493

Definitions

493 In this Part,

accused includes

(a) a person to whom a peace officer has issued an appearance notice under section 497, and

(b) a person arrested for a criminal offence; (prévenu)

appearance notice [Repealed, 2019, c. 25, s. 209]

judge means

(a) in the Province of Ontario, a judge of the superior court of criminal jurisdiction of the Province,

(b) in the Province of Quebec, a judge of the superior court of criminal jurisdiction of the province or three judges of the Court of Quebec,

(c) [Repealed, 1992, c. 51, s. 37]

(d) in the Provinces of Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta and Newfoundland and Labrador, a judge of the superior court of criminal jurisdiction of the Province,

(e) in Yukon and the Northwest Territories, a judge of the Supreme Court, and

(f) in Nunavut, a judge of the Nunavut Court of Justice; (juge)

officer in charge  [Repealed, 2019, c. 25, s. 209]

promise to appear [Repealed, 2019, c. 25, s. 209]

recognizance [Repealed, 2019, c. 25, s. 209]

summons [Repealed, 2019, c. 25, s. 209]

undertaking [Repealed, 2019, c. 25, s. 209]

warrant, when used in relation to a warrant for the arrest of a person, means a warrant in Form 7 and, when used in relation to a warrant for the committal of a person, means a warrant in Form 8. (mandat)

Annotations

• Part XVI

493.1

Principle of restraint

493.‍1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.‍1) or 515(10), as the case may be.

Annotations

• Part XVI

493.2

Aboriginal accused or vulnerable populations

493.‍2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of

(a) Aboriginal accused; and

(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.

Annotations

• Part XVI

494

Arrest without warrant by any person

494 (1) Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

Arrest by owner, etc., of property

(2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and

(a) they make the arrest at that time; or

(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

Delivery to peace officer

(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

For greater certainty

(4) For greater certainty, a person who is authorized to make an arrest under this section is a person who is authorized by law to do so for the purposes of section 25.

Annotations

• Part XVI

495

Arrest without warrant by peace officer

495 (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

(b) a person whom he finds committing a criminal offence; or

(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

Limitation

(2) A peace officer shall not arrest a person without warrant for

(a) an indictable offence mentioned in section 553,

(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or

(c) an offence punishable on summary conviction,

in any case where

(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence, or

(iii) prevent the continuation or repetition of the offence or the commission of another offence,

may be satisfied without so arresting the person, and

(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

Consequences of arrest without warrant

(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and

(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).

Annotations

• Part XVI

495.1

Arrest without warrant – application of section 524

495.‍1 Despite any other provision in this Act, if a peace officer has reasonable grounds to believe that an accused has contravened or is about to contravene a summons, appearance notice, undertaking or release order that was issued or given to the accused or entered into by the accused, or has committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order, the peace officer may arrest the accused without a warrant for the purpose of taking them before a judge or justice to be dealt with under section 524.

Annotations

• Part XVI

496

Appearance notice for judicial referral hearing

496 If a peace officer has reasonable grounds to believe that a person has failed to comply with a summons, appearance notice, undertaking or release order or to attend court as required and that the failure did not cause a victim physical or emotional harm, property damage or economic loss, the peace officer may, without laying a charge, issue an appearance notice to the person to appear at a judicial referral hearing under section 523.‍1.

Annotations

• Part XVI

497

Issue of appearance notice by peace officer

497 If, by virtue of subsection 495(2), a peace officer does not arrest a person, they may issue an appearance notice to the person if the offence is

(a) an indictable offence mentioned in section 553;

(b) an offence for which the person may be prosecuted by indictment or for which they are punishable on summary conviction; or

(c) an offence punishable on summary conviction.

Annotations

• Part XVI

498

Release from custody — arrest without warrant

498 (1) Subject to subsection (1.‍1), if a person has been arrested without warrant for an offence, other than one listed in section 469, and has not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon as practicable, release the person, if

(a) the peace officer intends to compel the person’s appearance by way of summons;

(b) the peace officer issues an appearance notice to the person; or

(c) the person gives an undertaking to the peace of­ficer.

