inference from failure to complain promptly about a sexual assault might be that the story is a fabricated afterthought, born of malice or some other calculated stratagem. Expert evidence has been properly led to explain the reasons why young victims of sexual abuse often do not complain immediately. Such evidence is helpful; indeed it may be essential to a just verdict.
For this reason, there is a growing consensus that while expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact. Professor A. Mewett describes the permissible use of this sort of evidence as "putting the witness's testimony in its proper context." He states in the editorial "Credibility and Consistency" (1991), 33 Crim. L.Q. 385, at p. 386:
The relevance of his testimony is to assist ‑‑ no more ‑‑ the jury in determining whether there is an explanation for what might otherwise be regarded as conduct that is inconsistent with that of a truthful witness. It does, of course, bolster the credibility of that witness, but it is evidence of how certain people react to certain experiences. Its relevance lies not in testimony that the prior witness is telling the truth but in testimony as to human behaviour.
...
There are concerns. As the court stated in R. v. J. (F.E.), [(1990), 53 C.C.C. (3d) 94, 74 C.R. (3d) 269, 36 O.A.C. 348 (C.A.)], and R. v. C.(R.A.) (1990), 57 C.C.C. (3d) 522, 78 C.R. (3d) 390, the court must require that the witness be an expert in the particular area of human conduct in question; the evidence must be of the sort that the jury needs because the problem is beyond their ordinary experience; and the jury must be carefully instructed as to its function and duty in making the final decision without being unduly influenced by the expert nature of the evidence.
The conditions set out by Professor Mewett, reflecting the observations of various appellate courts which have considered the matter, recommend themselves as sound. To accept this approach is not to open the floodgates to expert testimony on whether witnesses are lying or telling the truth. It is rather to recognize that certain aspects of human behaviour which are important to the judge or jury's assessment of credibility may not be understood by the lay person and hence require elucidation by experts in human behaviour.
Had Dr. Mian confined her comments to expert evidence explaining why children may lie to hospital staff about the cause of their injuries, there could have been no objection to her evidence. She was an expert in child behaviour, and the evidence would arguably have been evidence needed by a lay jury to understand fully the implications of the witness's change in story. However, Dr. Mian went further. She clearly indicated that she personally did not believe the first story of the child, preferring the second version which the child told at trial. In so doing, she crossed the line between expert testimony on human behaviour and assessment of credibility of the witness herself. Moreover, the trial judge failed to instruct the jury that it was their duty to decide on the child's credibility without being unduly influenced by the expert evidence. In fact, the trial judge's statement that Dr. Mian gave "evidence as an expert in child abuse and relating to the truthfulness of the testimony of small children" actually reinforced the effect of the inadmissible evidence.
In my view, this error, considered with the others, requires that a new trial be directed.
6.Cross‑examination of Dr. Turrall
Dr. Turrall was a psychiatrist called by the defence. In the course of cross‑examination, the Crown put a series of reports and case studies to him and read extensively from them. Dr. Turrall testified that he was unaware of many of these studies and, for the most part, did not accept their conclusions. None of the experts specifically adopted as authoritative the studies of which Dr. Turrall was unaware and with which he did not agree. Some of the material was very prejudicial. For example, by one "question", some three and one‑half pages in length, the Crown introduced opinions regarding the memory of a child who had been put through an extended traumatic and abusive experience, which was described in detail. Moreover, the impression may have been left that Dr. Turrall's unfamiliarity with these unproven studies reflected a lack of expertise.
The proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if she knows the work. If the answer is "no", or if the witness denies the work's authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is "yes", and the witness acknowledges the work's authority, then the witness has confirmed it by the witness's own testimony. Parts of it may be read to the witness, and to the extent they are confirmed, they become evidence in the case. This procedure was laid out in R. v. Anderson (1914), 22 C.C.C. 455 (Alta. S.C.) and has been followed by Canadian courts. (See Holland v. Prince Edward Island School Board Regional Administrative Unit #4 (1986), 59 Nfld. & P.E.I.R. 6 (P.E.I.S.C.), at pp. 21‑22; Cansulex Ltd. v. Reed Stenhouse Ltd. (1986), 70 B.C.L.R. 189 (B.C.S.C.), at p. 193).
The Crown urged us to adopt the American approach to putting scholarly works to an expert witness. The American approach varies from jurisdiction to jurisdiction. Some jurisdictions require that the witness have acknowledged the authority of the work before it can be read into the record on cross‑examination. Others, however, appear to allow the works to be put into the record on cross‑examination where there is some proof of, or where the judge is prepared to take judicial notice of, the general authority of the work.
Even this more liberal standard was not met in the case of the material put to Dr. Turrall. I am satisfied that expert evidence, introduced in the guise of cross‑examination of Dr. Turrall without any proof that it constituted reputable authority, was inadmissible. It was also, as noted, prejudicial. This is yet another ground which suggests that a new trial must be ordered.
7.Admissibility of the Prior Inconsistent Statement as Evidence of the Truth of its Contents
The appellant argues that the child's statement to the hospital authorities that she burned herself with a cigarette lighter, although hearsay, should be admitted for the truth of its contents on the grounds of necessity and reliability set out in R. v. B. (K.G.), [1993] 1 S.C.R. 740, decided after the trial of this matter.
