- 1 Being a Witness
- 2 Your Testimony/Answering Questions
- 3 Preparing For Court
- 4 The Courts and the Court Process
- 5 Protection of Child Victims/Witnesses
- 6 Conclusion
A “witness,” according to section 118 of the Criminal Code of Canada, is a person who gives evidence orally under oath or by affidavit in a judicial proceeding, whether or not he is competent to be a witness, and includes a child of tender years who gives evidence but does not give it under oath because, in the opinion of the person presiding, the child does not understand the nature of an oath. Broadly, a witness is any person who gives supervised testimony in court either in writing or in person.
Testifying in court can be an intimidating experience for anyone, regardless of their age or gender. Witnesses in a criminal trial are often unaware of what happens in court, what is expected of them, who participates in the process, who to talk to, where to go, when to go, why they are needed, why their role is an important and necessary one, how the court process operates, and how they should prepare. Stressors, such as long delays before and during the trial, a lack of legal knowledge, the environment of the courtroom, confronting the accused, and being examined and cross-examined, only add to the intimidating, tense, uncomfortable, and oftentimes painful experience of the court process, both for witnesses and victim/witnesses. While the stress felt by all witnesses can be immense, it is often more intense for children. Additionally, witnesses who are experts in certain areas that pertain to the case (mental illness, DNA evidence, etc.) may also be called to testify.
All this being said, the court process can be and will be made easier if you are aware of what being a witness requires, calls for and asks of you. While better understanding your role as a witness will make the process easier and more comfortable, it will not cure all the stresses that you will likely experience and the experience will likely still be intimidating. Even though being a witness can be stressful, it does have its benefits as providing evidence and being given a chance to speak can provide some form of closure and help along the process to recovery. The witness has one of the most important roles in the courtroom. What is said in the witness box affects the lives of all those involved in the process. The testimony provided by witnesses (along with other evidence introduced by both the Crown attorney and the accused person) is crucial to the administration of justice.
Being a Witness
A witness is a person who saw a crime being committed or can give other evidence which will help to show whether the accused is guilty or not guilty. In the case of the victim/witness, they are the person or people against whom the crime was committed – they are the key witness(es) for the prosecution. As a witness, you have the right to the assistance of an interpreter if you do not understand or speak the language in which the proceedings are conducted or if you are deaf. This is a right that is guaranteed by the Canadian Charter of Rights and Freedoms. If the victim and/or witnesses is under 18 years of age they may ask the judge to prohibit the publication of their identity and any information making it possible to identify them for certain cases (sexual offences, extortion). The judge is required to issue a prohibition on publishing such information. As for adult witnesses, the judge decides on a case-by-case basis whether there are grounds for prohibiting the publication of their identity. You can be asked to appear as a witness by either the defence or the prosecution and can be asked to do so in either a civil or criminal case. You can become a witness by either agreeing when asked or by being ordered by the court (a “subpoena” or “summons to witness”). Read the subpoena carefully as it may require you to bring documents with you to court.
The Subpoena: The subpoena is a court order that tells you which court to go to and the date and time you have to be there. The subpoena is usually personally served to you by a police officer. In exceptional circumstances, the subpoena can be served by leaving it with another adult who is likely to be in contact with you. If you are served with a subpoena you must go to court to give evidence and to allow the Crown attorney and the defence lawyer to question you (evidence cannot be given by a written statement, except in exceptional circumstances). If you are unable to go to court on the date in the subpoena, you should tell the lawyer who subpoenaed you at once. If you fail to appear in court, the judge may issue a warrant for your arrest and you could be charged with contempt of court (if you are found guilty of contempt, you may be fined or given a jail term). This may seem harsh but requiring witnesses to testify is the only way to make sure that all the facts in a case will be presented in court.
