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2 Calling Witnesses
• Subpoena: A formal, legal document requiring a witness to appear at a hearing in a
criminal case
• Summons: A formal, legal document requiring a witness to appear at a hearing in a
civil case
• Witnesses failing to appear can result in adjournments and even warrant for arrest
• Witnesses must be both competent and compellable
•
3 Competency and Compellability
• Competence: The legal ability to give oral evidence in a hearing
• Two aspects of competence:
• Capacity: An acceptable ability to observe and then correctly recall observations or
experiences, and an acceptable ability to communicate these observations to the
trier of fact
• Responsibility: The ability to comprehend the necessity of being truthful and the
consequences for not telling the truth
• Incompetent: not permitted to give evidence
•
4 Competency of Child Witnesses
• Historically, at common law, there was a rebuttable presumption that children over the
age of 14 were competent to give evidence
• Children under 14 years old had to be qualified to testify
• Statutes have modified these requirements
• Sections 16 and 16.1 of the Canada Evidence Act presumes a child under 14 years of
age to have the capacity to testify
• Judge considers whether the child is capable of understanding and responding to
questions
• Under Ontario Evidence Act, court determines whether a child understands the nature
of oath or solemn affirmation

5 Competency of Spouses
• Historically, at common law, parties and their spouses were not considered competent
• Section. 4(1) of the Canada Evidence Act
• Both the accused and his or her spouse are competent to give evidence for the
defence
• Prosecution may call a spouse of an accused person for offences listed under ss. 4(2)
and 4(4)
• Right of a spouse to give evidence against the accused when the spouse’s own safety
is at risk

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Right of a spouse to give evidence against the accused when the spouse’s own safety
is at risk
•
6 Compellability
• Compellable: Able to be legally required to give evidence at a hearing
• Witness can be forced to give evidence and refusal will result in legal consequences
• Contempt of court, leading to incarceration
• Charter exception to self-incrimination
• Section 5 of the Canada Evidence Act requires a reluctant witness to testify

•
7 Examination-in-Chief
• Examination-in-chief: Questioning of a witness by the party who called the witness;
objective is to bring out information that establish facts that the litigant must prove to
win the case
• Refrain from asking leading questions
• They give the witness a clue as to what is the “right” answer or what is the expected
answer
• They are acceptable for introductory or non-contentious matters, and some other
exceptions which help with flow
•
8 Cross-Examination
• Cross-examination: The questioning of a witness by opposing counsel after
examination-in-chief
• Leading questions permitted
• Gradually works witness into a corner
• Gives testimony less weight or discount the testimony entirely
• Gains information that is helpful to your case
•
9 Cross-Examination
• Truth will emerge through testing the evidence
• Concern over inconsistent statements
• Shouting at and badgering a witness is not permitted in Canadian courts
• Paralegals must not be insulting, aggressive, or hostile
• Affects trial fairness and public perception of the justice system
•
10 Cross-Examining Your Own Witness
• Hostile witness: A witness who has been called by a party to give evidence but is
uncooperative and responds with hostility to the questions posed by counsel during
cross-examination

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cross-examination
• Counsel can shift into cross-examination to more closely control witness once judge
declares them hostile
11 Cross-Examining Your Own Witness
• Adverse witness: A witness whose testimony shows her interests to be aligned with the
opponent and who is therefore likely to colour her evidence in favour of the opponent
• Can be polite and forthcoming in evidence
• Show an inconsistency between what the witness says on the stand and an earlier
statement
• see s. 9 of the Canada Evidence Act
• Prior inconsistent statement can be admitted as proof of the truth of the assertions in
the statement
• Exception to hearsay
12 Failure to Cross-Examine a Witness
• Counsel must give the witness a chance to explain any contradictions or
inconsistencies
• Otherwise, judge may direct that earlier witness be recalled
• Alerting the witness to a contradiction in an earlier statement referred to as “laying the
foundation”
• Failure to cross examine can be seen as accepting evidence without challenging its
veracity
13 Re-Examination
• Restricted to asking questions on topics that were not dealt with in examination-in-
chief and that the examiner could not have anticipated would be dealt with in cross-
examination
• Cannot be used to get the last word in or re-emphasize key points
• Can “rehabilitate” the credibility of the witness after an attack in cross-examination
• May call additional witnesses, including possibly expert witnesses
•
14 Credibility and Reliability
• Credibility is attacked by attempting to show that the witness is biased and therefore
has a motive for lying
• Relationship that witness has with party
• Witness and the party have a common interest
• Witness has been induced to change or fabricate story
• Demonstrate a bias
• Witness has a history of dishonesty and is of poor character (but not criminal
accused)

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15 Credibility and Reliability

• Reliability is attacked by undermining the confidence that the trier of fact has in the
witness’s capacity to observe, remember, and communicate
• Discredit the testimony based on visibility
• Reduce impact of testimony by testing the witness’s ability to recall details
• Attempt to show that the witness’s testimony is imprecise or misleading and
therefore unreliable
16 Impeaching Testimony
• “Impeach” the evidence of a witness
• Limit the impact of the evidence on the trier of fact or convince the trier of fact to
ignore the evidence entirely
• In cross-examination, the statements of the witness are challenged directly
• Other witnesses, including on occasion expert witnesses, can be called to contradict
what a witness has said

•
17 Prior Inconsistent Statements
• Impeaching a witness could be done through prior inconsistent statements
• If witness adopts prior statement as true, it forms part of that witness’s evidence and
may be weighed by the trier of fact
• If the prior statement is not adopted, it can be used only to challenge the truthfulness
of that witness, but is not evidence of its contents.
• Exception: circumstantial guarantees of reliability: aspects of circumstances
surrounding the formation of the evidence that enhance its reliability
18 Bolstering the Credibility of Your Own Witness
• Prohibited from calling evidence designed to enhance credibility of one your own
witnesses
• Recall similar prohibition against oath helping in chapter 9
• Honest and reliable people have been known to be untruthful
• Recall similar concept in character evidence in chapter 8
19 Collateral Facts Rule
• Collateral facts rule: Rule that limits the calling of additional evidence to contradict
evidence on an issue that is not before the court
• Courts lean toward finding general credibility matters to be more collateral than
substantive and will look at:
1. Bias or interest in the litigation,
2. Past convictions or untruthfulness, or

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2. Past convictions or untruthfulness, or

3. Expert evidence that undermines the reliability of the witness.
•
•
20 Refreshing Memory
• Counsel may jog the witness’s memory in certain circumstances
• Present memory revived: Process whereby the witness revives actual memories and
details of an incident
• Photograph, audiotape, videotape, taking the witness to the scene of an incident,
examining an exhibit
• Past recollection recorded: Process whereby the witness recalls the words he or she
made in a statement but not the incident itself
21 Corroboration
• Corroboration: Evidence that supports or confirms other evidence
• Offences of high treason, perjury, or procuring a feigned marriage require a
mandatory warning
• Other offences corroboration is discretionary
• Vetrovec warning: A warning to the jury given where the judge determines that the
evidence of a particular witness is called into question and requires special scrutiny;
• The jurors are cautioned that they may accept the evidence without corroboration
but it is dangerous to do so without independent confirmation of material parts of
that evidence
22 Objections
• An objection can apply not only to oral evidence but also to any other form of
evidence, such as documentary and real evidence
• Once objection is made, judge can either overrule or sustain the objection