Practical and Ethical Considerations in Witness Preparation

• Author: Justice Cameron Gunn/Mona Duckett/Patrick McGuinty
• Pages: 3-46

3

Practical

and Ethical

Considerations

in Witness

Preparation

1

I. Preparing the Crown Witness ............................... 

A. Ethical Considerations ............................... 

B. Legal Considerations ................................. 

C. Practical Considerations .............................. 

D. Ethical Take-Aways ................................... 

E. Practical Take-Aways ................................. 

II. Preparing the Accused to Testify . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

A. Early Interviews ..................................... 

B. Trial Preparation .................................... 

C. Planning the Direct Examination ....................... 

D. Ethical Take-Aways ................................... 

E. Practical Take-Aways ................................. 

III. Preparing the Accused to Be Cross-Examined .................. 

IV. Preparing to Cross-Examine a Witness ........................ 

A. Information Gathering ............................... 

B. Analysis ........................................... 

C. Organization ....................................... 

V. Preparing to Cross-Examine the Accused ...................... 

A. Improper Cross-Examination .......................... 

B. Proper Cross-Examination ............................ 

C. Ethical Take-Aways ................................... 

D. Practical Take-Aways ................................. 

VI. Interviewing an Adverse Witness ............................. 

VII. The Signicance of the Accused’s Failure to Testify .............. 

VIII. The Right to Silence in the Context of Alibi Evidence ............. 

IX. Adverse Inferences Against the Crown for the Failure to

Call Witnesses ........................................... 

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4Part I Witness Preparation

I. Preparing the Crown Witness

A. Ethical Considerations

Prosecutors in Canada have a unique and dicult role. They are both quasi- ministers

of justice and advocates within the context of the adversarial process.1 The well-

known and oft-quoted passage in Boucher v The Queen2 reminds them of their con-

comitant obligations to press a case to its legitimate strength but to do so firmly and

fairly with no notion of winning or losing.3

Despite the apt call to be thoughtful and ethical in the exercise of their role, a pros-

ecutor is entitled and obligated to “vigorously pursue a legitimate result to the best of

its ability,” which “is a critical element of this country’s criminal law mechanism.”4

The Crown determines which cases it will prosecute, how it will conduct those cases,

and what evidence it will call, all of which are an exercise of Crown discretion.5

In exercising discretion, a prosecutor will almost invariably be required to conduct

witness interviews, either to determine whether and how to prosecute a case or in

preparation for the prosecution. The Supreme Court of Canada has endorsed the

appropriateness of a prosecutor interviewing potential witnesses in both a pre-charge

and post-charge setting. The Court noted that pre-charge interviews “may advance

the interests of justice”6 by promoting eciencies, assessing witness credibility, pro-

moting a single decision on whether the Crown will approve a charge, protecting

Canadian Charter of Rights and Freedoms7 interests, and by screening out fruitless

charges or encouraging proper charges to go forward.8

The advantage of meeting with potential witnesses is not exclusively related to

making decisions on charge approval or trial conduct. It is necessary for prosecutors

to interview witnesses prior to their testifying9 for the “ecient administration of

justice and the truth finding process.”10 Preparation of any witness is not simply a

matter of good advocacy, but a duty imposed on prosecutors “in order to present all

available legal proof of the facts.”11

1 R v Cook, [1997] 1 SCR 1113 at para 21, 1997 CanLII 392.

2 Boucher v The Queen, [1955] SCR 16, 1954 CanLII 3.

3 Boucher v The Queen, [1955] SCR 16 at 23-24, 1954 CanLII 3.

4 R v Cook, [1997] 1 SCR 1113 at para 21, 1997 CanLII 392.

5 R v Jolivet, 2000 SCC 29 at para 16; R v Darrach, 2000 SCC 46 at para 69.

6 R v Regan, 2002 SCC 12 at para 83.

7 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B

to the Canada Act 1982 (UK), 1982, c11 [Charter].

8 R v Regan, 2002 SCC 12 at paras 84-86.

9 R v Laird, 2013 ONSC 5457 at para 424.

10R v Trought, 2019 ONSC 1421 at para 18.

11R v Browne, 2016 CanLII 106224 at para 12 (Ont Sup Ct J).

Copyright © 2023 Emond Montgomery Publications. All Rights Reserved.

Chapter  Practical and Ethical Considerations in Witness Preparation 5

Despite the general endorsement of witness preparation, there are bounds to the

scope of the preparation. The danger in an improper preparation of a witness is signif-

icant, and contamination by pre-trial practices may amount to an abuse of process.12

The practice of preparation is determined circumstantially and contextually, but a

useful starting point is understanding the ethical obligations on lawyers generally and

prosecutors in particular.

1. Sources of Guidance

Prosecutors are guided by several sources, beyond jurisprudence, in their conduct

with respect to witness preparation. The extent and content of that guidance depends

upon the jurisdiction in which the prosecutor normally acts. On occasion, prosecutors

may conduct trials in more than one province. You should ensure that you are familiar

with, and adhere to, the jurisdictional specific guidance.

While a prosecutor is unique in their role as an agent of the attorney general,13 this

does not insulate a prosecutor from their professional obligations pursuant to their

respective law society’s standard of conduct. The Supreme Court of Canada has held

that there is a “clear distinction between prosecutorial discretion and professional

conduct.”14 Actions undertaken in an exercise of prosecutorial discretion are not sub-

ject to the jurisdiction of a law society, but those actions that fall within the definition

of professional conduct do come under such jurisdiction.15 Given this, it is imperative

that you be familiar with the relevant code of conduct for lawyers in your jurisdiction.

a. Codes of Conduct

In 2017, the Federation of Law Societies of Canada adopted a Model Code of Profes-

sional Conduct.16 The Code has a rule that speaks specifically to prosecutors. Rule

5.1-3 reads:

5.1-3 When acting as a prosecutor, a lawyer must act for the public and the administra-

tion of justice resolutely and honourably within the limits of the law while treating the

tribunal with candour, fairness, courtesy and respect.

This rule, in the context of the preparation of witnesses, is augmented by rule 5.4

of the Code: “Communicating with Witnesses.” While this rule is not specific to

12R v Spence, 2011 ONSC 2406 at para 32.

13Krieger v Law Society of Alberta, 2002 SCC 65 at para 23.

14Krieger v Law Society of Alberta, 2002 SCC 65 at para 50.

15Krieger v Law Society of Alberta, 2002 SCC 65 at para 50.

16Federation of Law Societies of Canada, Model Code of Professional Conduct (19 October 2019),

online: <https://flsc.ca/national-initiatives/model-code-of-professional-conduct>.

Copyright © 2023 Emond Montgomery Publications. All Rights Reserved.