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This enactment amends the Criminal Code to enhance the protection
and participation of victims and witnesses in the criminal justice system.
The amendments included in this enactment
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(a) expand the availability of protection from personal
cross-examination by a self-represented accused for victims and
witnesses of sexual offences and personal violence offences, up to
the age of 18;
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(b) clarify the application of publication bans, and provide a
discretion to order, in appropriate circumstances, a publication ban
on information that could disclose the identity of victims or
witnesses;
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(c) ensure that the safety concerns of victims and witnesses are taken
into consideration in judicial interim release determinations and in
the imposition of conditions in any undertakings given by the
accused for judicial interim release;
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(d) revise the victim impact statement provisions to, among other
things, require the judge to inquire whether the victim has been
advised of the opportunity to prepare a victim impact statement, and
permit a victim to present a victim impact statement orally;
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(e) provide that all offenders must pay a victim surcharge of a fixed,
minimum amount, except where the offender establishes undue
hardship, and provide for increased amounts to be imposed in
appropriate circumstances;
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(f) require a judge, at the sentencing of an offender to life in prison,
to provide information, for the benefit of the victim, regarding the
operation of the provisions governing judicial review of parole
eligibility; and
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(g) make a number of procedural and consequential changes.
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Clause 1: New.
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Clause 2: (1) Subsections 486(1.1) and (1.2) read as
follows:
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(1.1) For the purposes of subsections (1) and (2.3) and for greater
certainty, the ``proper administration of justice'' includes ensuring that
the interests of witnesses under the age of fourteen years are
safeguarded in proceedings in which the accused is charged with a
sexual offence, an offence against any of sections 271, 272 and 273 or
an offence in which violence against the person is alleged to have been
used, threatened or attempted.
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(1.2) In proceedings referred to in subsection (1.1), the presiding
judge, provincial court judge or justice may, on application of the
prosecutor or a witness who, at the time of the trial or preliminary
hearing, is under the age of fourteen years, order that a support person
of the witness' choice be permitted to be present and to be close to the
witness while testifying.
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(2) Subsections 486(2.3) and (3) read as follows:
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(2.3) In proceedings referred to in subsection (1.1), the accused shall
not personally cross-examine a witness who at the time of the
proceedings is under the age of fourteen years, unless the presiding
judge, provincial court judge or justice is of the opinion that the proper
administration of justice requires the accused to personally conduct the
cross-examination and, where the accused is not personally conducting
the cross-examination, the presiding judge, provincial court judge or
justice shall appoint counsel for the purpose of conducting the
cross-examination.
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(3) Subject to subsection (4), where an accused is charged with
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(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171,
172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
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(b) an offence under section 144, 145, 149, 156, 245 or 246 of the
Criminal Code, chapter C-34 of the Revised Statutes of Canada,
1970, as it read immediately before January 4, 1983, or
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(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of
the Criminal Code, chapter C-34 of the Revised Statutes of Canada,
1970, as it read immediately before January 1, 1988,
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the presiding judge or justice may make an order directing that the
identity of the complainant or of a witness and any information that
could disclose the identity of the complainant or witness shall not be
published in any document or broadcast in any way.
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(3) Subsections 486(4.1) to (4.9) are new. Subsection
486(5) reads as follows:
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(5) Every one who fails to comply with an order made pursuant to
subsection (3) is guilty of an offence punishable on summary
conviction.
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Clause 3: (1) Subsection 497(1.1) is new. Subsection
497(1) reads as follows:
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497. (1) Where a peace officer arrests a person without warrant for
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(a) an indictable offence mentioned in section 553,
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(b) an offence for which the person may be prosecuted by indictment
or for which he is punishable on summary conviction, or
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(c) an offence punishable on summary conviction,
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he shall, as soon as practicable,
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(d) release the person from custody with the intention of compelling
his appearance by way of summons, or
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(e) issue an appearance notice to the person and thereupon release
him,
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unless
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(f) he believes on reasonable grounds that it is necessary in the public
interest, having regard to all the circumstances including the need to
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(i) establish the identity of the person,
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(ii) secure or preserve evidence of or relating to the offence, or
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(iii) prevent the continuation or repetition of the offence or the
commission of another offence,
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that the person be detained in custody or that the matter of his release
from custody be dealt with under another provision of this Part, or
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(g) he believes on reasonable grounds that, if the person is released
by him from custody, the person will fail to attend court in order to
be dealt with according to law.
