View source for Compelling Attendance of Witnesses

{{LevelZero}}{{HeaderTestimony}}
==General Principles==
<!-- -->
Part XXII of the Code (s. 697 to 715.2) governs the procuring of attendance for witnesses.  Section 697 states:
{{quotation|
'''Application'''<br>
697 Except where section 527 applies, this Part applies where a person is required to attend to give evidence in a proceeding to which this Act applies.<br>
R.S., c. C-34, s. 625.
|[{{CCCSec|697}} CCC]
}}

A competent witness is generally a compellable witness.<Ref>
R v Schell, [http://canlii.ca/t/1h1fl 2004 ABCA 143] (CanLII), (2004) 188 CCC (3d) 254 (ABCA)<br>
R v Czipps (1979) 48 CCC (2d) 166 (ONCA), [http://canlii.ca/t/g131b 1979 CanLII 2095] (ON CA)</ref> 
An incompetent witness is generally not compellable.


Historically, witnesses can be compelled to attend court under either a writ ''subpoena ad testificandum'' which requires the person to give oral evidence or a writ of subpoena ''duces tecum'' which requires the person to bring certain records or documents to the court.

Crown and defence counsel are both compellable witnesses.<Ref>
R v Gervais, [http://canlii.ca/t/1pdgp 1992 CanLII 3144] (QC CA), (1992), 75 CCC (3D) 61 (QCCA){{needlink}}
</ref>

'''Copies of Summons, Warrants or Subpoena'''<br>
Under s. 708.1, faxed copies of the warrant, subpoena, or summons has the same value as an original.
{{quotation|
'''Electronically transmitted copies'''<br>
708.1 A copy of a summons, warrant or subpoena transmitted by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of this Act.
<br>
1997, c. 18, s. 101.
|
}}

'''Youth Court Justice'''<br>
{{Quotation|
'''Issue of subpoena'''<br>
144 (1) If a person is required to attend to give evidence before a youth justice court, the subpoena directed to that person may be issued by a youth justice court judge, whether or not the person whose attendance is required is within the same province as the youth justice court.
<br>
'''Service of subpoena'''<br>
(2) A subpoena issued by a youth justice court and directed to a person who is not within the same province as the youth justice court shall be served personally on the person to whom it is directed.
|[http://canlii.ca/t/52hl0#sec144 YCJA]
}}
{{reflist|2}}

==Witness Subpoenas==
Section 698 allows the ordering of a subpoena requiring a witness to attend court:
{{quotation|
'''Subpoena'''<br>
698. (1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence.
<br>
'''Warrant in Form 17'''<br>
(2) Where it is made to appear that a person who is likely to give material evidence
:(a) will not attend in response to a subpoena if a subpoena is issued, or
:(b) is evading service of a subpoena,

a court, justice or provincial court judge having power to issue a subpoena to require the attendance of that person to give evidence may issue a warrant in Form 17 to cause that person to be arrested and to be brought to give evidence.
<br>
'''Subpoena issued first'''<br>
(3)  Except where paragraph (2)(a) applies, a warrant in Form 17 shall not be issued unless a subpoena has first been issued.
<br>
R.S., 1985, c. C-46, s. 698; R.S., 1985, c. 27 (1st Supp.), s. 203.
|[http://canlii.ca/t/7vf2#sec698 CCC]
}}

The key factor is that the issuing party must be able to establish that the witness would likely or probably have material evidence to give. It is not enough that the witness "may have" material evidence.<Ref>
R v Harris, [http://canlii.ca/t/6k4j 1994 CanLII 2986] (ON CA), (1994) 93 CCC (3d) 478 (ONCA)<Br>
</ref>

Where the subpoena is not valid it may be quashed by a superior court judge.<ref>
R v A, [http://canlii.ca/t/1fsxh 1990 CanLII 101] (SCC), [1990] 1 SCR 995<Br>
R v Black, [2002] NSJ 71 (NSSC)<Br>
</ref>

A judge or justice issuing a subpeona must take at least some steps or some "examination"  "to satisfy himself that the person is likely to give material evidence".<Ref>
Foley v Gares, [http://canlii.ca/t/g91zl 1989 CanLII 5134] (SK CA), (1989), 53 CCC (3d) 82<Br>
</ref>
However, in practice judges and justices regularly issue subpoenas without making inquiry of any evidence.<Ref>
E.g. R v Regan (1998), 173 NSR (2d) 298{{NOCANLII}}<Br>
</ref>

