Ordinarily, witnesses testify in public from the witness box, where the judge, jury and accused can see them. Ordinarily, the accused or his lawyer cross-examines the witness. Ordinarily, the press is free to print the transactions of court and the names of the parties involved.
However, for some issues, publicity violates the witness's privacy. For some witnesses, particularly children, being in the presence of the accused inflicts unnecessary suffering during the trial process.
Therefore, the court may:
Don't promise a witness that any of these things will happen. If the judge disagrees, the witness will enter the courtroom feeling confused and betrayed.
In trials of sexual offences, the court may ban the publication of anything that would identify any witness who testifies in the proceedings. If the complainant, or any witness under 18, asks for the ban, the court must make it. s.486.4.
In other cases, the court may ban the publication of information which would lead to the identity of witnesses. s.486.5
In prosecutions of criminal organization and terrorism offences, even "criminal justice participants" such as undercover police officers may obtains bans on publication of their identities. s.486.5(2).
For some witnesses, seeing the offender's face or being in the same room as the offender causes suffering. This may be allayed by testifying behind a screen, or from another room via closed-circuit television system.
Regardless of the type of offence, children under 18, and witnesses who suffer mental or physical disabilities can ask for such an arrangement. The court must allow this, except if there is a clear reason not to. s.486.2(1).
Other witnesses can also testify this way, if the prosecutor persuades the court that it is necessary in order to get a full and candid account from the witness. s.486.2(2).
In criminal organization and terrorism offence prosecutions, witnesses may also testify in this manner if it is necessary to protect their safety, or to get a full account from them. s.486.2(4).
Until 2005, child witnesses underwent an inquiry into their competency to testify before they were permitted to give evidence. Now courts accept child testimony on a promise to tell the truth, unless someone challenges their competency. s.16.1 Canada Evidence Act
Regardless of the type of offence, children under 18, and witnesses who suffer mental or physical disabilities can ask for a support person to be near them when they testify. The court must allow this, except if there is a clear reason not to. s.486.1(1).
Other witnesses may also have a support person nearby, if the court is satisfied that such an order is necessary to obtain a full and candid account from the witness. s.486.1(2).
Which is more intimidating for a victim: to be cross-examined by the accused or the accused's lawyer?
Generally speaking, courts should not permit the accused personally to cross-examine witnesses who are under 18. Instead, the court will appoint counsel for the accused to perform this task. s.486.3(1).
The court may also make the order for adults if the adult may not be able to answer fully when cross-examined personally by the accused. s.486.3(2)
Some witnesses feel shame and embarassment at telling about sexual abuse in court rooms where others will hear it. Other witnesses fear testifying in public will expose them to violence from associates of the accused.
One might think that excluding people from the court room would solve these problems. S.486(1) authorizes a court to exclude some or all of the public from a court room. It is even possible to exclude the accused. s.650.
Because of the importance of public scrutiny to maintaining confidence in the justice system, courts are reluctant to close court rooms, unless no other solution suffices. For an example of the importance of this principle, see: "Named Person " 2007 SCC 43; Toronto Star Newspapers v. Ontario, 2005 SCC 41 (S.C.C.)
Similarly, the accused ought to hear the evidence tendered against him. The accused is removed from the court room only in the most extreme situations. R. v. A.W.C., 2005 ABCA 96; R. v. Fabrikant, 1995 CanLII 5384.
In R. v. Largie (2004 Ont S.C.J.), the Crown sought a closed court room while an informer testified. Someone had attempted to kill the informer before trial, and he reasonably feared that the accused's associates would attend court, discover more about him, and try again to kill him. Despite these compelling circumstances, Trafford J. declined to order a closed court room. Instead, the witness was permitted to testify under an assumed name.
S.486(2) contains language which suggests that the privacy of children who testify in trials of sexual offences ought to weigh in favour of closed courts. This language has yet to be tested in higher courts, but it does suggest that those children may obtain closed court rooms in situations where adults would not.
