Compelling Attendance by Accused Without Arrest (Until December 18, 2019)

This page was last substantively updated or reviewed January 2020. (Rev. # 92340)

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Compelling Attendance Without Arrest

Appearance Notice

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:

1. where the offence is one under s. 553, a summary, or hybrid offence, and
2. 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:
   1. establish the identity of the person,
   2. secure or preserve evidence of or relating to the offence, or
   3. prevent the continuation or repetition of the offence or the commission of another offence, and
3. 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) [public interest exception to arrest power], 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 [absolute jurisdiction offences];

(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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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.

Issuing a Summons Without Arrest

Summons

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.

– CCC (CanLII), (DOJ)

A summons has no connection to the powers of arrest or judicial release. The subject is simply compelled to attend court and nothing more.

Fingerprinting

A summons for the purpose of attending for fingerprinting is only permitted when there is a concurrent order to attend court relating to charges.

Procedure

A person who is to be summons should be given a notice under Form 6 of the Code.