Representing a child in a civil proceeding is extremely challenging, complex and rewarding. Children may be witnesses to an accident, the injured party or a victim to alleged wrongdoing. In recent years these children are increasingly being called as witnesses in Canadian civil courts. All too often counsel must rely on "the school of hard knocks" when preparing their witness for a court proceeding, be it an examination for discovery, examination in chief, or cross-examination.
Much of the traditional Canadian trial advocacy literature focuses on children as witnesses in criminal proceedings.2 Since the late 1980's sexual assault of children and the way these children testify in court have received extensive attention from legal authors, the courts and social science researchers. There is now a body of research on the reliability and credibility of child reporting and the developmentally appropriate questioning of a child. There is also now a body of literature on how to question children in a criminal proceeding in a Canadian court.
While the legal literature on child witnesses in sexual assault cases is useful, such literature has only limited application to a personal injury action in the Canadian civil courts. The dynamic of the civil proceeding and the way the age of the child and their physical trauma affects their testimony, are absent from the traditional trial advocacy literature. The purpose of this paper is to provide practical information for the legal profession on how to prepare and examine a child who is a witness in a personal injury action.
More and more, lawyers in the civil context are called upon to consider the child as a witness in a civil proceeding. The child may be a victim of a negligent action. The child may be the only witness of a traumatic injury to a family member. The child may be a Family Law Act claimant who has lost the care, guidance and companionship from a family member. The trauma of a child injured is often compounded by factors other than their own injury, for instance the death of a parent, sibling or close friend, and the injury both physical and/or emotional of a surviving care giver.
In the context of the negligence action in a civil proceeding, the plaintiff has to prove all of the factual requirements necessary to support the cause of action. That is, the plaintiff must prove that it was a reasonably foreseeable victim, the defendant's conduct was negligent, the plaintiff suffered compensable injury, and this injury was caused by the defendant's negligence. The party alleging facts must prove them on a balance of probabilities, or on the preponderance of evidence in order that the civil burden of proof is discharged. Undoubtedly, the evidence of a child will be required in some cases in order to discharge the civil burden of proof. 3
The traditional common law view on the evidence of a child was that such evidence was inherently unreliable. At common law, a child of any age was not automatically excluded as a witness. Nevertheless, there was a presumption at common law that a child under the age of 14 years was prima facie incompetent as a witness. There was a corresponding presumption that a child 14 years old or more was prima facie presumed to be a competent witness.4
In 1991 the Ontario Law Reform Commission, Report on Child Witnesses, indicated that among its aims were: "to ensure that the legal rules which apply to young witnesses are based on modern empirical studies respecting the testimonial capabilities of children and not on antiquated and erroneous notions about the frailty of children's evidence's" More recently the courts have unequivocally rejected the notion that children's evidence is inherently unreliable.
The general principle is that a witness is taken to be credible until shown to be otherwise. In R. v. W. (R.)  2 S.C.R. 122 Justice McLachlin makes some general remarks about the manner in which the courts should approach the evidence of young children. She noted at 266 two major changes in the law relating to the evidence of young children:
The first is removal of the notion, found at common law and codified
The second change in the attitude of the law towards the evidence of
[She advises that] we approach the evidence of children not from the
Under the Ontario Evidence Act a person is presumed to be competent to give evidence regardless of their age. However, the competency of a child under the age of 14 may be challenged, and in that event the proposed witness must be examined to determine if they are competent to give evidence. That examination is conducted by the judge, unless he or she finds that the child's ability to give evidence might be adversely affected if he or she examined the witness, in which case the child may be examined by counsel. The evidence may be admitted if the court is satisfied that: a) the person is able to communicate the evidence; b) the person understands the nature of an oath or solemn affirmation; and c) the person testifies under oath or solemn affirmation.5
Notwithstanding a determination that a child is not competent to give sworn evidence, under the Ontario Evidence Act, if the court is of the opinion that the person's evidence is sufficiently reliable, the court has the discretion to admit it. The court has the discretion to admit the person's evidence so long as the person is able to communicate the evidence, even if the person understands neither the nature of the oath or solemn affirmation nor what it means to tell the truth.6
Given the impressive number of empirical studies of the veracity, recall, accuracy, suggestibility and communicative abilities of children primarily in the criminal context, the justice system at the criminal trial stage has become more sensitive to the needs and capacities of children who are to testify. Nevertheless, in a civil proceeding the child witness who is a plaintiff will undoubtedly have been extensively examined prior to the trial. The child will have been called to testify at an examination for discovery at a court reporters office. As such counsel must recognize the needs and capacities of their child witness at an early stage in the litigation and must adequately prepare the child.7
Preparation Of The Child Witness To Be Examined
In a personal injury action where a child is called as a witness, it is imperative that counsel adequately prepare the child to testify. Properly preparing a child can reduce the child's anxiety in testifying at an examination for discovery and trial. Likewise, preparation can improve the odds that the child will do well when examined.
