1. Types of Evidence – Viva Voce Our system is heavily reliant on oral testimony which is the norm. Practice point, always try to find a witness who can speak directly to your facts-in-issue.

2. General: Sopinka 13.1 Subject to certain common law and statutory exceptions: Subject to certain common law and statutory exceptions: Every person is competent to give evidence in any civil or criminal case Every person is competent to give evidence in any civil or criminal case Further, any competent witness is compellable through process of court (ie. subpoena or equivalent) Further, any competent witness is compellable through process of court (ie. subpoena or equivalent) Subject to evidentiary privileges, any competent and compellable witness must answer any questions put to them and provide real evidence (assuming relevant and otherwise admissible) Subject to evidentiary privileges, any competent and compellable witness must answer any questions put to them and provide real evidence (assuming relevant and otherwise admissible)

3. Exceptions as to General Rule as to Competency By reason of certain disqualifying rules, even persons with relevant and direct knowledge may be precluded from testifying. By reason of certain disqualifying rules, even persons with relevant and direct knowledge may be precluded from testifying. Two types of incompetency: Two types of incompetency: Status incompetency – who you are (ie. married spouse in criminal matters). Status incompetency – who you are (ie. married spouse in criminal matters). Mental Incompetency (ie. lack of sufficient maturity in thought, language) Mental Incompetency (ie. lack of sufficient maturity in thought, language)

4. At common law, only witnesses under oath may testify. At common law, only witnesses under oath may testify. Persons over 14 are presumed to understand the nature of an oath. Persons over 14 are presumed to understand the nature of an oath. The modern view of accepting the obligation of an oath is construed to mean that the witness understands the moral obligation to tell the truth – a.k.a. the “superadded” responsibility to tell the truth in court. The modern view of accepting the obligation of an oath is construed to mean that the witness understands the moral obligation to tell the truth – a.k.a. the “superadded” responsibility to tell the truth in court.

5. Affirmation is available to those who do not want to swear an oath: e.g. s. 14 C.E.A. Affirmation is available to those who do not want to swear an oath: e.g. s. 14 C.E.A. There is no difference in law between evidence sworn on an oath, and that affirmed – both are sworn evidence with the consequent effects upon proof of perjury. There is no difference in law between evidence sworn on an oath, and that affirmed – both are sworn evidence with the consequent effects upon proof of perjury. Note: every tribunal will swear your witnesses on an oath unless you ask for affirmation. Note: every tribunal will swear your witnesses on an oath unless you ask for affirmation.

6. Where Testimonial Capacity is in Question – s. 16 Relevant question under CEA: what is the age of your witness? Relevant question under CEA: what is the age of your witness? If 14 plus – s. 16; if less than 14, s. 16.1 If 14 plus – s. 16; if less than 14, s. 16.1

7. 14 plus – s. 16 CEA Testimonial capacity (ability to take an oath) presumed. Testimonial capacity (ability to take an oath) presumed. If challenged, the trier of law SHALL conduct a voir dire to determine: If challenged, the trier of law SHALL conduct a voir dire to determine: (a) understanding of the nature of an oath; (b) ability to communicate the evidence.

8. 14 plus If you can do both, you will swear an oath or affirmation. If you can do both, you will swear an oath or affirmation.

9. 14 plus What does understanding an oath mean? That there is a general moral obligation to tell the truth in general social conduct, and a higher obligation to tell the truth in court. The witness can understand it as the threat of divine retribution, or the practical effects of lying in a court of law.

10. R. v. Fletcher 13.30 … the important consideration …. When a judge has to decide whether a [witness] should properly be sworn, is whether the [witness] has a sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct.

11. 14 plus What does “ability to communicate the evidence” mean? A threefold test, the ability to: (a) Perceive; (b) Recollect; (c) And communicate the recollection.

