1st Session, 36th Parliament,
46 Elizabeth II, 1997

The House of Commons of Canada

BILL C-212

An Act to amend the Criminal Code and the Young Offenders Act (capital punishment)

      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; R.S., cc. 2, 11, 27, 31, 47, 51, 52 (1st Supp.), cc. 1, 24, 27, 35 (2nd Supp.), cc. 10, 19, 30, 34 (3rd Supp.), cc. 1, 23, 29, 30, 31, 32, 40, 42, 50 (4th Supp.); 1989, c. 2; 1990, cc. 15, 16, 17, 44; 1991, cc. 1, 4, 28, 40, 43; 1992, cc. 1, 11, 20, 21, 22, 27, 38, 41, 47, 51; 1993, cc. 7, 25, 28, 34, 37, 40, 45, 46; 1994, cc. 12, 13, 38, 44; 1995, cc. 5, 19, 22, 27, 29, 32, 39, 42; 1996, cc. 7, 8, 16, 19, 31, 34; 1997, cc. 9, 16, 17, 18, 23, 30

CRIMINAL CODE

1. Section 235 of the Criminal Code is replaced by the following:

Punishment for first degree murder

235. (1) Every one who commits first degree murder is guilty of an indictable offence and shall be sentenced

    (a) to death, where the person was eighteen years of age or more at the time of the commission of the offence ; or

    (b) to imprisonment for life where the person was under the age of eighteen at the time of the commission of the offence.

Punishment for second degree murder

(2) Every one who commits second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

Minimum punishment

(3) For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by this section is a minimum punishment.

2. The Act is amended by adding the following after section 675:

Right of appeal of person sentenced to death

675.1 (1) Notwithstanding any other provi sion of this Act, a person who has been sentenced to death may appeal to the court of appeal against the conviction on any ground of appeal that involves a question of law or fact or mixed law and fact.

Notice deemed to have been given

(2) A person who has been sentenced to death shall, notwithstanding that the person has not given notice pursuant to section 678, be deemed to have given such notice and to have appealed against the conviction.

Court of appeal may consider

(3) The court of appeal, on an appeal pursuant to this section, shall

    (a) consider any ground of appeal alleged in the notice of appeal, if any notice has been given; and

    (b) consider the record to ascertain whether there are present any other grounds upon which the conviction ought to be set aside.

3. Subsection 678(2) of the Act is replaced by the following:

Extension of time

(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given, but this subsection does not apply where a sentence of death has been imposed pursuant to a convic tion.

Effect of certificate from the registrar

(3) The production of a certificate from the registrar that notice of appeal has been given or the production of a certificate from the Minister of Justice that the Minister has exercised any of the powers conferred upon him by section 690 is sufficient authority to suspend the execution of a sentence of death, and where, pursuant to such suspension, a new time is required to be fixed for execution of the sentence, it may be fixed by the judge who imposed the sentence or any judge who might have held or sat in the same court.

Suspension of execution of sentence of death

(4) Where, pursuant to a conviction, a sentence of death has been imposed, the execution of the sentence shall be suspended until after the determination of the appeal pursuant to section 675.1 whether or not the production of a certificate mentioned in subsection (3) has been made, and where, as a result of such suspension, a new time is required to be fixed for the execution of the sentence, it may be fixed by the judge who imposed the sentence or any judge who might have held or sat in the same court.

4. Subsection 682(4) of the Act is replaced by the following:

Copies to interested parties

(4) A party to an appeal is entitled to receive

    (a) without charge, if the appeal is against a conviction in respect of which a sentence of death has been imposed, or

    (b) on payment of any charges that are fixed by rules of court, in any other case,

a copy or transcript of any material that is pre pared under subsections (1) and (2).

5. Section 691 of the Act is replaced by the following:

Appeal from conviction

691. (1) A person who is convicted of an indictable offence other than an offence punishable by death and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada

    (a) on any question of law on which a judge of the court of appeal dissents; or

    (b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

Appeal where acquittal set aside

(2) A person who is acquitted of an indictable offence other than an offence punishable by death or by reason of a verdict of not criminally responsible on account of mental disorder and whose acquittal is set aside by the court of appeal may appeal to the Supreme Court of Canada

    (a) on any question of law on which a judge of the court of appeal dissents;

    (b) on any question of law, if the Court of Appeal enters a verdict of guilty against the person; or

    (c) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

6. The Act is amended by adding the following after section 691:

Appeal where sentence of death

691.1 Notwithstanding any other provision of this Act, a person

    (a) who has been sentenced to death and whose conviction is affirmed by the court of appeal, or

    (b) who is acquitted of an offence punish able by death and whose acquittal is set aside by the court of appeal,

may appeal to the Supreme Court of Canada on any ground of law or fact or mixed law and fact.