A personal injury lawyer is often engaged by an adult parent to litigate on behalf of the child. Counsel should learn as much as they can about the child from the child's parents. Parents are good sources of historical background information that a child may not be able to give. Parents can provide information about the child's interests or hobbies prior to the injury as well as the child's medical history and current treatment.8
Many parents feel directly responsible for the injuries to their child. They may blame themselves for failing to supervise the child, allowing the child to be placed in undesirable circumstances or failing to recognize the danger of the situation. As such, when counsel is meeting with the parent and child in order to prepare the child for the examination for discovery, counsel should be sensitive to the parents' reactions along with those of the injured child. Depending upon the age of the child and their needs, the meeting between counsel and the child witness for preparation for the examination for discovery should be conducted without the parents presence and/or free from their input.
At the meeting between counsel and the child witness, counsel should explain to the child that as their representative, counsel will be guarding the child from any misuses of the adversarial system during the examination for discovery. The discovery and trial process should be explained to the child in simple terms. An innovative, practical way to present this information would be by a well-designed videotape. Preparation should be directed to what testifying will be like, the lay out of the room and where testifying will take place.
The child should be prepared to answer questions concerning his or her understanding of the meaning of the oath and moral responsibility. Counsel should explain to the child the purpose of the testimony and legal proceedings in concrete terms. Developmentally appropriate language should be used. Legalese and big words should be avoided. For example, "negligence" can become "when it's someone's fault" or "not being careful enough"; compensate can become "pay for" or "pay back". Counsel should be careful about asking leading and suggestive questions.9
Counsel should actively listen to the child and should liberally tolerate silence and pause because a child, depending upon his or her age may need more time than an adult to think or to decide how to express themselves.
Often a child may be willing to draw a picture about an incident when he or she is emotionally unable to talk about it or are having difficulty expressing themselves. Toy objects may be useful in assisting the child to express themselves. For example, a child may be able to demonstrate the position or movement of an object much more effectively with toy cars and toy people than through a narrative of the event. This technique may be used in discovery or at trial. It may be useful to show the child a photograph or other visual aid and ask her to point out and mark certain items in it, than to ask her to attempt the difficult task of describing the scene of an accident or estimate distances. As well, asking a child to draw or write out what happened may be a useful technique for a child who has suffered an injury.10
Young children often tend to supply an answer to every question even if they have no knowledge of its answer. One reason for this behaviour is that from an early age children are taught that questions and answers form an indivisible pair.11 If a question is left unanswered a child may perceive something to be wrong. As such the child should be given permission by counsel to advise at the meeting and examination for discovery when he or she does not understand the question. The child should be advise that if they do not know the answer to the question that is okay. The child should be taught how to use the "don't know" response or "don't remember" response.12
Counsel should give particular attention to whether the child actually understands the question. The child should be instructed to advise at the meeting and examination for discovery if he or she does not understand the question.
