Bill C-36

2nd Session, 40th Parliament,

57-58 Elizabeth II, 2009

house of commons of canada

BILL C-36

An Act to amend the Criminal Code

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

ALTERNATIVE TITLE

1. This Act may be cited as the Serious Time for the Most Serious Crime Act.

CRIMINAL CODE

2. Section 745.01 of the Criminal Code is renumbered as subsection 745.01(1) and is amended by adding the following:

(2) Subsection (1) does not apply if the offender is convicted of an offence committed on or after the day on which this subsection comes into force.

3. (1) The portion of subsection 745.6(1) of the Act before paragraph (a) is replaced by the following:

745.6 (1) Subject to subsections (2) to (2.6), a person may apply, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole if the person

(2) Subsection 745.6(1) of the Act is amended by adding the following after paragraph (a):

(a.1) committed the murder or high treason before the day on which this paragraph comes into force;

(3) Section 745.6 of the Act is amended by adding the following after subsection (2):

(2.1) A person who is convicted of murder or high treason and who has served less than 15 years of their sentence on the day on which this subsection comes into force may, within 90 days after the day on which they have served 15 years of their sentence, make an application under subsection (1).

(2.2) A person who is convicted of murder or high treason and who has served at least 15 years of their sentence on the day on which this subsection comes into force may make an application under subsection (1) within 90 days after

(a) the end of five years after the day on which the person was the subject of a determination made under subsection 745.61(4) or a determination or conclusion to which subsection 745.63(8) applies; or

(b) the day on which this subsection comes into force, if the person has not made an application under subsection (1).

(2.3) Subsection (2.2) has no effect on a determination or decision made under subsection 745.61(3) or (5) or 745.63(3), (5) or (6) as it read immediately before the day on which this subsection comes into force. A person in respect of whom a time is set under paragraph 745.61(3)(a) or 745.63(6)(a) as it read immediately before that day may make an application under subsection (1) within 90 days after the end of that time.

(2.4) If the person does not make an application in accordance with subsection (2.1), (2.2) or (2.3), as the case may be, they may make an application within 90 days after the day on which they have served a further five years of their sentence following the 90-day period referred to in that subsection, as the case may be.

(2.5) A person who makes an application in accordance with subsection (2.1), (2.2) or (2.3), as the case may be, may make another application under subsection (1) within 90 days after

(a) the end of the time set under paragraph 745.61(3)(a) or 745.63(6)(a), if a time is set under that paragraph; or

(b) the end of five years after the day on which the person is the subject of a determination made under subsection 745.61(4) or a determination or conclusion to which subsection 745.63(8) applies, if the person is the subject of such a determination or conclusion.

(2.6) A person who had made an application under subsection (1) as it read immediately before the day on which this subsection comes into force, whose application was finally disposed of on or after that day and who has then made a subsequent application may make a further application in accordance with subsection (2.5), if either paragraph (2.5)(a) or (b) is applicable.

4. (1) The portion of subsection 745.61(1) of the Act before paragraph (a) is replaced by the following:

745.61 (1) On receipt of an application under subsection 745.6(1), the appropriate Chief Justice shall determine, or shall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed:

(1.1) Subsection 745.61(2) of the English version of the Act is replaced by the following:

(2) In determining whether the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(a) to (e), with any modifications that the circumstances require.

(2) Subsections 745.61(3) to (5) of the Act are replaced by the following:

(3) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge may

(a) set a time, no earlier than five years after the date of the determination, at or after which the applicant may make another application under subsection 745.6(1); or

(b) decide that the applicant may not make another application under that subsection.

(4) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed but does not set a time for another application or decide that such an application may not be made, the applicant may make another application no earlier than five years after the date of the determination.

(5) If the Chief Justice or judge determines that the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application.

5. (1) Paragraph 745.63(6)(a) of the Act is replaced by the following:

(a) set a time, no earlier than five years after the date of the determination or conclusion under subsection (4), at or after which the applicant may make another application under subsection 745.6(1); or

(2) Subsection 745.63(8) of the Act is replaced by the following:

(8) If the jury does not set a date on or after which another application may be made or decide that such an application may not be made, the applicant may make another application no earlier than five years after the date of the determination or conclusion under subsection (4).

TRANSITIONAL PROVISIONS

6. (1) Applications that were made under section 745.6 of the Criminal Code as that section read immediately before the day on which section 3 comes into force and are still not finally disposed of on that day are to be dealt with and disposed of in accordance with the provisions of the Criminal Code as they read immediately before that day.

(2) A person who has made an application referred to in subsection (1) and who is the subject of a determination made under subsection 745.61(4) of the Criminal Code, as that subsection read before the day on which this subsection comes into force, or a determination or conclusion to which subsection 745.63(8) of the Criminal Code, as it read before that day, applies, may make an application under subsection 745.6(1) of the Criminal Code, as amended by subsection 3(1), within 90 days after the end of two years after the day on which the person is the subject of the determination or conclusion.

(3) A person who has made an application referred to in subsection (1) and in respect of whom a time is set under paragraph 745.61(3)(a) or 745.63(6)(a) of the Criminal Code, as enacted by subsections 4(2) and 5(1), respectively, may make an application under subsection 745.6(1) of the Criminal Code, as amended by subsection 3(1), within 90 days after the end of that time.

COMING INTO FORCE

7. This Act comes into force on a day fixed by order of the Governor in Council.