Bill C-23

1st Session, 39th Parliament,

55-56 Elizabeth II, 2006-2007

house of commons of canada

BILL C-23

An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments)

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

CRIMINAL CODE

1. Subsection 4(7) of the Criminal Code is replaced by the following:

(6.1) Despite subsection (6), the service of documents may be proved in accordance with the laws of a province relating to offences created by the laws of that province.

(7) Despite subsection (6) or (6.1), the court may require the person who appears to have signed an affidavit, a solemn declaration or a statement in accordance with that subsection to appear before it for examination or cross-examination in respect of the issue of proof of service or of the giving or sending of any notice.

2. Subsections 117.13(4) and (5) of the Act are repealed.

3. The portion of subsection 145(3) of the Act before paragraph (a) is replaced by the following:

(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of

4. The portion of subsection 164.2(1) of the Act before paragraph (a) is replaced by the following:

164.2 (1) On application of the Attorney General, a court that convicts a person of an offence under section 163.1 or 172.1, in addition to any other punishment that it may impose, may order that any thing — other than real property — be forfeited to Her Majesty and disposed of as the Attorney General directs if it is satisfied, on a balance of probabilities, that the thing

5. Paragraph 202(1)(i) of the Act is replaced by the following:

(i) wilfully and knowingly sends, transmits, delivers or receives any message that conveys any information relating to book-making, pool-selling, betting or wagering, or that is intended to assist in book-making, pool-selling, betting or wagering; or

6. Subsection 204(2) of the Act is replaced by the following:

(2) For the purposes of paragraph (1)(c), bets made, in accordance with the regulations, in a betting theatre referred to in paragraph (8)(e), or by any means of telecommunication to the race-course of an association or to such a betting theatre, are deemed to be made on the race-course of the association.

7. Section 255 of the Act is amended by adding the following after subsection (3):

(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).

8. (1) Subsections 259(1.1) to (1.4) of the Act are replaced by the following:

(1.1) If the offender is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and complies with the conditions of the program, the offender may, subject to subsection (1.2), operate a motor vehicle equipped with an alcohol ignition interlock device during the prohibition period, unless the court orders otherwise.

(1.2) An offender who is registered in a program referred to in subsection (1.1) may not operate a motor vehicle equipped with an alcohol ignition interlock device until

(a) the expiry of a period of

(i) for a first offence, 3 months after the day on which sentence is imposed,

(ii) for a second offence, 6 months after the day on which sentence is imposed, and

(iii) for each subsequent offence, 12 months after the day on which sentence is imposed; or

(b) the expiry of any period that may be fixed by order of the court that is greater than a period referred to in paragraph (a).

(2) Paragraph 259(2)(a) of the Act is replaced by the following:

(a) during any period that the court considers proper, if the offender is sentenced to imprisonment for life in respect of that offence;

(a.1) during any period that the court considers proper, plus any period to which the offender is sentenced to imprisonment, if the offender is liable to imprisonment for life in respect of that offence and if the sentence imposed is other than imprisonment for life;

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

(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.

(4) The portion of subsection 259(4) of the Act before paragraph (a) is replaced by the following:

(4) Every offender who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program,

9. Subsection 351(1) of the Act is replaced by the following:

351. (1) Every one who, without lawful excuse, the proof of which lies on them, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for such a purpose,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.

10. Section 481.2 of the Act is replaced by the following:

481.2 Subject to this or any other Act of Parliament, where an act or omission is committed outside Canada and the act or omission is an offence when committed outside Canada under this or any other Act of Parliament, proceedings in respect of the offence may, whether or not the accused is in Canada, be commenced, and an accused may be charged, tried and punished within any territorial division in Canada in the same manner as if the offence had been committed in that territorial division.

11. (1) Subsection 487(2) of the Act is replaced by the following:

(2) If the building, receptacle or place is in another territorial division, the justice may issue the warrant with any modifications that the circumstances require, and it may be executed in the other territorial division after it has been endorsed, in Form 28, by a justice who has jurisdiction in that territorial division. The endorsement may be made on the original of the warrant or on a copy of the warrant transmitted by any means of telecommunication.

