Wednesday, July 17, 2013

Hostile and adverse witnesses

Canada Evidence Act:

9. (1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.

"Adverse" is taken to mean that the witness "opposed in interests". This is in distinction with the traditional meaning of "adverse" requiring outward hostility, such as a witness who is belligerent argumentative and un-cooperative, rather than simply hostility in mind.  Adversity can be found by way of many means including demeanor or a prior contradictory statement. Testifying in an unfavourable way contrary to a prior statement can be enough.

An "hostile" witness, by contrast, is a subset of "adverse" witnesses. A hostile witness is one who is "not giving her evidence fairly and with a desire to tell the truth because of a hostile animus towards the [calling party]"  This will capture those witnesses who are belligerent or argumentative. A hostile witness will also engage s.9(1).

An application under s. 9(1) is to be performed without the presence of the jury as a voir dire.

Section 9(1) further provides that before counsel can attempted to contradict a witness with a previous statment, counsel has the obligation to first mention the circumstances of the statement to the witness, including the particularities of the occasion it was made, and confirm with the witness whether the statement was made by him.

Where the court gives permission to cross examination, the counsel may impeach the witness. Counsel may not use it to bolster favourable evidence from the witness.

Section 9(1) does not permit counsel to cross examine at large. It is only an ability to cross examine on the circumstances of the prior statement. Only a declaration of hostility permits cross examination at large.

Whenever there is an application under s.9, the applicant must inform the judge what the purpose of tending the prior statement.



A Mac said...

Here's a bit of an odd situation, relating to hostile witness designation (speaking hypothetically):

What if... A considerable list of witnesses is relied upon to lay charges against a defendant and all their sworn statements are provided in disclosure - but the Crown refuses to call them at trial, because they discredit their case and favour the defendant heavily?

(What if) a strategic choice is made to only call the complainant and the Crown nixes everyone else? (What if) they also refuse to call the investigating officer because it could prove evidence was obtained without a warrant, if police have to report what's in their notes?

The idea is to force the defence attorney to subpoena these adverse parties themselves, based on the premise they generally can't cross examine EVERY witness they're calling to the stand (because the defence case is proven by the Crown's own witnesses).

(What if) this creates a situation where all testimony is technically hostile, because those witnesses reported with intent to support the complainant, without realizing their statements cleared the defendant at the time they made them?

It's a given the Crown has a code of conduct to uphold, but lets say it's ignored it in this hypothetical instance. What would be the proper course of action for the defence to take if a situation like this arose? Are there any precedents to guide a challenge quite like this?

Thanks in advance for your insight, James. It's truly appreciated to help understand the law.

Brian Busby said...
This comment has been removed by the author.
Anonymous said...

Tough situation. I would bring an abuse of process application but be prepared to call the witnesses. Email me if you like at and we can ├ęchat. James