Do you have to testify at your own criminal trial in Canada, and what can the Crown ask you?

No. Anyone charged with an offence has a Charter right not to be compelled to be a witness against themselves, and neither the judge nor the Crown may comment on the fact that you did not testify. If you choose to testify, the Crown can cross-examine you on the facts of the case, on earlier statements you made, and on whether you have been convicted of an offence.

The choice comes late in a trial, after the Crown has called all its evidence, and it is one of the most important decisions in a criminal defence case in Ontario. The decision belongs to you, made with your lawyer's advice. This page explains the rules that frame it and what cross-examination actually looks like in an Ontario courtroom.

What does the law say, in plain terms?

Four provisions do most of the work. The Charter gives every person charged with an offence the right not to be compelled to be a witness in proceedings against them in respect of that offence (s. 11(c)). The Canada Evidence Act makes every person charged with an offence a competent witness for the defence (s. 4(1)), which means you are allowed to testify if you want to. The same Act says that the failure of the person charged to testify shall not be made the subject of comment by the judge or by counsel for the prosecution (s. 4(6)). And the Charter protects anyone who does testify: incriminating evidence they give cannot be used to incriminate them in any other proceedings, except in a prosecution for perjury or for giving contradictory evidence (s. 13).

Behind all four sits the presumption of innocence (Charter, s. 11(d)). The Supreme Court of Canada has said that the burden of proof rests on the prosecution throughout the trial and never shifts to the accused (R. v. Lifchus, [1997] 3 S.C.R. 320, para. 36). The Ontario Court of Justice's own trial guide puts it directly: if you choose not to testify and call no witnesses, the judge decides the case on the evidence presented during the Crown's case, and you are convicted only if every essential element is proved beyond a reasonable doubt.

When in the trial do you decide, step by step?

The order of a trial in the Ontario Court of Justice is explained step by step in our guide to what happens at a criminal trial. The part that matters for this decision runs like this:

1. The Crown calls all its witnesses. Your lawyer cross-examines each of them. You are entitled to stay in the courtroom and hear every word, even though you may testify later.
2. The Crown closes its case. Only now does the defence have to choose. An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel (Criminal Code, s. 650(3)).
3. You decide, with your lawyer. The options the court's guide lists are to ask for a directed verdict if there is no evidence on an essential element, to call no evidence, or to call evidence, which may be your own testimony, other witnesses, or both.
4. If you testify, you are sworn or affirmed by the clerk, and your lawyer asks you open questions in examination-in-chief. Leading questions are generally not allowed at this stage.
5. The Crown cross-examines you. Leading questions are allowed, and the Crown may test your account against the disclosure, your earlier statements and the other evidence.
6. Your lawyer may re-examine on new matters that came out in cross-examination, and the Crown may be allowed reply evidence on an issue it could not have anticipated.

One practical consequence of this order is that the decision is made with the Crown's whole case in front of you, not before trial. Discussing it in principle at the judicial pre-trial stage is useful for planning trial time, but the final call is usually made at the close of the Crown's case.

What can the Crown ask you in cross-examination?

Cross-examination is broad. The court's guide warns that the Crown can probe weak points in your testimony and ask about topics you would rather not discuss, and that you must answer under oath. In practice it usually covers four areas.

The facts of the charge. Where you were, what you did and said, and why. The Crown will compare your answers with the police notes, video and witness statements in the disclosure you received before trial.

Your earlier statements. A witness may be cross-examined on earlier statements made in writing, reduced to writing or recorded on audio or video, without first being shown them. If the Crown intends to contradict you with a statement, it must first draw your attention to the parts it will use (Canada Evidence Act, s. 10(1)). Text messages, a written statement or an earlier recorded account can all come up this way. Whether a statement you made to police can be used at all is decided separately, at a mini-hearing where the Crown must prove it was made voluntarily; that is a court-stage issue, and it often sits alongside a Charter application to exclude evidence.

Your criminal record. Any witness may be asked whether they have been convicted of an offence, other than an offence designated as a contravention under the Contraventions Act; if the witness denies it or refuses to answer, the other side may prove the conviction, for example with a certificate from the court that convicted them (Canada Evidence Act, s. 12). The court's guide confirms that this applies to an accused who testifies. A discharge is different: an offender who is discharged is deemed not to have been convicted of the offence (Criminal Code, s. 730(3)). Our page on what each criminal case outcome means explains that distinction.

Incriminating questions. Once you are a witness, you cannot refuse to answer on the ground that the answer may incriminate you (Canada Evidence Act, s. 5(1)). The protection is on the other end: Charter s. 13, and s. 5(2) of the Act where a witness objects, keep that answer from being used against you in later proceedings, other than a prosecution for perjury or for giving contradictory evidence.

How do people weigh the decision?

The Ontario Court of Justice lists the trade-offs itself. Testifying lets you give evidence no one else can, explain why you said or did something, show that you could not have committed the offence, and put your own version against the Crown's. The disadvantages are that the Crown can cross-examine you and find the weak points in your evidence, can ask about topics you do not want to discuss, and can ask about any past criminal record.

In practice the decision often turns on three questions. Has the Crown's evidence, after cross-examination, left a gap that your testimony would only fill for the Crown? Is there something only you can tell the judge, such as a reason, an alibi or an explanation of a message? And how will your record, your earlier statements and your demeanour under pressure look when tested? None of these has a general answer; they depend on the evidence actually heard at your trial.

