APPLICATIONS FOR MINISTERIAL REVIEW - MISCARRIAGES OF JUSTICE

Application

696.1 (1) An application for ministerial review on the grounds of miscarriage of justice may be made to the Minister of Justice by or on behalf of a person who has been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament or has been found to be a dangerous offender or a long-term offender under Part XXIV and whose rights of judicial review or appeal with respect to the conviction or finding have been exhausted.

Form of application

(2) The application must be in the form, contain the information and be accompanied by any documents prescribed by the regulations.

Review of applications

696.2 (1) On receipt of an application under this Part, the Minister of Justice shall review it in accordance with the regulations.

Powers of investigation

(2) For the purpose of any investigation in relation to an application under this Part, the Minister of Justice has and may exercise the powers of a commissioner under Part I of the Inquiries Act and the powers that may be conferred on a commissioner under section 11 of that Act.

Delegation

(3) Despite subsection 11(3) of the Inquiries Act, the Minister of Justice may delegate in writing to any individual the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence and otherwise conduct an investigation under subsection (2).

Definition of ``court of appeal''

696.3 (1) In this section, ``the court of appeal'' means the court of appeal, as defined by the definition ``court of appeal'' in section 2, for the province in which the person to whom an application under this Part relates was tried.

Power to refer

(2) The Minister of Justice may, at any time, refer to the court of appeal, for its opinion, any question in relation to an application under this Part on which the Minister desires the assistance of that court, and the court shall furnish its opinion accordingly.

Powers of Minister of Justice

(3) On an application under this Part, the Minister of Justice may

    (a) if the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred,

      (i) direct, by order in writing, a new trial before any court that the Minister thinks proper or, in the case of a person found to be a dangerous offender or a long-term offender under Part XXIV, a new hearing under that Part, or

      (ii) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person found to be a dangerous offender or a long-term offender under Part XXIV, as the case may be; or

    (b) dismiss the application.

No appeal

(4) A decision of the Minister of Justice made under subsection (3) is final and is not subject to appeal.

Considera-
tions

696.4 In making a decision under subsection 696.3(3), the Minister of Justice shall take into account all matters that the Minister considers relevant, including

    (a) whether the application is supported by new matters of significance that were not considered by the courts or previously considered by the Minister in an application in relation to the same conviction or finding under Part XXIV;

    (b) the relevance and reliability of information that is presented in connection with the application; and

    (c) the fact that an application under this Part is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy.

Annual report

696.5 The Minister of Justice shall within six months after the end of each financial year submit an annual report to Parliament in relation to applications under this Part.

Regulations

696.6 The Governor in Council may make regulations

    (a) prescribing the form of, the information required to be contained in and any documents that must accompany an application under this Part;

    (b) prescribing the process of review in relation to applications under this Part, which may include the following stages, namely, preliminary assessment, investigation, reporting on investigation and decision; and

    (c) respecting the form and content of the annual report under section 696.5.

82. Section 715 of the Act is amended by adding the following after subsection (3):

Exception

(4) Subsections (1) to (3) do not apply in respect of evidence received under subsection 540(7).

1995, c. 22, s. 6

83. Section 731.1 of the Act is replaced by the following:

Firearm, etc., prohibitions

731.1 (1) Before making a probation order, the court shall consider whether section 109 or 110 is applicable.

Application of section 109 or 110

(2) For greater certainty, a condition of a probation order referred to in paragraph 732.1(3)(d) does not affect the operation of section 109 or 110 .

1995, c. 22, s. 6

84. Section 734.3 of the Act is replaced by the following:

Change in terms of order

734.3 A court that makes an order under section 734.1, or a person designated either by name or by title of office by that court, may, on application by or on behalf of the offender, subject to any rules made by the court under section 482 or 482.1 , change any term of the order except the amount of the fine, and any reference in this section and sections 734, 734.1, 734.2 and 734.6 to an order shall be read as including a reference to the order as changed under this section.

1995, c. 22, s. 6

85. Section 742.2 of the Act is replaced by the following:

Firearm, etc., prohibitions

742.2 (1) Before imposing a conditional sentence under section 742.1, the court shall consider whether section 109 or 110 is applicable.

Application of section 109 or 110

(2) For greater certainty, a condition of a conditional sentence referred to in paragraph 742.3(2)(b) does not affect the operation of section 109 or 110 .

1997, c. 17, s. 4

86. Paragraph 753.1(2)(a) of the Act is replaced by the following:

    (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), subsection 163.1(3) (distribution, etc., of child pornography), subsection 163.1(4) (possession of child pornography), subsection 163.1(4.1) (accessing child pornography), section 172.1 (luring a child) , subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

87. The Act is amended by adding the following after section 774:

Appearance in person - habeas corpus

774.1 Despite any other provision of this Act, the person who is the subject of a writ of habeas corpus must appear personally in court.

