Canadian Law of Evidence/Testimonial evidence
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Testimonial evidence, also known as viva voce evidence or oral testimony, is evidence given by a witness in the form answers to posed questions.
Contents |
[edit] Competence and Compellability
Who can be a witness at a trial depends on two factors, competence and compellability. The competence of a witness asks whether a willing witness is permitted to testify. While compellability asks whether the cometent witness can be made to testify even if it's against their will.
At common law, all individuals are presumed competent to testify so long as their information is relevent barring certain groups of people. Historically, the common law prevented many types of people from testifying. This included convicts, infants, the insane, marriage, and lack of belief in a higher power. Many of these rules have been overturned by statute, for example, the rule against convicts was removed under by section 12 of the CEA. Their record, however, can be used as character evidence.
The three classes of exceptions that remain today are children, people of low mental capacity, and spouses. In each of these it is up to a challenger to establish the incometence of the witness.
A witness is presumed to possess both capacity and responsibility. More specifically, to testify, a witness need only be able to a) observe, b) recall his or her observations accurately, c) communicate his or her recollections. In order to communicate the witness must be able to understand and respond to questions, and the witness must have the moral responsibility to speak the truth.
[edit] Oaths and Affirmations
Common law requires all witnesses to take an oath to solemnify the evidence given. The implicit threat of divine intervention does not have the same weight as it did historically. As Justice Dickson stated in R. v. Bannerman, "[t]he object of the law in requiring an oath is to get at the truth relative to the matters in dispute by getting a hold on the conscience of the witness." Thus, there is a second option provided to allow people to opt for taking an affirmation of solemnity. This is provided under section 14 of the Canada Evidence Act (CEA) as well as under most provincial evidence acts [1]. The form of the ceremony can vary. It can even be as simple as asking "do you know that it is a criminal offence to intentionally give false evidence in a judicial proceeding? Do you solemnly promise to tell the truth in this proceeding?"
The key to a proper oath or affirmation is that the witness understands what they are swearing to. Typically, it is not a problem with the exception when dealing with Children and witnesses of low mental capacity as will be seen later.
[edit] Children and Mental Capacity
Rules surrounding the testimony of children is of particular importance. The reason for this is that children tend to be highly suseptible to influence, their ability to interpret events often affects their testimony, they may not understand the consequences of their actions, and they typically have a higher degree of credibility to a trier of fact.
At common law there is no minimum age for testimony. However, invidividuals of "tender years" (ie. under fourteen) must be tested to see if they "possessed sufficent intelligence" to be considered competent, and understand the "nature and consequences" of an oath. If they were not able to understand the meaning of the oath they would usually be allowed to give unsworn testimony so long as the evidence they gave could be corroborated.
In regards to the understanding of the oath, Justice Dickson, in R. v. Bannerman stated that "all that is required when one speaks of an understanding of the "consequences" of an oath is that the child appreciates it is assuming a moral obligation." This test remains the common law requirement for an oath and still applies for civil trials in provinces that have not adopted the recent changes seen the CEA.
[edit] Section 16
Section 16(1) of the CEA, was introduced in 1987 had changed much of the rules for children and people of low mental capacity. Much of the common law rules are preserved.
The common law presumption of competence is preserved, subject so section 16(1), which states:
16(1) Where a proposed witness is a person under fouteen years of age or a person 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 communciate the evidence.
An inquiry, in the form of a voir dire, is undertaken for any child witness or if the witness' capacity is challenged under section 16(6). Unless there is a possibility of prejudicing the jury, typically the inquiry is done in front of them, so that they can judge the degree of credibility that should be allocated to the witness. The inquiry usually involves questioning the witness (R. v. Parrott) by the judge and often with support of an expert. Nevertheless, the decision is the judge's to make.
The inquiry involves two steps. The individual must be shown the "understand the nature of an oath or solemn affiration", and secondly, must be shown to "communicate the evidence".
In the case of R. v. Marquard (1993) the Supreme Court considered the case of an unsworn child and whether she was able "to communicate" by the standard of section 16(1). The Court held that the inquiry need only examine the capacity of the witness to communicate and not their ability to observe and recall. Nevertheless, it is important to "explore in a general way whether the witness is capable of perceiving events, remembering events, and communicating events to the court", but whether the child remembers anything specific to the case is not necessary. L'Heureux-Dube, in dissent, argued against a special standard for children, which, with the imminent introduction of section 16.1 will be the view that prevails.
