Testimonial Aids for Witnesses at Risk of Harm

From Criminal Law Notebook

General Principles

There are common law and statutory protections for witnesses who are at risk of harm due to their involvement in trial proceedings.

Pseudonyms

Under the common law there is some authority suggesting a witness may testify using a pseudonym.[1]

Section 12 of the Victim Bill of Rights states:

Identity protection

12 Every victim has the right to request that their identity be protected if they are a complainant to the offence or a witness in proceedings relating to the offence.

  1. R v Jennings, 2018 ABQB 103 (CanLII), per Shelley J
    R v Mousseau, 2002 ABQB 210 (CanLII), 350 AR 90, per Moen J, at para 26
    R v McArthur, 1984 CanLII 3478 (ONSC), 13 CCC (3d) 152, per Dupont J
    R v Gingras, 1992 CanLII 2826 (AB CA), 120 AR 300 (CA), per curiam

Witness Security Order

Security of witnesses

486.7 (1) In any proceedings against an accused, the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, make any order, other than one that may be made under any of sections 486 to 486.5, if the judge or justice is of the opinion that the order is necessary to protect the security of any witness and is otherwise in the interest of the proper administration of justice.

Application

(2) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

Factors to be considered

(3) In determining whether to make the order, the judge or justice shall consider

(a) the age of the witness;
(b) the witness’s mental or physical disabilities, if any;
(c) the right to a fair and public hearing;
(d) the nature of the offence;
(e) whether the witness needs the order to protect them from intimidation or retaliation;
(f) whether the order is needed to protect the security of anyone known to the witness;
(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(h) the importance of the witness’s testimony to the case;
(i) whether effective alternatives to the making of the proposed order are available in the circumstances;
(j) the salutary and deleterious effects of the proposed order; and
(k) any other factor that the judge or justice considers relevant.
No adverse inference

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
2015, c. 20, s. 22.

CCC (CanLII), (DOJ)


Note up: 486.7(1), (2), (3), and (4)


Defined terms: "justice" (s. 2) and "victim" (s. 2)