2012-04-01 - Quashing a Subpoena:  The Governing Principles

Arghavan Gerami - B.A. (Hons.), M.A., J.D., LL.M.

**Please note that the information provided on this page is for general information purposes only and not legal advice.

1.    Section 698(1) of the Code provides:

“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.”

2.    Although the Criminal Code contains no such distinction, there are, in fact, two types of subpoena (Baltovich, supra, para 57):

• i. subpoena ad testificandum; and
• ii. subpoena duces tecum.

3.    While section 698(1) sets the threshold for issuance of the subpoena (likely to give material evidence), it offers no assistance about the manner in which the party requesting the subpoena is to satisfy that threshold for its issuance (R v. Baltovich [2007] O.J. No. 3506, para 58 [hereinafter Baltovich]).

4.    Subpoenas issued under Part XXII of the Criminal Code may be modified (Form 16) to the specific circumstances of each case (See, Criminal Code, sections 699(6) and 849(1)).

5.    Section 698 (1) uses the permissive "may" and not the imperative "shall". As such, satisfaction of the statutory threshold does not guarantee issuance of the subpoena (Baltovich, supra, para 59).

6.    In R v. Coote [2009] O.J. No. 1595 the Court explained the following concerning a motion to quash (para 14):

(1) An issued subpoena is a presumptively valid court order.

(2) This is not a trial court. On a motion to quash, including certiorari, this Court determines whether the justice of the peace issuing the subpoena committed jurisdictional error. Was there evidence upon which the issuing court could exercise its judicial discretion to find that the prospective witness was likely to have material evidence to give in a particular proceeding?

(3) The determination as to whether a subpoena should issue is a judicial act (R. v. Nero, [2007] O.J. No. 1908 (S.C.J.) at para. 2) necessitating inquiry by the justice of the peace.

(4) An applicant for a subpoena must demonstrate, by laying "an evidentiary foundation" (R. v. Elliott (2004), 181 C.C.C. (3d) 118 (Ont. C.A.) at para. 116), that the potential witness is likely, or probably, to have evidence material to the issues in the relevant proceeding: R. v. Harris (1994), 93 C.C.C. (3d) 478 (Ont. C.A.) at para. 5. In other words, it is insufficient to "merely allege that the witness can give material evidence": Harris, at para. 4 (adopting Re Stupp et al. and the Queen (1982), 70 C.C.C. (2d) 107 (Ont. H.C.) at 121) - neither a "reasonable hope" nor "a possibility is ... enough to justify compelling any person to testify": R. v. Colbourne (2001), 157 C.C.C. (3d) 273 (Ont. C.A.) at para. 50, 52.

(5) A justice of the peace considering issuance of a subpoena ought generally to receive an affidavit in support of the application or information provided orally: R. v. Brown, [1997] O.J. No. 6171 (Gen. Div.) at para. 13. "The justice may choose not to insist upon evidence on oath but he [or she] may want to conduct an oral examination": Foley v. Gares (1989), 53 C.C.C. (3d) 82 (Sask. C.A.) at 88. Without making any final determination as to whether the application for issuance of a subpoena is a court of record proceeding, there should nevertheless be "a proper record of the proceedings ... in a manner that facilitates a review of the entire process" should it prove necessary: Brown, at para. 13.

(6) While Crown and defence counsel are competent and compellable witnesses not immune from the compulsory process of subpoena, there exists a persuasive burden on the party seeking to force opposing counsel to enter the witness box and relinquish his or her role as counsel - the burden "is to show relevance and necessity": R. v. Sungalia, [1992] O.J. No. 3718 (Gen. Div.) at para. 1 (approved, Elliott, at para. 115-6). "[A] possibility is not enough to justify compelling any person to testify, much less compelling prosecuting counsel to give evidence": Colbourne, at para. 50. Such a step would be "exceptional" (Elliott, at para. 114) or "extraordinary": Colbourne, at para. 46.

7.     In R v. Baltovich [2007] O.J. No. 3506 the Court cited Foley et al. v. Gares (1989), 53 C.C.C. (3d) 82 (Sask. C.A.), pp. 87-88 [hereinafter ‘Foley’] where Bayda C.J.S. described the subpoena issuer’s obligation, and, by inference, of the party seeking the subpoena, in these terms:

