In failure to appear Canada cases, a person commits an offence when they do not show up for a required court date or do not surrender themselves as ordered, without a lawful excuse. Under the Uniform Crime Reporting (UCR) Code 3510, “Fail to appear” is tracked nationally as an administration of justice offence. It is classified as a hybrid offence, meaning the Crown can choose to proceed either by indictment or by summary conviction. This charge most often arises when someone is on a release order (bail), has been given an appearance notice or summons, or is otherwise under a legal obligation to attend court, and then fails to do so.
The Legal Definition
Criminal Code, s. 145(2)
Every one commits an offence who
(a) is at large on a release order and who fails, without lawful excuse, to attend court in accordance with the release order;
(b) having appeared before a court, justice or judge, fails, without lawful excuse, to subsequently attend court as required by the court, justice or judge;
(c) fails to surrender themselves in accordance with an order of the court, justice or judge, as the case may be; or
(d) fails, without lawful excuse, to comply with an order made under section 515.01.
Criminal Code, s. 145(3)
Every person who is named in an appearance notice that has been confirmed by a justice under section 508, or who is named in a summons and to whom one of the methods of service set out in subsection 785(1.1) or (1.2) applies, commits an offence if they
(a) fail to attend court in accordance with the notice; or
(b) fail to appear at the time and place stated in the notice for the purposes of the Identification of Criminals Act.
In plain English, these provisions of the Criminal Code of Canada make it a crime to miss court or fail to comply with certain appearance-related orders when you are legally required to be there. The law focuses on people who are:
- On a release order (bail) and do not attend court when their release document tells them to; or
- Already appeared in court once and are ordered to come back on a later date but then fail to return; or
- Ordered to surrender themselves (for example, to begin serving a sentence or to be taken into custody) and do not comply; or
- Named in an appearance notice or summons that has been properly confirmed/served, and then do not show up when the document requires.
A critical part of the definition is the phrase “without lawful excuse”. The Crown must prove beyond a reasonable doubt that the person knew they were required to attend and that they failed to do so without a legally acceptable justification. Simply forgetting, being inconvenienced, or choosing not to attend is not a lawful excuse. The statute is designed to protect the integrity and efficiency of the court process. When someone does not appear, it can waste court resources, delay trials, and undermine public confidence in the justice system.
Penalties & Sentencing Framework
- Offence type: Hybrid (can proceed by indictment or summary conviction)
- Mandatory minimum penalty: None
- Maximum penalty (indictable): Imprisonment for not more than 2 years
- Maximum penalty (summary conviction): Typically up to 2 years less a day and/or a fine (within the summary conviction limits in the Code)
Because failure to appear under UCR 3510 is a hybrid offence, the Crown attorney decides whether to proceed by indictment or by summary conviction based on factors like the seriousness of the breach, the person’s prior record (especially prior administration of justice offences), and the impact of the missed appearance on the proceedings. Proceeding by indictment exposes an accused to the higher maximum penalty of 2 years in prison; a summary conviction keeps the case in the lower court with a lower maximum sentence.
There is no mandatory minimum sentence for a failure to appear conviction under s. 145(2) or (3). That means judges have wide discretion in crafting a fit sentence, which may range from an absolute or conditional discharge, to a fine, probation, or a custodial term. However, Canadian courts treat administration of justice offences seriously because they directly affect the functioning of the courts. Even when the underlying offence is relatively minor, a pattern of failing to appear can lead to increasingly severe sentences and difficulties obtaining bail in future cases.
In sentencing, courts will consider:
- The accused’s criminal record, with special attention to prior breaches of court orders.
- The reason for the non-attendance, including whether any partial or weak “excuse” shows mitigation (for example, disorganization versus deliberate evasion).
- The impact on the court process (e.g., did the absence force a trial to be adjourned, witnesses to be sent home, or a jury to be discharged?).
- Whether the person turned themselves in quickly or voluntarily made contact with the court after missing their date.
Another important consequence is how a failure to appear affects bail. A conviction under s. 145(2) or (3) often leads Crown counsel to oppose release in later matters, pointing to the prior breach as evidence that the accused cannot be trusted to respect court orders. Even before trial on the failure to appear charge itself, police may arrest on the outstanding warrant, and a new bail hearing will be held, where the missed date becomes a central factor in deciding whether to grant release.
