Commitment overview
Time commitment: Medium-high
Cost: None – in certain cases, compensation may be available to you
Do I need a lawyer? No – a lawyer will typically reach out to you
Do I need to go to court? Sometimes, depending on the case
What is testimony?
Testimony is oral or written evidence given by a witness as part of a legal proceeding. It helps judges and juries to understand the facts in a case.
A witness can provide written evidence, for example through an affidavit, which is a written statement by someone who swears or affirms that its contents are true; or an expert report, which is a report written by an expert witness that includes their opinions on an issue or issues in a case.
A witness can also provide oral evidence through direct examination and cross-examination. During direct examination, the lawyer who called the witness asks questions to present their evidence. During cross-examination, the other party’s lawyer asks questions to test or challenge the witness’s evidence.
Who can be a witness?
There are several types of witnesses, each playing a unique role:
Individuals with direct knowledge of the events or facts in question.
People with specialized knowledge who can provide opinions to help the court understand complex issues at issue in the proceeding.
Individuals who can speak to someone’s reputation or character.
How can gender-based violence (GBV) advocates become witnesses in FSL cases?
Lawyers will typically reach out to potential witnesses for a case. To identify witnesses, they may:
- Look to individuals or organizations that work with their clients or populations that their clients belong to
- Look at who has published papers or reports on relevant topics
Lawyers should work with witnesses to help them understand the process, put together their written evidence, and prepare for testifying. They will also explain what if any compensation is available for the witness’ time.
In FSL cases, GBV advocates are typically asked to get involved as:
- Fact witnesses, sharing direct knowledge of their interactions with a specific survivor or about how laws or policies affect survivors more broadly
- Expert witnesses, providing opinions drawn from specialized knowledge or expertise on GBV issues
Your testimony can provide important context, highlight systemic barriers, and ensure the court hears the lived realities of survivors.
Here are the four most common types of FSL cases and legal proceedings that GBV organizations and advocates get involved in as witnesses:
A Charter challenge is a lawsuit where a person or organization says that a government law, policy, or practice has violated their rights under the Canadian Charter of Rights and Freedoms. Most often, GBV advocates testify as fact witnesses in Charter challenges, providing first-hand observations about how a law or policy affects people in real life. Fact witnesses speak to what they have personally seen, experienced, or observed to help courts understand the real-life impacts of laws at issue in Charter cases.
Here are two real-life examples of GBV advocates as fact witnesses in Charter cases:
Canadian Alliance for Sex Work Law Reform v. Attorney General
- Issue: Whether specific Criminal Code offences related to sex work are constitutional
- Fact witnesses: Organizations including Peers Victoria Resource Centre, Butterfly: Asian and Migrant Sex Workers Support Network, Maggie’s Toronto Sex Workers Action Project, Action Santé Travesti(e)s et Transsexuel(le)s du Québec (ASTT(e)Q) and Stella, l’aimie de Maimie.
- Testimony: Fact witnesses explained how criminal laws on sex work shaped their safety, social stigma, and interactions with institutions. Their testimony provided the court with insight into the broader social and personal impacts of the law.
Heegsma et al. v. City of Hamilton
- Issue: Whether the City of Hamilton’s enforcement of by-laws restricting encampments in public parks violated the Charter
- Fact witnesses: Hamilton Regional Indian Centre and YWCA Hamilton
- Testimony: Fact witnesses addressed the lived experiences of Indigenous people in Hamilton, including Indigenous people who are unhoused; as well as the health and public safety implications of encampment and shelter systems, illustrating the impact of the by-laws on marginalized groups.
Public inquiries/commissions are not court cases but sometimes look like them. They are set up by provincial and federal governments to investigate issues of serious concern, often to see how similar issues may be prevented in the future. They involve evidence, legal arguments, and policy considerations. One or more commissioners (who may be judges, but do not have to be) usually run an inquiry.
GBV organizations and advocates participate in public inquiries/commissions as both fact and expert witnesses.
Here are two real-life examples of GBV advocates as witnesses at public inquiries/commissions:
The National Inquiry into Missing and Murdered Indigenous Women and Girls
- Issue: The epidemic of missing and murdered Indigenous women, girls, and 2SLGBTQI+ people in Canada, focusing on the underlying systemic causes and making recommendations to address and prevent such violence.
- Fact witnesses: Ma Mawi Wi Chi Itata Centre, Montreal Native Women’s Shelter, Awo Taan Healing Lodge Society, and Ganohkwasra Family Assault Support Services (among other organizations). These witnesses provided firsthand accounts and direct observations regarding the experiences of Indigenous women, girls, and 2SLGBTQIA people, the supports available to them, and the impact of colonization and systemic discrimination.
- Testimony: Testimony included both factual accounts of lived experiences and expert analysis of the broader social, economic, and historical factors contributing to violence against Indigenous women, girls, and 2SLGBTQIA people. This combination of fact and expert evidence enabled the Inquiry to make informed recommendations for systemic change.
The Mass Casualty Commission
- Issue: The circumstances surrounding a mass shooting in Nova Scotia, in which a perpetrator killed 22 people – including a pregnant woman – after violently assaulting his common-law spouse prior to the attacks. The inquiry examined not only the events of the mass casualty but also the responses to prior intimate partner violence and the systems in place to prevent such tragedies.
- Expert witnesses: Representatives from organizations including Autumn House, Avalon Sexual Assault Centre, the Elizabeth Fry Society of Mainland Nova Scotia, Luke’s Place, and the Barbra Schlifer Commemorative Clinic participated in expert roundtables.