12. 14 plus The voir dire is held in front of the trier of fact. The voir dire is held in front of the trier of fact. Questioning is usually by the Court, but the Court may direct the proponent counsel to conduct same. Questioning is usually by the Court, but the Court may direct the proponent counsel to conduct same. Questioning is directed at the witnesses capacity to observe, recollect and communicate at the time of testimony, as opposed to the time of observations relevant to the case at bar. CAPACITY IS DETERMINED AT THE TIME OF TESTIMONY. Questioning is directed at the witnesses capacity to observe, recollect and communicate at the time of testimony, as opposed to the time of observations relevant to the case at bar. CAPACITY IS DETERMINED AT THE TIME OF TESTIMONY. Questioning is directed to the general capacity for these functions, not the specific observations, recollections and recall regarding the case at bar. IOW, a witness may be testimonially competent, yet be completely unhelpful in resolving the facts at issue. Questioning is directed to the general capacity for these functions, not the specific observations, recollections and recall regarding the case at bar. IOW, a witness may be testimonially competent, yet be completely unhelpful in resolving the facts at issue.

13. 14 plus If one has the ability to communicate, but cannot understand the difference between normal truth-telling and truth-telling in court, then they can still give evidence. It is evidence given under s. 16(3), a “promise to tell the truth.” If one has the ability to communicate, but cannot understand the difference between normal truth-telling and truth-telling in court, then they can still give evidence. It is evidence given under s. 16(3), a “promise to tell the truth.” After the trier of law determines a witness can give evidence under a promise to tell the truth, the trier will exact that promise from the witness in lieu of swearing the witness in. After the trier of law determines a witness can give evidence under a promise to tell the truth, the trier will exact that promise from the witness in lieu of swearing the witness in.

14. 14 plus A “promise to tell the truth” under s. 16(3) requires an understanding of the difference between a truth and lie, and the nature of a promise. A “promise to tell the truth” under s. 16(3) requires an understanding of the difference between a truth and lie, and the nature of a promise. The mere fact that a witness testifies on a promise to tell the truth, rather than under oath, does not mean the testimony ought to be afforded less weight. The mere fact that a witness testifies on a promise to tell the truth, rather than under oath, does not mean the testimony ought to be afforded less weight.

15. 13.34 … to satisfy the less stringent standards applicable to unsworn evidence, the [witness] need only understand the duty to speak the truth in terms of everyday social conduct. This can be established through a simple line of questioning directed to whether the [witness] understands the difference between the truth and a lie, knows that it is wrong to lie, understands the necessity to tell the truth, and promises to do so.

16. 13.15 R. v. Farley 16(3) CEA … the capacity to perceive entails not only an ability to perceive events as they occur, but also an ability to differentiate between that which is actually perceived and that which the person may have imagined, been told by others, or otherwise have come to believe.

17. Cont’d Similarly, the capacity to remember refers to the person’s capacity to maintain a recollection of his or her actual perceptions of a prior event, and the ability to distinguish those retained perceptions from information provided to the person from other sources, such as statements made to the person by others.

18. Cont’d The capacity to communicate refers to the ability to understand questions and to respond to them in an intelligible fashion. The cognitive and communicative components of the competence test found in s. 16(3) refer to capacity, and not to the proposed witness’ actual perception, recollection and narration of the relevant events.

19. Cont’d A person may have the capacity to perceive, recall. And recall and yet be unable to perform one or more of those functions in a given situation. … a witness who genuinely has no recollection of the relevant events is not thereby rendered incompetent unless that inability to recall is a reflection of the absence of the capacity to recall.

20. Cont’d … the cognitive and communicative components of s. 16(3) set a relatively low threshhold for testimonial competence. Once the capacity to perceive, remember and recount is established, any deficiencies in a particular witness’s perception, recollection or narration go to the weight of that witness’s evidence and not to the witness’s competence to testify.