Person delivered or detained

(1.‍01) Subsection (1) also applies in respect of a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.‍5(3) of the Customs Act and who is detained in custody for an offence other than one listed in section 469 and who has not been taken before a justice or released from custody under any other provision of this Part.

Exception

(1.‍1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

When subsections (1) and (1.‍01) do not apply

(2) Subsections (1) and (1.‍01) do not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).

Consequences of non-release

(3) A peace officer who has arrested a person without a warrant, or who has been given the custody of a person arrested without a warrant, for an offence described in subsection (1), and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; or

(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1).

Annotations

• Part XVI

499

Release from custody — arrest with warrant

499 If a person who has been arrested with a warrant by a peace officer is taken into custody for an offence other than one listed in section 469 and the warrant has been endorsed by a justice under subsection 507(6), a peace officer may release the person, if

(a) the peace officer issues an appearance notice to the person; or

(b) the person gives an undertaking to the peace of­ficer.

Annotations

• Part XVI

500

Contents of appearance notice

500 (1) An appearance notice shall

(a) set out the name, date of birth and contact information of the accused;

(b) set out the substance of the offence that the accused is alleged to have committed;

(c) require the accused to attend court at a time and place to be stated in the notice and to attend afterwards as required by the court; and

(d) indicate if the accused is required to appear at a judicial referral hearing under section 523.‍1 for a failure under section 496.

Summary of consequences — failure to appear

(2) An appearance notice shall set out a summary of subsections 145(3) and (6), section 512.‍2 and subsection 524(4) and the possible consequences of a failure to appear at a judicial referral hearing under section 523.‍1.

Attendance for purposes of Identification of Criminals Act

(3) An appearance notice may require the accused to appear at the time and place stated in it for the purposes of the Identification of Criminals Act, if the accused is alleged to have committed an indictable offence and, in the case of an offence designated as a contravention under the Contraventions Act, the Attorney General, within the meaning of that Act, has not made an election under section 50 of that Act.

Signature of accused

(4) An accused shall be requested to sign in duplicate their appearance notice and, whether or not they comply with that request, one of the duplicates shall be given to the accused. If the accused fails or refuses to sign, the lack of their signature does not invalidate the appearance notice.

Annotations

• Part XVI

501

Contents of undertaking

501 (1) An undertaking under paragraph 498(1)‍(c), 499(b) or 503(1.‍1)‍(b) must set out

(a) the name, date of birth and contact information of the accused;

(b) the substance of the offence that the accused is alleged to have committed; and

(c) a summary of subsections 145(4) and (6), sections 512 and 512.‍2 and subsection 524(4).

Mandatory conditions

(2) The undertaking must contain a condition that the accused attend court at the time and place stated in the undertaking and to attend afterwards as required by the court.

Additional conditions

(3) The undertaking may contain one or more of the following conditions, if the condition is reasonable in the circumstances of the offence and necessary, to ensure the accused’s attendance in court or the safety and security of any victim of or witness to the offence, or to prevent the continuation or repetition of the offence or the commission of another offence:

(a) report at specified times to the peace officer or other specified person;

(b) remain within a specified territorial jurisdiction;

(c) notify the peace officer or other specified person of any change in their address, employment or occupation;

(d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, except in accordance with any specified conditions;

(e) abstain from going to any specified place or entering any geographic area related to any person referred to in paragraph (d), except in accordance with any specified conditions;

(f) deposit all their passports with the peace officer or other specified person;

(g) reside at a specified address, be at that address at specified hours and present themselves at the entrance of that residence to a peace officer or other specified person, at the officer’s or specified person’s request during those hours;

(h) abstain from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, and surrender those that are in their possession to the peace officer or other specified person and also any authorization, licence or registration certificate or other document enabling them to acquire or possess them;

(i) promise to pay an amount specified in the undertaking, which shall not be more than $500, if they fail to comply with any condition of the undertaking;

(j) deposit, with the peace officer specified in the undertaking, money or other valuable security whose value does not exceed $500 if, at the time of giving the undertaking, the accused is not ordinarily resident in the province or does not ordinarily reside within 200 kilometres of the place in which they are in custody; and

(k) comply with any other specified condition for ensuring the safety and security of any victim of or witness to the offence.

