View source for Failure to Attend Court or Appear (Offence)

{{Currency2|January|2020}}
{{LevelZero}}{{HeaderOffences}}

{{OffenceBox
|OffenceTitle=Failure to Attend Court or Appear
|OffencePage=Failure to Attend Court or Appear
|Section=145(2) and (3)
|Act={{OBCCC}}
|CrownElection={{OBHybridElection}}
|Jurisdiction={{OBJurisdictionAll-Under14}}
|Bail={{OBBailAll}}	
|SummaryDisp={{OBDispAll}}
|SummaryMin={{OBMinNone}}
|SummaryMax={{OBSConviction}}
|IndictableDisp={{OBDispSame}}
|IndictableMin={{OBMinNone}}
|IndictableMax={{OBTime|2 years}}
}}

==Overview==
{{seealso|Breach of Undertaking, Recognizance, or Probation (Offence)}}
{{OverviewIV|failure to attend court or appear}}

; Pleadings
<!--
{{PleadingsHeader}}
{{PleadingsHybridList-Under14|s. 145}}
{{PleadingsEnd}}
-->
{{PleadingsHybridElection|s. 145(2) {{DescrSec|145(2)}}, (3) {{DescrSec|145(3)}} }}

; Release
{{ReleaseHeader}}
|s. 145(2) {{DescrSec|145(2)}}, <br>s. 145(3) {{DescrSec|145(3)}} || {{ReleaseProfile-Hybrid}} 
|-
{{ReleaseEnd}}

{{ReleaseOptions-Hybrid|s. 145(2) {{DescrSec|145(2)}}, (3) {{DescrSec|145(3)}} }}

:''<u>Renversement du fardeau de la preuve</u>''
{{ReverseOnusCirc}}

{{ReverseOnus145}}

:''Fingerprints and Photos''
{{IDCriminalAct|s. 145}}

; Publication Bans
{{GeneralPubBan}}

; Offence Designations
{{DesignationHeader}}
|s. 145(2) {{DescrSec|145(2)}}, <br>s. 145(3) {{DescrSec|145(3)}}  || {{XMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark}} <!--SPIO--> || {{XMark}} <!--consent--> || {{XMark}}
{{DesignationEnd}}

{{SeeBelowForAncillary}}

==Offence Wording==
{{quotation2|
145<br>
{{removed|(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; 
:(c) fails to surrender themselves in accordance with an order of the court, justice or judge, as the case may be; or
:(d) fails, without lawful excuse, to comply with an order made under section 515.‍01 {{AnnSec5|515.01}}.

; 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 {{AnnSec5|508}} 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.

{{removed|(4), (5), (5.1), (6), (7), (8), (9), (10) and (11)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 145; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 20; 
{{LegHistory90s|1992, c. 47}}, s. 68; 
{{LegHistory90s|1994, c. 44}}, s. 8; 
{{LegHistory90s|1996, c. 7}}, s. 38; 
{{LegHistory90s|1997, c. 18}}, s. 3; 
{{LegHistory00s|2008, c. 18}}, s. 3; 
{{LegHistory10s|2018, c. 29}}, s. 9;
{{LegHistory10s|2019, c. 25}}, s. 47;
{{LegHistory20s|2022, c. 17}}, s. 4.
{{Annotation}}
|{{CCCSec2|145}} 
|{{NoteUp|145|2|3}}
}}

===Draft Form of Charges===
{{seealso|Draft Form of Charges}}
{{DraftHeader}}
|-
| 145(2)
| failure to attend
|"{{ellipsis1}}, having been released to appear on a release order or undertaking did unlawfully fail to appear in accordance with the said release order or undertaking contrary to section 145(2){{CCC}}.
|-
| 145(3)
| failure to comply with appearance notice or summons
|"{{ellipsis1}}, being at large on a release orderentered into before a justice and being bound to comply with a condition of that release order: [describe the condition], without lawful excuse failed to comply with the condition by [describe conduct] contrary to section 145(3){{CCC}}.
{{DraftEnd}}

==Proof of the Offence==
{{ElementHeader}}
{{ElementLeft}}
{{Proving|failure to attend court|145(2)}}
{{InitialElements}}
# {{box}} the culprit is subject to one of the following:
## {{box}} an "undertaking or recognizance given to or entered into before a justice or judge", if he is at large;
## {{box}} directed to attend court at a later time while appearing before a court, judge or justice;
# {{box}} the culprit fails to attend court in accordance with the court order or as required  by the court, justice or judge; and 
# {{box}} the culprit had no lawful excuse for the prohibited conduct.

