Topic 1: Identifying Witnesses
It is sometimes the case that persons found as apparent witnesses to an event do not always
provide accurate information about their identity. The reasons for this deception can vary from
actual involvement in the crime to fear of reprisals from the suspect to simply not wanting to
become involved with the criminal justice system. Regardless of the reason, it is imperative for
an investigator to verify the identity of each witness. This can be best achieved by viewing a
valid photo ID or, in the absence of photo ID, by establishing the witness’ identity through other
means, such as police records, confirmation of identity, or verification of identity by a credible
third party.
Topic 2: Witness Types
Once the identity of a witness has been determined, an investigator needs to establish an
understanding of the witness classification. Different types of witnesses will provide evidence
from different perspectives, and these perspectives need to be assessed by the investigator to
establish the reliability of the evidence provided. This is important for several reasons, including
that if charges ever go before the court, a judge will also consider these witness types and apply
appropriate rules of evidence and levels of probative value to the evidence each type of witness
provides.
Eye Witnesses and Corroborative Witnesses
As discussed in previous chapters, evidence can be classified as either direct evidence indirect
circumstantial evidence. An eyewitness is a person who directly saw the criminal event take
place, while a corroborative witness is a person who can only provide circumstantial or indirect
evidence of the events surrounding the crime. For example, consider two scenarios where a
young cashier is shot to death during the robbery of a convenience store. In the first scenario, one
witness is found at the scene of the crime when the police arrive. This witness was a customer
inside the convenience store. She saw the robber walk up to the counter, raise his handgun, and
shoot the cashier. This witness can identify the suspect. In the second scenario, the witness is a
customer who was walking up to the front of the store when he heard what sounded like a
gunshot. He then saw a man running out the front of the store with a handgun in his hand. Upon
entering the store, he saw the cashier had been shot. He can identify the suspect.
In both scenarios, a male suspect is apprehended in possession of a handgun only two blocks
away from the scene of the crime. In the first scenario, the witness would be classified as an
eyewitness; but in the second scenario, the witness would be a corroborative witness.
In the described scenarios, both witnesses can provide valuable testimony; however, the evidence
of the eyewitness in scenario one would be given more weight at trial because there is a direct
connection that the accused committed the offence through direct evidence, and the court would
not need to make any interpretation on the veracity of any circumstantial evidence. The witness
was present and saw the suspect shoot the victim. The corroborative witness in the second
scenario provides strong circumstantial evidence to suggest that the man running from the store
committed the shooting; however, additional investigation would be needed to support the
circumstantial assumption that the person seen running from the store committed the shooting.
Clearly, eyewitnesses are the type of witness that investigators hope to find in their investigative
efforts. Any police investigator will tell you, eyewitnesses are frequently not present at the scene
of a crime, and therefore investigators need to be skilled at discovering additional physical and
circumstantial evidence that can assist the court in reaching its conclusions in relation to the
evidence of a corroborative witness.
In the second scenario, additional evidence that might assist the court to reach a conclusion that
the suspect running from the store was the shooter might include the following: ballistics from
the handgun seized from the suspect matching the fatal bullet found in the body of the accused,
gunshot residue from the hand of the suspect showing that he had recently fired a weapon, and/or
conclusive information indicating that the suspect and the shooting victim were the only two
persons inside the store at the time of the shooting.
This is not to say that these same items of additional evidence would not also be useful to
corroborate the witness in the first scenario. The difference is that, in the case of an eyewitness,
the additional evidence is a value that is added, while in the case of the corroborative witness,
more evidence is required to support the conclusion of guilt beyond a reasonable doubt.
Independent Witness
In addition to considering the evidence of a witness based on being an eyewitness or a
corroborative witness, the court will also give additional weight to evidence that comes from a
person who is an independent witness. An independent witness is sometimes referred to as a
third-party witness. They are characterized as independent because;
• They are not associated with the victim
• They are not associated with the suspect
• They are not in any way associated to the criminal event
In other words, an independent witness is someone with nothing to lose and nothing to gain by
the outcome of the case. With this inferred lack of vested interest to either side, the independent
witness is seen by the court as providing unbiased testimony. Similar to the court, an investigator
can attribute more confidence to statements made by persons who are established to be
independent eyewitnesses or independent corroborative-witnesses to an event.
Topic 3: Competence and Compellability
For a person to be called as a witness to testify in court, that person must be accepted by the
court as being both a competent witness and a compellable witness. There are some rules that
apply to assessing both competence and compellability of witnesses, and it is important for an
investigator to understand these rules and definitions since it can negatively affect a case if key
evidence is expected from a witness who is found either not competent or not compellable to
testify. The examination here is not intended to be a comprehensive review of the rules of
competence and compellability, but an overview of the main statutory issues. Case law relating
to the finer points of witness competence and compellability is constantly evolving and, where
applicable, may be presented in a court to challenge a witness.
A Compellable Witness
Most of the people an investigator will encounter during their investigations will be considered
compellable to testify. Any person can be compelled to attend court as a witness by way of
issuing a subpoena. If they fail to attend court after being served with a subpoena, the court may
issue a warrant for the arrest of that witness to bring them before the court to testify. That said,
once a person is compelled to attend court by either a subpoena or a warrant, there are still
certain circumstances under which that person may be considered exempt, or not compellable to
provide certain types of testimony. These circumstances relate to when the witness is an accused
person or when the witness is the spouse of the accused.
1. An accused person cannot be compelled. Under Sec 11 of the Canadian Charter of
Rights and Freedoms (1982), an accused person cannot be compelled to testify at his or
her own trial. However, if the accused person is charged jointly with another person, they
may be compelled to testify against their co-accused. Under those circumstances, the
witness can be afforded protection under the Canada Evidence Act (1985) and their
testimony cannot subsequently be used against them at their own trial for that same
offence.