A child should never be told that they cannot have a break or go to the bathroom until all the questions are over. A child who needs a break may give answers they think the questioner wants to hear regardless of the truth, just to get it over with. A child should be advised by their counsel that they can request to take a break at any time during the examination for discovery.13
Authors on advocacy such as Lee Stuesser in An Advocacy Primer, suggest in the criminal context that counsel should avoid asking a child why he or she did or did not take such action. The underlying rationale is that those type of questions imply criticism.14 Nevertheless, in the civil context the child witness should be prepared by their counsel to answer such questions at the examination for discovery. Questions as to why he or she did or did not take such an action are often asked of an adolescent witness at their examination for discovery.
Counsel should formally close the meeting with the child. They should recap the child's account using the child's language and phrases. Explain what will happen next and ask the child if they have any questions. Counsel should give the child and/or accompanying adult a contact name and telephone number in case the child decides that there is further information to discuss before the examination for discovery. Finally, counsel should thank the child for his or her time, effort and co-operation in preparing for the examination for discovery.15
Examination Of The Child Witness At The Examination For Discovery
The examination of a child at examination for discovery is difficult. How a child should be questioned and his or her ability to deal with questions will vary with the age of the child. There continue to be problems with lack of understanding by counsel of the developmental capacities and limitations of children. Children are often asked questions that are clearly inappropriate.16
There are two parts to effective understanding of a child's testimony: a basic understanding of children's language development in general, and an individual assessment of where that particular child fits into the general development scheme. The effective questioning of a child witness requires an understanding of the child's development in the linguistic, cognitive and emotional domains.
There are essentially four periods of childhood development: (1) Infancy, the period of birth to approximately age two; (2) early childhood, from about age three to age six; (3) middle childhood, from about age seven to age ten; and (4) adolescence from age eleven to approximately age eighteen. Individual children develop at different rates and so a child's chronological age can only be a very approximate guide to his or her level of development. As well, not all aspects of their development enter a new period simultaneously. Gender, different cultural backgrounds, language spoken at home and qualities of education may affect how fast and the manner of a child's development.17
Preschoolers, children in infancy and early childhood, may lack the ability to collect information into specific categories. This makes it difficult for such children to respond to questions that ask them if "anything like this" happened before. Children this age tend to use words representative of time, distance, kinship and size long before they understand their meaning. School aged children, children in middle childhood, may have difficulty organizing the details of narratives, will be unequipped to deal with adult insincerity such as sarcasm and irony and may still believe that adults in general speak the truth. Adolescents may have difficulty with linguistic ambiguity such as is found in newspaper headlines, some ads, metaphors, idioms, proverbs and jokes. They may have confusion created by long complex questions.18
A distinction must be made between a child's ability to remember and a child's ability to relate what he or she has seen.
In R. v. F.(C.),  3 S.C.R. 1183, Justice Cory speaking for the Supreme Court noted the difficulty that children have in remembering earlier traumatic events (particularly sexual abuse):
|It will be self-evident to every observant parent and to all who have worked closely with young people that children, even more than adults, will have a better recollection of events shortly after they occurred then they will some weeks, months or years later. The younger the child, the more pronounced will this be. Indeed to state this simply expresses the observations of most Canadians. It is a common experience that anyone, and particularly children will have a better recollection of events closer to their occurrence than he or she will later on.|
Physically painful events will be better recalled and related than one that is not. In one study of children's errors when recounting details of trauma injuries that result in hospital Emergency Room treatment, it was concluded that children are surprisingly reliable informants about stressful experiences when they are not misled or coerced. Children three years of age and older are accurate when recounting the events that cause them pain and stress, namely, details of their injury and of their medical treatment at the hospital, when interviewed in a non-leading manner within a few days of these events. Furthermore, they are highly accurate not only when interviewed shortly after the events, but also when re-interviewed six months later.
