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Bill C-10

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REPORT TO PARLIAMENT

Annual report

11. (1) The Board shall, within three months after the end of each fiscal year, submit to the Minister a report for that year containing the following information:

(a) the number of applications for record suspensions made in respect of the offences referred to in each of paragraphs 4(1)(a) and (b);

(b) the number of record suspensions that the Board ordered or refused to order, in respect of the offences referred to in each of paragraphs 4(1)(a) and (b);

(c) the number of record suspensions ordered, categorized by the offence to which they relate and, if applicable, the province of residence of the applicant; and

(d) any other information required by the Minister.

Tabling of report

(2) The Minister shall cause the report to be laid before each House of Parliament on any of the first 30 days on which that House is sitting after the day on which the Minister receives it.

131. Schedule 1 to the Act is amended by replacing the references after the heading “Schedule 1” with the following:

(Subsections 4(2), (3) and (5))

2010, c. 5, s. 9

132. Subparagraphs 1(b)(i) and (ii) of Schedule 1 to the Act are replaced by the following:

(i) subsection 146(1) (sexual intercourse with a female under 14),

(ii) subsection 146(2) (sexual intercourse with a female 14 or more but under 16),

(iii) section 151 (seduction of a female 16 or more but under 18),

(iv) section 166 (parent or guardian procuring defilement), and

(v) section 167 (householder permitting defilement);

2010, c. 5, s. 9

133. Item 3 of Schedule 1 to the Act is repealed.

2000, c. 1, s. 8.1; 2008, c. 6, s. 58; 2010, c. 5, s. 8

134. Schedule 2 to the Act is replaced by the Schedule 2 set out in the schedule to this Act.

2004, c. 21

International Transfer of Offenders Act

135. Section 3 of the International Transfer of Offenders Act is replaced by the following:

Purpose

3. The purpose of this Act is to enhance public safety and to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals.

136. (1) Subsection 10(1) of the Act is replaced by the following:

Factors — Canadian offenders

10. (1) In determining whether to consent to the transfer of a Canadian offender, the Minister may consider the following factors:

(a) whether, in the Minister’s opinion, the offender’s return to Canada will constitute a threat to the security of Canada;

(b) whether, in the Minister’s opinion, the offender’s return to Canada will endanger public safety, including

(i) the safety of any person in Canada who is a victim, as defined in subsection 2(1) of the Corrections and Conditional Release Act, of an offence committed by the offender,

(ii) the safety of any member of the offender’s family, in the case of an offender who has been convicted of an offence against a family member, or

(iii) the safety of any child, in the case of an offender who has been convicted of a sexual offence involving a child;

(c) whether, in the Minister’s opinion, the offender is likely to continue to engage in criminal activity after the transfer;

(d) whether, in the Minister’s opinion, the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence;

(e) whether, in the Minister’s opinion, the foreign entity or its prison system presents a serious threat to the offender’s security or human rights;

(f) whether the offender has social or family ties in Canada;

(g) the offender’s health;

(h) whether the offender has refused to participate in a rehabilitation or reintegration program;

(i) whether the offender has accepted responsibility for the offence for which they have been convicted, including by acknowledging the harm done to victims and to the community;

(j) the manner in which the offender will be supervised, after the transfer, while they are serving their sentence;

(k) whether the offender has cooperated, or has undertaken to cooperate, with a law enforcement agency; or

(l) any other factor that the Minister considers relevant.

(2) The portion of subsection 10(2) of the Act before paragraph (a) is replaced by the following:

Factors — Canadian and foreign offenders

(2) In determining whether to consent to the transfer of a Canadian or foreign offender, the Minister may consider the following factors:

Consequential Amendments

R.S., c. H-6

Canadian Human Rights Act

1998, c. 9, s. 9

137. Section 2 of the English version of the Canadian Human Rights Act is replaced by the following:

Purpose

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

1996, c. 14, s. 2

138. Subsection 3(1) of the English version of the Act is replaced by the following:

Prohibited grounds of discrimination

3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

1992, c. 22, s. 13

139. (1) The definition “conviction for which a pardon has been granted” in section 25 of the English version of the Act is repealed.

1992, c. 22, s. 13

(2) The definition “état de personne graciée” in section 25 of the French version of the Act is replaced by the following:

« état de personne graciée »
“conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”

« état de personne graciée » État d’une personne physique qui a obtenu un pardon accordé en vertu de la prérogative royale de clémence que possède Sa Majesté ou de l’article 748 du Code criminel ou une suspension du casier au titre de la Loi sur le casier judiciaire, qui n’a pas été révoqué ni annulé.

(3) Section 25 of the English version of the Act is amended by adding the following in alphabetical order:

“conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”
« état de personne graciée »

“conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered” means a conviction of an individual for an offence in respect of which a pardon has been granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code or a record suspension has been ordered under the Criminal Records Act, that has not been revoked or ceased to have effect;

1992, c. 47

Contraventions Act

140. Section 63 of the French version of the Contraventions Act is replaced by the following:

Pas de casier judiciaire

63. Quiconque est déclaré coupable d’une contravention n’est pas coupable d’une infraction criminelle et une contravention ne constitue pas une infraction pour l’application de la Loi sur le casier judiciaire, sauf si elle aboutit à une déclaration de culpabilité par voie de mise en accusation.

R.S., c. C-46

Criminal Code

2004, c. 10, s. 20

141. (1) The definition “réhabilitation” in subsection 490.011(1) of the French version of the Criminal Code is repealed.

2004, c. 10, s. 20

(2) The definition “pardon” in subsection 490.011(1) of the English version of the Act is replaced by the following:

“pardon”
« pardon »

“pardon” means a conditional pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 that has not been revoked.

(3) Subsection 490.011(1) of the Act is amended by adding the following in alphabetical order:

“record suspension”
« suspension du casier »

“record suspension” means a record suspension, as defined in subsection 2(1) of the Criminal Records Act, that has not been revoked or ceased to have effect.

(4) Subsection 490.011(1) of the French version of the Act is amended by adding the following in alphabetical order:

« pardon »
“pardon”

« pardon » Pardon conditionnel accordé en vertu de la prérogative royale de clémence que possède Sa Majesté ou de l’article 748 qui n’a pas été révoqué.

2007, c. 5, s. 15

142. (1) Subsection 490.015(3) of the Act is replaced by the following:

Pardon or record suspension

(3) Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.

