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Bill C-3

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RECOMMENDATION

His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ``An Act in respect of criminal justice for young persons and to amend and repeal other Acts''.

SUMMARY

This enactment repeals and replaces the Young Offenders Act and provides principles, procedures and protections for the prosecution of young persons under criminal and other federal laws.

This enactment sets out a range of extrajudicial measures, establishes the judicial procedures and protections for young persons alleged to have committed an offence, encourages the participation of parents, victims, communities, youth justice committees and others in the youth justice system, sets out a range of sentences available to the youth justice court, establishes custody and supervision provisions, sets out the rules for the keeping of records and protection of privacy, provides transitional provisions and makes consequential amendments to other Acts.

EXPLANATORY NOTES

Canada Evidence Act

Clause 165: Subsection 4(2) reads as follows:

(2) The wife or husband of a person charged with an offence against subsection 50(1) of the Young Offenders Act or with an offence against any of sections 151, 152, 153, 155 or 159, subsection 160(2) or (3), or sections 170 to 173, 179, 212, 215, 218, 271 to 273, 280 to 283, 291 to 294 or 329 of the Criminal Code, or an attempt to commit any such offence, is a competent and compellable witness for the prosecution without the consent of the person charged.

Contraventions Act

Clause 166: (1) and (2) The definition ``youth court'' in section 2 reads as follows:

``youth court'' means, in respect of a contravention alleged to have been committed by a young person in, or otherwise within the territorial jurisdiction of the courts of, a province, the court established or designated by or under an Act of the legislature of the province, or designated by the Governor in Council or lieutenant governor in council of the province, as the youth court for the purposes of the Young Offenders Act.

(3) New.

Clause 167: Section 5 reads as follows:

5. The provisions of the Criminal Code relating to summary conviction offences and the provisions of the Young Offenders Act apply to proceedings in respect of contraventions that are commenced under this Act, except to the extent that this Act, the regulations or the rules of court provide otherwise.

Clause 168: Subsection 17(2) reads as follows:

(2) Notwithstanding the Young Offenders Act, a contraventions court or a justice of the peace has jurisdiction, to the exclusion of that of the youth court, in respect of any contravention alleged to have been committed by a young person in, or otherwise within the territorial jurisdiction of the courts of, a province the lieutenant governor in council of which has ordered that any such contravention be dealt with in ordinary court.

Clause 169: The relevant portion of subsection 62(2) reads as follows:

(2) The court may, where it determines that the offender is unwilling though able to pay the fine, issue a warrant for the committal of the offender in Form 8 of Part XXVIII of the Criminal Code, varied to suit the case,

    (a) for the committal of the offender to open custody, as defined in subsection 24.1(1) of the Young Offenders Act, for one day, if the offender is a young person; or

Corrections and Conditional Release Act

Clause 170: The definition ``sentence'' in subsection 2(1) reads as follows:

``sentence'' means a sentence of imprisonment and includes a sentence imposed by a court of a foreign state on a Canadian offender who has been transferred to Canada pursuant to the Transfer of Offenders Act;

Clause 171: Subsection 15(1) reads as follows:

15. (1) Notwithstanding any requirement in the Criminal Code that a person be sentenced, committed or transferred to penitentiary, such a person in the Province of Newfoundland shall not be received in a penitentiary without the approval of an officer designated by the Lieutenant Governor of Newfoundland.

Clause 172: The definition ``offender'' in subsection 99(1) reads as follows:

``offender'' means a person who is under a sentence imposed before or after the coming into force of this section

      (a) pursuant to an Act of Parliament or, to the extent that this Part applies, pursuant to a provincial Act, or

      (b) on conviction for criminal or civil contempt of court where the sentence does not include a requirement that the offender return to that court,

    but does not include a young person within the meaning of the Young Offenders Act who has been committed to custody under that Act or a person whose only sentence is a sentence being served intermittently pursuant to section 732 of the Criminal Code;

Clause 173: New.

