R v Khan
| R v Khan | |
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| Hearing: November 3, 1989 Judgment: September 13, 1990 |
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| Full case name | Abdullah Khan v Her Majesty The Queen |
| Citations | [1990] 2 S.C.R. 531 |
| Court Membership | |
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Chief Justice: Brian Dickson Puisne Justices: Antonio Lamer, Bertha Wilson, Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin |
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| Reasons given | |
| Unanimous reasons by | McLachlin J. |
R v Khan [1990] 2 S.C.R. 531 is a landmark Supreme Court of Canada decision that began a series of major changes to the hearsay rule and the rules regarding the use of children as witnesses in court. In this case, and subsequently in R v Smith (1992), R v B (KG) (1993), R v U (FJ) (1995), R v Starr (2000), and finally, R v Khelawon (2006), the Court developed the “principled approach” to hearsay, where hearsay statements can be admitted if they are sufficiently reliable and necessary.
In March 1985, Mrs. O and her three and half year-old daughter T went to Dr. Khan for an examination. Khan first examined the daughter in front of her mother, then, while O was changing into hospital gowns in the other room, Khan was alone in his office with T for five to seven minutes. Roughly fifteen minutes after leaving Khan’s office the child described to her mother how Khan had sexually assaulted her. A wet spot was found on the sleeve of T's jogging suit, which was later examined by a forensic biologist who determined that the fluid constituted a mixture of semen and saliva. Khan was charged with the assault.
At trial, the judge held that the child was not competent to give unsworn testimony and that he would not admit the statements made by the child to her mother about the assault as it was hearsay and could not fall into the “spontaneous declaration” exception as it was not contemporaneous. On the basis of this finding, Khan was acquitted.
On appeal, the Court of Appeal found that the trial judge had been too strict in the consideration of both testimony and the hearsay. The acquittal was overturned and a new trial ordered.
The issues before the Court were:
McLachlin, writing for a unanimous Court, held that the child was competent to testify and the statements should be admitted.
On the first issue, McLachlin noted that the trial judge improperly applied section 16 of the Canada Evidence Act that gave the conditions under which a child can testify. The judge was wrong in finding that since the child did not understand what it meant to tell a lie in court that she could not give testimony. For a child to testify under section 16, the judge must only determine if the witness has sufficient intelligence and an understanding of the duty to tell the truth. Here, the judge found that both criteria were satisfied but inevitably placed too much emphasis on the child’s age. McLachlin noted, as an issue of policy, leniency must be given to child testimony otherwise offences against children could never be prosecuted.
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