RECOMMENDATION

Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ``An Act to amend the Criminal Code and to amend other Acts''.

SUMMARY

This enactment amends the Criminal Code by

    (a) adding offences and other measures that provide additional protection to children from sexual exploitation, including sexual exploitation involving use of the Internet;

    (b) increasing the maximum penalty for criminal harassment;

    (c) making home invasions an aggravating circumstance for sentencing purposes;

    (d) creating an offence of disarming, or attempting to disarm, a peace officer;

    (e) codifying and clarifying the review process for applications to the Minister of Justice with respect to allegations of miscarriage of justice; and

    (f) reforming and modernizing criminal procedure with respect to

      (i) procedural aspects of preliminary inquiries,

      (ii) the disclosure of expert evidence,

      (iii) rules of court in relation to case management and preliminary inquiries,

      (iv) electronic documents and remote appearances,

      (v) a plea comprehension inquiry scheme,

      (vi) private prosecutions,

      (vii) the selection of alternate jurors, and

      (viii) restriction on the use of agents.

This enactment also amends the following Acts:

    (a) the National Capital Act, by increasing the maximum fine available; and

    (b) the National Defence Act, by providing for fingerprinting.

EXPLANATORY NOTES

Criminal Code

Clause 2: New.

Clause 3: (1) The relevant portion of subsection 7(2.31) reads as follows:

(2.31) Despite anything in this Act or any other Act, a crew member of a Partner State who commits an act or omission outside Canada during a space flight on, or in relation to, a flight element of the Space Station or on any means of transportation to and from the Space Station that if committed in Canada would constitute an indictable offence is deemed to have committed that act or omission in Canada, if that act or omission

    . . .

    (b) is committed on, or in relation to, a flight element provided by Canada or damages a Canadian flight element.

(2) Subsections 7(4.2) and (4.3) read as follows:

(4.2) Proceedings with respect to an act or omission that if committed in Canada would be an offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 163.1, 170, 171 or 173 shall be instituted in Canada only if a request to that effect to the Minister of Justice of Canada is made by

    (a) any consular officer or diplomatic agent accredited to Canada by the state where the offence has been committed; or

    (b) any minister of that state communicating with the Minister through the diplomatic representative of Canada accredited to that state.

(4.3) Proceedings referred to in subsection (4.2) may only be instituted with the consent of the Attorney General.

Clause 4: (1) and (2) Paragraph 161(1)(c) is new. The relevant portion of subsection 161(1) reads as follows:

161. (1) Where an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence under section 151, 152, 155 or 159, subsection 160(2) or (3) or section 170, 171, 271, 272, 273 or 281, in respect of a person who is under the age of fourteen years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

Clause 5: (1) The relevant portion of subsection 163.1(1) reads as follows:

163.1 (1) In this section, ``child pornography'' means

    (a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(2) The relevant portion of subsection 163.1(3) reads as follows:

(3) Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography is guilty of

(3) New.

Clause 6: Subsection 164(4) reads as follows:

(4) If the court is satisfied that the publication, representation or written material referred to in subsection (1) is obscene, a crime comic or child pornography, it shall 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.

Clause 7: New.

Clause 8: New.

Clause 9: The definition ``child'' in section 214 reads as follows:

``child'' includes an adopted child and an illegitimate child;

Clause 10: The relevant portion of subsection 264(3) reads as follows:

(3) Every person who contravenes this section is guilty of

    (a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

Clause 11: The relevant portion of subsection 264.1(1) reads as follows:

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

    . . .

    (c) to kill, poison or injure an animal or bird that is the property of any person.

Clause 12: New.

Clause 13: Sections 274 and 275 read as follows:

274. Where an accused is charged with an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 212, 271, 272 or 273, no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.

275. The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under sections 151, 152, 153, 155 and 159, subsections 160(2) and (3), and sections 170, 171, 172, 173, 271, 272 and 273.

