Being a Witness

What is your role as a witness?

A witness helps our legal system by giving important information (called evidence) to a court. A witness “testifies” or tells the court what they know. 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 because it may require you to bring documents with you to court. It may be against the law to disobey this document.

What if you can’t go to court when the trial takes place?

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.

What if you think you should not be a witness?

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, that they can refuse to answer by “pleading the fifth amendment”. That’s wrong. Witnesses have to testify, or 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. But there are limits on how their information, called evidence, can be used. Generally, it cannot be used against them 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.

Who are the people involved in court cases?

A civil case usually involves the private interests – such as property or money claims – of a person or company. The side making the claim, or suing, is the “plaintiff.” The side responding to the claim, or defending, is the "defendant.” The notice you receive to be a witness in a civil case will show the names of both sides: the plaintiff and the defendant.

In a criminal case, the notice will list Regina and the name of the accused person. Regina means Queen in Latin and because the Queen is Canada's head of state, her name represents the community in a criminal trial. Crown Counsel, also called the prosecutor, 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.

How do you prepare for court?

It’s not hard to be a witness, but you have to prepare as follows:

• Think about the event or events you saw. What happened first? What happened next? Try to remember details like dates, times, descriptions, actions, and exact words.
• Keep any notes and documents you have about the case.
• Bring your notes and documents 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.
• Go to the courthouse to watch what happens in court before your court date. Most trials are open to the public.

What do you do on the day of the trial?

• Check the list of trials in the lobby of the courthouse to find your courtroom.
• Wait outside the courtroom until you are called to go in. Do not discuss your evidence with other witnesses.
• If you are a witness in a criminal trial, go to the Crown Counsel Office and tell them you are there. The subpoena will usually tell you to go to the Crown Counsel Office 30 minutes before the trial starts.
• 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 have a book or magazine to read.
• Dress appropriately and treat everyone in the courtroom respectfully.

What happens in the courtroom?

• Someone will call you when it is your turn to testify or give evidence. You then go to the witness box at the front of the courtroom.
• Usually, the court clerk will read out the oath and ask you to swear (promise) to tell the truth on a Bible. You don't have to swear on the Bible. There are other oaths for other religions. If you are not religious, tell the court that you want to affirm, which means you'll promise to tell the truth.
• Next, you will be asked to say your name and spell it. 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.
• The lawyer who called you as a witness will 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 by giving evidence or testifying – see the next section for more detail.
• You can call the judge "Sir" or "Madam.” "My Lord" or “My Lady” are the formal titles in Supreme Court. “Your Honour” is the title in Provincial Court.

What about when you actually give evidence, or testify?

• 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 or court staff before the trial. They will arrange for an interpreter.
• Think about each question before you answer.
• When you answer, speak to the judge, not to the person who asked the question.
• If you do not understand a question, ask the person to repeat or explain it.
• 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.”
• Explain what you saw or did or said yourself. Do not repeat the words someone else told you unless you are asked to tell what you heard.
• 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.
• 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.

For help

• Justice Education Society – Call 604.660.9870 in Vancouver or look in the white pages of the phone book for addresses and phone numbers of offices close to you. Or visit www.justiceeducation.ca.
• Court Services – Look in the blue pages under Government of British Columbia, Court Services, for the address and phone numbers of your local courthouse.

[updated November 2014]

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In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

A person with direct, personal knowledge of facts and events relevant to the issues before the court; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath" and "opinion evidence."

Facts, or proof tending to support the existence of facts, presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay" and "testimony."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

A legal document, issued by the court or by a party pursuant to the rules of court, which compels a person to attend court to give evidence as a witness, and, sometimes, to produce a specific document. Failure to obey a subpoena may constitute contempt of court. See "contempt of court," "evidence" and "witness."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

A central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed.

Oral evidence given by a witness in court or in an affidavit under the witness's oath or affirmation as to the truth of the statement. See "affirm," "evidence," "oath" and "witness."

In law, something that is relevant or important. A material fact, for example, is a fact relevant to a claim or a defence to a claim. See "claim," "evidence" and "fact."

In law, response to an allegation of fact or to a claim. Usually refers to documents that reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply."

A legal document setting out either a claim or a defence to a claim prepared at or following the start of a court proceeding. In the Provincial Court, the pleadings are the Application to Obtain an Order and Reply. In the Supreme Court, the pleadings include the Notice of Family Claim, Response to Family Claim, Counterclaim, Petition, and Response to Petition. See "action," "claim" and "Counterclaim."

Doing something or failing to do something that impairs the administration of justice or respect for the court’s authority, such as bribing a witness, disobeying a court order, or misleading the court. Contempt of court can be a civil offence as well as a criminal offence.

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."

Something which can be owned. See "chattels" and "real property."

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

In law, (1) the federal and provincial governments and their departments and agencies, or (2) lawyers employed by the federal and provincial governments to prosecute criminal offences.

In law, a guarantee of the truth of a statement secured by one's faith in a god, and the prospect of torment in the afterlife in the event the promise is falsely made. People making affidavits and giving oral evidence in court will often give their evidence under oath. See "affidavit," "affirm," "perjury" and "witness."

To promise that a statement is true. When someone "swears" to tell the truth, they are taking an oath on their faith in a god and their fear of retribution in the afterlife. Affirming is a substitute for taking an oath, and is most often employed where the person making the statement is an atheist or under a religious proscription from making oaths. See "affidavit," "oath," "perjury," and "witness."

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

In law, a document demonstrating ownership of a thing. See "ownership."

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."