Criminal Code (
R.S., 1985, c. C-46 ) Disclaimer: These
documents are not the official versions (more). Source:
http://laws.justice.gc.ca/en/C-46/text.html Act current to October 31,
2005
Subject: Crime, Policing and Penitentiaries
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Criminal Code
CHAPTER C-46
An
Act respecting the Criminal Law |
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1. This Act
may be cited as the Criminal
Code.
R.S.,
c. C-34, s. 1. |
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2. In this
Act, |
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“Act”
includes
(a) an Act of Parliament,
(b) an Act of the legislature of
the former Province of Canada,
(c) an Act of the legislature of a
province, and
(d) an Act or ordinance of the
legislature of a province, territory or place in force at the time
that province, territory or place became a province of
Canada; |
“associated personnel”
« personnel
associé » |
“associated personnel”
means persons who are
(a) assigned by a government or an
intergovernmental organization with the agreement of the competent
organ of the United Nations,
(b) engaged by the
Secretary-General of the United Nations, by a specialized agency of
the United Nations or by the International Atomic Energy Agency,
or
(c) deployed by a humanitarian
non-governmental organization or agency under an agreement with the
Secretary-General of the United Nations, by a specialized agency of
the United Nations or by the International Atomic Energy Agency,
to carry out activities in
support of the fulfilment of the mandate of a United Nations
operation; |
“Attorney General”
« procureur
général » |
“Attorney General”
(
a) subject to paragraphs (
c) to ( g), with respect to proceedings to
which this Act applies, means the Attorney General or Solicitor
General of the province in which those proceedings are taken and
includes his or her lawful deputy,
(
b) with respect to the Yukon
Territory, the Northwest Territories and Nunavut, or with respect to
proceedings commenced at the instance of the Government of Canada
and conducted by or on behalf of that Government in respect of a
contravention of, a conspiracy or attempt to contravene, or
counselling the contravention of, any Act of Parliament other than
this Act or any regulation made under such an Act, means the
Attorney General of Canada and includes his or her lawful
deputy,
(
c) with respect to
proceedings in relation to a terrorism offence or to an offence
under section 57, 58, 83.12, 424.1 or 431.1 or in relation to an
offence against a member of United Nations personnel or associated
personnel under section 235, 236, 266, 267, 268, 269, 269.1, 271,
272, 273, 279 or 279.1, means either the Attorney General of Canada
or the Attorney General or Solicitor General of the province in
which those proceedings are taken and includes the lawful deputy of
any of them,
(
d) with respect to
proceedings in relation to
(i) an
offence referred to in subsection 7(3.71), or
(ii)
an offence referred to in paragraph ( a) of the definition “terrorist
activity” in subsection 83.01(1), where the act or omission was
committed outside Canada but is deemed by virtue of subsection 7(2),
(2.1), (2.2), (3), (3.1), (3.4), (3.6), (3.72) or (3.73) to have
been committed in Canada,
means
either the Attorney General of Canada or the Attorney General or
Solicitor General of the province in which those proceedings are
taken and includes the lawful deputy of any of them,
(
e) with respect to
proceedings in relation to an offence where the act or omission
constituting the offence
(i)
constitutes a terrorist activity referred to in paragraph ( b) of the definition “terrorist
activity” in subsection 83.01(1), and
(ii)
was committed outside Canada but is deemed by virtue of subsection
7(3.74) or (3.75) to have been committed in Canada,
means
either the Attorney General of Canada or the Attorney General or
Solicitor General of the province in which those proceedings are
taken and includes the lawful deputy of any of them,
(
f) with respect to
proceedings under section 83.13, 83.14, 83.28, 83.29 or 83.3, means
either the Attorney General of Canada or the Attorney General or
Solicitor General of the province in which those proceedings are
taken and includes the lawful deputy of any of them, and
(
g) with respect to
proceedings in relation to an offence referred to in sections 380,
382, 382.1 and 400, means either the Attorney General of Canada or
the Attorney General or Solicitor General of the province in which
those proceedings are taken and includes the lawful deputy of any of
them; |
“bank-note”
« billet de
banque » |
“bank-note” includes any
negotiable instrument
(a) issued by or on behalf of a
person carrying on the business of banking in or out of Canada,
and
(b) issued under the authority of
Parliament or under the lawful authority of the government of a
state other than Canada,
intended to be used as
money or as the equivalent of money, immediately on issue or at some
time subsequent thereto, and includes bank bills and bank post
bills; |
“bodily harm”
« lésions
corporelles » |
“bodily harm” means any
hurt or injury to a person that interferes with the health or
comfort of the person and that is more than merely transient or
trifling in nature; |
“Canadian Forces”
« Forces
canadiennes » |
“Canadian Forces” means
the armed forces of Her Majesty raised by Canada; |
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“cattle” means neat cattle
or an animal of the bovine species by whatever technical or familiar
name it is known, and includes any horse, mule, ass, pig, sheep or
goat; |
“clerk of the court”
« greffier du
tribunal » |
“clerk
of the court” includes a person, by whatever name or title he may be
designated, who from time to time performs the duties of a clerk of
the court; |
“common-law partner”
« conjoint de
fait » |
“common-law partner”, in
relation to an individual, means a person who is cohabiting with the
individual in a conjugal relationship, having so cohabited for a
period of at least one year; |
“complainant”
« plaignant » |
“complainant” means the
victim of an alleged offence; |
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“counsel” means a
barrister or solicitor, in respect of the matters or things that
barristers and solicitors, respectively, are authorized by the law
of a province to do or perform in relation to legal proceedings;
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“count”
« chef
d’accusation » |
“count” means a charge in
an information or indictment; |
“court of appeal”
« cour d’appel » |
“court
of appeal” means
(a) in the Province of Prince
Edward Island, the Appeal Division of the Supreme Court, and
(b) in all other provinces, the
Court of Appeal; |
“court of criminal
jurisdiction”
« cour de juridiction
criminelle » |
“court
of criminal jurisdiction” means
(a) a court of general or quarter
sessions of the peace, when presided over by a superior court
judge,
(a.1) in the Province of Quebec,
the Court of Quebec, the municipal court of Montreal and the
municipal court of Quebec,
(b) a provincial court judge or
judge acting under Part XIX, and
(c) in the Province of Ontario, the
Ontario Court of Justice; |
“criminal organization”
« organisation
criminelle » |
“criminal organization”
has the same meaning as in subsection 467.1(1); |
“criminal organization
offence”
« infraction d’organisation
criminelle » |
“criminal organization
offence” means
(a) an offence under section
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, or
(b) a conspiracy or an attempt to
commit, being an accessory after the fact in relation to, or any
counselling in relation to, an offence referred to in paragraph
(a); |
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“day”
means the period between six o’clock in the forenoon and nine
o’clock in the afternoon of the same day; |
“document of title to goods”
« titre de
marchandises » |
“document of title to
goods” includes a bought and sold note, bill of lading, warrant,
certificate or order for the delivery or transfer of goods or any
other valuable thing, and any other document used in the ordinary
course of business as evidence of the possession or control of
goods, authorizing or purporting to authorize, by endorsement or by
delivery, the person in possession of the document to transfer or
receive any goods thereby represented or therein mentioned or
referred to; |
“document of title to lands”
« titre de
bien-fonds » |
“document of title to
lands” includes any writing that is or contains evidence of the
title, or any part of the title, to real property or to any interest
in real property, and any notarial or registrar’s copy thereof and
any duplicate instrument, memorial, certificate or document
authorized or required by any law in force in any part of Canada
with respect to registration of titles that relates to title to real
property or to any interest in real property; |
“dwelling-house”
« maison
d’habitation » |
“dwelling-house” means the
whole or any part of a building or structure that is kept or
occupied as a permanent or temporary residence, and includes
(a) a building within the curtilage
of a dwelling-house that is connected to it by a doorway or by a
covered and enclosed passage-way, and
(b) a unit that is designed to be
mobile and to be used as a permanent or temporary residence and that
is being used as such a residence; |
“every one”, “person” and “owner”
« quiconque », « individu », « personne » et « propriétaire » |
“every
one”, “person” and “owner”, and similar expressions, include Her
Majesty and an organization; |
“explosive substance”
« substance
explosive » |
“explosive substance”
includes
(a) anything intended to be used to
make an explosive substance,
(b) anything, or any part thereof,
used or intended to be used, or adapted to cause, or to aid in
causing an explosion in or with an explosive substance, and
(c) an incendiary grenade, fire
bomb, molotov cocktail or other similar incendiary substance or
device and a delaying mechanism or other thing intended for use in
connection with such a substance or device;
“feeble-minded person”
[Repealed, 1991, c. 43, s. 9] |
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“firearm” means a
barrelled weapon from which any shot, bullet or other projectile can
be discharged and that is capable of causing serious bodily injury
or death to a person, and includes any frame or receiver of such a
barrelled weapon and anything that can be adapted for use as a
firearm; |
“government or public
facility”
« installation gouvernementale ou
publique » |
“government or public
facility” means a facility or conveyance, whether permanent or
temporary, that is used or occupied in connection with their
official duties by representatives of a state, members of a
government, members of a legislature, members of the judiciary, or
officials or employees of a state or of any other public authority
or public entity, or by officials or employees of an
intergovernmental organization; |
“Her Majesty’s Forces”
« forces de Sa
Majesté » |
“Her
Majesty’s Forces” means the naval, army and air forces of Her
Majesty wherever raised, and includes the Canadian Forces;
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“highway”
« voie publique » ou
« grande
route » |
“highway” means a road to
which the public has the right of access, and includes bridges over
which or tunnels through which a road passes; |
“indictment”
« acte
d’accusation » |
“indictment” includes
(a) information or a count
therein,
(b) a plea, replication or other
pleading, and
(c) any record; |
“internationally protected
person”
« personne jouissant d’une protection
internationale » |
“internationally protected
person” means
(a) a head of state, including any
member of a collegial body that performs the functions of a head of
state under the constitution of the state concerned, a head of a
government or a minister of foreign affairs, whenever that person is
in a state other than the state in which he holds that position or
office,
(b) a member of the family of a
person described in paragraph (a) who accompanies that person in
a state other than the state in which that person holds that
position or office,
(c) a representative or an official
of a state or an official or agent of an international organization
of an intergovernmental character who, at the time when and at the
place where an offence referred to in subsection 7(3) is committed
against his person or any property referred to in section 431 that
is used by him, is entitled, pursuant to international law, to
special protection from any attack on his person, freedom or
dignity, or
(d) a member of the family of a
representative, official or agent described in paragraph (c) who forms part of his
household, if the representative, official or agent, at the time
when and at the place where any offence referred to in subsection
7(3) is committed against the member of his family or any property
referred to in section 431 that is used by that member, is entitled,
pursuant to international law, to special protection from any attack
on his person, freedom or dignity; |
“justice”
« juge de paix » |
“justice” means a justice
of the peace or a provincial court judge, and includes two or more
justices where two or more justices are, by law, required to act or,
by law, act or have jurisdiction; |
“justice system participant”
« personne associée au système
judiciaire » |
“justice system
participant” means
(a) a member of the Senate, of the
House of Commons, of a legislative assembly or of a municipal
council, and
(b) a person who plays a role in
the administration of criminal justice, including
(i)
the Minister of Public Safety and Emergency Preparedness and a
Minister responsible for policing in a province,
(ii) a
prosecutor, a lawyer, a member of the Chambre des notaires du Québec
and an officer of a court,
(iii)
a judge and a justice,
(iv) a
juror and a person who is summoned as a juror,
(v) an
informant, a prospective witness, a witness under subpoena and a
witness who has testified,
(vi) a
peace officer within the meaning of any of paragraphs (b), (c), (d), (e) and (g) of the definition “peace
officer”,
(vii)
a civilian employee of a police force,
(viii)
a person employed in the administration of a court,
(viii.1)
a public officer within the meaning of subsection 25.1(1) and a
person acting at the direction of such an officer,
(ix)
an employee of the Canada Customs and Revenue Agency who is involved
in the investigation of an offence under an Act of Parliament,
(x) an
employee of a federal or provincial correctional service, a parole
supervisor and any other person who is involved in the
administration of a sentence under the supervision of such a
correctional service and a person who conducts disciplinary hearings
under the Corrections and
Conditional Release Act, and
(xi)
an employee and a member of the National Parole Board and of a
provincial parole board;
“magistrate” [Repealed,
R.S., 1985, c. 27 (1st Supp.), s. 2] |
“mental disorder”
« troubles
mentaux » |
“mental disorder” means a
disease of the mind; |
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“military” shall be
construed as relating to all or any of the Canadian Forces;
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“military law”
« loi militaire » |
“military law” includes
all laws, regulations or orders relating to the Canadian Forces;
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“motor vehicle”
« véhicule à
moteur » |
“motor
vehicle” means a vehicle that is drawn, propelled or driven by any
means other than muscular power, but does not include railway
equipment; |
“municipality”
« municipalité » |
“municipality” includes
the corporation of a city, town, village, county, township, parish
or other territorial or local division of a province, the
inhabitants of which are incorporated or are entitled to hold
property collectively for a public purpose; |
“newly-born child”
« enfant nouveau-né » ou
« nouveau-né » |
“newly-born child” means a
person under the age of one year; |
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“night” means the period
between nine o’clock in the afternoon and six o’clock in the
forenoon of the following day; |
“offence-related property”
« bien
infractionnel » |
“offence-related property”
means any property, within or outside Canada,
(a) by means or in respect of which
an indictable offence under this Act is committed,
(b) that is used in any manner in
connection with the commission of an indictable offence under this
Act, or
(c) that is intended for use for
the purpose of committing an indictable offence under this
Act; |
“offender”
« contrevenant » |
“offender” means a person
who has been determined by a court to be guilty of an offence,
whether on acceptance of a plea of guilty or on a finding of guilt;
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“offensive weapon”
