Bill C-10

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1995, c. 22

An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof

44. Subsection 7(2) of An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, chapter 22 of the Statutes of Canada, 1995, is repealed.

1999, c. 5

An Act to amend the Criminal Code, the Controlled Drugs and Substances Act and the Corrections and Conditional Release Act

45. Section 51 of An Act to amend the Criminal Code, the Controlled Drugs and Substances Act and the Corrections and Conditional Release Act, chapter 5 of the Statutes of Canada, 1999, is replaced by the following:

1995, c. 22

51. On the later of the day on which subsection 5(2) of An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, chapter 22 of the Statutes of Canada, 1995, comes into force and the day on which section 25 of this Act comes into force, paragraph (b) of the definition “sentence” in section 673 of the Criminal Code is replaced by the following:

(b) an order made under subsection 100(1) or (2), 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, 742.1, 742.3, 743.6, 745.4 or 745.5,

1999, c. 25

An Act to amend the Criminal Code (victims of crime) and another Act in consequence

46. Subsection 29(2) of An Act to amend the Criminal Code (victims of crime) and another Act in consequence, chapter 25 of the Statutes of Canada, 1999, is repealed.

R.S., c. N-5

National Defence Act

47. Section 149.1 of the National Defence Act and the heading before it, as enacted by section 13 of chapter 43 of the Statutes of Canada, 1991, are repealed.

1991, c. 43, s. 18

48. Subsection 202.12(2) of the Act is replaced by the following:

Extension of time for holding inquiry

(1.1) Despite paragraph (1)(a), the Chief Military Judge may extend the period for holding an inquiry if the Chief Military Judge is satisfied on the basis of an application by the Director of Military Prosecutions or the accused person that the extension is necessary for the proper administration of justice.

Where prima facie case not made

(2) If, on the completion of an inquiry held pursuant to this section, the court martial is satisfied that sufficient admissible evidence cannot be adduced to put the accused person on trial, the court martial shall find the accused person not guilty of the charge.

49. The Act is amended by adding the following after section 202.12:

Recommendation of Review Board

202.121 (1) The Review Board may, of its own motion, make a recommendation to the Chief Military Judge to cause a court martial to be convened for holding an inquiry to determine whether a stay of proceedings should be ordered in respect of an accused person found unfit to stand trial if

(a) the Review Board has held a hearing under section 672.81 or 672.82 of the Criminal Code in respect of the accused person; and

(b) on the basis of any relevant information, including disposition information within the meaning of the regulations and an assessment report made under an assessment ordered by the Review Board under paragraph 672.121(a) of the Criminal Code, the Review Board is of the opinion that

(i) the accused person remains unfit to stand trial and is not likely to become fit to stand trial, and

(ii) the accused person does not pose a significant threat to the safety of the public.

Notice

(2) If the Review Board makes a recommendation referred to in subsection (1), the Review Board shall provide notice to the accused person, the Director of Military Prosecutions, the Chief Military Judge and any other party who, in the opinion of the Review Board, has a substantial interest in protecting the interests of the accused person.

Obligation of court martial

(3) As soon as practicable after receiving the notice referred to in subsection (2), the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial, if the accused person is an officer or a non-commissioned member, or a Special General Court Martial in any other case, for the purpose of determining whether an inquiry should be held to determine whether a stay of proceedings should be ordered and to hold, as soon as practicable, such an inquiry if the court martial determines that it is appropriate.

Inquiry may be conducted

(4) Subject to the regulations, a court martial having jurisdiction over an accused person may, of its own motion, conduct an inquiry to determine whether a stay of proceedings should be ordered if the court martial is of the opinion, on the basis of any relevant information, that

(a) the accused person remains unfit to stand trial and is not likely to become fit to stand trial; and

(b) the accused person does not pose a significant threat to the safety of the public.

Power to order an assessment

(5) Subject to the regulations, if a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether a stay of proceedings should be ordered, the court martial may make an order for an assessment of the accused person.

Assessment order

(6) If the court martial holds an inquiry under subsection (3) or (4), it shall order an assessment of the accused person.

