Issuing Process
General Principles
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).
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).[1]
- When a Criminal Prosecution Starts
It is only once process is issued that a "criminal prosecution" commences.[2] By contrast a "criminal proceedings" is commenced on the "laying or receipt of an information in writing and under oath".[3]
- 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.[4] 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.[5]
- 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.[6] 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.[7]
- 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.[8]
- 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.[9]
- ↑
R v McHale, 2010 ONCA 361 (CanLII), per Watt JA, at para 48
- ↑
McHale, ibid., at para 71
- ↑
McHale, ibid., at para 70
cf. R v Awad, 2015 NSCA 10 (CanLII), per Beveridge JA, at para 49 ("The swearing of an information is the act that commences the prosecution of an accused")
- ↑ R v Gougeon, [1980] OJ No 1332 (ONCA), 1980 CanLII 2842 (ON CA)
R v Matykubov, 2010 ONCJ 233 (CanLII), per Armstrong J - ↑
R v Haight, 2011 ONCJ 156 (CanLII), per Krelove J
R v Duran, 2011 ONSC 7346(CanLII), per Trotter J - ↑ Romanchuk at 6
- ↑ see List of Criminal Code Forms
- ↑ Southam Inc. v Coulter (C.A.), 1990 CanLII 6963 (ON CA), per Krever JA
- ↑ Canadian Broadcasting Corporation et al v Morrison, 2017 MBCA 36 (CanLII), per Mainella JA
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.
Justice to hear informant and witnesses — public prosecutions
507 (1) Subject to subsection 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, 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
- (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.
- 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.
...
- No process in blank
(5) A justice shall not sign a summons or warrant in blank.
...
- 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.
R.S., 1985, c. C-46, s. 507; R.S., 1985, c. 27 (1st Supp.), s. 78; 1994, c. 44, s. 43; 2002, c. 13, s. 21.
[Underline added]
– CCC
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".[1]
- Definitions
"Justice" is defined in s. 2 as comprising either a justice of the peace or a provincial court judge.[2]
- Procedure
507
...
- Procedure when witnesses attend
(3) A justice who hears the evidence of a witness pursuant to subsection (1) shall
- (a) take the evidence on oath; and
- (b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied.
...
R.S., 1985, c. C-46, s. 507; R.S., 1985, c. 27 (1st Supp.), s. 78; 1994, c. 44, s. 43; 2002, c. 13, s. 21.
– CCC
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 a 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.[3]
- 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.[4]
- Other Similar Powers
Section 578 provides a similar authority to authorize the issuance of a summons or warrant where there has been a direct indictment.
- ↑
R v Ladzinski, 2012 ONCJ 205 (CanLII), per Harris J, at para 9
R v Drozd, 2011 ONCJ 51 (CanLII), [2011] OJ No 616 (OCJ), per Schwarzl J - ↑ see Definition of Judicial Officers and Offices
- ↑
R v Worme, 2014 SKQB 383 (CanLII), per Zuk J, at para 28
- ↑ R v Muirhead, 1974 CanLII 274 (AB QB), per Milvain CJ
Section 507(4) Public Interest Warrant or Summons
507
...
- 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) discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused.
...
- Endorsement of warrant by justice
(6) A justice who issues a warrant under this section or section 508 or 512 may, unless the offence is one mentioned in section 522, authorize the release of the accused pursuant to section 499 by making an endorsement on the warrant in Form 29.
Promise to appear or recognizance deemed to have been confirmed
(7) Where, pursuant to subsection (6), a justice authorizes the release of an accused pursuant to section 499, a promise to appear given by the accused or a recognizance entered into by the accused pursuant to that section shall be deemed, for the purposes of subsection 145(5), to have been confirmed by a justice under section 508.
...
R.S., 1985, c. C-46, s. 507; R.S., 1985, c. 27 (1st Supp.), s. 78; 1994, c. 44, s. 43; 2002, c. 13, s. 21.
– CCC
- 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.[1]
- Validity of the Warrant
If a warrant is issued then the peace officer may arrest the accused under s. 511. (see Warrant Arrests)
- ↑ R v Lalonde, 2009 ONCJ 369 (CanLII), per Libman J at para 18 - officer sworn to serving copy of appearance notice which was changed before service
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.
- Justice to hear informant and witnesses
508. (1) A justice who receives an information laid before him under section 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) where he considers that a case for so doing is made out, whether the information relates to the offence alleged in the appearance notice, promise to appear or recognizance or to an included or other offence,
- (i) confirm the appearance notice, promise to appear or recognizance, as the case may be, and endorse the information accordingly, or
- (ii) cancel the appearance notice, promise to appear or recognizance, as the case may be, and issue, in accordance with section 507, 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 and endorse on the summons or warrant that the appearance notice, promise to appear or recognizance, as the case may be, has been cancelled; and
- (c) where he considers that a case is not made out for the purposes of paragraph (b), cancel the appearance notice, promise to appear or recognizance, as the case may be, and cause the accused to be notified forthwith of the cancellation.
- Procedure when witnesses attend
(2) A justice who hears the evidence of a witness pursuant to subsection (1) shall
- (a) take the evidence on oath; and
- (b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied.
R.S., 1985, c. C-46, s. 508; R.S., 1985, c. 27 (1st Supp.), s. 79.
– CCC
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.[1]
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.[2]
- ↑ R v Matykubov, 2010 ONCJ 233 (CanLII), per Armstrong J
- ↑ R v Romanchuk, 2011 SKCA 127 (CanLII), per Caldwell JA, at para 4