« arme offensive » |
“offensive weapon” has the
same meaning as “weapon”; |
“organization”
« organisation » |
“organization” means
(a) a public body, body corporate,
society, company, firm, partnership, trade union or municipality,
or
(b) an association of persons
that
(i) is
created for a common purpose,
(ii)
has an operational structure, and
(iii)
holds itself out to the public as an association of
persons; |
“peace officer”
« agent de la
paix » |
“peace
officer” includes
(a) a mayor, warden, reeve,
sheriff, deputy sheriff, sheriff’s officer and justice of the
peace,
(b) a member of the Correctional
Service of Canada who is designated as a peace officer pursuant to
Part I of the Corrections and
Conditional Release Act, and a warden, deputy warden,
instructor, keeper, jailer, guard and any other officer or permanent
employee of a prison other than a penitentiary as defined in Part I
of the Corrections and Conditional
Release Act,
(c) a police officer, police
constable, bailiff, constable, or other person employed for the
preservation and maintenance of the public peace or for the service
or execution of civil process,
(d) an officer or a person having
the powers of a customs or excise officer when performing any duty
in the administration of the Customs Act, the Excise Act or the Excise Act, 2001,
(e) a person designated as a
fishery guardian under the Fisheries Act when performing any
duties or functions under that Act and a person designated as a
fishery officer under the Fisheries
Act when performing any duties or functions under that Act or
the Coastal Fisheries Protection
Act,
(f) the pilot in command of an
aircraft
(i)
registered in Canada under regulations made under the Aeronautics Act, or
(ii)
leased without crew and operated by a person who is qualified under
regulations made under the Aeronautics Act to be registered
as owner of an aircraft registered in Canada under those
regulations,
while
the aircraft is in flight, and
(g) officers and non-commissioned
members of the Canadian Forces who are
(i)
appointed for the purposes of section 156 of the National Defence Act, or
(ii)
employed on duties that the Governor in Council, in regulations made
under the National Defence
Act for the purposes of this paragraph, has prescribed to be
of such a kind as to necessitate that the officers and
non-commissioned members performing them have the powers of peace
officers; |
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“prison” includes a
penitentiary, common jail, public or reformatory prison, lock-up,
guard-room or other place in which persons who are charged with or
convicted of offences are usually kept in custody; |
“property”
« biens » ou « propriété » |
“property” includes
(a) real and personal property of
every description and deeds and instruments relating to or
evidencing the title or right to property, or giving a right to
recover or receive money or goods,
(b) property originally in the
possession or under the control of any person, and any property into
or for which it has been converted or exchanged and anything
acquired at any time by the conversion or exchange, and
(c) any postal card, postage stamp
or other stamp issued or prepared for issue under the authority of
Parliament or the legislature of a province for the payment to the
Crown or a corporate body of any fee, rate or duty, whether or not
it is in the possession of the Crown or of any person; |
“prosecutor”
« poursuivant » |
“prosecutor” means the
Attorney General or, where the Attorney General does not intervene,
means the person who institutes proceedings to which this Act
applies, and includes counsel acting on behalf of either of them;
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“provincial court judge”
« juge de la cour
provinciale » |
“provincial court judge”
means a person appointed or authorized to act by or pursuant to an
Act of the legislature of a province, by whatever title that person
may be designated, who has the power and authority of two or more
justices of the peace and includes the lawful deputy of that person;
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“public department”
« ministère
public » |
“public department” means
a department of the Government of Canada or a branch thereof or a
board, commission, corporation or other body that is an agent of Her
Majesty in right of Canada; |
“public officer”
« fonctionnaire
public » |
“public officer” includes
(a) an officer of customs or
excise,
(b) an officer of the Canadian
Forces,
(c) an officer of the Royal
Canadian Mounted Police, and
(d) any officer while the officer
is engaged in enforcing the laws of Canada relating to revenue,
customs, excise, trade or navigation; |
“public stores”
« approvisionnements
publics » |
“public stores” includes
any personal property that is under the care, supervision,
administration or control of a public department or of any person in
the service of a public department; |
“railway equipment”
« matériel
ferroviaire » |
“railway equipment” means
(a) any machine that is constructed
for movement exclusively on lines of railway, whether or not the
machine is capable of independent motion, or
(b) any vehicle that is constructed
for movement both on and off lines of railway while the adaptations
of that vehicle for movement on lines of railway are in
use; |
“representative”
« agent » |
“representative”, in
respect of an organization, means a director, partner, employee,
member, agent or contractor of the organization; |
“senior officer”
« cadre
supérieur » |
“senior officer” means a
representative who plays an important role in the establishment of
an organization’s policies or is responsible for managing an
important aspect of the organization’s activities and, in the case
of a body corporate, includes a director, its chief executive
officer and its chief financial officer; |
“serious offence”
« infraction
grave » |
“serious offence” has the
same meaning as in subsection 467.1(1); |
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“steal” means to commit
theft; |
“superior court of criminal
jurisdiction”
« cour supérieure de juridiction
criminelle » |
“superior court of
criminal jurisdiction” means
(a) in the Province of Ontario, the
Court of Appeal or the Superior Court of Justice,
(b) in the Province of Quebec, the
Superior Court,
(c) in the Province of Prince
Edward Island, the Supreme Court,
(d) in the Provinces of New
Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Appeal
or the Court of Queen’s Bench,
(e) in the Provinces of Nova
Scotia, British Columbia and Newfoundland, the Supreme Court or the
Court of Appeal,
(f) in Yukon, the Supreme
Court,
(g) in the Northwest Territories,
the Supreme Court, and
(h) in Nunavut, the Nunavut Court
of Justice; |
“territorial division”
« circonscription
territoriale » |
“territorial division”
includes any province, county, union of counties, township, city,
town, parish or other judicial division or place to which the
context applies; |
“terrorism offence”
« infraction de
terrorisme » |
“terrorism offence” means
(a) an offence under any of
sections 83.02 to 83.04 or 83.18 to 83.23,
(b) an indictable offence under
this or any other Act of Parliament committed for the benefit of, at
the direction of or in association with a terrorist group,
(c) an indictable offence under
this or any other Act of Parliament where the act or omission
constituting the offence also constitutes a terrorist activity,
or
(d) a conspiracy or an attempt to
commit, or being an accessory after the fact in relation to, or any
counselling in relation to, an offence referred to in paragraph
(a), (b) or (c); |
“terrorist activity”
« activité
terroriste » |
“terrorist activity” has
the same meaning as in subsection 83.01(1); |
“terrorist group”
« groupe
terroriste » |
“terrorist group” has the
same meaning as in subsection 83.01(1); |
“testamentary instrument”
« acte
testamentaire » |
“testamentary instrument”
includes any will, codicil or other testamentary writing or
appointment, during the life of the testator whose testamentary
disposition it purports to be and after his death, whether it
relates to real or personal property or to both; |
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“trustee” means a person
who is declared by any Act to be a trustee or is, by the law of a
province, a trustee, and, without restricting the generality of the
foregoing, includes a trustee on an express trust created by deed,
will or instrument in writing, or by parol; |
“unfit to stand trial”
« inaptitude à subir son
procès » |
“unfit
to stand trial” means unable on account of mental disorder to
conduct a defence at any stage of the proceedings before a verdict
is rendered or to instruct counsel to do so, and, in particular,
unable on account of mental disorder to
(a) understand the nature or object
of the proceedings,
(b) understand the possible
consequences of the proceedings, or
(c) communicate with
counsel; |
“United Nations operation”
« opération des Nations
Unies » |
“United Nations operation”
means an operation that is established by the competent organ of the
United Nations in accordance with the Charter of the United Nations
and is conducted under United Nations authority and control, if the
operation is for the purpose of maintaining or restoring
international peace and security or if the Security Council or the
General Assembly of the United Nations has declared, for the
purposes of the Convention on the
Safety of United Nations and Associated Personnel, that there
exists an exceptional risk to the safety of the personnel
participating in the operation. It does not include an operation
authorized by the Security Council as an enforcement action under
Chapter VII of the Charter of the United Nations in which any of the
personnel are engaged as combatants against organized armed forces
and to which the law of international armed conflict applies;
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“United Nations personnel”
« personnel des Nations
Unies » |
“United Nations personnel”
means
(a) persons who are engaged or
deployed by the Secretary-General of the United Nations as members
of the military, police or civilian components of a United Nations
operation, or
(b) any other officials or experts
who are on mission of the United Nations or one of its specialized
agencies or the International Atomic Energy Agency and who are
present in an official capacity in the area where a United Nations
operation is conducted; |
“valuable mineral”
« minéraux
précieux » |
“valuable mineral” means a
mineral of a value of at least $100 per kilogram, and includes
precious metals, diamonds and other gemstones and any rock or ore
that contains those minerals; |
“valuable security”
« valeur » ou « effet
appréciable » |
“valuable security”
includes
(a) an order, exchequer acquittance
or other security that entitles or evidences the title of any
person
(i) to
a share or interest in a public stock or fund or in any fund of a
body corporate, company or society, or
(ii)
to a deposit in a financial institution,
(b) any debenture, deed, bond,
bill, note, warrant, order or other security for money or for
payment of money,
(c) a document of title to lands or
goods wherever situated,
(d) a stamp or writing that secures
or evidences title to or an interest in a chattel personal, or that
evidences delivery of a chattel personal, and
(e) a release, receipt, discharge
or other instrument evidencing payment of money; |
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“victim” includes the
victim of an alleged offence; |
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“weapon” means any thing
used, designed to be used or intended for use
(a) in causing death or injury to
any person, or
(b) for the purpose of threatening
or intimidating any person
and, without restricting
the generality of the foregoing, includes a firearm; |
|
“wreck” includes the
cargo, stores and tackle of a vessel and all parts of a vessel
separated from the vessel, and the property of persons who belong
to, are on board or have quitted a vessel that is wrecked, stranded
or in distress at any place in Canada; |
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“writing” includes a
document of any kind and any mode in which, and any material on
which, words or figures, whether at length or abridged, are written,
printed or otherwise expressed, or a map or plan is inscribed.
R.S.,
1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st
Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s.
213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th
Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c.
1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51,
s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c.
29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s.
14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s.
155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41,
ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1;
2004, c. 3, s. 1; 2005, c. 10, s. 34. |
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3. Where, in
any provision of this Act, a reference to another provision of this
Act or a provision of any other Act is followed by words in
parenthesis that are or purport to be descriptive of the
subject-matter of the provision referred to, the words in
parenthesis form no part of the provision in which they occur but
shall be deemed to have been inserted for convenience of reference
only.
1976-77,
c. 53, s. 2. |
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3.1 Unless
otherwise provided or ordered, anything done by a court, justice or
judge is effective from the moment it is done, whether or not it is
reduced to writing.
2002,
c. 13, s. 2. |
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4. (1) For
the purposes of this Act, a postal card or stamp referred to in
paragraph (c) of the
definition “property” in section 2 shall be deemed to be a chattel
and to be equal in value to the amount of the postage, rate or duty
expressed on its face. |
Value
of valuable security |
(2)
For the purposes of this Act, the following rules apply for the
purpose of determining the value of a valuable security where value
is material:
(a) where the valuable security is
one mentioned in paragraph (a) or (b) of the definition “valuable
security” in section 2, the value is the value of the share,
interest, deposit or unpaid money, as the case may be, that is
secured by the valuable security;
(b) where the valuable security is
one mentioned in paragraph (c) or (d) of the definition “valuable
security” in section 2, the value is the value of the lands, goods,
chattel personal or interest in the chattel personal, as the case
may be; and
(c) where the valuable security is
one mentioned in paragraph (e) of the definition “valuable
security” in section 2, the value is the amount of money that has
been paid. |
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(3)
For the purposes of this Act,
(a) a person has anything in
possession when he has it in his personal possession or
knowingly
(i)
has it in the actual possession or custody of another person, or
(ii)
has it in any place, whether or not that place belongs to or is
occupied by him, for the use or benefit of himself or of another
person; and
(b) where one of two or more
persons, with the knowledge and consent of the rest, has anything in
his custody or possession, it shall be deemed to be in the custody
and possession of each and all of them. |
Expressions
taken from other Acts |
(4)
Where an offence that is dealt with in this Act relates to a subject
that is dealt with in another Act, the words and expressions used in
this Act with respect to that offence have, subject to this Act, the
meaning assigned to them in that other Act. |
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(5)
For the purposes of this Act, sexual intercourse is complete on
penetration to even the slightest degree, notwithstanding that seed
is not emitted. |
Proof
of notifications and service of documents |
(6)
For the purposes of this Act, the service of any document and the
giving or sending of any notice may be proved
(a) by oral evidence given under
oath by, or by the affidavit or solemn declaration of, the person
claiming to have served, given or sent it; or
(b) in the case of a peace officer,
by a statement in writing certifying that the document was served or
the notice was given or sent by the peace officer, and such a
statement is deemed to be a statement made under oath. |
Attendance
for examination |
(7)
Notwithstanding subsection (6), the court may require the person who
appears to have signed an affidavit, solemn declaration or statement
referred to in that subsection to appear before it for examination
or cross-examination in respect of the issue of proof of service or
the giving or sending of any notice.
