Bill C-32
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2nd Session, 41st Parliament,
62-63 Elizabeth II, 2013-2014
house of commons of canada
BILL C-32
An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Victims Bill of Rights Act.
CANADIAN VICTIMS BILL OF RIGHTS
Enactment of Act
2. The Canadian Victims Bill of Rights is enacted as follows:
An Act for the Recognition of Victims Rights
Preamble
Whereas crime has a harmful impact on victims and on society;
Whereas victims of crime and their families deserve to be treated with courtesy, compassion and respect;
Whereas it is important that victims’ rights be considered throughout the criminal justice system;
Whereas victims of crime have rights that are guaranteed by the Canadian Charter of Rights and Freedoms;
Whereas consideration of the rights of victims of crime is in the interest of the proper administration of justice;
Whereas the federal, provincial and territorial governments share responsibility for criminal justice;
Whereas, in 1988, the federal, provincial and territorial governments endorsed the Canadian Statement of Basic Principles of Justice for Victims of Crime and, in 2003, the Canadian Statement of Basic Principles of Justice for Victims of Crime, 2003;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Canadian Victims Bill of Rights.
INTERPRETATION
Definitions
2. The following definitions apply in this Act.
“offence”
« infraction »
« infraction »
“offence” means an offence under the Criminal Code, the Youth Criminal Justice Act or the Crimes Against Humanity and War Crimes Act, a designated substance offence as defined in subsection 2(1) of the Controlled Drugs and Substances Act or an offence under section 91 or Part 3 of the Immigration and Refugee Protection Act.
“victim”
« victime »
« victime »
“victim” means an individual who has suffered physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of an offence.
Acting on victim’s behalf
3. Any of the following individuals may exercise a victim’s rights under this Act if the victim is dead or incapable of acting on their own behalf:
(a) the victim’s spouse or the individual who was at the time of the victim’s death their spouse;
(b) the individual who is or was at the time of the victim’s death, cohabiting with them in a conjugal relationship, having so cohabited for a period of at least one year;
(c) a relative or dependant of the victim;
(d) an individual who has in law or fact custody, or is responsible for the care or support, of the victim;
(e) an individual who has in law or fact custody, or is responsible for the care or support, of a dependant of the victim.
Exception
4. An individual is not a victim in relation to an offence, or entitled to exercise a victim’s rights under this Act, if the individual is charged with the offence, found guilty of the offence or found not criminally responsible on account of mental disorder or unfit to stand trial in respect of the offence.
Criminal justice system
5. For the purpose of this Act, the criminal justice system consists of
(a) the investigation and prosecution of offences in Canada;
(b) the corrections process and the conditional release process in Canada; and
(c) the proceedings of courts and Review Boards, as those terms are defined in subsection 672.1(1) of the Criminal Code, in respect of accused who are found not criminally responsible on account of mental disorder or unfit to stand trial.
RIGHTS
Information
General information
6. Every victim has the right, on request, to information about
(a) the criminal justice system and the role of victims in it;
(b) the services and programs available to them as a victim, including restorative justice programs; and
(c) their right to file a complaint for an infringement or denial of any of their rights under this Act.
Investigation and proceedings
7. Every victim has the right, on request, to information about
(a) the status and outcome of the investigation into the offence; and
(b) the location of proceedings in relation to the offence, when they will take place and their progress and outcome.
Information about offender or accused
8. Every victim has the right, on request, to information about
(a) reviews under the Corrections and Conditional Release Act relating to the offender’s conditional release and the timing and conditions of that release; and
(b) hearings held for the purpose of making dispositions, as defined in subsection 672.1(1) of the Criminal Code, in relation to the accused, if the accused is found not criminally responsible on account of mental disorder or unfit to stand trial, and the dispositions made at those hearings.
Protection
Security
9. Every victim has the right to have their security considered by the appropriate author- ities in the criminal justice system.
Protection from intimidation and retaliation
10. Every victim has the right to have reasonable and necessary measures taken by the appropriate authorities in the criminal justice system to protect the victim from intimidation and retaliation.
Privacy
11. Every victim has the right to have their privacy considered by the appropriate author- ities in the criminal justice system.
Identity protection
12. Every victim has the right to request that their identity be protected if they are a complainant to the offence or a witness in proceedings relating to the offence.
Testimonial aids
13. Every victim has the right to request testimonial aids when appearing as a witness in proceedings relating to the offence.
Participation
Views to be considered
14. Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim’s rights under this Act and to have those views considered.
Victim impact statement
15. Every victim has the right to present a victim impact statement to the appropriate authorities in the criminal justice system and to have it considered.
Restitution
Restitution order
16. Every victim has the right to have the court consider making a restitution order against the offender.
Enforcement
17. Every victim in whose favour a restitution order is made has the right, if they are not paid, to have the order entered as a civil court judgment that is enforceable against the offend- er.
