From Judge Wayne Gorman, “In R. v. Hernandez-Lopez, 2019 BCCA 12, January 14, 2020, the accused, who was employed at a daycare, was charged with the offence of sexual-touching, in relation to AD, a four-year-old child. At the trial, the only evidence dealing with the touching came from AD.  The accused did not testify. Neither the Crown nor the defence presented expert evidence on the assessment of child evidence, nor was any academic literature on that issue referred to by counsel.

In convicting the accused, the judge referred to a law review article (Bala, Judicial Assessment of the Credibility of Child Witnesses (2005) 42 Alta. L. Rev. 995-1017) that made observations with respect to the evidence of children. The accused appealed from conviction. He argued that the article constituted “extraneous expert opinions” that “were not properly admitted or tested at trial”.

The appeal was dismissed.

The British Columbia Court of Appeal noted that “the judge in this case was dealing with a subject very much within his own purview: the assessment of the credibility and reliability of a witness”.  The Court of Appeal held that though it was not suggesting “that a judge is entitled, when assessing the veracity of a witness’s testimony, to rely on expert evidence that is not properly before the court. Not every reference to a publication, however, amounts to reliance on outside expertise. Sometimes, a judge may refer to a publication because it provides a concise and easily understood discussion of a concept, or because it provides an accessible illustration of the judge’s thinking” (at paragraphs 11 and 12).

The Court of Appeal concluded that the trial judge did not commit “any error in his use of the Bala article” (at paragraphs 21 to 25):

I do not read the judge’s reasons as suggesting that he relied on the Bala article as an instruction manual for assessing the evidence of children. Rather, he used the three quoted paragraphs of the article as a convenient summary outlining generally-understood and common features of the evidence of children. The concepts that the judge relied on did not lie outside of the general knowledge that judges are required to apply in assessing the evidence of witnesses.

In short, the judge reached his conclusions as to how he should assess the child’s evidence based on his own experience and knowledge, as well as on his reading of case authorities. His citation of the Bala article simply collected a number of observations in a clear and concise summary, and showed that the observations are generally known and accepted.

The use of published academic literature to show that certain concepts are generally accepted is not uncommon. The Supreme Court of Canada often refers to social science literature for that purpose (see, for example, R. v. Oickle, 2000 SCC 38 at paras. 34–36). A judge must exercise caution in making such use of articles, however, to ensure that trial fairness is not compromised.

Given the very general nature of the observations in the part of the article cited by the trial judge, and the notoriety of the information conveyed, I can see no possibility that trial fairness was compromised. It is safe to conclude that the judge’s reference to the Bala article was only for the purpose of providing a convenient summary of generally-known concepts that he was bringing to bear on the case.

In the result, I am not persuaded that the judge made any error in his use of the Bala article.”