Although it does not expressly so provide, s. 626 of the Code implicitly provides that before issuing the subpoena a justice (as well as a provincial court judge, a superior court judge or a clerk of the court, as the case may be) should satisfy himself or herself that the person required by the intended subpoena to attend the proceeding is "a person [who] is likely to give material evidence in [that] proceeding". The underlined portion of Form 11 quoted above confirms that the law contemplates that "it has been made to appear" to someone that the person is "likely to give material evidence". The most logical "someone" to whom it should be made to so appear is the issuer of the subpoena. The need for a statutory duty such as I find s. 626 implicitly casts on a subpoena issuer is reinforced by the importance which the law places upon the duty to testify and the commensurate seriousness with which the law treats subpoenas. The importance and seriousness are exemplified in the following excerpt from a judgment by Cory J. (in which he dissents in part but on matters not material to the present case) in Hickman v. Marshall (S.C.C.) [1989] 2 S.C.R. 796, ( October 5, 1989):

• Dean Wigmore in his treatise on Evidence in Trials at Common Law (McNaughton rev. 1961) 2192 pointed out that all privileges of exemption from the duty to testify are exceptional and ought to be discountenanced unless there is good reason plainly shown for their existence. He put it in this way at p. 73:
• The pettiness and personality of the individual trial disappears when we reflect that our duty to bear testimony runs not to the parties in that present cause, but to the community at large and forever.
• It follows ... that all privileges of exemption from this duty, are exception, and are therefore to be discountenanced. There must be good reason, plainly shown, for their existence. [Emphasis in original.]
• Although the statement was made in a context not particularly relevant to the present case, the words nevertheless are appropriate.

See also R. v. Gingras (1992), 71 C.C.C. (3d) 53, 57 (Alta. C.A.); R. v. Dickie (1996), 110 C.C.C. (3d) 573, 576 (Ont. Ct. Gen. Div.) per Hill J.; and R. v. Wood, [2006] O.J. No. 841 (Sup. Ct.) at [12], [13] and [19] per Bryant J.

8.    While the standard of inquiry by the judge issuing the subpoena is “not so high”, the Justice is nonetheless expected to examine the circumstances and he should exercise his discretion to issue the subpoena “judiciously if not judicially” (Foley, supra, para 64):

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. One thing however is certain. If he takes no steps whatsoever to satisfy himself that the person is likely to give material evidence, the justice is abusing his power and his discretion if he issues the subpoena. His decision to issue the subpoena may be set aside by a superior court on the ground that without making any examination the justice had no jurisdiction to exercise his discretion to issue the subpoena. In short his decision is amenable to certiorari [Emphasis Added].

9.    In R. v. Dickie (1996), 110 C.C.C. (3d) 573, 576 (Ont. Ct. Gen. Div.) the Court described that the judicial determination of the likelihood of materiality requires some articulation of facts by the applicant supportive of the pleaded belief that a court order ought to issue.  It is important that the likely materiality of evidence be contextualized to the specific case.  Thus, materiality is “measured in light of the precise issues formulated in the litigation, and a failure to provide a legally adequate factual substratum for the application can, in some circumstances, lead readily to the perception that what is sought is an ‘off the shelf’ subpoena.”

10.    In R. v. Wood, [2006] O.J. No. 841 (Sup. Ct.) Bryant J. noted that, in some cases, a letter setting out the reasons for the subpoena request or a record containing a recital of why the request was granted may afford a sufficient factual basis for the proper exercise of the issuer's discretion.

11.    Finally, the standard to be established has been described is as follows (Baltovich, supra, paras 70-73):

70 The statutory terms "is likely to give material evidence" refers to a probability, not a mere possibility or something that exists only in the fevered imaginings of the party seeking the subpoena. Something is likely if it is probable, not merely possible.
71 Materiality is a legal concept. It defines the status of the propositions that a party seeks to establish by evidence to the case at large. What is in issue in a case, hence what is material, is a function of:

• i.the applicable substantive law;
• ii. the allegations contained in the indictment; and
• iii.the applicable procedural law.

Evidence is material if it is offered and tends to prove or disprove a fact in issue. Material evidence is evidence that is pertinent to the issue in dispute.

72 When the issuance of a subpoena is challenged, it is inadequate for the party proposing to call the witness, in this case the prosecutor, to respond with a mere allegation that the proposed witness can give material evidence. More is required. And that more is to establish that the proposed witness is likely, or said another way, would probably have evidence material to the issues raised to give. See, R. v. Harris (1994), 93 C.C.C. (3d) 478, 479-80 (Ont. C.A.). See also Re Stupp and The Queen (1982), 36 O.R. (2d) 206, 70 C.C.C. (2d) 107, 121 (H.C.J.) per Craig J [Emphasis Added].
73 It may also be appropriate on review to consider whether the proposed evidence is reasonably capable of admission in the proceedings in which it is to be tendered. While admissibility is for the trial judge to decide, there may be some cases in which it may be obvious that what is proposed to be given falls foul of the incontrovertible rules of admissibility, or cannot enter the proceedings for some other reason.