Types of Evidence – Types of Evidence – Viva VoceViva Voce

Our system is heavily reliant on oral Our system is heavily reliant on oral testimony which is the norm.testimony which is the norm.

Practice point, always try to find a Practice point, always try to find a witness who can speak directly to your witness who can speak directly to your

facts-in-issue.facts-in-issue.

General: Sopinka 13.1General: Sopinka 13.1

Subject to certain common law and Subject to certain common law and statutory exceptions:statutory exceptions: Every person is competent to give evidence in Every person is competent to give evidence in

any civil or criminal caseany civil or criminal case Further, any competent witness is compellable Further, any competent witness is compellable

through process of court (ie. subpoena or through process of court (ie. subpoena or equivalent)equivalent)

Subject to evidentiary privileges, any competent Subject to evidentiary privileges, any competent and compellable witness must answer any and compellable witness must answer any questions put to them and provide real evidence questions put to them and provide real evidence (assuming relevant and otherwise admissible)(assuming relevant and otherwise admissible)

Exceptions as to General Rule as Exceptions as to General Rule as to Competencyto Competency

By reason of certain disqualifying By reason of certain disqualifying rules, even persons with relevant and rules, even persons with relevant and direct knowledge may be precluded direct knowledge may be precluded from testifying.from testifying.

Two types of incompetency:Two types of incompetency: Status incompetency – who you are (ie. Status incompetency – who you are (ie.

married spouse in criminal matters).married spouse in criminal matters). Mental Incompetency (ie. lack of Mental Incompetency (ie. lack of

sufficient maturity in thought, language)sufficient maturity in thought, language)

At common law, only witnesses under oath At common law, only witnesses under oath may testify.may testify.

Persons over 14 are presumed to Persons over 14 are presumed to understand the nature of an oath.understand the nature of an oath.

The modern view of accepting the The modern view of accepting the obligation of an oath is construed to mean obligation of an oath is construed to mean that the witness understands the moral that the witness understands the moral obligation to tell the truth – a.k.a. the obligation to tell the truth – a.k.a. the “superadded” responsibility to tell the “superadded” responsibility to tell the truth in court.truth in court.

Affirmation is available to those who do not Affirmation is available to those who do not want to swear an oath: e.g. s. 14 C.E.A.want to swear an oath: e.g. s. 14 C.E.A.

There is no difference in law between There is no difference in law between evidence sworn on an oath, and that evidence sworn on an oath, and that affirmed – both are sworn evidence with the affirmed – both are sworn evidence with the consequent effects upon proof of perjury.consequent effects upon proof of perjury.

Note: every tribunal will swear your Note: every tribunal will swear your witnesses on an oath unless you ask for witnesses on an oath unless you ask for affirmation.affirmation.

Where Testimonial Capacity is in Where Testimonial Capacity is in Question – s. 16Question – s. 16

Relevant question under CEA: what is Relevant question under CEA: what is the age of your witness?the age of your witness?

If 14 plus – s. 16; if less than 14, s. If 14 plus – s. 16; if less than 14, s. 16.116.1

14 plus – s. 16 CEA14 plus – s. 16 CEA

Testimonial capacity (ability to take Testimonial capacity (ability to take an oath) presumed.an oath) presumed.

If challenged, the trier of law SHALL If challenged, the trier of law SHALL conduct a voir dire to determine:conduct a voir dire to determine:

(a) understanding of the nature of an (a) understanding of the nature of an oath;oath;

(b) ability to communicate the (b) ability to communicate the evidence.evidence.

14 plus14 plus

If you can do both, you will swear an If you can do both, you will swear an oath or affirmation.oath or affirmation.

14 plus14 plus

What does understanding an oath What does understanding an oath mean? That there is a general moral mean? That there is a general moral obligation to tell the truth in general obligation to tell the truth in general social conduct, and a higher social conduct, and a higher obligation to tell the truth in court. obligation to tell the truth in court.

The witness can understand it as the The witness can understand it as the threat of divine retribution, or the threat of divine retribution, or the practical effects of lying in a court of practical effects of lying in a court of law.law.

