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In court, witnesses play the crucial role of conveying to the court their knowledge pertaining to the alleged criminal matter at hand. Witnesses are expected to undergo questioning by both the Crown and the defence lawyer. Their testimonies are considered a form of evidence, contributing significantly to the outcome of the trial.
Typically, it is the Crown prosecutor or the defence lawyer who initiates the process for a witness to appear in court. They do this by issuing a subpoena, which is a crucial piece of paper that instructs a person to attend court. This subpoena not only specifies the date when the person is expected to appear in court, but it also outlines the specific events related to the trial about which the person is expected to speak.
As per Section 698 of the Criminal Code, a subpoena can be issued for a person who is likely to provide material evidence in a proceeding. Once a subpoena is received, it is mandatory for that person to attend court. If the person fails to show up in court after being served a subpoena, it can lead to their arrest and a warrant may be issued to enforce this.
Under section 705.1, if a person who has been served with a subpoena to give evidence in a proceeding does not attend or remain in attendance, the associated court, judge, justice or provincial court judge may issue or cause to be issued a warrant for the arrest of that person, given that the subpoena has been served correctly and the person's evidence is likely to be material.
If a person has been bound by a recognizance to attend to give evidence and does not attend or remain in attendance, under section 705.2, the court, judge, justice or provincial court judge may issue or cause to be issued a warrant for the arrest of that person.
Any warrant issued by a justice or provincial court judge under these subsections can be executed anywhere in Canada, as mentioned in section 705.3.
Contempt of court is a scenario that occurs once in court. If a witness refuses to answer the questions that the Crown or the defence lawyer has for them, the judge may infer that they are in contempt of court. Consequently, the judge can charge them with the criminal offence of contempt of court, which is found in section 708.1 of the Criminal Code.
This offence, as per section 708, states that a person who, being required by law to attend or remain in attendance for the purpose of giving evidence, fails, without lawful excuse, to attend or remain in attendance accordingly, is guilty of contempt of court.
Regarding the punishment, a court, judge, justice, or provincial court judge may deal summarily with a person who is guilty of contempt of court under this section. The person can be liable to a fine not exceeding one hundred dollars, imprisonment for a term not exceeding ninety days, or both. Moreover, they may be ordered to pay the costs that are incident to the service of any process under this part as well as the costs related to his detention, if any.
The conviction under this section may be in Form 38, and a warrant of committal in respect of a conviction under this section may be in Form 25.
Contempt of court is a criminal offence, and if found guilty of this offence, it is punishable by a custodial sentence for up to 90 days and a potential fine of up to $100. In the event of being charged with contempt of court or any other criminal offence, it's recommended to seek legal representation, such as that provided by Kostman and Pyzer, Barristers.
