Monday, April 15, 2013

Witness exclusion orders and calling a party after others have testified


Witness exclusion orders are customary in both civil and criminal trials.  In both cases the parties are allowed to remain in court, even if witnesses, regardless of the exclusion order.

In civil cases the parties may be ordered to give testimony before other witnesses: Blajic v Windsor Air, [1995] O.J. 4045 (C.A.).

Such power to govern the order witnesses are called in does not exist in criminal matters (see Angelantoni (Ont. C.A.), [1975] O.J. No. 884) however, if the accused is called last that may lead to the accused’s evidence, especially in alibi cases, being given less weight:


T.L.P., [1996] A.J. No. 1156 (CA):

    There are two aspects of the trial which cause us concern about the manner in which the trial judge assessed the credibility of the witnesses and the evidence. The first arises from comments made by the trial judge after the appellant had been examined-in-chief but before she was cross-examined. After referring to the fact that the appellant had been called as the last defence witness, the trial judge said:
    • It makes her evidence useless or shall we say I would give little weight to that fact . . . I give very little weight to the accused's evidence.
    While it is true that in alibi cases, calling the accused out of order, that is, other than as the first witness, may, and quite frequently does, diminish the weight to be accorded to her evidence, it does not necessarily do so and certainly does not destroy entirely the credibility of that evidence. An accused is entitled to have his or her evidence heard in full and assessed in conjunction with all of the other evidence presented at the trial and in the light of the submissions of counsel. It is quite clear here that the trial judge committed himself to an adverse assessment of the evidence of the appellant in isolation and before hearing the conclusion of her evidence and before hearing the submissions of counsel.
SPARRE, [1977] O.J. No. 2598 (County Court):
    In the Archer case alibi was the sole defence advanced at the trial. Chief Justice Gale, on behalf of the Court, dealt with this issue in a very brief paragraph at the conclusion of his judgment. They key sentence in that paragraph is as follows:
    • We are of the opinion that the Judge was correct in so ruling because in these circumstances, having regard to the only defence presented, it was for the appellant's benefit that he did so.
    The editors of the Criminal Appeal Reports have somehow extracted from this brief comment by the Chief Justice the following headnote:
    • "When his defence is alibi, the accused should be the first witness for the defence."
    In my respectful view, this rather overstates the proposition of law, if any, being advanced by the Court of Appeal. I say "if any", with respect, because I do not read the decision in the Archer case as going as far as the headnote would lead one to believe. In my view, the Archer case is to be restricted to the peculiar facts that were before the Court of Appeal for their consideration. Mr. Williams quite candidly drew to my attention a subsequent decision of the Ontario Court of Appeal in R. v. Angelantoni (1975), 28 C.C.C. (2d) 179, 31 C.R.N.S. 342, wherein it was held that the Court does not have the power to direct defence counsel as to the sequence of the defence witnesses. This was also the decision of the British Columbia Court of Appeal in R. v. Smuk (1971), 3 C.C.C. (2d) 457, 15 C.R.N.S. 218, [1971] 4 W.W.R. 613. It is my view that the law is correctly stated in both the Smuk case and the Angelantoni case and that no special rule applies to the order in which defence witnesses may be called where the defence is alibi.
    Therefore, I rule that counsel for the defence can conduct the defence as she sees fit and that should the defence be alibi there is no need to call Mr. Sparre, the accused, as the first witness.


Karamitsos, [2006] O.J. No. 1032 (C.J., Lampkin J.):

54     There are also certain circumstances which affect the weight of the evidence of Mrs. Karamitsos and her witness Jennifer McClean. First and foremost is the fact that they had discussed this matter on a number of occasions including the details, the last such occasion being the day before they testified. Secondly is the fact that Mrs. McClean testified before Mrs. Karamitsos while the latter sat in court and heard her evidence. While the Defence has an absolute right to call its witnesses in any order it wishes, when its witnesses testify before the Defendant does, it is a factor to be considered by the trier of fact in weighing the evidence: R. v. Smuk (1971), 3 C.C.C. (2d) 457. There was no apparent reason for calling Ms. McClean before Mrs. Karamitsos -- such as she had an appointment and had to leave. After her testimony Ms. McClean sat in court, heard the evidence of Mrs. Karamitsos and the two women then sat together right through to the end of the submissions. 

Thanks to Yossi for the criminal cases!

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