Stay

(7) The court martial may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied that the accused person remains unfit to stand trial, is not likely to become fit to stand trial and does not pose a significant threat to the safety of the public, and that a stay is in the interests of the proper administration of justice.

Proper administration of justice

(8) In order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:

(a) the nature and seriousness of the alleged offence;

(b) the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of justice;

(c) the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 202.12 to decide whether sufficient evidence can be adduced to put the accused person on trial; and

(d) any other factor that the court martial considers relevant.

Effect of stay

(9) If a stay of proceedings is ordered by the court martial, any disposition made in respect of the accused person ceases to have effect. If a stay of proceedings is not ordered, the finding of unfit to stand trial and any disposition made in respect of the accused person remain in force, until the Review Board holds a disposition hearing and makes a disposition in respect of the accused person, in exercising a power under section 672.83 of the Criminal Code.

1991, c. 43, s. 18; 1998, c. 35, s. 52(E)

50. The portion of subsection 202.17(1) of the Act before paragraph (a) is replaced by the following:

Conditions for custody

202.17 (1) An accused person shall not be placed in custody under an assessment order made by a court martial under this Division unless

1998, c. 35, s. 53

51. Subsection 202.18(1) of the Act is replaced by the following:

No custody or release orders during assessment

202.18 (1) During the period that an assessment order made by a court martial under this Division is in force, no order may be made for custody or release from custody of the accused person under any provision of Division 3 or for release from detention or imprisonment under any provision of Division 10 in respect of that offence or an included offence.

1991, c. 43, s. 18

52. Subsection 202.19(1) of the Act is replaced by the following:

Assessment report

202.19 (1) An assessment order made by a court martial under this Division may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused person.

1991, c. 43, s. 18

53. Section 202.2 of the Act is replaced by the following:

Effective date of disposition

202.2 A disposition made in respect of an accused person under section 201, 202 or 202.16 shall come into force on the day that it is made or on any later day that the court martial specifies in it, and shall remain in force until the Review Board of the appropriate province holds a hearing and makes a disposition under section 672.83 of the Criminal Code.

1991, c. 43, s. 18

54. Paragraph 202.21(3)(a) of the Act is replaced by the following:

1991, c. 43, s. 18

55. Subsection 202.22(3) of the Act is replaced by the following:

Transmittal of transcript to Review Board

(3) If a court martial holds a hearing under subsection 200(2) or 202.15(1), whether or not it makes a disposition, it shall send without delay to the Review Board of the appropriate province a transcript of the hearing, any document or information relating to the hearing in its possession and all exhibits filed with it or a copy of those exhibits.

Transmittal of transcript to Review Board

(3.1) If the court martial does not hold a hearing referred to in subsection (3), it shall send without delay to the Review Board of the appropriate province, following a verdict of unfit to stand trial or not responsible on account of mental disorder, any transcript of the proceedings in respect of the accused, any document or information relating to the proceedings in its possession and all exhibits filed with it or a copy of those exhibits.

1991, c. 43, s. 18

56. Paragraphs 202.23(3)(a) and (b) of the Act are replaced by the following:

(a) subject to paragraph (c), if a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is available within a period of twenty-four hours after the arrest, the accused person shall be taken before the justice or commanding officer without unreasonable delay and in any event within that period;

(b) subject to paragraph (c), if a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is not available within a period of twenty-four hours after the arrest, the accused person shall be taken before a justice or a commanding officer as soon as practicable; and

(c) an accused person in respect of whom a disposition has been made by a court martial under subsection 201(1) or paragraph 202.16(b) or (c) or by a Review Board under paragraph 672.54(b) or (c) of the Criminal Code may, as soon as practicable, be taken to the place specified in the disposition.

1991, c. 43, s. 18

57. Paragraph 202.24(3)(c) of the Act is repealed.

1991, c. 43, s. 18; 1998, c. 35, s. 54

58. Sections 202.25 and 202.26 of the Act are replaced by the following:

Powers of Review Board

202.25 (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16, except for the powers and duties referred to in sections 672.851 and 672.86 to 672.89 of the Criminal Code.

