Compelling Appearance and Judicial Interim Release

• Author: Steve Coughlan
• Pages: 164-184

164

CHAPTER 6

COMPELLING

APPEARANCE AND

JUDICIAL INTERIM

RELEASE

A. INTRODUCTION

Many aspects of criminal procedure are quite intricately linked. For

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

distinct functions. It commences the prosecution and is the document

upon which either a preliminary inquiry will be based or a summary

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

methods to compel an accused to appear a nd answer to the charges laid

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

for a trial on the charges, so the question arises as to what will happen

to the accused in the interim. Thus, the Criminal 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 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 will be discussed 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 forms of compelling the appear-

ance 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 various mech-

anisms th at may be used to compel the appearance of an accused per son

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

Compelling App earance and Judicial Inter im Release165

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 attempt to deal

with all the issues surrounding powers of arrest—that will be the sub-

ject of the next chapter. However, enough must be said here about arrest,

with and without a warr ant, to situate it in relation to the other methods

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 turn to the topic of compelling an ac-

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

what to do with the person once she has appeared will be examined;

namely, the principles governing judicial interim release.

B. LAYING CHARGES

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

quirement among so many other part icular rule s 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 passes from being a

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

for the individual, for their family, for the victim of the offence, for the

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

most part, that the system has stopped trying to discover who com-

mitted an offence, and will, from that point forward, be focused on

proving the guilt of one particular person. Such a step should not be

ta ken lightly.

The process of laying a charge consists of both a “ministerial” (ad-

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

the justice will perform the essentially bureaucratic and non-discre-

tionary function of receiving the information. That step alone is of no

consequence, however, unless the judge then takes discretionary and

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

separately and in detail.

With the exception of direct indictments, indictable offences are

charged when an information is sworn, received, and approved by a

judicial off‌icer, in accordance with sections 504 and following of the