Imagine a child in a courtroom, brought there to testify. Does the court ask that child to swear an oath to God that he or she will tell the truth, just as adult witnesses do?
Perhaps. But wait. At what age can a child comprehend the abstract connection between telling the truth and answering to God? What if the child doesn’t believe in God? How has thinking on this changed since the late 1980s, when children were first widely allowed to testify in Canadian courtrooms?
That’s just one scenario the Alberta Law Reform Institute (ALRI) — housed at the University of Alberta’s Law Centre — has grappled with over the past two years, as it studied how to update The Alberta Evidence Act.
The Act covers such issues as who is capable of providing evidence in courtrooms, how it’s presented and how to accommodate people with challenges related to their language, their mental capacity and their age, among other variables.
“The Alberta Evidence Act was out of sync with The Canada Evidence Act’s approach to children’s testimony in court,” said Sandra Petersson, executive director of ALRI, which is celebrating its 50th anniversary in 2018.
“It’s hard to explain why children are required to understand the religious component of swearing an oath under the Alberta Act while the federal Act allows children to simply promise to tell the truth.”
Flaws in the law are why ALRI exists — to conduct independent research and provide recommendations to government on how to address problems that make Alberta laws ineffective or out-of-date.
While all government departments have the ability to partake in law reform themselves, ALRI tends to look at the less political cases.
“We handle the longer-term updating of laws,” said Carol Burgess, ALRI’s operations manager. “The government is often driven by more immediate issues. For example, updating the law of wills is necessary but was unlikely to be a political priority.”
Yet several of ALRI’s current projects are fascinatingly topical and will have an influence on a wide swath of the public. For instance, the Informal Appeals Project deals with donations raised through crowd-sourcing platforms such as GoFundMe.
“It would cover cases like the Humboldt Broncos,” said Burgess, referring to the more than $15 million raised for families of junior league hockey players involved in a tragic bus crash last spring.
“When you raise that much money from an informal appeal, how do you manage it and what should happen if there are surplus funds?”
Another project, for which a report was delivered to the government last year, deals with property division for common-law couples and adult interdependent partners.
“There wasn’t any formal process, as there was for married couples,” said Burgess. “When you’re married, all that you’ve accumulated while in the relationship is split 50/50. For common-law and interdependent partners, there’s no clear rule and they’ve had to rely on suing each other. That’s costly and it clogs up the courts.”
ALRI is Canada’s longest-standing full-time law reform agency, a significant milestone that Burgess attributes to its tripartite agreement. In other provinces and federally, law reform agencies have been abolished by withdrawal of government funding.
In Alberta, the university, government and the Law Society created a new model for law reform when they established a full-time Institute in 1967. Since then, the Institute model has been adopted in other provinces and internationally.
“Creating a tripartate agreement to establish a law reform institute has been one of ALRI’s strategic strengths,” said Petersson. “When multiple parties agree to law reform and multiple parties fund it, you have operational stability to carry out a variety of projects and multi-year projects.”
ALRI’s main funders are the Alberta Law Foundation (which disperses funds collected from interest that accumulates on lawyers’ trust accounts), Alberta’s Ministry of Justice and the Solicitor General, as well as the University of Alberta.