Details that were inaccurately specified were primarily centred around the person who first responded to their injury as well as the secondary people who played little role in the ongoing events. One possible explanation for this inaccuracy was that immediately after the injury occurred, the children were in pain and usually crying. They may be so focussed on internal emotions at that junction that external events are not processed well which might lead to a less complete memory of the external event.19
There is also some research to support the view that young children recall more completely and more accurately when they are provided with a model of the location where the event allegedly occurred and miniatures of some of the objects involved.20
(B) APPROPRIATE QUESTIONING OF A CHILD
Besides understanding the child's answers, the questioner must know how to ask an appropriate question. Much of the research in the area of interviewing the child witness suggests that the specific techniques employed by an interviewer have a direct effect on the quality of the report. Many American states now have laws requiring that proceedings be explained to children in age-appropriate language. California specifically requires that questions posed to children be developmentally appropriate; that is, phrased in language that children can understand.21
The language used in examination for discovery should be carefully crafted. A child's ability to relate events which they have witnessed can be hampered by their own limited language skills. Counsel representing a child witness should be guarding against any developmentally inappropriate questions framed by opposing counsel at the examination for discovery.
In one experiment that dealt with reports of a bicycle accident by children between 7 and 11 years old it concluded that children's deficiencies in giving evidence might, at least in part, be due to their lack of verbal abilities and not their perception or memory.22 In fact psychological research in the last ten years has confirmed that children are usually able to give a worthwhile report of what happened to them if they are interviewed appropriately. Research has demonstrated that inappropriate questioning can bias the replies of the children questioned.23
When examining a child at an examination for discovery, the stage of development of a child witness should be determined during the initial phase of questioning. Counsel can use specific strategies for increasing the likelihood that an examination of a child will employ developmentally appropriate questioning skills. The literature on developmentally appropriate questioning of children makes some suggestions on the style of questioning.24 These suggestions, as they apply to a civil proceeding, can be summarized as follows:
1. Keep questions short. Each question should have only one idea. Long sentences or questions should be broken down into shorter ones. The most difficult type of question for a child to answer involves multiple parts. As well, keep sentences in the subject verb object order. The main idea should be at the front of the sentence.
2. When possible use simple every day terms. Use easy words over hard ones and avoid legalese.
3. Avoid leading and suggestive questions. Research has repeatedly demonstrated that young children tend to be more likely to go along with unwitting or intentional suggestions than adults. Some research has confirmed that leading questions are likely to elicit inaccurate information from children.25 As well, young children are sensitive to the status and power of their interviewer. If an account is questioned, children may defer to the challenges of the more senior interviewer.26
4. Some witnesses, particularly young children, may be more willing to respond to yes/no questions with a yes response.27
5. A number of studies have shown that children who are asked the same question more than once, often change their answer because they interpret the repeated question as: I must not have given the correct response the first time, therefore to comply and be a good conversational partner, I must try to provide new information.28
6. Use the active voice. Young children have difficulty comprehending the passive voice. If you are asking about the past, be sure the child understands that. If you switch to the present make sure this is also clear.
7. Avoid pronouns. Repeating the nouns when questioning children is always better.
8. Avoid negatives.
9. Tag questions are confusing to children such as: "You did it didn't you." Or "Isn't it true that"
10. Avoid asking children directly about abstract concepts. Avoid the question of belief entirely. Young children have a tendency to be very literal and concrete in their language. Children under the age of 9 or 10 are not generally reliable in their estimate of time, speed distance, size, height and weight.
11. It is important to define the child's words. Once the child's words are defined, match your question to the child's choice of words and phrases.
12. Be weary of comprehension difficulty. Children are not likely to disclose to adults when they are not understanding a question. Watch body language for puzzled looks, downcast eyes, long pauses or irrelevant responses.
13. Finally, relaxed children can remember and relate events better than children who are experiencing stress. One study indicates that in situations where the interviewer has taken the time to build the greatest rapport with the child, the child's answers are more likely to be consistent and accurate.29 A hostile or accusatory context can produce increased errors in children's reports.30
A child's stage of development will affect their ability to understand and answer questions. Children should be asked questions that are appropriate to their linguistic and cognitive skills. Counsel representing the child witness should object to developmentally inappropriate questions.
