What to Do If You’ve Been Given a Subpoena in Ontario

Many people have heard of subpoenas only from movies involving criminal matters and never consider that one day, they may be subpoenaed to appear in court.

However, many individuals across Canada get subpoenaed for all types of legal cases. They are served with a subpoena document either by law enforcement or a private investigator saying that they must appear in court. For many, it will be their first court appearance, which can become stressful.

However, there are several different types of subpoenas, not all of which require a physical appearance in court. Seeking legal assistance will help to clarify what’s expected of you, what happens in court, and whether you can challenge a subpoena in Ottawa.

“Subpoena” is a Latin term that means “under penalty”. It is used in Canadian criminal law (as well as civil law) to compel a person to testify or present evidence in a court proceeding. This applies in cases ranging from minor offences like traffic violations to those that lead to life imprisonment.

Generally, the court wants to ensure that all relevant material evidence has been received and considered before it makes a decision in a trial or during a preliminary inquiry, pre-trial motion or sentencing hearing.

The subpoena is a demand rather than a request. Refusal to appear in court and give evidence can result in harsh penalties including incarceration—and nobody should refuse a subpoena without taking legal advice first.

Subpoenas are usually issued by the court after an application is submitted by the Crown prosecutors or the defence. The petitioning lawyer presents information confirming to the judge that the testimony/evidence from the subpoenaed witness is relevant and material to the case. Lawyers cannot use the subpoena system simply to try to uncover previously unknown evidence during cross-examination.

The judge decides whether to issue a subpoena—and what type. If an order is issued, the subpoenaed witness will be expected to appear in court on the designated day/time (the defence or Prosecution will call him/her as a witness) or present evidence in another way.

What are the different types of subpoenas?

In Canada, three types of subpoenas are possible in criminal cases:

1. Subpoena ad testificandum: when a witness is ordered to appear in a court proceeding to give oral evidence under oath.
2. Subpoena duces tecum: when a witness is ordered to provide the court with documents or other physical evidence relevant to the case.
3. Subpoena for deposition: when a witness is ordered to be questioned under oath before trial (often because the witness is unable to attend court).

Under the Criminal Code, evidence can be provided in person, in writing, via a pre-recorded deposition or by video link, depending on the type of subpoena ordered by the court.

What are your obligations under a subpoena?

If you are served with a subpoena ad testificandum in Ottawa, you are compelled to comply with its terms. You will be expected to:

• Attend the scheduled court proceedings as presented on the subpoena form
• Remain in court until permission to leave is granted by the presiding judge
• Present evidence and tell the truth when directed to do so (bearing in mind that there are no Fifth Amendment rights like in the U.S.)
• Attend the next hearing (sometimes the following day) if the court’s schedule does not allow you to provide testimony on the scheduled day
• Miss work if necessary to comply with the order

The other types of subpoenas described above do not require a witness’s physical presence in court but usually include deadlines by which date the witness must comply with the demands of the court.

Failure to comply with a subpoena in Ottawa is not a decision you should take without first seeking legal advice.

Under the terms of the Criminal Code, a judge will do one of two things:

1. Issue a material witness warrant for your arrest, empowering the police to arrest and detain you until you appear before the judge presiding over the case (or release you with or without bail).
2. Charge you with contempt of court, which can lead to a summary conviction and a $100 fine and/or a 90-day jail term.

Neither of these is a good option for a subpoenaed witness so as soon as you are served with the subpoena, it is best to discuss your rights, responsibilities, and legal options with your lawyer.

A subpoena can only be challenged legally if the Crown or the defence submits a formal challenge through court proceedings. The only grounds for a challenge is usually that the witness is unlikely to provide evidence relevant to the case.

The subpoenaed witness rarely challenges the order to appear in Ottawa unless they are convinced that their evidence is not material to the case. Generally, legal challenges must go to the superior court but provincial court judges may sometimes be able to excuse a witness from testifying under an issued subpoena.

Being subpoenaed can be a stressful experience as, by definition, the judge is saying that your evidence is material to the case and you must comply with the order.

Generally, it’s best to comply unless you have retained an attorney who is taking legal action to relieve your appearance.

Anyone served with a subpoena can reach out to the defence counsel or the Crown prosecution before their appearance to clarify what they will be expected to do. Alternatively, your lawyer can prime you for what to expect and prepare you for your appearance. This can remove much of the potential stress from the experience.