In view of the fact that a new trial is required on other grounds, it is unnecessary to consider whether the statement in fact meets the criteria of necessity and reliability discussed in R. v. B. (K.G.), supra. It will be open to counsel at the new trial to seek admission of the statement on that basis. It will then be for the trial judge to determine whether it can be used for the truth of its contents on the basis of the principles set out in R. v. B. (K.G.), supra.
8.Conclusion
I would allow the appeal, quash the conviction, and direct a new trial.
The reasons of La Forest and Gonthier JJ. were delivered by
Gonthier J. -- I agree with Justice McLachlin, subject however to the comments of Justice L'Heureux-Dubé pertaining to s. 16 of the Canada Evidence Act , R.S.C., 1985, c. C-5 , [rep. & sub. R.S.C., 1985 (3rd Supp.), c. 19, s. 18], which I adopt.
The following are the reasons delivered by
L'Heureux‑Dubé J. (dissenting) -- Early on the morning of July 4, 1988, Debbie‑Ann LeBlanc, then 3½ years old, was badly burned at the home of her grandmother and legal guardian, the appellant Debra Marquard. She was taken to Wellesley Hospital and shortly after referred to Sick Children's Hospital where she was treated for third‑degree burns to her right cheek and ear. The story told to the examining physicians at both hospitals was that she had burned herself while playing with a lighter and attempting to smoke a cigarette. Due to the characteristics of the burn, in particular its well‑demarcated shape, both doctors formed the impression that the injury was inconsistent with a flame burn but was more like a contact burn. Dr. Zuker, a burn specialist who examined Debbie‑Ann at Sick Children's, also found Debbie‑Ann's reaction to the treatment process unusual and more passive than the vast majority of children that the hospital treats. Because of her reactions to the treatment and his concerns about the cause of the injury, Dr. Zuker requested a consultation with the hospital's SCAN (suspected child abuse and neglect) team.
Following an investigation by the Children's Aid Society, the appellant was charged under s. 245.2(1) of the Criminal Code, R.S.C. 1970, c. C‑34, am. S.C. 1980-81-82-83, c. 125, s. 19 (now R.S.C., 1985, c. C‑46, s. 268(1) ) with aggravated assault. At trial, Debbie‑Ann testified that "My nanna put me on the stove" and that "My poppa pulled me out". After a trial by judge and jury the appellant was convicted. The verdict was appealed on a number of issues relating to the admission of evidence and the charge to the jury. The Court of Appeal held that, in view of the manner in which the defence had been conducted at trial, no effect could be given to the objections to the evidentiary issues. While it agreed that there may be some imperfections to the charge, the court found nothing that would cause it to doubt that the verdict should stand. In the result, the court upheld the verdict but varied the sentence.
The following issues are raised in this appeal. The first concerns the interpretation of s. 16 of the Canada Evidence Act , R.S.C., 1985, c. C‑5 [rep. & sub. R.S.C., 1985 (3rd Supp.), c. 19, s. 18], (the "Act") which sets the criteria for the reception of children's evidence. If such evidence is admissible in this case, the question is whether, considering the nature of the evidence, the jury was adequately warned about its frailties. The remaining issues relate to the manner in which the expert evidence of Dr. Zuker, Dr. Campbell, Dr. Mian and Dr. Turrall was received in this case.
In this case, Dr. Zuker was qualified as an expert in burns and Dr. Campbell was an emergency room physician. Both doctors examined Debbie‑Ann and gave evidence on her condition when she arrived at hospital. Dr. Mian was qualified as an expert in child abuse and was called by the Crown as to Debbie‑Ann's condition when she was admitted to Sick Children's Hospital and as an expert regarding children's memories. She was also called by the defence to establish Debbie‑Ann's prior inconsistent statement that she had been burned while trying to light a cigarette. The appellant alleges first, that evidence given by Doctors Zuker, Mian and Campbell, outside the narrow confines of their particular expertise, is not admissible. Next, according to the appellant, the testimony of Dr. Mian regarding Debbie Ann's "pseudo‑mature" responses constituted evidence of the appellant's bad character and for that reason is not admissible. She also alleges that the cross‑examination of Dr. Mian by the Crown on Debbie‑Ann's prior inconsistent statement violated the rule against oath helping.
Regarding Dr. Turrall's testimony, he was a psychologist called by the defence as an expert in children's memory. The appellant contends that the Crown improperly cross‑examined Dr. Turrall and that the appellant was prejudiced by the graphic nature of the cases cited by the Crown.
In the end, the real question is whether, given all the circumstances of this case, including the way the defence was presented, there has been a miscarriage of justice which warrants a new trial. For the following reasons, I dissent from the majority and would dismiss the appeal.
Section 16 of the Act
The appellant argues that the statutory provision under s. 16 of the Act that a child be able "to communicate" the evidence requires the trial judge to inquire into the capacities of the witness to perceive, interpret, remember and recount. She submits that the trial judge erred in failing to conduct such an inquiry and, as a consequence, Debbie‑Ann's evidence was inadmissible.