21. 14 plus CEA S. 16(4) if a witness cannot understand the nature of an oath, and does not have a testimonial ability to communicate, shall NOT testify S. 16(4) if a witness cannot understand the nature of an oath, and does not have a testimonial ability to communicate, shall NOT testify

22. 14 plus CEA - burden S. 16(5) a party who challenges the mental capacity of a proposed witness of 14 plus has the burden of satisfying the court that there is an issue as to the capacity of the witness S. 16(5) a party who challenges the mental capacity of a proposed witness of 14 plus has the burden of satisfying the court that there is an issue as to the capacity of the witness

23. Mental Disorders Mental disorders which render one incapable of interpreting observed events and/or communicating same can render one incompetent to testify. Mental disorders which render one incapable of interpreting observed events and/or communicating same can render one incompetent to testify.

24. R. v. Hill (p. 868) The witness was an inmate of a mental hospital when he observed the relevant event. The witness was an inmate of a mental hospital when he observed the relevant event. He believed spirits were around him and talking to him. He believed spirits were around him and talking to him. The medical evidence indicated that his delusion did not affect his memory and that in other aspects he was perfectly rational. The medical evidence indicated that his delusion did not affect his memory and that in other aspects he was perfectly rational.

25. Hill continued Held: competent. Held: competent. If delusion does not significantly affect perception, memory or articulation, then competent. If delusion does not significantly affect perception, memory or articulation, then competent.

26. What if proposed witness’ mental condition affects his moral responsibility? Sopinka 13.13 A mental condition or belief which affects moral responsibility to tell the truth is not a defect which affects competency. A mental condition or belief which affects moral responsibility to tell the truth is not a defect which affects competency. In R. v. Walsh, proposed witness was a satanist. In R. v. Walsh, proposed witness was a satanist. Trial judge: incompetent as he would recognize no social responsibility to tell the truth. Trial judge: incompetent as he would recognize no social responsibility to tell the truth.

27. Walsh: Ont. C.A. The Court of Appeal disagreed. The Court of Appeal disagreed. Held: a disposition to lie does not disqualify one from testifying. Held: a disposition to lie does not disqualify one from testifying. Incompetency does not spring from a lack of moral responsibility. Incompetency does not spring from a lack of moral responsibility. Moral defect goes to credibility only. Moral defect goes to credibility only. Since the witness understood he was subject to penal sanction for giving false evidence, he appreciated the duty of speaking the truth in the relevant sense. Since the witness understood he was subject to penal sanction for giving false evidence, he appreciated the duty of speaking the truth in the relevant sense.

28. Communicative Deficiencies See s. 20 AEA, s. 6 CEA, allowing testimony in a manner that will render their evidence intelligible, assuming capacity. See s. 20 AEA, s. 6 CEA, allowing testimony in a manner that will render their evidence intelligible, assuming capacity. Defects in a witness’s ability to communicate go to weight. Defects in a witness’s ability to communicate go to weight.

29. Other items that do not disqualify Interest or crime: s. 3 CEA (financial interest, crime related to this matter or criminal past) – these are matters for the TOF. Interest or crime: s. 3 CEA (financial interest, crime related to this matter or criminal past) – these are matters for the TOF. AEA, s. 3: AEA, s. 3: Admission of witness with interest, etc. Admission of witness with interest, etc. 3(1) No person offered as a witness in an action shall be excluded from giving evidence by reason of any alleged incapacity from crime or interest. 3(1) No person offered as a witness in an action shall be excluded from giving evidence by reason of any alleged incapacity from crime or interest. (2) A person offered as a witness shall be admitted to give evidence notwithstanding that the person has an interest in the matter in question or in the event of the action or that the person has been previously convicted of a crime or offence. (2) A person offered as a witness shall be admitted to give evidence notwithstanding that the person has an interest in the matter in question or in the event of the action or that the person has been previously convicted of a crime or offence.

30. Under 14 – s. 16.1 CEA Presumption of testimonial capacity: s. 16.1(1) Presumption of testimonial capacity: s. 16.1(1) Ban on oath or affirmation Ban on oath or affirmation Only test: their evidence SHALL be received if they are able to “understand and respond to questions”: s. 16.1(3) Only test: their evidence SHALL be received if they are able to “understand and respond to questions”: s. 16.1(3) Burden on opponent: s. 16.1(4) (that there is an issue as to capacity) Burden on opponent: s. 16.1(4) (that there is an issue as to capacity) Voir dire solely on the issue of ability to understand and respond to questions: s. 16.1(5) Voir dire solely on the issue of ability to understand and respond to questions: s. 16.1(5) Prior to giving evidence, trier of law extracts a promise to tell the truth: s. 16.1(6) Prior to giving evidence, trier of law extracts a promise to tell the truth: s. 16.1(6) Court now statutorily forbidden to ask questions in the voir dire about the nature of the promise to tell the truth: s. 16.1(7) Court now statutorily forbidden to ask questions in the voir dire about the nature of the promise to tell the truth: s. 16.1(7)

31. Weight of s. 16.1 evidence s. 16.1(8) the evidence “shall have the same effect as if it were taken under oath” Counsel to ask for instruction to TOF?

32. AEA – different! Evidence of child 19(1) In a legal proceeding where a child of tender years is offered as a witness and the child does not, in the opinion of the judge, justice or other presiding officer, understand the nature of an oath, the evidence of the child may be received though not given on oath if, in the opinion of the judge, justice or other presiding officer, the child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. (2) No case shall be decided on the evidence unless the evidence is corroborated by other material evidence.

33. Diffs b/w CEA and AEA re: under 14’s? Oath allowed under AEA. Oath allowed under AEA. Determination of understanding of truth v. lie and promise to tell truth allowed under AEA. Determination of understanding of truth v. lie and promise to tell truth allowed under AEA. Corroboration requirement for “promise” evidence under AEA. Corroboration requirement for “promise” evidence under AEA.

34. Evidence in action by lunatic, etc. 12 In an action by or against a lunatic so found or by or against an inmate of a mental health facility, or a person who from unsoundness of mind is incapable of giving evidence, an opposed or interested party shall not obtain a verdict, judgment or decision on that party’s own evidence unless that party’s evidence is corroborated by other material evidence.

35. Generally General Rule: all witnesses are competent. General Rule: all witnesses are competent. Competence is a question of law for the trier of law. Competence is a question of law for the trier of law. Time to raise issue is BEFORE the swearing of the witness, although the objection can be raised as soon as there appears a manifestation of incompetency. Time to raise issue is BEFORE the swearing of the witness, although the objection can be raised as soon as there appears a manifestation of incompetency. Once issue raised, Court to be satisfied of requisite test to Standard of Proof: Balance of Probabilities, regardless of who calls the witness. Once issue raised, Court to be satisfied of requisite test to Standard of Proof: Balance of Probabilities, regardless of who calls the witness.

36. Compellability In general, all competent witnesses are compellable, with exceptions such as those charged with offences, and their legally-married spouses in criminal matters. In general, all competent witnesses are compellable, with exceptions such as those charged with offences, and their legally-married spouses in criminal matters.

37. Accused Only - Criminal S. 4(1) accused are competent for the defence. S. 4(1) accused are competent for the defence. Under the common law, and constitutional protections, an accused is Not a compellable witness for the Crown. Under the common law, and constitutional protections, an accused is Not a compellable witness for the Crown. What that means, is that an accused decides if he is going to take the stand, he cannot be compelled to do so by the Court or Crown. What that means, is that an accused decides if he is going to take the stand, he cannot be compelled to do so by the Court or Crown. Once he decides to take the stand, he is, of course, subject to cross. Once he decides to take the stand, he is, of course, subject to cross. If he does not take the stand, his failure to do so cannot be the comment of the Crown or Judge s. 4(6) CEA. If he does not take the stand, his failure to do so cannot be the comment of the Crown or Judge s. 4(6) CEA.

38. Co-Accused – Jointly Tried Cannot be compelled to take the stand by the Court, Crown or co-accused, but nothing prevents adverse comments by counsel for the co-accused for said failure. Cannot be compelled to take the stand by the Court, Crown or co-accused, but nothing prevents adverse comments by counsel for the co-accused for said failure.

