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Bill C-70

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First Reading

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C-70

First Session, Thirty-eighth Parliament,

53-54 Elizabeth II, 2004-2005

HOUSE OF COMMONS OF CANADA

BILL C-70

An Act to amend the Criminal Code (conditional sentence of imprisonment)

first reading, October 27, 2005

THE MINISTER OF JUSTICE

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SUMMARY

This enactment amends the Criminal Code to create a presumption that courts shall not make conditional sentence orders when sentencing offenders convicted of serious personal injury offences, terrorism offences, criminal organization offences or any other offences whose nature and circumstances are such that they require the paramount sentencing objective of the court to be the expression of society’s denunciation. It also allows a court to suspend a conditional sentence order pending appeal, and, before doing so, to order the accused to enter into an undertaking or recognizance. In addition, this enactment clarifies that the minimum punishment provided for offences under sections 253 and 254 of the Criminal Code applies to impaired driving offences causing bodily harm or death and provides that a court may order that the time served under an order prohibiting the operation of a means of transport be served consecutively to the time served under any other similar order that is in force.

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1st Session, 38th Parliament,

53-54 Elizabeth II, 2004-2005

house of commons of canada

BILL C-70

An Act to amend the Criminal Code (conditional sentence of imprisonment)

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

CRIMINAL CODE

1. Section 255 of the Criminal Code is amended by adding the following after subsection (3):

Interpretation

(3.1) For greater certainty, every one who is liable to the punishment described in subsection (2) or (3) is also liable to the minimum punishment described in paragraph (1)(a).

2. Section 259 of the Act is amended by adding the following after subsection (2):

Consecutive prohibition periods

(2.1) The court may, when it makes an order under this section prohibiting the operation of a motor vehicle, a vessel, an aircraft or railway equipment, as the case may be, order that the time served under that order be served consecutively to the time served under any other order made under this section that prohibits the operation of the same means of transport and that is in force.

R.S., c. 23 (4th Supp.), s. 5; 1995, c. 22, s. 10 (Sch. I, item 28); 1997, c. 18, s. 97(1) and par. 141(b); 1999, c. 25, s. 15

3. (1) Subsection 683(5) of the Act is replaced by the following:

Power to order suspension

(5) If 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, when the court, or the judge, considers it to be in the interests of justice, order that any of the following be suspended until the appeal has been determined:

(a) an obligation to pay a fine;

(b) an order of forfeiture or disposition of forfeited property;

(d) an obligation to pay a victim surcharge under section 737;

(e) a probation order under section 731; and

(f) a conditional sentence order under section 742.1.

Undertaking or recognizance

(5.1) Before making an order under paragraph (5)(e) or (f), the court of appeal, or a judge of that court, may order the offender to enter into an undertaking or recognizance.

(2) Section 683 of the Act is amended by adding the following after subsection (6):

Undertaking or recognizance to be taken into account

(7) If the offender has been ordered to enter into an undertaking or recognizance under subsection (5.1), the court of appeal shall, in determining whether to vary the sentence of the offender, take into account the conditions of that undertaking or recognizance and the period during which they were imposed.

1995, c. 22, s. 6; 1997, c. 18, s. 107.1

4. Section 742.1 of the Act is replaced by the following:

Imposing of conditional sentence

742.1 (1) If a person is convicted of an offence, other than an offence that is punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under section 742.3.

Exceptions

(2) Despite subsection (1), the court shall not order that an offender serve his or her sentence in the community if the offender has been convicted of any of the following offences, unless the court is satisfied that it is in the interests of justice to do so because of exceptional circumstances:

(a) a serious personal injury offence as defined in section 752;

(b) a terrorism offence;

(d) an offence in respect of which, on the basis of the nature and circumstances of the offence, the expression of society’s denunciation should take precedence over any other sentencing objectives.

Statement of exceptional circumstances

(3) If the court orders the offender to serve his or her sentence in the community because of exceptional circumstances, the court shall include in the record a statement of those circumstances.

COORDINATING AMENDMENT

Bill C-65

5. If Bill C-65, introduced in the 1st session of the 38th Parliament and entitled An Act to amend the Criminal Code (street racing) and to make a consequential amendment to another Act (referred to in this section as the “other Act”), receives royal assent, then, on the later of the coming into force of subsection 4(1) of the other Act and section 2 of this Act,

(a) subsection 259(2.1) of the Criminal Code, as enacted by section 2 of this Act, is repealed;

(b) subsection 259(2.1) of the Criminal Code, as enacted by subsection 4(1) of the other Act, is repealed; and

Mandatory order of prohibition

(2.1) Despite subsection (2), when an offender is convicted of an offence committed under section 220 or 221 or subsection 249(3) or (4) and was street racing at the time the offence was committed, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place

(a) in the case of an offence under section 221 or subsection 249(3) or (4), during a period of not more than ten years and not less than one year, plus any period to which the offender is sentenced to imprisonment; and

(b) in the case of an offence under section 220, during any period that the court considers proper but for not less than one year, plus any period to which the offender is sentenced to imprisonment.

Consecutive prohibition periods

(2.2) The court may, when it makes an order under this section prohibiting the operation of a motor vehicle, a vessel, an aircraft or railway equipment, as the case may be, order that the time served under that order be served consecutively to the time served under any other order made under this section that prohibits the operation of the same means of transport and that is in force.

Published under authority of the Speaker of the House of Commons

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Explanatory Notes

Criminal Code

Clause 1: New.

Clause 2: New.

Clause 3: (1) Existing text of subsection 683(5):

(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

(a) any obligation to pay a fine,

(b) any order of forfeiture or disposition of forfeited property,

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

(e) the conditions prescribed in a probation order under subsections 732.1(2) and (3)

be suspended until the appeal has been determined.

(2) New.

Clause 4: Existing text of section 742.1:

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.

Table of Contents

COORDINATING AMENDMENT