Arrest and Compelling Appearance

AuthorSteve Coughlan/Glen Luther
ProfessionProfessor, Schulich School of Law, Dalhousie University/Associate Professor, College of Law, University of Saskatchewan
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.
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
• 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
Arrest with a warrant
• availability—s , s(),
s 
• contents—s , s 
• execution—s , s
() & ()
• release after arrest—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.”

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT