The "Acceptable Practice" For Taking Pre-Trial Witness Statements
Courts in British Columbia frown on the practice of having witnesses commit their evidence in affidavit form before trial. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this practice and explaining the Courts concerns with it.
In this week’s case (Staaf v. ICBC) three witnesses testified on behalf of ICBC. Prior to doing so all provided sworn statements authenticating various business records. The Plaintiff argued that less weight should be given to these witnesses evidence because of this practice.
The Court agreed that the practice is to be discouraged, however went on to note that in the circumstances of this case no lesser weight should be attached to these witnesses. In discouraging the practice of having witnesses swear pre-trial affidavits Mr. Justice Burnyeat provided the following comments:
[6] The question which arises is the propriety of recording statements of witnesses in sworn form before trial. Statements in sworn form should not be taken. The consciences of witnesses at a trial are fettered by committing them in advance to a story which is favourable to the client of the lawyer preparing the affidavit. To obtain a sworn affidavit or a statutory declaration not only influences the evidence that a witness may give under oath at a trial but also compromises accurate and truthful evidence at trial because a previous statement may compromise the interest of the witness who wishes to testify truthfully but the truth may be in conflict with the previously sworn statement. Before trial, the acceptable practice is to take statements from witnesses but not arrange for those witnesses to swear affidavits or to make statutory declarations.
[7] If testimony is to be given by affidavit, an application should be made pursuant to Rule 12‑5(59) of the Rules of Court. Subject to the order of the Court to the contrary, that affidavit must be served at least 28 days prior to such an application being heard by the Court. No such application was made relating to the evidence of these three affiants…
[9] Under the circumstances, it would have been appropriate for counsel for the Defendants to apply for an order pursuant to Rule 12‑5(59) and, if that order had been granted, for counsel for the Plaintiff to require those witnesses to be called for cross-examination at trial pursuant to Rule 12‑5(61). That was not done.
[10] When it became apparent that three Affidavits had been sworn, counsel for the Defendants was urged by me to make an application that the evidence of the three be given by affidavit and counsel for the Plaintiff was urged to make a subsequent application that the three witnesses be called to the Trial for cross-examination. That is what occurred and those orders were made.
[11] In the circumstances of this case, I am satisfied that the sworn testimony of the three witnesses were in no way compromised by the assumption that the truth of what they were saying was in conflict with the affidavits that they had sworn. First, the affidavits were sworn in order to place before the Court the business records that would be relied upon by the Defendants. Second, the affidavits were prepared and sworn on the assumption that it would then not be necessary for the three affiants to appear at the Trial. Third, the three witnesses were merely attaching business records and were not providing direct observations that they had made relating to the accident. Fourth, the affidavits did not concern controversial matters.
[12] In the circumstances of this case, I attach no lesser weight to the testimony at Trial of the three witnesses by virtue of the fact that they had all sworn affidavits prior to testifying. Because of the two Orders made and in view of the nature of what was set out in their Affidavits, I am satisfied that it is not appropriate to disregard the whole of their testimony.