Application of paragraph 672.121(a) of Criminal Code

(2) For the purpose of subsection (1), the reference to subsection 672.851(1) of the Criminal Code in paragraph 672.121(a) of that Act shall be read as a reference to subsection 202.121(1) of this Act.

Application of ss. 672.67 to 672.71 of Criminal Code to findings

202.26 Sections 672.67 to 672.71 of the Criminal Code apply, with any modifications that the circumstances require, to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and a reference in any of those sections to a Review Board is deemed to be a reference to the Review Board of the appropriate province.

59. Section 230.1 of the Act is amended by striking out the word “or” at the end of paragraph (f) and by adding the following after that paragraph:

(f.1) the legality of an order for a stay of proceedings made under subsection 202.121(7); or

60. The Act is amended by adding the following after section 240.3:

Appeal

240.4 (1) The Court Martial Appeal Court may allow an appeal against an order made under subsection 202.121(7) for a stay of proceedings, if the Court Martial Appeal Court is of the opinion that the order is unreasonable or cannot be supported by the evidence.

Effect

(2) If the Court Martial Appeal Court allows the appeal, it may set aside the order for a stay of proceedings and restore the finding that the accused person is unfit to stand trial and the disposition made in respect of the accused person.

Replacement of “audition” with “audience”

61. The French version of the Act is amended by replacing the words “audition” and “auditions” with the words “audience” and “audiences”, respectively, wherever they occur in the following provisions:

(a) subsection 200(2);

(b) subsection 202.12(1);

(d) subsection 202.22(1); and

(e) subsection 202.23(4).

1997, c. 9

Nuclear Safety and Control Act

62. Section 124 of the Nuclear Safety and Control Act is repealed.

2002, c. 1

Youth Criminal Justice Act

63. (1) Subsection 141(1) of the Youth Criminal Justice Act is replaced by the following:

Sections of Criminal Code applicable

141. (1) Except to the extent that they are inconsistent with or excluded by this Act, section 16 (defence of mental disorder) and Part XX.1 (mental disorder) of the Criminal Code apply, with any modifications that the circumstances require, in respect of proceedings under this Act in relation to offences alleged to have been committed by young persons.

(2) Subsection 141(5) of the Act is repealed.

(3) Subsections 141(7) to (9) of the Act are repealed.

COORDINATING AMENDMENTS

An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Criminal Evidence Act

64. (1) Subsections (2) and (3) apply if a bill entitled An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act (the “other Act”), is introduced in the 1st Session of the 38th Parliament and receives royal assent.

(2) On the later of the coming into force of section 15 of the other Act and section 17 of this Act, subsection 672.501(1) of the Criminal Code is replaced by the following:

Order restricting publication — sexual offences

672.501 (1) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in subsection 486.4(1), the Review Board shall make an order directing that any information that could identify a victim, or a witness who is under the age of eighteen years, shall not be published in any document or broadcast or transmitted in any way.

(3) If either section 18 of this Act or section 22 of the other Act comes into force before the other, then the other is repealed on that coming into force.

COMING INTO FORCE

Order of Governor in Council

65. The provisions of this Act, other than section 64, and the provisions of any Act as enacted by this Act, come into force on a day or days to be fixed by order of the Governor in Council.

Published under authority of the Speaker of the House of Commons

Available from:
Publishing and Depository Services
Public Works and Government Services Canada

Explanatory Notes

An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof

Clause 44: Existing text of subsection 7(2):

(2) On the coming into force of section 747.1 of the Criminal Code, as enacted by section 6 of this Act, paragraph (b) of the definition “sentence” in section 785 of the Criminal Code is replaced by the following:

(b) an order made under subsection 100(2) or 259(1) or (2), section 261, subsection 730(1), section 737, 738, 739 or 742.3 or subsection 747.1(1), and

An Act to amend the Criminal Code, the Controlled Drugs and Substances Act and the Corrections and Conditional Release Act

Clause 45: Existing text of section 51:

