Canada Evidence Act

Marginal note: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.

• 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:No questions regarding understanding of promise

  (3.1) A person referred to in subsection (3) shall not 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: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.