Criminal Code

Clause 174: The definitions ``adult'', ``provincial court judge'' and ``young person'' in section 487.04 read as follows:

``adult'' has the meaning assigned by subsection 2(1) of the Young Offenders Act;

``provincial court judge'', in relation to a young person, includes a youth court judge within the meaning of subsection 2(1) of the Young Offenders Act;

``young person'' has the meaning assigned by subsection 2(1) of the Young Offenders Act.

Clause 175: The relevant portion of subsection 487.051(1) reads as follows:

487.051 (1) Subject to section 487.053, if a person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, of a designated offence, the court

Clause 176: Subsection 487.052(1) reads as follows:

487.052 (1) Subject to section 487.053, if a person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, of a designated offence committed before the coming into force of subsection 5(1) of the DNA Identification Act, the court may, on application by the prosecutor, make an order in Form 5.04 authorizing the taking, from that person or young person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1), if the court is satisfied that it is in the best interests of the administration of justice to do so.

Clause 177: The relevant portion of section 487.053 reads as follows:

487.053 No court may make an order under section 487.051 or 487.052 in respect of a person or young person if the court has been advised

    . . .

    (b) by the person or young person, that they consent to the entry, in the convicted offenders index of the national DNA data bank established under that Act, of the results of DNA analysis of bodily substances that were provided voluntarily in the course of the investigation of, or taken from them in execution of a warrant that was issued under section 487.05 in respect of, the designated offence of which the person has been convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, or another designated offence in respect of the same transaction.

Clause 178: Subsection 487.056(1) reads as follows:

487.056 (1) Samples of bodily substances referred to in sections 487.051 and 487.052 shall be taken at the time the person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, or as soon as is feasible afterwards, even though an appeal may have been taken.

Clause 179: The relevant portion of subsection 487.071(1) reads as follows:

487.071 (1) There shall be transmitted to the Commissioner of the Royal Canadian Mounted Police for entry in the convicted offenders index of the national DNA data bank established under the DNA Identification Act the results of forensic DNA analysis of bodily substances that are

    (a) provided voluntarily in the course of an investigation of a designated offence by any person who is later convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act of the designated offence or another designated offence in respect of the same transaction and who, having been so convicted, discharged or found guilty, consents to having the results entered in the convicted offenders index;

    (b) taken in execution of a warrant under section 487.05 from a person who is later convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act of the designated offence in respect of which the warrant was issued or another designated offence in respect of the same transaction and who, having been so convicted, discharged or found guilty, consents to having the results entered in the convicted offenders index;

Clause 180: The relevant portion of subsection 667(1) reads as follows:

667. (1) In any proceedings,

    (a) a certificate setting out with reasonable particularity the conviction, discharge under section 730 or the conviction and sentence in Canada of an offender signed by

      (i) the person who made the conviction or order for the discharge,

      (ii) the clerk of the court in which the conviction or order for the discharge was made, or

      (iii) a fingerprint examiner,

    is, on proof that the accused or defendant is the offender referred to in the certificate, evidence that the accused or defendant was so convicted, so discharged or so convicted and sentenced without proof of the signature or the official character of the person appearing to have signed the certificate;

Clause 181: Subsection 718.3(4) reads as follows:

(4) Where an accused

    (a) is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed,

    (b) is convicted of an offence punishable with both a fine and imprisonment and both are imposed, or

    (c) is convicted of more offences than one, and

      (i) more than one fine is imposed,

      (ii) terms of imprisonment for the respective offences are imposed, or

      (iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence,

the court that sentences the accused may direct that the terms of imprisonment that are imposed by the court or result from the operation of subsection 734(4) shall be served consecutively.

Clause 182: The relevant portion of subsection 721(3) reads as follows:

(3) Unless otherwise specified by the court, the report must, wherever possible, contain information on the following matters:

    . . .

