Arrest Warrants for Accused Persons: Difference between revisions

Revision as of 20:36, 1 February 2022

This page was last substantively updated or reviewed August 2021. (Rev. # 79880)

General Principles

See also: Warrant Arrests, Breach of Release Conditions, and Accused Arrest Warrants for Failing to Attend Court

Provincial and superior courts may issue a summons or a warrant to arrest accused persons who is already released on some form of bail. Once the accused is arrested under the warrant, s. 524 governs whether they are to be detained or released.

Provincial Court Warrant

A justice of the provincial court may issue a warrant to arrest an accused under s. 512 (or more typically under s. 524).^[1]

Timing

Warrants under s. 512 can be issued at any point in the proceedings.^[2]

Procedure

A warrant under s. 512 is available even where the process is defective.^[3]

There is no need for a written charge before the justice before they can seek a warrant under s. 524.^[4]

Forms

A summons under s. 508 or 512 should use Form 6.

↑ Ed - the reliance on s. 524 for authority to issue warrants is a bit odd. The progenitor s. 458 contemplated issuing a warrant however it was modified to remove the language referencing warrants and yet it is still used in that manner. If anyone can explain this, please let me know.
↑ Ex Parte Chung, 1975 CanLII 1231 (BC CA), 26 CCC (2d) 497, per McFarlane JA, at p. 509 ("The jurisdiction of the Justice is not, therefore, limited to acting upon the initial receipt of the information, and he can receive and consider the information a second time even after the unconditional release of the accused. … There are no words limiting the exercise of the powers of a Justice to any particular stage of the proceedings.")
R v Anderson, 1983 ABCA 264 (CanLII), 9 CCC (3d) 539, per Kerans JA, at paras 48 to 51
↑ R v Gougeon, 1980 CanLII 2842 (ON CA), 55 CCC (2d) 218, per Morden JA
↑ Fulton v The Queen, 1972 CanLII 861 (SK QB), 10 CCC (2d) 120, per Tucker J - re s. 458 [now s. 524]

"Public Interest" Warrant for Accused

Section 512(1) accords a provincial court justice discretion to issue either (a) a summons or (b) a warrant of arrest. The issuance of either of these orders under s. 512(1) requires that the justice believe that it is "necessary in the public interest".

Certain actions not to preclude issue of warrant

512 (1) A justice may, where the justice has reasonable and probable grounds to believe that it is necessary in the public interest to issue a summons or a warrant for the arrest of the accused, issue a summons or warrant, notwithstanding that

(a) an appearance notice or undertaking has been confirmed or cancelled under subsection 508(1) [justice obligation on receiving an information];

(b) a summons has previously been issued under subsection 507(4) [summons to be issued except in certain cases]; or

(c) the accused has been released without conditions or with the intention of compelling their appearance by way of summons.

[omitted (2)]
R.S., 1985, c. C-46, s. 512; R.S., 1985, c. 27 (1st Supp.), s. 82; 1997, c. 18, s. 58; 2019, c. 25, s. 223.
[annotation(s) added]

– CCC

Note up: 512 (1)

Defined terms: "justice" (s. 2) and "summons" (s. 2)

Where the justice has "reasonable grounds to believe that it is necessary in the public interest to issue a summons rather than a warrant, then it would be within his discretion to so proceed."^[1] This would include information as to the whereabouts or medical condition of the accused.^[2]

↑ R v Demelo, 1994 CanLII 1368 (ON CA), 92 CCC (3d) 52, per Austin JA
↑ Demelo, ibid.

"Attendance" Warrant for Accused

Section 512(2)(a) and (b) accords a provincial court justice discretion to issue a warrant of arrest where an accused fails to attend pursuant to a served summons (512(2)(a)) or a confirmed appearance notice or undertaking (512(2)(b)). Section 512(2)(c) provides the ability to issue a warrant where the court is satisfied the accused is evading service of a summons.

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. 512; R.S., 1985, c. 27 (1st Supp.), s. 82; 1997, c. 18, s. 58; 2019, c. 25, s. 223.
[annotation(s) added]

– CCC

Note up: 512 (2)

Defined terms: "justice" (s. 2) and "summons" (s. 2)

Superior Court Warrant

Where the accused is directed to attend superior court, the superior court justice may order a warrant under s. 597.

