Failure to Attend Court or Appear (s. 145) Charges in Canada: Offences, Defences, Punishments

What is a failure to attend court or appear charge?

Failure to attend court or appear is covered under s. 145(2) and s. 145(3) of the Criminal Code found in Part IV. Part IV covers “Offences Against the Administration of Law and Justice.”

A failure to attend court or appear charge occurs when a person fails to attend court in accordance with a release order, fails to attend court, or fails to surrender themselves in accordance with an order.

Put another way, failure to attend court or appear occurs when a person is at large on an undertaking or recognizance and fails to attend court. A person appeared in court and failed to attend afterwards as required by the court. Or a person appeared in court and failed to surrender themselves in accordance with a court order.

Failure to attend or appear is a hybrid offence with a Crown election. This means that depending on the circumstances of your case the Crown can elect to proceed by indictment or summarily. If an accused is prosecuted by indictment, there is a Defence election of court under s. 536(2) of the Criminal Code.

Examples

Some examples of a failure to attend court or appear charge may include the following:

• Failing to attend court when required by the court, justice or judge;
• Failing to appear at a time and place stated in a summons;
• Appearing for a summons and failing to appear thereafter as required by the court; and
• Not having a lawful excuse to fail to attend court or appear.

Defences

The defences available to a failure to attend court or appear charge are entirely dependent on the facts of your case.

However, some defences to a failure to attend court or appear charge may include:

• The accused had a lawful excuse for failing to attend court or appear;
• The accused, showing due diligence, made an honest mistake regarding the date and time of attendance;
• The accused was not properly served with a summons; and
• The court which summoned the accused was not in the correct jurisdiction.

Punishment

A Failure to Attend Court or Appear charge is a hybrid offence, which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding 2 years.

Punishments for failure to attend court or appear depend on if the Crown elects to pursue the charge as an indictable offence or summarily. There are no mandatory minimum penalties for this offence. The maximum is no more than 2 years of incarceration if prosecuted by indictment. If prosecuted summarily, the maximum punishment is no more than 2 years of incarceration and/or a $5,000 fine.

Failure to attend court or appear charges can also entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s. 145 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a failure to attend court or appear charge under s. 145 is established by proof, beyond a reasonable doubt, of the following:

Failure to attend court 145(2)

• The accused at a specified date and time, in the correct jurisdiction, failed to attend court as required by the court, justice or judge; and
• The accused was subject to an undertaking or recognizance or was directed to attend court at a later date while appearing before a judge or justice.

Failure to appear on summons 145(3)

• The accused at a specified date and time, in the correct jurisdiction, failed to appear at the time and place stated in a summons;
• Having appeared in accordance with a summons, the accused failed to appear thereafter as required by the court; and
• The summons was for “the purposes of the Identification of Criminals Act or to attend cour”.

R v Jerett held that section 145(2) “enables courts to control their own process. Failing to give effect to a judge’s order to a defendant to return for continuation of proceedings against him or her would undermine the judge’s authority to control the process of the court and render judges’ procedural orders ineffective and unenforceable, thereby impugning the integrity of the justice system” (at para 18).

R v Hubek stated that for 145(3), applies to not only the first appearance in court but also to any subsequent appearances, a promise to appear, or an appearance notice.

The Guilty Mind (Mens Rea)

The mens rea for a failure to attend court or appear charge under s. 145(2) and (3) include proving, beyond a reasonable doubt, that:

• The accused had no lawful excuse to fail to attend or appear; or
• The accused knowingly failed to attend court or appear on a summons.

R v Ludlow held that when an accused fails to attend court or appear, they must prove they had a lawful excuse on a balance of probabilities. Furthermore, R v Bender stated that an honest mistake on the time and date of the required attendance of the accused can negate the mens rea of the offence.

Failure to Attend Court or Appear

How to Beat a Failure to Attend Court or Appear Charge

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a failure to attend court or appear charge:

Factual innocence

A strong defence against a failure to attend court or appear charge is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you were subject to an undertaking or recognizance, you were directed to attend court, or that you were not served a summons that required you to appear. Then you may have a defence that you were factually innocent.