My colleague, Justice McLachlin, has come to the conclusion that the trial judge did not err in admitting the unsworn evidence of Debbie‑Ann, finding that the requirements of s. 16 of the Act were met in this case. While I share my colleague's view that Debbie‑Ann's testimony was properly admitted in this case, I wish to comment on the requirements of s. 16 of the Act in a more general way given the concerns I have about my colleague's interpretation of s. 16 of the Act. My colleague has found that, in addition to determining whether the child can communicate the evidence, s. 16 requires the trial judge to conduct a general inquiry into the ability of the child to observe and recollect events before the evidence can be received. She does so on the basis of the common law requirements which govern the admission of evidence of witnesses whose testimonial competence is questioned. In her view, there is nothing in s. 16 of the Act which indicates an intention to vary the common law rule. I disagree. Such a result would, in my opinion, run counter to the clear words of s. 16 of the Act as well as the trend to do away with presumptions of unreliability and to expand the admissibility of children's evidence and may, in fact, subvert the purpose of legislative reform in this area.
The notion that the evidence of children is inherently unreliable has now been totally rejected (R. v. Khan, [1990] 2 S.C.R. 531; R. v. B. (G.), [1990] 2 S.C.R. 3; R. v. W. (R.), [1992] 2 S.C.R. 122). This is part of a larger trend in the evolution of evidence law in which courts have moved away from the tendency to view the evidence of certain classes of witnesses as inherently untrustworthy (Vetrovec v. The Queen, [1982] 1 S.C.R. 811, at p. 823). We now recognize that, in general, juries are competent to assess the evidence and credibility of all witnesses, including that of children. Thus, increasingly, the practice is to admit evidence and leave the matter of what it may be worth to be weighed by the jury, absent clear policy reasons for exclusion (R. v. Seaboyer, [1991] 2 S.C.R. 577). As Wilson J. noted in R. v. B. (G.), supra, at pp. 14‑15, it is this realization which lies behind the repeal of the common law rule requiring the corroboration of accomplices' evidence in Vetrovec, supra, and the repeal of the statutory provision requiring corroboration of complainants' evidence in rape cases. With the repeal of the corroboration requirement in s. 16 of the Act, the role of the jury is also extended with respect to the evidence of children and other witnesses whose competence to testify is questioned.
In the words of Wilson J., we now accept that "[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it" (R. v. B. (G.), [1990] 2 S.C.R. 30, at p. 55). This change is now reflected in the Act, as evidenced in the recent decision of this Court in R. v. W. (R.), supra, at pp. 132-33 (per McLachlin J.):
The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution.... The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults.
In addition, a number of specific concerns preceded the reform of the rules governing the reception of children's evidence. Two threads could be discerned running through this discussion. The first was a concern over the prevalence of child sexual abuse. The second was the perception that the law of evidence constituted a significant impediment to obtaining convictions in such cases. (See: N. Bala, "Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System" in W. S. Tarnopolsky, J. Whitman and M. Ouellette, eds., Discrimination in the Law and the Administration of Justice (1993); J. Robb and L. Kordyban, "The Child Witness: Reconciling the Irreconcilable" (1989), 27 Alta. L. Rev. 327, at p. 328; R. J. Delisle, "D. (L.E.): Obscuring Similar Fact Evidence" (1989), 71 C.R. (3d) 22).
Accordingly, one of the main aims of the reform was to simplify the requirements for the reception of such evidence to facilitate its admissibility. The Report of the Committee on Sexual Offenses Against Children and Youths (the "Badgley Report"), a report of the Parliamentary Committee which was set up specifically to examine the substantive and adjectival law affecting the prosecution of sexual offenses against children, recommended that there be no special rules of testimonial competence with respect to children. On the basis of research which made clear that conventional assumptions about the veracity and powers of articulation and recall of young children are largely unfounded, the Committee recommended that children's evidence be heard and weighed in the same manner as any other testimony. The Committee proposed the following amendments to the Act:
1.Every child is competent to testify in court and the child's evidence is admissible. The cogency of the child's testimony would be a matter of weight to be determined by the trier of fact, and not a matter of admissibility.
2.A child who does not have the verbal capacity to reply to simply framed questions could be precluded from testifying.
3.The court shall instruct the trier of fact on the need for caution in any case in which it considers that an instruction is necessary.
See: Sexual Offenses Against Children, vol. 1, at pp. 373‑74.
These recommendations are in line with reforms to evidence law in other countries as well. For example, Rule 601 of the U.S. Federal Rules of Evidence, whose provisions have been adopted by a large number of states, abolishes all specific grounds of testimonial incompetence including those involving children. Everything now goes to weight. Scotland has long had a more liberal approach to the competence of child witnesses. Nonetheless, the Scottish Law Reform Commission has recently recommended widespread changes to the law affecting the evidence of children. In Australia, the competency requirements and rules about corroboration have been relaxed to varying degrees in a number of states. England and New Zealand are also contemplating reforms. Among the civil jurisdictions, France and Germany have no formal competency examinations at all for children under the age of 16. (See: J. R. Spencer and R. Flin, The Evidence of Children (1990), at p. 306 et seq.)
The reformed provisions under s. 16 of the Act still mandate an inquiry into the testimonial competence of children. Nonetheless, in my view, it is against this backdrop of reform, increased awareness of the value and reliability of children's evidence and the general trends in evidence law that s. 16 of the Act should be interpreted.
Section 16 of the Act is reproduced in its entirety as follows:
16. (1) Where a proposed witness is a person under fourteen years of age or a person whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
(a) whether the person understands the nature of an oath or a solemn affirmation; and
(b) whether the person is able to communicate the evidence.
