Compelling Attendance by Accused Without Arrest
Compelling Attendance Without Arrest
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:
- where the offence is one under s. 553, a summary, or hybrid offence, and
- 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:
- establish the identity of the person,
- secure or preserve evidence of or relating to the offence, or
- prevent the continuation or repetition of the offence or the commission of another offence, and
- 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"
Grounds to Issue an Appearance Notice Without an Arrest
Section 496 concerns the issuing of an appearance notice without arrest:
Issue of appearance notice by peace officer
496. Where, by virtue of subsection 495(2), a peace officer does not arrest a person, he may issue an appearance notice to the person if the offence is
- (a) an indictable offence mentioned in section 553;
- (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction; or
- (c) an offence punishable on summary conviction.
R.S., c. C-34, s. 451; R.S., c. 2(2nd Supp.), s. 5.
The listed offences in s. 496(a), (b) and (c) appear to consist of all straight summary conviction offences, hybrid offences, and those indictable offences listed in s. 553. These listed offences match the same listed offences found in s. 495(2) which establish offences for which an officer may consider not affecting an arrest.
Where an officer provides an appearance notice, the notice must be confirmed under s. 505 and 508.
An "appearance notice" is defined under s. 493 as "a notice in Form 9 issued by a peace officer".
If an accused refuses to sign an appearance notice, that is not reason to detain. The signature "merely permits the appearance notice to be confirmed by a justice of the peace". Without it the officer would need to adduce proof of service.
A failure of a judge to confirm an appearance notice does not remove the judge's jurisdiction over the matter. The defect can be cured by the accused's attendance.
Appearance notices can be issued after arrest under s. 497 or 498.
see Absolute Jurisdiction Offences for a list of 553 offences:
- "theft, other than theft of cattle" (where value =< $5,000)
- "obtaining money or property by false pretences", (where value =< $5,000)
- "possess stolen property" (value =< $5,000)
- Fraud (value =< $5,000)
- "mischief under subsection 430(4)" (value =< $5,000)
- Gaming and betting-related offences]
- Keeping a Common Bawdy-house (210)
- "fraud in relation to fares" under s 393
- Breach of SOIRA Order under s. 490.031 or 490.0311
- "failure to comply with probation order" under s. 733.1
- "breach of recognizance" under s. 811
- Possession of a Schedule II Drug
- Trafficking Scheduled II Drug
- "counselling or with a conspiracy or attempt to commit or with being an accessory after the fact" of the listed offences
- See Warrantless Arrests
R v Farncombe, 1984 CarswellSask 368, 12 W.C.B. 222, 34 Sask. R. 161, at para 13
- Re Ridgely (1978), 42 CCC (2d) 291, Mifflin C.J - Mandamus was used to compel the judge to require attendance
Issuing a Summons Without Arrest
A summons for the purpose of attending for fingerprinting is only permitted when there is a concurrent order to attend court relating to charges.
509 (1) A summons issued under this Part shall
- (a) be directed to the accused;
- (b) set out briefly the offence in respect of which the accused is charged; and
- (c) require the accused to attend court at a time and place to be stated therein and to attend thereafter as required by the court in order to be dealt with according to law.
Service on individual
(2) A summons shall be served by a peace officer who shall deliver it personally to the person to whom it is directed or, if that person cannot conveniently be found, shall leave it for him at his latest or usual place of abode with an inmate thereof who appears to be at least sixteen years of age.
(3) [Repealed, 2008, c. 18, s. 17]
Content of summons
(4) There shall be set out in every summons the text of subsection 145(4) and section 510.
Attendance for purposes of Identification of Criminals Act
(5) A summons may require the accused to appear at a time and place stated in it for the purposes of the Identification of Criminals Act, where the accused is alleged to have committed an indictable offence and, in the case of an offence designated as a contravention under the Contraventions Act, the Attorney General, within the meaning of that Act, has not made an election under section 50 of that Act.
R.S., 1985, c. C-46, s. 509; R.S., 1985, c. 27 (1st Supp.), s. 80; 1992, c. 47, s. 71; 1996, c. 7, s. 38; 2008, c. 18, s. 17.
R. v Michelsen (1983), 4 C.C.C. (3d) 371, 33 C.R. (3d) 285 (Man. Q.B.)(*no link)