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Bill C-51

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SUMMARY

The amendments to the Criminal Code in this enactment

    (a) permit the operation of casinos on international cruise ships that are Canadian or in Canadian waters;

    (b) permit dice-games conducted and managed by a province;

    (c) widen the scope of the offence of obtaining the services of a prostitute under eighteen years old;

    (d) repeal the ``year and a day rule'' for offences involving homicide and criminal negligence causing death;

    (e) modernize the fraud and theft provisions in respect of valuable minerals;

    (f) modernize the provisions concerning the offence of making likenesses of bank-notes;

    (g) ensure that only officials with law enforcement duties can execute search warrants;

    (h) provide for the authority to remove lawfully-installed electronic surveillance devices;

    (i) provide sentencing measures dealing with the consideration of outstanding charges, the offender's ability to pay a fine and addressing technical matters;

    (j) provide rules governing when conditional sentences run following the breach of a condition;

    (k) bring deceptive telemarketing offences against the Competition Act under the forfeiture provisions for the proceeds of crime; and

    (l) provide a number of other technical amendments.

The amendments to the Controlled Drugs and Substances Act in this enactment deal with aggravating factors in sentencing and the criminal liability of law enforcement officers engaged in their duties.

The amendments to the Corrections and Conditional Release Act in this enactment exclude those convicted of organized-crime offences from eligibility for accelerated parole review.

EXPLANATORY NOTES

Criminal Code

Clause 1: New.

Clause 2: Section 168 reads as follows:

168. Every one commits an offence who makes use of the mails for the purpose of transmitting or delivering anything that is obscene, indecent, immoral or scurrilous, but this section does not apply to a person who makes use of the mails for the purpose of transmitting or delivering anything mentioned in subsection 166(4).

Clause 3: The relevant portion of section 169 reads as follows:

169. Every one who commits an offence under section 163, 165, 166, 167 or 168 is guilty of

Clause 4: This clause would add references to subsections 210(1), 212(2), 212(2.1) and 212(4).

Clause 5: New.

Clause 6: The relevant portion of subsection 207(4) reads as follows:

(4) In this section, ``lottery scheme'' means a game or any proposal, scheme, plan, means, device, contrivance or operation described in any of paragraphs 206(1)(a) to (g), whether or not it involves betting, pool selling or a pool system of betting other than

    (a) a dice game, three-card monte, punch board or coin table;

    . . .; or

    (c) for the purposes of paragraphs (1)(b) to (f), a game or proposal, scheme, plan, means, device, contrivance or operation described in any of paragraphs 206(1)(a) to (g) that is operated on or through a computer, video device or slot machine, within the meaning of subsection 198(3).

Clause 7: New.

Clause 8: Subsections 212(4) and (5) read as follows:

(4) Every person who, in any place, obtains or attempts to obtain, for consideration, the sexual services of a person who is under the age of eighteen years or who that person believes is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(5) For the purposes of subsection (4), evidence that the person from whom the sexual services were obtained or attempted to be obtained was represented to the accused as being under the age of eighteen years is, in the absence of evidence to the contrary, proof that the accused believed, at the time the offence was alleged to have been committed, that the person was under the age of eighteen years.

Clause 9: Section 227 reads as follows:

227. No person commits culpable homicide or the offence of causing the death of a person by criminal negligence or by means of the commission of an offence under subsection 249(4) or 255(3) unless the death occurs within one year and one day from the time of the occurrence of the last event by means of which the person caused or contributed to the cause of death.

Clause 10: Section 394.1 is new. Section 394 reads as follows:

394. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years who

    (a) being the holder of a lease or licence issued

      (i) under an Act relating to the mining of precious metals, or

      (ii) by the owner of land that is supposed to contain precious metals,

    by a fraudulent device or contrivance defrauds or attempts to defraud any person of any precious metals or money payable or reserved by the lease or licence, or fraudulently conceals or makes a false statement with respect to the amount of precious metals procured by him;

    (b) sells or purchases any rock, mineral or other substance that contains precious metals or unsmelted, untreated, unmanufactured or partly smelted, partly treated or partly manufactured precious metals, unless he establishes that he is the owner or agent of the owner or is acting under lawful authority; or

    (c) has in his possession or knowingly has on his premises

      (i) any rock or mineral of a value of fifty-five cents per kilogram or more,

      (ii) any mica of a value of fifteen cents per kilogram or more, or

      (iii) any precious metals,

    that there are reasonable grounds to believe have been stolen or have been dealt with contrary to this section, unless he establishes that he is lawfully in possession thereof.

(2) Where a person is convicted of an offence under this section, the court may order anything by means of or in relation to which the offence was committed, on such conviction, to be forfeited to Her Majesty in right of the province in which the proceedings take place.