Common Defenses
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Lawful excuse justifying non-attendance
The Criminal Code expressly refers to “without lawful excuse.” A core defence, therefore, is to show that there was a lawful excuse for the person’s failure to appear. This might involve serious, unexpected circumstances that made attendance realistically impossible or unsafe, such as a medical emergency, sudden hospitalization, a severe accident en route to court, or situations where the person was detained by authorities in another jurisdiction. The excuse must be more than mere inconvenience or poor planning. Evidence such as hospital records, police reports, or other documentation will be crucial. If the defence can raise a reasonable doubt that a lawful excuse existed at the time, the charge should not be proven. -
Procedural invalidity in the appearance notice or summons
Section 145(3) targets people named in an appearance notice or summons that has been properly confirmed and served according to the Criminal Code. Under s. 145(6), a mere defect in the document itself does not, by itself, amount to a “lawful excuse.” However, the Crown must still prove all procedural requirements were met: that the notice or summons was validly issued, confirmed by a justice where necessary, and properly served using one of the approved methods in s. 785(1.1) or (1.2). If the defence can show that the accused never actually received proper notice, that the document was never confirmed as required, or that service did not comply with the Code, then the legal foundation for the charge can fail. In such a case, the Crown may be unable to prove beyond a reasonable doubt that the accused was lawfully bound to attend on the specific date and time. -
Election under the Contraventions Act (lawful excuse in narrow circumstances)
The verified research notes that, in certain circumstances, an election by the Attorney General under s. 50 of the Contraventions Act can provide a lawful excuse for not attending court. Where the original underlying matter is dealt with as a contravention in a way that alters or dispenses with the requirement to personally attend court, this may operate as a defence to a failure to appear charge linked to that proceeding. The application of this defence is narrow and technical, often requiring analysis of how the contravention was processed, whether personal appearance was still mandatory, and whether the accused reasonably relied on the election. Legal advice is usually necessary to properly assess this argument in a specific case.
Real-World Example
Imagine John is released on bail with a condition to appear in court on June 1st. The release order is clear, he signs it, and the date is explained to him in court. John notes it in his calendar but later decides that attending will be inconvenient because he has work that day. He does not contact his lawyer, the Crown, or the court to request an adjournment, and simply fails to appear. In response, the court issues a warrant for his arrest and the Crown later charges him under s. 145(2)(a) for failing, without lawful excuse, to attend court in accordance with his release order.
From the police and court’s perspective, John’s absence is a deliberate breach of a clear order. There is no medical emergency, detention elsewhere, or other compelling justification. When he is arrested on the warrant and brought back before the court, he not only faces his original underlying charge, but also the new failure to appear charge under UCR 3510. At his bail hearing, the prosecutor will likely point to this behaviour as evidence he may not follow conditions in the future. Even if John is eventually convicted only of a relatively minor underlying offence, the court may still impose a meaningful sentence for the failure to appear itself because of the disruption and the disregard for the court’s authority.
Record Suspensions (Pardons)
In Canada, a record suspension (formerly called a pardon) allows certain people with criminal records, including convictions for failure to appear, to have their record set aside after a waiting period, provided they meet eligibility criteria and have maintained good conduct. For a hybrid offence like failure to appear, the waiting period depends on how the offence was prosecuted:
- Indictable conviction: Eligible to apply for a record suspension 5 years after completion of the entire sentence (including any jail, probation, and payment of fines or surcharges).
- Summary conviction: Eligible to apply for a record suspension 3 years after completion of the entire sentence.
“Completion of sentence” includes finishing any term of imprisonment, satisfying all probation conditions, and paying all financial penalties. The Parole Board of Canada then assesses whether the applicant has been of good conduct and whether granting a record suspension would provide a measurable benefit and not bring the administration of justice into disrepute. Because failure to appear is an administration of justice offence, decision-makers will pay close attention to whether the person has since demonstrated consistent respect for court orders and legal obligations.
Related Violations
- Contempt of Court
- Breach of Probation
- Escaping Lawful Custody