Testimonial Evidence

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 91065)

Introduction

The "truth-seeking process of a trial is predicated on the presentation of evidence in court" be it real evidence or testimony.[1]

The trier-of-fact directly hears testimony "so there is no concern that the evidence was recorded inaccurately". Direct evidence also allows for the trier of fact to have "robust tools for testing the truthfulness of evidence and assessing its value."[2] Assessment of truthfulness can be assessed by demeanour.[3] And through cross examination.[4]

Testimonial evidence, also known as viva voce evidence or oral evidence, is evidence given by a witness in the form answers to posed questions.

When a competent witness has taken the stand, he "is required to answer all relevant questions put to him."[5] There exist exceptions for questions invoking privileged information and certain self-incriminatory information. However, as a general rule, even incriminating questions must be answered.[6]

The "involuntary participation of non-involved persons in litigation is a longstanding tradition of the legal system."[7]

Every person "has a duty to testify to that which they have witnessed."[8]

  1. ↑ R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J, at para 19
  2. ↑ Bradshaw, ibid., at para 19
  3. ↑ Bradshaw, ibid., at para 19
  4. ↑ Bradshaw, ibid., at para 19
  5. ↑ R v Noel, 2002 SCC 67 (CanLII), [2002] 3 SCR 433, per Arbour J, at para 25
  6. ↑ Section 5(1) of the Canada Evidence Act states "No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person."
  7. ↑ Northland Properties Ltd. v Equitable Trust Co, 1992 CanLII 2360 (BC SC), 10 C.P.C. (3d) 245, per Fraser J at 254-5
  8. ↑ D.W. Matheson & Son Contracting Ltd. v Canada (Attorney General), 2000 NSCA 44 (CanLII), 585 APR 62, per Cromwell J, at para 83

Purpose of Testimonial Evidence

Testimonial evidence is the best way to ensure the most reliable and credible evidence is available for the trier of fact to consider.

Witnesses are encouraged to be honest, accurate, and complete by requiring them to give evidence under the requirements that:[1]

  1. the witness give an oath or affirmation to their evidence;
  2. their personal presence is necessary;
  3. they will be subject to cross-examination
  1. ↑ R v Baldree, 2012 ONCA 138 (CanLII), 280 CCC (3d) 191, per Feldman JA (2:1), at para 44 appealed to SCC

Calling Witnesses

The usual manner that a witness testify is by oral testimony in court (viva voce evidence) while the accused is present. (CCC s.650(1))

The witnesses' testimony must be relevant, material, and admissible. To see details on the scope of these requirements see Evidence.

Identifying witnesses and Using Pseudonyms

The Court has discretion to allow a witness to testify under a pseudonym only where a failure to do so would interfere with the administration of justice.[1] This includes where the witness has reason to fear for their life.[2]

  1. ↑ R v McKinnon, 1982 ABCA 302 (CanLII), 39 AR 283, per Lieberman JA
      Attorney-General v Leveller Magazine Ltd [1979] 1 All E.R. 745 (H.L.) (UK)
      R v McArthur, 1984 CanLII 3478 (ONSC), 13 CCC (3d) 152, per Dupont J
  2. ↑ R v Gingras, 1992 CanLII 2826 (AB CA), 120 AR 300 (CA), per curiam
    R v Mousseau, 2002 ABQB 210 (CanLII), 350 AR 90, per Moen J

Preparing Witnesses

The presence of a police officer who is taking notes during an interview, can be enough to insulate Crown counsel from being compelled to testify to the meeting.[1]

New Disclosures

Failure to disclose new information learned during witness preparation that may have affected trial preparations may be fatal to a prosecution.[2]

Showing Documents to Witnesses

While not strictly prohibited, it is preferable that witnesses be not shown documents written by counsel.[3] Depending on the circumstances, merely reviewing the subject matters flagged as important in a notice of application can be acceptable preparation of a witness.[4]