(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.
(3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may testify on promising to tell the truth.
(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.
(5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation. [Emphasis added.]
It is useful to compare s. 16 of the Act with its predecessor, s. 16 of the Canada Evidence Act, R.S.C. 1970, c. E‑10:
16. (1) In any legal proceeding where a child of tender years is offered as a witness, and such child does not, in the opinion of the judge, justice or other presiding officer, understand the nature of an oath, the evidence of such child may be received, though not given upon oath, if, in the opinion of the judge, justice or other presiding officer, as the case may be, the child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.
(2) No case shall be decided upon such evidence alone, and it must be corroborated by some other material evidence. [Emphasis added.]
As can be seen, under the present provisions, the need for corroboration has been repealed. For the purposes of this case, however, the relevant distinction between the old and the new provisions is that, whereas previously courts were required to determine if the child was possessed of "sufficient intelligence" to testify, they now must assess whether the child is able to "communicate the evidence". In my view, the modification is of no great significance. In fact, even under the previous provisions, there was no requirement that the trial judge assess a child's powers of perception and recollection independently of, or in addition to, the child's ability to respond to questions. As Robb and Kordyban state, supra, at p. 332, "[t]he `intelligence' portion of the test would seem to mean the ability to understand questions and give intelligent answers. In short, an ability to communicate evidence was required".
This was the conclusion of the Ontario Court of Appeal in R. v. Khan (1988), 42 C.C.C. (3d) 197. In that case, the issue was whether a child should be precluded from testifying because she was very young. Robins J.A. described the test for determining "sufficient intelligence" under the old provisions as follows, at pp. 206‑7:
The test is whether the child's intellectual attainments are such that he or she is capable of understanding the simple form of questions that it can be anticipated will be asked, and is able to communicate the answer in an understandable manner. Again, the weight to be accorded the evidence is for the trier of fact.
Robins J.A. also concluded at p. 207 that the standard under the new provisions is the same as that under the old; the language is merely clearer.
This decision was affirmed by this Court in R. v. Khan, supra. The Court in its reasons did not explore the interpretation given by the Court of Appeal of s. 16 of the Act beyond noting at p. 538 that "the only two requirements for reception of the evidence are sufficient intelligence and an understanding of the duty to tell the truth". There is nothing in the reasons to suggest that Robins J.A. misunderstood the requirements mandated by the previous provisions.
The above statement correctly sets out, in my view, the nature of the inquiry under s. 16 of the Act as it previously existed. Given that legislative reform was designed in part to facilitate the reception of children's evidence, it is unlikely that Parliament intended to make the new provisions even more stringent. The more likely scenario is that Parliament intended the test to be just what the words indicate: the ability to communicate. This interpretation does reflect the basic recommendation of the Badgley report as well as the more general evidentiary trend to remove barriers to the reception and use of evidence.
It is also reasonable to assume that Parliament was aware of both the common law requirements and decisions such as Khan in which "sufficient intelligence" was interpreted as simply the ability to communicate. Had Parliament intended to return to the common law test which applied before the enactment of the previous s. 16 of the Act, as my colleague suggests, one would expect it would now have clear wording to that effect. That is where I part company with my colleague. In my view, my colleague's interpretation of the s. 16 test goes not only beyond the clear wording of the Act but also against its spirit and intent.
The common law rules rest on the presumption that the evidence of certain classes of witnesses is inherently unreliable. To require, as my colleague does, an inquiry into perception and recollection under s. 16 of the Act is to implicitly import the presumption of unreliability back into children's evidence, the very notion which this Court has previously stated that Parliament revoked in its reforms to s. 16 (R. v. W. (R.), supra).
Under s. 16, once the child's ability to communicate, understood as the ability to respond to questions, has been established, any limitations because of deficiencies in recollection or perception go to weight rather than admissibility. The basic ability of a child to recollect past events may often be apparent from the inquiry into the child's ability to communicate in any event. As a practical matter, if a child has no ability whatsoever to recollect past events, counsel would most likely refrain from having the child testify for the obvious reason that nothing relevant could be expected to emerge. However, the adequacy of a child's powers of perception and recollection, even if set at a low threshold, may be assessed differently by different judges. Limiting the inquiry to the ability to understand and respond to questions, as s. 16 of the Act prescribes, has the virtues of simplicity and ease of determination. This, in turn, will ensure consistency and predictability with regard to the admission of children's evidence. The rest may be left to the trier of fact.
In addition, one must not lose sight of the fact that s. 16 also governs the reception of evidence of other persons whose competence to testify is questioned. Section 16, thus, includes the evidence of those who are mentally challenged. It is perhaps in this context that it is easiest to illustrate the dangers of an interpretation which departs from the wording of the Act. There may be obvious limitations to the powers of perception and recollection among some persons whose competence is challenged. One may erroneously conclude that, because of these limitations, the witness has nothing useful to disclose about the events at issue. However, it is well documented that handicapped persons suffer from a very high incidence of abuse. The exclusion of such evidence may often render prosecution impossible, with the consequence that abusers could continue to prey on such victims without fear of being called to account for their actions. If such cases are not to be removed from the triers of fact for lack of evidence, courts must refrain from interpreting statutory provisions in a manner that imposes additional barriers to the reception of such evidence, which is precisely what the Act aims to prevent. Consequently, the appellant's submission on this point must be rejected.
