CRIM 330 Lecture Notes - Lecture 3: Affidavit, Recognizance, Indictable Offence

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5. Releasing an Accused and Compelling Attendance at Court
(a) Where the Suspect Has Been Arrested
(i) Authority to Release
- Where the suspect hasn’t been arrest they can be release by the officer who detained them
and can be compelled to attend court by means of an appearance notice
(ii) Compelling Attendance at Court: Appearance Notice (s.496)
- Issued by a peace officer under section 496 (only for certain offences):
496. Where, by virtue of subsection 495(2), a peace officer does not arrest a person, he
may issue an appearance notice to the person if the offence is
(a) an indictable offence mentioned in section 553;
(b) an offence for which the person may be prosecuted by indictment or for which
he is punishable on summary conviction; or
(c) an offence punishable on summary conviction; or
- Read this together with section 495(2) which imposes a duty on an officer to not arrest
for these offences in certain circumstances…
o Where the officer believes it’s not necessary to arrest in order to:
§ Establish the person’s identity
§ Secure or preserve evidence of the offence
§ Prevent continuation or repetition of the offence, or commission of
another offence; and
§ He has no reasonable grounds to believe the person won’t show up for
court
495. (2) A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 553,
(b) an offence for which the person may be prosecuted by indictment or for which he is
punishable on summary conviction, or
(c) an offence punishable on summary conviction, in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the
circumstances including the need to
(i) establish the identity of the person
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of
another offence, may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the
person will fail to attend court, in order to be dealt with according to law
- So subsections (494(2)(a)-(c) establish obligation to not arrest for certain offences under
certain circumstances
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- The circumstances are specified in subsections 494(2)(d)-(e)
- In these circumstances an appearance notice may be issued under section 496
FORM 9 APPEARANCE NOTICE
- Signed by police and suspect
- Promising the cop you’ll show you
- The procedure for use of an appearance notice is:
o Appearance notice issued
o Officer writes police report
o Police report sent to Crown along with a recommendation of a charge
o If charge is charge is approved, next step is to swear the information (laying the
charge) and at the same time have the justice confirm the appearance notice
(b) Where the Suspect Has Been Arrested: Arresting Officer (s. 497)
(i) General/Default Duty to Release “As Soon as Practicable” for s.553 Indictables,
Hybrids and Summary Conviction Offences
497. (1) Subject to subsection (1.1), if a peace officer arrest a person without warrant for
an offence described in a paragraph 496(a), (b) or (c), the please officer shall, as soon as
practicable,
(a) release the person from custody with the intention of compelling their
appearance by way of summons; or
(b) issue an appearance notice to the person and then release them
- Note that there is no duty to release if the officer has reasonable grounds to believe one of
the circumstances outlined in section 497 (1.1) exists [the circumstances are identical to
those set out section 495(2) (d)-(e) set out above]
- Note implication that the arresting officer has no duty to release for other indictable (non-
553 indictables)
- There is actually no authority at all for an arresting officer to release when they have
arrest someone for a section 469 indictable
(ii) Compelling Attendance at Court: Appearance Notice (s.496/Form 9) or Summons
(s.509/Form 6)
- If a officer arrests a person for a 553 indictable, hybrid or summary conviction offence
the officer may compel attendance by either an appearance notice (above) or a summon
- Note that appearance notice is used for a person not yet charged, and a summons is used
only after a charge has been laid
- A summons is issued by a justice under s.509, after an information is sworn to lay the
charge:
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509: (1) A summon issued under this Part shall
(a) Be directed to the accused;
(b) Set out briefly the offence in respect of which the accused is charged; and
(c) Require the accused to attend court at a time and place to be stated therein and to attend
thereafter as required by the court in order to be dealt with according to law.
(2) A summons shall be served by a peace officer who shall deliver it personally
to the person to whom it it directed or, if that person cannot conveniently be found, shall
leave it for him at latest or usual place of abode with an inmate thereof who appears to be
at least 16 years of age
[this is an excerpt… s.509 also contains provisions requiring that the summons specify
consequences of failure to appear, etc.]
FORM 6 SUMMONS TO A PERSON
- Signed by judicial officer (justice of the peace or provincial judge)
- Demand of the court to suspect
- The procedure for use of a summons is:
o Arresting officer ascertains name and address of the person
o Officer writes police report
o Police report sent to Crown along with a recommendation of a charge
o If charge is charge is approved, next step is to swear the information (laying the
charge) and at the same time have the justice issue the summons
o Service of summons on the accused:
§ Service by peace officer
§ Personal delivery or to last known residence
§ If accused isn’t present, the summons may be left with a person who
lives there (an “inmate thereof”) who is at least 16 yrs old
§ The officer would then swear an affidavit of service as proof of service
509. (2) A summons shall be served a peace officer who shall deliver it personally to the
person to whom it is directed or, if that person cannot conveniently be found, shall leave
it for him at his latest or usual place of abode with an inmate thereof who appears to be at
least sixteen years of age.
(b) Where the Suspect Has Been Arrested and Taken into Custody: Officer in Charge (s.
498)
(i) General/Default Duty to Release “As Soon as Practicable” for S.553 Indictables,
Hybrids, Summary Conviction Offences and Indictables Punishable by 5 Years
Imprisonment or Less
- If arresting officer chooses not to release, then the suspect has been taken into custody
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