Compelling Attendance by Accused Without Arrest (Until December 18, 2019)
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:
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 a 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 CanLII 2626 (SKQB), 1984 CarswellSask 368, 12 WCB 222, 34 Sask R 161, per Matheson J, at para 13
- Re Ridgely, 1978 CanLII 2471 (NL SC), 42 CCC (2d) 291, per Mifflin CJ - Mandamus was used to compel the judge to require attendance
Issuing a Summons Without Arrest
A summons has no connection to the powers of arrest or judicial release. The subject is simply compelled to attend court and nothing more.
A summons for the purpose of attending for fingerprinting is only permitted when there is a concurrent order to attend court relating to charges.
A person who is to be summons should be given a notice under Form 6 of the Code.