GENERAL PROVISIONS
Application
18. (1) This Act applies in respect of a victim of an offence in their interactions with the criminal justice system
(a) while the offence is investigated or prosecuted;
(b) while the offender is subject to the corrections process or the conditional release process in relation to the offence; and
(c) while the accused is, in relation to the offence, under the jurisdiction of a court or a Review Board, as those terms are defined in subsection 672.1(1) of the Criminal Code, if they are found not criminally responsible on account of mental disorder or unfit to stand trial.
Reporting of offence
(2) For the purpose of subsection (1), if an offence is reported to the appropriate authorities in the criminal justice system, the investigation of the offence is deemed to begin at the time of the reporting.
National Defence Act
(3) This Act does not apply in respect of offences that are service offences, as defined in subsection 2(1) of the National Defence Act, that are investigated or proceeded with under that Act.
Exercise of rights
19. (1) The rights of victims under this Act are to be exercised through the mechanisms provided by law.
Connection to Canada
(2) A victim is entitled to exercise their rights under this Act only if they are present in Canada or they are a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
Interpretation of this Act
20. This Act is to be construed and applied in a manner that is reasonable in the circumstances, and in a manner that is not likely to
(a) interfere with the proper administration of justice, including
(i) by causing interference with police discretion or causing excessive delay in, or compromising or hindering, the investigation of any offence, and
(ii) by causing interference with prosecutorial discretion or causing excessive delay in, or compromising or hindering, the prosecution of any offence;
(b) interfere with ministerial discretion;
(c) interfere with the discretion that may be exercised by any person or body authorized to release an offender into the community;
(d) endanger the life or safety of any individual; or
(e) cause injury to international relations or national defence or national security.
Interpretation of other Acts, regulations, etc.
21. To the extent that it is possible to do so, every Act of Parliament enacted — and every order, rule or regulation made under such an Act — before, on or after the day on which this Act comes into force must be construed and applied in a manner that is compatible with the rights under this Act.
Primacy in event of inconsistency
22. (1) If, after the application of sections 20 and 21, there is any inconsistency between any provision of this Act and any provision of any Act, order, rule or regulation referred to in section 21, the provision of this Act prevails to the extent of the inconsistency.
Exception — Acts and regulations, etc.
(2) Subsection (1) does not apply in respect of the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act and the Privacy Act and orders, rules and regulations made under any of those Acts.
No adverse inference
23. No adverse inference is to be drawn against a person who is charged with an offence from the fact that an individual has been identified as a victim in relation to the offence.
Entering or remaining in Canada
24. Nothing in this Act is to be construed so as to permit any individual to
(a) enter Canada or to remain in Canada beyond the end of the period for which they are authorized to so remain;
(b) delay any removal proceedings or prevent the enforcement of any removal order; or
(c) delay any extradition proceedings or prevent the extradition of any person to or from Canada.
REMEDIES
Complaint — federal entity
25. (1) Every victim who is of the opinion that any of their rights under this Act have been infringed or denied by a federal department, agency or body has the right to file a complaint in accordance with its complaints mechanism.
Complaint to authority
(2) Every victim who has exhausted their recourse under the complaints mechanism and who is not satisfied with the response of the federal department, agency or body may file a complaint with any authority that has jurisdiction to review complaints in relation to that department, agency or body.
Complaints mechanism
(3) Every federal department, agency or body that is involved in the criminal justice system must have a complaints mechanism that provides for
(a) a review of complaints involving alleged infringements or denials of rights under this Act;
(b) the power to make recommendations to remedy such infringements and denials; and
(c) the obligation to notify victims of the result of those reviews and of the recommendations, if any were made.
Complaint — provincial or territorial entity
26. Every victim who is of the opinion that their rights under this Act have been infringed or denied by a provincial or territorial department, agency or body may file a complaint in accordance with the laws of the province or territory.
Status
27. Nothing in this Act is to be construed as granting any victim or individual acting on behalf of a victim the status as a party, intervenor or observer in any proceedings.
No cause of action
28. No cause of action or right to damages arises from an infringement or denial of a right under this Act.
No appeal
29. No appeal lies from any decision or order solely on the grounds that a right under this Act has been infringed or denied.
R.S., c. C-46
CRIMINAL CODE
Amendments to the Act
1999, c. 25, s. 1
3. The definition “victim” in section 2 of the Criminal Code is replaced by the following:
“victim”
« victime »
« victime »
“victim” means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person.
4. The Act is amended by adding the following after section 2.1:
Acting on victim’s behalf
2.2 (1) For the purposes of sections 606, 672.5, 722, 737.1 and 745.63, any of the following individuals may act on the victim’s behalf if the victim is dead or incapable of acting on their own behalf:
(a) the victim’s spouse, or if the victim is dead, their spouse at the time of death;
(b) the victim’s common-law partner, or if the victim is dead, their common-law partner at the time of death;
(c) a relative or dependant of the victim;
(d) an individual who has in law or fact custody, or is responsible for the care or support, of the victim; and
(e) an individual who has in law or fact custody, or is responsible for the care or support, of a dependant of the victim.
