You open the kitchen drawer looking for a receipt and find your release papers. The date on the form was yesterday. Or last Tuesday. Your stomach drops, and everything you’ve ever seen on television about warrants runs through your head.
It’s a bad feeling, and it deserves prompt attention. But a missed court date isn’t always a catastrophe, and what you do during the next few hours can make a real difference. The law has several responses to a non-appearance, ranging from nothing at all to arrest, detention and a separate charge. Which of those you face depends partly on what happened, and partly on how you respond.
Here is the usual general caveat. This information applies to adult criminal matters in Ontario, and it is not legal advice. If you have missed court, it would be sensible to call a lawyer today, before doing anything else below.
First, Figure Out What Kind of Court Date It Was
Different documents create different obligations, and the Criminal Code treats them separately.
- A summons or appearance notice tells you to attend at a stated date and place, and possibly for fingerprinting. These are often issued to people who were never held by police.
- An undertaking is a promise you give to a police officer on release, which includes attending court.
- A release order is what you receive from a justice or judge after a bail hearing. It’s the most serious of the group, and it often comes with a surety.
Also ask whether you were actually required to attend in person. Many early criminal appearances in the Ontario Court of Justice can be handled by your lawyer under a designation filed with the court. If a lawyer was acting for you, phone them first. It may be that your lawyer was there, and the matter was simply adjourned to another date. It would be unfortunate to panic about a warrant that was never issued.
Also check for fingerprint dates. The date for fingerprints and photographs under the Identification of Criminals Act is often set separately from the court date, sometimes at a police station. Missing it can carry the same sort of consequences as missing court, and people often miss it because they didn’t know it was important.
Then there’s the address. Most criminal matters in Brampton are heard at 7755 Hurontario Street. Provincial offences, such as many traffic tickets, are dealt with separately at 5 Ray Lawson Boulevard. Showing up at the wrong courthouse happens, and it’s worth checking your paperwork to see where you were supposed to be. Some courts also use video appearances. If you were told to appear remotely, that’s still an appearance.
What the Court Can Do When You Do Not Show
When your name is called and nobody answers, the Crown typically asks the judge or justice for a warrant. There are a few possible outcomes:
A warrant for your arrest. Under section 512(2), a justice may issue one if you were properly served with a summons or were required by a confirmed appearance notice or undertaking to appear and you didn’t. Similar powers apply if you were released on a bail order. Such a warrant means any police officer who comes across you, including at a routine traffic stop on Highway 410, can arrest you.
A warrant held with discretion. Courts sometimes issue a warrant but hold it until a future date, giving you a brief opportunity to attend. This often happens if a lawyer or family member explains that you’re in the hospital or have a good reason. If you show up by the new date, it may not be executed. If you don’t, it takes effect.
An adjournment with no warrant. If there’s an explanation before the court, or your lawyer has a designation on file, the judge may simply put the matter over.
Proceeding without you. In summary conviction matters, section 803 allows the court to hold a trial in your absence if you don’t appear. You could be convicted without knowing that your trial took place. For indictable matters, if you’ve elected a jury trial and don’t appear on the trial date, section 598 can cost you that election unless you establish a legitimate excuse.
The Separate Criminal Charge
A non-appearance can also become a new charge under section 145. The relevant subsections are:
- Section 145(2): someone on a release order who fails, without lawful excuse, to attend court as required.
- Section 145(3): someone named in an appearance notice or summons who fails, without lawful excuse, to appear as it requires.
- Section 145(4): a person who breaches an undertaking, which can include attendance terms.
Each is hybrid, with a maximum of two years in prison on indictment. The summary conviction route has the general limits. A conviction goes on your record, and it can follow you. Future bail courts and prosecutors would see a record of failing to attend, which makes getting out harder the next time.
To prove the charge, the Crown can use a certificate from the court clerk confirming that you didn’t attend, rather than calling the clerk as a witness. That’s allowed by section 145(9). So the non-appearance is usually easy to establish, and the real discussion is about why it happened and what you knew.
What Counts as a Lawful Excuse
The words “without lawful excuse” leave room for genuine explanations. Courts look at actual reasons and not simply stated ones. In R. v. Zora, the Supreme Court of Canada held that a breach under section 145 needs subjective fault. The Crown must show that you knew about the obligation and knowingly or recklessly failed to meet it. While Zora was about bail conditions, the principle is useful when thinking about attendance as well.
Here are some hypothetical situations showing the range:
- A person was admitted to Brampton Civic Hospital the night before. A discharge summary would be strong evidence.
- A parent’s child was rushed to emergency that morning. Again, records are helpful, and so is a prompt call to the court or your lawyer.
- A person’s flight home was cancelled because of a storm. Airline records might support this, although a court may ask why they were travelling so close to the court date.
- Someone forgot, or wrote the date down wrong. This is the most common situation, and it’s less likely to be a complete defence. Yet a true mistake about the date may bear on whether you knowingly failed to attend. It often helps in discussions with the Crown even if it wouldn’t win at trial.
- Your boss wouldn’t give you the time off. A court generally won’t accept this.
A defective appearance notice isn’t much of a defence either. Section 145(6) says that a notice’s failure to state the alleged offence accurately isn’t a lawful excuse. But other problems, such as never receiving the document at all, might be relevant.
Gather evidence now. Doctors’ notes, tow receipts, airline emails and work schedules are harder to get later.
Judicial Referral: An Alternative to a New Charge
Sometimes the Crown doesn’t need to pursue a separate offence. Section 523.1 of the Criminal Code provides for a judicial referral hearing, created to deal with administration of justice offences outside of a full prosecution. It can apply if you failed to attend court and that failure didn’t cause physical or emotional harm to a victim, property damage, or economic loss.
At this hearing, a justice who’s satisfied that you failed to comply reviews your release. The justice can take no action, cancel your existing release and make a new order, or, if the Crown shows cause, order detention. If a charge was laid for the failure, it must be dismissed and can’t be laid again. It’s a useful process since it may keep you from having a further conviction. It’s up to the prosecutor to seek it, though, so it needs to be raised and discussed.
Effects on Bail and on Sureties
The non-appearance can also affect the release you already have. Under section 524, a justice who has reasonable grounds to think that you have breached your release can cancel it. Afterwards, the burden can shift to you to show why you shouldn’t be detained. Under section 515(6)(c), being charged with a section 145 offence allegedly committed while on release for another offence also brings a reverse onus. Your second bail hearing may therefore be harder, and you may need a stronger plan.
If somebody agreed to be your surety, they’re involved too. Sureties take responsibility for making sure you attend, and if you don’t, the court can consider forfeiting the amount they pledged. That’s a difficult conversation. You should have it with them quickly, and your lawyer should take part in anything about the facts of the case.
What to Do Today
The sooner you deal with it, the better your position is likely to be. Consider these steps in order:
- Find the documents. Get your release form, your notes of the last court date and any correspondence.
- Call a lawyer. If you already have one, contact them right away. If not, this is when to get one. Duty counsel may also help at the courthouse, if you can’t get a lawyer immediately.
- Find out if a warrant exists. Your lawyer can check with the court office or look at the file. It’s not usually a good idea to phone the police station yourself to ask, because you may end up giving a statement.
- Get your proof together. Documents showing why you missed the date are valuable if they exist.
- Plan to attend court voluntarily. In many cases, a lawyer can arrange for you to attend the courthouse to deal with the warrant. It looks very different from being picked up at 2 a.m. after a traffic stop months later. No one can promise you’ll be released, but voluntary attendance is often a significant factor.
- Prepare for a possible bail discussion. Bring identification, proof of your address and work information. If there’s a surety, they should be ready to attend too.
Don’t run from it. Warrants don’t expire with time, and they tend to surface at the worst moments: at a border, during a routine stop, or when a police check is requested for a job. Time also makes the explanation sound worse.
Don’t lie about it either. Telling a court something that isn’t true, or giving a false reason to your lawyer, can create far bigger problems than a missed date.
Avoiding It Next Time
Once it’s sorted out, a few habits help:
- Keep a copy of your next-date paper in your wallet or a photo on your phone, and put an alarm in your calendar two days ahead.
- Tell your lawyer, in writing, about any change in your address, phone number or email.
- Check the wording about whether you must attend in person or by video.
- Plan your route. Courthouse parking and security lines take time, and you can be late even after leaving home on time. Allow extra time on a weekday morning.
- Ask for an interpreter in advance if you need one, and find out what will happen on that date.
More details about how the firm helps with these matters, including charges such as mischief and assault where missed dates can complicate an otherwise simple file, are on our practice pages. If you need help dealing with a missed date, please contact the firm as soon as you can. Bring whatever papers you have, even if you think they’re incomplete.