- 1 WHAT IS A WITNESS?
- 2 HOW WILL I KNOW IF I HAVE TO TESTIFY AS A WITNESS?
- 3 WHAT IS A SUBPOENA EXACTLY?
- 4 WHAT IF I AM A WITNESS, BUT I DO NOT RECEIVE A SUBPOENA?
- 5 WHAT IF I FEEL THAT I SHOULD NOT BE A WITNESS?
- 6 WHAT IF I DO NOT WANT TO TESTIFY? DO I HAVE TO OBEY THE SUBPOENA?
- 7 WHAT IF I HAVE TO TAKE TIME OFF OF WORK TO TESTIFY? AM I PAID? CAN I LOSE MY JOB?
- 8 WHAT SHOULD I DO TO PREPARE BEFORE I TESTIFY?
- 9 WILL I BE ABLE TO HEAR THE OTHER WITNESSES TESTIFY?
- 10 WHAT WILL HAPPEN WHEN IT IS MY TURN TO TESTIFY?
- 11 DO I HAVE TO ANSWER ALL OF THE QUESTIONS?
- 12 WHAT IF I DO NOT KNOW THE ANSWER TO A QUESTION?
- 13 HOW LONG WILL THE TRIAL LAST?
- 14 HOW MANY TIMES WILL I HAVE TO GO TO COURT TESTIFY?
- 15 WHAT HAPPENS IF I AM AFRAID TO SEE THE OFFENDER WHILE GIVING MY TESTIMONY?
- 16 ACCOMMODATIONS FOR CHILDREN AND VULNERABLE ADULTS
- 17 MY CHILD IS REQUIRED TO TESTIFY AS A WITNESS – WHAT SHOULD I KNOW ABOUT HOW THE EXPERIENCE WILL AFFECT THEM?
- 18 MY FIRST LANGUAGE IS NOT ENGLISH OR FRENCH, AM I ALLOWED TO TESTIFY IN ANOTHER LANGUAGE?
- 19 WHAT IF SOMEONE TRIES TO GET ME TO LIE OR CHANGE MY TESTIMONY?
- 20 WHO WILL BE IN THE COURTROOM WHEN I TESTIFY?
- 21 WHAT HAPPENS AFTER I TESTIFY?
- 22 CONCLUSION
This booklet is designed to be a guide for victims of crime who are required to testify in court. The information in this guide will assist you as a victim in understanding what it means to be a witness in a criminal court and to reduce some of the mystery and anxiety about testifying. This booklet will cover topics of interest related to those who are victims of a crime and who are required to testify as a witness and in doing so will also answer common questions that victim-witnesses may have.
WHAT IS A WITNESS?
According to Section 118 of the Criminal Code of Canada, a witness 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.”
Witnesses may include any one who actually sees or hears a crime or an event related to a crime, police officers who were involved in the investigation of the crime, or experts on relevant topics (such as a coroner, ballistics expert, or forensic psychologist).
HOW WILL I KNOW IF I HAVE TO TESTIFY AS A WITNESS?
If you are required to testify, a written document telling you so will be delivered to you personally (likely by the investigating officer of the case, but may also be delivered by a sheriff of the court). This document is called a subpoena.
WHAT IS A SUBPOENA EXACTLY?
A subpoena is a written order, issued by a justice of the peace or a judge, ordering a person to appear in court. The subpoena will include information about when and where you are required to testify, and will also tell you which lawyer (either the Crown Attorney or the Defence lawyer) is asking for your testimony so that you can contact them if necessary.
WHAT IF I AM A WITNESS, BUT I DO NOT RECEIVE A SUBPOENA?
The main reason that witnesses are not required to testify is because the accused person has plead guilty or made a plea bargain. When this happens, a trial is avoided and witnesses are not required to give testimony. If you are unsure about whether a plea bargain has been made, you should contact the officer investigating the case to find out.
WHAT IF I FEEL THAT I SHOULD NOT BE A WITNESS?
If you have a good reason not to be a witness, for example if it would cause you undue hardship to travel to the court or if you believe that do not have any relevant information to add to the trial, you can ask a judge to cancel the subpoena. You can do this by calling the court registry, or the courthouse indicated on the subpoena, and explaining that you want to ask a judge to cancel a subpoena and they will direct you accordingly.