2007, c. 5, s. 15

(2) Subsection 490.015(5) of the Act is replaced by the following:

Re-application

(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon or once a record suspension is ordered. However, they may not re-apply under this subsection if an order is made with respect to them under section 490.012 of this Act or section 227.01 of the National Defence Act after the previous application was made.

2004, c. 10, s. 20

143. Paragraph 490.022(2)(c) of the Act is replaced by the following:

(c) the day on which a person referred to in paragraph 490.02(1)(b) provides satisfactory proof of a pardon or record suspension to a person who collects information, as defined in subsection 3(1) of the Sex Offender Information Registration Act, at a registration centre.

2007, c. 5, s. 24; 2010, c. 17, s. 16(2)

144. Subsections 490.026(4) and (5) of the Act are replaced by the following:

Pardon or record suspension

(4) Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.

Re-application

(5) A person whose application is refused may apply again if five years have elapsed since they made the previous application. They may also apply again once they receive a pardon or once a record suspension is ordered. However, they may not apply again if, after the previous application was made, they become subject to an obligation under section 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act or to an order under section 490.012 or under section 227.01 of the National Defence Act.

1991, c. 43, s. 4

145. Paragraph 672.35(c) of the Act is replaced by the following:

(c) the National Parole Board or any provincial parole board may take the verdict into account in considering an application by the accused for parole or for a record suspension under the Criminal Records Act in respect of any other offence.

2000, c. 1, s. 9

146. Subsection 750(4) of the Act is replaced by the following:

Application for restoration of privileges

(4) A person to whom subsection (3) applies may, at any time before a record suspension for which he or she has applied is ordered under the Criminal Records Act, apply to the Governor in Council for the restoration of one or more of the capacities lost by the person by virtue of that subsection.

1997, c. 17, s. 4; 2008, c. 6, s. 45(3)(F)

147. Subsection 753.2(3) of the Act is replaced by the following:

Application for reduction in period of long-term supervision

(3) An offender who is required to be supervised, a member of the National Parole Board or, on approval of that Board, the offender’s parole supervisor, as defined in subsection 99(1) of the Corrections and Conditional Release Act, may apply to a superior court of criminal jurisdiction for an order reducing the period of long-term supervision or terminating it on the ground that the offender no longer presents a substantial risk of reoffending and thereby being a danger to the community. The onus of proving that ground is on the applicant.

1998, c. 37

DNA Identification Act

148. Subsection 10(8) of the DNA Identification Act is replaced by the following:

When record suspension is in effect

(8) Despite anything in this section, stored bodily substances of a person in respect of whom a record suspension, as defined in subsection 2(1) of the Criminal Records Act, is in effect shall be kept separate and apart from other stored bodily substances, and no such bodily substance shall be used for forensic DNA analysis, nor shall the existence of such a bodily substance be communicated to any person.

2001, c. 27

Immigration and Refugee Protection Act

149. Paragraph 36(3)(b) of the Immigration and Refugee Protection Act is replaced by the following:

(b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;

150. Paragraph 53(f) of the Act is replaced by the following:

(f) the effect of a record suspension under the Criminal Records Act on the status of permanent residents and foreign nationals and removal orders made against them; and

2010, c. 5

Limiting Pardons for Serious Crimes Act

151. The Limiting Pardons for Serious Crimes Act is amended by adding the following after section 11:

Pardons in effect — Criminal Records Act

12. The Criminal Records Act, as it read immediately before the day on which this Act comes into force, applies to a pardon that was granted or issued before that day and that has not been revoked or ceased to have effect.

Coming into force

13. Section 12 is deemed to have come into force on June 29, 2010.

R.S., c. N-5

National Defence Act

1991, c. 43, s. 18

152. Paragraph 202.14(2)(h) of the National Defence Act is replaced by the following:

(h) the National Parole Board or any provincial parole board may take the finding into account in considering an application by that person for parole or for a record suspension under the Criminal Records Act in respect of any other offence.

2007, c. 5, s. 4

153. (1) The definition “réhabilitation” in section 227 of the French version of the Act is repealed.

2007, c. 5, s. 4

(2) The definition “pardon” in section 227 of the English version of the Act is replaced by the following:

“pardon”
« pardon »

“pardon” means a conditional pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code that has not been revoked.

(3) Section 227 of the Act is amended by adding the following in alphabetical order:

“record suspension”
« suspension du casier »

“record suspension” means a record suspension, as defined in subsection 2(1) of the Criminal Records Act, that has not been revoked or ceased to have effect.

(4) Section 227 of the French version of the Act is amended by adding the following in alphabetical order:

« pardon »
“pardon”

« pardon » Pardon conditionnel accordé en vertu de la prérogative royale de clémence que possède Sa Majesté ou de l’article 748 du Code criminel qui n’a pas été révoqué.

2007, c. 5, s. 4

154. (1) Subsection 227.03(3) of the Act is replaced by the following:

Pardon or record suspension

(3) Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.

2007, c. 5, s. 4

(2) Subsection 227.03(5) of the Act is replaced by the following:

Re-application

(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon or once a record suspension is ordered. However, they may not re-apply under this subsection if an order is made with respect to them under section 227.01 of this Act or section 490.012 of the Criminal Code after the previous application was made.

2007, c. 5, s. 4; 2010, c. 17, s. 53(2)

155. Subsections 227.12(4) and (5) of the Act are replaced by the following:

Pardon or record suspension

(4) Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.

Re-application

(5) A person whose application is refused may apply again if five years have elapsed since they made the previous application. They may also apply again once they receive a pardon or once a record suspension is ordered. However, they may not apply again if, after the previous application was made, they become subject to an obligation under section 490.019 or 490.02901 of the Criminal Code or under section 36.1 of the International Transfer of Offenders Act or to an order under section 227.01 of this Act or section 490.012 of the Criminal Code.

2002, c. 1

Youth Criminal Justice Act

156. Paragraph 82(1)(d) of the Youth Criminal Justice Act is replaced by the following:

(d) the National Parole Board or any provincial parole board may consider the finding of guilt in considering an application for conditional release or for a record suspension under the Criminal Records Act.

157. Subparagraph 119(1)(n)(iii) of the Act is replaced by the following:

(iii) considering an application for conditional release, or for a record suspension under the Criminal Records Act, made by the young person, whether as a young person or an adult,

158. Subparagraph 120(4)(c)(iii) of the Act is replaced by the following:

(iii) considering an application for conditional release, or for a record suspension under the Criminal Records Act, made by the young person after the young person becomes an adult.

