Bill C-27
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C-27
First Session, Thirty-ninth Parliament,
55 Elizabeth II, 2006
HOUSE OF COMMONS OF CANADA
BILL C-27
An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace)
first reading, October 17, 2006
THE MINISTER OF JUSTICE
90383
SUMMARY
This enactment amends the dangerous offender and long-term offender provisions of the Criminal Code
(a) to require the prosecutor to advise the court whether the prosecutor intends to proceed with an application for an assessment under those provisions when the prosecutor is of the opinion that the offence for which the offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence and was sentenced to at least two years of imprisonment for each of those convictions;
(b) to remove the court’s discretion to refuse to order an assessment when it is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender or a long-term offender;
(c) to provide that, if the court is satisfied, in a hearing for a dangerous offender designation, that the offence for which the offender has been convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions to make the designation are presumed to have been met unless the contrary is proved on a balance of probabilities; and
(d) to clarify that, even when the conditions to make a dangerous offender designation have been met, the court must consider whether a lesser sentence, including a long-term offender designation, would adequately protect the public and that neither the prosecutor nor the offender has the onus of proof in the matter.
The enactment also amends sections 810.1 and 810.2 of the Criminal Code
(a) to allow the duration of a recognizance to be for a period of up to two years if the court is satisfied that the defendant was convicted previously of an offence of a sexual nature against a child or a serious personal injury offence; and
(b) to clarify that the scope of conditions available for recognizances is broad and that those conditions may include electronic monitoring, treatment and a requirement to report to a designated authority.
Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca
http://www.parl.gc.ca
1st Session, 39th Parliament,
55 Elizabeth II, 2006
house of commons of canada
BILL C-27
An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace)
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. C-46
CRIMINAL CODE
1. Section 752 of the Criminal Code is amended by adding the following in alphabetical order:
“designated offence”
« infraction désignée »
« infraction désignée »
“designated offence” means
(a) a primary designated offence,
(b) an offence under any of the following provisions:
(i) paragraph 81(1)(a) (using explosives),
(ii) paragraph 81(1)(b) (using explosives),
(iii) section 85 (using firearm or imitation firearm in commission of offence),
(iv) section 87 (pointing firearm),
(v) section 153.1 (sexual exploitation of person with disability),
(vi) section 163.1 (child pornography),
(vii) section 170 (parent or guardian procuring sexual activity),
(viii) section 171 (householder permitting sexual activity by or in presence of child),
(ix) section 172.1 (luring child),
(x) paragraph 212(1)(i) (stupefying or overpowering for purpose of sexual intercourse),
(xi) subsection 212(2.1) (aggravated offence in relation to living on avails of prostitution of person under eighteen),
(xii) subsection 212(4) (prostitution of person under eighteen),
(xiii) section 245 (administering noxious thing),
(xiv) section 266 (assault),
(xv) section 269 (unlawfully causing bodily harm),
(xvi) section 269.1 (torture),
(xvii) paragraph 270(1)(a) (assaulting peace officer),
(xviii) section 273.3 (removal of child from Canada),
(xix) subsection 279(2) (forcible confinement),
(xx) section 279.01 (trafficking in persons),
(xxi) section 279.1 (hostage taking),
(xxii) section 280 (abduction of person under age of sixteen),
(xxiii) section 281 (abduction of person under age of fourteen),
(xxiv) section 344 (robbery), and
(xxv) section 348 (breaking and entering with intent, committing offence or breaking out),
(c) an offence under subsection 245(2) of the Criminal Code (assault causing bodily harm), chapter C-34 of the Revised Statutes of Canada, 1970, as it read from time to time before January 4, 1983,
(d) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:
(i) subsection 146(2) (sexual intercourse with female between ages of fourteen and sixteen),
(ii) section 148 (sexual intercourse with feeble-minded),
(iii) section 166 (parent or guardian procuring defilement), and
(iv) section 167 (householder permitting defilement), or
(e) an attempt or conspiracy to commit an offence referred to in any of paragraphs (b) to (d);
“primary designated offence”
« infraction primaire »
« infraction primaire »
“primary designated offence” means
(a) an offence under any of the following provisions:
(i) section 151 (sexual interference),
(ii) section 152 (invitation to sexual touching),
(iii) section 153 (sexual exploitation),
(iv) section 155 (incest),
(v) section 239 (attempt to commit murder),
(vi) section 244 (discharging firearm with intent),
(vii) section 267 (assault with weapon or causing bodily harm),
(viii) section 268 (aggravated assault),
(ix) section 271 (sexual assault),
(x) section 272 (sexual assault with weapon, threats to third party or causing bodily harm),
(xi) section 273 (aggravated sexual assault), and
(xii) subsection 279(1) (kidnapping),
(b) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983:
(i) section 144 (rape),
(ii) section 145 (attempt to commit rape),
(iii) section 149 (indecent assault on female),
(iv) section 156 (indecent assault on male), and
(v) subsection 246(1) (assault with intent) if the intent is to commit an offence referred to in any of subparagraphs (i) to (iv) of this paragraph,
(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as enacted by section 19 of An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, chapter 125 of the Statutes of Canada, 1980-81-82-83:
(i) section 246.1 (sexual assault),
(ii) section 246.2 (sexual assault with weapon, threats to third party or causing bodily harm), and
(iii) section 246.3 (aggravated sexual assault),
(d) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:
(i) subsection 146(1) (sexual intercourse with female under age of fourteen), and
(ii) paragraph 153(1)(a) (sexual intercourse with step-daughter), or
(e) an attempt or conspiracy to commit an offence referred to in any of paragraphs (a) to (d);
1997, c. 17, s. 4
2. Section 752.1 of the Act is replaced by the following:
Duty to advise court
752.01 If the prosecutor is of the opinion that an offence for which an offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the prosecutor shall advise the court, as soon as feasible after the finding of guilt and in any event before sentence is imposed, whether the prosecutor intends to make an application under subsection 752.1(1).
Application for remand for assessment
752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding sixty days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.
Report
(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than thirty days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.
Extension of time
(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of thirty days if the court is satisfied that there are reasonable grounds to do so.
1997, c. 17, s. 4
3. (1) The portion of subsection 753(1) of the Act before paragraph (a) is replaced by the following:
Application for finding that an offender is a dangerous offender
753. (1) On application made under this Part following the filing of an assessment report under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(2) Section 753 of the Act is amended by adding the following after subsection (1):
Presumption
(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.
Limitation
(1.2) Despite subsection (1), the court shall not find the offender to be a dangerous offender if it is satisfied by the evidence adduced during the hearing of an application under that subsection that a lesser sentence — either a finding that the offender is a long-term offender or a sentence for the offence for which the offender has been convicted — would adequately protect the public. Neither the prosecutor nor the offender has the onus of proof in this matter.
1997, c. 17, s. 4
(3) Paragraphs 753(2)(a) and (b) of the Act are replaced by the following:
(a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition; and
(b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim.
4. Paragraph 754(1)(b) of the French version of the Act is replaced by the following:
b) le poursuivant a donné au délinquant un préavis d’au moins sept jours francs après la présentation de la demande indiquant ce sur quoi la demande se fonde;
2002, c. 13, s. 81(1)
5. Subsection 810.1(3) of the Act is replaced by the following:
Adjudication
(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period that does not exceed twelve months.
Duration extended
(3.01) However, if the provincial court judge is also satisfied that the defendant was convicted previously of a sexual offence in respect of a person who is under the age of fourteen years, the judge may order that the defendant enter into the recognizance for a period that does not exceed two years.
Conditions in recognizance
(3.02) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that
(a) prohibit the defendant from engaging in any activity that involves contact with persons under the age of fourteen years, including using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under that age;
(b) prohibit the defendant from attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground or playground;
(c) require the defendant to participate in a treatment program;
(d) require the defendant to wear an elec-tronic monitoring device, as long as the Attorney General makes the request;
(e) require the defendant to remain within a specified geographic area unless written permission to leave that area is obtained from the provincial court judge;
(f) require the defendant to return to and remain at his or her place of residence at specified times; or
(g) require the defendant to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance.
Conditions — firearms
(3.03) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which the condition applies.
Surrender, etc.
(3.04) If the provincial court judge adds a condition described in subsection (3.03) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession should be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant should be surrendered.
Condition — reporting
(3.05) The provincial court judge shall consider whether it is desirable to require the defendant to report to the correctional authority of a province or to an appropriate police authority. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance.
1997, c.17, s. 9(1)
6. (1) Subsection 810.2(3) of the Act is replaced by the following:
Adjudication
(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period that does not exceed twelve months.
Duration extended
(3.01) However, if the provincial court judge is also satisfied that the defendant was convicted previously of an offence referred to in subsection (1), the judge may order that the defendant enter into the recognizance for a period that does not exceed two years.
1997, c. 17, ss. 9(1) and (2)
(2) Subsections 810.2(5) to (6) of the Act are replaced by the following:
Conditions in recognizance
(4.1) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that require the defendant
(a) to participate in a treatment program;
(b) to wear an electronic monitoring device, as long as the Attorney General makes the request;
(c) to remain within a specified geographic area unless written permission to leave that area is obtained from the provincial court judge;
(d) to return to and remain at his or her place of residence at specified times; or
(e) to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance.
Conditions — firearms
(5) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which the condition applies.
Surrender, etc.
(5.1) If the provincial court judge adds a condition described in subsection (5) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession should be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant should be surrendered.
Reasons
(5.2) If the provincial court judge does not add a condition described in subsection (5) to a recognizance, the judge shall include in the record a statement of the reasons for not adding the condition.
Condition — reporting
(6) The provincial court judge shall consider whether it is desirable to require the defendant to report to the correctional authority of a province or to an appropriate police authority. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance.
