View source for Testimonial Evidence

[[fr:Preuve_témoignage]]
{{Currency2|January|2018}}
{{LevelZero}}{{HeaderTestimony}}
==Introduction==
The "truth-seeking process of a trial is predicated on the presentation of evidence in court" be it real evidence or testimony.<ref>
{{CanLIIRP|Bradshaw|h4jxt|2017 SCC 35 (CanLII)|[2017] 1 SCR 865}}{{perSCC|Karakatsanis J}}{{atL|h4jxt|19}}<br>
</ref>

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."<ref>
{{ibid1|Bradshaw}}{{atL|h4jxt|19}}<br>
</ref>
Assessment of truthfulness can be assessed by demeanour.<ref>
{{ibid1|Bradshaw}}{{atL|h4jxt|19}}<br></ref>
And through cross examination.<ref>
{{ibid1|Bradshaw}}{{atL|h4jxt|19}}<br></ref>

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."<ref>
{{CanLIIRP|Noel|50g3|2002 SCC 67 (CanLII)|[2002] 3 SCR 433}}{{perSCC-H|Arbour J}}{{atL|50g3|25}}</ref>
There exist exceptions for questions invoking [[Privilege|privileged]] information and certain [[Right Against Self-Crimination|self-incriminatory information]]. However, as a general rule, even incriminating questions must be answered.<ref>
[http://canlii.ca/t/7vf5#sec5 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."
</ref>

The "involuntary participation of non-involved persons in litigation is a longstanding tradition of the legal system."<ref>
{{CanLIIRPC|Northland Properties Ltd. v Equitable Trust Co|1dh86|1992 CanLII 2360 (BC SC)|10 C.P.C. (3d) 245}}{{perBCSC|Fraser J}} at 254-5<br>
</ref> 

Every person "has a duty to testify to that which they have witnessed."<ref> 
{{CanLIIRPC|D.W. Matheson & Son Contracting Ltd. v Canada (Attorney General)|4v8s|2000 NSCA 44 (CanLII)|585 APR 62}}{{perNSCA|Cromwell J}}{{atL|4v8s|83}}
</ref>

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===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:<ref> 
{{CanLIIRP|Baldree|fqcws|2012 ONCA 138 (CanLII)|280 CCC (3d) 191}}{{perONCA|Feldman JA}} (2:1){{atL|fqcws|44}} appealed to SCC</ref>
# the witness give an oath or affirmation to their evidence;
# their personal presence is necessary;
# they will be subject to cross-examination

{{reflist|2}}

==Calling Witnesses==
The usual manner that a witness testify is by oral testimony in court (''viva voce'' evidence) while the accused is present. (CCC [http://www.canlii.ca/t/7vf2#sec650 s.650(1)])

The witnesses' testimony must be relevant, material, and admissible. To see details on the scope of these requirements see [[Topic Index#Volume II: Evidence|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.<ref>
{{CanLIIRP|McKinnon|2f0df|1982 ABCA 302 (CanLII)|39 AR 283}}{{perABCA|Lieberman JA}}<br> 
{{UKCase|Attorney-General v Leveller Magazine Ltd|[1979] 1 All E.R. 745 (H.L.)}}<br> 
{{CanLIIRP|McArthur|g9wnz|1984 CanLII 3478 (ONSC)|13 CCC (3d) 152}}{{perONSC|Dupont J}}<br>
</ref>
This includes where the witness has reason to fear for their life.<ref>
{{CanLIIRP|Gingras|1p6kb|1992 CanLII 2826 (AB CA)|120 AR 300 (CA)}}{{theCourtABCA}}<br>
{{CanLIIRP|Mousseau|1g4q4|2002 ABQB 210 (CanLII)|350 AR 90}}{{perABQB|Moen J}}</ref>

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===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.<Ref>
{{CanLIIRP|Elliott|1g18c|2003 CanLII 24447 (ON CA)|181 CCC (3d) 118}}{{TheCourtONCA}} at para. 116
</ref>

; New Disclosures
Failure to disclose new information learned during witness preparation that may have affected trial preparations may be fatal to a prosecution.<ref>
{{CanLIIRP|Ayala|1cwp3|2000 CanLII 5754 (ON CA)|134 OAC 188}}{{TheCourtONCA}}
</ref>

; Showing Documents to Witnesses
While not strictly prohibited, it is preferable that witnesses be not shown documents written by counsel.<Ref>
{{CanLIIRP|Lajeunesse|1n1gb|2006 CanLII 11655 (ON CA)|[2006] O.J. No. 1445, 208 O.A.C. 385, 69 W.C.B. (2d) 743}}{{perONCA-H|Macfarland JA}}
</ref>
Depending on the circumstances, merely reviewing the subject matters flagged as important in a notice of application can be acceptable preparation of a witness.<ref>
{{CanLIIRP|Mahmood|fnr5s|2011 ONCA 693 (CanLII)|282 CCC (3d) 314}}{{perONCA-H|Watt JA}}
</ref>

By permitting one witness to see the written statement of another witness may sufficiently taint their evidence so as to be prohibited from testifying.<Ref>
{{CanLIIRP|Buric|6jf5|1996 CanLII 1525 (ON CA)|28 O.R. (3d) 737}}, aff’d [1997] 1 SCR 535
</ref>

