Failure to Attend Court or Appear (Offence)

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Failure to Attend Court or Appear
s. 145(2) and (3) of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 2 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Breach of Undertaking, Recognizance, or Probation (Offence)

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) [failure to attend court or surrender], (3) [Failure to comply with appearance notice or summons] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a Release Order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 145(2) [failure to attend court or surrender],
s. 145(3) [Failure to comply with appearance notice or summons]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 145(2) [failure to attend court or surrender], (3) [Failure to comply with appearance notice or summons] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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]".

Fingerprints and Photos

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 criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 145(2) [failure to attend court or surrender],
s. 145(3) [Failure to comply with appearance notice or summons]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

145
[omitted (1)]

Failure to attend court or surrender

(2) Every person 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 who,

(a) is at large on a release order and who fails, without lawful excuse, to attend court in accordance with the release order;
(b) having appeared before a court, justice or judge, fails, without lawful excuse, to subsequently attend court as required by the court, justice or judge; or
(c) fails to surrender themselves in accordance with an order of the court, justice or judge, as the case may be.
Failure to comply with appearance notice or summons

(3) Every person who is named in an appearance notice that has been confirmed by a justice under section 508 [justice to hear informant and witnesses] or who is served with a summons and who fails, without lawful excuse, to appear at the time and place stated in the notice or the summons, as the case may be, for the purposes of the Identification of Criminals Act, or to attend court in accordance with the notice or the summons, as the case may be, is guilty of

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

[omitted (4), (5), (5.1), (6), (7), (8), (9), (10) and (11)]
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; 2018, c. 29, s. 9; 2019, c. 25, s. 47.
[annotation(s) added]

CCC


Note up: 145(2) and (3)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

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(3) 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.
  1. R v King, 2002 CanLII 40375 (NL PC), per Gorman J

Interpretation of the Offence

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

145(2) - Failure to Attend

The purpose of the offence under s. 145(2) is to "enable courts to control their own process".[2]

Section 145(2) creates a single offence that can be committed in three different ways:[3]

  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.

The offence under s. 145 applies to criminal as well as non-criminal provincial offences.[4]

  1. R v Hammoud, 2012 ABQB 110 (CanLII), per Strekaf J
    R v Loutitt, 2011 ABQB 545 (CanLII), per Germain J
  2. R v Jerrett, 2017 NLCA 65 (CanLII), per Hoegg JA (3:0), at para 18 ("The purpose of section 145(2)(b) is to enable courts to control their own process. Failing to give effect to a judge’s order to a defendant to return for continuation of proceedings against him or her would undermine the judge’s authority to control the process of the court and render judges’ procedural orders ineffective and unenforceable, thereby impugning the integrity of the justice system.")
  3. R v Charles, 2006 ABCA 216 (CanLII), per Fruman JA, at para 8
  4. Jarrett, supra

145(3) - Failure to Comply with Appearance Notice or Summons

Section 145(3) 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(3).[2]

  1. R v Hubek, 2011 ABCA 254 (CanLII), [2011] AJ No 990 (C.A.), per curiam
  2. R v St. Pierre, 2016 ONCA 173 (CanLII), per curiam, 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]

{{quotation2| 145
[omitted (1), (2), (3), (4), (5) and (5.1)]

Not an excuse

(6) For the purposes of subsections (3) [failure to comply with appearance notice or summons] and (4) [failure to comply with undertaking], it is not a lawful excuse that an appearance notice or undertaking states defectively the substance of the alleged offence.

[omitted (7), (8), (9), (10) and (11)] 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; 2018, c. 29, s. 9; 2019, c. 25, s. 47.
[annotation(s) added] ]

Lawful Excuse Under Contravensions Act

145
[omitted (1), (2), (3), (4), (5), (5.1), (6) and (7)]

Election of Crown under Contraventions Act

(8) For the purposes of paragraph (2)(a) [failure to attend court or surrender – at large on release order] and subsections (3) to (5) [provisions re failure to comply], it is a lawful excuse to fail to attend court in accordance with a summons, appearance notice, undertaking or release order, to comply with a condition of an undertaking or release order or to fail to appear at the time and place stated in a summons, an appearance notice or an undertaking for the purposes of the Identification of Criminals Act if — before the failure — the Attorney General, within the meaning of the Contraventions Act, makes an election under section 50 of that Act.
[omitted (9), (10) and (11)]
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; 2018, c. 29, s. 9; 2019, c. 25, s. 47.
[annotation(s) added]

CCC


Note up: 145(8)

  1. see R v Ludlow, 1999 BCCA 365 (CanLII), (1999), 136 CCC (3d) 460 (BCCA), per Hall JA, at para 30
    R v Custance, 2005 MBCA 23 (CanLII), per Steel JA, at para 24
  2. R v Hammoud, 2012 ABQB 110 (CanLII), per Strekaf J
    R v Bremner, 2006 ABPC 93 (CanLII), per Fraser J
  3. R v Loutitt, 2011 ABQB 545 (CanLII), per Germain J
    R v Eby, 2007 ABPC 81 (CanLII), per Allen J
    R v Potts, 2012 ABPC 78 (CanLII), per Rosborough J
  4. R v Bender (1975), 30 CCC (2d) 496 (B.C.S.C.), 1976 CanLII 1439 (BC SC), per Munroe J
  5. R v Neal (1982), 67 CCC (2d) 92 (Ont. Co. Ct.), 1982 CanLII 3203 (ON SC), per Matlow J
    Loutitt, supra
  6. Ludlow, supra, at para 40

Evidence

Proof by Certificate

145
[omitted (1), (2), (3), (4), (5), (5.1), (6), (7) and (8)]

Proof of certain facts by certificate

(9) In any proceedings under subsections (2) to (4) [provisions re failure to comply], a certificate of the clerk of the court or a judge of the court before which the accused is alleged to have failed to attend or of the person in charge of the place at which it is alleged the accused failed to attend for the purposes of the Identification of Criminals Act 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 if the certificate states that,

(a) in the case of proceedings under subsection (2) [failure to attend court or surrender], the accused failed to attend court as required by the release order or, having attended court, failed to subsequently attend court as required by the court, judge or justice or failed to surrender in accordance with an order of the court, judge or justice, as the case may be;
(b) in the case of proceedings under subsection (3) [failure to comply with appearance notice or summons], the accused was named in an appearance notice that was confirmed by a justice under section 508 [justice to hear informant and witnesses] and the accused failed to attend court in accordance with the notice or failed to appear at the time and place stated in the notice for the purposes of the Identification of Criminals Act, as the case may be;
(c) in the case of proceedings under subsection (3) [failure to comply with appearance notice or summons], a summons was issued to and served on the accused and the accused failed to attend court in accordance with the summons or failed to appear at the time and place stated in the summons for the purposes of the Identification of Criminals Act, as the case may be; and
(d) in the case of proceedings under subsection (4) [failure to comply with undertaking], the accused was at large on an undertaking that was confirmed by a justice under section 508 [justice to hear informant and witnesses], and the accused failed to attend court in accordance with the undertaking or failed to appear at the time and place stated in the undertaking for the purposes of the Identification of Criminals Act, as the case may be.
Attendance and right to cross-examination

(10) An accused against whom a certificate described in subsection (9) [proof of certain facts by certificate] is produced may, with leave of the court, require the attendance of the person making the certificate for the purposes of cross-examination.

Notice of intention to produce

(11) No certificate shall be received in evidence pursuant to subsection (9) [proof of certain facts by certificate] unless the party intending to produce it has, before the trial, given to the accused reasonable notice of his intention together with a copy of the certificate.

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; 2018, c. 29, s. 9; 2019, c. 25, s. 47.
[annotation(s) added]

CCC


Note up: 145(9), (10) and (11)

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), per Vertes JA
    see also Judicial Notice
  2. R v Tkachuk, 2009 BCSC 834 (CanLII), per Chamberlist J, 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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]

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) [failure to attend court or surrender] and (3) [Failure to comply with appearance notice or summons] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration . If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .

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) [failure to attend court or surrender] and (3) [Failure to comply with appearance notice or summons] 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) [failure to attend court or surrender] and (3) [Failure to comply with appearance notice or summons]

If convicted under s. 145(2) [failure to attend court or surrender] and (3) [Failure to comply with appearance notice or summons] , 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 the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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.

Record Suspensions and Pardons

Convictions under s. 145(2) [failure to attend court or surrender] and (3) [Failure to comply with appearance notice or summons] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

Prior to December 13, 2018, the offence read:

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

See Also

References