Sexual abuse violates the privacy of the victim. Many victims need to heal in privacy.
People charged with criminal offences are entitled to "full answer and defence". To answer the accusation, they often must show that the accuser was wrong. Thus the accused wants all information which tends to show that the complainant was and is unreliable. Not only are the police and prosecutor obliged to disclose any information in their possession which would assist the accused (Stinchcombe), but the accused may ask the court to order other people to produce information in their possession which would assist the accused. (O'Connor [1995] 4 S.C.R. 411).
However unfair this seems to the complainant, you should not ask third parties to destroy their private records just to protect her. (Carosella [1997] 1 S.C.R. 80)Instead, in most sexual offences, s.278.2 prohibits disclosure of many private records to the defence without either:
regardless whether police or private parties hold them. Take care not to disclose medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social service records, personal journals and diaries, and other such private material to defence. s.278.1
Defence must make an application to court, and notify the party from whom the information is sought. The judge will decide whether to order disclosure.
Historically, an effective way to defend a sexual allegation was by attacking the character of the complainant. "Because she had sex with me before, or with other guys, therefore she consented to have sex with me this time." "Women of easy virtue are liars."
At court, the victims of sexual offences faced the prospect of an attack on their character, which could reveal their every private sexual act.
Over the 1980's and 1990's, these arguments were debunked, leading to the enactment of s.276 which prohibits the defence from present evidence of the complainant's prior sexual activity in support of these arguments.
Victims often fear this kind of exposure at court. Tell them that there are legal protections for their privacy, but there are exceptions. Don't tell them that none of their sex life will ever be revealed.
Evidence of other sexual activity may be admitted if it really probes an issue in the case. For example, if a rape complainant had engaged in rough consensual sex with her boyfriend just before the rape, this evidence might be admitted to explain her injuries. Or when a wife complains of non-consensual sex with her husband, he might tender evidence of actions or words she used in the past to express her consent to sex, and claim that she used those words or actions on this occasion. (Harris 1997 Ont C.A.)
Many victims of sexual offences are vulnerable because of their youth or mental disabilities. Historically, courts worried that these intellectual deficits might make their testimony unreliable. The law required judges to ensure that these witnesses understood the seriousness of trials and the duty to tell the truth.
This led to absurd exchanges in court rooms. Judges would ask "What is truth?" The six-year-old in the witness box would then attempt to answer a question that thousands of years of philosophy could not.
Now, the law presumes everyone can testify unless someone challenges the witness's competence.
Children under 14 simply promise to tell the truth. Canada Evidence
Act, s.16.1
People over 14 swear or affirm. Canada Evidence Act, s.16.
If someone challenges a child's competence, the court inquires into the witness's ability to communicate the evidence. If he or she does, then the court asks the child to promise to tell the truth.
If someone challenges the competence of a person over 14, the court inquires into:
If the witness fails the first step, but succeeds on the second, then the witness may testify on a promise to tell the truth. R. v. D.A.I., 2012 SCC 5.
Although these simpler rules make it simpler for young and mentally disabled witnesses to testify, it's only fair that someone explain to them what testifying is, so that they know what will be expected of them.
All too often, upset parents tell their child that it's his job to get that pervert convicted. This advice is incorrect and unfair to the child.A witness's job is to tell the truth, not to achieve any particular
result. The witness can not make the decision to convict.
The judge or jury will decide. Some courts will acquit even after
a child does a perfect job of testifying. Therefore, the witness's
only task is to tell the truth about what happened.
When Mr Pal 2007 BCSC 1493 and his friend went on trial for kidnapping and torture, the prosecution applied to the judge for an order permitting the adult victim to testify behind a screen or by video. The victim was afraid of Pal and his buddy. The judge declined the order. Pal and his buddy already knew what the victim looked like. Hiding the victim would do no good to protect him, and there was no evidence that video or screen would be necessary for the victim to give a full account of the offence.
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