Ce n'est que dans des circonstances exceptionnelles que le procureur de la Couronne ou l'avocat de la défense sera autorisé à appeler l'avocat de la partie adverse à témoigner dans le cadre du procès

R. v. Elliott, 2003 CanLII 24447 (ON CA)

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[114]      It is only in exceptional circumstances that Crown or defence counsel will be permitted to call opposing counsel as a witness.  It is not sufficient that the counsel may have material evidence to give.  The party seeking to call opposing counsel must lay an evidentiary foundation for showing that the counsel’s evidence is likely to be relevant and necessary.  This stringent test applies whether it is defence counsel seeking to call Crown counsel or Crown counsel seeking to call defence counsel.  This rule has been laid down in many decisions of the Superior Court.  Craig J. expressed the test, in part, as follows in R. v.  Stupp, Winthrope and Manus (1982), 1982 CanLII 1897 (ON HCJ), 36 O.R. (2d) 206 at 219 (Ont. H.C.J.):

In my opinion, when a subpoena or the right to call a witness is challenged as here, it is not sufficient for the party proposing to call the witness to merely allege that the witness can give material evidence; but rather the onus is on the accused in this case to establish that it is likely that Brian Johnston can give material evidence. That is particularly applicable where, as here, the accused takes the extraordinary step of seeking to call Crown counsel as a witness. If Brian Johnston is called, he obviously cannot continue as counsel at the preliminary hearing and other counsel will be required to pick up the pieces of a long and complicated preliminary hearing. It is an interference with the judicial process which can only be contemplated in unusual cases. In my opinion, an accused person should not be permitted to call Crown counsel to conduct a fishing expedition or to examine in the hope that something might turn up that would assist him on the issue; but rather counsel must satisfy the judge that there is a real basis for believing that it is likely the witness can give material evidence. If it is otherwise, preliminary hearings and trials can be interrupted at random; and the administration of criminal justice could be seriously impaired. That is particularly so where, as in this case, there are extensive police investigations. If the investigating officers seek legal advice during the course of the investigation, then Crown counsel in all such cases may be put under subpoena in an attempt to establish abuse of process [emphasis added].

[115]      In R. v. Sungalia et al., [1992] O.J. No. 3718, Campbell J. held as follows:

Crown counsel and defence counsel are subject to the process of the court.  They are not immune from subpoena.

As a practical matter, however, criminal litigation would be impossible if Crown counsel had the unrestricted right to call defence counsel as a witness or if defence counsel had the unrestricted right to call Crown counsel as a witness.

There is a persuasive burden on the lawyer who seeks to force opposing counsel to go into the witness box and relinquish his role as counsel.  The persuasive burden is to show relevance and necessity.

As a general rule neither relevance nor necessity is shown simply because opposing counsel, accompanied by an assistant interviews a witness whose statement becomes the subject of cross-examination.  If Crown counsel or defence counsel could be routinely called as a witness simply because she had previously interviewed one of her own witnesses then no lawyer, Crown or defence, could ever prepare properly for trial  [emphasis added].

[116]      We agree with these statements.  In particular, we stress the necessity part of the test.  In this case, the trial judge permitted defence counsel to call several of the Crown counsel because they had attended meetings at which many others, including police officers, were present.  There was no basis shown that the evidence of the Crown counsel was necessary in such circumstances.  There was nothing to show that the police officers who attended the meetings could not adequately convey what occurred.  The defence counsel’s vague suspicions that Crown counsel might say something different from the police officers was not enough to overcome the threshold for calling counsel as witnesses.