As a witness in a criminal case, you have a very important role to play in the administration of justice.
Our legal system depends upon citizens coming forth to give evidence truthfully and solemnly to assist the judge to determine the guilt or innocence of the accused person.
The judicial system and your community are grateful to you for the valuable duty you will perform. This guide has been prepared to assist you in carrying out that duty.
Crown Witness Coordinators
Crown Witness Coordinators can help you with many questions about being a witness. If you live in a different place from where the court proceeding is taking place, the Witness Coordinator can tell you about the travel arrangements that will be made for you, and how to claim your expenses. In Whitehorse, call 667-8100. Persons outside of Whitehorse can call toll free from anywhere in Canada: 1-877-587-8499.
A subpoena is a court order that tells you that you must come to court at a set time and place to give evidence as a witness. You may be subpoenaed by the Crown, or by the lawyer for the defence, or both.
To be a witness does not necessarily mean that you saw the crime. It can also mean that you have some other information that is relevant. For example, a doctor who treats injuries after an assault is often a witness.
You cannot refuse to go to court once you've received a subpoena. If you disobey a subpoena without good reason, you can be arrested and charged with a criminal offence. If found guilty, you can be fined or given a jail term, or both.
If, for very good reasons, you cannot be at court, you should immediately contact whoever subpoenaed you, or call the Public Prosecution Service of Canada (667-8100, or toll free 1-877-587-8499). Even though you may have good reason for not attending, you must get permission to be absent from court. If your evidence is very important in the trial, the trial might be rescheduled.
You should tell your employer that you have to go to court to give evidence. Because a subpoena is a court order, your employer must give you time off to testify in court. Your employer is not required to pay you for this time, unless it is a term of your employment.
If you're subpoenaed by one party and the other party contacts you, you are free to discuss the case if you wish, but you are not obliged to do so. Ask the lawyer who subpoenaed you about this.
A couple of days before court, you should contact the Crown Witness Coordinator or the lawyer that subpoenaed you to be sure the case is going ahead as scheduled. It's always possible that the accused decided to plead guilty or that the matter was adjourned to another time.
Each case that goes to trial is assigned a caseworker who assists Crown witnesses. The nature of the case and your role in the trial will determine who will be your caseworker. If your caseworker has not yet spoken to you, contact the Crown Witness Coordinator before the date of the trial to find out who has been assigned to assist you. If you would like a court orientation, ask your caseworker to set one up for you before you are scheduled to appear in court.
If you move, or change your phone number, tell the Crown Witness Coordinator or the lawyer that subpoenaed you.
It's a good idea to ask the lawyer that subpoenaed you for an appointment to prepare for giving your evidence in court.
Try to be at court about 30 minutes early, as the lawyer may wish to ask you some questions. If you are testifying in Whitehorse, your case coordinator may also want to speak to you before court.
Bring the subpoena with you as well as any other documents you have been asked to bring to court. These items will be returned to you after the trial if you make your request known.
a. In Whitehorse:
When you arrive at the Law Courts, go to the Court Registry counter on the main floor and ask to speak to the Court Clerk. The Court Clerk will know whether there have been any changes to the court schedule, such as the courtroom the trial will be held in, the time it is expected to begin, etc.
b. Outside Whitehorse:
Try to let the lawyer know you've arrived. If you are a witness for the Crown, make your presence known to the Crown Prosecutor, or to the police officer in court. If you are a witness for the defence, let the defence lawyer know that you have arrived.
You may go into the courtroom before court starts, and sit in court until the case is called. Sometimes the judge orders all of the witnesses outside the courtroom until it is their turn to testify. This is done so that one witness will not be influenced by what another witness says.
If the witnesses must leave, you must wait outside the courtroom until your name is called. After you have testified, you can usually stay in the courtroom if you wish.
a. Swearing In:
When it's time for you to give your evidence, your name will be called. You should go to the witness box, where the Court Clerk will ask you to state your name and spell it for the court record.
You will be asked to swear an oath to tell the truth. If you do not wish to swear on a religious text, you can affirm to tell the truth instead. To do this, simply tell the judge as soon as you take the stand that you wish to affirm.
b. Giving Evidence:
Usually the Crown presents its case first. If you're a witness for the Crown, you will be questioned first by the Crown Prosecutor. You must answer the questions put to you by telling what you have seen or heard as exactly as possible. This is called direct examination. If you don't understand a question, ask to have it repeated.
