Compelling an Appearance in Court
Kenneth W. Golish, Criminal Defence

Compelling an Appearance in Court

Please note the disclaimer that nothing in this site constitutes legal advice.  If you would like to have a consultation, please contact me.  Because of major changes in the law, this article is substantially different from its first iteration.

Compelling an Appearance in Court


When a person is charged with a crime or is about to be charged, the Criminal Code of Canada provides certain processes for compelling their appearance in court.  There are two kinds, one is a paper process, the other a detention process.  The paper process involves both judicial and non-judicial actions.  The forms are as follows:


·                     A summons to appear;

·                     An appearance notice, formerly including a promise to appear, issued by an police officer;

·                     An appearance notice with an accompanying undertaking requiring the deposit of up to $500 recognizance without sureties given to an officer;

·                     A release order without sureties, formerly including an undertaking given to a justice, a recognizance without sureties;

·                     A release order with sureties, formerly including a recognizance with sureties given to a justice;

·                     A release order requiring the deposit of securities; and

·                     A remand in custody.


It is important to know that criminal sanctions apply for failing to appear in court according to each process or for breaching a condition of release.  Thus it can happen that a person ends up being acquitting of the original substantive, but convicted for failing to appear in court or for a breach of a condition of release.


The police usually make the initial decision about whether a person should be released or detained in custody.  The decision should be based on a number of factors: They include the seriousness of the crime or crimes being charged, the need to identify the suspect and preserve evidence, the need to protect any victim or witness, concerns about the suspect committing other offences while out of custody and concerns about the accused not appearing in court when required.  For most situations however, uniformed officers or detectives make an arrest for offences that range from impaired driving and domestic assaults to more serious matters such as robbery, break and enter or murder.  Even for minor matters however, such as causing a disturbance, a minor assault or damage to property, the police will make an arrest to ensure the offence does not continue or is not repeated.


From a practical perspective, an arrest also provides the police with an opportunity to question the defendant or accused and thereby provide Crown counsel with evidence for the prosecution.  In a few instances, a police officer will simply issue an appearance notice that specifies a date for the defendant to appear in court.  A typical example of when such a process is used is when a person is stopped for shoplifting.  Many shoplifters are first offenders and the police are normally satisfied with their identity.  For those reasons, an appearance notice suffices to the get the defendant to court. 


What about fingerprints?  Persons who are charged with indictable offences are subject to having their fingerprints and photograph taken.  As discussed in the topic Classification of Offences, all hybrid offences are considered indictable until the prosecutor elects the procedure.  Therefore, only a few minor offences--straight summary conviction matters--are exempt from this requirement.  Usually, persons who are arrested are fingerprinted when they are processed at the police station.  Those who receive an appearance notice or a summons, may have not only a court date on the notice, but also a fingerprint date as well.  Even in some instances for persons who are arrested, their promise to appear or recognizance may also have a fingerprint date for them to return to the police station.  Again, the failure to attend for such an appointment may also result in a separate criminal charge and a conviction if there is not a reasonable excuse for missing the appointment. 


When do the police issue a summons?  In other circumstances, the defendant's appearance in court may be compelled by the issuance of a summons.  The difference between an appearance notice and a summons is that the former is issued by a police officer before the court process has commenced whereas a summons is authorized by a justice of the peace after an information has been laid.  In both instances, the defendant is not in custody and is not subject to any special conditions.  Police departments do not usually employ the summons as a process for getting a defendant to court.  As noted above, the police usually prefer to either make an arrest or issue an appearance notice on the spot.  The summons is more commonly issued after a private citizen has made a complaint against another.  For instance, an individual may advise the police that their neighbour committed an assault or damaged property.  The police may choose to swear out an information or decide to advise the individual to lay a private information.  Once the information is processed, the defendant can then be compelled by the issuance of a summons.  A summons may also be employed as means of correcting a defective process.  For instance, if an information is sworn after the date specified on the appearance notice for the individual to appear in court, the only way to compel the subsequent appearance of the defendant is by issuing new process, usually by serving a summons. 


When is a warrant issued?  As already stated, most cases, from the perspective of the police, require an arrest of a defendant or an accused.  An arrest may be made with or without a warrant.  When an arrest is made on a warrant, the information has already been sworn.  There are two basic kinds of arrest warrants.  One is usually referred to as a "bench warrant," the other as "a warrant in the first instance." A bench warrant is a warrant that is made when a defendant or accused does not appear for court.  It requires that upon an arrest, the individual be brought before a justice of the peace.  On the other hand, a warrant in the first instance may provide for a release by an officer.  When a charge is laid before an arrest, for most offences, there is the option of serving a summons or issuing a warrant.  For most serious matters, a warrant will be the preferred method of process.  As already noted, the police usually want to arrest an individual to ensure they do not commit other offences, to protect victims or witnesses or to ensure that person's attendance in court.  Even for minor matters however, a warrant may be necessary if the police are unable to find the defendant or the defendant appears to be evading service.  The principle advantage to the warrant process is that any peace officer, in most instances anywhere in Canada, can make the arrest.  The officer only has to believe that a warrant is outstanding and does not have to have the paper in hand. 


