The topic of arrest - the first term in this chapter’s title - will occupy a great part of the discussion below. It is necessary to recognize, however, that powers of arrest are part of a larger scheme for causing an individual who is alleged to have committed a crime to appear in court to face charges. It is for that reason that Part XVI of the Code, which contains the arrest powers, is actually entitled "Compelling Appearance before a Justice and Interim Release."1
The "compelling appearance" part of the chapter’s title refers to powers of arrest but also to summonses, appearance notices, and other things. The "interim release" part refers to the various ways in which a person can, after arrest, nonetheless be released pending trial rather than held in custody. The most obvious of those ways is through the judicial interim-release portion of Part XVI, popularly referred to as "bail." That is not the only form of interim release, however, since non-judicial actors are also given a similar discretion. This chapter will
discuss the forms of interim release available prior to the bail-hearing stage, but the more complex topic of judicial interim release will be left for specialist volumes on that subject.2As noted, arrest is the most well-known method of causing a person to appear in court to face charges, and the mental image most people have is probably that of a warrantless arrest. It is worth observing, therefore, that having warrantless arrest in mind as a model for that process is somewhat misleading. The most obvious actors in an arrest will be the police officers who take an accused into custody. That mental image therefore obscures the fact that the decision to make a person account for his actions to a court is generally not one made exclusively by a police officer. Rather, the decision that that is necessary must normally have been reached separately by both a police officer and a justice of the peace. Sometimes this decision by a justice of the peace will precede the police officer’s interaction with the individual, sometimes it will follow it, but except in one instance - arrest without a warrant - it does occur at some point. Even in that case the accused person is then taken in front of a justice, though in a slightly different context.
Further, although the image of an arrest involves taking physical control of the accused person, that too is not the only model. Summonses and appearance notices consist of a written demand to the person to appear in court; in essence, because of the nature of the charges or the situation, it is reasonable to expect that the person will comply with the request that they appear. "Request" is not an entirely accurate word, since there are significant legal consequences for non-compliance, but at least initially the person is given the opportunity to comply voluntarily.3These two considerations - whether the approval of the justice of the peace is sought beforehand or after the fact, and whether the individual is given an opportunity to comply or is physically compelled to appear - can be seen as creating a matrix of four possibilities, as set out in Figure 1 below. And, in fact, the four methods of compelling appearance - appearance notice, summons, arrest with a warrant, and arrest without a warrant - fit neatly into that matrix.4
Figure 1: Compelling Appearance Matrix
[SEE ATTACHED PDF]
It will be helpful at this point simply to "trace through" these various routes to compelling a person’s appearance before a court. To some extent, this is an artificial division, since the routes overlap at many points or follow parallel paths: still, it is useful for purposes of clarity to examine the features of each route separately, to the extent possible. Following that we will look in greater detail at some specific issues within the compelling-appearance scheme.
The primary goal of this overview and subsequent consideration of specific issues is to examine the non-arrest methods of compelling an accused’s appearance in court. Arrest will be the focus of the next section in this chapter.
A point to note, which will be discussed in greater detail below, is that the Code provisions can be looked at as varying in the degree of intrusiveness with respect to individual liberty which they entail.5Most obviously, liberty is infringed less when an accused person is simply handed a piece of paper requiring him to appear in court on a particular date than when the police physically take control of him. More subtly, there is less of an infringement on liberty when both the police officer and the justice of the peace have considered beforehand whether the accused should be made to come to court, rather than the justice of the peace reviewing this decision after the accused has already been dealt with. On that basis, the matrix in Figure 1 above is least intrusive in the upper left (summons) and most intrusive in the lower right (arrest without a warrant). We shall deal with the sections in degrees of increasing intrusiveness.6
The issuing of a summons depends on two Code provisions: sections 504 and 507. Section 504 permits anyone to "lay an information" in front of a justice: that is, allege that a person has committed an offence.7
Section 507 then permits the justice to decide what, if anything, to do about the allegation.
Under section 504, the information can be laid by a person having reasonable grounds, and must be in writing and under oath. The information must allege one of four things: 1) that the person committed an offence anywhere which can be tried in the province where the information is laid and that the person is in the territorial jurisdiction of the justice; 2) that the person committed an offence in the territorial jurisdiction of the justice, even if the person might no longer be in that jurisdiction; 3) that property was stolen in the territorial jurisdiction of the justice and the person has received it, anywhere, or finally; 4) that the person is in the territorial jurisdiction of the justice and is in possession of stolen property, wherever that property came from.
A justice has no discretion under section 504: she "shall receive the information." However, the fact that an information has been laid before a justice is, on its own, of no consequence. It is merely a step leading to the provisions which permit a justice to decide what, if anything, to do about the information.8
By far the most common next step is found in section 507, which is used when the information has been laid by a police officer (as is typically the case) or Crown prosecutor. Under that section the justice hears the allegations of the informant and of any witnesses (on oath), where he considers it desirable, and then decides what to do. Section 507(1)(b) permits a justice to issue a summons or warrant, but only "where he considers that a case for doing so is made out." In other words, the justice first decides whether the allegations actually justify requiring the person to attend court: if they do, the justice chooses between a summons or an arrest warrant. Section 507(4) directs the justice to issue a summons unless there are reasonable grounds to believe that it is "necessary in the public interest" to issue an arrest warrant. A summons or warrant can be issued even if the person could be arrested without a warrant; indeed, a justice is specifically barred from refusing to issue process on that basis.9
The alternative next step is found in section 507.1, which applies only in the case of a private prosecution, that is, an information laid by a member of the public. For the most part, the same rules apply,10 but with some additional requirements. The primary difference is that, while informations laid by a police officer can go in front of any justice, an information laid by a private citizen must be considered at the later stages either by a provincial court judge or by a justice who has been designated by the chief judge of the provincial court to receive such informations.11That judge or justice has the same three choices - do nothing, issue a summons, issue a warrant - but there are a few other additional requirements. The judge or justice must also be satisfied that the attorney general has received a copy of the information and notice of the hearing. Further, if a judge or justice decides not to issue a summons or warrant, she endorses the information to this effect. This step will not only notify other judges or justices that the information has once been considered and rejected (since it is possible to bring a new
application concerning the same offence12), it also starts a clock ticking. Six months from the date of that endorsement the information is deemed never to have been laid, unless the informant commences proceedings to compel the judge or justice to issue process.
There is one further noteworthy distinction between sections 507 and 507.1. The former refers to a justice hearing witnesses "where he considers it desirable or necessary to do so." The private-prosecution provision, on the other hand, states that "[t]he judge or designated justice may issue a summons or warrant only if he or she (a) has heard and considered the allegations of the informant and the evidence of witnesses."13It has been held that this creates an absolute requirement, in the case of private prosecutions, for witnesses to be called.14In addition, it has been suggested that a private informant should be sworn even when simply making allegations, and that where a private inform-ant’s...