Arrest and Compelling Appearance

• Author: Steve Coughlan/Glen Luther
• Profession: Professor, Schulich School of Law, Dalhousie University/Associate Professor, College of Law, University of Saskatchewan
• Pages: 183-295

183

CHA PTER 4

ARREST AND

COMPELLING

APPE A R ANCE

A. METHODS OF COMPELLING APPEAR ANCE

The topic of arrest — the f‌irst term in this chapter’s title — will occupy a

great part of the discussion below. It is necessary to recognize, however,

that powers of arrest are part of a larger scheme for causing an individ-

ual who is alleged to have committed a crime to appear in court to face

charges. For that reason, Part XVI of the Criminal Code, which contains

the arrest powers, is entitled “Compelling Appearance of Accused Before

a Justice and Interim Release.”1

The “compelling appearance” part of the chapter’s title refers to pow-

ers of arrest but also to summonses, appearance notices, and other things.

The “interim release” part refers to the various ways in which a person

can, after arrest, nonetheless be released pending trial rather than held in

custody. The most obvious of those ways is through the judicial interim

release portion of Part XVI, popularly referred to as “bail.” That is not

the only form of interim release, however, since non-judicial actors are

1 Criminal Code, RSC 1985, c C-46 [Criminal Code or Code]. Part XVI is not limited

to indictable oences, and indeed some of the arrest powers are specif‌ically

designed to cover any criminal oence. Nonetheless, note that s 795 of the Crim-

inal Code provides, with regard to summary conviction oences, that

[t]he provisions of Parts XVI and XVIII with respect to compelling the appear-

ance of an accused before a justice, and the provisions of Parts XX and XX.1,

in so far as they are not inconsistent with this Part, apply, with such modif‌ica-

tions as the circumstances require, to proceedings under this Part.

DETENTION AND AR REST184

also given a similar discretion. Indeed, it is worth noting at the start that

signif‌icant amendments were made to Part XVI in 2019, by BillC-75.2

The central goal of those amendments was to make it more likely that

an arrested person would be released at as early a stage as possible (or

not arrested in the f‌irst place), to limit the restrictions on the liberty of

persons who were released, and to streamline the procedures for such

releases. This chapter will discuss the forms of interim release available

prior to the bail-hearing stage, but the more complex topic of judicial

interim release will be left for specialist volumes on that subject.3

As noted, arrest is the most well-known method of causing a person

to appear in court to face charges, and the mental image most people

have is probably that of a warrantless arrest. It is worth observing, there-

fore, that having warrantless arrest in mind as a model for that pro-

cess is somewhat misleading. The most obvious actors in a warrantless

arrest will be the police ocers who take an accused into custody. That

mental image therefore obscures the fact that the decision to make a

person account for their actions to a court is generally not one made

exclusively by a police ocer. Rather, the decision that that is necessary

must normally have been reached separately by both a police ocer

and a justice of the peace. Sometimes this decision by a justice of the

peace will precede the police ocer’s interaction with the individual, and

sometimes it will follow it, but except in one instance — arrest without

a warrant — it does occur at some point. Even in that one exception, the

accused person is then taken in front of a justice, although in a slightly

dierent context.

Furthermore, although the image of an arrest involves taking physical

control of the accused person, that too is not the only model. Sum-

monses and appearance notices consist of a written demand to the per-

son to appear in court; in essence, because of the nature of the charges or

the situation, it is reasonable to expect that the person will comply with

the request that they appear. “Request” is not an entirely accurate word

since there are signif‌icant legal consequences for non-compliance, but at

least initially the person is given the opportunity to comply voluntarily.4

These two considerations — whether the approval of the justice

of the peace is sought before or after the fact and whether the indi-

vidual is given an opportunity to comply or is physically compelled to

appear — can be seen as creating a matrix of four possibilities, as set out

2 Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other

Acts and to make consequential amendments to other Acts, SC 2019, c 25 [Bill C-75].

3 See, for example, Gary Trotter, The Law of Bail in Canada, 3d ed (Toronto: Carswell,

2010) [Trotter].

4 Criminal Code, above note 1, s 145.

Arrest and Compelling Appearance 185

in Figure 4.1, below. In fact, the four methods of compelling appear-

ance — appearance notice, summons, arrest with a warrant, and arrest

without a warrant — f‌it neatly into that matrix.5

Figure 4.1: Compelling Appearance Matrix

Justice of the Peace

conf‌irmation f‌irst

Justice of the Peace

conf‌irmation second

Give written

notice

Summons

• def‌ined—s , Form 

• lay information before JP—

s 

• issuance by JP—s 

• issuance in private prosecu-

tion—s .

• contents—s (), () & ()

• service—s (), ss .–

.

• failure to comply—s ()

• expiry—s , s ()

Appearance notice

• def‌ined—s , Form 

• availability—s 

• contents—s ()

• judicial referral hearing—s 

• arrest for failure to comply—

s 

• failure to comply—s ()

• lay information before JP—

s 

• conf‌irmation (or not) by JP—

s 

• expiry—s , s ()

Take physical

control

Arrest with a warrant

• availability—s , s(),

s 

• contents—s , s 

• execution—s , s

() & ()

• release after arrest—s ,

s(.)

• take before JP—s 

Arrest without a warrant

• power—ss –

• release after arrest—s (),

s (.)

• take before JP—s 

• territorial validity—s ()

& ()

It will be helpful at this point simply to “trace through” these vari-

ous routes to compelling a person’s appearance before a court. To some

extent, this is an artif‌icial division since the routes overlap at many

points or follow parallel paths; still, it is useful for the purposes of clarity

to examine the features of each route separately, to the extent possible.

Following that, we will look in greater detail at specif‌ic issues within the

compelling-appearance scheme.

5 There are other mechanisms that are relevant to compelling appearance. For

example, after an accused has been arrested, a peace ocer has the obligation in

some circumstances to release the accused on either an appearance notice or an

undertaking: see s 498(1.1) or s 503(1.1). These options, however, are more akin

to the judicial interim-release provisions rather than the powers available to a

peace ocer in initiating contact with a person. They are discussed in more detail

below, under “Restraint in Compelling Appearance.”