Failure to Attend Court or Appear (Offence)

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Failure to Attend Court or Appear
s. 145(2), (4) and (5) of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum six months jail and/or a $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 2 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to failure to attend court or appear are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offences under s. 145(2), (4), (5) are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 145(2), (4), or (5) OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 145(2), (4), (5), the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

There will be a reverse onus for charges under s. 145(2) to (5) "that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of [Part XVI regarding compelling appearance for an accused] or s. 679, 680 or 816 [regarding release pending appeal or review of appeal]".

A peace officer who charges a person under s. 145 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

145
...
Failure to attend court
(2) Every one who,

(a) being at large on his undertaking or recognizance given to or entered into before a justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court in accordance with the undertaking or recognizance, or
(b) having appeared before a court, justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court as thereafter required by the court, justice or judge,

or to surrender himself in accordance with an order of the court, justice or judge, as the case may be, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction.
...
Failure to appear or to comply with summons
(4) Every one who is served with a summons and who fails, without lawful excuse, the proof of which lies on him, to appear at a time and place stated therein, if any, for the purposes of the Identification of Criminals Act or to attend court in accordance therewith, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

Failure to comply with appearance notice or promise to appear
(5) Every person who is named in an appearance notice or promise to appear, or in a recognizance entered into before an officer in charge or another peace officer, that has been confirmed by a justice under section 508 and who fails, without lawful excuse, the proof of which lies on the person, to appear at the time and place stated therein, if any, for the purposes of the Identification of Criminals Act, or to attend court in accordance therewith, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

...
Idem
(6) For the purposes of subsection (5), it is not a lawful excuse that an appearance notice, promise to appear or recognizance states defectively the substance of the alleged offence.
...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3.


CCC

Proof of the Offence

Proving failure to attend court under s. 145(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit is subject to one of the following:
    1. an "undertaking or recognizance given to or entered into before a justice or judge", if he is at large;
    2. directed to attend court at a later time while appearing before a court, judge or justice;
  5. the culprit fails to attend court in accordance with the court order or as required by the court, justice or judge; and
  6. the culprit had no lawful excuse for the prohibited conduct.

Proving failure to appear on summons under s. 145(4) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was properly served with a summons;
  5. the summons is for the "purposes of the Identification of Criminals Act or to attend court";
  6. the culprit failed "to appear at a time and place stated" in the summons;
  7. having appeared in accordance with the summons, the culprit failed to appear thereafter as required by the court; and
  8. the culprit had no lawful excuse for the prohibited conduct.

Proving failure to appear on an appearance notice under s. 145(5) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit existence of the original charge against the culprit
  5. existence of an information
  6. establish the date, time and jurisdiction of original offence
  7. identify of culprit with respect to the original charge
  8. service of notice to appear (include date and time and method of service)
  9. the appearance was confirmed by a Justice
  10. the culprit failed to appear on return date
  11. that the culprit gave no excuse when arrested
  12. Proof of Non-Attendance by Certificate
  13. file certificate and notice of intention to produce

Interpretation of the Offence

The offence of failing to appear in court is not an offence of strict liability.[1]

145(2)

Section 145(2) creates a single offence that can be committed in three different ways:[2]

  1. being at large on an undertaking or recognizance and failing to attend court (a);
  2. having appeared before a court and failing to attend thereafter as required by the court (b); and
  3. having appeared before a court and failing to surrender in accordance with an order of the court.
  1. R v Hammoud, 2012 ABQB 110 (CanLII)
    R v Loutitt 2011 ABQB 545 (CanLII)
  2. R v Charles, 2006 ABCA 216 (CanLII) at para 8

145(5)

Section 145(5) does not simply apply to the first appearance in court. Rather it creates two offences. Firstly, of a failure to attend under the Identification or Criminals Act, and secondly, by missing any court appearance according to a promise to appear or appearance notice.[1]

Evidence of a name upon the original appearance notice provides at least some evidence of identity of the accused in court at trial for 145(5).[2]

  1. R v Hubek, 2011 ABCA 254 (CanLII), [2011] A.J. No. 990 (C.A.)
  2. R v St. Pierre, 2016 ONCA 173 (CanLII) at para 10

Lawful Excuse

The burden is upon the accused to show a lawful excuse on a balance of probabilities.[1]

There is some debate on what constitutes the mens rea of failure to attend. Certain courts have stated that negligence is sufficient.[2] While others have stated that it requires an intent (either wilful blindness or recklessness).[3]

An honest mistake of the time and date of attendance[4] as well as forgetfulness [5] can serve to negate the mens rea of the offence. The accused must be able to show a due diligence.[6]

  1. see R v Ludlow 1999 BCCA 365 (CanLII), (1999), 136 CCC (3d) 460 (BCCA), at para 30 Custance, 2005 MBCA 23 (CanLII) at para 24
  2. R v Hammoud
    R v Bremner 2006 ABPC 93 (CanLII)
  3. R v Loutitt
    R v Eby 2007 ABPC 81 (CanLII)
    R v Potts 2012 ABPC 78 (CanLII)
  4. R v Bender (1975), 30 CCC (2d) 496 (B.C.S.C.)
  5. R v Neal (1982), 67 CCC (2d) 92 (Ont. Co. Ct.)
    R v Loutitt, 2011 ABQB 545 (CanLII)
  6. R v Ludlow, 1999 BCCA 365 (CanLII) at para 40

Evidence

Under s.145(9), the endorsements on the certificate of the clerk or judge saying that the accused was not in attendance "is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate."[1]

The Court should take notice of its own records showing attendance of the accused in appearances.[2]

  1. see s. 145(9)
    R v Evaglok, 2010 NWTSC 35 (CanLII), per Charbonneau JA, at paras 27 to 29 - appeal dismissed at 2010 NWTCA 12 (CanLII)
    see also Judicial Notice
  2. R v Tkachuk, 2009 BCSC 834 (CanLII) at paras 13, 19

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties
Offences under s. 145(2), (4), and (5) are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration . If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine .

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 145(2), (4), and (5) any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Failure to Attend Court or Appear (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 145(2), (4), or (5)

If convicted under s. 145(2), (4), or (5), there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election.

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

References