What you should know
A witness helps our legal system by giving important information (called evidence) to a court. A witness testifies, telling the court what the witness knows. Information from witnesses helps the court make the right decision. If you receive a document that says you have to be a witness in a trial, it’s because you have important information about a case.
Either side in a court case can ask you to be a witness. If they do, you will receive a document called a subpoena or summons to witness. Read it carefully. It may require you to bring documents with you to court.
On the subpoena or summons to witness is the name of the lawyer who is calling you to court. Phone the lawyer to find out why they want you as a witness and what documents you have to bring to court. Ask exactly when you have to go to court, and if necessary, try to arrange a better time.
If you are unable to personally attend court and you have a valid reason for it, you may seek permission to give evidence by video. When you receive notice of the court date, you have to immediately speak with the lawyer who is calling you to court to make this arrangement. It is up to the judge hearing the case to decide whether to permit a witness to give evidence by video.
If you have a good reason not to be a witness, you can ask a judge to cancel the subpoena or summons. For example, if you have been called to Small Claims Court, a judge can cancel the summons if you are not really needed as a witness or if it would be a hardship to you to go to court. For other courts, you can call the court registry and explain that you want to ask a judge to cancel a subpoena.
If the subpoena or summons is not cancelled and you do not make other arrangements with the lawyer on when to give your testimony, then you must go to court. If you don't go, the lawyer can ask the judge to have you arrested and brought to court. A court can issue a material witness warrant for your arrest.
Many people don’t want to be a witness because they are afraid to answer certain questions. They think, based on American TV shows, they can refuse to answer by “pleading the fifth amendment.” That’s wrong. Witnesses have to testify (tell the court what they know) by answering questions from either side or the judge. If a witness refuses to answer a question, the judge can find them in contempt of court and jail them.
That said, there are limits on how the information provided by a witness can be used. Generally, it cannot be used against the witness at a later hearing if they are charged with a crime.
You may want to get independent legal advice before going to court if you are worried about testifying about certain things.
Understand the process
A case in civil court usually involves the private interests of a person or company — such as property or money claims — or family issues such as guardianship, parenting arrangements, or support of children. The side making the claim, or suing, is the claimant. The side responding to the claim, or defending, is the respondent or defendant. The notice you receive to be a witness in a civil case will show the names of both sides: the claimant and the respondent or defendant.
In a criminal case, the notice will list Regina and the name of the accused person. Regina means Queen in Latin. Because the Queen of England is Canada's head of state, her name represents the community in a criminal trial. The prosecutor, called Crown counsel, is the lawyer acting for the community to make — or prosecute — the case against the accused person. Defense counsel is the lawyer for the accused person.
Being a witness involves some preparation.
Think about the event or events you saw. What happened first? What happened next? Try to remember details like dates, times, descriptions, actions, persons involved, and exact words. Keep any notes, photographs, and documents you have about the case. Bring this material with you if you speak to a lawyer before the court date, and when you go to court. The judge may let you look at your notes during the trial.
If you can, before your court date go to the courthouse to watch what happens in court. Most trials are open to the public.
As a witness, you have a right to speak in a language you know well. If you find it hard to speak or understand English, tell the lawyer calling you as a witness or court staff ahead of time so there is enough time to arrange for an interpreter.
On the day of the trial, dress neatly.
When you arrive at the courthouse, check the list of trials to find your courtroom.
If you are a witness in a criminal trial, go to the Crown counsel’s office to tell them you are there. The subpoena will usually tell you to go to the Crown counsel’s office 30 minutes before the trial starts.
Wait outside the courtroom until you are called to go in. Do not discuss your evidence with other witnesses. Be prepared to wait a while. A long wait can be inconvenient, but delays happen. You may want to ask a friend or relative to wait with you, or bring some reading material.
Someone will call you when it is your turn to testify (give your evidence). You then go to the witness box at the front of the courtroom.
The court clerk will ask you if you wish to swear a religious oath on the Bible or to affirm to tell the truth. Both options bind your conscience and require you to promise to tell the truth. Both place the same obligation on you to tell the truth, with the same consequences for failing to do so.
Next, you will be asked to say your full name and spell your last name. Witnesses are not usually asked to state their addresses, but it can happen. If you are asked but don't want to give your address in public, tell the judge.
You may sit down while giving your evidence.
The lawyer who called you as a witness will be the first to question you. Then the lawyer for the other side will cross-examine you by asking more questions. The judge may also ask you questions. You have to answer the questions.
Treat everyone in the courtroom respectfully. You can call the judge "Sir" or "Madam.” "My Lord" or “My Lady” are the formal titles in Supreme Court. “Your Honour” is the formal title in Provincial Court.
In testifying (giving your evidence), explain what you yourself directly observed, or what you did or said. You can show the judge any photographs that support your observations. However, do not talk about events you did not directly witness. Do not repeat the words someone else told you about events at which you were not present, unless you are asked to tell what you heard. Do not give your opinion.
After you give your evidence and the court excuses you, you can leave. You can also stay in the court and listen to the case if you like. If you remain in the courtroom, be respectful and remain quiet.
- When you answer, speak to the judge, not to the person who asked the question.
- Think about each question before you answer. Wait until the end of the question before starting to answer.
- Take your time so you can give a complete answer.
- Do not guess. 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.”
- If you do not understand a question, ask the person to repeat or explain it.
- Do not speak at the same time as anyone else or interrupt the judge or lawyers.
- 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.