If the judge does not cancel the subpoena, you must attend court on the date stated on the subpoena or face charges of contempt of court.
WHAT IF I DO NOT WANT TO TESTIFY? DO I HAVE TO OBEY THE SUBPOENA?
A person who is served with a subpoena who does not appear may be charged with the offense of contempt of court. This means that if you fail to obey a subpoena, you may face a fine or time in prison. If serious circumstances (such as major surgery) make you unable to attend court on the day specified in the subpoena, you should contact the lawyer who called you as a witness as soon as possible to discuss and make other arrangements.
WHAT IF I HAVE TO TAKE TIME OFF OF WORK TO TESTIFY? AM I PAID? CAN I LOSE MY JOB?
All employers must allow their employees to take time off of work to attend court if they are subpoenaed as a witness. While the employer must allow you to take the necessary time off to testify without causing you to lose your job or reduce your seniority, they are not obligated to pay you for missed work.
Witnesses may be eligible for compensation for certain expenses incurred as a result of them being called to testify. Ask the lawyer who subpoenaed you or a person from the Victim/Witness Assistance Program in the courthouse (more information on this program is provided in the next section) about how to be reimbursed for your expenses (such as travel and accommodation). Make sure you keep receipts for all of your expenses so that you can be reimbursed if appropriate. Witnesses are also usually eligible for a small daily allowance in addition to any expenses incurred if they are called to testify.
- More information about the amounts witnesses are entitled to in each province can be found here: Public Service Labour Relations Board: Summoning a Witness. (Scroll down to the section titled “Costs and Fees” and click on the link for your province.)
WHAT SHOULD I DO TO PREPARE BEFORE I TESTIFY?
1. Speak with the lawyer who subpoenaed you.
After you receive a subpoena, you should contact the lawyer who ordered it (usually the Crown Attorney) and make an appointment. During your appointment, the Crown and likely the investigating officer will discuss with you the types of questions that may be asked, and will also provide you with a copy of your statement if you had previously made one to refresh your memory. It is important to note that during this meeting, the Crown and the police cannot tell you what to say, they can only prepare you for the types of questions that may be asked and tactics that may be used to discredit your testimony by the other lawyer.
2. Take advantage of Victim-Witness Assistance Programs.
Most courts in Canada now have Victim-Witness Assistance Programs that can answer any lingering questions you may have and provide you with additional support.
Some of the services that VWAP can provide include:
- Facilitate written correspondence with the Crown Attorney about their specific case concerns
- Information and guidance on how to prepare Victim Impact Statements
- Additional court preparation and orientation
- Accompaniment to court
- Court cancellation notifications
- Reimbursement of expense claims
- Provide you with a calm environment while you wait your turn to testify
- Crisis intervention and emotional support
- Referrals to community agencies.
Trials can take a long time to complete (sometimes months or years), and VWAP can provide ongoing support and information throughout the trial (their role ends after the sentencing hearing).
3. Some things that you can do to prepare yourself for when you must go to court:
A FEW DAYS BEFORE YOU ARE TO TESTIFY:
- Try to make sure you remember details about the following:
- what day and time the crime occurred;
- who else was there, what did they look like;
- who you talked to, what you said;
- where you were when the crime occurred.
- Call the Crown Attorney’s office, the court clerk, or a VWAP office to ensure that the date you believe you are to testify is correct, as well as the time and location of the court house. If you have a disability, ask the Crown if the court house is easily accessible or if arrangements can be made for you.
- Ensure that you have all documents requested in the subpoena. If you think you might need some of the documents that have been requested, ensure that you make copies, as it may take a long time before the documents are able to be returned to you (not usually until after a case has been decided).
- Make arrangements for transportation or child care ahead of time in order to ensure that you are available when needed. Court houses do not have child care facilities.
ON THE DAY OF COURT:
- If you made notes when the crime happened, you may be allowed to take these into court with you. Ask the lawyer handling the case if this is allowed.
- Bring all of the documents requested in the subpoena.
- You might also want to bring something to read or do while you are waiting to testify. You should be early getting to the court house and depending on the pace of the trial or if any issues arise, you may be waiting for quite some time before being able to testify.
- Ask someone (a family member, friend, or other support person) to accompany you to court if you think it would be helpful to have them present while you testify.
