A subpoena is a court order, usually issued as a matter of course based on a lawyer's request, for a person to appear at a specified time and place to provide testimony in a court proceeding. A subpoena or summons to witness can be issued in both civil and criminal proceedings. However, the fact that a subpoena has been issued against a person does not mean that the witness is not entitled to challenge the legitimacy of being required to provide testimony or to be examined. The witness can bring an application to quash a subpoena.

In Trudeau v. His Majesty the King, 2023 ONSC 1598, Prime Minister Justin Trudeau brought an application to quash a subpoena that sought him to testify in a criminal proceeding against an accused who was charged for throwing gravel at him during the 2021 federal election. While boarding a campaign bus after an election campaign event, Prime Minister Trudeau was allegedly struck by gravel thrown at him by the accused. Three days later, the accused was charged with committing assault against the Prime Minister, using a weapon, namely a blunt object, contrary to section 267, clause (a) of the Criminal Code.

At the time of the incident, the accused was the Chief Executive Officer of the People's Party of Canada, a fringe rival party to Prime Minister Trudeau's Liberal Party.

The incident was captured by video recordings and photographs, and was witnessed by many individuals. The accused, when questioned by police and shown the photos and videos, expressly conceded that he was the person who threw "the rocks". The accused's lawyer also acknowledged that when the throwing occurred, the Prime Minister was facing in the opposite direction from where the gravel was thrown.

The Prime Minister sought to quash the subpoena on the grounds that it was an abuse of process and that he was protected from testifying by parliamentary privilege. The Prime Minister submitted that he had no material evidence to give in connection with the charge against the accused. He had not filed a complaint against the accused which resulted in the charge.

Under Canadian law, a subpoena is presumed to be valid on its face. However once challenged, the burden shifts to the party who obtained the subpoena to demonstrate that the witness can give material evidence in the proceeding. Where this burden is not met, the subpoena will be quashed: see Dykstra v. Greensword, 2016 ONSC 8211 (CanLII) at paragraph 66.

The accused defended the issuance of the subpoena against the Prime Minister on among other grounds that his evidence was both material and necessary at the pending criminal trial and that, while recognizing the existence of parliamentary privilege, it was "entirely inappropriate" for the Prime Minister to rely upon it to evade enforcement, that the enforcement of the privilege would infringe the accused's Charter rights, that the Prime Minister's rights were not "superior" to the accused's rights, that the Prime Minister was not "above the law" and that statements made by the Prime Minister to the media after having been allegedly struck by the gravel were an "abuse of power"; "insofar as the [Prime Minister's] statements to the media were said to - 'irrefutably reverberates (sic) the platform of his political campaign' by tying the underlying incident 'to the political opposition to the Government's pandemic response by the 'antivaxxer mob', thereby intending 'to garner sympathetic votes or use the incident as a rallying point against his political opponents'."

The accused also raised technical grounds in relation to the proof required under section 265 of the Criminal Code to sustain the charge. The accused submitted that the Prime Minister's evidence was absolutely necessary to answer whether force had been applied to him, without his consent, whether he anticipated that gravel would be thrown at him, whether the accused had "the ability to effect his purpose" in attempting to apply force to the Prime Minister and whether the accused intended to throw gravel at the Prime Minister.

The Court held that Prime Minister Trudeau did not have evidence that was material and necessary to the accused's criminal proceeding. In this regard, there were a number of factors that weighed against the accused's argument, including that the accused had conceded to police that the thrown gravel hit the Prime Minister, and that the incident had multiple witnesses and was well documented. This finding was sufficient to quash the subpoena.

However, the Court also rejected the accused's technical arguments related to burden of proof for multiple reasons. The Court noted that among other things the offence of assault with a weapon did not require the Crown to prove beyond a reasonable doubt:

  • lack of consent of the victim;
  • that the accused applied intentional force; or
  • that the accused had the present ability to effect his or her purpose. The Crown merely needed to prove that the accused attempted to threatened to apply force intentionally to the victim and had the present ability to effect his or her purpose.

The Court found that the entire approach to the subpoena and its issuance by the accused was buttressed by an abuse of the coercive power of a subpoena that sought to have the Court to engage in politics, which it does not do. A factor that the Court considered in this regard was that after being charged, the accused's lawyer had made statements to the media that he had every intention to subpoena Prime Minister Trudeau and that he would "love to cross-examine the Prime Minister". The Court also noted that statements and arguments made by the accused were not necessarily intended for the judge's benefit, but for the public.

The subpoena has been issued for a collateral political purpose and to inappropriately advance political objectives.

With respect to parliamentary privilege, a Member of Parliament cannot be compelled and is not compellable to attend as a witness before any court in Canada while Parliament is in session. This immunity includes the 40 days preceding a parliamentary session and the 40 days following a parliamentary session. The immunity is based on precedent and is "an undoubted and inalienable right". It is based on the paramount right of Parliament to the attendance and service of its members.

Since Parliament was in session and the accused's trial during that time, the subpoena was unenforceable.

This case demonstrates that a subpoena or summons to witness is not absolute in its coercive ability to compel a witness to appear at a proceeding to give evidence. Where a politician is summonsed as a witness, the party who is responsible for its issuance cannot use a subpoena for political objectives and must be cognizant of the immunity afforded by parliamentary privilege.

On March 7, 2023, the accused pleaded guilty to a lesser charge of assault. A PDF version is available to download here.

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