R. v. FletcherR. v. Fletcher 13.30 13.30

… … the important consideration …. When the important consideration …. When a judge has to decide whether a a judge has to decide whether a [witness] should properly be sworn, is [witness] should properly be sworn, is whether the [witness] has a sufficient whether the [witness] has a sufficient appreciation of the solemnity of the appreciation of the solemnity of the occasion, and the added responsibility occasion, and the added responsibility to tell the truth, which is involved in to tell the truth, which is involved in taking an oath, over and above the taking an oath, over and above the duty to tell the truth which is an duty to tell the truth which is an ordinary duty of normal social conduct.ordinary duty of normal social conduct.

14 plus14 plus

What does “ability to communicate the What does “ability to communicate the evidence” mean?evidence” mean?

A threefold test, the ability to:A threefold test, the ability to:

(a)(a) Perceive;Perceive;

(b)(b) Recollect;Recollect;

(c)(c) And communicate the recollection.And communicate the recollection.

14 plus14 plus The voir dire is held in front of the trier of fact.The voir dire is held in front of the trier of fact. Questioning is usually by the Court, but the Court Questioning is usually by the Court, but the Court

may direct the proponent counsel to conduct may direct the proponent counsel to conduct same.same.

Questioning is directed at the witnesses capacity Questioning is directed at the witnesses capacity to observe, recollect and communicate at the time to observe, recollect and communicate at the time of testimony, as opposed to the time of of testimony, as opposed to the time of observations relevant to the case at bar. CAPACITY observations relevant to the case at bar. CAPACITY IS DETERMINED AT THE TIME OF TESTIMONY.IS DETERMINED AT THE TIME OF TESTIMONY.

Questioning is directed to the general capacity for Questioning is directed to the general capacity for these functions, not the specific observations, these functions, not the specific observations, recollections and recall regarding the case at bar. recollections and recall regarding the case at bar. IOW, a witness may be testimonially competent, IOW, a witness may be testimonially competent, yet be completely unhelpful in resolving the facts yet be completely unhelpful in resolving the facts at issue.at issue.

14 plus14 plus

If one has the ability to communicate, but If one has the ability to communicate, but cannot understand the difference between cannot understand the difference between normal truth-telling and truth-telling in normal truth-telling and truth-telling in court, then they can still give evidence. It is court, then they can still give evidence. It is evidence given under s. 16(3), a “promise to evidence given under s. 16(3), a “promise to tell the truth.”tell the truth.”

After the trier of law determines a witness After the trier of law determines a witness can give evidence under a promise to tell can give evidence under a promise to tell the truth, the trier will exact that promise the truth, the trier will exact that promise from the witness in lieu of swearing the from the witness in lieu of swearing the witness in.witness in.

14 plus14 plus

A “promise to tell the truth” under s. A “promise to tell the truth” under s. 16(3) requires an understanding of 16(3) requires an understanding of the difference between a truth and the difference between a truth and lie, and the nature of a promise.lie, and the nature of a promise.

The mere fact that a witness testifies The mere fact that a witness testifies on a promise to tell the truth, rather on a promise to tell the truth, rather than under oath, does not mean the than under oath, does not mean the testimony ought to be afforded less testimony ought to be afforded less weight.weight.

13.3413.34

… … to satisfy the less stringent standards to satisfy the less stringent standards applicable to unsworn evidence, the applicable to unsworn evidence, the [witness] need only understand the duty to [witness] need only understand the duty to speak the truth in terms of everyday social speak the truth in terms of everyday social conduct. This can be established through a conduct. This can be established through a simple line of questioning directed to simple line of questioning directed to whether the [witness] understands the whether the [witness] understands the difference between the truth and a lie, difference between the truth and a lie, knows that it is wrong to lie, understands knows that it is wrong to lie, understands the necessity to tell the truth, and promises the necessity to tell the truth, and promises to do so.to do so.

13.15 13.15 R. v. Farley 16(3) CEAR. v. Farley 16(3) CEA

… … the capacity to perceive entails not the capacity to perceive entails not only an ability to perceive events as only an ability to perceive events as they occur, but also an ability to they occur, but also an ability to differentiate between that which is differentiate between that which is actually perceived and that which actually perceived and that which the person may have imagined, been the person may have imagined, been told by others, or otherwise have told by others, or otherwise have come to believe.come to believe.

