Subpoena
A subpoena is a court order requiring a person to attend court at a specified time and place to testify as a witness, and, in some configurations, to bring specified documents. Subpoenas are issued under section 698 of the Criminal Code and are routine in criminal trials. Both Crown and defence can apply for and serve subpoenas. Failure to comply with a subpoena is contempt of court and can lead to arrest under a material witness warrant.
Two main forms
Canadian practice distinguishes between: ordinary subpoenas (subpoena ad testificandum) — requiring attendance to give oral testimony; and subpoenas duces tecum — requiring attendance and the production of specified documents or things. Most subpoenas in criminal practice are ordinary subpoenas; duces tecum subpoenas are more common in fraud, regulatory, and document-heavy prosecutions.
How subpoenas are issued and served
A subpoena is issued by a justice on application by the party calling the witness. The application requires identification of the witness, the case, and a brief statement of the materiality of the witness's testimony. Once issued, the subpoena is served personally on the witness, typically with travel money or undertaking to pay. Service must be effective — improperly served subpoenas can be set aside on application.
Compliance and consequences
Once properly served, a subpoena must be complied with. The witness must attend on the date specified, remain available throughout the trial day (unless excused), and answer questions under oath or affirmation. Failure to attend can lead to: a material witness warrant under section 705 of the Code, authorizing arrest; contempt-of-court proceedings; and, in extreme cases, criminal charges under section 705.1.
Witness rights
Subpoenaed witnesses retain certain rights: the right to claim privilege over specific communications (solicitor-client privilege, spousal privilege, informer privilege); the right to refuse self-incrimination (with section 5 of the Canada Evidence Act and section 13 of the Charter offering use and derivative-use immunity); the right to reasonable travel funds; the right to legal advice. Witnesses who are also suspects or accused in related matters may seek their own counsel before testifying.
Subpoenas in defence practice
Defence counsel routinely subpoena witnesses, including: alibi witnesses; character witnesses; expert witnesses; persons who saw or heard relevant events; and persons whose evidence undermines the Crown's case. Strategic subpoenaing — and effective preparation of subpoenaed witnesses — is part of trial planning. Mass Tsang's criminal lawyers handle subpoena practice as part of comprehensive trial preparation.
Related glossary terms
