I am charged with an offence, but service of the summons may not have been perfect: should I appear in court?

There are a number of ways that a person charged with an offence may be instructed to appear in court: summons, appearance notice, promise to appear etc.

 

A summons process is often used when the address of the person charged with the offence is known. After a summons is served, it may be unclear whether the service was valid. In such cases, the person purportedly served may wonder whether they should appear in court, or rather assume that the service was invalid and not attend court. This article contains a discussion of the requirements for valid service, and identifies some of the possible consequences of not appearing on the date indicated by the summons.

 

Section 509 of the Criminal Code, R.S.C. 1985, c. C-46 [the Criminal Code] sets out the information that should be contained in each summons, and the requirements for service:

 

509. (1) A summons 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 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.

 

(3) Service of a summons may be proved by the oral evidence, given under oath, of the peace officer who served it or by his affidavit made before a justice or other person authorized to administer oaths or to take affidavits.

 

(4) There shall be set out in every summons the text of subsection 145(4) and section 510.

 

The foregoing indicates that a summons must be directed to the accused, must describe the offence the accused is charged with, must give the details of when and where to appear, and must include the text of sections 145(4) and 510 of the Criminal Code. If any of that information is missing, the service will not be perfect.   

 

The foregoing indicates that a summons must be directed to the accused, must describe the offence the accused is charged with, give the details of when and where to appear, and include the text of sections 145(4) and 510 of the Criminal Code. If any of that information is missing, the service will not be perfect.  

 

Section 509(2) of the Criminal Code sets out the requirements for service. Although the word “service” normally implies that the document must be delivered into the hands of the very person the document is addressed to, s. 509(2) says that this is not required for service of a summons issued under s. 509. It is enough that the summons be left with a person who looks to be at least 16 years old, and who lives in the same residence as the person named in the summons.  Therefore, although the police cannot simply pop the summons in the mailbox, they can leave it with anyone who lives with the accused and who looks at least 16 years old, regardless of how old they actually are.

 

There are many reasons service may not be perfect: e.g. the accused does not actually live at that residence, the adult the summons was given to was just a visitor and does not live with the accused etc. However, police officers who serve summonses generally ask questions to determine who they are leaving the summons with and to confirm that the accused lives at that residence.

 

After handing a summons to an accused, or leaving it with someone at the accused’s residence the police officer will notify the court that service was affected. This notice is provided in accordance with s. 509(3) of the Criminal Code. Most often the officer will swear an affidavit of service. Once that is done, a notation is made on the court records indicating that the accused was served with the summons and the matter will be put on the court list for the date stated on the summons. This process will be followed whenever the police officer swears that service was made, regardless of whether service was perfect or defective. In other words, it does occur that matters are put on the court appearance list even though service was defective.

 

On the court date, the Crown will take the accused’s file into court, along with the files for the many other accuseds that are due to appear that day. The Crown will call all of the files for the accuseds who arrive at court for that session. After all the accuseds who showed up have been dealt with, the Crown will be left with a number of files of accused who have not shown up. The procedure that is followed for those files is generally as follows:

 

o       Although there are no remaining accuseds in the courtroom, the Crown will call out the name of the accused.

o       If the court has a public address (PA) system, the sherrif will page the accused on the PA system which can be heard in the hallways of the courthouse.

o       If the accused does not come into the courtroom within seconds, the Crown will say “Subject to the court clerk confirming that service was affected, the Crown seeks a warrant for the arrest of [name of accused] under s. 510 of the Criminal Code”.

o       The court clerk will look at the court file to check that the accused was served with notice to appear. Seeing the notation on the file that, according to the police officer who affected service, the accused was served with a summons, the court clerk will say “Accused served with a summons on date X”.

o       The judge, or justice of the peace, will then say “Warrant issued for [name of the accused] at [time] on [date]”.

 

At that point there will be a warrant outstanding for the arrest of the accused, regardless of whether service of the summons was perfect or not.

 

If the charge for which the summons was served it is a serious charge, the police may actively seek out the accused at his or her place of work, residence, or elsewhere, and arrest him or her. If it is a minor charge, such as illegal hitchhiking, the warrant will simply be recorded on the Canadian Police Information Computer (CPIC) and no active steps will be taken to track down the accused.

