View source for Quashing a Subpoena

{{Currency|April 2024}}
{{LevelZero}}{{HeaderTestimony}}
==General Principles==
{{seealso|Writ of Certiorari|Compelling Attendance of Witnesses}}
; Superior Court Jurisdiction
Only a superior court justice has the power to quash a subpoena.<ref>
{{CanLIIRP|Ben Aïssa|gvms4|2016 QCCQ 2830 (CanLII)|QJ 15685}}{{perQCCQ|Mascia J}}{{atsL|gvms4|24| to 29}} - a preliminary inquiry judge has no power to rule on request to quash<br>
{{CanLIIRx|Rashwan|1j7b0|2004 CanLII 41169 (ON SC)}}{{perONSC|Spiegel J}}<br>
{{CanLIIRP|Primeau|1frjx|1995 CanLII 143 (SCC)|[1995] 2 SCR 60}}{{perSCC-H|Sopinka and Iacobucci JJ}} re application for a writ of prohibition and remedy under s. 24(1) of Charter<br>
</ref>
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.<Ref>
see [[Writ of Certiorari]]</ref>

; 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.<ref>
{{supra1|Ben Aïssa}}{{atsL|gvms4|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...")<br>
{{CanLIIRP|Maleki|1pwgv|2006 ONCJ 401 (CanLII)|1 CTC 212}}{{perONCJ|Lane J}}{{atL|1pwgv|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.” ")<br>
{{CanLIIRPC|Re. Chase and the Queen|23ds9|1982 CanLII 304 (BC SC)|1 CCC (3d) 188}}{{perBCSC|MacKay J}}
</ref>

Section 700(2) states:
{{quotation2|
700 {{ellipsis}}
<br>
; Witness to appear and remain
(2) A person who is served with a subpoena issued under this Part {{AnnSec|Part XXII}} 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., {{LegHistory80s|1985, c. C-46}}, s. 700; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, ss. 148, 203.
{{Annotation}}
|{{CCCSec2|700}}
|{{NoteUp|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.<ref>
{{CanLIIRP|Maleki|1pwgv|2006 ONCJ 401 (CanLII)|1 CTC 212}}{{perONCJ|Lane J}}<Br>
{{CanLIIR|MacKenzie, Guptill|k40kv|2024 NSPC 24 (CanLII)}}{{perNSPC|Hartlen J}}<br>
</ref>

; General Test
The general test quash a subpoena consist of:<ref>
{{CanLIIRC|Canada (Citizenship and Immigration) v. Mahjoub|2dq0p|2010 FC 1193 (CanLII)}}{{AtL|2dq0p|7}}
</ref>
* 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.<Ref>
Mahjoub at para 9<br>
contra {{CanLIIRC|Wal-Mart Canada Corp. v. United Food and Commercial Workers, Local 1400|1jb22|2004 SKCA 154 (CanLII)}} at para 35
</ref>

; Calling Opposing Counsel
It is only in "exceptional circumstances that Crown or defence counsel will be permitted to call opposing counsel as a witness."<ref>
{{CanLIIRP|Elliott|1g18c|2003 CanLII 24447 (ON CA)|181 CCC (3d) 118}}{{TheCourtONCA}}{{atL|1g18c|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. ...")<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>
{{ibid1|Elliott}}{{atL|1g18c|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>
{{ibid1|Elliott}}{{atL|1g18c|114}}<br>
{{CanLIIRP|Stupp, Winthrope and Manus|g1f73|1982 CanLII 1897 (ON SC)|36 OR (2d) 206 at 219 (Ont. H.C.J.)}}{{perONSC|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")<br>
</ref>

The reason for this standard is to avoid the mischief of trials being interrupted at random for fishing expeditions.<ref>
{{ibid1|Stupp}} ("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>
{{supra1|Elliott}}{{atL|1g18c|114}}<br>
</ref>

; Crown Counsel
Crown counsel can seek to quash a subpeona on the basis that it amounts to a "fishing expedition."<ref>
{{CanLIIRP|Harris|6k4j|1994 CanLII 2986 (ON CA)|93 CCC (3d) 478}}{{TheCourtONCA}}
</ref>

A subpoena for a Crown counsel may only be permitted where "the evidence cannot be obtained in any other way."<ref>
{{CanLIIR-N|Regan|, [1996] NSJ No 625}}<br>
{{supra1|Harris}}<br>
{{CanLIIRP|Gervais|1pdgp|1992 CanLII 3144 (QC CA)|75 CCC (3d) 61}}{{TheCourt}}<br>
{{supra1|Black}}<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>
{{supra1|Regan}} (1996)
</ref>

Subpoena power should be used cautiously to avoid frustrating the role of counsel by making them a witness in a case.<ref>
{{CanLIIR-N|Sungalia|, [1992] OJ No 3718}}
</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>
{{CanLIIRP|Kim|2f3nv|2010 ABQB 810 (CanLII)|507 AR 81}}{{perABQB|Manderscheid J}}
</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>
{{CanLIIRPC|Samson Indian Nation and Band v Canada|g9q|2003 FC 975 (CanLII)|[2004] 1 FCR 556}}, ''per'' Teitelbaum J
</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>
{{CanLIIRP|Amway Corp|1ft8d|1989 CanLII 107 (SCC)|[1989] 1 SCR 21}}{{perSCC-H|Sopinka J}} (" 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>
{{CanLIIRP|Primeau|1frjx|1995 CanLII 143 (SCC)|[1995] 2 SCR 60}}{{perSCC-H|Sopinka and Iacobucci JJ}}</ref>
The same goes for suspects, charged or uncharged.<ref>
{{CanLIIRP|Jobin|1frk0|1995 CanLII 144 (SCC)|[1995] 2 SCR 78}}{{perSCC-H|Sopinka and Iacobucci JJ}}</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>
{{CanLIIRP|N.M. Paterson & Sons Ltd.|1z494|1980 CanLII 227 (SCC)|[1980] 2 SCR 679}}{{perSCC|Chouinard J}}<br>
{{supra1|Amway Corp}}<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>
{{CanLIIRP|1504413 Ontario Limited|1wgkq|2008 ONCA 253 (CanLII)|230 CCC (3d) 193}}{{perONCA|Armstrong JA}}{{atL|1wgkq|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]]