Witnesses Flashcards
(37 cards)
Who may be called as a witness in criminal proceedings?
Any person with relevant and material evidence, subject to the exceptions
Who is included in the witness exceptions?
- the accused themselves,
- the co-accused, spouse of the accused,
- those with diminished mental capacity
How does section 11(c) of the Charter protect the accused’s right against self incrimination?
the accuse dcannot be compelled to testify by the Crown, but any person charged with an offence is competent to testify in their own defence if they so choose
Section 5(1) of the Canada Evidence Act protects
the witness’ right to refuse to answer questions that may incriminate the witness
Section 3 of the Canada Evidence Act protects
a person who is incompetent to answer questions by reason of interest in the crime
A court retains the discretion to exclude the evidence of a co-accused if
it is in the interest of justice to do so
Where a co-accused is tried separately, one coaccused is a
competent and compellable witness to the trial of the other co-accused
Where accused parties are tried jointly, neither is
a competent or compellable witness against the other. However, they may become witnesses against each other where one co-accused completes their matter during or before the trial, per R v McKee
A spouse is compellable witness, but cannot be forced to
give evidence that would reveal a communication during the marriage.
Who does spousal privilege belong to?
The witness, not the accused. This privilege may be waived by the witness with the consent of the accused
Section 16(1) of the Canada Evidence Act sets out the test for
the inquiry as to the ability of a person whose mental capacity is challenged. The inquiry asks two questions:
- does the proposed witness understand the nature of an oath or solemn affirmation?
- is the proposed witness able to communicate the witness’s evidence?
Do both elements of a Section 16(1) CEA inquiry need to be satisfied for a witness with diminished mental capacity to testify?
No, if the first inquiry is not met (witness does not understand an oath) but the second is affirmative, then the witness can testify after promising to tell the truth.
Witnesses under 14 years of age are
presumed to have the mental capacity to testify but do not take an oath or affirmation
What distinction is made with corporations and the testimony of affiliated officers/directors?
Where the accused is a corporation, any director, officer, or employee of that corporation is both compellable and competent as a witness for prosecution.
Neither section 4 of the CEA nor Section 11(c) of the Charter apply to corporations
What is the four step test for the admissibility of an expert witness, per the SCC in R v Mohan?
- relevance
- necessity in assisting the trier of fact
- the absence of any exclusionary rule
- a properly qualified expert
When might expert evidence be excluded?
due to bias or partiality
What is a subpoena?
An order of the court compelling a person to attend at a specific time and place to give evidence
What form accompanies a subpoena?
Form 16
A subpoena may be issued by
either the Crown or defence, or a judge on their own motion
What Section of the Criminal Code governs the service of subpoenas?
Section 701, states that service within the province shall be made by a peace officer or any other person who is qualified to serve civil process
A subpoena issued by a justice is enforceable
only in the province in which it was issued
how is a subpoena enforced at trial when a witness refuses/fails to answer questions?
by way of the court’s power to sanction for contempt of court, a common law criminal offence
When an application to quash a subpoena is brought, the onus is on
the party who subpoenaed the witness to show that the witness is likely to give material evidence.
Where is an application to quash brought?
before the Superior Court of Justice before trial, or to the trial judge during trial
