Criminal Complaints: Giving Evidence
For a shorter audio/visual version of the information about giving evidence, click here.
Abuse, particularly physical abuse, occurs most often in private. If the incident does take place in private, the criminal case can develop into the word of the abuser against the word of the victim. Other witnesses may be able to help if they have seen the victim with bruises after a physical attack. It can also help if a victim has kept a record of abuse.
For the purposes of giving evidence, there are two issues: being “competent” and being “compellable”, that is, forced to give evidence when called by a subpoena.
Being competent to give evidence refers to various matters. For example:
- being able to respond rationally to questions about the facts in issue;
- being able to communicate the evidence and give an intelligible account of events witnessed or perceived (this includes the ability to have perceived it in the first place and the ability to recollect); and
- being able to understand the nature of the oath (in other words, understanding the moral obligation to tell the truth in court).
Being compellable to give evidence means that it must be possible to force the person to give evidence when s/he is called by a subpoena. They can be forced because failure to comply with a subpoena can lead to prosecution for contempt of court.
Although most witnesses are compellable, this is not always the case. For example: spouses. Special and complicated rules apply with regard to a husband or wife giving evidence for or against the other.
A husband or wife is able, but cannot be forced, to give evidence for the accused spouse, that is, in his or her defence. They are competent, but not compellable.
With regard to giving evidence against a spouse, a spouse is competent (i.e., able to do that), but not compellable except in two instances. The two exceptions when a spouse can be forced to give evidence, even when they do not want to, are:
- where the charge involves a threat to the person, liberty, or health of the spouse. This would include most cases where physical abuse is taking place; or
- with regard to specific sections of the Criminal Code. These include: sexual offences, sexual offences in relation to children, abduction of children, various marriage offences such as bigamy, and the offence of failure to provide the necessities of life.
If there is any dispute whether a situation falls into one of these categories, a judge will decide that issue at the hearing. If, in either of these two situations, a spouse refused to give evidence against the other, that spouse would be at risk of being prosecuted for contempt of court.
The law with regard to the circumstances when a spouse may give evidence against the other spouse continues to evolve. For example, the Supreme Court of Canada allowed a wife to give evidence against her husband in a case involving forgery of a signature because the marriage had broken down completely. In another case, where a couple married between the date of the offence and the trial, an appeal court found that the marriage was genuine and that the wife was not able to give evidence against her husband. Note again, however, that in cases involving a threat to the person, liberty, or health of the spouse, the spouse is able and can be forced to give evidence against the abusing spouse.