Clause 14: The relevant portion of subsection 276(1) reads as follows:

276. (1) In proceedings in respect of an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

Clause 15: Section 277 reads as follows:

277. In proceedings in respect of an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.

Clause 16: New.

Clause 17: Section 462.47 reads as follows:

462.47 For greater certainty but subject to section 241 of the Income Tax Act, a person is justified in disclosing to a peace officer or the Attorney General any facts on the basis of which that person reasonably suspects that any property is proceeds of crime or that any person has committed or is about to commit an enterprise crime offence or a designated substance offence.

Clause 18: (1) Subsection 482(2) reads as follows:

(2) Every court of criminal jurisdiction for a province and every appeal court within the meaning of section 812 that is not a court referred to in subsection (1) may, subject to the approval of the lieutenant governor in council of the province, make rules of court not inconsistent with this Act or any other Act of Parliament, and any rules so made apply to any prosecution, proceeding, action or appeal, as the case may be, within the jurisdiction of that court, instituted in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding, action or appeal.

(2) The relevant portion of subsection 482(3) reads as follows:

(3) Rules under subsection (1) or (2) may be made

    . . .

    (c) to regulate in criminal matters the pleading, practice and procedure in the court including pre-hearing conferences held pursuant to section 625.1 and proceedings with respect to judicial interim release and, in the case of rules under subsection (1), proceedings with respect to mandamus, certiorari, habeas corpus, prohibition and procedendo and proceedings on an appeal under section 830; and

Clause 19: New.

Clause 20: Subsection 485(1.1) reads as follows:

(1.1) Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally, so long as paragraph 537(1)(j) or subsection 650(1.1) applies and the accused is to appear by counsel.

Clause 21: Subsection 486(2.1) reads as follows:

(2.1) Notwithstanding section 650, where an accused is charged with an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 163.1, 170, 171, 172, 173, 210, 211, 212, 213, 266, 267, 268, 271, 272 or 273 and the complainant or any witness, at the time of the trial or preliminary inquiry, is under the age of eighteen years or is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, the presiding judge or justice, as the case may be, may order that the complainant or witness testify outside the court room or behind a screen or other device that would allow the complainant or witness not to see the accused, if the judge or justice is of the opinion that the exclusion is necessary to obtain a full and candid account of the acts complained of from the complainant or witness.

Clause 22: The relevant portion of subsection 507(1) reads as follows:

507. (1) Subject to subsection 523(1.1), a justice who receives an information, other than an information laid before the justice under section 505, shall, except where an accused has already been arrested with or without a warrant,

Clause 23: New.

Clause 24: The relevant portion of subsection 515(4.1) reads as follows:

(4.1) When making an order under subsection (2), in the case of an accused who is charged with

    . . .

    (c) an offence relating to the contravention of subsection 5(3) or (4), 6(3) or 7(2) of the Controlled Drugs and Substances Act, or

    . . .

the justice shall add to the order a condition prohibiting the accused from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all those 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 the safety and security of a victim of the offence or of any other person.

Clause 25: The relevant portion of section 529.1 reads as follows:

529.1 A judge or justice may issue a warrant in Form 7.1 authorizing a peace officer to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending a person identified or identifiable by the warrant if the judge or justice is satisfied by information on oath that there are reasonable grounds to believe that the person is or will be present in the dwelling-house and that

    . . .

    (b) grounds exist to arrest the person without warrant under paragraph 495(1)(a) or (b); or

Clause 26: Section 535 reads as follows:

535. Where an accused who is charged with an indictable offence is before a justice, the justice shall, in accordance with this Part, inquire into that charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

Clause 27: (1) Subsection 536(2) reads as follows:

(2) Where an accused is before a justice charged with an offence, other than an offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553, the justice shall, after the information has been read to the accused, put the accused to his election in the following words:

    You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to have a preliminary inquiry and to be tried by a judge without a jury; or you may elect to have a preliminary inquiry and to be tried by a court composed of a judge and jury. If you do not elect now, you shall be deemed to have elected to have a preliminary inquiry and to be tried by a court composed of a judge and jury. How do you elect to be tried?