- Testimony: Facts witnesses offered direct, first-hand accounts of the violence, the perpetrator’s actions, and the immediate response. Expert witnesses addressed broader understanding of intimate partner and family violence, systemic failure, and recommendations for improving prevention and response systems.
Inquests are not court cases but have some similarities. They examine the circumstances related to a death and make recommendations to prevent similar deaths in the future. They involve evidence, legal arguments, and policy considerations. A coroner, a judge, or a lawyer may run them, and they may involve a jury.
Typically, anyone who has information relevant to a case can be a witness at an inquest or inquiry. Parties with standing, which are people or organizations who have a substantial and direct interest in the inquest and who have received permission to participate in the inquest, will decide which witnesses they want to involve in the case, and usually then ask the person(s) presiding over the inquest or inquiry to approve that participation.
GBV organizations and advocates participate in inquests and inquiries as both fact and expert witnesses.
Here are two real-life examples of GBV advocates as witnesses at coroner’s inquests/fatality inquiries:
The Desmond Fatality Inquiry
- Issue: The circumstances surrounding an Afghanistan war veteran’s killing of his family and death by suicide in Nova Scotia, with a focus on whether the individuals had access to appropriate mental health and domestic violence intervention services prior to their deaths
- Fact witnesses: Health Association of African Canadians (among other organizations)
- Testimony: Witnesses addressed the health and health service needs of African Nova Scotians, as well as the realities of intimate partner violence and the effectiveness of available responses.
The Renfrew County Inquest
- Issue: The murders of three women in and around Renfrew County by their former partner. The purpose was to investigate the circumstances leading to the deaths and to make recommendations to prevent similar tragedies, with a particular focus on intimate partner violence (IPV) in rural communities.
- Expert witnesses: Professionals and advocates with specialized knowledge in areas such as IPV, rural service delivery, and systemic reform. This included representatives from organizations like Luke’s Place, the Ontario Association of Interval and Transition Houses, and Victim Services Renfrew County (among other organizations, IPV experts, and advocates).
- Testimony: Expert witnesses provided evidence on many aspects of IPV, including risk factor, systemic barriers, the realities of IPV in rural settings, responses by police and the justice system, and services to support survivors. Testimony also addressed the need for trauma-informed approaches and systemic reforms to better protect those at risk.
GBV advocates may get involved in other court and tribunal cases beyond Charter challenges. These include human rights cases, class actions, family law cases, and criminal law cases. They may participate as fact witnesses if they had direct interactions with a survivor in a case, or as expert witnesses.
GBV advocates as expert witnesses
Parties in a court or tribunal case will decide which expert witnesses they want to involve in the case. Before an expert can testify, the party must seek permission from the judge or adjudicator, who decides whether the witness is qualified to provide expert evidence.
Courts have a specific definition and method of determining who is an expert:
- Definition: An expert is someone who has special knowledge through study, experience or training. Courts assess expertise by reviewing education, professional training, work experience, research, and publications.
- Method: Typically, before their testimony is even considered, an expert’s CV is examined by the judge, and they are asked questions about their background and areas of expertise – this process is referred to as “qualifying” an expert.
While courts have said that experts can engage in advocacy outside of the courtroom, inside the courtroom an expert must be fair, objective, and non-partisan. The expert’s duty is to assist the court and not to be an advocate for any party.
There are real limitations to how courts think about expertise. The qualification process relies on and upholds colonial and patriarchal conceptions of expertise and knowledge by putting an emphasis on professional experience and academic qualifications, rather than the lived experience and expertise of survivors.
Courts also only admit expert evidence they consider to fall outside of the common knowledge of judges and juries, which can be problematic. In criminal cases, for example, courts have said that expert evidence on issues such as the effect of trauma on memory or myths and stereotypes about sexual violence is not always necessary or admissible, particularly in instances where they believe such matters fall within the common knowledge of the judge or jury.
This is not to say that GBV advocates should not try to be experts, but it is important to acknowledge the very real barriers to this type of participation.
Here is a real-life example of a GBV advocate as a witness in a court and tribunal case:
Blackjack v. Yukon (Chief Coroner) 2018 YKCA
- Issue: Whether the death of an Indigenous woman, Cynthia Blackjack, should have been the subject of a coroner’s request. The case centered on allegations of systemic discrimination and failures in the provision of health care services to First Nations citizens following Ms. Blackjack’s repeated but unsuccessful attempts to access adequate medical care before her death.
- Fact witnesses: The First Nation's Director of Health and Social Programs.
- Testimony: The testimony highlighted the systemic problems between health care services and First Nations communities, including delays and barriers in accessing emergency and routine medical care, the lack of culturally appropriate and responsive health services for Indigenous people, and the broader impact of these systemic issues on the health and safety of First Nations citizens.
Testifying is an important FSL strategy that aims to ensure that legal decisions involving GBV are made with the right and necessary information in mind. In all these examples, GBV advocates drew on their knowledge and experiences to provide judges, juries, and other decision-makers with a more fulsome understanding of important GBV issues being considered.
Additional resources
- Expert evidence resource by the Ontario Justice Education Network
- Webinar: Lessons from a Rural Inquest: Taking Action to Support the Recommendations from the Renfrew County Inquest
- Podcast: Saskatchewan’s Initiative to Integrate Expert Witnesses in IPV Cases