Failure to Appear in Court in Ontario: What Happens If You Miss a Court Date

What usually occurs when a person misses court is that the judge issues a warrant for their arrest. In the circumstance when the person misses their appearance for photographs and fingerprints, the police will issue the warrant.

Strictly, it is a justice who issues a warrant for a missed fingerprint date, usually at the request of police (Criminal Code ss. 512.1 and 512.2). Either way, the next step is the same: call a criminal lawyer rather than waiting to be arrested.

It is possible (depending on when the warrant was issued) to have the warrant cancelled. Usually after two or three days, it will no longer be possible to have the warrant cancelled by the judge. In this instance, the defence lawyer will make arrangements to have the accused person surrender themselves to police to have the warrant processed.

A judge who issues a bench warrant can also postpone it to give the accused a chance to come to court voluntarily, and a voluntary appearance counts as the warrant being executed (s. 597).

Not necessarily - in some instances, a defence lawyer may be able to convince the police officer that the accused person simply forgot the date of their appearance and that the charge of failing to appear in court should not be laid.

Since 2019, police also have a middle option: where the missed date caused no harm to a victim, no property damage and no financial loss, they can send the person to a judicial referral hearing instead of laying a charge (ss. 496 and 523.1).

In almost every instance, a person charged with failing to appear will be required to attend the police station for processing and will then be brought to the courthouse for a bail hearing. If a charge of fail to appear has not been added by the police officer, the accused person will likely be released back on the terms of their previous release associated to their underlying offence (for which they failed to appear). In other cases an accused person may have to go through the process of obtaining bail on the new charge and also risk the possibility of losing their bail on the underlying charge for which they failed to appear.

If the Crown asks to cancel the earlier release under s. 524 and the court finds it was breached, the accused must show why they should be released again, by clearly demonstrating that their release plan addresses the court's concerns. Our bail lawyers prepare for that hearing, and sureties may need to be ready to attend.

A judicial referral hearing, added to the Criminal Code in 2019 (s. 523.1), is an alternative to a failure to appear or breach charge. It is available where the failure did not cause a victim physical or emotional harm, property damage or economic loss. The justice reviews the person's release conditions and can take no action, replace the release with a new release order, order detention if the prosecutor shows it is justified, or send the person for fingerprints. Any charge for the failure is dismissed, and none can be laid later.

No. The act of failing to appear for court or at the police station for prints and photographs must be intentional. Therefore the crown must prove that you KNEW you had to attend and you chose not to. Forgetting your court date (even if you were negligent by not writing the date down etc.) will not meet the standard necessary for a conviction.

The Supreme Court of Canada confirmed in R v Zora, 2020 SCC 14, that these offences require subjective fault. Recklessness is enough, though: someone who knew of the date and saw a real risk of missing it, and carried on anyway, can still be convicted, and a judge will decide whether a claim of forgetting is believable.

In some circumstances, the court will accept a lawful (read: very good) excuse from an accused person as to why they missed their court date. Attending a job interview or being “hung over” are not likely considered lawful excuses. A lawful excuse usually requires that it would have been impossible for the accused person to attend the appearance. An example of a lawful excuse might be that the accused person was in the hospital with a significant medical condition that prevented them from being able to attend the court appearance. Another example of a lawful excuse may be that the accused person was in jail on another charge and couldn’t physically attend the appearance as required.

It can be. Failing to attend for fingerprints and photographs under the Identification of Criminals Act is an offence under s. 145 where the date was set by an appearance notice or undertaking that a justice confirmed, by a summons, or by a court order. The same defences apply: you did not know of the date, or you had a lawful excuse.

In some cases, it is possible to be found guilty of failing to appear and not receive a criminal conviction. However, judges can impose jail sentences up to a maximum of two years for the offence. Regardless of what the penalty is, a finding of guilt for failing to appear in court will be a significant factor at any future bail hearing when deciding whether or not the accused person should be released on bail.

The two-year maximum applies when the Crown proceeds by indictment. On a summary prosecution the maximum is a $5,000 fine, two years less a day in jail, or both (s. 787). A finding of guilt without a conviction is a discharge (s. 730).

Missing court can lead to jail in two ways. You can be held in custody after arrest on the warrant if bail is refused, and a sentence for failing to appear can include jail of up to two years. A judge sets any sentence on the facts of the case and the history of the person being sentenced.

Being charged with failing to appear while on release for another offence puts the burden on you at the bail hearing (s. 515(6)(c)). The Crown can also ask to cancel your existing release under s. 524. Missing court is one of several ways of breaching a release order; see our page on failing to comply with bail conditions.