SOME HELPFUL TIPS WHEN TESTIFYING
- As a witness, you have a right to speak in a language you are comfortable with. If you find it hard to speak or understand the language that the trial is being heard in (English or French), tell the lawyer or court staff before the trial. They will arrange for an interpreter.
- If you do not understand a question, ask the lawyer to repeat or explain it.
- Think about each question before you answer.
- Take your time so you can give a complete answer.
- Try not to use phrases like “I think” or “I guess” when testifying. If you are not sure about an answer, just say so. It’s okay to say “I don’t know” or “I don’t remember.”
- Explain what you saw or did or said yourself. Do not repeat the words someone else told you unless you are asked to do so.
- Speak clearly and loudly, so that people in court can hear you and write down what you say. The microphone in front of you usually only records your voice; it does not make it louder.
- It is okay to cry or become upset while testifying, however you must try to remain respectful. If you need a short break or a glass of water to help you calm down, ask the judge if that can be arranged until you are able to continue.
- Courtroom Etiquette
- Always address the lawyers or judge respectfully. They can all be addressed as “sir” or “madam” and you can also address Provincial judges as “Your Honour” or Supreme Court judges as “My Lord” or “My Lady.”
- Do not speak at the same time as anyone else, or interrupt the judge or lawyers.
- While there is no specific dress code for witnesses, a trial is a formal process and so you should be dressed in a respectful manner (ex. avoid low cut tops or ripped jeans).
WILL I BE ABLE TO HEAR THE OTHER WITNESSES TESTIFY?
No. As a witness, you are not allowed to listen to the other witnesses testify at the trial before you give your own testimony. This is so your testimony is not influenced by what the other witnesses say, or by any other evidence presented at the trial. After you give your testimony, you should be able to stay in the courtroom to listen to the rest of the trial, unless there is a probability that you will have to testify again. The judge will let you know if you are allowed to stay in the courtroom.
WHAT WILL HAPPEN WHEN IT IS MY TURN TO TESTIFY?
The first thing that will happen is that someone (usually the court clerk) will tell you it is your turn to testify and you will make your way to the witness box. Once there, the court clerk will either read an oath and ask you to swear on a bible (there are different oaths for different religions) or will ask you to affirm (which means to promise to tell the truth). You will then be asked to say and spell your name. You will then begin your testimony, which generally has 3 phases:
- Direct examination: the lawyer who called you as a witness will ask you questions about what you saw or heard in relation to the crime.
- Cross-examination: the other lawyer (usually the defence) will also ask you questions about the crime, but will also try to discredit your testimony or show that you are not a reliable witness.
- Re-examination: the original lawyer is able to ask you more questions (this phase does not always occur).
DO I HAVE TO ANSWER ALL OF THE QUESTIONS?
Yes. You must answer all of the questions from the Crown Attorney and the defence lawyer. If a question is embarrassing or appears to be unconnected to the case, ask the judge if you have to answer it. If the judge decides the question is relevant, you must answer it. If you refuse to answer the question, you can face charges for contempt of court.
WHAT IF I DO NOT KNOW THE ANSWER TO A QUESTION?
If you are unsure of what the lawyer is asking, tell them that you do not understand and ask them to repeat it or to rephrase it. Do not guess at what the question is if you are unsure. Answer the question truthfully and to the best of your knowledge. If you don’t know or don’t remember, say so. Do not say what you think the lawyer wants to hear, or what you think probably happened. Only tell the court what you saw or heard for sure. It is important to always tell the truth when testifying. If you do not tell the truth, you can be found guilty of perjury and face up to 14 years in prison.
HOW LONG WILL THE TRIAL LAST?
It is almost impossible to know how long legal proceedings will last, particularly when a serious crime has occurred. There are many factors that may cause delay (such as if the offender absconds or intentionally does not show up in court, if there are language or mental capacity issues on the part of the offender, if the defence or the Crown asks for more time to prepare their case, etc.).
HOW MANY TIMES WILL I HAVE TO GO TO COURT TESTIFY?
During the trial, you will normally only have to testify once. However, sometimes a preliminary inquiry will be held before a trial, which is used to determine if there is enough evidence for the case to go to trial. During this stage, the prosecution will present all of its evidence; including the testimony from witnesses/victims (the need for a preliminary hearing will also extend the judicial process). As a witness, you will need to take an oath, just like during the actual trial, and you will be asked questions about what you saw, heard or experienced. You should know that the defence will be given a transcript of all the testimony from victims, and will refer back to this transcript during that actual trial to ensure that what you say is consistent. This is one of the reasons that it is important to be honest about what you did or did not witness, and if you are not sure about something, to say so.