R.S.,
1985, c. C-46, s. 4; R.S., 1985, c. 27 (1st Supp.), s. 3; 1994, c.
44, s. 3; 1997, c. 18, s. 2. |
|
5. Nothing in
this Act affects any law relating to the government of the Canadian
Forces.
R.S.,
c. C-34, s. 4. |
|
6. (1) Where
an enactment creates an offence and authorizes a punishment to be
imposed in respect of that offence,
(a) a person shall be deemed not to
be guilty of the offence until he is convicted or discharged under
section 730 of the offence; and
(b) a person who is convicted or
discharged under section 730 of the offence is not liable to any
punishment in respect thereof other than the punishment prescribed
by this Act or by the enactment that creates the offence. |
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(2)
Subject to this Act or any other Act of Parliament, no person shall
be convicted or discharged under section 730 of an offence committed
outside Canada. |
Definition
of “enactment” |
(3) In
this section, “enactment” means
(a) an Act of Parliament, or
(b) an Act of the legislature of a
province that creates an offence to which Part XXVII applies,
or any
regulation made thereunder.
R.S.,
1985, c. C-46, s. 6; R.S., 1985, c. 27 (1st Supp.), s. 4, c. 1 (4th
Supp.), s. 18(F); 1995, c. 22, s. 10. |
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7. (1)
Notwithstanding anything in this Act or any other Act, every one
who
(a) on or in respect of an
aircraft
(i)
registered in Canada under regulations made under the Aeronautics Act, or
(ii)
leased without crew and operated by a person who is qualified under
regulations made under the Aeronautics Act to be registered
as owner of an aircraft registered in Canada under those
regulations,
while
the aircraft is in flight, or
(b) on any aircraft, while the
aircraft is in flight if the flight terminated in Canada,
commits
an act or omission in or outside Canada that if committed in Canada
would be an offence punishable by indictment shall be deemed to have
committed that act or omission in Canada. |
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(2)
Notwithstanding this Act or any other Act, every one who
(a) on an aircraft, while the
aircraft is in flight, commits an act or omission outside Canada
that if committed in Canada or on an aircraft registered in Canada
under regulations made under the Aeronautics Act would be an
offence against section 76 or paragraph 77(a),
(b) in relation to an aircraft in
service, commits an act or omission outside Canada that if committed
in Canada would be an offence against any of paragraphs 77(b), (c) or (e),
(c) in relation to an air
navigation facility used in international air navigation, commits an
act or omission outside Canada that if committed in Canada would be
an offence against paragraph 77(d),
(d) at or in relation to an airport
serving international civil aviation, commits an act or omission
outside Canada that if committed in Canada would be an offence
against paragraph 77(b) or
(f), or
(e) commits an act or omission
outside Canada that if committed in Canada would constitute a
conspiracy or an attempt to commit an offence referred to in this
subsection, or being an accessory after the fact or counselling in
relation to such an offence,
shall be
deemed to have committed that act or omission in Canada if the
person is, after the commission thereof, present in
Canada. |
Offences
against fixed platforms or international maritime
navigation |
(2.1)
Notwithstanding anything in this Act or any other Act, every one who
commits an act or omission outside Canada against or on board a
fixed platform attached to the continental shelf of any state or
against or on board a ship navigating or scheduled to navigate
beyond the territorial sea of any state, that if committed in Canada
would constitute an offence against, a conspiracy or an attempt to
commit an offence against, or being an accessory after the fact or
counselling in relation to an offence against, section 78.1, shall
be deemed to commit that act or omission in Canada if it is
committed
(a) against or on board a fixed
platform attached to the continental shelf of Canada;
(b) against or on board a ship
registered or licensed, or for which an identification number has
been issued, pursuant to any Act of Parliament;
(c) by a Canadian citizen;
(d) by a person who is not a
citizen of any state and who ordinarily resides in Canada;
(e) by a person who is, after the
commission of the offence, present in Canada;
(f) in such a way as to seize,
injure or kill, or threaten to injure or kill, a Canadian citizen;
or
(g) in an attempt to compel the
Government of Canada to do or refrain from doing any act. |
Offences
against fixed platforms or navigation in the internal waters or
territorial sea of another state |
(2.2)
Notwithstanding anything in this Act or any other Act, every one who
commits an act or omission outside Canada against or on board a
fixed platform not attached to the continental shelf of any state or
against or on board a ship not navigating or scheduled to navigate
beyond the territorial sea of any state, that if committed in Canada
would constitute an offence against, a conspiracy or an attempt to
commit an offence against, or being an accessory after the fact or
counselling in relation to an offence against, section 78.1, shall
be deemed to commit that act or omission in Canada
(a) if it is committed as described
in any of paragraphs (2.1)(b) to (g); and
(b) if the offender is found in the
territory of a state, other than the state in which the act or
omission was committed, that is
(i) a
party to the Convention for the Suppression of Unlawful Acts against
the Safety of Maritime Navigation, done at Rome on March 10, 1988,
in respect of an offence committed against or on board a ship,
or
(ii) a
party to the Protocol for the Suppression of Unlawful Acts against
the Safety of Fixed Platforms Located on the Continental Shelf, done
at Rome on March 10, 1988, in respect of an offence committed
against or on board a fixed platform. |
Space
Station — Canadian crew members |
(2.3)
Despite anything in this Act or any other Act, a Canadian crew
member who, during a space flight, commits an act or omission
outside Canada that if committed in Canada would constitute an
indictable offence is deemed to have committed that act or omission
in Canada, if that act or omission is committed
(a) on, or in relation to, a flight
element of the Space Station; or
(b) on any means of transportation
to or from the Space Station. |
Space
Station — crew members of Partner States |
(2.31)
Despite anything in this Act or any other Act, a crew member of a
Partner State who commits an act or omission outside Canada during a
space flight on, or in relation to, a flight element of the Space
Station or on any means of transportation to and from the Space
Station that if committed in Canada would constitute an indictable
offence is deemed to have committed that act or omission in Canada,
if that act or omission
(a) threatens the life or security
of a Canadian crew member; or
(b) is committed on or in relation
to, or damages, a flight element provided by Canada. |
Proceedings
by Attorney General of Canada |
(2.32)
Despite the definition “Attorney General” in section 2, the Attorney
General of Canada may conduct proceedings in relation to an offence
referred to in subsection (2.3) or (2.31). For that purpose, the
Attorney General of Canada may exercise all the powers and perform
all the duties and functions assigned to the Attorney General by or
under this Act. |
Consent
of Attorney General of Canada |
(2.33)
No proceedings in relation to an offence referred to in subsection
(2.3) or (2.31) may be instituted without the consent of the
Attorney General of Canada. |
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(2.34)
The definitions in this subsection apply in this subsection and in
subsections (2.3) and (2.31). |
|
“Agreement” has the same
meaning as in section 2 of the Civil International Space Station
Agreement Implementation Act. |
“Canadian crew member”
« membre d’équipage
canadien » |
“Canadian crew member”
means a crew member of the Space Station who is
(a) a Canadian citizen; or
(b) a citizen of a foreign state,
other than a Partner State, who is authorized by Canada to act as a
crew member for a space flight on, or in relation to, a flight
element. |
“crew member of a Partner
State”
« membre d’équipage d’un État
partenaire » |
“crew
member of a Partner State” means a crew member of the Space Station
who is
(a) a citizen of a Partner State;
or
(b) a citizen of a state, other
than that Partner State, who is authorized by that Partner State to
act as a crew member for a space flight on, or in relation to, a
flight element. |
“flight element”
« élément de vol » |
“flight element” means a
Space Station element provided by Canada or by a Partner State under
the Agreement and under any memorandum of understanding or other
implementing arrangement entered into to carry out the
Agreement. |
“Partner State”
« État
partenaire » |
“Partner State” means a
State, other than Canada, who contracted to enter into the Agreement
and for which the Agreement has entered into force in accordance
with article 25 of the Agreement. |
“space flight”
« vol spatial » |
“space
flight” means the period that begins with the launching of a crew
member of the Space Station, continues during their stay in orbit
and ends with their landing on earth. |
“Space Station”
« station
spatiale » |
“Space
Station” means the civil international Space Station that is a
multi-use facility in low-earth orbit, with flight elements and
dedicated ground elements provided by, or on behalf of, the Partner
States. |
Offence
against internationally protected person |
(3)
Notwithstanding anything in this Act or any other Act, every one
who, outside Canada, commits an act or omission against the person
of an internationally protected person or against any property
referred to in section 431 used by that person that, if committed in
Canada, would be an offence against any of sections 235, 236, 266,
267, 268, 269, 269.1, 271, 272, 273, 279, 279.1, 280 to 283, 424 and
431 is deemed to commit that act or omission in Canada if
(a) the act or omission is
committed on a ship that is registered or licensed, or for which an
identification number has been issued, pursuant to any Act of
Parliament;
(b) the act or omission is
committed on an aircraft
(i)
registered in Canada under regulations made under the Aeronautics Act, or
(ii)
leased without crew and operated by a person who is qualified under
regulations made under the Aeronautics Act to be registered
as owner of an aircraft in Canada under those regulations;
(c) the person who commits the act
or omission is a Canadian citizen or is, after the act or omission
has been committed, present in Canada; or
(d) the act or omission is
against
(i) a
person who enjoys the status of an internationally protected person
by virtue of the functions that person performs on behalf of Canada,
or
(ii) a
member of the family of a person described in subparagraph (i) who
qualifies under paragraph (b) or (d) of the definition
“internationally protected person” in section 2. |
Offence
of hostage taking |
(3.1)
Notwithstanding anything in this Act or any other Act, every one
who, outside Canada, commits an act or omission that if committed in
Canada would be an offence against section 279.1 shall be deemed to
commit that act or omission in Canada if
(a) the act or omission is
committed on a ship that is registered or licensed, or for which an
identification number has been issued, pursuant to any Act of
Parliament;
(b) the act or omission is
committed on an aircraft
(i)
registered in Canada under regulations made under the Aeronautics Act, or
(ii)
leased without crew and operated by a person who is qualified under
regulations made under the Aeronautics Act to be registered
as owner of an aircraft in Canada under such regulations;
(c) the person who commits the act
or omission
(i) is
a Canadian citizen, or
(ii)
is not a citizen of any state and ordinarily resides in Canada;
(d) the act or omission is
committed with intent to induce Her Majesty in right of Canada or of
a province to commit or cause to be committed any act or
omission;
(e) a person taken hostage by the
act or omission is a Canadian citizen; or
(f) the person who commits the act
or omission is, after the commission thereof, present in
Canada. |
Offences
involving nuclear material |
(3.2)
Notwithstanding anything in this Act or any other Act, where
(a) a person, outside Canada,
receives, has in his possession, uses, transfers the possession of,
sends or delivers to any person, transports, alters, disposes of,
disperses or abandons nuclear material and thereby
(i)
causes or is likely to cause the death of, or serious bodily harm
to, any person, or
(ii)
causes or is likely to cause serious damage to, or destruction of,
property, and
(b) the act or omission described
in paragraph (a) would, if
committed in Canada, be an offence against this Act,
that
person shall be deemed to commit that act or omission in Canada if
paragraph (3.5)(a), (b) or (c) applies in respect of the act
or omission. |
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(3.3)
Notwithstanding anything in this Act or any other Act, every one
who, outside Canada, commits an act or omission that if committed in
Canada would constitute
(a) a conspiracy or an attempt to
commit,
(b) being an accessory after the
fact in relation to, or
(c) counselling in relation to,
an act
or omission that is an offence by virtue of subsection (3.2) shall
be deemed to commit the act or omission in Canada if paragraph
(3.5)(a), (b) or (c) applies in respect of the act
or omission. |
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(3.4)
Notwithstanding anything in this Act or any other Act, every one
who, outside Canada, commits an act or omission that if committed in
Canada would constitute an offence against, a conspiracy or an
attempt to commit or being an accessory after the fact in relation
to an offence against, or any counselling in relation to an offence
against,
(a) section 334, 341, 344 or 380 or
paragraph 362(1)(a) in
relation to nuclear material,
(b) section 346 in respect of a
threat to commit an offence against section 334 or 344 in relation
to nuclear material,
(c) section 423 in relation to a
demand for nuclear material, or
(d) paragraph 264.1(1)(a) or (b) in respect of a threat to use
nuclear material
shall be
deemed to commit that act or omission in Canada if paragraph
(3.5)(a), (b) or (c) applies in respect of the act
or omission. |
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(3.5)
