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Bill C-79

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SUMMARY

This enactment amends the Criminal Code to enhance the protection and participation of victims and witnesses in the criminal justice system. The amendments included in this enactment

    (a) expand the availability of protection from personal cross-examination by a self-represented accused for victims and witnesses of sexual offences and personal violence offences, up to the age of 18;

    (b) clarify the application of publication bans, and provide a discretion to order, in appropriate circumstances, a publication ban on information that could disclose the identity of victims or witnesses;

    (c) ensure that the safety concerns of victims and witnesses are taken into consideration in judicial interim release determinations and in the imposition of conditions in any undertakings given by the accused for judicial interim release;

    (d) revise the victim impact statement provisions to, among other things, require the judge to inquire whether the victim has been advised of the opportunity to prepare a victim impact statement, and permit a victim to present a victim impact statement orally;

    (e) provide that all offenders must pay a victim surcharge of a fixed, minimum amount, except where the offender establishes undue hardship, and provide for increased amounts to be imposed in appropriate circumstances;

    (f) require a judge, at the sentencing of an offender to life in prison, to provide information, for the benefit of the victim, regarding the operation of the provisions governing judicial review of parole eligibility; and

    (g) make a number of procedural and consequential changes.

EXPLANATORY NOTES

Criminal Code

Clause 1: New.

Clause 2: (1) Subsections 486(1.1) and (1.2) read as follows:

(1.1) For the purposes of subsections (1) and (2.3) and for greater certainty, the ``proper administration of justice'' includes ensuring that the interests of witnesses under the age of fourteen years are safeguarded in proceedings in which the accused is charged with a sexual offence, an offence against any of sections 271, 272 and 273 or an offence in which violence against the person is alleged to have been used, threatened or attempted.

(1.2) In proceedings referred to in subsection (1.1), the presiding judge, provincial court judge or justice may, on application of the prosecutor or a witness who, at the time of the trial or preliminary hearing, is under the age of fourteen years, order that a support person of the witness' choice be permitted to be present and to be close to the witness while testifying.

(2) Subsections 486(2.3) and (3) read as follows:

(2.3) In proceedings referred to in subsection (1.1), the accused shall not personally cross-examine a witness who at the time of the proceedings is under the age of fourteen years, unless the presiding judge, provincial court judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination and, where the accused is not personally conducting the cross-examination, the presiding judge, provincial court judge or justice shall appoint counsel for the purpose of conducting the cross-examination.

(3) Subject to subsection (4), where an accused is charged with

    (a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

    (b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

    (c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(3) Subsections 486(4.1) to (4.9) are new. Subsection 486(5) reads as follows:

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.

Clause 3: (1) Subsection 497(1.1) is new. Subsection 497(1) reads as follows:

497. (1) Where a peace officer arrests a person without warrant for

    (a) an indictable offence mentioned in section 553,

    (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or

    (c) an offence punishable on summary conviction,

he shall, as soon as practicable,

    (d) release the person from custody with the intention of compelling his appearance by way of summons, or

    (e) issue an appearance notice to the person and thereupon release him,

unless

    (f) he believes on reasonable grounds that it is necessary in the public interest, having regard to all the circumstances including the need to

      (i) establish the identity of the person,

      (ii) secure or preserve evidence of or relating to the offence, or

      (iii) prevent the continuation or repetition of the offence or the commission of another offence,

    that the person be detained in custody or that the matter of his release from custody be dealt with under another provision of this Part, or

    (g) he believes on reasonable grounds that, if the person is released by him from custody, the person will fail to attend court in order to be dealt with according to law.

(2) The relevant portion of subsection 497(3) reads as follows:

(3) A peace officer who has arrested a person without warrant for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in paragraph (d) or (e) of that subsection shall be deemed to be acting lawfully and in the execution of his duty for the purposes of

Clause 4: (1) Subsection 498(1.1) is new. Subsection 498(1) reads as follows:

498. (1) Where a person who has been arrested without warrant by a peace officer is taken into custody, or where a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) is detained in custody under subsection 503(1) for

    (a) an indictable offence mentioned in section 553,

    (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction,

    (c) an offence punishable on summary conviction, or

    (d) any other offence that is punishable by imprisonment for five years or less,

and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

    (e) release the person with the intention of compelling his appearance by way of summons,

    (f) release the person on his giving his promise to appear,

    (g) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in such amount not exceeding five hundred dollars as the officer directs, but without deposit of money or other valuable security, or

    (h) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within two hundred kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in such amount not exceeding five hundred dollars as the officer directs and, if the officer so directs, on depositing with the officer such sum of money or other valuable security not exceeding in amount or value five hundred dollars, as the officer directs,

unless

    (i) he believes on reasonable grounds that it is necessary in the public interest, having regard to all the circumstances including the need to

      (i) establish the identity of the person,

      (ii) secure or preserve evidence of or relating to the offence, or

      (iii) prevent the continuation or repetition of the offence or the commission of another offence,

    that the person be detained in custody or that the matter of his release from custody be dealt with under another provision of this Part, or

    (j) he believes on reasonable grounds that, if the person is released by him from custody, the person will fail to attend court in order to be dealt with according to law.