159. Subsection 128(5) of the Act is replaced by the following:

Exception

(5) Despite subsections (1), (2) and (4), an entry that is contained in a system maintained by the Royal Canadian Mounted Police to match crime scene information and that relates to an offence committed or alleged to have been committed by a young person shall be dealt with in the same manner as information that relates to an offence committed by an adult for which a record suspension ordered under the Criminal Records Act is in effect.

Terminology Changes

160. In the following provisions, “National Parole Board” is replaced by “Parole Board of Canada”:

(a) Schedule I to the Access to Information Act;

(b) in the Corrections and Conditional Release Act,

(i) subparagraph (a)(ii) of the definition “inmate” in subsection 2(1),

(ii) paragraph 4(a),

(iii) subsection 25(1),

(iv) the definition “Board” in subsection 99(1),

(v) paragraph 167(2)(a),

(vi) paragraph 177(b),

(vii) subsections 178(1) and (2),

(viii) subsections 179(1) and (3), and

(ix) section 180;

(i) subparagraph (b)(xi) of the definition “justice system participant” in section 2,

(ii) paragraph 672.35(c),

(iii) paragraphs 746.1(2)(c) and (3)(c),

(iv) subsection 753.2(3), and

(v) subsections 761(1) and (2);

(d) in the Criminal Records Act,

(i) the definition “Board” in subsection 2(1), and

(ii) the heading before section 2.1;

(e) section 5 of the Department of Public Safety and Emergency Preparedness Act;

(f) in the Financial Administration Act,

(i) Schedule I.1,

(ii) Schedule IV, and

(iii) Part II of Schedule VI;

(g) section 28 of the International Transfer of Offenders Act;

(h) in the National Defence Act,

(i) paragraph 202.14(2)(h), and

(ii) subsection 222(2);

(i) subsection 6(9) of the Prisons and Reformatories Act;

(j) in the Privacy Act,

(i) section 24, and

(ii) the schedule, under the heading “OTHER GOVERNMENT INSTITUTIONS”;

(k) Schedule I to the Public Sector Compensation Act, under the heading “OTHER PORTIONS OF THE PUBLIC SERV- ICE”; and

(l) in the Youth Criminal Justice Act,

(i) paragraph 77(3)(b), and

(ii) paragraph 82(1)(d).

Transitional Provisions

New applications for pardons

161. Subject to section 162, an application for a pardon under the Criminal Records Act in respect of an offence that is referred to in paragraph 4(a) or (b) of that Act, as it read immediately before the day on which this section comes into force, and that is committed before that day shall be dealt with and disposed of in accordance with the Criminal Records Act, as amended by this Part, as though it were an application for a record suspension.

Pending applications — Criminal Records Act

162. An application for a pardon under the Criminal Records Act that is made on or after the day on which the Limiting Pardons for Serious Crimes Act, chapter 5 of the Statutes of Canada, 2010, came into force and before the day on which this section comes into force shall be dealt with and disposed of in accordance with the Criminal Records Act, as it read when the Board received the application, if the application is not finally disposed of on the day on which this section comes into force.

Pending applications — references in other legislation

163. A reference to an application for a record suspension in the following provisions, as enacted by this Part, is deemed also to be a reference to an application for a pardon that is not finally disposed of on the day on which this section comes into force:

(a) paragraph 672.35(c) and subsection 750(4) of the Criminal Code;

(b) paragraph 202.14(2)(h) of the National Defence Act; and

Pardons in effect — Criminal Records Act

164. The Criminal Records Act, as it read immediately before the day on which this section comes into force, applies to a pardon that was granted on or after the day on which the Limiting Pardons for Serious Crimes Act, chapter 5 of the Statutes of Canada, 2010, came into force and before the day on which this section comes into force and that has not been revoked or ceased to have effect.

Pardons in effect — references in other legislation

165. A reference to a record suspension in the following provisions, as enacted by this Part, is deemed also to be a reference to a pardon that is granted or issued under the Criminal Records Act:

(a) the definition “conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered” in section 25 of the Canadian Human Rights Act;

(b) the definition “record suspension” in subsection 490.011(1) of the Criminal Code;

(d) paragraphs 36(3)(b) and 53(f) of the Immigration and Refugee Protection Act;

(e) the definition “record suspension” in section 227 of the National Defence Act; and

(f) subsection 128(5) of the Youth Criminal Justice Act.

Coming into Force

Order in council

166. (1) The provisions of this Part, other than sections 108 to 146, 148 to 159 and 161 to 165, come into force on a day or days to be fixed by order of the Governor in Council.

Order in council

(2) Sections 135 and 136 come into force on a day to be fixed by order of the Governor in Council.

PART 4

YOUTH CRIMINAL JUSTICE

2002, c. 1

Youth Criminal Justice Act

Amendments to the Act

167. (1) The definition “presumptive offence” in subsection 2(1) of the Youth Criminal Justice Act is repealed.

(2) The definition “serious violent offence” in subsection 2(1) of the Act is replaced by the following:

“serious violent offence”
« infraction grave avec violence »

“serious violent offence” means an offence under one of the following provisions of the Criminal Code:

(a) section 231 or 235 (first degree murder or second degree murder);

(b) section 239 (attempt to commit murder);

(d) section 273 (aggravated sexual assault).

(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

“serious offence”
« infraction grave »

“serious offence” means an indictable offence under an Act of Parliament for which the maximum punishment is imprisonment for five years or more.