(b) an order made under subsection 100(1) or (2), section 161, subsection 194(1) or 259(1) or (2), section 261 or 462.37, subsection 491.1(2) or 730(1), section 737, 738, 739, 742.1, 742.3, 743.6, 745.4 or 745.5 or subsection 747.1(1),

An Act to amend the Criminal Code (victims of crime) and another Act in consequence

Clause 46: Existing text of subsection 29(2):

(2) On the later of the coming into force of this Act and the coming into force of paragraph (b) of the definition “sentence” in section 785 of the Criminal Code, as enacted by subsection 7(2) of An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, chapter 22 of the Statutes of Canada, 1995, that paragraph is replaced by the following:

(b) an order made under subsection 110(1) or 259(1) or (2), section 261, subsection 730(1) or 737(3) or (5), section 738, 739 or 742.3 or subsection 747.1(1), and

National Defence Act

Clause 47: Existing text of the heading and section 149.1:

Hospital Orders

149.1 A court martial may order that an offender be detained in a treatment facility as if it were a court making a hospital order under the Criminal Code, and the provisions of the Criminal Code relating to hospital orders and the precedence of hospital orders over other orders apply, with such modifications as the circumstances require.

Clause 48: Existing text of subsection 202.12(2):

(2) Where, on the completion of an inquiry held pursuant to subsection (1) the court martial is satisfied that sufficient admissible evidence cannot be adduced to put the accused person on trial, the court martial shall find the accused person not guilty of the charge.

Clause 49: New.

Clause 50: Relevant portion of subsection 202.17(1):

202.17 (1) An accused person shall not be placed in custody pursuant to an assessment order made under this Division unless

Clause 51: Existing text of subsection 202.18(1):

202.18 (1) During the period that an assessment order made under this Division is in force, no order may be made for custody or release from custody of the accused person under any provision of Division 3 or for release from detention or imprisonment under any provision of Division 10 in respect of that offence or an included offence.

Clause 52: Existing text of subsection 202.19(1):

202.19 (1) An assessment order may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused person.

Clause 53: Existing text of section 202.2:

202.2 (1) A disposition made in respect of an accused person under section 201, 202 or 202.16 shall come into force on the day that it is made or on any later day that the court martial specifies in it, and shall remain in force until the date of expiration that the disposition specifies or until the Review Board of the appropriate province holds a hearing as required under section 202.25.

(2) No disposition made under paragraph 201(1)(b) or 202.16(1)(c) by a court martial shall continue in force for more than ninety days after the day that it is made.

Clause 54: Relevant portion of subsection 202.21(3):

(3) Pending a disposition by the Review Board, where a court martial

(a) makes a disposition under paragraph 201(1)(b) or 202.16(1)(c) in respect of an accused person, that disposition takes precedence over any prior sentence of imprisonment or detention of the accused person except a hospital order made under section 149.1, or under section 736.11 of the Criminal Code; or

Clause 55: Existing text of subsection 202.22(3):

(3) Where a court martial makes a disposition, it shall send forthwith a transcript of the hearing held by it pursuant to subsection 200(2) or 202.15(1), any document or information relating thereto in the possession of the court martial, and all exhibits filed with the court or a copy thereof, to the Review Board of the appropriate province.

Clause 56: Existing text of subsection 202.23(3):

(3) An accused person arrested pursuant to subsection (2) shall be dealt with in accordance with the following provisions:

(a) where a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is available within a period of twenty-four hours after the arrest, the accused person shall be taken before the justice or commanding officer without unreasonable delay and in any event within that period; and

(b) where a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is not available within a period of twenty-four hours after the arrest, the accused person shall be taken before a justice or a commanding officer as soon as is practicable thereafter.

Clause 57: Relevant portion of subsection 202.24(3):

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of

...

(c) finding whether the accused person is a dangerous mentally disordered accused under section 672.65 of the Criminal Code;

Clause 58: Existing text of sections 202.25 and 202.26:

202.25 Review Boards and the chairpersons thereof may exercise the powers and shall perform the duties assigned to them under sections 672.43, 672.47 to 672.57, 672.63 and 672.68 to 672.7 of the Criminal Code in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16.