Techniques To Assist A Child Witness In Giving Evidence In Court
The experience of testifying is often intimidating especially for a young child. Counsel should inform the child as to what is going to happen in the court, who will be there and what the child will have to do. Counsel should provide a copy of the examination for discovery transcript of the child's evidence to the child well in advance of the trial. Where the child is quite young, the litigation guardian who is often the parent of the child should read the transcript to the child. Key portions of the transcript should be highlighted and reviewed with the child at counsel's office.
The child witness will have had the experience of being examined under oath at an examination for discovery. Counsel should provide instruction on the initial requirements of the oath at trial and understanding of the duty to tell the truth so that the child is prepared to deal with the court's questions about these matters. A courtroom tour a week before trial should be arranged. The child should sit in the witness chair and if possible counsel should conduct a brief mock examination in chief and cross- examination.
At the courthouse at the trial date counsel should help the child to relax. The child should be put on the stand as early in the day as possible to lessen the anxiety of waiting. Counsel should avoid snack or nap times when calling a very young child to testify. In addition, the courtroom setting can be adjusted to make the testimony more comfortable and less threatening for the child. A child should be seated comfortably in the witness stand and should be able to see over the witness stand. A booster seat may be of some assistance with a very young child. A young child may have a limited attention span. Counsel might consider discussing the matter of recesses with the court and opposing counsel in advance of the trial.
The Ontario Evidence Act provides that during the testimony of a witness under the age of 18, a support person chosen by the witness may accompany him or her. The court may exclude the chosen support person if it finds that person is not appropriate such as the support person is also a witness or is attempting to influence the testimony. In that case the witness may choose another support person.31 As well, The Ontario Evidence Act also contains provisions pursuant to which videotape of testimony of a witness under the age of 18 may be admitted in evidence, if the court is of the opinion that this is likely to help the witness give complete and accurate testimony or that it is in the best interests of the witness. Further, testimony may be given by a witness under the age of 18 behind a screen that allows the witness not to see an adverse party or through closed circuit television.32
The examiner should open the examination in chief with simple questions designed to place the child at ease. In examination in chief, if the child is having difficulty in answering a question, in all likelihood the problem lies with the question and how it has been asked. Where a child is experiencing difficulty testifying due to fear, embarrassment, or confusion, a photograph or picture previously drawn by the child is useful in refreshing the child's memory. Demonstrative evidence is also a helpful technique to help the child to testify and to assist the jury to understand the child's testimony.
Techniques In Cross-Examining A Child Witness
In a study conducted at the London Ontario Family Court Clinic on the subject of children and cross-examination, the authors of the report concluded that children generally did not fare well under cross-examination:
|Testifying in court requires a number of skills and personal attributes including: public speaking skills (projecting one's voice to a group of adults at some distance), verbal memory, vocabulary and grammar to express oneself definitively and understanding questions; self-confidence; coping with interfering anxiety; assertiveness (saying "no" to questions or repeating answers under repeated questions); and understanding confusing questions.33|
In R. v. F.(C.),  3 S.C.R. 1183, Justice Cory speaking for the Supreme Court of Canada points out that children, subjected to skilful cross-examination, may become confused in the witness box and inconsistencies to their testimony may arise on peripheral facts, even if they are telling the truth.
The Ontario Evidence Act now provides the power to the court to prohibit personal cross-examination of a witness under the age of 18 by an adverse party if the court is of the opinion that such a cross-examination would be likely to adversely affect the ability of the witness to give evidence; or would not be in the best interests of the witness. Where personal cross-examination by the adverse party is prohibited, the cross-examination may be conducted in some other appropriate way.34
Cross-examination of a child witness is a difficult exercise in a civil proceeding, the importance of which cannot be over emphasised. The basic purposes of cross-examinations are to elicit testimony which is favourable to the cross-examiner's theory of the case and to undermine the witness's direct testimony by challenging the witness's credibility or his or her testimony. Unlike a criminal proceeding, the child witness will have already had the experience of testifying at an examination for discovery.
