In criminal trials, the absence of a key witness can raise questions about the fate of the charges. Whether a charge gets thrown out due to a witness failing to appear depends on various factors such as the type and severity of the criminal charge, the duration of the case in the court system, and the strength of the Crown’s case. Let’s explore this issue in different contexts:


Domestic Assault Cases

In situations where a victim of domestic assault chooses not to appear at the trial, expressing a desire to reconcile with the accused, the Crown generally does not automatically dismiss the case. The Crown might seek a warrant for the victim’s arrest, and the judge may direct the police to locate and bring them before the court. However, judges often aim to minimize the negative impact on the victim and may issue an arrest warrant only if necessary. The absence of the victim may not lead to the case being thrown out, especially on the first trial date. If the witness is not deemed crucial, the Crown may proceed without their testimony.


Other Minor Charges

For minor charges, particularly those where no significant harm occurred, the Crown might be less inclined to request an adjournment or an arrest warrant. Cases may be withdrawn by the Crown for less significant charges, but it’s not common for a case to be thrown out solely due to a witness’s absence on the first trial date.  Every case is different and the Crown will make an assessment and judgment call whether they will ask for an adjournment or arrest warrant, depending on the nature of an individual case and whether the administration of justice warrants trying to still proceed with the trial.  


Important Points for Victims

Victims should be aware that being served with a subpoena to testify creates a legal obligation to attend the trial. Choosing not to attend will often result in their arrest, as a subpoena functions as a court order requiring attendance and the requirement to testify in court. 


Every case is unique, and the Crown’s decision to withdraw the charges or proceed without a key witness depends on the specific circumstances of a given case. It is essential to consult with legal professionals to understand the potential outcomes based on the details of a particular case.



Video Transcription:

I want to talk to you about a very interesting topic today and the issue is as follows:  Let’s say you have a criminal trial, and one of the key witnesses does not show up at your trial date. Will the charge get thrown out?  Well it’s a pretty loaded question, and it really depends on the type of criminal charge, how long the case has been in the court system and the strengths and weaknesses of the Crown’s case, but let’s take a few examples. On a domestic assault charge, this is very common, unfortunately, where a husband or a wife chooses not to show up at the trial   because they are the victim and want to get back together with the accused.  The Crowns have a long standing policy of not simply throwing a domestic assault cases out when the victim fails to respond to their subpoena and does not show up at the trial.  The judge may even ask for a warrant for that person’s arrest and the judge could direct the police to go talk to them and bring them before the court. Judges try and avoid the negative optics of arresting a victim and bringing them to jail when they can, but in some cases they will have no choice but to issue a warrant for a victim’s arrest. Whether a victim is arrested or not, the case is probably not going to get thrown out on a domestic assault.  Also if the witness is not a key witness, the Crown may not even need them and be able to proceed to prove their case without their testimony.  So that’s a domestic assault situation. Have I seen cases that are thrown out because a witness did not show up in court? Never, on a domestic assault, on a first time trial date. I have seen cases withdrawn by the Crown on some minor charges that are not that important where it was minor bar assault where no one was hurt, for example.  But typically the Crown Attorney will ask for an adjournment or an arrest warrant, depending on the situation.  Judges will potentially enforce subpoenas and issues a warrant for arrest if they are asked by the Crown, but they try to negatively affect the   victim/complainant as little as possible in terms of having the police bring them before the court first rather than arresting them and throwing them in jail.  Heavens, we do not want victims being in jail for not attending a trial, but judges also have to deal with this difficult situation and often have to make some tough decisions to issue a warrant for the police to arrest a victim   Your criminal charge is not necessarily going to get thrown out if the victim does not show up at trial. It’s definitely not going to get thrown out on a domestic assault charge at the first trial date.  However, every case is different and I would have to examine the facts of a particular case to determine the odds of the crown withdrawing the charge.   But you should know this as a victim:  you could be arrested if have been served with a subpoena to testify at a trial and choose to not attend at the trial.   A subpoena is effectively a court order which requires you to attend the trial and testify and you simply have to attend whether you want to or not.

By Published On: August 4, 2023Last Updated: February 13, 2024Categories: General, Video

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