(2) Subsections 536(4.1) to (4.3) are new. Subsection 536(4) reads as follows:

(4) Where an accused elects to have a preliminary inquiry and to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to his election, the justice shall hold a preliminary inquiry into the charge and if the accused is ordered to stand trial, the justice shall endorse on the information and, where the accused is in custody, on the warrant of committal, a statement showing the nature of the election of the accused or that the accused did not elect, as the case may be.

Clause 28: Subsections 536.1(4.1) and (4.2) are new. Subsections 536.1(2) to (5) read as follows:

(2) If an accused is before a justice of the peace or a judge charged with an indictable offence, other than an offence mentioned in section 469 or 553, the justice of the peace or judge shall, after the information has been read to the accused, put the accused to an election in the following words:

You have the option to elect to be tried by a judge without a jury and without having had a preliminary inquiry; or you may elect to have a preliminary inquiry and to be tried by a judge without a jury; or you may elect to have a preliminary inquiry and to be tried by a court composed of a judge and jury. If you do not elect now, you shall be deemed to have elected to have a preliminary inquiry and to be tried by a court composed of a judge and jury. How do you elect to be tried?

(3) If an accused elects to be tried by a judge without a jury and without having had a preliminary inquiry, the justice of the peace or judge shall endorse on the information a record of the election and,

    (a) if the accused is before a justice of the peace, the justice of the peace shall remand the accused to appear and plead to the charge before a judge; or

    (b) if the accused is before a judge, the judge shall call on the accused to plead to the charge and if the accused does not plead guilty, proceed with the trial or fix a time for the trial.

(4) If an accused elects to have a preliminary inquiry and to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to an election, the justice of the peace or judge shall hold a preliminary inquiry into the charge and if the accused is ordered to stand trial, the justice of the peace or judge shall endorse on the information and, if the accused is in custody, on the warrant of committal, a statement showing the nature of the election of the accused or that the accused did not elect, as the case may be.

(5) If a justice of the peace before whom a preliminary inquiry is being or is to be held has not commenced to take evidence, any justice of the peace having jurisdiction in Nunavut has jurisdiction for the purposes of subsection (4).

Clause 29: New.

Clause 30: (1) and (2) Paragraph 537(1)(j.1) is new. The relevant portion of subsection 537(1) reads as follows:

537. (1) A justice acting under this Part may

    . . .

    (i) regulate the course of the inquiry in any way that appears to him to be desirable and that is not inconsistent with this Act;

(3) New.

Clause 31: (1) The relevant portion of subsection 540(1) reads as follows:

540. (1) Where an accused is before a justice holding a preliminary inquiry, the justice shall

    (a) take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross-examine them; and

(2) New.

Clause 32: Subsection 549(1.1) is new. Subsection 549(2) reads as follows:

(2) Where an accused is ordered to stand trial under subsection (1), the justice shall endorse on the information a statement of the consent of the accused and the prosecutor, and the accused shall thereafter be dealt with in all respects as if ordered to stand trial under section 548.

Clause 33: Subsection 554(2) reads as follows:

(2) With respect to criminal proceedings in Nunavut, if an accused is charged in an information with an indictable offence other than an offence that is mentioned in section 469, and the offence is not one over which a judge of the Nunavut Court of Justice has absolute jurisdiction under section 553, a judge of the Nunavut Court of Justice may try the accused if the accused elects to be tried by a judge without a jury and without having a preliminary inquiry.