“violent offence”
« infraction avec violence »

“violent offence” means

(a) an offence committed by a young person that includes as an element the causing of bodily harm;

(b) an attempt or a threat to commit an offence referred to in paragraph (a); or

(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

168. (1) Paragraph 3(1)(a) of the Act is replaced by the following:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(2) The portion of paragraph 3(1)(b) of the Act before subparagraph (i) is replaced by the following:

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

169. Subsection 29(2) of the Act is replaced by the following:

Justification for detention in custody

(2) A youth justice court judge or a justice may order that a young person be detained in custody only if

(a) the young person has been charged with

(i) a serious offence, or

(ii) an offence other than a serious offence, if they have a history that indicates a pattern of either outstanding charges or findings of guilt;

(b) the judge or justice is satisfied, on a balance of probabilities,

(i) that there is a substantial likelihood that, before being dealt with according to law, the young person will not appear in court when required by law to do so,

(ii) that detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances, including a substantial likelihood that the young person will, if released from custody, commit a serious offence, or

(iii) in the case where the young person has been charged with a serious offence and detention is not justified under subparagraph (i) or (ii), that there are exceptional circumstances that warrant detention and that detention is necessary to maintain confidence in the administration of justice, having regard to the principles set out in section 3 and to all the circumstances, including

(A) the apparent strength of the prosecution’s case,

(B) the gravity of the offence,

(D) the fact that the young person is liable, on being found guilty, for a potentially lengthy custodial sentence; and

(c) the judge or justice is satisfied, on a balance of probabilities, that no condition or combination of conditions of release would, depending on the justification on which the judge or justice relies under paragraph (b),

(i) reduce, to a level below substantial, the likelihood that the young person would not appear in court when required by law to do so,

(ii) offer adequate protection to the public from the risk that the young person might otherwise present, or

(iii) maintain confidence in the administration of justice.

Onus

(3) The onus of satisfying the youth justice court judge or the justice as to the matters referred to in subsection (2) is on the Attorney General.

170. Subsection 32(1) of the Act is amended by adding “and” at the end of paragraph (b), by striking out “and” at the end of paragraph (c) and by repealing paragraph (d).

171. Subsection 37(4) of the Act is replaced by the following:

Appeals heard together

(4) An order under subsection 72(1) or (1.1) (adult or youth sentence), 75(2) (lifting of ban on publication) or 76(1) (placement when subject to adult sentence) may be appealed as part of the sentence and, unless the court to which the appeal is taken otherwise orders, if more than one of these is appealed they must be part of the same appeal proceeding.

172. Subsection 38(2) of the Act is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

173. Paragraph 39(1)(c) of the Act is replaced by the following:

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

174. (1) Paragraph 42(2)(o) of the Act is replaced by the following:

(o) in the case of an offence set out in section 239 (attempt to commit murder), 232, 234 or 236 (manslaughter) or 273 (aggravated sexual assault) of the Criminal Code, make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105;

(2) Paragraph 42(5)(a) of the Act is replaced by the following:

(a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm; and

(3) Subparagraphs 42(7)(a)(i) and (ii) of the Act are replaced by the following:

(i) the young person has been found guilty of a serious violent offence, or

(ii) the young person has been found guilty of an offence, in the commission of which the young person caused or attempted to cause serious bodily harm and for which an adult is liable to imprisonment for a term of more than two years, and the young person had previously been found guilty at least twice of such an offence;

(4) Subsections 42(9) and (10) of the Act are repealed.

175. Sections 61 to 63 of the Act are repealed.

176. (1) Subsections 64(1) and (2) of the Act are replaced by the following:

Application by Attorney General

64. (1) The Attorney General may, before evidence is called as to sentence or, if no evidence is called, before submissions are made as to sentence, make an application to the youth justice court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years and that was committed after the young person attained the age of 14 years.

Obligation

(1.1) The Attorney General must consider whether it would be appropriate to make an application under subsection (1) if the offence is a serious violent offence and was committed after the young person attained the age of 14 years. If, in those circumstances, the Attorney General decides not to make an application, the Attorney General shall advise the youth justice court before the young person enters a plea or with leave of the court before the commencement of the trial.

Order fixing age

(1.2) The lieutenant governor in council of a province may by order fix an age greater than 14 years but not greater than 16 years for the purpose of subsection (1.1).

Notice of intention to seek adult sentence

(2) If the Attorney General intends to seek an adult sentence for an offence by making an application under subsection (1), the Attorney General shall, before the young person enters a plea or with leave of the youth justice court before the commencement of the trial, give notice to the young person and the youth justice court of the intention to seek an adult sentence.

(2) Subsections 64(4) and (5) of the Act are repealed.

177. Sections 65 and 66 of the Act are repealed.

178. (1) The portion of subsection 67(1) of the Act before paragraph (b) is replaced by the following:

Election — adult sentence

67. (1) The youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (2) if

(2) The portion of subsection 67(3) of the Act before paragraph (b) is replaced by the following:

Election — Nunavut

(3) In respect of proceedings in Nunavut, the youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (4) if

179. Section 68 of the Act is repealed.

180. (1) Subsection 69(1) of the Act is repealed.

(2) Subsection 69(2) of the Act is replaced by the following:

Included offences

(2) If the Attorney General has given notice under subsection 64(2) of the intention to seek an adult sentence and the young person is found guilty of an included offence for which an adult is liable to imprisonment for a term of more than two years, committed after he or she has attained the age of 14 years, the Attorney General may make an application under subsection 64(1) (application for adult sentence).

181. Section 70 of the Act is repealed.

182. Section 71 of the Act is replaced by the following:

Hearing — adult sentences

71. The youth justice court shall, at the commencement of the sentencing hearing, hold a hearing in respect of an application under subsection 64(1) (application for adult sentence), unless the court has received notice that the application is not opposed. Both parties and the parents of the young person shall be given an opportunity to be heard at the hearing.

183. (1) Subsections 72(1) to (3) of the Act are replaced by the following:

Order of adult sentence

72. (1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that

(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

Order of youth sentence

(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.

Onus

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General.

Pre-sentence report

(3) In making an order under subsection (1) or (1.1), the youth justice court shall consider the pre-sentence report.

(2) Subsection 72(5) of the Act is replaced by the following:

Appeal

(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) or (1.1) is part of the sentence.

184. Section 73 of the Act is replaced by the following:

Court must impose adult sentence

73. (1) When the youth justice court makes an order under subsection 72(1) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.

Court must impose youth sentence

(2) When the youth justice court makes an order under subsection 72(1.1) in respect of a young person, the court shall, on a finding of guilt, impose a youth sentence on the young person.

185. Section 75 of the Act is replaced by the following:

Decision regarding lifting of publication ban

75. (1) When the youth justice court imposes a youth sentence on a young person who has been found guilty of a violent offence, the court shall decide whether it is appropriate to make an order lifting the ban on publication of information that would identify the young person as having been dealt with under this Act as referred to in subsection 110(1).

Order

(2) A youth justice court may order a lifting of the ban on publication if the court determines, taking into account the purpose and principles set out in sections 3 and 38, that the young person poses a significant risk of committing another violent offence and the lifting of the ban is necessary to protect the public against that risk.

