INTRODUCTION AND BRIEF DESCRIPTION
A witnesss evidence must be taken under oath and in accordance with section 540.
SECTION WORDING
507(3) A justice who hears the evidence of a witness pursuant to subsection (1) shall (a) take the evidence on oath; and (b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied.
EXPLANATION
Section 507(3) of the Criminal Code of Canada outlines the procedure for taking evidence from a witness who is unable to attend court due to illness, injury, or other valid reasons. It is important to note that this section applies only in cases where the witness is unable to attend court, and is not used as a substitute for oral testimony by a witness in court. According to this section, a justice who hears the evidence of a witness pursuant to subsection (1) - which deals with the ability of a justice to order the taking of evidence outside of court - is required to take the evidence on oath. This means that the witness must swear to tell the truth, and any false statement made under oath can result in charges of perjury being laid against them. Additionally, the justice is required to ensure that the evidence is taken in accordance with section 540 of the Criminal Code, "in so far as that section is capable of being applied". Section 540 outlines the procedure for taking evidence in court, and includes provisions such as the right to cross-examine witnesses, the right to call evidence in rebuttal to witness testimony, and the requirement for the judge or justice to form their opinion based solely on the evidence heard in court. This means that while the witness may not be physically present in court, the same standards for taking evidence are still in place to ensure fairness and accuracy in the judicial process. The justice must ensure that all parties have the opportunity to examine and challenge the evidence presented, and that the final decision is based solely on the evidence presented, whether in court or outside of it.
COMMENTARY
Section 507(3) of the Criminal Code of Canada serves an important purpose in ensuring justice prevails in criminal proceedings. This provision lays down the procedure that a justice should follow when hearing evidence of a witness pursuant to subsection (1). The importance of hearing a witness's testimony under oath is fundamental to ensuring the reliability and truthfulness of the testimony. The first requirement of this subsection is that the witness's evidence be taken under oath. Swearing on oath is a solemn promise to speak the truth. When a witness takes an oath, it signifies that the testimony they are about to provide is genuine, and they are willing to bear the legal consequences of perjury if they provide false information. Being sworn in also signifies that the witness understands the gravity of their role in the proceedings and the importance of being honest. It is therefore crucial that witnesses understand the implications of swearing an oath, as it expresses the importance of their role and the need for them to provide truthful information. The second requirement of section 507(3) is that evidence of a witness is to be taken in accordance with section 540, insofar as that section is capable of being applied. Section 540 of the Criminal Code provides for the procedure for taking witness evidence. This includes the presentation of the witness, the method of taking evidence, and the cross-examination of the witness by counsel. The reason section 540 is applicable is that it provides a standard procedure that helps ensure a fair and unbiased process. This allows the judge or justice presiding over the case to take the evidence of a witness in an organized, standardized manner. Furthermore, the application of this section is dependent on the extent to which it can be applied. This means that any differences in the circumstances of each case will mean that some parts of section 540 may not be applicable to all situations. That being said, the application of this section is essential in maximizing the accuracy of the evidence introduced in court as it provides a framework or guide based on which both the witness and the lawyers can present and examine the evidence. In conclusion, section 507(3) of the Criminal Code of Canada serves as an essential tool in the process of hearing a witness's testimony. It ensures that witnesses appreciate the role they play in the proceedings and encourages them to provide accurate and truthful information. As a result, the criminal justice systems benefit from data that is reliable and unbiased, which, in turn, helps judges or justices presiding over cases to make informed decisions. Overall, section 507(3) is a crucial provision that plays a significant role in ensuring the integrity of criminal proceedings in Canada.
STRATEGY
Section 507(3) of the Criminal Code of Canada is an important provision that defines the procedure for collecting evidence. It mandates that a justice who hears the evidence of a witness pursuant to subsection (1) shall take the evidence on oath and cause the evidence to be taken in accordance with section 540 as far as it is applicable. This provision has significant implications for the prosecution and defense in criminal cases. One strategic consideration for dealing with section 507(3) is to ensure that the evidence collected is admissible in court. The provision requires that a justice takes the evidence on oath, which means that the witness must make a formal declaration to tell the truth to the best of their knowledge. The defense team may challenge the admissibility of evidence collected under this provision if the oath is not administered properly or if there is any doubt about the reliability of the evidence. Another strategy for dealing with section 507(3) is to use it effectively to build a strong case. The provision allows for the collection of evidence in accordance with section 540, which guides the procedure for taking evidence from witnesses. The prosecution can use this section to ensure that all evidence is collected legally, which can speed up the trial process and make the trial run more smoothly. The defense team may use this section to argue that the evidence collected was not done so in accordance with section 540 and hence could be excluded from the trial. It is essential to consider the timing of when to bring an application for subsection (3) to be exercised. At the beginning of a trial, it may not be clear whether a particular witness's evidence is necessary, so the provision may not be exercised in every case. Counsel must determine on a case by case basis whether the evidence will be required and also determine whether there will be any procedural challenges to the evidence. Strategic considerations also need to be made when dealing with hearsay evidence. Section 507(3) indicates that evidence must be taken in accordance with section 540, which means that the rules of hearsay apply. This can be problematic for prosecutors since hearsay evidence is generally not admissible. Section 540(7) provides an exception where hearsay evidence may be taken into account if provided by a child witness and (a) the child is available to testify at the trial; and (b) in the opinion of the court, the taking of the evidence outside the courtroom would further enhance the possibility of obtaining a full and candid account of the acts complained of." This rule can be used to obtain evidence from a reliable source who is unavailable or unable to testify in court. Lastly, strategic considerations need to be made with regard to the manner in which the examination-in-chief of the witness will be conducted. The procedure for taking evidence as outlined in section 540 includes providing copies of the statement to all parties, which then allows for sufficient time for counsel to prepare to cross-examine. The defense may opt to waive cross-examination, depending on the testimony of the crown's witness in examination-in-chief. If the defense does not opt to waive cross-examination and one is conducted, it may result in a delay in the trial. In conclusion, section 507(3) of the Criminal Code of Canada provides important guidance on how to collect evidence from witnesses. Counsel on both sides should consider the strategic implications of using this provision to build a strong case, ensure the admissibility of evidence, and make effective use of the rules of hearsay in the trial. Effective utilization of section 507(3) can have a significant impact on the outcome of a criminal trial, hence strategic consideration is necessary.