    (b) the history of previous dispositions under the Young Offenders Act and of previous findings of guilt under this Act and any other Act of Parliament;

Clause 183: Sections 743.4 and 743.5 read as follows:

743.4 (1) Where a young person is sentenced to imprisonment under this or any other Act of Parliament, the young person may, with the consent of the provincial director, be transferred to a place of custody for any portion of the young person's term of imprisonment, but in no case shall that young person be kept in a place of custody under this section after that young person attains the age of twenty years.

(2) Where the provincial director certifies that a young person transferred to a place of custody under subsection (1) can no longer be held therein without significant danger of escape or of detrimentally affecting the rehabilitation or reformation of other young persons held therein, the young person may be imprisoned during the remainder of his term of imprisonment in any place where that young person might, but for subsection (1), have been imprisoned.

(3) For the purposes of this section, the expressions ``provincial director'' and ``young person'' have the meanings assigned by subsection 2(1) of the Young Offenders Act, and the expression ``place of custody'' means ``open custody'' or ``secure custody'' within the meaning assigned by subsection 24.1(1) of that Act.

743.5 (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.

(2) Where an order is made under subsection (1), in respect of a disposition made under paragraph 20(1)(k) or (k.1) of the Young Offenders Act, the remaining portion of the disposition to be served pursuant to the order shall be served concurrently with the sentence referred to in subsection (1), where it is a term of imprisonment, unless the court making the order orders that it be served consecutively.

(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 743.1 of this Act, be deemed to constitute one sentence of imprisonment.

Clause 184: The relevant portion of Form 5.03 reads as follows:

Whereas (name of offender) has been convicted, discharged under section 730 of the Criminal Code or, in the case of a young person, found guilty under the Young Offenders Act of (offence), an offence that is a primary designated offence within the meaning of section 487.04 of the Criminal Code;

Clause 185: The relevant portion of Form 5.04 reads as follows:

Whereas (name of offender), in this order called the ``offender'', has been convicted, discharged under section 730 of the Criminal Code or, in the case of a young person, found guilty under the Young Offenders Act of (offence), an offence that is

DNA Identification Act

Clause 186: The definition ``young person'' in section 2 reads as follows:

``young person'' has the same meaning as in subsection 2(1) of the Young Offenders Act.

Clause 187: (1) and (2). The relevant portion of subsection 9(2) reads as follows:

(2) Information in the convicted offenders index shall be rendered inaccessible without delay after

    . . .

    (c) in the case of information in relation to a young person who has been found guilty under the Young Offenders Act of any of the following offences, the expiry of ten years after all dispositions made in respect of the offence have been completed, namely,

      . . .

    (d) in the case of information in relation to a young person who has been found guilty under the Young Offenders Act of a designated offence, other than an offence referred to in any of subparagraphs (c)(i) to (iii) and sections 235 (first degree murder or second degree murder), 236 (manslaughter), 239 (attempt to commit murder) and 273 (aggravated sexual assault) of the Criminal Code, the expiry of five years after all dispositions made in respect of the offence have been completed; and

    (e) in the case of information in relation to a young person who has been found guilty under the Young Offenders Act of a designated offence that is a summary conviction offence, the expiry of three years after all dispositions made in respect of the offence have been completed.

Clause 188: (1) and (2). The relevant portion of subsection 10(7) reads as follows:

(7) The Commissioner shall nevertheless destroy the stored bodily substances of a person without delay

    . . .

    (c) if the person is a young person who has been found guilty under the Young Offenders Act of any of the following offences, after the expiry of ten years after all dispositions made in respect of the offence have been completed, namely,

      . . .

    (d) if the person is a young person who has been found guilty under the Young Offenders Act of a designated offence, other than an offence referred to in any of subparagraphs (c)(i) to (iii) and sections 235 (first degree murder or second degree murder), 236 (manslaughter), 239 (attempt to commit murder) and 273 (aggravated sexual assault) of the Criminal Code, after the expiry of five years after all dispositions made in respect of the offence have been completed; and

    (e) if the person is a young person who has been found guilty under the Young Offenders Act of a designated offence that is a summary conviction offence, after the expiry of three years after all dispositions made in respect of the offence have been completed.

