Arrest Warrants for Accused Persons
| This page was last substantively updated or reviewed August 2021. (Rev. # 96082) |
General Principles
Provincial and superior courts may issue a summons or a warrant to arrest accused persons who is already released on some form of bail. Once the accused is arrested under the warrant, s. 524 governs whether they are to be detained or released.
Provincial Court Warrant
A justice of the provincial court may issue a warrant to arrest an accused under s. 512 (or more typically under s. 524).[1]
- Timing
Warrants under s. 512 can be issued at any point in the proceedings.[2]
- Procedure
A warrant under s. 512 is available even where the process is defective.[3]
There is no need for a written charge before the justice before they can seek a warrant under s. 524.[4]
- Forms
A summons under s. 508 or 512 should use Form 6.
- ↑ Ed - the reliance on s. 524 for authority to issue warrants is a bit odd. The progenitor s. 458 contemplated issuing a warrant however it was modified to remove the language referencing warrants and yet it is still used in that manner. If anyone can explain this, please let me know.
- ↑
Ex Parte Chung, 1975 CanLII 1231 (BC CA), 26 CCC (2d) 497, per McFarlane JA, at p. 509 ("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), 9 CCC (3d) 539, per Kerans JA, at paras 48 to 51
- ↑ R v Gougeon, 1980 CanLII 2842 (ON CA), 55 CCC (2d) 218, per Morden JA
- ↑ Fulton v The Queen, 1972 CanLII 861 (SK QB), 10 CCC (2d) 120, per Tucker J - re s. 458 [now s. 524]
"Public Interest" Warrant for Accused
Section 512(1) accords a provincial court justice discretion to issue either (a) a summons or (b) a warrant of arrest. The issuance of either of these orders under s. 512(1) requires that the justice believe that it is "necessary in the public interest".
- 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 undertaking has been confirmed or cancelled under subsection 508(1) [justice obligation on receiving an information];
- (b) a summons has previously been issued under subsection 507(4) [summons to be issued except in certain cases]; or
- (c) the accused has been released without conditions or with the intention of compelling their appearance by way of summons.
[omitted (2)]
R.S., 1985, c. C-46, s. 512; R.S., 1985, c. 27 (1st Supp.), s. 82; 1997, c. 18, s. 58; 2019, c. 25, s. 223.
[annotation(s) added]
Where the justice has "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]
- ↑ R v Demelo, 1994 CanLII 1368 (ON CA), 92 CCC (3d) 52, per Austin JA
- ↑ Demelo, ibid.
"Attendance" Warrant for Accused
Section 512(2)(a) and (b) accords a provincial court justice discretion to issue a warrant of arrest where an accused fails to attend pursuant to a served summons (512(2)(a)) or a confirmed appearance notice or undertaking (512(2)(b)). Section 512(2)(c) provides the ability to issue a warrant where the court is satisfied the accused is evading service of a summons.
512
[omitted (1)]
- 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 undertaking has been confirmed under subsection 508(1) [justice obligation on receiving an information] and the accused fails to attend court in accordance with it 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. 512; R.S., 1985, c. 27 (1st Supp.), s. 82; 1997, c. 18, s. 58; 2019, c. 25, s. 223.
[annotation(s) added]
Superior Court Warrant
Where the accused is directed to attend superior court, the superior court justice may order a warrant under s. 597.
- 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 [forms] for his arrest.
- Execution
(2) A warrant issued under subsection (1) [bench warrant for failing to attend for indictment] may be executed anywhere in Canada.
- Interim release
(3) If an accused is arrested under a warrant issued under subsection (1) [bench warrant for failing to attend for indictment], a judge of the court that issued the warrant may make a release order referred to in section 515 [judicial interim release provisions].
- 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; 2019, c. 25, s. 266.
[annotation(s) added]
Process Once Arrested
Section 524 governs the process to be followed by the provincial court when a person is arrested on a warrant for breaching previous release conditions issued by either the provincial or superior court level.
Section 524(1) authorizes the issuance of a warrant of arrest.
The justice considers the following:
- if the accused had previously been released under a s. 522(3) order of a superior court, the justice should send the matter to that court (s. 524(1)(a)). Otherwise, the justice may determine the issue of release.
- whether the Crown seeks to cancel the original attendance instrument on account of failing to attend or due to the commission of another indictable offence (s. 524(2))
- if the justice is satisfied that the accused failed to attend or committed another indictable offence, the justice must cancel the original attendance instrument
- if the attendance instrument is cancelled the justice must order the detention of the accused unless they can show cause for release (s. 524)
- if the justice does not cancel the previous instrument, the justice must release the accused
- Hearing
524 (1) When an accused is taken before a justice in any of the circumstances described in subsection (2) [power of justice to hear breach allegations – circumstances], the justice shall
- (a) if the accused was released from custody under an order made under subsection 522(3) [release of accused on s. 469 offences] by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court so that the judge may hear the matter; or
- (b) in any other case, hear the matter.
- Circumstances
(2) The circumstances referred to in subsection (1) [power of justice to hear breach allegations] are the following:
- (a) the accused has been arrested for the contravention of or having been about to contravene, a summons, appearance notice, undertaking or release order and the prosecutor seeks to have it cancelled under this section; or
- (b) the accused has been arrested for having committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order and the prosecutor seeks to have it cancelled under this section.
[omitted (3), (4), (5), (6), (7), (8), (9) and (10)]
R.S., 1985, c. C-46, s. 524; 1999, c. 3, s. 33; 2019, c. 25, s. 234.
[annotation(s) added]
Variation and Replacement of Undertaking
- Variation of undertaking on consent
502 (1) The undertaking in respect of which an accused has been released under section 498, 499 or 503 may, with the written consent of the accused and the prosecutor, be varied and the undertaking so varied is deemed to be an undertaking given under section 498 [release by peace officer (warrantless arrest)], 499 [release by peace officer (warrant arrest)] or 503 [taking person before justice after arrest], as the case may be.
- Replacement by justice of undertaking with order
(2) The accused or the prosecutor may, in the absence of consent between them, apply to a justice for a release order under subsection 515(1) [release order without conditions] or (2) [release order without conditions] to replace an undertaking given by the accused under paragraph 498(1)(c) [release from custody – arrest without warrant – undertaking to peace officer], 499(b) [release by peace officer (warrant arrest) — undertaking] or 503(1.1)(b) [continued re-evaluation of 24 hour detention – release on undertaking] with the order. If the prosecutor applies for the order, the prosecutor must provide three days notice to the accused.
R.S., 1985, c. C-46, s. 502; 1992, c. 47, s. 70; 1996, c. 7, s. 38; 1997, c. 18, s. 54; 2019, c. 25, s. 215.
[annotation(s) added]