Cont’dCont’d

Similarly, the capacity to remember Similarly, the capacity to remember refers to the person’s capacity to refers to the person’s capacity to maintain a recollection of his or her maintain a recollection of his or her actual perceptions of a prior event, actual perceptions of a prior event, and the ability to distinguish those and the ability to distinguish those retained perceptions from information retained perceptions from information provided to the person from other provided to the person from other sources, such as statements made to sources, such as statements made to the person by others.the person by others.

Cont’dCont’d

The capacity to communicate refers to the The capacity to communicate refers to the ability to understand questions and to ability to understand questions and to respond to them in an intelligible fashion.respond to them in an intelligible fashion.

The cognitive and communicative The cognitive and communicative components of the competence test found components of the competence test found in s. 16(3) refer to capacity, and not to the in s. 16(3) refer to capacity, and not to the proposed witness’ actual perception, proposed witness’ actual perception, recollection and narration of the relevant recollection and narration of the relevant events.events.

Cont’dCont’d

A person may have the capacity to perceive, A person may have the capacity to perceive, recall. And recall and yet be unable to recall. And recall and yet be unable to perform one or more of those functions in perform one or more of those functions in a given situation.a given situation.

… … a witness who genuinely has no a witness who genuinely has no recollection of the relevant events is not recollection of the relevant events is not thereby rendered incompetent unless that thereby rendered incompetent unless that inability to recall is a reflection of the inability to recall is a reflection of the absence of the capacity to recall.absence of the capacity to recall.

Cont’dCont’d

… … the cognitive and communicative the cognitive and communicative components of s. 16(3) set a relatively components of s. 16(3) set a relatively low threshhold for testimonial low threshhold for testimonial competence. Once the capacity to competence. Once the capacity to perceive, remember and recount is perceive, remember and recount is established, any deficiencies in a established, any deficiencies in a particular witness’s perception, particular witness’s perception, recollection or narration go to the weight recollection or narration go to the weight of that witness’s evidence and not to the of that witness’s evidence and not to the witness’s competence to testify.witness’s competence to testify.

14 plus CEA14 plus CEA

S. 16(4) if a witness cannot S. 16(4) if a witness cannot understand the nature of an oath, understand the nature of an oath, and does not have a testimonial and does not have a testimonial ability to communicate, shall NOT ability to communicate, shall NOT testify testify

14 plus CEA - burden14 plus CEA - burden

S. 16(5) a party who challenges the S. 16(5) a party who challenges the mental capacity of a proposed mental capacity of a proposed witness of 14 plus has the burden of witness of 14 plus has the burden of satisfying the court that there is an satisfying the court that there is an issue as to the capacity of the issue as to the capacity of the witnesswitness

Mental DisordersMental Disorders

Mental disorders which render one Mental disorders which render one incapable of interpreting observed incapable of interpreting observed events and/or communicating same events and/or communicating same can render one incompetent to can render one incompetent to testify.testify.

R. v. Hill (p. 868)R. v. Hill (p. 868)

The witness was an inmate of a The witness was an inmate of a mental hospital when he observed mental hospital when he observed the relevant event.the relevant event.

He believed spirits were around him He believed spirits were around him and talking to him.and talking to him.

The medical evidence indicated that The medical evidence indicated that his delusion did not affect his his delusion did not affect his memory and that in other aspects memory and that in other aspects he was perfectly rational.he was perfectly rational.

HillHill continued continued

Held: competent.Held: competent. If delusion does not significantly If delusion does not significantly

affect perception, memory or affect perception, memory or articulation, then competent.articulation, then competent.

What if proposed witness’ mental What if proposed witness’ mental condition affects his moral condition affects his moral

responsibility? Sopinka 13.13responsibility? Sopinka 13.13 A mental condition or belief which A mental condition or belief which

affects moral responsibility to tell the affects moral responsibility to tell the truth is not a defect which affects truth is not a defect which affects competency.competency.

In In R. v. Walsh, R. v. Walsh, proposed witness was proposed witness was a satanist.a satanist.

Trial judge: incompetent as he would Trial judge: incompetent as he would recognize no social responsibility to recognize no social responsibility to tell the truth.tell the truth.

Walsh: Walsh: Ont. C.A.Ont. C.A.