Warning Regarding the Child's Evidence
As to the further argument that the trial judge's charge to the jury about the dangers surrounding Debbie‑Ann's evidence was inadequate, I share my colleague's opinion that the charge to the jury was adequately crafted to warn the jury of the frailties of Debbie-Ann's testimony and the danger of convicting on that basis alone. In her initial charge, the trial judge articulated the concerns of the defence, stating:
For the defence, Mr. Harris takes the position that you must look at the type of burn. You must regard the child's evidence with great caution and urges you, as indeed I do, to take a common sense approach.
She strengthened this warning in the recharge in the following terms:
You will understand that as a matter of common sense that to convict on the unconfirmed and unsworn evidence of a child witness is fraught with dangers and in that you must use your common sense and all the evidence before you.
In addition, the jury was warned that the child was unsworn and instructed that, because of her prior inconsistent statement, they were entitled to discredit her testimony. I conclude on this entire point that no error can be found with respect to any aspect of the admission of the child's evidence in this case.
Expert Evidence
Four grounds must be addressed with respect to the admission of expert evidence: first, the admissibility of the testimony of experts outside the particular areas in which they were qualified; second, Dr. Mian's evidence of Debbie‑Ann's "pseudo‑mature" behaviour; third, whether the Crown's cross‑examination of Dr. Mian regarding Debbie‑Ann's prior inconsistent statement violated the rule against oath helping; and fourth, whether the cross‑examination of Dr. Turrall was prejudicial to the appellant.
As to the first ground, I am in agreement with my colleague that the opinion evidence of Dr. Mian, Dr. Zuker and Dr. Campbell, while, in some instances, outside the specific areas in which each had been qualified, was properly admitted in this case. As I will discuss in more detail below, the function of an expert is to assist the trier of fact in drawing inferences about matters which lie beyond common experience. In the present case, each of the doctors whose evidence was challenged was engaged in medical work which allowed them to form clinical opinions about the causes of injuries, such as those of Debbie‑Ann, which could be of use to the jury. As such, their evidence falls well within the criteria for the reception of expert evidence.
Turning to the second ground, in this case, Dr. Mian gave evidence that Debbie‑Ann's "pseudo‑mature" or unusually compliant behaviour was behaviour that she had observed among children living in an unsafe home environment. Despite the fact that Dr. Mian was qualified to give evidence about the characteristics of abused children, the appellant takes the position that this evidence was prejudicial because it amounted to evidence of the appellant's bad character in the guise of expert opinion. The appellant argues that it should not have been admitted or, in the alternative, that the trial judge should have instructed the jury to disregard such evidence. McLachlin J. has concluded that this was evidence of bad character or similar acts which could serve no purpose except to suggest that the appellant had systematically abused the child. I disagree.
The determination of this issue requires an examination of the principles surrounding the admission of expert evidence. The general rule with regard to expert evidence can be stated quite simply. As Wilson J. summarized the law in R. v. Lavallee, [1990] 1 S.C.R. 852, at p. 889:
Expert testimony is admissible to assist the fact‑finder in drawing inferences in areas where the expert has relevant knowledge or experience beyond that of the lay person.
See also R. v. Béland, [1987] 2 S.C.R. 398, at p. 415; Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at pp. 536‑37. Expert evidence is permitted as an exception to the usual rule excluding opinion evidence in recognition of the fact that the average person, even if given information, may not possess the necessary knowledge in some cases to assess its significance or draw the correct inferences in a particular context (R. v. Abbey, [1982] 2 S.C.R. 24, at p. 42).
In the present case, Dr. Mian was qualified as an expert in child abuse. That is to say, one of her primary functions as an expert was to inform the jury about the nature of child abuse and those aspects of it, in particular, which would normally lie outside the area of common or generally held knowledge. As this Court recognized in R. v. Lavallee, supra, such information may be particularly important where behavioural characteristics run counter to our intuitive notions of what constitutes "normal" human responses in certain situations. The logic beneath this is readily apparent: if the trial process is a search for the truth, then misplaced assumptions about human behaviour which drive the trier of fact to draw incorrect inferences from the evidence must be unmasked if this process is not to be subverted rather than furthered.
At no time did Dr. Mian state, as the appellant alleges, that Debbie‑Ann's behaviour was indicative that she was living in an unsafe environment or was a victim of long‑term abuse. Rather, Dr. Mian's testimony was couched in less absolute terms; she simply stated that she had seen such behaviour among abused children. But even if Dr. Mian had clearly stated that this was the conclusion that she drew from her assessment of Debbie‑Ann, as an expert, it was an opinion she was entitled to put forward. Her observation was merely one piece of information, among many others which the jury could either admit or reject in the process of coming to its determination about what really happened to Debbie‑Ann.
As to the alleged inferences from Dr. Mian's testimony of the appellant's bad character, Dr. Mian's evidence of pseudo‑mature or passive behaviour related to the characteristics of Debbie‑Ann, not to those of the appellant. Nor was the evidence adduced to demonstrate any propensity of the appellant to commit acts similar to the one at issue. Since Dr. Mian's opinion was confined to the responses of Debbie‑Ann, it was incapable of doing so. The testimony did not implicate the appellant except in the inferential manner that much expert testimony, of necessity, corroborates the theory of either the Crown or the defence. If one were to adopt the view that such evidence must be categorized as going to the bad character of the accused, and hence excluded except where the accused has put his or her character in issue, then all evidence which relates to the responses of abused children would have to be routinely excluded at trial. This is not the law nor should it be.