{{ElementRight}}

{{Proving|failure to appear on summons|145(3)}}<ref> 
{{CanLIIRx|King|1cht3|2002 CanLII 40375 (NL PC)}}{{perNLPC|Gorman J}}<br>
</ref>
{{InitialElements}}
# {{box}} the culprit was properly served with a summons; 
# {{box}} the summons is for the "purposes of the ''Identification of Criminals Act'' or to attend court";
# {{box}} the culprit failed "to appear at a time and place stated" in the summons; 
# {{box}} having appeared in accordance with the summons, the culprit failed to appear thereafter as required by the court; and
# {{box}} the culprit had no lawful excuse for the prohibited conduct.
{{ElementEnd}}
{{reflist|2}}

==Interpretation of the Offence==
The offence of failing to appear in court is not an offence of strict liability.<ref>
{{CanLIIRP|Hammoud|fqc6p|2012 ABQB 110 (CanLII)|534 AR 80}}{{perABQB|Strekaf J}}<br>
{{CanLIIRP|Loutitt|fn4tw|2011 ABQB 545 (CanLII)|284 CCC (3d) 518}}{{perABQB|Germain J}}<br></ref>

===145(2) - Failure to Attend===
The purpose of the offence under s. 145(2) is to "enable courts to control their own process."<ref>
{{CanLIIRP|Jerrett|hn9mg|2017 NLCA 65 (CanLII)|356 CCC (3d) 285}}{{perNLCA|Hoegg JA}} (3:0){{atL|hn9mg|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.")
</ref>

Section 145(2) creates a single offence that can be committed in three different ways:<ref>
{{CanLIIRP|Charles|1nwtp|2006 ABCA 216 (CanLII)|210 CCC (3d) 289}}{{perABCA|Fruman JA}}{{atL|1nwtp|8}}<br></ref>
# being at large on an undertaking or recognizance and failing to attend court (a); 
# having appeared before a court and failing to attend thereafter as required by the court (b); and 
# 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.<ref>
{{supra1|Jarrett}}
</ref>

{{reflist|2}}

===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.<ref>
{{CanLIIRP|Hubek|fn3sp|2011 ABCA 254 (CanLII)|[2011] AJ No 990 (CA)}}{{TheCourtABCA}}</ref>

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).<ref>
{{CanLIIRx|St. Pierre|gnj4b|2016 ONCA 173 (CanLII)}}{{TheCourtONCA}}{{atL|gnj4b|10}}
</ref>

{{reflist|2}}

==Lawful Excuse==
The burden is upon the accused to show a lawful excuse on a balance of probabilities.<ref>
see {{CanLIIRP|Ludlow|54cp|1999 BCCA 365 (CanLII)|136 CCC (3d) 460}}{{perBCCA|Hall JA}}{{atL|54cp|30}}<br>
{{CanLIIRP|Custance|1jrjw|2005 MBCA 23 (CanLII)|194 CCC (3d) 225}}{{perMBCA|Steel JA}}{{atL|1jrjw|24}}
</ref>

There is some debate on what constitutes the ''mens rea'' of failure to attend. Certain courts have stated that negligence is sufficient.<ref>
{{CanLIIRP|Hammoud|fqc6p|2012 ABQB 110 (CanLII)|534 AR 80}}{{perABQB|Strekaf J}}<br> {{CanLIIRx|Bremner|1n15g|2006 ABPC 93 (CanLII)}}{{perABPC|Fraser J}}</ref> 
While others have stated that it requires an intent (either wilful blindness or recklessness).<ref>
{{CanLIIRP|Loutitt|fn4tw|2011 ABQB 545 (CanLII)|284 CCC (3d) 518}}{{perABQB|Germain J}}<br> {{CanLIIRP|Eby|1qvlm|2007 ABPC 81 (CanLII)|47 CR (6th) 289}}{{perABPC|Allen J}}<br>{{CanLIIRP|Potts|fqstj|2012 ABPC 78 (CanLII)|537 AR 159}}{{perABPC|Rosborough J}}</ref>

