Difference between revisions of "Avenues to Address Crime for Victims (4:IV)"

Victims can also request language assistance, including visual language assistance, if they are required to testify in court. The Ministry of Justice provides court interpreters to translate criminal and family law court proceedings in a variety of different languages. Additional language support for other court related activities is available through outside organisations. Individuals can find a full list of language assistance services available at the following link:

=== 3. Things you should know about being a witness ===

Although as stated above there are many resources available to witnesses to assist them and to make the process of giving evidence in court less stressful it is important that before a person decides to be a witness in a criminal case, they understand the possibly intrusive and uncomfortable experience that they may be put through by agreeing to give evidence. This is particularly important for victims as the process may make them feel as if they are being revictimized.  

All witnesses are generally compellable  

It is also important to understand that a competent witness is generally a compellable witness. Therefore, once you agree to give evidence or clearly make it known that you are a witness to a crime, a subpoena can be issued which compels you to attend court on a specific date to give evidence. If you have been served with a subpoena and you then fail to show up for the trial or later refuse to give evidence at trial, you can be charged with contempt. Also, if you lie while giving evidence in court, you can be charged with perjury.  

Cross-examination can be stressful

Cross-examination can be a stressful experience for a witness. Defence counsel will likely challenge a witness’ evidence in an attempt to show that they are not a credible witness or that the evidence they are giving is unreliable.  Defence counsel will generally do this by showing; the witness’ testimony is inconsistent with other independent evidence, they have made prior inconsistent statements, or their testimony has changed during direct examination and cross-examination.  Defence counsel may also attempt to show that the witness has a motive to lie or mislead the court, which may include cross-examining them on any bias or prejudice they have towards the accused.  Even if a witness appears credible, the defence may attempt to show that their evidence is unreliable because they are mistaken about what they saw.   

Discreditable conduct of a witness can be used to challenge their credibility  

Section 12 of the Canadian Evidence Act states “a witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.” In R. v. Cullen, 52 CCC (3d) 459 the Ontario Court of Appeal stated at para 9 that, “for the purpose of challenging a witness’ credibility, cross-examination is permissible to demonstrate that a witness has been involved in discreditable conduct.” Therefore, with the exception of the accused a witness can not only be cross-examined on any criminal record that they have, but they can also be cross-examined on the details of those convictions, any pending charges, acquittals, or any other discreditable conduct which they may not have been charged with. So, for example, the defence could hire a private investigator to follow a witness and if they gather evidence of discreditable conduct that the witness has been involved in, they could cross-exam that witness on that conduct for the purpose of discrediting the witness in court.  

An accused can make an application to have third-party records of witnesses such as counselling records disclosed  

The process the court undergoes when deciding whether to admit the records involves “the balancing of the rights of the accused under s7 and s11 of the Charter with the privacy rights of the complainant.”  Unlike documents which the prosecution has in their possession, the burden is on the accused to prove that third-party records should be disclosed because the information is not part of the prosecution’s case, and third-parties have no obligation to assist the defence.  However, under s278.5 if the trial judge is satisfied that the defence’s application is made in accordance with s278.3, and that they have established that the record is likely relevant to an issue at trial or to the competence of the witness to testify, and production of the record is necessary in the interests of justice, then he may order the third-party to produce the records. The trial judge will then review the records and may order their disclosure to the accused under s278.7.  

Legal representation for witnesses if an application is made to see their personal records

The Legal Services Society (LSS) provides free legal representation for victims of, or witnesses to, a crime “if an application is made to see their personal records, such as counselling records. The Attorney General authorizes LSS to provide a lawyer to represent a victim/witness at a hearing where a judge decides if the defence can access these records. The victim/witness does not have to be financially eligible to qualify for this kind of representation.” Therefore, it is recommended that any witness who does not have their own legal representation applies to the LSS for representation if they are made aware of an application made by the accused for their personal records.