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CRIMINAL CODE OFFENCES - Offences against the administration of law and justice - Escapes and rescues - Failure to attend court

Tuesday, November 28, 2017 @ 8:31 AM  


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Appeal by the Crown from the dismissal of its appeal from the acquittal of the accused on a charge of failing to appear. The accused was charged with violations under the Highway Traffic Act (HTA) in relation to her operation of a vehicle without a license or insurance, and she was issued a notice to appear. She appeared in court as required and requested time to seek legal advice. The matter was adjourned and she was ordered to appear on a subsequent date. On that date, the accused did not appear and a warrant was issued for her arrest. Subsequently, the accused turned herself into police and was charged with failing to appear in court under s. 145(2)(b) of the Criminal Code. She later appeared in court and pleaded guilty to two of the HTA offences and the Criminal Code offence of failing to appear. The trial judge accepted the accused’s guilty pleas to the HTA charges, but refused to accept her guilty plea on the charge of failing to appear and acquitted her of that offence. The trial judge found that the HTA provided a specifically stated process to occur on the non-appearance of a defendant and that there was no separate offence for failing to appear in respect of a charge under that Act. He reasoned that there had to be related underlying criminal conduct involved in the breaches of the HTA in order to ground the charge of failure to appear, and because the HTA charges did not involve criminal conduct, the accused could not be convicted under s. 145(2)(b). On appeal, the Summary Conviction Appeal Court (SCAC) judge upheld the accused’s acquittal.

HELD: Appeal allowed. The SCAC judge erred in upholding the trial judge’s decision that the accused could not be found guilty under s. 145(2)(b) of the Criminal Code for failing to appear in court. The conduct underlying the charge of failing to appear as required under s. 145(2)(b) was the failure of an accused to appear after he or she had made an initial appearance in court and was ordered by the court to return for continuation of the proceedings. A section 145(2)(b) offence involved a failure to appear in court after being required by the court to do so. Why and in respect of what charge an accused was required to appear was immaterial.

R. v. Jerrett, [2017] N.J. No. 375, Newfoundland and Labrador Supreme Court - Court of Appeal, C.W. White, M.F. Harrington and L.R. Hoegg JJ.A., November 9, 2017. Digest No. TLD-November272017004