2. When the witness is married to the accused. To preserve the privilege of
communication between two partners in their marriage, legislation and case law provides a
protection of privacy, and anything said between two married partners in relation to a
criminal event cannot be compelled as testimony in court. This exemption to testify is
stated under the Canada Evidence Act (1985). Specifically, Sec 4(3) states:
No husband is compellable to disclose any communication made to him by his
wife during their marriage, and no wife is compellable to disclose any
communication made to her by her husband during their marriage.
Many people incorrectly believe that this is a blanket protection where one spouse
cannot testify against the other. However, the legislation only provides protection
to the communication between spouses. It does not restrict a spouse being called
to testify regarding observations of physical evidence or relationships. For
example, a husband may arrive home covered in blood and carrying a bloody
knife confessing to his wife that he just stabbed someone to death. Although the
communication of the confession of the crime would not be compellable
testimony, the observations of the blood, the knife, the time and location of the
observation would be a compellable testimony. On this point, Sec 4(2) of the
Canada Evidence Act (1985) also states:
No person is incompetent, or compellable, to testify for the prosecution by
reason only that they are married to the accused.
In addition to the ability to call a spouse to testify regarding observations of
evidence, the prosecution can compel a spouse to give evidence, including personal
communications, for the prosecution in cases that involve an offence of violence
against that spouse and certain sexual offence against children.
A Competent Witness
Like the rules of compellability, persons are presumed to be compellable to testify unless they
meet the exceptions stated under the Canadian Charter of Rights and Freedoms or The Canada
Evidence Act. All witnesses are also considered competent to testify unless it can be shown that
they lack certain personal abilities or capacities. Historically, common law barred certain people
from testifying. These people included convicted criminals, very young children, the mentally ill,
and spouses of an accused person.
Many of these rules have been overturned by statute, for example, the rule against convicts was
removed by section 12 of the Canada Evidence Act (1985). The record of a convicted person can
still be used as character evidence.
There are three classes of exceptions; children, persons with low mental capacity, and spouses.
For each of these classes of people, it is up to the opposing counsel in court to make a challenge
and establish the incompetence of the witness.
There is a presumption that the witness possesses both capacity and responsibility to give
evidence. To testify, a witness needs only the ability to recall what they have seen and heard, and
be able to communicate what they recall. To communicate, the witness must be able to
understand and respond to questions, and the witness must demonstrate the moral capacity to tell
the truth. Moreover, the determination of competency is guided by the following rules
established in case law:
The proof of competency or incompetency is on the balance of probabilities (R v Ferguson,
1996).
Where competency is challenged, it must be established by a voir dire before the witness can
be sworn (R v Steinberg, 1931).
A witness who states that they may not tell the truth is still competent to testify. Such issues
of truthfulness are factors of credibility for the trier-of-fact (R v Walsh, 1978).
When considering the issues of witness competence and compellability, an investigator must
keep in mind that the evidence collected from certain witnesses, such as spouses, children, and
persons of low mental capacity, may be subjected to these rules. Exemptions for witness
testimony and exclusion of the evidence may occur at trial (R v Khan, 1990; Justice Canada,
2017).
That said, during the investigation, it remains within the purview of the investigator to assess the
information and evidence collected, and to consider that evidence when forming reasonable
grounds to believe and take action. When considering the nature of the information and evidence
received, it is not up to the investigator to assess whether the court will accept the information or
not. The investigator’s use of the information and evidence received from a spouse, a child, or a
person of low mental capacity should not be discounted in forming reasonable grounds simply in
anticipation of a possible exemption of the witness and exclusion of evidence by the court. If the
person giving the information or evidence is assessed as being a credible witness, the
investigator should consider that material and give it fair weight in forming reasonable grounds
for belief.
Topic 4: The Witness/Suspect Dilemma
Although the circumstances vary, it is a common occurrence that crimes are reported by a
perpetrator posing as a victim or a witness. Crimes, such as break-and-entry and motor vehicle
thefts, are quite often insurance frauds. Other crimes, including murder, have also had the
offender make the report as a witness to explain their presence at the crime scene and avoid
being considered as a suspect. Being aware of this possibility requires investigators to undertake
a process of validating the reported crime and assessing the information being reported by
witnesses or victims as a routine part of their investigation. To do this, an investigator should be
attentive to questioning the report and the evidence presented to assess:
1. Did the crime happen at the time being reported?It is often difficult for a person
fabricating a report to provide the true timing of the events without implicating
themselves as present at the time of the crime. Asking questions that demand timelines
accounting for witness activities during the crime time can sometimes detect deception.
2. Did the crime happen at the place being reported?Persons fabricating a report will
sometimes change the location of the reported crime to avoid detection of the true crime
scene where incriminating physical evidence may still be present. Carefully assessing the
report in comparison to evidence present or not present can sometimes indicate this
deception.
3. Did the crime happen in the manner being reported?False accounts of crime will often
exaggerate or over report details of the event. The report will contain some level of
fabrication that explains their own connection to the events. Assessing each witness version
of the event for consistency or inconsistency with physical evidence and other witness
versions can reveal deception.
Even with careful attention to these questions, it may not be immediately possible to confirm the
validity of the crime being reported, and the investigation must proceed to take the report as true
until other evidence emerges to prove otherwise.
The advantage of investigating this kind of falsely reported crime is that the suspect is presenting
themselves as a witness or victim. As such, all of their statements may be taken and will be
admissible against them later, without voir dire, if deception in their statement becomes
provable. Until some distinct piece of incriminating evidence emerges, the investigator is under
no obligation to caution or warn the witness. Each new statement can afford opportunities to
investigate further in search of evidence of the lie that will prove deception.
