Arrest and Compelling Appearance

AuthorSteve Coughlan; Glen Luther
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.
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
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),
service — s 509 (2), ss
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.

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