Waiting your turn: When you get to court (bring the subpoena with you), let a court official know that you are there. Several cases are usually heard in the same courtroom on a given day and all witnesses testifying in these cases are summoned to appear at the same time. Consequently, it is virtually impossible to establish a precise timetable for the day. You will undoubtedly have to wait before testifying. If you fear that you will be uncomfortable with or afraid of some of the other witnesses, tell the lawyer in advance. If someone tries to make you change your evidence, whether in the courthouse or outside of it, tell the Crown attorney and the police immediately. If you are a witness for the defence, tell the defence lawyer. Charges may be laid against anyone attempting by threat or otherwise to influence a witness or dissuade him/her from testifying. As a witness, you are welcome to bring a friend, family member or a crisis worker to court with you for support. They may watch the trial or stay with you outside the courtroom while you wait to give evidence. You should not discuss the case with them, however, until you have given evidence.
Taking the Stand: When you are called to testify, you should go to the front of the courtroom near the judge. The court clerk will ask you to promise to tell the truth, either by taking an oath on a Bible, or giving a solemn promise known as an affirmation. You may also take an oath in a form that is recognized by your religion (eg. on the Koran). In all cases, the clerk will ask you if you promise to tell the truth and you should answer “I do”. The clerk of the court will then ask you to state your name and perhaps your address. If you fear reprisals or threats you may, with the judge’s permission, give your address in writing. It then becomes confidential. The Crown prosecutor and the defence counsel may then question you. You may be nervous; this is normal. Take your time, listen carefully to the questions and make sure you understand them before answering.
The lawyer who has called you as a witness will conduct his questioning of you first. This is called an examination-in-chief. He or she is not permitted to ask you “leading” questions. This means that a lawyer cannot ask you questions that suggest answers. The evidence must flow from you, the witness, with the lawyer doing little more than suggesting the topics and assisting you in keeping on-topic. Once you have been examined-in-chief, you will then be cross-examined by the lawyer for the other party. When the cross-examination has finished, the lawyer who conducted the examination-in-chief may ask you questions about points raised in the cross-examination, this is called the “re-direct”. You are required to answer every question asked of you unless the trial Judge tells you not to. Indeed the trial Judge himself/herself may have a question for you. If he or she does ask you a question, it will be to clarify a matter. Do not be offended by this as the trial Judge only wants to be sure to understand your evidence. When you speak to the judge, you should call him or her “Your Honour” if you are in a Provincial court or “My Lord” or “My Lady” if you are in the Supreme Court.
You should not discuss your evidence or the evidence of other witnesses with anyone until the trial is over. If you are in the middle of giving evidence and the judge calls a break (for example, at coffee/lunch breaks or at the end of the day) you must not speak to anyone at all about the case during the break. Only after you have given your evidence may you discuss the case with anyone. If it is a jury trial, you must not speak to any jury member at any time.
Your Testimony/Answering Questions
- The most important thing to remember is to tell the truth – witnesses who have prepared and honestly tell the court what they know have no problems.
- Speak clearly and reasonably slowly so that your evidence can be understood and written down (try to speak more slowly than usual). The microphone in front of you usually only records your voice, it does not make it louder. Keep your answers relatively short and simple.
- It is important when answering questions, either during examination-in-chief or in cross-examination, that you answer only those questions which you hear and understand. If you do not hear or understand any questions, you must ask the lawyer to repeat, rephrase, or explain the question. Take your time.
- Do not guess. If you are not sure about an answer, simply say so. It is okay to say “I don’t know” or “I don’t remember”.
- Answer the question being asked and then stop. The court is interested only in the facts. Do not give your opinions or interpretations unless asked to do so.
- If the other lawyer objects to the question, you should not answer it until the judge says you can.
- Do not assume that the judge or jury know anything about the case; they are hearing it for the first time.
- The lawyer questioning you, particularly during cross-examination, may sometimes appear aggressive and even unreasonably picky. It is his or her job during cross-examination to expose any weaknesses or inconsistencies in your evidence. Try not to get rattled by this. Similarly, you should refrain from becoming angry or hostile towards them – try to be polite. The judge is there to stop you from being badgered or confused.
