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Bill C-37

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Retention of Records

Retention of records

45.01 Where, before the expiration of the period referred to in paragraph 45(1)(e) or (f) or subparagraph 45(1)(g)(i) or (ii), the young person is found guilty of a subsequent offence as an adult, records kept pursuant to sections 40 to 43 shall be available for inspection under section 44.1 or 44.2 and the provisions applicable to criminal records of adults shall apply.

Special Records Repository

Special records repository

45.02 (1) The Commissioner of the Royal Canadian Mounted Police may establish a special records repository for records transferred pursuant to subsection 45(2.1).

Records relating to murder

(2) A record that relates to a conviction for the offence of first degree murder or second degree murder within the meaning of section 231 of the Criminal Code or an offence referred to in any of paragraphs 16(1.01)(b) to (d) may be kept indefinitely in the special records repository.

Records relating to other serious offences

(3) A record that relates to a conviction for an offence referred to in the schedule shall be kept in the special records repository for a period of five years and shall be destroyed forthwith at the expiration of that five year period, unless the young person to whom the record relates is subsequently found guilty of any offence referred to in the schedule, in which case the record shall be dealt with as the record of an adult.

Disclosure

(4) A record kept in the special records repository shall be made available for inspection to the following persons at the following times or in the following circumstances:

    (a) at any time, to the young person to whom the record relates and to counsel acting on behalf of the young person, or any representative of that counsel;

    (b) where the young person has subsequently been charged with the commission of first degree murder or second degree murder within the meaning of section 231 of the Criminal Code or an offence referred to in the schedule, to any peace officer for the purpose of investigating any offence that the young person is suspected of having committed, or in respect of which the young person has been arrested or charged, whether as a young person or as an adult;

    (c) where the young person has subsequently been convicted of an offence referred to in the schedule,

      (i) to the Attorney General or an agent of the Attorney General,

      (ii) to a parent of the young person or any adult assisting the young person,

      (iii) to any judge, court or review board, for any purpose relating to proceedings relating to the young person under this Act or to proceedings in ordinary court in respect of offences committed or alleged to have been committed by the young person, whether as a young person or as an adult, or

      (iv) to any member of a department or agency of a government in Canada, or any agent thereof, that is

        (A) engaged in the administration of alternative measures in respect of the young person,

        (B) preparing a report in respect of the young person pursuant to this Act or for the purpose of assisting a court in sentencing the young person after the young person becomes an adult or is transferred to ordinary court pursuant to section 16,

        (C) engaged in the supervision or care of the young person, whether as a young person or as an adult, or in the administration of a disposition or a sentence in respect of the young person, whether as a young person or as an adult, or

        (D) considering an application for parole or pardon made by the young person after the young person becomes an adult;

    (d) at any time, to any employee or agent of the Government of Canada, for statistical purposes pursuant to the Statistics Act; or

    (e) at any time, to any other person who is deemed, or any person within a class of persons that is deemed, by a youth court judge to have a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that the disclosure is desirable in the public interest for research or statistical purposes.

Special Fingerprints Repository

Special fingerprints repository

45.03 (1) The Commissioner of the Royal Canadian Mounted Police may establish a special fingerprints repository for fingerprints and any related information transferred pursuant to subsection 45(2.2).

Disclosure for identification purposes

(2) Fingerprints and any related information may be kept in the special fingerprints repository for a period of five years following the date of their receipt and, during that time, the name, date of birth and last known address of the young person to whom the fingerprints belong may be disclosed for identification purposes if a fingerprint identified as that of the young person is found during the investigation of a crime or during an attempt to identify a deceased person or a person suffering from amnesia.

Destruction

(3) Fingerprints and any related information in the special fingerprints repository shall be destroyed five years after the date of their receipt in the repository.

33. The Act is amended by adding the following before section 45.1:

Disclosure in Special Circumstances

R.S., c. 24 (2nd Supp.), s. 35

34. (1) The portion of subsection 45.1(1) of the Act before paragraph (a) is replaced by the following:

Where records may be made available

45.1 (1) Subject to subsection (1.1), a youth court judge may, on application by any person, order that any record to which subsection 45(1) applies, or any part thereof, be made available for inspection to that person or a copy of the record or part thereof be given to that person, if a youth court judge is satisfied that

R.S., c. 24 (2nd Supp.), s. 35

(2) Subsection 45.1(2) of the Act is replaced by the following:

Records

(1.1) Subsection (1) applies in respect of any record relating to a particular young person or to any record relating to a class of young persons where the identity of young persons in the class at the time of the making of the application referred to in that subsection cannot reasonably be ascertained and the disclosure of the record is necessary for the purpose of investigating any offence that a person is suspected on reasonable grounds of having committed against a young person while the young person is, or was, serving a disposition.

