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Canadian Criminal Law/Offences/Failure to Attend Court or Appear

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Failure to Attend Court or Appear
s. 145 of the Crim. Code
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Crown ElectionHybrid
Summary Dispositions
Avail. Disp.Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Maximum6 months jail or $5,000 fine
Maximum2 years jail
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Legislation

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145
...
Failure to attend court
(2) Every one who,

(a) being at large on his undertaking or recognizance given to or entered into before a justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court in accordance with the undertaking or recognizance, or
(b) having appeared before a court, justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court as thereafter required by the court, justice or judge,

or to surrender himself in accordance with an order of the court, justice or judge, as the case may be, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction.
...
Failure to appear or to comply with summons
(4) Every one who is served with a summons and who fails, without lawful excuse, the proof of which lies on him, to appear at a time and place stated therein, if any, for the purposes of the Identification of Criminals Act or to attend court in accordance therewith, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

Failure to comply with appearance notice or promise to appear
(5) Every person who is named in an appearance notice or promise to appear, or in a recognizance entered into before an officer in charge or another peace officer, that has been confirmed by a justice under section 508 and who fails, without lawful excuse, the proof of which lies on the person, to appear at the time and place stated therein, if any, for the purposes of the Identification of Criminals Act, or to attend court in accordance therewith, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.



– CCC

Proof of Offence

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145(2): attend court on recognizance

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145(4): appear on summons

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In R. v. King, 2002 CanLII 40375 [1], the Court stated the elements of the offence are:

  1. the accused was properly served with a summons; and
  2. the accused failed to appear at the place and time specified in the summons; or
  3. having appeared in accordance with the summons, the accused failed to appear thereafter as required by the court.

145(5): appearance notice

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Generally

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It is expected that the Crown shall prove the following:

1. existence of the original charge against the accused (prove by calling the original charging officer)
2. establish the date, time and jurisdiction of original offence
3. ID of accused with respect to the original charge
4. service of notice to appear (include date and time and method of service)
5. file the notice to appear with the court
6. file original information
7. insure confirmation of original appearance notice
FAILURE TO APPEAR ON RETURN DATE
8. date and time the accused was to appear
9. that he didn't appear-- call the clerk who was in court on that day
10. that the accused gave no excuse when arrested
PROOF of NON-ATTENDANCE by Certificate
11. have clerk prepare certificate
12. file certificate and notice of intention to produce

Section 145(5) does not simply apply to the first appearance in court. Rather it creates two offences. Firstly, of a failure to attend under the Identification or Criminals Act, and secondly, by missing any court appearance according to a promise to appear or appearance notice.[2]

  1. ↑ 2002 CanLII 40375
  2. ↑ R. v. Hubek, [2011] A.J. No. 990 (C.A.)

Interpretation

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The burden is upon the accused to show a lawful excuse on a balance of probabilities.[1]

The offence of failing to appear in court is not an offence of strict liability.[2]

There is some debate on what constitutes the mens rea of failure to attend. Certain courts have stated that negligence is sufficient.[3] While others have stated that it requires an intent (either wilful blindness or recklessness).[4]

An honest mistake of the time and date of attendance[5] as well as forgetfulness [6] can serve to negate the mens rea of the offence. The accused must be able to show a due diligence.[7]

Under s.145(9), the endorsements on the certificate of the clerk or judge saying that the accused was not in attendance "is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate."s. 145(9)

  1. ↑ see R. v. Ludlow 1999 BCCA 365 (CanLII), (1999), 136 C.C.C. (3d) 460 (B.C.C.A.), at para 30 Custance, 2005 MBCA 23 at para 24
  2. ↑ R v Hammoud, 2012 ABQB 110
    R v Loutitt 2011 ABQB 545
  3. ↑ R v Hammoud 2012 ABQB 110
    R v Bremner 2006 ABPC 93
  4. ↑ R v Loutitt 2011 ABQB 545
    R v Eby 2007 ABPC 81
    R v Potts 2012 ABPC 78
  5. ↑ R. v. Bender (1975), 30 C.C.C. (2d) 496 (B.C.S.C.)
  6. ↑ R. v. Neal (1982), 67 C.C.C. (2d) 92 (Ont. Co. Ct.)
    R. v. Loutitt, 2011 ABQB 545
  7. ↑ R. v. Ludlow, 1999 BCCA 365 at para. 40
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