This enactment amends the Criminal Code to amend, remove or repeal passages and provisions that have been ruled unconstitutional or that raise risks with regard to the Canadian Charter of Rights and Freedoms, as well as passages and provisions that are obsolete, redundant or that no longer have a place in criminal law. It also modifies certain provisions of the Code relating to sexual assault in order to clarify their application and to provide a procedure applicable to the admissibility and use of a complainant’s record when in the possession of the accused.

This enactment also amends the Department of Justice Act to require that the Minister of Justice cause to be tabled, for every government Bill introduced in either House of Parliament, a statement of the Bill’s potential effects on the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms.

Finally, it makes consequential amendments to the Criminal Records Act.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Evidence of overt acts

55 In proceedings for an offence against any provision in section 47 or sections 50 to 53, evidence of an overt act is not admissible unless that overt act is set out in the indictment or unless the evidence is otherwise relevant as tending to prove an overt act that is set out in the indictment.

Possession of forged passport, etc.

(3) Every person who, without lawful excuse, has in their possession a forged passport or a passport in respect of which an offence under subsection (2) has been committed is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.

Possession of explosive

82 (1) Every person who, without lawful excuse, makes or has in their possession or under their care or control any explosive substance is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.

Possession in association with criminal organization

(2) Every person who, without lawful excuse, makes or has in their possession or under their care or control any explosive substance for the benefit of, at the direction of or in association with a criminal organization is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

Tampering with serial number

108 (1) Every person commits an offence who, without lawful excuse,

Influencing or negotiating appointments or dealing in offices

125 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years who

• (c) keeps without lawful authority a place for transacting or negotiating any business relating to

Escape and being at large without excuse

145 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction who

• (b) is, before the expiration of a term of imprisonment to which they were sentenced, at large in or out of Canada without lawful excuse.

Failure to attend court

(2) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction who,

• (a) being at large on their undertaking or recognizance given to or entered into before a justice or judge, fails, without lawful excuse, to attend court in accordance with the undertaking or recognizance; or

• (b) having appeared before a court, justice or judge, fails, without lawful excuse, to attend court as subsequently required by the court, justice or judge or to surrender themselves in accordance with an order of the court, justice or judge, as the case may be.

Failure to comply with condition of undertaking or recognizance

(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.‍1) or an order under subsection 516(2), and who fails, without lawful excuse, to comply with the condition, direction or order is guilty of

Failure to appear or to comply with summons

(4) Every person who is served with a summons and who fails, without lawful excuse, to appear at the time and place stated in it for the purposes of the Identification of Criminals Act or to attend court in accordance with it, is guilty of

Failure to comply with appearance notice or promise to appear

(5) Every person who is named in an appearance notice or promise to appear, or in a recognizance entered into before an officer in charge or another peace officer, that has been confirmed by a justice under section 508 and who fails, without lawful excuse, to appear at the time and place stated in it for the purposes of the Identification of Criminals Act, or to attend court in accordance with it, is guilty of

Failure to comply with conditions of undertaking

(5.‍1) Every person who, without lawful excuse, fails to comply with any condition of an undertaking entered into under subsection 499(2) or 503(2.‍1)

Consent

(2.‍1) Consent must be present at the time the sexual activity in question takes place.

Question of law

(2.‍2) The question of whether no consent is obtained under subsection (3) or (4) or 265(3) is a question of law.

(2) The portion of subsection 153.‍1(3) of the Act before paragraph (a) is replaced by the following:

When no consent obtained

(3) For the purposes of this section, no consent is obtained if

• (a.‍1) the complainant is unconscious;

• (b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.‍1);

Précision

(4) Le paragraphe (3) n’a pas pour effet de limiter les circonstances dans lesquelles il n’y a pas de consentement de la part du plaignant.

• (a) the accused’s belief arose from

  • (i) the accused’s self-induced intoxication,

  • (ii) the accused’s recklessness or wilful blindness, or

• (iii) any circumstance referred to in subsection (3) or (4) or 265(3) in which no consent is obtained;

• (c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

Obscene materials

163 (1) Every person commits an offence who makes, prints, publishes, distributes, circulates or has in their possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or any other obscene thing.

