View source for Issuing Process

[[fr:Processus_de_délivrance]]
{{Currency2|January|2020}}
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==General Principles==
{{seealso|Laying of an Information|Warrant Arrests}}

Issuing process refers to the initial phase of the prosecution where the charges are laid before a judicial officer and the accused is notified of the existence of the charges.

The Criminal Code gives a peace officer two options on how to commence the prosecution. They have the option under s. 507 of first laying the charges and then notifying the accused through a summons or arrest (''Charge First''). Alternatively, the officer can arrest or summons the accused to a court date under s. 508 and then lay the charges after the notice is given (''Notify First'').

[[File:Charging flow chart.png|thumb]]
Once Justice of the Peace has reviewed and taken oath of the allegations in the information, the information must be endorsed either confirming the release documents, if the accused is present, or issue a summons or arrest warrant if the accused is not present. 

; Judicial Authorization Hearing is Ex Parte and In Camera
The stage where the justice decides whether to "issue process" in order to compel the accused to attend Court is held ''ex parte'' (without notice to the accused) and ''in camera'' (closed proceedings).<ref>
{{CanLIIRP|McHale|29rrx|2010 ONCA 361 (CanLII)|256 CCC (3d) 26}}{{perONCA-H|Watt JA}}{{atL|29rrx|48}}<br>
</ref>

; When a Criminal Prosecution Starts
It is only once process is issued that a "criminal prosecution" commences.<ref>
{{ibid1|McHale}}{{atL|29rrx|71}}<br>
</ref>
By contrast a "criminal proceedings" is commenced on the "laying or receipt of an information in writing and under oath."<ref>
{{ibid1|McHale}}{{atL|29rrx|70}}<br>
cf. {{CanLIIRP|Awad|gg43m|2015 NSCA 10 (CanLII)|1126 APR 116}}{{perNSCA|Beveridge JA}}{{atL|gg43m|49}} ("The swearing of an information is the act that commences the prosecution of an accused")<br>
</ref>

; Failure to Endorse the Process
A failure to confirm the release document ("the process") results in the information has been found to produce a nullity.<ref>
{{CanLIIRP|Gougeon|gdkhp|1980 CanLII 2842 (ON CA)|[1980] OJ No 1332 (ONCA)}}<br>
{{CanLIIRx|Matykubov|2b8hl|2010 ONCJ 233 (CanLII)}}{{perONCJ|Armstrong J}}</ref> 
However, the growing attitude has been that the failure to endorse the process does not eliminate jurisdiction over the matter, and rather can only be used to support a charge of failure to attend.<ref>
{{CanLIIRx|Haight|fks5f|2011 ONCJ 156 (CanLII)}}{{perONCJ|Krelove J}}<br> 
{{CanLIIRP|Duran|fp8x2|2011 ONSC 7346 (CanLII)|285 CCC (3d) 46}}{{perONSC|Trotter J}}</ref>

; Burden to Prove Compliance
There is an onus on the accused to establish that the justice of the peace did not comply with the requirements of s.504-508.<ref>Romanchuk at 6</ref> 
If the requirements are not met, the courts may lose jurisdiction over the accused and the charge may become a nullity.

; Forms
A summons issued under s. 493, 508 or 512 should use Form 6.<ref>
see [[List of Criminal Code Forms]]
</ref>

; Constitutionality
The ''ex parte'' nature of the hearing under s. 507 violates s. 2(b) of the Charter protecting rights of expression. However, they are justified under s. 1 of the Charter and are lawful.<ref>
{{CanLIIRP|Southam Inc v Coulter (CA)|g13bv|1990 CanLII 6963 (ON CA)|60 CCC (3d) 267}}{{perONCA|Krever JA}}
</ref>

; Issuing Process an Unconstitutional Offence
Where an offence has been found by a court to be contrary to the Charter and of no force or effect, it is still within the discretion of the issuing justice or judge to issue process for that offence.<ref>
{{CanLIIRPC|Canadian Broadcasting Corporation et al v Morrison|h36bh|2017 MBCA 36 (CanLII)|MJ No 95}}{{perMBCA|Mainella JA}}
</ref>

{{reflist|2}}

==Issuing Process Under s. 507 (Charge First)==

Upon an information or an indictment being laid under s. 504, the informant (usually a peace officer) can apply to a justice of the peace to compel the accused to attend court either by way of a summons or arrest warrant.

{{quotation2|
; Justice to hear informant and witnesses — public prosecutions
507 (1) Subject to subsection 523(1.1) {{AnnSec5|523(1.1)}}, a justice who receives an information laid under section 504 by a peace officer, a public officer, the Attorney General or the Attorney General’s agent, other than an information laid before the justice under section 505 {{AnnSec5|505}}, shall, except if an accused has already been arrested with or without a warrant,
:(a) hear and consider, ex parte,
::(i) the allegations of the informant, and
::(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and
:<u>(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence.</u>

; Process compulsory
(2) No justice shall refuse to issue a summons or warrant by reason only that the alleged offence is one for which a person may be arrested without warrant.
<br>
{{removed|(3), (4) and (5)}}
; Endorsement of warrant by justice
(6) A justice who issues a warrant under this section or section 508 {{AnnSec5|508}}, 512 {{AnnSec5|512}}, 512.1 {{AnnSec5|512.1}} or 512.2 {{AnnSec5|512.2}} may, unless the offence is one listed in section 469, authorize the release of the accused under section 499 by making an endorsement on the warrant in Form 29.

{{removed|(7)}}
; Issue of summons or warrant
(8) Where, on an appeal from or review of any decision or matter of jurisdiction, a new trial or hearing or a continuance or renewal of a trial or hearing is ordered, a justice may issue either a summons or a warrant for the arrest of the accused in order to compel the accused to attend at the new or continued or renewed trial or hearing.
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 507; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 78; 
{{LegHistory90s|1994, c. 44}}, s. 43; 
{{LegHistory00s|2002, c. 13}}, s. 21;
{{LegHistory10s|2019, c. 25}}, s. 219.<br>{{Underline}}
|{{CCCSec2|507}}
|{{NoteUp|507|1|2|6|8}}
}}

The justice of the peace should issue a summons unless it is in the public interest to issue a warrant.(s. 507(4))

Implied within the phrase of s. 507, includes an exception where "detained at the time the information is laid."<ref>
{{CanLIIRP|Ladzinski|fqzsv|2012 ONCJ 205 (CanLII)|101 WCB (2d) 129}}{{perONCJ|Harris J}}{{atL|fqzsv|9}}<br> 
{{CanLIIRP|Drozd|2fntv|2011 ONCJ 51 (CanLII)|[2011] OJ No 616 (OCJ)}}{{perONCJ|Schwarzl J}}</ref>

; Definitions
"Justice" is defined in s. 2 as comprising either a justice of the peace or a provincial court judge.<ref>
see [[Definition of Judicial Officers and Offices]]
</ref>

; Procedure
{{quotation2|
507<br>
{{removed|(1) and (2)}}
; Procedure when witnesses attend
(3) A justice who hears the evidence of a witness pursuant to subsection (1) {{AnnSec5|507(1)}} shall
:(a) take the evidence on oath; and
:(b) cause the evidence to be taken in accordance with section 540 {{AnnSec5|540}} in so far as that section is capable of being applied.
<br>
{{removed|(4), (5), (6), (7) and (8)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 507; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 78; 
{{LegHistory90s|1994, c. 44}}, s. 43; 
{{LegHistory00s|2002, c. 13}}, s. 21;
{{LegHistory10s|2019, c. 25}}, s. 219.
{{Annotation}}
|{{CCCSec2|507}}
|{{NoteUp|507|3}}
}}

Section 507 provides for a justice of the peace to receive an unsworn information outside of those received under s. 505. If the justice receives an information where the accused has not been arrested, the justice must hear and consider evidence setting out the allegations. If satisfied there is reasonable grounds to believe an offence has been committed, the justice may issue a summons or a warrant of arrest to compel the accused to attend before the justice of the peace or a provincial court. Note that the provision does not contemplate the issuance of an appearance notice or promise to appear.

Section 507 gives the justice of the peace the power to issue a summons or warrant where he has received (1) an application from the police or Crown for the summons or warrant and (2) the justice has received allegations or evidence making out the basis for the warrant or summons.<ref>
{{CanLIIRx|Worme|gflgp|2014 SKQB 383 (CanLII)}}{{perSKQB|Zuk J}}{{atL|gflgp|28}}<br>
</ref>

; Cancelling an Order
A provincial court judge and justice of the peace who issue process by way of an arrest warrant under s. 507 has the jurisdiction to cancel that order at their discretion.<ref>
{{CanLIIRP|Muirhead|2bhm3|1974 CanLII 274 (AB QB)|1 WWR 680}}{{perABQB|Milvain CJ}}
</ref>

; Other Similar Powers
Section 578 provides a similar authority to authorize the issuance of a summons or warrant where there has been a [[Direct Indictments|direct indictment]].

