Compelling Appearance and Judicial Interim Release

• Author: Steve Coughlan
• Pages: 282-310

282

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, the laying of an i nformation in front of a justice serves sev-

eral distinct functions. The laying commences the prosecution, and the

information is the basis upon which either a preliminar y inquiry will

be based (if there is one) or a summary convict ion trial will be held. It

is also the foundation for a variety of method s to compel an accused to

appear and answer to the charges laid out in the information. Yet, that

initial appear ance 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 first appear and those that deal wit h releasing or holding the

accused pending tr ial form a whole, and both appear in Part XVI, “Com-

pelling 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 discussed i n 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 t he appearance of the

accused in court and determines 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 person

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

Compelling App earance and Judicial Inter im Release 283

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 de al with

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

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

without a warrant, to situate it in rel ation 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 wil l turn to the topic of compelling an accused’s

appearance to answer to ch arges. In particular, the question of what to

do with the person once they have appeared will be exam ined in a dis-

cussion of the principles governing judici al interim release.

B. L AYING CHARGES

It is easy to see the lay ing of an information1 as simply a techn ical

requirement among so many other part icular rules th at must be fol-

lowed in the course of crimin al proceedings. In one sense that view is

correct, but at the same time it is import ant 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 passe s

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

consequences for the individual, for the individual’s family, for the vic-

tim of the offence, for the crimin al justice system, and for society as a

whole. It means, for the most part, that the system h as stopped trying

to discover who committed an offence and wil l, from that point for-

ward, be focused on proving the g uilt 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”

(administrative) and a judicial function. Under section 504 of the Co de,

the justice will per form the essential ly 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. (There is a para llel and functionally equivalent

two-step process laid out in sections 505 and 508, which is used when

an accused is given an appe arance notice or released on an undertaking.

1 For an explanat ion of this issue in cha rt form, see Steve Coughlan & Ale x Gor-

lewski, The Anatomy of Crimi nal Procedure: A Visual Guide to the Law (Toron to:

Irwin L aw, 2019) [Anatomy of Criminal Procedure], Chart 1.3(b), “Compellin g

Appearance w ith Prior Judicial Scr utiny.”