Clause 34: The relevant portion of subsection 555(3) reads as follows:

(3) Where an accused is put to his election pursuant to subsection (2), the following provisions apply, namely,

    (a) if the accused elects to be tried by a judge without a jury or a court composed of a judge and jury or does not elect when put to his election, the provincial court judge shall continue the proceedings as a preliminary inquiry under Part XVIII and, if he orders the accused to stand trial, the provincial court judge shall comply with subsection 536(4); and

Clause 35: Subsections 555.1(3) and (4) read as follows:

(3) If an accused is put to an election under subsection (2) and the accused elects to have a preliminary inquiry and to be tried by a judge without a jury or a court composed of a judge and jury or does not elect when put to the election, the judge shall continue the proceedings as a preliminary inquiry under Part XVIII and, if the judge orders the accused to stand trial, the judge shall endorse on the information and, if the accused is in custody, on the warrant of committal, a statement showing the nature of the election of the accused or that the accused did not elect, as the case may be.

(4) If an accused is put to an election under subsection (2), and the accused elects to be tried by a judge without a jury and without having a preliminary inquiry, the judge shall endorse on the information a record of the election and continue with the trial.

Clause 36: (1) The relevant portion of subsection 556(2) reads as follows:

(2) Where an accused corporation does not appear pursuant to a summons and service of the summons on the corporation is proved, the provincial court judge, or in Nunavut, the judge of the Nunavut Court of Justice

    . . .

    (b) shall, if the charge is not one over which he has absolute jurisdiction, hold a preliminary inquiry in accordance with Part XVIII in the absence of the accused corporation.

(2) Subsection 556(4) is new. Subsection 556(3) reads as follows:

(3) If an accused corporation appears but does not elect when put to an election under subsection 536(2) or 536.1(2), the provincial court judge or judge of the Nunavut Court of Justice shall hold a preliminary inquiry in accordance with Part XVIII.

Clause 37: Section 557 reads as follows:

557. If an accused is tried by a provincial court judge or a judge of the Nunavut Court of Justice in accordance with this Part, the evidence of witnesses for the prosecutor and the accused shall be taken in accordance with the provisions of Part XVIII relating to preliminary inquiries.

Clause 38: The relevant portion of subsection 560(1) reads as follows:

560. (1) If an accused elects, under section 536 or 536.1 to have a preliminary inquiry and to be tried by a judge without a jury, a judge having jurisdiction shall,

Clause 39: Subsection 561(2) reads as follows:

(2) An accused who elects to be tried by a provincial court judge may, not later than fourteen days before the day first appointed for the trial, re-elect as of right another mode of trial, and may do so thereafter with the written consent of the prosecutor.

Clause 40: (1) Subsections 561.1(1) to (3) read as follows:

561.1 (1) An accused who has elected or is deemed to have elected a mode of trial may re-elect any other mode of trial at any time with the written consent of the prosecutor, except that an accused who has had a preliminary inquiry may not elect to be tried by a judge without a jury and without having had a preliminary inquiry.

(2) An accused who has elected to be tried by a judge without a jury and without a preliminary inquiry may, as of right, re-elect to be tried by any other mode of trial at any time up to 14 days before the day first appointed for the trial.

(3) An accused who has elected to be tried by a judge and jury or to have a preliminary inquiry and to be tried by a judge without jury may, as of right, re-elect to be tried by the other mode of trial at any time before the completion of the preliminary inquiry or before the fifteenth day following its completion.

(2) Subsections 561.1(5) to (7) read as follows:

(5) If an accused wishes to re-elect under subsection (1) to be tried by a judge without a jury and without having had a preliminary inquiry and a justice of the peace is presiding at the preliminary inquiry, the justice of the peace shall notify a judge or a clerk of the Nunavut Court of Justice of the accused's intention to re-elect and send to the judge or clerk the information and any promise to appear, undertaking or recognizance given or entered into in accordance with Part XVI, or any evidence taken before a coroner, that is in the possession of the justice of the peace.

(6) If an accused wishes to re-elect under subsection (1) or (3) after the completion of a preliminary inquiry or after having elected a trial by judge without a jury and without having had a preliminary inquiry, the accused shall give notice in writing of the wish to re-elect together with the written consent of the prosecutor, if that consent is required, to the judge before whom the accused appeared and pleaded or to a clerk of the Nunavut Court of Justice.