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===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.<ref>
{{CanLIIRP|Soobrian|231tx|1994 CanLII 8739 (ON CA)|21 OR (3d) 603}}{{TheCourtONCA}}
</ref>
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.<ref>
{{ibid1|Soobrian}}<br>
{{CanLIIRP|Dayes|g0xqs|2013 ONCA 614 (CanLII)|301 CCC (3d) 337}}{{perONCA|LaForme JA}}{{atL|g0xqs|32}}<br>
</ref>

{{reflist|2}}

===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. <ref>
{{CanLIIRP|Montgomery|1f6s8|1998 CanLII 3014 (BC S.C.)|126 CCC (3d) 251}}{{perBCSC|Henderson J}}</ref>

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===Exclusion of Witnesses===
* [[Orders to Exclude Witnesses from Court]]

===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."<ref>
{{CanLIIRP|RL|1vbf8|2002 CanLII 49356 (ON CA)|55 WCB (2d) 4}}{{TheCourtONCA}}{{atL|1vbf8|6}}<br>
</ref>

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.<Ref>
{{CanLIIRP|Fahlman|gccss|1969 CanLII 951 (BC CA)|2 CCC 273}}{{perBCCA|Davey CJ}}
</ref>

{{Reflist|2}}

===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.<ref>
{{CanLIIRP|Cook|gbrbs|1960 CanLII 449 (AB CA)|31 WWR 148 (Alta. S.C.A.D.)}}{{perABCA|Ford CJA}}<br>
{{CanLIIRP|Baiton|5h3s|2001 SKQB 264 (CanLII)|208 Sask R 78}}{{perSKQB|Kovach J}}<br>
{{CanLIIRP|Sutton|1jrrp|2002 NBQB 49 (CanLII)|638 APR 283}}{{perNBQB|Turnbull J}}</ref>

A party cannot call a witness for the sole purpose of discrediting a witness who has made a previous inconsistent statement.<ref>
{{CanLIIRP|Soobrian|231tx|1994 CanLII 8739 (ON CA)|21 OR (3d) 603}}{{TheCourtONCA}}<br>
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)]]</ref>

; 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.<ref>
{{CanLIIRP|Lapensee|25lrz|2009 ONCA 646 (CanLII)|247 CCC (3d) 21}}{{perONCA|O'Connor ACJ}}<Br>
{{CanLIIRP|Bruce Power Inc|24nrk|2009 ONCA 573 (CanLII)|245 CCC (3d) 315}}{{perONCA|Armstrong JA}}{{atL|24nrk|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.")
</ref>

A failure to call a witness cannot be used to make a negative inference on the credibility of the accused.<ref>
See [[Credibility#Failure to Call Witnesses]]</ref> 

; 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.<ref>
{{CanLIIRPC|Roulette (K.T.)|gg3mb|2015 MBCA 9 (CanLII)|320 CCC (3d) 498}}{{perMBCA|MacInnes JA}}{{atL|gg3mb|123}}<Br>
{{CanLIIRP|Caccamo|1mzj4|1975 CanLII 11 (SCC)|[1976] 1 SCR 786}}{{perSCC|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")<br>
See also [[Role of the Crown]]
</ref>

; Failure of Accused to Testify
The failure of an accused to testify cannot be used to infer guilt.<ref>
{{CanLIIRP|Oddleifson (J.N.)|29tj0|2010 MBCA 44 (CanLII)|256 CCC (3d) 317}}{{perMBCA|Chartier JA}}<Br>
{{CanLIIRP|LePage|1frn1|1995 CanLII 123 (SCC)|[1995] 1 SCR 654}}{{perSCC-H|Sopinka J}}{{atL|1frn1|29}}<br>
</ref>
A weak prosecution case should not be strengthened in any way through the accuseds' failure to testify.<ref>
{{ibid1|LePage}}{{atL|1frn1|29}}<br>
{{CanLIIRP|Johnson|1npnt|1993 CanLII 3376 (ON CA)| (1993), 12 OR (3d) 340}}{{perONCA|Arbour JA}}{{atps|347-48}} ("A weak prosecution's case cannot be strengthened by the failure of the accused to testify")<br>
</ref>

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.<ref>
Oddleifson</ref>

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==Witnesses Refusing to Testify==
{{seealso|Examinations|Compelling Attendance of Witnesses}}
{{quotation2|
; 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 {{AnnSec|Form 20}}, 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.
<br>
; Further commitment
(2) Where a person to whom subsection (1) {{AnnSec5|545(1)}} 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.
<br>
; 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.
<br>
R.S., c. C-34, s. 472.
{{Annotation}}
|{{CCCSec2|545}}
|{{NoteUp|545|1|2|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.<ref>
{{CanLIIRP|Bubley|fp21d|1976 ALTASCAD 138 (CanLII)|32 CCC (2d) 79}}{{perABCA|Clement JA}}
</ref>

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.
<ref>
{{CanLIIRP|CMB|2dzgr|2010 MBQB 269 (CanLII)|260 Man R (2d) 152}}{{perMBQB|Greenberg J}}<br>
see also [[Contempt of Court (Offence)]] and [[Duress]]
</ref>

{{reflist|2}}

==Evidence by Commission==
{{seealso|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}

== Topics ==
* [[Competence and Compellability|Competence and Compellability]]
* [[Refreshing Memory|Refreshing Memory]]
* Testimonial Aids
** [[Testimonial Aids for Young, Disabled or Vulnerable Witnesses]] (Screens and Video-links)
** [[Interpreters]]
* [[Evidence by Commission]]
* [[Analyzing Testimony]]
* [[Remote Attendance]]

==See Also==
* [[Trial Process (Cases)]]
* [[Hearsay]]