Being Subpoenaed as a Witness: What It Means
A subpoena is a court order, not an invitation. Ignoring one can result in a warrant for your arrest under section 705, even though you are not accused of anything.
A subpoena requires a person likely to give material evidence to attend court and testify. Section 698 authorises it, and section 705 allows the court to issue a warrant for the arrest of a person served with a subpoena who does not attend or does not remain in attendance.
What Is a Subpoena?
Section 698(1) provides that where a person is likely to give material evidence in a proceeding, a subpoena may be issued requiring that person to attend to give evidence.
Section 698(2) allows a warrant to be issued instead where it is made to appear that the person will not attend in response to a subpoena.
Being subpoenaed says nothing about whether you did anything wrong. Witnesses, complainants, bystanders, professionals and record-holders are all routinely subpoenaed.
What Happens If You Ignore It?
Section 705(1) allows the court to issue a warrant for the arrest of a person who has been served with a subpoena and does not attend or does not remain in attendance, where it is established that the subpoena was properly served and that the person is likely to give material evidence.
That is a warrant for the arrest of a witness. It is not a theoretical power.
Leaving court before you are released is the same problem as not attending. Once you have attended, you remain under the subpoena until the court excuses you — waiting in the hallway all day and going home is not compliance.
Do You Have to Answer Every Question?
Generally yes, once you are sworn. A witness who refuses to answer a proper question can be held in contempt.
Section 13 of the Charter provides that a witness who testifies has the right not to have incriminating evidence so given used against them in any other proceedings, except in a prosecution for perjury or for giving contradictory evidence.
That protection is significant but it is not the same as a right to refuse to answer. If you believe your evidence may expose you to liability, get your own legal advice before the date — not from the lawyer who subpoenaed you, whose interests are not yours.
Certain privileges do permit a witness to decline, most obviously solicitor-client privilege. Those are narrow and should be raised properly rather than asserted from the witness box.
What If the Date Does Not Work?
- Contact the party who subpoenaed you as early as possible — the Crown's office or defence counsel, whichever is named.
- Do not simply not attend. An unexplained absence is what produces a warrant.
- Ask whether your evidence can be agreed, or given by affidavit or remotely, which is sometimes possible.
- If you are a complainant in a criminal matter, the Victim/Witness Assistance Program at the courthouse can help.
- Keep the subpoena. It records what you are required to attend for and when.
Courts are generally accommodating about genuine scheduling problems raised in advance. They are not accommodating about absences discovered on the morning of trial, when a jury and a courtroom are waiting.
Our courthouse guides list the relevant contacts for Brampton, Milton, Orangeville and Toronto.
Frequently asked questions
Browse every answer on this siteNo. Section 705 allows the court to issue a warrant for the arrest of a person who was properly served and does not attend or does not remain in attendance.
No. A subpoena is issued to a person likely to give material evidence. Witnesses, complainants, bystanders and record-holders are all routinely subpoenaed.
Generally yes once sworn, and refusing a proper question can lead to contempt. Section 13 of the Charter protects against incriminating evidence being used against you in other proceedings, but that is not a right to refuse to answer.
Only once the court releases you from the subpoena. Attending and then leaving before being excused is treated the same as not attending.
Contact the party who subpoenaed you as early as possible. Genuine scheduling problems raised in advance are usually accommodated; unexplained absences are not.
Facing This Charge Yourself?
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Other Parts of the Law Explained
This page is general information about Canadian law, not legal advice, and reading it does not create a lawyer-client relationship. Statutes are amended; provisions are described as at the consolidation reviewed when this page was written.
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