A judge has a discretion to excuse an expert witness who is under a valid subpoena.<Ref>
R v Blais, [http://canlii.ca/t/210c9 2008 BCCA 389] (CanLII)
</ref>

{{reflist|2}}
===Power to Issue Witness Subpoenas===
{{quotation|
'''Who may issue'''<br>
699. (1) If a person is required to attend to give evidence before a superior court of criminal jurisdiction, a court of appeal, an appeal court or a court of criminal jurisdiction other than a provincial court judge acting under Part XIX, a subpoena directed to that person shall be issued out of the court before which the attendance of that person is required.
<br>
'''Order of judge'''<br>
(2) If a person is required to attend to give evidence before a provincial court judge acting under Part XIX or a summary conviction court under Part XXVII or in proceedings over which a justice has jurisdiction, a subpoena directed to the person shall be issued

:(a) by a provincial court judge or a justice, where the person whose attendance is required is within the province in which the proceedings were instituted; or
:(b) by a provincial court judge or out of a superior court of criminal jurisdiction of the province in which the proceedings were instituted, where the person whose attendance is required is not within the province.
<br>
'''Order of judge'''<br>
(3) A subpoena shall not be issued out of a superior court of criminal jurisdiction pursuant to paragraph (2)(b), except pursuant to an order of a judge of the court made on application by a party to the proceedings.
<br>
...
<br>
R.S., 1985, c. C-46, s. 699; R.S., 1985, c. 27 (1st Supp.), s. 203; 1994, c. 44, s. 69; 1997, c. 30, s. 2; 1999, c. 5, s. 28.
|[http://canlii.ca/t/7vf2#sec699 CCC]
}}

The court before which the witness may testify will issue has the authority to issue a subpoena.<ref>
s. 699(1)</ref>

Where the matter is before a provincial court judge and the person is within the province, a provincial court judge may order their attendance by issuing a subpoena under s.699(2)(a). However, under s. 699(2)(b), where the witness is out of province, either a provincial court a superior court judge may order the subpoena.

Where the matter is before a superior court judge, only that court may issue a subpoena compelling attendance (s. 699(1)). 

{{reflist|2}}

===Form of the Subpoena===
The subpoena must be under the seal of the court with the signature of either the judge or his clerk.<Ref>
s. 699(4)</ref>
It should also have the signature of the judge.<ref>
s. 699(5)</ref>
The subpoena should comply with Form 16.<Ref>
s. 699(6)</ref>

'''Sexual Offences'''<br>
Sexual offences referred to s. 278.2(1) must comply with s. 699(5.1). The subpoena should conform to Form 16.1<ref>
s. 699(7)</ref>

{{quotation|
699.<br>...<br>
'''Seal'''<br>
(4) A subpoena or warrant that is issued by a court under this Part shall be under the seal of the court and shall be signed by a judge of the court or by the clerk of the court.
<br>
'''Signature'''<br>
(5) A subpoena or warrant that is issued by a justice or provincial court judge under this Part shall be signed by the justice or provincial court judge.
<br>
'''Sexual offences'''<br>
(5.1) Notwithstanding anything in subsections (1) to (5), in the case of an offence referred to in subsection 278.2(1), a subpoena requiring a witness to bring to the court a record, the production of which is governed by sections 278.1 to 278.91, must be issued and signed by a judge.
<br>
'''Form of subpoena'''<br>
(6) Subject to subsection (7), a subpoena issued under this Part may be in Form 16.
<br>
'''Form of subpoena in sexual offences'''<br>
(7) In the case of an offence referred to in subsection 278.2(1), a subpoena requiring a witness to bring anything to the court shall be in Form 16.1.
<br>
R.S., 1985, c. C-46, s. 699; R.S., 1985, c. 27 (1st Supp.), s. 203; 1994, c. 44, s. 69; 1997, c. 30, s. 2; 1999, c. 5, s. 28.
|[http://canlii.ca/t/7vf2#sec699 CCC]
}}
{{reflist|2}}