What changes the answer?

• Whether the Crown has made out each element. If there is no evidence on an essential element, a directed verdict may be sought before any defence choice (OCJ trial guide).
• Your record. Convictions can be put to you if you testify (Canada Evidence Act, s. 12); a discharge is deemed not to be a conviction (Criminal Code, s. 730(3)).
• Earlier statements. A recorded or written account you gave before can be used to test what you say now (Canada Evidence Act, s. 10).
• Whether your version was put to the Crown's witnesses. The court's guide says that if it was not, the judge may give your evidence less weight, or the Crown may be allowed to recall the witness.
• Language. A witness who does not understand or speak the language of the proceedings has the right to an interpreter (Charter, s. 14).
• A jury trial in the Superior Court. Where no witnesses are examined for the accused, defence counsel addresses the jury last; otherwise the prosecutor does (Criminal Code, s. 651(3)).

A worked example

For example, imagine Mina, a 41-year-old from Richmond Hill who is charged with theft under $5,000 after a dispute at a store; the Crown proceeds summarily. She has a conviction for a similar offence from many years ago. Her case is heard in the York Region courthouse, which our page on criminal cases in Richmond Hill, Markham and Newmarket describes.

The Crown calls the store's loss prevention officer and a police officer. Through a Persian interpreter, Mina hears every witness. In cross-examination her lawyer puts her account to the loss prevention officer: that she had paid at another till and kept the receipt. At the close of the Crown's case, Mina and her lawyer weigh it up. If she testifies, she can explain the receipt, but the Crown can ask whether she has a prior conviction and test her account against what she told the officer at the scene. If she does not, the judge decides on the Crown's evidence alone, and neither the judge nor the Crown may comment on her silence. The choice is hers. This is a hypothetical, not a real client and not a prediction of any result.

What mistakes do people make?

1. Deciding before the Crown's case is over. The choice is made at the close of the Crown's case for a reason: only then is the evidence against you known.
2. Hiding an old conviction from your own lawyer. It can be put to you if you testify (Canada Evidence Act, s. 12), and your lawyer needs to know before advising you.
3. Forgetting what you said before. Earlier written or recorded statements can be used to contradict you (s. 10). Review them with your lawyer first.
4. Arguing with the Crown. Cross-examination tests your evidence; answer what is asked, clearly, and let your lawyer object where needed.
5. Relying on a relative to interpret. Ask for a court interpreter on the record so your evidence is interpreted accurately (Charter, s. 14).
6. Telling a witness what you heard in court. You may stay for the whole trial, but the court's guide forbids passing on evidence or questions to witnesses.

What to do this week

1. Write down every statement you have made about the incident, to anyone, and tell your lawyer which were written, recorded or sent as messages.
2. Get a copy of your criminal record if you have one, and list any discharges separately.
3. Reread the disclosure and mark every point where it differs from your memory.
4. Ask for an interpreter for yourself and any defence witness who needs one.
5. Talk through both options with your lawyer now, then again at the close of the Crown's case.

If you are more at ease in Persian, our guide for Persian-speaking people charged in the GTA explains each step of a case, from first appearance to trial.

Frequently asked questions

Will the judge hold it against me if I do not testify?

The Canada Evidence Act forbids the judge and the Crown from commenting on your failure to testify (s. 4(6)), and the burden of proof stays on the Crown throughout the trial. The court's guide says that if you call no evidence, the judge decides on the Crown's evidence alone.

Can my spouse be forced to testify against me?

Being married to the accused does not, by itself, make a person incompetent or uncompellable to testify for the prosecution (Canada Evidence Act, s. 4(2)). However, no spouse is compellable to disclose a communication made to them by the other spouse during the marriage (s. 4(3)).

If I testify, can my evidence be used against me in another case?

Incriminating evidence you give as a witness cannot be used to incriminate you in other proceedings, except in a prosecution for perjury or for giving contradictory evidence (Charter, s. 13).

Can I testify in Farsi?

Yes. A party or witness who does not understand or speak the language of the proceedings has the right to an interpreter (Charter, s. 14), and the request should be made early so one is booked for each day you testify.

Can the Crown ask about charges that were withdrawn?

Section 12 of the Canada Evidence Act allows questions about whether a witness has been convicted of an offence. A withdrawn charge is not a conviction, and a discharge is deemed not to be one (Criminal Code, s. 730(3)). Whether any other past event can be raised depends on the rules of evidence in your case, so raise it with your lawyer before you decide.

Do I have to decide before trial?

No. The decision is made after the Crown closes its case. It helps to discuss it before the trial date, and if you plan to testify, your version should be put to the Crown's witnesses during cross-examination, as the court's guide explains.

Is it different if I plead guilty instead?

Yes. A guilty plea gives up the trial, so there is no Crown case to answer and no decision about testifying. What a plea admits and what cannot be undone is explained in what happens at a guilty plea in Ontario.

Getting help

Gambriani Law PC prepares clients for trial in Toronto, York Region and Peel, in English and Farsi, including the decision whether to testify. No lawyer can promise how a trial will end, but careful preparation lets you make that choice with the evidence in front of you. The office is at Suite 1901, 5000 Yonge Street in North York, open Monday to Friday, 9:00 a.m. to 5:00 p.m., at +1 647 970 3370, or you can reach us through the contact page.

This page is general information about Canadian criminal law, not legal advice about your case.