The dangers accompanying cross-examination raises the question of whether the need for cross examination outweighs the risk. If the child is the principle witness for the opposing side, or if the child's testimony is particularly damaging, cross-examination is usually necessary, but in some cases counsel may simply smile and advise the court that there are no questions for this witness. John E.B. Myers in "The Child Witness:
Techniques for Direct Examination, Cross-Examination and Impeachment" states:
|In deciding whether to cross-examine a child, counsel should ask several questions. Has the witness hurt my case? Is the witness important? Was the witness's testimony credible? Did the witness give less than expected on direct? Do I want to foreclose the other side's opportunity for redirect? What are my realistic expectations on cross-examination? What risks must I take? Does the jury like the child? Experience is the best guide on when to cross-examine a child, but in every case these questions should be asked.35|
Once opposing counsel decides to cross-examine the child witness at trial several techniques should be employed. The cross-examination should be brief and limited to those questions essential to the position being advanced. A lengthy cross-examination runs the risk of tiring and confusing the child and antagonising the trier of fact.36
Counsel cross-examining a child should be wary of ever casting the child as villain, coming down hard on the child or intimidating the child. Cross-examination which seeks to attack or pressure the child will likely evoke a hostile reaction. Counsel should develop a friendly, gentle, polite and sincere approach to the child witness. Counsel should maintain a calm voice and a light manner.37
The child witness should be asked at the outset to stop opposing counsel who is conducting the questioning if they are confused. Language and sentence structure that is appropriate to the child's age should be used. Counsel cross-examining should as a check, ask the child what certain words used by the child mean to that child rather then take for granted that they know what the child means.
Questioning should resemble the structure of a story. The cross-examiner should start with simple questions so that the child will feel comfortable answering. At the initial phase of the cross-examination, avoid embarrassing the child by asking questions that he or she will have difficulty with or by pointing out untruths. The cross-examiner should use concrete reference points from the child's daily life when asking concepts such as time or distance. A child who cannot recall specific dates or times may be able to respond to questions which tie chronological or temporal event to things that are important to the child. A child may not be able to identify the date of an incident but can place it as occurring before or after an important event in his or her life.38
Counsel cross-examining should observe the manner in which the child's evidence is presented and observe the facial expressions and the non-verbal behaviour of the child. The use of adult sophisticated language or the repetition of phrases or entire answers may be indicative of testimony memorized. Counsel should repeat some of the questions asked in the examination in chief to see whether the identical answer was given.
His Honour Judge I. MacDonnell pointed out at the panel discussion at the 1997 Criminal Lawyers' Association Annual Convention that a semantic argument can be won by a lawyer over a six year old, but the impact on the tier of fact will be to note the essential unfairness in the match and will allow for this in the assessment of the child's evidence and the assessment of counsel's credibility.39
Traditional methods of impeaching a witness may not work well with a child. Often the child will not understand technical terms such as "testify" which is traditionally used by counsel to impeach the witness. Counsel cross-examining should establish that the child was in a comfortable and trusting environment when he or she made a prior statement in order to bring out material inconsistencies between the child's testimony and prior statement.40 As well, counsel cross-examining should listen to answers that involve exaggeration and give the child a chance to elaborate on those aspects of the testimony so that the implausibility of the testimony is highlighted.41 In order to discredit a child witness counsel cross-examining should show that errors in the child's story exist despite proper questioning at cross-examination.
It is now increasingly more common for counsel in a personal injury action to represent a child in a civil dispute. It is also increasingly more common for defence counsel, as an opponent, to be faced with a child witness to be cross-examined at an examination for discovery and at trial.
All too often when confronted with a child witness, counsel in a personal injury action will rely upon their skills and techniques that they employ when dealing with adult witnesses. Due to the extensive empirical research in the last decade on child witnesses in sexual assault cases there is now a body of literature on the way young children testify in criminal proceedings. Unfortunately, Canadian trial advocacy literature to date has been silent on preparing, examining and cross-examining young children in civil proceedings.
