Canadian Legislation on the Admissibility of Child Testimony: Truth, Lies, and Promises

Canadian Legislation on the Admissibility of Child Testimony: Truth, Lies, and Promises

Prior to 2006, children could testify after promising to tell the truth as long as they could answer questions that demonstrated that they understood the meaning of truth and lies and the importance of telling the truth.^{1 2} Research challenged this practice by demonstrating that the ability to explain the difference between truths and lies and to discuss the moral implications of lying were not strongly related to truth telling. ^{3 4 5 6}

It is true that very young children often lack the language ability to explain abstract concepts such as the difference between a truth and a lie. Being unable to verbally express one’s understanding, however, should not be confused with lacking understanding. For example, children can show love before verbally describing the concept of love. Similarly, research shows that children as young as two can accept true statements, reject false ones, and tell the truth.⁷ Therefore, requiring young children to explain the difference between truths and lies for their testimony to be admissible in court arguably puts them at an unfair disadvantage and, consequently, the administration of justice into disrepute.

It is also true that children – like adults – can lie. In fact, as children age, their increased social understanding results in an increased understanding of when and how to use deception. ^{8 9 10} For example, they learn to lie to avoid punishment, to protect others, or for secondary gains. Fortunately, asking children to promise to tell the truth has been effective at increasing truth-telling. Research has shown that children and adolescents are more honest about transgressions and problematic behaviours and tell fewer lies after a promise to tell the truth. ^{3 4 5 6 11}

As a result of these two lines of evidence, changes were made to the Canada Evidence Act¹² in 2006 through Bill C-2¹³; Canada Evidence Act, s. 16.1). Following the changes, if children under 14 years of age, including children with complex needs (such as learning disabilities, autism, ADHD, etc.), can understand and answer questions, they are presumed to have the capacity to testify and are not required to take an oath. This ability can be challenged, but the assessment of whether a child under 14 can understand and respond to questions must be conducted by asking questions about concrete concepts and may not involve questions about abstract concepts that children knowingly struggle with (such as the concepts of truth, love, time, etc.). The child must also agree to promise to tell the truth. However, they are not to be questioned as to their understanding of the nature of the promise to tell the truth. In sum, the truth/lie discussion cannot be used in court to challenge the admissibility of a child witness’ testimony, but the promise to tell the truth is nonetheless required.

Similar changes were made to the Canada Evidence Act¹² with regards to persons with complex needs (Section 16). When the mental capacity of a person 14 years of age or older with complex needs is questioned, the courts shall, before allowing the person to provide their evidence, conduct an inquiry to determine: (a) if the person understand the nature of an oath or a solemn affirmation; and (b) whether the person is able to communicate the evidence. If they cannot understand the nature of an oath or a solemn affirmation but can communicate the evidence (e.g., understand and answer questions), they can nonetheless testify on promising to tell the truth. Like children, they shall not be questioned as to their understanding of the nature of the promise to tell the truth.

Consistent with the Canada Evidence Act and current research literature, the StepWise 360^TM Approach trains interviewers not to test children, adolescents, or individuals with complex needs on the difference between truth and lies. Rather, we recommend that interviewers (a) conduct the Practice Step to – among other things – demonstrate that the child being interviewed can understand and respond to questions and (b) ask children, adolescents, and individuals with complex needs to promise to tell the truth. This should occur after some rapport building and prior to discussing their substantive report to increase truth telling.

The reason we only recommend inserting the promise to tell the truth instruction, rather than making this mandatory, is because the Canada Evidence Act pertains to in-court testimony (not specifically to how forensic interviews should be conducted). Therefore, evidence should not be rejected solely because an interviewer fails to receive a promise in a forensic interview.¹⁴ However, this practice helps protect children and adolescents by promoting fuller, more truthful disclosures while preserving the integrity of the forensic interview evidence.

References

1. Bala, N., Lee, K., Lindsay, & Talwar, V. (2010). The competency of children to testify: Psychological research informing Canadian law reform. The International Journal of Children’s Rights, 18(1), 53–77. https://doi.org/10.1163/157181809X458544 ↩︎
2. Government of Canada, Department of Justice (2022, December 28). Testimonial support provisions for Children and vulnerable adults (Bill C-2): Case law review and perceptions of the judiciary. https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/rr10_vic3/p2.html ↩︎
3. Evans, A. D., & Lee, K. (2010). Promising to tell the truth makes 8- to 16-year-olds more honest. Behavioral Sciences & the Law, 28(6), 801–811. https://doi.org/10.1002/bsl.960 ↩︎
4. Lyon, T. D., Malloy, L. C., Quas, J. A., & Talwar, V. A. (2008). Coaching, truth induction, and young maltreated children’s false allegations and false denials. Child Development, 79(4), 914–929. https://doi.org/10.1111/j.1467-8624.2008.01167.x ↩︎
5. Talwar, V., Lee, K., Bala, N., & Lindsay, R. C. L. (2002). Children’s conceptual knowledge of lying and its relation to their actual behaviors: Implications for court competence examinations. Law and Human Behavior, 26(4), 395–415. https://doi.org/10.1023/A:101637910495 ↩︎
6. Talwar, V., Lee, K., Bala, N., & Lindsay, R. C. L. (2004). Children’s lie-telling to conceal a parent’s transgression: Legal implications. Law and Human Behavior, 28(4), 411–435. https://doi.org/10.1023/B:LAHU.0000039333.51399.f6 ↩︎
7. Lyon, T. D., Quas, J. A., & Carrick, N. (2013). Right and Righteous: Children’s Incipient Understanding and Evaluation of True and False Statements. Journal of Cognition and Development, 14(3), 437–454. https://doi.org/10.1080/15248372.2012.673187 ↩︎
8. Decrop, R., & Docherty, M. (2024). Chronicle of deceit: Navigating the developmental cognitive landscape from childhood fabrications to prolific adulthood artistry. Developmental Review, 74, 101165. https://doi.org/10.1016/j.dr.2024.101165 ↩︎
9. Talwar, V., Lee, K., Fujita, K., & Itakura, S. (2008). Little Liars: Origins of Verbal Deception in Children. In Origins of the Social Mind (pp. 157–178). Springer Japan. https://doi.org/10.1007/978-4-431-75179-3_8 ↩︎
10. Wellman, H. M., Cross, D., & Watson, J. (2001). Meta-analysis of theory-of-mind development: The truth about false belief. Child Development, 72(3), 655–684. https://doi.org/10.1111/1467-8624.00304 ↩︎
11. McWilliams, K., Stolzenberg, S. N., Williams, S., & Lyon, T. (2021). Increasing maltreated and nonmaltreated children’s recall disclosures of a minor transgression: The effects of back-channel utterances, a promise to tell the truth, and a post-recall putative confession. Child Abuse & Neglect, 116(Pt 1), 104073–104073. https://doi.org/10.1016/j.chiabu.2019.104073 ↩︎
12. Government of Canada. (R.S.C., 1985, c. C-5). Canada Evidence Act. https://laws-lois.justice.gc.ca/eng/acts/c-5/
13. Parliament of Canada. (2006). Bill C-2: An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability (Federal Accountability Act), 1st Session, 39th Parliament, 2006. https://www.parl.ca/DocumentViewer/en/39-1/bill/C-2/royal-assent
14. R v. F.(J.), [2006] A.J. No. 972 (Prov. Ct.) as cited in Government of Canada, 2022↩︎