Material Witness Warrants under Section 705 of Criminal Code
Section 705 of the Criminal Code establishes and governs the court’s power to issue a material witness warrant to arrest an individual who has been properly served with a subpoena but does not attend court.
In accordance with this provision, the trial judge has discretion to issue a material witness warrant if two pre-conditions have been satisfied: first, that subpoenas have been properly served on the prospective witnesses, and second, that the person is likely to give material evidence.
(1) 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.
(2) Where a person who has been bound by a recognizance to attend to give evidence in any proceeding does not attend or does not remain in attendance, the court, judge, justice or provincial court judge before whom that person was bound to attend may issue or cause to be issued a warrant in Form 17 for the arrest of that person.
(3) A warrant that is issued by a justice or provincial court judge pursuant to subsection (1) or (2) may be executed anywhere in Canada.
The decision to grant or refuse a material witness warrant is an exercise of the trial judge’s discretion that should not be lightly overturned by an appellate court. It is a question of mixed fact and law.
See R. v. Scott, 1990 CanLII 27 (SCC),