(2) Subsection 487(4) of the Act is replaced by the following:

(4) An endorsement that is made in accord­ance with subsection (2) is sufficient authority to the peace officers or public officers to whom the warrant was originally directed, and to all peace officers within the jurisdiction of the justice by whom it is endorsed, to execute the warrant and to deal with the things seized in accordance with section 489.1 or as otherwise provided by law.

12. Subsection 487.03(1) of the Act is replaced by the following:

487.03 (1) If a warrant is issued under section 487.01, 487.05 or 492.1 or subsection 492.2(1) in one province, a judge or justice, as the case may be, in another province may, on application, endorse the warrant if it may reasonably be expected that it is to be executed in the other province and that its execution would require entry into or on the property of any person, or would require that an order be made under section 487.02 with respect to any person, in that province.

(1.1) The endorsement may be made on the original of the warrant or on a copy of the warrant that is transmitted by any means of telecommunication and, once endorsed, the warrant has the same force in the other province as though it had originally been issued there.

13. Subsection 487.055(6) of the Act is repealed.

14. Subsection 490(17) of the Act is replaced by the following:

(17) A person who feels aggrieved by an order made under subsection (8), (9), (9.1) or (11) may appeal from the order

(a) to the court of appeal as defined in section 673 if the order was made by a judge of a superior court of criminal jurisdiction, in which case sections 678 to 689 apply with any modifications that the circumstances require; or

(b) to the appeal court as defined in section 812 in any other case, in which case sections 813 to 828 apply with any modifications that the circumstances require.

15. Subsection 501(5) of the Act is repealed.

16. Section 507.1 of the Act is amended by adding the following after subsection (10):

(11) In this section, “Attorney General” includes the Attorney General of Canada and his or her lawful deputy in respect of proceedings that could have been commenced at the instance of the Government of Canada and conducted by or on behalf of that Government.

17. Subsection 509(3) of the Act is repealed.

18. (1) Subsection 530(3) of the Act is replaced by the following:

(3) The justice of the peace or provincial court judge before whom an accused first appears shall ensure that they are advised of their right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made.

(2) Subsection 530(5) of the Act is replaced by the following:

(5) An order under this section that a trial be held in one of the official languages of Canada may, if the circumstances warrant, be varied by the court to require that it be held in both official languages of Canada, and vice versa.

(6) The facts that two or more accused who are to be tried together are each entitled to be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak one of the official languages of Canada and that those official languages are different may constitute circumstances that warrant that an order be granted directing that they be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages of Canada.

19. The Act is amended by adding the following after section 530:

530.01 (1) If an order is granted under section 530, a prosecutor — other than a private prosecutor — shall, on application by the accused,

(a) cause any portion of an information or indictment against the accused that is in an official language that is not that of the accused or that in which the accused can best give testimony to be translated into the other official language; and

(b) provide the accused with a written copy of the translated text at the earliest possible time.

(2) In the case of a discrepancy between the original version of a document and the translated text, the original version shall prevail.

20. (1) The portion of section 530.1 of the Act before paragraph (a) is replaced by the following:

530.1 If an order is granted under section 530,

(2) Paragraphs 530.1(d) and (e) of the Act are replaced by the following:

(c.1) the presiding justice or judge may, if the circumstances warrant, authorize the prosecutor to examine or cross-examine a witness in the official language of the witness even though it is not that of the accused or that in which the accused can best give testimony;

(d) the accused has a right to have a justice presiding over the preliminary inquiry who speaks the official language of the accused or both official languages, as the case may be;

(e) the accused has a right to have a prosecutor — other than a private prosecutor — who speaks the official language of the accused or both official languages, as the case may be;

21. Section 531 of the Act is replaced by the following:

530.2 (1) If an order is granted directing that an accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages, the justice or judge presiding over a preliminary inquiry or trial may, at the start of the proceeding, make an order setting out the circumstances in which, and the extent to which, the prosecutor and the justice or judge may use each official language.