===Contents===

'''In Person Attendance'''<br>
{{quotation|
'''Contents of subpoena'''<br>
700. (1) A subpoena shall require the person to whom it is directed to attend, at a time and place to be stated in the subpoena, to give evidence and, if required, to bring with him anything that he has in his possession or under his control relating to the subject-matter of the proceedings.
<br>
'''Witness to appear and remain'''<br>
(2) A person who is served with a subpoena issued under this Part shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial court judge.
<br>
R.S., 1985, c. C-46, s. 700; R.S., 1985, c. 27 (1st Supp.), ss. 148, 203.
|[http://canlii.ca/t/7vf2#sec700 CCC]
}}


'''Video Link Attendance'''<br>
{{quotation|
'''Video links, etc.'''<br>
700.1 (1) If a person is to give evidence under section 714.1 or 714.3 or under subsection 46(2) of the Canada Evidence Act — or is to give evidence or a statement pursuant to an order made under section 22.2 of the Mutual Legal Assistance in Criminal Matters Act — at a place within the jurisdiction of a court referred to in subsection 699(1) or (2) where the technology is available, a subpoena shall be issued out of the court to order the person to give that evidence at such a place.
<br>
'''Sections of Criminal Code'''<br>
(2) Sections 699, 700 and 701 to 703.2 apply, with any modifications that the circumstances require, to a subpoena issued under this section.
<br>
1999, c. 18, s. 94.
|[http://canlii.ca/t/7vf2#sec700 CCC]
}}

{{Reflist|2}}

===Service===
{{quotation|
'''Service'''<br>
701. (1) Subject to subsection (2), a subpoena shall be served in a province by a peace officer or any other person who is qualified in that province to serve civil process, in accordance with subsection 509(2), with such modifications as the circumstances require.
<br>
'''Personal service'''<br>
(2) A subpoena that is issued pursuant to paragraph 699(2)(b) shall be served personally on the person to whom it is directed.
<br>
(3) [Repealed, 2008, c. 18, s. 32]
<br>
R.S., 1985, c. C-46, s. 701; 1994, c. 44, s. 70; 2008, c. 18, s. 32.
|[http://canlii.ca/t/7vf2#sec701 CCC]
}}

{{quotation|
'''Service in accordance with provincial laws'''<br>
701.1 Despite section 701, in any province, service of a document may be made in accordance with the laws of the province relating to offences created by the laws of that province.
<br>
1997, c. 18, s. 100; 2008, c. 18, s. 33.
|[http://canlii.ca/t/7vf2#sec701.1 CCC]
}}

{{quotation|
'''Subpoena effective throughout Canada'''<br>
702. (1) A subpoena that is issued by a provincial court judge or out of a superior court of criminal jurisdiction, a court of appeal, an appeal court or a court of criminal jurisdiction has effect anywhere in Canada according to its terms.
<br>
'''Subpoena effective throughout province'''<br>
(2) A subpoena that is issued by a justice has effect anywhere in the province in which it is issued.
<br>
R.S., 1985, c. C-46, s. 702; 1994, c. 44, s. 71.
|[http://canlii.ca/t/7vf2#sec702 CCC]
}}

{{quotation|
'''Warrant effective throughout Canada'''<br>
703. (1) Notwithstanding any other provision of this Act, a warrant of arrest or committal that is issued out of a superior court of criminal jurisdiction, a court of appeal, an appeal court within the meaning of section 812 or a court of criminal jurisdiction other than a provincial court judge acting under Part XIX may be executed anywhere in Canada.
<br>
'''Warrant effective in a province'''<br>
(2) Despite any other provision of this Act but subject to subsections 487.0551(2) and 705(3), a warrant of arrest or committal that is issued by a justice or provincial court judge may be executed anywhere in the province in which it is issued.
<br>
R.S., 1985, c. C-46, s. 703; R.S., 1985, c. 27 (1st Supp.), s. 149; 2007, c. 22, s. 22.
|[http://canlii.ca/t/7vf2#sec701 CCC]
}}

{{quotation|
'''Summons effective throughout Canada'''<br>
703.1 A summons may be served anywhere in Canada and, if served, is effective notwithstanding the territorial jurisdiction of the authority that issued the summons.
<br>
R.S., 1985, c. 27 (1st Supp.), s. 149.
|[http://canlii.ca/t/7vf2#sec701 CCC]
}}

{{quotation|
'''Service of process on an organization'''<br>
703.2 Where any summons, notice or other process is required to be or may be served on an organization, and no other method of service is provided, service may be effected by delivery
:(a) in the case of a municipality, to the mayor, warden, reeve or other chief officer of the municipality, or to the secretary, treasurer or clerk of the municipality; and
:(b) in the case of any other organization, to the manager, secretary or other senior officer of the organization or one of its branches.