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]

– CCC

Note up: 597 (1), (2), (3), (4), and (5)

Defined terms: "indictment" (s. 2)

Process Once Arrested

See also: Bail Consequences Upon Alleged Misconduct

Section 524 governs the process to be followed by the provincial court when a person is arrested on a warrant for breaching previous release conditions issued by either the provincial or superior court level.

Section 524(1) authorizes the issuance of a warrant of arrest.

The justice considers the following:

if the accused had previously been released under a s. 522(3) order of a superior court, the justice should send the matter to that court (s. 524(1)(a)). Otherwise, the justice may determine the issue of release.
whether the Crown seeks to cancel the original attendance instrument on account of failing to attend or due to the commission of another indictable offence (s. 524(2))
if the justice is satisfied that the accused failed to attend or committed another indictable offence, the justice must cancel the original attendance instrument
if the attendance instrument is cancelled the justice must order the detention of the accused unless they can show cause for release (s. 524)
if the justice does not cancel the previous instrument, the justice must release the accused

Hearing

524 (1) When an accused is taken before a justice in any of the circumstances described in subsection (2) [power of justice to hear breach allegations – circumstances], the justice shall

(a) if the accused was released from custody under an order made under subsection 522(3) [release of accused on s. 469 offences] by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court so that the judge may hear the matter; or

(b) in any other case, hear the matter.

Circumstances

(2) The circumstances referred to in subsection (1) [power of justice to hear breach allegations] are the following:

(a) the accused has been arrested for the contravention of or having been about to contravene, a summons, appearance notice, undertaking or release order and the prosecutor seeks to have it cancelled under this section; or

(b) the accused has been arrested for having committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order and the prosecutor seeks to have it cancelled under this section.

[omitted (3), (4), (5), (6), (7), (8), (9) and (10)]
R.S., 1985, c. C-46, s. 524; 1999, c. 3, s. 33; 2019, c. 25, s. 234.
[annotation(s) added]

– CCC

Note up: 524 (1) and (2)

Defined terms: "accused" (s. 493), "appearance notice" (s. 493), "justice" (s. 2), "release order" (s. 2), "summons" (s. 493), and "undertaking" (s. 493)

Warrant for Breaching the Identification of Criminals Act

Failure to appear

502 Where an accused who is required by an appearance notice or promise to appear or by a recognizance entered into before an officer in charge or another peace officer to appear at a time and place stated therein for the purposes of the Identification of Criminals Act does not appear at that time and place, a justice may, where the appearance notice, promise to appear or recognizance 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.
R.S., 1985, c. C-46, s. 502; 1992, c. 47, s. 70; 1996, c. 7, s. 38; 1997, c. 18, s. 54.
[annotation(s) added]