An honest mistake of the time and date of attendance<ref>
{{CanLIIRP|Bender|htwmp|1976 CanLII 1439 (BC SC)|30 CCC (2d) 496 (B.C.S.C.)}}{{perBCSC|Munroe J}}</ref> as well as forgetfulness <ref>
{{CanLIIRP|Neal|g9d9s|1982 CanLII 3203 (ON SC)|67 CCC (2d) 92 (Ont. Co. Ct.)}}{{perONSC|Matlow J}}<br>
{{supra1|Loutitt}}<br>
</ref> can serve to negate the ''mens rea'' of the offence.
The accused must be able to show a due diligence.<ref> {{supra1|Ludlow}}{{atL|54cp|40}}</ref>

{{quotation2|
145<br>
{{removed|(1), (2), (3), (4), (5) and (5.1)}}
; Not an excuse
(6) For the purposes of subsections (3) {{AnnSec1|145(3)}} and (4) {{AnnSec1|145(4)}}, it is not a lawful excuse that an appearance notice or undertaking states defectively the substance of the alleged offence.

{{removed|(7), (8), (9), (10) and (11)]
R.S., {{LegHistory80s|1985, c. C-46}}, s. 145; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 20; 
{{LegHistory90s|1992, c. 47}}, s. 68; 
{{LegHistory90s|1994, c. 44}}, s. 8; 
{{LegHistory90s|1996, c. 7}}, s. 38; 
{{LegHistory90s|1997, c. 18}}, s. 3; 
{{LegHistory00s|2008, c. 18}}, s. 3; 
{{LegHistory10s|2018, c. 29}}, s. 9;
{{LegHistory10s|2019, c. 25}}, s. 47.
{{Annotation}}
|{{CCCSec2|145}} 
|{{NoteUp|145|6}}
}}

; Lawful Excuse Under Contravensions Act
{{quotation2|
145<br>
{{removed|(1), (2), (3), (4), (5), (5.1), (6) and (7)}}
; Election of Crown under ''Contraventions Act''
(8) For the purposes of paragraph (2)(a) {{AnnSec1|145(2)(a)}} and subsections (3) to (5) {{AnnSec1|145(3) to (5)}}, 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.
<br>
{{removed|(9), (10) and (11)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 145; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 20; 
{{LegHistory90s|1992, c. 47}}, s. 68; 
{{LegHistory90s|1994, c. 44}}, s. 8; 
{{LegHistory90s|1996, c. 7}}, s. 38; 
{{LegHistory90s|1997, c. 18}}, s. 3; 
{{LegHistory00s|2008, c. 18}}, s. 3; 
{{LegHistory10s|2018, c. 29}}, s. 9;
{{LegHistory10s|2019, c. 25}}, s. 47.
{{Annotation}}
|{{CCCSec2|145}}
|{{NoteUp|145|8}}
}}
{{reflist|2}}

