3. Know the court rules that apply to your offence

What should I do if I have a last minute emergency and can't attend a court date?
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3. Know the court rules that apply to your offence

The rules about who can appear in court for you, and how they must do that, depend on the type of offence. If you're unable to go to court on your court date, it's important that you find out what type of offence you've been charged with.

Summary offence

Summary offences are the least serious criminal offences. They have a maximum sentence of 6 months in jail, a $5,000 fine, or both. Some examples of summary offences are:

  • causing a disturbance in a public place
  • trespassing at night

You can only send an agent to court to act for you if you've been charged with a summary offence .

An agent can be a family member, paralegal, or friend. The person acting as your agent appears in the court as if they are you. The court treats the situation as if you attended court.

Indictable offences

You can't send an agent to appear for you if you were charged with an indictable offence. Only a lawyer can appear in court for you if you were charged with an indictable offence. In Canada, the most serious crimes are called indictable offences.

Some examples of indictable offences are:

  • theft over $5,000
  • breaking and entering
  • manslaughter
  • murder

Designation of counsel

If you're charged with an indictable offence, you can hire a lawyer to appear in court for you. If your lawyer agrees, you can sign a designation of counsel. This designation is filed with the court.

The designation allows your lawyer to appear in court without you and speak on your behalf as if you were there. If your lawyer "appears by designation", there is no need to ask for a discretionary bench warrant and you are not arrested. This is because they have the authority to handle your case as if you were there.

Your lawyer will decide whether to allow you to sign a designation of counsel. Some lawyers dislike designations because they want their clients to make every effort to go to court themselves.

Discretionary bench warrant

If your lawyer does not have a designation filed with the court, they can still appear in court and ask for a discretionary bench warrant.

Duty counsel, a family member, or a friend can also go to court if you have a personal emergency and can't make your appearance at the last minute.

You should send someone to court to explain your absence. Tell them to explain your absence and ask for a discretionary bench warrant.

The justice of the peace or the judge will decide whether to:

  • order a discretionary bench warrant and adjourn your matter, or
  • order a bench warrant for your arrest.

The court will be more likely to issue a discretionary bench warrant if your absence has been explained.

You May Also Need

Legal Aid Ontario
(Please note: Online court lists for weekend bail courts are not available at this time.)
Reviewed: November 20, 2017

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