Accused Arrest Warrants for Failing to Attend Court: Difference between revisions
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[[Fr:Mandats_d'arrêt_pour_défaut_de_comparution_au_tribunal]] | |||
{{Currency2|August|2021}} | |||
{{HeaderArrest}} | {{HeaderArrest}} | ||
==General Principles== | ==General Principles== | ||
{{seealso|Warrant Arrests|Compelling Attendance by Accused Without Arrest | {{seealso|Warrant Arrests|Compelling Attendance by Accused Without Arrest|Arrest Warrants for Accused Persons}} | ||
Under s. 511, the execution of a warrant or arrest authorizes 1) the arrest of the accused and 2) the officer to bring the accused before a judge in the territorial division in which the warrant was issued.<ref> | Under s. 511, the execution of a warrant or arrest authorizes 1) the arrest of the accused and 2) the officer to bring the accused before a judge in the territorial division in which the warrant was issued.<ref> | ||
| Line 33: | Line 11: | ||
A provincial court judge upon issuing an arrest warrant cannot require that the accused only be brought the issuer of the warrant.<ref> | A provincial court judge upon issuing an arrest warrant cannot require that the accused only be brought the issuer of the warrant.<ref> | ||
{{ | {{CanLIIRP|Davidson|1jfks|2004 ABCA 337 (CanLII)| 193 CCC (3d) 63}}{{TheCourtABCA}} | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
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{{LegHistory10s|2019, c. 25}}, s. 223. | {{LegHistory10s|2019, c. 25}}, s. 223. | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|512}} | ||
|{{NoteUp|512|2}} | |{{NoteUp|512|2}} | ||
}} | }} | ||
| Line 70: | Line 40: | ||
{{LegHistory10s|2019, c. 25}}, s. 224. | {{LegHistory10s|2019, c. 25}}, s. 224. | ||
| | |{{CCCSec2|512.1}} | ||
|{{NoteUp|512.1}} | |{{NoteUp|512.1}} | ||
}} | }} | ||
| Line 80: | Line 50: | ||
{{LegHistory10s|2019, c. 25}}, s. 224. | {{LegHistory10s|2019, c. 25}}, s. 224. | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|512.2}} | ||
|{{NoteUp|512.2}} | |{{NoteUp|512.2}} | ||
}} | }} | ||
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{{LegHistory10s|2019, c. 25}}, s. 224. | {{LegHistory10s|2019, c. 25}}, s. 224. | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|512.3}} | ||
|{{NoteUp|512.3}} | |{{NoteUp|512.3}} | ||
}} | }} | ||
===Bench Warrant for Failing to Attend Trial=== | ===Bench Warrant for Failing to Attend Trial at Superior Court=== | ||
The judge ordering an arrest under s. 475 (absconding during trial), Part XVI (compelling attendance), 597 (bench warrant), 800 (summary trial) or 803 (summary appearance) can issue a warrant using "Form 7", which is the standard arrest warrant. | The judge ordering an arrest under s. 475 (absconding during trial), Part XVI (compelling attendance), 597 (bench warrant), 800 (summary trial) or 803 (summary appearance) can issue a warrant using "Form 7", which is the standard arrest warrant. | ||
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{{LegHistory10s|2019, c. 25}}, s. 266. | {{LegHistory10s|2019, c. 25}}, s. 266. | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|597}} | ||
|{{NoteUp|597|1|2|3|4|5}} | |{{NoteUp|597|1|2|3|4|5}} | ||
}} | }} | ||
===Bench Warrant for Failing to Attend Trial for Summary Offence=== | |||
{{quotation2| | {{quotation2| | ||
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R.S., {{LegHistory80s|1985, c. C-46}}, s. 800; | R.S., {{LegHistory80s|1985, c. C-46}}, s. 800; | ||
{{LegHistory90s|1997, c. 18}}, s. 111; | {{LegHistory90s|1997, c. 18}}, s. 111; | ||
{{LegHistory00s|2003, c. 21}}, s. 21. | {{LegHistory00s|2003, c. 21}}, s. 21; | ||
{{LegHistory10s|2019, c. 25}}, s. 317; | |||
{{LegHistory20s|2022, c. 17}}, s. 53. | |||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|800}} | ||
|{{NoteUp|800|2}} | |{{NoteUp|800|2}} | ||
}} | }} | ||
| Line 152: | Line 126: | ||
{{LegHistory90s|1997, c. 18}}, s. 112; | {{LegHistory90s|1997, c. 18}}, s. 112; | ||
{{LegHistory00s|2008, c. 18}}, s. 45. | {{LegHistory00s|2008, c. 18}}, s. 45. | ||
| | |{{CCCSec2|803}} | ||
|{{NoteUp|803|2}} | |{{NoteUp|803|2}} | ||
}} | }} | ||
| Line 164: | Line 138: | ||
485<br> | 485<br> | ||
{{removed|(1)}} | {{removed|(1)}} | ||
