Support Person Assisted Testimony

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General Principles

The Crown or a witness to be called by the Crown may apply to have a "support person" present while they testify. A support person is a non-witness who may sit in close proximity to the witness for the purpose of facilitating the giving of evidence.

The requirements will depend on the age and circumstances of the witness. Section 486.1(1) provides the authority to authorize a support person for witnesses under the age of 18 or with a disability. Section 486.1(2) provides the authority to authorize a support person for witnesses aged 18 or more. The notable difference is that 486.1(1) presumes the availability of a support person, while under 486.1(2) the applicant must satisfy the court the support person is appropriate after considering factors found in (3).

Support person — witnesses under 18 or who have a disability

486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

Other witnesses

(2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.

Application

(2.1) An application referred to in subsection (1) [support person – witnesses under 18 or who have a disability] or (2) [support person – other vulnerable witnesses] 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 an order under subsection (2) [support person – other vulnerable witnesses], the judge or justice shall consider

(a) the age of the witness;

(b) the witness’ mental or physical disabilities, if any;

(c) the nature of the offence;

(d) the nature of any relationship between the witness and the accused;

(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and

(g) any other factor that the judge or justice considers relevant.

Witness not to be a support person

(4) The judge or justice shall not permit a witness to be a support person unless the judge or justice is of the opinion that doing so is necessary for the proper administration of justice.

No communication while testifying

(5) The judge or justice may order that the support person and the witness not communicate with each other while the witness testifies.

No adverse inference

(6) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
2005, c. 32, s. 15; 2015, c. 13, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Underage or Disabled Witnesses

Section 486.1(1) requires that the judge to permit a support person. There is a presumption that a support person can be used unless it is rebutted by the respondent who can establish that it would "interfere with the proper administration of justice".

Vulnerable Witnesses

Section 486.1(2) grants the judge discretion to permit a support person to be "present" and "close" to the witness while he testifies. The application must be made by either the Crown or the witness himself.

Valid Support Persons

A judge must be satisfied that the use of a support person "is necessary for the proper administration of justice".

Trial judges are afforded "substantial latitude" in assessing the appropriateness of the support person.

The judge has discretion to permit the complainant's mother—who is also a material witness—to be support person as long as it is after the mother has testified.

History

The 2015 amendments change the standard under s. 486.1(2) for a support person from being "necessary to obtain a full and candid account from the witness of the acts complained of" to simply requiring that the support person "would facilitate" full and candid account of evidence.