==Evidence==
===Proof by Certificate===
{{quotation2|
145<br>
{{removed|(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) {{AnnSec1|145(2) to (4)}}, 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) {{AnnSec1|145(2)}}, 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) {{AnnSec1|145(3)}}, the accused was named in an appearance notice that was confirmed by a justice under section 508 {{AnnSec5|508}} 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) {{AnnSec1|145(3)}}, 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) {{AnnSec1|145(4)}}, the accused was at large on an undertaking that was confirmed by a justice under section 508 {{AnnSec5|508}}, 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) {{AnnSec1|145(9)}} 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) {{AnnSec1|145(9)}} 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., {{LegHistory80s|1985, c. C-46}}, s. 145; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 20; 
{{LegHistory90s|1992, c. 47}}, s. 68; 
{{LegHistory90s|1994, c. 44}}, s. 8; 
{{LegHistory90s|1996, c. 7}}, s. 38; 
{{LegHistory90s|1997, c. 18}}, s. 3; 
{{LegHistory00s|2008, c. 18}}, s. 3; 
{{LegHistory10s|2018, c. 29}}, s. 9;
{{LegHistory10s|2019, c. 25}}, s. 47.
{{Annotation}}
|{{CCCSec2|145}}
|{{NoteUp|145|9|10|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."<ref>
see [http://www.canlii.ca/t/7vf2#sec145 s. 145(9)]<br>
{{CanLIIRx|Evaglok|2b3kf|2010 NWTSC 35 (CanLII)}}, ''per''  Charbonneau JA{{atsL|2b3kf|27| to 29}} - appeal dismissed at [http://canlii.ca/t/2dkjd 2010 NWTCA 12] (CanLII){{perNWTCA|Vertes JA}}<br>
see also [[Judicial Notice]]<br>
</ref>

The Court should take notice of its own records showing attendance of the accused in appearances.<ref>
{{CanLIIRx|Tkachuk|2438n|2009 BCSC 834 (CanLII)}}{{perBCSC|Chamberlist J}}{{atsL|2438n|13|}}, {{atsL-np|2438n|19|}}<br>
</ref>

{{reflist|2}}

==Participation of Third Parties==
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}

; Testimonial Aids
{{3rdPTestimonyAids}}

; On Finding of Guilt 
{{VictimHeader}} <!-- Sections / Notice of Agree / Notice of Restitution / Notice of VIS --> 
|s. x {{DescrSec|x}} || || || 
|- 
{{VictimEnd}}

<!--
{{606Notice5Y|XX}}
{{606NoticeSPIO|XX}}
-->
{{RestitutionNotice}}

{{VISNotice}}

==Sentencing Principles and Ranges==
{{seealsoSentencing}}

; Maximum Penalties
{{MaxPenaltyHybrid|s. 145(2) {{DescrSec|145(2)}} and (3) {{DescrSec|145(3)}}|'''{{Max2Years}}''' | '''{{summaryconviction}}''' }}

; Minimum Penalties
{{NoMinimumPenalties}}

; Available Dispositions
{{SProfileAvailHeader}}
|s. 145(2) {{DescrSec|145(2)}} and (3) {{DescrSec|145(3)}}|| any|| {{SProfileAll}}
|-
{{SProfileEnd}}
{{AllDispositionsAvailable}} 

; Consecutive Sentences
{{NoConsecutive}}

===Principles===

===Ranges===
{{seealsoRanges|Failure to Attend Court or Appear}}

==Ancillary Sentencing Orders==
{{seealso|Ancillary Orders}}
	
; Offence-specific Orders
{{AOrderHeader}}

{{AOrder1|[[DNA Orders]] | s. 145(2) {{DescrSec|145(2)}} and (3) {{DescrSec|145(3)}} |
{{SecondDNA(CtoE)|s. 145(2) {{DescrSec|145(2)}} and (3) {{DescrSec|145(3)}} }} }}

{{AOrderEnd}}

; General Sentencing Orders
{{GeneralSentencingOrders}}

; General Forfeiture Orders
{{GeneralForfeitureOrders}}

==Record Suspensions and Pardons== 

{{RecordSuspension|s. 145(2) {{DescrSec|145(2)}} and (3) {{DescrSec|145(3)}} }} 

==History==
Prior to December 13, 2018, the offence read:
{{quotation1|
145
<br>...<br>
; 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,<br>
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.
<br>
...<br>
; 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.

...<br>
; 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.
<br>...<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 145; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 20; {{LegHistory90s|1992, c. 47}}, s. 68; 
{{LegHistory90s|1994, c. 44}}, s. 8; {{LegHistory90s|1996, c. 7}}, s. 38; 
{{LegHistory90s|1997, c. 18}}, s. 3; 
{{LegHistory00s|2008, c. 18}}, s. 3.
|{{CCCSec2|145}}
|{{NoteUp|}}
}}
==See Also==
; References
* [[Pre-Trial and Trial Motions Checklist]]

{{OffencesNavBar/Admin}}