Moreover, this Court has already made clear in R. v. B. (G.) (1988), 65 Sask. R. 134 (C.A.), aff'd R. v. B. (G.), supra, at p. 55, that expert opinion explaining the psychological and physical impact of abuse on children is "well within the bounds of acceptable and admissible testimony". Wakeling J.A. for the Court of Appeal in that case reviewed the jurisprudence relating to expert opinion on the behaviour of abused children. Referring to the decision of Cory J.A., then of the Ontario Court of Appeal, in R. v. Taylor (1986), 18 O.A.C. 219, he concluded that evidence which supports a determination of credibility based on statistical probability is not admissible, as such evidence can serve no purpose except to bolster the credibility of the witness. (See also R. v. J. (F.E.) (1990), 74 C.R. (3d) 269 (Ont. C.A.), at p. 276). This conclusion is consistent with the reasoning in this Court's decision to exclude polygraph evidence in Béland, supra. However, Wakeling J.A. distinguished this type of evidence from the evidence found admissible by the British Columbia Court of Appeal in R. v. Beliveau (1986), 30 C.C.C. (3d) 193, as follows, at p. 149:
On the other hand, I see no objection to expert testimony which does nothing more, as was the case in Beliveau, than show that psychological and physical conditions which occurred were consistent with sexual abuse, a factor which might otherwise be nothing more than conjecture or speculation on the part of the judge or jury. The trial judge's conclusions are always at least twofold in nature, one requiring a determination of whether the offence occurred, and the second whether the accused was the perpetrator of the offence. If expert testimony is available to corroborate either of these conclusions, it should be accepted by the trial judge as a welcome assistance to what is always a difficult task, but is even more difficult when the incident involves reliance upon the evidence of children. [Emphasis added.]
My colleague concludes that, because there was no evidence of long‑term abuse in the present case, the evidence of Dr. Mian could only go to the character of the appellant or similar fact evidence. I disagree. The fact that no long-term abuse was alleged does not, in my opinion, transform expert evidence on the characteristics of abused children into evidence of an accused's character. The presence of abuse on that one occasion was the central issue of this case. The question was whether the abuse occurred at all, not how many times or over what period of time. On this basis, the relevance of expert testimony about child abuse was clearly established. (I would also point out that in R. v. B. (G.) only one incident of abuse was alleged.) Furthermore, the defence here made no objection to the introduction of this evidence but actively participated in exploring the basis of Dr. Mian's concerns. In my opinion, there can be no question that Dr. Mian's evidence concerning Debbie‑Ann's reactions falls squarely within the legitimate function of an expert in assisting the trier of fact. Accordingly, the appellant's submission on this issue cannot stand.
The appellant further submits however, that, as issues of credibility are properly within the domain of the trier of fact, expert evidence which relates to the credibility of a witness offends the rule against oath helping. Therefore, Dr. Mian's opinion about the truth of Debbie‑Ann's statement to her when admitted to the hospital, i.e., that she burnt herself with a lighter, was inadmissible. Alternatively, the appellant argues that the jury should have been instructed about the limited use they could make of such a statement.
My colleague has recommended that the three conditions set out by Professor A. Mewett in the editorial "Credibility and Consistency" (1991), 33 Crim. L.Q. 385, at p. 386, be adopted in cases such as this: the court must require that the witness be an expert in the particular area of human conduct in question; the evidence must be of the sort that the jury needs because the problem is beyond their ordinary experience; and the jury must be carefully instructed as to its function and duty in making the final decision without being unduly influenced by the expert nature of the evidence. I agree and find that they have been respected in this case. My colleague, however, goes on to conclude that Dr. Mian's evidence crossed the boundary of permissible expert opinion and usurped the function of the jury in determining the credibility of Debbie‑Ann. Here I must disagree.
It is important here to set out the sequence of events that led to the comments that the appellant now claims are prejudicial. Although Dr. Mian was a Crown witness, the defence itself called Dr. Mian to testify as to Debbie‑Ann's statement that she had burned herself while playing with a lighter since, by the time of the trial, the child herself could not recall having given such a statement. Given the introduction of the statement to undermine Debbie‑Ann's credibility, the Crown, then, was entitled to call evidence to rehabilitate the witness's credibility.
At that point, on cross‑examination, Dr. Mian testified that children who are abused will often, particularly close to the time of their admission to hospital, go along with the "official story" and give an explanation that the injury was caused by an accident. Later on, they will give a story in a more convincing manner that is more consistent with the injury. Dr. Mian explained several possible reasons for this behaviour. The initial denial may be related to the child's need to fall in with the abuser to avoid further abuse. The child may have been overtly programmed by the caretaker or the child may simply sense that he or she should not tell what happened. In addition, it is often common for children to feel that they themselves have done something to bring on the abusive behaviour, and that, if they tell what has really happened, they will be in danger of more abuse from the person about whom the information is disclosed.