Clause 11: Subsection 395(1) reads as follows:

395. (1) Where an information in writing is laid under oath before a justice by any person having an interest in a mining claim, that any precious metals or rock, mineral or other substance containing precious metals is unlawfully deposited in any place or held by any person contrary to law, the justice may issue a warrant to search any of the places or persons mentioned in the information.

Clause 12: Section 457 reads as follows:

457. (1) Every one who designs, engraves, prints or in any manner makes, executes, issues, distributes, circulates or uses any business or professional card, notice, placard, circular, handbill or advertisement in the likeness or appearance of

    (a) a current bank-note or current paper money, or

    (b) any obligation or security of a government or a bank,

is guilty of an offence punishable on summary conviction.

(2) Every one who publishes or prints anything in the likeness or appearance of

    (a) all or part of a current bank-note or current paper money, or

    (b) all or part of any obligation or security of a government or a bank,

is guilty of an offence punishable on summary conviction.

(3) No person shall be convicted of an offence under subsection (2) where it is established that, in publishing or printing anything to which that subsection applies,

    (a) no photography was used at any stage for the purpose of publishing or printing it, except in connection with processes necessarily involved in transferring a finished drawing or sketch to a printed surface;

    (b) except for the word ``Canada'', nothing having the appearance of a word, letter or numeral was a complete word, letter or numeral;

    (c) no representation of a human face or figure was more than a general indication of features, without detail;

    (d) not more than one colour was used; and

    (e) nothing in the likeness or appearance of the back of a current bank-note or current paper money was published or printed in any form.

Clause 13: New. The relevant portion of the definition ``enterprise crime offence'' in section 462.3 reads as follows:

``enterprise crime offence'' means

      (a) an offence against any of the following provisions, namely,

Clause 14: Subsection 462.341(1) reads as follows:

462.341 (1) Subsection 462.34(2), paragraph 462.34(4)(c) and subsections 462.34(5), (5.1) and (5.2) apply, with such modifications as the circumstances require, in respect of a person who has an interest in money or banknotes that are seized under this Act or the Controlled Drugs and Substances Act and in respect of which proceedings may be taken under subsection 462.37(1) or 462.38(2).

Clause 15: Subsection 462.37(2) reads as follows:

(2) Where the evidence does not establish to the satisfaction of the court that the enterprise crime offence of which the offender is convicted, or discharged under section 730, was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is proceeds of crime, the court may make an order of forfeiture under subsection (1) in relation to that property.

Clause 16: New.

Clause 17: (1) The relevant portion of subsection 487(1) reads as follows:

487. (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

    . . ., or

may at any time issue a warrant under his hand authorizing a person named therein or a peace officer

(2) Subsection 487(4) reads as follows:

(4) An endorsement that is made on a warrant as provided for in subsection (2) is sufficient authority to the peace officers or the persons to whom it was originally directed and to all peace officers within the jurisdiction of the justice by whom it is endorsed to execute the warrant and to deal with the things seized in accordance with section 489.1 or as otherwise provided by law.

Clause 18: Section 490.1 reads as follows:

490.1 Where any thing seized pursuant to this Act is perishable or likely to depreciate rapidly, the person who seized the thing or any other person having custody of the thing

    (a) may return it to its lawful owner or the person who is lawfully entitled to possession of it; or

    (b) where, on ex parte application to a justice, the justice so authorizes, may

      (i) dispose of it and give the proceeds of disposition to the lawful owner of the thing seized, if the lawful owner was not a party to an offence in relation to the thing or, if the identity of that lawful owner cannot be reasonably ascertained, the proceeds of disposi tion are forfeited to Her Majesty, or

      (ii) destroy it.

Clause 19: (1) The relevant portion of subsection 492.1(1) reads as follows:

492.1 (1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that is relevant to the commission of that offence, including the whereabouts of any person, can be obtained through the use of a tracking device, may at any time issue a warrant authorizing a person named therein or a peace officer

(2) New.

Clause 20: The relevant portion of subsection 492.2(1) reads as follows:

492.2 (1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that would assist in the investigation of that offence could be obtained through the use of a number recorder, may at any time issue a warrant authorizing a person named in it or a peace officer

Clause 21: Section 500 reads as follows:

500. Where a person has, pursuant to paragraph 498(1)(h) or 499(g), deposited any sum of money or other valuable security with the officer in charge, the officer in charge shall, forthwith after the deposit thereof, cause the money or valuable security to be delivered to a justice for deposit with the justice.

Clause 22: The relevant portion of subsection 515(6) reads as follows:

(6) Notwithstanding any provision of this section, where an accused is charged

    . . ., or

    (d) with having committed an offence punishable by imprisonment for life under subsection 5(3) or (4), 6(3) or 7(2) of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence,

Clause 23: New.

