You may be called as a witness to “testify” or give evidence at a criminal, civil or family trial. At criminal trials, witnesses testify either for the prosecution or for the defence. At civil and family trials, witnesses testify for either the “Plaintiff” or the “Defendant.” Civil trials involve disputes between persons and financial loss. It may be a contract dispute or personal injury. The plaintiff is the party who brings the action and the defendant is the party who is defending the allegations made.
Witnesses may voluntarily agree to attend trial. Other witnesses will receive a legal notice such as a subpoena or Notice to attend trial. If you receive a legal notice to attend trial as a witness, you must attend, or the Judge can issue a warrant for your arrest. In extreme cases, the Judge can order that the witness be detained in custody to ensure attendance in Court. The warrant or Order of detention can be ordered only if the witness received a Subpoena or Notice to Attend. If you are served a subpoena by the police or other peace officer, you must attend as a witness at a criminal trial. If you are served with a Notice to Attend by hand (someone delivers you with Notice personally, not by mail), then you are personally served and must attend as a witness at a civil trial. In some civil actions, such as in Small Claims Court, you may be served by registered mail. You may contact the party who issued you a legal notice to attend as a witness for their trial if you have any questions.
The legal notice will contain the name of the case, which courtroom you are to appear in, , the time of trial, and any other documents you may be required to bring. If you cannot attend on the date specified on the legal notice, immediately contact the party who issued the notice. For criminal matters, contact the Crown; for civil and family matters, contact the lawyer or person who contacted you, otherwise the civil division at the courthouse where you are to appear. If you have a good reason, such as scheduled surgery, the trial date may be changed to accommodate you, or you may be excused from attending if your testimony is not essential. The fact that you have to work is not a good excuse. Once a Subpoena or Notice to Attend has been issued, your employer is required to give you time off to go to Court. The employer is not required to pay you for time lost from work. If your employer does not allow you time off to go to Court, the employer could face a serious criminal charge.
If you are served a Notice to attend in a civil or family trial, you will receive a small payment for your attendance unless you are an expert witness. You may approach the party who issued you the notice to appear as their witness to request greater compensation than the legal minimum. If you are subpoenaed in a criminal trial, there is no fee paid for your appearance. If you are a witness for the defence, request from the lawyer for any expenses. If you are a Crown witness, you are entitled to reasonable travel and accommodation expenses if the trial is in a place other than where you live. Other expenses may be considered by applying to the clerk. For any other questions regarding payment of expenses, discuss them with the court administration office. Witnesses who are victims of crime may seek restitution or take civil action for recovery of costs or losses from the offender.
On the day of the trial, ensure you bring the legal notice with you; the subpoena is required for court records. Ensure you arrive in Court at least 15 minutes early. Check in with the Court Clerk and let the lawyer who is representing the party you are a witness for know that you have arrived. The lawyer may wish to briefly review your testimony before Court begins. You have no obligation to speak to the lawyer acting for the opposite side at this time.
During the trial all witnesses are excluded from the Courtroom while another witness is giving evidence. This is so that you cannot hear each other’s testimony. The Court Clerk will either direct you to the Witness Room or ask you to wait outside the Court room. Prepare to stay for the period required or until the judge excuses you.
When it is your turn to testify, the Court Clerk will call you and ask you to take the witness box. You will be asked to state and spell your full name. You will be asked whether you wish to swear an oath on a Bible that you will tell the truth or whether you wish to affirm that you will tell the truth. You may take the oath appropriate to your own religion. You may also indicate your preference to the court clerk when you present your legal notice. Take your oath or affirmation seriously. If you lie on the witness stand, you could be charged with perjury, a serious crime which carries a maximum of 14 years in prison. Innocent mistakes or honest errors are not perjury. If you make a mistake while giving evidence or you are unsure about an answer, let the judge know. You may also ask the judge whenever you have any questions or concerns. Do not mislead the Court by giving an incorrect answer. Remember that the court is interested in your version of what happened.
If you are a Crown witness for a criminal trial, the Crown Prosecutor will ask questions first. The defence lawyer then “cross‑examines.” The opposite order is the case if you are a defence witness. You must answer the questions the lawyers ask you but feel free to disagree with any suggestions made on cross‑examination. After cross-examination the Crown Prosecutor may choose to question further in “re-direct”. In a civil trial, the plaintiff lawyer will present their case first and ask questions, and the defence will cross-examine. Again, the plaintiff lawyer may redirect. Then the defence will present their case and will ask questions and redirect after the plaintiff cross-examines.
If you are hesitant to answer a question, tell the judge why and ask if you have to answer. If you are hesitant because you could be found guilty of a crime yourself, you may ask for the protection of the Canada Evidence Act or the Alberta Evidence Act. If the judge grants the protection, you still must answer, but your answer cannot be used against you unless you are seeking protection against perjury. This protection applies only to what you say while on the witness stand. If you make the same comments either before or after your testimony, your statements can be used against you. A person accused of the criminal offence has the right to remain silent but is free to testify if he or she wishes.
While you are on the stand giving your evidence, the Judge may ask you questions. You should address Provincial Court Judges as “Your Honour” and Court of Queen’s Bench Judges as “My Lord” or “My Lady.” You may also address the Judge as “Sir” or “Madame” in either Court. The Judge will tell you to step down from the witness stand when your testimony is complete but remain in the Courtroom unless the Judge “excuses” you. If you wish to leave after testifying but before the trial is complete, advise either a lawyer in the case or the person who contacted you, who will talk to the judge about your need to leave. In the event of an adjournment (postponement) in the middle of your testimony, you will have to return to Court. An adjournment can be a brief mid‑morning recess or a delay of weeks. If you do not understand the reason for a delay in the proceedings, you can ask for an explanation from the lawyers, the person who contacted you or the court clerk. You can find out when you must come next by calling the court administration office.