The compelling appearance and bail provisions in Part XVI of the Code operate by granting broad powers to police and judges to restrict the liberty of individuals but then attaching significant limitations on the use of those powers. The result is an attempt to satisfy the needs of the
state to ensure that accused persons are present for their trials while, at
the same time, using those powers with as much restraint as possible.16In general terms, the Code provides powers to police to require an accused to attend court through some type of written demand, or to arrest the person: preference is given to not arresting. If the person is arrested, the system requires various actors along the way to consider whether the accused can be released without being taken to a justice. If the accused is taken to a justice, the system is then designed to release the accused with as few restrictions as necessary. In short, the Code provides that, if possible, appearance should be sought without arrest and detention. The various ways in which arrest or continued detention are meant to be avoided to the extent possible are discussed further in the next chapter.
In addition, the Code provides that, where a person is released, preference should be given to the means of compelling appearance that is least onerous, especially as regards the imposition of a money debt as a form of security. Where Part XVI allows for continued detention before trial, it also includes mechanisms for review of that detention. These issues will be discussed in part D of this chapter.
A further demonstration of the restraint built in to Part XVI is seen in the fact that a police officer’s decision that an accused should be made to attend court is usually not sufficient on its own: it is necessary for some judicial officer to confirm that decision. In some cases, the officer’s initial interaction is with the individual accused of committing a crime. In that event, a justice must later review the officer’s actions and (except in the instance of an arrest without a warrant) agree that charges should be laid. In other cases, the charges are laid in front of a justice first, and the police then seek out the individual. Although there are similarities between the two situations, it is convenient to consider them separately. Accordingly, we shall consider: (i) the process for compelling an accused to appear when charges have not yet been laid and (ii) the process that is used after charges have been laid.
If a peace officer decides that a person should be prosecuted, there are various ways to compel that person to attend court before an information is laid and he is actually charged. The most obvious is to make an
arrest without a warrant.17A central point to note is that an arrest is not necessarily the only way, or even the preferred way, to compel appearance, even if no charge has yet been laid. Other procedural mechanisms may be used, whether there has been an arrest without warrant or not. In effect, the Code provides that a person may be required to attend court by means of an appearance notice, a promise to appear, or a recognizance.
Section 495(2) of the Code makes a preference for less intrusive means explicit. A peace officer’s power to arrest without warrant is created in section 495(1) and is quite broad. Section 495(2), however, suggests that, in the case of less serious offences, an officer should not necessarily use those arrest powers. "Less serious," in this context, is defined broadly to mean summary conviction offences, hybrid offences, or indictable offences listed in section 553 (those in the absolute jurisdiction of a provincial court judge).18In the case of those offences, the Code suggests that an officer should issue an appearance notice instead, unless there is a good reason to arrest.19A "good reason to arrest" is limited to the possibilities that the person will not show up in court unless arrested or that there is a need to:
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence.20
Section 495(2)21is phrased in a confusing way, but the principle underlying it is that, for less serious offences, police officers should not arrest simply because they have the power to do so. The section does not actually remove the power to arrest, though, and so in practice it often occurs that the peace officer does make an arrest and then determines whether to release that individual or take him into custody.
If the officer decides, under section 495(2), not to arrest, section 496 authorizes the officer to issue an appearance notice.22An appearance notice directs the person to whom it is issued to appear in court at a specified date, time, and place. Further, the appearance notice must inform the person of the consequences that flow from non-compliance
with its terms. Those consequences are that failure to appear at the specified time is an offence under section 145 of the Code, and that an arrest warrant can be issued under section 508.
Even if a peace officer has arrested a person, it is not the end of the story. The officer can decide afterward, under section 497(1), to release that person with the intention to compel her appearance by means of a summons or an appearance notice. Here, the Code provisions closely parallel those relating to the original decision to arrest and they still reflect a preference for release in some cases. Specifically, in the same circumstances of summary conviction offences, hybrid offences, or indictable offences listed in section 553, the stated preference is for releasing the accused. The only exceptions to that preference are for the same grounds as found in section 495(2) (to ensure appearance in court, establish identity, secure evidence, or prevent further offences) with one addition. A peace officer might also decide not to release the accused after arrest in order to "ensure the safety and security of any victim of or witness to the offence."23In the event that a person is arrested without warrant and taken into custody by the arresting peace officer, he will be brought before the officer in charge or another peace officer. Under section 498, the officer in charge can also decide to release the arrested person and, once again, is directed to prefer this course of action in many circumstances. Indeed, in section 498 the range of offences for which release is preferred is even broader than in previous sections: in addition to summary conviction, hybrid, or section 553 offences, the officer in charge is also to release a person arrested for any other offence punishable by imprisonment for a term of five years or less.
Corresponding to the fact that release is possible for more serious offences at this stage, the officer in charge is also permitted to impose more restrictive conditions on the accused in order to be released. Since the...