Is there probative value in a doctor’s testimony?

Ontario, Canada


The following excerpt is from Re Catholic Children’s Aid Society of Metropolitan Toronto and R.H. (An Infant), 1980 CanLII 1540 (ON CJ):

[6] Let me interrupt the reading of that to say that, in this case, I think the principle here applies, or is very relevant to say: Is there probative value — and we have the doctor — the doctor’s testimony in respect to that — and should that be weighed against prejudice to a party, in this case to the child himself through the effect that this may have upon that party? I know that Udy v. Stewart in talking of “prejudice” is speaking of prejudice in a court hearing as opposed to the effect that the actual appearance in court may have, but I think that I cannot ignore that possible prejudice.

[7] The text then goes on to say: The court’s position [that is, in Udy v. Stewart] on this point was that this defect goes to competency and not just to weight. That result may be too harsh. Unless the handicap of a witness is such that his mental or intellectual capacity totally negates his ability to relate what he saw, then his evidence should be received and any extenuating circumstances should be considered a matter of weight and credibility . . . as, of course, opposed to competency.

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