Alberta’s child witness laws outdated, report says
A legal institute is calling on the province to change what it says are outdated laws for determining the competency of child witnesses.
The recommendations, made in a report published in January by the Alberta Law Reform Institute, would update sections of the Alberta Evidence Act that have been in place for more than a century, said Laura Buckingham, the report’s author and counsel for the institute, in an interview earlier this month.
“The sections we’re looking at here are more than 100 years old and they haven’t kept pace with current knowledge or society,” she said.
The act only applies in civil or provincial cases — criminal cases are covered by the Canada Evidence Act. Buckingham said that unlike Alberta’s law, the federal legislation has been updated over the years to keep pace with modern understanding of children’s psychology, abilities and special needs.
One of the main problems with the current test for determining a child’s competency as a witness is whether they understand what an oath is, Buckingham said.
“The problem is that an oath is historically a religious concept, so testing a child on whether or not they understand an oath can get into religious beliefs and a lot of personal issues that are really irrelevant to whether or not they can communicate their evidence,” Buckingham said.
The 12 recommendations also delve into how adults with cognitive challenges are tested for competency. Unlike children, adults are presumed to be competent witnesses, but they can be subject to competency testing if they have a condition such as dementia or an intellectual disability.
The report proposes that adults with cognitive difficulties and children of any age should be presumed competent to give evidence unless it’s found that they are unable to understand and answer questions.
The report also recommends that witnesses who have challenges communicating verbally be entitled to communicate in any manner that is intelligible.
Though it’s relatively rare that a child is called to testify in civil cases, it does happen, and Buckingham said she’s hopeful the province takes note of the recommendations.
Minister of justice spokeswoman Veronica Jubinville said in an email that staff from the minister’s office met with members from the institute, and that the findings are being reviewed.