Is it a Crime to Fail to Attend Court After Being Subpoenaed?

What should witnesses expect in court?

• The role of witnesses is to tell the court what they know in relation to the alleged criminal matter that is before the court.
• They will be likely be questioned by both the Crown and the defence lawyer. The testimony they give is a type of evidence.

How is someone ordered to appear in court as a witness

• Usually the Crown prosecutor or the defence lawyer will instruct a witness to come to court by issuing a subpoena.
• A subpoena is a piece of paper that orders a person to come to court on a certain day to speak about certain events relating to the trial.

Section 698 of the Criminal Code pertains to subpoenas:

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.

• If you receive a subpoena to go to court, you must attend.
• Failing to attend court after being served a subpoena can result in the witness’ arrest.
• A warrant may be issued for their arrest

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 S. 705. 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.

What is Contempt of Court?

• Once in court if the witness refuses to answer the questions the Crown or the defence lawyer has for them, the judge may find that they are in contempt of court and charge them with the criminal offence of contempt of court found in s.708.1 of the Criminal Code.

Contempt
708. (1) A person who, being required by law to attend or remain in attendance for the purpose of giving evidence, fails, without lawful excuse, to attend or remain in attendance accordingly is guilty of contempt of court.
Punishment
(2) A court, judge, justice or provincial court judge may deal summarily with a person who is guilty of contempt of court under this section and that person is liable to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding ninety days or to both, and may be ordered to pay the costs that are incident to the service of any process under this Part and to his detention, if any.
Form
(3) A conviction under this section may be in Form 38 and a warrant of committal in respect of a conviction under this section may be in Form 25.
R.S., 1985, c. C-46, s. 708; R.S., 1985, c. 27 (1st Supp.), s. 203.

• Contempt of court is a criminal offence, if found guilty of this offence it is punishable by a custodial sentence for up-to 90 days and a potential fine of up-to $100.
• If you have been charged with contempt of court or any other criminal offence contact Kostman and Pyzer, Barristers today!