Witness whose capacity is in question 16. (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine (a) whether the person understands the nature of an oath or a solemn affirmation; and (b) whether the person is able to communicate the evidence. Testimony under oath or solemn affirmation (2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation. Testimony on promise to tell truth (3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth. Inability to testify (4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify. Burden as to capacity of witness (5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity (Balance of Probabilities) of the proposed witness to testify under an oath or a solemn affirmation. R.S., 1985, c. C-5, s. 16; R.S., 1985, c. 19 (3rd Supp.), s. 18; 1994, c. 44, s. 89; 2005, c. 32, s. 26. Person under fourteen years of age 16.1 (1) A person under fourteen years of age is presumed to have the capacity to testify. No oath or solemn affirmation
Ruling: Held (LeBel and Fish JJ. dissenting): The appeals should be allowed and the convictions restored. R. v. Ratten [1971] JCPC Out of court statements are not hearsay if they show the state of mind of the declarant and have probative value for the trial. Hearsay only arises when words are relied on to establish some fact Facts: Accused is convicted of the murder of his wife. Accused alleges that he shot her accidentally while cleaning his gun. There was a phone call made out of the house at the time of the death. According to the operator, the wife was hysterical and sobbing, trying to phone the police. She then hung up. Issue: Is this hearsay? Discussion: The mere fact that evidence of a witness contains words spoken by another person does not make it hearsay. Hearsay only arises when these words are relied on to establish some fact The fact that a call was made, and that the caller was hysterical establishes the fact that she was in a state of fear. This is admissible evidence of the state of mind. This has probative value, as it adds weight to the theory that the shot was not accidental. Ruling: Appeal dismissed. Exception to the Hearsay Rule: Principled Approach The law has come to recognize that the traditional hearsay exceptions were driven by two fundamental principles: Necessity. Reliability. This was originally set out in R. v. Khan and R. v. Smith. R. v. Khan [1990] 2 S.C.R. 531 Establishes the rules of Hearsay and the use of children as witnesses in court. The Court developed the “principled approach” to hearsay In this case, and subsequently in , , , , and finally, , the Court developed the “principled approach” to hearsay, where hearsay statements can be admitted if they are sufficiently reliable and necessary. At trial, the judge held that the child was not to give unsworn testimony and that he would not admit the statements made by the child to her mother about the assault as it was hearsay and could not fall into the “spontaneous declaration” exception as it was not contemporaneous. On the basis of this finding, Khan was acquitted. On appeal, the Court of Appeal found that the trial judge had been too strict in the consideration of both testimony and the hearsay. The acquittal was overturned and a new trial ordered.