INTRODUCTION AND BRIEF DESCRIPTION
This section requires that a justice take the evidence of a witness under oath and in accordance with Section 540 of the Criminal Code.
SECTION WORDING
508(2) A justice who hears the evidence of a witness pursuant to subsection (1) shall (a) take the evidence on oath; and (b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied.
EXPLANATION
Section 508(2) of the Criminal Code of Canada outlines the requirements for a justice to take the evidence of a witness under certain circumstances. Specifically, this subsection relates to situations where a witness is unable to attend court to give evidence in person due to illness, injury, or other reasonable cause. When a justice is required to take the evidence of a witness under these circumstances, they must ensure that the evidence is taken on oath. This means that the witness must swear or affirm to tell the truth, the whole truth, and nothing but the truth when giving their evidence. Additionally, the evidence must be taken in accordance with section 540 of the Criminal Code to the extent that it is possible to do so. Section 540 sets out the rules for the examination and cross-examination of witnesses in criminal trials. This includes requirements for the order in which witnesses are called, the manner in which questions are asked and answered, and the use of interpreters when necessary. By specifying these requirements for taking evidence from absent witnesses, section 508(2) ensures that the evidence is given in a reliable and fair manner. This helps to protect the rights of all parties involved in the trial and ensures that the outcome is based on accurate and credible evidence.
COMMENTARY
Section 508(2) of the Criminal Code of Canada sets out the requirements for a justice who hears the evidence of a witness pursuant to subsection (1). Specifically, the justice must take the evidence on oath and cause the evidence to be taken in accordance with section 540 insofar as that section is capable of being applied. This section has significant implications for both the conduct of legal proceedings and the rights of witnesses who provide evidence in those proceedings. One of the key requirements of this section is that evidence must be taken on oath. This means that witnesses must swear to tell the truth, the whole truth, and nothing but the truth. The purpose of this requirement is to ensure that witnesses are held accountable for their statements and that they appreciate the seriousness of the proceedings. It is considered fundamental to the integrity of the legal system that witnesses be truthful. The section also requires that evidence be taken in accordance with section 540 insofar as that section is capable of being applied. Section 540 sets out the rules governing the examination of witnesses in court. This includes rules concerning the questioning of witnesses, the use of leading questions, cross-examination, and re-examination. By referencing section 540, this section reinforces the importance of following these rules in order to ensure that evidence is obtained in a fair and impartial manner. One of the important implications of this section is that it helps to protect the rights of witnesses. By requiring evidence to be taken on oath, witnesses are held accountable for their statements and are less likely to lie or distort the truth. Additionally, by requiring that evidence be taken in accordance with the rules set out in section 540, witnesses are more likely to be treated fairly and with respect during the legal process. This can help to ensure that witnesses are willing to come forward and provide evidence, even in cases where they may be reluctant to do so. Another important implication of this section is that it helps to promote the fairness and impartiality of legal proceedings. By requiring evidence to be taken on oath and in accordance with section 540, the legal system is better equipped to ensure that evidence is obtained in a fair and unbiased manner. This is important because it helps to ensure that the outcome of legal proceedings is based on the evidence presented, rather than on any biases or prejudices of those involved in the process. In conclusion, Section 508(2) of the Criminal Code of Canada is an important provision that sets out the requirements for the taking of evidence by a justice. By requiring evidence to be taken on oath and in accordance with section 540, this section helps to protect the rights of witnesses and promote the fairness and impartiality of legal proceedings. It is an important provision that helps to ensure the integrity of the legal system and the rights of all those involved in it.
STRATEGY
Section 508(2) of the Criminal Code of Canada imposes certain obligations on a justice when hearing the evidence of a witness pursuant to subsection (1). As such, there are several strategic considerations that lawyers should keep in mind when dealing with this section. Some of these considerations are: 1. Preparing the witness: Since the witness will be giving evidence under oath, it is important to prepare them thoroughly. This includes rehearsing the questions and answers, reviewing relevant documents, and discussing potential challenges to their evidence. 2. Objecting to certain questions: If a question asked of the witness is objectionable, it is important to raise an objection immediately to prevent the question from being answered. This can help to prevent any potentially damaging evidence from being introduced at trial. 3. Seeking a publication ban: In certain cases, it may be necessary to seek a publication ban under section 486 of the Criminal Code. This can help to protect the identity of the witness and prevent any prejudice to their case. 4. Challenging the evidence: If the evidence provided by the witness is inconsistent with other evidence in the case or otherwise unreliable, it may be necessary to challenge the evidence. This can be done through cross-examination or by calling other witnesses to testify. 5. Negotiating a plea deal: If the evidence provided by the witness is particularly damaging to the defendant's case, it may be advantageous to negotiate a plea deal to avoid a more serious conviction. Some strategies that could be employed when dealing with section 508(2) of the Criminal Code include: 1. Focusing on the credibility of the witness: Since the evidence is being given under oath, it is important to focus on the credibility of the witness. This can include pointing out any inconsistencies in their evidence or highlighting biases or motives that may affect their testimony. 2. Using visual aids: Visual aids can be effective in helping the witness to understand the questions and provide more accurate and complete evidence. 3. Seeking additional evidence: If the evidence provided by the witness is insufficient or unreliable, it may be necessary to seek additional evidence to support the case. 4. Building rapport with the witness: Building a rapport with the witness can help to put them at ease and encourage them to provide more complete and accurate evidence. In conclusion, section 508(2) of the Criminal Code of Canada imposes certain obligations on a justice when hearing the evidence of a witness. Lawyers dealing with this section should keep in mind several strategic considerations, such as preparing the witness, objecting to certain questions, seeking a publication ban, and negotiating a plea deal. Similarly, employing certain strategies like focusing on the credibility of the witness, using visual aids, seeking additional evidence, and building rapport with the witness, can help to ensure a successful outcome for the case.