Onus

(3) The onus of satisfying the youth justice court as to the appropriateness of lifting the ban is on the Attorney General.

Appeals

(4) For the purposes of an appeal in accordance with section 37, an order under subsection (2) is part of the sentence.

186. Subsection 76(2) of the Act is replaced by the following:

Young person under age of 18

(2) No young person who is under the age of 18 years is to serve any portion of the imprisonment in a provincial correctional facility for adults or a penitentiary.

187. Section 81 of the Act is replaced by the following:

Procedure for application or notice

81. An application or a notice to the court under section 64 or 76 must be made or given orally, in the presence of the other party, or in writing with a copy served personally on the other party.

188. (1) Paragraph 82(1)(b) of the Act is replaced by the following:

(b) a youth justice court may consider the finding of guilt in considering an application under subsection 64(1) (application for adult sentence);

(2) Paragraph 82(4)(a) of the Act is repealed.

(3) Paragraph 82(4)(b) of the French version of the Act is replaced by the following:

b) de déterminer la peine applicable aux adultes à imposer.

189. Paragraph 110(2)(b) of the Act is replaced by the following:

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

190. Section 115 of the Act is amended by adding the following after subsection (1):

Extrajudicial measures

(1.1) The police force shall keep a record of any extrajudicial measures that they use to deal with young persons.

191. Paragraph 119(1)(o) of the French version of the Act is replaced by the following:

o) toute personne, pour vérifier l’existence d’un casier judiciaire dans le cas où la vérification est exigée par le gouvernement du Canada ou d’une province ou par une municipalité en matière de recrutement de personnel ou de bénévoles ou de fourniture de services;

192. Paragraphs 120(3)(a) and (b) of the Act are replaced by the following:

(a) if the offence is an indictable offence, other than an offence referred to in paragraph (b), the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and ending five years later; and

(b) if the offence is a serious violent offence for which the Attorney General has given notice under subsection 64(2) (intention to seek adult sentence), the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and continuing indefinitely.

193. Section 160 of the Act is repealed.

194. Section 162 of the Act is replaced by the following:

Commencement of proceedings

162. For the purposes of sections 158 and 159, proceedings are commenced by the laying of an information or indictment.

Explanatory Notes

International Transfer of Offenders Act

Clause 135: Existing text of section 3:

3. The purpose of this Act is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals.

Clause 136: (1) Existing text of subsection 10(1):

10. (1) In determining whether to consent to the transfer of a Canadian offender, the Minister shall consider the following factors:

(a) whether the offender’s return to Canada would constitute a threat to the security of Canada;

(b) whether the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence;

(d) whether the foreign entity or its prison system presents a serious threat to the offender’s security or human rights.

(2) Relevant portion of subsection 10(2):

(2) In determining whether to consent to the transfer of a Canadian or foreign offender, the Minister shall consider the following factors:

Canadian Human Rights Act

Clause 137: Existing text of section 2:

Clause 138: Existing text of subsection 3(1):

Clause 139: (1) and (2) Existing text of the definition:

“conviction for which a pardon has been granted” means a conviction of an individual for an offence in respect of which a pardon has been granted by any authority under law and, if granted or issued under the Criminal Records Act, has not been revoked or ceased to have effect;

(3) New.

Contraventions Act

Clause 140: Existing text of section 63:

63. Except in respect of a conviction for a contravention that is entered after a trial on an indictment,

(a) a person who has been convicted of a contravention has not been convicted of a criminal offence; and

(b) a contravention does not constitute an offence for the purposes of the Criminal Records Act.

Criminal Code

Clause 141: (1) and (2) Existing text of the definition:

“pardon” means a pardon granted by any authority under law, other than a free pardon granted under Her Majesty’s royal prerogative of mercy or under section 748, that has not ceased to have effect or been revoked.

(3) and (4) New.

Clause 142: (1) Existing text of subsection 490.015(3):

(3) Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon.

(2) Existing text of subsection 490.015(5):

(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon. However, they may not re-apply under this subsection if an order is made with respect to them under section 490.012 of this Act or section 227.01 of the National Defence Act after the previous application was made.

Clause 143: Relevant portion of subsection 490.022(2):

(2) The obligation ends on the earliest of

...

(c) the day on which a person referred to in paragraph 490.02(1)(b) provides satisfactory proof of a pardon to a person who collects information, within the meaning of subsection 3(1) of the Sex Offender Information Registration Act, at a registration centre.

Clause 144: Existing text of subsections 490.026(4) and (5):

(4) Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon.

(5) A person whose application is refused may apply again if five years have elapsed since they made the application. They may also apply again if they receive a pardon. However, they may not apply again if, after they made the application, they become subject to an obligation under section 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act or an order under section 490.012 or under section 227.01 of the National Defence Act.

Clause 145: Relevant portion of section 672.35:

672.35 Where a verdict of not criminally responsible on account of mental disorder is rendered, the accused shall not be found guilty or convicted of the offence, but

...

(c) the National Parole Board or any provincial parole board may take the verdict into account in considering an application by the accused for parole or pardon in respect of any other offence.

Clause 146: Existing text of subsection 750(4):

(4) A person to whom subsection (3) applies may, at any time before a pardon is granted or issued to the person under section 4.1 of the Criminal Records Act, apply to the Governor in Council for the restoration of one or more of the capacities lost by the person by virtue of that subsection.

Clause 147: Existing text of subsection 753.2(3):

(3) An offender who is required to be supervised, a member of the National Parole Board, or, on approval of that Board, the parole supervisor, as that expression is defined in subsection 134.2(2) of the Corrections and Conditional Release Act, of the offender, may apply to a superior court of criminal jurisdiction for an order reducing the period of long-term supervision or terminating it on the ground that the offender no longer presents a substantial risk of reoffending and thereby being a danger to the community. The onus of proving that ground is on the applicant.

DNA Identification Act

Clause 148: Existing text of subsection 10(8):

(8) Despite anything in this section, stored bodily substances of a person in respect of whom a pardon, within the meaning of section 2 of the Criminal Records Act, is in effect shall be kept separate and apart from other stored bodily substances, and no such bodily substance shall be used for forensic DNA analysis, nor shall the existence of such a bodily substance be communicated to any person.

Immigration and Refugee Protection Act

Clause 149: Relevant portion of subsection 36(3):

(3) The following provisions govern subsections (1) and (2):

...