{{reflist|2}}

===Section 507(4) Public Interest Warrant or Summons===

{{quotation2|
507<br>
{{removed|(1), (2) and (3)}}
; Summons to be issued except in certain cases
(4) Where a justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the accused unless the allegations of the informant or the evidence of any witness or witnesses taken in accordance with subsection (3) {{AnnSec5|507(3)}} discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused.
<br>
{{removed|(5)}}
; Endorsement of warrant by justice
(6) A justice who issues a warrant under this section or section 508 {{AnnSec5|508}}, 512 {{AnnSec5|512}}, 512.1 {{AnnSec5|512.1}} or 512.2 {{AnnSec5|512.2}} may, unless the offence is one listed in section 469 {{AnnSec4|469}}, authorize the release of the accused under section 499 {{AnnSec4|499}} by making an endorsement on the warrant in Form 29 {{AnnSec|Form 29}}.
<br>
; Undertaking or appearance notice deemed confirmed
(7) If, under subsection (6) {{AnnSec5|507(6)}}, a justice authorizes the release of an accused under section 499 {{AnnSec4|499}}, an appearance notice or undertaking referred to in that section shall be deemed, for the purposes of subsection 145(3) {{AnnSec1|145(3)}} or (4) {{AnnSec1|145(4)}}, as the case may be, to have been confirmed by a justice under section 508 {{AnnSec5|508}}.
<br>
{{removed|(8)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 507; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 78; 
{{LegHistory90s|1994, c. 44}}, s. 43; 
{{LegHistory00s|2002, c. 13}}, s. 21;
{{LegHistory10s|2019, c. 25}}, s. 219.
{{Annotation}}
|{{CCCSec2|507}}
|{{NoteUp|507|4|6|7}}
}}

; Validity of Appearance Notice
Where a non-essential component of an appearance notice has been changed from what was presented to the justice it may invalidate the information.<ref>
{{CanLIIRx|Lalonde|253b0|2009 ONCJ 369 (CanLII)}}{{perONCJ|Libman J}}{{atL|253b0|18}} - officer sworn to serving copy of appearance notice which was changed before service
</ref>

; Validity of the Warrant
If a warrant is issued then the peace officer may arrest the accused under s. 511. (see [[Warrant Arrests]])

{{reflist|2}}

==Issuing Process Under s. 508 (Notify First)==
Section 508 sets out the requirement to confirm the form of the release as well as the need to consider the allegations from the informant and, where necessary, hear evidence, where an information has been laid under s. 505. 

{{quotation2|
; Justice to hear informant and witnesses
508 (1) A justice who receives an information laid before him under section 505 {{AnnSec5|505}} shall
:(a) hear and consider, ex parte,
::(i) the allegations of the informant, and
::(ii) the evidence of witnesses, where he considers it desirable or necessary to do so;
:(b) if the justice considers that a case for so doing is made out, whether the information relates to the offence alleged in the appearance notice or undertaking or to an included or other offence,
::(i) confirm the appearance notice or undertaking and endorse the information accordingly, or
::(ii) cancel the appearance notice or undertaking and issue, in accordance with section 507 {{AnnSec5|507}}, either a summons or a warrant for the arrest of the accused to compel the accused to attend before the justice or some other justice for the same territorial division to answer to a charge of an offence and endorse on the summons or warrant that the appearance notice or undertaking has been cancelled; and
:(c) if the justice considers that a case is not made out for the purposes of paragraph (b), cancel the appearance notice or undertaking and cause the accused to be immediately notified of the cancellation.
; Procedure when witnesses attend
(2) A justice who hears the evidence of a witness pursuant to subsection (1) {{AnnSec5|508(1)}} shall
:(a) take the evidence on oath; and
:(b) cause the evidence to be taken in accordance with section 540 {{AnnSec5|540}} in so far as that section is capable of being applied.
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 508; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 79; 
{{LegHistory10s|2019, c. 25}}, s. 220.
{{Annotation}}
|{{CCCSec2|508}}
|{{NoteUp|508|1|2}}
}}

Section 508(1) provides a "safeguard against people having to appear in court to answer charges where a judicial officer has not considered the case for issuing process.<ref>
{{CanLIIRx|Matykubov|2b8hl|2010 ONCJ 233 (CanLII)}}{{perONCJ|Armstrong J}}
</ref>

Where the accused is released, a justice of the peace will review the charge before ordering the accused to attend court.(s. 508) If satisfied that there is reason to compel an accused to attend court, the justice will confirm the appearance notice or cancel it and issue a summons or warrant of arrest.<ref>
{{CanLIIRP|Romanchuk|fnn9l|2011 SKCA 127 (CanLII)|375 Sask R 296}}{{perSKCA|Caldwell JA}}{{atL|fnn9l|4}}</ref>

{{Reflist|2}}