• Victims of criminal offences.

Here’s an example: Denis was attacked at knifepoint in a downtown Montreal bar. Charges were filed against the attacker, who is now involved in a criminal trial. The prosecutor summoned Denis to explain what happened to the judge. To learn more about the criminal process, consult the Infosheet entitled Introduction to criminal and penal law, and the Côtécour section of our website.

• People with firsthand information about a criminal offence.

Here’s an example: Mary, who accompanied Denis on the night of the attack, witnessed the incident from beginning to end. She is able to describe everything that happened and identify the assailant. The Crown would likely be interested in summoning Mary to testify. To learn more about witnesses, consult Côtécour.

• Experts, specialists, police officers, doctors, psychologists, etc.

The police who were called to the scene (particularly the officer who arrested the accused) are all summoned by the prosecutor. They explain to the judge what they witnessed. To learn more about the role of the police in court, consult Côtécour.

As a witness, your role is essential to the proper functioning of our justice system. It is your duty as a citizen to inform the court of everything you know about the accusations.

It is not recommended or desirable for a witness to take sides for or against the accused. Your job is limited to answering the questions that the lawyers and judge ask.

The lawyer who feels that your testimony would be important will send you a notice called a summons to appear (also called a subpoena). In general, this document will arrive by regular mail. In some more important cases, or when the person who wants to summon you thinks you won’t show up, a bailiff might visit you. The bailiff will hand you the summons personally. This process of giving you the summons is called service. If you are away from your home at the time of service, the bailiff can serve the summons to a person who lives with you. After serving the subpoena, the bailiff writes a report of service that he then deposits in the court record.

The summons to appear comes from the court and it orders you to appear and testify at the place, date and time indicated on it. The summons can also demand that you bring certain documents or pieces of evidence with you.

If you do not testify when summoned by a subpoena, the lawyer who summoned you can ask the judge to issue an arrest warrant against you. This means that the police can arrest and detain you. They will bring you to court so that you can explain to the judge why you were not present as asked in the summons.

But for the judge to issue the arrest warrant, he has to be convinced that you received the subpoena. This doesn’t present much of a problem when the service was done by a bailiff because the report of service is in the court record. On the other hand, if the service was done by mail, it is impossible to prove that you received the summons. In these cases, a judge will be reluctant to issue an arrest warrant against you. The lawyer who really needs you to testify can then ask the judge to postpone the trial to permit a new service of the subpoena. The judge can either accept or reject this request.

Sometimes, shortly before the trial, the lawyers come to an agreement and the trial is cancelled. In the process, the witnesses aren’t always told about this change of plans. That's why it’s a good idea to communicate with the lawyer who summoned you on the night before the trial, to make sure that your presence in court is still required. A short telephone call on your part could save you the inconvenience of having to come all the way to court.

If the lawyer who summoned you gives you permission not to come to court, ask him to confirm this in writing (by letter, fax, or email). Make the lawyer specify in writing that he will not ask the court to issue an arrest warrant against you. In case of a problem, you will be better protected.

Be careful though – the lawyer doesn’t have the power to cancel the summons outright. Only a judge can do that.

If there is a good reason that you cannot testify at the place and time indicated in your summons, you have to tell the contact person mentioned in the summons as soon as possible. This person is usually the lawyer who summoned you.

Remember, though, that the summons to appear is a court order. In theory, even the lawyer who summoned you cannot cancel this order – only the judge can do so. In spite of this, the lawyer can tell you that he won’t ask the judge to issue a warrant for your arrest. Again, it is important to ask for written confirmation of this.

If, on the other hand, the lawyer insists that you show up to testify, the situation becomes more complicated and the reasons that you give for not being able to go become more important. There is a difference between not being able to attend court because you are having heart surgery, and not going because you are just too busy to testify. If possible, send the lawyer any evidence you have that justifies your absence (copies of train tickets, medical reports, etc.). As a precaution, it is a good idea to send a copy to the clerk of the court as well. As long as a judge hasn’t cancelled the summons to appear, you are still supposed to come to court. If necessary, you can hire a lawyer to represent you in court the day of the trial and to explain your absence to the judge.

No. Your employer cannot prevent you from testifying. Nor can you use your obligation to work as grounds to not testify. According to the law, your obligation to work is not a good enough excuse.

The law forbids your employer from taking any measures against you, including dismissal, relocation, suspension, or any other form of punishment because you intend to testify or have done so.

Your employer, on the other hand, has no obligation to pay you for the time you took off in order to testify.

If your employer penalizes you in any way because you were summoned to testify, the Courts of Justice Act stipulates that you may have your rights defended by a labour commissioner.

First of all, come to the hearing room specified in the summons. Tell the clerk and the lawyer who summoned you that you are there.

To learn more about testifying, consult the text accompanying the witness picture in Côtécour.