For the purposes of subsections (3.2) to (3.4), a person shall be
deemed to commit an act or omission in Canada if
(a) the act or omission is
committed on a ship that is registered or licensed, or for which an
identification number has been issued, pursuant to any Act of
Parliament;
(b) the act or omission is
committed on an aircraft
(i)
registered in Canada under regulations made under the Aeronautics Act, or
(ii)
leased without crew and operated by a person who is qualified under
regulations made under the Aeronautics Act to be registered
as owner of an aircraft in Canada under those regulations; or
(c) the person who commits the act
or omission is a Canadian citizen or is, after the act or omission
has been committed, present in Canada. |
Definition
of “nuclear material” |
(3.6)
For the purposes of this section, “nuclear material” means
(a) plutonium, except plutonium
with an isotopic concentration of plutonium-238 exceeding eighty per
cent,
(b) uranium-233,
(c) uranium containing uranium-233
or uranium-235 or both in such an amount that the abundance ratio of
the sum of those isotopes to the isotope uranium-238 is greater than
0.72 per cent,
(d) uranium with an isotopic
concentration equal to that occurring in nature, and
(e) any substance containing
anything described in paragraphs (a) to (d),
but does
not include uranium in the form of ore or ore-residue. |
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(3.7)
Notwithstanding anything in this Act or any other Act, every one
who, outside Canada, commits an act or omission that, if committed
in Canada, would constitute an offence against, a conspiracy or an
attempt to commit an offence against, being an accessory after the
fact in relation to an offence against, or any counselling in
relation to an offence against, section 269.1 shall be deemed to
commit that act or omission in Canada if
(a) the act or omission is
committed on a ship that is registered or licensed, or for which an
identification number has been issued, pursuant to any Act of
Parliament;
(b) the act or omission is
committed on an aircraft
(i)
registered in Canada under regulations made under the Aeronautics Act, or
(ii)
leased without crew and operated by a person who is qualified under
regulations made under the Aeronautics Act to be registered
as owner of an aircraft in Canada under those regulations;
(c) the person who commits the act
or omission is a Canadian citizen;
(d) the complainant is a Canadian
citizen; or
(e) the person who commits the act
or omission is, after the commission thereof, present in
Canada. |
Offence
against United Nations or associated personnel |
(3.71)
Notwithstanding anything in this Act or any other Act, every one
who, outside Canada, commits an act or omission against a member of
United Nations personnel or associated personnel or against property
referred to in section 431.1 that, if committed in Canada, would
constitute an offence against, a conspiracy or an attempt to commit
an offence against, or being an accessory after the fact or
counselling in relation to an offence against, section 235, 236,
266, 267, 268, 269, 269.1, 271, 272, 273, 279, 279.1, 424.1 or 431.1
is deemed to commit that act or omission in Canada if
(a) the act or omission is
committed on a ship that is registered or licensed, or for which an
identification number has been issued, under an Act of
Parliament;
(b) the act or omission is
committed on an aircraft
(i)
registered in Canada under regulations made under the Aeronautics Act, or
(ii)
leased without crew and operated by a person who is qualified under
regulations made under the Aeronautics Act to be registered
as owner of an aircraft in Canada under those regulations;
(c) the person who commits the act
or omission
(i) is
a Canadian citizen, or
(ii)
is not a citizen of any state and ordinarily resides in Canada;
(d) the person who commits the act
or omission is, after the commission of the act or omission, present
in Canada;
(e) the act or omission is
committed against a Canadian citizen; or
(f) the act or omission is
committed with intent to compel the Government of Canada or of a
province to do or refrain from doing any act. |
Offence
involving explosive or other lethal device |
(3.72)
Notwithstanding anything in this Act or any other Act, every one
who, outside Canada, commits an act or omission that, if committed
in Canada, would constitute an offence against, a conspiracy or an
attempt to commit an offence against, or being an accessory after
the fact or counselling in relation to an offence against, section
431.2 is deemed to commit that act or omission in Canada if
(a) the act or omission is
committed on a ship that is registered or licensed, or for which an
identification number has been issued, under any Act of
Parliament;
(b) the act or omission is
committed on an aircraft
(i)
registered in Canada under regulations made under the Aeronautics Act,
(ii)
leased without crew and operated by a person who is qualified under
regulations made under the Aeronautics Act to be registered
as owner of an aircraft in Canada under those regulations, or
(iii)
operated for or on behalf of the Government of Canada;
(c) the person who commits the act
or omission
(i) is
a Canadian citizen, or
(ii)
is not a citizen of any state and ordinarily resides in Canada;
(d) the person who commits the act
or omission is, after the commission of the act or omission, present
in Canada;
(e) the act or omission is
committed against a Canadian citizen;
(f) the act or omission is
committed with intent to compel the Government of Canada or of a
province to do or refrain from doing any act; or
(g) the act or omission is
committed against a Canadian government or public facility located
outside Canada. |
Offence
relating to financing of terrorism |
(3.73)
Notwithstanding anything in this Act or any other Act, every one
who, outside Canada, commits an act or omission that, if committed
in Canada, would constitute an offence against, a conspiracy or an
attempt to commit an offence against, or being an accessory after
the fact or counselling in relation to an offence against, section
83.02 is deemed to commit the act or omission in Canada if
(a) the act or omission is
committed on a ship that is registered or licensed, or for which an
identification number has been issued, under an Act of
Parliament;
(b) the act or omission is
committed on an aircraft
(i)
registered in Canada under regulations made under the Aeronautics Act, or
(ii)
leased without crew and operated by a person who is qualified under
regulations made under the Aeronautics Act to be registered
as the owner of an aircraft in Canada under those regulations;
(c) the person who commits the act
or omission
(i) is
a Canadian citizen, or
(ii)
is not a citizen of any state and ordinarily resides in Canada;
(d) the person who commits the act
or omission is, after its commission, present in Canada;
(e) the act or omission is
committed for the purpose of committing an act or omission referred
to in paragraph 83.02(a) or
(b) in order to compel the
Government of Canada or of a province to do or refrain from doing
any act;
(f) the act or omission is
committed for the purpose of committing an act or omission referred
to in paragraph 83.02(a) or
(b) against a Canadian
government or public facility located outside Canada; or
(g) the act or omission is
committed for the purpose of committing an act or omission referred
to in paragraph 83.02(a) or
(b) in Canada or against a
Canadian citizen. |
Terrorism
offence committed outside Canada |
(3.74)
Notwithstanding anything in this Act or any other Act, every one who
commits an act or omission outside Canada that, if committed in
Canada, would be a terrorism offence, other than an offence under
section 83.02 or an offence referred to in paragraph (a) of the definition “terrorist
activity” in subsection 83.01(1), is deemed to have committed that
act or omission in Canada if the person
(a) is a Canadian citizen;
(b) is not a citizen of any state
and ordinarily resides in Canada; or
(c) is a permanent resident within
the meaning of subsection 2(1) of the Immigration and Refugee Protection
Act and is, after the commission of the act or omission,
present in Canada. |
Terrorist
activity committed outside Canada |
(3.75)
Notwithstanding anything in this Act or any other Act, every one who
commits an act or omission outside Canada that, if committed in
Canada, would be an indictable offence and would also constitute a
terrorist activity referred to in paragraph (b) of the definition “terrorist
activity” in subsection 83.01(1) is deemed to commit that act or
omission in Canada if
(a) the act or omission is
committed against a Canadian citizen;
(b) the act or omission is
committed against a Canadian government or public facility located
outside Canada; or
(c) the act or omission is
committed with intent to compel the Government of Canada or of a
province to do or refrain from doing any act.
(3.76)
and (3.77) [Repealed, 2000, c. 24, s. 42] |
Offences
by Public Service employees |
(4)
Every one who, while employed as an employee within the meaning of
the Public Service Employment
Act in a place outside Canada, commits an act or omission in
that place that is an offence under the laws of that place and that,
if committed in Canada, would be an offence punishable by indictment
shall be deemed to have committed that act or omission in
Canada. |
Offence
in relation to sexual offences against children |
(4.1)
Notwithstanding anything in this Act or any other Act, every one
who, outside Canada, commits an act or omission that if committed in
Canada would be an offence against section 151, 152, 153, 155 or
159, subsection 160(2) or (3), section 163.1, 170, 171 or 173 or
subsection 212(4) shall be deemed to commit that act or omission in
Canada if the person who commits the act or omission is a Canadian
citizen or a permanent resident within the meaning of subsection
2(1) of the Immigration and Refugee
Protection Act.
(4.2)
[Repealed, 2002, c. 13, s. 3] |
Consent
of Attorney General |
(4.3)
Proceedings with respect to an act or omission deemed to have been
committed in Canada under subsection (4.1) may only be instituted
with the consent of the Attorney General. |
|
(5)
Where a person is alleged to have committed an act or omission that
is an offence by virtue of this section, proceedings in respect of
that offence may, whether or not that person is in Canada, be
commenced in any territorial division in Canada and the accused may
be tried and punished in respect of that offence in the same manner
as if the offence had been committed in that territorial
division. |
Appearance
of accused at trial |
(5.1)
For greater certainty, the provisions of this Act relating to
(a) requirements that an accused
appear at and be present during proceedings, and
(b) the exceptions to those
requirements,
apply to
proceedings commenced in any territorial division pursuant to
subsection (5). |
Where
previously tried outside Canada |
(6)
Where a person is alleged to have committed an act or omission that
is an offence by virtue of this section and that person has been
tried and dealt with outside Canada in respect of the offence in
such a manner that, if that person had been tried and dealt with in
Canada, he would be able to plead autrefois acquit, autrefois convict or pardon, that
person shall be deemed to have been so tried and dealt with in
Canada. |
If
accused not Canadian citizen |
(7) If
the accused is not a Canadian citizen, no proceedings in respect of
which courts have jurisdiction by virtue of this section shall be
continued unless the consent of the Attorney General of Canada is
obtained not later than eight days after the proceedings are
commenced. |
Definition
of “flight” and “in flight” |
(8)
For the purposes of this section, of the definition “peace officer”
in section 2 and of sections 27.1, 76 and 77, “flight” means the act
of flying or moving through the air and an aircraft is deemed to be
in flight from the time when all external doors are closed following
embarkation until the later of
(
a) the time at which any
such door is opened for the purpose of disembarkation, and
(
b) where the aircraft makes
a forced landing in circumstances in which the owner or operator
thereof or a person acting on behalf of either of them is not in
control of the aircraft, the time at which control of the aircraft
is restored to the owner or operator thereof or a person acting on
behalf of either of them. |
Definition
of “in service” |
(9)
For the purposes of this section and section 77, an aircraft shall
be deemed to be in service from the time when pre-flight preparation
of the aircraft by ground personnel or the crew thereof begins for a
specific flight until
(a) the flight is cancelled before
the aircraft is in flight,
(b) twenty-four hours after the
aircraft, having commenced the flight, lands, or
(c) the aircraft, having commenced
the flight, ceases to be in flight,
whichever
is the latest. |
|
(10)
In any proceedings under this Act, a certificate purporting to have
been issued by or under the authority of the Minister of Foreign
Affairs is admissible in evidence without proof of the signature or
authority of the person appearing to have signed it and, in the
absence of evidence to the contrary, is proof of the facts it states
that are relevant to the question of whether any person is a member
of United Nations personnel, a member of associated personnel or a
person who is entitled under international law to protection from
attack or threat of attack against his or her person, freedom or
dignity. |
|
(11) A
certificate purporting to have been issued by or under the authority
of the Minister of Foreign Affairs stating
(a) that at a certain time any
state was engaged in an armed conflict against Canada or was allied
with Canada in an armed conflict,
(b) that at a certain time any
convention, treaty or other international agreement was or was not
in force and that Canada was or was not a party thereto, or
(c) that Canada agreed or did not
agree to accept and apply the provisions of any convention, treaty
or other international agreement in an armed conflict in which
Canada was involved,
is
admissible in evidence in any proceedings without proof of the
signature or authority of the person appearing to have issued it,
and is proof of the facts so stated.
R.S.,
1985, c. C-46, s. 7; R.S., 1985, c. 27 (1st Supp.), s. 5, c. 10 (3rd
Supp.), s. 1, c. 30 (3rd Supp.), s. 1, c. 1 (4th Supp.), s. 18(F);
1992, c. 1, ss. 58, 60(F); 1993, c. 7, s. 1; 1995, c. 5, s. 25;
1997, c. 16, s. 1; 1999, c. 35, s. 11; 2000, c. 24, s. 42; 2001, c.
