Canadian Criminal Procedure and Practice/Release and Attendance

IntroductionEdit

A person can be compelled to attend court to face criminal charges in several ways. It may start with the police. They investigate a crime and at some point suspect that an individual is responsible.

The police may start by doing one of three things:

  1. serve an appearance notice on the accused;
  2. arrest the accused; or
  3. lay a charge and issue a warrant or summons

These are not mutually exclusive actions but rather first steps.

When a person is given an appearance notice, they are simply served with a document directing them to attend court.

When a person is arrested, the police will decide whether to lay a charge. If a charge will be laid the police can do one of the following:

  1. hold him or her for a court appearance without release
  2. release him or her using a summons, Appearance Notice, Promise to Appear (with or without an undertaking), or Recognizance (with or without an undertaking)

If the person is held for a court appearance, the determination of release is left to the judge.

When a charge is laid first, a warrant or summons gives authority to the police to locate the individual for the purpose of arrest and serving notice to attend court.

Laying an InformationEdit

At some point after the initial arrest and before the first appearance for arraignment, the peace officer is expected to prepare an Information and swear the information before a justice of the peace. The officer will give sworn evidence that they had reasonable ground to believe that the offence had been committed by the accused.

This can be done at any time prior to the first appearance for arraignment so long as it is within the time limit for the offence (6 months if summary offence).

See more at Canadian Criminal Procedure and Practice/Informations and Indictments

Confirming AttendanceEdit

Once the accused attends for the first time in court, the authority of the justice of the peace or peace officer is complete and only the judge may compel future attendance. The purpose of a promise to appear, summons, or any other tool to ensure attendance is to secure attendance for the first time. After the initial appearance the promise to appear is irrelevant.[1]

Whenever a judge had an information before him, he must comply with section 508. Section 508(b)(i) would appear to require that judges confirm that the notice, promise to appear or recognizance remains in effect and then endorse the information.[2]

However, case law has been divergent on the issue of whether the failure to confirm the order to return to court creates a nullity, invalidating the information. While there are a number of cases supporting the nullity effect on the lack of confirmation,[3] there is a growing line of cases that see it as having no effect on the validity of the charge.[4]

Where the accused was properly ordered to attend court and failed to, the court may issue a warrant for their arrest under s. 524:

Issue of warrant for arrest of accused
524. (1) Where a justice is satisfied that there are reasonable grounds to believe that an accused

(a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or
(b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he may issue a warrant for the arrest of the accused.

Arrest of accused without warrant
(2) Notwithstanding anything in this Act, a peace officer who believes on reasonable grounds that an accused

(a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or
(b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, may arrest the accused without warrant.

CCC


  1. R v Oliveria at 30
  2. R. v. Key, 2011 ONCJ 780 - detailed review of cases
  3. eg. R. v. Koshino, [1991] O.J. No. 173 (Gen. Div.), R. v. Sandoval, [2000] O.J. No. 5591 (S.C.J.), R. v. Smith, [2008] O.J. No. 381 (S.C.J.), R. v. Pilieci (2010), 257 C.C.C. (3d) 541 (Ont. S.C.J.).
  4. R. v. Rennie, [2004] O.J. No. 4990 (S.C.J.)
    R. v. Pavlick, [2008] O.J. No. 2114 (S.C.J.)
    R. v. Sullivan, [2009] O.J. No. 5075 (S.C.J.)
    R. v. Duran, 2011 ONSC 7346
    R. v. Morton (1992), 70 C.C.C. (3d) 625 (Ont. Gen. Div.), affirmed, (1993), 83 C.C.C. (3d) 95 (Ont. C.A.).
    R. v. Matykubov,2010 ONCJ 233
    See also R. v. Wetmore (1976), 18 N.S.R. (2d) 292 (N.S.C.A.)

Judicial Interim Release (Bail)Edit

If the peace officer does not release the accused, then under s. 503 they must present the accused before a justice within 24 hours to consider whether to release the accused under s. 515.