(b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a pardon has been granted and has not ceased to have effect or been revoked under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;

Clause 150: Relevant portion of section 53:

53. The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting

...

(f) the effect of a pardon under the Criminal Records Act on the status of permanent residents and foreign nationals and removal orders made against them; and

Limiting Pardons for Serious Crimes Act

Clause 151: New.

National Defence Act

Clause 152: Relevant portion of subsection 202.14(2):

(2) Where a finding of not responsible on account of mental disorder is made, the accused person shall not be found guilty or convicted of the offence, but

...

(h) the National Parole Board or any provincial parole board may take the finding into account in considering an application by that person for parole or pardon in respect of any other offence.

Clause 153: (1) and (2) Existing text of the definition:

“pardon” means a pardon granted by any authority under law, other than a free pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code, that has not ceased to have effect or been revoked.

(3) and (4) New.

Clause 154: (1) Existing text of subsection 227.03(3):

(3) Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon.

(2) Existing text of subsection 227.03(5):

(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon. However, they may not re-apply under this subsection if an order is made with respect to them under section 227.01 of this Act or section 490.012 of the Criminal Code after the previous application was made.

Clause 155: Existing text of subsections 227.12(4) and (5):

(4) Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon.

(5) A person whose application is refused may apply again if five years have elapsed since they made the application. They may also apply again if they receive a pardon. However, they may not apply again if, after they made the application, they become subject to an obligation under section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act or an order under section 227.01 of this Act or section 490.012 of the Criminal Code.

Youth Criminal Justice Act

Clause 156: Relevant portion of subsection 82(1):

82. (1) Subject to section 12 (examination as to previous convictions) of the Canada Evidence Act, if a young person is found guilty of an offence, and a youth justice court directs under paragraph 42(2)(b) that the young person be discharged absolutely, or the youth sentence, or any disposition made under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, has ceased to have effect, other than an order under section 51 (mandatory prohibition order) of this Act or section 20.1 (mandatory prohibition order) of the Young Offenders Act, the young person is deemed not to have been found guilty or convicted of the offence except that

...

(d) the National Parole Board or any provincial parole board may consider the finding of guilt in considering an application for conditional release or pardon.

Clause 157: Relevant portion of subsection 119(1):

119. (1) Subject to subsections (4) to (6), from the date that a record is created until the end of the applicable period set out in subsection (2), the following persons, on request, shall be given access to a record kept under section 114, and may be given access to a record kept under sections 115 and 116:

...

(n) a member of a department or agency of a government in Canada, or of an organization that is an agent of, or under contract with, the department or agency, who is

...

(iii) considering an application for conditional release or pardon made by the young person, whether as a young person or an adult,

Clause 158: Relevant portion of subsection 120(4):

(4) If a young person was found guilty of an offence set out in the schedule is, during the period of access to a record under subsection (3), found guilty of an additional offence set out in the schedule, committed when he or she was a young person, access to the record may be given to the following additional persons:

...

(c) a member of a department or agency of a government in Canada, or of an organization that is an agent of, or is under contract with, the department or agency, who is

...

(iii) considering an application for conditional release or pardon made by the young person after the young person becomes an adult.

Clause 159: Existing text of subsection 128(5):

(5) Despite subsections (1), (2) and (4), an entry that is contained in a system maintained by the Royal Canadian Mounted Police to match crime scene information and that relates to an offence committed or alleged to have been committed by a young person shall be dealt with in the same manner as information that relates to an offence committed by an adult for which a pardon granted under the Criminal Records Act is in effect.

Clause 167: (1) and (2) Existing text of the definitions:

“presumptive offence” means

(a) an offence committed, or alleged to have been committed, by a young person who has attained the age of fourteen years, or, in a province where the lieutenant governor in council has fixed an age greater than fourteen years under section 61, the age so fixed, under one of the following provisions of the Criminal Code:

(i) section 231 or 235 (first degree murder or second degree murder within the meaning of section 231),

(ii) section 239 (attempt to commit murder),

(iii) section 232, 234 or 236 (manslaughter), or

(iv) section 273 (aggravated sexual assault); or

(b) a serious violent offence for which an adult is liable to imprisonment for a term of more than two years committed, or alleged to have been committed, by a young person after the coming into force of section 62 (adult sentence) and after the young person has attained the age of fourteen years, or, in a province where the lieutenant governor in council has fixed an age greater than fourteen years under section 61, the age so fixed, if at the time of the commission or alleged commission of the offence at least two judicial determinations have been made under subsection 42(9), at different proceedings, that the young person has committed a serious violent offence.

“serious violent offence” means an offence in the commission of which a young person causes or attempts to cause serious bodily harm.

(3) New.

Clause 168: (1) and (2) Relevant portion of subsection 3(1):

3. (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to

(i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour,

(ii) rehabilitate young persons who commit offences and reintegrate them into society, and

(iii) ensure that a young person is subject to meaningful consequences for his or her offence

in order to promote the long-term protection of the public;

(b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:

Clause 169: Existing text of subsection 29(2):

(2) In considering whether the detention of a young person is necessary for the protection or safety of the public under paragraph 515(10)(b) (substantial likelihood — commit an offence or interfere with the administration of justice) of the Criminal Code, a youth justice court or a justice shall presume that detention is not necessary under that paragraph if the young person could not, on being found guilty, be committed to custody on the grounds set out in paragraphs 39(1)(a) to (c) (restrictions on committal to custody).

Clause 170: Relevant portion of subsection 32(1):

32. (1) A young person against whom an information or indictment is laid must first appear before a youth justice court judge or a justice, and the judge or justice shall

...

(d) if the young person is charged with having committed an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1), inform the young person in the following words of the consequences of being charged with such an offence:

An adult sentence will be imposed if you are found guilty unless the court orders that you are not liable to an adult sentence and that a youth sentence must be imposed.

Clause 171: Existing text of subsection 37(4):

(4) A judicial determination under subsection 42(9) (judicial determination of serious violent offence), or an order under subsection 72(1) (court order — adult or youth sentence), 75(3) (ban on publication) or 76(1) (placement when subject to adult sentence), may be appealed as part of the sentence and, unless the court to which the appeal is taken otherwise orders, if more than one of these is appealed they must be part of the same appeal proceeding.

