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Bill S-213

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First Reading

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SUMMARY
Criminal Code
EXPLANATORY NOTES

First Session, Forty-fourth Parliament,

70 Elizabeth II, 2021

SENATE OF CANADA

BILL S-213
An Act to amend the Criminal Code (independence of the judiciary)

FIRST READING, November 24, 2021

THE HONOURABLE SENATOR Jaffer

4411710

SUMMARY

This enactment amends the Criminal Code to give a court the discretion to vary the punishment to be imposed in respect of an offence for which the punishment — or different degrees or kinds of punishment — is prescribed in an enactment.

It allows a court to decide to not make a mandatory prohibition order provided for under a provision of that Act — or to add conditions or vary any of the conditions set out in that provision — if the court considers it just and reasonable to do so. It requires the court to provide its reasons for making such a decision.

It requires a court to consider all available options prior to imposing a minimum punishment of imprisonment or period of parole ineligibility under a provision of any Act of Parliament, and to provide written reasons for imposing a minimum punishment of imprisonment or period of parole ineligibility.

It gives a court discretion in the treatment or counselling program that a person who has been found guilty of an offence may attend and removes the requirement for the Attorney General to give his or her consent in order to delay sentencing under subsection 720(2) of that Act.

It provides that a judge is to take into consideration the recommendation of the jury in setting the period of parole ineligibility for a person who has been found guilty of first or second degree murder.

Available on the Senate of Canada website at the following address:

www.sencanada.ca/en

1st Session, 44th Parliament,

70 Elizabeth II, 2021

SENATE OF CANADA

BILL S-213

An Act to amend the Criminal Code (independence of the judiciary)

Preamble

Whereas it is a fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the person being sentenced;

Whereas, without the possibility of judicial discretion to depart from a minimum punishment, a disproportionate sentence may result;

Whereas a disproportionate sentence has the potential to exacerbate inequality, including in contravention of the equality rights under section 15 of the Canadian Charter of Rights and Freedoms;

Whereas judicial discretion to depart from a minimum punishment is necessary to prevent a miscarriage of justice — including, but not limited to a wrongful guilty plea — and to ensure a just and appropriate sentence;

Whereas judicial discretion to depart from a minimum punishment is especially necessary when sentencing women who may face unique pressures to plead guilty, particularly those whose criminalization is a response to violent victimization;

Whereas judicial discretion to depart from a minimum punishment is necessary to prevent exacerbating the systemic over-incarceration of Indigenous Peoples and to give effect to paragraph 718.‍2(e) of the Criminal Code;

Whereas judicial discretion to depart from a minimum punishment is necessary to craft proportionate sentences for individuals with mental disabilities who are vastly overrepresented in Canadian prisons;

And whereas disproportionate sentences undermine public confidence in the administration of justice;

Now, therefore, 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

Criminal Code

1 Subsections 718.‍3(1) and (2) of the Criminal Code are replaced by the following:

Degrees of punishment

718.‍3 (1) Insertion start If Insertion end an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, Insertion start despite Insertion end the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

Discretion respecting punishment

(2) Insertion start If Insertion end an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, Insertion start despite Insertion end the limitations prescribed in the enactment, Insertion start including a Insertion end punishment declared to be a minimum punishment, in the discretion of the court that convicts a person who commits the offence.

2 The Act is amended by adding the following after section 718.‍3:

Change to mandatory prohibition order

718.‍4 (1) If a court is required to make a prohibition order under a provision of this Act, it may decide to not make that order, add conditions or vary any of the conditions set out in that provision, including the period of the prohibition, if the court considers it just and reasonable to do so.

Reasons

(2) The court shall include in the record a statement of the reasons for making a decision under subsection (1).

Minimum punishment or parole ineligibility

718.‍5 (1) A court shall, prior to imposing a minimum punishment of imprisonment or period of parole ineligibility under a provision of this Act or any other Act of Parliament,

(a) consider all available options, other than the minimum punishment of imprisonment or period of parole ineligibility; and
(b) determine that there is no alternative to the minimum punishment of imprisonment or period of parole ineligibility that is just and reasonable.
End of inserted block

Written reasons

(2) The court shall provide written reasons for imposing a minimum punishment of imprisonment or period of parole ineligibility under a provision of this Act or any other Act of Parliament.

3 Subsection 720(2) of the Act is replaced by the following:

Court-supervised programs

(2) The court may, with the consent of the Insertion start person who has been found guilty Insertion end and after considering the interests of justice and of any victim of the offence, delay sentencing to enable the Insertion start person who has been found guilty Insertion end to attend, under the supervision of the court, a treatment or counselling program Insertion start that the court considers appropriate in the circumstances Insertion end .

4 Section 745.‍2 Act is replaced by the following:

Recommendation by jury

745.‍2 Subject to section 745.‍3, Insertion start if Insertion end a jury finds an accused guilty of Insertion start first degree murder or Insertion end second degree murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty of Insertion start first degree murder (or Insertion end second degree murder Insertion start ) Insertion end 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 number of years 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 whether I should substitute Insertion start for the twenty-five–year period (or Insertion end for the ten-year period Insertion start ) Insertion end , which the law would otherwise require the accused to serve before the accused is eligible to be considered for release on parole, Insertion start another period of time Insertion end .

Published under authority of the Senate of Canada

EXPLANATORY NOTES

Criminal Code

Clause 1: Existing text of subsections 718.‍3(1) and (2):

718.‍3 (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.

Clause 2: New.

Clause 3: Existing text of subsection 720(2):

(2) The court may, with the consent of the Attorney General and the offender and after considering the interests of justice and of any victim of the offence, delay sentencing to enable the offender to attend a treatment program approved by the province under the supervision of the court, such as an addiction treatment program or a domestic violence counselling program.

Clause 4: Existing text of section 745.‍2:

745.‍2 Subject to section 745.‍3, where a jury finds an accused guilty of second degree murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty of 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 number of years 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 whether I should substitute for the ten year period, which the law would otherwise require the accused to serve before the accused is eligible to be considered for release on parole, a number of years that is more than ten but not more than twenty-five.