What does Fail to Appear mean?
The offence of failing to appear is found at section 145 of the Criminal Code of Canada and can occur either; (1) when you are required to attend court and you fail to do so without lawful excuse, or (2) you are required to attend for fingerprinting and you fail to do so without lawful excuse.
What is a Lawful Excuse?
A lawful excuse will include any reason which would make it impossible for you to attend court when required. For example, if you were in the hospital being treated for a medical condition, that would be a lawful excuse. If you were in jail on other criminal charges this would also be a lawful excuse for failing to appear in court.
Examples which are not lawful excuses for failing to appear in court include work, school, family event, going out with friends, having a cold, headache, etc.
The onus will be on you to prove that you had a lawful excuse for failing to appear in court as required.
Why is the charge of Failing to Appear taken so seriously?
Our courts often view failing to appear as a disregard for the court process. Failing to appear, similar to failing to comply or a breach of probation, is often seen as disrespectful to the court and the court process.
I forgot my Court Date, can I Be Convicted for Failing to Appear?
Yes you can. If you fail to appear at court when you are required to, you must have a lawful excuse for not attending court on that particular date and time. A lawful excuse requires that you establish due diligence on your part.
For example, where you honestly believed that you were required to attend court on another day and that belief was reasonable, this may be a lawful excuse. However, where you simply forgot what day you were required to be in court, this would not likely fit in the definition of a lawful excuse.
I Failed to Appear in court, what happens next?
The Judge or Justice of the Peace would likely issue a bench warrant for your arrest. Your case will be adjourned to another day which you will be required to attend. You could be arrested and charged with failing to appear at your next court date or if the police arrest you in the interim.
What is the Penalty for Failing to Appear?
Failing to appear is a hybrid offence that has a maximum penalty to 2 years in jail where the Crown Attorney proceeds by indictment and 6 months in jail when the Crown proceeds summarily.
I have been charged with Failing to Appear. What should I do?
If you have been charged with failing to appear, then you are also likely still facing other criminal charges. You should contact a criminal defence lawyer immediately. You may have a lawful excuse for failing to appear in court when you were required to do so, and a lawyer will be in the best position to assist you defending your criminal charges.
Call me or email me today if you have been charged with failing to appear and arrange a free consultation.