Attendance for purposes of Identification of Criminals Act

(4) The undertaking may require the accused to appear at the time and place stated in it for the purposes of the Identification of Criminals Act if the accused is alleged to have committed an indictable offence and, in the case of an offence designated as a contravention under the Contraventions Act, the Attorney General, within the meaning of that Act, has not made an election under section 50 of that Act.

Money or other valuable security to be deposited with justice

(5) If the accused has deposited an amount of money or other valuable security with a peace officer, the officer shall, without delay after the deposit, cause the money or valuable security to be delivered to a justice for deposit with the justice.

Signature of accused

(6) The accused shall be requested to sign in duplicate their undertaking and, whether or not they comply with that request, one of the duplicates shall be given to them. If they fail or refuse to sign, the lack of their signature does not invalidate the undertaking.

Annotations

• Part XVI

502

Variation of undertaking on consent

502 (1) The undertaking in respect of which an accused has been released under section 498, 499 or 503 may, with the written consent of the accused and the prosecutor, be varied and the undertaking so varied is deemed to be an undertaking given under section 498, 499 or 503, as the case may be.

Replacement by justice of undertaking with order

(2) The accused or the prosecutor may, in the absence of consent between them, apply to a justice for a release order under subsection 515(1) or (2) to replace an undertaking given by the accused under paragraph 498(1)‍(c), 499(b) or 503(1.‍1)‍(b) with the order. If the prosecutor applies for the order, the prosecutor must provide three days notice to the accused.

Annotations

• Part XVI

502.1

Appearance of the accused

502.‍1 (1) Except as otherwise provided in this Part, an accused who is required to appear in a proceeding under this Part shall appear personally but may appear by audioconference or videoconference, if arrangements are made with the court in advance and those arrangements are satisfactory to the justice.

Witness in Canada

(2) Despite section 714.‍1, a witness in Canada who is required to give evidence in a proceeding under this Part may do so by audioconference or videoconference, if it is satisfactory to the justice.

Witness outside Canada

(3) For greater certainty, sections 714.‍2 to 714.‍8 apply when a witness outside Canada gives evidence in a proceeding under this Part.

Participants

(4) A participant, as defined in subsection 715.‍25(1), who is to participate in a proceeding under this Part shall participate personally but may participate by audioconference or videoconference, if it is satisfactory to the justice.

Justice

(5) The justice who is to preside at a proceeding under this Part shall preside personally but may preside by audioconference or videoconference, if the justice considers it necessary in the circumstances.

Annotations

• Part XVI

503

Taking before justice

503 (1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has not released the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law:

(a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; and

(b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible.

Re-evaluation of detention

(1.‍1) At any time before the expiry of the time referred to in paragraph (1)‍(a) or (b), a peace officer who is satisfied that the continued detention of the person in custody for an offence that is not listed in section 469 is no longer necessary shall release the person, if

(a) the peace officer issues an appearance notice to the person; or

(b) the person gives an undertaking to the peace of­ficer.

Person delivered or in custody

(2) Subsections (1) and (1.‍1) also apply to a peace officer to whom a person is delivered under subsection 494(3) or into whose custody a person is placed under subsection 163.‍5(3) of the Customs Act, except that the 24-hour period referred to in paragraphs (1)‍(a) and (b) begins after the person is delivered to the officer.

