Witnesses: Competency and Compellability

Question 1

What type of rule is competency?

Answer 1

An independent exclusionary rule

Question 2

Define competency.

Answer 2

Whether a witness is legally capable to be permitted to testify and give evidence.

Question 3

Define compellability.

Answer 3

The power to force a competent witness to testify, even if it’s against their will via subpoena.

Question 4

What types of witnesses are compellable?

Answer 4

All competent witnesses are compellable except for the criminal accused.

Question 5

If a witness is not competent, can they be compelled to testify?

Answer 5

Can’t be compelled to testify. can be forced to take the stand in court but not necessarily required to answer questions.

Question 6

An incompetent witness can’t testify despite how relevant it is. What rule is this?

Answer 6

Competency rule.

Question 7

What must be proved when dealing with a witness’ competence to testify?

Answer 7

2 main concepts:
1) Capacity:
Asks whether someone has the basic cognitive ability/mental facilities to behave as a witness.
-> question of threshold

2) Responsibility
Asks whether someone has intellectual ability and capacity to understand the importance of truth telling as a witness
-> question of capacity, if person understand oath/what it means to tell the truth

Question 8

What replaced all the common law rules about competency?

Answer 8

Canada Evidence Act.

Question 9

This act contains two competency regimes: one for children and one for adults.

Answer 9

Canadian Evidence Act

Question 10

When is competency of children established and when can it be disqualified?

Answer 10

At voir dire but can’t be disqualified there. Can cross and disqualify at trial.

Question 11

Who is considered a child for the purposes of the Canadian Evidence Act?

Answer 11

Anyone under the age of 14 at the time of trial.

Question 12

What does section 16.1(1) of the Canadian Evidence Act state about children.

Answer 12

Children are presumed competent to testify.

Question 13

What is the standard of capacity for children?

Answer 13

The ability to understand and respond to questions.

Question 14

What is the Marquard Standard?

Answer 14

It is a capacity standard with a low threshold that requires:
1) the ability to observe and interpret what happened
2) recollect it
3) and then be able to communicate it in an intelligible manner

Question 15

How does responsibility work for children witness testimonies?

Answer 15

Nobody is allowed to inquire into a child’s understanding of what it means to tell the truth.
Children don’t swear oaths or solemn affirmations -> simply promise to tell the truth and that reliability of the competency is satisfied

Question 16

Who is considered an adult as per the Canadian Evidence Act?

Answer 16

Anyone over 14 years of age is considered an adult.

Question 17

Can the competency of an adult be challenged?

Answer 17

usually not challenged unless there’s a significant intellectual impairment -> generally an expert report will be presented explaining the mental age of the person and would lead to issues of competency.

Question 18

What is the standard of capacity for adults?

Answer 18

The ability to communicate the evidence.

Question 19

What came out of the Dai Case?

Answer 19

Case about someone testifying with a mental disability.

If an adult with mental disability promises to tell the truth and they only need to have the ability to communicate evidence, nobody is allowed to inquire into the adult’s understanding of what it means to tell the truth (no cross-examination).

Can cross at trial in front of jury about their understanding of truth and lie