Lawful Excuse or Honest Mistake

For this to be a defence against a failure to attend court or appear charge, you must be able to show that on a balance of probabilities, you took all reasonable steps to appear as you were required, or that lawful circumstances prevented you from appearing. If an honest mistake about the date and time of attendance was made, or you forgot, you must show that you were diligent in attempting to attend your appearance as required.

Identity

Depending on the circumstances of your case, a possible defence to a failure to attend court or appear charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who was required to attend court or to appear. However, R v St. Pierre stated that evidence of your name on the original appearance notices provides at least some evidence that you were required to attend.

Any applicable Charter defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Failure to Attend Court or Appear Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than 2 years for those convicted of a failure to attend court or appear charge.

Persons found guilty of failing to attend court or to appear are eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, custody, custody with a fine or probation or conditional sentence order.

Beyond any immediate jail and/or probation sentence you receive, there is also a discretionary DNA Order.

This is authorized as a secondary offence listed under s. 487.04 (c), (d) or (e), and the DNA order can be authorized regardless of if the Crown proceeds summarily or by indictment.

Frequently Asked Questions

What happens if you fail to appear in court in Canada? 

If you fail to appear in court in Canada, you can be charged with a failure to attend court or appear charge under sections 145(2) and (3). If you fail to appear in court, the judge will likely issue a warrant for your arrest and adjourn your appearance to another day. Your attendance will likely be required on that day. Because the judge will likely issue a warrant, you can be arrested and charged by the police.

If you have failed to appear in court it is important that you get legal advice from an experienced criminal lawyer when dealing with these issues.

What is the difference between a summons and an appearance notice?

An appearance notice is an official document given to a person who is required to testify in court for a criminal trial on a specific day and time or it can be an official document telling a person who has not yet been charged, that they have to appear in court on a specific date and time to respond to a criminal charge.

A summons is given to a person who had been charged with a crime that requires them to appear in court on a specific date and time.

Can you go to jail for missing a court appearance?

If you miss a court appearance and are charged under sections 145(2) or 145(3), you can go to jail. If the Crown proceeds by indictment, 145(2) and (3) both carry a maximum sentence of no more than two years in jail. Therefore, there is a possibility that you can go to jail for missing a court appearance.

Published Decisions

R v Zora., 2020 SCC 14 (CanLII)

The accused was charged with drug offences and was granted bail with conditions. One of the conditions was that the accused present himself at the door of his residence within five minutes of a peace officer or bail supervisor attending to confirm compliance with a curfew. The accused failed to present himself twice and was charged under s. 145(3) of the Criminal Code. The accused stated that he did not possess the required mens rea as he could not hear a knock at the door or the doorbell from where he was in the house. The SCC held that a subjective fault requirement is needed to prove mens rea. The Crown can satisfy the subjective mens rea requirement by showing (1) the accused had knowledge of the conditions of their bail order or were wilfully blind to those conditions, and (2) either the accused knowingly failed to act according to the bail conditions or they were wilfully blind to those circumstances and failed to comply despite that knowledge.

You can read the full decision here.

R v Jerrett., 2017 NLCA 65 (CanLII)

The accused was charged with traffic violations and failed to appear in court on the date set to enter pleas. A warrant for the accused’s arrest was issued. The accused eventually turned herself in and was charged with a breach of section 145(2)(b) of the Criminal Code. The charge was dismissed by a Provincial Court Judge who found that a breach of a regulatory offence cannot be convicted for failing to attend court. The Crown appealed this decision, and the Court of Appeal allowed the appeal, holding that you could be charged under section 145(2)(b) for breach of a regulatory offence.

You can read the full decision here.

R v Charles, 2006 ABCA 216 (CanLII)

The accused was charged with three indictable offences and was released on a recognizance requiring him to appear in court and to attend “thereafter as required by the court”. The accused attend the first date and failed to attend subsequent appearances which resulted in a charge under 145(2) of the Criminal Code. At trial, the accused was acquitted on the basis that the wrong charge was laid. The Crown appealed this and the appeal was allowed.

You can read the full decision here.