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(2) The relevant portion of subsection 497(3) reads as
follows:
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(3) A peace officer who has arrested a person without warrant for an
offence described in subsection (1) and who does not release the person
from custody as soon as practicable in the manner described in
paragraph (d) or (e) of that subsection shall be deemed to be acting
lawfully and in the execution of his duty for the purposes of
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Clause 4: (1) Subsection 498(1.1) is new. Subsection
498(1) reads as follows:
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498. (1) Where a person who has been arrested without warrant by
a peace officer is taken into custody, or where a person who has been
arrested without warrant and delivered to a peace officer under
subsection 494(3) is detained in custody under subsection 503(1) for
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(a) an indictable offence mentioned in section 553,
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(b) an offence for which the person may be prosecuted by indictment
or for which he is punishable on summary conviction,
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(c) an offence punishable on summary conviction, or
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(d) any other offence that is punishable by imprisonment for five
years or less,
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and has not been taken before a justice or released from custody under
any other provision of this Part, the officer in charge or another peace
officer shall, as soon as practicable,
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(e) release the person with the intention of compelling his
appearance by way of summons,
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(f) release the person on his giving his promise to appear,
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(g) release the person on the person's entering into a recognizance
before the officer in charge or another peace officer without sureties
in such amount not exceeding five hundred dollars as the officer
directs, but without deposit of money or other valuable security, or
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(h) if the person is not ordinarily resident in the province in which the
person is in custody or does not ordinarily reside within two hundred
kilometres of the place in which the person is in custody, release the
person on the person's entering into a recognizance before the
officer in charge or another peace officer without sureties in such
amount not exceeding five hundred dollars as the officer directs and,
if the officer so directs, on depositing with the officer such sum of
money or other valuable security not exceeding in amount or value
five hundred dollars, as the officer directs,
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unless
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(i) he believes on reasonable grounds that it is necessary in the public
interest, having regard to all the circumstances including the need to
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(i) establish the identity of the person,
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(ii) secure or preserve evidence of or relating to the offence, or
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(iii) prevent the continuation or repetition of the offence or the
commission of another offence,
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that the person be detained in custody or that the matter of his release
from custody be dealt with under another provision of this Part, or
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(j) he believes on reasonable grounds that, if the person is released
by him from custody, the person will fail to attend court in order to
be dealt with according to law.
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(2) The relevant portion of subsection 498(3) reads as
follows:
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(3) An officer in charge or another peace officer who has the custody
of a person taken into or detained in custody for an offence described
in subsection (1) and who does not release the person from custody as
soon as practicable in the manner described in paragraph (1)(e), (f), (g)
or (h) shall be deemed to be acting lawfully and in the execution of the
officer's duty for the purposes of
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Clause 5: (1) and (2) Paragraph 499(2)(h) is new. The
relevant portion of subsection 499(2) reads as follows:
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(2) In addition to the conditions for release set out in paragraphs
(1)(a), (b) and (c), the officer in charge may also require the person to
enter into an undertaking in Form 11.1 in which the person, in order to
be released, undertakes to do one or more of the following things:
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(c) to abstain from communicating with any witness or other person
mentioned in the undertaking, or from going to a place mentioned in
the undertaking, except in accordance with the conditions specified
in the undertaking;
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Clause 6: Section 500 reads as follows:
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500. Where a person has, pursuant to paragraph 498(1)(h) or 499(g),
deposited any sum of money or other valuable security with the officer
in charge, the officer in charge shall, forthwith after the deposit thereof,
cause the money or valuable security to be delivered to a justice for
deposit with the justice.
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Clause 7: (1) Subsection 503(2) reads as follows:
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(2) Where a peace officer or an officer in charge is satisfied that a
person described in subsection (1) should be released from custody
conditionally, the officer may, unless the person is detained in custody
for an offence mentioned in section 522, release that person on the
person's giving a promise to appear or entering into a recognizance in
accordance with paragraphs 498(1)(f) to (h) and subsection (2.1).
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(2) and (3) Paragraph 503(2.1)(h) is new. The relevant
portion of subsection 503(2.1) reads as follows:
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(2.1) In addition to the conditions referred to in subsection (2), the
peace officer or officer in charge may, in order to release the person,
require the person to enter into an undertaking in Form 11.1 in which the
person undertakes to do one or more of the following things:
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(c) to abstain from communicating with any witness or other person
mentioned in the undertaking, or from going to a place mentioned in
the undertaking, except in accordance with the conditions specified
in the undertaking;
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Clause 8: (1) and (2) Paragraph 515(4)(e.1) is new.
