Alberta Law Reform Institute publishes Report on Competence and Communication in the Alberta Evidence Act

19 March 2018

By Valerie Le Blanc

The Alberta Law Reform Institute (ALRI) has published its final report on recommendations to reform the Alberta Evidence Act “to facilitate the reception of evidence from children, adults with cognitive impairment, and witnesses who use alternative means of communication.”

As ALRI notes,

On occasion, a court must determine whether a proposed witness is credible or competent to give evidence. The question arises with child witnesses, and may also arise for adults with cognitive impairment. Proposed witnesses can be subject to intrusive and confusing questioning that has little to do with their ability to tell the truth. 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.

ALRI’s Report on Competence and Communication in the Alberta Evidence Act (project page) examines the history of the Alberta Evidence Act, and specifically sections 19 and 20 on the rules for witnesses with special circumstances. The report continues with a summary of how children’s evidence has been treated at common law, followed by discussion on the approaches to establishing competency to give evidence, formalities, weighing of children’s evidence and witnesses with communication disabilities.

The report notes that the provisions “have remained essentially unchanged since the first version of the Act was adopted in 1910” with “almost no reported decisions considering them.” Although an earlier recommendation was made in ALRI’s 1982 report Evidence and Related Subjects: Specific Proposals for Alberta Legislation to permit a court to accept uncorroborated evidence from an unsworn child, it was not implemented.

The report makes 12 recommendations for reform to the Alberta Evidence Act, including:

  • A presumption that a child of any age is competent to give evidence;
  • No prohibition against a child or an adult with cognitive impairment from swearing an oath;
  • Special rules for children’s evidence should apply to children under the age of 14;
  • Enabling witnesses with a disability affecting their communication to communicate evidence in any manner that is intelligible; and
  • Abolishment of the requirement for corroboration of a child’s unsworn evidence.

The report’s recommendations are intended to “bring Alberta’s legislation up-to-date and bring it into better alignment with the equivalent federal legislation.”

For more information, view the project page here.

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