Methods of Presenting Evidence

• Author: David M. Paciocco/Lee Stuesser
• Pages: 397-484

Chapter 10

METHODS OF

PRESENTING EVIDENCE

1. the CaLLING OF WItNeSSeS

Our trial system is based on the calling of witnesses and, a s a gen-

eral rule, t he court is entitled to every person’s evidence, provided the

person i s competent to testify. Competency means that the person is

qualif‌ied or capable of giving evidence. Should the person not wish to

testify, he can be forced or compelled to do so. The person is served

with a subpoena. A subpoena ad testif‌icandum require s that t he person

attend to give ev idence. A subpoe na duces tecum requires not only that

the person attend to give evidence but th at the per son also bring any-

thing in his pos session or control that relates to the charge and, more

particularly, those things specif‌ied in the subpoena. Should the person

fail to attend, a warrant may be issued for his arrest and the person may

be found guilty of contempt of court.1

At common law, many potentially valuable w itnesses were ren-

dered incompetent to testify. The common law judges were concerned

about the giving of inaccurate or perjured testimony. Therefore, at com-

mon law people were precluded from testifying on grounds of interest,

infamy (should the witne ss have a cr iminal history), infancy, insanity,

disbelief in a Supreme Bei ng, a nd m arriage. Fortunately, most of the

common law rules barr ing cer tain persons from te stifying have been

swept aside by statute. For example, all the provincial Evidence Acts

1 See Criminal Code, R.S.C. 1985, c. C-4 6, ss. 698–708.

397

THE LAW OF EVIDENCE398

have a provision comparable to section 3 of the Canada Evide nce Act,

which reads:

A person is not incompetent to give ev idence by reason of interest or

crime.

Today, for t he most part, all potential witnesses are allowed to test-

ify — warts and all; their frai lties are left as a matter of credibilit y for

the trier of fact to assess. However, vestiges of the common law remain

with re spect to children and w ith respect to the c alling of spouses of

accused persons.

2. COMpeteNCY GeNer a LLY

In criminal cases, governed by the Canada Evidence Act the re

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 14 years.

Adult Witnesses

Under section 16 persons over the age of 14 are presumed compe-

tent to testify. An inquiry into their competency will be undertaken

by the court only when the proposed witness’s competency is chal-

lenged 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 cap-

acity 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 e vidence, 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 evid ence, the

witness may testify on promising to tell the truth.

Child Witnesses

Under section 16.1 of the Canada Evidence Act all child witnesses

under the age of 14 years are presumed competent to testify. An in-

quiry into their compete ncy will be unde rtaken by the court when

Methods of Pre senting Evidence 399

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 under-

stand 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 evide nce 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 wit-

ness must have the capacity to observe, recollect, and communicate. Is

the wit ness c apable of obser ving what was happening? Is the w itness

capable of remembering what he or she observes? Can the witness com-

municate what he or she remembers?2 Beyond these requirements, the

witness must also accept and be aware of the responsibility to testify in

a truthful m anner.

The applicable statutory provisions ref‌lect these dual themes of

capacity and responsibility. They address issues of c apacity and re-

sponsibility by establishing tests to determine whether witnesses a re

entitled to give testimony under oath or aff‌ir mation, or as unsworn

evidence. Should a witness fail to qualify under these tests, the witne ss

will be held incompetent to testif y.

At common law, a witness could only testify under oath and it was

the inqui ry into the ability to swear an oath that ser ved as the check

into both the capacity and responsibility of witnesses. On ly ch ildren

of “tender years,” those under 14, would ty pically be tested, as those

beyond tender years were presumed to be competent. If a te sted w it-

ness did not understand the “nature and consequences of an oath,”

the witne ss would be found incompetent to g ive evidence. Those who

qualif‌ied to give an oat h would engage in a solemn ceremony meant to

bind the conscience of the witness. Initially swe aring an oath required

the witne ss to use a set formula by “sweari ng” to tell the t ruth, while

placing a hand on the Bible. While such oaths continue to be used in

courts and tribunals, statutory a nd common law changes have altered

the test for qualifying to swear a n oath, and the law h as evolved to the

point where any form of oath that wil l grab hold of the conscience of

the witness will now suff‌ice. Indeed, witnesses are allowed to make

a solemn “aff‌irmation” to tell the truth instead of swearing an oath.

The solemn aff‌irmation involves noth ing more than asking witnesse s

whether they aff‌irm to tell t he truth. For some time now provision has

2 R. v. Marquard (1993), 25 C.R. (4th) 1 at 10 (S.C.C.).