Fail to Appear: s.145(5)

 

  • Section 145(5) makes it an offence when a person named in a promise to appear fails to appear at court or for fingerprinting as set out therein.

  • The provision allows for a defence of lawful excuse, the proof of which lies on the accused.

  • It also requires that the promise to appear must have been confirmed by a justice. The confirmation process entails accepting, approving and verifying that the promise to appear complies with s. 501(4), including the requirement of service on the accused: R v St. Pierre, 2016 ONCA 173 at para 7

  • Section 145(9) provides that a certificate of the clerk or judge of the court before which the accused fails to attend, or person in charge of the place the accused failed to attend for the Identification of Criminals Act, is evidence of the statements included in the certificate.

  • For these offences, s. 145(9) sets out that those statements are that the accused was named in the promise to appear, that the promise to appear was confirmed by a justice under s. 508, and that the accused failed to appear as stated therein: St. Pierre at para 8

Proof of Identity

  • The onus is on the Crown to prove (or in the case of a directed verdict, to present some evidence) that the person named in the information and before the court is the person who was the subject of the promise to appear.

  • It is not essential that the original arresting officer provide in-court identification of the accused where other circumstantial evidence provides evidence on the issue: St. Pierre at para 9

  • In St. Pierre, for example, the Court of Appeal held that the following evidence, taken together, afforded some evidence that the accused was the person identified in the promise to appear, sufficient to dismiss a motion for a directed verdict:

    • The fact that the same name and date of birth were listed on the promise to appear and the information charging the accused with failing to attend (para 10)

    • the fact that the accused turned himself in on his own volition for an outstanding warrant for failing to attend court (para 11)

    • the fact that the accused confeded confirmation of the promise to appear "effectively accepting that he was named in a promise to appear and that the promise to appear was served on him" (para 12) 

    • the fact that the certificated tendered at trial demonstrate that the accused was named in the promise to appear, the promise to appear was confirmed by a justice, and that he failed to attend court as required (para 12)