Notice

(2) Subject to subsection (2.1), an application under subsection (1) in respect of a record shall not be heard unless the person who makes the application has given the young person to whom the record relates and the person or body that has possession of the record at least five days notice in writing of the application and the young person and the person or body that has possession has had a reasonable opportunity to be heard.

Where notice not required

(2.1) A youth court judge may waive the requirement in subsection (2) to give notice to a young person where the youth court is of the opinion that

    (a) to insist on the giving of the notice would frustrate the application; or

    (b) reasonable efforts have not been successful in finding the young person.

35. (1) The portion of subsection 56(2) of the Act before paragraph (a) is replaced by the following:

When statements are admissible

(2) No oral or written statement given by a young person to a peace officer or to any other person who is, in law, a person in authority on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless

(2) Subparagraphs 56(2)(b)(iii) and (iv) of the Act are replaced by the following:

      (iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and

      (iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;

(3) Paragraph 56(2)(c) of the Act is replaced by the following:

    (c) the young person has, before the statement was made, been given a reasonable opportunity to consult

      (i) with counsel, and

      (ii) a parent, or in the absence of a parent, an adult relative, or in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person; and

(4) Subsection 56(4) of the Act is replaced by the following:

Waiver of right to consult

(4) A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver shall be videotaped or be in writing, and where it is in writing it shall contain a statement signed by the young person that the young person has been apprised of the right being waived.

(5) Section 56 of the Act is amended by adding the following after subsection (5):

Misrepresenta tion of age

(5.1) A youth court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person where, at the time of the making of the statement or waiver,

    (a) the young person held himself or herself to be eighteen years of age or older;

    (b) the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years of age or older; and

    (c) in all other circumstances the statement or waiver would otherwise be admissible.

36. The Act is amended by adding the schedule set out in the schedule to this Act.

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

CRIMINAL CODE

1992, c. 11, s. 14

37. (1) Subsection 741.1(1) of the Criminal Code is replaced by the following:

Transfer of jurisdiction

741.1 (1) Where a person is or has been sentenced for an offence while subject to a disposition made under paragraph 20(1)(j), (k) or (k.1) of the Young Offenders Act, on the application of the Attorney General or the Attorney General's agent, a court of criminal jurisdiction may, unless to so order would bring the administration of justice into disrepute, order that the remaining portion of the disposition made under that Act be dealt with, for all purposes under this Act or any other Act of Parliament, as if it had been a sentence imposed under this Act.

1992, c. 20, s. 202

(2) Subsection 741.1(3) of the Act is replaced by the following:

Remaining portion deemed to constitute one sentence

(3) For greater certainty, the remaining portion of the disposition referred to in subsection (2) shall, for the purposes of section 139 of the Corrections and Conditional Release Act and section 731 of this Act, be deemed to constitute one sentence of imprisonment.

1992, c. 11, s. 16

38. Section 742.1 of the Act is replaced by the following:

Persons under eighteen

742.1 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 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 who was under the age of sixteen at the time of the commission of the offence;

    (b) ten 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; and

    (c) 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.

1992, c. 11, s. 16

39. Section 743.1 of the Act is replaced by the following:

Persons under sixteen

743.1 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 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.

*ep

1992, c. 11, s. 16

40. Section 744.1 of the Act is replaced by the following:

Idem

744.1 At the time of the sentencing under section 742.1 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 recommendation, if any, made pursuant to section 743.1, by order, decide the period of imprisonment the offender is to serve that is between five years and seven years without eligibility for parole, as the judge deems fit in the circumstances.

41. The portion of section 746 of the Act before paragraph (a) is replaced by the following:

Time spent in custody

746. In calculating the period of imprisonment served for the purposes of section 742, 742.1, 744, 744.1 or 745, there shall be included any time spent in custody between,

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