My son was arrested on a warrant issued for failure to appear as a witness even though he did not receive a subpoena.

He resided at a house (with room mates) where an individual entered with a gun attempting to rob one of the occupants. My son moved out the next day, but had the same cell number. He was contacted to give a statement with relation to another matter by the local police shortly after and did so willingly -however they were unable to serve the subpoena for the invasion, the defendant in the case plead guilty and was sentenced - however a warrant was issued for my son for failure to appear - i don't understand how it can be determined that he failed to appear wheen there was no trial, and he wasn't served - even though he was easy to find in relation to the other matter. A complaint to the AG resulted in a lecture on section 698 and found that everything was done correctly - my interpretation of s. 698 doesn't mesh with his. is this a normal occurence as he would have me believe??

Asked almost 2 years ago in New Brunswick
Categories: Criminal Law

Answer Now

Reply by Police Officer the shield

A material witness warrant is valid for 30 days (but can be extended month by month by a Judge) and remains on the system for that time until it is executed. Your wording probably caused a little confusion to the A.G.'s office. (a) There was in fact a trial. (b) Your son need not be served a subpoena to have a warrant issued. (c) Your son was arrested for failing to appear.
First, since there was a bonafide trial in which your son appears to have had material evidence to offer for the prosecution, he is subpoenable. A subpoena would have been generated. Subpoenas aren't put on a computer system, so when you say that he attended the police station on another matter, those officers would not have known about any other officer's intent to serve a subpoena. One subpoena is issued and remains with the investigating officer until either he serves it or has it served by a summons bureau.
Secondly, since your son moved the very next day, the police wouldn't have any way of obtaining a forwarding address. Although you state that his cell phone number remained the same, perhaps they either didn't call or he didn't pick up when they did. All that has to be done is attempt to serve him. If they can't, they can leave the subpoena at his last known address and this is considered properly served. Once there is evidence that the subpoena is served (even substitutionally), or that he is evading service, a Material Witness Warrant can be (and in this case was) obtained.
Thirdly, your son was not arrested for Fail to Appear. Unless there is something that he hasn't told you, Fail to Appear relates to not appearing for Court on a matter where he had charges pending, or was required to appear at a police station for fingerprints. A valid Material Witness Warrant was issued in this case and all warrants are put on the police computers. These remain in effect for thirty days, regardless of the outcome of the case. So, ultimately, your son was arrested on the warrant and unless the time ran out on the warrant, the only way that it could be taken off the system, was to have him arrested. Even if a police officer knew that the case had been concluded, warrants are not optional. They are commanded by the warrant to arrest the person named in the warrant and bring them before a Justice. Once the Judge is satisfied that there is no reason to continue the detention of the arrested party, they must release them.
Hope this helps.

Posted almost 2 years ago

I am a retired police officer with experience on the Tactical team, Vice Unit, Major Crime Unit and Drug Squad.

Please note that this is for informational purposes only and does not constitute legal advice to you. Legal advice pertaining to your particular situation can only be provided by a lawyer who has met with you to obtain all pertinent background information necessary to give you a formal legal opinion. For formal legal advice, hire a lawyer (many give a free first consultation). Search the Lawyer Directory, or use our free Lawyer Referral Service.

Comment from New Brunswick

The subpoena was not left at any address - and they did not try to call him. He still had contact with his former roommates and still received mail at their residence which he picked up...a subpoena was never among anything left for my son. He concluded that because he wasn't a witness to any of the offences (he was in his room with the door closed and was told after the fact about the situation) that he was of no use to the investigation and therefore would not be required to testify since his roomates were subpoenad and he received nothing. I am interested in the 30 day period - the defendant had served his time (8 months) and was released a few months prior to my son being arrested...this is over a year after the trial!

Posted almost 2 years ago

Comment from New Brunswick

I should clarify a few things with regards to your comment - a) there was NO trial, the witnesses were not called to testify (they received their subpoena) - the defendant plead guilty thereby eliminating the need for a trial - yet an arrest warrant was issued for failure to appear as a material witness - this makes NO sense! B) The officer swore under oath that despite searching irrelevant databases (based on the officer's assumptions) he couldn't find my son - his HOME address is on his ID card! c) He was arrested for not appearing as a material witness - failure to appear is the wrong term.

Posted almost 2 years ago

Comment from New Brunswick

In my first comment I again said "trial" at the end...there was no "trial" ! Can you see/feel my frustration!

Posted almost 2 years ago

Reply by Police Officer the shield

Without the benefit of seeing the paperwork, including the warrant, I really don't know what else to say. If your son was arrested on a warrant which should have been removed from the system, then you certainly should look towards a civil remedy. Canvas a lawyer, sometimes the first consultation is free. They would be in a better position to advise you further at this point.

Posted almost 2 years ago

I am a retired police officer with experience on the Tactical team, Vice Unit, Major Crime Unit and Drug Squad.

Comment from New Brunswick

Thanks. I am looking into that - just confused and frustrated by the blocks that seem to be popping up.
Appreciate your help.

Posted almost 2 years ago

Answer by Stephanie Heyens

Ontario lawyer

This is exactly why defence lawyers exist. The "blocks" you refer to won't disappear until a lawyer presents it all to the assigned crown. and even then a trial may be necessary.

Posted almost 2 years ago

Please note that this is for informational purposes only and does not constitute legal advice to you. Legal advice pertaining to your particular situation can only be provided by a lawyer who has met with you to obtain all pertinent background information necessary to give you a formal legal opinion. For formal legal advice, hire a lawyer (many give a free first consultation). Contact Stephanie Heyens, search the Lawyer Directory, or use our free Lawyer Referral Service.

For Lawyers:
Join the Directory
for Free!