Canadian Criminal Procedure and Practice/Release and Attendance

From Wikibooks, open books for an open world
Jump to: navigation, search

Introduction[edit]

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

The police 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.

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

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

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

If they are held for court, the issue of release will be left to the judge to determine.

Where the charge is layed first, the warrant or summons gives authority to the police to locate the individual for the purpose of arresting them to serving them with notice to attend court.

Attendance without Arrest[edit]

Appearance Notice[edit]

Under s. 495(2), a police officer who forms grounds of arrest pursuant to s. 495(1), shall not arrest the individual to ensure that they will attend court where:

  1. where the offence is one under s. 553, a summary, or hybrid offence, and
  2. where the officer "believes on reasonable grounds that the public interest...may be satisfied without so arresting the person" while having regard to all the circumstances including the need to:
    1. establish the identity of the person,
    2. secure or preserve evidence of or relating to the offence, or
    3. prevent the continuation or repetition of the offence or the commission of another offence, and
  3. he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

If the officer does not arrest due to s. 495(2), then under s. 496, the officer "may issue an appearance notice to the person"

Attendance on Release from a Warrantless Arrest[edit]

Police officers have a number of options to release an accused subsequent to their arrest but without having to have the accused attend court for a bail hearing. The options consist of the following:

  1. summons or appearance notice
  2. promise to appear or recognizance (with or without an undertaking)

Summons and Appearance Notice[edit]

If the officer believes there is grounds to make a warrantless arrest under s. 495(1), after concluding that s. 495(2) does not apply, then under s. 497, the officer must release the accused "as soon as practicable" on a summons (s. 497(1)(a)) or a appearance notice (s. 497(1)(b)), if the offence for summary, hybrid or s. 553 offences, person, unless, under s. 497(1.1), the officer "believes, on reasonable grounds" that:

  1. either:
    1. "it is necessary in the public interest that the person be detained in custody" or
    2. "that the matter of their release from custody be dealt with under another provision of this Part"
  2. while having regard to all the circumstances including the need to:
    1. establish the identity of the person,
    2. secure or preserve evidence of or relating to the offence,
    3. prevent the continuation or repetition of the offence or the commission of another offence, or
    4. ensure the safety and security of any victim of or witness to the offence; or
  3. "that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law."

Under s. 497(2), these rules do not apply where the accused is arrested without a warrant for an offence in a different province (as referenced in s. 503(3)).

Also, the officer should not release if he believes that the person may fail to attend court or where the offence described in s.503(3)--discusses offences outside of the jurisdiction.

Where the officer does not release the accused then they will be brought before a judge to determine if interim release will be granted.

An appearance notice is defined in s. 493 as "a notice in Form 9 issued by a peace officer".

A summons is defined in s. 493 as "a summons in Form 6 issued by a justice or judge;"

Promise to Appear or Recognizance[edit]

If the officer believes there is grounds to make a warrantless arrest under s. 495(1), after concluding that s. 495(2) does not apply, and, the officer does not release on an appearance notice or summons under s. 497, then, the officer must release under s. 498 on a summons, a promise to appear or recognizance (without surety) once there is no further reason to detain the accused, if the offence for summary, hybrid or 553 offences, or any offence with a maximum penalty of five year jail and is not currently subject to a release process. That is, unless, under s. 498(1.1), the officer "believes, on reasonable grounds" that:

  1. either:
    1. "it is necessary in the public interest that the person be detained in custody" or
    2. "that the matter of their release from custody be dealt with under another provision of this Part"
  2. while having regard to all the circumstances including the need to:
    1. establish the identity of the person,
    2. secure or preserve evidence of or relating to the offence,
    3. prevent the continuation or repetition of the offence or the commission of another offence, or
    4. ensure the safety and security of any victim of or witness to the offence; or
  3. "that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law."

