3.14 Testimony of Police Officers and Police Civilian Agents

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

1. Background

In the prosecution setting, it is the role of the prosecutor to decide which witnesses to call and of the courts to assess the credibility and reliability of the witnesses and determine the weight to be given to their testimony. This guideline provides guidance on the steps prosecutors should take when they become aware that a police officerFootnote 1 or a civilian police agent (“police witness”) may give, or has given, sworn evidence, either in the form of an affidavit or as testimony before a court (collectively referred to as “testimony”) that is not credible or is unreliable.Footnote 2

Credibility is a complex matter. Crown counsel must be mindful that all witnesses including police witnesses may have different opportunities to observe an incident and differing perspectives and may therefore honestly provide inconsistent testimony.

Reliability has to do with the accuracy of a witness’ testimony and may include consideration of a witness’ ability to observe, recall or recount the issue. A Court may reject a police witness’ testimony in whole or in part, or make a finding which is inconsistent with the witness’ testimony without necessarily finding that the witness was dishonest in his or her testimony.

Crown counsel must remain aware that they are not the trier of fact and must not by their decisions prevent the trier of fact from making determinations as to the credibility or reliability of witnesses without a compelling basis.

These guidelines are based on the principles found in the jurisprudence respecting the role of Crown counsel, the rules of professional conduct governing counsel, and the policies contained in the PPSC Deskbook.

2. Before Tendering a Statement under Oath (an Affidavit or Testimony)

In determining which witnesses to call, Crown counsel must respect the obligations relating to the conduct of a prosecution. These obligations include ensuring that appropriate disclosure has been made to the accused of any information that relates to the credibility or reliability of a witness. In relation to police officers, these obligations were outlined by the Supreme Court of Canada in R v McNeil. Crown counsel must not call as a witness someone, including a police witness, who they reasonably believe, based on compelling information, will mislead the court with their testimony on matters that are material to the proof of the essential elements of the offence and without which the Crown could not satisfy the trier of fact beyond a reasonable doubt.

3. During Trial

3.1. Misleading or false evidence inadvertently given under oath

Where Crown counsel has a compelling basis for believing that misleading or inaccurate testimony has inadvertently been given by a police witness, Crown counsel must inform the defence counsel and the Court that the Crown does not rely upon the testimony to prove its case. This relates to cases of a serious error/mistake and cases of unacceptable negligence.

Crown counsel must bring the testimony to the attention of their supervisor or manager, in writing.Footnote 3 If the manager considers that the concern is well-founded, then the manager must bring it to the attention of the appropriate Officer in Charge (OIC) or the OIC’s superior, to assess how such a situation can be avoided in the future.

3.2. Misleading or false testimony intentionally given under oath

Where a court makes a finding or where it can be reasonably inferred from judicial comments that misleading or inaccurate evidence has been intentionally given by a police witness, Crown counsel must bring it to the attention of their supervisor or manager in writingFootnote 4 so that the matter will be referred to the police for possible investigation. If Crown counsel otherwise has a compelling basis for believing that inaccurate testimony has been intentionally given by a police witness, they must bring it to the attention of their supervisor or manager, and they must notify defence and the court. For example, where a police officer had testified at trial that the voluntary statement evidence he was giving the court were the exact words of the defendant. In fact, the police officer later indicated that he had reconstructed his notes. In this situation, Crown counsel must inform the team leader, Deputy Chief Federal Prosecutor or Chief Federal Prosecutor and defence counsel and put the witness back on the stand to explain himself.

3.3. Discrimination

Where a court makes a finding or where it can be reasonably inferred from judicial comments that investigative steps were undertaken by the police witness based, in whole or part, on the race, national or ethnic origin, colour, religion, sex, sexual orientation, political associations, activities or beliefs of the accused or any other person involved in the investigation, Crown counsel must bring it to the attention of their supervisor or manager in writing so that the matter will be referred to the police for possible investigation. The supervisor or manager may determine that a review of the other files in relation to which the police witness may be involved is appropriate.

3.4. The assessment of whether the test for continuing a prosecution is met: reasonable prospect of conviction.

In all instances of misleading or inaccurate statements made under oath, Crown counsel must assess the impact of the testimony upon the overall reliability or credibility of the police witness and whether the threshold test for prosecuting continues to exist.

4. After Trial

The same steps must be taken where Crown counsel is put on notice by the findings of a court that the court considers that a police witness has given misleading or inaccurate testimony or where the Crown counsel has a compelling basis for believing that it has occurred.

In cases where the findings of the court admit of ambiguity as to whether the testimony was intentionally misleading or inaccurate as opposed to the court simply determining that it will not accept the evidence of the police witness, Crown counsel should consult with their supervisor and manager.

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