Accused Arrest Warrants for Failing to Attend Court

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General Principles

See also: Warrant Arrests

Where an accused fails to comply with an undertaking to attend court, s. 512 permits the court to issue a warrant of arrest.

Certain actions not to preclude issue of warrant
512. (1) A justice may, where the justice has reasonable and probable grounds to believe that it is necessary in the public interest to issue a summons or a warrant for the arrest of the accused, issue a summons or warrant, notwithstanding that

(a) an appearance notice or a promise to appear or a recognizance entered into before an officer in charge or another peace officer has been confirmed or cancelled under subsection 508(1);
(b) a summons has previously been issued under subsection 507(4); or
(c) the accused has been released unconditionally or with the intention of compelling his appearance by way of summons.

Warrant in default of appearance
(2) Where

(a) service of a summons is proved and the accused fails to attend court in accordance with the summons,
(b) an appearance notice or a promise to appear or a recognizance entered into before an officer in charge or another peace officer has been confirmed under subsection 508(1) and the accused fails to attend court in accordance therewith in order to be dealt with according to law, or
(c) it appears that a summons cannot be served because the accused is evading service,

a justice may issue a warrant for the arrest of the accused.
R.S., 1985, c. C-46, s. 511; R.S., 1985, c. 27 (1st Supp.), s. 81; 1997, c. 18, s. 57.


Where the justice has "reasonable reasonable grounds to believe that it is necessary in the public interest to issue a summons rather than a warrant, then it would be within his discretion to so proceed."[1] This would include information as to the whereabouts or medical condition of the accused.[2]

Under s. 511, the execution of a warrant or arrest authorizes 1) the arrest of the accused and 2) the officer to bring the accused before a judge in the territorial division in which the warrant was issued.[3]

A provincial court judge upon issuing an arrest warrant cannot require that the accused only be brought the issuer of the warrant.[4]

Warrants under s. 512 can be issued at any point in the proceedings.[5]

Forms
A summons under s. 508 or 512 should use Form 6.

  1. R v Demelo, 1994 CanLII 1368 (ON CA)
  2. Demelo, ibid.
  3. R v Charles
  4. R v Davidson, 2004 ABCA 337 (CanLII)
  5. Ex Parte Chung (1976), 26 CCC (2d) 497 (BCCA) at p. 509 per McFarlane JA. ("The jurisdiction of the Justice is not, therefore, limited to acting upon the initial receipt of the information, and he can receive and consider the information a second time even after the unconditional release of the accused. … There are no words limiting the exercise of the powers of a Justice to any particular stage of the proceedings.")
    R v Anderson, 1983 ABCA 264 (CanLII) at paras 48 to 51

Bench Warrant for Failing to Attend Trial

Bench warrant
597. (1) Where an indictment has been preferred against a person who is at large, and that person does not appear or remain in attendance for his trial, the court before which the accused should have appeared or remained in attendance may issue a warrant in Form 7 for his arrest.
Execution
(2) A warrant issued under subsection (1) may be executed anywhere in Canada.

Interim release
(3) Where an accused is arrested under a warrant issued under subsection (1), a judge of the court that issued the warrant may order that the accused be released on his giving an undertaking that he will do any one or more of the following things as specified in the order, namely,

(a) report at times to be stated in the order to a peace officer or other person designated in the order;
(b) remain within a territorial jurisdiction specified in the order;
(c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;
(d) abstain from communicating with any witness or other person expressly named in the order except in accordance with such conditions specified in the order as the judge deems necessary;
(e) where the accused is the holder of a passport, deposit his passport as specified in the order; and
(f) comply with such other reasonable conditions specified in the order as the judge considers desirable.

Discretion to postpone execution
(4) A judge who issues a warrant may specify in the warrant the period before which the warrant shall not be executed, to allow the accused to appear voluntarily before a judge having jurisdiction in the territorial division in which the warrant was issued.
Deemed execution of warrant
(5) Where the accused appears voluntarily for the offence in respect of which the accused is charged, the warrant is deemed to be executed.
R.S., 1985, c. C-46, s. 597; R.S., 1985, c. 27 (1st Supp.), s. 121; 1997, c. 18, s. 68.


CCC

s. 800
...
Counsel or agent
(2) A defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto. ...


CCC

The judge ordering an arrest under s. 475 (absconding during trial), Part XVI (compelling attendance), 597 (bench warrant), 800 (summary trial) or 803 (summary appearance) can issue a warrant using "Form 7", which is the standard arrest warrant.

Effect of Failure to Attend on Jurisdiction

485
...
When accused not present
(1.1) Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally, so long as subsection 515(2.2), paragraph 537(1)(j), (j.1) or (k), subsection 650(1.1) or (1.2), paragraph 650(2)(b) or 650.01(3)(a), subsection 683(2.1) or 688(2.1) or a rule of court made under section 482 or 482.1 applies.
Summons or warrant
(2) Where jurisdiction over an accused or a defendant is lost and has not been regained, a court, judge, provincial court judge or justice may, within three months after the loss of jurisdiction, issue a summons, or if it or he considers it necessary in the public interest, a warrant for the arrest of the accused or defendant.
Dismissal for want of prosecution
(3) Where no summons or warrant is issued under subsection (2) within the period provided therein, the proceedings shall be deemed to be dismissed for want of prosecution and shall not be recommenced except in accordance with section 485.1.
Adjournment and order
(4) Where, in the opinion of the court, judge, provincial court judge or justice, an accused or a defendant who appears at a proceeding has been misled or prejudiced by reason of any matter referred to in subsection (1), the court, judge, provincial court judge or justice may adjourn the proceeding and may make such order as it or he considers appropriate.
Part XVI to apply
(5) The provisions of Part XVI apply with such modifications as the circumstances require where a summons or warrant is issued under subsection (2).
R.S., 1985, c. C-46, s. 485; R.S., 1985, c. 27 (1st Supp.), s. 67; 1992, c. 1, s. 60(F); 1997, c. 18, s. 40; 2002, c. 13, s. 19.


CCC

Effect of Bench Warrant on Mode of Trial

Election deemed to be waived
598 (1) Notwithstanding anything in this Act, where a person to whom subsection 597(1) applies has elected or is deemed to have elected to be tried by a court composed of a judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re-elected to be tried by a court composed of a judge without a jury or a provincial court judge without a jury, he shall not be tried by a court composed of a judge and jury unless

(a) he establishes to the satisfaction of a judge of the court in which he is indicted that there was a legitimate excuse for his failure to appear or remain in attendance for his trial; or
(b) the Attorney General requires pursuant to section 568 or 569 that the accused be tried by a court composed of a judge and jury.

Election deemed to be waived
(2) An accused who, under subsection (1), may not be tried by a court composed of a judge and jury is deemed to have elected under section 536 or 536.1 to be tried without a jury by a judge of the court where the accused was indicted and section 561 or 561.1, as the case may be, does not apply in respect of the accused.
R.S., 1985, c. C-46, s. 598; R.S., 1985, c. 27 (1st Supp.), ss. 122, 185(F), 203(E); 1999, c. 3, s. 51; 2002, c. 13, s. 48(E).


[http://canlii.ca/t/7vf2#sec598 CCC}

While s. 598 does violate s. 11(f) of the Charter it is saved as a reasonable limitation under s. 1 of the Charter.[1]

  1. R v Lee, [1989] 2 SCR 1384, 1989 CanLII 21 (SCC)