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Difference between revisions of "Criminal Charges (1:IV)"
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== B. Informing an accused of the charge and compelling appearance == | == 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: | A person may learn that he or she is accused of committing a criminal offence in one of several ways. He or she may: | ||
#receive an appearance notice or a promise to appear from the police; | |||
#receive a summons (in the mail or personally); or | |||
3be arrested and kept in custody until he or she is brought before a judge or JP (Justice of the Peace). | |||
An accused person will have received an appearance notice or a summons requiring him or her to attend court. Such an appearance notice indicates that the police officer involved in the case believes that he or she has a case against an accused. After an appearance notice is issued, the police officer forwards a package to the Crown for charge approval. Usually such charges are approved by the Crown prior to the first appearance in court. By the time an accused attends court, an Information will likely have been sworn. The accused person must attend court on the date required by the appearance notice or summons. If he or she fails to attend court, a warrant for the accused person’s arrest will usually be issued. | |||
=== 1. Appearance notice === | === 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'') | 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 him or her to appear at a future date and time at a courthouse to face potential charges. (See ''Criminal Code'', s. 496 | ||
*'''Note:''' An accused person should note that he or she MUST attend court as directed in the Appearance Notice, but that sometimes the accused person will not be on the court list as the police might not forward the charges, the Crown might not approve charges or there may be a delay in processing the charges. If an accused person does not see his/her name on the court list on the appearance date he/she should go to the court registry to show them the Appearance Notice and ask if their his/her is on any court list. | |||
=== 2. Promise to appear === | === 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) | If an accused is arrested then the police must decide whether to a) keep the accused in custody for the Crown to seek detention, or b) 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 releases the accused from custody. | ||
=== 3. Summons === | === 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. | 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:''' 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)). | ||
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=== 4. Judicial interim release (bail) === | === 4. Judicial interim release (bail) === | ||
A person who has been charged with | A person who has been charged with an offence may be arrested by the police and not be 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 its opinion the accused ought not to be released from custody. | ||
A person | A detained person must be brought before either a judge or a justice of the peace without unreasonable delay or where a justice is not available within a period of 24 hours after the person has been arrested, the person shall be taken before a Justice 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 is 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 | 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) | * Primary—to ensure attendance in court (a possible flight risk) | ||
*Secondary—bail can | * Secondary—bail can be denied for the protection and safety of the public, including a substantial likelihood the person will commit a criminal offence or interfere with the administration of justice. | ||
*Tertiary—the | * 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 | Often during the show cause hearing, the focus becomes the conditions an accused person can be released upon and the adequacy of the accused’s bail plan. A release plan may include: sureties, cash deposit or restrictive conditions such as a curfew or an area restriction. The Crown will usually have specific concerns about an accused’s behaviour. 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 === | === 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. | 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 | |||
*The | * An appearance notice or summons was issued for the accused to attend court, and he or she did not attend court at the appropriate date and time; | ||
*The | * The accused is avoiding service or is unable to be located; | ||
*Crown cancels a promise to appear and seeks a warrant because they are seeking the | * The accused was never actually arrested for the offence; or | ||
(See ''Criminal Code'', s 512). | * The Crown cancels a promise to appear and seeks a warrant because they are seeking the accused’s detention or conditions on the release of the accused. (See ''Criminal Code'', s 512). | ||
=== 6. Fingerprinting and photographing === | === 6. Fingerprinting and photographing === | ||
