How is the Credibility of a Child Witness Assessed?

Written on behalf of Barrison Law
child closing eyes

Credibility is a term used to evaluate the trustworthiness of a witness and is a crucial concept in criminal law. A judge’s assessment of credibility requires an assessment of the witness’s honesty and reliability or accuracy of their evidence. In some cases, the credibility of the witnesses is crucial to the trial’s outcome.

Because children often experience the world differently from adults, the courts have developed a different approach to determining the credibility of child witnesses. Notably, the courts have developed a distinction between the situation that applies to a witness that is a child and a witness that is an adult but that is testifying in relation to events that occurred when they were a child. 

This blog post reviews the law in this area, along with a recent decision of the Court of Appeal for Ontario in which an accused, convicted of sexual interference against a complainant who was a child at the time, argued that the trial judge took the wrong approach to assess the now adult complainant’s credibility.


The testimony of young children is not subject to the same standard as adults

Many years ago, the evidence of children was deemed to be unreliable by the law and subject to a requirement that it had to be corroborated. This has now been removed, and the evidence of children is no longer automatically deemed less reliable than that of adults.

However, children may not always recollect details that are considered important to adults, such as the time and place where something occurred. With this in mind, courts may consider that a child’s inability to recall certain details, such as peripheral matters, does not significantly impact on their credibility.

However, this leniency only goes so far. As the Supreme Court said in the case of R. v W. (R.):

“[This approach does] not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. 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.”


Evidence regarding events from childhood should be considered in the context of the witness’ age at the time of the event

The approach taken to the evidence of a child witness extends to the testimony of an adult witness about events that occurred when they were a child. If a witness would not have noticed something as a child, their inability to recall it years later when giving evidence as an adult may not significantly impact their credibility. In other words, the presence of inconsistencies is considered in the context of the witness’s age at the time of the events, rather than the time of trial.


However, credibility is assessed according to criteria that apply to adult witnesses

It is important to note that even when an adult is testifying about events that occurred when they were a child, the court must assess their credibility according to the criteria that apply to them as an adult witness.

This may sound like a very fine distinction, but as demonstrated in the case considered below, it is an important point that can impact on the outcome of the case.


Accused was convicted of sexual interference against a child complainant

In R. v D.D., the accused was convicted of sexual interference against the complainant when she was a child between the ages of 5 and 11 years old. The complainant testified at trial at age 18.

The accused also testified at trial, denying the allegations. He said he was never alone with the complainant, a claim which was supported by the complainant’s mother, who was in an intimate relationship with the accused at the time of the alleged events. The trial judge found the complainant’s evidence compelling because the events occurred during childhood.

The trial judge accepted the complainant’s evidence. In doing so, the judge accepted things as facts because a child would not have invented such details. For example:

  • The complainant said the accused told her to undress slowly. The judge found this compelling because it was not a “fantasy in a child’s world” but a child “relating a memory of a strange thing of an adult doing”; and
  • The complainant testified she was blindfolded and sat on a toilet. The judge thought this was “so far removed from the natural events of a child.”

The accused appealed, arguing that the judge did not assess the complainant’s credibility correctly.


Court of Appeal decided that trial judge erroneously assessed complainant’s credibility as if she were a child

The Court of Appeal agreed with the accused and allowed the appeal, setting aside the conviction. While the Court said that the trial judge could have found that the details are the kinds of things a child would remember:

“But what a trial judge cannot do is infer that such details, being provided by an adult witness, must be true because a child would not have the intelligence or experience to concoct those details.”

The Court explained that the reasoning used by the trial judge was not permissible because the events in the past were not being described by a child who may have had difficulty conjuring up the scenarios – the evidence was being given by an adult witness. Assessing the credibility of an adult as if she were a child was an error.


Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Experienced Defence Against Sexual Offences

The criminal defence lawyers at Barrison Law understand the serious nature of sexual offences, including those involving children. We provide robust defence to protect our clients’ rights and reputations.

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