Clause 24: The relevant portion of subsection 601(4) reads as follows:

(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count thereof under subsection (3), consider

Clause 25: Section 656 reads as follows:

656. In any proceeding in respect of theft of ores or minerals, the possession, contrary to any law in that behalf, of smelted gold or silver, gold-bearing quartz, or unsmelted or unmanufactured gold or silver, by an operator, workman or labourer actively engaged in or on a mine, is, in the absence of any evidence to the contrary, proof that the gold, silver or quartz was stolen by him.

Clause 26: The relevant portion of the definition ``sentence'' in section 673 reads as follows:

``sentence'' includes

      . . .

      (b) an order made under subsection 100(1) or (2), 194(1) or 259(1) or (2), section 261 or 462.37, subsection 491.1(2) or 730(1) or section 737, 738, 739, 742.3 or 745.2,

Clause 27: The relevant portion of subsection 686(4) reads as follows:

(4) Where an appeal is from an acquittal, the court of appeal may

Clause 28: Subsection 695(2) reads as follows:

(2) An appeal to the Supreme Court of Canada that is not brought on for hearing by the appellant at the session of that court during which the judgment appealed from is pronounced by the court of appeal, or during the next session thereof, shall be deemed to be abandoned, unless otherwise ordered by the Supreme Court of Canada or a judge thereof.

Clause 29: Subsections 699(1) and (2) read as follows:

699. (1) Where a person is required to attend to give evidence before a superior court of criminal jurisdiction, a court of appeal, an appeal court or a court of criminal jurisdiction, a subpoena directed to that person shall be issued out of the court before which the attendance of that person is required.

(2) Where a person is required to attend to give evidence before a summary conviction court under Part XXVII or in proceedings over which a justice has jurisdiction, a subpoena directed to that person shall be issued

    (a) by a justice, where the person whose attendance is required is within the province in which the proceedings were instituted; or

    (b) by a provincial court judge or out of a superior court of criminal jurisdiction of the province in which the proceedings were instituted, where the person whose attendance is required is not within the province.

Clause 30: The relevant portion of the definition ``court'' in section 716 reads as follows:

``court'' means

      . . .

      (c) a justice or provincial court judge acting as a summary conviction court under Part XXIII, or

Clause 31: Subsection 718.3(5) reads as follows:

(5) Where an offender who is under a conditional sentence imposed under section 742.1 is convicted of a second offence that was committed while the offender was under the conditional sentence,

    (a) a sentence of imprisonment imposed for the second offence shall be served consecutively to the conditional sentence; and

    (b) the offender shall be imprisoned until the expiration of the sentence imposed for the second offence, or for any longer period resulting from the operation of subparagraph 742.6(9)(c)(i) or paragraph 742.6(9)(d).

Clause 32: (1) Paragraph 725(1)(b.1) is new. The relevant portion of subsection 725(1) reads as follows:

725. (1) In determining the sentence, a court

    . . .

    (b) shall consider, with the consent of the offender and the Attorney General, any outstanding charges against the offender to which the offender consents to plead guilty and pleads guilty, if the court has jurisdiction to try those charges, and shall determine the sentence to be imposed for each charge, unless the court is of the opinion that a separate prosecution for the other offence is necessary in the public interest; and

(2) Subsection 725(1.1) is new. Subsection 725(2) reads as follows:

(2) The court shall note any facts considered in determining the sentence under paragraph (1)(c) on the information or indictment and no further proceedings may be taken with respect to the other offence unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal.

Clause 33: Subsection 733(1.1) is new. Subsection 733(1) reads as follows:

733. (1) Where an offender who is bound by a probation order becomes a resident of, or is convicted or discharged under section 730 of an offence including an offence under section 733.1 in, 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 probation officer, 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.

Clause 34: (1) Subsections 734(1) and (2) read as follows:

734. (1) A court that convicts a person, other than a corporation, of an offence, except an offence that is punishable by a minimum term of imprisonment, may, in addition to or in lieu of any other sanction that the court is authorized to impose, fine the offender, subject to subsection (2), by making an order under section 734.1.

(2) A court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine, or discharge it under section 736.

(2) The relevant portion of subsection 734(5) reads as follows:

(5) The length, in days, of the term of imprisonment referred to in subsection (4) is the lesser of

    (a) a fraction of which

      (i) the numerator is the aggregate of

        (A) the unpaid amount of the fine, and

        (B) the costs and charges of committing and conveying the defaulter to prison, calculated in accordance with regulations made under subsection (7), and

      (ii) the denominator is equal to eight times the provincial minimum hourly wage, at the time of default, in the province in which the fine was imposed, rounded down to the nearest whole number of days, and

(3) Subsection 734(8) is new. Subsection 734(7) reads as follows:

(7) The lieutenant governor in council of a province may make regulations respecting the calculation of the costs and charges referred to in clause (5)(a)(i)(B) and in paragraph 734.8(1)(b).