A promise to appear is defined in s. 493 as requiring Form 10. It shall include the accused's name, the substance of the offence, a demand to attend court at a stated time and place.([s. 501(1))

Under s. 503(2.1), any promise to appear or recognizance can be made to include conditions, including:

  • to remain within a territorial jurisdiction,
  • to notify the officer of any change of address, employment, or occupation,
  • to abstain from communicating directly or indirectly with certain individuals,
  • to abstain from attending certain locations,
  • to deposit their passport,
  • to abstain from possessing any firearm and to surrender any firearms licenses,
  • to report at certain times to the police,
  • to abstain from the consumption of alcohol or other intoxicating substances,
  • to abstain from the consumption of drugs except in accordance with a medical prescription, and
  • to comply with any other condition the officer in charge considers necessary to ensure the safety and security of any victim or witness.

Undertaking to an Officer in Charge[edit]

If an officer has grounds to make a warrantless arrest under s. 495 and the accused is not released under s. 497 or 498, then there is a general discretion under s. 503(2) to release the accused from custody "conditionally" by either a promise to appear or recognizance for any offences except 496 offences. Under s. 503(2.1), the officer may further require the accused to enter into an undertaking, which can have one or more of the following conditions:

  • to remain within a territorial jurisdiction,
  • to notify the officer of any change of address, employment, or occupation,
  • to abstain from communicating directly or indirectly with certain individuals,
  • to abstain from attending certain locations,
  • to deposit their passport,
  • to abstain from possessing any firearm and to surrender any firearms licenses,
  • to report at certain times to the police,
  • to abstain from the consumption of alcohol or other intoxicating substances,
  • to abstain from the consumption of drugs except in accordance with a medical prescription, and
  • to comply with any other condition the officer in charge considers necessary to ensure the safety and security of any victim or witness.

Failure to comply with the undertaking is a criminal offence.

The form of the undertaking should conform to Form 11.1 of the Criminal Code.

Varying Conditions[edit]

Conditions in place from an undertaking to an officer in charge can be modified at any point under s. 499(3) and 497(1.1), as well as 503(1.1) for the Defence and 503(1.2) for the Crown. The modification does not need the consent of the crown.


Attendance from release[edit]

If an accused is released by summons, appearance notice, promise to appear, recognizance, or undertaking, as discussed above, and the accused fails to attend on the date specified, the justice may issue a warrant under s. 502 for the arrest of the accused. The warrant may be "endorsed" pursuant to s. 507(6) otherwise the warrant will be considered "unendorsed".

If the accused attends before the justice, at which point the information will have been laid, the judge will either confirm the "process" (that is, the release mechanism used to compel attendance) or else will cancel it under s. 508.


Release upon Warrant Arrest[edit]

Where an officer is arresting an accused person on a warrant sections 499 and 503 governs.

Endorsed Warrant[edit]

Under s. 499(1), where the warrant for arrest was endorsed for release pursuant to s. 507(6) and the offence is not a 469 offence, the officer may do any of the following:

  1. "release the person on the person's giving a promise to appear";
  2. "release the person on the person’s entering into a recognizance before the officer in charge without sureties in the amount not exceeding five hundred dollars that the officer in charge directs, but without deposit of money or other valuable security"; or
  3. if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within two hundred kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge without sureties in the amount not exceeding five hundred dollars that the officer in charge directs and, if the officer in charge so directs, on depositing with the officer in charge such sum of money or other valuable security not exceeding in amount or value five hundred dollars, as the officer in charge directs.

The officer may also impose conditions specified in s. 499(2):

Additional conditions
(2) In addition to the conditions for release set out in paragraphs (1)(a), (b) and (c), the officer in charge may also require the person to enter into an undertaking in Form 11.1 in which the person, in order to be released, undertakes to do one or more of the following things:

(a) to remain within a territorial jurisdiction specified in the undertaking;
(b) to notify a peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;
(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;
(d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;
(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;
(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;
(g) to abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription; and
(h) to comply with any other condition specified in the undertaking that the officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.
...

CCC

Unendorsed Warrant[edit]

Under s. 503, an officer arresting someone on a warrant may either detain them in custody to be brought to a justice within 24 hours or, release the person "conditionally" on a promise to appear or recognizance.

Laying an Information[edit]

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 Attendance[edit]

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.