Compelling Attendance of Witnesses

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General Principles

Part XXII of the Code (s. 697 to 715.2) governs the procuring of attendance for witnesses. Section 697 states:

Application
697 Except where section 527 [Procuring attendance of a prisoner] applies, this Part applies where a person is required to attend to give evidence in a proceeding to which this Act applies.
R.S., c. C-34, s. 625.

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A competent witness is generally a compellable witness. 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.

Copies of Summons, Warrants or Subpoena
Under s. 708.1, faxed copies of the warrant, subpoena, or summons has the same value as an original.

Electronically transmitted copies
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.
1997, c. 18, s. 101.

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Youth Court Justice

Issue of subpoena
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.
Service of subpoena
(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.

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Witness Subpoenas

Section 698 allows the ordering of a subpoena requiring a witness to attend court:

Subpoena
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.
Warrant in Form 17
(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.
Subpoena issued first
(3) Except where paragraph (2)(a) applies, a warrant in Form 17 shall not be issued unless a subpoena has first been issued.
R.S., 1985, c. C-46, s. 698; R.S., 1985, c. 27 (1st Supp.), s. 203.

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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.

Where the subpoena is not valid it may be quashed by a superior court judge.

Application Process

A judge or justice issuing a subpoena must take at least some steps or some "examination" in order "to satisfy himself that the person is likely to give material evidence".There should be "some case-specific inquiry" on the part of the issuer. It should not be “issued for the asking”. Dykstra v Greensword, 2016 ONSC 8211 (CanLII), per Durno J at para 90 </ref> However, in practice judges and justices will regularly issue subpoenas without making inquiry of any evidence.

In most cases, submissions of counsel will be sufficient for the judge to be satisfied with threshold requirements for a subpoena.There should not be a requirement for affidavits or oral evidence. To do otherwise risks bogging down the system.

Discretionary Decision
Whether to issue a subpoena for a witness is an exercise in statutory discretion.

A judge maintains discretion to excuse an expert witness who is under a valid subpoena.

Sealing
It is generally recommended that any material filed on an application for a subpoena should be sealed.

Power to Issue Witness Subpoenas

Who may issue
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.
Order of judge
(2) If a person is required to attend to give evidence before a provincial court judge acting under Part XIX [Indictable Offences-Trial Without a Jury] or a summary conviction court under Part XXVII [summary conviction proceedings] 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.

Order of judge
(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.
...
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.

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The court before which the witness may testify will issue has the authority to issue a subpoena.

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)).

Form of the Subpoena

The subpoena must be under the seal of the court with the signature of either the judge or his clerk. It should also have the signature of the judge. The subpoena should comply with Form 16.

Sexual Offences
Sexual offences referred to s. 278.2(1) [restrictions on disclosure of records for certain sexual offences] must comply with s. 699(5.1). The subpoena should conform to Form 16.1

699.
...
Seal
(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.
Signature
(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.
Sexual offences
(5.1) Notwithstanding anything in subsections (1) to (5), in the case of an offence referred to in subsection 278.2(1) [restrictions on disclosure of records for certain sexual offences], 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.
Form of subpoena
(6) Subject to subsection (7), a subpoena issued under this Part may be in Form 16.
Form of subpoena in sexual offences
(7) In the case of an offence referred to in subsection 278.2(1) [restrictions on disclosure of records for certain sexual offences], a subpoena requiring a witness to bring anything to the court shall be in Form 16.1.
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.

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Contents

In Person Attendance

Contents of subpoena
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.
Witness to appear and remain
(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.
R.S., 1985, c. C-46, s. 700; R.S., 1985, c. 27 (1st Supp.), ss. 148, 203.

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Video Link Attendance

Video links, etc.
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.
Sections of Criminal Code
(2) Sections 699, 700 and 701 to 703.2 apply, with any modifications that the circumstances require, to a subpoena issued under this section.
1999, c. 18, s. 94.

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Service

Service
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.
Personal service
(2) A subpoena that is issued pursuant to paragraph 699(2)(b) shall be served personally on the person to whom it is directed.
(3) [Repealed, 2008, c. 18, s. 32]
R.S., 1985, c. C-46, s. 701; 1994, c. 44, s. 70; 2008, c. 18, s. 32.

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Service in accordance with provincial laws
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.
1997, c. 18, s. 100; 2008, c. 18, s. 33.

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Subpoena effective throughout Canada
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.
Subpoena effective throughout province
(2) A subpoena that is issued by a justice has effect anywhere in the province in which it is issued.
R.S., 1985, c. C-46, s. 702; 1994, c. 44, s. 71.

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Warrant effective throughout Canada
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.
Warrant effective in a province
(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.
R.S., 1985, c. C-46, s. 703; R.S., 1985, c. 27 (1st Supp.), s. 149; 2007, c. 22, s. 22.

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Summons effective throughout Canada
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.
R.S., 1985, c. 27 (1st Supp.), s. 149.

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Service of process on an organization
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.

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Warrant of Arrest

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:

1. the person is "likely to give material evidence"
2. 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.

A conclusion that the party is evading service must be "adequately support by the facts".

The decision to issue a warrant under s. 698 is at the discretion of the judge and is not reviewable on certiorari.

Quashing a Subpoena

Jurisdiction
Only a superior court justice has the power to quash a subpoena.

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.

Calling Opposing Counsel
It is only in "exceptional circumstances that Crown or defence counsel will be permitted to call opposing counsel as a witness".

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".

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."

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

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

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

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

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

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".

Parliamentary 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.

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.

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. The same goes for suspects, charged or uncharged.

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.

Lawyers

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.

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

Judges

• see Judicial Immunity

Missing Witnesses

Warrant for absconding witness
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.
Endorsement of warrant
(2) Section 528 applies, with such modifications as the circumstances require, to a warrant issued under this section.
Copy of information
(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.
R.S., 1985, c. C-46, s. 704; R.S., 1985, c. 27 (1st Supp.), s. 203.

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Whether to issue a warrant under s. 704 is at the discretion of the judge and cannot be reviewed by certiorari.

Material Witness Warrant

Section 705 gives authority of a court to issue a warrant of arrest for a witness who fails to attend on a subpoena.

Warrant when witness does not attend
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
(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.
Warrant effective throughout Canada
(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.
R.S., 1985, c. C-46, s. 705; R.S., 1985, c. 27 (1st Supp.), s. 203.

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A judge has the inherent authority to order any person present in court to be compelled to testify where:

1. the person has relevant evidence to give
2. 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.

Where a witness fails to attend, the judge has the discretion to order a witness warrant where he is satisfied that:

1. proper attempts to serve the witness have been made;
2. the witness is a material witness.

Detaining Missing Witness

Order where witness arrested under warrant
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.

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Maximum period for detention of witness
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.
Application by witness to judge
(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.
Review of detention
(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.

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Finding of Contempt

A person who is required and fails to attend or remain in attendance at court in order to give evidence is guilty of contempt, which is addressed in s. 708 of the Code.

See Also

• Competence and Compellability
• Testimonial Evidence#Witnesses Refusing to Testify