27, s. 244, c. 41, ss. 3, 126; 2002, c. 13, s. 3; 2004, c. 12, s.
1. |
|
8. (1) The
provisions of this Act apply throughout Canada except
(a) in Yukon, in so far as they are
inconsistent with the Yukon
Act;
(b) in the Northwest Territories,
in so far as they are inconsistent with the Northwest Territories Act; and
(c) in Nunavut, in so far as they
are inconsistent with the Nunavut
Act. |
Application
of criminal law of England |
(2)
The criminal law of England that was in force in a province
immediately before April 1, 1955 continues in force in the province
except as altered, varied, modified or affected by this Act or any
other Act of the Parliament of Canada. |
Common
law principles continued |
(3)
Every rule and principle of the common law that renders any
circumstance a justification or excuse for an act or a defence to a
charge continues in force and applies in respect of proceedings for
an offence under this Act or any other Act of Parliament except in
so far as they are altered by or are inconsistent with this Act or
any other Act of Parliament.
R.S.,
1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s.
138. |
|
9.
Notwithstanding anything in this Act or any other Act, no person
shall be convicted or discharged under section 730
(a) of an offence at common
law,
(b) of an offence under an Act of
the Parliament of England, or of Great Britain, or of the United
Kingdom of Great Britain and Ireland, or
(c) of an offence under an Act or
ordinance in force in any province, territory or place before that
province, territory or place became a province of Canada,
but
nothing in this section affects the power, jurisdiction or authority
that a court, judge, justice or provincial court judge had,
immediately before April 1, 1955, to impose punishment for contempt
of court.
R.S.,
1985, c. C-46, s. 9; R.S., 1985, c. 27 (1st Supp.), s. 6, c. 1 (4th
Supp.), s. 18(F); 1995, c. 22, s. 10. |
|
10. (1) Where
a court, judge, justice or provincial court judge summarily convicts
a person for a contempt of court committed in the face of the court
and imposes punishment in respect thereof, that person may
appeal
(a) from the conviction; or
(b) against the punishment
imposed. |
|
(2)
Where a court or judge summarily convicts a person for a contempt of
court not committed in the face of the court and punishment is
imposed in respect thereof, that person may appeal
(a) from the conviction; or
(b) against the punishment
imposed. |
|
(3) An
appeal under this section lies to the court of appeal of the
province in which the proceedings take place, and, for the purposes
of this section, the provisions of Part XXI apply, with such
modifications as the circumstances require.
R.S.,
1985, c. C-46, s. 10; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
11. No civil
remedy for an act or omission is suspended or affected by reason
that the act or omission is a criminal offence.
R.S.,
c. C-34, s. 10. |
|
12. Where an
act or omission is an offence under more than one Act of Parliament,
whether punishable by indictment or on summary conviction, a person
who does the act or makes the omission is, unless a contrary
intention appears, subject to proceedings under any of those Acts,
but is not liable to be punished more than once for the same
offence.
R.S.,
c. C-34, s. 11. |
|
13. No person
shall be convicted of an offence in respect of an act or omission on
his part while that person was under the age of twelve years.
R.S.,
c. C-34, s. 12; 1980-81-82-83, c. 110, s. 72. |
|
14. No person
is entitled to consent to have death inflicted on him, and such
consent does not affect the criminal responsibility of any person by
whom death may be inflicted on the person by whom consent is
given.
R.S.,
c. C-34, s. 14. |
|
15. No person
shall be convicted of an offence in respect of an act or omission in
obedience to the laws for the time being made and enforced by
persons in de facto
possession of the sovereign power in and over the place where the
act or omission occurs.
R.S.,
c. C-34, s. 15. |
|
16. (1) No
person is criminally responsible for an act committed or an omission
made while suffering from a mental disorder that rendered the person
incapable of appreciating the nature and quality of the act or
omission or of knowing that it was wrong. |
|
(2)
Every person is presumed not to suffer from a mental disorder so as
to be exempt from criminal responsibility by virtue of subsection
(1), until the contrary is proved on the balance of
probabilities. |
|
(3)
The burden of proof that an accused was suffering from a mental
disorder so as to be exempt from criminal responsibility is on the
party that raises the issue.
R.S.,
1985, c. C-46, s. 16; R.S., 1985, c. 27 (1st Supp.), s. 185(F);
1991, c. 43, s. 2. |
|
17. A person
who commits an offence under compulsion by threats of immediate
death or bodily harm from a person who is present when the offence
is committed is excused for committing the offence if the person
believes that the threats will be carried out and if the person is
not a party to a conspiracy or association whereby the person is
subject to compulsion, but this section does not apply where the
offence that is committed is high treason or treason, murder,
piracy, attempted murder, sexual assault, sexual assault with a
weapon, threats to a third party or causing bodily harm, aggravated
sexual assault, forcible abduction, hostage taking, robbery, assault
with a weapon or causing bodily harm, aggravated assault, unlawfully
causing bodily harm, arson or an offence under sections 280 to 283
(abduction and detention of young persons).
R.S.,
1985, c. C-46, s. 17; R.S., 1985, c. 27 (1st Supp.), s.
40. |
|
18. No
presumption arises that a married person who commits an offence does
so under compulsion by reason only that the offence is committed in
the presence of the spouse of that married person.
R.S.,
c. C-34, s. 18; 1980-81-82-83, c. 125, s. 4. |
|
19. Ignorance
of the law by a person who commits an offence is not an excuse for
committing that offence.
R.S.,
c. C-34, s. 19. |
|
20. A warrant
or summons that is authorized by this Act or an appearance notice,
promise to appear, undertaking or recognizance issued, given or
entered into in accordance with Part XVI, XXI or XXVII may be
issued, executed, given or entered into, as the case may be, on a
holiday.
R.S.,
c. C-34, s. 20; R.S., c. 2(2nd Supp.), s. 2. |
|
|
|
21. (1) Every
one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything
for the purpose of aiding any person to commit it; or
(c) abets any person in committing
it. |
|
(2)
Where two or more persons form an intention in common to carry out
an unlawful purpose and to assist each other therein and any one of
them, in carrying out the common purpose, commits an offence, each
of them who knew or ought to have known that the commission of the
offence would be a probable consequence of carrying out the common
purpose is a party to that offence.
R.S.,
c. C-34, s. 21. |
|
22. (1) Where
a person counsels another person to be a party to an offence and
that other person is afterwards a party to that offence, the person
who counselled is a party to that offence, notwithstanding that the
offence was committed in a way different from that which was
counselled. |
|
(2)
Every one who counsels another person to be a party to an offence is
a party to every offence that the other commits in consequence of
the counselling that the person who counselled knew or ought to have
known was likely to be committed in consequence of the
counselling. |
|
(3)
For the purposes of this Act, “counsel” includes procure, solicit or
incite.
R.S.,
1985, c. C-46, s. 22; R.S., 1985, c. 27 (1st Supp.), s. 7. |
|
22.1 In
respect of an offence that requires the prosecution to prove
negligence, an organization is a party to the offence if
(a) acting within the scope of
their authority
(i)
one of its representatives is a party to the offence, or
(ii)
two or more of its representatives engage in conduct, whether by act
or omission, such that, if it had been the conduct of only one
representative, that representative would have been a party to the
offence; and
(b) the senior officer who is
responsible for the aspect of the organization’s activities that is
relevant to the offence departs — or the senior officers,
collectively, depart — markedly from the standard of care that, in
the circumstances, could reasonably be expected to prevent a
representative of the organization from being a party to the
offence.
2003,
c. 21, s. 2. |
|
22.2 In
respect of an offence that requires the prosecution to prove fault —
other than negligence — an organization is a party to the offence
if, with the intent at least in part to benefit the organization,
one of its senior officers
(a) acting within the scope of
their authority, is a party to the offence;
(b) having the mental state
required to be a party to the offence and acting within the scope of
their authority, directs the work of other representatives of the
organization so that they do the act or make the omission specified
in the offence; or
(c) knowing that a representative
of the organization is or is about to be a party to the offence,
does not take all reasonable measures to stop them from being a
party to the offence.
2003,
c. 21, s. 2. |
|
23. (1) An
accessory after the fact to an offence is one who, knowing that a
person has been a party to the offence, receives, comforts or
assists that person for the purpose of enabling that person to
escape.
(2)
[Repealed, 2000, c. 12, s. 92]
R.S.,
1985, c. C-46, s. 23; 2000, c. 12, s. 92. |
|
23.1 For
greater certainty, sections 21 to 23 apply in respect of an accused
notwithstanding the fact that the person whom the accused aids or
abets, counsels or procures or receives, comforts or assists cannot
be convicted of the offence.
R.S.,
1985, c. 24 (2nd Supp.), s. 45. |
|
24. (1) Every
one who, having an intent to commit an offence, does or omits to do
anything for the purpose of carrying out the intention is guilty of
an attempt to commit the offence whether or not it was possible
under the circumstances to commit the offence. |
|
(2)
The question whether an act or omission by a person who has an
intent to commit an offence is or is not mere preparation to commit
the offence, and too remote to constitute an attempt to commit the
offence, is a question of law.
R.S.,
c. C-34, s. 24. |
|
Protection
of Persons Administering and Enforcing the Law |
|
25. (1) Every
one who is required or authorized by law to do anything in the
administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public
officer,
(c) in aid of a peace officer or
public officer, or
(d) by virtue of his office,
is, if
he acts on reasonable grounds, justified in doing what he is
required or authorized to do and in using as much force as is
necessary for that purpose. |
|
(2)
Where a person is required or authorized by law to execute a process
or to carry out a sentence, that person or any person who assists
him is, if that person acts in good faith, justified in executing
the process or in carrying out the sentence notwithstanding that the
process or sentence is defective or that it was issued or imposed
without jurisdiction or in excess of jurisdiction. |
|
(3)
Subject to subsections (4) and (5), a person is not justified for
the purposes of subsection (1) in using force that is intended or is
likely to cause death or grievous bodily harm unless the person
believes on reasonable grounds that it is necessary for the
self-preservation of the person or the preservation of any one under
that person’s protection from death or grievous bodily
harm. |
|
(4) A
peace officer, and every person lawfully assisting the peace
officer, is justified in using force that is intended or is likely
to cause death or grievous bodily harm to a person to be arrested,
if
(a) the peace officer is proceeding
lawfully to arrest, with or without warrant, the person to be
arrested;
(b) the offence for which the
person is to be arrested is one for which that person may be
arrested without warrant;
(c) the person to be arrested takes
flight to avoid arrest;
(d) the peace officer or other
person using the force believes on reasonable grounds that the force
is necessary for the purpose of protecting the peace officer, the
person lawfully assisting the peace officer or any other person from
imminent or future death or grievous bodily harm; and
(e) the flight cannot be prevented
by reasonable means in a less violent manner. |
Power
in case of escape from penitentiary |
(5) A
peace officer is justified in using force that is intended or is
likely to cause death or grievous bodily harm against an inmate who
is escaping from a penitentiary within the meaning of subsection
2(1) of the Corrections and
Conditional Release Act, if
(a) the peace officer believes on
reasonable grounds that any of the inmates of the penitentiary poses
a threat of death or grievous bodily harm to the peace officer or
any other person; and
(b) the escape cannot be prevented
by reasonable means in a less violent manner.
R.S.,
1985, c. C-46, s. 25; 1994, c. 12, s. 1. |
|
25.1 (1) The
following definitions apply in this section and sections 25.2 to
25.4. |
“competent authority”
« autorité
compétente » |
“competent authority”
means, with respect to a public officer or a senior official,
(a) in the case of a member of the
Royal Canadian Mounted Police, the Minister of Public Safety and
Emergency Preparedness, personally;
(b) in the case of a member of a
police service constituted under the laws of a province, the
Minister responsible for policing in the province, personally;
and
(c) in the case of any other public
officer or senior official, the Minister who has responsibility for
the Act of Parliament that the officer or official has the power to
enforce, personally. |
“public officer”
« fonctionnaire
public » |
“public officer” means a
peace officer, or a public officer who has the powers of a peace
officer under an Act of Parliament. |
“senior official”
« fonctionnaire
supérieur » |
“senior official” means a
senior official who is responsible for law enforcement and who is
designated under subsection (5). |
|
(2) It
is in the public interest to ensure that public officers may
effectively carry out their law enforcement duties in accordance
with the rule of law and, to that end, to expressly recognize in law
a justification for public officers and other persons acting at
their direction to commit acts or omissions that would otherwise
constitute offences. |
Designation
of public officers |
(3) A
competent authority may designate public officers for the purposes
of this section and sections 25.2 to 25.4. |
Condition
— civilian oversight |
(3.1)
A competent authority referred to in paragraph (a) or (b) of the definition of that term
in subsection (1) may not designate any public officer under
subsection (3) unless there is a public authority composed of
persons who are not peace officers that may review the public
officer’s conduct. |
|
(3.2)
The Governor in Council or the lieutenant governor in council of a
province, as the case may be, may designate a person or body as a
public authority for the purposes of subsection (3.1), and that
designation is conclusive evidence that the person or body is a
public authority described in that subsection. |
|
(4)
The competent authority shall make designations under subsection (3)
on the advice of a senior official and shall consider the nature of
the duties performed by the public officer in relation to law
enforcement generally, rather than in relation to any particular
investigation or enforcement activity. |
Designation
of senior officials |
(5) A
competent authority may designate senior officials for the purposes
of this section and sections 25.2 to 25.4. |
|
(6) A
senior official may designate a public officer for the purposes of
this section and sections 25.2 to 25.4 for a period of not more than
48 hours if the senior official is of the opinion that
(a) by reason of exigent
circumstances, it is not feasible for the competent authority to
designate a public officer under subsection (3); and
(b) in the circumstances of the
case, the public officer would be justified in committing an act or
omission that would otherwise constitute an offence.