The Court of Appeal disagreed.The Court of Appeal disagreed. Held: a disposition to lie does not Held: a disposition to lie does not

disqualify one from testifying.disqualify one from testifying. Incompetency does not spring from a lack Incompetency does not spring from a lack

of moral responsibility.of moral responsibility. Moral defect goes to credibility only.Moral defect goes to credibility only. Since the witness understood he was Since the witness understood he was

subject to penal sanction for giving false subject to penal sanction for giving false evidence, he appreciated the duty of evidence, he appreciated the duty of speaking the truth in the relevant sense.speaking the truth in the relevant sense.

Communicative DeficienciesCommunicative Deficiencies

See s. 20 AEA, s. 6 CEA, allowing See s. 20 AEA, s. 6 CEA, allowing testimony in a manner that will testimony in a manner that will render their evidence intelligible, render their evidence intelligible, assuming capacity.assuming capacity.

Defects in a witness’s ability to Defects in a witness’s ability to communicate go to weight.communicate go to weight.

Other items that do not disqualifyOther items that do not disqualify

Interest or crime: s. 3 CEA (financial interest, Interest or crime: s. 3 CEA (financial interest, crime related to this matter or criminal past) – crime related to this matter or criminal past) – these are matters for the TOF.these are matters for the TOF.

AEA, s. 3:AEA, s. 3: Admission of witness with interest, etc.Admission of witness with interest, etc. 33(1)(1)  No person offered as a witness in an action   No person offered as a witness in an action

shall be excluded from giving evidence by reason shall be excluded from giving evidence by reason of any alleged incapacity from crime or interest.of any alleged incapacity from crime or interest.

(2)(2)  A person offered as a witness shall be   A person offered as a witness shall be admitted to give evidence notwithstanding that admitted to give evidence notwithstanding that the person has an interest in the matter in the person has an interest in the matter in question or in the event of the action or that the question or in the event of the action or that the person has been previously convicted of a crime person has been previously convicted of a crime or offence.or offence.

Under 14 – s. 16.1 CEAUnder 14 – s. 16.1 CEA Presumption of testimonial capacity: s. 16.1(1)Presumption of testimonial capacity: s. 16.1(1) Ban on oath or affirmationBan on oath or affirmation Only test: their evidence SHALL be received if Only test: their evidence SHALL be received if

they are able to “understand and respond to they are able to “understand and respond to questions”: s. 16.1(3)questions”: s. 16.1(3)

Burden on opponent: s. 16.1(4) (that there is an Burden on opponent: s. 16.1(4) (that there is an issue as to capacity)issue as to capacity)

Voir dire solely on the issue of ability to Voir dire solely on the issue of ability to understand and respond to questions: s. 16.1(5)understand and respond to questions: s. 16.1(5)

Prior to giving evidence, trier of law extracts a Prior to giving evidence, trier of law extracts a promise to tell the truth: s. 16.1(6)promise to tell the truth: s. 16.1(6)

Court now statutorily forbidden to ask questions Court now statutorily forbidden to ask questions in the voir dire about the nature of the promise to in the voir dire about the nature of the promise to tell the truth: s. 16.1(7)tell the truth: s. 16.1(7)

Weight of s. 16.1 evidenceWeight of s. 16.1 evidence

s. 16.1(8) the evidence “shall have the s. 16.1(8) the evidence “shall have the same effect as if it were taken under same effect as if it were taken under oath”oath”

Counsel to ask for instruction to TOF?Counsel to ask for instruction to TOF?

AEA – different!AEA – different!

Evidence of child Evidence of child 1919(1)(1)  In a legal proceeding where a child of tender   In a legal proceeding where a child of tender

years is offered as a witness and the child does not, years is offered as a witness and the child does not, in the opinion of the judge, justice or other in the opinion of the judge, justice or other presiding officer, understand the nature of an oath, presiding officer, understand the nature of an oath, the evidence of the child may be received though the evidence of the child may be received though not given on oath if, in the opinion of the judge, not given on oath if, in the opinion of the judge, justice or other presiding officer, the child is justice or other presiding officer, the child is possessed of sufficient intelligence to justify the possessed of sufficient intelligence to justify the reception of the evidence and understands the duty reception of the evidence and understands the duty of speaking the truth.of speaking the truth.