39. Co-Accused – Separately Tried What makes an accused non-compellable is that his trial is taking place at the time. If co-accused are separately tried (or one or more are not charged), they can be compelled against each other – ie. the one who is not on trial is called against the one who is. What makes an accused non-compellable is that his trial is taking place at the time. If co-accused are separately tried (or one or more are not charged), they can be compelled against each other – ie. the one who is not on trial is called against the one who is. This is subject to Charter scrutiny, and the “derivative use immunity” rule. Further, s. 5 of the CEA, and s. 13 of the Charter prevent that evidence from being used to incriminate the witness in his own trial. This is subject to Charter scrutiny, and the “derivative use immunity” rule. Further, s. 5 of the CEA, and s. 13 of the Charter prevent that evidence from being used to incriminate the witness in his own trial.

40. Parallel Civil Proceedings: 13.57 General Rule: the fact that criminal proceedings are ongoing, and that the accused is not compellable at the instance of the Crown, does not affect the compellability of the same accused in the related civil matter. General Rule: the fact that criminal proceedings are ongoing, and that the accused is not compellable at the instance of the Crown, does not affect the compellability of the same accused in the related civil matter. There is a discretion to stay the civil proceedings in the civil court, but this is only to be exercised in extraordinary or exceptional circumstances, ie. where the refusal of a stay would affect the fairness of the criminal trial. There is a discretion to stay the civil proceedings in the civil court, but this is only to be exercised in extraordinary or exceptional circumstances, ie. where the refusal of a stay would affect the fairness of the criminal trial.

41. Note There is no equivalent of “taking the fifth [amendment]” in Canadian law: s. 5 CEA, s. 6 AEA. There is no equivalent of “taking the fifth [amendment]” in Canadian law: s. 5 CEA, s. 6 AEA. We force answers to questions, but offer use immunity of the results. We force answers to questions, but offer use immunity of the results.

42. R. v. Amway Note: 13.47. Non-compellability of accused at the instance of the Crown provides no protection to the directors or other employees or management of corporations who are charged. Note: 13.47. Non-compellability of accused at the instance of the Crown provides no protection to the directors or other employees or management of corporations who are charged.

43. Spousal Immunity in Criminal Cases General common law rule: legally-married spouses incompetent for the prosecution. This is a right of the ACCUSED. He can waive it, and call the witness himself: s. 4(1). Therefore, legally-married spouses are competent for the defence, and then, once on the stand, subject to cross. General common law rule: legally-married spouses incompetent for the prosecution. This is a right of the ACCUSED. He can waive it, and call the witness himself: s. 4(1). Therefore, legally-married spouses are competent for the defence, and then, once on the stand, subject to cross.

44. Spousal Immunity - Exceptions It is open for the Crown to prove “irreconcilable separation” and then be able to call the spouse to the stand: Salituro. It is open for the Crown to prove “irreconcilable separation” and then be able to call the spouse to the stand: Salituro. Competence and compellability are determined at the time of trial. To be proven on a Balance of Probabilities. Competence and compellability are determined at the time of trial. To be proven on a Balance of Probabilities.

45. Spousal Immunity - Notes If the parties were once married, but divorced at the time of trial, the rule does not apply. If the parties were once married, but divorced at the time of trial, the rule does not apply. If the parties were married AFTER the events, but BEFORE the spouse is called to the stand, the status incompetence rule applies: Hawkins. If the parties were married AFTER the events, but BEFORE the spouse is called to the stand, the status incompetence rule applies: Hawkins. Common law spouses do not obtain this protection. Common law spouses do not obtain this protection.

