Arrest with a Warrant and Other Means of Compelling Appearance

• Author: Brian H. Greenspan, Vincenzo Rondinelli
• Profession: General Editors
• Pages: 209-247

209

Arrest with a

Warrant and

Other Means

of Compelling

Appearance

7

I. Introduction ............................................. 

II. Compelling Initial Appearance .............................. 

A. Issuing Judicial Process (Criminal Code, Section ) ...... 

B. Conrming Police Process (Criminal Code, Section ) .... 

C. Private Prosecution (Criminal Code, Section .) ........ 

III. Arrest Warrants Beyond Compelling Initial Appearance .......... 

A. Warrant or Summons in the Public Interest (Criminal Code,

Section ()) ..................................... 

B. Warrant for Failing to Attend Court (Criminal Code,

Section ()) ..................................... 

C. Warrant or Summons to Regain Jurisdiction (Criminal Code,

Section ()) ..................................... 

D. Material Witness Warrants (Criminal Code,

Sections , , ) .............................. 

E. Other Situations to Issue an Arrest Warrant .............. 

IV. Arrest Warrant Considerations .............................. 

A. Content of the Warrant and Timelines (Criminal Code,

Section ) ....................................... 

B. Warrant Execution (Criminal Code, Section ) ........... 

C. Discretion to Postpone Execution (Criminal Code,

Section ()) ..................................... 

D. Endorsing the Warrant for Release (Criminal Code,

Section ()) ..................................... 

E. Residential Arrest ................................... 

F. Inter-Provincial Arrests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

G. Sealing Order (Criminal Code, Section .) ............ 

© 2025 Emond Montgomery Publications. All Rights Reserved.

210Detention, Arrest, and the Right to Counsel

I. Introduction

Canada’s first Criminal Code, enacted in 1892,1 allowed anyone who reasonably

believed that a person had committed a criminal oence to lay an information before

a justice. The justice, upon receiving the information, could then issue a summons or

an arrest warrant to bring the person to court “if of opinion that a case for so doing is

made out.”2 This procedure has stood the test of time and remains fundamentally the

same today. The justice can still choose between a summons or warrant to compel a

person’s initial appearance in court. This type of warrant is also known as a “warrant

in the first,” which hearkens back to when it was described in the Criminal Code as

a “warrant for apprehension in first instance.”3 The warrant was used as the “first”

step in bringing a person into the jurisdiction of the criminal justice system.

The Criminal Code4 has been amended over the years to guide a justice on whether

to issue a summons or an arrest warrant. A summons is now the default choice; grounds

are needed to believe that a warrant is necessary.5 The tighter test for issuing a warrant

reflects how an arrest imposes a greater intrusion on a person’s liberty. “Liberty lost is

never regained.” 6 There is no need to issue a warrant if a summons will do the job of

bringing the person to court. If the person fails to obey the summons, then a justice at

that point can always issue a warrant. A justice who compels a person to attend court is

not exercising a trivial discretion.7 “It is a discretion that aects the liberty of one who

is presumed to be innocent at the time the jurisdiction is exercised.”8

BOX 7.1 PRACTICE POINTS

This chapter will frequently refer to a “justice” because it is the term used in the

relevant sections of the Criminal Code. For example, the Criminal Code refers to

the police laying an information before a “justice,” who decides whether to issue

a summons or an arrest warrant. A “justice” is defined in section 2 as a justice of

the peace or a provincial court judge. With respect to the issues addressed in this

chapter, the justice will usually be a justice of the peace, although the practice can

vary by jurisdiction.

1 1892, 55-56 Vict, c 29.

2 Criminal Code (1892), ss 558, 559.

3 Criminal Code (1892), s 563.

4 RSC 1985, c C-46.

5 See R v Sheppard, 2020 CanLII 43917 at para 23 (NLPC).

6 R v Hall, 2002 SCC 64 at para 47.

7 See R v Orr, 2018 BCSC 2474 at para 8.

8 Regina v Wentworth Magistrate’s Court, Ex parte Reeves, 43 CR 206 at 208, 1964 CanLII 263

(ON H Ct J).

© 2025 Emond Montgomery Publications. All Rights Reserved.

Chapter  Arrest with a Warrant and Other Means of Compelling Appearance 211

II. Compelling Initial Appearance

When the police believe that a person has committed a criminal oence, they need

to decide how to trigger the person’s involvement with the criminal justice system.

These decisions can have a significant impact on how the person’s liberty will be

restrained. The first notable decision is whether the police will: (1) go to a justice to

lay an information, or (2) compel the person’s appearance in court before going to a

justice. The police will often choose the latter option when they observe a person

in the midst of committing a criminal oence. When choosing this option, it is the

police, without any upfront judicial oversight, who compel the person’s attendance in

court through one of three ways:

1. arresting the person and physically bringing them to court,

2. arresting the person and directing the person to attend court pursuant to an

undertaking or appearance notice, or

3. directing the person to attend court pursuant to an appearance notice without

ever making an arrest.

If the police do not release the person, then they must bring the person before

a justice within the statutory time limits for the person to have a bail hearing.9

Mandatory time limits are an essential ingredient in protecting a person’s liberty

interests. Alternatively, if the police release the person on an appearance notice or

undertaking, also known as “police process,” then the police must lay an information

before a justice as soon as practicable and before the person’s first court appearance

pursuant to section 505 of the Criminal Code. A justice will then decide whether to

confirm or cancel the police process (s 508). This procedure is addressed below in

Section II.B, “Confirming Police Process.”

The other method for initiating the jurisdiction of the criminal justice system is for

the police to first lay an information before a justice, which occurs prior to arresting

the person or otherwise compelling them to attend court. Pursuant to section 504,

anyone who reasonably believes that a person has committed an indictable oence

may lay an information before a justice. The justice shall receive the information if it

is alleged that the person, wherever they may presently be, committed an indictable

oence within the justice’s territorial jurisdiction.10 The justice will then hear and

consider the allegations. If the justice considers that a case is made out, then they will

9 See Chapter 5, Section V.A, “Duration of the Arrest.”

10Criminal Code, s 504(b). Alternatively, the informant can allege that the person has committed,

anywhere, an indictable oence that may be tried in the province in which the justice resides

and that the person is or is believed to be, or resides or is believed to reside, within the justice’s

territorial jurisdiction (s 504(a)).

© 2025 Emond Montgomery Publications. All Rights Reserved.