Alberta Law Reform Institute Discussion Report on Witness Competency

The Alberta Law Reform Institute (ALRI) has issued a Report for Discussion on Competence and Communication in the Alberta Evidence Act (AEA):

"On occasion, a court must determine whether a proposed witness is competent to give evidence. The question arises with child witnesses and may also arise for adults with cognitive impairment. Alberta legislation about competence has not kept pace with modern knowledge about children’s abilities, and fails to address adults with cognitive impairment. It also has a gap affecting witnesses who use alternative means of communication. This Report for Discussion contains preliminary recommendations for updating Alberta legislation to address these issues (...)"

"Significant reform surrounding the admissibility of children’s evidence has occurred both federally and in other provinces. Multiple law reform agencies (including ALRI) have recommended changes to the approach to children’s evidence, and substantial reform has also taken place in other common law jurisdictions. Despite this, the AEA provisions governing children’s evidence have remained essentially unchanged since 1910."

"The AEA approach to children’s evidence is based on the notion that children are inherently unreliable witnesses. However, modern psychological research has undermined these traditional assumptions. It is now widely accepted that many children are capable of providing appropriate and helpful information to a court, particularly if the court and counsel are aware of children’s linguistic and cognitive development and treat them appropriately."

"In contrast, and despite the express regulation of children’s competence, the AEA does not contain provisions regarding competence of adult witnesses. Adult witnesses are presumed competent unless their competence is challenged. If a competency inquiry is required with respect to an adult witness, the common law applies. If an adult is shown to be incapable of understanding the nature of an oath, the adult will be barred from giving evidence. It would be preferable to have a comprehensive set of rules regarding competence of all witnesses in order to promote consistency and avoid arbitrary distinctions between children and adults."