202.26 Sections 672.64 to 672.71 and 672.79 and subsections 672.8(1) and (2) of the Criminal Code apply, with such modifications as the circumstances require, to findings made by courts martial under this Act of unfit to stand trial or not responsible on account of mental disorder, and

(a) a reference in any of those sections to a Review Board is deemed to be a reference to the Review Board of the appropriate province;

(b) a reference in subsection 672.64(3) or 672.65(1) of the Criminal Code to a designated offence prosecuted by indictment is deemed to be a reference to a designated offence;

(c) no application under subsection 672.65(2) of the Criminal Code may be made to a superior court of criminal jurisdiction;

(d) a reference in section 754 of the Criminal Code to the Attorney General of the province in which the accused person was tried is deemed to be a reference to the Minister;

(e) the references in subsections 672.8(1) and (2) of the Criminal Code to the Attorney General are deemed to be references to the Minister of National Defence; and

(f) the Court Martial Appeal Court may not order a new hearing under paragraph 672.79(2)(a) or 672.8(2)(a) of the Criminal Code where the finding or dismissal of the application for a finding is that of a General Court Martial or a Disciplinary Court Martial.

Clause 59: Relevant portion of section 230.1:

230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

Clause 60: New.

Nuclear Safety and Control Act

Clause 62: Existing text of section 124:

124. On the later of the day on which subsection 672.64(1) of the Criminal Code, as enacted by section 4 of An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, chapter 43 of the Statutes of Canada, 1991, comes into force and the day on which this Act comes into force,

(a) item 67 of the schedule to Part XX.1 of the Criminal Code and the heading before it are repealed; and

(b) the schedule to Part XX.1 of the Criminal Code is amended by adding the following after item 90:

NUCLEAR SAFETY AND CONTROL

90.1 Paragraphs 48(a) and (b) and section 50 — offence

Youth Criminal Justice Act

Clause 63: (1) Existing text of subsection 141(1):

141. (1) Except to the extent that they are inconsistent with or excluded by this Act, section 16 (defence of mental disorder) and Part XX.1 (mental disorder) of the Criminal Code, except sections 672.65 (capping of offences) and 672.66 (hearing application procedures), apply, with any modifications that the circumstances require, in respect of proceedings under this Act in relation to offences alleged to have been committed by young persons.

(2) Existing text of subsection 141(5):

(5) A youth justice court may not make an order under section 672.11 (assessment order) of the Criminal Code in respect of a young person for the purpose of assisting in the determination of a matter mentioned in paragraph (e) of that section.

(3) Existing text of subsections 141(7) to (9):

(7) Subject to subsection (9), for the purpose of applying subsection 672.64(3) (cap for various offences) of the Criminal Code to proceedings under this Act in relation to an offence alleged to have been committed by a young person, the applicable cap shall be the maximum period during which the young person would be subject to a youth sentence by the youth justice court if found guilty of the offence.

(8) If a young person is charged with a presumptive offence or notice has been given under subsection 64(2) (intention to seek adult sentence), and the young person is found unfit to stand trial, the Attorney General may apply to the court to increase the cap that will apply to the young person.

(9) The youth justice court, after giving the Attorney General and the counsel and a parent of the young person in respect of whom subsection (8) applies an opportunity to be heard, shall take into consideration

(a) the seriousness and circumstances of the alleged offence,

(b) the age, maturity, character and background of the young person and any previous criminal record,

(c) the likelihood that the young person will cause significant harm to any person if released on expiry of the cap that applies to the young person under subsection (7), and

(d) the respective caps that would apply to the young person under this Act and under the Criminal Code.

If the court is satisfied that it would make an order under subsection 64(5) (application for adult sentence unopposed) or 70(2) (no application by young person to avoid adult sentence) or paragraph 72(1)(b) (imposition of adult sentence) if the young person were fit to stand trial, it shall apply to the young person the cap that would apply to an adult for the same offence.