What Happens if You Fail to Appear in Court, Or Can’t Attend?

Failure to appear or attend court without a lawful excuse is a criminal offence and an accused can face up to two years in jail if convicted. If you fail to attend court when required, have a bench warrant out for your arrest, or know that you are unable to appear in court when scheduled, contact Pyzer Criminal Lawyers for legal advice. We will help you understand all of your charges and how to handle the court process.

This article will cover everything you need to know about failing to appear in Ontario, such as what to do if you fail to appear in court, what is considered a lawful excuse if you fail to attend, and steps to take if there is a bench warrant out for your arrest.

What does Failure to Attend or Appear Mean?

Typically, individuals charged with failing to attend court are facing other criminal charges. When those charges are going through the court system, an accused is required to “attend” or “appear”, as in physically be, in court at a specific time and date that the court or law enforcement orders them to. Therefore, “failing to appear” means the accused did not show up to court when they were required to. Under section 145(2) of the Criminal Code, failure to attend court without a lawful excuse is a criminal offence, in addition to any other charges the accused is facing.

Section 145(2) states:

Every person 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 other words, failing to appear under section 145(2) is a single offence that can be committed in three ways:

1. An accused is released on bail and does not return to court when required;
2. While in court, a judge or justice orders the accused to come back on a certain date and the accused does not return on the certain date; or
3. A judge or justice orders an accused to go somewhere and the accused does not go to that place.

R v Charles, 2006 ABCA

An accused can also be charged with failing to appear if they do not attend for fingerprinting without a lawful excuse, or for failing to attend court according to a promise to appear or appearance notice. Section 145(3) of the Criminal Code states the following:

Every person who is named in an appearance notice that has been confirmed by a justice under section 508 or who is served with a summons and who fails, without lawful excuse, to appear at the time and place stated in the notice or the summons, as the case may be, for the purposes of the Identification of Criminals Act, or to attend court in accordance with the notice or the summons, as the case may be, is guilty of

1. an indictable offence and liable to imprisonment for a term of not more than two years; or
2. an offence punishable on summary conviction.

Similar to section 145(2), the penalty for failure to attend court according to a promise to appear or appearance notice, or failing to appear for fingerprinting is up to two years in jail if the Crown proceeds by indictment or a less harsh penalty if the Crown proceeds by way of summary conviction.

What is a Lawful Excuse for Failing to Appear? 

A “lawful excuse” is a defence for failing to appear in court. If an accused is charged with failing to attend court but has a lawful excuse, they will not be found guilty of failing to appear. To argue this defence, the onus is on the accused to prove it was impossible to appear in court on the day they were required to. Courts have held the “impossible” threshold for a lawful excuse extremely high. For instance, the only lawful excuses for failing to be in court are a confirmed hospitalization with a medical condition, or because the accused is in custody after a separate arrest.

An accused will not be found guilty with failure to attend if they had an honest, but mistaken, belief as to the day they were supposed to appear in court. An honest, but mistaken, belief is a lawful excuse when an accused can prove that they did not mean to miss their scheduled court date. Courts have held that failing to appear in court is not an offence of strict liability (R v Hammoud, 2012 ABQB). In other words, to be found guilty of failing to appear the accused has to have the necessary mens rea to commit the offence. Therefore, if an accused sincerely and mistakenly forgot their court date, they lack the mens rea required to be found guilty of the offence.

Call Pyzer Criminal Lawyers for legal advice if you believe you have a lawful excuse as to why you failed to appear in court when you were required.

What is Not a Lawful Excuse?

The only lawful excuse to not appear in court is either an accused is in the hospital or in custody. Therefore, the following will not be considered a lawful excuse:

• An illness such as the common cold;
• School or work;
• A family situation;
• Having a headache; or
• Any other reason that is not a confirmed hospitalization or custody.

What Happens if you Fail to Appear in Court in Ontario?

If an accused failed to appear in court, a judge will do one of two things:

• Order a bench warrant which leads to the accused being arrested
• Issue a discretionary bench warrant which adjourns the hearing to a different day

Bench Warrant vs. Discretionary Bench Warrant

Bench Warrant

A bench warrant is issued by a judge when an accused does not attend a scheduled court date, hearing, or trial. A bench warrant gives law enforcement the power to arrest and charge the accused for failing to attend and hold the accused in custody until they can be brought to court. The police can arrest and take the accused into custody at any time, such as at a routine traffic stop, at the accused’s home or office, or if/when the accused appears in court for another matter. Once the accused is brought to court, the judge will address the reason why the warrant was issued.