- Try not to become upset, lose your temper or become flustered when you are giving evidence. If you do become upset, you may ask the judge for time to regain your composure.
- If a question is embarrassing for you and appears to be unconnected to the case, you may ask the judge if you have to answer it. If the judge decides that the question is relevant, you have to answer it.
- If you refuse to testify or answer questions, you may be held in contempt of court and be fined or imprisoned, or both. The Charter of Rights and Freedoms however does protect you from self-incrimination, that is, giving testimony that may be used against you in another court case. If you have a question about this matter, it is best to consult your own lawyer or the lawyer who contacted you to appear in court.
- If you knowingly give false evidence, you commit an offence called “perjury”. If you are found guilty of committing perjury, you will have a criminal record and you may receive a jail term of up to 14 years. There is also the crime of “attempting to obstruct justice”, which includes accepting or agreeing to accept a bribe for not giving evidence, or lying under oath.
- If you make an honest mistake and give an inaccurate answer, immediately inform the judge and/or the lawyer that asked you to come to court so that you can correct the error.
- Tell the court about what you saw, heard, did or said. Do not repeat what someone else told you unless you are asked to tell what you heard.
After taking the stand: Once you have finished giving your evidence, the Judge will advise you that you may step down. At that point you are free to leave. If you wish to stay in the courtroom to hear the evidence from other witnesses you should at that moment to ask the Judge for permission to remain in the courtroom. If there is a possibility that you will have to give further evidence during the trial, you may not be allowed to stay.
Pay: Witnesses for the Crown receive a small fee. As well, they receive a small mileage allowance depending on the distance they travel to get to court. Ask the Crown attorney or defence lawyer for details as how to collect your witness fees when he or she contacts you before the trial. Although your employer does not have to pay you for the time you miss, he or she must allow you to go to court to give evidence and may not fire you or reduce your seniority.
Preparing For Court
- Explain the court procedure to you
- Go over evidence
- Review your statement
- Give you an idea of the kinds of questions to expect in cross-examination
- Determine what you are prepared to say under oath at trial, which assists the lawyer in determining if additional witnesses are necessary to prove other facts
- Review each of the topics that he intends to question you on at trial and the documents or photographs that he intends you to identify or comment on at trial
- Allow you the opportunity to ask them about positions taken by other potential witnesses so that you can rationalize your evidence in that light
At this time you should advise the lawyer if you have ever made a previous statement or acted in a way which would be contrary to the evidence that you are about to give at trial. You should also advise the lawyer at this interview if you have ever been convicted of a criminal offence.
- A few days before you attend court to give evidence, take some time to think of the sequence of events surrounding the offence. What happened first? What happened next? Try to remember details like dates, times, distances, descriptions, conversations (exact words, preferably), actions, people that were present, and other relevant facts.
- Be sure that your recollection of events is based on what you actually saw and heard and not based on assumptions of what you think probably happened.
- Keep any notes and documents you have about the case.
- Bring your notes and documents with you if you speak to a lawyer before the court date, and when you make your actual court appearance. The Judge may let you refer to your notes while in court.
- If you have already given evidence at the preliminary hearing you may read the court transcript of your evidence.
- You may find it helpful to go to the courthouse to watch what happens in court before your court date. Most trials are open to the public.
You need to keep in touch with the police or the Crown Attorney’s office so that they can tell you when you have to go to court. If you move or change your phone number, tell the police officer or the Crown Attorney.
- Bring books, or anything to help you pass the time quietly while you wait outside the courtroom for your turn to testify.
- Take along a family member or friend to keep you company.
- Bring food or enough money to buy something to eat in case you have to wait through mealtimes.
Cross-examination is easier when you are prepared because you know what to expect. Although there may be minor variations in your story, the essentials are the same. You know what happened.
The Courts and the Court Process
In the courtroom
- Judge: conducts the trial by making decisions on the evidence presented, interpreting the law as it applies to the case and controlling the events in the courtroom. The judge asks witnesses to stand down after they have testified.
