Will I have to go to court?
If the case proceeds to a preliminary inquiry (a hearing to determine whether the Crown Attorney has enough evidence to send the matter to trial) or if it goes to trial, you will likely be required to attend court to testify. Before that happens, however, the Crown Attorney will meet with you to prepare you for court. A VWAP worker will also meet with you to prepare you for what to expect in court and to offer support during your court preparation meeting with the Crown Attorney and during your testimony. For all other court dates you are generally not required to attend but you can if you want to. If the accused pleads guilty, you are generally not required to go to court for this unless you choose to do so. If the accused is found guilty of the offence, you can decide whether or not you wish to attend the sentencing hearing.
What if I am anxious about testifying?
It is very common to feel anxious or apprehensive about testifying in court. It is very important to stay connected with the VWAP worker who is assisting with your case. Often, anxieties about testifying can be lessened once you have all of the information about what to expect in court and after you are prepared for your testimony by the Crown Attorney and VWAP worker. You will also have the opportunity to review the statement you gave to police before you testify. Expressing your feelings about testifying to the Crown Attorney and VWAP worker will help them to better assist you.
Can my recorded police interview be used in court instead of my testifying?
While your police recorded statement may be referred to in court, you will most likely still be required to testify.
Is there anything to make testifying easier?
Testimonial aids may be available to you during your testimony. These include:
· the use of a screen so that you do not see the accused as you testify (but they will see you);
· testifying in a separate room from the accused using closed circuit television;
· testifying with a support person seated close to you; and/or
· if you were under 18 years of age at the time of the offence, playing your police video statement in court (but you will still have to testify).
It is important to know that there must be an application to the judge to request a testimonial aid and there is no guarantee that it will be allowed by the judge. The VWAP worker and Crown Attorney can explain what testimonial aids may be available and how they work in court. Your VWAP worker may be able to show you how a screen or closed circuit television works during a courtroom tour. Your input on whether you wish to testify using a testimonial aid will be carefully considered by the Crown Attorney. It will ultimately be up to the judge to decide whether to allow it.
What if my employer will not give me time off to attend court?
If your employer will not give you time off, tell the officer in charge, your VWAP worker, or the Crown Attorney.
What if I do not live in the city where the trial is taking place?
If you have to travel more than 40 kilometres out of your area to be a witness, you are entitled to travel and accommodation expenses. Contact your VWAP worker or the Crown Attorney’s Office to make these arrangements, or speak to the police officer in charge of the case.
What if I have a disability or require specialized supports?
If you have a disability that will make it difficult for you to give your testimony without accommodations, or if you require specialized supports e.g., real-time captioning, phonic ears, reimbursement for a support person, etc., you can speak to your VWAP worker, the Courthouse Accessibility Coordinator or the Crown Attorney. They will try to ensure that your needs are accommodated.
What if I need childcare in order to be able to testify in court?
Speak to your VWAP worker about assistance that might be available to help cover these costs.
What if I am not comfortable testifying in English?
If you are more comfortable communicating in a language other than English, it is important to let the VWAP worker know this early on so that arrangements can be made for you to testify using an interpreter.
Who will be in the courtroom while I testify?
The accused, the accused person’s lawyer (if they have one), the judge, the Crown Attorney, and court staff, such as the clerk, the reporter and possibly a court officer, will be in the courtroom when you testify. The investigating officer may also be present during your evidence.
Please note: That except in very limited circumstances, the court room is open to the public. However, even though the court room is open to the public, practically speaking it is often only persons connected to the case, such as family members, friends or support persons for the accused or victim, who attend court during the trial. While there may be situations when the Crown Attorney can apply to close the courtroom (such as a witness not being capable of giving their evidence in public), these applications are granted in rare circumstances, as an open court room is one of the central principles of the Canadian court system.
Other witnesses in the trial who have not yet testified are typically excluded from the court room until after they testify so their testimony is not potentially affected by hearing the evidence given by other witnesses.
Who will ask me questions?
The Crown Attorney will ask you questions first, which is called “examination-in-chief." The defence lawyer then has an opportunity to ask you questions in “cross-examination." The Crown Attorney then has a limited opportunity to ask you some more questions to clarify evidence that came out in cross-examination. If the judge has a question, he/she can ask you at any time, during either examination-in-chief or cross-examination.
Remember, it is the defence’s job to represent the accused person’s interest within the law, that is, to point out every possible reason why the judge or jury should find the accused not guilty. This means the defence lawyer may point out inconsistencies between your testimony in court and things you have said in your police recorded statement. Or the defence lawyer may suggest that you have a reason to lie to the court about what happened, or that you have a poor memory. This questioning can be difficult, especially if you already feel vulnerable about what you went through and/or are anxious about testifying. Remember, the fact that a lawyer suggests something to you does not mean that his/her suggestion is correct. If you disagree with a suggestion put to you by the defence lawyer, you can say that you disagree. To prepare, you can also talk to your VWAP worker and the Crown attorney.
