"Testifying" means giving evidence from the witness stand, under oath or solemn affirmation, in response to questions from a lawyer. It is one of the most visible parts of a criminal trial, and also one of the most misunderstood, particularly when it comes to whether an accused person has to do it. This guide explains the accused's right not to testify, and separately, the general process that applies to any witness, accused or otherwise, who does take the stand. It is general information only, not legal advice or trial strategy for a specific case.
The Right Not to Testify
Section 11(c) of the Canadian Charter of Rights and Freedoms guarantees a person charged with an offence the right "not to be compelled to be a witness in proceedings against that person in respect of the offence." In plain terms, this means the Crown cannot force an accused person to take the stand and answer questions at their own trial. This right exists alongside, and reinforces, the presumption of innocence and the Crown's burden discussed in our burden of proof guide: since the Crown must prove guilt without relying on the accused's own compelled testimony, an accused is never legally required to help build the case against themselves.
Not a Compellable Witness
Lawyers sometimes describe the accused as "not a compellable witness." This means no one, not the Crown, and not even the defence, can force the accused onto the stand. Whether to testify is entirely the accused's own decision, made with legal advice, and it can be made at any point up until the defence closes its case.
No Automatic Inference From Silence
An accused who chooses not to testify does not thereby confirm guilt or weaken the presumption of innocence. The trier of fact, whether judge or jury, is generally instructed not to treat the decision not to testify as evidence of guilt. The Crown's case must still be proven on its own evidence, to the standard of proof beyond a reasonable doubt, regardless of whether the accused testifies.
Whether to testify is one of the most significant decisions in a criminal trial. It depends heavily on the specific evidence, the charge, and the strength of the Crown's case, and is a decision to make with a lawyer, not something with a single right answer for every case.
Witnesses Other Than the Accused
The right not to testify belongs specifically to the accused. Other witnesses, including complainants and civilian or police witnesses called by either side, are generally compellable and can be required to attend court and testify, subject to specific rules and, in some cases, protections addressed elsewhere, including in our victims and witnesses section and our witnesses and evidence guide. Once a witness agrees, or is required, to testify, the general process described below applies to them the same way it would apply to an accused person who chooses to take the stand.
The Oath or Solemn Affirmation
Before giving evidence, every witness is generally required to swear an oath or make a solemn affirmation promising to tell the truth. The oath and the affirmation carry equal legal weight; a witness may choose an affirmation instead of a religious oath for personal reasons, and this choice does not affect how their evidence is treated. This step formally marks the witness's evidence as testimony given under a legal obligation to be truthful, distinct from anything said informally outside the courtroom.
Examination-in-Chief
Once sworn, a witness is first questioned by the lawyer who called them, in what is called examination-in-chief. This questioning is generally structured around open, non-leading questions, allowing the witness to describe what they observed or experienced in their own words, rather than being guided toward a particular answer. Examination-in-chief is followed by cross-examination from the other side, where the rules about how questions may be asked are notably different.
The Consequence of Lying Under Oath
Testifying under oath or affirmation is a serious legal obligation, not a formality. A witness who knowingly makes a false statement under oath or affirmation, intending it to be accepted as true, can face a separate criminal charge for perjury, which on this site is described as a straight indictable offence carrying a significant potential penalty. This consequence applies to any witness, not only an accused person who chooses to testify, and underscores why the oath is treated as a meaningful legal commitment rather than a ritual.
Preparing to Testify
A witness who is going to testify, including an accused person, will generally meet with their lawyer beforehand to understand the general process: how they will be sworn in, the difference between examination-in-chief and cross-examination, and practical matters such as answering only the question asked and saying so honestly if they do not know or do not remember something. This preparation is about understanding the process, not about scripting answers, since a witness's evidence must reflect their own honest recollection.
Nervousness on the stand is common and is not, by itself, treated as a sign that a witness is being untruthful. Judges and experienced counsel generally understand that testifying in a courtroom, often for the first time, is a stressful experience, and that a witness's manner on the stand is only one factor among many in assessing their evidence. What matters most is that the answers given are honest and responsive to the questions asked, not that the witness appears entirely composed throughout.
It is also worth understanding that testimony is not the only form of evidence a trial relies on. Documents, physical exhibits, and recordings can all be entered as evidence, generally introduced through a witness who can speak to their origin or authenticity. A witness testifying about such material is often asked to identify it, describe how they came to have it, and confirm that it accurately reflects what it purports to show, before it becomes part of the evidentiary record the judge or jury can rely on.
Frequently Asked Questions
Can I be forced to testify at my own trial?
No. Section 11(c) of the Charter protects an accused from being compelled to testify against themselves at their own trial.
Does not testifying make me look guilty?
Legally, no adverse inference of guilt is supposed to be drawn from an accused's decision not to testify. The Crown must still prove its case on the evidence presented.
Can a complainant or other witness refuse to testify?
Unlike the accused, other witnesses are generally compellable, meaning they can generally be required to attend and give evidence, subject to specific legal rules and protections.
What is the difference between an oath and an affirmation?
Both carry the same legal weight and the same obligation to tell the truth. A witness may choose an affirmation instead of a religious oath.
What happens if a witness lies under oath?
A witness who knowingly lies under oath can face a separate perjury charge, in addition to whatever consequences arise in the case where the false testimony was given.
Who decides whether an accused should testify?
The decision belongs to the accused alone, though it is generally made after careful discussion with a lawyer about the evidence and strategy specific to the case.