Clause 172: Relevant portion of subsection 38(2):

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

Clause 173: Relevant portion of subsection 39(1):

39. (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

...

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

Clause 174: (1) Relevant portion of subsection 42(2):

(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:

...

(o) in the case of an offence set out in subparagraph (a)(ii), (iii) or (iv) of the definition “presumptive offence” in subsection 2(1), make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105;

(2) Relevant portion of subsection 42(5):

(5) The court may make a deferred custody and supervision order under paragraph (2)(p) if

(a) the young person is found guilty of an offence that is not a serious violent offence; and

(3) Relevant portion of subsection 42(7):

(7) A youth justice court may make an intensive rehabilitative custody and supervision order under paragraph (2)(r) in respect of a young person only if

(a) either

(i) the young person has been found guilty of an offence under one of the following provisions of the Criminal Code, namely, section 231 or 235 (first degree murder or second degree murder within the meaning of section 231), section 239 (attempt to commit murder), section 232, 234 or 236 (manslaughter) or section 273 (aggravated sexual assault), or

(ii) the young person has been found guilty of a serious violent offence for which an adult is liable to imprisonment for a term of more than two years, and the young person had previously been found guilty at least twice of a serious violent offence;

(4) Existing text of subsections 42(9) and (10):

(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly.

(10) For the purposes of an appeal in accordance with section 37, a determination under subsection (9) is part of the sentence.

Clause 175: Existing text of sections 61 to 63:

61. The lieutenant governor in council of a province may by order fix an age greater than fourteen years but not more than sixteen years for the purpose of the application of the provisions of this Act relating to presumptive offences.

62. An adult sentence shall be imposed on a young person who is found guilty of an indictable offence for which an adult is liable to imprisonment for a term of more than two years in the following cases:

(a) in the case of a presumptive offence, if the youth justice court makes an order under subsection 70(2) or paragraph 72(1)(b); or

(b) in any other case, if the youth justice court makes an order under subsection 64(5) or paragraph 72(1)(b) in relation to an offence committed after the young person attained the age of fourteen years.

63. (1) A young person who is charged with, or found guilty of, a presumptive offence may, at any time before evidence is called as to sentence or, where no evidence is called, before submissions are made as to sentence, make an application for an order that he or she is not liable to an adult sentence and that a youth sentence must be imposed.

(2) If the Attorney General gives notice to the youth justice court that the Attorney General does not oppose the application, the youth justice court shall, without a hearing, order that the young person, if found guilty, is not liable to an adult sentence and that a youth sentence must be imposed.

Clause 176: (1) Existing text of subsections 64(1) and (2):

64. (1) The Attorney General may, following an application under subsection 42(9) (judicial determination of serious violent offence), if any is made, and before evidence is called as to sentence or, where no evidence is called, before submissions are made as to sentence, make an application for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence, other than a presumptive offence, for which an adult is liable to imprisonment for a term of more than two years, that was committed after the young person attained the age of fourteen years.

(2) If the Attorney General intends to seek an adult sentence for an offence by making an application under subsection (1), or by establishing that the offence is a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1), the Attorney General shall, before the young person enters a plea or with leave of the youth justice court before the commencement of the trial, give notice to the young person and the youth justice court of the intention to seek an adult sentence.

(2) Existing text of subsections 64(4) and (5):

(4) If a young person is charged with an offence, other than an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1), and the Attorney General intends to establish, after a finding of guilt, that the offence is a serious violent offence and a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1) for which the young person is liable to an adult sentence, the Attorney General shall, before the young person enters a plea or, with leave of the youth justice court under subsection (2), before the commencement of the trial, give notice of that intention to the young person.

(5) If the young person gives notice to the youth justice court that the young person does not oppose the application for an adult sentence, the youth justice court shall, without a hearing, order that if the young person is found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years, an adult sentence must be imposed.

Clause 177: Existing text of sections 65 and 66:

65. If the Attorney General at any stage of proceedings gives notice to the youth justice court that an adult sentence will not be sought in respect of a young person who is alleged to have committed an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1), the court shall order that the young person is not liable to an adult sentence, and the court shall order a ban on publication of information that would identify the young person as having been dealt with under this Act.

66. If the youth justice court has made an order under subsection 63(2) or section 65 before a young person is required to be put to an election under section 67, the young person shall not be put to an election unless the young person is alleged to have committed first degree murder or second degree murder within the meaning of section 231 of the Criminal Code.

Clause 178: (1) Relevant portion of subsection 67(1):

67. (1) Subject to section 66, the youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (2) if

(a) the young person is charged with having committed an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1);

(2) Relevant portion of subsection 67(3):

(3) Subject to section 66, in respect of proceedings in Nunavut, the youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (4) if

(a) the young person is charged with having committed an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1);

Clause 179: Existing text of section 68:

68. (1) When a young person is found guilty of an offence, other than an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1), committed after he or she attained the age of fourteen years, and the Attorney General seeks to establish that the offence is a serious violent offence and a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1), the Attorney General must satisfy the youth justice court that the young person, before entering a plea, was given notice under subsection 64(4) (intention to prove prior serious violent offences).

(2) If the youth justice court is satisfied that the young person was given notice under subsection 64(4) (intention to prove prior serious violent offences), the Attorney General may make an application in accordance with subsection 42(9) (judicial determination of serious violent offence).

(3) If the youth justice court determines that the offence is a serious violent offence, it shall ask whether the young person admits to the previous judicial determinations of serious violent offences made at different proceedings. If the young person does not admit to any of it, the Attorney General may adduce evidence as proof of the previous judicial determinations in accordance with section 667 of the Criminal Code, with any modifications that the circumstances require. For the purposes of that section, a certified copy of the information or indictment endorsed in accordance with subsection 42(9) (judicial determination of serious violent offence) or a certified copy of a court decision is deemed to be a certificate.

(4) If the youth justice court, after making its inquiry under subsection (3), is satisfied that the offence is a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1), the youth justice court shall endorse the information or indictment accordingly.

(5) If the youth justice court, after making its inquiry under subsection (3), is not satisfied that the offence is a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1), the Attorney General may make an application under subsection 64(1) (application for adult sentence).