(7) If an accused wishes to re-elect under subsection (2), the accused shall give notice in writing of the wish to re-elect to the judge before whom the accused appeared and pleaded or to a clerk of the Nunavut Court of Justice.

Clause 41: Subsections 562.1(1) and (2) read as follows:

562.1 (1) If the accused re-elects under subsection 561.1(1) to be tried by a judge without a jury and without a preliminary inquiry, the judge shall proceed with the trial or appoint a time and place for the trial.

(2) If the accused re-elects under section 561.1 before the completion of the preliminary inquiry to be tried by judge and jury or to have a preliminary inquiry and to be tried by a judge without a jury, the justice of the peace or judge shall proceed with the preliminary inquiry.

Clause 42: The relevant portion of subsection 563.1(1) reads as follows:

563.1 (1) If an accused re-elects under section 561.1 to be tried by a judge without a jury and without having a preliminary inquiry,

Clause 43: Subsection 565(2) reads as follows:

(2) Where an accused is to be tried after an indictment has been preferred against the accused pursuant to a consent or order given under section 577, the accused shall, for the purposes of the provisions of this Part relating to election and re-election, be deemed to have elected to be tried by a court composed of a judge and jury and may, with the written consent of the prosecutor, re-elect to be tried by a judge without a jury.

Clause 44: Subsections 566.1(1) and (2) read as follows:

566.1 (1) The trial of an accused for an indictable offence, other than an indictable offence mentioned in section 553 or an offence in respect of which the accused has elected or re-elected to be tried by a judge without a jury without having had a preliminary inquiry, shall be on an indictment in writing setting forth the offence with which the accused is charged.

(2) If an accused elects under section 536.1 or re-elects under section 561.1 to have a preliminary inquiry and to be tried by a judge without a jury, an indictment in Form 4 may be preferred.

Clause 45: Sections 567 to 568 read as follows:

567. Notwithstanding any other provision of this Part, where two or more persons are charged with the same offence, unless all of them elect or re-elect or are deemed to have elected, as the case may be, the same mode of trial, the justice, provincial court judge or judge

    (a) may decline to record any election, re-election or deemed election for trial by a provincial court judge or a judge without a jury; and

    (b) if he declines to do so, shall hold a preliminary inquiry unless a preliminary inquiry has been held prior to the election, re-election or deemed election.

567.1 (1) Despite any other provision of this Part, if two or more persons are charged with the same indictable offence, unless all of them elect or re-elect or are deemed to have elected, as the case may be, the same mode of trial, the justice of the peace or judge

    (a) may decline to record any election, re-election or deemed election

      (i) for trial by a judge without a jury and without having a preliminary inquiry, or

      (ii) to have a preliminary inquiry and to be tried by a judge without a jury; and

    (b) if the justice of the peace or judge declines to do so, shall hold a preliminary inquiry unless a preliminary inquiry has been held prior to the election, re-election or deemed election.

(2) This section, and not section 567, applies in respect of criminal proceedings in Nunavut.

568. The Attorney General may, notwithstanding that an accused elects under section 536 or re-elects under section 561 to be tried by a judge or provincial court judge, as the case may be, require the accused to be tried by a court composed of a judge and jury, unless the alleged offence is one that is punishable with imprisonment for five years or less, and where the Attorney General so requires, a judge or provincial court judge has no jurisdiction to try the accused under this Part and a preliminary inquiry shall be held before a justice unless a preliminary inquiry has been held prior to the requirement by the Attorney General that the accused be tried by a court composed of a judge and jury.

Clause 46: Subsection 569(1) reads as follows:

569. (1) The Attorney General may, despite that an accused elects under section 536.1 or re-elects under section 561.1 to be tried by a judge without a jury and without having had a preliminary inquiry or to have a preliminary inquiry and to be tried by a judge without a jury, require the accused to be tried by a court composed of a judge and jury, unless the alleged offence is one that is punishable with imprisonment for five years or less, and if the Attorney General so requires, a judge has no jurisdiction to try the accused under this Part and a preliminary inquiry shall be held before a justice of the peace or a judge unless a preliminary inquiry has been held prior to the requirement by the Attorney General that the accused be tried by a court composed of a judge and jury.

