Book Review: Wilson on Children and the Courtroom

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Wilson on Children and the Courtroom. By John P. Schuman, Farrah Hudani & Jeffery Wilson. Toronto: LexisNexis Canada, 2020. xxiii, 164 p. Includes table of contents, table of cases, and index. ISBN 9780433509905 (softcover) $140.00.

Reviewed by Lori O’Connor
Public Prosecutions
Melfort, SK
In CLLR 47:2

Wilson on Children and the Courtroom is an easy-to-read, accessible text that addresses the ways a child may be part of court proceedings in Canada, with a specific focus on children’s participation in family and criminal law proceedings.

This book is an abridged version of the loose-leaf text Wilson on Children and the Law by Farrah Hudani and Jeffrey Wilson (Toronto: LexisNexis Canada, 1994). The chapters in this book correspond to the chapters in the loose-leaf text, with Chapter 6, “‘Hearing’ the Child Through a Legal Representative,” included in this publication.

The book begins by outlining the ways in which a child may be a participant in court proceedings. The book notes that children are the subject of custody disputes in family law or child protection proceedings and are frequently victims of sexual or other types of abuse. It goes on to discuss how children obtain party status to proceedings.

The next chapter provides a nuanced analysis of how the court may hear from children in family law proceedings. Children may be heard as parties to the proceedings, in judicial interviews, or through specialized reports. This chapter traces the legislative and procedural history of children’s participation in family proceedings and compares decisions from across Canada. Of particular interest is a table that outlines cases wherein the child’s views and wishes were respected by the judge (p. 33–50). The table includes the jurisdiction, case name, child’s age, whether the child had counsel, whether there was a professional assessment or report canvassing the child’s wishes, whether the child was interviewed by the judge, how their evidence was provided, if the court had concerns about the admissibility or reliability of their evidence, findings of whether the child’s wishes had been influenced, and other factors considered by the court.

The chapter on hearing from children as witnesses is very helpful in placing the current state of Canadian law in its historical context, from children being unable to give evidence because they were considered unable to understand the oath sworn by witnesses, to the current state where even very young children can testify if the court is satisfied that they are able to communicate the evidence and promise to tell the truth. It also addresses how children’s statements to other people may be admitted as hearsay if the statements are both necessary and reliable. This chapter discusses how children’s evidence is handled in both civil and criminal matters and includes a helpful guide to questioning children in court.

The authors refer to the testimonial aids set out in the Criminal Code that are designed to make a child’s participation in the criminal process easier. For instance, section 715.1 permits the court to admit a child’s video-recorded statement as part of their evidence if the child adopts the statement in court. Additionally, sections 486.1 to 486.2 include hearing testimony from behind a screen or outside the courtroom via closed-circuit video and testifying with the assistance of a support person. Although the child is still required to testify, the goal of the aforementioned sections is to ensure that the court obtains a full and candid account from the child. The authors note that similar sections have been included in provincial evidence acts to ensure that children are able to participate in proceedings to the best of their abilities. With respect to currency, this chapter would have benefitted from additional updates. Most of the citations pre-date the amendments to the Criminal Code that change the testimonial aids from orders that “may” be made by the court to orders that “shall” be made by the court on application by the prosecutor, subject to certain conditions.

Briefly, the book discusses a child’s right to privacy in court proceedings, specifically with respect to child protection; custody, access, or paternity hearings; and proceedings under the Youth Criminal Justice Act. The Criminal Code permits the exclusion of the public in certain circumstances and publication bans on the names of victims under 18 years of age.

The book closes with two short chapters that touch on other ways that children may be involved in court proceedings. These include how a child can be “heard” in court through counsel and how this has been handled across the country. Particular attention is drawn to where the law is inconsistent and how contempt of court charges can impact children in both criminal and civil proceedings.

The book’s footnotes include full citations to cases, which make references easy to read and follow. However, as noted above, some of the citations are dated. Moreover, this text would have benefited from more “best practices” tips for working with children, whether as witnesses or as parties in criminal or civil proceedings.

Overall, Wilson on Children and the Courtroom is a handy resource for lawyers who practice criminal or family law, represent young offenders in the criminal justice system, or represent children in other proceedings. I recommended this book for courthouse and law society libraries.