Criminal Code (R.S.C., 1985, c. C-46)

PART XVICompelling Appearance of Accused Before a Justice and Interim Release

Interpretation

Marginal note:Definitions

493 In this Part,

accused

accused includes

• (a) a person to whom a peace officer has issued an appearance notice under section 497, and

• (b) a person arrested for a criminal offence; (prévenu)

appearance notice

appearance notice[Repealed, 2019, c. 25, s. 209]

judge

judge means

• (a) in the Province of Ontario, a judge of the superior court of criminal jurisdiction of the Province,

• (b) in the Province of Quebec, a judge of the superior court of criminal jurisdiction of the province or three judges of the Court of Quebec,

• (c) [Repealed, 1992, c. 51, s. 37]

• (d) in the Provinces of Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta and Newfoundland and Labrador, a judge of the superior court of criminal jurisdiction of the Province,

• (e) in Yukon and the Northwest Territories, a judge of the Supreme Court, and

• (f) in Nunavut, a judge of the Nunavut Court of Justice; (juge)

officer in charge

officer in charge[Repealed, 2019, c. 25, s. 209]

promise to appear

promise to appear[Repealed, 2019, c. 25, s. 209]

recognizance

recognizance[Repealed, 2019, c. 25, s. 209]

summons

summons[Repealed, 2019, c. 25, s. 209]

undertaking

undertaking[Repealed, 2019, c. 25, s. 209]

warrant

warrant, when used in relation to a warrant for the arrest of a person, means a warrant in Form 7 and, when used in relation to a warrant for the committal of a person, means a warrant in Form 8. (mandat)

Principle and Considerations

Marginal note:Principle of restraint

493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.

Marginal note:Aboriginal accused or vulnerable populations

493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of

• (a) Aboriginal accused; and

• (b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.

Arrest without Warrant and Release from Custody

Marginal note:Arrest without warrant by any person

• 494 (1) Any one may arrest without warrant

  • (a) a person whom he finds committing an indictable offence; or

  • (b) a person who, on reasonable grounds, he believes

    • (i) has committed a criminal offence, and

    • (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

• Marginal note:Arrest by owner, etc., of property

  (2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and

  • (a) they make the arrest at that time; or

  • (b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

• Marginal note:Delivery to peace officer

  (3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

• Marginal note:For greater certainty

  (4) For greater certainty, a person who is authorized to make an arrest under this section is a person who is authorized by law to do so for the purposes of section 25.

Marginal note:Arrest without warrant by peace officer

• 495 (1) A peace officer may arrest without warrant

  • (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

  • (b) a person whom he finds committing a criminal offence; or

  • (c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

• Marginal note:Limitation

  (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.

• Marginal note:Consequences of arrest without warrant

  (3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of

  • (a) any proceedings under this or any other Act of Parliament; and

  • (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).

Marginal note:Arrest without warrant – application of section 524

495.1 Despite any other provision in this Act, if a peace officer has reasonable grounds to believe that an accused has contravened or is about to contravene a summons, appearance notice, undertaking or release order that was issued or given to the accused or entered into by the accused, or has committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order, the peace officer may arrest the accused without a warrant for the purpose of taking them before a judge or justice to be dealt with under section 524.

Marginal note:Appearance notice for judicial referral hearing

496 If a peace officer has reasonable grounds to believe that a person has failed to comply with a summons, appearance notice, undertaking or release order or to attend court as required and that the failure did not cause a victim physical or emotional harm, property damage or economic loss, the peace officer may, without laying a charge, issue an appearance notice to the person to appear at a judicial referral hearing under section 523.1.

Marginal note:Issue of appearance notice by peace officer

497 If, by virtue of subsection 495(2), a peace officer does not arrest a person, they 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 they are punishable on summary conviction; or

• (c) an offence punishable on summary conviction.

Marginal note:Release from custody — arrest without warrant

• 498 (1) Subject to subsection (1.1), if a person has been arrested without warrant for an offence, other than one listed in section 469, and has not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon as practicable, release the person, if

  • (a) the peace officer intends to compel the person’s appearance by way of summons;

  • (b) the peace officer issues an appearance notice to the person; or

  • (c) the person gives an undertaking to the peace officer.

• Marginal note:Person delivered or detained

  (1.01) Subsection (1) also applies in respect of a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act and who is detained in custody for an offence other than one listed in section 469 and who has not been taken before a justice or released from custody under any other provision of this Part.

• Marginal note:Exception

  (1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds,

  • (a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, 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,

    • (iii) prevent the continuation or repetition of the offence or the commission of another offence, or

    • (iv) ensure the safety and security of any victim of or witness to the offence; or

  • (b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

• Marginal note:When subsections (1) and (1.01) do not apply

  (2) Subsections (1) and (1.01) do not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).

• Marginal note:Consequences of non-release

  (3) A peace officer who has arrested a person without a warrant, or who has been given the custody of a person arrested without a warrant, for an offence described in subsection (1), and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer’s duty for the purposes of

  • (a) any proceedings under this or any other Act of Parliament; or

  • (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1).

Marginal note:Release from custody — arrest with warrant

499 If a person who has been arrested with a warrant by a peace officer is taken into custody for an offence other than one listed in section 469 and the warrant has been endorsed by a justice under subsection 507(6), a peace officer may release the person, if

• (a) the peace officer issues an appearance notice to the person; or

• (b) the person gives an undertaking to the peace officer.

Marginal note:Contents of appearance notice

• 500 (1) An appearance notice shall

  • (a) set out the name, date of birth and contact information of the accused;

  • (b) set out the substance of the offence that the accused is alleged to have committed;

  • (c) require the accused to attend court at a time and place to be stated in the notice and to attend afterwards as required by the court; and

  • (d) indicate if the accused is required to appear at a judicial referral hearing under section 523.1 for a failure under section 496.

• Marginal note:Summary of consequences — failure to appear

  (2) An appearance notice shall set out a summary of subsections 145(3) and (6), section 512.2 and subsection 524(4) and the possible consequences of a failure to appear at a judicial referral hearing under section 523.1.

• Marginal note:Attendance for purposes of Identification of Criminals Act

  (3) An appearance notice may require the accused to appear at the time and place stated in it for the purposes of the Identification of Criminals Act, if the accused is alleged to have committed an offence referred to in paragraph 2(1)(c) of that Act.

• Marginal note:Signature of accused

  (4) An accused shall be requested to sign in duplicate their appearance notice and, whether or not they comply with that request, one of the duplicates shall be given to the accused. If the accused fails or refuses to sign, the lack of their signature does not invalidate the appearance notice.