Exclusion of Witnesses


One limitation on the principle of an open court is the practice as to exclusion of witnesses. 

No rule of law requires in a trial that the witnesses to be called by one side must all remain out of the court until their turn to give testimony arises. This is purely a matter within the discretion of the court.

Moore v. Lambeth County Court Registrar, [1969] 1 W.L.R. 141.

In criminal cases the trial judge may order any witness, other than the accused [FN], excluded from the court room. Unless otherwise directed by the judge, such a witness must remain outside the court room until all of the evidence, including that given in rebuttal is completed.

If a witness nevertheless remains in court:

(a) he is not necessarily disqualified, although, in certain circumstances, the trial judge may exclude his evidence;

(b) the weight, if any, to be given to his evidence is for the jury, or for the judge, if there is no jury, to decide.

R. v. Dobberthien, 1974 CanLII 184 (SCC), [1975] 2 SCR 560.

A witness who remains in Court, disobeying an order for their withdrawal, may be cited in contempt.

Prejudice is presumed where a witness has heard a previous witness’ evidence in violation of an exclusion order. When this occurs, a caution to the jury is necessary.

            R v Dobberthein, 1974 CanLII 184 (SCC), [1975] 2 SCR 560 .

The traditional justification for excluding witnesses is the danger that if the hearing of opposing witnesses were permitted, the listening witnesses could ascertain the points of difference between their testimonies and could shape their own testimony to better advantage.

However, beyond the danger of a witness intentionally tailoring her evidence in light of the evidence she has heard, there is the risk that her evidence may be influenced or compromised by the overheard evidence in other ways.  The influence of the overheard evidence may be multifaceted, nuanced, pervasive and difficult to identify and therefore difficult to effectively overcome.

[FN] See section 650 (1.1) to (2) of the Criminal Code for exceptions to the rule that the accused is to be present during his trial. 

Written by Stuart O’Connell (Barrister/Solicitor).

Location: Toronto, ON, Canada

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more