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Can I get a witness?

For a lawyer, coming to court on a trial date is kind of like an athlete coming to the field on game day. Think of NBA players walking down a hallway, their earbuds in, focusing on the game ahead. While my pre-game rituals might also include driving to court in snowy conditions and stopping to refill windshield fluid in order to actually see the road, the mixed sense of preparation, calm and anticipation is the same. However, once I get to court, things often don’t run smoothly and this focus can be interrupted by a number of last-minute issues. 

I showed up to court for a trial recently to find that the Crown’s main witness, the complainant, was not there to testify. This situation makes for a big problem for the Crown: without this witness, they don’t have the evidence that they need to prove their case.

This is also a question that I get fairly often from clients in domestic assault situations. What happens if the complainant doesn’t show up to court? Do the charges get dropped? What happens?

The Crown has a few options in this scenario. They can abandon the prosecution and withdraw the charge, or they can ask to adjourn the trial to get the witness there. Another option is to ask the judge for a material witness warrant, which is what happened in my case.

A material witness warrant is a warrant issued by a judge under s. 698 of the Criminal Code. It gives the police the authority to arrest a person and bring them to court if they are likely to give material evidence and either will not attend in response to a subpoena or is evading service of a subpoena. (A subpoena is a document that compels someone to come to court.) If the Crown is saying that the witness is trying to avoid the subpoena, then they have to establish the efforts that were made by the police to locate and serve the person.

In a way, it is a pretty drastic measure to get someone to court. Imagine being at home and having the police come to arrest you and bring you to court? On the other hand, the availability of a material witness warrant sends a strong message to witnesses that you cannot simply ignore a subpoena or try to avoid having it served. The mechanism still allows for the judge to make a decision as to whether the warrant should be issued, on the basis of whether the evidence is important enough and whether they are refusing to attend. It also balances the rights of the accused person, who has the right to have their trial without unreasonable delays.

In the end, after hearing evidence on the Crown’s application for a material witness warrant, the judge denied the request and refused to adjourn the trial. The charges were withdrawn, which is a great outcome for the client. My pre-game focus will have to wait until the next game day.

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