section 698(2)

INTRODUCTION AND BRIEF DESCRIPTION

A warrant can be issued to arrest and bring a witness to court if they are likely to evade or refuse a subpoena to give material evidence.

SECTION WORDING

698(2) Where it is made to appear that a person who is likely to give material evidence (a) will not attend in response to a subpoena if a subpoena is issued, or (b) is evading service of a subpoena, a court, justice or provincial court judge having power to issue a subpoena to require the attendance of that person to give evidence may issue a warrant in Form 17 to cause that person to be arrested and to be brought to give evidence.

EXPLANATION

Section 698(2) of the Criminal Code of Canada outlines the circumstances under which a warrant can be issued to arrest a person who is likely to give material evidence but is either evading service of a subpoena or unlikely to attend in response to a subpoena. The section empowers a court, justice or provincial court judge to issue a warrant in Form 17 for the arrest of the person in question, with the aim of ensuring that they appear to give evidence and provide their testimony in a legal proceeding. The rationale behind this provision is to ensure that important witnesses are compelled to testify and that their testimony is not lost due to their unwillingness to appear in court. This provision is particularly important in cases where witness testimony is critical to the outcome of the trial, and where the witness in question is crucial for the prosecution or defence of the accused. The issuance of a warrant can help overcome the reluctance of the witness to testify and can force them to appear, which can ultimately help bring the truth to light. However, the issuance of such a warrant is not taken lightly, and the court must be satisfied that the witness is likely to give material evidence, that there is a real risk the witness will not attend or is evading service of a subpoena, and that there are no reasonable alternatives to ensure the witness's attendance. Once the warrant is issued, the police will execute it and bring the witness before the court to provide their testimony. In summary, Section 698(2) of the Criminal Code of Canada is an important provision that empowers the court to issue a warrant for the arrest of a witness who may be crucial to a legal proceeding, but is evading service of a subpoena or unlikely to attend. This provision exists to ensure that justice is served and that important evidence is not lost due to a witness's reluctance to appear in court.

COMMENTARY

Section 698(2) of the Criminal Code of Canada allows a court, justice or provincial court judge to issue a warrant for the arrest of a person who is likely to give material evidence but refuses to attend in response to a subpoena or is evading service of a subpoena. This provision is an important one as it allows the justice system to ensure that witnesses attend court and provide their testimony, which is crucial to the fair and efficient administration of justice. The purpose of a subpoena is to require a person to attend court and give evidence under oath. This evidence can be crucial in establishing the guilt or innocence of a defendant, and the failure of a material witness to attend court can undermine the justice system. The reasons for a witness to refuse to attend court can be varied, including intimidation, fear of retaliation, or a desire to avoid being implicated in a crime. However, in the absence of a valid reason, a witness who fails to attend court can be held in contempt and subject to penalties. Section 689(2) recognizes the importance of material witnesses and provides a mechanism for ensuring their attendance in court. By allowing a warrant in Form 17 to be issued, this section empowers the justice system to require the presence of witnesses who might otherwise refuse to attend. This provision strikes a balance between the interests of justice and the needs of individual witnesses, recognizing that the fair and efficient administration of justice depends on the cooperation of all parties involved. One of the key elements of section 698(2) is the requirement that the witness is likely to give material evidence. This means that the testimony of the witness is important and relevant to the case at hand. It is not sufficient for a witness to be merely tangentially involved in the case or to provide evidence that is immaterial or of no consequence. The requirement that the evidence be material helps to ensure that the witness's attendance in court is necessary and appropriate. Another important aspect of section 698(2) is the authority of a court, justice or provincial court judge to issue a warrant. This power is not unlimited, and it is subject to the court's discretion and the requirements of due process. The warrant must be based on a reasonable belief that the witness is evading service of a subpoena or is likely to refuse to attend if a subpoena is issued. The warrant must also be served in accordance with the law, and the accused must be afforded the opportunity to be heard in the matter. In conclusion, section 698(2) of the Criminal Code of Canada serves an important role in ensuring the attendance of material witnesses in court. By providing for the issuance of a warrant in appropriate circumstances, the section helps to maintain the integrity of the justice system and to ensure that defendants have a fair and impartial trial. While the power to issue a warrant must be exercised with caution and in accordance with the requirements of due process, it is a necessary tool in the administration of justice.

STRATEGY

Section 698(2) of the Criminal Code of Canada provides the legal authority for a court, justice or provincial court judge to issue a warrant for the arrest of a person who is likely to give material evidence but is either evading service of a subpoena or will not attend in response to a subpoena. This section is an important tool for securing the attendance of witnesses and ensuring the administration of justice. However, there are several strategic considerations that must be taken into account when dealing with this section of the Criminal Code. Firstly, issuing a warrant under section 698(2) is a serious step that should not be taken lightly. It is important to ensure that all other avenues to secure the attendance of the witness have been exhausted before resorting to this measure. This may include attempting to negotiate with the witness, making alternate arrangements for their testimony, or seeking a court order compelling their attendance. Secondly, it is important to assess the likely impact of issuing a warrant on the witness and on the trial proceedings. If the witness is a reluctant or hostile witness, issuing a warrant may simply reinforce their resistance to testifying and make them less cooperative. Alternatively, if the witness is genuinely unable to attend due to illness or other circumstances, the issuance of a warrant may be seen as unjust and could reflect poorly on the court. Thirdly, it is important to consider the logistical and practical challenges of executing a warrant. If the witness is located in another jurisdiction, executing the warrant may involve significant time, resources, and coordination with law enforcement in that jurisdiction. Similarly, if the witness is located in a remote or inaccessible area, executing the warrant may be difficult or impossible. Given these strategic considerations, there are several strategies that could be employed when dealing with section 698(2) of the Criminal Code. These may include: 1. Negotiation: Depending on the nature of the case and the relationship between the witness and the parties involved, negotiation may be an effective way to secure the witness's attendance. This may involve offering incentives such as travel expenses, accommodation, or compensation for lost wages. It may also involve addressing any concerns or reservations the witness may have about testifying. 2. Substituting evidence: In some cases, it may be possible to obtain evidence from other sources or to use documentary evidence in place of live testimony. This may involve seeking the admission of hearsay evidence or the use of video or audio recordings. 3. Compulsion orders: If negotiation and other means of securing the witness's attendance have been exhausted, it may be necessary to seek a court order compelling their attendance. This may involve issuing a subpoena or a writ of habeas corpus. 4. Collaboration with law enforcement: If the witness is located in another jurisdiction, collaboration with law enforcement in that jurisdiction may be necessary to execute the warrant. This may involve seeking the assistance of the RCMP or other law enforcement agencies, or working with foreign legal authorities to secure the witness's attendance. In conclusion, section 698(2) of the Criminal Code of Canada is an important tool for securing the attendance of material witnesses in criminal proceedings. However, it is important to consider the strategic implications of issuing a warrant under this section and to explore all other avenues before resorting to this measure. By carefully assessing the situation and employing appropriate strategies, it is possible to secure the attendance of witnesses and ensure the administration of justice.