WHAT HAPPENS IF I AM AFRAID TO SEE THE OFFENDER WHILE GIVING MY TESTIMONY?
All witnesses, with the exception of children and some vulnerable adults, are required to testify in court during the regular trial process in front of the accused. This is because the accused person has the right to see and hear the evidence presented against them. If you have to testify and are afraid, remember that every measure has been taken to ensure the safety and security of everyone in the courtroom. Sheriffs are in attendance at all times and you are encouraged to speak to them if you feel unsafe or threatened in any way. In addition, you may request the assistance of a friend, relative or victim service worker to accompany you to court for emotional support and to make you feel safer.
ACCOMMODATIONS FOR CHILDREN AND VULNERABLE ADULTS
In the case of children or vulnerable adults, testimonial accommodations can be made to ensure that full and candid accounts of the events witnessed are relayed. Some of these accommodations include having the witness testify behind a special screen in which the witness cannot see the accused, but the accused can see the witness. A closed circuit television may also be used, enabling the witness to be in another room during their testimony while still allowing the accused to see them. In cases where the accused is representing him or herself, the judge may appoint another lawyer to ask questions of the witness so that they do not have to speak directly to the accused.
The judge will have to take into account various factors when deciding whether to order testimonial aids for vulnerable adult witnesses. These factors may include the nature of the offence and the nature of the relationship between the vulnerable adult witness and the accused.
Testimonial Aid Provisions in the Criminal Code
486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who has a mental or physical disability, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
486.1 (2) In any proceedings against the accused, the judge or justice may, on application of the prosecutor or a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.
486.1 (3) In making a determination under subsection (2), the judge or justice shall take into account the age of the witness, whether the witness has a mental or physical disability, the nature Vulnerable Adult Witnesses 6 of the offence, the nature of any relationship between the witness and the accused, and any other circumstance that the judge or justice considers relevant.
Testimony Behind a Screen or Outside of the Court
486.2(1) Despite section 650 (Accused to be present in Court), in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside of the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
486.2(2) This section addresses the testimony of vulnerable adult witnesses who require a testimonial accommodation in order to provide a full and candid account of their evidence to the Court. In granting an application, the presiding judge or justice must be satisfied that the order is necessary.
s.486.2 (3) Factors the Court takes into account are: the nature of the offence; the relationship of the witness to the accused; the age of the witness; and any other circumstances the court might deem relevant.
MY CHILD IS REQUIRED TO TESTIFY AS A WITNESS – WHAT SHOULD I KNOW ABOUT HOW THE EXPERIENCE WILL AFFECT THEM?
The stress of testifying in court, especially against someone who may have been in a position of trust, can create further trauma for children who have already experienced or witnessed violence. Testifying can rekindle feelings of betrayal, helplessness, powerlessness, shame or guilt that the child felt during the original trauma.
Cross examination can be particularly stressful for children and questions beyond the child’s developmental comprehension may also be asked. Cross examination can trigger feelings reminiscent of abuse and may also confuse the child because they may feel like they are being blamed for the abuse, or like they are not a reliable witness (it may make them feel like they are a liar, even though they are being truthful). Children may also feel intimidated by the atmosphere of the courtroom, resulting in additional fear of testifying.
To make things easier for a child witness, accommodations can be made (see above). Also, making yourself aware of the court process and what happens in the court room so that you can answer any questions of your child would also be beneficial. Sometimes you may also be called as a witness, and therefore will not be able to be in the court room during the testimony of your child. If this is the case, try to make sure that another person (close family member or friend, or support person from the VWAP) can be there to support your child while they testify. Make sure your child knows that they will not get in trouble for telling the truth and that it is okay if they cry or need a break during their testimony. Take advantage of child witness programs and resources (usually part of VWAP). Some really good online resources that you and your child can use to prepare for being a witness include:
- The Canadian Society for the Investigation of Child Abuse “Child Witness Court Preparation
- The Centre for Children and Families in the Justice System “Helping a Child to be a Witness in Court”
MY FIRST LANGUAGE IS NOT ENGLISH OR FRENCH, AM I ALLOWED TO TESTIFY IN ANOTHER LANGUAGE?
