Precedent - Testimonial Aids

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Testimonial Aids -- child or disabled witness

See also: Witness Screen and Closed-Circuit Video Testimony

Notice to Seek an Order Under s. 486.2(1)
C A N A D A File# ________________ PROVINCE OF [PROVINCE] COUNTY OF [COUNTY] IN THE [LEVEL OF COURT] OF [PROVINCE] ([name] Region) BETWEEN: HIS MAJESTY THE KING – and – [ACCUSED NAME] NOTICE OF APPLICATION FOR TESTIMONIAL AIDS *(Pursuant to section 486.2(1) of the Criminal Code)* WHEREAS the accused, [accused name], has been charged that [on or about/between] [dates of the offence] he/she is alleged to have committed offences contrary to section(s) [list sections] of the Criminal Code; WHEREAS the trial for these outstanding charges is currently scheduled to begin before the [level of court] on [date] at [time]. TAKE NOTICE that pursuant to s. 486.2(1) and 486.1(1) the [Crown/witness] seeks an order permitting the witness/complainant, IF— a person under the age of 18—to testify from behind a screen. THE APPLICANT RELIES ON THE FOLLOW GROUNDS Section 486.2(1) — Testimonial Aids Any witness called to testify is expected to do so in person and in view of all participants. Section 486.2 requires the court to permit a witness to use a testimonial aid such as testifying outside of the courtroom or behind a screen where the witness: is under the age of 18 years (486.2(1)) or may have difficulty in communicating evidence by reason of a mental or physical disability (486.2(2)) The purpose of the section is to "[enable] the young complainant to be able to recount the evidence, fully and candidly, in a more appropriate setting, given the circumstances, while facilitating the elicitation of the truth.": R v Levogiannis, 1990 CanLII 6873 (ON CA), 62 CCC (3d) 59 While not always necessary, the party applying for the screen may need to call evidence. A failure to do so may result in the court rejecting the application for the use of a video link or screen: R v MACL, 2008 BCPC 272 (CanLII) and R v Hoyles, 2018 NLCA 46 (CanLII), If the pre-requisites are made out, the Court can only refuse to make an order if it is satisfied the order would “interfere with the proper administration of justice": NHP, 2011 MBQB 31 at para 17 ... Any additional grounds as counsel may advise and this Honourable Court may permit. Section 486.1(1) — Support Person Section 486.1(1) requires the court to permit a witness to testify with a support person of the witness’s choice be “close” to them while they testify if: the witness is under the age of 18 years at the time of testimony; and the court is not of the opinion that it would “interfere with the proper administration of justice”. A witness cannot be a support person: s. 486.1(4); A support person cannot communicate in any way with the witness during testimony: s. 486.1(5); ... Any additional grounds as counsel may advise and this Honourable Court may permit. IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING EVIDENCE: [SET OUT documents and transcripts upon which the applicant relies upon; e.g affidavit, transcript, business records, oral evidence] ... Any additional evidence as counsel may advise and this Honourable Court may permit. THE APPLICANT SEEKS THE FOLLOWING RELIEF: An Order for [describe the type of order and terms of the order] FOR THE PURPOSE OF THIS APPLICATION, THE APPLICANT MAY BE SERVED AT: In accordance with the appropriate Rules of Court, [party name] [party title] [address] [address] [address] Tel: (xxx) xxx-xxxx Fax: (xxx) xxx-xxxx Email: [email protected] DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___. _________________________________ [Counsel's name] [Counsel's title] [Internal File Coding]

Testimonial Aids -- adult

See also: Witness Screen and Closed-Circuit Video Testimony

Notice to Seek an Order Under s. 486.2(2)
C A N A D A File# ________________ PROVINCE OF [PROVINCE] COUNTY OF [COUNTY] IN THE [LEVEL OF COURT] OF [PROVINCE] ([name] Region) BETWEEN: HIS MAJESTY THE KING – and – [ACCUSED NAME] NOTICE OF APPLICATION FOR TESTIMONIAL AIDS *(Pursuant to section 486.2(2) of the Criminal Code)* WHEREAS the accused, [accused name], has been charged that [on or about/between] [dates of the offence] he/she is alleged to have committed offences contrary to section(s) [list sections] of the Criminal Code; WHEREAS the trial for these outstanding charges is currently scheduled to begin before the [level of court] on [date] at [time]. TAKE NOTICE that pursuant to s. 486.2(2) and 486.1(21) the [Crown/witness] seeks an order permitting the witness/complainant, IF—a person 18-years-old or more—to testify from behind a screen. THE APPLICANT RELIES ON THE FOLLOW GROUNDS Section 486.2(2) — Testimonial Aids Any witness called to testify is expected to do so in person and in view of all participants. Section 486.2 requires the court to permit a witness to use a testimonial aid such as testifying outside of the courtroom or behind a screen where the witness: is under the age of 18 years (486.2(1)) or may have difficulty in communicating evidence by reason of a mental or physical disability (486.2(2)) The purpose of the section is to "[enable] the young complainant to be able to recount the evidence, fully and candidly, in a more appropriate setting, given the circumstances, while facilitating the elicitation of the truth.": R v Levogiannis, 1990 CanLII 6873 (ON CA), 62 CCC (3d) 59 While not always necessary, the party applying for the screen may need to call evidence. A failure to do so may result in the court rejecting the application for the use of a video link or screen: R v MACL, 2008 BCPC 272 (CanLII) and R v Hoyles, 2018 NLCA 46 (CanLII), If the pre-requisites are made out, the Court can only refuse to make an order if it is satisfied the order would “interfere with the proper administration of justice": NHP, 2011 MBQB 31 at para 17 ... Any additional grounds as counsel may advise and this Honourable Court may permit. Section 486.1(1) — Support Person Section 486.1(1) requires the court to permit a witness to testify with a support person of the witness’s choice be “close” to them while they testify if: the witness is under the age of 18 years at the time of testimony; and the court is not of the opinion that it would “interfere with the proper administration of justice”. A witness cannot be a support person: s. 486.1(4); A support person cannot communicate in any way with the witness during testimony: s. 486.1(5); ... Any additional grounds as counsel may advise and this Honourable Court may permit. IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING EVIDENCE: [SET OUT documents and transcripts upon which the applicant relies upon; e.g affidavit, transcript, business records, oral evidence] ... Any additional evidence as counsel may advise and this Honourable Court may permit. THE APPLICANT SEEKS THE FOLLOWING RELIEF: An Order for [describe the type of order and terms of the order] FOR THE PURPOSE OF THIS APPLICATION, THE APPLICANT MAY BE SERVED AT: In accordance with the appropriate Rules of Court, [party name] [party title] [address] [address] [address] Tel: (xxx) xxx-xxxx Fax: (xxx) xxx-xxxx Email: [email protected] DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___. _________________________________ [Counsel's name] [Counsel's title] [Internal File Coding]