Clause 180: (1) and (2) Existing text of section 69:

69. (1) If a young person who is charged with an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1) is found guilty of committing an included offence for which an adult is liable to imprisonment for a term of more than two years, other than another presumptive offence set out in that paragraph,

(a) the Attorney General may make an application under subsection 64(1) (application for adult sentence) without the necessity of giving notice under subsection 64(2), if the finding of guilt is for an offence that is not a presumptive offence; or

(b) subsections 68(2) to (5) apply without the necessity of the Attorney General giving notice under subsection 64(2) (intention to seek adult sentence) or (4) (intention to prove prior serious violent offences), if the finding of guilt is for an offence that would be a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1) if a judicial determination is made that the offence is a serious violent offence and on proof of previous judicial determinations of a serious violent offence.

(2) If the Attorney General has given notice under subsection 64(2) of the intention to seek an adult sentence and the young person, after he or she has attained the age of fourteen years, is found guilty of committing an included offence for which an adult is liable to imprisonment for a term of more than two years, the Attorney General may make an application under subsection 64(1) (application for adult sentence) or seek to apply the provisions of section 68.

Clause 181: Existing text of section 70:

70. (1) The youth justice court, after hearing an application under subsection 42(9) (judicial determination of serious violent offence), if any is made, and before evidence is called or, where no evidence is called, before submissions are made as to sentence, shall inquire whether a young person wishes to make an application under subsection 63(1) (application for youth sentence) and if so, whether the Attorney General would oppose it, if

(a) the young person has been found guilty of a presumptive offence;

(b) the young person has not already made an application under subsection 63(1); and

(2) If the young person indicates that he or she does not wish to make an application under subsection 63(1) (application for youth sentence) or fails to give an indication, the court shall order that an adult sentence be imposed.

Clause 182: Existing text of section 71:

71. The youth justice court shall, at the commencement of the sentencing hearing, hold a hearing in respect of an application under subsection 63(1) (application for youth sentence) or 64(1) (application for adult sentence), unless the court has received notice that the application is not opposed. Both parties and the parents of the young person shall be given an opportunity to be heard at the hearing.

Clause 183: (1) Existing text of subsections 72(1) to (3):

72. (1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and

(a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and

(b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant.

(3) In making its decision, the youth justice court shall consider a pre-sentence report.

(2) Existing text of subsection 72(5):

(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) is part of the sentence.

Clause 184: Existing text of section 73:

73. (1) When the youth justice court makes an order under subsection 64(5) or 70(2) or paragraph 72(1)(b) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.

(2) When the youth justice court makes an order under subsection 63(2), section 65 or paragraph 72(1)(a) in respect of a young person, the court shall, on a finding of guilt, impose a youth sentence on the young person.

Clause 185: Existing text of section 75:

75. (1) If the youth justice court imposes a youth sentence in respect of a young person who has been found guilty of having committed a presumptive offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1), or an offence under paragraph (b) of that definition for which the Attorney General has given notice under subsection 64(2) (intention to seek adult sentence), the court shall at the sentencing hearing inquire whether the young person or the Attorney General wishes to make an application under subsection (3) for a ban on publication.

(2) If the young person and the Attorney General both indicate that they do not wish to make an application under subsection (3), the court shall endorse the information or indictment accordingly.

(3) On application of the young person or the Attorney General, a youth justice court may order a ban on publication of information that would identify the young person as having been dealt with under this Act if the court considers it appropriate in the circumstances, taking into account the importance of rehabilitating the young person and the public interest.

(4) For the purposes of an appeal in accordance with section 37, an order under subsection (3) is part of the sentence.

Clause 186: Existing text of subsection 76(2):

(2) The youth justice court that sentences a young person under subsection (1) shall, unless it is satisfied that to do so would not be in the best interests of the young person or would jeopardize the safety of others,

(a) if the young person is under the age of eighteen years at the time that he or she is sentenced, order that he or she be placed in a youth custody facility; and

(b) if the young person is eighteen years old or older at the time that he or she is sentenced, order that he or she not be placed in a youth custody facility and order that any portion of the sentence be served in a provincial correctional facility for adults or, if the sentence is two years or more, in a penitentiary.

Clause 187: Existing text of section 81:

81. An application or a notice to the court under section 63, 64, 65 or 76 must be made or given orally, in the presence of the other party, or in writing with a copy served personally on the other party.

Clause 188: (1) Relevant portion of subsection 82(1):

...

(b) a youth justice court may consider the finding of guilt in considering an application under subsection 63(1) (application for youth sentence) or 64(1) (application for adult sentence);

(2) and (3) Existing text of subsection 82(4):

(4) A finding of guilt under this Act is not a previous conviction for the purposes of any offence under any Act of Parliament for which a greater punishment is prescribed by reason of previous convictions, except for

(a) the purpose of establishing that an offence is a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1); or

(b) the purpose of determining the adult sentence to be imposed.

Clause 189: Relevant portion of subsection 110(2):

(2) Subsection (1) does not apply

...

(b) subject to sections 65 (young person not liable to adult sentence) and 75 (youth sentence imposed despite presumptive offence), in a case where the information relates to a young person who has received a youth sentence for an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1), or an offence set out in paragraph (b) of that definition for which the Attorney General has given notice under subsection 64(2) (intention to seek adult sentence); and

Clause 190: New.

Clause 191: Relevant portion of subsection 119(1):

...

(o) a person, for the purpose of carrying out a criminal record check required by the Government of Canada or the government of a province or a municipality for purposes of employment or the performance of services, with or without remuneration;

Clause 192: Existing text of subsection 120(3):

(3) For the purposes of subsections (1) and (2), the period of access to a record kept under subsection 115(3) in respect of an offence is the following:

(a) if the offence is an indictable offence, other than a presumptive offence, the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and ending five years later; and

(b) if the offence is an offence set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1) or an offence set out in paragraph (b) of that definition for which the Attorney General has given notice under subsection 64(2) (intention to seek adult sentence), the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and continuing indefinitely.

Clause 193: Existing text of section 160:

160. Any person who, before the coming into force of this section, while he or she was a young person, committed an offence in respect of which no proceedings were commenced before the coming into force of this section shall be dealt with under this Act as if the offence occurred after the coming into force of this section, except that

(a) paragraph 62(a) applies only if the offence is one set out in paragraph (a) of the definition “presumptive offence” in subsection 2(1) and the young person was at least sixteen years old at the time of its commission;

(b) paragraph 110(2)(b) does not apply in respect of the offence; and

Clause 194: Existing text of section 162:

162. For the purposes of sections 158 to 160, proceedings are commenced by the laying of an information or indictment.