Yes. Make sure you inform the lawyer who subpoenaed you prior to the date you are supposed to testify that you need translation services and they will try to make those arrangements for you.
WHAT IF SOMEONE TRIES TO GET ME TO LIE OR CHANGE MY TESTIMONY?
If someone tries to get you to lie or change your testimony, tell the police or the Crown Attorney immediately. It is illegal for anyone to try to manipulate or harass a witness, and they may be charged with the obstruction of justice and face up to 10 years in prison if they do so.
If you chose to lie while giving testimony, this is also a crime and you may be charged with perjury and face up to 14 years in prison.
WHO WILL BE IN THE COURTROOM WHEN I TESTIFY?
JUDGE: The judge is the expert on law and listens to everything that the lawyers and witnesses say. When there is no jury, the judge will also be the person to decide if the accused is guilty. When there is a jury, the judge will provide the jury with information about the law and answer any questions they may have relating to the trial.
CROWN ATTORNEY: The Crown is the person prosecuting, or trying to prove the guilt, of the accused person. The Crown has received the case from the police and knows what the witnesses told the police, and are there to help the witnesses tell the judge (and jury) what happened. While the Crown is likely the lawyer you will have the most contact with, they are not your lawyer. Most Crowns will try to make sure that your interests and needs are met, but they are not at all obligated to do this; the Crown represents the government and societies interest in ensuring crimes are prosecuted.
DEFENCE LAWYER: The defence lawyer is the lawyer for the accused person. Their job is to ensure fairness for the accused and make sure that the accused’s version of the events are heard and understood by the judge or jury. The defence lawyer tests the evidence about what happened by questioning the Crown’s witnesses and by calling witnesses of their own that may provide reasonable alternatives about what happened.
ACCUSED: This is the person who has been charged with breaking the law. They have to be in court to hear all of the evidence by all witnesses and also when the judge or jury decides that they are guilty. The accused person is not guilty until after the trial and the verdict has been given.
JURY: A jury is a group of 12 people from the community that will hear all of the evidence presented in court. They will then decide whether or not the accused is guilty based on that evidence.
CLERK: This person makes sure that the whole court process runs smoothly and that everyone is aware of what they are to do. The clerk does things like record the courtroom proceedings, hands documents and evidence to the judge, announces when the court is ready to hear the next witness, and also asks the witnesses to take an oath or affirmation.
SHERIFFS: Sheriffs in the court room provide and maintain a safe and secure setting for all persons within the courthouses. The sheriff is responsible for: the security of the court and all persons attending, prisoner management, and the handling and transportation of offenders.
PUBLIC: In Canada, in order to ensure transparency in the criminal justice system, all criminal court proceedings are open to the public. This means that during a criminal trial, members of the public including friends and family of the victim as well as the accused, victim support persons, the media, and other interested members of society are all able to sit in the court room. In rare situations, some exceptions are made and trials are closed to the public because of extenuating circumstances to ensure the fairness of the trial.
MEDIA: some media personnel may be in attendance during the trial to take notes, however they are not allowed to take pictures or videos.
WHAT HAPPENS AFTER I TESTIFY?
After you testify, you can choose to stay in the courtroom if you would like to hear the rest of the trial, or you may leave after the judge dismisses you.
If you have given documents or items to the court as evidence, you will have to wait until the end of the appeal processes to get them back. Make sure you let the Crown and the police know that you would like those items back.
Being a victim-witness and testifying against the person who harmed you or someone else is a very stressful and sometime traumatic experience. This booklet is meant to lessen some of that anxiety and help to prepare you for testifying. If you are a direct victim of a crime and the accused person was found guilty, you have an additional opportunity at the sentencing hearing to tell the judge what happened and how it affected you by presenting a Victim Impact Statement. If the offender is then sentenced to prison, you have the further opportunity of submitting a victim statement to the correctional authority for use at their parole hearings. For more information on how to complete and submit this statement and to find out about other ways you can influence decisions regarding the offender, please see our Victim’s Guide to Participating in the Criminal Justice Process.
Feedback about our Victim Library is greatly appreciated.
Please vofv(at)victimsofviolence(dot)on.ca if you have any comments, or to report errors or omissions.