By permitting one witness to see the written statement of another witness may sufficiently taint their evidence so as to be prohibited from testifying.[5]

  1. ↑ R v Elliott, 2003 CanLII 24447 (ON CA), 181 CCC (3d) 118, per curiam at para. 116
  2. ↑ R v Ayala, 2000 CanLII 5754 (ON CA), 134 OAC 188, per curiam
  3. ↑ R v Lajeunesse, 2006 CanLII 11655 (ON CA), [2006] O.J. No. 1445, 208 O.A.C. 385, 69 W.C.B. (2d) 743, per Macfarland JA
  4. ↑ R v Mahmood, 2011 ONCA 693 (CanLII), 282 CCC (3d) 314, per Watt JA
  5. ↑ R v Buric, 1996 CanLII 1525 (ON CA), 28 O.R. (3d) 737, aff’d [1997] 1 S.C.R. 535

Impermissible Reasons for Calling Witnesses

The Crown may not call a witness whose evidence does not advance their case, but it merely for the purpose of cross-examining to show them not to be credible.[1] Where such a witness is called, the judge should have provided limiting instructions explaining that absence collusion, a jury cannot draw any adverse inferences against the accused due to the negative finding of credibility against the witness.[2]

  1. ↑ R v Soobrian, 1994 CanLII 8739 (ON CA), 21 OR (3d) 603, per curiam
  2. ↑ Soobrian, ibid.
    R v Dayes, 2013 ONCA 614 (CanLII), 301 CCC (3d) 337, per LaForme JA, at para 32

Communicating with Witnesses During Testimony

Communication with Witness After Cross-examination But Before Re-Direct

There is variable positions on whether counsel can talk to a witness between cross-examination and re-examination. Generally leave of the court may be required first. [1]

  1. ↑ R v Montgomery, 1998 CanLII 3014 (BC S.C.), 126 CCC (3d) 251, per Henderson J

Exclusion of Witnesses

Recalling Witnesses

The judge has discretion to permit that a witness be recalled to be cross-examined further. This can include re-calling the accused to be cross-examined further. However, this discretion should be "exercised very cautiously."[1]

The judge may also permit the Crown to re-open its case and call witnesses they initially chose not to call where that decision was influenced by the conduct of defence counsel.[2]

  1. ↑ R v RL, 2002 CanLII 49356 (ON CA), 55 WCB (2d) 4, per curiam, at para 6
  2. ↑ R v Fahlman, 1969 CanLII 951 (BC CA), 2 CCC 273, per Davey CJ

Choice of Witnesses

Any party is entitled to call a witness who is competent to testify (See Competence and Compellability for details on competency of witnesses).

A party is also permitted call a witness that has already previously been called by the opposing party.[1]

A party cannot call a witness for the sole purpose of discrediting a witness who has made a previous inconsistent statement.[2]

Failure to Call a Witnesss

The failure to call a witness can be used to make an adverse inference where there is no plausible reason not to do so and it is well within the power of the party to do so. However, where the evidence is merely cumulative or inferior en it should not be taken into account.[3]

A failure to call a witness cannot be used to make a negative inference on the credibility of the accused.[4]

Crown Discretion to Call Witnesses

The Crown is under no obligation to subpeona or call witnesses for the benefit of the Defence. The defence are able to subpeona the witnesses themselves.[5]

Failure of Accused to Testify

The failure of an accused to testify cannot be used to infer guilt.[6] A weak prosecution case should not be strengthened in any way through the accuseds' failure to testify.[7]

However, where the Crown sets out a case that "cries out for an explanation", the failure to testify fails to provide any basis to infer anything else but guilt.[8]

  1. ↑ R v Cook, 1960 CanLII 449 (AB CA), 31 WWR 148 (Alta. S.C.A.D.), per Ford CJA
    R v Baiton, 2001 SKQB 264 (CanLII), 208 Sask R 78, per Kovach J
    R v Sutton, 2002 NBQB 49 (CanLII), 638 APR 283, per Turnbull J
  2. ↑ R v Soobrian, 1994 CanLII 8739 (ON CA), 21 OR (3d) 603, per curiam
    This relates mostly to crowns calling a witness apply under s. 9 CEA to cross-examine (see Examinations#Cross-examining a party's own witness (Adverse or Hostile Witnesses)
  3. ↑ R v Lapensee, 2009 ONCA 646 (CanLII), 247 CCC (3d) 21, per O'Connor ACJ
    R v Bruce Power Inc, 2009 ONCA 573 (CanLII), 245 CCC (3d) 315, per Armstrong JA, at para 50 ("What I find particularly surprising is that the Inspector did not testify on the motion before the justice of the peace to explain the conduct of the prosecution. The obvious inference to be drawn is that he had no credible explanation.")
  4. ↑ See Credibility#Failure to Call Witnesses
  5. ↑ Roulette (K.T.), 2015 MBCA 9 (CanLII), 320 CCC (3d) 498, per MacInnes JA, at para 123
    R v Caccamo, 1975 CanLII 11 (SCC), [1976] 1 SCR 786, per de Grandpré J (" At trial Crown counsel has full discretion as to what witnesses should be called for the prosecution and the Court will not interfere with the exercise of that discretion unless it can be shown that the prosecutor has been influenced by some oblique motive")
    See also Role of the Crown
  6. ↑ R v Oddleifson (J.N.), 2010 MBCA 44 (CanLII), 256 CCC (3d) 317, per Chartier JA
    R v LePage, 1995 CanLII 123 (SCC), [1995] 1 SCR 654, per Sopinka J, at para 29
  7. ↑ LePage, ibid., at para 29
    R v Johnson, 1993 CanLII 3376 (ON CA), (1993), 12 OR (3d) 340, per Arbour JA, at pp. 347-48 ("A weak prosecution's case cannot be strengthened by the failure of the accused to testify")
  8. ↑ Oddleifson

Witnesses Refusing to Testify

See also: Examinations and Compelling Attendance of Witnesses
Procedure where Witness Refuses to Testify
Witness refusing to be examined

545 (1) Where a person, being present at a preliminary inquiry and being required by the justice to give evidence,

(a) refuses to be sworn,
(b) having been sworn, refuses to answer the questions that are put to him,
(c) fails to produce any writings that he is required to produce, or
(d) refuses to sign his deposition,

without offering a reasonable excuse for his failure or refusal, the justice may adjourn the inquiry and may, by warrant in Form 20 [forms], commit the person to prison for a period not exceeding eight clear days or for the period during which the inquiry is adjourned, whichever is the lesser period.

Further commitment

(2) Where a person to whom subsection (1) [witness refusing to be examined] applies is brought before the justice on the resumption of the adjourned inquiry and again refuses to do what is required of him, the justice may again adjourn the inquiry for a period not exceeding eight clear days and commit him to prison for the period of adjournment or any part thereof, and may adjourn the inquiry and commit the person to prison from time to time until the person consents to do what is required of him.

Saving

(3) Nothing in this section shall be deemed to prevent the justice from sending the case for trial on any other sufficient evidence taken by him.
R.S., c. C-34, s. 472.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 545(1), (2) and (3)

Section 545 does not permit a justice to make an order of contempt against a witness who refuses to testify at a preliminary inquiry.[1]

A witness charged with contempt of court for refusing to testify against gang members due to fear to safety can rely on the defence of duress. [2]

  1. ↑ R v Bubley, 1976 ALTASCAD 138 (CanLII), 32 CCC (2d) 79, per Clement JA
  2. ↑ R v CMB, 2010 MBQB 269 (CanLII), 260 Man R (2d) 152, per Greenberg J
    see also Contempt of Court (Offence) and Duress

Evidence by Commission

See also: Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Topics

See Also

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