The
senior official shall without delay notify the competent authority
of the designation. |
|
(7) A
designation under subsection (3) or (6) may be made subject to
conditions, including conditions limiting
(a) the duration of the
designation;
(b) the nature of the conduct in
the investigation of which a public officer may be justified in
committing, or directing another person to commit, acts or omissions
that would otherwise constitute an offence; and
(c) the acts or omissions that
would otherwise constitute an offence and that a public officer may
be justified in committing or directing another person to
commit. |
Justification
for acts or omissions |
(8) A
public officer is justified in committing an act or omission — or in
directing the commission of an act or omission under subsection (10)
— that would otherwise constitute an offence if the public
officer
(a) is engaged in the investigation
of an offence under, or the enforcement of, an Act of Parliament or
in the investigation of criminal activity;
(b) is designated under subsection
(3) or (6); and
(c) believes on reasonable grounds
that the commission of the act or omission, as compared to the
nature of the offence or criminal activity being investigated, is
reasonable and proportional in the circumstances, having regard to
such matters as the nature of the act or omission, the nature of the
investigation and the reasonable availability of other means for
carrying out the public officer’s law enforcement duties. |
Requirements
for certain acts |
(9) No
public officer is justified in committing an act or omission that
would otherwise constitute an offence and that would be likely to
result in loss of or serious damage to property, or in directing the
commission of an act or omission under subsection (10), unless, in
addition to meeting the conditions set out in paragraphs (8)(a) to (c), he or she
(a) is personally authorized in
writing to commit the act or omission — or direct its commission —
by a senior official who believes on reasonable grounds that
committing the act or omission, as compared to the nature of the
offence or criminal activity being investigated, is reasonable and
proportional in the circumstances, having regard to such matters as
the nature of the act or omission, the nature of the investigation
and the reasonable availability of other means for carrying out the
public officer’s law enforcement duties; or
(b) believes on reasonable grounds
that the grounds for obtaining an authorization under paragraph
(a) exist but it is not
feasible in the circumstances to obtain the authorization and that
the act or omission is necessary to
(i)
preserve the life or safety of any person,
(ii)
prevent the compromise of the identity of a public officer acting in
an undercover capacity, of a confidential informant or of a person
acting covertly under the direction and control of a public officer,
or
(iii)
prevent the imminent loss or destruction of evidence of an
indictable offence. |
Person
acting at direction of public officer |
(10) A
person who commits an act or omission that would otherwise
constitute an offence is justified in committing it if
(a) a public officer directs him or
her to commit that act or omission and the person believes on
reasonable grounds that the public officer has the authority to give
that direction; and
(b) he or she believes on
reasonable grounds that the commission of that act or omission is
for the purpose of assisting the public officer in the public
officer’s law enforcement duties. |
|
(11)
Nothing in this section justifies
(a) the intentional or criminally
negligent causing of death or bodily harm to another person;
(b) the wilful attempt in any
manner to obstruct, pervert or defeat the course of justice; or
(c) conduct that would violate the
sexual integrity of an individual. |
Protection,
defences and immunities unaffected |
(12)
Nothing in this section affects the protection, defences and
immunities of peace officers and other persons recognized under the
law of Canada. |
Compliance
with requirements |
(13)
Nothing in this section relieves a public officer of criminal
liability for failing to comply with any other requirements that
govern the collection of evidence. |
Exception:
offences under Controlled Drugs and
Substances Act |
(14)
Nothing in this section justifies a public officer or a person
acting at his or her direction in committing an act or omission — or
a public officer in directing the commission of an act or omission —
that constitutes an offence under a provision of Part I of the Controlled Drugs and Substances
Act or of the regulations made under it.
2001,
c. 32, s. 2; 2005, c. 10, s. 34. |
|
25.2 Every
public officer who commits an act or omission — or directs the
commission by another person of an act or omission — under paragraph
25.1(9)(a) or (b) shall, as soon as is feasible
after the commission of the act or omission, file a written report
with the appropriate senior official describing the act or
omission.
2001,
c. 32, s. 2. |
|
25.3 (1)
Every competent authority shall publish or otherwise make available
to the public an annual report for the previous year that includes,
in respect of public officers and senior officials designated by the
competent authority,
(a) the number of designations made
under subsection 25.1(6) by the senior officials;
(b) the number of authorizations
made under paragraph 25.1(9)(a) by the senior officials;
(c) the number of times that acts
and omissions were committed in accordance with paragraph
25.1(9)(b) by the public
officers;
(d) the nature of the conduct being
investigated when the designations referred to in paragraph (a) or the authorizations referred
to in paragraph (b) were
made or when the acts or omissions referred to in paragraph (c) were committed; and
(e) the nature of the acts or
omissions committed under the designations referred to in paragraph
(a), under the
authorizations referred to in paragraph (b) and in the manner described in
paragraph (c). |
|
(2)
The annual report shall not contain any information the disclosure
of which would
(a) compromise or hinder an ongoing
investigation of an offence under an Act of Parliament;
(b) compromise the identity of a
public officer acting in an undercover capacity, of a confidential
informant or of a person acting covertly under the direction and
control of a public officer;
(c) endanger the life or safety of
any person;
(d) prejudice a legal proceeding;
or
(e) otherwise be contrary to the
public interest.
2001,
c. 32, s. 2. |
|
25.4 (1) When
a public officer commits an act or omission — or directs the
commission by another person of an act or omission — under paragraph
25.1(9)(a) or (b), the senior official with whom
the public officer files a written report under section 25.2 shall,
as soon as is feasible after the report is filed, and no later than
one year after the commission of the act or omission, notify in
writing any person whose property was lost or seriously damaged as a
result of the act or omission. |
|
(2)
The competent authority may authorize the senior official not to
notify the person under subsection (1) until the competent authority
is of the opinion that notification would not
(a) compromise or hinder an ongoing
investigation of an offence under an Act of Parliament;
(b) compromise the identity of a
public officer acting in an undercover capacity, of a confidential
informant or of a person acting covertly under the direction and
control of a public officer;
(c) endanger the life or safety of
any person;
(d) prejudice a legal proceeding;
or
(e) otherwise be contrary to the
public interest.
2001,
c. 32, s. 2. |
|
26. Every one
who is authorized by law to use force is criminally responsible for
any excess thereof according to the nature and quality of the act
that constitutes the excess.
R.S.,
c. C-34, s. 26. |
|
27. Every one
is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an
offence
(i)
for which, if it were committed, the person who committed it might
be arrested without warrant, and
(ii)
that would be likely to cause immediate and serious injury to the
person or property of anyone; or
(b) to prevent anything being done
that, on reasonable grounds, he believes would, if it were done, be
an offence mentioned in paragraph (a).
R.S.,
c. C-34, s. 27. |
|
27.1 (1)
Every person on an aircraft in flight is justified in using as much
force as is reasonably necessary to prevent the commission of an
offence against this Act or another Act of Parliament that the
person believes on reasonable grounds, if it were committed, would
be likely to cause immediate and serious injury to the aircraft or
to any person or property therein. |
Application
of this section |
(2)
This section applies in respect of any aircraft in flight in
Canadian airspace and in respect of any aircraft registered in
Canada in accordance with the regulations made under the Aeronautics Act in flight outside
Canadian airspace.
2004,
c. 12, s. 2. |
|
28. (1) Where
a person who is authorized to execute a warrant to arrest believes,
in good faith and on reasonable grounds, that the person whom he
arrests is the person named in the warrant, he is protected from
criminal responsibility in respect thereof to the same extent as if
that person were the person named in the warrant. |
|
(2)
Where a person is authorized to execute a warrant to arrest,
(a) every one who, being called on
to assist him, believes that the person in whose arrest he is called
on to assist is the person named in the warrant, and
(b) every keeper of a prison who is
required to receive and detain a person who he believes has been
arrested under the warrant,
is
protected from criminal responsibility in respect thereof to the
same extent as if that person were the person named in the
warrant.
R.S.,
c. C-34, s. 28. |
|
29. (1) It is
the duty of every one who executes a process or warrant to have it
with him, where it is feasible to do so, and to produce it when
requested to do so. |
|
(2) It
is the duty of every one who arrests a person, whether with or
without a warrant, to give notice to that person, where it is
feasible to do so, of
(a) the process or warrant under
which he makes the arrest; or
(b) the reason for the
arrest. |
|
(3)
Failure to comply with subsection (1) or (2) does not of itself
deprive a person who executes a process or warrant, or a person who
makes an arrest, or those who assist them, of protection from
criminal responsibility.
R.S.,
c. C-34, s. 29. |
|
30. Every one
who witnesses a breach of the peace is justified in interfering to
prevent the continuance or renewal thereof and may detain any person
who commits or is about to join in or to renew the breach of the
peace, for the purpose of giving him into the custody of a peace
officer, if he uses no more force than is reasonably necessary to
prevent the continuance or renewal of the breach of the peace or
than is reasonably proportioned to the danger to be apprehended from
the continuance or renewal of the breach of the peace.
R.S.,
c. C-34, s. 30. |
|
31. (1) Every
peace officer who witnesses a breach of the peace and every one who
lawfully assists the peace officer is justified in arresting any
person whom he finds committing the breach of the peace or who, on
reasonable grounds, he believes is about to join in or renew the
breach of the peace. |
|
(2)
Every peace officer is justified in receiving into custody any
person who is given into his charge as having been a party to a
breach of the peace by one who has, or who on reasonable grounds the
peace officer believes has, witnessed the breach of the peace.
R.S.,
c. C-34, s. 31. |
|
|
|
32. (1) Every
peace officer is justified in using or in ordering the use of as
much force as the peace officer believes, in good faith and on
reasonable grounds,
(a) is necessary to suppress a
riot; and
(b) is not excessive, having regard
to the danger to be apprehended from the continuance of the
riot. |
Person
bound by military law |
(2)
Every one who is bound by military law to obey the command of his
superior officer is justified in obeying any command given by his
superior officer for the suppression of a riot unless the order is
manifestly unlawful. |
Obeying
order of peace officer |
(3)
Every one is justified in obeying an order of a peace officer to use
force to suppress a riot if
(a) he acts in good faith; and
(b) the order is not manifestly
unlawful. |
Apprehension
of serious mischief |
(4)
Every one who, in good faith and on reasonable grounds, believes
that serious mischief will result from a riot before it is possible
to secure the attendance of a peace officer is justified in using as
much force as he believes in good faith and on reasonable
grounds,
(a) is necessary to suppress the
riot; and
(b) is not excessive, having regard
to the danger to be apprehended from the continuance of the
riot. |
|
(5)
For the purposes of this section, the question whether an order is
manifestly unlawful or not is a question of law.
R.S.,
c. C-34, s. 32. |
|
33. (1) Where
the proclamation referred to in section 67 has been made or an
offence against paragraph 68(a) or (b) has been committed, it is the
duty of a peace officer and of a person who is lawfully required by
him to assist, to disperse or to arrest persons who do not comply
with the proclamation. |
|
(2) No
civil or criminal proceedings lie against a peace officer or a
person who is lawfully required by a peace officer to assist him in
respect of any death or injury that by reason of resistance is
caused as a result of the performance by the peace officer or that
person of a duty that is imposed by subsection (1). |
|
(3)
Nothing in this section limits or affects any powers, duties or
functions that are conferred or imposed by this Act with respect to
the suppression of riots.
R.S.,
c. C-34, s. 33. |
|
Self-induced
Intoxication |
|
33.1 (1) It
is not a defence to an offence referred to in subsection (3) that
the accused, by reason of self-induced intoxication, lacked the
general intent or the voluntariness required to commit the offence,
where the accused departed markedly from the standard of care as
described in subsection (2). |
Criminal
fault by reason of intoxication |
(2)
For the purposes of this section, a person departs markedly from the
standard of reasonable care generally recognized in Canadian society
and is thereby criminally at fault where the person, while in a
state of self-induced intoxication that renders the person unaware
of, or incapable of consciously controlling, their behaviour,
voluntarily or involuntarily interferes or threatens to interfere
with the bodily integrity of another person. |
|
(3)
This section applies in respect of an offence under this Act or any
other Act of Parliament that includes as an element an assault or
any other interference or threat of interference by a person with
the bodily integrity of another person.
