An aging population brings with it more older Canadians involved in the court system.  Some challenges with having older witnesses testify at trial may include:

• memory impairments (almost 40% of people over age 65),
• a decline in hearing (47% of people age 60-79),
• irreversible vision loss (25% of people by age 75),
• mobility issues (more than 25% of people by age 75), and
• dementia (at least 90% of people with dementia are over age 65).[1]

Add to this the method in which evidence at trial is elicited – through the adversarial process of examination and cross-examination, with the witness sitting alone, apart and elevated in the courtroom, which conditions make witnesses feel uncomfortable and intimidated – and the result is less accurate testimony.

Some solutions for our older witnesses include various ways to minimize court appearances, including examining witnesses for discovery at their homes, allowing them to attend pre-trial or trial by telephone or videoconference, and allowing hearsay statements made out of court to be admitted at trial. Another very helpful option for the elderly and/or infirm is to avoid delay by taking trial testimony in advance of the trial. In Ontario, Rule 36 of the Rules of Civil Procedure allows the parties to examine a witness before trial (often video-taped), which examination can be used at trial in the place of in-person oral testimony. If the parties don’t agree on the issue, the party that wants to proceed with the Rule 36 examination would need to bring a motion seeking a court order to this effect. When deciding whether or not to allow a Rule 36 examination, the court must take into account various considerations, including:

• the convenience of the person whom the party seeks to examine;
• the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness;
• the possibility that the person will be beyond the jurisdiction of the court at the time of the trial;
• the expense of bringing the person to the trial; and
• whether the witness ought to give evidence in person at the trial.

Rule 36 examinations certainly seem to be in keeping with the times. With the long-overdue technological strides made in our court system as a result of the COVID-19 pandemic, virtually every litigation step is now being conducted virtually (including examinations, mediations, pre-trials and trials). With this trend expected to continue after the pandemic has ended, I would imagine that we will see fewer disputes over the issue of whether or not a Rule 36 examination should proceed.

For a more comprehensive commentary on the issue of accommodating older witnesses, I refer you to the paper in the footnote below, from which I have taken just a sampling of high points in this blog.

Thanks for reading and have a great day,

Natalia Angelini

[1] Obtained from Helene Love’s paper, Seniors on the stand: accommodating older witnesses in adversarial trials, The Canadian Bar Review (Vol. 97, 2019, No. 2)