As a frequent reader of our blog posts, you may sometimes encounter unfamiliar legal terms. For example, when we discuss how Ontario criminal courts determine guilt, we typically reference the terms “mens rea” and “actus reus,” which are Latin for “guilty mind” and “guilty act.” Canadian law uses such Latin-originated terms because our legal system is based on English Common Law, which evolved from ancient Roman law.
In this blog posting, Mass Tsang’s Greater Toronto Area criminal defence team will review another Latin-originated legal term, “subpoena.” While you may never have been served one, you’ve undoubtedly heard the term referenced in TV or film courtroom dramas and may even know what purpose they serve. Whatever the extent of your familiarity with this legal device, read on to learn how criminal courts use subpoenas in Toronto and throughout Canada.
In Canadian criminal law, a subpoena is a court order that compels a person to testify or present evidence in a court proceeding. “Subpoena” is derived from the Latin legal term meaning “under penalty,” and in today’s usage means comply with this court order or face punishment. Thus, if you’re served a subpoena in Toronto and, for some reason, are reluctant to comply, you should probably consult with a skilled lawyer before ignoring it.
Courts use subpoenas to ensure that all relevant evidence is presented at trial. A court will issue a subpoena upon a successful application by either Crown prosecutors or the defence. To secure a subpoena, the petitioning lawyer must present information to the judge that explains the relevance of any testimony or evidence that the subpoenaed witness may be able to provide. Such testimony or evidence must be material to the case, and lawyers cannot try to use a subpoena as a fishing expedition to uncover previously unknown evidence. In addition to their use in trials, subpoenas can be used to compel witness testimony or evidence disclosure in preliminary inquiries, pre-trial motions, and sentencing hearings.
Canada’s legal system generally relies on three kinds of subpoenas. They are:
Section 700.1 (1) of Canada’s Criminal Code also allows the issuance of a subpoena to compel a witness to present evidence remotely via a video link. Perhaps this should be referred to as “subpoena ad video colloquium.”
Because a subpoena is a demand rather than a request, you must comply with its terms if a Toronto court serves you with one. This means attending the scheduled court proceedings as presented on the subpoena form and staying until permission is given by the presiding judge. As the timing of court proceedings does not flow with a set schedule, you may not be called on the scheduled day to present your evidence. When this happens, the presiding judge will typically bind you over for the next scheduled court hearing, which requires your continued appearance. Whatever the case, you are lawfully required to attend the court proceedings until the judge releases you from the subpoena.
A subpoena duces tecum may not require your physical presence at a proceeding but instead may order you to submit the requested evidence to the legal party that issued the subpoena. This will usually be conveyed by the subpoena’s text, which will also include a deadline for compliance.
If you fail to comply with a subpoena, a judge has two options under the Criminal Code to compel your compliance. Under Section 705 (1), a judge can issue a material witness warrant for your arrest. This allows police to arrest and detain you until you appear before the judge presiding over the case. Section 706 of the Code gives the judge the power to hold you in custody until you’ve presented the testimony or evidence in court or release you with or without bail conditions, as they see fit.
The judge can also charge you with contempt of court under Section 708(1) of the Code. If summarily convicted of the offence, the judge can sentence you to a $100 fine and/or a 90-day jail term.
Once issued, a subpoena can be challenged and overturned if successfully challenged by either the Crown or the defence. In general, the only basis for a successful challenge to a subpoena is if the opposing lawyer can show that the witness will not likely provide evidence relevant to the case. In some cases, a witness themself can mount a challenge, but again, based on showing that the evidence will not be material to the case. Legal challenges to subpoenas are heard under the superior court’s jurisdiction. However, provincial court judges have some authority under Section 700 (2) of the Code to excuse a witness from testifying under an issued subpoena.
If you’re defending yourself from criminal charges and need to compel a witness to provide exonerating testimony or evidence, you should probably seek assistance from a skilled criminal defence lawyer. With detailed knowledge of the law and court procedures, a defence lawyer knows how to successfully encourage a judge to issue a relevant subpoena for a reluctant witness.
Likewise, if you’re a reluctant witness served with a subpoena, you may want to secure legal advice from a lawyer on how to effectively convince the trial judge to excuse you from testifying or challenge it in superior court.
With more than 30 years of combined experience, our legal team has successfully defended thousands of clients in criminal cases and has a stellar reputation for criminal defence expertise in the Greater Toronto Area. For all your criminal defence needs, schedule your free consultation by contacting us today.
