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If a person is charged with a crime and does not plead guilty, there will be a trial to determine if the person is guilty of the crime.
In criminal matters, a trial is necessary if the accused pleads not guilty. Since the accused did not admit their guilt, it is up to the judge or jury to determine. The Crown Prosecutor argues the case against the accused. The accused, or their lawyer if they have one, argue in the accused’s defence.
The Crown presents their case first. They will present evidence which is usually through the testimony of witnesses. The accused can then decide whether they want to present their own evidence. The burden is always on the Crown to prove that the accused is guilty beyond a reasonable doubt. Both sides start with an opening statement outlining their case and finish with closing statements summarizing the evidence they have presented.
As a victim, you may be required to testify in court about what happened. Your testimony may be a very important part of the Crown's case against the accused. Other people you know may also be asked to testify.
You may be unsure about understanding and answering questions properly. You may be worried about not remembering important dates, times or other details. These concerns are normal. You can ask to meet with the Crown prosecutor to discuss what you have to say as a witness. The defence lawyer may also ask to talk to you before you testify. You can meet with the defence lawyer if you want to, but you do not have to.
A subpoena is an order of the court requiring a person to appear in court and give evidence. A subpoena must be served on you personally. It cannot be sent in the mail. You should read the subpoena carefully.
You must appear in court to testify at the time and date stated in the subpoena. If you do not appear as required, the court may issue a warrant for your arrest. If you refuse to testify, you could be held in contempt of court and face a fine, jail or both. If you must travel to be a witness, the Crown prosecutor's office may cover some of your expenses. It is important to call the number on the subpoena before you travel for more information about expenses.
When you get to court, you will have to wait outside of the courtroom until it is your turn to testify. In larger communities, there are safe, private waiting rooms for children and other vulnerable witnesses. One of the court staff will call you when it is time for you to testify.
Before testifying:
A witness whose mental capacity is challenged may give evidence if they understand the nature of an oath or solemn affirmation and can communicate the evidence. If they do not understand the nature of the oath or the solemn affirmation, but can communicate the evidence, they may testify once they have promised to tell the truth.
It is an offence for a person to harass a witness or try to influence a witness's testimony. If this happens to you, tell the police or Crown prosecutor right away.
Once you have taken an oath or affirmed to tell the truth, the Crown prosecutor will ask you questions to help you tell the court what happened. The defence lawyer can then also ask you questions. This is called cross-examination and can be used to challenge your testimony.
Victims have the right to request testimonial aids when appearing as a witness in proceedings relating to the offence.
It is often difficult to testify about what happened. You may have fears and concerns about testifying in court. You may be worried about giving personal information. Some witnesses may have special needs that make it hard for them to understand or hear what is going on in court or that make it hard for others to understand them. For some witnesses, speaking in open court about what happened may be very hard. There is support and help available.
There are Victim and Witness Programs located throughout the province that provide support to children and other vulnerable witnesses. These programs work with witnesses, courts and Crown prosecutors to make sure that the needs of a witness are known. They also provide information about the process and court tours. They can arrange to provide support and assistance to a witness when they are attending court.
If you have trouble communicating for any reason, the court can arrange to help you testify. This help could include translation services or special equipment if you have difficulty speaking or hearing. If this is the case, you should tell the prosecutor or a Victim Services worker as soon as possible.
There are certain protections for witnesses who are under 18 or who have a disability that would make it difficult to communicate.
The court can allow a video recording of these witnesses describing the crime to be used as evidence in court. This may make it easier for the witness to testify since they will not have to repeat their description of the crime on the stand. The witness must adopt the videotaped evidence in court. This means they promise that what they said in the videotape is true. The witness is also still subject to cross-examination by the defence. The judge can decide not to allow a recording to be used if it would interfere with the proper administration of justice.
If requested, the court must also allow these witnesses to:
A support person or testimony by closed-circuit television or behind a screen may also be allowed for other witnesses. In this case, the judge must believe it is necessary to do so for the witness to be able to speak freely about the crime. In deciding this, the judge considers things like:
If you want a support person or want to testify by closed-circuit television or behind a screen, you or the Crown prosecutor must make this request to the judge. You should talk to the Crown prosecutor about this as early as possible before the court date. It is important to know that closed-circuit television equipment is not available in all communities, so this may not be possible in every case.
The accused person sometimes does not have a lawyer. This means the accused could cross-examine the witness directly. In some cases, the judge can appoint a lawyer to cross-examine the witness on behalf of the accused. The Crown prosecutor or witness must request this.
Unless the judge believes it is necessary for the accused to personally do the cross-examination, the judge must appoint a lawyer to cross-examine a witness when:
For other witnesses, the judge may also appoint a lawyer to cross-examine the witness. In this case, the judge must believe it is necessary to do so for the witness to be able to speak freely about the crime. In deciding this, the judge considers things like:
If the charges are proven beyond a reasonable doubt at trial, the judge or jury finds the accused person guilty. If the charges are not proven, the accused is found not guilty. Another way of saying this is that the person accused of the crime is acquitted. After a person has been tried and acquitted, they may not be tried for that crime again, unless the Crown prosecutor successfully appeals the case. If you are not in the courtroom for the verdict, you can ask the Crown prosecutor or Victim Services about the outcome of the trial.
As a victim, you may not be satisfied with the way the trial turned out. For example, an accused may be acquitted even though you thought there was enough evidence for a conviction. If an accused is acquitted, it does not necessarily mean that you were not believed.
Our laws presume that someone is innocent unless their guilt is proved in court beyond a reasonable doubt. This means it is not enough that the judge thinks the accused probably committed the crime. The judge must be convinced that a guilty verdict is the only reasonable conclusion that could be reached from all the evidence, including your testimony. If you are unsatisfied with how a trial turned out, it may help to talk about your reactions with someone you trust.
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