Exception
(2) An individual is not entitled to act on a victim’s behalf if the individual is an accused in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not criminally responsible on account of mental disorder or unfit to stand trial in respect of that offence.
1997, c. 30, s. 1
5. (1) The portion of subsection 278.2(1) of the English version of the Act before paragraph (a) is replaced by the following:
Production of record to accused
278.2 (1) Except in accordance with sections 278.3 to 278.91, no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:
1997, c. 30, s. 1
(2) Subsection 278.2(1) of the Act is amended by adding “or” at the end of paragraph (a) and by replacing the portion after paragraph (a) with the following:
(b) any offence under this Act, as it read at any time before the day on which this paragraph comes into force, if the conduct alleged involves a violation of the complain- ant’s sexual integrity and that conduct would be an offence referred to in paragraph (a) if it occurred on or after that day.
1997, c. 30, s. 1
6. Subsection 278.3(5) of the Act is replaced by the following:
Service of application and subpoena
(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least 14 days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.
7. Section 278.4 of the Act is amended by adding the following after subsection (2):
Right to counsel
(2.1) The judge shall, as soon as feasible, inform any person referred to in subsection (2) who participates in the hearing of their right to be represented by counsel.
1997, c. 30, s. 1
8. The portion of subsection 278.5(2) of the Act before paragraph (a) is replaced by the following:
Factors to be considered
(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the judge shall take the following factors into account:
1997, c. 30, s. 1
9. Subsection 278.6(3) of the Act is replaced by the following:
Provisions re hearing
(3) Subsections 278.4(2) to (3) apply in the case of a hearing under subsection (2).
1997, c. 30, s. 1
10. (1) Subsection 278.7(2) of the Act is replaced by the following:
Factors to be considered
(2) In determining whether to order the production of the record or part of the record to the accused, the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complain- ant or witness, as the case may be, and of any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account.
1997, c. 30, s. 1
(2) The portion of subsection 278.7(3) of the Act before paragraph (a) is replaced by the following:
Conditions on production
(3) If the judge orders the production of the record or part of the record to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy, personal security and equality interests of the complain- ant or witness, as the case may be, and of any other person to whom the record relates, including, for example, the following conditions:
2011, c. 6, s. 4
11. Sections 380.3 and 380.4 of the Act are repealed.
2001, c. 32, s. 11
12. (1) The portion of subsection 423.1(1) of the Act before paragraph (a) is replaced by the following:
Intimidation of a justice system participant or a journalist
423.1 (1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in
2001, c. 32, s. 11
(2) Subsection 423.1(2) of the Act is repealed.
2005, c. 32, s. 15
13. Subsection 486(2) of the Act is replaced by the following:
Factors to be considered
(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider
(a) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;
(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;
(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(e) the protection of justice system participants who are involved in the proceedings;
(f) whether effective alternatives to the making of the proposed order are available in the circumstances;
(g) the salutary and deleterious effects of the proposed order; and
(h) any other factor that the judge or justice considers relevant.
2005, c. 32, s. 15
14. (1) Subsections 486.1(1) and (2) of the Act are replaced by the following:
Support person — witnesses under 18 or who have a disability
486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
Other witnesses
(2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
2005, c. 32, s. 15
(2) Subsection 486.1(3) of the Act is replaced by the following:
Factors to be considered
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider
(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(g) any other factor that the judge or justice considers relevant.
2005, c. 32, s. 15
15. (1) Subsections 486.2(1) and (2) of the Act are replaced by the following:
Testimony outside court room — witnesses under 18 or who have a disability
486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
Other witnesses
(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
2005, c. 32, s. 15
(2) Subsections 486.2(3) to (8) of the Act are replaced by the following:
Factors to be considered
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider
(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;
(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(h) any other factor that the judge or justice considers relevant.
Same procedure for determination
(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.
Conditions of exclusion
(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
No adverse inference
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).
2005, c. 32, s. 15
16. Subsections 486.3(1) to (4.1) of the Act are replaced by the following:
Accused not to cross-examine witnesses under 18
486.3 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Accused not to cross-examine complainant — certain offences
(2) In any proceedings against an accused in respect of an offence under any of sections 264, 271, 272 and 273, the judge or justice shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Other witnesses
(3) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness who is not entitled to make an application under subsection (1) or (2), or on application of such a witness, order that the accused not personally cross-examine the witness if the judge or justice is of the opinion that the order would allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. If the order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Factors to be considered
(4) In determining whether to make an order under subsection (3), the judge or justice shall consider
(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(e) the nature of any relationship between the witness and the accused;
(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(g) any other factor that the judge or justice considers relevant.
