Testifying in a criminal case can be daunting, particularly for a witness who is young, has a disability, or is testifying about a traumatic experience involving the accused. Canadian criminal law allows courts to order certain accommodations, sometimes called testimonial aids, to help some witnesses give their evidence. This page gives a general overview of what these accommodations are, who might request them, and how courts generally approach these decisions. It is general information only and not a substitute for advice about a specific case.
These accommodations are separate from the general mechanics of testifying and cross-examination covered in our pages on testifying at trial and cross-examination, which this page does not duplicate.
What Are Testimonial Aids?
Testimonial aids are accommodations available under the Criminal Code, generally discussed as sections 486.1 through 486.3, intended to make it easier for certain witnesses to give a full and candid account of events in court. These provisions were developed with particular attention to witnesses who might otherwise find testifying in the ordinary courtroom setting, especially in the physical presence of the accused, especially difficult, such as children or witnesses in cases involving violence.
The specific accommodations available can include a support person being present, testifying from outside the courtroom or from behind a screen, and, in some circumstances, excluding members of the public from the courtroom during a witness's testimony.
Having a Support Person Present
A court can allow a witness to have a support person of their choosing nearby while they testify. This is generally intended to provide comfort and reassurance during what can be a stressful experience, and it is generally described as being available where the court is satisfied it would not interfere with the proper administration of justice, such as by influencing the witness's evidence.
A support person is generally there to provide emotional support rather than to participate in the proceeding itself, and the specific rules about who can act in this role, and how they may or may not interact with the witness, are set by the court.
Testifying Behind a Screen or by Closed-Circuit Television
In some cases, a court can order that a witness testify from behind a screen so that they cannot see the accused, or from outside the courtroom entirely using closed-circuit television. With closed-circuit testimony, arrangements are generally made so that the accused, the judge, and the jury, if there is one, can still watch and hear the witness's evidence, and the accused generally remains able to communicate with their lawyer while it is given.
The purpose of these accommodations is generally described as reducing the distress a witness might otherwise experience from being in the physical presence of the accused, without eliminating the accused's ability to see and hear the evidence being given against them, or to have it tested through cross-examination.
Excluding the Public From the Courtroom
In more limited circumstances, a court can order that members of the public be excluded from the courtroom while a particular witness testifies. This is generally treated as a significant step, since open courts are a foundational principle of the Canadian justice system, and such an order is generally reserved for specific situations where it is considered necessary. This is a different, narrower measure than a full closure of proceedings to the public, which is rarer still; see our page on publication bans for a related but distinct type of protection that restricts identifying information rather than courtroom access.
These accommodations affect how a witness testifies, not whether they must testify at all, and they do not change the substance of what a witness is required to say. A subpoena still generally requires attendance; see our page on subpoenas for more.
Who These Accommodations Are Generally For
Testimonial aids are generally discussed in connection with witnesses under 18 years of age, witnesses with a mental or physical disability, and witnesses in certain types of cases, such as those involving sexual offences or violence, though the exact scope depends on the specific provision and the circumstances of the case. Some accommodations are described as being more readily available, in some circumstances close to automatic on request, for younger witnesses or specific offence types, while others involve a broader assessment by the court.
Factors a Court May Consider
Where an accommodation is not automatic, a court generally considers a range of factors in deciding whether to grant it, which can include the age of the witness, the nature of the offence, any disability affecting the witness, the witness's own wishes, and whether the accommodation would interfere with the proper administration of justice or the accused's right to a fair trial. Because this is a case-specific, discretionary assessment, general descriptions like this one cannot predict how a court will rule in any particular matter; a lawyer or Crown attorney involved in the specific case can speak to the relevant considerations.
These Are Decided by the Court, Not Automatic
Even where an accommodation seems clearly appropriate, it generally still needs to be requested and, in many circumstances, approved by the court. This is generally why it matters to raise concerns about testifying, including any request for an accommodation, as early as possible, so there is time for the request to be considered before the scheduled court date.
How to Ask About an Accommodation
A victim or witness who thinks a testimonial accommodation might help them is generally encouraged to raise this with the Crown attorney's office or a victim/witness assistance program well before the court date, since these requests generally need to be made and, where required, argued for in advance of the hearing. See our overview of victim services in Ontario and our page on testifying in court as a victim or witness for more on this preparation process.
Frequently Asked Questions
Are testimonial accommodations only for children?
No. While children are commonly discussed in connection with these provisions, other witnesses, such as those with a disability or those testifying in certain sensitive cases, may also be eligible depending on the circumstances.
Does testifying behind a screen mean the accused cannot hear me?
No. Accommodations like a screen or closed-circuit television are generally designed so that the accused can still see and hear the testimony and communicate with their lawyer, while the witness does not have to be in the accused's direct line of sight.
Will a support person be allowed to speak for me?
Generally, no. A support person's role is generally to provide comfort and reassurance, not to answer questions or participate in the testimony itself.
Are these accommodations automatic?
Not always. Some are more readily available for specific witnesses or offence types, while others require the court to weigh a number of factors and are decided on a case-by-case basis.
When should I ask about a testimonial accommodation?
As early as possible. Requests generally need to be raised and, where necessary, decided before the scheduled court date, so raising the issue with the Crown's office well in advance is important.
Is excluding the public the same as a publication ban?
No. Excluding the public affects who can be physically present in the courtroom during testimony, while a publication ban restricts what can be published about a case. See our page on publication bans for more detail.