7. Subsection 730(1) of the Act is replaced by the following:

Absolute and conditional discharge

730. (1) Where an accused, other than a corporation, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life or by the death penalty , the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

8. Section 745.1 of the Act is replaced by the following:

Persons under eighteen

745.1 The sentence to be pronounced against a person who was under the age of eighteen at the time of the commission of the offence for which the person was convicted of first degree murder or second degree murder and who is to be sentenced to imprisonment for life shall be that the person be sentenced to imprisonment for life without eligibility for parole until the person has served

    (a) such period between ten and fifteen years of the sentence as is specified by the judge presiding at the trial, or if no period is specified by the judge presiding at the trial, ten years, in the case of a person convicted of first degree murder who was under the age of sixteen at the time of the commission of the offence;

    (b) twenty-five years, in the case of a person convicted of first degree murder who was sixteen or seventeen years of age at the time of the commission of the offence;

    (c) such period between five and seven years of the sentence as is specified by the judge presiding at the trial or, if no period is specified by the judge presiding at the trial, five years, in the case of a person convicted of second degree murder who was under the age of sixteen at the time of the commission of the offence; and

    (d) seven years, in the case of a person convicted of second degree murder who was sixteen or seventeen years of age at the time of the commission of the offence.

9. Section 745.3 of the Act is replaced by the following:

Persons under sixteen

745.3 Where a jury finds an accused guilty of first degree murder or second degree murder and the accused was under the age of sixteen at the time of the commission of the offence, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

    You have found the accused guilty of first degree murder (or second degree murder) and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the period of imprisonment that the accused must serve before the accused is eligible for release on parole? You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining the period of imprisonment that

    (a) in the case of first degree murder, is between ten and fifteen years, and

    (b) in the case of second degree murder, is between five years and seven years

that the law would require the accused to serve before the accused is eligible to be considered for release on parole.

10. Section 745.5 of the Act is replaced by the following:

Persons under sixteen

745.5 At the time of the sentencing under section 745.1 of an offender who is convicted of first degree murder or second degree murder and who was under the age of sixteen at the time of the commission of the offence, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court, may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recom mendation, if any, made pursuant to section 745.3, by order, decide the period of imprison ment the offender is to serve that

    (a) in the case of first degree murder, is between ten years and fifteen years, and

    (b) in the case of murder in the second degree, is between five years and seven years

without eligibility for parole, as the judge deems fit in the circumstances.

11. (1) Paragraph 745.6(1)(a) of the Act is replaced by the following:

    (a) has been convicted of high treason, or

(2) Subsection 745.6(2) of the Act is repealed.

12. (1) The portion of subsection 746.1(2) of the Act before paragraph (a) is replaced by the following:

Temporary absences and day parole

(2) Subject to subsections (3) and (4), in respect of a person sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act, until the expiration of all but three years of the specified number of years of imprisonment,

(2) Paragraph 746.1(3) of the Act is replaced by the following:

Temporary absences and day parole

(3) Notwithstanding the Corrections and Conditional Release Act, in the case of any person convicted of first degree murder who is sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act, until the expiration of the period of imprisonment the person is to serve without eligibility for parole,

    (a) no day parole may be granted under the Corrections and Conditional Release Act;

    (b) no absence without escort may be authorized under that Act or the Prisons and Reformatories Act; and

    (c) except with the approval of the National Parole Board, no absence with escort other wise than for medical reasons may be authorized under either of those Acts.

(4) Notwithstanding the Corrections and Conditional Release Act, in the case of any person convicted of second degree murder who was eighteen years or more at the time of the commission of the offence and who is sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act, until the expiration of the period of imprisonment the person is to serve without eligibility for parole,

    (a) no day parole may be granted under the Corrections and Conditional Release Act;

    (b) no absence without escort may be authorized under that Act or the Prisons and Reformatories Act; and

    (c) except with the approval of the National Parole Board, no absence with escort other wise than for medical reasons may be authorized under either of those Acts.

Temporary absences and day parole

(5) Notwithstanding the Corrections and Conditional Release Act, in the case of any person convicted of second degree murder who was under the age of eighteen at the time of the commission of the offence and who is sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act, until the expiration of all but one fifth of the period of imprison ment the person is to serve without eligibility for parole

    (a) no day parole may be granted under the Corrections and Conditional Release Act;

    (b) no absence without escort may be authorized under that Act or the Prisons and Reformatories Act; and

    (c) except with the approval of the National Parole Board, no absence with escort other wise than for medical reasons may be authorized under either of those Acts.

13. The Act is amended by adding the following after section 746.1: