R v JZS: One Small Step for the Court, One Giant Leap for Child Testimony
This past Tuesday, the Supreme Court of Canada (“SCC”) heard the appeal from R v JZS, 2008 BCCA 401, a case involving the validity of several provisions of the Criminal Code, RSC, 1985, c C-46 [Criminal Code] concerning testimony by children. In R v JZS,  1 SCR 3, after hearing the appellant’s argument, the court cut off the hearing and unanimously rejected the appeal. Chief Justice McLachlin, speaking for the unanimous court in the immediate ruling from the bench, said only that the court agreed with the 2008 ruling by the British Columbia Court of Appeal (“BCCA”). Despite the brevity of the oral judgment, the SCC’s adoption of the BCCA’s decision marks an important step in affirming both the reliability of child testimony, and the validity of the provisions providing for them.
In 2006, J.Z.S. was charged with the sexual assault of his 7 year old son and 10 year old daughter. The Crown applied at trial to have the children, now aged 8 and 11, testify behind a screen along with a support person in accordance with ss. 486.1 and 486.2 of the Criminal Code and s. 16.1 of the Canada Evidence Act, RSC, 1985, c C-5 [Canada Evidence Act]. In turn, the defence challenged the constitutionality of those provisions on the ground that it deprived the accused of a fair hearing and violated his rights under s. 7 and 11(d) of the Charter. The trial judge rejected the constitutional challenges and sentenced J.Z.S. to 24 months imprisonment.
Undeterred, the accused sought and was granted leave to appeal. The questions of law to be decided were whether s. 486.2 of the Criminal Code and/or s. 16.1 of the Canada Evidence Act violated s. 7 and/or s. 11(d) of the Charter. Since the SCC adopted the BCCA’s reasons, we first turn to consider that decision.
The BCCA’s Decision
Section 486.2(1) of the Criminal Code states,
in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice. [emphasis added]
The Court begins by noting that the current provisions are part of a string of legislative reforms implemented for the purpose of facilitating children’s testimony while ensuring the rights of the accused are protected. The findings from the Child Witness Project at Queen’s University concluded that child witnesses can be equally as reliable as adult witnesses, and upon a promise to tell the truth are more likely to do so.
What, then, are the rights of an accused under s. 7 and s. 11(d)? An accused’s right to fair trial, and to make full answer and defence must be balanced against the broader societal interests at hand. In R v Levogiannis,  4 SCR 475, the court held that an accused does not have an absolute right, as a basic tenet of the justice system, to an unobstructed view of a witness who testifies against the accused. That right is subject to the broader societal needs, in particular the need to protect and encourage child witnesses when they are testifying. As MacDonald J.A. (as he then was) stated in R v R(ME) (1989), 49 CCC (3d) 475 (NSSC):
The right to face one’s accusers is not in this day and age to be taken in the literal sense. In my opinion, it is simply the right of an accused person to be present in court, to hear the case against him and to make answer and defence to it (484).
Section 16.1(1) of the Canada Evidence Act states that a person under fourteen years of age is presumed to have the capacity to testify.
Unlike the repealed s. 16 of the Canada Evidence Act, s. 16.1 introduces a presumption that a child is competent to testify unless the challenging party puts that capacity in issue. The accused argues that it is unsafe to rely on children’s evidence unless their capacity has been shown, and they have demonstrated an understanding of the moral obligation to tell the truth. The legislative reforms, however, show acceptance of the reliability of child witnesses and the findings of the Child Witness Project.
In addition, s. 16.1 does not restrict the traditional safeguards that protect an accused’s right to a fair trial; namely, the rights to: be presumed innocent until proven guilty, to cross-examine witnesses, to call evidence, and to have the alleged offence proven beyond a reasonable doubt. (It is worthwhile to note that the accused was convicted on the totality of evidence including statements he himself had made to the police.) As L’Heureux-Dube J. pointed out in her dissent in R v Marquard,  4 SCR 223, “conventional assumptions about the veracity and powers of articulation and recall of young children are largely unfounded.” It is only now, with a fuller understanding of the reliabilities of children, do the current provisions properly reflect their weight as witnesses.
Accordingly, both the BCCA and the SCC found that neither s. 486.2 of the Criminal Code nor s. 16.1 of the Canada Evidence Act violate the Charter rights of accused persons.
This is not the first time that the constitutionality of s. 16.1 of the Canada Evidence Act has been called into question. In R v Persaud,  OJ No 432 (ONSC), the court considered a challenge to s. 16.1 and held the changes to the Canada Evidence Act did not have any adverse effects on defendants’ Charter rights (see also R v CNH,  BCJ No 782). Nonetheless, as the result of limited caselaw and binding authority, the question of the constitutional validity of children’s testimony has seemed to be posed again and again. In choosing to hear the appeal, and then unanimously agreeing with the BCCA, the SCC adds its stamp of approval not only to legislative reforms to the Criminal Code and the Canada Evidence Act but also on the validity of child testimony more broadly. As lawyer Mary Ainslie put it: “Children today can be seen and heard.”