; When accused not appearing personally | ; When accused not appearing personally or in person | ||
(1.1) Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally, so long as the provisions of this Act or a rule made under section 482 {{AnnSec4|482}} or 482.1 {{AnnSec4|482.1}} permitting the accused not to appear personally apply. | (1.1) Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally or in person, so long as the provisions of this Act or a rule made under section 482 {{AnnSec4|482}} or 482.1 {{AnnSec4|482.1}} permitting the accused not to appear personally or in person apply. | ||
; Summons or warrant | ; Summons or warrant | ||
(2) Where jurisdiction over an accused or a defendant is lost and has not been regained, a court, judge, provincial court judge or justice may, within three months after the loss of jurisdiction, issue a summons, or if it or he considers it necessary in the public interest, a warrant for the arrest of the accused or defendant. | (2) Where jurisdiction over an accused or a defendant is lost and has not been regained, a court, judge, provincial court judge or justice may, within three months after the loss of jurisdiction, issue a summons, or if it or he considers it necessary in the public interest, a warrant for the arrest of the accused or defendant. | ||
| Line 184: | Line 157: | ||
{{LegHistory90s|1997, c. 18}}, s. 40; | {{LegHistory90s|1997, c. 18}}, s. 40; | ||
{{LegHistory00s|2002, c. 13}}, s. 19; | {{LegHistory00s|2002, c. 13}}, s. 19; | ||
{{LegHistory10s|2019, c. 25}}, s. 188. | {{LegHistory10s|2019, c. 25}}, s. 188; | ||
{{LegHistory20s|2022, c. 17}}, s. 14. | |||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|485}} | ||
|{{NoteUp|485|1.1|2|3|4|5}} | |{{NoteUp|485|1.1|2|3|4|5}} | ||
}} | }} | ||
; Loss of Jurisdiction | |||
It is said that when an adjournment or remand date is passed without the court addressing the matter, the provincial court loses jurisdiction over the offence.<Ref> | |||
{{CanLIIRP|Krannenburg|1z46z|1980 CanLII 179 (SCC)|[1980] 1 SCR 1053}} at page 1056 ("Loss of jurisdiction over the offence occurred when the date of adjournment or remand passed and “nothing was done”. Such procedural defect destroyed the jurisdiction of the court. The indictment or warrant became invalid and of no effect") | |||
</ref> | |||
It also loses jurisdiction over the information.<ref> | |||
{{ibid1|Krannenburg}} at p. 1056 ("Where a court fails to proceed with a hearing, jurisdiction over the information charging the accused with the offence is lost, and thereafter “that information is to be treated as if it had never been laid”: ")<br> | |||
{{CanLIIRP|Doyle|1z6fv|1976 CanLII 11 (SCC)|[1977] 1 SCR 597}}{{perSCC-H|Ritchie J}} at p. 610<Br> | |||
</ref> | |||
Where jurisdiction is lost, the crown may apply for a order of mandamus to issue a summons or warrant to compel attendance anew. The accused may apply for an order of prohibition to stop the provincial court from re-initiating jurisdiction.<Ref> | |||
{{CanLIIR|Harper|hwn0b|2018 SKQB 332 (CanLII)}}{{perSKQB|Rothery J}}{{atsL|hwn0b|9| and 10}} | |||
</ref> | |||
It is suggested that the 1985 amendments to what was s. 440.1 expands the scope of jurisdiction and meritme<REf> | |||
{{CanLIIR|Poole|j2hdg|2019 BCPC 219 (CanLII)}}{{perBCPC|Hewson J}}{{AtL|j2hdg|15}}<br> | |||
</ref> | |||
{{reflist|2}} | |||
===Effect of Bench Warrant on Mode of Trial=== | ===Effect of Bench Warrant on Mode of Trial=== | ||
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{{LegHistory00s|2002, c. 13}}, s. 48(E). | {{LegHistory00s|2002, c. 13}}, s. 48(E). | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|598}} | ||
|{{NoteUp|598|1|2}} | |{{NoteUp|598|1|2}} | ||
}} | }} | ||
While s. 598 does violate s. 11(f) of the Charter it is saved as a reasonable limitation under s. 1 of the Charter.<ref> | While s. 598 does violate s. 11(f) of the Charter it is saved as a reasonable limitation under s. 1 of the Charter.<ref> | ||
{{CanLIIRP|Lee|1fszr|1989 CanLII 21 (SCC)| | {{CanLIIRP|Lee|1fszr|1989 CanLII 21 (SCC)|[1989] 2 SCR 1384}}{{perSCC|Lamer J}} | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Latest revision as of 07:09, 23 July 2024
| This page was last substantively updated or reviewed August 2021. (Rev. # 95816) |
