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 witnesses and, as a gen-

eral rule, the court is entitled to every person’s evidence, provided the

person is competent to testify.1 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 requires that the person

attend to give evidence. A subpoena duces tecum requires not only that

the person attend to give evidence but that the person also bring any-

thing in his possession 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.2

At common law, many potentially valuable witnesses were rendered

incompetent to testify. The common law judges were concerned about

the giving of inaccurate or perjured testimony. Therefore, at common

law people were precluded from testifying on grounds of interest, in-

famy (should the witness have a criminal history), infancy, insanity,

disbelief in a Supreme Being, and marriage. Fortunately, most of the

common law rules barring certain persons from testifying have been

1 R. v. National Post, 2010 SCC 16 at para. 1.

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 the provincial 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 part, all potential witnesses are allowed to test-

ify — warts and all; their frailties are left as a matter of credibility for

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

with respect to children and with respect to the calling of spouses of

accused persons.

2. ComPETEnCy gEnERAlly

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.

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 witness’s compe-

tency 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 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 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.

Child Witnesses

Under section 16.1 of the Canada Evidenc e Act all child witnesses

under the age of fourteen years are presumed competent to testify.

Methods of Pre senting Evidence405

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 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 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 witness capable of observing what was 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 and be aware of the responsibility to test-

ify in a truthful manner.

The applicable statutory provisions ref‌lect these dual themes of

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

sponsibility 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.

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 remains in ef-

fect in a number of the provinces.4 In 1987 the Canada Evidence Act was

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

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: