INTRODUCTION AND BRIEF DESCRIPTION
This section defines the term witness in the context of judicial proceedings in Canada.
SECTION WORDING
118 In this Part, "witness" means a person who gives evidence orally under oath or by affidavit in a judicial proceeding, whether or not he is competent to be a witness, and includes a child of tender years who gives evidence but does not give it under oath, because, in the opinion of the person presiding, the child does not understand the nature of an oath.
EXPLANATION
Section 118 of the Criminal Code of Canada defines a "witness" as a person who provides evidence in a court proceeding, whether it is given orally under oath or through an affidavit. The definition of a witness under this section is broadened to include a child of tender years who may provide evidence but not necessarily under oath. The reason for this is that the presiding officer may determine that a child does not fully comprehend the nature and significance of taking an oath. The inclusion of a child of tender years as a witness reflects the legislative intent to recognize and protect the rights and interests of children in legal proceedings. The Criminal Code acknowledges that children may have different cognitive abilities depending on their age, and it is therefore essential to ensure that children's testimony is taken into account, even if they cannot do so under oath. This provision is consistent with Canada's overarching principles of fairness, equality, and protecting the rights of children, which are enshrined in the country's legal framework. In summary, section 118 of the Criminal Code defines the term "witness" and provides the parameters for how a witness will give evidence in a judicial proceeding. It recognizes the importance of including children of tender years as witnesses, and it attempts to ensure that their testimony is given due consideration in court proceedings. It is an essential section of the Criminal Code that guarantees a fair and just legal system for all.
COMMENTARY
Section 118 of the Criminal Code of Canada is a crucial provision in the justice system of the country. It defines the term "witness" and lays out the circumstances under which a person can testify in a judicial proceeding. According to this section, a witness is a person who gives evidence orally under oath or by affidavit and includes a child of tender years who gives evidence but does not give it under oath. The importance of this provision lies in the fact that it ensures that justice is served impartially and effectively. A witness is a person who can provide crucial evidence in a case, and it is essential to ensure that their testimony is given due consideration. By defining the term "witness," section 118 ensures that only those who meet certain criteria can provide evidence in a court of law. This, in turn, helps to maintain the credibility and integrity of the justice system. Section 118 also recognizes the importance of child testimony in legal proceedings. Children who are of tender age are often vulnerable and may not fully comprehend the significance of taking an oath. In such cases, the presiding officer has the discretion to allow the child to give evidence without taking an oath. This provision is crucial as it allows child witnesses to provide testimony that can be vital to the outcome of a case while ensuring that they are not subject to undue pressure or stress. A witness does not need to be competent to testify in Canada, as per this provision. This means that a witness who suffers from mental illness or other cognitive disabilities can still provide testimony in a court of law. This recognizes that every person has a right to justice, regardless of their mental or physical condition. However, it also highlights the need for special measures to ensure that these witnesses can testify effectively, such as providing them with a support worker or a communication aid. In conclusion, Section 118 of the Criminal Code of Canada is a critical provision that helps to ensure that justice is served fairly and efficiently. The provision defines the essential term "witness" and recognizes the importance of allowing child witnesses to give evidence without taking an oath. It also acknowledges the right of every individual to testify, regardless of their mental or physical condition. Overall, Section 118 plays a crucial role in maintaining the credibility and integrity of the Canadian justice system.
STRATEGY
When dealing with Section 118 of the Criminal Code of Canada, there are several strategic considerations to keep in mind. The primary focus should be on ensuring that witnesses are protected from retaliation or harm while providing their testimony. Additionally, it is important to ensure that witnesses are comfortable with the process and feel empowered to share their story without fear of repercussions. Some strategies to achieve these goals include: 1. Preparing Witnesses - One of the most effective ways to ensure that witnesses feel comfortable and confident during the legal process is to prepare them for what to expect. This preparation should include an explanation of the legal process, the witnesses' role in it, and the various options available for protection and support. 2. Providing Protection - Another important strategy when dealing with Section 118 of the Criminal Code of Canada is to provide adequate protection to witnesses who may be at risk of retaliation or harm. This can include measures such as providing anonymous testimony or witness protection programs. 3. Empowering Witnesses - Empowering witnesses to confidently share their story is essential in ensuring that justice is served. Strategies such as providing accessible resources, offering emotional support, and explaining the importance of their testimony can go a long way towards empowering them to participate. 4. Building Trust - Finally, building trust with witnesses is paramount to ensuring a positive outcome. Lawyers and legal representatives should take the time to build rapport with witnesses, listen to their concerns, and provide open and honest communication about the legal process. Overall, when dealing with Section 118 of the Criminal Code of Canada, it is essential to prioritize the safety and comfort of witnesses. Strategies such as preparing witnesses, providing protection and support, empowering witnesses, and building trust can all contribute to a successful legal outcome. By taking these considerations into account, legal professionals can help ensure that justice is served while protecting the rights and wellbeing of all involved.