(2)(2)  No case shall be decided on the evidence unless   No case shall be decided on the evidence unless the evidence is corroborated by other material the evidence is corroborated by other material evidence.evidence.

Diffs b/w CEA and AEA re: under Diffs b/w CEA and AEA re: under 14’s?14’s?

Oath allowed under AEA.Oath allowed under AEA. Determination of understanding of Determination of understanding of

truth v. lie and promise to tell truth truth v. lie and promise to tell truth allowed under AEA.allowed under AEA.

Corroboration requirement for Corroboration requirement for “promise” evidence under AEA.“promise” evidence under AEA.

Evidence in action by lunatic, etc.Evidence in action by lunatic, etc.

12   In an action by or against a lunatic so 12   In an action by or against a lunatic so found or by or against an inmate of a found or by or against an inmate of a mental health facility, or a person who mental health facility, or a person who from unsoundness of mind is incapable of from unsoundness of mind is incapable of giving evidence, an opposed or interested giving evidence, an opposed or interested party shall not obtain a verdict, judgment party shall not obtain a verdict, judgment or decision on that party’s own evidence or decision on that party’s own evidence unless that party’s evidence is unless that party’s evidence is corroborated by other material evidence.corroborated by other material evidence.

GenerallyGenerally

General Rule: all witnesses are competent.General Rule: all witnesses are competent. Competence is a question of law for the Competence is a question of law for the

trier of law.trier of law. Time to raise issue is BEFORE the swearing Time to raise issue is BEFORE the swearing

of the witness, although the objection can of the witness, although the objection can be raised as soon as there appears a be raised as soon as there appears a manifestation of incompetency.manifestation of incompetency.

Once issue raised, Court to be satisfied of Once issue raised, Court to be satisfied of requisite test to Standard of Proof: Balance requisite test to Standard of Proof: Balance of Probabilities, regardless of who calls the of Probabilities, regardless of who calls the witness.witness.

CompellabilityCompellability

In general, all competent witnesses In general, all competent witnesses are compellable, with exceptions are compellable, with exceptions such as those charged with offences, such as those charged with offences, and their legally-married spouses in and their legally-married spouses in criminal matters.criminal matters.

Accused Only - CriminalAccused Only - Criminal S. 4(1) accused are competent for the S. 4(1) accused are competent for the

defence.defence. Under the common law, and constitutional Under the common law, and constitutional

protections, an accused is Not a compellable protections, an accused is Not a compellable witness for the Crown.witness for the Crown.

What that means, is that an accused decides What that means, is that an accused decides if he is going to take the stand, he cannot be if he is going to take the stand, he cannot be compelled to do so by the Court or Crown.compelled to do so by the Court or Crown.

Once he decides to take the stand, he is, of Once he decides to take the stand, he is, of course, subject to cross.course, subject to cross.

If he does not take the stand, his failure to do If he does not take the stand, his failure to do so cannot be the comment of the Crown or so cannot be the comment of the Crown or Judge s. 4(6) CEA.Judge s. 4(6) CEA.

Co-Accused – Jointly TriedCo-Accused – Jointly Tried

Cannot be compelled to take the Cannot be compelled to take the stand by the Court, Crown or co-stand by the Court, Crown or co-accused, but nothing prevents accused, but nothing prevents adverse comments by counsel for adverse comments by counsel for the co-accused for said failure.the co-accused for said failure.

Co-Accused – Separately TriedCo-Accused – Separately Tried

What makes an accused non-compellable is What makes an accused non-compellable is that his trial is taking place at the time. If that his trial is taking place at the time. If co-accused are separately tried (or one or co-accused are separately tried (or one or more are not charged), they can be more are not charged), they can be compelled against each other – ie. the one compelled against each other – ie. the one who is not on trial is called against the one who is not on trial is called against the one who is.who is.

This is subject to Charter scrutiny, and the This is subject to Charter scrutiny, and the “derivative use immunity” rule. Further, s. 5 “derivative use immunity” rule. Further, s. 5 of the CEA, and s. 13 of the Charter prevent of the CEA, and s. 13 of the Charter prevent that evidence from being used to that evidence from being used to incriminate the witness in his own trial.incriminate the witness in his own trial.

