Compelling Appearance and Judicial Interim Release

• Author: Steve Coughlan
• Pages: 164-184

164

CHA PTER 6

COMPELLING

APPEAR ANCE AND

JUDICIAL INTERIM

RELEASE

A. INT RODUCTION

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. It commences t he prosecution and is the document

upon which either a preliminar y inquiry will be based or a summar y

conviction trial w ill 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 t he question arises as to what will happen

to the accused in the inter im. 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 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 forms 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 discus sion 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 Release 165

either with or without a warra nt. 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 is sues surrounding powers of arre st—that will be t he 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 ch arges. In particular, the question of

what to do with the person once she has appea red will be exam ined;

namely, the principles governing judicial interim release.

B. L AYING CHARGES

It is easy to see the lay ing of an information as simply a techn ical 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 pas ses 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

crimina l 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 th at point forward, be focused on

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

ta ken li gh tl y.

The process of laying a charge consi sts of both a “ministeri al” (ad-

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

the justice will per form 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 disc retionary 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