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Bill C-41

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Royal Assent

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Regulations	(5) The Governor in Council may, for the purposes of subsection (1), make regulations prescribing the maximum amount or the manner of calculating the maximum amount of a victim fine surcharge to be imposed under that subsection, not exceeding the amount referred to in paragraph (1)(a), and any terms and conditions subject to which the victim fine surcharge is to be imposed.
Enforcement	(6) Subsections 734(2) to (4) and sections 734.1, 734.3 and 734.7 apply, and section 736 does not apply, in respect of a victim fine surcharge imposed under subsection (1).
	Restitution
Restitution to victims of offences	738. (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
	(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, where the amount is readily ascertainable;
	(b) in the case of bodily harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages, including loss of income or support, incurred as a result of the bodily harm, where the amount is readily ascertainable; and
	(c) in the case of bodily harm or threat of bodily harm to the offender's spouse or child, or any other person, as a result of the commission of the offence or the arrest or attempted arrest of the offender, where the spouse, child or other person was a member of the offender's household at the relevant time, by paying to the person in question, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount not exceeding actual and reasonable expenses incurred by that person, as a result of moving out of the offender's household, for temporary housing, food, child care and transportation, where the amount is readily ascertainable.
Regulations	(2) The lieutenant governor in council of a province may make regulations precluding the inclusion of provisions on enforcement of restitution orders as an optional condition of a probation order or of a conditional sentence order.
Restitution to persons acting in good faith	739. Where an offender is convicted or discharged under section 730 of an offence and
	(a) any property obtained as a result of the commission of the offence has been conveyed or transferred for valuable consideration to a person acting in good faith and without notice, or
	(b) the offender has borrowed money on the security of that property from a person acting in good faith and without notice,
	the court may, where that property has been returned to the lawful owner or the person who had lawful possession of that property at the time the offence was committed, order the offender to pay as restitution to the person referred to in paragraph (a) or (b) an amount not exceeding the amount of consideration for that property or the total amount outstanding in respect of the loan, as the case may be.
Priority to restitution	740. Where the court finds it applicable and appropriate in the circumstances of a case to make, in relation to an offender, an order of restitution under section 738 or 739, and
	(a) an order of forfeiture under this or any other Act of Parliament may be made in respect of property that is the same as property in respect of which the order of restitution may be made, or
	(b) the court is considering ordering the offender to pay a fine and it appears to the court that the offender would not have the means or ability to comply with both the order of restitution and the order to pay the fine,
	the court shall first make the order of restitution and shall then consider whether and to what extent an order of forfeiture or an order to pay a fine is appropriate in the circumstances.
Enforcing restitution order	741. (1) Where an amount that is ordered to be paid under section 738 or 739 is not paid forthwith, the person to whom the amount was ordered to be paid may, by filing the order, enter as a judgment the amount ordered to be paid in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Moneys found on offender	(2) All or any part of an amount that is ordered to be paid under section 738 or 739 may be taken out of moneys found in the possession of the offender at the time of the arrest of the offender if the court making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so directs.
Notice of orders of restitution	741.1 Where a court makes an order of restitution under section 738 or 739, it shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid.
Civil remedy not affected	741.2 A civil remedy for an act or omission is not affected by reason only that an order for restitution under section 738 or 739 has been made in respect of that act or omission.
	Conditional Sentence of Imprisonment
Definitions	742. In sections 742.1 to 742.7,
``change'' « modification »	``change'', in relation to optional conditions, includes deletions and additions;
``optional conditions'' « conditions facultatives »	``optional conditions'' means the conditions referred to in subsection 742.3(2);
``supervisor'' « agent de surveillance »	``supervisor'' means a person designated by the Attorney General, either by name or by title of office, as a supervisor for the purposes of sections 742.1 to 742.7.
Imposing of conditional sentence	742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
	(a) imposes a sentence of imprisonment of less than two years, and
	(b) is satisfied that serving the sentence in the community would not endanger the safety of the community,
	the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.
Firearm, etc., prohibitions	742.2 (1) Before imposing a conditional sentence under section 742.1, the court shall consider whether section 100 is applicable.
Idem	(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.
Compulsory conditions of conditional sentence order	742.3 (1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:
	(a) keep the peace and be of good behaviour;
	(b) appear before the court when required to do so by the court;
	(c) report to a supervisor
	(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
	(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
	(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
	(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
Optional conditions of conditional sentence order	(2) The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:
	(a) abstain from
	(i) the consumption of alcohol or other intoxicating substances, or
	(ii) the consumption of drugs except in accordance with a medical prescription;
	(b) abstain from owning, possessing or carrying a weapon;
