Material Witness Warrants under Section 705 of Criminal Code

Section 705 of the Criminal Code establishes and governs the court’s power to issue a material witness warrant to arrest an individual who has been properly served with a subpoena but does not attend court.

 In accordance with this provision, the trial judge has discretion to issue a material witness warrant if two pre-conditions have been satisfied:  first, that subpoenas have been properly served on the prospective witnesses, and second, that the person is likely to give material evidence.

CRIMINAL CODE
Section 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.

(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.

(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.


 The decision to grant or refuse a material witness warrant is an exercise of the trial judge’s discretion that should not be lightly overturned by an appellate court. It is a question of mixed fact and law.

See R. v. Scott, 1990 CanLII 27 (SCC),  [1990] 3 S.C.R. 979, at para. 55.


Is the person for whom the warrant is sought “likely to give material evidence”?

 Where counsel makes little or no attempt to demonstrate that a witness’s testimony will be material, it is obvious that courts should not issue a material witness warrant.

See R. v. Kinzie, [1956] O.W.N. 896 (Ont. C.A.); R. v. Darville (1956), 116 C.C.C. 113 (S.C.C.); Foley v. Gares (1989), 1989 CanLII 5134 (SK CA), 53 C.C.C. (3d) 82 (Sask. C.A.); and R. v. Singh (1990), 1990 CanLII 5684 (AB QB), 108 A.R. 233 (Alta. Q.B.).

The Supreme Court of Canada in R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979 (while considering section 698 of the Criminal Code, which is similar to section 705 but which deals with circumstances wherein a person is not likely to appear in response to a subpoena) noted the following:

The material arrest warrant provision is clearly an exceptional remedy.  The consequences of the issuance of a warrant are far more serious for the witness than is the service of a subpoena.  The very liberty of the subject is involved.  It is one thing to attend court in answer to a subpoena.  The subpoenaed witness may feel compelled to attend but attends by an act of his or her own will.  It is quite another to be picked up by the police and escorted to the courtroom.  The issuance of the warrant should therefore be subject to careful consideration when an application is made to the trial judge for its issuance.  It is appropriate and indeed essential that the trial judge undertake a new inquiry into the materiality of the potential evidence to determine whether or not the warrant should be issued.

 While the Court must be convinced that a witness is likely to provide material evidence, counsel does not need to prove that a witness will testify as anticipated.  The standard is one of a balance of probabilities

R. v. Pereira et al, 2006 BCSC 1720 (CanLII).

 The justice may choose not to insist upon evidence on oath but he may want to conduct an oral examination, if only a cursory one, of some person who has knowledge of the circumstances. The extent of such an examination will depend on the circumstances of each situation.

Foley v. Gares (1989), 1989 CanLII 5134 (SK CA), 53 C.C.C. (3d) 82 (Sask. C.A.) - the Court discussing the standard of inquiry required for section 698 warrants.

 Courts must balance individual freedoms against the needs of justice and the justice system, aware of the fact that these applications are almost invariably heard without response from those whose liberties are directly affected.

R. v. Pereira et al, 2006 BCSC 1720 (CanLII).


Comments

Post a Comment

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more