Application
(4.1) An application referred to in any of subsections (1) to (3) may be made during the proceedings to the presiding judge or justice or before the proceedings begin to the judge or justice who will preside at the proceedings.
17. The Act is amended by adding the following after section 486.3:
Non-disclosure of witness’ identity
486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
Hearing may be held
(2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private.
Factors to be considered
(3) In determining whether to make the order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) the nature of the offence;
(c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(d) whether the order is needed to protect the security of anyone known to the witness;
(e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;
(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(g) the importance of the witness’ testimony to the case;
(h) whether effective alternatives to the making of the proposed order are available in the circumstances;
(i) the salutary and deleterious effects of the proposed order; and
(j) any other factor that the judge or justice considers relevant.
No adverse inference
(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
2005, c. 32, s. 15
18. (1) The portion of subsection 486.4(1) of the Act before paragraph (a) is replaced by the following:
Order restricting publication — sexual offences
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
2005, c. 32, s. 15
(2) Paragraph 486.4(1)(a) of the Act is amended by adding “or” at the end of subparagraph (i) and by replacing subparagraphs (ii) and (iii) of the Act with the following:
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
2005, c. 32, s. 15
(3) Paragraph 486.4(1)(b) of the Act is replaced by the following:
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
2005, c. 32, s. 15
(4) Subsection 486.4(2) of the Act is replaced by the following :
Mandatory order on application
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
Victim under 18 — other offences
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
Mandatory order on application
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
2005, c. 32, s. 15
19. (1) Subsections 486.5(1) and (2) of the Act are replaced by the following:
Order restricting publication — victims and witnesses
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
Justice system participants
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
Offences
(2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
2005, c. 32, s. 15
(2) Paragraph 486.5(7)(b) of the Act is replaced by the following:
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
20. Section 515 of the Act is amended by adding the following after subsection (12):
Consideration of victim’s safety and security
(13) A justice who makes an order under this section shall include in the record of the proceedings a statement that he or she considered the safety and security of every victim of the offence when making the order.
Copy to victim
(14) If an order is made under this section, the justice shall, on request by a victim of the offence, cause a copy of the order to be given to the victim.
21. Section 606 of the Act is amended by adding the following after subsection (4):
Inquiry of court — murder and serious personal injury offences
(4.1) If the accused is charged with a serious personal injury offence, as that expression is defined in section 752, or with the offence of murder, and the accused and the prosecutor have entered into an agreement under which the accused will enter a plea of guilty of the offence charged — or a plea of not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence — the court shall, after accepting the plea of guilty, inquire of the prosecutor if reasonable steps were taken to inform the victims of the agreement.
Inquiry of court — certain indictable offences
(4.2) If the accused is charged with an offence, as defined in section 2 of the Canadian Victims Bill of Rights, that is an indictable offence for which the maximum punishment is imprisonment for five years or more, and that is not an offence referred to in subsection (4.1), and the accused and the prosecutor have entered into an agreement referred to in subsection (4.1), the court shall, after accepting the plea of guilty, inquire of the prosecutor whether any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement.
Duty to inform
(4.3) If subsection (4.1) or (4.2) applies, and any victim was not informed of the agreement before the plea of guilty was accepted, the prosecutor shall, as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea.
Validity of plea
(4.4) Neither the failure of the court to inquire of the prosecutor, nor the failure of the prosecutor to take reasonable steps to inform the victims of the agreement, affects the validity of the plea.
1999, c. 25, s. 11
22. (1) Subsection 672.5(14) of the Act is replaced by the following:
Victim impact statement
(14) A victim of the offence may prepare and file with the court or Review Board a written statement describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim. Form 48.2 in Part XXVIII, or a form approved by the lieutenant governor in council of the province in which the court or Review Board is exercising its jurisdiction, must be used for this purpose.
2005, c. 22, s. 16(3)
(2) Subsection 672.5(16) of the Act is repealed.
1995, c. 22, s. 6
23. (1) The portion of subsection 718 of the Act before paragraph (b) is replaced by the following:
Purpose
718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
1995, c. 22, s. 6
(2) Paragraph 718(f) of the Act is replaced by the following:
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
1995, c. 22, s. 6
24. Paragraph 718.2(e) of the Act is replaced by the following:
(e) all available sanctions, other than impris- onment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
1995, c. 22, s. 6; 1999, c. 25, s. 17; 2000, c. 12, par. 95(d)
25. Section 722 of the Act is replaced by the following:
Victim impact statement
722. (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.
Inquiry by court
(2) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection (1).
Adjournment
(3) On application of the prosecutor or a victim or on its own motion, the court may adjourn the proceedings to permit the victim to prepare a statement referred to in subsection (1) or to present evidence in accordance with subsection (9), if the court is satisfied that the adjournment would not interfere with the proper administration of justice.