(2.1) [Repealed, 2019, c. 25, s. 217]

(2.2) [Repealed, 2019, c. 25, s. 217]

(2.3) [Repealed, 2019, c. 25, s. 217]

Remand in custody for return to jurisdiction where offence alleged to have been committed

(3) Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division where the arrest took place, the person shall, within the time prescribed in paragraph (1)(a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested

(a) if the justice is not satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, shall release that person; or

(b) if the justice is satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, may

(i) remand the person to the custody of a peace officer to await execution of a warrant for his or her arrest in accordance with section 528, but if no warrant is so executed within a period of six days after the time he or she is remanded to such custody, the person in whose custody he or she then is shall release him or her, or

(ii) where the offence was alleged to have been committed within the province in which the person was arrested, order the person to be taken before a justice having jurisdiction with respect to the offence.

Interim release

(3.1) Notwithstanding paragraph (3)(b), a justice may, with the consent of the prosecutor, order that the person referred to in subsection (3), pending the execution of a warrant for the arrest of that person, be released

(a) without conditions; or

(b) on the terms of a release order containing any conditions referred to in paragraphs 515(2)‍(a) to (e) that the justice considers desirable and to which the prosecutor consents.

Release of person about to commit indictable offence

(4) A peace officer having the custody of a person who has been arrested without warrant as a person about to commit an indictable offence shall release that person as soon as practicable after the officer is satisfied that the continued detention of that person is no longer necessary in order to prevent that person from committing an indictable offence.

Consequences of non-release

(5) Despite subsection (4), a peace officer having the custody of a person referred to in that subsection who does not release the person before the expiry of the time prescribed in paragraph (1)‍(a) or (b) for taking the person before the justice shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; or

(b) any other proceedings, unless in those proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (4).

Annotations | French

• Section 503
• Section 503(1)(a) requires that a that a is brought before a justice “without unreasonable delay.” Paragraph (a) states that the person must be brought before a justice within 24 hours, which is the outer limit of a “reasonable period” when a justice is available within the first 24 hours after detention. An unreasonable delay can happen before the 24-hour period has expired if a justice is available and the delay is unreasonable in the circumstances: R v Koszulap, [1974] OJ No 726 at p. 202 (ON CA); R v Simpson, [1994] NJ No 69 at para 34 (NFLD CA), rev’d on other grounds [1995] 1 SCR 449 (SCC); R v Mangat, [2006] OJ No 2418, at paras 4-6, 9 (ONCA).
• In the context of large-scale criminal investigations that lead to a large number of individuals arrested at the same time, an accused must still be brought before a justice within 24 hours or at the first practicable time under section 503(1) of the Code: R v Brown, 2009 ONCA 633 at paras 7-9.

504

In what cases justice may receive information

504 Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person

(i) is or is believed to be, or

(ii) resides or is believed to reside,

within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;

(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or

(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

Annotations | French

• Section 504
• Pursuant to section 504, where the information alleges an indictable offence under the law and the informant meets the preconditions to swearing an information, the presiding justice must receive the information: R v Ellis, 2009 ONCA 483 at para 48; R v McHale, 2010 ONCA 361 at para 43.
• In this section, the term “any one” applies to individuals who lay an information (informants), which includes private citizens, public and peace officers, the Attorney General, and the Attorney General’s agents. “Public officer” and “peace officer” are defined under s. 2 of the Criminal Code; McHale v Ontario (Attorney General), 2010 ONCA 361 at para 5.
• In Ontario, the term “territorial jurisdiction” has been interpreted to mean the entire province of Ontario. However, other provinces may have different legislative court schemes where “territorial jurisdiction” takes on a different meaning: R v Ellis, 2009 ONCA 483 at paras 38, 40.
• Individuals who swear an information, especially law enforcement officers, must have either personal knowledge or reasonable and probable grounds to believe the accused has committed the offence(s) they are being charged with. An officer does not need to have personal knowledge of every fact supporting the allegation; however, the officer must be satisfied that the evidence is based on reliable sources and that there is some evidence to support the charge. This evidence must satisfy the Justice of the Peace of the grounds to believe the accused has committed the offence(s) charged before they endorse the information; R v Peavoy, [1974] OJ No 103at 106 (ONHCJ).

