Appearing as a Witness

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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.

This topic discusses your appearance as a witness in Court.

You may be called as a witness to “testify” or give evidence at either a criminal or a civil trial. At criminal trials, witnesses testify either for the prosecution or for the defence. At civil 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, you must attend as a witness at a criminal trial. If you are served with a Notice to Attend by hand (personally someone delivers you with Notice 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.

If you cannot attend on the date specified on the legal notice, immediately contact the party who issued the notice. 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.

In Civil trials, 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.

Witnesses who are victims of the crime may apply to the Victims of Crime Fund for assistance. Compensation is paid for injuries received as a direct result of a violent crime. It is not paid for property damage, medical expenses, funeral costs, loss of wages or pain and suffering. Victims may seek restitution or take civil action for recovery of costs or losses from the offender. For more information contact the Victims of Crime, Financial Benefits Program at 780-427-7217. Call toll-free by dialling 310-0000 and then the number.

On the day of the trial, 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. 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. 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 imprisonment. Innocent mistakes or honest errors are not perjury. If you are unsure about an answer, say you don’t know. Do not mislead the Court by giving an incorrect answer.

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 asked a sensitive question, ask the Judge whether you must answer. You cannot refuse to answer a question on the grounds that the answer may incriminate you or reveal your guilt. Canadian law prevents incriminating answers from being used to prosecute you in all future Court proceedings. But 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. 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.