Form
(4) The statement must be prepared in writing using Form 34.2 in Part XXVIII.
Presentation of statement
(5) The court shall, on the request of a victim, permit the victim to present the statement by
(a) reading it;
(b) reading it in the presence and close proximity of any support person of the victim’s choice;
(c) reading it outside the court room or behind a screen or other device that would allow the victim not to see the offender; or
(d) presenting it in any other manner that the court considers appropriate.
Photograph
(6) During the presentation
(a) the victim may have with them a photograph of themselves taken before the commission of the offence if it would not, in the opinion of the court, disrupt the proceedings; or
(b) if the statement is presented by someone acting on the victim’s behalf, that individual may have with them a photograph of the victim taken before the commission of the offence if it would not, in the opinion of the court, disrupt the proceedings.
Conditions of exclusion
(7) The victim shall not present the statement outside the court room unless arrangements are made for the offender and the judge or justice to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.
Consideration of statement
(8) In considering the statement, the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion.
Evidence concerning victim admissible
(9) Whether or not a statement has been prepared and filed in accordance with this section, the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730.
1999, c. 25, s. 18
26. Subsection 722.2 of the Act is replaced by the following:
Community impact statement
722.2 (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement made by an individual on a community’s behalf that was prepared in accordance with this section and filed with the court describing the harm or loss suffered by the community as the result of the commission of the offence and the impact of the offence on the community.
Form
(2) The statement must be prepared in writing using Form 34.3 in Part XXVIII.
Presentation of statement
(3) The court shall, on the request of the individual making the statement, permit the individual to present the statement by
(a) reading it;
(b) reading it in the presence and close proximity of any support person of the individual’s choice;
(c) reading it outside the court room or behind a screen or other device that would allow the individual not to see the offender; or
(d) presenting it in any other manner that the court considers appropriate.
Conditions of exclusion
(4) The individual making the statement shall not present it outside the court room unless arrangements are made for the offender and the judge or justice to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.
Copy of statement
(5) The clerk of the court shall, as soon as feasible after a finding of guilt, provide a copy of the statement to the offender or counsel for the offender, and to the prosecutor.
2008, c. 18, s. 37
27. Paragraph 732.1(5)(a) of the Act is replaced by the following:
(a) cause a copy of the order to be given to the offender and, on request, to the victim;
1999, c. 25, s. 20
28. Subsection 737(4) of the Act is replaced by the following:
Time for payment
(4) The victim surcharge imposed in respect of an offence is payable within the time established by the lieutenant governor in council of the province in which the surcharge is imposed. If no time has been so established, the surcharge is payable within a reasonable time after its imposition.
29. The Act is amended by adding the following before section 738:
Court to consider restitution order
737.1 (1) If an offender is convicted or is discharged under section 730 of an offence, the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 or 739.
Inquiry by court
(2) As soon as feasible after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.
Adjournment
(3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court is satisfied that the adjournment would not interfere with the proper administration of justice.
Form
(4) Victims and other persons may indicate whether they are seeking restitution by completing Form 34.1 in Part XXVIII or a form approved for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses and damages, the amount of which must be readily ascertainable, in the same manner.
Reasons
(5) If a victim seeks restitution and the court does not make a restitution order, it shall include in the record a statement of the court’s reasons for not doing so.
30. The Act is amended by adding the following after section 739:
Ability to pay
739.1 The offender’s financial means or ability to pay does not prevent the court from making an order under section 738 or 739.
Payment under order
739.2 In making an order under section 738 or 739, the court shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court is of the opinion that the amount should be paid in instalments, in which case the court shall set out a periodic payment scheme in the order.
More than one person
739.3 An order under section 738 or 739 may be made in respect of more than one person, in which case the order must specify the amount that is payable to each person. The order may also specify the order of priority in which those persons are to be paid.
Public authority
739.4 (1) On the request of a person in whose favour an order under section 738 or 739 would be made, the court may make the order in favour of a public authority, designated by the regulations, who is to be responsible for enforcing the order and remitting to the person making the request all amounts received under it.
Regulations
(2) The lieutenant governor in council of a province may, by regulation, designate any person or body as a public authority for the purpose of subsection (1).
2004, c. 12, s. 13
31. Subsection 741(1) of the Act is replaced by the following:
Enforcing restitution order
741. (1) An offender who fails to pay all of the amount that is ordered to be paid under section 732.1, 738, 739 or 742.3 by the day specified in the order or who fails to make a periodic payment required under the order is in default of the order and the person to whom the amount, or the periodic payment, as the case may be, was to be made may, by filing the order, enter as a judgment any amount ordered to be paid that remains unpaid under the order in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
1995, c. 22, s. 6
32. Section 741.1 of the Act is replaced by the following:
Notice of orders of restitution
741.1 If a court makes an order of restitution under section 738 or 739, it shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid, and if it is to be paid to a public authority designated by regulations made under subsection 739.4(2), to the public authority and the person to whom the public authority is to remit amounts received under the order.