(2) The relevant portion of subsection 498(3) reads as follows:

(3) An officer in charge or another peace officer who has the custody of a person taken into or detained in custody for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in paragraph (1)(e), (f), (g) or (h) shall be deemed to be acting lawfully and in the execution of the officer's duty for the purposes of

Clause 5: (1) and (2) Paragraph 499(2)(h) is new. The relevant portion of subsection 499(2) reads as follows:

(2) In addition to the conditions for release set out in paragraphs (1)(a), (b) and (c), the officer in charge may also require the person to enter into an undertaking in Form 11.1 in which the person, in order to be released, undertakes to do one or more of the following things:

    . . .

    (c) to abstain from communicating with any witness or other person mentioned in the undertaking, or from going to a place mentioned in the undertaking, except in accordance with the conditions specified in the undertaking;

Clause 6: 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 7: (1) Subsection 503(2) reads as follows:

(2) Where a peace officer or an officer in charge is satisfied that a person described in subsection (1) should be released from custody conditionally, the officer may, unless the person is detained in custody for an offence mentioned in section 522, release that person on the person's giving a promise to appear or entering into a recognizance in accordance with paragraphs 498(1)(f) to (h) and subsection (2.1).

(2) and (3) Paragraph 503(2.1)(h) is new. The relevant portion of subsection 503(2.1) reads as follows:

(2.1) In addition to the conditions referred to in subsection (2), the peace officer or officer in charge may, in order to release the person, require the person to enter into an undertaking in Form 11.1 in which the person undertakes to do one or more of the following things:

    . . .

    (c) to abstain from communicating with any witness or other person mentioned in the undertaking, or from going to a place mentioned in the undertaking, except in accordance with the conditions specified in the undertaking;

Clause 8: (1) and (2) Paragraph 515(4)(e.1) is new. The relevant portion of subsection 515(4) reads as follows:

(4) The justice may direct as conditions under subsection (2) that the accused shall do any one or more of the following things as specified in the order:

    . . .

    (d) abstain from communicating with any witness or other person expressly named in the order, or refrain from going to any place expressly named in the order, except in accordance with the conditions specified in the order that the justice considers necessary;

(3) The relevant portion of subsection 515(4.1) reads as follows:

(4.1) When making an order under subsection (2), in the case of an accused who is charged with

    . . .

    (d) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, the justice shall add to the order a condition prohibiting the accused from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, until the accused is dealt with according to law unless the justice considers that such a condition is not required in the interests of the safety of the accused or of any other person.

(4) Subsection 515(4.2) reads as follows:

(4.2) Before making an order under subsection (2), in the case of an accused who is charged with an offence described in section 264, or an offence in the commission of which violence against a person was used, threatened or attempted, the justice shall consider whether it is desirable, in the interests of the safety of any person, to include as a condition of the order that the accused abstain from communicating with any witness or other person expressly named in the order, or be prohibited from going to any place expressly named in the order.

(5) The relevant portion of subsection 515(10) reads as follows:

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

    . . .

    (b) where the detention is necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(6) Subsection 515(12) reads as follows:

(12) A justice who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating with any witness or other person named in the order, except in accordance with such conditions specified in the order as the justice deems necessary.

Clause 9: New. The relevant portion of subsection 518(1) reads as follows:

518. (1) In any proceedings under section 515,

Clause 10: Subsections 522(2.1) and (3) read as follows:

(2.1) A judge referred to in subsection (2) who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating with any witness or other person named in the order except in accordance with such conditions specified in the order as the judge deems necessary.

(3) Where the judge does not order that the accused be detained in custody pursuant to subsection (2), the judge may order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions described in subsections 515(4) and (4.1) as the judge considers desirable.

Clause 11: New.

Clause 12: New.

Clause 13: The relevant portion of the definition ``sentence'' in section 673 reads as follows:

``sentence'' includes

      . . .

      (b) an order made under subsection 109(1) or 110(1), section 161, subsection 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, and

Clause 14: New.

