Arrest and Compelling Appearance

• Author: Steve Coughlan; Glen Luther
• Pages: 173-276

173

CHA PTER 4

ARREST AND

COMPELLING

A PPE AR A NC E

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, how-

ever, that powers of arrest are part of a la rger scheme for causing an

individual who is alleged to have committed a crime to appear in court

to face charges. It is for that reason that Part XVI of the Code, which

contains the arrest powers, is actually entitled “Compelling Appe ar-

ance before a Justice and Interim Release.”1

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

powers 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 ar rest, nonetheless be released pend ing trial rath-

er than held in custody. The most obvious of those ways is th rough

the judicial interim-relea se portion of Part XVI, popularly referred to

as “bail.” That is not the only form of interim release, however, since

1 Criminal Code, RSC 1985, c C-46 [Criminal Code]. Part XV I is not limited to in-

dictable offence s, and indeed some of the arrest po wers specif‌ically are de signed

to cover any crim inal offence. Nonetheless, note s 795 of the Crimina l Code,

which provides, w ith regard to summar y conviction offences, that:

[t]he provisions of Parts XV I and XVIII with res pect to compelling the ap-

pearance of a n accused before a justice, and the pr ovisions of Parts XX and

XX.1, in so far as the y are not inconsistent with t his Part, apply, with such

modif‌ication s as the circumstanc es require, to proceedings u nder this Part.

DETENTION AND AR REST174

non-judicial actors are also given a simi lar discretion. This chapter will

discuss the forms of interim release avail able prior to the bail-hearing

stage, but the more complex topic of judicial interim release will be left

for specialist volumes on that subject.2

As noted, arrest is t he most well-known method of causing a per-

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

people have is probably that of a warrantless arrest. It is worth obser v-

ing, therefore, that having warrantless arrest in mind as a model for

that process is somewhat mi sleading. The most obvious actors in an

arrest wil l be the police off‌icers who take an accused into custody. That

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

person account for his actions to a court is generally not one made ex-

clusively by a police off‌icer. Rather, the decision that that is necess ary

must normally have been reached separately by both a police off‌icer

and a justice of the peace. Sometimes t his decision by a justice of the

peace will precede the police off‌icer’s interaction with the individual,

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

a warrant — it does occur at some point. Even in th at case the accused

person is then taken i n front of a justice, though in a slightly different

context.

Further, 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 notice s consist of a written demand to the per-

son to appear in court; in es sence, because of the nature of the charges

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

with the request th at they appear. “Request” is not an entirely accurate

word, since there are signif‌icant legal consequences for non-compli-

ance, but at least initially the p erson is given the opportunity to comply

vol un ta r il y.3

These two considerations — whether the approval of the justice of

the peace is sought beforehand or after the fact, and whether the indi-

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

appear — can be seen a s creating a matri x of four possibilities, as set

out in Figure 1 below. And, in fact, the four methods of compelling ap-

pearance — appeara nce notice, summons, arrest with a wa rrant, and

arrest without a warrant — f‌it neatly into that matri x.4

2 See, for example, Ga ry Trotter, The Law of Bail in Canada, 3d ed (Toronto: Car-

swell, 2010).

3 Criminal Code, above note 1, s 145.

4 There are other mecha nisms that are releva nt to compelling appearance . For

example, after a n accused has been ar rested and actually t aken to a police lock-up,

the off‌icer in cha rge of the lock-up can release the pe rson on either a promise to

Arrest and C ompelling Appearance 175

Figure 4.1: Compelling Appearance Matr ix

Justice of the Peace

conf‌irmation f‌irst

Justice of the Peace

conf‌irmation second

Give written notice Summons

• def‌ined — s 493, Form 6

• lay information before

JP — s 504

• issuance by JP — s 507

• issuance in private pros

— s 507.1

• contents — s 509(1), (4),

(5)

• service — s 509 (2), ss

703.1-703.2

• failure to comply —

s 145(4)

• expiry — s 523, s 7 30(2)

Appearance notice

• def‌ined — s 493, Form 9

• availability — ss 496 -97

• contents — s 501

• arrest for failure to

comply — s 502

• failure to comply —

s 145(5)

• lay information before

JP — s 505

• conf‌irmation (or not) by

JP — s 508

• expiry — s 523, s 7 30(2)

Take physical control Ar rest with a warrant

• availability — s 504,

s 507(4), s 512

• contents — s 511, s 513

• execution — s 512,

s 511( 3),(4)

• release after arres t —

s 499

• take before J.P. — s 503

Arrest without a warrant

• power — ss 494-5

• release — ss 497-8

• take before JP — s 503

• territorial validity —

s 703(1), (2)

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 a n artif‌icial div ision, since the routes overlap at many

points or follow parallel paths: stil l, it is useful for purposes of cla rity

to examine the feature s of each route separately, to the extent possible.

Following that we will look in greater detail at some specif‌ic issues

within the compelling-appearance sc heme.

The primary goal of th is overview and subsequent consideration

of specif‌ic issues is to examine the non-arrest methods of compelling

an accused’s appearance in court. Arrest will be the focus of the next

section in this chapter.

A point to note, which will be discussed in greater detail below, is

that the Code provisions can be looked at as varying in the degree of in-

trusiveness w ith respect to individual liberty which they entai l.5 Most

appear (Form 10) or a recogniz ance (Form 11): see Criminal Code, s 498(1). These

options, however, are more aki n to the judicial interi m-release provisions, r ather

than the powe rs available to a peace off‌icer in i nitiating contact wit h a person.

5 See Section B(3), below in this chapter.