INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the requirements for giving evidence under oath or affirmation in Canadian law or in the place where the witness is physically present.
SECTION WORDING
714.5 The evidence given under section 714.2 or 714.4 shall be given (a) under oath or affirmation in accordance with Canadian law; (b) under oath or affirmation in accordance with the law in the place in which the witness is physically present; or (c) in any other manner that demonstrates that the witness understands that they must tell the truth.
EXPLANATION
Section 714.5 of the Criminal Code of Canada is an important provision that outlines the ways in which witnesses must provide evidence in criminal proceedings. Essentially, this section sets out three different options for witnesses to give their testimony under oath or affirmation. The first option is to give evidence under oath or affirmation in accordance with Canadian law, which means that witnesses must affirm or swear to tell the truth, the whole truth, and nothing but the truth in a manner that is recognized by Canadian law. This is the traditional way of giving testimony and is often administered by an officer of the court. The second option is for witnesses to give evidence under oath or affirmation in accordance with the law in the place where they are physically present. This is useful for cases where the witness is located in a foreign jurisdiction, and allows them to give testimony using the local legal procedures. This could include taking an oath or affirmation in front of a local official, such as a notary public. The third option available to witnesses is to provide evidence in any other manner that demonstrates they understand that they must tell the truth. This allows for more flexibility in how testimony is given, especially in cases where the traditional methods may be difficult or impractical. For example, a witness could provide evidence via videoconference or by submitting an affidavit that has been sworn before a commissioner of oaths. Overall, section 714.5 is an important part of the Criminal Code of Canada as it ensures that witnesses are held to a high standard of truthfulness when giving evidence in the court of law. By providing a range of options for witnesses to provide testimony under oath or affirmation, the law ensures that justice may be served in a fair and transparent manner.
COMMENTARY
Section 714.5 of the Criminal Code of Canada or the Code is a crucial provision concerning the admissibility of evidence in criminal trials. The section pertains to the testimony of witnesses who are not physically present in court and are testifying remotely. The provision specifies the requirements that such witnesses must fulfill to give their evidence under oath or affirmation. Subsection (a) of section 714.5 requires a witness giving evidence remotely to take an oath or affirmation in accordance with Canadian law. An oath is a solemn promise to tell the truth, while an affirmation is a declaration to that effect. The witness has to choose between taking an oath or affirmation according to their personal beliefs. An oath or affirmation is necessary to ensure the witness's testimony is truthful and based on facts and not speculation or hearsay. The requirement is consistent with the principle that the administration of justice depends on accurate and reliable evidence. Subsection (b) of section 714.5 stipulates that a witness may give evidence under oath or affirmation in accordance with the law of the place they are physically present if different from Canadian law. This provision acknowledges that witnesses may be outside Canada and subject to different legal systems. Foreign jurisdictions may have their own legal requirements regarding the taking of oaths or affirmations. The provision ensures that the witness's evidence is not excluded solely because it was given under an oath or affirmation that does not comply with Canadian law. Subsection (c) of section 714.5 provides a catch-all provision for the admission of evidence given remotely. The subsection states that the witness's evidence may be admitted if it demonstrates that the witness understands that they must tell the truth. This provision allows the court to use its discretion when considering the evidence of a remote witness, particularly when the witness is not familiar with Canadian law or the laws of the country where they are physically present. The requirements under subsection (c) should ensure that the evidence is truthful and reliable. Overall, section 714.5 of the Code is an essential provision that recognizes the increasing reliance on technology to facilitate remote testimony. The provision ensures that the basic principles of justice, truth, and reliability are maintained in the face of technological advancements. The significance of the provision is further emphasized by the current pandemic situation, which necessitates virtual hearings and remote testimony. The importance of the provision in maintaining justice and fairness cannot be overstated. The court system is based on the notion of a fair and impartial trial, where the evidence is reliable and tested, and justice is served accordingly. The requirement for remote witness testimony to take an oath or affirmation ensures that witnesses recognize the seriousness of their obligation to tell the truth. The provision enabling the witness to give evidence in the manner that demonstrates their understanding of the importance of telling the truth further underscores the court's objective of obtaining truthful and reliable evidence. In conclusion, Section 714.5 of the Criminal Code of Canada is a crucial provision that establishes the requirements for remote witness testimony to be admissible in court. The provision guarantees that the fundamental principles of justice, truth, and fairness inherent in the legal system are not compromised by advancements in technology. The provision is a significant reminder that the integrity of the justice system depends on adherence to fundamental principles, irrespective of the medium used to conduct criminal trials.
STRATEGY
Section 714.5 of the Criminal Code of Canada is a critical part of the Canadian legal system because it governs the way that evidence is given in criminal trials. Given the significant impact that evidence can have on the outcome of a case, there are several strategic considerations that legal practitioners should keep in mind when dealing with this section of the code. One of the primary considerations when dealing with Section 714.5 is the role that the witness will play in the trial. Because the evidence given under this section must be under oath or affirmation, it is critical that the witness is both credible and knowledgeable about the facts of the case. Legal practitioners should carefully review the qualifications of potential witnesses and ensure that their testimony is consistent with the other evidence presented in the case. Another strategic consideration when dealing with Section 714.5 is the choice of the manner in which the witnesses' evidence will be given. Under the code, witnesses can give evidence under oath or affirmation in accordance with Canadian law or the law in the place where the witness is physically present. Alternatively, witnesses can give evidence in any other manner that demonstrates their understanding that they must tell the truth. Depending on the nature of the case and the location of the witness, legal practitioners may make strategic decisions about the most appropriate form of evidence to present to the court. A third strategic consideration when dealing with Section 714.5 is the role that technology can play in presenting evidence. Given the global nature of many criminal cases, it is common for witnesses to be located in different jurisdictions or even different countries. In such cases, legal practitioners may need to make use of videoconferencing or other technological tools to allow witnesses to give evidence remotely. This can be an effective strategy, but it also requires careful planning and execution to ensure that the witness's evidence is admissible under the code and that it is presented in a clear and credible manner. Overall, there are several strategies that legal practitioners can employ when dealing with Section 714.5 of the Criminal Code of Canada. By carefully considering the role of the witness, the choice of evidence, and the use of technology, legal practitioners can present compelling and credible evidence in criminal cases, thereby helping to ensure that justice is done.