For the reasons which I have outlined above, this information was admissible as expert opinion relating to the characteristics of abused children. It was vitally important background which set the context to understand Debbie‑Ann's behaviour, including her prior inconsistent statement. It is information which illustrates why a child might initially after an incident of abuse recount a version of events which is at variance with what actually happened. In a sense it is information which can be compared to such well‑recognized phenomena among victims of sexual abuse or domestic violence as recantation of the reported assaults and delay in reporting which also, if weighed without knowledge of the particular context in which they occur, reflect negatively on the credibility of the witness.
In my view, Dr. Mian's evidence bears no comparison with the polygraph evidence that this Court held should be excluded in Béland, supra, or the statistical evidence that children tend not to lie about abuse that was at issue in Taylor, supra. Dr. Mian's evidence was not tendered for the sole purpose of providing the jury with the answer to the question they had to decide. Rather, the information was tendered for the larger purpose of assisting the jury in understanding why a child might react in a certain way if he or she were abused. The jury, as trier of fact, was left with the ultimate assessment of the credibility of both of Debbie‑Ann's statements.
Dr. Mian did not, at any point, state that she thought Debbie‑Ann was lying, nor did she, contrary to my colleague's assertion, comment at all as to whether Debbie‑Ann's contradictory statement at trial was true. She merely said that she was "suspicious", "surprised" and "concerned" about Debbie‑Ann's initial response in the circumstances. In short, she stated that Debbie‑Ann's reactions alerted her. She reported that Debbie‑Ann was unusually cooperative, her conversation was extremely flat without affect, feeling or concern. When she proceeded to ask her if anyone had hurt her, Debbie‑Ann shut her out, repeating "nobody, nobody". Moreover, Dr. Mian found the burn inconsistent with the story. She stated that, based on these reactions, even without the questions raised by the physical evidence of the burn, she would have been "somewhat ... concerned if not suspicious".
Issues such as denial, protection of the abusing parent and untimely or incomplete disclosure, which are intimately related to questions of credibility, lie at the heart of child abuse. In fact, as they often form the core reactions to abuse, credibility will often be the very issue to be decided. The difficulty in this case arises because, not only was Dr. Mian an expert on child abuse, testifying about its general characteristics, but she was also Debbie‑Ann's examining physician. This made it difficult, if not impossible, for her to avoid testifying in a manner that touched, however slightly, on Debbie‑Ann's credibility. However, the relevance of her testimony does not lie in whether or not Dr. Mian thought Debbie‑Ann was lying, but rather in her knowledge of the characteristics of abused children which led her to the conclusion that Debbie‑Ann may not have been disclosing the truth about her injury.
The jury was explicitly instructed by the trial judge that it remained the sole judge as to the credibility of Debbie‑Ann's statement. Moreover, the trial judge instructed the jury that they were entitled to draw an inference adverse to the Crown from Debbie‑Ann's prior inconsistent statement:
The fact that a witness has on a prior occasion made a statement or statements that are contradictory to her evidence at this trial goes to the credibility or the truthfulness of a witness. The testimony of a witness may be discredited in whole or in part by showing that she previously made a statement which is inconsistent with her present testimony.... You are the sole judges as to whether there has been a contradiction of an earlier statement by the witness and the effect, if any, of such contradiction on the witness' credibility. [Emphasis added.]
Although I acknowledge that it was an error to instruct the jury that it was Dr. Mian's opinion that Debbie‑Ann was an abused child, since Dr. Mian did not in fact make such a statement, this error must be considered in light of the entire charge to the jury and the specific direction the trial judge gave to the jury not to decide the case in terms of child abuse but to focus on the assault under consideration. The trial judge, after commenting on the increased visibility of child abuse in the community as a general phenomenon, clearly reminded the jury about the real question they had to decide:
Now, having said that about child abuse, it is a very inflammatory subject and term; I caution you that you must consider your verdict in terms of the application of intentional force rather than child abuse.
Furthermore, the defence did not object to the trial judge's characterization of Dr. Mian's opinion, despite objections to several other aspects of the charge to the jury, including the weight to be given to the testimony of experts outside the narrow confines of their expertise. This suggests that the defence at that time was not concerned about any prejudice which might result from such a directive. This is hardly surprising, in my view, in light of the theories both the Crown and defence advocated at trial. Both the Crown and the defence pointed out that there was no suggestion that Debbie‑Ann had been abused on more than the occasion in question. No theory of long-term abuse was propounded by either side and, in my view, the jury clearly understood that this was not the issue before them. As the trial judge pointed out:
The fact is, I believe, that there is evidence before you to suggest this may well, if indeed it occurred as the Crown says, have been an isolated incident. The child was otherwise well nourished, well cared for, clearly loved by Mrs. Marquard, and indeed the child said, I believe, that she loved her nanna and wanted to see her again. That is quite apart from the issue that you must decide.
Considering the totality of the charge to the jury, as one must, in my view the jury cannot have been mistaken about the nature of the issue before them or their responsibility as triers of fact for the ultimate decision about the credibility of the witnesses in the case. This ground must accordingly fail.
Cross‑examination of Dr. Turrall
The appellant advances two arguments relating to the cross‑examination of Dr. Turrall. The first concerns the law governing the admission of learned treatises; the second relates to prejudice to the appellant by the admission of this evidence. My colleague finds that the evidence introduced during the cross‑examination was both inadmissible and prejudicial and would order a new trial on this ground.