In R. v. Leonard (1989) the court examined the first question on whether the child understood the oath. They held that the issue revolves around "responsibility", it must be determined that the witnesses conscience is affected, and whether they approcate the significance of testifying. The court gave a four-part test to determine if the child understood the meaning of oath. The child must have:
- an appreciation of the solemnity of the occation;
- an understanding of the added responsibility to tell the truth over and above the duty to tell the truth as part of ordinary duty of normal social conduct;
- an understanding of what it means to tell the truth in court;
- an appreciation of what happens, in both practical and moral sense, when a lie is told in court.
If the child passes this test then they will be allowed to testify under section 16(2) of the CEA.
However, in the event that the child does not understand the meaning of the oath they are still able to give an unsworn testimony under section 16(3) on the condition that they promise to tell the truth. There is an additional test that must be applied in order to accept a promise to tell the truth. The individual must understand what it means "to promise" and understand what it means to "tell the truth". The test for the truth is neither exact or demanding. It mostly involves having the child "commit" to telling the truth as they understand it in everyday social conduct. The distinction of this from the test to determine if the child understands the oath is that there is no requirement for the child to understand the solemnity of the court and does not need to understand their duty beyond everyday meaning of it.
For all unsworn testimony, in R. v. Kendal, the Court held that whenever a child gives sworn testimony the judge must warn the jury regarding the dangers of convicting based on a child's testimony. This practice is applied in any event to witnesses who give inconsistent evidence.
In comparasion wit the common law requirement for corroboration, section 16(3) removes this.
[edit] section 16.1
By the end of 2005 an amendment Bill C-2 to the CEA is expected to go through which will substantially reduces the rules preventing testimony of children. Most significantly, the presumption against competence of children has been removed. If there is no challenge, any child under the age of fourteen may testify. In the event of a challenge the burden will be on the challenger to prove:
- that the child cannot understand and respond to simple questions
- that the child will not promise to tell the truth (s.16.1(6))
The first step lowers the bar set by Marquard and only requires that they are able to communicate. The second step is a substitute for the need to take an oath or affirmation. If the child promises to tell the truth it will be as good as an oath (s.16.1(8)). When challenging the second step, however, the challenger is not allowed to ask about the "nature" or "meaning" of what it means to tell the truth.
[edit] Spouses
The general common law rule states that spouses are presumed incometent to testify in either civil or criminal trials.
In civil trials, provincial evidence acts have removed this presumption, allowing spouses to testify.
In criminal trials, section 4(1) of the CEA deems spouses to be competent and compellable to testify by the defence. They are compellable by the crown only for offences listed under section 4(2) and 4(4) which are mostly sexual offences, crimes against marriage, and crimes against children. A third way a witness can be competent by the crown is under the common law exception from section 4(5), which applies when a) the accused is charged with an offence involving danger to the spouse's "person, liberty, or health", b) when the accused threatened to the spouse's "person, liberty, or health", or c) violence, cruelty or threats are made against the spouse's child.
The spousal exception does not apply to common law or "irreconcilably separated" spouses, only those in a "valid and subsisting" marriage. In R. v. Salituro, the court held that the spousal exception did not apply to spouses who were "irreconcilably sparabed", as there is no marital harmony to preserve. To determine if the marriage is irreconcilable it must be determined that there is "no reasonable prospect of reconciliation", this is determined as objectively as possible and must be shown on the balance of probabilities that they are irreconcilable (R. v. Jeffrey).
The issue of whether a competent spouse is compellable has seen little case law. In R. v. McGinty, the court suggested that a competent spouse is a compellable spouse. Since then other case law has suggested the same.
Many believe that the spousal rule is outdated and should not be used at all. However, in R. v. Salituro, the Court held that the rules with respect to spouses can only be changed by Parliament and that dispite inequities, changes must be legislated.
Other attempts had been made to create new exceptions, such as in the case of R. v. Hawkins. The Crown tried to argue that a "sham" marriage or one of convenience should be excluded. The court held otherwise.
[edit] Examination of a witness
[edit] Examination in Chief
[edit] Cross Examination
A cross examination is when a witness, called to testify by one side, is questioned by the opposing side.
[edit] Refreshing memory
Witnessses are generally permitted to use notes and other documents to refresh their memory. Refreshing of memory consists of two classes.
[edit] Present memory revived
[edit] Past recollection recorded
Cross examination is good
[edit] Endnotes
- ^ section 14(1) of the Ontario Evidence Act, section 62 of the Nova Scotia Evidence Act.
