R. v. Marquard (D.) (1993), 159 N.R. 81 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Debra Marquard (appellant) v. Her Majesty The Queen (respondent)
(22940)
Indexed As: R. v. Marquard (D.)
Supreme Court of Canada
Lamer, C.J.C., La Forest, L’Heureux-
Dubé, Sopinka, Gonthier, Cory, McLachlin,
Iacobucci and Major, JJ.
October 21, 1993.
Summary:
A 3.5 year old child suffered facial burns, claiming at trial that her grandmother did it. Following a trial before judge and jury, the grandmother was convicted of aggravated assault and sentenced to five years’ imprisonment. The grandmother appealed both conviction and sentence.
The Ontario Court of Appeal, in a judgment reported 14 W.C.B.(2d) 49, dismissed the conviction appeal, but reduced the sentence to imprisonment for two years less a day plus three years’ probation. The grandmother appealed.
The Supreme Court of Canada, L’Heureux-Dubé, J., dissenting, allowed the appeal, set aside the conviction and ordered a new trial.
Criminal Law – Topic 4377
Procedure – Jury charge – Directions re credibility of witnesses – [See
Evidence – Topic 7157
].
Criminal Law – Topic 5461
Evidence – Witnesses – Evidence of children – Section 16(1)(b) of the Canada Evidence Act required an inquiry into whether a child witness was able to “communicate the evidence” – The Supreme Court of Canada stated that testimonial competence of a child testifying under s. 16 was not presumed – Testimonial competence required that the child possess the capacity to observe, recollect and communicate – The phrase “communicate the evidence” was not limited to the child’s ability to understand the question and give an answer – The court stated that the trial judge did not err in interpreting s. 16(1)(b) in this manner or in receiving the child’s evidence – See paragraphs 7 to 17.
Criminal Law – Topic 5466
Evidence – Witnesses – Evidence of children – Warning to jury of danger of reliance on – The accused was convicted of the aggravated assault of a 3.5 year old child – The child claimed facial burns were caused when the accused “put me on the stove” – The accused claimed the trial judge failed to warn the jury respecting frailties in the child’s evidence – The Supreme Court of Canada stated that the evidence of the child required a warning to the jury as to the risks of accepting it – The trial judge adequately warned of the risks, pointing out the problems with the child’s evidence – See paragraphs 18 to 29.
Evidence – Topic 1026
Relevant facts – Relevance and materiality – Admissibility – Prejudicial evidence – [See
Evidence – Topic 7052
].
Evidence – Topic 7001
Opinion evidence – Expert evidence – Qualifications – Two medical doctors were qualified as experts, but not with respect to burns – A child suffered facial burns – The experts testified that the burns were “contact” burns, not “lighter” burns as proposed by the accused – The experts had expertise in burns – The problem was that they were qualified more narrowly than their expertise – The Supreme Court of Canada stated that the trial judge did not err in admitting the evidence – The court stated that “in the absence of objection, a technical failure to qualify a witness who clearly has expertise in the area will not mean that the witness’ evidence should be struck” – See paragraphs 30 to 39.
Evidence – Topic 7014
Opinion evidence – Expert evidence – Textbooks and treatises – The Supreme Court of Canada stated that “the proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if she knows the work. If the answer is ‘no’, or if the witness denies the work’s authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is ‘yes’, and the witness acknowledges the work’s authority, then the witness has confirmed it by the witness’ own testimony. Parts of it may be read to the witness, and to the extent they are confirmed, they become evidence in the case.” – The court stated that “expert evidence, introduced in the guise of cross-examination of [another expert] without any proof that it constituted reputable authority, was inadmissible.” – See paragraphs 56 to 58.
Evidence – Topic 7052
Opinion evidence – Expert evidence – Child abuse – An expert witness testified that a child treated for burns acted maturely in dealing with the injury, suggesting she was a victim of long-term abuse – Prior abuse was not an issue at trial – The relevance of prior abuse was of little probative value, but the evidence was potentially very prejudicial to the accused – The Supreme Court of Canada stated that the evidence should not have been admitted – Further, the trial judge’s direction to the jury may have misled the jury “into believing that this evidence of little or no probative weight was a definitive expert opinion that the child was indeed abused and that her passivity was a key and highly probative factor supporting that conclusion” – The court stated that this error, combined with other errors, justified a new trial – See paragraphs 40 to 46.
Evidence – Topic 7157
Opinion evidence – Prohibited opinions – Re credibility of witnesses – A young child claimed the accused burned her – The accused claimed the child played with a lighter – A child behaviour expert testified that although the child initially said she was burned by a lighter, it was common for abused children to lie in such cases – The Supreme Court of Canada stated that credibility was for the jury to determine, not an expert witness – The court stated that “there is a growing consensus that while expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact” – The expert went too far, where she clearly indicated she believed the child was truthful at trial – The trial judge failed to instruct the jury that credibility was their decision and the expert evidence was inadmissible – See paragraphs 47 to 54.
Words and Phrases
Communicate the evidence
– The Supreme Court of Canada discussed the meaning of the phrase “communicate the evidence”, as found in s. 16(1)(b) of the Canada Evidence Act, R.S.C. 1985, c. C-5 – See paragraphs 7 to 17.