Dr. Turrall was qualified as an expert in child psychology. He was called by the defence for the purpose of establishing that children's memories at a young age are generally not as reliable as those of adults. Although no objection was taken at the time of the cross‑examination and although the appellant did not object to the charge to the jury in relation to the cross‑examination, the appellant now contends that the Crown improperly cross‑examined Dr. Turrall by quoting extensively from studies with which he was unfamiliar concerning the memories of children. According to the appellant, one such study was particularly prejudicial because it contained opinions regarding the memory of one child whose experience of abuse was described in graphic detail.
The law with respect to the admission of learned treatises into evidence has not been greatly altered since R. v. Anderson (1914), 22 C.C.C. 455 (Alta. S.C.). Anderson requires that, in order for a learned treatise to be read into the body of evidence which the jury considers, it must first be adopted by the expert as authoritative. In this case, Dr. Turrall was unaware of the studies cited by the Crown, and of course, could not adopt them as authoritative.
There are a number of different views regarding the rules which should govern the admission of learned treatises. Anderson embodies a particularly strict approach: if a witness is asked about a text and expresses ignorance of it or denies its authority, no further use can be made of it by reading extracts of it into evidence. However, if the witness admits its authority, then he may be asked to explain any apparent differences between its opinion and his own. See: Sopinka, Lederman and Bryant, The Law of Evidence in Canada, supra, at p. 562.
By contrast, in many American jurisdictions, learned treatises may be put to considerably broader use. Wigmore explains the rationale behind the rule as follows: much expert testimony consists of information obtained from such sources and there are sufficient guarantees of trustworthiness to justify equating a learned treatise with the live testimony of an expert witness (Wigmore on Evidence (Chadbourn revision 1976), vol. 6, paras. 1690‑92). The hearsay exception to learned treatises under Rule 803(18) of the U.S. Federal Rules of Evidence accordingly permits such material to be read into evidence as long as it is called to the attention of the expert on cross‑examination and its authoritativeness is reliably established. This may be done by the admission of the witness himself, by other experts who testify during the trial, or by judicial notice (J. W. Strong, ed., McCormick on Evidence (4th ed. 1992), vol. 2, para. 321, at p. 351. See also: C. Goldman, "The Use of Learned Treatises in Canadian and United States Litigation" (1974), 24 U.T.L.J. 423).
I would be inclined to favour the American approach over Anderson, as it has the benefit of preventing the witness from foreclosing an inquiry into the depth or breadth of his or her knowledge by simply refusing to acknowledge a study. However, even if the law regarding the admission of learned treatises were not to be expanded in this way, while the examination in this case did not fall within the strict parameters of the rule in Anderson, no prejudice to the appellant arose from the cross‑examination of Dr. Turrall considering the examination as a whole.
The defence called Dr. Turrall for the purposes of establishing that the memories of small children are unreliable after the passage of time. The cross‑examination was designed to explore Dr. Turrall's admissions that his professional contact with young children was limited, that child abuse was not a focus of his practice and that Dr. Mian had considerably more expertise than he had in the area. In re‑examination, counsel for the appellant attempted to challenge the scientific validity of the studies cited by the Crown and to establish that Dr. Turrall's unfamiliarity with this literature did not necessarily reflect any lack of expertise. In my opinion, the appellant cannot be heard now to complain that the cross‑examination of her own expert was prejudicial simply because the Crown may have been successful in circumscribing the limits of his knowledge which thereby rendered his testimony less effective. This argument must be rejected.
As to the description in the literature cited to Dr. Turrall of the events surrounding the assault of a 3½‑year‑old girl used by the Crown to cross‑examine Dr. Turrall, the appellant submits that it was so graphic as to be prejudicial. The focus of the cross‑examination was the accuracy of children's memories. The purpose of the example was simply to provide a concrete illustration of the theory that young children may in fact recall and communicate with great accuracy and certainty traumatic events that occur to them. No link between the events in the example and those at issue in the trial was made by counsel for the Crown, nor did she comment on them except to ask Dr. Turrall if he was aware of the case. In my view, the mere description of the facts of that case is far from enough to establish a reversible error. It was a very minor incident in the whole trial with no consequence at all on the fairness of the trial.
Conclusion
I agree with the Court of Appeal that, while there may have been imperfections in the charge to the jury, there is nothing in this case to suggest that the trial was unfair or that there was a miscarriage of justice. The evidence as a whole discloses that the most striking feature of the trial concerned the nature of Debbie‑Ann's burn. There is no question either that, if the jury accepted as they must have, those injuries were consistent with the child's evidence at trial, then a guilty verdict was ineluctable. There is no disagreement that all of the evidence relating to her physical injuries is well within the bounds of admissible expert opinion. The expert evidence regarding child abuse was properly admitted as it was relevant to the central issue in the case, whether her injuries were deliberately inflicted by the appellant. The jury heard all of the evidence, including the child's evidence. The judge's address to the jury, while not perfect, was fair and the verdict must stand.
In the result, I would dismiss the appeal.
Appeal allowed, L'Heureux‑Dubé J. dissenting.
Solicitors for the appellant: Nakatsuru & Doucette, Toronto.
Solicitor for the respondent: The Ministry of the Attorney General, Toronto.
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