2008, c. 18, s. 40
33. Paragraph 742.3(3)(a) of the Act is replaced by the following:
(a) cause a copy of the order to be given to the offender and, on request, to the victim;
1996, c. 34, s. 2(2)
34. Subsection 745.63(2) of the Act is repealed.
2011, c. 6, s. 5
35. Form 34.1 in Part XXVIII of the Act is replaced by the following:
FORM 34.1
(Subsection 737.1(4))
STATEMENT ON RESTITUTION
Canada,
Province of ..........,
(territorial division).
To the court that is sentencing (name the offender) who was convicted, or was discharged under section 730 of the Criminal Code, of an offence under that Act.
I, (name of declarant), declare that (check the appropriate box):
[ ] (i) I am not seeking restitution for the losses and damages I suffered as the result of the commission of the offence.
[ ] (ii) I am seeking restitution in the amount of $.......... for the following losses and damages I suffered as the result of the commission of the offence.
I declare that I have suffered the following losses and damages as the result of the commission of the offence:
(Complete the following table if seeking restitution.)
I understand that the amount of my losses and damages must be readily ascertainable by the court. For that purpose, I am responsible for providing the court with all necessary documents, including bills, receipts and estimates, in support of my claim for restitution.
Dated this .......... day of .......... 20.........., at .......... .
Signature of declarant
FORM 34.2
(Subsection 722(4))
VICTIM IMPACT STATEMENT
This form may be used to provide a description of the physical or emotional harm, property damage or economic loss suffered by you as the result of the commission of an offence, as well as a description of the impact of the offence on you. You may attach additional pages if you need more space.
Your statement must not include
• any statement about the offence or the offender that is not relevant to the harm or loss you suffered;
• any unproven allegations;
• any comments about any offence for which the offender was not convicted;
• any complaint about any individual, other than the offender, who was involved in the investigation or prosecution of the offence; or
• except with the court’s approval, an opinion or recommendation about the sentence.
You may present a detailed account of the impact the offence has had on your life. The following sections are examples of information you may wish to include in your statement. You are not required to include all of this information.
Emotional impact
Describe how the offence has affected you emotionally. For example, think of
• your lifestyle and activities;
• your relationships with others such as your spouse, family and friends;
• your ability to work, attend school or study; and
• your feelings, emotions and reactions as they relate to the offence.
Physical impact
Describe how the offence has affected you physically. For example, think of
• ongoing physical pain, discomfort, illness, scarring, disfigurement or physical limitation;
• hospitalization or surgery you have had because of the offence;
• treatment, physiotherapy or medication you have been prescribed;
• the need for any further treatment or the expectation that you will receive further treatment; and
• any permanent or long-term disability.
Economic impact
Describe how the offence has affected you financially. For example, think of
• the value of any property that was lost or damaged and the cost of repairs or replacement;
• any financial loss due to missed time from work;
• the cost of any medical expenses, therapy or counselling;
• any costs or losses that are not covered by insurance.
Please note that this is not an application for compensation or restitution.
Fears for security
Describe any fears you have for your security or that of your family and friends. For example, think of
• concerns with respect to contact with the offender; and
• concerns with respect to contact between the offender and members of your family or close friends.
Drawing, poem or letter
You may use this space to draw a picture or write a poem or letter if it will help you express the impact that the offence has had on you.
I would like to present my statement in court.
To the best of my knowledge, the information contained in this statement is true.
Dated this .......... day of .......... 20.........., at .......... .
Signature of declarant
If you completed this statement on behalf of the victim, please indicate the reasons why you did so and the nature of your relationship with the victim.
Dated this .......... day of .......... 20.........., at .......... .
Signature of declarant
FORM 34.3
(Subsection 722.2(2))
COMMUNITY IMPACT STATEMENT
This form may be used to provide a description of the harm or loss suffered by a community as the result of the commission of an offence, as well as a description of the impact of the offence on the community. You may attach additional pages if you need more space.
Your statement must not include
• any statement about the offence or the offender that is not relevant to the harm or loss suffered by the community;
• any unproven allegations;
• any comments about any offence for which the offender was not convicted;
• any complaint about any individual, other than the offender, who was involved in the investigation or prosecution of the offence; or
• except with the court’s approval, an opinion or recommendation about the sentence.
Name of community on whose behalf the statement is made: ..........
Explain how the statement reflects this community’s views:
You may present a detailed account of the impact the offence has had on the community. The following sections are examples of information you may wish to include in your statement. You are not required to include all of this information.