Clause 47: Section 574 reads as follows:

574. (1) Subject to subsection (3) and section 577, the prosecutor may prefer an indictment against any person who has been ordered to stand trial in respect of

    (a) any charge on which that person was ordered to stand trial, or

    (b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial,

whether or not the charges were included in one information.

(2) An indictment preferred under subsection (1) may, if the accused consents, include any charge that is not referred to in paragraph (1)(a) or (b), and the offence charged may be dealt with, tried and determined and punished in all respects as if it were an offence in respect of which the accused had been ordered to stand trial, but if the offence was committed wholly in a province other than that in which the accused is before the court, subsection 478(3) applies.

(3) In any prosecution conducted by a prosecutor other than the Attorney General and in which the Attorney General does not intervene, an indictment shall not be preferred under subsection (1) before any court without the written order of a judge of that court.

Clause 48: Section 577 reads as follows:

577. In any prosecution,

    (a) where a preliminary inquiry has not been held, an indictment shall not be preferred, or

    (b) where a preliminary inquiry has been held and the accused has been discharged, an indictment shall not be preferred or a new information shall not be laid

before any court without,

    (c) where the prosecution is conducted by the Attorney General or the Attorney General intervenes in the prosecution, the personal consent in writing of the Attorney General or Deputy Attorney General, or

    (d) where the prosecution is conducted by a prosecutor other than the Attorney General and the Attorney General does not intervene in the prosecution, the written order of a judge of that court.

Clause 49: New.

Clause 50: Subsection 598(2) reads as follows:

(2) An accused who, pursuant to subsection (1), may not be tried by a court composed of a judge and jury is deemed to have elected under section 536 or 536.1 to be tried by a judge without a jury and section 561 or 561.1, as the case may be, does not apply in respect of the accused.

Clause 51: (1) and (2) New.

Clause 52: Subsection 625.1(2) reads as follows:

(2) In any case to be tried with a jury, a judge of the court before which the accused is to be tried shall, prior to the trial, order that a conference between the prosecutor and the accused or counsel for the accused, to be presided over by a judge of that court, be held in accordance with the rules of court made under section 482 to consider such matters as will promote a fair and expeditious trial.

Clause 53: New.

Clause 54: (1) New.

(2) Subsection 631(3) reads as follows:

(3) Where

    (a) the array of jurors is not challenged, or

    (b) the array of jurors is challenged but the judge does not direct a new panel to be returned,

the clerk of the court shall, in open court, draw out the cards referred to in subsection (1), one after another, and shall call out the name and number on each card as it is drawn, until the number of persons who have answered to their names is, in the opinion of the judge, sufficient to provide a full jury after allowing for orders to excuse, challenges and directions to stand by.

(3) Subsections 631(4) and (5) read as follows:

(4) The clerk of the court shall swear each member of the jury in the order in which the names of the jurors were drawn and shall swear any other person providing technical, personal, interpretative or other support services to a juror with a physical disability.

(5) Where the number of persons who answer to their names under subsection (3) is not sufficient to provide a full jury, the clerk of the court shall proceed in accordance with subsections (3) and (4) until twelve jurors are sworn.

Clause 55: The relevant portion of section 632 reads as follows:

632. The judge may, at any time before the commencement of a trial, order that any juror be excused from jury service, whether or not the juror has been called pursuant to subsection 631(3) or any challenge has been made in relation to the juror, for reasons of

    . . .

    (b) relationship with the judge, prosecutor, accused, counsel for the accused or a prospective witness; or

Clause 56: (1) The relevant portion of subsection 634(2) reads as follows:

(2) Subject to subsections (3) and (4), the prosecutor and the accused are each entitled to

(2) New.