Clause 15: The relevant portion of subsection 683(5) reads as follows:

(5) Where an appeal or an application for leave to appeal has been filed in the court of appeal, that court, or a judge of that court, may, where it considers it to be in the interests of justice, order that

    . . .

    (d) any order to pay a victim fine surcharge under section 737, or

Clause 16: New.

Clause 17: (1) New.

(2) Subsection 722(3) reads as follows:

(3) A statement of a victim of an offence prepared and filed in accordance with subsection (2) does not prevent the court from considering any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged pursuant to section 730.

(3) The relevant portion of subsection 722(4) reads as follows:

(4) For the purposes of this section, ``victim'', in relation to an offence,

    (a) means the person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence; and

Clause 18: Section 722.2 is new. Section 722.1 reads as follows:

722.1 The clerk of the court shall provide a copy of a document referred to in section 721 or subsection 722(1), as soon as practicable after filing, to the offender or counsel for the offender, as directed by the court, and to the prosecutor.

Clause 19: Subsection 734.8(5) reads as follows:

(5) A payment under this section shall be applied firstly to the payment in full of costs and charges, secondly to the payment in full of any victim fine surcharge imposed under subsection 737(1), and thereafter to payment of any part of the fine that remains unpaid.

Clause 20: Section 737 reads as follows:

737. (1) Subject to subsection (2), where an offender is convicted or discharged under section 730 of an offence under this Act or the Controlled Drugs and Substances Act, the court imposing sentence on or discharging the offender shall, in addition to any other punishment imposed on the offender, order the offender to pay a victim fine surcharge in an amount not exceeding

    (a) fifteen per cent of any fine that is imposed on the offender for that offence or, where no fine is imposed on the offender for that offence, ten thousand dollars, or

    (b) such lesser amount as may be prescribed by, or calculated in the manner prescribed by, regulations made by the Governor in Council under subsection (5),

subject to such terms and conditions as may be prescribed by those regulations.

(2) Where the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependants of the offender would result from the making of an order under subsection (1), the court is not required to make the order.

(3) Where the court does not make an order under subsection (1), the court shall

    (a) provide the reasons why the order is not being made; and

    (b) enter the reasons in the record of the proceedings or, where the proceedings are not recorded, provide written reasons.

(4) A victim fine surcharge imposed under subsection (1) shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.

(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.

(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 21: New.

Clause 22: New.

Clause 23: The relevant portion of the definition ``sentence'' in section 785 reads as follows:

``sentence'' includes

      . . .

      (b) an order made under subsection 110(1) or 259(1) or (2), section 261 or subsection 736(1), and

Clause 24: (1) and (2) Paragraph (h) of Form 11.1 of Part XXVIII is new. The relevant portion of that Form reads as follows:

In order that I may be released from custody by way of (a promise to appear or a recognizance), I undertake to (insert any conditions that are directed):

    . . .

    (c) abstain from communicating with (name of witness or other person) or from going to (name or description of place) except in accordance with the following conditions: (as the peace officer or other person designated specifies);

Clause 25: The relevant portion of Form 12 of Part XXVIII reads as follows:

I also undertake to (insert any conditions that are directed)

    . . .

    (d) abstain from communication with (name of witness or other person) except in accordance with the following conditions: (as the justice or judge specifies);

Clause 26: The relevant portion of Form 13 of Part XXVIII reads as follows:

I also undertake to (insert any conditions that are directed)

    . . .

    (d) abstain from communicating with (name of witness or other person) except in accordance with the following conditions: (as the justice or judge specifies);

Clause 27: The relevant portion of Form 32 of Part XXVIII reads as follows:

Schedule of Conditions

    . . .

    (d) abstains from communicating with (name of witness or other person) except in accordance with the following conditions: (as the justice or judge specifies);

Contraventions Act

Clause 28: Subsections 53(1) and (2) read as follows:

53. (1) Notwithstanding paragraphs 498(1)(g) and (h), 499(1)(b) and (c) and 515(2)(b), (c), (d) and (e) of the Criminal Code, neither an officer in charge nor a justice of the peace may direct that a recognizance be entered into in an amount that exceeds the fine established in respect of the contravention under paragraph 8(1)(c).

(2) Notwithstanding paragraphs 498(1)(h), 499(1)(c) and 515(2)(d) and (e) of the Criminal Code, neither an officer in charge nor a justice of the peace may direct that a sum of money or other valuable security in an amount or value that exceeds the fine established in respect of the contravention under paragraph 8(1)(c) be deposited.

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