Emotional impact
Describe how the offence has affected community members emotionally. For example, think of
• community members’ lifestyles and activities;
• community members’ relationships with others in the community and outside it;
• community members’ ability to work, attend school or study;
• community members’ feelings, emotions and reactions as they relate to the offence; and
• the community’s sense of belonging to the region.
Physical impact
Describe how the offence has affected community members physically. For example, think of
• the ability of community members to access services; and
• changes in transportation and routes taken to and from school, work, shopping, etc.
Economic impact
Describe how the offence has affected the community financially. For example, think of
• any reduction in the number of visitors or tourists to the region;
• the value of any property that was lost or damaged and the cost of repairs or replacement; and
• any costs or losses that are not covered by insurance.
Please note that this is not an application for compensation or restitution.
Fears for security
Describe any fears that community members have for their security or that of their family and friends. For example, think of concerns with respect to contact with the offender.
Drawing, poem or letter
You may use this space to draw a picture or write a poem or letter if it will help you express the impact that the offence has had on the community.
I would like to present this statement in court.
To the best of my knowledge, the information contained in this statement is true.
Dated this .......... day of .......... 20.........., at .......... .
Signature of declarant
36. Part XXVIII of the Act is amended by adding the following after Form 48.1:
FORM 48.2
(Subsection 672.5(14))
Explanatory Notes
Criminal Code
Clause 3: Existing text of the definition:
“victim” includes the victim of an alleged offence;
Clause 4: New.
Clause 5: (1) and (2) Existing text of subsection 278.2(1):
278.2 (1) No record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of
(a) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272 or 273,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
or in any proceedings in respect of two or more offences that include an offence referred to in any of paragraphs (a) to (c), except in accordance with sections 278.3 to 278.91.
Clause 6: Existing text of subsection 278.3(5):
(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least seven days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.
Clause 7: New.
Clause 8: Relevant portion of subsection 278.5(2):
(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account:
Clause 9: Existing text of subsection 278.6(3):
(3) Subsections 278.4(2) and (3) apply in the case of a hearing under subsection (2).
Clause 10: (1) Existing text of subsection 278.7(2):
(2) In determining whether to order the production of the record or part of the record to the accused, the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account.
(2) Relevant portion of subsection 278.7(3):
(3) Where the judge orders the production of the record or part of the record to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy and equality interests of the complainant or witness, as the case may be, and any other person to whom the record relates, including, for example, the following conditions:
Clause 11: Existing text of sections 380.3 and 380.4:
380.3 (1) When an offender is convicted, or is discharged under section 730, of an offence referred to in subsection 380(1), the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 or 739.
(2) As soon as practicable after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses, the amount of which must be readily ascertainable.
(3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses, if the court is satisfied that the adjournment would not interfere with the proper administration of justice.
(4) Victims may indicate whether they are seeking restitution by completing Form 34.1 in Part XXVIII or a form approved for that purpose by the Lieutenant Governor in Council of the province where the court has jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses, the amount of which must be readily ascertainable, in the same manner.
(5) If a victim seeks restitution and the court decides not to make a restitution order, it shall give reasons for its decision and shall cause those reasons to be stated in the record.
380.4 (1) For greater certainty, for the purpose of determining the sentence to be imposed on an offender, or whether the offender should be discharged under section 730, in respect of an offence referred to in subsection 380(1), the court may consider a statement made by a person on a community’s behalf describing the harm done to, or losses suffered by, the community arising from the commission of the offence.
(2) The statement must
(a) be prepared in writing and filed with the court;
(b) identify the community on whose behalf the statement is made; and
(c) explain how the statement reflects the community’s views.
(3) The clerk of the court shall provide a copy of the statement, as soon as practicable after a finding of guilt, to the offender or counsel for the offender, and to the prosecutor.
Clause 12: (1) Relevant portion of subsection 423.1(1):
423.1 (1) No person shall, without lawful authority, engage in conduct referred to in subsection (2) with the intent to provoke a state of fear in
(2) Existing text of subsection 423.1(2):
(2) The conduct referred to in subsection (1) consists of
(a) using violence against a justice system participant or a journalist or anyone known to either of them or destroying or causing damage to the property of any of those persons;
(b) threatening to engage in conduct described in paragraph (a) in Canada or elsewhere;
(c) persistently or repeatedly following a justice system participant or a journalist or anyone known to either of them, including following that person in a disorderly manner on a highway;
(d) repeatedly communicating with, either directly or indirectly, a justice system participant or a journalist or anyone known to either of them; and
(e) besetting or watching the place where a justice system participant or a journalist or anyone known to either of them resides, works, attends school, carries on business or happens to be.
Clause 13: Existing text of subsection 486(2):
(2) For the purposes of subsection (1), the “proper administration of justice” includes ensuring that
(a) the interests of witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected.
Clause 14: (1) Existing text of subsections 486.1(1) and (2):
486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who has a mental or physical disability, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
(2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.
