Compelling Attendance by Accused Without Arrest
| This page was last substantively updated or reviewed December 2022. (Rev. # 95860) |
General Principles
An accused can be compelled to attend court without arrest by means of either an appearance notice or a summons.
Appearance Notice
Section 497 concerns the issuing of an appearance notice without arrest:
- Issue of appearance notice by peace officer
497 If, by virtue of subsection 495(2) [public interest exception to arrest power], a peace officer does not arrest a person, they may issue an appearance notice to the person if the offence is
- (a) an indictable offence mentioned in section 553 [absolute jurisdiction offences];
- (b) an offence for which the person may be prosecuted by indictment or for which they are punishable on summary conviction; or
- (c) an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble); 2019, c. 25, s. 212.
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Where an officer provides an appearance notice, the notice must be confirmed under s. 505 and 508.
An "appearance notice" is defined under s. 493 as "a notice in Form 9 issued by a peace officer".
If an accused refuses to sign an appearance notice, that is not a reason to detain. The signature "merely permits the appearance notice to be confirmed by a justice of the peace". Without it the officer would need to adduce proof of service.[1]
A failure of a judge to confirm an appearance notice does not remove the judge's jurisdiction over the matter. The defect can be cured by the accused's attendance.[2]
Appearance notices can be issued after arrest under s. 497 or 498.
- ↑
R v Farncombe, 1984 CanLII 2626 (SK QB), 1984 CarswellSask 368, 12 WCB 222, 34 Sask R 161, per Matheson J, at para 13
- ↑ Re Ridgely, 1978 CanLII 2471 (NL SC), 42 CCC (2d) 291, per Mifflin CJ - Mandamus was used to compel the judge to require attendance
Appearance Notice for Breach of Conditions
- Appearance notice for judicial referral hearing
496 If a peace officer has reasonable grounds to believe that a person has failed to comply with a summons, appearance notice, undertaking or release order or to attend court as required and that the failure did not cause a victim physical or emotional harm, property damage or economic loss, the peace officer may, without laying a charge, issue an appearance notice to the person to appear at a judicial referral hearing under section 523.1 [judicial referral hearing].
R.S., c. C-34, s. 451; R.S., c. 2(2nd Supp.), s. 5; 2019, c. 25, s. 212.
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Contents of Appearance Notice
- Contents of appearance notice
500 (1) An appearance notice shall
- (a) set out the name, date of birth and contact information of the accused;
- (b) set out the substance of the offence that the accused is alleged to have committed;
- (c) require the accused to attend court at a time and place to be stated in the notice and to attend afterwards as required by the court; and
- (d) indicate if the accused is required to appear at a judicial referral hearing under section 523.1 [judicial referral hearing] for a failure under section 496 [Appearance notice for judicial referral hearing].
- Summary of consequences — failure to appear
(2) An appearance notice shall set out a summary of subsections 145(3) [failure to comply with appearance notice or summons] and (6) [provisions re failure to comply – no excuse where offence wrongly described], section 512.2 [Arrest warrant – failure to appear under appearance notice or undertaking] and subsection 524(4) [breach allegations – remand after cancellation] and the possible consequences of a failure to appear at a judicial referral hearing under section 523.1 [judicial referral hearing].
- Attendance for purposes of Identification of Criminals Act
(3) An appearance notice may require the accused to appear at the time and place stated in it for the purposes of the Identification of Criminals Act, if the accused is alleged to have committed an offence referred to in paragraph 2(1)(c) of that Act.
- Signature of accused
(4) An accused shall be requested to sign in duplicate their appearance notice and, whether or not they comply with that request, one of the duplicates shall be given to the accused. If the accused fails or refuses to sign, the lack of their signature does not invalidate the appearance notice.
2019, c. 25, s. 215; 2022, c. 17, s. 28.
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Issuing a Summons Without Arrest
A summons can be issued under s. 493, 508 or 512.
- Summons vs Arrest and Release
A summons has no connection to the powers of arrest or judicial release. The subject is simply compelled to attend court and nothing more.[1]
Content of Summons
- Summons
509 (1) A summons issued under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] shall
- (a) be directed to the accused;
- (b) set out briefly the offence in respect of which the accused is charged; and
- (c) require the accused to attend court at a time and place to be stated therein and to attend thereafter as required by the court in order to be dealt with according to law.
- Service on individual
(2) A summons shall be served by a peace officer who shall deliver it personally to the person to whom it is directed or, if that person cannot conveniently be found, shall leave it for him at his latest or usual place of abode with an inmate thereof who appears to be at least sixteen years of age.
(3) [Repealed, 2008, c. 18, s. 17]
- Summary of certain provisions
(4) The summons must set out a summary of subsection 145(3) [failure to comply with appearance notice or summons], section 512.1 [Arrest warrant – failure to appear under summons] and subsection 524(4) [breach allegations – remand after cancellation].
- Attendance for purposes of Identification of Criminals Act
(5) A summons may require the accused to appear at a time and place stated in it for the purposes of the Identification of Criminals Act, if the accused is alleged to have committed an offence referred to in paragraph 2(1)(c) of that Act.
R.S., 1985, c. C-46, s. 509; R.S., 1985, c. 27 (1st Supp.), s. 80; 1992, c. 47, s. 71; 1996, c. 7, s. 38; 2008, c. 18, s. 17; 2019, c. 25, s. 221; 2022, c. 17, s. 31.
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- Fingerprinting
A summons for the purpose of attending for fingerprinting is only permitted when there is a concurrent order to attend court relating to charges.[2]
- Procedure
A person who is to be summons should be given a notice under Form 6 of the Code.[3]
- ↑
R v Goikhberg, 2014 QCCS 3891 (CanLII), QJ 8164, per Cournoyer J, at paras 50 to 57, 85
- ↑
R v Michelsen, 1983 CanLII 3564 (MB QB), 4 CCC (3d) 371, 33 CR (3d) 285, per Scollin J
- ↑
Goikhberg, supra, at para 54
Summons - Identification of Criminals Act
- Summons — Identification of Criminals Act
485.2 (1) A justice or judge may, on application in writing and on oath in Form 6.1 , issue a summons, in Form 6.2 , requiring an accused or offender to appear at a time and place stated in it for the purposes of the Identification of Criminals Act if
- (a) the accused is charged with, or the offender has been determined to be guilty of, an offence referred to in paragraph 2(1)(c) of that Act;
- (b) the accused or offender was previously required to appear for the purposes of that Act and the measurements, processes or operations referred to in that Act were not completed; and
- (c) the justice or judge is satisfied that the reasons for the measurements, processes or operations not having been completed were exceptional.
- Limitation
(2) Subsection (1) applies in respect of an offender only if proceedings are ongoing in relation to the matter for which they were previously required to appear for the purposes of the Identification of Criminals Act and for which the sentencing proceedings have not concluded.
- Reasons
(3) The application must state the reasons why the measurements, processes or operations were not completed.
- Ex parte application
(4) A justice or judge may proceed ex parte to determine an application made under subsection (1) .
- Application — telecommunication
(5) The application may also be made by any means of telecommunication that produces a writing.
- Alternative to oath
(6) A person who uses a means of telecommunication referred to in subsection (5) may, instead of swearing an oath, make a statement in writing stating that all matters contained in the application are true to their knowledge and belief, and that statement is deemed to be a statement made under oath.
- Contents of summons
(7) The summons must
- (a) be directed to the accused or offender;
- (b) set out briefly the offence in respect of which the accused is charged or the offender has been determined to be guilty; and
- (c) set out a summary of subsection 145(3) , section 512.1 [Arrest warrant – failure to appear under summons] and subsection 524(4) [breach allegations – remand after cancellation].
- Service of summons
(8) The summons must be served by a peace officer who shall either deliver it personally to the person to whom it is directed or, if that person cannot conveniently be found, leave it for the person at their latest or usual place of residence with any person found there who appears to be at least 16 years of age.
2022, c. 17, s. 15.
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