Criminal Charges (1:IV)

A. Arrest

There may be a Charter issue here. See Section X: Charter Issues with respect to arbitrary detention and unlawful arrest.

B. Informing an accused of the charge and compelling appearance

A person may learn that he or she is accused of committing a criminal offence in one of several ways. He or she may:

1. receive an appearance notice or a promise to appear from the police,
2. receive a summons (in the mail or personally), or
3. be arrested and kept in custody until he or she is brought before a Judge or JP.

Many clients who seek assistance from LSLAP will have received an appearance notice or a summons requiring them to attend court. Such an appearance notice indicates that the police officer involved believes that they have a case against an accused. After an appearance notice is issued, the police officer forwards a package to Crown for charge approval. Usually such charges are approved by Crown prior to the first appearance in court. By the time they attend court, an Information will likely have been sworn. An accused must attend court on the date required by the appearance notice or summons. If they fail to attend court, a warrant for their arrest will usually be issued.

1. Appearance notice

The attending officers at the scene of an alleged summary conviction or hybrid offence do not always have cause to arrest the suspect. (See Section 495 (2) Criminal Code). When there is no cause to arrest the suspect but the police still intend to forward charges for an offence they will serve an appearance notice on the accused compelling them to appear at a future date and time at a courthouse to face potential charges. See Section 496 Criminal Code.

Note: When advising a client with an Appearance Notice, they should be advised that they MUST attend court as directed in the Appearance Notice, but that sometimes they will not be on the court list as the police might not forward charges, Crown might not approve charges or there may be a delay in processing the charges. If a client does not see their name on the court list on the appearance date they should attend the court registry to show them the Appearance Notice and ask if their matter is on any court list.

2. Promise to appear

If an accused is arrested then the police must decide whether a) keep the accused in custody for Crown to seek detention, or b) whether to exercise the power to release the accused. A promise to appear is a binding agreement whereby the accused person promises to attend court on a later date and abide by the conditions the police impose, and in exchange the police release the accused from custody.

3. Summons

A summons is a written order by a justice in prescribed form requiring the accused to appear before a justice at a particular time and place. (See Criminal Code, s 509).

Note: A summons should not be disregarded because of a misspelling of the accused’s name, nor because of minor irregularities or mistakes. The summons may be served by a peace officer personally, or it may arrive by mail. It can also be served, when the accused cannot conveniently be found, to a person living in the accused’s residence who appears to be at least 16 years old (Criminal Code, s 509(2)).

Note: An accused may attend court to answer to an appearance notice or summons indicating a certain charge. The accused may at that time be faced with additional charges, or with a different charge. It is the charge contained in the Information that the accused is charged with, regardless of what is contained in the summons or appearance notice. So long as an Information has been laid the Crown can proceed against the accused on that charge.

4. Judicial interim release (bail)

A person who has been charged with an offence may be arrested by the police and not released on a promise to appear. This can occur if the police are seeking conditions on the promise to appear which the accused does not agree to or if the police determine that in their opinion the accused ought not to be released from custody.

A person so detained must be brought before either a judge or a justice of the peace as soon as possible (see Criminal Code, s 503). When the accused is brought before a judge or a justice of the peace and the Crown or police are seeking the continued detention of the accused the onus is on the Crown to show cause as to why the continued detention of the accused is necessary (see Criminal Code, s 515(10)), except for the offences listed under section 469 of the Criminal Code.

There are three ways in which the detention of a person charged with a criminal offence can be justified under section 515(10) of the Criminal Code. In the case law these are usually referred to as:

• Primary—to ensure attendance in court (a possible flight risk)
• Secondary—bail can be denied for the protection and safety of the public, including a substantial likelihood the person will commit a criminal offence
• Tertiary—the detention is necessary to maintain confidence in the administration of justice (includes seriousness of the offence charged and strength of the Crown’s case)

Often when opposing the show cause hearing the focus becomes the conditions an accused can abide by if released on conditions. Crown will usually have specific bail conditions and concerns about specific behaviours of an accused. The law requires conditions of release to be as minimally restrictive on a person’s freedom as possible while still addressing the cause for concern.

5. Warrant in the first instance

A warrant for arrest may be issued when an accused fails to appear for a summons or a Justice decides that it is in the public interest to issue a warrant. Some common situations where this arises are as follows:

• An appearance notice or summons was issued for the client to attend court, and he or she did not attend court at the appropriate date and time;