When I’m conducting a trial or preliminary hearing, I make sure to have the Crown prosecutor disclose which witnesses they’ve called to court. This gives defence a chance to organize its case according to the witnesses that are showing up to give evidence.
Witnesses are called to court using a document called a Subpoena. A Subpoena is a court order that requires a person to attend court on a certain day and time. Subpoena’s are prepared by the defence or prosecution, filed with court, and then served on the witnesses at some point ahead of the court hearing.
If a witness is served with a subpoena and does not appear in court on the specified date, the Crown prosecutor has a number of options available to them. If the Crown requires the witness to prove their case, they can ask that the matter be adjourned to another date to see if they can make contact. The prosecutor can also ask that a warrant be issued for the arrest of the witness for failing to appear in court. The final option is for the prosecution to simply stay or drop the charges.
If you are served with a subpoena, you should attend court on the specified date and time. If you are unable to attend court, you should contact the lawyer that gave you the subpoena and discuss the matter with them.
The leading case for adjournments of this nature is called Darville v. the Queen (1956), 116 CCC 113. The legal test from Darville is as follows:
- In order to adjourn a trial matter on the grounds of missing witnesses the applicant must establish:
- that the absent witnesses are material in the case;
- that the party applying has not been guilty of laches or neglect in arranging for the attendance of the witnesses; and
- that there is a reasonable expectation that the witnesses will attend court on the date sought by the party applying for the adjournment.
If the lawyer is unable to find the witness to subpoena them, the Judge on the hearing date may not allow the lawyer to adjourn the matter to find the witness.
If a witness does not show up at your trial, the first thing your lawyer will do is find out if that witness was properly served a subpoena. If the witness has not been served, your lawyer can opposed a Crown’s adjournment request. According the the Darville test, the Judge should not let them adjourn the matter.
If the Crown has properly served the witnesses with subpoenas, then the Judge will usually allow the adjournment and the trial or hearing will be rescheduled. You will have to attend court on another day in the future to see if the witnesses will appear.
If you’ve been served a subpoena and don’t know what to do, you should contact a lawyer to go over your options.
*note: the information on this page is not legal advice. You should consult a lawyer for legal advice. The law is constantly changing so the information on this page may not be up-to-date.