Bill C-79

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	1st Session, 36th Parliament, 46-47-48 Elizabeth II, 1997-98-99
	The House of Commons of Canada
	BILL C-79
	An Act to amend the Criminal Code (victims of crime) and another Act in consequence
Preamble	Whereas the Parliament of Canada continues to be gravely concerned about the incidence of crime in Canada and its impact on society, particularly on persons who are the victims of offences;
	Whereas the Parliament of Canada recognizes that the co-operation of victims of and witnesses to offences is essential to the investigation and prosecution of offences, and wishes to encourage the reporting of offences, and to provide for the prosecution of offences within a framework of laws that are consistent with the principles of fundamental justice;
	Whereas the Parliament of Canada recognizes and is committed to ensuring that all persons have the full protection of the rights guaranteed by the Canadian Charter of Rights and Freedoms and, in the event of a conflict between the rights of accused persons and victims of and witnesses to offences, that those rights are accommodated and reconciled to the greatest extent possible;
	Whereas the Parliament of Canada supports the principle that victims of and witnesses to offences should be treated with courtesy, compassion and respect by the criminal justice system, and should suffer the least amount of inconvenience necessary as a result of their involvement in the criminal justice system;
	Whereas the Parliament of Canada, while recognizing that the Crown is responsible for the prosecution of offences, is of the opinion that the views and concerns of the victims should be considered in accordance with prevailing criminal law and procedure, particularly with respect to decisions that may have an impact on their safety, security or privacy;
	Whereas the Parliament of Canada wishes to encourage and facilitate the provision of information to victims of and witnesses to offences regarding the criminal justice system and their role in it, and regarding specific decisions that have an impact on them;
	Whereas the Parliament of Canada wishes to encourage and facilitate the participation in the criminal justice system of victims of and witnesses to offences in accordance with prevailing criminal law and procedure;
	And whereas the Parliament of Canada acknowledges the fundamental importance of an open justice system that treats all persons who come before it with dignity and respect;
	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; 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, 38, 44; 1995, cc. 5, 19, 22, 27, 29, 32, 39, 42; 1996, cc. 8, 16, 19, 31, 34; 1997, cc. 9, 16, 17, 18, 23, 30, 39; 1998, cc. 7, 9, 15, 30, 34, 35, 37; 1999, c. 5	CRIMINAL CODE
	*1. Section 2 of the Criminal Code* is amended by adding the following in alphabetical order:**
``victim'' « victime »	``victim'' includes the victim of an alleged offence;
1993, c. 45, s. 7(1)	2. (1) Subsections 486(1.1) and (1.2) of the Act are replaced by the following:
Protection of child witnesses	(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 eighteen 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.
Support person	(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 or who has a mental or physical disability, order that a support person of the witness' choice be permitted to be present and to be close to the witness while testifying.
1993, c. 45, s. 7(2); 1997, c. 16, s. 6(4)	(2) Subsections 486(2.3) and (3) of the Act are replaced by the following:
Accused not to cross-examine child witness	(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 eighteen 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, if 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.
Order restricting publication	(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or 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, when an accused is charged with
	(a) any of the following offences:
	(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
	(ii) 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
	(iii) 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; or
	(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).
	(3) Subsection 486(5) of the Act is replaced by the following:
Ban on publication	(4.1) A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or witness, or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
Order restricting publication	(4.2) An order made under subsection (4.1) does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
Application	(4.3) An order under subsection (4.1) may be made on the application of the prosecutor, a victim or a witness. The application must be made to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place.
Contents of application	(4.4) The application must be in writing and set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
Notice of application	(4.5) The applicant shall provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
Hearing may be held	(4.6) The judge or justice may hold a hearing to determine whether an order under subsection (4.1) should be made, and the hearing may be in private.
Factors to be considered	(4.7) In determining whether to make an order under subsection (4.1), the judge or justice shall consider
	(a) the right to a fair and public hearing;
	(b) whether there is a real and substantial risk that the victim or witness would suffer significant harm if their identity were disclosed;
	(c) whether the victim or witness needs the order for their security or to protect them from intimidation or retaliation;
	(d) society's interest in encouraging the reporting of offences and the participation of victims and witnesses;
	(e) whether effective alternatives are available to protect the identity of the victim or witness;
	(f) the salutary and deleterious effects of the proposed order;
	(g) the impact of the proposed order on the freedom of expression of those affected by it; and
	(h) any other factor that the judge or justice considers relevant.
Conditions	(4.8) An order made under subsection (4.1) may be subject to any conditions that the judge or justice thinks fit.
Publication of application prohibited	(4.9) Unless the presiding judge or justice refuses to make an order under subsection (4.1), no person shall publish in any document or broadcast in any way
	(a) the contents of an application referred to in subsection (4.3);
	(b) any evidence taken, information given, or submissions made at a hearing under subsection (4.6); or
	(c) any other information that could identify the person to whom the application relates as a victim or witness in the proceedings.
Failure to comply with order	(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction.
	3. (1) Subsection 497(1) of the Act is replaced by the following:
Release from custody by peace officer	497. (1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (b) or (c), the peace officer shall, as soon as practicable,
	(a) release the person from custody with the intention of compelling their appearance by way of summons; or
	(b) issue an appearance notice to the person and then release them.
Exception	(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds,
	(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, 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,
	(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
	(iv) ensure the safety and security of any victim of or witness to the offence; or
	(b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
	(2) The portion of subsection 497(3) of the Act before paragraph (a) is replaced by the following:
Consequen- ces of non-release	(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 that subsection shall be deemed to be acting lawfully and in the execution of the peace officer's duty for the purposes of
1997, c. 18, s. 52; 1998, c. 7, s. 2	4. (1) Subsection 498(1) of the Act is replaced by the following:
Release from custody by officer in charge	498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if 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 an offence described in paragraph 496(a), (b) or (c), or 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,
	(a) release the person with the intention of compelling their appearance by way of summons;
	(b) release the person on their giving a promise to appear;
	(c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or
	(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 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 an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.
Exception	(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,
	(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, 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,
	(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
	(iv) ensure the safety and security of any victim of or witness to the offence; or
	(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
1997, c. 18, s. 52(3)	(2) The portion of subsection 498(3) of the Act before paragraph (a) is replaced by the following:
Consequen- ces of non-release	(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 that subsection shall be deemed to be acting lawfully and in the execution of the officer's duty for the purposes of
1994, c. 44, s. 40	5. (1) Paragraph 499(2)(c) of the Act is replaced by the following:
	(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;
	(2) Subsection 499(2) of the Act is amended by striking out the word ``and'' at the end of paragraph (f), by adding the word ``and'' at the end of paragraph (g) and by adding the following after paragraph (g):
	(h) to comply with any other condition specified in the undertaking that the officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.
	6. Section 500 of the Act is replaced by the following:
Money or other valuable security to be deposited with justice	500. If a person has, under paragraph 498(1)(d) or 499(1)(c), deposited any sum of money or other valuable security with the officer in charge, the officer in charge shall, without delay after the deposit, cause the money or valuable security to be delivered to a justice for deposit with the justice.
1994, c. 44, s. 42	7. (1) Subsection 503(2) of the Act is replaced by the following:

Bill C-79

BILL C-79

CRIMINAL CODE