The responsibility of a witness is to inform the court what they know about the accused person – the offence, or the situation of the felony. A testimony is thus defined as a statement of a witness. So, it is considered a piece of important evidence for court and law in the legal system.
This article will focus on what happens if a witness refuses to testify in Canada, whether it is a crime if a witness refuses to testify, and any defence if the witness does not wish to testify.
What comes up when a witness refuses to testify in Canada?
There are two different results of different felonies when a witness does not wish to testify for a crime.
If a witness refuses to testify a criminal prosecution, they may be held in contempt of court. In this case, you may face jail time or be fined.
If a witness refuses to testify about domestic violence or sexual assault, they cannot be imprisoned for declining to testify rather could be penalized.
Failure to attend the court after undergoing a subpoena and declining to testify in court are the two most typical reasons for a witness being convicted in contempt.
The court utilizes its contempt power to secure that the orders are being followed. Or people will not take testimony severely if these were not the case.
Also, refusing to testify is deemed a straight contempt or disrespect because it happens in front of the judge inside the court. Hence, the judge has the full authority to punish the witness if they refuse to testify.
The witness will thus face five days of imprisonment or a $1000 fine for direct disrespect to the judge.
The witness might also be imprisoned until the court case or trial is finished. But this will not apply to those witnesses who refused to testify about domestic violence or sexual assault.
If a witness refuses to testify, they can face criminal prosecution, and if they are proven guilty, they might face up to 90 days in prison and a $100 fine.
So, the refuser must show the defence to the court when they refuse to testify. The fortifications include the right against self-implication, marital privilege, and non-material issues. The privilege section includes news reporters too.
Is refusing to testify by a victim or witness a crime?
Sometimes, refusing to testify is considered a crime—especially a witness who fails to appear in court after being served with a subpoena may be arrested. And if a witness refuses to testify after arriving in court may be fined, imprisoned, or punished with a violation of a court order.
The contempt to the court may be regarded as either civil or criminal, depending on the court’s goal. If the court’s goal is to pressure, then it is civil, and if the goal is to punish, the contempt is criminal.
Civil contempt is defined as a reluctance to testify. On the other hand, it is considered a quasi-criminal offence, which means a person has the right to follow a particular constitutional process.
Refusing to testify can also be considered criminal contempt to unlawful refuse, which is vowed as a witness or decline to answer questions.
The written contempt order must include the following information:
- The basic circumstances for refusing to testify
- The court’s findings on the refusal to testify claim
- If the lawyer there presented the witness
Criminal contempt is punished by 90 days imprisonment and a $100 fine for conviction.
What is a Subpoena?
A subpoena is a legal document that requires a witness to represent themselves in court. A magistrate or judge, a district attorney, district attorney investigator, or an attorney representing the defendant can sign and issue a subpoena in criminal prosecution.
A copy of the subpoena must be served in person to the witness. Because, if the witness refuses to appear in court after being served personally, s/he will be arrested.
A subpoena can be delivered via mail or messenger if the witness accepts the receipt of the subpoena in that situation. It indicates that the witness has signed the summons.
Please keep in mind that a subpoena might be issued to compel the making of specific books, papers, or records.
When you appear at the court after receiving the subpoena, you should testify in court and answer questions from both the Crown prosecutor and defence attorney.
If you do not testify, the judge may find you disrespecting the court, and you could face a sentence of up to 90 days imprisonment and a fine of up to $100.
Charter of Rights provides some protection in this regard to the witness. So if you have experienced and are charged with such crimes, please hire a criminal lawyer for your support.
Testifying in court
Before testifying, witnesses are bound to take an oath which means they must pledge to speak the truth. But lying under oath is a serious crime called “Perjury” under Canada’s “Criminal Code.” A maximum sentence of 14 years in jail could be imposed on you.
Is it illegal to attempt to persuade a witness not to testify?
Attempting to hinder a witness from testifying is a crime. It makes no difference whether it is your case or not.
To intentionally impede or dissuade a witness from reporting crime, assisting in the arrest and prosecution process, and attending any judicial progress.
What can testify to you?
The lawyer who persuaded the witness to appear in court questions them first, followed by the other lawyer. You can only testify to the things you observed, the truthfulness of the fact, or sounds you have heard as a witness.
In most cases, you cannot attest to what you have heard from others about the circumstances.
Being called as a witness in your case
It is feasible to testify in your case or trial being a witness. But you shall not be pressured to testify yourself. Mostly, people do not want to testify at their trial if they have been charged with a crime.
Because you will be asked questions from both the prosecutors, it is sometimes difficult to answer properly to the Crown prosecutors. And you are obliged to answer all the questions the prosecutor requires. That means both sides’ lawyers will cross-examine you.
So, testifying yourself can be difficult because it can sometimes jeopardize your trial. So, get suggestions from your lawyer on whether you should testify yourself or not when you are charged with a crime.
Will the District Attorney dismiss a case if a witness refuses to testify?
It is debatable if the District Attorney will dismiss the case if a witness refuses to testify or not. Sometimes the attorney has only the evidence from the victim.
If new evidence has emerged, then the case can proceed. For instance, the patient can go forward if the defendant admits the guilt or other witnesses.
If a witness refuses to testify, are there any defences?
There are legal reasons if you want to refuse to testify. But logical reasons should be provided to the court when you want to decline.
Again, the defences include the right against self-implication, marital privilege, and non-material issues. The privilege section includes news reporters also.
Final words
Refusing to testify can sometimes be a problem for you as the court can order you a subpoena and force you to testify, which can be punished if you refuse. So, you should discuss all the issues with a professional law firm and act by their suggestions. Professional help from law firms can make your problems much easier and smoother.
FAQ
What happens if a witness refuses to testify a criminal prosecution?
If the witness refuses to testify, a criminal prosecution can face jail time or be fined.
What is a subpoena?
A subpoena is a legal document that requires a witness to represent themselves in court. A magistrate or judge, a district attorney, district attorney investigator, or an attorney representing the defendant can sign and issue a subpoena in criminal prosecution.
What happens if a witness refuses to testify about domestic violence?
If a witness refuses to testify about domestic violence or sexual assault, they cannot be imprisoned for declining to testify rather could be penalized.
Is refusing to testify by a witness a crime?
Sometimes, refusing to testify is considered a crime—especially a witness who fails to appear in court after being served with a subpoena may be arrested.
Is there any defence if the witness refuses to testify?
Logical reasons should be provided to the court when you want to decline. And it would be best if you discussed with a criminal law firm how you can defend yourself when you refuse to testify.