Extradition Act

Clause 189: The relevant portion of section 47 reads as follows:

47. The Minister may refuse to make a surrender order if the Minister is satisfied that

    . . .

    (c) the person was under the age of 18 years at the time of the offence and the law that applies to them in the territory over which the extradition partner has jurisdiction is not consistent with the fundamental principles governing the Young Offenders Act;

Clause 190: Section 77 reads as follows:

77. In this Part, ``competent authority'' means

    (a) in respect of a prosecution or imposition of a sentence - or of a disposition under the Young Offenders Act - the Attorney General, or the Attorney General of a province who is responsible for the prosecution of the case; and

    (b) in respect of the enforcement of a sentence or a disposition under the Young Offenders Act,

      (i) the Solicitor General of Canada, if the person would serve the sentence in a penitentiary, or

      (ii) the appropriate provincial minister responsible for corrections, in any other case.

Clause 191: Subsection 78(1) reads as follows:

78. (1) The Minister, at the request of a competent authority, may make a request to a State or entity for the extradition of a person for the purpose of prosecuting the person for - or imposing or enforcing a sentence, or making or enforcing a disposition under the Young Offenders Act, in respect of - an offence over which Canada has jurisdiction.

Clause 192: The relevant portion of section 80 reads as follows:

80. Subject to a relevant extradition agreement, a person who has been extradited to Canada by a requested State or entity shall not, unless the person has voluntarily left Canada after surrender or has had a reasonable opportunity of leaving Canada,

    (a) be detained or prosecuted, or have a sentence imposed or executed, or a disposition made or executed under the Young Offenders Act, in Canada in respect of an offence that is alleged to have been committed, or was committed, before surrender other than

Clause 193: (1) Subsection 83(1) reads as follows:

83. (1) Subject to subsection (3), the sentence or disposition of a person who has been temporarily surrendered and who has been convicted and sentenced in Canada, or in respect of whom a disposition has been made under the Young Offenders Act, does not commence until their final extradition to Canada.

(2) Subsection 83(3) reads as follows:

(3) The sentencing judge may order that the person's sentence, or the disposition under the Young Offenders Act, be executed concurrently with the sentence they are serving in the requested State or entity, in which case the warrant of committal or order of disposition shall state that the person is to be committed to custody under subsection (2) only for any portion of the sentence remaining at the time of their final extradition to Canada or that the young person's disposition is to begin only on their final extradition to Canada.

Mutual Legal Assistance in Criminal Matters Act

Clause 194: Section 29 reads as follows:

29. Sections 24 to 28 do not apply in respect of a person who, at the time the request mentioned in subsection 24(1) is presented, is a young person within the meaning of the Young Offenders Act.

Prisons and Reformatories Act

Clause 195: (1) The relevant portion of the definition ``prisoner'' in subsection 2(1) reads as follows:

``prisoner'' means a person, other than

      . . .

      (b) a young person within the meaning of the Young Offenders Act with respect to whom no order pursuant to section 16 of that Act has been made,

    who is confined in a prison pursuant to a sentence for an offence under an Act of Parliament or any regulations made thereunder, or pursuant to a committal for failure or refusal to enter into a recognizance under section 810, 810.1 or 810.2 of the Criminal Code.

(2) New.

Clause 196: New.

Transfer of Offenders Act

Clause 197: The relevant portion of section 17 reads as follows:

17. Where a Canadian offender transferred to Canada

    . . .

    (b) was, at the time of the commission of the offence of which he or she was convicted, a young person within the meaning of the Young Offenders Act,

an official designated for the purpose by the lieutenant governor in council of the province where the offender is detained may transfer the offender to a place or facility in which a young person may be committed to open custody or secure custody, within the meaning of section 24 of the Young Offenders Act, but no person so transferred shall be detained by reason only of the sentence imposed by the foreign court beyond the date on which that sentence would terminate.

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