(2) Existing text of subsection 486.1(3):
(3) In making a determination under subsection (2), the judge or justice shall take into account the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstance that the judge or justice considers relevant.
Clause 15: (1) Existing text of subsections 486.2(1) and (2):
486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.
(2) Existing text of subsections 486.2(3) to (8):
(3) In making a determination under subsection (2), the judge or justice shall take into account the factors referred to in subsection 486.1(3).
(4) Despite section 650, if an accused is charged with an offence referred to in subsection (5), the presiding judge or justice may order that any witness testify
(a) outside the court room if the judge or justice is of the opinion that the order is necessary to protect the safety of the witness; and
(b) outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.
(5) The offences for the purposes of subsection (4) are
(a) an offence under section 423.1, 467.11, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(6) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) or (4) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.
(7) A witness shall not testify outside the court room under subsection (1), (2), (4) or (6) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
(8) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
Clause 16: Existing text of subsections 486.3(1) to (4.1):
486.3 (1) In any proceedings against an accused, on application of the prosecutor or a witness who is under the age of eighteen years, the accused shall not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.
(2) In any proceedings against an accused, on application of the prosecutor or a witness, the accused shall not personally cross-examine the witness if the judge or justice is of the opinion that, in order to obtain a full and candid account from the witness of the acts complained of, the accused should not personally cross-examine the witness. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.
(3) In making a determination under subsection (2), the judge or justice shall take into account the factors referred to in subsection 486.1(3).
(4) In any proceedings in respect of an offence under section 264, on application of the prosecutor or the victim of the offence, the accused shall not personally cross-examine the victim unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.
(4.1) An application referred to in subsection (1), (2) or (4) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings.
Clause 17: New.
Clause 18: (1) to (4) Existing text of subsections 486.4(1) and (2):
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
Clause 19: (1) Existing text of subsections 486.5(1) and (2):
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) Relevant portion of subsection 486.5(7):
(7) In determining whether to make an order, the judge or justice shall consider
...
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
Clause 20: New.
Clause 21: New.
Clause 22: (1) Existing text of subsection 672.5(14):
(14) A victim of the offence may prepare and file with the court or Review Board a written statement describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.
(2) Existing text of subsection 672.5(16):
(16) In subsections (14) and (15.1) to (15.3), “victim” has the same meaning as in subsection 722(4).
Clause 23: (1) and (2) Relevant portion of section 718:
718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
...
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
Clause 24: Relevant portion of section 718.2:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
...
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
Clause 25: Existing text of section 722:
722. (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.
(2) A statement referred to in subsection (1) must be
(a) prepared in writing in the form and in accordance with the procedures established by a program designated for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction; and
(b) filed with the court.
(2.1) The court shall, on the request of a victim, permit the victim to read a statement prepared and filed in accordance with subsection (2), or to present the statement in any other manner that the court considers appropriate.
(3) Whether or not a statement has been prepared and filed in accordance with subsection (2), the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730.
(4) For the purposes of this section and section 722.2, “victim”, in relation to an offence,
(a) means a person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence; and
(b) where the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in subsection (1), includes the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any dependant of that person.
Clause 26: Existing text of subsection 722.2:
722.2 (1) As soon as practicable after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor or a victim of the offence, or any person representing a victim of the offence, whether the victim or victims have been advised of the opportunity to prepare a statement referred to in subsection 722(1).
(2) On application of the prosecutor or a victim or on its own motion, the court may adjourn the proceedings to permit the victim to prepare a statement referred to in subsection 722(1) or to present evidence in accordance with subsection 722(3), if the court is satisfied that the adjournment would not interfere with the proper administration of justice.
Clause 27: Relevant portion of subsection 732.1(5):
(5) The court that makes a probation order shall
(a) cause a copy of the order to be given to the offender;
Clause 28: Existing text of subsection 737(4):
(4) The victim surcharge imposed in respect of an offence is payable at the time at which the fine imposed for the offence is payable and, when no fine is imposed, within the time established by the lieutenant governor in council of the province in which the surcharge is imposed for payment of any such surcharge.
Clause 29: New.
Clause 30: New.
Clause 31: Existing text of subsection 741(1):
741. (1) Where an amount that is ordered to be paid under section 732.1, 738, 739 or 742.3, is not paid without delay, the person to whom the amount was ordered to be paid may, by filing the order, enter as a judgment the amount ordered to be paid in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Clause 32: Existing text of section 741.1:
741.1 Where a court makes an order of restitution under section 738 or 739, it shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid.
Clause 33: Relevant portion of subsection 742.3(3):
(3) A court that makes an order under this section shall
(a) cause a copy of the order to be given to the offender;
Clause 34: Existing text of subsection 745.63(2):
(2) In paragraph (1)(d), “victim” has the same meaning as in subsection 722(4).
Clause 36: New.