1995,
c. 32, s. 1. |
|
|
|
34. (1) Every
one who is unlawfully assaulted without having provoked the assault
is justified in repelling force by force if the force he uses is not
intended to cause death or grievous bodily harm and is no more than
is necessary to enable him to defend himself. |
|
(2)
Every one who is unlawfully assaulted and who causes death or
grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable
apprehension of death or grievous bodily harm from the violence with
which the assault was originally made or with which the assailant
pursues his purposes; and
(b) he believes, on reasonable
grounds, that he cannot otherwise preserve himself from death or
grievous bodily harm.
R.S.,
1985, c. C-46, s. 34; 1992, c. 1, s. 60(F). |
|
35. Every one
who has without justification assaulted another but did not commence
the assault with intent to cause death or grievous bodily harm, or
has without justification provoked an assault on himself by another,
may justify the use of force subsequent to the assault if
(a) he uses the force
(i)
under reasonable apprehension of death or grievous bodily harm from
the violence of the person whom he has assaulted or provoked,
and
(ii)
in the belief, on reasonable grounds, that it is necessary in order
to preserve himself from death or grievous bodily harm;
(b) he did not, at any time before
the necessity of preserving himself from death or grievous bodily
harm arose, endeavour to cause death or grievous bodily harm;
and
(c) he declined further conflict
and quitted or retreated from it as far as it was feasible to do so
before the necessity of preserving himself from death or grievous
bodily harm arose.
R.S.,
c. C-34, s. 35. |
|
36.
Provocation includes, for the purposes of sections 34 and 35,
provocation by blows, words or gestures.
R.S.,
c. C-34, s. 36. |
|
37. (1) Every
one is justified in using force to defend himself or any one under
his protection from assault, if he uses no more force than is
necessary to prevent the assault or the repetition of it. |
|
(2)
Nothing in this section shall be deemed to justify the wilful
infliction of any hurt or mischief that is excessive, having regard
to the nature of the assault that the force used was intended to
prevent.
R.S.,
c. C-34, s. 37. |
|
|
|
38. (1) Every
one who is in peaceable possession of personal property, and every
one lawfully assisting him, is justified
(a) in preventing a trespasser from
taking it, or
(b) in taking it from a trespasser
who has taken it,
if he
does not strike or cause bodily harm to the trespasser. |
|
(2)
Where a person who is in peaceable possession of personal property
lays hands on it, a trespasser who persists in attempting to keep it
or take it from him or from any one lawfully assisting him shall be
deemed to commit an assault without justification or
provocation.
R.S.,
c. C-34, s. 38. |
|
39. (1) Every
one who is in peaceable possession of personal property under a
claim of right, and every one acting under his authority, is
protected from criminal responsibility for defending that
possession, even against a person entitled by law to possession of
it, if he uses no more force than is necessary. |
Defence
without claim of right |
(2)
Every one who is in peaceable possession of personal property, but
does not claim it as of right or does not act under the authority of
a person who claims it as of right, is not justified or protected
from criminal responsibility for defending his possession against a
person who is entitled by law to possession of it.
R.S.,
c. C-34, s. 39. |
|
40. Every one
who is in peaceable possession of a dwelling-house, and every one
lawfully assisting him or acting under his authority, is justified
in using as much force as is necessary to prevent any person from
forcibly breaking into or forcibly entering the dwelling-house
without lawful authority.
R.S.,
c. C-34, s. 40. |
|
41. (1) Every
one who is in peaceable possession of a dwelling-house or real
property, and every one lawfully assisting him or acting under his
authority, is justified in using force to prevent any person from
trespassing on the dwelling-house or real property, or to remove a
trespasser therefrom, if he uses no more force than is
necessary. |
|
(2) A
trespasser who resists an attempt by a person who is in peaceable
possession of a dwelling-house or real property, or a person
lawfully assisting him or acting under his authority to prevent his
entry or to remove him, shall be deemed to commit an assault without
justification or provocation.
R.S.,
c. C-34, s. 41. |
|
42. (1) Every
one is justified in peaceably entering a dwelling-house or real
property by day to take possession of it if he, or a person under
whose authority he acts, is lawfully entitled to possession of
it. |
Assault
in case of lawful entry |
(2)
Where a person
(a) not having peaceable possession
of a dwelling-house or real property under a claim of right, or
(b) not acting under the authority
of a person who has peaceable possession of a dwelling-house or real
property under a claim of right,
assaults
a person who is lawfully entitled to possession of it and who is
entering it peaceably by day to take possession of it, for the
purpose of preventing him from entering, the assault shall be deemed
to be without justification or provocation. |
Trespasser
provoking assault |
(3)
Where a person
(a) having peaceable possession of
a dwelling-house or real property under a claim of right, or
(b) acting under the authority of a
person who has peaceable possession of a dwelling-house or real
property under a claim of right,
assaults
any person who is lawfully entitled to possession of it and who is
entering it peaceably by day to take possession of it, for the
purpose of preventing him from entering, the assault shall be deemed
to be provoked by the person who is entering.
R.S.,
c. C-34, s. 42. |
|
Protection
of Persons in Authority |
|
43. Every
schoolteacher, parent or person standing in the place of a parent is
justified in using force by way of correction toward a pupil or
child, as the case may be, who is under his care, if the force does
not exceed what is reasonable under the circumstances.
R.S.,
c. C-34, s. 43. |
|
44. The
master or officer in command of a vessel on a voyage is justified in
using as much force as he believes, on reasonable grounds, is
necessary for the purpose of maintaining good order and discipline
on the vessel.
R.S.,
c. C-34, s. 44. |
|
45. Every one
is protected from criminal responsibility for performing a surgical
operation on any person for the benefit of that person if
(a) the operation is performed with
reasonable care and skill; and
(b) it is reasonable to perform the
operation, having regard to the state of health of the person at the
time the operation is performed and to all the circumstances of the
case.
R.S.,
c. C-34, s. 45. |
|
PART
II
OFFENCES AGAINST PUBLIC
ORDER |
|
Treason
and other Offences against the Queen’s Authority and
Person |
|
46. (1) Every
one commits high treason who, in Canada,
(a) kills or attempts to kill Her
Majesty, or does her any bodily harm tending to death or
destruction, maims or wounds her, or imprisons or restrains her;
(b) levies war against Canada or
does any act preparatory thereto; or
(c) assists an enemy at war with
Canada, or any armed forces against whom Canadian Forces are engaged
in hostilities, whether or not a state of war exists between Canada
and the country whose forces they are. |
|
(2)
Every one commits treason who, in Canada,
(a) uses force or violence for the
purpose of overthrowing the government of Canada or a province;
(b) without lawful authority,
communicates or makes available to an agent of a state other than
Canada, military or scientific information or any sketch, plan,
model, article, note or document of a military or scientific
character that he knows or ought to know may be used by that state
for a purpose prejudicial to the safety or defence of Canada;
(c) conspires with any person to
commit high treason or to do anything mentioned in paragraph (a);
(d) forms an intention to do
anything that is high treason or that is mentioned in paragraph
(a) and manifests that
intention by an overt act; or
(e) conspires with any person to do
anything mentioned in paragraph (b) or forms an intention to do
anything mentioned in paragraph (b) and manifests that intention by
an overt act. |
|
(3)
Notwithstanding subsection (1) or (2), a Canadian citizen or a
person who owes allegiance to Her Majesty in right of Canada,
(a) commits high treason if, while
in or out of Canada, he does anything mentioned in subsection (1);
or
(b) commits treason if, while in or
out of Canada, he does anything mentioned in subsection
(2). |
|
(4)
Where it is treason to conspire with any person, the act of
conspiring is an overt act of treason.
R.S.,
c. C-34, s. 46; 1974-75-76, c. 105, s. 2. |
|
47. (1) Every
one who commits high treason is guilty of an indictable offence and
shall be sentenced to imprisonment for life. |
|
(2)
Every one who commits treason is guilty of an indictable offence and
liable
(a) to be sentenced to imprisonment
for life if he is guilty of an offence under paragraph 46(2)(a), (c) or (d);
(b) to be sentenced to imprisonment
for life if he is guilty of an offence under paragraph 46(2)(b) or (e) committed while a state of war
exists between Canada and another country; or
(c) to be sentenced to imprisonment
for a term not exceeding fourteen years if he is guilty of an
offence under paragraph 46(2)(b) or (e) committed while no state of war
exists between Canada and another country. |
|
(3) No
person shall be convicted of high treason or treason on the evidence
of only one witness, unless the evidence of that witness is
corroborated in a material particular by evidence that implicates
the accused. |
|
(4)
For the purposes of Part XXIII, the sentence of imprisonment for
life prescribed by subsection (1) is a minimum punishment.
R.S.,
c. C-34, s. 47; 1974-75-76, c. 105, s. 2. |
|
48. (1) No
proceedings for an offence of treason as defined by paragraph
46(2)(a) shall be commenced
more than three years after the time when the offence is alleged to
have been committed. |
Information
for treasonable words |
(2) No
proceedings shall be commenced under section 47 in respect of an
overt act of treason expressed or declared by open and considered
speech unless
(a) an information setting out the
overt act and the words by which it was expressed or declared is
laid under oath before a justice within six days after the time when
the words are alleged to have been spoken; and
(b) a warrant for the arrest of the
accused is issued within ten days after the time when the
information is laid.
R.S.,
c. C-34, s. 48; 1974-75-76, c. 105, s. 29. |
|
|
|
49. Every one
who wilfully, in the presence of Her Majesty,
(a) does an act with intent to
alarm Her Majesty or to break the public peace, or
(b) does an act that is intended or
is likely to cause bodily harm to Her Majesty,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
c. C-34, s. 49. |
|
50. (1) Every
one commits an offence who
(a) incites or wilfully assists a
subject of
(i) a
state that is at war with Canada, or
(ii) a
state against whose forces Canadian Forces are engaged in
hostilities, whether or not a state of war exists between Canada and
the state whose forces they are,
to
leave Canada without the consent of the Crown, unless the accused
establishes that assistance to the state referred to in subparagraph
(i) or the forces of the state referred to in subparagraph (ii), as
the case may be, was not intended thereby; or
(b) knowing that a person is about
to commit high treason or treason does not, with all reasonable
dispatch, inform a justice of the peace or other peace officer
thereof or make other reasonable efforts to prevent that person from
committing high treason or treason. |
|
(2)
Every one who commits an offence under subsection (1) is guilty of
an indictable offence and liable to imprisonment for a term not
exceeding fourteen years.
R.S.,
c. C-34, s. 50; 1974-75-76, c. 105, s. 29. |
|
51. Every one
who does an act of violence in order to intimidate Parliament or the
legislature of a province is guilty of an indictable offence and
liable to imprisonment for a term not exceeding fourteen years.
R.S.,
c. C-34, s. 51. |
|
52. (1) Every
one who does a prohibited act for a purpose prejudicial to
(a) the safety, security or defence
of Canada, or
(b) the safety or security of the
naval, army or air forces of any state other than Canada that are
lawfully present in Canada,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years. |
Definition
of “prohibited act” |
(2) In
this section, “prohibited act” means an act or omission that
(a) impairs the efficiency or
impedes the working of any vessel, vehicle, aircraft, machinery,
apparatus or other thing; or
(b) causes property, by whomever it
may be owned, to be lost, damaged or destroyed. |
|
(3) No
person does a prohibited act within the meaning of this section by
reason only that
(a) he stops work as a result of
the failure of his employer and himself to agree on any matter
relating to his employment;
(b) he stops work as a result of
the failure of his employer and a bargaining agent acting on his
behalf to agree on any matter relating to his employment; or
(c) he stops work as a result of
his taking part in a combination of workmen or employees for their
own reasonable protection as workmen or employees. |
|
(4) No
person does a prohibited act within the meaning of this section by
reason only that he attends at or near or approaches a
dwelling-house or place for the purpose only of obtaining or
communicating information.
R.S.,
c. C-34, s. 52. |
|
53. Every one
who
(a) attempts, for a traitorous or
mutinous purpose, to seduce a member of the Canadian Forces from his
duty and allegiance to Her Majesty, or
(b) attempts to incite or to induce
a member of the Canadian Forces to commit a traitorous or mutinous
act,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
c. C-34, s. 53. |
|
54. Every one
who aids, assists, harbours or conceals a person who he knows is a
deserter or absentee without leave from the Canadian Forces is
guilty of an offence punishable on summary conviction, but no
proceedings shall be instituted under this section without the
consent of the Attorney General of Canada.
R.S.,
c. C-34, s. 54. |
|
55. In
proceedings for an offence against any provision in section 47 or
sections 49 to 53, no evidence is admissible of an overt act unless
that overt act is set out in the indictment or unless the evidence
is otherwise relevant as tending to prove an overt act that is set
out therein.
