Failure to Appear in Court

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September 23, 2021
Failure To Appear In Court

What Does a Failure to Appear Charge Mean?

When facing criminal charges, you must appear in court as required. The time, date, and the court you’re expected to present yourself in are usually stipulated in the documents provided by the police or court during your release. This document may be your Release Order, an Appearance Notice, a Summons, a Recognizance, or an Undertaking.

Apart from when facing criminal charges, you may be required in court for other reasons, such as when you’re subpoenaed for a case or trial or issued a traffic ticket.

Failure to comply with the given orders and appear in court as required is a violation of the law. As such, you may face failure to appear in court charges.

Is Failing to Appear in Court a Crime?

Failure to appear in court is a crime under section 145 of the Criminal Code. It is regarded as an affront of justice offence, showing disregard and disrespect to the criminal justice system.

What Happens If I Miss Court in Ontario?

If you fail to appear in court as required, the judge will likely issue a bench warrant for your arrest. In some cases, they may issue a discretionary bench warrant. The difference between a bench warrant and a discretionary bench warrant is that the former requires the police to arrest and detain you, while the latter does not lead to your arrest. A bench warrant with discretion is usually dropped if you appear in court during the next set hearing.

In most cases, your attorney can help you get the warrant dropped by contacting the court within one to two days and explaining the mistake. If the mistake is reasonable and acceptable by the court as a lawful excuse, the judge may rescind the warrant.

Therefore, it’s in your best interest to contact a criminal defence lawyer as soon as you notice that you missed court. If you’re in such a situation, get in touch with Zamani Law for immediate legal assistance.

If I Surrender to The Police, Will I Still Face Failure to Appear in Court Charges?

Not necessarily. If you miss court and the warrant for your arrest is already issued, turning yourself in is the best thing you can do. It’s important to do this with your lawyer as they can convince the police officer that you missed court by mistake, and they shouldn’t charge you with failure to appear in court. However, whether they charge you or not, you’ll be held in custody to appear before the court judge where you missed your appearance.

What Are the Consequences of Failure to Appear?

Failure to appear in court poses various consequences, which are dependent on how the prosecution and court proceeds. To start with, if the judge doesn’t take your excuse as a lawfully acceptable one, you’ll face charges of failure to appear in court. If you’re already facing criminal charges, this charge will be made separately from your current criminal allegations.

For persons facing criminal allegations, failing to appear in court is a violation of their release conditions. With a lawful excuse, the judge may release you on the same conditions and drop the failure to appear charge. However, if you don’t have a lawful reason, the judge may deny you bail or issue more restrictive bail conditions.

If you’re charged with failure to appear in court, you should handle it as any other criminal offence as it carries a lengthy jail sentence and/fines upon conviction. If found guilty of the crime, i.e., the crown proves that you missed court intentionally, you’ll likely receive a criminal conviction and criminal record.

A failure to appear conviction and a criminal record seriously affect any of your future bail hearings. It’s a strong mitigating factor that the prosecution will vigorously use to ask the court to deny your bail in any future hearings.

The above are all grave consequences of failure to appear in court. Therefore, if you miss court, contact an experienced criminal lawyer as soon as possible for legal advice.

What Is the Penalty for Failure to Appear in Court Conviction?

Failure to appear in court is a hybrid offence. Therefore, the penalty imposed upon conviction depends on how the prosecution proceeds, i.e., summarily or through indictment.

As per the Criminal Code provisions:

(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,

  • 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.

What Is an Acceptable Excuse for Missing Court?

Appearing in court to face criminal charges or for other reasons such as giving testimony is not easy. However, it’s better to make yourself available to fulfil your legal obligations than skip court altogether. Missing a court appearance, particularly without a lawful excuse, creates unnecessary friction with the court.

Failing to appear in court wastes the criminal justice system’s resources and time. It’s taken as a disregard of court orders, and the judges take it very seriously. That said, the judge expects you to provide a good reason for missing court.

The only lawful excuses that a judge can accept are those that hindered you from physically appearing in the court, such as confirmed hospitalization for a medical emergency and an arrest for committing a crime. Other excuses, such as being hungover, suffering from a common cold, work, school, meetings, and family issues, are not acceptable by the court.

I Forgot My Court Date, Can I Be Convicted for Failing to Appear?

For a successful conviction, the prosecution must prove that you knew you had a Court appearance, but you intentionally missed it. The element of knowingly missing court may be challenging for the prosecution to prove if you forgot that you had a court appearance. However, in some cases, simply forgetting a court date fails to establish due diligence, and you might end up facing harsh consequences. Hence, it’s vital to observe court dates and appear as required.

If You Can’t Make It to Court, What Should You Do?

In some situations, it’s impossible to appear in court on the set date. For example, if you cannot get time off work or have a scheduled medical procedure, it’s impossible to make it to court. So, should you miss court knowingly and look forward to giving your lawful excuse to the judge? Well, no. Here’s what you can do.

Judges are people, and one thing they appreciate is a show of respect, honesty, and responsibility. They know that life is unpredictable and can often interfere with schedules. Therefore, if you know that you’ll miss court for a lawful reason, ask your attorney to contact the court and reschedule your court date. This is better than missing court and having to deal with a bench warrant later. The rescheduling should be done way before your expected court appearance.

In some cases, the court can allow someone to represent you, e.g., a family member. This person is referred to as an agent,

What Is the Difference Between Contempt of Court and Failure to Appear?

Contempt of court is a broad category of offences that involve being disrespectful towards the court. These offences include, but are not limited to:

  • Interfering with the administration of justice
  • Failing to remain silent or maintain a respectful attitude during a proceeding in court
  • Willfully disobeying court orders or process
  • Interference with a witness
  • Publication of statements

On the other hand, failure to appear in court entails missing to show up in court as required by your release orders, Summons, Subpoena, or an Undertaking. If you willfully fail to appear in court, you may face contempt charges for knowingly disobeying court orders.

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