“ Failing to show up in court can cause all kinds of problems for a criminal defendant, but my biggest concern is how it might hinder my ability to mount an effective defence for them,”
— Jeff Mass , Managing Partner
When Greater Toronto Area clients facing criminal charges ask Mass Tsang defence lawyer and managing partner, Jeff Mass , what will happen if they don’t appear in court, he sometimes responds by asking them if they just want to plead guilty to their charges. “Failing to show up in court can cause all kinds of problems for a criminal defendant, but my biggest concern is how it might hinder my ability to mount an effective defence for them,” he says. “Clients who fail to appear in court to address serious offences face the distinct likelihood that they will be locked up in pre-trial incarceration. And that’s going to affect my ability to strategize an effective defence.”
Jeff’s co-managing partner, Robbie Tsang , adds, “The simple answer to this question is, ‘You’ll be charged with failure to appear in court, which carries a possible two-year prison sentence and $5,000 fine if convicted.’ Oh, and I’ll also tell them how it might affect defence strategizing on the original charges, and that it’s going to cost more money in defence fees.”
Both lawyers note that their responses to this question aim to identify why a client might miss a court appearance, so they can prevent it from happening. Additionally, they note that numerous variables affect a court’s response to a defendant who fails to appear. Let’s examine the issue of failing to appear in court as addressed by Canada’s Criminal Code and the courts.
| Provision | Description | Penalty (Indictable) | Penalty (Summary) |
|---|---|---|---|
| 145(2)(a) | Failed to attend court while on release order | Up to 2 years prison | Up to 6 months prison / $5,000 fine |
| 145(2)(b) | Failed to attend a subsequent required appearance | Same as above | Same as above |
| 145(2)(c) | Failed to surrender themselves as required | Same as above | Same as above |
| 145(2)(d) | Failed to comply with Section 515.01 court order | Same as above | Same as above |
| 145(3)/(4) | Failed to comply with notice to appear, summons, or undertaking (e.g., curfew, no-contact order) | Same as above | Same as above |
Section 145 of the Criminal Code treats the failure to appear in court or respond to several other court orders as severely as it does escape from prison or jail. As an indictable offence, the maximum penalty is a two-year prison sentence and/or $5,000 fine. If charged as a summary conviction offence, the penalties are generally less harsh.
The Code defines failure to appear in part as:
“ (2) 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,
Sections 145(3) and (4) further detail that failing to comply with a court appearance notice, summons, or undertaking (no contact orders, curfews, release order, fingerprinting order, etc.) are similar offences that carry the same penalties upon conviction.
| Court Action | Description | Outcome if Complied | Outcome if Ignored |
|---|---|---|---|
| Discretionary Bench Warrant | Adjourns case temporarily, allows accused time to appear | Warrant is cancelled, case continues | Escalates to full bench warrant |
| Bench Warrant | Authorizes police to arrest accused at home/work | Accused arrested, faces new charges | Incarceration until bail hearing |
When an accused offender fails to appear in court or comply with other court orders, the judge may issue either a bench warrant or a discretionary bench warrant. A Bench warrant is essentially a warrant for arrest, which police can use to arrest and hold the accused until they can be brought to court. The warrant authorizes police to arrest the accused at any time and in most places, including their home and workplace.
The discretionary bench warrant is the better option for the accused, as it represents a proceeding adjournment that allows them to appear or respond at a rescheduled date. If the accused complies, the warrant is cancelled, and court processing of the original charges proceeds normally. Otherwise, a bench warrant is issued, and the police begin keeping a lookout for the accused so they can be arrested.
Anyone arrested on charges relating to a failure to appear bench warrant faces the distinct possibility, if not likelihood, of pre-trial incarceration. If the accused failed to appear in a case in which they were granted pre-trial release through a bail hearing , their bail is revoked. They will likely face a new bail hearing on both the existing charges and the new failure-to-appear charge, with the need to surmount a higher threshold to secure their release. Many original indictable offence charges will preclude a second release on bail, as will not being a lawful Canadian resident, original offences that involved violence against an intimate partner, and committing new offences between the original arrest and bench warrant issuance.
The text of Section 145 references “without lawful excuse” in relation to failing to appear, which begs the question of what counts as legal justification for not appearing in court or complying with a court order. Because the text does not define what such a lawful excuse might be, courts have established relevant precedents. Generally, the only legitimate lawful excuses a judge will accept are death, being a confirmed patient in hospital, or being in police custody for another offence. Judges typically don’t excuse appearance failures involving work, school, appointments, family needs, common illnesses, car breakdowns, forgetfulness, and similar situations.
| Excuse Type | Examples | Typically Accepted? |
|---|---|---|
| Legally Valid | Hospitalization, police custody, death of immediate family member | Yes |
| Common But Invalid | Forgetfulness, work, school, child care, traffic, illness, car trouble | No |
| Borderline Cases | Documentation error, misinformation about date | Discretionary |
That said, judges and Crown prosecutors are human. Prosecutors don’t always pursue failure to appear charges, especially for mistaken breaches involving underlying minor offences. If charged, a judge may go easy on an offender who can demonstrate a reasonable excuse.
Additionally, to prove guilt in a failure to appear case, the Crown must prove that the offender knowingly or willfully failed to appear or comply with an order, under the Criminal Code’s “mens rea” — Latin for “guilty mind” — requirement for establishing criminal liability. However, failure to appear cases operate under a reverse onus basis, in which the offender must prove their lawful excuse or the lack of mens rea involved with the appearance failure.
The Greater Toronto Area criminal defence lawyers of Mass Tsang strongly encourage their clients to attend all court appearances and comply with all court orders. A failure to appear charge can compound the legal trouble an alleged offender already faces and make the underlying charges more difficult to defend if it results in pre-trial incarceration. With an outstanding reputation for their legal prowess, and thousands of successful defences in the GTA, contact Mass Tsang today for a free consultation.