The relevant portion of subsection 515(4) reads as
follows:
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(4) The justice may direct as conditions under subsection (2) that the
accused shall do any one or more of the following things as specified
in the order:
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(d) abstain from communicating with any witness or other person
expressly named in the order, or refrain from going to any place
expressly named in the order, except in accordance with the
conditions specified in the order that the justice considers necessary;
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(3) The relevant portion of subsection 515(4.1) reads
as follows:
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(4.1) When making an order under subsection (2), in the case of an
accused who is charged with
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(d) an offence that involves, or the subject-matter of which is, a
firearm, a cross-bow, a prohibited weapon, a restricted weapon, a
prohibited device, ammunition, prohibited ammunition or an
explosive substance, the justice shall add to the order a condition
prohibiting the accused from possessing any firearm, cross-bow,
prohibited weapon, restricted weapon, prohibited device,
ammunition, prohibited ammunition or explosive substance, or all
such things, until the accused is dealt with according to law unless
the justice considers that such a condition is not required in the
interests of the safety of the accused or of any other person.
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(4) Subsection 515(4.2) reads as follows:
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(4.2) Before making an order under subsection (2), in the case of an
accused who is charged with an offence described in section 264, or an
offence in the commission of which violence against a person was used,
threatened or attempted, the justice shall consider whether it is
desirable, in the interests of the safety of any person, to include as a
condition of the order that the accused abstain from communicating
with any witness or other person expressly named in the order, or be
prohibited from going to any place expressly named in the order.
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(5) The relevant portion of subsection 515(10) reads
as follows:
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(10) For the purposes of this section, the detention of an accused in
custody is justified only on one or more of the following grounds:
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(b) where the detention is necessary for the protection or safety of the
public, having regard to all the circumstances including any
substantial likelihood that the accused will, if released from custody,
commit a criminal offence or interfere with the administration of
justice; and
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(6) Subsection 515(12) reads as follows:
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(12) A justice who orders that an accused be detained in custody
under this section may include in the order a direction that the accused
abstain from communicating with any witness or other person named
in the order, except in accordance with such conditions specified in the
order as the justice deems necessary.
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Clause 9: New. The relevant portion of subsection
518(1) reads as follows:
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518. (1) In any proceedings under section 515,
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Clause 10: Subsections 522(2.1) and (3) read as
follows:
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(2.1) A judge referred to in subsection (2) who orders that an accused
be detained in custody under this section may include in the order a
direction that the accused abstain from communicating with any
witness or other person named in the order except in accordance with
such conditions specified in the order as the judge deems necessary.
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(3) Where the judge does not order that the accused be detained in
custody pursuant to subsection (2), the judge may order that the accused
be released on giving an undertaking or entering into a recognizance
described in any of paragraphs 515(2)(a) to (e) with such conditions
described in subsections 515(4) and (4.1) as the judge considers
desirable.
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Clause 11: New.
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Clause 12: New.
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Clause 13: The relevant portion of the definition
``sentence'' in section 673 reads as follows:
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``sentence'' includes
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(b) an order made under subsection 109(1) or 110(1), section 161,
subsection 194(1) or 259(1) or (2), section 261 or 462.37,
subsection 491.1(2) or 730(1) or section 737, 738, 739, 742.3 or
745.2, and
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Clause 14: New.
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Clause 15: The relevant portion of subsection 683(5)
reads as follows:
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(5) Where an appeal or an application for leave to appeal has been
filed in the court of appeal, that court, or a judge of that court, may,
where it considers it to be in the interests of justice, order that
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(d) any order to pay a victim fine surcharge under section 737, or
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Clause 16: New.
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Clause 17: (1) New.
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(2) Subsection 722(3) reads as follows:
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(3) A statement of a victim of an offence prepared and filed in
accordance with subsection (2) does not prevent the court from
considering any other evidence concerning any victim of the offence for
the purpose of determining the sentence to be imposed on the offender
or whether the offender should be discharged pursuant to section 730.
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(3) The relevant portion of subsection 722(4) reads as
follows:
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(4) For the purposes of this section, ``victim'', in relation to an
offence,
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(a) means the person to whom harm was done or who suffered
physical or emotional loss as a result of the commission of the
offence; and
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Clause 18: Section 722.2 is new. Section 722.1 reads
as follows:
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722.1 The clerk of the court shall provide a copy of a document
referred to in section 721 or subsection 722(1), as soon as practicable
after filing, to the offender or counsel for the offender, as directed by the
court, and to the prosecutor.