(2) Any order granted under this section shall, to the extent possible, respect the right of the accused to be tried in his or her official language.

531. Despite any other provision of this Act but subject to any regulations made under section 533, if an order made under section 530 cannot be conveniently complied with in the territorial division in which the offence would otherwise be tried, the court shall, except if that territorial division is in the Province of New Brunswick, order that the trial of the accused be held in another territorial division in the same province.

22. Section 537 of the Act is amended by adding the following after subsection (1):

(1.01) Where a justice grants a request under paragraph (1)(j.1), the Court must inform the accused that the evidence taken during his or her absence could still be admissible under section 715.

23. Subsections 565(2) and (3) of the Act are replaced by the following:

(2) If an accused is to be tried after an indictment has been preferred against the accused pursuant to a consent or order given under section 577, the accused is, for the purposes of the provisions of this Part relating to election and re-election, deemed both to have elected to be tried by a court composed of a judge and jury and not to have requested a preliminary inquiry under subsection 536(4) or 536.1(3) and may re-elect to be tried by a judge without a jury without a preliminary inquiry.

(3) Where an accused wishes to re-elect under subsection (2), the accused shall give notice in writing that he wishes to re-elect to a judge or clerk of the court where the indictment has been filed or preferred who shall, on receipt of the notice, notify a judge having jurisdiction or clerk of the court by which the accused wishes to be tried of the accused’s intention to re-elect and send to that judge or clerk the indictment and any promise to appear, undertaking or recognizance given or entered into in accordance with Part XVI, any summons or warrant issued under section 578, or any evidence taken before a coroner, that is in the possession of the first-mentioned judge or clerk.

24. Section 568 of the Act is replaced by the following:

568. Even if an accused elects under section 536 or re-elects under section 561 or subsection 565(2) to be tried by a judge or provincial court judge, as the case may be, the Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge or provincial court judge has no jurisdiction to try the accused under this Part and a preliminary inquiry must be held if requested under subsection 536(4), unless one has already been held or the re-election was made under subsection 565(2).

24.1 Subsection 569(1) of the Act is replaced by the following:

569. (1) Even if an accused elects under section 536.1 or re-elects under section 561.1 or subsection 565(2) to be tried by a judge without a jury, the Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge has no jurisdiction to try the accused under this Part and a preliminary inquiry must be held if requested under subsection 536.1(3), unless one has already been held or the re-election was made under subsection 565(2).

25. Section 634 of the Act is amended by adding the following after subsection (2.1):

(2.2) For the purposes of replacing jurors under subsection 644(1.1), the prosecutor and the accused are each entitled to one peremptory challenge for each juror to be replaced.

26. Subsections 640(2) and (3) of the Act are replaced by the following:

(2) If the ground of a challenge is one that is not mentioned in subsection (1) and no order has been made under subsection (2.1), the two jurors who were last sworn — or, if no jurors have been sworn, two persons present who are appointed by the court for the purpose — shall be sworn to determine whether the ground of challenge is true.

(2.1) If the challenge is for cause and if the ground of the challenge is one that is not mentioned in subsection (1), on the application of the accused, the court may order the exclusion of all jurors — sworn and unsworn — from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors.

(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until twelve jurors and any alternate jurors are sworn.

(3) Where the finding, pursuant to subsection (1), (2) or (2.2) is that the ground of challenge is not true, the juror shall be sworn, but if the finding is that the ground of challenge is true, the juror shall not be sworn.

27. Subsection 667(5) of the French version of the Act is replaced by the following:

28. The portion of subsection 676(1.1) of the Act before paragraph (a) is replaced by the following:

(1.1) The Attorney General or counsel instructed by the Attorney General may appeal, pursuant to subsection (1), with leave of the court of appeal or a judge of that court, to that court in respect of a verdict of acquittal in a summary offence proceeding or a sentence passed with respect to a summary conviction as if the summary offence proceeding was a proceeding by indictment if

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

(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;

(c) an order to make restitution under section 738 or 739;

(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.

(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):

(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.

30. Section 685 of the Act is renumbered as subsection 685(1) and is amended by adding the following:

(2) If it appears to the registrar that a notice of appeal should have been filed with another court, the registrar may refer the appeal to a judge of the court of appeal for summary determination, and the judge may dismiss the appeal summarily without calling on any person to attend the hearing or to appear for the respondent on the hearing.

31. Section 695 of the Act is amended by adding the following after subsection (1):

(2) Subject to subsection (3), if a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury or a provincial court judge. The election is deemed to be a re-election within the meaning of subsection 561(5) and subsections 561(5) to (7) apply to it with any modifications that the circumstances require.

(3) If a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury in Nunavut, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury. The election is deemed to be a re-election within the meaning of subsection 561.1(6) and subsections 561.1(6) to (9) apply to it with any modifications that the circumstances require.

32. Subsection 701(3) of the Act is repealed.

33. Section 701.1 of the Act is replaced by the following:

701.1 Despite section 701, in any province, service of a document may be made in accordance with the laws of the province relating to offences created by the laws of that province.

34. Section 715 of the Act is amended by adding the following after subsection (2):

(2.1) Despite subsections (1) and (2), evidence that has been taken at a preliminary inquiry in the absence of the accused may be admitted as evidence for the purposes referred to in those subsections if the accused was absent further to the permission of a justice granted under paragraph 537(1)(j.1).

35. Section 720 of the Act is renumbered as subsection 720(1) and is amended by adding the following:

(2) The court may, with the consent of the Attorney General and the offender and after considering the interests of justice and of any victim of the offence, delay sentencing to enable the offender to attend a treatment program approved by the province under the supervision of the court, such as an addiction treatment program or a domestic violence counselling program.

36. Subsections 729(4) and (5) of the Act are repealed.

37. Subsection 732.1(5) of the Act is replaced by the following:

(5) The court that makes a probation order shall

(a) cause a copy of the order to be given to the offender;

(b) explain the conditions of the order set under subsections (2) to (3.1) and the substance of section 733.1 to the offender;

(c) cause an explanation to be given to the offender of the procedure for applying under subsection 732.2(3) for a change to the optional conditions and of the substance of subsections 732.2(3) and (5); and

(d) take reasonable measures to ensure that the offender understands the order and the explanations.

(6) For greater certainty, a failure to comply with subsection (5) does not affect the validity of the probation order.

38. Subsection 734(5) of the Act is replaced by the following:

(5) The term of imprisonment referred to in subsection (4) is the lesser of

(a) the number of days that corresponds to a fraction, rounded down to the nearest whole number, of which

(i) the numerator is the unpaid amount of the fine plus the costs and charges of committing and conveying the defaulter to prison, calculated in accordance with regulations made under subsection (7), and

(ii) the denominator is equal to eight times the provincial minimum hourly wage, at the time of default, in the province in which the fine was imposed, and

(b) the maximum term of imprisonment that the court could itself impose on conviction or, if the punishment for the offence does not include a term of imprisonment, five years in the case of an indictable offence or six months in the case of a summary conviction offence.

39. Section 734.2 of the Act is replaced by the following:

734.2 (1) A court that makes an order under section 734.1 shall

(a) cause a copy of the order to be given to the offender;

(b) explain the substance of sections 734 to 734.8 and 736 to the offender;

(c) cause an explanation to be given to the offender of the procedure for applying under section 734.3 for a change to the optional conditions and of any available fine option programs referred to in section 736 as well as the procedure to apply for admission to them; and

(d) take reasonable measures to ensure that the offender understands the order and the explanations.

(2) For greater certainty, a failure to comply with subsection (1) does not affect the validity of the order.