Parallel Civil Proceedings: 13.57Parallel Civil Proceedings: 13.57

General Rule: the fact that criminal General Rule: the fact that criminal proceedings are ongoing, and that the proceedings are ongoing, and that the accused is not compellable at the instance of accused is not compellable at the instance of the Crown, does not affect the compellability the Crown, does not affect the compellability of the same accused in the related civil of the same accused in the related civil matter.matter.

There is a discretion to stay the civil There is a discretion to stay the civil proceedings in the civil court, but this is only proceedings in the civil court, but this is only to be exercised in extraordinary or exceptional to be exercised in extraordinary or exceptional circumstances, ie. where the refusal of a stay circumstances, ie. where the refusal of a stay would affect the fairness of the criminal trial.would affect the fairness of the criminal trial.

NoteNote

There is no equivalent of “taking the There is no equivalent of “taking the fifth [amendment]” in Canadian law: fifth [amendment]” in Canadian law: s. 5 CEA, s. 6 AEA.s. 5 CEA, s. 6 AEA.

We force answers to questions, but We force answers to questions, but offer use immunity of the results.offer use immunity of the results.

R. v. AmwayR. v. Amway

Note: 13.47. Non-compellability of Note: 13.47. Non-compellability of accused at the instance of the Crown accused at the instance of the Crown provides no protection to the provides no protection to the directors or other employees or directors or other employees or management of corporations who are management of corporations who are charged.charged.

Spousal Immunity in Criminal Spousal Immunity in Criminal CasesCases

General common law rule: legally-General common law rule: legally-married spouses incompetent for the married spouses incompetent for the prosecution. This is a right of the prosecution. This is a right of the ACCUSED. He can waive it, and call ACCUSED. He can waive it, and call the witness himself: s. 4(1). the witness himself: s. 4(1). Therefore, legally-married spouses Therefore, legally-married spouses are competent for the defence, and are competent for the defence, and then, once on the stand, subject to then, once on the stand, subject to cross.cross.

Spousal Immunity - ExceptionsSpousal Immunity - Exceptions

It is open for the Crown to prove It is open for the Crown to prove “irreconcilable separation” and then “irreconcilable separation” and then be able to call the spouse to the be able to call the spouse to the stand: stand: Salituro.Salituro.

Competence and compellability are Competence and compellability are determined at the time of trial. To be determined at the time of trial. To be proven on a Balance of Probabilities.proven on a Balance of Probabilities.

Spousal Immunity - NotesSpousal Immunity - Notes

If the parties were once married, but If the parties were once married, but divorced at the time of trial, the rule divorced at the time of trial, the rule does not apply.does not apply.

If the parties were married AFTER the If the parties were married AFTER the events, but BEFORE the spouse is events, but BEFORE the spouse is called to the stand, the status called to the stand, the status incompetence rule applies: incompetence rule applies: Hawkins.Hawkins.

Common law spouses do not obtain Common law spouses do not obtain this protection.this protection.

Spousal Immunity – Lifted in certain Spousal Immunity – Lifted in certain circumstancescircumstances

Where the allegations involved in the Where the allegations involved in the criminal case involve actual or threatened criminal case involve actual or threatened violence against the spouse or her violence against the spouse or her children, the spouse is competent.children, the spouse is competent.

THIS IS A COMMON LAW EXCEPTION.THIS IS A COMMON LAW EXCEPTION. 13.61 “where the subject matter of the 13.61 “where the subject matter of the

charge against the accused is a threat of charge against the accused is a threat of injury to the person, liberty or health of injury to the person, liberty or health of the spouse” Note that the charge need not the spouse” Note that the charge need not make the allegation, as long as the make the allegation, as long as the evidence does.evidence does.

Statutory ExceptionsStatutory Exceptions

See s. 4(2) and 4(4) CEASee s. 4(2) and 4(4) CEA 4(2) a list of a variety of offences where 4(2) a list of a variety of offences where

the common law rule is set aside – the common law rule is set aside – mostly sexual offences regardless of mostly sexual offences regardless of age of the victim – spouse competentage of the victim – spouse competent

4(4) where the victim is under 14, and 4(4) where the victim is under 14, and the charge is murder, manslaughter, the charge is murder, manslaughter, assault – even if not related – spouse assault – even if not related – spouse competent for prosecutioncompetent for prosecution

Complicating Factor – Even Where Complicating Factor – Even Where Competent, Marital Privilege Competent, Marital Privilege

AppliesAppliess. 4(3) CEAs. 4(3) CEA

No husband is compellable to disclose No husband is compellable to disclose any communications made to him by any communications made to him by his wife during their marriage, and his wife during their marriage, and no wife is compellable to disclose any no wife is compellable to disclose any communication made to her by her communication made to her by her husband during their marriage.husband during their marriage.

