Court File and Parties
COURT FILE NO.: 16-R2017 DATE: 2018/06/20 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen AND Thomas Richard Glover
BEFORE: Madam Justice H. J. Williams
COUNSEL: Stephen Donoghue, Counsel for the Crown Anthony J. Does, Counsel for the Accused
RULING RE SUBPOENA
H. J. WILLIAMS, J.
[1] The accused was charged with possession of cocaine under s. 4(3) of the Controlled Drugs and Substance Act, S.C. 1996, c. 19, and aggravated assault under s. 268(2) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] The accused pleaded guilty to the cocaine possession charge. I found him not guilty of the aggravated assault charge.
[3] On the first day of the trial I quashed the subpoena served on one of the Crown’s witnesses. I gave a brief oral ruling and said that written reasons would follow.
[4] The witness, Bradley Logan Feeney, had failed to appear, despite having been served with a subpoena.
[5] The Crown requested a material witness warrant.
[6] The defence opposed the Crown’s request on the basis that the subpoena served on Mr. Feeney was not valid and that a material witness warrant cannot be issued if the person to be arrested was not properly subpoenaed in the first place.
The applicable Code provisions:
[7] Section 698(1) reads as follows:
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.
[8] Section 705(1), which provides for material witness warrants, reads as follows:
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.
The position of the defence:
[9] The defence argued that, in his experience, subpoenas are routinely issued by staff at the court house in Ottawa without any inquiry as to whether the person to be subpoenaed has any material evidence to offer. The defence argued that, in the absence of such an inquiry, the subpoena is invalid and the requirements for a bench warrant under s. 705 of the Code cannot be established.
[10] The defence relied upon Foley v. Gares[^1], a 1989 decision of the Saskatchewan Court of Appeal, which said that the applicable standard of inquiry is not onerous but the person issuing a subpoena must conduct some examination of the circumstances. In reference to the person issuing the subpoena, the court said:
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.[^2]
The position of the Crown:
[11] The Crown argued that there is a presumption of regularity in respect of all court documents and that, absent any evidence to the contrary, I should consider the subpoena to be valid.
[12] The Crown relied on R. v. Regan[^3], a 1998 decision of the Nova Scotia Supreme Court, which observed at para. 10 that there is nothing in s. 698 that expressly prescribes an inquiry into whether the person is likely to give material evidence.
[13] The Crown also noted that the form under the Code titled “Subpoena to a Witness”, Form 16, which includes the phrase “and it has been made to appear that you are likely to give material evidence for (the prosecution or the defence)” is not a mandatory form. Section 699(6) of the Code provides that a subpoena “may” be in Form 16.
The evidence:
[14] The defence called as a witness the clerk/registrar who had signed and issued the May 1, 2018 Superior Court of Justice subpoena to Mr. Feeney.
[15] The clerk/registrar identified his signature on the subpoena.
[16] The clerk/registrar said that he did not remember signing Mr. Feeney’s subpoena; he said that he signs many subpoenas on a daily basis.
[17] The clerk/registrar said that when someone wants a subpoena, they fill it out and bring it to the criminal registry office. The clerk/registrar will ensure that the name and the date on the subpoena are correct. The subpoena will then be signed.
[18] The clerk/registrar said that no inquiries are made about whether the person named in the subpoena is likely to give material evidence.
[19] The clerk/registrar said that the manner in which he handles subpoenas is consistent with his training and the instructions of his supervisors.
[20] The clerk/registrar said that he does not have any legal training.
[21] The clerk/registrar said that he does not believe that those who request subpoenas ever explain why the subpoena is required. On cross-examination, he said that occasionally people may explain why a subpoena is required but the great majority of them do not and that, because he is not vetting the requests, an explanation would be of no interest to him in any event.
[22] The clerk/registrar said that he could not remember whether any information had been given to him about Mr. Feeney’s subpoena.
Discussion and conclusion:
[23] A party seeking a material witness warrant under s. 705 of the Code must establish both that the subpoena that has not been honoured “has been served in accordance with this Part”, which is Part XXII of the Code, and that the person is likely to give material evidence.
[24] Part XXII of the Code includes s. 698.
[25] If a subpoena was not validly issued in accordance with s. 698 of the Code, it cannot have been validly served in accordance with Part XXII.
[26] Section 698(1) of the Code provides that a subpoena may be issued, “[w]here a person is likely to give material evidence in a proceeding to which this Act applies”.[^4]
[27] As I said the day I released my oral ruling, the words “where a person is likely to give material evidence in a proceeding” cannot be meaningless; the rules of statutory interpretation provide that they cannot simply be ignored.
[28] I found the reasoning in the Foley v. Gares case relied upon by the defence more compelling than the Regan case.
[29] In Foley v. Gares, the Saskatchewan Court of Appeal described the obligation on the person who issues the subpoena to make an inquiry about whether the person to be subpoenaed has material evidence to give a “statutory duty.” The Court of Appeal said that the extent of the inquiry will depend on the circumstances of each case but if there is no inquiry, the statutory duty of the person who issues the subpoena has not been discharged and the person is without jurisdiction to have issued it.
[30] In Regan, MacDonald A.C.J.S.C., as he then was, of the Nova Scotia Supreme Court considered Foley but said that in Nova Scotia (as in Ottawa, apparently) subpoenas have historically been issued routinely without inquiry. MacDonald A.C.J.S.C. relied upon another Nova Scotia decision, R. v. Ross (1994), 1994 7584 (NS SC), 131 N.S.R. (2d) 258, 371 A.P.R. 258 (N.S.S.C.), in which the court expressed concern that requiring an oral inquiry or other evidence by way of affidavit or otherwise before a subpoena can be issued “would bog down the justice system in procedures and paperwork which, in 99.99 per cent of the cases, would be unnecessary.”
[31] After I released my oral decision to quash the subpoena in this case, the 2016 Ontario Superior Court of Justice decision of Durno J. in Dykstra v. Greensword, 2016 ONSC 8211, [2016] O.J. No. 7263 came to my attention.
[32] In Dykstra, the respondent, Amal Greensword, had been charged with first degree murder. The applicant, Marten Dykstra, was a lawyer with the Public Prosecution Service of Canada, who had stayed a cocaine trafficking charge against the respondent. The Crown in the murder trial was seeking to introduce evidence relating to the drug charge as “other discreditable conduct” evidence. The respondent subpoenaed Mr. Dykstra in order to ask him about his reasons for staying the charge.
[33] Mr. Dykstra applied for certiorari to quash the subpoena, in part on the basis that it had been improperly issued because no evidence had been provided to support its issuance.
[34] There was evidence on the application that the Deputy Registrar who issued the subpoena had met directly with the respondent’s lawyer and had questioned him about the subpoena. The respondent’s lawyer informed the Deputy Registrar that the subpoena had been discussed at a pre-trial conference the previous day and that the pre-trial judge was aware that the subpoena was going to be issued. Based on this information, the Deputy Registrar had concluded that Mr. Dykstra likely had material evidence to give and she issued the subpoena.
[35] Although Durno J. quashed the subpoena for other reasons, he concluded that, in the circumstances, the information provided to the Deputy Registrar provided a sufficient foundation for the subpoena to be issued.
[36] Durno J.’s decision included a detailed and extremely helpful review of the law relating to subpoenas, including the following 11 conclusions at para. 90:
(i) the issuance of a subpoena involves a statutory discretion;
(ii) the application must be case and subpoena-specific;
(iii) the issuer must be satisfied that the proposed witness likely has material evidence to give in the case,
(iv) subpoenas cannot be issued for the asking without some case-specific inquiry; where a subpoena is presented to a judge, justice or clerk in the Superior Court of Justice, simply asking him or her to sign the subpoena, without more is wrong; to issue a subpoena without any inquiry results in the issuer abusing his or her power and discretion - it is a subpoena issued in excess of the issuer’s jurisdiction;
(v) where a request for a subpoena without more information is made by the Crown, police, defence or self-represented accused in the case, the subpoena cannot issue “as of right;” if an issuer were to receive one or more subpoenas on his or her desk with only an indication they are from the Crown, defence, police or self-represented accused, the issuer has no jurisdiction to issue the subpoena;
(vi) where Crown counsel assigned to the case or defence counsel of record personally state to the issuer that the proposed witness likely has material evidence to give, ordinarily the subpoena will issue as a matter of course without more information being provided; that is not to say that it must issue; only that it is a matter within the issuer’s discretion;
(vii) where an agent appears for defence counsel of record or the assigned Crown, he or she should provide a dated, case and subpoena-specific written statement that includes the number of subpoenas being sought and that counsel confirms the witness(es) likely has/have material evidence to give. Whether the issuer has the written statement filed is in the discretion of the issuer. If it is filed, it should be sealed and placed in the court file, noted not to be opened without a court order. The applicant should retain a copy of the statement.
(viii) where an agent appears for counsel without a written statement, the agent should provide the issuer with the nature of the witness’ evidence and information regarding how it is material to the issues in the case; whether those representations are in writing, given orally or otherwise is within the discretion of the issuer, without representations that satisfy the issuer that the potential witness likely has material evidence to give, the issuer has no jurisdiction to issue the subpoena;
(ix) where the person applying for the subpoena is neither the assigned Crown, defence counsel of record or an agent for counsel of record, the issuer should make inquiries to determine whether the proposed witness likely has material evidence to give; this should include the nature of the evidence and how it is material to the issues in the case; simply being told the witness likely has material evidence to give is insufficient; whether the issuer requires the information in writing, given orally or otherwise is within the discretion of the issuer but there may be cases where the clerk would seek to have a judge consider the application on written material or in court;
(x) where any material is filed on an application for a subpoena whether for a Crown or defence subpoena, it should be sealed, and must not be opened without a court order and kept in the court file; and
(xi) where any material is filed on an application, whether for a Crown or defence subpoena, the applicant should retain a copy of any document filed.
[37] Based on the evidence that was before me, in the case of Mr. Feeney’s subpoena, the issuer had no information at all about whether Mr. Feeney likely had material evidence to give. The subpoena was, to use Durno J.’s words, “issued for the asking”, apparently in accordance with the practice at the Ottawa court house. The subpoena was, therefore, issued in excess of the issuer’s jurisdiction.
[38] For these reasons, the May 1, 2018 subpoena to Bradley Logan Feeney is quashed.
Madam Justice H. J. Williams
Date: 2018/06/20
COURT FILE NO.: 16-R2017
DATE: 2018/06/20
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen
AND
Thomas Richard Glover
BEFORE: Madam Justice H. J. Williams
COUNSEL: Stephen Donoghue, Counsel for the Crown Anthony J. Does, Counsel for the Accused
RULING RE SUBPEONA
Madam Justice H. J. Williams
Released: 2018/06/20
[^1]: 1989 5134 (SK CA), 74 C.R. (3d) 386, 80 Sask. R. 241. [^2]: Foley v. Gares, supra, at para. 16. [^3]: 1998 31121 (NS SC), 173 N.S.R. (2d) 298, 527 A.P.R. 298 (N.S. S.C.). [^4]: The situation is different in civil cases in Ontario. Rule 53.04(2) of the Rules of Civil Procedure specifically provides for a summons to witness to be issued in blank and completed later. The presiding judge may issue an arrest warrant under Rule 53.04(7) of the Rules in the event of non-compliance with a summons, but only if the witness’s evidence is material to the action.