Clause 57: Subsection 641(1) reads as follows:

641. (1) Where a full jury has not been sworn and no names remain to be called, the names of those who have been directed to stand by shall be called again in the order in which their names were drawn and they shall be sworn, unless excused by the judge or challenged by the accused or the prosecutor.

Clause 58: Subsection 642(1) reads as follows:

642. (1) Where a full jury cannot be provided notwithstanding that the relevant provisions of this Part have been complied with, the court may, at the request of the prosecutor, order the sheriff or other proper officer forthwith to summon as many persons, whether qualified jurors or not, as the court directs for the purpose of providing a full jury.

Clause 59: New.

Clause 60: Subsection 643(1.1) is new. Subsection 643(1) reads as follows:

643. (1) The twelve jurors whose names are drawn and who are sworn in accordance with this Part shall be the jury to try the issues of the indictment, and the names of the jurors so drawn and sworn shall be kept apart until the jury gives its verdict or until it is discharged, whereupon the names shall be returned to the box as often as occasion arises, as long as an issue remains to be tried before a jury.

Clause 61: Section 646 reads as follows:

646. On the trial of an accused for an indictable offence, the evidence of the witnesses for the prosecutor and the accused and the addresses of the prosecutor and the accused or counsel for the accused by way of summing up shall be taken in accordance with the provisions of Part XVIII relating to the taking of evidence at preliminary inquiries.

Clause 62: Subsection 650(1) reads as follows:

650. (1) Subject to subsections (1.1) and (2), an accused other than a corporation shall be present in court during the whole of the accused's trial.

Clause 63: New.

Clause 64: New.

Clause 65: The relevant portion of the definition ``sentence'' in section 673 reads as follows:

``sentence'' includes

      . . .

      (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), 730(1) or 737(3) or (5) or section 738, 739, 742.1, 742.3, 743.6, 745.4, 745.5 or *747.1,

Clause 66: Subsection 675(2.1) reads as follows:

(2.1) A person against whom an order under section 741.2 has been made may appeal to the court of appeal against the order.

Clause 67: Subsection 676(5) reads as follows:

(5) The Attorney General or counsel instructed by the Attorney General for the purpose may appeal to the court of appeal against the decision of the court not to make an order under section 741.2.

Clause 68: Subsection 679(7) reads as follows:

(7) Where, with respect to any person, the Minister of Justice gives a direction or makes a reference under section 690, this section applies to the release or detention of that person pending the hearing and determination of the reference as though that person were an appellant in an appeal described in paragraph (1)(a).

Clause 69: New.

Clause 70: New.

Clause 71: The relevant portion of section 689 reads as follows:

689. (1) Where the trial court makes an order for compensation or for the restitution of property under section 738 or 739 or an order of forfeiture of property under subsection 462.37(1), the operation of the order is suspended

Clause 72: Section 690 and the heading before it read as follows:

Powers of Minister of Justice

690. The Minister of Justice may, on an application for the mercy of the Crown by or on behalf of a person who has been convicted in proceedings by indictment or who has been sentenced to preventive detention under Part XXIV,

    (a) direct, by order in writing, a new trial or, in the case of a person under sentence of preventive detention, a new hearing, before any court that he thinks proper, if after inquiry he is satisfied that in the circumstances a new trial or hearing, as the case may be, should be directed;

    (b) 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 under sentence of preventive detention, as the case may be; or

    (c) refer to the court of appeal at any time, for its opinion, any question on which he desires the assistance of that court, and the court shall furnish its opinion accordingly.

Clause 73: New.

Clause 74: New.

Clause 75: Section 731.1 reads as follows:

731.1 (1) Before making a probation order, the court shall consider whether section 100 is applicable.

(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 100.

Clause 76: Section 734.3 reads as follows:

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, 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 pursuant to this section.

Clause 77: Section 742.2 reads as follows:

742.2 (1) Before imposing a conditional sentence under section 742.1, the court shall consider whether section 100 is applicable.

