Yes. If you are facing an admissibility hearing for misrepresentation or criminality, you can ask the Immigration Division (ID) to issue a formal “Summons” (subpoena). This legally forces a hostile or uncooperative witness-such as an ex-spouse or former employer-to testify. You must pay them mandatory “conduct money” to cover their travel expenses.
Facing a deportation order at an admissibility hearing is one of the most severe legal situations a foreign national can experience in Canada. The Canada Border Services Agency (CBSA) vigorously prosecutes these cases in cities like Toronto, Halifax, and Edmonton, often trying to prove that you committed a crime, lied on your application, or engaged in a fraudulent marriage. 📍
To defend your permanent residence or temporary status, you must present strong evidence. Sometimes, the only person who can prove your innocence refuses to help you. It might be a bitter ex-spouse who falsely reported your marriage as fake, or a former employer who denies issuing your job letter. Under Canadian law, you do not have to rely on their goodwill. You can legally force them to attend the hearing through a formal Summons (often called a subpoena). This guide explains how to execute this aggressive legal maneuver. 💼
Step-by-Step Process in Canada
Summoning a witness is not an automatic right; you must convince the judge that their testimony is absolutely critical. Your immigration lawyer will navigate the strict procedural rules of the Immigration and Refugee Board (IRB). ⚔️
Step 1: Make a Voluntary Request First
Before the tribunal will issue a summons, you must usually prove that you tried to get the witness to attend voluntarily. Your lawyer will send a formal letter or email to the witness asking them to testify. If they refuse or simply ignore the request, you now have grounds to force them. 📜
Step 2: Apply for a Summons Under Rule 33
Your lawyer will make a formal application to the Immigration Division under Rule 33 of the ID Rules. The application must explain exactly who the person is, why their testimony is highly relevant to the allegations of misrepresentation or criminality, and confirm that they refused to appear voluntarily. 📈
Step 3: The ID Member Approves the Summons
If the ID Member (the judge) agrees that the witness is crucial, they will sign and issue the official Summons. This is a powerful federal document. It legally orders the individual to log into the virtual hearing or appear in person at the IRB registry on a specific date and time. 💰
Step 4: Personal Service and Conduct Money
You cannot just mail a summons. In Canada, a summons must be served “personally” directly into the hands of the witness. Furthermore, you must hand them “conduct money” (also known as attendance money) in physical CAD to cover their daily witness fee and travel expenses. If you do not provide this money, the summons is invalid. 🏦
Step 5: The Hostile Cross-Examination
On the day of the hearing, the witness will be sworn in under oath. Because they are a “hostile witness,” your lawyer will use advanced cross-examination techniques to extract the truth, expose inconsistencies in their story, and dismantle the CBSA’s case against you. 📑
How Much Does it Cost in Canada?
Executing a summons adds significant expenses to your legal defence because you are paying both legal fees and the witness’s mandatory expenses. Here are the costs in CAD: 💵
- Immigration Lawyer Fees: Preparing for and conducting a highly contested admissibility hearing typically costs $5,000 to $10,000+ CAD.
- Process Server: Hiring a professional to track down the hostile witness and serve the papers personally usually costs $100 to $300 CAD.
- Conduct Money (Witness Fees): By law, you must pay the witness a daily attendance fee (often $50 to $100 depending on the province), plus reasonable travel expenses (mileage, parking, or airfare if they live far away).
- IRB Fees: There is no fee to apply for the summons itself; the tribunal issues it for free.
How Long Does the Process Take?
Timing must be calculated carefully. You must apply for the summons several weeks before your scheduled admissibility hearing. Once issued, the witness must be served with enough advance notice to arrange time off work. Overall, CBSA admissibility hearings are currently taking 6 to 18 months to be scheduled, giving your legal team ample time to locate hostile witnesses. ⏱️
Voluntary Witness vs. Summoned Witness
| Feature | Voluntary Friendly Witness | Summoned Hostile Witness |
|---|---|---|
| Willingness to Help | High. They want you to win. | Low. They often want you to be deported. |
| Preparation | Lawyer can practice questions with them beforehand. | No prep. The lawyer questions them “blind” under oath. |
| Conduct Money Required? | No. They attend freely. | Yes. Mandatory payment required by law. |
| Consequence of Skipping | Hearing continues without them. | Can be arrested on a bench warrant for failing to appear. |
Frequently Asked Questions (FAQ)
What happens if the witness ignores the Summons?
If a person is properly served with the summons and conduct money but fails to appear, the IRB judge can issue a formal warrant for their arrest. The police can physically bring them to the tribunal to testify.
Can I subpoena the CBSA officer who investigated me?
Generally, you do not need to subpoena the Minister’s Counsel (CBSA) because they are already a party to the hearing. However, if you need a specific border guard who wrote a report to testify, your lawyer can request their attendance to cross-examine their notes.
Can the witness refuse to answer questions?
No. Once under oath, the witness must answer all questions directed by your lawyer or the judge. However, under the Canada Evidence Act, they can object to answering questions that would directly incriminate them in a criminal offence.
Do I have to pay my ex-spouse to testify against me?
Yes. If you are the one forcing them to attend the hearing via a summons, you must pay their standard conduct money and travel expenses, even if they are actively trying to destroy your immigration status.
Can the witness testify by video?
Yes. Since the COVID-19 pandemic, the vast majority of Immigration Division hearings are conducted virtually via Microsoft Teams. The summons will legally compel them to log in to the secure video link at the correct time.
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