R.S., 1985, c. 27 (1st Supp.), s. 149; 2003, c. 21, s. 13.
|[http://canlii.ca/t/7vf2#sec701 CCC]
}}

===Warrant of Arrest===
{{seealso|Warrant Arrests}}

Section 698(2) permits a judge to order a warrant of arrest for a person to attend court as a witness.

The key requirements for a 698(2) warrant consist of:
# the person is "likely to give material evidence"
# the person "will not attend in response" to an issued subpoena ''or'' is evading service of a subpoena."

There is not need for the person to be cooperative with the process server or police officer who is trying to serve them.<ref>
Credit Foncier Franco-Canadien v McGuire, [http://canlii.ca/t/23ckq 1979 CanLII 366] (BC SC), (1979), 14 B.C.L.R. 281 (S.C.), at para 8<br>
</ref>

A conclusion that the party is evading service must be "adequately support by the facts".<ref>
Credit Foncier Franco-Canadien at para 8</ref>

The decision to issue a warrant under s. 698 is at the discretion of the judge and is not reviewable on certiorari.<Ref>
R v Earhart, [http://canlii.ca/t/fllfv 2007 BCCA 614] (CanLII)
</ref>

{{reflist|2}}

===Quashing a Subpoena===

'''Jurisdiction'''<br>
Only a superior court justice has the power to quash a subpoena.<ref>
R v Ben Aïssa, [http://canlii.ca/t/gvms4 2016 QCCQ 2830] (CanLII), par. 24 to 29 - a preliminary inquiry judge has no power to rule on request to quash<br>
R v Rashwan, [http://canlii.ca/t/1j7b0 2004 CanLII 41169] (ON SC)<br>
R v Primeau, [1995] 2 SCR 60, [http://canlii.ca/t/1frjx 1995 CanLII 143] (SCC) re application for a writ of prohibition and remedy under s. 24(1) of Charter<br>
</ref>

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.<ref>
Ben Aïssa{{supra}} at paras 30 to 33<br>
</ref>

'''Calling Opposing Counsel'''<br>
It is only in "exceptional circumstances that Crown or defence counsel will be permitted to call opposing counsel as a witness".<ref>
R v Elliott, [http://canlii.ca/t/1g18c 2003 CanLII 24447] (ON CA), at para 114<br> 
</ref>

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".<ref>
Elliott{{ibid}} at para 114<br>
</ref>

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."<ref>
Elliott{{ibid}} at para 114<Br>
Stupp, Winthrope and Manus (1982), [http://canlii.ca/t/g1f73 1982 CanLII 1897] (ON SC), 36 O.R. (2d) 206 at 219 (Ont. H.C.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")<br>
</ref>

The reason for this standard is to avoid the mischief of trials being interrupted at random for fishing expeditions.<ref>
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.")<br>
</ref>

The standard will be the same whether it is Crown ''or'' defence.<ref>
Elliott{{supra}} at para 114<Br>
</ref>

'''Crown Counsel'''<br>
Crown counsel can seek to quash a subpeona on the basis that it amounts to a "fishing expedition".<Ref>
R v Harris, [http://canlii.ca/t/6k4j 1994 CanLII 2986] (ON CA)
</ref>

A subpoena for a Crown counsel may only be permitted where "the evidence cannot be obtained in any other way".<Ref>
R v Regan, [1996] NSJ No 625{{NOCANLII}}<Br>
Harris{{supra}}<Br>
R v Gervais, [http://canlii.ca/t/1pdgp 1992 CanLII 3144] (QC CA), (1992) 75 CCC (3d) 61 (QCCA)<Br>
R v Black{{supra}}<Br>
</ref>
The added requirement to subpoena a Crown witness remains the same even once the Crown counsel is not longer counsel on the case.<ref>
Regan{{supra}} (1996)
</ref>

Subpoena power should be used cautiously to avoid frustrating the role of counsel by making them a witness in a case.<ref>
R v Sungalia, [1992] OJ No 3718{{NOCANLII}}
</ref>

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".<ref>
R v Kim, [http://canlii.ca/t/2f3nv 2010 ABQB 810] (CanLII)
</ref>