(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 100.

Clause 78: The relevant portion of subsection 753.1(2) reads as follows:

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if

    (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), 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

Clause 79: New.

Clause 80: The relevant portion of the definition ``sentence'' in section 785 reads as follows:

``sentence'' includes

      . . .

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

Clause 81: New.

Clause 82: (1) Subsection 810.01(2) reads as follows:

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

(2) Subsection 810.01(6) reads as follows:

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

Clause 83: (1) Subsections 810.1(1) to (3) read as follows:

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 170 or 171, 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.

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

(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 comply with the conditions fixed by the provincial court judge, including a condition prohibiting the defendant from engaging in any activity that involves contact with persons under the age of fourteen years and prohibiting 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, playground or community centre, for any period fixed by the provincial court judge that does not exceed twelve months.

(2) Subsection 810.1(4) reads as follows:

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

Clause 84: (1) Subsection 810.2(2) reads as follows:

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

(2) Subsection 810.2(7) reads as follows:

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

Clause 85: Subsection 822(4) reads as follows:

(4) Notwithstanding subsections (1) to (3), where an appeal is taken under section 813 and where, 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 his 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 such rules as may be made under section 482 and for this purpose the provisions of sections 793 to 809 apply with such modifications as the circumstances require.

Clause 86: Sections 842 to 849 are new. Section 841 and the headings before it read as follows:

PART XXVIII

FORMS

841. (1) The forms set out in this Part varied to suit the case or forms to the like effect shall be deemed to be good, valid and sufficient in the circumstances for which, respectively, they are provided.

(2) No justice is required to attach or affix a seal to any writing or process that he is authorized to issue and in respect of which a form is provided by this Part.

(3) Any pre-printed portions of a form set out in this Part varied to suit the case or of a form to the like effect shall be printed in both official languages.

Clause 87: The relevant portion of Form 7.1 of Part XXVIII reads as follows:

Whereas there are reasonable grounds to believe:*

    . . .

    (b) grounds exist to arrest the person without warrant under paragraph 495(1)(a) or (b) of the Criminal Code; or

    . . .

This warrant is issued to authorize you to enter the dwelling-house for the purpose of arresting or apprehending the person.

Clause 88: The relevant portion of Form 11.1 of Part XXVIII reads as follows:

FORM 11.1

(Sections 493, 499 and 503)

UNDERTAKING GIVEN TO A PEACE OFFICER OR AN OFFICER IN CHARGE

Canada,
Province of ....................,
(territorial division).

I, A.B., of ................, (occupation), understand that it is alleged that I have committed (set out substance of the offence).

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):

National Capital Act

Clause 89: Subsection 20(2) reads as follows:

(2) The Governor in Council may by regulation prescribe the punishment that may be imposed on summary conviction for the contravention of any regulation made under subsection (1), but the punishment so prescribed shall not exceed a fine of five hundred dollars or imprisonment for a term of six months or both.

National Defence Act

Clause 90: New.

Young Offenders Act

Clause 91: Subsection 19(5.1) reads as follows:

(5.1) Where a young person elects or is deemed to have elected to be tried by a judge of a superior court of criminal jurisdiction with a jury, the youth court shall conduct a preliminary inquiry and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be before a judge of the superior court of criminal jurisdiction with a jury.

Clause 92: (1) The relevant portion of subsection 19.1(4) reads as follows:

(4) If a young person is charged with having committed first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the youth court, before proceeding with the trial, shall ask the young person to elect

    (a) to be tried by a judge of the Nunavut Court of Justice alone, acting as a youth court, or

    . . .

and if a young person elects under paragraph (a) or (b), the young person shall be dealt with as provided in this Act.

(2) Subsection 19.1(6) reads as follows:

(6) If a young person elects or is deemed to have elected under paragraph (4)(b), a preliminary inquiry shall be held in the youth court and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be before a judge of the Nunavut Court of Justice, acting as a youth court, with a jury.