Compelling Appearance and Judicial Interim Release

• Author: Stephen Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 149-167

149

CHAPTER 6

COMPELLING

APPEAR ANCE AND

JUDICIAL INTERIM

RELEASE

A. INTRODUCTION

Many aspects of criminal procedure are quite intr icately linked. For

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

distinct funct ions. It commences the prosecution and is t he document

upon which either a preliminar y inqui ry w ill b e based or a summary

conviction tr ial will be held. It is also the foundation for a variety of

methods to compel an accused to appear and answer to the charges laid

out in the information. Yet, that in itial appearance will not actually be

for a trial on the charges, so the quest ion arises as to what w ill happen

to the accused in the inter im. Thus, the Code provisions that set out

the methods to make an accused f‌i rst appear and those that deal with

releasing or holding the accused pending tr ial form a whole, and both

appear in Part XVI, “Compelling Appear ance of Accused Before a Jus-

tice and Interim Releas e.”

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

charges for t rial will be discussed in Chapter 11. This chapter deal s only

with the procedure by which t hose charges are f‌i rst laid. The charge is

the focal point for various forms of compelling the appe arance of the

accused in court, and determines issues of jurisdiction and many other

features of pre-trial procedure.

Following the discussion of charges, we turn to the var ious mech-

anisms that may be used to compel the appe arance of an accused person

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

CRIMIN AL PROCEDURE150

eit her wit h or w it hout a war ran t. Po wer s of a rre st r ais e a ho st o f is sue s of

their own, par ticularly in light of section 10 of the Charter, which gives

rights on arre st or detention. This chapter will not attempt to deal with

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

the next chapter. However, enough must be said here about arre st, with

and without a warrant, to situate it in rel ation to t he other method s of

compelling appearance. This w ill result in a certain amount of repeti-

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

Finally, this chapter will t urn to t he topic of compel ling an ac-

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

what to do with the person once she h as appeared w ill be examined;

namely, the principles governing judicial interim release.

B. LAYING CHARGES

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

quirement among so many other particular rules that must be followed

in t he course of criminal proceedings. In one sen se that view is cor-

rect, but at the same time it i s i mportant to recognize the wider sig-

nif‌icance. The time when an information is laid before a justice marks

a momentous occasion: it is the point at which some person passes

from being a “suspect” to being an “accused.” That transition has great

consequences for t he individual, for their family, for the victim of the

offence, for t he criminal justice system, and for society as a whole. It

means, for the most part, that t he s ystem has stopped tryi ng to dis-

cover who committed a n offence, and will, from that point forward,

be focused on proving the guilt of one particular person. Such a step

should not be taken lightly.

The process of lay ing a charge consists of both a ministerial a nd a

judicial f unction. Under section 504 of the Code, the justice w ill per-

form the essentially bureaucratic and non-discretionary funct ion of re-

ceiving the information. That step alone is of no consequence, however,

unless the judge then takes discretionary and judicial action under sec-

tion 507. It is wort h looking at the two steps separately and in det ail.

With the exception of direct indictments, ind ictable offences are

charged when an i nformation is sworn, received, and approved by a

judicial off‌icer, in accord ance w ith sections 504 and following of the

Criminal Code.1 This procedure applies equally to offences prosecuted

1 A direct indict ment may be preferred at any ti me and may follow a charge that

is f‌irst laid b y way of an information.