Cases Noticed:
R. v. Bannerman (1966), 48 C.R. 110 (Man. C.A.), affd. [1966] S.C.R. v, refd to. [para. 16].
R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; [1983] 1 W.W.R. 193; 27 C.R.(3d) 304; 136 D.L.R.(3d) 89; 67 C.C.C.(3d) 1, refd to. [para. 19].
R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134, refd to. [para. 20].
R. v. V.K. (1991), 4 C.R.(4th) 338 (Ont. C.A.), refd to. [para. 21].
R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263, refd to. [para. 35].
R. v. Millar (1989), 33 O.A.C. 165; 49 C.C.C.(3d) 193 (C.A.), refd to. [para. 38].
R. v. G.B. et al. (No. 1) (1988), 65 Sask.R. 134 (C.A.), affd. [1990] 2 S.C.R. 3; 111 N.R. 1; 86 Sask.R. 81, refd to. [para. 49].
R. v. Anderson (1914), 22 C.C.C. 455 (Alta. S.C.), refd to. [para. 56].
Holland v. Prince Edward Island School Board Regional Administrative Unit No. 4 (1986), 59 Nfld. & P.E.I.R. 6; 178 A.P.R. 6 (P.E.I.S.C.), refd to. [para. 56].
Cansulex Ltd. v. Reed Stenhouse Ltd. (1986), 60 B.C.L.R. 189 (S.C.), refd to. [para. 56].
R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 59].
R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 71].
R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321, refd to. [para. 71].
R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200; 77 C.R.(3d) 347, refd to. [para. 72].
R. v. Khan (1988), 27 O.A.C. 142; 42 C.C.C.(3d) 197 (C.A.), refd to. [para. 80].
R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329; [1990] 4 W.W.R. 1, refd to. [para. 93].
R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; [1983] 1 W.W.R. 251; 39 B.C.L.R. 201; 138 D.L.R.(3d) 202; 68 C.C.C.(3d) 394; 29 C.R.(3d) 193, refd to. [para. 93].
R. v. Taylor (1986), 18 O.A.C. 219 (C.A.), refd to. [para. 97].
R. v. F.E.J. (1990), 36 O.A.C. 348; 74 C.R.(3d) 269 (C.A.), refd to. [para. 97].
R. v. Belliveau (1986), 30 C.C.C.(3d) 193 (B.C.C.A.), refd to. [para. 97].
Statutes Noticed:
Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 16 [para. 77]; sect. 16(1)(b) [para. 8].
Criminal Code, R.S.C. 1970, c. C-34, sect. 245.2(1) [para. 2].
Criminal Code, R.S.C. 1985, c. C-46, sect. 268(1) [para. 2].
Evidence Act, R.S.C. 1970, c. E-10, sect. 16 [para. 78].
Authors and Works Noticed:
Bala, Nicholas, Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System, in Discrimination in the Law and the Administration of Justice (Tarnopolsky, Whitman and Ouellette, eds.), p. 232 [para. 73].
Canada, Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children (1984), vol. 1, pp. 373, 374 [para. 74].
Deslisle, R.J., D.(L.E.): Obscuring Similar Fact Evidence (1989), 71 C.R.(3d) 22, generally [para. 73].
Goldman, Calvin S., The Use of Learned Treatises in Canadian and United States Litigation (1974), 24 U.T.L.J. 423, generally [para. 115].
McCormick on Evidence (4th Ed. 1992), vol. 1, pp. 242 to 248 [para. 12]; 351 [para. 115].
Mewett, Alan W., Editorial: Credibility and Consistency (1991), 33 Crim. L.Q. 385, p. 386 [paras. 51, 100].
Robb, James C., and Lynda J. Kordyban, The Child Witness: Reconciling the Irreconcilable (1989), 27 Alta. Law Rev. 327, p. 238 [para. 73].
Sopinka, J., S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (1992), pp. 536, 537 [paras. 35, 93]; 562 [para. 114].
Spencer, J.R., and R. Flin, The Evidence of Children (1990), p. 306 [para. 75].
Wigmore on Evidence (Chadbourn Rev. 1976), vol. 6, paras. 1690 to 1692 [para. 115].
Wigmore on Evidence (Chadbourn Rev. 1979), vol. 2, pp. 636 to 638 [para. 12].
Counsel:
Marlys Edwardh and Shaun Nakatsuru, for the appellant;
Catherine A. Cooper and Susan Chapman, for the respondent.
Solicitors of Record:
Nakatsuru and Doucette, Toronto, Ontario, for the appellant;
Ministry of the Attorney General, Toronto, Ontario, for the respondent.
This appeal was heard on April 29, 1993, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.
On October 21, 1993, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:
McLachlin, J. (Lamer, C.J.C., Sopinka, Cory, Iacobucci and Major, JJ., concurring) – see paragraphs 1 to 61;
Gonthier, J. (La Forest, J., concurring) – see paragraph 62;
L’Heureux-Dubé, J., dissenting – see paragraphs 63 to 120.
