The purpose of child protection laws is, in theory, the protection of children. But child protection cases raise unique evidence issues for lawyers.
Developing technology and recent amendments to child protection legislation, evidence legislation, and even the Criminal Code have resulted in changes to the way statements are taken from children and others. The use of audio and videotapes, once rare, is now the norm. No doubt the process has been affected by television police dramas, the speed of improving technology, and the declining cost of technology.
The use of videotape to take the statements of child victims is common and generally thought to result in a less traumatic process for the child. Less trauma for the child is only the result if the taped statement is used as the child’s evidence in court in place of making the child personally attend the court hearing.
The admissibility of children’s taped statements is, of course, a sub-set of the law on the admissibility of children’s hearsay statements. The Supreme Court of Canada in 1990’s R. v. Khan revolutionized the rigid application of the hearsay rule by applying what has come to be called the “principled approach” to hearsay.
The court established a new framework with respect to the admissibility of hearsay evidence, under which such evidence is admissible if it meets certain criteria with respect to reliability and necessity. The party tendering the out-of-court statements of the child has to satisfy the judge that the reception of the statement is reasonably necessary and that the statement is sufficiently reliable to be admitted.
The tapes of a child’s statements are offered for the truth of their contents and, usually, instead of the child’s in-person attendance in court. In other words, if the tape goes in, the child does not have to be produced for cross-examination. This (the child not having to give evidence) is generally seen as a highly desirable outcome.
It is an odd system that, in trying to protect the child from harm, would require that the child come to court, give evidence, be cross-examined and surely experience some level of trauma from that process. It is only in the last five years or so that judges have been bold enough to draw this analogy in making decisions about the admissibility of taped statements.
Usually (if there is an analysis) the court finds this to be an aspect of the necessity test (that is, the court finds that it is necessary to admit the taped statement or else the result would be to cause harm to the child who is meant to be protected by the hearing).
Where there is a dispute as to the admissibility of a taped statement, in some cases, there is a formal hearing held in advance of the trial or hearing to determine the admissibility of the taped statement. The chid protection case has adopted the criminal law name for such hearings, the voir dire. In some jurisdictions, only the trial judge hears this application; in others it is heard by a case management judge, or any judge hearing the interim stages of the case.
The law in this area is hard to find, inadequate, not well thought out, and not well presented. This really should be viewed as a new and still developing area of the law. Part of the problem may result from the use of the voir dire as a discreet hearing process to determine admissibility. Often the trial decision is reported or available electronically, and if there were written or detailed reasons for the voir dire, those reasons may be separate from and do not form part of the trial decision. Where judges order the taped statement admissible, they make a finding that it meets the threshold tests of necessity and reliability, but rarely is there any analysis as to why.
Children’s taped statements have sometimes not been admitted. When the party offering the tapes as evidence failed to lead evidence as to their necessity and reliability and offered no explanation as to why the children (who were 14, 13 and 12 years old) could not testify, the court was not satisfied that the test of necessity in Khan had been met (New Brunswick (Minister of Health & Community Services) v. C.(R.),1995 (NBQB)).
Ontario Family Court Justice David Aston refused to admit the taped statements of children aged 15 and 13 (Children’s Aid Society of London & Middlesex v. B.(B.) (2000)) and found that although some hearsay evidence in a child protection case may be admissible for its truth without the necessity of meeting the test in Khan, the discretion to admit such evidence is very limited, and such evidence should not be admitted on the threshold issue of whether a child is in need of protection. Aston explicitly rejected the possibility of a relaxed admissibility standard in child protection proceedings.
And sometimes children’s taped statements are admitted. In 1996’s Children’s Aid Society of Simcoe (County) v. C. (R.S), the Ontario Superior Court gave oral reasons (which were not recorded in the trial decision) in the course of the protection hearing for the decision to admit the statements and drawings of a seven-year-old made in interviews with a social worker (the pictures drawn in the course of those interviews, and the statements made during the course of an assessment by an expert psychologist). The interviews admitted were either tape-recorded or videotaped and then transcribed.
Even once admitted, the tapes can be found to be of little weight for other reasons (this becomes confused/confusing where judges decide to give a tape little weight due to its “unreliability”).
Ontario Court Justice Penny Jones held a voir dire as to the admissibility of various videotaped and written statements from a 10-year-old regarding sexual abuse by her stepfather in Catholic Children’s Aid Society of Toronto v. L.(J.) (2003). There was a great deal of family turmoil at the time of the disclosures and of the statements, including charges of assault against the stepfather for assaulting the mother. The mother did not believe the child’s disclosure about sexual abuse, and the child later recanted, it was thought, under pressure from the mother, including recanting at the criminal trial of the stepfather. He was acquitted and the family resumed living together.
Jones admitted all the statements as she was satisfied they met the dual test of necessity and threshold reliability. All the parties agreed that the child was too emotionally fragile to testify in front of her parents, a conclusion supported by a psychologist. The child was also in her seventh foster placement. However, Jones determined there were too many indicia of unreliability for her to put any weight on the statements. The statements were admitted, but not relied upon.
Here are some practice tips regarding the admissibility of taped statements: Do not assume the other side is consenting. Put the other side on notice in writing at the earliest possible moment that you intend to introduce the tape as evidence, or that the issue of admissibility of this evidence is contested and requires adjudication. If necessary put the other side on notice that you do not intend to call the child as a live witness, or that you do intend to call the child as a live witness and serve a summons (the decision to call the child as a live witness is a tricky and difficult decision, and one that may back-fire, so it needs to be carefully considered). Put the court on notice at the first available opportunity (at the settlement conference or trial management conference).
Provide a full, complete, and clear copy of the tape you intend to produce at the earliest possible moment. Ensure you and your client have received a full, complete, and clear copy of the tape and that you and your client have watched it all the way through well before the admissibility argument takes place. Your client should have seen this tape several times before it is played in court.
If possible, have a transcript prepared of the tape’s contents, for review by the lawyer and the client. Get detailed and specific instructions from your client about the reliability of each of the statements on the tape. Your client should be able to respond to every statement or allegation on the tape, preferably in writing.
Often the tape is in the possession (and ownership) of others (e.g., police) and can be difficult to get. Take steps early to secure the production of the tape, including bringing a motion for production/disclosure if needed. If the tape is not produced to you in a timely fashion to allow you to prepare for the voir dire or the hearing, bring the necessary motion for production/disclosure.
Do not even think of producing an edited version — the court will not admit it.
Read Khan, Smith, and Starr, and understand the law in this area. Be prepared to argue the law at a proper voir dire (what makes it necessary in your case? What makes it reliable?) Make sure there is proper technology available in the court house where the hearing will be for the judge and parties to watch the tape at the same time. Confirm that in writing to the court management (not just to the judge) before the hearing dates.
Determine whether it is advantageous (or not) for the judge and the parties to watch the tape at the same time.
Cases involving children’s taped statements are difficult and can have wide-ranging and very serious consequences for our clients. This is not an area for the lawyer to be guessing at the law, or just shooting from the hip.
Carole Curtis is a family law lawyer in a three-lawyer firm in Toronto. She can be reached at firstname.lastname@example.org