General Principles
Under s. 511, the execution of a warrant or arrest authorizes 1) the arrest of the accused and 2) the officer to bring the accused before a judge in the territorial division in which the warrant was issued.[1]
A provincial court judge upon issuing an arrest warrant cannot require that the accused only be brought the issuer of the warrant.[2]
- ↑
Charles, supra
- ↑ R v Davidson, 2004 ABCA 337 (CanLII), 193 CCC (3d) 63, per curiam
Warrant for Failing to Attend Under Summons or Appearance Notice
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. 511; R.S., 1985, c. 27 (1st Supp.), s. 81; 1997, c. 18, s. 57; 2019, c. 25, s. 223.
[annotation(s) added]
- Arrest warrant — failure to appear under summons
512.1 If an accused who is required by a summons to appear at the time and place stated in it for the purposes of the Identification of Criminals Act does not appear at that time and place 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, a justice may issue a warrant for the arrest of the accused for the offence with which the accused is charged.
2019, c. 25, s. 224.
- Arrest warrant — failure to appear under appearance notice or undertaking
512.2 If an accused who is required by an appearance notice or undertaking to appear at the time and place stated in it for the purposes of the Identification of Criminals Act does not appear at that time and place, a justice may, if the appearance notice or undertaking has been confirmed by a justice under section 508 [justice to hear informant and witnesses], issue a warrant for the arrest of the accused for the offence with which the accused is charged.
2019, c. 25, s. 224.
[annotation(s) added]
- Warrant to appear under section 524
512.3 If a justice is satisfied that there are reasonable grounds to believe that an accused has contravened or is about to contravene any summons, appearance notice, undertaking or release order that was issued or given to the accused or entered into by the accused or has committed an indictable offence while being subject to any summons, appearance notice, undertaking or release order, the justice may issue a warrant for the purpose of taking them before a justice under section 524 [procedure relating to breach of conditions].
2019, c. 25, s. 224.
[annotation(s) added]
Bench Warrant for Failing to Attend Trial at Superior Court
The judge ordering an arrest under s. 475 (absconding during trial), Part XVI (compelling attendance), 597 (bench warrant), 800 (summary trial) or 803 (summary appearance) can issue a warrant using "Form 7", which is the standard arrest warrant.
- 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]
Bench Warrant for Failing to Attend Trial for Summary Offence
s. 800
[omitted (1)]
- Counsel or agent
(2) A defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 [forms] for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto. [omitted (2.1) and (3)]
R.S., 1985, c. C-46, s. 800; 1997, c. 18, s. 111; 2003, c. 21, s. 21; 2019, c. 25, s. 317; 2022, c. 17, s. 53.
[annotation(s) added]
- Summary Conviction Trial
803
[omitted (1)]
- Non-appearance of defendant
(2) If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been notified of that time and place, or does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1) [summary offences – right to adjourn matters], the summary conviction court
- (a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or
- (b) may, if it thinks fit, issue a warrant in Form 7 [forms] for the arrest of that defendant and adjourn the trial to await their appearance under the warrant.
[omitted (3) and (4)]
(5) to (8) [Repealed, 1991, c. 43, s. 9]
R.S., 1985, c. C-46, s. 803; 1991, c. 43, s. 9; 1994, c. 44, s. 79; 1997, c. 18, s. 112; 2008, c. 18, s. 45.
Effect of Failure to Attend on Jurisdiction
- Procedural irregularities
485
[omitted (1)]
- When accused not appearing personally or in person
(1.1) Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally or in person, so long as the provisions of this Act or a rule made under section 482 [powers of the superior and appellate court to make rules] or 482.1 [powers of the superior and appellate court to make case management rules] permitting the accused not to appear personally or in person apply.