Each year thousands of children in Canada are involved in accidents resulting in physical injury. Many of these children go on to be involved in a civil proceeding as a child witness. Counsel representing a child in a personal injury action must be careful to prepare and to guide the child through the examinations for discovery and the trial process. Counsel must be mindful that the child witness is a special witness and as such, counsel must employ unique skills and techniques. In the final analysis, counsel must recognize the special needs and capacities of the child witness in order to be an effective advocate for the child or an effective opponent/cross-examiner of a child witness.
[Steven Muller, B.A. (U. of Toronto), LL.B. (U.of Windsor), J.D. (U. of Detroit Mercy), who practises at Share Lawyers in Toronto, Ontario, is a trial lawyer with a specialized interest in representing plaintiffs in personal injury and disability insurance claims.]
1. "Home Alone?": A Review of Safety Issues Among Unsupervised 10-14 Year Old Children, Public Health and Epidemiology Report Ontario (PHERO) - May 29, 1998, Vol. 9 at 1.
2. A.W. Mewett, and P.J. Sankoff, Witnesses (Toronto: Carswell, 2000) makes no mention of the dynamics of a child witness in a civil proceeding. L. Stuesser, An Advocacy Primer (Toronto: Carswell, 1997) concentrates on the law and approach to child witnesses in criminal cases.
3. L. Klar, Tort Law 2nd ed., (Toronto: Carswell, 1996) at 407-408.
4. See Strachan v. McGinn,  1 WWR 412, 50 BCR 394 (SC) and E. P. Rossiter, "Children As Witnesses in Civil Proceedings" (1991) 13 Advocates' Quarterly 222 at 222.
5. D. Edgell, "Admissibility of Testimony From Children" (2000) 8 The Litigator 23 at 23; Evidence Act R.S.O. 1990, c. E. 23 (as amended by S.O. 1995, c. 6, s.6) s. 18 and 18.1.
6. Evidence Act R.S.O. 1990, c. E. 23 (as amended by S.O. 1995, c. 6, s.6) s. 18.1 (2) and (3).
7. N. Bala, "Child Witnesses In the Canadian Criminal Courts" (1999) 5 Psychology, Public Policy and Law 323 at 352. A recent publication by Nicholas Bala of Queen's University has outlined how until the 1980s, the criminal justice system in Canada regarded child witnesses as inherently unreliable and very little effort was made to accommodate them in court or receive evidence of their out of court statements. He also concludes that the Canadian legal system is displaying greater recognition of the needs and capacities of child witnesses.
8. Stuesser, supra, note 2, at 204.
9. Stuesser, supra, note 2, at 204.
10. See N. W. Perry and L. L. Teply, "Interviewing, Counselling, And In-Court Examination Of Children: Practical Approaches For Attorneys" (1985) 18 Creighton Law Review 1369 at 1386. This technique of writing out what happened is useful where the child has an injury that impairs their speech.
11. C.A. Messerly, "The Child Witness In Tort Cases: The Trials And Tribulations Of Representing Children" (1998) 24 William Mitchell Law Review 169 at 181.
12. With respect to the issue of remembering events, see S. J. Grossberg "A Stepping Stone To Truth: Hypnosis And The Preparation Of The Child Witness" (1985) 9 Journal of Juvenile Law 53 recommends that hypnosis be considered one method to enable a lawyer who must work with the child witness to ascertain otherwise unknowable facts. While Grossberg was speaking in the context of a criminal proceeding, the use of this method in a personal injury action and its admissibility at trial is uncharted territory.
13. J. Schuman and N. Bala and K. Lee, "Developmentally Appropriate Questions For Child Witnesses" (1999) 25 Queen's Law Journal 251 at 288.
14. Stuesser, supra, note 2, at 204.
15. N.E. Walker and M. Nguyen, "Interviewing The Child Witness: The Do's And The Don't's, The How's And The Why's", (1996) 29 Creighton Law Review 1587 at1599-1600 and see Bala, supra, note 7 at 353.
