On occasion, a court must determine whether a proposed witness is competent to give evidence. The question arises with child witnesses and may also arise for adults with cognitive impairment. Alberta legislation reflects outdated assumptions about children’s abilities and fails to address adults with cognitive impairment. It also has a gap affecting witnesses who use alternative means of communication. Other Canadian jurisdictions have already reformed legislation to address these issues.
The Alberta Law Reform Institute (ALRI) recommends reform to facilitate the reception of evidence from children, adults with cognitive impairment, and witnesses who use alternative means of communication. These reforms will bring Alberta’s legislation up-to-date and bring it into better alignment with the equivalent federal legislation. The report discusses the effect these reforms would have on evidence by affidavit, at questioning, before a tribunal, or before a court.