In criminal cases, governed by the Canada Evidence Act there are two competency regimes. Section 16 of the Act applies to adult witnesses and section 16.1 applies to child witnesses under the age of fourteen years.
Under section 16 persons over the age of fourteen are presumed competent to testify. An inquiry into their competency will be undertaken by the court only when the proposed witness’s competency is challenged and the court is satisfied that there is an issue as to the person’s capacity to testify under oath or affirmation.
Capacity under section 16 requires understanding of an oath or affirmation and whether the witness is able to communicate the evidence. Understanding of an oath or affirmation involves an understanding of the additional moral obligation to speak the truth in court. An ability to communicate the evidence involves the capacity to perceive, remember, and communicate the evidence.
Should the witness understand the nature of the oath or solemn affirmation and be able to communicate the evidence, the witness will then be allowed to testify under oath or affirmation.
Should the witness not understand the nature of the oath or affirmation, but have the necessary capacity to give evidence, the witness may testify on promising to tell the truth.
Under section 16.1 of the Canada Evidence Act all child witnesses under the age of fourteen years are presumed competent to testify.
An inquiry into their competency will be undertaken by the court when the proposed witness’s competency is challenged or when the court is satisfied that there is an issue as to the child’s capacity to understand and respond to questions.
No child witness will take an oath or solemn affirmation. They will be permitted to testify on promising to tell the truth and no inquiry will be allowed as to their understanding of the nature of a promise to tell the truth.
A child’s evidence taken by way of a promise to tell the truth shall have the same effect as if it were taken under oath.
Competency involves two aspects: capacity and responsibility. The witness must have the capacity to observe, recollect, and communicate. Is the witness capable of observing what was happening? Is the witness capable of remembering what he or she observes? Can the witness communicate what he or she remembers3Beyond these requirements, the witness must also accept and be aware of the responsibility to testify in a truthful manner.
The applicable statutory provisions reflect these dual themes of capacity and responsibility. They address issues of capacity and responsibility by establishing tests to determine whether witnesses are entitled to give testimony under oath or affirmation, or as unsworn evidence. Should a witness fail to qualify under these tests, the witness will be held incompetent to testify.
At common law, a witness could only testify under oath and it was the inquiry into the ability to swear an oath that served as the check into both the capacity and responsibility of witnesses. Only children of "tender years," those under fourteen, would typically be tested, as those beyond tender years were presumed to be competent. If a tested witness did not understand the "nature and consequences of an oath," the witness would be found incompetent to give evidence.
Before 1987 the legislation across Canada was fairly similar. The statutes provided for children of "tender years" who did not "understand the nature of an oath" to give unsworn evidence, provided they "possessed sufficient intelligence" and understood the "duty of speaking the truth." If the evidence was taken in such an "unsworn" fashion, then corroboration of the child’s testimony was required: no case was to be decided on a child’s unsworn evidence alone. This statutory scheme remains in effect in a number of the provinces.4In 1987 the Canada Evidence Act was
amended and the requirement for corroboration was repealed.5In 2005 the Act was amended again and created an entirely separate regime to deal with the competency of child witnesses under the age of fourteen. The new regime does away with much of the formality and abstraction that made the competency inquiry difficult to apply to children.
Therefore, in a criminal trial we now have two competency regimes: section 16 of the Canada Evidence Act applies for adult witnesses, who are over fourteen years of age, and section 16.1 applies for children, who are under fourteen years of age. In order to appreciate the separate procedures involved it is valuable to examine section 16 first, because prior to 2006 it also applied to child witnesses. Deficiencies in its process prompted section 16.1, which was passed to facilitate the testimony of child witnesses by streamlining and simplifying the competency process for children.6
Witnesses over the age of fourteen are presumed competent. For proposed witnesses over the age of fourteen, an inquiry into their competency will be undertaken only when a challenge is made and the court is satisfied that there is an issue as to the proposed witness’s mental capacity.7Subsection 16(1) provides:
16(1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
(a) whether the person understands the nature of an oath or a solemn affirmation; and
(b) whether the person is able to communicate the evidence.
Where the answer to both questions inquired into is yes, the witness can swear an oath or affirm. Where the answer to the first question is no, but the second yes, the witness will...