Failure to appear for court proceedings is a common occurrence. From severe health conditions to apparent practical inability to reach the courtroom, there could be various reasons that prevent an individual from appearing in court. Through our years of service as criminal defence lawyers in Edmonton, we have noticed that court appearances are sometimes disregarded and taken very lightly. However, we would like to point out that failure to appear without a valid reason has more severe consequences in Alberta than what comes to mind.
Unlike the false portrayal in movies, missing a court appearance is a serious offence in not only Canada but across the globe. It is worthwhile noting that our justice system is consistently overburdened and faces a high shortage of resources. As a result, failure to appear in court by just one person overloads the already pressurized system even more. When a person does not attend a court proceeding when required to do so, the case’s progression is hindered, which results in the wastage of the court’s valuable resources like time.
For these reasons, the court considers failure to appear as discourteous and disregard for the judicial process and justice.
From severe fines to jail sentences, the penalties for such offences are quite stringent. Thus, it is in your best interest to seek the help of a professional criminal defence lawyer if you are facing such a charge. Besides the penalties, a conviction in this regard will also tarnish your criminal record and reputation permanently.
To help you understand the significance of appearing in court when summoned and the negative impacts of the failure to do so, this blog will provide a deeper and systematic overview of the matter with references to the Criminal Code of Canada.
Failure To Appear In Court In Terms Of Section 145 (2) And 145 (3)
When you are charged with any criminal offence, the court requires you to physically attend or appear in court so that justice may be served. Failure to do so is considered an offence against the administration of law and justice in accordance with PART IV of the Criminal Code.
After the police arrest you, you may be released with either of the following:
- Summons
- Appearance notice (or promise to appear)
- Undertaking
- Release order
Accordingly, Section 145 (2) states that:
An individual 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 who,
- Is at large on a release order and who fails, without lawful excuse, to attend court in accordance with the release order;
- Having appeared before a court, justice, or judge, fails, without lawful excuse, to subsequently attend court as required by the court, justice, or judge; or
- Fails to surrender themselves in accordance with an order of the court, justice, or judge, as the case may be.
In simpler words, you are guilty if:
- You were released on bail but did not return to the court as and when instructed.
- While in court, the judge specifically asked for you to return on a certain date, but you do not do that.
- You did not surrender in accordance with a court order.
Section 145 (3) further states that a person who is named in an appearance notice or is served with a summons but fails to appear before a judge as per the specified time and date on the summons or notice for the purpose of Identification of Criminals Act without a lawful excuse is guilty of:
- An indictable offence and liable to imprisonment for a term of not more than two years; or
- An offence punishable on summary conviction.
Read Also: Travelling With Absolute Or Conditional Discharge
Do You Have A Lawful Excuse?
If you do not appear in court, the judge may order a discretionary bench warrant, in which the hearing is adjourned to another date, or a bench warrant which mandates the arrest of the accused.
To defend yourself against being found guilty for ‘failure to appear, you must be able to prove one of the following two instances:
- Impossible to appear in court on the specified date: The word impossible here is quite constricted and provides little room for an escape. You can not use illnesses such as common cold, fever, or any such thing as a lawful excuse. Instead, you will need to provide proof of hospitalization with clearly stated medical conditions.
- An honest yet mistaken belief of the date of appearance: In this case, the Latin word mens rea, which has the literal meaning of a ‘guilty mind’, comes to play. If you can prove that you did not have the intention of not appearing in court but failed to appear due to a misunderstanding, you will not be found guilty.
Clearly, arguing such a defence requires the legal services of a reputed criminal lawyer.
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