Quashing a Subpoena

From Criminal Law Notebook
This page was last substantively updated or reviewed April 2024. (Rev. # 92701)

General Principles

See also: Writ of Certiorari and Compelling Attendance of Witnesses
Superior Court Jurisdiction

Only a superior court justice has the power to quash a subpoena.[1] This is normally done by way of the prerogative writ of certiorari which is an extraordinary remedy available only to superior courts of inherent jurisdiction.[2]

Provincial Court Jurisdiction

There is some suggestion that a preliminary inquiry judge may be entitled under s. 700(2) to adjudicate whether the witness has relevant testimony and excuse them if the evidence would be immaterial to the hearing.[3]

Section 700(2) states:

700 ...

Witness to appear and remain

(2) A person who is served with a subpoena issued under this Part [Pt. XXII – Procuring Attendance (ss. 697 to 715.2)] shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial court judge.
R.S., 1985, c. C-46, s. 700; R.S., 1985, c. 27 (1st Supp.), ss. 148, 203.
[annotation(s) added]


Note up: 700(2)

Only the person subpoenaed can rely on 700(2) to be excused from the subpoena. It cannot be advanced by any other party.[4]

General Test

The general test quash a subpoena consist of:[5]

  • whether there is a "privilege or other legal rule which applies such that the witness should not be compelled to testify" or
  • whether there is "evidence from the witness subpoenaed relevant in regard to the issues the Court must decide"

The burden is upon the party that seeks to sustain the subpoena.[6]

Calling Opposing Counsel

It is only in "exceptional circumstances that Crown or defence counsel will be permitted to call opposing counsel as a witness."[7]

In order to call opposing counsel there must be an "evidentiary foundation for showing that the counsel's evidence is likely to be relevant and necessary."[8]

The standard is a high one requiring that there is "a real basis for believing that it is likely the witness can give material evidence."[9]

The reason for this standard is to avoid the mischief of trials being interrupted at random for fishing expeditions.[10]

The standard will be the same whether it is Crown or defence.[11]

Crown Counsel

Crown counsel can seek to quash a subpeona on the basis that it amounts to a "fishing expedition."[12]

A subpoena for a Crown counsel may only be permitted where "the evidence cannot be obtained in any other way."[13] The added requirement to subpoena a Crown witness remains the same even once the Crown counsel is not longer counsel on the case.[14]

Subpoena power should be used cautiously to avoid frustrating the role of counsel by making them a witness in a case.[15]

Defence counsel cannot subpoena previous Crown counsel to give evidence on the reason for relying on notice of a prior conviction contrary to policy as it was not "absolutely essential."[16]