Discretionary Bench Warrant

Instead of a bench warrant, the court may extend courtesy and issue a discretionary bench warrant. When a judge issues a discretionary bench warrant, the matter is adjourned to another date. If the accused appears at the rescheduled date, the warrant is cancelled. Failure to attend the rescheduled date will likely result in a bench warrant being issued, leading to the arrest of the accused.

How do I Know if I Have a Bench or Discretionary Bench Warrant?

If you fail to attend your court date, it is highly recommended you contact a lawyer immediately. A criminal defence lawyer can find out whether there is a warrant out for your arrest and advise you what to do. Alternatively, you can call the courthouse directly and ask if there is a bench warrant against you. You can also go to court and try to settle a warrant in person. However, if you go to the courthouse, there is a chance you will be arrested on the spot and held in custody for a bail hearing if there is a bench warrant out for your arrest.

Failure to Appear in Court for Criminal Charges

If an accused fails to appear in court regarding their criminal charges, a bench warrant will likely be issued for their arrest. Once the police arrest an accused on a bench warrant, it will be more difficult for the accused to be released on bail. Put another way, once the police arrest an accused for failing to appear in court, the accused will likely stay in custody until all of their criminal charges are resolved in court which can take months or even years. Therefore, if you cannot appear in court, or you have a bench warrant out for your arrest, hire an experienced criminal defence lawyer right away. Pyzer Criminal Lawyers are experts in criminal law. We will advise you what to do if you have a bench warrant, and/or request from the court that your matter be postponed to a later date so that you are not arrested and held in custody.

I was Arrested. How do I Know When I Need to Appear in Court?

When an accused is arrested, they can be released by the police with the following documents:

• A summons (form 6 under the Criminal Code);
• An appearance notice or promise to appear (form 9 under the Criminal Code);
• On an undertaking (form 10 under the Criminal Code); and/or
• A release order (form 11 under the Criminal Code).

Each document specifies the time and date that the accused must attend court in order to respond to their charges.

If the accused is not released by the police after they have been arrested, they will be held in custody until they can see a judge or a justice for a bail hearing. A judge or justice of the peace can release the accused on bail if the accused agrees to a recognizance. A recognizance is a document stating when the accused has to appear in court.

What do I do if I Cannot Appear in Court?

In some cases, an accused can send someone to appear in court for them on their behalf. For example, a friend or family member may be able to act on an accused’s behalf. However, the best solution if you cannot appear in court is to involve an experienced criminal defence lawyer to represent you. Pyzer Criminal Lawyers can help you avoid arrest if you cannot appear in court, and will request an adjournment so that your matter can be heard in court at a different date.

Frequently Asked Questions

Why is the Charge of Failing to Appear Taken so Seriously?

When an accused fails to attend court when required, court time and resources are wasted. Courts consider failing to appear in court disrespectful and a disregard for the administration of law and justice.

What is the Penalty for Failing to Appear?

If an accused fails to appear in court when they were required, they face up to two years in prison if the Crown proceeds by way of indictment. Alternatively, the Crown can proceed by way of summary conviction and the accused will face less jail time and/or a fine.

I Have Been Charged with Failing to Appear. What Should I do?

If you have been charged with failing to appear, you have been charged with a criminal offence and will have to answer those charges in court. Pyzer Criminal Lawyers will help you with all of your charges, and help navigate you through the court process. We will find out if there is a bench warrant out for your arrest, and/or assist you in rescheduling your court hearing for a later date.

What if I Forgot my Court Date? Am I Still Guilty of Failing to Appear? 

Depending on the circumstances, an accused is not automatically charged if they fail to appear. First, the court will issue a bench warrant or a discretionary bench warrant to persuade the accused to attend court. If the accused ignores the bench warrant or discretionary bench warrant and still does not attend court when required, they will likely be charged with failing to appear.

What Will Happen to me if I Surrender Myself to the Police for Failing to Appear?

If you fail to appear and surrender yourself to the police, you will be arrested and held in custody until you can go in front of the court and address why you failed to appear. If you plan on surrendering yourself to the police, you will not have access to your personal belongings. Write down important phone numbers that you may need to access while in custody.

Conclusion

If you know that you missed your court date, or that there is a bench warrant against you, consult a defence lawyer. If there is a bench warrant out for your arrest, the police can show up at your work or house and arrest you on the spot. By hiring an experienced defence lawyer at Pyzer Criminal Lawyers, we will advocate for any warrant against you to be dropped, and determine your best defence going forward. We will conduct discussions with the court on your behalf to determine how your failing to appear charges, if any, can be opposed. Contact us today and request a free case evaluation.