Canada Evidence Act (R.S.C., 1985, c. C-5)

Act current to 2014-09-01 and last amended on 2014-04-01. Previous Versions

Marginal note:Witness whose capacity is in question
  •  (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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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 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.
Marginal note:Person under fourteen years of age
  •  (1) A person under fourteen years of age is presumed to have the capacity to testify.

  • Marginal note:No oath or solemn affirmation

    (2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation.

  • Marginal note:Evidence shall be received

    (3) The evidence of a proposed witness under fourteen years of age shall be received if they are able to understand and respond to questions.

  • Marginal note:Burden as to capacity of witness

    (4) A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions.

  • Marginal note:Court inquiry

    (5) If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.

  • Marginal note:Promise to tell truth

    (6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.

  • Marginal note:Understanding of promise

    (7) No proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.

  • Marginal note:Effect

    (8) For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath.

  • 2005, c. 32, s. 27.