Arrest and Compelling Appearance

• Author: Steve Coughlan/Glen Luther
• Profession: Professor, Schulich School of Law, Dalhousie University/Associate Professor, College of Law, Saskatchewan
• Pages: 145-240

145

CHA PTER 4

ARREST AND

COMPELLING

A PPE AR A NC E

A. METHODS OF COM PELLING APPE AR ANCE

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.

DETENTION AND AR REST

146

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

Summons

def‌ined — s. 493, Form 6

lay inform ation before JP — s.

504

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-

703.2

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.

145(5)

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.

511(3),(4)

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.