Idem

(2) Every person commits an offence who knowingly, without lawful justification or excuse,

• (a) sells, exposes to public view or has in their possession for that purpose any obscene written matter, picture, model, phonograph record or any other obscene thing; or

• (c) the publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is obscene, within the meaning of subsection 163(8);

Owner and maker may appear

(3) The owner and the maker of the matter seized under subsection (1), and alleged to be obscene, child pornography, a voyeuristic recording, an intimate image or an advertisement of sexual services, may appear and be represented in the proceedings to oppose the making of an order for the forfeiture of the matter.

Order of forfeiture

(4) If the court is satisfied, on a balance of probabilities, that the publication, representation, written material or recording referred to in subsection (1) is obscene, child pornography, a voyeuristic recording, an intimate image or an advertisement of sexual services, it may make an order declaring the matter forfeited to Her Majesty in right of the province in which the proceedings take place, for disposal as the Attorney General may direct.

Disposal of matter

(5) If the court is not satisfied that the publication, representation, written material or recording referred to in subsection (1) is obscene, child pornography, a voyeuristic recording, an intimate image or an advertisement of sexual services, it shall order that the matter be restored to the person from whom it was seized without delay after the time for final appeal has expired.

• (a) by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent an officiant from celebrating a religious or spiritual service or performing any other function in connection with their calling, or

• (b) knowing that an officiant is about to perform, is on their way to perform or is returning from the perform­ance of any of the duties or functions mentioned in paragraph (a)

  • (i) assaults or offers any violence to them, or

  • (ii) arrests them on a civil process, or under the pretence of executing a civil process,

Trespassing at night

177 Every person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.

• (xxviii) subsection 163(1) (obscene materials),

• (c) for the purposes of paragraphs (1)‍(b) to (f), a game or proposal, scheme, plan, means, device, contrivance or operation described in any of paragraphs 206(1)‍(a) to (g) that is operated on or through a computer, video device, slot machine or a dice game.

Definition of slot machine

(4.‍01) In paragraph 4(c), slot machine means any automatic machine or slot machine, other than any automatic machine or slot machine that dispenses as prizes only one or more free games on that machine, that

• (a) is used or intended to be used for any purpose other than selling merchandise or services; or

• (b) is used or intended to be used for the purpose of selling merchandise or services if

  • (i) the result of one of any number of operations of the machine is a matter of chance or uncertainty to the operator,

  • (ii) as a result of a given number of successive operations by the operator, the machine produces different results, or

  • (iii) on any operation of the machine, it discharges or emits a slug or token.

Offence

(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if

Consent

(1.‍1) Consent must be present at the time the sexual activity in question takes place.

Question of law

(1.‍2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law.

(2) The portion of subsection 273.‍1(2) of the Act before paragraph (a) is replaced by the following:

No consent obtained

(2) For the purpose of subsection (1), no consent is obtained if

• (a.‍1) the complainant is unconscious;

• (b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.‍1);

Précision

(3) Le paragraphe (2) n’a pas pour effet de limiter les circonstances dans lesquelles il n’y a pas de consentement de la part du plaignant.

• (a) the accused’s belief arose from

  • (i) the accused’s self-induced intoxication,

  • (ii) the accused’s recklessness or wilful blindness, or

• (iii) any circumstance referred to in subsection 265(3) or 273.‍1(2) or (3) in which no consent is obtained;

• (c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

Conditions for admissibility

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.‍93 and 278.‍94, that the evidence

• (a) is not being adduced for the purpose of supporting an inference described in subsection (1);

• (c) is of specific instances of sexual activity; and

• (d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Interpretation

(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

Definition of record

278.‍1 For the purposes of sections 278.‍2 to 278.‍92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

Service of application and subpoena

(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least 60 days before the hearing referred to in subsection 278.‍4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.‍1 on the person who has possession or control of the record at the same time as the application is served.

Admissibility — accused in possession of records relating to complainant

278.‍92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

• (a) an offence under section 151, 152, 153, 153.‍1, 155, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.‍01, 279.‍011, 279.‍02, 279.‍03, 286.‍1, 286.‍2 or 286.‍3; or

• (b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

Requirements for admissibility

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.‍93 and 278.‍94,

• (a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or

• (b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Factors that judge shall consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

• (a) the interests of justice, including the right of the accused to make a full answer and defence;

• (b) society’s interest in encouraging the reporting of sexual assault offences;

• (c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;

• (d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

• (e) the need to remove from the fact-finding process any discriminatory belief or bias;

• (f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

• (g) the potential prejudice to the complainant’s personal dignity and right of privacy;

• (h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

• (i) any other factor that the judge, provincial court judge or justice considers relevant.

Application for hearing — sections 276 and 278.‍92

278.‍93 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.‍94 to determine whether evidence is admissible under subsection 276(2) or 278.‍92(2).

Form and content of application

(2) An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.

Jury and public excluded

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

Judge may decide to hold hearing

(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.‍94 to determine whether the evidence is admissible under subsection 276(2) or 278.‍92(2).

Hearing — jury and public excluded

278.‍94 (1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.‍92(2).

Complainant not compellable

(2) The complainant is not a compellable witness at the hearing but may appear and make submissions.

Right to counsel

(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.

Judge’s determination and reasons

(4) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) or 278.‍92(2) and shall provide reasons for that determination, and

• (a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;

• (b) the reasons must state the factors referred to in subsection 276(3) or 278.‍92(3) that affected the determination; and

• (c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.

Record of reasons

(5) The reasons provided under subsection (4) shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.

Publication prohibited

278.‍95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

• (a) the contents of an application made under subsection 278.‍93;

• (b) any evidence taken, the information given and the representations made at an application under section 278.‍93 or at a hearing under section 278.‍94;

• (c) the decision of a judge or justice under subsection 278.‍93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

• (d) the determination made and the reasons provided under subsection 278.‍94(4), unless

  • (i) that determination is that evidence is admissible, or

  • (ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Judge to instruct jury — re use of evidence

278.‍96 If evidence is admitted at trial on the basis of a determination made under subsection 278.‍94(4), the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence.

Appeal

278.‍97 For the purposes of sections 675 and 676, a determination made under subsection 278.‍94(4) shall be deemed to be a question of law.

Pretending to solemnize marriage

294 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years who

• (a) solemnizes or pretends to solemnize a marriage without lawful authority; or

• (c) shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by any person other than the person whom it defames.

Possession of device to obtain use of telecommunication facility or service

327 (1) Every person who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to use a telecommunication facility or obtain a telecommunication service without payment of a lawful charge, knowing that the device has been used or is intended to be used for that purpose, is

Possession of device to obtain unauthorized use of computer system or to commit mischief

342.‍2 (1) Every person who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to commit an offence under section 342.‍1 or 430, knowing that the device has been used or is intended to be used to commit such an offence, is

Being unlawfully in dwelling-house

349 (1) Every person who, without lawful excuse, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or of an offence punishable on summary conviction.

• (ii) he entered without lawful justification or excuse by a permanent or temporary opening.

Possession of break-in instrument

351 (1) Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe knowing that the instrument has been used or is intended to be used for that purpose,

Possession of instruments for breaking into coin-operated or currency exchange devices

352 Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into a coin-operated device or a currency exchange device, knowing that the instrument has been used or is intended to be used for that purpose, is guilty of an indictable offence and liable to imprisonment for a term of not more than two years.

Obliterated vehicle identification number

(2) In proceedings in respect of an offence under subsection (1), evidence that a person has in their possession a motor vehicle the vehicle identification number of which has been wholly or partially removed or obliterated or a part of a motor vehicle being a part bearing a vehicle identification number that has been wholly or partially removed or obliterated is, in the absence of any evidence to the contrary, proof that the motor vehicle or part, as the case may be, was obtained,

Counterfeiting stamp, etc.

376 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who

• (b) knowingly and without lawful excuse has in their possession

• (c) without lawful excuse makes or knowingly has in their possession a die or instrument that is capable of making the impression of a stamp or part of a stamp.

Definition of goods

379 In this Part, goods means anything that is the subject of trade or commerce.

Identity theft

402.‍2 (1) Every person commits an offence who obtains or possesses another person’s identity information with intent to use it to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence.

Acknowledging instrument in false name

405 Every person who, without lawful authority or excuse, acknowledges, in the name of another person before a court or a judge or other person authorized to receive the acknowledgment, a recognizance of bail, a confession of judgment, a consent to judgment or a judgment, deed or other instrument is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.

Applying or removing marks without authority

417 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years who,

• (a) without lawful authority applies a distinguishing mark to anything, or

Unlawful transactions in public stores

(2) Every person who, without lawful authority, receives, possesses, keeps, sells or delivers public stores that they know bear a distinguishing mark is guilty of

Unlawful use of military uniforms or certificates

419 Every person is guilty of an offence punishable on summary conviction who, without lawful authority,

Colour of right

(2) A person shall not be convicted of an offence under sections 430 to 446 if they act with legal justification or excuse or colour of right.

Animals

• (a) kills, maims, wounds, poisons or injures dogs, birds or animals that are kept for a lawful purpose; or

• (b) places poison in such a position that it may easily be consumed by dogs, birds or animals that are kept for a lawful purpose.

Order of prohibition or restitution

447.‍1 (1) The court may, in addition to any other sentence that it may impose under subsection 445(2), 445.‍1(2), 446(2) or 447(2),

Possession, etc.‍, of counterfeit money

450 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, without lawful justification or excuse,

• (a) buys, receives or offers to buy or receive counterfeit money;

• (b) has in their custody or possession counterfeit money; or

• (c) introduces counterfeit money into Canada.

Having clippings, etc.

451 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years who, without lawful justification or excuse, has in their custody or possession, knowing that it has been produced or obtained by impairing, diminishing or lightening a current gold or silver coin,

Uttering, etc.‍, counterfeit money

452 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, without lawful justification or excuse,

Slugs and tokens

454 Every person is guilty of an offence punishable on summary conviction who, without lawful excuse, manufactures, produces, sells or has in their possession anything that is intended to be fraudulently used in substitution for a coin or token of value that any coin or token-operated device is designed to receive.

Making, having or dealing in instruments for counterfeiting

458 Every person who, without lawful justification or excuse, makes, repairs, buys, sells or has in their custody or possession any machine, engine, tool, instrument, material or other thing that they know has been used or is adapted and intended for use in making counterfeit money or counterfeit tokens of value, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

Conveying instruments for coining out of mint

459 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, without lawful justification or excuse, knowingly conveys out of any of Her Majesty’s mints in Canada,

Failure to comply

(2) Every person who fails, without lawful excuse, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

Indictment for treason

(4) If an accused is charged with an offence under section 47 or sections 50 to 53, every overt act that is to be relied on shall be stated in the indictment.

Sufficiency of count charging libel

584 (1) No count for publishing a seditious or defamatory libel, or for selling or exhibiting an obscene book, pamphlet, newspaper or other written matter, is insufficient by reason only that it does not set out the words that are alleged to be libellous or the writing that is alleged to be obscene.

Limitation

(9) The authority of a court to amend indictments does not authorize the court to add to the overt acts stated in an indictment for high treason or treason or for an offence against any provision in sections 50, 51 and 53.

Exception

(3.‍1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

Failure to comply with order

(2) Every person who fails, without lawful excuse, to comply with the order

Charter statement

4.‍2 (1) The Minister shall, for every Bill introduced in or presented to either House of Parliament by a minister or other representative of the Crown, cause to be tabled, in the House in which the Bill originates, a statement that sets out potential effects of the Bill on the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms.

Purpose

(2) The purpose of the statement is to inform members of the Senate and the House of Commons as well as the public of those potential effects.

• (iv) subsection 163(1) (obscene materials),

• (iv) subsection 163(1) (obscene materials),

• (ii) in any other permanent establishment, conducts and manages games that are operated on or through a slot machine, as defined in subsection 207(4.‍01) of that Act, or any other similar electronic gaming device, if there are more than 50 of those machines or other devices in the establishment;

• (ii) in any other permanent establishment, conducts and manages games that are operated on or through a slot machine, as defined in subsection 207(4.‍01) of the Criminal Code, or any other similar electronic gaming device, if there are more than 50 of those machines or other devices in the establishment;