 

Assuming it is a minor charge and no active steps are taken to immediately track down the accused, the fact that there is a warrant for arrest outstanding will simply remain on CPIC. Police cars have computers in them and the officers in the cars have access to CPIC at all times. When officers stop pedestrians (say for jaywalking) or drivers (say for having a broken tail light), they often run the name of the person stopped through CPIC.

 

If there is a warrant outstanding for the arrest of the person stopped, it will show up on CPIC. When this occurs the officers will, most likely, arrest the accused on the spot and take him or her into custody. If the accused was driving and there is no one to drive their car home for them, their car will be impounded.

 

The accused will be held in custody while the Crown prepares for a bail hearing. At the bail hearing it will be decided whether the accused should be held in custody until the trial date, or whether he or she can be released on bail. For minor offences bail will normally be granted, it is just the terms of bail that vary.

 

As explained above, even if the original service of summons was not valid, if the officer who served it thought it was, and so notified the court that service had been affected, the process explained above would be followed and an arrest warrant would be issued. Therefore, even if an accused thinks that the service was not valid, they should consider whether the officer who served it thinks it is valid because that is what determines whether the matter will be put on the court list for the date stated in the summons.  

 

If the police stop the accused and there is an arrest warrant outstanding, it is unlikely that they will accept an explanation from the accused that the service was invalid – the police will simply arrest the accused and tell the accused that he or she can explain it all to the judge.  Therefore, unless the accused wants to risk being arrested on the way to their child’s high school graduation, they should attend the court date stated in the summons if they receive notice of it.

 

If the service was defective and therefore the arrest improper, the accused may be able to sue the police. But, the relatively small amount of compensation that will generally be received for such a claim would, given the cost and effort to pursue such a claim, probably not be worth it.

 

The upshot of the above is that accuseds who receive notice of court dates should attend them, even if an argument can be made that service was not perfect.

 

If the service was valid and the accused failed to attend court, he or she will, when eventually brought before the court, be liable to further consequences for failing to attend court when originally summoned to do so. In particular ,the accused risks being charged under s. 145(4) of the Criminal Code with failing to appear:

 

Thus, in addition to being subject to prosecution for the original offence the summons was issued for, the accused risks being charged with a totally separate offence. Being charged with two offences instead of one makes the whole matter more serious and, if convicted on both, the accused will likely receive a harsher sentence. Even if the accused is acquitted of the charge the original summons is for, he or she may still be convicted for failing to appear because it is a separate wrongful act to refuse to attend court when required to do so.

 

The Crown may decide to not lay a charge for failing to appear. It is even possible that the Crown will not proceed with the original charge the summons was for. In making these decisions the Crown will consider the ordinary test for proceeding with charges: 

(An Application For An Order Of Mandamus, 2000 BCSC 1408 at para. 9).

 

If the failure to appear resulted from a misunderstanding, it may not be in the public interest to proceed with a failure to appear charge. If the original charge the summons was for is very old, it may be difficult or impossible to track down the witnesses and so there will not be a substantial likelihood of conviction. Furthermore, if the original charge the summons was for is very minor, the Crown may consider that the accused has already been punished enough by being taken into custody and put in a jail cell by the police while waiting for the Crown to prepare for the bail hearing.

 

There was once a story about an accused charged with evading fare on public transport who failed to appear and was arrested 4 years later when the police ran his name through CPIC. The Crown decided that no charges should proceed and the accused was released immediately. However, every case depends on its own circumstances and accuseds should never assume that if they are able to hide for long enough the charges against them will be dropped.

 

Even if an argument can be made that the service of the summons was defective, accuseds who receive notice of court dates should attend them. Regardless of whether the service of the summons was perfect or defective, accuseds who fail to appear risk being arrested and will have little or no meaningful remedy for wrongful arrest. Rather than run from the law, accuseds should seek legal advice and deal with the matter on its merits, negotiating a more lenient penalty in exchange for an early guilty plea where appropriate.