2002, c. 13,
s. 7
|
(3) Subsection 164.1(7) of the Act is
replaced by the following:
|
|
Return of
material
|
(7) If the court is not satisfied that the
material is child pornography within the
meaning of section 163.1, is a voyeuristic
recording within the meaning assigned by
subsection 164(8) or is data within the
meaning of subsection 342.1(2) that makes
child pornography or the voyeuristic
recording available, the court shall order that
the electronic copy be returned to the
custodian and terminate the order under
paragraph (1)(b).
|
|
|
10. Paragraph (a) of the definition
``offence'' in section 183 of the Act is
amended by adding the following after
subparagraph (xxvii):
|
|
|
|
|
|
11. Subsection 215(3) of the Act is
replaced by the following:
|
|
Punishment
|
(3) Every one who commits an offence
under subsection (2)
|
|
|
|
|
|
|
|
|
12. Section 218 of the Act is replaced by
the following:
|
|
Abandoning
child
|
218. Every one who unlawfully abandons or
exposes a child who is under the age of ten
years, so that its life is or is likely to be
endangered or its health is or is likely to be
permanently injured,
|
|
|
|
|
|
|
|
1992, c. 38,
s. 2
|
13. Subsection 276.3(1) of the Act is
replaced by the following:
|
|
Publication
prohibited
|
276.3 (1) No person shall publish in any
document, or broadcast or transmit in any
way, any of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1997, c. 30,
s. 1
|
14. The portion of subsection 278.9(1) of
the Act before paragraph (a) is replaced by
the following:
|
|
Publication
prohibited
|
278.9 (1) No person shall publish in any
document, or broadcast or transmit in any
way, any of the following:
|
|
R.S., c. 27 (1st
Supp.), s. 203,
c. 19 (3rd
Supp.),
s. 14(2), c. 23
(4th Supp.),
s. 1; 1993,
c. 45, s. 7(1);
1997, c. 16,
s. 6(4); 1999,
c. 25, s. 2;
2001, c. 32,
ss. 29(1), (2),
(4) and (5),
c. 41, ss. 34
and 133(13)
and (14);
2002, c. 13,
s. 20
|
15. Section 486 of the Act is replaced by
the following:
|
|
Exclusion of
public in
certain cases
|
486. (1) Any proceedings against an
accused shall be held in open court, but the
presiding judge or justice may order the
exclusion of all or any members of the public
from the court room for all or part of the
proceedings, if the judge or justice is of the
opinion that such an order is in the interest of
public morals, the maintenance of order or the
proper administration of justice or is
necessary to prevent injury to international
relations or national defence or national
security.
|
|
Protection of
child
witnesses and
justice system
participants
|
(2) For the purposes of subsection (1), the
``proper administration of justice'' includes
ensuring
|
|
|
|
|
|
|
|
Reasons to be
stated
|
(3) If an accused is charged with an offence
referred to in section 274 and the prosecutor or
the accused applies for an order under
subsection (1), the judge or justice shall, if no
such order is made, state, by reference to the
circumstances of the case, the reason for not
making an order.
|
|
Support
person -
witnesses
under 18 or
who have a
disability
|
486.1 (1) In any proceedings against an
accused, the presiding judge or justice shall,
on application of the prosecutor, of a witness
who is under the age of eighteen years or of a
witness who has a mental or physical
disability, order that a support person of the
witness' choice be permitted to be present and
to be close to the witness while the witness
testifies, unless the judge or justice is of the
opinion that the order would interfere with the
proper administration of justice.
|
|
Other
witnesses
|
(2) In any proceedings against an accused,
the presiding judge or justice may, on
application of the prosecutor or a witness,
order that a support person of the witness'
choice be permitted to be present and to be
close to the witness while the witness testifies,
if the judge or justice is of the opinion that the
order is necessary to obtain a full and candid
account from the witness of the acts
complained of.
|
|
Factors to be
considered
|
(3) In making a determination under
subsection (2), the judge or justice shall take
into account the age of the witness, whether
the witness has a mental or physical disability,
the nature of the offence, the nature of any
relationship between the witness and the
accused, and any other circumstances that the
judge or justice considers relevant.
|
|
Witness not to
be a support
person
|
(4) The judge or justice shall not permit a
witness to be a support person unless the judge
or justice is of the opinion that doing so is
necessary for the proper administration of
justice.
|
|
No
communicatio
n while
testifying
|
(5) The judge or justice may order that the
support person and the witness not
communicate with each other while the
witness testifies.
|
|
No adverse
inference
|
(6) No inference adverse to the accused may
be drawn from the fact that an order is, or is
not, made under this section.
|
|
Testimony
outside court
room -
witnesses
under 18 or
who have a
disability
|
486.2 (1) Despite section 650, in any
proceedings against an accused, the presiding
judge or justice shall, on application of the
prosecutor, of a witness who is under the age
of eighteen years or of a witness who is able to
communicate evidence but may have
difficulty doing so by reason of a mental or
physical disability, order that the witness
testify outside the court room or behind a
screen or other device that would allow the
witness not to see the accused, unless the
judge or justice is of the opinion that the order
would interfere with the proper administration
of justice.
|
|
Other
witnesses
|
(2) Despite section 650, in any proceedings
against an accused, the presiding judge or
justice may, on application of the prosecutor
or a witness, order that the witness testify
outside the court room or behind a screen or
other device that would allow the witness not
to see the accused, if the judge or justice is of
the opinion that the order is necessary to
obtain a full and candid account from the
witness of the acts complained of.
|
|
Factors to be
considered
|
(3) In making a determination under
subsection (2), the judge or justice shall take
into account the factors referred to in
subsection 486.1(3).
|
|
Specific
offences
|
(4) Despite section 650, if an accused is
charged with an offence referred to in
subsection (5), the presiding judge or justice
may order that any witness testify
|
|
|
|
|
|
|
|
Offences
|
(5) The offences for the purposes of
subsection (4) are
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Same
procedure for
determina- tion
|
(6) If the judge or justice is of the opinion
that it is necessary for a witness to testify in
order to determine whether an order under
subsection (2) or (4) should be made in respect
of that witness, the judge or justice shall order
that the witness testify in accordance with that
subsection.
|
|
Conditions of
exclusion
|
(7) A witness shall not testify outside the
court room under subsection (1), (2), (4) or (6)
unless arrangements are made for the accused,
the judge or justice and the jury to watch the
testimony of the witness by means of
closed-circuit television or otherwise and the
accused is permitted to communicate with
counsel while watching the testimony.
|
|
No adverse
inference
|
(8) No inference adverse to the accused may
be drawn from the fact that an order is, or is
not, made under this section.
|
|
Accused not
to
cross-examine
witness under
18
|
486.3 (1) In any proceedings against an
accused, if an application is made by the
prosecutor or a witness who is under eighteen
years of age, the accused shall not personally
cross-examine the witness, unless the
presiding judge or justice is of the opinion that
the proper administration of justice requires
the accused to personally conduct the
cross-examination. The judge or justice shall
appoint counsel for the purpose of conducting
the cross-examination if the accused is not
personally conducting the cross-examination.
|
|
Other
witnesses
|
(2) In any proceedings against an accused,
if an application is made by the prosecutor or
a witness, the accused shall not personally
cross-examine the witness if the presiding
judge or justice is of the opinion that, in order
to obtain a full and candid account from the
witness of the acts complained of, the accused
should not personally cross-examine the
witness. The judge or justice shall appoint
counsel for the purpose of conducting the
cross-examination if the accused is not
personally conducting the cross-examination.
|
|
Factors to be
considered
|
(3) In making a determination under
subsection (2), the judge or justice shall take
into account the factors referred to in
subsection 486.1(3).
|
|
Victim of
criminal
harassment
|
(4) In any proceedings in respect of an
offence under section 264, if an application is
made by the prosecutor or the victim of the
offence, the accused shall not personally
cross-examine the victim, unless the presiding
judge or justice is of the opinion that the
proper administration of justice requires the
accused to personally conduct the
cross-examination. The judge or justice shall
appoint counsel for the purpose of conducting
the cross-examination if the accused is not
personally conducting the cross-examination.
|
|
Order
restricting
publication -
sexual
offences
|
486.4 (1) Subject to subsection (2), the
presiding judge or justice may make an order
directing that any information that could
identify the complainant or a witness shall not
be published in any document or broadcast or
transmitted in any way, in proceedings in
respect of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mandatory
order on
application
|
(2) In proceedings in respect of the offences
referred to in paragraph (1)(a) or (b), the
presiding judge or justice shall
|
|
|
|
|
|
|
|
Child
pornography
|
(3) In proceedings in respect of an offence
under section 163.1, a judge or justice shall
make an order directing that any information
that could identify a witness who is under the
age of eighteen years, and any person who is
depicted in a photographic, film, video or
other visual representation that constitutes
child pornography, shall not be published in
any document or broadcast or transmitted in
any way.
|
|
Limitation
|
(4) An order made under subsection (1), (2)
or (3) does not apply in respect of the
disclosure of information in the course of the
administration of justice when it is not the
purpose of the disclosure to make the
information known in the community.
|
|
Order
restricting
publication -
victims and
witnesses
|
486.5 (1) In proceedings in respect of an
offence other than the offences referred to in
paragraph 486.4(1)(a) or (b), on application of
the prosecutor, a victim or a witness, a judge
or justice may make an order directing that
any information that could identify the victim
or witness shall not be published in any
document or broadcast or transmitted in any
way, if the judge or justice is satisfied that the
order is necessary for the proper
administration of justice.
|
|
Justice system
participants
|
(2) On application of a justice system
participant who is involved in proceedings in
respect of an offence referred to in subsection
486.2(5) or of the prosecutor in those
proceedings, a judge or justice may make an
order directing that any information that could
identify the justice system participant shall
not be published in any document or broadcast
or transmitted in any way, if the judge or
justice is satisfied that the order is necessary
for the proper administration of justice.
|
|
Order
restricting
publication
|
(3) An order made under subsection (1) or
(2) does not apply in respect of the disclosure
of information in the course of the
administration of justice if it is not the purpose
of the disclosure to make the information
known in the community.
|
|
Application
and notice
|
(4) An applicant for an order under
subsection (1) or (2) shall
|
|
|
|
|
|
|
|
Grounds
|
(5) An applicant for an order under
subsection (1) or (2) shall set out the grounds
on which the applicant relies to establish that
the order is necessary for the proper
administration of justice.
|
|
Hearing may
be held
|
(6) The judge or justice may hold a hearing
to determine whether an order under
subsection (1) or (2) should be made, and the
hearing may be in private.
|
|
Factors to be
considered
|
(7) In determining whether to make an order
under subsection (1) or (2), the judge or justice
shall consider
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|