505

Time within which information to be laid in certain cases

505 If an appearance notice has been issued to an accused under section 497, or if an accused has been released from custody under section 498 or 503, an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by them shall be laid before a justice as soon as practicable after the issuance or release, and in any event before the time stated in the appearance notice or undertaking for their attendance in court.

Annotations | French

• Section 505
• “Appearance notice” is defined under s. 2; Criminal Code, RSC 1985, c C-46, s 2.
• “Accused” is defined under s. 493; Criminal Code, RSC 1985, c C-46, s 493.
• Where the requirements of section 505 are not complied with, the information remains valid. However, failing to complete the requirements in section 505 prevents the accused from being charged for failing to appear under section 145(5) If the information has not been laid within the time required, the court still has jurisdiction over the accused if they appear in court; R v Ladouceur, 2013 ONCA 328 at para 18; R v Morton, [1992] OJ No 179 at 251 (SC), aff’d (1993), 15 OR (3d) 320 (CA); R v Markovic, [2005] OJ No 4286 at para 25 (CA).

506

Form

506 An information laid under section 504 or 505 may be in Form 2.

Annotations

• Part XVI

507

Justice to hear informant and witnesses — public prosecutions

507 (1) Subject to subsection 523(1.1), a justice who receives an information laid under section 504 by a peace officer, a public officer, the Attorney General or the Attorney General’s agent, other than an information laid before the justice under section 505, shall, except if an accused has already been arrested with or without a warrant,

(a) hear and consider, ex parte,

(i) the allegations of the informant, and

(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and

(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence.

Process compulsory

(2) No justice shall refuse to issue a summons or warrant by reason only that the alleged offence is one for which a person may be arrested without warrant.

Procedure when witnesses attend

(3) A justice who hears the evidence of a witness pursuant to subsection (1) shall

(a) take the evidence on oath; and

(b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied.

Summons to be issued except in certain cases

(4) Where a justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the accused unless the allegations of the informant or the evidence of any witness or witnesses taken in accordance with subsection (3) discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused.

No process in blank

(5) A justice shall not sign a summons or warrant in blank.

Endorsement of warrant by justice

(6) A justice who issues a warrant under this section or section 508, 512, 512.‍1 or 512.‍2 may, unless the offence is one listed in section 469, authorize the release of the accused under section 499 by making an endorsement on the warrant in Form 29.

Undertaking or appearance notice deemed confirmed

(7) If, under subsection (6), a justice authorizes the release of an accused under section 499, an appearance notice or undertaking referred to in that section shall be deemed, for the purposes of subsection 145(3) or (4), as the case may be, to have been confirmed by a justice under section 508.

Issue of summons or warrant

(8) Where, on an appeal from or review of any decision or matter of jurisdiction, a new trial or hearing or a continuance or renewal of a trial or hearing is ordered, a justice may issue either a summons or a warrant for the arrest of the accused in order to compel the accused to attend at the new or continued or renewed trial or hearing.

Annotations | French

• Section 507
• A pre-enquete under section 507 is a process whereby a Justice of Peace hears the allegation and the evidence to determine whether there is sufficient information and whether the process of the court should issue to compel the person named in the information to attend before a justice to answer to the offence charged. There is no requirement that the justice who received the information under s. 504 also hear the pre-inquiry under s. 507. Gentles (Re), [1994] OJ No 1409 at para 11 (Ont Ct GD).; R v McHale, 2010 ONCA 361 at para 10, 48.
• The Attorney General and the Attorney General’s agents cannot withdraw an information before the pre-enquete hearing. A Crown Attorney may decide to do so where they decde that it is not in the interests of justice to require the accused to appear in court to answer the charges. They can only do so after the pre-inquiry when the justice has decided that proceedings should be commenced against the person(s) named in the information; McHale v Ontario (Attorney General), 2010 ONCA 361 at paras 44, 77, 89-90.
• If a justice refuses to issue a summons based on the sworn informationthe information remains valid and the informant is permitted to gather more evidence and request a summons from the same or another justice; R v Allen, [1974] OJ No 998 at 448 (Ont CA).

507.1

Referral when private prosecution

507.1 (1) A justice who receives an information laid under section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to consider whether to compel the appearance of the accused on the information.

Summons or warrant

(2) A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information.

Marginal note:Conditions for issuance

(3) The judge or designated justice may issue a summons or warrant only if he or she

(a) has heard and considered the allegations of the informant and the evidence of witnesses;

(b) is satisfied that the Attorney General has received a copy of the information;

(c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and

(d) has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing.

Appearance of Attorney General

(4) The Attorney General may appear at the hearing held under paragraph (3)(a) without being deemed to intervene in the proceeding.

Information deemed not to have been laid

(5) If the judge or designated justice does not issue a summons or warrant under subsection (2), he or she shall endorse the information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences proceedings to compel the judge or designated justice to issue a summons or warrant, the information is deemed never to have been laid.

Information deemed not to have been laid — proceedings commenced

(6) If proceedings are commenced under subsection (5) and a summons or warrant is not issued as a result of those proceedings, the information is deemed never to have been laid.

New evidence required for new hearing

(7) If a hearing in respect of an offence has been held under paragraph (3)(a) and the judge or designated justice has not issued a summons or a warrant, no other hearings may be held under that paragraph with respect to the offence or an included offence unless there is new evidence in support of the allegation in respect of which the hearing is sought to be held.

Subsections 507(2) to (8) to apply

(8) Subsections 507(2) to (8) apply to proceedings under this section.

Non-application — informations laid under sections 810 and 810.1

(9) Subsections (1) to (8) do not apply in respect of an information laid under section 810 or 810.1.

Definition of designated justice

(10) In this section, designated justice means a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter or, in Quebec, a justice designated by the chief judge of the Court of Quebec.

Meaning of Attorney General

(11) In this section, Attorney General includes the Attorney General of Canada and his or her lawful deputy in respect of proceedings that could have been commenced at the instance of the Government of Canada and conducted by or on behalf of that Government.

Annotations | French

• Section 507.1
• “Warrant” is defined in s. 493; Criminal Code, RSC 1985, c C-46, s 493.
• “Summons” is defined in s. 2; Criminal Code, RSC 1985, c C-46, s 2.
• Subsection (3) confirms the validity of private prosecutions by setting out a process to ensure that only legitimate claims proceed. The pre-enquete must be conducted by a designated justice or provincial court judge who will hear and consider the allegations of the private informant and the evidence of witnesses. Unlike section 507(1)(a)(ii), which applies to informants who are law enforcement officers or officials, under subsection (3) a justice must hear the allegations of the private informant and the evidence of their witnesses: McHale v Ontario (Attorney General), 2010 ONCA 361 at para 47.
• To lay an information, a private informant must complete a standard form that includes details of the alleged offence and lists the names, addresses, and phone numbers of witnesses who will be relied on. A private informant must also disclose any prior attempts at laying an information and whether the police have investigated the alleged offence: McHale v Ontario (Attorney General), 2010 ONCA 361 at para 6.
• Where the information is valid on its face, meaning it presents a case of the offences alleged, process will usually issue. However, in the clearest cases, the court has limited discretion to decline a private prosecution. Some examples of the “clearest of cases” include the informant or their witness being found uncredible or the court finding the charge “frivolous, vexatious, or abusive”: Canadian Broadcasting Corporation v Morrison, 2017 MBCA 36 at paras 21-22.
• A pre- enquete hearing is a non-adversarial process governed by statute. The hearing is a private (in camera) ex parte court proceeding where the accused does not have a right to be present, even when aware of the proceedings. During the hearing, the possibility of conviction or possible defences the accused might raise are not considered: Canadian Broadcasting Corporation v Morrison, 2017 MBCA 36 at para 21.