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Clause 19: Subsection 734.8(5) reads as follows:
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(5) A payment under this section shall be applied firstly to the
payment in full of costs and charges, secondly to the payment in full of
any victim fine surcharge imposed under subsection 737(1), and
thereafter to payment of any part of the fine that remains unpaid.
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Clause 20: Section 737 reads as follows:
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737. (1) Subject to subsection (2), where an offender is convicted or
discharged under section 730 of an offence under this Act or the
Controlled Drugs and Substances Act, the court imposing sentence on
or discharging the offender shall, in addition to any other punishment
imposed on the offender, order the offender to pay a victim fine
surcharge in an amount not exceeding
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(a) fifteen per cent of any fine that is imposed on the offender for that
offence or, where no fine is imposed on the offender for that offence,
ten thousand dollars, or
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(b) such lesser amount as may be prescribed by, or calculated in the
manner prescribed by, regulations made by the Governor in Council
under subsection (5),
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subject to such terms and conditions as may be prescribed by those
regulations.
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(2) Where the offender establishes to the satisfaction of the court that
undue hardship to the offender or the dependants of the offender would
result from the making of an order under subsection (1), the court is not
required to make the order.
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(3) Where the court does not make an order under subsection (1), the
court shall
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(a) provide the reasons why the order is not being made; and
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(b) enter the reasons in the record of the proceedings or, where the
proceedings are not recorded, provide written reasons.
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(4) A victim fine surcharge imposed under subsection (1) shall be
applied for the purposes of providing such assistance to victims of
offences as the lieutenant governor in council of the province in which
the surcharge is imposed may direct from time to time.
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(5) The Governor in Council may, for the purposes of subsection (1),
make regulations prescribing the maximum amount or the manner of
calculating the maximum amount of a victim fine surcharge to be
imposed under that subsection, not exceeding the amount referred to in
paragraph (1)(a), and any terms and conditions subject to which the
victim fine surcharge is to be imposed.
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(6) Subsections 734(2) to (4) and sections 734.1, 734.3 and 734.7
apply, and section 736 does not apply, in respect of a victim fine
surcharge imposed under subsection (1).
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Clause 21: New.
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Clause 22: New.
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Clause 23: The relevant portion of the definition
``sentence'' in section 785 reads as follows:
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``sentence'' includes
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(b) an order made under subsection 110(1) or 259(1) or (2),
section 261 or subsection 736(1), and
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Clause 24: (1) and (2) Paragraph (h) of Form 11.1 of
Part XXVIII is new. The relevant portion of that Form
reads as follows:
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In order that I may be released from custody by way of (a promise
to appear or a recognizance), I undertake to (insert any conditions that
are directed):
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(c) abstain from communicating with (name of witness or other
person) or from going to (name or description of place) except in
accordance with the following conditions: (as the peace officer or
other person designated specifies);
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Clause 25: The relevant portion of Form 12 of Part
XXVIII reads as follows:
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I also undertake to (insert any conditions that are directed)
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(d) abstain from communication with (name of witness or other
person) except in accordance with the following conditions: (as the
justice or judge specifies);
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Clause 26: The relevant portion of Form 13 of Part
XXVIII reads as follows:
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I also undertake to (insert any conditions that are directed)
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(d) abstain from communicating with (name of witness or other
person) except in accordance with the following conditions: (as the
justice or judge specifies);
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Clause 27: The relevant portion of Form 32 of Part
XXVIII reads as follows:
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(d) abstains from communicating with (name of witness or other
person) except in accordance with the following conditions: (as the
justice or judge specifies);
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Clause 28: Subsections 53(1) and (2) read as follows:
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53. (1) Notwithstanding paragraphs 498(1)(g) and (h), 499(1)(b) and
(c) and 515(2)(b), (c), (d) and (e) of the Criminal Code, neither an
officer in charge nor a justice of the peace may direct that a recognizance
be entered into in an amount that exceeds the fine established in respect
of the contravention under paragraph 8(1)(c).
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(2) Notwithstanding paragraphs 498(1)(h), 499(1)(c) and 515(2)(d)
and (e) of the Criminal Code, neither an officer in charge nor a justice
of the peace may direct that a sum of money or other valuable security
in an amount or value that exceeds the fine established in respect of the
contravention under paragraph 8(1)(c) be deposited.
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