{{reflist|2}}

===Parliamentary Privilege===
{{seealso|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.<ref>
Samson Indian Nation and Band v Canada, [2004] 1 FCR 556, [http://canlii.ca/t/g9q 2003 FC 975] (CanLII)
</ref>

{{reflist|2}}


===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.<ref>
R v Amway Corp, [http://canlii.ca/t/1ft8d 1989 CanLII 107] (SCC), [1989] 1 SCR 21 (" At common law an accused was neither competent nor compellable as a witness.")</ref>

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.<ref>
R v Primeau, [http://canlii.ca/t/1frjx 1995 CanLII 143] (SCC), [1995] 2 SCR 60 </ref> The same goes for suspects, charged or uncharged.<ref>
R v Jobin [http://canlii.ca/t/1frk0 1995 CanLII 144] (SCC), [1995] 2 SCR 78</ref>

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.<ref>
R v N.M. Paterson & Sons Ltd., [http://canlii.ca/t/1z494 1980 CanLII 227] (SCC), [1980] 2 SCR 679<br>
Amway Corp{{supra}}<br>
</ref>

{{reflist|2}}

====Lawyers====
{{Seealso|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.<Ref>R v 1504413 Ontario Limited, [http://canlii.ca/t/1wgkq 2008 ONCA 253] (CanLII) at para 17</ref>

There are additional limitations on compelling Crown counsel to testify. It is only permitted where "the evidence cannot be obtained in any other way".<Ref>
see [[Compelling Attendance of Witnesses#Quashing a Subpoena]]
</ref>

{{reflist|2}}

====Judges====
* see [[Judicial Immunity]]

==Missing Witnesses==
{{seealso|Warrant Arrests}}
{{quotation|
'''Warrant for absconding witness'''<br>
704. (1) Where a person is bound by recognizance to give evidence in any proceedings, a justice who is satisfied on information being made before him in writing and under oath that the person is about to abscond or has absconded may issue his warrant in Form 18 directing a peace officer to arrest that person and to bring him before the court, judge, justice or provincial court judge before whom he is bound to appear.
<br>
'''Endorsement of warrant'''<br>
(2) Section 528 applies, with such modifications as the circumstances require, to a warrant issued under this section.
<br>
'''Copy of information'''<br>
(3) A person who is arrested under this section is entitled, on request, to receive a copy of the information on which the warrant for his arrest was issued.
<br>
R.S., 1985, c. C-46, s. 704; R.S., 1985, c. 27 (1st Supp.), s. 203.
|[http://canlii.ca/t/7vf2#sec704 CCC]
}}

Whether to issue a warrant under s. 704 is at the discretion of the judge and cannot be reviewed by certiorari.<ref>
R v Earhart, [http://canlii.ca/t/fllfv 2007 BCCA 614] (CanLII), at paras 32 to 47<br>
</ref>

Section 705 gives authority of a court to issue a warrant of arrest for a witness who fails to attend on a subpoena.
{{quotation|
'''Warrant when witness does not attend'''<br>
705. (1) Where a person who has been served with a subpoena to give evidence in a proceeding does not attend or remain in attendance, the court, judge, justice or provincial court judge before whom that person was required to attend may, if it is established
:(a) that the subpoena has been served in accordance with this Part, and
:(b) that the person is likely to give material evidence, issue or cause to be issued a warrant in Form 17 for the arrest of that person.

'''Warrant where witness bound by recognizance'''<br>
(2) Where a person who has been bound by a recognizance to attend to give evidence in any proceeding does not attend or does not remain in attendance, the court, judge, justice or provincial court judge before whom that person was bound to attend may issue or cause to be issued a warrant in Form 17 for the arrest of that person.
<br>
'''Warrant effective throughout Canada'''<br>
(3) A warrant that is issued by a justice or provincial court judge pursuant to subsection (1) or (2) may be executed anywhere in Canada.
<br>
R.S., 1985, c. C-46, s. 705; R.S., 1985, c. 27 (1st Supp.), s. 203.
|[http://canlii.ca/t/7vf2#sec705 CCC]
}}

A judge has the inherent authority to order any person present in court to be compelled to testify where:
# the person has relevant evidence to give
# a party requires that person to testify in the proceeding
Similarly, an inmate witness can also be compelled to testify by way of s. 527.<ref>
R v Ayres (1984), 15 CCC (3d) 208 (ONCA) {{NOCANLII}}</ref>

Where a witness fails to attend, the judge has a discretion to order a witness warrant where he is satisfied that:<ref>
R v Scott [http://canlii.ca/t/1fsp3 1990 CanLII 27] (SCC), [1990] 3 SCR 979</ref>
# proper attempts to serve the witness have been made;
# the witness is a material witness.

{{reflist|2}}

===Detaining Missing Witness===

{{quotation|
'''Order where witness arrested under warrant'''<br>
706. Where a person is brought before a court, judge, justice or provincial court judge under a warrant issued pursuant to subsection 698(2) or section 704 or 705, the court, judge, justice or provincial court judge may order that the person
:(a) be detained in custody, or
:(b) be released on recognizance in Form 32, with or without sureties,
to appear and give evidence when required.

R.S., 1985, c. C-46, s. 706; R.S., 1985, c. 27 (1st Supp.), s. 203.
|[http://canlii.ca/t/7vf2#sec706 CCC]
}}

{{quotation|
'''Maximum period for detention of witness'''<br>
707. (1) No person shall be detained in custody under the authority of any provision of this Act, for the purpose only of appearing and giving evidence when required as a witness, for any period exceeding thirty days unless prior to the expiration of those thirty days he has been brought before a judge of a superior court of criminal jurisdiction in the province in which he is being detained.
<br>
'''Application by witness to judge'''<br>
(2) Where at any time prior to the expiration of the thirty days referred to in subsection (1), a witness being detained in custody as described in that subsection applies to be brought before a judge of a court described therein, the judge before whom the application is brought shall fix a time prior to the expiration of those thirty days for the hearing of the application and shall cause notice of the time so fixed to be given to the witness, the person having custody of the witness and such other persons as the judge may specify, and at the time so fixed for the hearing of the application the person having custody of the witness shall cause the witness to be brought before a judge of the court for that purpose.
<br>
'''Review of detention'''<br>
(3) If the judge before whom a witness is brought under this section is not satisfied that the continued detention of the witness is justified, he shall order him to be discharged, or to be released on recognizance in Form 32, with or without sureties, to appear and to give evidence when required, but if the judge is satisfied that the continued detention of the witness is justified, he may order his continued detention until the witness does what is required of him pursuant to section 550 or the trial is concluded, or until the witness appears and gives evidence when required, as the case may be, except that the total period of detention of the witness from the time he was first detained in custody shall not in any case exceed ninety days.
R.S., c. C-34, s. 635.
|[http://canlii.ca/t/7vf2#sec708 CCC]
}}

===Finding of Contempt===
{{seealso|Contempt of Court (Offence)}}
{{quotation|
'''Contempt'''<br>
708. (1) A person who, being required by law to attend or remain in attendance for the purpose of giving evidence, fails, without lawful excuse, to attend or remain in attendance accordingly is guilty of contempt of court.
<br>
'''Punishment'''<br>
(2) A court, judge, justice or provincial court judge may deal summarily with a person who is guilty of contempt of court under this section and that person is liable to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding ninety days or to both, and may be ordered to pay the costs that are incident to the service of any process under this Part and to his detention, if any.
<br>
'''Form'''<br>
(3) A conviction under this section may be in Form 38 and a warrant of committal in respect of a conviction under this section may be in Form 25.
<br>
R.S., 1985, c. C-46, s. 708; R.S., 1985, c. 27 (1st Supp.), s. 203.
|[http://canlii.ca/t/7vf2#sec708 CCC]
}}

The Superior Court's power to cite a person in contempt of court is "a very important power but it is to be used with restraint".<ref>
R v Elliott, [http://canlii.ca/t/1g18c 2003 CanLII 24447] (ON CA), at para 144<Br>
</ref>

"Contempt" requires a "conduct that is calculated to obstruct or interfere with the due course of justice of the lawful process of the courts." It is conduct "that seriously interferes with, or obstructs, the administration of justice".<ref>
Elliott{{ibid}} at para 144<Br>
</ref>
It is not sufficient that there was merely a "misunderstanding".<ref>
Elliott{{ibid}} at para 144<br>
</ref>

{{Reflist|2}}

==See Also==
* [[Competence and Compellability]]
* [[Testimonial Evidence#Witnesses Refusing to Testify]]