Tory ‘Victims Rights Bill’ Hinders Effective Cross-Examination

November 20, 2014

Among the most important functions of a Criminal Defence Lawyer is the ability to effectively cross-examine witnesses during trial. With the proper approach, the cross-examination by the defence lawyer is able to uncover key facts, expose contradictions and innaccuracies, and demonstrate the motivations of the witness to lie in court. A proper cross-examination will also allow the jury to form a more accurate opinion of the general trustworthiness and character of a witness, aiding them in coming to a fair decision at the end of the trial.

Unfortunately, the powerful tool of cross-examination is now under attack with a new provision in the Victims Bill of Rights being proposed by the Conservative Government. Not surprisingly, many Criminal Defence Lawyers have been vocally opposed to the provision, which would give judges the ability to order “any information that could identify a witness” to be kept secret during trial.

The Victim’s Bill of Rights purportedly aims to protect ordinary citizens from suffering harm as repercussion from testifying at trial. It’s certainly important for citizens to be able to participate in trial freely and without fear, but our justice system already puts a person in the courtroom who has the ultimate power to prevent a witness from being abused: the judge. The proposed provision would allow judges a new “unprecedented power” to withhold key information about a witness from trial. This could mean hiding all sorts of information from the accused person whose liberty and future are on trial. Not knowing who the accuser or who the witness is may mean the Defence lawyer not being able to expose to the jury that the person has lied under oath in the path, or that the person has a criminal record for crimes of dishonesty like fraud or theft. Furthermore, the accused person and his defence lawyer would be hampered in investigating the witness before the trial, meaning there would be no chance to discover, for example, if the witness had a financial motivation for falsely accusing the person on trial, or if the witness suffered from some ailment which would have made their claimed observations impossible. Worse still, the provision allows the witness himself to apply to the judge to have his identity kept secret. This would certainly be a useful tool for a false accuser who doesn’t want his plot to be uncovered by the defence lawyer’s investigation.

Withholding key identifying information makes it nearly impossible for a Criminal Defence Lawyer to thoroughly cross-examine said witness. The jury must be entitled to examine not just the words of the accuser, but the accuser himself – his character, his motives, and his frailties. Importantly, it has been pointed out that, historically, the only cases in which the Supreme Court allowed such anonymous allegations was in two cases involving police informants, not witnesses, and the allegations of confidential police informants is never allowed to be used as evidence of the defendant’s guilt in any trial.

The question becomes: Has the “broad language” of this bill been written to protect our rights as citizens, or to usher in a new framework in which the accused is presumed guilty, his accuser is presumed to be telling the truth, and the trial in which the accused’s life is on the line becomes an exercise in protecting an anonymous witness? As a Criminal Defence Lawyer in Toronto, I have serious concerns about the misuse of this bill, as well as the ways in which its application could interfere with my ability to cross-examine key witnesses and do my duty to protect the innocent. I pride myself on my ability to effectively operate in court and in securing the best possible results for my clients. If this proposed provision becomes law, then I and other serious defence lawyers will need to prepare to fight it until the Supreme Court strikes it down.

If you have concerns about the testimony being brought against you, reach out to my office for a free consultation.

How much power should a judge be given to grant witness protection? What if that decision impedes on a Criminal Defence Lawyer’s ability to effectively cross-examine?

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