Arrest and Compelling Appearance

AuthorSteve Coughlan/Glen Luther
ProfessionProfessor, Schulich School of Law, Dalhousie University/Associate Professor, College of Law, Saskatchewan
The topic of arrest — the f‌ir st ter m i n t his chapter’s title — w ill oc-
cupy a great part of the discussion below. It is necessar y to recognize,
however, t hat powers of arrest are part of a l arger 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 X VI of the Code, which
contains the ar rest powers, is actually entitled “Compell ing Appear-
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 rele ase” part refers to the various ways in which
a person can, after arrest, nonetheless be releas ed pending trial rath-
er than held in custody. The most obv ious of those ways is through
the judicial inter im-release portion of Part XVI, popularly referred to
as “bail.” That is not the only form of interim release, however, si nce
non-judicial actors are also given a similar discretion. This chapter will
1 Criminal Code, R.S.C. 1985, c. C-46 [Criminal Cod e]. Part XVI is not lim ited
to indictable offenc es, and indeed some of the arre st powers specif‌ically a re
designed to cover a ny criminal offence. Nonet heless, note s. 795 of the Criminal
Code, which prov ides, with regard to summ ary conviction offences, t hat:
[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 p rovisions of Parts XX an d
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 proceeding s under this Part.
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.2
As noted, arrest is t he most well-known method of causi ng 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,
therefore, th at having warrantless a rrest in mind as a model for that
process is somewhat misleading. The most obvious actors in an arre st
will be the police off‌icers who take an accused into custody. That men-
tal image therefore obscures the fact that the decision to make a person
account for his actions to a court is generally not one made exclusively
by a police off‌icer. Rather, the decision that that is necessary must nor-
mally have been reached separately by both a police off‌icer and a justice
of the peace. Sometimes this decision by a justice of the peace will pre-
cede t he police off‌icer’s interaction with the individual, sometimes it
will follow it, but except in one instance – arrest without a warra nt – it
does occur at some point. Even in that case the accused per son is then
taken in 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 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 rea sonable to expect that t he person w ill comply
with the request that they appear. “Request” is not an entirely accurate
word, since there are signif‌icant legal consequences for non-compli-
ance, but at least initially the person is given the oppor tunity to comply
vol u nt a r il y.3
These two considerations — whether the approval of the justice of
the peace is sought beforehand or after the fact, a nd whether the indi-
vidual is g iven an opportunity to comply or is physically compelled to
appear — can b e seen as creating a matrix of four possibilities, as set
out in Figure 1 below. A nd, in fact, the four methods of compelling ap-
pearance — appearance notice, summons, arrest with a war rant, and
arrest without a warrant — f‌it neatly into that matr ix.4
2 See, for example, Ga ry Trotter, The Law of Bail in Canada, 2d ed. (Toronto: Car-
swell, 1999) [Trotter].
3 Criminal Code, above note 1, s. 145.
4 There are other mech anisms that are relev ant to compelling appeara nce. For ex-
ample, after an acc used has been arre sted and actually taken to a p olice lock-up,
the off‌icer in cha rge of the lock-up can release the pe rson on either a promise
to appear (Form 10) or a recogniz ance (Form 11): see Crimin al Code, s. 498(1).
These options, however, are more a kin to the judicial inter im-release provi-
Arrest and C ompelling Appearance 147
Figure 1: CompellingAppearance Matrix
Justice of the Peace conf‌irm a-
tion f‌irst
Justice of the Peace conf‌ir-
mation second
Give writ-
ten notice
def‌ined — s. 493, Form 6
lay inform ation before JP — s.
issuance by J P — s. 507
issuance i n private pros. — s.
50 7.1
contents — s. 509(1), (4), (5)
service — s. 50 9(2), ss. 703.1-
failure to comply — s. 145(4)
expiry — s. 523, s. 730 (2)
Appearance notice
def‌ined — s. 493, Form 9
availabil ity — ss. 496-97
contents — s. 501
arrest for fai lure to comply
— s. 502
failure to comply — s.
lay inform ation before JP
— s. 505
conf‌irmat ion (or not) by JP
— s. 508
expiry — s. 523, s. 730 (2)
Take physi-
cal control
Arrest with a wa rrant
availabil ity — s. 504, s. 507(4),
s. 512
contents — s. 511, 513
execution — s. 512, s.
release aft er arrest — s. 499
take before J.P. — s. 503
Arrest without a wa rrant
power — ss. 494-5
release — ss. 4 97-8
take before JP — s. 503
territori al 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 cour t. To some
extent, this is an artif‌icial division, since the routes overlap at many
points or follow parallel paths: still, it is usef ul for purposes of cla rity
to examine the features of each route separately, to the extent possible.
Following that we will look in greater detail at some specif‌ic issues
within the compelling-appearance scheme.
The primary goal of this overv iew and subsequent consideration of
specif‌ic issues is to examine the non-arre st methods of compelling an
accused’s appearance in court. Arrest w ill be the focus of the next sec-
tion in this chapter.
sions, rather t han the powers available to a p eace off‌icer in initiati ng contact
with a pers on.

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