	(c) provide for the support or care of dependants;
	(d) perform up to 240 hours of community service over a period not exceeding eighteen months;
	(e) attend a treatment program approved by the province; and
	(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.
Proceedings on making order	(3) A court that makes an order under this section shall
	(a) cause to be given to the offender
	(i) a copy of the order,
	(ii) an explanation of the substance of sections 742.4 and 742.6, and
	(iii) an explanation of the procedure for applying under section 742.4 for a change to the optional conditions; and
	(b) take reasonable measures to ensure that the offender understands the order and the explanations given to the offender under paragraph (a).
Supervisor may propose changes to optional conditions	742.4 (1) Where an offender's supervisor is of the opinion that a change in circumstances makes a change to the optional conditions desirable, the supervisor may give written notification of the proposed change, and the reasons therefor, to the offender, the prosecutor and the court.
Hearing	(2) Within seven days after receiving a notification referred to in subsection (1),
	(a) the offender or the prosecutor may request the court to hold a hearing to consider the proposed change, or
	(b) the court may, of its own initiative, order that a hearing be held to consider the proposed change,
	and a hearing so requested or ordered shall be held within thirty days after the receipt by the court of the notification referred to in subsection (1).
Decision at hearing	(3) At a hearing held pursuant to subsection (2), the court
	(a) shall approve or refuse to approve the proposed change; and
	(b) may make any other change to the optional conditions that the court deems appropriate.
Where no hearing requested or ordered	(4) Where no request or order for a hearing is made within the time period stipulated in subsection (2), the proposed change takes effect fourteen days after the receipt by the court of the notification referred to in subsection (1), and the supervisor shall so notify the offender and file proof of that notification with the court.
Changes proposed by offender or prosecutor	(5) Subsections (1) and (3) apply, with such modifications as the circumstances require, in respect of a change proposed by the offender or the prosecutor to the optional conditions, and in all such cases a hearing must be held, and must be held within thirty days after the receipt by the court of the notification referred to in subsection (1).
Judge may act in chambers	(6) All the functions of the court under this section may be exercised in chambers.
Transfer of order	742.5 (1) Where an offender who is bound by a conditional sentence order becomes a resident of a territorial division other than the territorial division where the order was made, the court that made the order may,
	(a) on the application of a supervisor, and
	(b) if both such territorial divisions are not in the same province, with the consent of the Attorney General of the province in which the order was made,
	transfer the order to a court in that other territorial division that would, having regard to the mode of trial of the offender, have had jurisdiction to make the order in that other territorial division if the offender had been tried and convicted there of the offence in respect of which the order was made, and the order may thereafter be dealt with and enforced by the court to which it is so transferred in all respects as if that court had made the order.
Where court unable to act	(2) Where a court that has made a conditional sentence order or to which a conditional sentence order has been transferred pursuant to subsection (1) is for any reason unable to act, the powers of that court in relation to the conditional sentence order may be exercised by any other court that has equivalent jurisdiction in the same province.
Procedure on breach of condition	742.6 (1) The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice apply, with such modifications as the circumstances require, to proceedings under subsections (3) to (9), and any reference in those Parts to committing an offence shall be read as a reference to breaching a condition of a conditional sentence order.
Interim release	(2) For the purpose of the application of section 515, the release from custody of an offender who is detained on the basis of an alleged breach of a condition of a conditional sentence order shall be governed by subsection 515(6).
Hearing	(3) An allegation of a breach of condition may be heard by any court having jurisdiction to hear that allegation in the place where the breach is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the breach is alleged to have been committed, no proceedings in respect of that breach shall be instituted in that place without the consent of the Attorney General of that province, and any allegation of a breach shall be heard
	(a) within thirty days after the offender's arrest, where a warrant was issued; or
	(b) where a summons was issued, within thirty days after the issue of the summons.
Report of supervisor	(4) An allegation of a breach of condition must be supported by a written report of the supervisor, which report must include, where appropriate, signed statements of witnesses.
Notice of intention to produce report	(5) No report shall be admitted in evidence unless the party intending to produce it has, before the hearing, given the offender reasonable notice and a copy of the report.
Proof of service	(6) Service of any report referred to in subsection (4) may be proved by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served it.
Attendance for examination	(7) Notwithstanding subsection (6), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of service.
Requiring attendance of supervisor or witness	(8) The offender may, with leave of the court, require the attendance, for cross-examination, of the supervisor or of any witness whose signed statement is included in the report.
Powers of court	(9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may
	(a) take no action;
	(b) change the optional conditions;
	(c) suspend the conditional sentence order and direct
	(i) that the offender serve in custody a portion of the unexpired sentence, and
	(ii) that the conditional sentence order resume on the offender's release from custody, either with or without changes to the optional conditions; or
	(d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.

Bill C-41

Restitution

Conditional Sentence of Imprisonment