Compelling Appearance and Judicial Interim Release

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 200-222

200

CHA PTER 6

COMPELLING

APPEAR ANCE

ANDJUDICIAL

INTERIMRELEASE

A. INTRODUCTION

Many aspects of cr iminal procedure are quite intr icately linked. For

example, laying of an in formation in front of a justice serves several

distinct functions. The lay ing commences the prosecution, and the in-

formation is the basis upon which eit her a preliminary inquiry will be

based or a summar y conviction trial w ill be held. It is also the foun-

dation for a variety of methods to compel an accused to appe ar and

answer to the charges l aid out in the information. Yet, that initial ap-

pearance will not actually be for a trial on the charges, so the question

arises a s to what will happen to the accused in the interim. Thus, the

Criminal Code provisions that set out the methods to make an accused

f‌irst appear and those t hat deal with releasi ng or holding the accused

pending trial form a whole, and both appear in Part XVI, “Compelling

Appearance of Accused Before a Justice and Interim Release.”

The issues related to the content of charges and the preferring of

charges for trial w ill be discus sed in Chapter 11. This chapter deals

only with the procedure by which those charges are f‌irst laid. The

charge is the focal point for various form s of compelling the appear-

ance of the accused in court and determ ines issues of jurisdiction and

many other features of pre-trial procedure.

Following the discussion of charges, we turn to the various mechan-

isms that may be used to compel the appearance of an accused person

in court. The most obvious of those mechanisms is to arrest an accused,

Compelling App earance and Judicial Inter im Release 201

either with or without a warrant. Powers of arrest raise a host of issues

of their own, particularly in light of section 10 of the Charter, which

gives rights on arrest or detention. This chapter will not try to deal with

all the issues surrounding powers of arrest — that will be the subject of

Chapter 7. However, enough must be said here about arrest, with and

without a warrant, to situate it in relation to the other methods of com-

pelling appearance. As a result, there will be a certain amount of repeti-

tion between the two chapters, but not an excessive amount.

Finally, this chapter will turn to the topic of compelling an ac-

cused’s appearance to answer to ch arges. In particular, the question of

what to do with the person once she has appeared will be exam ined in

a discussion of the pri nciples governing judicial interim relea se.

B. L AYING CHARGES

It is easy to see the lay ing of an information as simply a technical re-

quirement among so many other part icular rules that must be followed

in the course of crimi nal proceedings. In one sense that view is correct,

but at the same time it is important to recognize the wider signif‌icance.

The time when an information is laid before a justice marks a momen-

tous occasion: it is the point at which some person pas ses from being a

“suspect” to being an “accused.” That transition has g reat consequences

for the individual, for the individual’s family, for the victim of the of-

fence, for the criminal justice system, and for society as a whole. It

means, for the most part, th at the system has stopped trying to d iscover

who committed an offence and will, from th at point forward, be fo-

cused on proving the gui lt of one particular person. Such a step should

not be taken lightly.

The process of laying a charge consi sts of both a “minister ial” (ad-

ministrat ive) and a judicial function. Under section 504 of the Code, the

justice will perform the essentially bure aucratic and non-discretionary

function of receiving the inform ation. That step alone is of no conse-

quence, however, unless the judge then takes discretiona ry and judicial

action under section 507. It is worth looking at the two steps separately

and in detail. (There is a parallel and f unctionally equivalent two-step

process laid out in sections 505 and 508, which i s used when an accused

is given an appearance notice or is released on a promise to appear. Dif-

fering in some practical deta ils, it is discussed below in Section C(1), but

the general principles behind it are t he same as those set out here.)

With the exception of direct indictments, indictable offences are

charged when an information is s worn, received, and approved by a