1999, c. 25, s. 23

88. Paragraph (b) of the definition ``sentence'' in section 785 of the Act is replaced by the following:

      (b) an order made under subsection 109(1) , 110(1) or 259(1) or (2), section 261, subsection 730(1) or 737(3) or (5) or section 738, 739, 742.1 or 742.3,

89. The Act is amended by adding the following after section 802:

Limitation on the use of agents

802.1 Despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province.

1997, c. 23, s. 19

90. (1) Subsection 810.01(2) of the Act is replaced by the following:

Appearances

(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge.

1997, c. 23, s. 19

(2) Subsection 810.01(6) of the Act is replaced by the following:

Variance of conditions

(6) A provincial court judge may, on application of the informant, the Attorney General or the defendant, vary the conditions fixed in the recognizance.

1993, c. 45, s. 11; 1997, c. 18, s. 113(1)(F)

91. (1) Subsections 810.1(1) to (3) of the Act are replaced by the following:

Where fear of sexual offence

810.1 (1) Any person who fears on reasonable grounds that another person will commit an offence under section 151, 152, 155 or 159, subsection 160(2) or (3), section 163.1 , 170, 171 or 172.1 , subsection 173(2) or section 271, 272 or 273, in respect of one or more persons who are under the age of fourteen years, may lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named.

Appearances

(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge.

Adjudication

(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.

1993, c. 45, s. 11

(2) Subsection 810.1(4) of the Act is replaced by the following:

Judge may vary recognizance

(4) A provincial court judge may, on application of the informant or the defendant, vary the conditions fixed in the recognizance.

1997, c. 17, s. 9(1)

92. (1) Subsection 810.2(2) of the Act is replaced by the following:

Appearances

(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge.

1997, c. 17, s. 9(1)

(2) Subsection 810.2(7) of the Act is replaced by the following:

Variance of conditions

(7) A provincial court judge may, on application of the informant, of the Attorney General or of the defendant, vary the conditions fixed in the recognizance.

93. Subsection 822(4) of the Act is replaced by the following:

Trial de novo

(4) Despite subsections (1) to (3), if an appeal is taken under section 813 and because of the condition of the record of the trial in the summary conviction court or for any other reason, the appeal court, on application of the defendant, the informant, the Attorney General or the Attorney General's agent, is of the opinion that the interests of justice would be better served by hearing and determining the appeal by holding a trial de novo, the appeal court may order that the appeal shall be heard by way of trial de novo in accordance with any rules that may be made under section 482 or 482.1 , and for that purpose the provisions of sections 793 to 809 apply, with any modifications that the circumstances require.

R.S., c. 31 (4th Supp.), s. 97

94. Section 841 of the Act and the headings before it are replaced by the following:

PART XXVIII

MISCELLANEOUS

Electronic Documents

Definitions

841. The definitions in this section apply in this section and in sections 842 to 847.

``data''
« données »

``data'' means representations of information or concepts, in any form.

``electronic document''
« document électroni-
que »

``electronic document'' means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, print-out or other output of the data and any document, record, order, exhibit, notice or form that contains the data.

Dealing with data in court

842. Despite anything in this Act, a court may create, collect, receive, store, transfer, distribute, publish or otherwise deal with electronic documents if it does so in accordance with an Act or with the rules of court.

Transfer of data

843. (1) Despite anything in this Act, a court may accept the transfer of data by electronic means if the transfer is made in accordance with the laws of the place where the transfer originates or the laws of the place where the data is received.

Time of filing

(2) If a document is required to be filed in a court and the filing is done by transfer of data by electronic means, the filing is complete when the transfer is accepted by the court.

Documents in writing

844. A requirement under this Act that a document be made in writing is satisfied by the making of the document in electronic form in accordance with an Act or the rules of court.

Signatures

845. If this Act requires a document to be signed, the court may accept a signature in an electronic document if the signature is made in accordance with an Act or the rules of court.

Oaths

846. If under this Act an information, an affidavit or a solemn declaration or a statement under oath or solemn affirmation is to be made by a person, the court may accept it in the form of an electronic document if

    (a) the person states in the electronic document that all matters contained in the information, affidavit, solemn declaration or statement are true to his or her knowledge and belief;

    (b) the person before whom it is made or sworn is authorized to take or receive informations, affidavits, solemn declarations or statements and he or she states in the electronic document that the information, affidavit, solemn declaration or statement was made under oath, solemn declaration or solemn affirmation, as the case may be; and

    (c) the electronic document was made in accordance with the laws of the place where it was made.

Copies

847. Any person who is entitled to obtain a copy of a document from a court is entitled, in the case of a document in electronic form, to obtain a printed copy of the electronic document from the court on payment of a reasonable fee determined in accordance with a tariff of fees fixed or approved by the Attorney General of the relevant province.