- Accused: the person on trial
- Crown Prosecutor: represents the government/society, and presents evidence about the crime to the court. The Crown attorney has the responsibility of proving that the accused is guilty beyond a reasonable doubt. The Crown attorney is not a lawyer for the witness or the victim/witness.
- Defence counsel: represents the accused. The defence counsel tries to show that the accused is innocent, or that there is a reasonable doubt that the accused is guilty.
- Court clerk: Could be considered the judge’s assistant. This person keeps a record of the trial exhibits, administers oaths, calls witnesses to take the stand, and announces the beginning or end of court sessions.
- Court reporter: records everything that is said at the preliminary trial or the trial.
- Court security officer: handles accused persons who are in custody, helps any witness concerned about their safety, and helps maintain security in the courtroom.
- Public: anyone can watch a trial. This guarantees that the trial is open and fair (under special circumstances the public can be banned).
- Jury: members of the public who have been chosen by both the Crown attorney and the defence lawyer to decide whether the accused is guilty or not. A jury may not be present if the accused elects to have a trial by judge alone.
Less serious crimes are dealt with in the Provincial Division courts. These crimes are called “summary conviction offences” because they generally involve one appearance of witnesses and less serious penalties. If the accused is charged with one of these offences, the case will go ahead within a few months. For more serious offences, called “indictable offences”, such as murder, sexual assault or robbery, there is usually a “preliminary inquiry” held in the Provincial Division courts. You may be called to give evidence at this stage. If the judge decides that there will be a full trial, then this will take place in the General Division courts.
The Preliminary Hearing (or ‘prelim’): When a criminal case reaches the court, there may first be a preliminary hearing to decide if there is enough evidence for a trial. You may be subpoenaed to give evidence at the preliminary hearing and at the trial. A preliminary inquiry will occur several months after the charges have been laid against the accused. If there is enough evidence, the judge will send the accused to trial. If not, the charges will be dropped. If there is a trial it will usually be some months after the preliminary hearing. If you refuse to testify at the inquiry, the judge may sentence you to a period of imprisonment not longer than 8 days or until the inquiry is adjourned, whichever is less. Sometimes the Crown attorney and the defence counsel engage in plea bargaining and may not need you to appear. For example, if an agreement is reached whereby the accused changes his or her plea to guilty then a trial may be avoided and thus your testimony may not be necessary. In return for a guilty plea, the Crown may withdraw some of the charges against the accused, reduce the charge to a lesser offence or recommend that the court impose a lighter sentence.
The Trial: During the trail itself, you will also be called to testify as a witness. The procedure will be much like the preliminary hearing. You will once again be asked to swear or affirm to tell the truth, and the Crown and the defence attorney will each ask you questions regarding what you witnessed at the time of the crime.
- Written correspondence with the Crown attorney about their specific case concerns
- Information and guidance on how to prepare Victim Impact Statements
- Court preparation
- Accompaniment to court
- Court cancellation notifications
- Reimbursement of expense claims.
The conclusion of the trial: After all witnesses have been heard (for both the Crown and the defence), the Crown Attorney and defence lawyer make their final addresses. They summarize the evidence that has been presented. If there is a jury, the judge tells the jury what laws apply and how to weigh the evidence they have heard. The case is then given to the jury to decide if the accused is guilty. If there is no jury, the judge must review all the evidence and decide whether or not the accused is guilty. Sometimes a judge reaches a decision right away but often a judge will take several days or weeks to reach a decision.
The court’s decision and sentencing: If the accused is acquitted (found not guilty), it means that there was not enough evidence before the court to prove guilt beyond a reasonable doubt. Remember, proof beyond a reasonable doubt is a very high standard of proof. If the accused is found guilty, sentencing will begin. Sometimes the judge will decide on the penalty right away but usually sentencing is put off for another few weeks or months. A probation officer may be asked to prepare a “pre-sentence report”; the officer will speak to people who know the accused and write up a history – information on the defendant’s background can help the judge decide an appropriate penalty. You may also be asked to complete a “Victim Impact Statement” or to testify at a sentencing hearing. This is your opportunity to let the judge know how the crime has affected you financially, physically, and emotionally.
This may not be the end however. The accused or, in some cases, the Crown can ask the Court of Appeal to review the decision or the sentence given by the court that heard the case. The Court of Appeal does not always agree to hear the appeal. If it does, it will use the transcript of the trial and arguments from the lawyers to decide whether or not the trial court made a mistake. Witnesses are not called to testify. However, if the Court of Appeal orders a new trial, you may then have to testify again. The appeal will not be heard until several months after the trial.
Length of the trial: It is virtually impossible to predict the duration of legal proceedings. A legal proceeding may take hours, days or months. You may have to go to court on more than one occasion which are usually separated by long waits. Various issues may come up in the preliminary hearing and/or the trial that can further delay the process. It may be inconvenient for you but, no matter what happens, you must be available to the court until the judge advises you otherwise. You will usually be allowed to leave after you have given evidence. As a result of the length that some trials can take, any documents (photographs, letters, etc.) of yours that were used in evidence may not be returned to you for a very long time.
Protection of Child Victims/Witnesses
When the victim/witness is a child, the judicial process has a dual responsibility: to discover the truth and to safeguard the child’s emotional well-being. In 1988, legislative provisions finally allowed the use of screens in Canadian courts. Some examples include placing the child behind a physical barrier so that they cannot see the accused but can still testify and answer questions posed by each of the lawyer, placing the child in a separate room and having the child testify via closed circuit television, or pre-recording the child’s testimony so that they do not have to do it live in front of the court. There are some important pieces of past legislation that have been influential in reducing the amount of trauma that a child must endure during a trial:
Bill C-15 (1988)
- Eliminated the need for corroboration in sexual offences
- Reinforced the trend toward accepting the un-sworn testimony of children
- Allowed the child to testify behind a screen in the courtroom or to testify using a closed-circuit television link-up outside the courtroom
- Declared the admissibility of videotaped interviews of child complainants of sexual abuse as long as the tape has been made within a reasonable length of time after the offence and the child accepts the contents of the tape on the witness stand.
Bill C-126 (1993)
- Children under 14 permitted to have a neutral support person accompany them to the witness stand
- Children under 14 can no longer be cross-examined by an accused who chooses not to be represented by a defence counsel
Bill C-2 (2006)
- Removed any restrictions on the type of offence. Prior to this legislation, the child/witness would have had to experience a violent or sexual crime in order to receive protective measures.
- Any child witness permitted to use protective measures, not just those who “qualify.”
- Protective measures are presumed to be available. No longer up to the discretion of the court as to whether or not the child receives this type of assistance. The only exception to this is when the judge deems that having the testimony of child given outside of the courtroom would interfere with the administration of justice.
Under the Canada Evidence Act s. 16.1 only children over the age of 14 years of age are required to engage in a “truth telling” test if their mental capacity is challenged
This test determines:
- The child is able to answer questions that demonstrate an understanding of the importance of truth telling
- The child is able to meaningfully communicate in court proceedings
- Children under the age of 14 years are presumed to have the capacity to testify
- An oath or solemn declaration is not required only a promise to tell the truth
- The legal effects of a child’s promise are taken as if they were under oath
Bill C-32 (2015) (The Canadian Victims Bill of Rights)
- Witnesses have the right to be protected from intimidation and retaliation
- Child witnesses have the right to request testimonial aids
- Enforced mandatory publication bans for victims under the age of 18 years
Some have argued that these procedures (the use of a screen, or videotape or live video link) violate the accused’s right to confrontation and proper cross-examination as provided under common law. The right to confrontation is based in part on the assumption that a witness will find it more difficult to lie about the defendant in the defendant’s presence. As well, the use of barriers or television technology has the potential to lead to an assumption of guilt on the part of jurors. “Clearly the child witness does not need to be protected from the accused unless the accused is guilty. If the use of physical barriers or video technology implies guilt, the safeguards may have a prejudicial effect” (Lindsay et al, 1995).
In their research to determine if these safeguards are in fact prejudicial to the accused, Lindsay et al (1995) referred to three separate studies (all using “mock” or artificial juries) which indicated that using a protective device does not increase the likelihood of conviction, and therefore do not have a prejudicial effect. The researchers went on to do their own study using mock jurors and reached the following conclusion:
“There appears to be little reason to believe that having children testify behind barriers or via closed circuit television will bias the trial against the defendant. Even if such procedures do violate the defendant’s right to confrontation (an argument yet to be supported by the courts), they appear to do so without creating a prejudicial effect. The increase in accuracy and completeness of responses that may result from reducing children’s stress supports the conclusion that barriers or closed circuit television will aid the cause of justice when children must testify.”
In reference to the use of videotaped interviews, the Supreme Court of Canada ruled in R. v. D.O.L (1993) that allowing such interviews in court “neither offends the principles of fundamental justice nor violates the right to a fair trial as guaranteed by… the Canadian Charter of Rights and Freedoms.”
One other protective measure that has been used more and more in the criminal justice system is the use of a support person for the child witness. A designated support person usually sits beside the child while they are giving their testimony either in the courtroom, behind a screen or in a different room at a different time. These people are often support workers from the local victim services agency but can be anyone that the child chooses, including a family member or a friend. A support person is someone who gives emotional support to the child before, during and after the trial, assists in reducing stress and anxiety, and increases their feelings of safety and security. The use of support persons has generally gained acceptance and has been employed more often because it has been found that support persons do reduce the anxiety felt by children, especially when they are behind a screen or their parents cannot be in the court room with them (they may be witnesses too). Also, support persons are generally cost effective and can be used in instances where some courts do not have CCTV or separate testimony rooms. Additionally, when an accused elects to represent him or herself, they are not permitted to cross-examine a child witness. Instead, the court will appoint a counsel to cross-examine the child so as to avoid situations in which a rapist or abuser may be cross examining a child victim.
Child Witness Project Statement of Basic Principles of Justice for Child Witnesses
- Every child is to be treated with due regard to his or her age and with recognition of the vulnerabilities inherent in being a child and with consideration of his or her unique needs and stage of physical and emotional development.
- Every child has the right to victim-support services tailored to him or her as an individual and delivered in a timely way prior to court.
- Every child and his or her caregivers will be informed about the testimonial aids that are legislatively available to them. Their input and preferences should be sought.
- Every child will have access to the accommodations and support to best facilitate a full and candid account of his or her evidence.
- Every child has the right to feel safe in a courtroom, while waiting for court, and while entering and leaving the courthouse.
- Every child should be questioned by adults who use age-appropriate language, who adapt their communication to the developmental level of the child, and who continually monitor the child’s comprehension.
- His or her impending role as a witness should not be a bar to a child’s access to counselling.
- The special role of parents and caregivers should be recognized and their needs addressed, so they can support their children as appropriate.
- Given that victims have the right to be informed, information should be relayed to children using words and language they can understand.
- Efforts to expedite or fast track cases involving child witnesses must be a priority.
Being a witness is not easy. Facing the accused can be frightening, being cross-examined by the defence lawyer can be frustrating and humiliating, and the delays and sheer length of criminal trials place much undue anxiety on victims and witnesses. While the justice system still has room to progress with regards to the treatment and services that victim/witnesses receive, it has improved greatly over the past few decades. This is perhaps most evident for child victims, with the implementation of many protective measures to ease some of the anxiety they experience when testifying in court. If one is prepared for and knows what to expect out of the process and their role as a witness, the experience can be easier to get through. The role of the victim/witness is one of the most important aspects of a criminal trial and therefore victim/witnesses should be treated with dignity and respect.
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