Clause 35: Section 734.5 reads as follows:

734.5 Where an offender is in default of payment of a fine,

    (a) the person responsible, by or under an Act of the legislature of the province to whom the proceeds of the fine belong by virtue of subsection 734.4(1), for issuing or renewing a licence, permit or other similar instrument in relation to the offender may refuse to issue or renew the licence, permit or other instrument until the fine is paid in full, proof of which lies on the offender; or

    (b) where the proceeds of the fine belong to Her Majesty in right of Canada by virtue of subsection 734.4(2), the person responsible, by or under an Act of Parliament, for issuing or renewing a licence, permit or other similar instrument in relation to the offender may refuse to issue or renew the licence, permit or other instrument until the fine is paid in full, proof of which lies on the offender.

Clause 36: New.

Clause 37: Subsections 734.8(2) to (4) read as follows:

(2) Where a person is imprisoned in default of payment of a fine, the term of imprisonment shall, on payment of a part of the penalty, whether the payment was made before or after the issue of a warrant of committal, be reduced by the number of days that bears the same proportion to the number of days in the term as the part paid bears to the total penalty.

(3) No amount offered in part payment of a penalty shall be accepted unless it is sufficient to secure a reduction of sentence of one day, or a multiple thereof, and where a warrant of committal has been issued, no part payment shall be accepted until any fee that is payable in respect of the warrant or its execution has been paid.

(4) Payment may be made under this section to the person who has lawful custody of the prisoner or to such other person as the Attorney General directs.

Clause 38: Subsection 735(1.1) is new. Subsection 735(2) reads as follows:

(2) Section 734.6 applies, with such modifications as the circumstances require, where a fine imposed under subsection (1) or under any other Act of Parliament is not paid forthwith.

Clause 39: Subsection 737(6) reads as follows:

(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).

Clause 40: Subsection 742.4(1) reads as follows:

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.

Clause 41: Subsection 742.5(1.1) is new. Subsection 742.5(1) reads as follows:

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.

Clause 42: (1) Subsection 742.6(1) reads as follows:

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.

(2) Subsections 742.6(3.1) to (3.3) are new. Subsection 742.6(3) reads as follows:

(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.

(3) Subsection 742.6(5) reads as follows:

(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.

(4) New.

Clause 43: Section 742.7 reads as follows:

742.7 Where an offender who is at large under a conditional sentence is imprisoned for another offence, whenever committed, the running of the conditional sentence is suspended during the period of imprisonment for that other offence, unless otherwise ordered by the court under subsection 742.4(3) or 742.6(9), but no such order may be incompatible with subsection 718.3(5).

Clause 44: Subsection 771(3.1) reads as follows:

(3.1) An order made under subsection (2) may be filed with the clerk of the superior court or, in the Province of Quebec, the prothonotary and, where an order is filed, the clerk or the prothonotary shall issue a writ of fieri facias in Form 34 and deliver it to the sheriff of each of the territorial divisions in which the principal or any of his sureties resides, carries on business or has property.

Clause 45: This amendment would designate the appropriate court to which and official to whom applications for the forfeiture of recognizances under section 762 are to be made in Quebec following the reorganization of its courts.

Clause 46: This amendment would be a consequence of the amendment set out in subclause 17(1).

Clause 47: This amendment would add the underlined words.

Clause 48: This amendment would be a consequence of the amendment set out in clause 29.

Controlled Drugs and Substances Act

Clause 49: Subsection 9(3) reads as follows:

(3) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under this section by reason only that the peace officer or person possesses property or the proceeds of property mentioned in subsection (1) for the purposes of an investigation or otherwise in the execution of the peace officer's duties.

Clause 50: (1) The relevant portion of subsection 10(2) reads as follows:

(2) Where a person is convicted of a designated substance offence, the court imposing sentence on the person shall consider as an aggravating factor that the person

(2) Subsection 10(3) reads as follows:

(3) Where, pursuant to subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in that subsection, but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.

Corrections and Conditional Release Act

Clause 51: Subparagraph 125(1)(a)(v) is new. The relevant portion of subsection 125(1) reads as follows:

125. (1) This section and section 126 apply to an offender sentenced, committed or transferred to penitentiary for the first time, otherwise than pursuant to an agreement entered into under paragraph 16(1)(b), other than an offender

    (a) serving a sentence for one of the following offences, namely,

      . . ., or

      (iv) an offence set out in Schedule II in respect of which an order has been made under section 741.2 of the Criminal Code;

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