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COMPELLING WITNESSES IN A CRIMINAL PROCEEDING

To qualify as a witness at a criminal proceeding, a person is to be competent to testify.  Nobody can be forced to testify by the Crown or the defence unless the person in question is also compellable. Any person with relevant and material evidence to give can be called as a witness in a criminal proceeding, but for the following exceptions:

For his or her own defence, the accused is competent to testify but is neither competent nor compellable as a witness for the Crown. According to section 4(1) of the Canada Evidence Act (Evidence Act), this protection is given to the accused, and is also contained in section 11(c) of the Canadian Charter of Rights and Freedoms (Charter).  Also, for the Crown or the defence, a competent and compellable witness at the trial is the co-accused, unless the Crown’s real and predominant purpose for calling the co-accused is his or her incrimination. This is due to the operation of section 5(1) of the Evidence Act which eliminates the right to refuse to answer questions which might incriminate the witness.  When a co-accused is called as a witness, both section 5(2) of the Evidence Act and section 13 of the Charter, prevent the Crown from using any testimony given as evidence against the co-accused at his subsequent criminal trial. Incidentally, Section 7 of the Charter also protects against the subsequent use against the co-accused of any “derivative evidence” that is discovered as a result of the co-accused’s compelled testimony.

In cases, where co-accused are tried together, neither is competent nor compellable for either the prosecution or the other accused. When either or both of the accused choose to testify, they may be cross-examined both by the other accused and by the Crown. Furthermore, in that situation, the cross-examination by the co-accused is not hindered in any manner by all of the same rules that constrain the Crown.  It is possible for one accused to make an effort to impeach the other by cross-examining him on the fact that he exercised his right to silence.

Spouse of the accused

A competent witness for the defence is the married spouse of the accused, according to, section 4(1), Evidence Act.  As for the prosecution, the spouse of the accused is competent and compellable only for trials of certain offences set out in the Evidence Act, which are sexual offences for the most part, and certain offences where the complainant is under the age of 14 and is herself a competent and compellable witness.  Regarding trials of all other offences, the spouse of the accused is not a competent witness for the prosecution, even if the spouse was not married to the accused at the time of the alleged offence, a prohibition applicable only to spouses who are married to the accused.  It would be seen, therefore,  common law spouses and divorced spouses are competent and compellable for the Crown. Moreover, if the accused and the witness are separated without hope of reconciliation, the witness will be a competent and compellable by the Crown.

Now, the exception: The Evidence Act says that even where a spouse is a competent and compellable witness, the same spouse cannot be forced to give evidence that would reveal a communication made during the marriage, a spousal privilege belonging to the witness (not the accused) and can be waived by the witness without the consent of the accused.

Children and mentally challenged people

The Evidence Act  stipulates that when one of the parties proposes to call the evidence of a person “whose mental capacity is challenged”, the court has to first conduct an inquiry to test the ability of the person to testify by asking two questions:

  1. Does the proposed witness understand the nature of an oath or solemn affirmation; and
  2. Is the proposed witness able to communicate his or her evidence.

To qualify for giving evidence, the proposed witness must answer both questions or at least the second  in the affirmative.

A child (“a person under 14 years of age”) witness is supposed to have the capacity to testify and does not take an oath or affirmation. To testify, however, they have to first make a “promise to tell the truth”. The evidence of a child is accepted when “they are able to understand and respond to questions”. If a party challenges the capacity of the child to meet this test, it is for the party to show that the child cannot understand and respond to questions. Should the trial judge be “satisfied that there is an issue as to the capacity” of a proposed child witness, he or she would conduct an inquiry into the matter.

Corporations

If the accused is a corporation, any director, officer or employee of that corporation is both compellable and competent as a witness for the prosecution because section 4 of the Evidence Act or section 11(c) of the Charter is not applicable to corporations.

Experts

Such witnesses can be called on any time to give opinion evidence to assist the trier of fact (i.e. judge or jury). The evidence is to be of a nature that is not likely within the experience and knowledge of the trier of fact and is to be provided by someone who has acquired special skills through study or experience in that area. Presently, the Criminal Code (Code) contains a provision (section 657.3) allowing for the evidence of an expert to be received in writing subject to certain notice requirements. Even then, the expert in question may be required to appear for examination or cross-examination. According to the Evidence Act, no more than five experts can be called during a trial without leave of the court.

Subpoena

The most common of several methods for getting the witness to court is the subpoena. It is an order of the court compelling a person to attend at a specific time and place to give evidence and to bring to court relevant documents or other things within his or her possession or control. The subpoena is issued to anyone who “is likely to give material evidence” and if written documents or other items are included therein, it is called a subpoena duces tecum.  A subpoena is usually issued at the instance of either the Crown or the defence, but a judge can also issue a subpoena for a witness. It has to be issued by the court in which the witness is required to appear.

The exceptions are: When the proceeding in which the witness’ evidence is required is a summary conviction proceeding or is a trial before a provincial court judge or is a matter over which a justice has jurisdiction, for instance, a bail hearing.

The service of subpoenas falls under Section 701 of the Code. Excepting when the witness is outside of the province in which the proceedings are taking place, service is to be made by a “peace officer” (defined in the Code) or by “any other person who is qualified … to serve civil process” and is to be effected in the same manner as an accused person is served with a summons as set out in the Code. As the provision requires service to be made personally and if the person “cannot conveniently be found”, the subpoena may be left “at his latest or usual place of abode with an inmate thereof who appears to be at least 16 years of age”.

Deciding how to compel and which witnesses to use is the task of a professional lawyer.  Call the lawyers at Levy Zavet PC to discuss how to prepare for your case, and how to prepare those witnesses that should be brought, let alone called to stand for testimony.

A subpoena for a witness who lives outside the province in which the proceedings have been instituted has to be served personally.

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