If the accused does not have a lawyer, does the accused get to ask me questions?
If the accused does not have a lawyer, the judge will most likely appoint a lawyer to question you on behalf of the accused. In very limited circumstances, the judge may allow an accused to question a survivor of sexual assault directly but those situations are very rare.
Will I be asked personal questions about my sexual history?
The defence lawyer cannot ask you questions about your sexual history without first getting permission from the judge. This process involves the lawyer for the accused applying to court and obtaining an order from the judge. Generally speaking, a person’s sexual history does not help the judge decide whether the sexual assault occurred. The lawyer for the accused would have to show the judge that the evidence of your sexual history was somehow relevant to the trial before being allowed by the court to ask those questions. Evidence about your sexual history is never allowed to be used to suggest that you are less believable or that it is more likely that you agreed to the sexual activity.
If defence counsel applies to the court for an order to ask you questions about your sexual history, the hearing will be held in private without members of the public present. For the court to admit your sexual history, it must cover specific events, be relevant to an issue at the trial, or have significant value. When deciding whether to admit your sexual history, the judge must consider the rights of the accused to defend him or herself, the potential prejudice that this information might raise, as well as your right to personal dignity and privacy. If the judge decides that the defence lawyer is allowed to ask you these questions, the Crown Attorney will speak to you in advance to prepare you.
Will my diary, counselling or medical records be used in court?
You should be aware that if you tell someone involved in the justice system, such as the Crown Attorney, that you have a diary that contains information about the offence or tell them about medical or counselling information related to the offence, that information will likely have to be disclosed to the defence and could ultimately be used in court (if the defence brought an application before the judge to see these records).
However, under the law, there are safeguards in place to protect your private records. Defence counsel cannot get access to your personal records, such as your diary, counselling or medical records, without first applying to the judge. If an application is made, you are allowed to have a lawyer, at no cost to you, to get advice about whether or not you should consent to providing your records. If you do not consent to having your records given to the accused, the defence would have to demonstrate to the judge that they are sufficiently relevant to overcome your privacy interests and a court order would have to be made. Your lawyer will have an opportunity to tell the judge why your records should be kept private.
There may be instances where, as part of the police investigation, the police will ask for your consent to obtain certain records related to the crime, such as medical records. If you provide your consent, these records may be used in court. You have the right to ask the police questions to ensure you understand which records the police are seeking, and you may wish to review the records or obtain independent legal advice before deciding whether or not to provide your consent.
Can my emails, texts, Facebook and other social media pages be used in court?
If there are any text messages, emails, or social media posts that are relevant to the incident, they may be used in court as evidence. For instance, if you sent a text message to someone shortly before or after the incident, or the accused sent you an email later and mentioned the incident, those could be considered relevant and used as evidence in court. In some cases, a text message, email or social media post that does not seem to relate directly to the incident could still be used in court. For instance, if a witness (which includes you) said one thing in the courtroom but said something different in a social media post, that post could be used to contradict the witness. It is important to remember that once an email or text message has been sent, or a social media comment posted, it is very difficult to control who sees it or what happens to it. If a message was sent to the accused person, or a posting is publicly available, the defence lawyer does not need the court’s permission in order to get access to this or use it in court.
If I have to testify, does the accused have to testify?
There is no requirement that an accused person testify at his/her trial. In the Canadian legal system, an accused is presumed innocent until his/her guilt is proven beyond a reasonable doubt. It is the Crown attorney’s job to present the evidence to prove, beyond a reasonable doubt, that the accused committed the crime. It is not up to the defence to prove that the accused did not commit the crime. Therefore, the accused does not need to testify and the defence does not have to present evidence, but may choose to do so.
Will I receive support during this time?
When you come to court, you may bring a family member, friend or other support person (such as counsellor or a worker from a Sexual Assault Centre). Those persons, unless they are a witness in the case, can typically sit in the courtroom during your testimony if you want them to. If you need a support person to sit by you while you are testifying (and the support person is not a witness), the Crown Attorney can ask the judge for a court order to allow that to happen. If the court agrees, then an order can be made for your support person to sit close by you while you testify. Your VWAP worker is also available to provide you with support both before and on the day of trial. Your VWAP worker will notify you of the trial date, help to coordinate meetings with you, the police, and the Crown Attorney for court preparation, explain the court proceedings, and discuss any possible media presence. Court accompaniment for sexual assault survivors is a priority for VWAP and can be provided by your VWAP worker at your request.