40. Subsection 742.3(3) of the Act is replaced by the following:

(3) A court that makes an order under this section shall

(a) cause a copy of the order to be given to the offender;

(b) explain the substance of subsection (1) and sections 742.4 and 742.6 to the offender;

(c) cause an explanation to be given to the offender of the procedure for applying under section 742.4 for a change to the optional conditions; and

(d) take reasonable measures to ensure that the offender understands the order and the explanations.

(4) For greater certainty, a failure to comply with subsection (3) does not affect the validity of the order.

41. Subsections 742.6(6) and (7) of the Act are repealed.

42. The Act is amended by adding the following after section 743.2:

743.21 (1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary.

(2) Every person who fails, without lawful excuse, the proof of which lies on that person, to comply with the order

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

43. (1) Subsection 743.5(1) of the Act is replaced by the following:

743.5 (1) If a young person or an adult is or has been sentenced to a term of imprisonment for an offence while subject to a disposition made under paragraph 20(1)(k) or (k.1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act, the remaining portion of the disposition or youth sentence shall 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) Subsection 743.5(3) of the Act is replaced by the following:

(3) For greater certainty, the following are deemed to constitute one sentence of imprisonment for the purposes of section 139 of the Corrections and Conditional Release Act:

(a) for the purposes of subsection (1), the remainder of the youth sentence or disposition and the subsequent term of imprisonment; and

(b) for the purposes of subsection (2), the term of imprisonment and the subsequent youth sentence or disposition.

44. Subsection 787(1) of the Act is replaced by the following:

787. (1) Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both.

45. Subsections 803(2) and (3) of the Act are replaced by the following:

(2) If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been notified of that time and place, or does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1), the summary conviction court

(a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or

(b) may, if it thinks fit, issue a warrant in Form 7 for the arrest of that defendant and adjourn the trial to await their appearance under the warrant.

(3) If the summary conviction court proceeds in the manner described in paragraph (2)(a), no proceedings under section 145 arising out of the defendant’s failure to appear at the time and place appointed for the trial or for the resumption of the trial shall, without the consent of the Attorney General, be instituted or be proceeded with.

45.1 Form 12 of the Act is replaced by the following:

FORM 12

(Sections 493 and 679)

UNDERTAKING GIVEN TO A JUSTICE OR A JUDGE

Canada,

Province of ....................,

(territorial division).

I, A.B., of ................, (occupation), understand that I have been charged that (set out briefly the offence in respect of which accused is charged).

In order that I may be released from custody, I undertake to attend court on ........... day, the ................ day of ................ A.D. ........, and to attend after that as required by the court in order to be dealt with according to law (or, where date and place of appearance before court are not known at the time undertaking is given, to attend at the time and place fixed by the court and after that as required by the court in order to be dealt with according to law).

(and, where applicable)

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

(a) report at (state times) to (name of peace officer or other person designated);

(b) remain within (designated territorial jurisdiction);

(c) notify (name of peace officer or other person designated) of any change in my address, employment or occupation;

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

(e) deposit my passport (as the justice or judge directs); and

(f) (any other reasonable conditions).

I understand that failure without lawful excuse to attend court in accordance with this undertaking is an offence under subsection 145(2) of the Criminal Code.

Subsections 145(2) and (3) of the Criminal Code state as follows:

“(2) Every one who,

(a) being at large on his undertaking or recognizance given to or entered into before a justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court in accordance with the undertaking or recognizance, or

(b) having appeared before a court, justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court as thereafter required by the court, justice or judge,

or to surrender himself in accordance with an order of the court, justice or judge, as the case may be, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction.

(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.”

Dated this ................ day of ................ A.D. ........, at ................ .

.....................................

(Signature of accused)

COMING INTO FORCE

46. Sections 7, 8, 18 to 21, 29, 35, 37 to 40, 42 and 44 come into force on a day or days to be fixed by order of the Governor in Council.