Appearance Notices, Summons, and Police Undertakings
When a person is charged with a criminal offence, the police retain a discretion for most criminal offences to release the alleged offender with or without conditions. Those forms of release are:
- An Appearance Notice (also known as a form 9);
- A “promise to appear” (also known as a form 10); or,
- An Undertaking Given to a Peace Officer or Officer in Charge (also known as a form 11.1)
Forms of Release from Police Detention and Arrest
An appearance notice (form 9) is simply a notification provided by a peace officer of the upcoming court appearance as well as information on when the person must attend for fingerprinting for offences that are indictable or hybrid (straight summary conviction offences do not require fingerprinting). A peace officer is not permitted in law to release a person on a form 9 if the type of offence is: a) of a more serious nature (a straight indictable offence not listed in section 553 of the Criminal Code), b) it is not in the public interest to do so in order to establish the identity of the person, secure or preserve evidence, prevent the continuation of an offence, or to ensure the safety of a victim or witness. (See sections 496-497 of the Criminal Code of Canada).
A promise to appear (form 10) is very similar to an appearance notice above except that it may be provided by a peace officer other than those directly involved at the scene. A typical distinction is that an appearance notice is provided at the scene and a person is released without having to attend the police station, whereas a promise to appear is provided once a person has been processed and formally charged. A promise to appear also allows the police a bit more discretion to release on charges that are not “hybrid offences” so long as the maximum penalty does not exceed 5 years. (Section 498 of the Criminal Code of Canada)
An undertaking to a peace officer or officer in charge (form 11.1) will be provided together with a promise to appear and will include conditions more akin to bail terms. They may include restrictions on a person’s ability to attend a certain area, to refrain from engaging in specific acts, depositing of a passport, or to not contact the alleged victim or witnesses, and more. It may also require a person pledge up to $500.00 a security for their release. If a person is not ordinarily resident in the area of the offence (exceeding 200km) that deposit may require it be paid in cash. (See section 498 to 499 of the Criminal Code of Canada). Once a person is released and agrees to the terms of the undertaking, that person may wish to have those terms varied or loosened. An accused my follow the procedure and bring an application under section 499(3) of the Criminal Code to have their conditions varied.
If a person breaches any of the forms of releases above, they may be prosecuted under sections 145(5) and (6) of the Criminal Code by way of summary conviction or by indictment.