  1. R v Ben Aïssa, 2016 QCCQ 2830 (CanLII), QJ 15685, per Mascia J, at paras 24 to 29 - a preliminary inquiry judge has no power to rule on request to quash
    R v Rashwan, 2004 CanLII 41169 (ON SC), per Spiegel J
    R v Primeau, 1995 CanLII 143 (SCC), [1995] 2 SCR 60, per Sopinka and Iacobucci JJ re application for a writ of prohibition and remedy under s. 24(1) of Charter
  2. see Writ of Certiorari
  3. Ben Aïssa, supra, at paras 30 to 33 ("...a judge of the Ontario Court of Justice (provincial court)—though powerless to decide an application to quash—was entitled by virtue of s. 700(2) of the Criminal Code to hear submissions as to whether or not the evidence was receivable at the trial...")
    R v Maleki, 2006 ONCJ 401 (CanLII), 1 CTC 212, per Lane J, at para 4 (" ...while it was quite true that only the superior court has jurisdiction to quash subpoenas, such an order was not necessary, and that it was for the trial judge to make a determination of whether or not the evidence of the applicant is receivable on the trial. “If the trial judge concluded that the evidence was not receivable then he has the power, under s. 628(2) (now s. 700(2)) of the Criminal Code, to excuse the witness from attending.” ")
    Re. Chase and the Queen, 1982 CanLII 304 (BC SC), 1 CCC (3d) 188, per MacKay J
  4. R v Maleki, 2006 ONCJ 401 (CanLII), 1 CTC 212, per Lane J
    R v MacKenzie, Guptill, 2024 NSPC 24 (CanLII), per Hartlen J
  5. Canada (Citizenship and Immigration) v. Mahjoub, 2010 FC 1193 (CanLII), at para 7
  6. Mahjoub at para 9
    contra Wal-Mart Canada Corp. v. United Food and Commercial Workers, Local 1400, 2004 SKCA 154 (CanLII) at para 35
  7. R v Elliott, 2003 CanLII 24447 (ON CA), 181 CCC (3d) 118, per curiam, at para 114 ("It is only in exceptional circumstances that Crown or defence counsel will be permitted to call opposing counsel as a witness. It is not sufficient that the counsel may have material evidence to give. The party seeking to call opposing counsel must lay an evidentiary foundation for showing that the counsel’s evidence is likely to be relevant and necessary. This stringent test applies whether it is defence counsel seeking to call Crown counsel or Crown counsel seeking to call defence counsel. ...")
  8. Elliott, ibid., at para 114
  9. Elliott, ibid., at para 114
    R v Stupp, Winthrope and Manus, 1982 CanLII 1897 (ON SC), 36 OR (2d) 206 at 219 (Ont. H.C.J.), per Craig J ("In my opinion, an accused person should not be permitted to call Crown counsel to conduct a fishing expedition or to examine in the hope that something might turn up that would assist him on the issue; but rather counsel must satisfy the judge that there is a real basis for believing that it is likely the witness can give material evidence")
  10. Stupp, ibid. ("If it is otherwise, preliminary hearings and trials can be interrupted at random; and the administration of criminal justice could be seriously impaired.")
  11. Elliott, supra, at para 114
  12. R v Harris, 1994 CanLII 2986 (ON CA), 93 CCC (3d) 478, per curiam
  13. R v Regan, [1996] NSJ No 625(*no CanLII links)
    Harris, supra
    R v Gervais, 1992 CanLII 3144 (QC CA), 75 CCC (3d) 61, per curiam
    Black, supra
  14. Regan, supra (1996)
  15. R v Sungalia, [1992] OJ No 3718(*no CanLII links)
  16. R v Kim, 2010 ABQB 810 (CanLII), 507 AR 81, per Manderscheid J

Parliamentary Privilege

See also: Public Interest Privilege

A member of a provincial or federal legislature can be exempt from attending court under subpoena on the basis of parliamentary privilege. The application of the privilege will be subject to an evaluation of necessity.[1]

  1. Samson Indian Nation and Band v Canada, 2003 FC 975 (CanLII), [2004] 1 FCR 556, per Teitelbaum J

Other Protected Parties

Accused and Co-Accused

An accused person is generally assumed competent and compellable for the defence and not competent for the crown.[1]

A co-accused, charged separately, is a competent and compellable witness for both crown and defence. The only exception is if the only purpose in compelling the co-accused is to incriminate them.[2] The same goes for suspects, charged or uncharged.[3]

A co-accused, charged together, is competent but not compellable by the accused. It is the choice of the co-accused to testify.

Where the accused is a corporation, the officers of the corporation are compellable.[4]

  1. R v Amway Corp, 1989 CanLII 107 (SCC), [1989] 1 SCR 21, per Sopinka J (" At common law an accused was neither competent nor compellable as a witness.")
  2. R v Primeau, 1995 CanLII 143 (SCC), [1995] 2 SCR 60, per Sopinka and Iacobucci JJ
  3. R v Jobin, 1995 CanLII 144 (SCC), [1995] 2 SCR 78, per Sopinka and Iacobucci JJ
  4. R v N.M. Paterson & Sons Ltd., 1980 CanLII 227 (SCC), [1980] 2 SCR 679, per Chouinard J
    Amway Corp, supra


See also: Compelling Attendance of Witnesses#Witness Subpoenas

A lawyer for an opposing party to an ongoing matter may only be called to testify where the calling party has shown a high degree of materiality and necessity.[1]

There are additional limitations on compelling Crown counsel to testify. It is only permitted where "the evidence cannot be obtained in any other way."[2]