Competence of Children and Witnesses of Diminished Capacity

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2015. (Rev. # 95930)

General Principles

There is no minimum age to give testimony.

At common law, evidence given by children was considered "inherently unreliable and therefore to be treated with special caution."[1] Similarly, previous versions of the Criminal Code, Canada Evidence Act, and Young Offenders Act required that a child's evidence be corroborated.[2]

These assumptions have since been recognized as stereotypes.[3]

Section 16 of the Canada Evidence Act outlines the competency requirements for persons 14 years of age or older. In 2005, s. 16.1 was added to outline the competency requirements of persons under 14 years of age.

  1. ↑ R v RW, 1992 CanLII 56 (SCC), [1992] 2 SCR 122, per McLachlin J
  2. ↑ In 1988, s. 586 of Code requiring corroboration was removed. See comments in R v WR
    See A History of Canadian Sexual Assault Legislation 1900-2000
  3. ↑ R v Find, 2001 SCC 32 (CanLII), [2001] 1 SCR 863, per McLachlin CJ, at paras 102, 103

Challenging Mental Capacity of Children Age 14 and Above

Under s. 16(1) the mental capacity that renders a child age 14 and above competent to testify may be challenged.

Witness whose capacity is in question

16 (1) If a proposed witness is a person of fourteen years of age or older 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 communicate the evidence.
Testimony under oath or solemn affirmation

(2) A person referred to in subsection (1) [when witness whose capacity is in question] who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

Testimony on promise to tell truth

(3) A person referred to in subsection (1) [when witness whose capacity is in question] who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.

Inability to testify

(4) A person referred to in subsection (1) [when witness whose capacity is in question] who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.

Burden as to capacity of witness

(5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.
R.S., 1985, c. C-5, s. 16; R.S., 1985, c. 19 (3rd Supp.), s. 18; 1994, c. 44, s. 89; 2005, c. 32, s. 26.
[annotation(s) added]

– CEA (CanLII), (DOJ)

Note up: 16(1), (2), (3), (4), and (5)

Where a challenge is made is mandatory that an inquiry be made.[1] The inquiry will seek to determine whether:

  1. the witness "understands the nature of an oath or a solemn affirmation", and
  2. the witness "is able to communicate the evidence."

In the voir dire, "the Crown must decide whether to call the child or not." If the child is not called and a hearsay statement is tendered, "the judge must determine whether the child could not have testified, making it necessary to call substitute evidence."[2]

If the witness does not understand the nature of an oath, then the witness may still be competent under s. 16(3) if it can be established that:[3]

  1. the witness has the ability to promise to tell the truth; and
  2. the witness has the ability to communicate the evidence.

A failure to obtain a promise to tell the truth is a procedural error that may be cured by applying the curative provisio under s. 686(1)(b)(iv).[4]

There is no strict formula for satisfying s. 16, but there must be an undertaking to tell the truth.[5]

An inquiry under s. 16 should take place in front of the jury, but where it may be prejudicial it can be done without the jury.[6]

A child who simply states she understands what it means to tell the truth and says she is capable of telling the truth does not satisfy s. 16(3).[7]

A failure of the part of a preliminary inquiry judge to follow s.16(3) results in a loss of jurisdiction.[8]

The judge cannot make it a prerequisite under s. 16 to determine if the child witness has a recollection of the events at issue before receiving it.[9]


  1. ↑ R v Ferguson (L.D.), 1996 CanLII 8409 (BC CA), 112 CCC (3d) 342, per Finch JA, at p. 358 [CCC]
  2. ↑ R v Rockey, 1996 CanLII 151 (SCC), [1996] 3 SCR 829, per Sopinka J
  3. ↑ Rockey, ibid., per McLachlin J, at p. 493 [CCC]
    R v Farley (A.W.), 1995 CanLII 3501 (ON CA), 99 CCC (3d) 76, per Doherty JA
  4. ↑ R v Peterson, 1996 CanLII 874 (ON CA), 106 CCC (3d) 64, per Osborne JA, at paras 39 to 42
  5. ↑ R v Wilson (W.M.), 1995 CanLII 8899 (NS CA), 38 CR (4th) 209, per Freeman JA , at para 24
  6. ↑ R v RJB, 2000 ABCA 103 (CanLII), 33 CR (5th) 166, per Hetherington JA , at para 11
  7. ↑ RJB, ibid., at paras 7, 8
  8. ↑ R v Nitsiza, 2001 NWTSC 34 (CanLII), 7 WWR 608, per Vertes J , at para 10
  9. ↑ R v Marquard, 1993 CanLII 37 (SCC), [1993] 4 SCR 223, per McLachlin J ("necessary to determine in advance that the child perceived and recollects the very events at issue in the trial, as a condition of ruling that his or her evidence be received. That is not required of adult witnesses, and should not be required for children.")

Competency of Children Under the Age of 14

In 2006, section 16.1 of the CEA added to create a presumption for child witnesses under 14 "to have the capacity to testify."[1] There is no need for the child to take solemn oath or affirmation. (16.1(2))

There are only two requirements that need to be met before a child witness under 14 may testify:

  1. the child must be able to "understand and respond to questions"[2]
  2. the court shall "require [the child] to promise to tell the truth" [3]

Section 16.1(6) does not require that the judge explicitly ask the child whether he or she promises to tell the truth. It is only necessary that the evidence show that the "witness has clearly committed to tell the truth."[4]

Person under fourteen years of age

16.1 (1) A person under fourteen years of age is presumed to have the capacity to testify.
[omitted (2)]

Evidence shall be received

(3) The evidence of a proposed witness under fourteen years of age shall be received if they are able to understand and respond to questions.

[omitted (4), (5), (6), (7) and (8)]
2005, c. 32, s. 27.

– CEA (CanLII), (DOJ)

Note up: 16.1(1) and (3)

  1. ↑ see 16.1 (1)
  2. ↑ see 16.1(3)
  3. ↑ see 16.1 (6)
  4. ↑ R v CCF, 2014 ONCA 327 (CanLII), per curiam

Form of Promise

Person under fourteen years of age

16.1
[omitted (1)]

No oath or solemn affirmation

(2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation.
[omitted (3), (4) and (5)]

Promise to tell truth

(6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.
[omitted (7) and (8)]
2005, c. 32, s. 27.

– CEA (CanLII), (DOJ)

Note up: 16.1(2), (4), (5), (7), and (8)

Challenging Mental Capacity

Section 16.1 addresses the competency of a child under the age of 14 to testify.

Person under fourteen years of age

16.1
[omitted (1), (2) and (3)]

Burden as to capacity of witness

(4) A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions.

Court inquiry

(5) If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.
[omitted (6)]

Understanding of promise

(7) No proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.

Effect

(8) For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath.
2005, c. 32, s. 27.

– CEA (CanLII), (DOJ)

Note up: 16.1(4), (5), (7), and (8)

A person under the age of 14 is presumed competent to testify (s. 16.1(1)). The burden is on the challenger to prove that the child:

  1. cannot understand and respond to simple questions; or,
  2. cannot promise to tell the truth (16.1(6)).

Credibility and Reliability

See also Analyzing Testimony#Credibility_of_Children
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