One eyewitness gives police a description. They say something different before the trial, which is several weeks later. Perhaps they feel pressured, perhaps they are afraid or perhaps they simply have a different perspective. In either case, the change can stir up a criminal case.
This blog details what occurs next in Canada, how courts deal with the above statement and what risks are involved to a witness.
The Case Does Not Automatically Collapse
If a witness changes his/her testimony, it will not terminate a prosecution. If there is other evidence that would support the charge, such as video, forensic results or other witnesses, the Crown can move forward with the charge. The Crown can also still call the witness, who can be required to attend court by a subpoena.
The change does pose an issue. There are now two versions of events and the court needs to address how it should view them.
Why the First Statement Still Matters
Generally, what the witness told the police isn’t evidence in itself. The court desires the testimony to be given in the court room, where the witness can be questioned. If the witness gives evidence in court to the contrary the Crown has mechanisms to respond.
Crossexamination of the first statement. Section 9 of the Canada Evidence Act lets a party question its own witness about a previous inconsistent statement. This is permitted where the witness is proved to be adverse or (where there is no proof of adversity) in section 9(2) in cases where the witness’ evidence conflicts with a recorded or written prior statement. The Crown has to prove to the witness the circumstances of the statement and ask if it was made.
A limited result. If a section 9 application is successful, then this does not constitute proof of what actually occurred. It can be used by the judge or jury only in determining whether to accept or reject the testimony, usually as to how much to believe in the witness.
When the Earlier Version Can Be Used as Proof
This was changed by the Supreme Court of Canada in R v B (KG) (1993). If so, three youths testified to police but contradicted themselves at trial, admitting that they had fabricated their accounts to police. The trial judge thought that the recantations were untrue, but could only consider the earlier statements to determine the truthfulness. The Supreme Court held that prior inconsistent statements may be used for their truth at times.
The Crown must make an application and the judge conducts a hearing in the absence of the jury. The statement has to be essential and trustworthy. The Court listed indicators of reliability such as the statement’s:
- after a good warning of the criminal consequences of lying, a made under oath, solemn affirmation or solemn declaration
- video recorded
- Can be fully cross-examined during trial.
A statement may also be admissible for other reasons where it can be found to be sufficiently reliable. Such a previous version, if admitted, may be used by the trier of fact against the witness, although he denies it.
Consequences for the Witness
A witness that changes his/her story must be aware of the danger. Perjury may be an offence if a witness knowingly tells a lie at trial. The three youths later pleaded guilty to perjury in R v B (KG). A total of 14 years imprisonment is the maximum punishment for perjury.
If the opening statement to police was incorrect, other crimes may be applicable (public mischief). To make an oath of a witness change or to pressure or threaten a witness into doing so can be obstruction of justice. The Crown can also still call the witness, who can be required to attend court by a subpoena. This doesn’t just refer to the person taking the pressure, it also refers to the personPressing the pressure.
What It Can Mean for the Accused
A changed story can relieve an accused person but not necessarily. The Crown can bring a challenge to the new one and the Judge can allow a submission of the old one. When the accused, or someone close to him, calls a witness, it can jeopardize the case and result in additional charges being filed. When getting in contact with witnesses is restricted, it is due to the release conditions.
Recantations, too, are held with great care in court. A witness whose testimony varies from one day to the next, especially if the witness is under pressure or had a personal relationship with the accused may not be believed.
Practical Advice
As a witness: Speak the truth. If you believe your previous statement was inaccurate, discuss that with the Crown or a lawyer before giving evidence as changing the statement can have legal consequences.
If you are the accused: NOT contacting the witness personally. Allow your attorney to make all calls.
If you are a family member or friend: avoid attempting to nudge a witness to alter his or her testimony.
Maintain records: If a witness contacts you regarding a change in his or her testimony, let your lawyer know as soon as possible.
Need Help With a Witness Changing Their Statement in Toronto?
A witness changing their statement before trial can have serious consequences for your criminal case. If you or someone close to you is facing criminal charges, a Toronto Punjabi Criminal Lawyer can explain your legal options, help you understand the evidence, and guide you through the court process in a language you are comfortable with.
Speak with an experienced Punjabi Criminal Lawyer in Toronto to understand your rights and determine the appropriate next steps for your situation. Getting legal advice early can help you avoid costly mistakes and protect your interests.
Conclusion
If a witness alters his testimony before a Canadian criminal trial, the procedure continues. The Crown can proceed to question the witness about the earlier statement, and in some instances request the court to act upon it as evidence. The Crown can also still call the witness, who can be required to attend court by a subpoena. If the witness testifies falsely he/she could face serious repercussions and anyone who makes him/her testify under pressure can be charged. If this is the case, contact a criminal defence lawyer right away.