In principle, yes. Unless the judge feels your case must be held in closed proceedings, the courtroom is open to the public. This means that the media has access to the court and may describe the trial in as much detail as it wishes. Consequently, your name may be made public by any number of media outlets, including the newspapers and television. To learn more about the public nature of trials, consult the sections devoted to this subject in Côtécour.

In trials involving sexual matters, such as rape or incest, the judge may order the non-publication of witnesses’ names or other identifying information. To learn more about this, consult the Infosheet entitled Sexual assault of children.

A witness is said to have “committed perjury” when he or she willfully makes a false declaration while under oath or after having made a solemn affirmation. Perjury is a serious crime punishable by a maximum prison sentence of 14 years. To learn more about the oath, consult Côtécour.

If a person tries to influence your testimony, dissuade you through threats, or try to bribe you to commit perjury, don’t hesitate to explain the situation to the police or the Crown prosecutor. These actions could amount to obstructing justice, a crime which carries a maximum prison sentence of 10 years.

Once your testimony begins, you must answer all the questions asked. The lawyers cannot ask you whatever they want, though. The questions must be relevant to the issue before the court and must respect a great number of rules of evidence. The judge is there to ensure that these rules are respected.

It is forbidden for you to refuse to answer a question, even if answering the question would force you to admit that you committed a crime, or would turn you into a suspect. On the other hand, the answer that you give and that could normally incriminate you cannot be used against you in another civil or criminal trial later.

For example, Paul is on trial for murdering a child. Actually, it is Pierre who committed the murder. Paul is innocent but the police don’t know it. Pierre is called as a witness in the murder trial. During Pierre’s testimony, Paul’s lawyer asks him if he is the real murderer. Pierre admits that he is. Paul is acquitted by the jury. In a case like this, the police or the prosecutor cannot use the transcript or recording of Pierre’s admissions to charge him with the murder he committed. The testimony is protected by the Canadian Charter of Human Rights and Freedoms, under the privilege against self-incrimination. Still, the protection against self-incrimination doesn’t apply if you are being charged with perjury, for example.

To learn more about recording a trial, read the text on mechanical recording in Côtécour.

Usually, no. The law provides that the spouse of an accused person in criminal court cannot testify against that accused. The spouse can testify in the defence of the accused, though.

By spouse, the law means only people who are married. De facto spouses (common-law spouses) are compellable witnesses. This means that they can be forced to testify. To be able to avoid testifying against the accused, the spouse of the accused must be married to him at the time of the testimony. Whether they were married at the time of the offence doesn’t matter.

Of course, there are some exceptions. A person can be forced to testify against his spouse if she is accused of certain crimes, including:

• Invitation to sexual touching by children;
  
• Sexual assault (simple, causing bodily harm or grievous);
  
• Juvenile prostitution;
  
• Abandonment of a child under 10 years old;
  
• Abduction of a child;
  
• Bigamy and polygamy;

And, if the victim is less than 14 years old, in the case of charges related to the following offences:

• Criminal negligence causing death;
  
• First- and second-degree murder;
  
• Manslaughter;
  
• Infanticide;
  
• Attempted murder;
  
• Simple assault;
  
• Assault with a weapon or causing bodily harm;
  
• Aggravated assault (including excision);
  
• Causing bodily harm.

Yes, there is a reimbursement for time lost, as follows:

• Ordinary witness

The indemnity is $90 for a whole day and $45 for a half day of absence from home.

• Expert witness

The indemnity is $180 per day and $90 per half day of absence from home.

• Transport Expenses

The witness can be reimbursed for the real cost of transportation. The payment set for automobile travel is $0.37 per kilometre travelled.

• Meals

Meal expenses are reimbursable, but the amounts are limited (for 2002) to:

-Breakfast: $10.40;
-Lunch: $14.30 (when you must be available until after 1 p.m.);
-Supper: $21.55 (when you must be available until after 7 p.m.).

• Accommodation

The reimbursement here varies between $79 and $116, depending on where the hotel is located and the time of year.

To collect reimbursement amounts, make sure to do the following: first, remember to keep all your meal and transport receipts. If you were summoned by the prosecution, go to the reimbursement service indicated on your subpoena before you leave the courthouse. If you were summoned by the defence, go to the lawyer in charge of the case; his contact information appears on your subpoena.

In the criminal justice system, the witness is not a party. This means that the witness is not running the trial of the accused. Her role is simply to give the information that she has about the offence.

No specific law gives witnesses rights. In some situations, the Canadian Charter of Human Rights and Freedoms does recognize some rights, though.

Also, the Ministère de la justice du Québec adopted a Statement of principle regardning witnesses. This document includes certain indicators for how witnesses are to be treated within the legal system so that their experience before the court may be as agreeable as possible. To learn more about this Statement of principle, consult the website of the Ministère de la justice du Québec.