????????

Discussion of difference between Discussion of difference between competence versus ability to assert competence versus ability to assert privilege over privilege over marital marital communications.communications.

Marital status incompetence is a right of the Marital status incompetence is a right of the accused to waive or not where it applies.accused to waive or not where it applies.

Status incompetence is determined at the Status incompetence is determined at the time the witness is called to testify, not time the witness is called to testify, not when the facts at issue occurred.when the facts at issue occurred.

Marital privilege as to marital Marital privilege as to marital communications is the right OF THE communications is the right OF THE WITNESS SPOUSE to assert, or not.WITNESS SPOUSE to assert, or not.

Privilege is determined at the TIME the Privilege is determined at the TIME the utterance is made – ie. were they made in utterance is made – ie. were they made in marital confidence (best view, there are marital confidence (best view, there are different views in the jurisprudence).different views in the jurisprudence).

AND SO …AND SO …

A spouse may be competent for the A spouse may be competent for the Crown because of a common law or Crown because of a common law or statutory exception, or status statutory exception, or status incompetence may be waived by the incompetence may be waived by the defence. In ANY of those cases, defence. In ANY of those cases, marital privilege can still be asserted marital privilege can still be asserted by the witness over marital by the witness over marital communications.communications.

CIVIL (where Alberta has CIVIL (where Alberta has jurisdiction)jurisdiction)

General rule, in civil matters, all General rule, in civil matters, all parties and their spouses are parties and their spouses are competent and compellable for both competent and compellable for both sidessides

e.g. Plaintiff calls Defendant or e.g. Plaintiff calls Defendant or Defendant’s wife to the standDefendant’s wife to the stand

AEAAEA

Competency as witnesses Competency as witnesses 44(1)(1)  The parties to an action and the persons   The parties to an action and the persons

on whose behalf the action is brought, on whose behalf the action is brought, instituted, opposed or defended are, except instituted, opposed or defended are, except as otherwise provided in this Act, competent as otherwise provided in this Act, competent and compellable to give evidence on behalf and compellable to give evidence on behalf of themselves or of any of the parties.of themselves or of any of the parties.(2)(2)  The spouses and adult interdependent   The spouses and adult interdependent partners of the parties and persons partners of the parties and persons mentioned in subsection (1) are, except as mentioned in subsection (1) are, except as otherwise provided in this Act, competent otherwise provided in this Act, competent and compellable to give evidence on behalf and compellable to give evidence on behalf of any of the parties.of any of the parties.

Exception – Regulatory Exception – Regulatory Prosecutions – Common Law rule Prosecutions – Common Law rule re: incompetent for Crown appliesre: incompetent for Crown applies

s. 4(3)s. 4(3)  Nothing in this section makes   Nothing in this section makes the defendant in a prosecution under the defendant in a prosecution under an Act of the Legislature compellable an Act of the Legislature compellable to give evidence for or against to give evidence for or against himself or herself.himself or herself.

Marital Privilege: A Civil Rule tooMarital Privilege: A Civil Rule too

8   A spouse or an adult 8   A spouse or an adult interdependent partner is not interdependent partner is not compellable to disclose any compellable to disclose any communication made to him or her communication made to him or her by the other spouse or adult by the other spouse or adult interdependent partner during the interdependent partner during the marriage or adult interdependent marriage or adult interdependent relationship.relationship.

NoteNote

““Adult Interdependent Partner” wider Adult Interdependent Partner” wider than “husband” and “wife” under than “husband” and “wife” under CEACEA

However, there is no status However, there is no status incompetenceincompetence

BUT, because marital privilege exists, BUT, because marital privilege exists, and applies to AIP’s, the status and applies to AIP’s, the status incompetence is smaller, but the incompetence is smaller, but the privilege is widerprivilege is wider