Witnesses

Question 1

Who may be called as a witness in criminal proceedings?

Answer 1

Any person with relevant and material evidence, subject to the exceptions

Question 2

Who is included in the witness exceptions?

Answer 2

• the accused themselves,
• the co-accused, spouse of the accused,
• those with diminished mental capacity

Question 3

How does section 11(c) of the Charter protect the accused’s right against self incrimination?

Answer 3

the accuse dcannot be compelled to testify by the Crown, but any person charged with an offence is competent to testify in their own defence if they so choose

Question 4

Section 5(1) of the Canada Evidence Act protects

Answer 4

the witness’ right to refuse to answer questions that may incriminate the witness

Question 5

Section 3 of the Canada Evidence Act protects

Answer 5

a person who is incompetent to answer questions by reason of interest in the crime

Question 6

A court retains the discretion to exclude the evidence of a co-accused if

Answer 6

it is in the interest of justice to do so

Question 7

Where a co-accused is tried separately, one coaccused is a

Answer 7

competent and compellable witness to the trial of the other co-accused

Question 8

Where accused parties are tried jointly, neither is

Answer 8

a competent or compellable witness against the other. However, they may become witnesses against each other where one co-accused completes their matter during or before the trial, per R v McKee

Question 9

A spouse is compellable witness, but cannot be forced to

Answer 9

give evidence that would reveal a communication during the marriage.

Question 10

Who does spousal privilege belong to?

Answer 10

The witness, not the accused. This privilege may be waived by the witness with the consent of the accused

Question 11

Section 16(1) of the Canada Evidence Act sets out the test for

Answer 11

the inquiry as to the ability of a person whose mental capacity is challenged. The inquiry asks two questions:
- does the proposed witness understand the nature of an oath or solemn affirmation?
- is the proposed witness able to communicate the witness’s evidence?

Question 12

Do both elements of a Section 16(1) CEA inquiry need to be satisfied for a witness with diminished mental capacity to testify?

Answer 12

No, if the first inquiry is not met (witness does not understand an oath) but the second is affirmative, then the witness can testify after promising to tell the truth.

Question 13

Witnesses under 14 years of age are

Answer 13

presumed to have the mental capacity to testify but do not take an oath or affirmation

Question 14

What distinction is made with corporations and the testimony of affiliated officers/directors?

Answer 14

Where the accused is a corporation, any director, officer, or employee of that corporation is both compellable and competent as a witness for prosecution.

Neither section 4 of the CEA nor Section 11(c) of the Charter apply to corporations

Question 15

What is the four step test for the admissibility of an expert witness, per the SCC in R v Mohan?

Answer 15

• relevance
• necessity in assisting the trier of fact
• the absence of any exclusionary rule
• a properly qualified expert

Question 16

When might expert evidence be excluded?

Answer 16

due to bias or partiality

Question 17

What is a subpoena?

Answer 17

An order of the court compelling a person to attend at a specific time and place to give evidence

Question 18

What form accompanies a subpoena?

Answer 18

Form 16

Question 19

A subpoena may be issued by

Answer 19

either the Crown or defence, or a judge on their own motion

Question 20

What Section of the Criminal Code governs the service of subpoenas?

Answer 20

Section 701, states that service within the province shall be made by a peace officer or any other person who is qualified to serve civil process

Question 21

A subpoena issued by a justice is enforceable

Answer 21

only in the province in which it was issued

Question 22

how is a subpoena enforced at trial when a witness refuses/fails to answer questions?

Answer 22

by way of the court’s power to sanction for contempt of court, a common law criminal offence

Question 23

When an application to quash a subpoena is brought, the onus is on

Answer 23

the party who subpoenaed the witness to show that the witness is likely to give material evidence.

Question 24

Where is an application to quash brought?

Answer 24

before the Superior Court of Justice before trial, or to the trial judge during trial

Question 25

On what grounds may a subpoena be quashed?

Answer 25

• if a witness does not have material evidence to give
• the subpoena amounts to abuse of process
• the witness is not compellable
• the evidence sought is privileged
• the proceedings themselves are without jurisdiction because the information is flawed
• the subpoena gives rise to a Charter violation

Question 26

what happens if a subpoena is ineffective in getting a witness to court?

Answer 26

a material witness warrant may be made, which authorizes the arrest of a person who has material evidence to give

Question 27

What are the three circumstances in which a material witness warrant may be granted?

Answer 27

• where it is demonstrated that the witness a) will not attend in response to a subpoena; or b) is evading service or;
• where a witness may have been required to enter into a recognizance at the end of the preliminary inquiry in order to ensure that the witness would give evidence at the subsequent trial (usually in indictable matters)
• a witness who has been subpoenaed but failed to appear

Question 28

a witness who fails to attend after being summoned by subpoena or recognizance, or fails to remain in attendance may be

Answer 28

convicted of contempt of court and be liable of a fine not exceeding $100 or a term of imprisonment not exceeding 90 days, or both

Question 29

How can a person in custody be made a witness?

Answer 29

A witness in custody may be brought to the court by making an order under section 527 of the CC:
-serve an application in Form 1 which shall include:
- a concise statement of the subject of the application
- a statement of the grounds to be argued
- a detailed statement of the factual basis for the application

Question 30

Where a witness is unavailable, the court may receive their testimony in three ways:

Answer 30

• evidence on comission
• video and audio link
• reading in evidence

Question 31

What is evidence on comission, and when can it be used?

Answer 31

when a witness is ill, outside of Canada or for a good and sufficient cause unable to attend trial, a party to the proceedings may apply for an order appointing a commissioner to take the evidence of the witness.

Question 32

When are video and audio links for evidence permitted?

Answer 32

A court may order that a witness in Canada give evidence by means of technology where it is appropriate in the circumstances.

Question 33

When is evidence read in?

Answer 33

where a witness refuses to be sworn or affirmed to give evidence, or where it is proven that the witness:
- is dead
- has become and is insane
- is so ill that they are unable to travel to testify
- is absent from Canada

that witness’ evidence from a previous trial may be admitted if it was taken in the presence of the accused, unless the accused proves that there was not full opportunity to cross examine the witness.

Question 34

Who is permitted a support person at trial?

Answer 34

individuals under the age of 18 or those with mental or physical disabilities, on application by the prosecutor or the witness. Judge or justice is to permit this unless the presence of the support person would intefere with the proper administration of justkce

Question 35

What Charter section requires that an interpreter be provided for the assistance of any witness who does not understand or speak the language in which the proceedings are conducted/or is deaf?

Answer 35

Section 14

Question 36

The videotaped statement of a youthful complainant/witness who was under 18 at the time the offence is alleged to have been committed may be received into court as evidence provided:

Answer 36

• the recording was made within a reasonable time after the alleged offence
• the witness described the acts complained of
• the witness, while testifying in court, adopts the contents of the video recording
• the admission of the evidence would not interfere with the proper administration of justice