Canada recognizes the difficulties with obtaining competent and compellable witnesses. As a result, the nation passed the Evidence Act to handle the problem. The Act clearly defines a competent witness and an incompetent witness, as well as who can be compelled to speak in court and who cannot. This essay defines compellable and competent witnesses, provides examples for each group, and makes it clear who is excluded from each.
A competent witness is someone who can pay attention, remember details, and effectively convey information during the court proceedings. (Brockman and Gordon 288). According to the Canadian Evidence Act, everyone is assumed to be competent if their evidence or information is pertinent to the court case. However, there are some exceptions to the rules of a competent witness. These include children of tender ages. According to Bette, Cynthia, and Gail, a child under 14 years is presumed incompetent unless h/she can answer and respond to questions (218-219).
On the other hand, a compellable witness refers to any competent person (Lusty 3-4). All witnesses are presumed compellable unless the challenger establishes their incompetence. The Canadian Evidence Act allows the court to compel a witness to appear in court if the person can give relevant material evidence in the court process. However, there are some exceptions to the rules of a compellable witness. These include the spouse of the person accused (Government of Canada para. 1-3). Although the Act states that an individual who is competent is also compellable to testify in court, a spouse is deemed not compellable but a spouse has a natural duty to protect the other spouse under whatever circumstance. Therefore, the state should not compel him/her to testify against the partner.
In a nutshell, the Canadian Evidence Act presumes all witnesses competent and compellable unless the court proves otherwise. However, the Act exempts children under 14 years and spouse from the category of competent and compellable witnesses respectively.
Works Cited
Bette L. Bottoms, Cynthia J. Najdowski, and Gail S. Goodman. Children as Victims, Witnesses, and Offenders: Psychological Science and the Law, 2009. New York: Guilford Press. Print.
Brockman, Joan and Gordon V. Rose. Canadian Criminal Procedure and Evidence for the Social Sciences. Scarborough, Ont: Nelson Thomson Learning, 2001. Print.
Government of Canada. Canada Evidence Act R.S.C., 1985, c. C-5. Justice Law Website, 1 Aug. 2015, http://laws-lois.justice.gc.ca/eng/acts/C-5/page-1.html. Accessed 16 June 2017.
Lusty, David. "Is There a Common Law Privilege against Spouse-incrimination." UNSW Law Journal 27.1. (2004): 1-41.
