WITNESSES: COMPETENCY AND COMPELLABILITY

Competency of Children/Mental Incompetents

At CL, children and others who could not understand meaning of an oath could only give unsworn evidence

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  CEA Rules:
  

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  S. 16: Affirmation or Promise to tell truth instead of oath where a person whose mental capacity is challenged
  

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  Persons over age 14 presumed competent
  
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  Inquiry undertaken only where challenged and court satisfied there’s an issue
  
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  To give testimony on Promise to tell Truth requires (R v. D.A.I- read in):
  

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  Witness able to communicate evidence
  
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  Witness promises to tell truth (no need for abstract understanding of “truth”)
  

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  S. 16.1: Promise to tell truth instead of oath in case of a child under 14 Marquard
  
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    Presumption that children under 14 are competent to testify
    
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    Evidence will be received if they have the capacity to understand/respond to questions
    
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      Court can conduct inquiry into this if unsure of capacity for understanding/responding
      
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    Inquiry undertaken only where child’s capacity is challenged and court satisfied there is issue as to child’s
    
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    Burden on party who challenges a child’s capacity
    
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  16.1(7) Court can’t inquire on kid’s understanding on what it means to tell truth (which is distracting)
  
  
  

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  BC Civil Rules s.5:
  

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  (1) must inquire into child/mental incompetent understands nature of oath, and can communicate evidence
  
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  (2) person who understands an oath and can communicate evidence must testify under oath
  
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  (3) person who does not understand nature of oath/solemn affirmation but is able to communicate evidence may testify on promising to tell the truth
  
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  (4) person who neither understands the nature of oath/solemn affirmation nor is able to communicate evidence may not testify
  
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  (5) burden in party who challenges capacity of person over 14
  

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  BCEA Rules
  

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  s. 20: solemn affirmation and oath same effect, affirmation where oath will not conform with beliefs
  
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  s. 21: absence of religious belief of person who takes an oath has no effect on oath’s validity
  

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  Facts: M aggravated assault – girl testified (unsworn) “nanny put me on the stove”; kid had burns, grandma and grandpa’s testimony conflicted only slightly, they said she tried to smoke cigarette
  
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  Dissent in this case led to enactment of s. 16.1; old s.16 CEA said children and people with mental capacity challenges couldn’t testify under oath though could give unsworn
  
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  Ability to communicate evidence means ability to understand and respond to questions – not remember events; perceive and communicate capacity, the actual credibility is for jury to determine
  
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  Notion that child testimony is inherently unreliable was rejected in Khan
  

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  Woman mental age 6 sexually assaulted; got truth vs. lying, no response to abstract questions; not competent
  
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  Appeal says wrong application of CEA s.16(3), no abstract inquiry needed, focus on concrete acts
  
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  Witness ability to testify: competence is initial threshold for testimony, exclude worthless testimony based on lack of basic capacity to communicate evidence to court
  
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  S.16(3) imposes 2 requirements for testimonial competence of adults with mental disabilities
  

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  (1) ability to communicate the evidence, and
  
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  (2) promise to tell the truth
  

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  Policy: Social need to bring to justice sexual abusers of people with limited mental capacity- most vulnerable people; hard for anyone to explain philosophical obligation to tell truth
  
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  Policy: Ensure fair trial- not hurt by letting mentally disabled people testify, minimum threshold for reality met if they have basic capacity; no guarantee ever of telling truth; we have cross-x for this
  

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  Points: 1. Competence voir dire is independent inquiry from other vd’s; 2. Vd brief but hear all relevant evidence; 3. Source of determining competence is the witness herself, examine; 4. people close to her can give evidence on her development; 5. expert evidence ok but close people first; 6. TJ ask 2 competence questions (understanding affirmation’s nature, communicating evidence) 7.about concrete events; 8. look at true/false everyday situations
  

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  Witness testifies under oath if she passes both parts of test and promises to tell truth
  

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  Dissent (Binnie): Many mentally disabled people can say they promise but very suggestible, no understanding
  

The Accused: Compellability, Silence or Failure to Testify

An accused is competent, but not compellable, to testify at his own trial on behalf of defence; not competent on behalf of Crown so Crown can’t compel accused to testify

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  If he chooses to testify in own defence he can be cross-examined
  
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  Tactical burden: accused must do something to defend after Crown evidence he’ll be convicted if he does nothing
  

Rules in CEA, Charter

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  CEA rules:
  

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  S.4 (1): accused is competent witness for defence
  
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  S. 4(6): judge/counsel for prosecution may not comment on failure of accused to testify
  
  
  

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  Charter rules:
  

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  S. 11(c): accused has right not to be compelled to be a witness at his own trial
  
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  S. 11(d): right to be presumed innocent until proven guilty according to law in fair and impartial tribunal
  
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  S. 13: right against self-incrimination; witness has right not to have any given incriminating evidence used to incriminate him in any other proceedings, except in perjury or giving contradictory evidence
  

Possible Allowable References to Accused’s Silence

1. Judge sitting alone who is satisfied BRD of guilt, may refer to an absence of any explanation which could raise a reasonable doubt [note: judges give reasons for judgment when alone]

2. Judges sitting alone may say that he need not speculate as to possible defences
3. Judge can tell the jury that a point is uncontradicted
4. Alibi defence: An adverse inference may be drawn from a late-disclosed alibi or from failure of accused to testify to his alibi [because alibis are easy to fabricate, need to be investigated]
R. v. Noble

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  S catches guys breaking into cars, gets driver’s licence from N, compares picture and man; at trial can’t ID accused; N convicted based on silence plus S’s identification; could easily say wasn’t me to disprove ID element
  
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  Using accused’s failure to testify as indication of guilt is contrary to Charter s.11, 13 rights; if Crown doesn’t meet BRD standard, failure of accused to testify can’t make up for that
  
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  3 options for using silence if permitted:
  

1) Once Crown has made case, silence of A can be used to determining if A guilty BRD

2) Inferences of guilt may be drawn only where case made and A fits in cogent network of inculpatory facts

3) Silence of A means Crown evidence is uncontradicted and must be evaluated on this basis without regard for any explanation of those facts that do not arise from the facts themselves – used

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  Court takes option 3: no speculating about other explanations; more of a tactical burden on accused
  
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  Problem with s.4(6) of CEA: TJ can’t instruct jury about not incorrectly using silence, though not at issue here
  
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  Alibi exception to right of silence: still can’t make them testify even if claiming defence of alibi, Vezeau gave narrow exception to that showing possibly invalid defence
  

R v. Prokofiew ONCA 2012

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  Obiter in Noble = judge can’t tell jury not to misuse accused silence to find BRD
  
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  s.4(6) properly interpreted does not stop TJ from telling jury not to use silence against accused , in 3 earlier SCC decisions; judge can comment on silence but warning not mandatory
  
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  Unsure what will happen at this point
  

Directory: outlines
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outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11
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