46. Spousal Immunity – Lifted in certain circumstances Where the allegations involved in the criminal case involve actual or threatened violence against the spouse or her children, the spouse is competent. Where the allegations involved in the criminal case involve actual or threatened violence against the spouse or her children, the spouse is competent. THIS IS A COMMON LAW EXCEPTION. 13.61 “where the subject matter of the charge against the accused is a threat of injury to the person, liberty or health of the spouse” Note that the charge need not make the allegation, as long as the evidence does. 13.61 “where the subject matter of the charge against the accused is a threat of injury to the person, liberty or health of the spouse” Note that the charge need not make the allegation, as long as the evidence does.

47. Statutory Exceptions See s. 4(2) and 4(4) CEA See s. 4(2) and 4(4) CEA 4(2) a list of a variety of offences where the common law rule is set aside – mostly sexual offences regardless of age of the victim – spouse competent 4(2) a list of a variety of offences where the common law rule is set aside – mostly sexual offences regardless of age of the victim – spouse competent 4(4) where the victim is under 14, and the charge is murder, manslaughter, assault – even if not related – spouse competent for prosecution 4(4) where the victim is under 14, and the charge is murder, manslaughter, assault – even if not related – spouse competent for prosecution

48. Complicating Factor – Even Where Competent, Marital Privilege Applies s. 4(3) CEA No husband is compellable to disclose any communications made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.

49. ???? Discussion of difference between competence versus ability to assert privilege over marital communications. Discussion of difference between competence versus ability to assert privilege over marital communications.

50. Marital status incompetence is a right of the accused to waive or not where it applies. Marital status incompetence is a right of the accused to waive or not where it applies. Status incompetence is determined at the time the witness is called to testify, not when the facts at issue occurred. Status incompetence is determined at the time the witness is called to testify, not when the facts at issue occurred. Marital privilege as to marital communications is the right OF THE WITNESS SPOUSE to assert, or not. Marital privilege as to marital communications is the right OF THE WITNESS SPOUSE to assert, or not. Privilege is determined at the TIME the utterance is made – ie. were they made in marital confidence (best view, there are different views in the jurisprudence). Privilege is determined at the TIME the utterance is made – ie. were they made in marital confidence (best view, there are different views in the jurisprudence).

51. AND SO … A spouse may be competent for the Crown because of a common law or statutory exception, or status incompetence may be waived by the defence. In ANY of those cases, marital privilege can still be asserted by the witness over marital communications. A spouse may be competent for the Crown because of a common law or statutory exception, or status incompetence may be waived by the defence. In ANY of those cases, marital privilege can still be asserted by the witness over marital communications.

52. CIVIL (where Alberta has jurisdiction) General rule, in civil matters, all parties and their spouses are competent and compellable for both sides General rule, in civil matters, all parties and their spouses are competent and compellable for both sides e.g. Plaintiff calls Defendant or Defendant’s wife to the stand

53. AEA Competency as witnesses 4(1) The parties to an action and the persons on whose behalf the action is brought, instituted, opposed or defended are, except as otherwise provided in this Act, competent and compellable to give evidence on behalf of themselves or of any of the parties. (2) The spouses and adult interdependent partners of the parties and persons mentioned in subsection (1) are, except as otherwise provided in this Act, competent and compellable to give evidence on behalf of any of the parties.

54. Exception – Regulatory Prosecutions – Common Law rule re: incompetent for Crown applies s. 4(3) Nothing in this section makes the defendant in a prosecution under an Act of the Legislature compellable to give evidence for or against himself or herself.

55. Marital Privilege: A Civil Rule too 8 A spouse or an adult interdependent partner is not compellable to disclose any communication made to him or her by the other spouse or adult interdependent partner during the marriage or adult interdependent relationship.

56. Note “Adult Interdependent Partner” wider than “husband” and “wife” under CEA “Adult Interdependent Partner” wider than “husband” and “wife” under CEA However, there is no status incompetence However, there is no status incompetence BUT, because marital privilege exists, and applies to AIP’s, the status incompetence is smaller, but the privilege is wider BUT, because marital privilege exists, and applies to AIP’s, the status incompetence is smaller, but the privilege is wider