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SUBPOENAS: Compelling Witnesses to Testify!

The territorial effectiveness of all subpoenas, excepting those issued by a justice, is throughout Canada. The latter is valid only in the province in which it is issued.

Enforcement  due to failure

A witness under subpoena is required to attend the court at a specified time and to stay there until proceedings are concluded or they are excused by the court.  If the witness attends but refuses to be sworn, to answer questions, or to produce documents or other evidence, the witness is subject to penalties in the absence of any reasonable excuse for failing to comply with the subpoena. In the preliminary inquiry held thereafter, such a witness could be imprisoned for up to eight days, following which period he or she may be imprisoned again for up to eight days should he or she again refuse to comply with the subpoena. It would be seen that section 545 of the Code stipulates that the judge can “commit the person to prison from time to time until the person” agrees to comply with the subpoena.

The witness on refusing to answer questions at trial, is enforced by way of the court’s power to sanction for contempt of court, a common law criminal offence preserved by sections 8 and 9 of the Code.  But a motion to quash a subpoena is allowed by one of the parties or by the witness, when the onus is on the party who subpoenaed the witness to show that the witness is likely to give material evidence.

Such a motion has to be brought before trial before the Superior Court, which has an inherent jurisdiction to supervise the process of the inferior courts. For the same effect, during trial, the presiding judge may hear a motion to excuse the witness from testifying on the basis that the witness has no material evidence to give. In addition, a subpoena can be quashed due to any of the following reasons:

  1. It is an abuse of process;
  2. It is asking for privileged evidence;
  3. Owing to flawed information, the proceedings themselves are without jurisdiction; or
  4. It gives rise to a Charter violation.

Material witness warrant

Recourse is taken to what is known as a “material witness warrant” (MWW), when a subpoena is ineffective in getting the witness to court. This MWW authorizes the arrest of a person who has material evidence to give under three situations:

  1. Firstly, the same court which issued the subpoena can issue a material witness warrant where it is shown that the witness in question “will not attend in response to a subpoena” if one were issued;  it is effective anywhere in the province in which it was issued. If, however, the warrant is issued by a superior court of criminal jurisdiction or by an appellate court, it is effective throughout Canada.
  2. Secondly, where the witness was required to enter into a recognizance at the end of the accused’s preliminary inquiry in order to ensure that he would give evidence at trial (section 550) and has disappeared or is about to disappear, the court before whom the witness is required to appear may issue a warrant for the arrest of the witness.  The warrant is effective in the province in which it is issued unless endorsed by a justice “within whose jurisdiction the [witness] is or is believed to be”.
  3. Thirdly, if the subpoenaed witness fails to appear or who appears but fails to re-attend can also be the subject of a material witness warrant.  A warrant of this nature is enforceable anywhere in Canada.

On execution of any of these three types of arrest warrants, the witness is to be brought before the court and either detained until he or she has given evidence or released on a recognizance that is effective until he or she has given evidence. If detained, the witness can be held for no more than 30 days unless the detention is reviewed by the Superior Court within 30 days. The Superior Court judge can order the release of the witness (either outright or on a recognizance) if satisfied that her detention is no longer warranted. If the judge felt that the continued detention of the witness is justified, then the witness will be returned to custody, but the total period of detention should not exceed 90 days.

Lastly, if the witness required to attend court either by subpoena or recognizance, fails to do so or fails to remain in attendance can be convicted of contempt of court and is liable to a fine not exceeding $100, or to a term of imprisonment not exceeding 90 days or to both.

Unavailable witness

Witnesses are at times unable to attend at trial. They could be ill, or residing outside the jurisdiction, or having some other reason for the inability to testify. Then, subpoenas and warrants issued under the Code have no effect outside Canada. Due to these reasons, the Code provides for three ways in which trial courts can get the evidence of those who cannot or will not come to the trial.

  • If the witness is ill, or is outside Canada, or for some other “good and sufficient cause” is not able to attend at the trial, a party to the proceedings is to apply for an order appointing a commissioner to take the evidence of that witness.
  • If the witness is at a location in Canada but away from the place of trial, the court can order that the witness give his or her evidence by way of video-conferencing or video link technology.
  • Should the witness refuse to give evidence, or be dead at the time of trial, or be insane, or be so ill that he or she is unable to travel to testify, or be absent from Canada, and the witness has given evidence at a preliminary inquiry into the same charge, or has testified at a prior trial of the charge, his or her evidence from the preliminary inquiry or prior trial can be read into the evidence at trial where it is proved that the evidence was taken in the presence of the accused and that there was a full opportunity to cross-examine the witness.

Contact the lawyers at Levy Zavet PC to ensure that all material witnesses are secured and their testimony is brought into evidence.