Canadian Criminal Evidence/Testimonial evidence

Testimonial evidence, also known as viva voce evidence or oral testimony, is evidence given by a witness in the form answers to posed questions.

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 relevant 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.

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. 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.

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 susceptible 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" (i.e. 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.

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:

1. an appreciation of the solemnity of the occasion;
2. 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;
3. an understanding of what it means to tell the truth in court;
4. 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.

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:

1. that the child cannot understand and respond to simple questions
2. 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.

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 [5] 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 despite 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.

Testimonial Aids

Present Memory Revived

The doctrine of Present Memory Revived permits a testifying witness to jog their memory. The tool used to jog the memory can be anything (a sound, a picture, a smell, etc). It is not the aid that becomes the evidence but rather it is only a mechanism to evoke the memory of the witness which produces the evidence.

The procedure to refresh memory in the context of a prior recorded statement reduced to writing is as follows:

1. on direct examination, counsel should put the statement in the hands of the witness
2. counsel should direct the witnesses attention to the part which contains the previous answer
3. the witness should read it to himself
4. the counsel may put questions to the witness referring to the previous answer. The witness may correct an error, agree or deny the contents of the document

The fundamental principles were summarized in Cornerstone Co-operative Homes Inc. v Spilchuk, [2004] O.J. No. 4094 at para 13:

1. There is a distinction between present memory revived and past recollection recorded: in the former, something once remembered is again remembered by means of the memory being jogged by reference to, for example, a note; in the latter, "one has a record of what was once remembered but is no longer remembered . . . [I]t is only where a present memory is actually revived that it can be said to be 'refreshed'": see Mewett, Alan W., Witnesses (Toronto: Carswell, 1997 -- Rel. 2), pp. 13-2 and 13-3. [page107]
2. The memory of a witness may be refreshed by any document. "[A]nd it makes no difference that the memorandum is not written by [the witness], for it is not the memorandum that is the evidence but the recollection of the witness": see Henry v. Lee (1814), 2 Chit. 124, approved in R. v. B. (K.G.) 1998 CanLII 7125 (ON CA), (1998), 125 C.C.C. (3d) 61, [1998] O.J. No. 1859 (C.A.), at p. 67 C.C.C.
3. In a case where a witness refreshes his or her memory "from some external source or event, she has a present memory, albeit one that has been refreshed; how reliable and truthful her recollection is, will be determined by the trier of fact . . .": see R. v. B. (K.G.), ibid.
4. There is no need for the note or document used to refresh memory to have been made contemporaneously with the facts in the note or document: see R. v. B. (K.G.), supra, at p. 69 C.C.C.
5. There is nothing wrong with a witness reviewing a written statement made by her years earlier for the purposes of refreshing her memory before trial and there is nothing wrong with cross-examining counsel attempting to determine whether the witness "had a present memory of events about which she testified": see R. v. B. (K.G.), supra, at p. 67 C.C.C.
6. The statement in R. v. Kerenko, Cohen and Stewart, [1965] 3 C.C.C. 52, 49 D.L.R. (2d) 760 (Man. C.A.), at p. 53 C.C.C., that "it is only where the witness requires his notes to refresh his memory at trial that he may be called upon to produce them" (emphasis added) would not seem to be good law, at least in Ontario.
7. It would also seem to be true that it does not make any difference how long before trial the refreshing occurs. Cross-examining counsel is entitled to explore this and other matters to ascertain the reliability and truthfulness of the witness.

The document cannot be put to the jury or in any way be put into evidence.

Present memory revived is separate and distinct from Past Recollection Recorded which is a form of hearsay. In the later case, the document is evidence that the judge may rely upon.

See also: R. v. Violette, 2009 BCSC 503 [6]

Impeachment

Cross-examining an accused on a prior statement

The crown may withhold a statement of hte accused until the defence's case at which time it can only be used where the statement is voluntary and only for hte purpose of attacking credibility.<re>F R. v. Hebert, [1955] SCR 120 (SCC)</ref> The defence may introduce parts of the statement on rebuttal not used by the crown.