When the prosecutor is finished, the defence lawyer may ask you questions in order to test your answers. This is called cross-examination.
Once the Crown has finished calling its witnesses, the defence will begin to call witnesses. If you are a witness for the defence, the defence lawyer will question you first. Then the Crown Prosecutor may cross-examine you.
The judge may also ask you questions at any time.
After you testify, you must remain in the courthouse until the judge excuses you. If you need to leave when you have finished testifying, tell the lawyer, who will ask the judge to allow you to be excused.
You should expect to answer all the questions put to you by either lawyer. However, if a question is embarrassing for you or seems irrelevant to the case, you can ask the judge if you have to answer. It is up to the judge to decide if you must answer the question.
If you fear answering a question because it might mean you are admitting to a crime, you can tell the judge this. Although you still have to answer the question, you are protected by the Canadian Charter of Rights and Freedoms. The Charter says your answer can't be used later to help convict you of an offence. The exception to this is perjury (a deliberate lie under oath).
All trials are open to the public. The public will only be excluded from the court if the judge feels it is absolutely necessary. The judge could, for example, exclude the public if the evidence you are to present is of an extremely personal nature. If this is a concern for you, speak to the lawyer who subpoenaed you.
You might be disappointed if you were counting on giving your testimony right away. Very often, hearings don't go ahead as planned. There are many reasons for delay. A case before yours may take longer than expected. The accused or an important witness might not show up. Sometimes, an accused will get an adjournment to get a new lawyer. If you don't understand the reasons for a delay, ask the lawyer or the Court Clerk.
If there is a delay or adjournment, the judge may set a new date and time. You must come back to court at the new time. If you're not sure when you should appear next, call the lawyer who subpoenaed you or the Public Prosecution Service of Canada (667-8100, or toll free 1-877-587-8499) and ask.
Tell the police, or the lawyer who subpoenaed you, or the Crown Witness Coordinator immediately. It's illegal for anyone to harass or attempt to influence a witness. A charge of obstructing justice may be laid.
You are under a duty to tell the truth when you are on the witness stand. Telling a lie on purpose is called perjury. Perjury is a crime. Anyone who commits a perjury can get up to 14 years in jail. An innocent mistake is not perjury, nor is an honest answer.
No. You should make arrangements for someone to care for your children while you are in court. You may be reimbursed for child care expenses. Speak to the Crown Witness Coordinator if you have child care expenses.
Ordinary Crown witnesses do not receive a fee for testifying. Expert witnesses are paid amounts set out in regulations.
If you don't live in the same place as the court, the Public Prosecution Service of Canada Travel Coordinator will pay the cost of your transportation to the community where the trial is taking place and of your accommodation while there. You will also receive an allowance towards the cost of your meals.
After you have finished testifying, go to the Public Prosecution Service of Canada Travel Coordinator's office. Someone there will calculate how much you are owed and give it to you. If you are owed a large amount and there is not enough cash to pay you, you will receive a cheque in the mail.
The maximum amount you will receive for meals and transportation is the rate paid to Yukon government employees traveling in the Yukon. Please contact the Travel Coordinator for information about the current rate.
As well, the Chief Federal Prosecutor has discretion to reimburse you for certain special expenses. For example, if you live in the bush and have to ask your neighbour to take you out to the nearest community on a snow machine, the Director may pay your neighbour for doing this. If you have special expenses, contact the Travel Coordinator and ask whether you can be reimbursed for them.
If you are a witness for the defence, you are in a very different situation than that of a witness for the Crown. There are no laws that state what fees or expenses you should get. If you're a witness for the defence, talk to the lawyer who subpoenaed you about whether you will receive any payment for testifying.
If this guide doesn't answer all your questions, or if you need information about the case in which you are to testify, you should contact either the party who subpoenaed you or the Crown Witness Coordinator.
If you are a Crown witness, and you need information about the case in which you are to testify, contact the Federal Prosecution Service - Yukon Region at 200-300 Main Street in Whitehorse, or call 667-8100. Persons outside of Whitehorse can call toll free from anywhere in Canada: 1-877-587-8499.
If you are a defence witness, the defence lawyer may have the information you need. Lawyers are listed in the yellow pages of the phone book, or you can get the number by contacting the Yukon Law Society (867-668-4231).