– CCC

Note up: 502

History

Historical Provisions Concerning Arrest Warrants for Accused Persons

@@ Line 182: / Line 182: @@
 ==History==
-===Section 512===
+* [[Historical Provisions Concerning Arrest Warrants for Accused Persons]]
-On June 16, 1997 s. 512 was amended with S.C. 1997, c. 18, s. 58(1).
-Section 512 was substantially re-written by Criminal Law Amendment Act, R.S.C. 1985, c. 27 (1st Supp.).
-Section 456.1 was re-enacted as s. 512 under the Criminal Code RSC 1985, c. C-46. It initially read as follows:
-{{quotation1|
-; Certain actions not to preclude issue of warrant
-(1) A justice may, where he has reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of an accused, issue a warrant under section 507 for the arrest of the accused notwithstanding that
-:(a) an appearance notice or a promise to appear or a recognizance entered into before an officer in charge has been confirmed or cancelled under subsection 508(1);
-:(b) a summons has previously been issued under subsection 507(4); or
-:(c) the accused has been released unconditionally or with the intention of compelling his appearance by way of summons.
-; 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 a promise to appear or a recognizance entered into before an officer in charge has been confirmed under subsection 508(1) and the accused fails to attend court in accordance therewith 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.
-|
-}}`
-Under the Bail Reform Act, R.S.C. 1970, c. 2 (2nd Supp.) section 456.1 was created:
-{{quotation1|
-; Certain actions not to preclude issue of warrant
-.1 (1) A justice may, where he has reasonable and probable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of an accused, issue a warrant under section 455.3 for the arrest of the accused notwithstanding that
-:(a) an appearance notice or promise to appear or a recognizance entered into before an officer in charge has been confirmed or cancelled under subsection 455.4(1);
-:(b) a summons has previously been issued under subsection 455.3(4); or
-:(c) the accused has been released unconditionally or with the intention of compelling his appearance by way of summons.
-;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 promise to appear or a recognizance entered into before an officer in charge has been confirmed under subsection 455.4(1) and the accused fails to attend court in accordance therewith 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.
-|
-}}
-===Section 524===
-Criminal Code, R.S.C. 1985, c. C-46 re-enacted s. 458 as s. 524.
-Section 458 was amended by the Criminal Law Amendment Act, S.C. 1974-75-76, c. 93.
-The passing of the ''Bail Reform Act'', R.S.C. 1970, c. 2 (2nd Supp.) created s. 458:
-{{quotation1|
-; Issue of warrant for arrest of accused
-(1) Where a justice is satisfied that there are reasonable and probable grounds to believe that an accused
-:(a) has violated or is about to violate the promise to appear, undertaking or recognizance upon which he has been released, or
-:(b) has, after his release from custody on a promise to appear, undertaking or recognizance, committed an indictable offence,
-he may issue a warrant for the arrest of the accused.
-; Arrest of accused without warrant
-(2) Notwithstanding anything in this Act, a peace officer who has reasonable and probable grounds to believe that an accused
-:(a) has violated or is about to violate the promise to appear, undertaking or recognizance upon which he has been released, or
-:(b) has, after his release from custody on a promise to appear, undertaking or recognizance, committed an indictable offence,
-may arrest the accused without warrant.
-; Hearing
-(3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall
-:(a) where the accused was released from custody pursuant to an order made under subsection 457.7(2) by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court, or
-:(b) in any other case, hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any.
-; Hearing by judge
-(4) A judge before whom an accused is taken pursuant to an order of a justice under paragraph (3)(a) shall hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any, and thereafter may make any order that to him seems proper in the circumstances.
-; Powers of justice after hearing
-(5) Where the justice before whom an accused described in subsection (3) is taken, other than an accused to whom paragraph (a) of that subsection applies, finds
-:(a) that the accused has violated or had been about to violate his promise to appear, undertaking or recognizance, or
-(b) that there are reasonable and probable grounds to believe that the accused has, after his release from custody on a promise to appear, undertaking or recognizance, committed an indictable offence,
-he may cancel the promise to appear, undertaking or recognizance and either
-(c) order that the accused be released upon his giving an undertaking or entering into a recognizance described in any of paragraphs 457(2)(a) to (d), with such conditions or additional conditions described in subsection 457(4) as the justice considers desirable, or
-(d) where the prosecutor shows cause why the detention of the accused in custody is justified within the meaning of subsection 457(7), order that the accused be detained in custody until he is dealt with according to law.
-; Reasons to be stated for order of detention
-(6) Where the justice makes an order under paragraph (5)(d), he shall include in the record a statement of his reasons for making the order, and subsection 457(6) is applicable mutatis mutandis in respect thereof.
-; Where justice to order that accused be released
-(7) Where the justice does not make a finding under paragraph (5)(a) or (b), he shall order that the accused be released from custody.
-; Provisions applicable to proceedings under this section
-(8) The provisions of sections 457.2, 457.3 and 457.4 apply mutatis mutandis in respect of any proceedings under this section, except that subsection 457.3(2) does not apply in respect of all accused who is charged with an offence mentioned in section 457.7.
-; Certain provisions applicable to order under this section
-(9) Section 457.5 applies in respect of any order made under subsection (5) as though the order were an order made by a justice under subsection 457(2) or (5), and section 457.6 applies in respect of any order made under subsection (5) as though the order were an order made by a justice under subsection 457(2).
-|
-}}
 ==See Also==