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Witnesses: Subpoenas and testifying

Region: Ontario Answer # 760

Role of witnesses

The role of witnesses is to tell the court what they know, whether it relates to the person accused, the crime, or the circumstances surrounding the crime. What they tell the court is called their testimony, and in law it is considered to be an important type of evidence.

Being ordered to appear in court as a witness

Usually the Crown prosecutor or the defence lawyer instructs a witness to come to court by issuing a subpoena. A subpoena is a piece of paper that orders a person to come to court on a certain day to speak about certain events relating to the trial.

Receiving a subpoena and attending court

If you receive a subpoena to go to court, you must attend. Failing to attend can result in being arrested. Once at court, you must testify and respond to questions from both the Crown prosecutor and the defence lawyer. If you refuse to answer the questions, the judge may find that you are in contempt of court. This is an offence, and means that you can be put in prison for up-to 90 days and be ordered to pay a fine of up-to $100. There is no equivalent of the Fifth Amendment in Canada, although the Charter of Rights does offer some protection to witnesses with respect to the use of testimony which may incriminate them in another proceeding.

Testifying in court

Witnesses must take an oath before they testify, which means that they must swear to tell the truth. A witness may also choose to affirm in place of the oath. Lying under oath is called perjury and is a serious criminal offence under Canada’s Criminal Code. You could face a maximum penalty of 14 years in prison.

What can you testify about?

A witness is questioned first by the lawyer who wanted them to come to court, and then by the other lawyer. As a witness, you can only testify about things that you saw, things that you know are true, or in some circumstances, things that you heard (like a gunshot). Generally you cannot testify about things that someone else told you.

Being a witness at your own trial

It is also possible to be your own witness at your own trial, and testify before the court. Although you can be your own witness, you cannot be forced to testify at your own trial, and in some cases people who have been charged with an offence choose not testify at their own trial. The reason for choosing not to testify is that both lawyers can question you, which means that you are legally required to answer questions from the Crown prosecutor. This can become difficult if the Crown asks you about things that may damage your case further. There are other reasons not to testify for which a lawyer can advise you.

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