- Summons or warrant
(2) Where jurisdiction over an accused or a defendant is lost and has not been regained, a court, judge, provincial court judge or justice may, within three months after the loss of jurisdiction, issue a summons, or if it or he considers it necessary in the public interest, a warrant for the arrest of the accused or defendant.
- Dismissal for want of prosecution
(3) Where no summons or warrant is issued under subsection (2) [procedural irregularities in summons or warrant] within the period provided therein, the proceedings shall be deemed to be dismissed for want of prosecution and shall not be recommenced except in accordance with section 485.1 [recommencing dismissed charges].
- Adjournment and order
(4) Where, in the opinion of the court, judge, provincial court judge or justice, an accused or a defendant who appears at a proceeding has been misled or prejudiced by reason of any matter referred to in subsection (1) [procedural irregularities], the court, judge, provincial court judge or justice may adjourn the proceeding and may make such order as it or he considers appropriate.
- Part XVI to apply
(5) The provisions of Part XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] apply with such modifications as the circumstances require where a summons or warrant is issued under subsection (2) [procedural irregularities in summons or warrant].
R.S., 1985, c. C-46, s. 485 R.S., 1985, c. 27 (1st Supp.), s. 67; 1992, c. 1, s. 60(F); 1997, c. 18, s. 40; 2002, c. 13, s. 19; 2019, c. 25, s. 188; 2022, c. 17, s. 14.
[annotation(s) added]
- Loss of Jurisdiction
It is said that when an adjournment or remand date is passed without the court addressing the matter, the provincial court loses jurisdiction over the offence.[1] It also loses jurisdiction over the information.[2]
Where jurisdiction is lost, the crown may apply for a order of mandamus to issue a summons or warrant to compel attendance anew. The accused may apply for an order of prohibition to stop the provincial court from re-initiating jurisdiction.[3]
It is suggested that the 1985 amendments to what was s. 440.1 expands the scope of jurisdiction and meritme[4]
- ↑ R v Krannenburg, 1980 CanLII 179 (SCC), [1980] 1 SCR 1053 at page 1056 ("Loss of jurisdiction over the offence occurred when the date of adjournment or remand passed and “nothing was done”. Such procedural defect destroyed the jurisdiction of the court. The indictment or warrant became invalid and of no effect")
- ↑
Krannenburg, ibid. at p. 1056 ("Where a court fails to proceed with a hearing, jurisdiction over the information charging the accused with the offence is lost, and thereafter “that information is to be treated as if it had never been laid”: ")
R v Doyle, 1976 CanLII 11 (SCC), [1977] 1 SCR 597, per Ritchie J at p. 610
- ↑ R v Harper, 2018 SKQB 332 (CanLII), per Rothery J, at paras 9 and 10
- ↑
R v Poole, 2019 BCPC 219 (CanLII), per Hewson J, at para 15
Effect of Bench Warrant on Mode of Trial
- Election deemed to be waived
598 (1) Notwithstanding anything in this Act, where a person to whom subsection 597(1) [bench warrant for failing to attend for indictment] applies has elected or is deemed to have elected to be tried by a court composed of a judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re-elected to be tried by a court composed of a judge without a jury or a provincial court judge without a jury, he shall not be tried by a court composed of a judge and jury unless
- (a) he establishes to the satisfaction of a judge of the court in which he is indicted that there was a legitimate excuse for his failure to appear or remain in attendance for his trial; or
- (b) the Attorney General requires pursuant to section 568 [Attorney General override] or 569 [Attorney General may require trial by jury — Nunavut] that the accused be tried by a court composed of a judge and jury.
- Election deemed to be waived
(2) An accused who, under subsection (1) [deemed re-election to judge alone if fail to attend trial], may not be tried by a court composed of a judge and jury is deemed to have elected under section 536 [trial of absolute jurisdiction offences] or 536.1 [trial of absolute jurisdiction offences – Nunavut] to be tried without a jury by a judge of the court where the accused was indicted and section 561 [right of re-election] or 561.1 [right of re-election - Nunavut], as the case may be, does not apply in respect of the accused.
R.S., 1985, c. C-46, s. 598; R.S., 1985, c. 27 (1st Supp.), ss. 122, 185(F), 203(E); 1999, c. 3, s. 51; 2002, c. 13, s. 48(E).
[annotation(s) added]
While s. 598 does violate s. 11(f) of the Charter it is saved as a reasonable limitation under s. 1 of the Charter.[1]
- ↑ R v Lee, 1989 CanLII 21 (SCC), [1989] 2 SCR 1384, per Lamer J