Testimonial Aids for Young, Disabled or Vulnerable Witnesses
| This page was last substantively updated or reviewed January 2019. (Rev. # 83096) |
Support Person Assisted Testimony
The Criminal Code permits testimonial accommodation for certain witnesses who may have difficulty testifying under normal circumstances.
- 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]
- 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".[1]
- 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.[2]
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.[3]
- 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.[4]
- ↑
R v NHP, 2011 MBQB 31 (CanLII), 264 Man R (2d) 253, per Bryk J, at para 11 - relating to pre-2015 amendments
- ↑
R v George, 1996 CanLII 626 (ON CA), 94 OAC 76, per curiam, at paras 3 to 4
- ↑
R v DC, 2008 NSCA 105 (CanLII), 238 CCC (3d) 16, per MacDonald CJ
George, supra - ↑
see s. 486.1
Witness Screen and Closed-Circuit Video Testimony
Admission of a Video Statement of a Victims, Children or Disabled Witnesses
Prohibition on Cross-Examination of Persons Under 18
Interpreters for Disabled
Section 6 of the Canada Evidence Act addresses communication in testimony by persons with disabilities. The first subsection 6(1) concerns physical disabilities and subsection 6(2) concerns mental disabilities. Both provisions apply when there is 1) a person is a disability who (2) has difficulty communicating because of this disability.[1]
- Evidence of person with physical disability
6 (1) If a witness has difficulty communicating by reason of a physical disability, the court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible.
- Evidence of person with mental disability
(2) If a witness with a mental disability is determined under section 16 to have the capacity to give evidence and has difficulty communicating by reason of a disability, the court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible.
- Inquiry
(3) The court may conduct an inquiry to determine if the means by which a witness may be permitted to give evidence under subsection (1) or (2) is necessary and reliable.
This applies to situations where the witness is deaf or mute and cannot communicate orally.
- "intelligible"
The witnesses does not need to be "wholly unintelligible" to have s. 6 apply.[2]
- No need for video evidence
Where an interpreter of sign language is used, there is no added requirement that a video record of the evidence be made.[3]
- ↑
R v Doncel, 2022 ONCJ 143, per Fraser J at para 11
- ↑ Doncel, supra at para 12
- ↑ R v Titchener, 2013 BCCA 64 (CanLII), 333 BCAC 234, per Ryan JA
Other Vulnerable of Witnesses
- Pseudonyms
Under the common law there is some authority suggesting a witness may testify using a pseudonym.[1]
Section 12 of the Victim Bill of Rights states:
- Identity protection
12 Every victim has the right to request that their identity be protected if they are a complainant to the offence or a witness in proceedings relating to the offence.
–
- ↑
R v Jennings, 2018 ABQB 103 (CanLII), per Shelley J
R v Mousseau, 2002 ABQB 210 (CanLII), 350 AR 90, per Moen J, at para 26
R v McArthur, 1984 CanLII 3478 (ONSC), 13 CCC (3d) 152, per Dupont J
R v Gingras, 1992 CanLII 2826 (AB CA), 120 AR 300 (CA), per curiam
Witness Security Order
- Security of witnesses
486.7 (1) In any proceedings against an accused, the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, make any order, other than one that may be made under any of sections 486 to 486.5, if the judge or justice is of the opinion that the order is necessary to protect the security of any witness and is otherwise in the interest of the proper administration of justice.
- Application
(2) The application 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 the order, the judge or justice shall consider
- (a) the age of the witness;
- (b) the witness’s mental or physical disabilities, if any;
- (c) the right to a fair and public hearing;
- (d) the nature of the offence;
- (e) whether the witness needs the order to protect them from intimidation or retaliation;
- (f) whether the order is needed to protect the security of anyone known to the witness;
- (g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
- (h) the importance of the witness’s testimony to the case;
- (i) whether effective alternatives to the making of the proposed order are available in the circumstances;
- (j) the salutary and deleterious effects of the proposed order; and
- (k) any other factor that the judge or justice considers relevant.
- No adverse inference
(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
2015, c. 20, s. 22.