Witnesses

• Author: David Layton; Michel Proulx
• Pages: 374-426

374

CHAPTER 8

WITNESSES

A. INTRODUCTION

The outcome of a criminal case usually depends on the testimony of

witnesses. A central role for counsel thus lies in determining whether

witnesse s are available to assist the client’s case, in prepari ng witnesses

to testify and eliciting their evidence in court, and in deciding whether

and how to challenge the reliabilit y of witnesses called by the opposing

party. Ethical principles gu ide counsel at all stages of the se interactions

with witnesses. We have already examined the interplay of these prin-

ciples in a number of areas, such as the problem of client perjury and

the cross-examination of a witness known by the lawyer to be truth-

ful.1 In this chapter, the discussion continues with the focus predomin-

antly, though not entirely, on counsel’s out-of-court interactions with

witnesses and potential witnesses. In each area reviewed, counsel’s

obligation to advance resolutely the client’s best interests plays a sub-

stantial role in conceptualizing what constitutes ethical conduct. Yet

the obligation to promote the client’s best interests is often limited by a

concomitant duty to avoid conduct that creates an unacceptable risk of

misleading the court or treating a witness unfairly.

1 See Chapter 7 and Ch apter 1, Section K(1).

Witnesses 375

B. THE DUTY TO LOCATE AND INTERVIEW

WITNESSES

Canadian ethical codes describe a competent lawyer as one who ap-

plies relevant knowledge, skills, and attr ibutes in a manner appropriate

to each matter including, among other things, investigating the facts.2

They also state that “unless the client instructs otherwise, the lawyer

should investigate the matter in suff‌icient detail to be able to express

an opinion rather than mere comments with many qualif‌ications.”3 In

the same vein, the ABA Defense Standards oblige defence counsel to

“conduct a prompt investigation of the circumstances of the case and

explore all avenues leading to facts relevant to the merits.”4

Defence counsel’s duty of competence thus includes the obligation

to take reasonable steps to investigate whether an individual has infor-

mation that might assist in advancing the client’s case at trial. Timely

action will often be necessary to ensure that the best possible informa-

tion can be obtained, for example by interviewing a witness promptly

about an ordinary occurrence that might otherwise soon be forgotten

or imperfectly remembered.5 An unreasonable failure to interview a

witness soon enough, or at all, may amount to incompetence. Where

the result is real prejudice to the client at trial, counsel’s oversight will

constitute ineffective assistance so as to require that a conviction be

overturned and a new trial ordered.6

Yet counsel need not interview everyone who might conceivably

have information relevant to the case. He must exercise sound pro-

fessional judgment, based on all of the circumstances, to determine

whether there is a reasonable possibility the information will assist the

2 Alta, Sask r 2.01(1)(b); BC, Man, Ont, NS, NL r 3.1-1(b). See also Chapt er 3, Sec-

tion K(1).

3 Alta, Sask r 2.01(2) (commentar y); BC, Man, Ont, NS, NL r 3.1-2, commentary 8.

4 ABA Defense St andard 4-4.1(a).

5 See G Arthur Ma rtin, “Preparation for Trial” in L aw Society of Upper Canada ,

Defending a Criminal Case (Toronto: Richard D e Boo Ltd, 1969) 221 at 230–32.

6 See, for example, R v Delisle (1999), 133 CCC (3d) 541 at 555–58 [paras 47–55

and 60] (Que CA) [Delisle], R v McKellar (1994), 34 CR (4th) 28 (Ont CA);

R v Michelin, [1999] OJ No 848 at paras 35–38 and 42 (Gen Div); R v Jim, 2003

BCCA 411 at paras 8–9 and 13; R v Giroux , [2004] OJ No 2054 at paras 1–2 (CA)

[Giroux]; R v McK oy, 2011 ONCA 41 at paras 4–5; R v Fraser, 2011 NSCA 70 at

paras 86 –93 and 97–104 [Fraser]. See al so Dale Ives, “Failure to Interv iew a

Potential Defence Wit ness as the Basis for an Ine ffective Assistance of C ounsel

Claim” (2008) 53 Crim LQ 49 0.

ETHICS AND CRIMINAL LAW376

client’s defence.7 Factors to consider in deciding whether to seek out

and interview a potential witness include the degree of likelihood that

the witness exists and can be located, whether the witness’s informa-

tion relates to a viable defence, the extent to which the information

advances that defence and is reli able, whether the witness i s likely to be

co-operative, and any instructions received from the client.8

Recommendation: Counsel should generally ascertain whether the

client knows of anyone who might have information that could be rel-

evant to the case. It is usually advisable to interview those individuals

who have personally witnessed material events,9 although the need to

do so will vary depending on the extent to which their evidence may

assist the defence and the contents of any inter view materials produced

by police and included in the disclosure.

Defence lawyers have f‌inite resources with which to conduct inves-

tigations, especially where the client is of modest means or relies on

legal aid, and a paucity of resources can present serious challenges.10

Counsel’s ethical duties cannot be dictated simply by reference to the

amount of fund ing available.11 Yet she cannot be expected persona lly to

f‌inance expensive investigations into whether a witness exists and has

information helpful to the defence.12

C. STRICTURES ON CONTACTING A WITNESS

BEFORE TRIAL

A lawyer is free to contact any p otential witnes s in an attempt to obtain

information materia l to the client’s case, regardless of whether the witness

7 In the context of inef fective assistance of coun sel claims, the vie w that only

reasonable steps to i nvestigate a potential wit ness need be taken is endor sed in

Strickland v Washington, 46 6 US 668 at 691 (1984); R v White(1997), 114 CCC

(3d) 225 at 254 [para 94] (Ont CA) [White]; Giroux, ab ove note 6 at para 1.

8 Similar factors are ment ioned in White, above note 7 at 254 [para 94]; R v RW

(2006), 207 CCC (3d) 137 at paras 55–58 and 76 (Ont CA), leave to appeal to

SCC refused, [2007] SCCA No 337. The issue of whether counsel must follow a

client’s instructions, including those relating to interviewing and calling wit-

nesses, i s canvassed in Chapter 3, Se ction C.

9 See R v Strauss (1995), 100 CCC (3d) 303 at paras 48 and 56 (BCCA); White,

above note 7 at 254 [para 93].

10See ABA Model Rule 4 -4.1(a), comment “The Importance of P rompt Investigation.”

11See, for example, R v LCB (1996), 104 CCC (3d) 353 at 370–71 and 374 [paras

64–67 a nd 77] (Ont CA) [LCB]: low legal aid rates no e xcuse for failing to meet

client until d ay of trial.

12Fraser, above note 6 at 80; R v Aulakh, 2012 BCCA 340 at para 89.