Do warrants have a geographical limit?  There are complicated rules when a warrant is issued in one province and the accused is arrested in another.  Apart from those special rules, there are no geographical limits applying to warrants.  One does however hear about warrants being Canada-wide, province-wide, or having a 200-kilometer limit.  These are ad hoc arrangements.  A police agency will set an informal geographic limit on a warrant.  This information is available to other police services on the Canadian Police Information Computer (CPIC) system.  If another police service arrests such an individual, the service that posts the information will arrange and pay for the expense of transporting the prisoner from one jurisdiction to the other, but only when the arrest is within the geographical limit of the warrant.  Otherwise, the arresting police service has the option of arranging for the transportation of the prisoner at its own expense, or when that individual cannot be or will not be detained for any other reason, releasing them.


Will an officer on the street release a suspect for a serious crime?  The Criminal Code formerly limited certain powers of release to officers in charge.  Technically now there is no distinction,m but as a practical matter, in most cases, persons who are arrested are taken into custody.  Typically then a senior officer will decide whether to release the individual from custody or have the matter processed in court.  That officer can release an individual on any type of offence except the most serious of charges, typically the offence of murder.[1]  Similarly, a justice of the peace, like an officer, may release or order a detention, but not on the most serious charges such as murder.  Only a superior court judge may make such a determination.  Even though a police officer has such authority, the officer may feel detention is in order or may feel that such a decision should be left for a prosecutor to decide.  In that instance, an accused must be brought before a justice of the peace, where available, within 24 hours.  The 24-hour rule applies to most populated regions of the country.  For remote regions, it must be as soon as possible. 


What kind of conditions of release can the police set?  If an officer makes the determination that a release is justified, the officer has the authority to set one or more of the following conditions to be included in an undertaking:


(a) report at specified times to the peace officer or other specified person;


(b) remain within a specified territorial jurisdiction;


(c) notify the peace officer or other specified person of any change in their address, employment or occupation;


(d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, except in accordance with any specified conditions;


(e) abstain from going to any specified place or entering any geographic area related to any person referred to in paragraph (d), except in accordance with any specified conditions;


(f) deposit all their passports with the peace officer or other specified person;


(g) reside at a specified address, be at that address at specified hours and present themselves at the entrance of that residence to a peace officer or other specified person, at the officer’s or specified person’s request during those hours;


(h) abstain from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, and surrender those that are in their possession to the peace officer or other specified person and also any authorization, licence or registration certificate or other document enabling them to acquire or possess them;


(i) promise to pay an amount specified in the undertaking, which shall not be more than $500, if they fail to comply with any condition of the undertaking;


(j) deposit, with the peace officer specified in the undertaking, money or other valuable security whose value does not exceed $500 if, at the time of giving the undertaking, the accused is not ordinarily resident in the province or does not ordinarily reside within 200 kilometres of the place in which they are in custody; and


(k) comply with any other specified condition for ensuring the safety and security of any victim of or witness to the offence.


How long are the conditions valid?  The obligations to appear in court or abide by conditions--unless varied-- remain in effect until the matter is concluded or stayed.  The case will only end when the charges are dismissed or withdrawn or the accused or defendant has been found guilty and sentenced.  When that happens all the obligations of the release are at an end, although often where probation follows with sentencing, some conditions mirror those that were imposed by an release order or undertaking. 


Is there an available review of conditions set by the police?  Although an officer does have the authority to set conditions, the defendant or accused can apply to vary any condition imposed, as the undertaking provides the following notice:


7 Variation and Replacement


The conditions of this undertaking may be varied with the written consent of the prosecutor and yourself. In addition, you or the prosecutor may apply to a justice of the peace to replace this undertaking with a release order under section 515 of the Criminal Code.


10 Signatures


I understand that I do not have to accept the conditions and that, if I do not accept the conditions, I will be brought to a justice for a bail hearing.


In domestic or other assault cases, for example, the police will typically set conditions prohibiting the possession of weapons and requiring the defendant to stay away from the complainant and their residence.  In these and other cases, where drugs or alcohol are involved, the police will impose a condition that prohibits the use of alcohol or drugs or both.  This authority to set non-judicial conditions was only introduced in 1994 and broadened since, including more recently to allow for an officer to impose a curfew. 


What about cash bail set by an officer without going to court?   An officer can require a deposit if the defendant ordinarily resides outside the province or more than 200 kilometers away.  Should the officer feel that a higher bail is required or a detention is in order, they must bring the individual before a justice of the peace. 


What happens in the police do not want to release an arrested person?  When the police do not release an individual under arrest, that person must be brought before a justice of the peace.  This will occur because the police are seeking a detention, want a surety to sign for the accused or the imposition of certain conditions.  It could be the police do not want to make the decision and therefore will leave that question for a prosecutor to decide.  Finally, sometimes the matter must get before a justice simply because the individual is not yet able to meet the terms of bail within the 24-hour limit, usually the deposit of money when required.  Where an individual is brought before a justice, an information is sworn to commence the court process.  Then begins the judicial interim release process.  This will be the subject of another topic.

[1] S.465

Please note the disclaimer that nothing in this site constitutes legal advice.  If you would like to have a consultation, please contact me.