If you receive a subpoena or summons, don’t panic. Inform your supervisory officer; call OPC Protective Services for advice. You are not the accused; therefore your role is to tell the truth about the matter at hand. If you have no information to offer or can’t recall, then that is the truthful response to give.
What types of proceedings may require me to provide testimony as a witness?
- You may receive (be served with) a subpoena to be a witness in a criminal trial, for example, in youth court or criminal court. You may also be subpoenaed as a witness in a civil trial, such as a case of trespass or liability for an accident. A subpoena can be issued on behalf of the Crown/plaintiff or the defence, regardless of your personal feelings or opinions.
- You may receive a summons issued by a tribunal, such as the Discipline Committee at the Ontario College of Teachers, as a witness for the prosecution or the defence.
- You may be notified by your Board that you have been identified as a witness in an internal investigation, such as a Workplace Harassment or Human Rights investigation.
What should I do if called to testify as a witness in a criminal or civil trial or hearing?
ADVICE:
- You are not obliged to appear as a witness ?in a criminal or civil proceeding unless you receive a subpoena or a summons. A verbal request from a lawyer does not oblige you to give evidence?or participate in any way – nor do we advise that you do so.
- The subpoena or summons will list what documents, if any, you must take with you to court. Before you undertake to collect any of those documents, especially if they contain confidential student information, ask your district school board for legal advice from Board counsel and/or call the OPC’s Protective Services Team.
- Examples of such information would be material from the Ontario Student Record (OSR) or the Register of Attendance. Any document that includes names, addresses or any other personal information for which you do not have a signed “consent to disclose” needs to be discussed with the board’s lawyer. If the documents belong to the board (like your documentation log) or contain confidential student information, the board lawyer may wish to attend and make legal arguments for the exclusion of the documents. Do not furnish any personal information until you have received legal advice. Of course, in any court proceeding, you must comply with any order of the Court.
- You may wish to take advantage of any opportunity to meet with the lawyer for the party who has subpoenaed or summoned you as a witness. You will feel more confident after you have discussed your evidence with him or her and have prepared for the types of questions you may be asked. If you have never been to court or attended a tribunal hearing, the lawyer can answer questions about what to expect.
- Witnesses under summons or subpoena receive modest attendance and travel allowances. Confirm with your board whether you are entitled to be on a leave of absence with pay during the time you are scheduled to testify. In most cases where your leave is paid, you will be required to hand your attendance money over to the board. It is to your advantage to try to secure a leave of absence with pay because your regular wage will well exceed any attendance monies.
- In most trials or hearings, there will be an order excluding witnesses from the court until they have testified. This is to ensure that later witnesses do not tailor their evidence to match what earlier witnesses have said. You will likely have to wait a long time in the halls outside the courtroom. After you have testified, you will likely be permitted to remain in the courtroom, unless the entire trial or hearing is closed to the public. You do not, however, have to remain.
- The process will likely be similar to the following:
- You will be sworn in or asked to affirm an oath as a witness.
- You will be examined “in chief” by the party who issued the ?subpoena or summons. At the outset you will likely be asked to describe your educational background and your work experience. Examination-in-chief may involve open-ended questions, usually starting with “who, what, when, where or why.” This is your opportunity to explain your role in the events in question in your own words.
- You will be cross-examined by the lawyers for the opposing party. Cross-examination may involve “leading” questions. ?In most cases, you will be able to tell what answer the lawyer expects from the way the question is worded. This doesn’t mean that you have to give them the answer they are seeking. Be accurate and honest in your responses.
- If there are new matters introduced during the cross-examination, the lawyer who called you as a witness in chief may question you again so that you can give reply evidence. These questions will resemble those asked in examination-in-chief and are to clarify the answers you gave during cross-examination. Reply evidence is not always necessary so don’t be surprised if you are excused after the cross-examination has concluded.
What do I need to know if I’m a witness in an investigation undertaken by my school board?
- As an employee of the board, you have a duty of loyalty to your board and should willingly and truthfully participate as a witness in any type of investigation, even if that investigation is regarding another principal or vice-principal colleague.
- You should not need OPC representation when providing witness information in an investigation by your school board (even if the investigator is an independent third party hired by the board). However, if at any point in the investigation you feel that your conduct is being scrutinized, or if you are feeling implicated, ask the investigator to adjourn the interview and call the OPC.
The OCT is going to obtain my witness testimony by telephone. What do I need to do?
- If you are named as a witness in an OCT investigation, you must participate in providing testimony. It is a ground for professional misconduct to fail to cooperate in a College investigation.
- At the conclusion of any recorded interview, you should ask for a copy of the interview transcript or summary. Review this document thoroughly, especially if asked to sign it to indicate that it accurately captures your testimony. Make any necessary corrections to the record.
- You should not need OPC representation when providing witness testimony for the OCT. However, if at any point in the investigation you feel that your conduct is being scrutinized, or if you are feeling implicated, ask the investigator to adjourn the interview and call OPC.
What do I need to know about answering questions in court?
ADVICE: ?
- While it is often stressful to be subpoenaed as a witness in a trial, remember that the court is interested only?in hearing the truth about the events in question. Your primary responsibility will always be to answer the questions carefully and truthfully. If you do not recall some information, it is appropriate and truthful to respond with “I don’t remember”.
The following tips1 will help you to fulfill this responsibility:
- Think carefully about your evidence before giving your answer. Give a considered answer to every question asked in direct examination. Be prepared to hold to that answer during cross-examination. In other words, do not guess at any answer. If you do not recall, or do not know the answer, say so. You may ask for clarification if you do not understand, or are confused by, a question.
- Always be truthful. Do not rush to agree with the lawyer cross- examining you. If the statement that the cross-examining lawyer asks you to agree with would mislead the court, do not agree. It is quite all right to agree with only part of the question or to qualify your answer.
- Beware of the double-barreled question that presupposes an answer. An absurd example of this type of question would be: “When did you stop yelling at the students?” The anticipated answer to this question presupposes that you once did yell at the students.
- Always pause before answering a question in order to give counsel who summoned you the opportunity to object to the question and to give you an opportunity to think about the answer.
- If an answer involves a number, be approximate, unless you are absolutely sure, in order to leave yourself a graceful way out in the event that you are not exactly correct.
- Feel free to admit that you have discussed your evidence with the lawyer who is calling you as a witness. ?
- You may use notes to refresh your memory of the events in question. However, if you refer to such notes while you are in the witness box, you may be compelled by the other lawyer to produce them. We recommend that you review your notes in advance to determine whether they contain confidential student information. Know your board’s position in advance in case you are asked to produce those notes while you are on the stand.
- Be prepared to explain any inconsistencies between the evidence you give in court and what you may have said on other occasions (in a statement to the police, for example). Try to anticipate, with the lawyer, what questions you may be asked about such inconsistencies, and consider what answer you may give. Attempt to secure copies of previous statements you made in order to refresh your memory.
1 These tips were taken and amended, where necessary, from M.H. Wunder, The Conduct of a Personal Injury Action (Toronto: Carswell Company Ltd., 1970, 89-90).