Methods of Presenting Evidence
| Author | David M. Paciocco/Lee Stuesser |
| Profession | Justice of the Ontario Court of Justice/Professor of Law, Bond University |
| Pages | 403-486 |
403
CHAPTER 10
METHODS OF
PRESENTING EVIDENCE
1. THE CAlling of wiTnESSES
Our trial system is based on the calling of witne sses and, as a gen-
eral rule, the court is entitled to every person’s evidence, provided the
person is competent to te stify.1 Competency means that the person is
qualified or capable of giving ev idence. Should the person not wish to
testify, he can be forced or compelled to do so. The person is served
with a subpoen a. A subpoena ad testificandum requires that the person
attend to give evidence. A subpoena duces tecum requires not only t hat
the person attend to give evidence but that the per son also bring any-
thing in his poss ession or control that relates to the charge a nd, more
particularly, those things spec ified 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.2
At common law, many potentially valuable witnesses were rendered
incompetent to testif y. The common law judges were concerned about
the giv ing of inaccurate or perjured testimony. Therefore, at common
law people were precluded from testifying on g rounds of interest, in-
famy (should the witness have a criminal history), in fancy, i nsanity,
disbelief in a Supreme Being, and marriage. Fortunately, most of the
common law rules barri ng cert ain persons from test ifying have been
2 See Criminal Code, R.S.C. 1985, c. C-4 6, ss. 698–708.
THE LAW OF EVIDENCE404
swept aside by statute. For example, all t he provi ncial Evidence Acts
have a provision comparable to section 3 of the Canada Evidence Act,
which reads:
A person is not incompetent to g ive evidence by reason of interest or
crime.
Today, for the most pa rt, all potential witnesses are allowed to test-
ify — warts and all; their frailties a re left as a matter of credibil ity for
the trier of fact to assess. However, vestiges of the common law remain
with re spect to children and with respect to the calling of spouses of
accused persons.
2. ComPETEnCy gEnER Ally
In criminal cases, gover ned 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.
Adult Witnesses
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 wit ness’s compe-
tency is challenged an d the court is satisfied that the re is an issue
as to the person’s capacity to testify under oath or affirmation.
Capacity un der 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 e vidence 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 a ble to communicate the evid ence, 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.
Child Witnesses
Under section 16.1 of the Canada Evidenc e Act all child witnesses
under the age of fourteen years are presumed compete nt to testify.
Methods of Pre senting Evidence 405
An inquiry into their competency will be under taken 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 tr uth and no
inquiry will be allowed as to their understanding of the nature of a
promise to tell the truth.
A child’s evidence take n 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 obser ve, recollect, and communicate.
Is the witness c apable of observing what wa s happening? Is the wit-
ness capable of remembering what he or she observes? Can the witness
communicate what he or she remembers?3 Beyond these requirements,
the witness must also accept a nd be aware of t he responsibility to test-
ify in a truthful manner.
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 w itnesses 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 testif y.
At common law, a witness could only testify under oath and it was
the inqui ry i nto the ability to swear an oath th at ser ved 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 underst and the “nature and consequences of an oath,”
the witness would be found incompetent to give evidence.
Bef ore 1987 t he leg islat ion ac ross C anad a was f airly simi lar. The stat-
ute s pro vide d for c hil dren of “t ender yea rs” wh o did not “ unde rsta nd t he
nature of an oath” to give unsworn evidence, provided they “possessed
sufficient intelligence” and understood the “duty of speaking the truth.”
If the e vidence was t aken in such an “uns worn” fashion, t hen corrobora-
tion of the child’s testimony was required: no case was to be decided on
a child’s unsworn ev idence alone. This statutory scheme rema ins i n ef-
fect in a number of the provinces.4 In 1987 the Canada Evide nce Act was
4 Alberta Evide nce Act, s. 19; Nova Scotia, Evidence Act, s. 63; New Bru nswick,
Newfoundland , and Ontario have removed the re quirement for corroboration:
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