16. One study by Professor Ed Renner published in the Canadian Journal of Community Mental Health reports that most judges don't understand how children's minds develop. They allow defence lawyers to shake the credibility of child witnesses by asking them questions that no child their age is able to answer. See M. Bourrie "Courts victimize child witnesses, Carleton study says" 10 Law Times 7 at 5.
17. See Schuman, supra, note 13 at 258-259 and see M. Mian, K. Haka-Ikse, M. Lefkowitz and C. McGoey, "The Child as Witness" 4 C.R. (4th ) 359 the authors outline the general developmental milestones for child with respect to cognitive development ie. language, reasoning, personal social as well as the developmental milestones for children with respect to their memory. The authors also provide a useful appendix for skills an average child acquires at specific ages.
18. Messerly, supra, note 11 at 182-183.
19. C. Peterson, "The Preschool Child Witness: Errors in Accounts of Traumatic Injury" 28 Canadian Journal of Behavioural Science 36 at 40-41.
20. B. Finlay and T.A. Cromwell, Witness Preparation Manual, 2nd (Aurora: Canada Law Books Inc.) at 95. As discussed the use of demonstrative evidence such as pictures and visual aids are of significant use in aiding a child in testifying.
21. Walker, supra, note 15, at1588-1589.
22. K. Dahmen-Zimmer and S. Loohs, "Is There Truth in the Eye of the Beholder? Causal Illusions in Children and Adults" in G. Davies, S. Lloyd-Bostock, M. McMurran and C. Wilson eds., Psychology, Law, and Criminal Justice (New York: Walter de Gruyter, 1996) 81 at 87.
23. R. Bull, "Good Practice for Video Recorded Interviews with Child Witnesses for Use in Criminal Proceedings" in G. Davies, S. Lloyd-Bostock, M. McMurran and C. Wilson eds., Psychology, Law, and Criminal Justice (New York: Walter de Gruyter, 1996) 100 at 102-103.
24. Schuman, supra, note 13.
25. Finlay, supra, note 20 at 94.
26. M. Bruck and S.J. Ceci, "Amicus Brief For The Case Of State Of New Jersey v. Michaels Presented By Committee Of Concerned Social Scientists", (1995) 1 Psychology, Public Policy and Law 272 at 285.
27. Bull, supra, note 23 at 110.
28. Bruck, supra, note 26 at 279.
29. M. Maur Raycroft, "Children In And Out Of The Courtroom" in Contemporary Issues In Family Law (1993) 2nd Annual Institute Of Family Law at 253.
30. Walker, supra, note 15 at1590.
31. Evidence Act R.S.O. 1990, c. E. 23 (as amended by S.O. 1995, c. 6, s.6) s. 18.5.
32. Evidence Act R.S.O. 1990, c. E. 23 (as amended by S.O. 1995, c. 6, s.6) s. 18.3 and 18.4.
33. M. Maur Raycroft, supra, note 29 at 257.
34. Evidence Act R.S.O. 1990, c. E. 23 (as amended by S.O. 1995, c. 6, s.6) s. 18.6.
35. J. Myers, "The Child Witness: Techniques for Direct Examination, Cross-Examination and Impeachment" (1987) 18 Pacific Law Journal 801.
36. M. Fuerst, "Cross-Examination Of The Child Witness" The Art of Cross-Examination, The Law Society Of Upper Canada at 5-3.
37. S. Skurka, "Cross-Examination Of The Child Witness" The Art of Cross-Examination, The Law Society Of Upper Canada at 4-1.
38. Fuerst, supra, note 36 at 5-2.
39. J. Leiper, "Are We Having Fun Yet? Cross-Examination Of The Fearful Witness" The Art of Cross-Examination, The Law Society Of Upper Canada at 2-1.
40. Skurka, supra, note 37 at 4-3.
41. Fuerst, supra, note 36 at 5-3.