Missing a court date can result in further criminal charges being laid against an accused person. Failure to appear in court as required is a violation of the law which may result in an arrest warrant, fines, and other sanctions. A failure to appear charge will remain as an additional criminal offence in situations where the underlying charges are subsequently withdrawn or the accused is found not guilty. The legal duty to appear can arise from a summons, a promise to appear, an Undertaking, or a Recognizance.
It is very important to ensure you are aware of and attend at all court dates, times and locations. What happens if you miss a court date? Typically, when an accused person misses a court appearance the presiding justice will issue a warrant for their arrest. In some situations the justice may extend a courtesy to the accused and issue a ‘bench warrant with discretion’. If you have missed your court date it is important that you find out if a bench warrant was issued “with” or “without discretion”. The difference between a bench warrant and a bench warrant with discretion is important. The police will not need to arrest an accused on a discretionary bench warrant but will have to arrest the accused on a bench warrant without discretion.
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When the justice issues a bench warrant with discretion this means the matter has been adjourned to another date and if the accused appears at that time the warrant is cancelled. When a justice issues a bench warrant without discretion he is ordering the police to arrest the accused for failing to appear in court. It may be possible to have the warrant rescinded if it is one or two days after it has been issued. This will depend on when the warrant was issued and if it is still in the courthouse. If you have just realized you missed a recent court date, and the appearance was within the last one or two days, it is important to get in contact with the court immediately. Once the order has left the courthouse, the only way that it will be removed from the police radar is for the warrant to be executed- The accused must be arrested on the warrant and processed.
In most cases, once the accused has been arrested he or she will be charged with failure to appear in court. However, in some instances a defence lawyer may be able to persuade the officers not to lay the charges. If you have missed a court date and a warrant has been issued for your arrest it is in your best interest to contact legal counsel as soon as possible. Ordinarily the only way to deal with an outstanding bench warrant is for the accused to surrender himself to the police. The accused will be held for a bail hearing whether they are charged with Failure to Appear or not since the bench warrant dictates that the person be brought before the presiding judge of the Court where the accused failed to appear. In some situations the accused’s previous bail conditions will remain the same and he will be released on the failure to appear charge. In other situations the accused may be required to comply with more restrictive bail conditions in relation to the underlying charge.
After being released on bail the “Failure to Appear” charge will go forward in the same fashion as other criminal charges. The prosecution must then prove the charge in order to secure a conviction. The offence of failure to appear in court includes a mental element. The accused must have intended to miss the court appearance. This means the Crown must prove that the accused knew he was supposed to attend court and freely choose not to. If the accused forgot the court date the Crown may not be able to prove the mental element of the offence. In some situations the court may accept a reasonable excuse as to why the court appearance was missed. The excuse must be serious- Mild illness or a meeting will not ordinarily suffice, but hospitalization or medical emergencies will.
The consequences of a failure to appear charge can be serious. There are various dispositions available to a Court that convicts an accused person in these circumstances. The disposition may reflect the nature of the court appearance missed. For instance, it is more serious to miss a court appearance on a trial date than it would be to miss an appearance of an administrative nature. The most significant impact of a conviction for failure to appear is that it will be considered as a factor mitigating in favour of detention at future bail hearings. In almost all cases, where an individual is convicted of Failure to Appear in court, they will receive a criminal conviction and criminal record. If you have been charged with failure to appear in court, contact Kostman and Pyzer, Barristers, to ensure your best defence.