Testimonial Aids (Precedent): Difference between revisions

Revision as of 13:56, 10 March 2023

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Testimonial Aids

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) the Crown seeks an order permitting the Crown witness/complainant, IF— a person under the age of 18—to testify from behind a screen. THE APPLICANT RELIES ON THE FOLLOW GROUNDS Any witness called to testify is expected to do so in person and in view of all participants. Section 486.2 authorizes the court to permit a witness to testify outside of the courtroom or behind a screen where the witness: is under the age of 18 years or may have difficulty in communicating evidence by reason of a mental or physical disability 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. 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]

@@ Line 20: / Line 20: @@
 {{I-Start}}'''THE APPLICANT RELIES ON THE FOLLOW GROUNDS'''{{I-End}}
 # Any witness called to testify is expected to do so in person and in view of all participants.
+# Section 486.2 authorizes the court to permit a witness to testify outside of the courtroom or behind a screen where the witness:
-# Section 486.2(1) provides an exemption to that requirement for “a witness under the age of 17 years”. The trial judge “shall” order the use of a screen “unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice”.
+##	is under the age of 18 years or
+## may have difficulty in communicating evidence by reason of a mental or physical disability
+# 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.