COORDINATING AMENDMENTS
Bill C-10
7. If Bill C-10, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act, receives royal assent, then, on the later of the day on which section 9 of that Act comes into force and the day on which section 1 of this Act comes into force — or, if those days are the same day, then on that day — subparagraph (a)(i) of the definition “primary designated offence” in section 752 of the Criminal Code is replaced by the following:
(i) section 98 (breaking and entering to steal firearm),
(i.1) section 98.1 (robbery to steal firearm),
(i.2) section 151 (sexual interference),
Bill C-22
8. (1) Subsections (2) to (4) apply if Bill C-22, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the Criminal Code (age of protection) and to make consequential amendments to the Criminal Records Act (the “other Act”), receives royal assent.
(2) If the other Act comes into force before this Act,
(a) subsection 810.1(3.01) of the Criminal Code, as enacted by section 5 of this Act, is replaced by the following:
Duration extended
(3.01) However, if the provincial court judge is also satisfied that the defendant was convicted previously of a sexual offence in respect of a person who is under the age of sixteen years, the judge may order that the defendant enter into the recognizance for a period that does not exceed two years.
(b) paragraphs 810.1(3.02)(a) and (b) of the Criminal Code, as enacted by section 5 of this Act, are replaced by the following:
(a) prohibit the defendant from engaging in any activity that involves contact with persons under the age of sixteen years, including using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under that age;
(b) prohibit the defendant from attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground or playground;
(3) If this Act comes into force before the other Act, then paragraph 3(j) of that Act is replaced by the following:
(j) subsections 810.1(1) and (3.01) and paragraphs 810.1(3.02)(a) and (b).
(4) If this Act and the other Act come into force on the same day, then this Act is deemed to have come into force before the other Act.
Published under authority of the Speaker of the House of Commons
Available from:
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Available from:
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Explanatory Notes
Criminal Code
Clause 1: New.
Clause 2: Existing text of section 752.1:
752.1 (1) Where an offender is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) and, before sentence is imposed on the offender, on application by the prosecution, the court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court may, by order in writing, remand the offender, for a period not exceeding sixty days, to the custody of the person that the court directs and who can perform an assessment, or can have an assessment performed by experts. The assessment is to be used as evidence in an application under section 753 or 753.1.
(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than fifteen days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.
Clause 3: (1) Relevant portion of subsection 753(1):
753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied
(2) New.
(3) Relevant portion of subsection 753(2):
(2) An application under subsection (1) must be made before sentence is imposed on the offender unless
(a) before the imposition of sentence, the prosecution gives notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition; and
(b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecution at the time of the imposition of sentence became available in the interim.
Clause 4: Relevant portion of subsection 754(1):
754. (1) Where an application under this Part has been made, the court shall hear and determine the application except that no such application shall be heard unless
...
(b) at least seven days notice has been given to the offender by the prosecutor, following the making of the application, outlining the basis on which it is intended to found the application; and
Clause 5: Existing text of subsection 810.1(3):
(3) The provincial court judge before whom the parties appear may, if satisfied by the evidence adduced that the informant has reasonable grounds for the fear, order the defendant to enter into a recognizance and, for a period fixed by the provincial court judge of not more than twelve months, comply with the conditions fixed by the provincial court judge, including a condition prohibiting the defendant from
(a) engaging in any activity that involves contact with persons under the age of fourteen years, including using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of fourteen years; and
(b) attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre.
Clause 6: (1) Existing text of subsection 810.2(3):
(3) The provincial court judge before whom the parties appear may, if satisfied by the evidence adduced that the informant has reasonable grounds for the fear, order that the defendant enter into a recognizance to keep the peace and be of good behaviour for any period that does not exceed twelve months and to comply with any other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (5) and (6), that the provincial court judge considers desirable for securing the good conduct of the defendant.
(2) Existing text of subsections 810.2(5) to (6):
(5) Before making an order under subsection (3), the provincial court judge shall consider whether it is desirable to include as a condition of the recognizance that the defendant report to the correctional authority of a province or to an appropriate police authority, and where the provincial court judge decides that it is desirable for the defendant to so report, the provincial court judge may add the appropriate condition to the recognizance.
(5.1) Where the provincial court judge adds a condition described in subsection (5) to a recognizance order, the provincial court judge shall specify in the order the manner and method by which
(a) the things referred to in that subsection that are in the possession of the defendant shall be surrendered, disposed of, detained, stored or dealt with; and
(b) the authorizations, licences and registration certificates held by the defendant shall be surrendered.
(5.2) Where the provincial court judge does not add a condition described in subsection (5) to a recognizance order, the provincial court judge shall include in the record a statement of the reasons for not adding the condition.
(6) Before making an order under subsection (3), the provincial court judge shall consider whether it is desirable to include as a condition of the recognizance that the defendant report to the correctional authority of a province or to an appropriate police authority, and where the provincial court judge decides that it is desirable for the defendant to so report, the provincial court judge may add the appropriate condition to the recognizance.