R.S.,
c. C-34, s. 55. |
|
56. Every one
who wilfully
(a) persuades or counsels a member
of the Royal Canadian Mounted Police to desert or absent himself
without leave,
(b) aids, assists, harbours or
conceals a member of the Royal Canadian Mounted Police who he knows
is a deserter or absentee without leave, or
(c) aids or assists a member of the
Royal Canadian Mounted Police to desert or absent himself without
leave, knowing that the member is about to desert or absent himself
without leave,
is
guilty of an offence punishable on summary conviction.
R.S.,
1985, c. C-46, s. 56; R.S., 1985, c. 27 (1st Supp.), s. 8. |
|
|
|
57. (1) Every
one who, while in or out of Canada,
(a) forges a passport, or
(b) knowing that a passport is
forged
(i)
uses, deals with or acts on it, or
(ii)
causes or attempts to cause any person to use, deal with or act on
it, as if the passport were genuine,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years. |
False
statement in relation to passport |
(2)
Every one who, while in or out of Canada, for the purpose of
procuring a passport for himself or any other person or for the
purpose of procuring any material alteration or addition to any such
passport, makes a written or an oral statement that he knows is
false or misleading
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years; or
(b) is guilty of an offence
punishable on summary conviction. |
Possession
of forged, etc., passport |
(3)
Every one who without lawful excuse, the proof of which lies on him,
has in his possession a forged passport or a passport in respect of
which an offence under subsection (2) has been committed is guilty
of an indictable offence and liable to imprisonment for a term not
exceeding five years. |
Special
provisions applicable |
(4)
For the purposes of proceedings under this section,
(a) the place where a passport was
forged is not material; and
(b) the definition “false document”
in section 321, and section 366, apply with such modifications as
the circumstances require. |
|
(5) In
this section, “passport” means a document issued by or under the
authority of the Minister of Foreign Affairs for the purpose of
identifying the holder thereof. |
|
(6)
Where a person is alleged to have committed, while out of Canada, an
offence under this section, proceedings in respect of that offence
may, whether or not that person is in Canada, be commenced in any
territorial division in Canada and the accused may be tried and
punished in respect of that offence in the same manner as if the
offence had been committed in that territorial division. |
Appearance
of accused at trial |
(7)
For greater certainty, the provisions of this Act relating to
(a) requirements that an accused
appear at and be present during proceedings, and
(b) the exceptions to those
requirements,
apply to
proceedings commenced in any territorial division pursuant to
subsection (6).
R.S.,
1985, c. C-46, s. 57; R.S., 1985, c. 27 (1st Supp.), s. 9; 1992, c.
1, s. 60(F); 1994, c. 44, s. 4; 1995, c. 5, s. 25. |
|
58. (1) Every
one who, while in or out of Canada,
(a) uses a certificate of
citizenship or a certificate of naturalization for a fraudulent
purpose, or
(b) being a person to whom a
certificate of citizenship or a certificate of naturalization has
been granted, knowingly parts with the possession of that
certificate with intent that it should be used for a fraudulent
purpose,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
Definition
of “certificate of citizenship” and “certificate of
naturalization” |
(2) In
this section, “certificate of citizenship” and “certificate of
naturalization”, respectively, mean a certificate of citizenship and
a certificate of naturalization as defined by the Citizenship Act.
R.S.,
c. C-34, s. 59; 1974-75-76, c. 108, s. 41. |
|
|
|
59. (1)
Seditious words are words that express a seditious
intention. |
|
(2) A
seditious libel is a libel that expresses a seditious
intention. |
|
(3) A
seditious conspiracy is an agreement between two or more persons to
carry out a seditious intention. |
|
(4)
Without limiting the generality of the meaning of the expression
“seditious intention”, every one shall be presumed to have a
seditious intention who
(a) teaches or advocates, or
(b) publishes or circulates any
writing that advocates,
the use,
without the authority of law, of force as a means of accomplishing a
governmental change within Canada.
R.S.,
c. C-34, s. 60. |
|
60.
Notwithstanding subsection 59(4), no person shall be deemed to have
a seditious intention by reason only that he intends, in good
faith,
(a) to show that Her Majesty has
been misled or mistaken in her measures;
(b) to point out errors or defects
in
(i)
the government or constitution of Canada or a province,
(ii)
Parliament or the legislature of a province, or
(iii)
the administration of justice in Canada;
(c) to procure, by lawful means,
the alteration of any matter of government in Canada; or
(d) to point out, for the purpose
of removal, matters that produce or tend to produce feelings of
hostility and ill-will between different classes of persons in
Canada.
R.S.,
c. C-34, s. 61. |
|
61. Every one
who
(a) speaks seditious words,
(b) publishes a seditious libel,
or
(c) is a party to a seditious
conspiracy,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
c. C-34, s. 62. |
|
62. (1) Every
one who wilfully
(a) interferes with, impairs or
influences the loyalty or discipline of a member of a force,
(b) publishes, edits, issues,
circulates or distributes a writing that advises, counsels or urges
insubordination, disloyalty, mutiny or refusal of duty by a member
of a force, or
(c) advises, counsels, urges or in
any manner causes insubordination, disloyalty, mutiny or refusal of
duty by a member of a force,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years. |
Definition
of “member of a force” |
(2) In
this section, “member of a force” means a member of
(a) the Canadian Forces; or
(b) the naval, army or air forces
of a state other than Canada that are lawfully present in
Canada.
R.S.,
c. C-34, s. 63. |
|
Unlawful
Assemblies and Riots |
|
63. (1) An
unlawful assembly is an assembly of three or more persons who, with
intent to carry out any common purpose, assemble in such a manner or
so conduct themselves when they are assembled as to cause persons in
the neighbourhood of the assembly to fear, on reasonable grounds,
that they
(a) will disturb the peace
tumultuously; or
(b) will by that assembly
needlessly and without reasonable cause provoke other persons to
disturb the peace tumultuously. |
Lawful
assembly becoming unlawful |
(2)
Persons who are lawfully assembled may become an unlawful assembly
if they conduct themselves with a common purpose in a manner that
would have made the assembly unlawful if they had assembled in that
manner for that purpose. |
|
(3)
Persons are not unlawfully assembled by reason only that they are
assembled to protect the dwelling-house of any one of them against
persons who are threatening to break and enter it for the purpose of
committing an indictable offence therein.
R.S.,
c. C-34, s. 64. |
|
64. A riot is
an unlawful assembly that has begun to disturb the peace
tumultuously.
R.S.,
c. C-34, s. 65. |
|
65. Every one
who takes part in a riot is guilty of an indictable offence and
liable to imprisonment for a term not exceeding two years.
R.S.,
c. C-34, s. 66. |
|
66. Every one
who is a member of an unlawful assembly is guilty of an offence
punishable on summary conviction.
R.S.,
c. C-34, s. 67. |
|
67. A person
who is
(a) a justice, mayor or sheriff, or
the lawful deputy of a mayor or sheriff,
(b) a warden or deputy warden of a
prison, or
(c) the institutional head of a
penitentiary, as those expressions are defined in subsection 2(1) of
the Corrections and Conditional
Release Act, or that person’s deputy,
who
receives notice that, at any place within the jurisdiction of the
person, twelve or more persons are unlawfully and riotously
assembled together shall go to that place and, after approaching as
near as is safe, if the person is satisfied that a riot is in
progress, shall command silence and thereupon make or cause to be
made in a loud voice a proclamation in the following words or to the
like effect:
Her
Majesty the Queen charges and commands all persons being assembled
immediately to disperse and peaceably to depart to their habitations
or to their lawful business on the pain of being guilty of an
offence for which, on conviction, they may be sentenced to
imprisonment for life. GOD SAVE THE QUEEN.
R.S.,
1985, c. C-46, s. 67; 1994, c. 44, s. 5. |
|
68. Every one
is guilty of an indictable offence and liable to imprisonment for
life who
(a) opposes, hinders or assaults,
wilfully and with force, a person who begins to make or is about to
begin to make or is making the proclamation referred to in section
67 so that it is not made;
(b) does not peaceably disperse and
depart from a place where the proclamation referred to in section 67
is made within thirty minutes after it is made; or
(c) does not depart from a place
within thirty minutes when he has reasonable grounds to believe that
the proclamation referred to in section 67 would have been made in
that place if some person had not opposed, hindered or assaulted,
wilfully and with force, a person who would have made it.
R.S.,
c. C-34, s. 69. |
|
69. A peace
officer who receives notice that there is a riot within his
jurisdiction and, without reasonable excuse, fails to take all
reasonable steps to suppress the riot is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years.
R.S.,
c. C-34, s. 70. |
|
|
|
70. (1) The
Governor in Council may, by proclamation, make orders
(a) to prohibit assemblies, without
lawful authority, of persons for the purpose
(i) of
training or drilling themselves,
(ii)
of being trained or drilled to the use of arms, or
(iii)
of practising military exercises; or
(b) to prohibit persons when
assembled for any purpose from training or drilling themselves or
from being trained or drilled. |
|
(2) An
order that is made under subsection (1) may be general or may be
made applicable to particular places, districts or assemblies to be
specified in the order. |
|
(3)
Every one who contravenes an order made under this section is guilty
of an indictable offence and liable to imprisonment for a term not
exceeding five years.
R.S.,
1985, c. C-46, s. 70; 1992, c. 1, s. 60(F). |
|
|
|
71. Every one
who
(a) challenges or attempts by any
means to provoke another person to fight a duel,
(b) attempts to provoke a person to
challenge another person to fight a duel, or
(c) accepts a challenge to fight a
duel,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years.
R.S.,
c. C-34, s. 72. |
|
Forcible
Entry and Detainer |
|
72. (1) A
person commits forcible entry when that person enters real property
that is in the actual and peaceable possession of another in a
manner that is likely to cause a breach of the peace or reasonable
apprehension of a breach of the peace. |
|
(1.1)
For the purposes of subsection (1), it is immaterial whether or not
a person is entitled to enter the real property or whether or not
that person has any intention of taking possession of the real
property. |
|
(2) A
person commits forcible detainer when, being in actual possession of
real property without colour of right, he detains it in a manner
that is likely to cause a breach of the peace or reasonable
apprehension of a breach of the peace, against a person who is
entitled by law to possession of it. |
|
(3)
The questions whether a person is in actual and peaceable possession
or is in actual possession without colour of right are questions of
law.
R.S.,
1985, c. C-46, s. 72; R.S., 1985, c. 27 (1st Supp.), s. 10; 1992, c.
1, s. 60(F). |
|
73. Every
person who commits forcible entry or forcible detainer is guilty
of
(a) an offence punishable on
summary conviction; or
(b) an indictable offence and
liable to imprisonment for a term not exceeding two years.
R.S.,
1985, c. C-46, s. 73; R.S., 1985, c. 27 (1st Supp.), s. 11; 1992, c.
1, s. 58. |
|
|
|
74. (1) Every
one commits piracy who does any act that, by the law of nations, is
piracy. |
|
(2)
Every one who commits piracy while in or out of Canada is guilty of
an indictable offence and liable to imprisonment for life.
R.S.,
c. C-34, s. 75; 1974-75-76, c. 105, s. 3. |
|
75. Every one
who, while in or out of Canada,
(a) steals a Canadian ship,
(b) steals or without lawful
authority throws overboard, damages or destroys anything that is
part of the cargo, supplies or fittings in a Canadian ship,
(c) does or attempts to do a
mutinous act on a Canadian ship, or
(d) counsels a person to do
anything mentioned in paragraph (a), (b) or (c),
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
1985, c. C-46, s. 75; R.S., 1985, c. 27 (1st Supp.), s. 7. |
|
Offences
against Air or Maritime Safety |
|
76. Every one
who, unlawfully, by force or threat thereof, or by any other form of
intimidation, seizes or exercises control of an aircraft with
intent
(a) to cause any person on board
the aircraft to be confined or imprisoned against his will,
(b) to cause any person on board
the aircraft to be transported against his will to any place other
than the next scheduled place of landing of the aircraft,
(c) to hold any person on board the
aircraft for ransom or to service against his will, or
(d) to cause the aircraft to
deviate in a material respect from its flight plan,
is
guilty of an indictable offence and liable to imprisonment for
life.
1972,
c. 13, s. 6. |
|
77. Every one
who
(a) on board an aircraft in flight,
commits an act of violence against a person that is likely to
endanger the safety of the aircraft,
(b) using a weapon, commits an act
of violence against a person at an airport serving international
civil aviation that causes or is likely to cause serious injury or
death and that endangers or is likely to endanger safety at the
airport,
(c) causes damage to an aircraft in
service that renders the aircraft incapable of flight or that is
likely to endanger the safety of the aircraft in flight,
(d) places or causes to be placed
on board an aircraft in service anything that is likely to cause
damage to the aircraft, that will render it incapable of flight or
that is likely to endanger the safety of the aircraft in flight,
(e) causes damage to or interferes
with the operation of any air navigation facility where the damage
or interference is likely to endanger the safety of an aircraft in
flight,
(f) using a weapon, substance or
device, destroys or causes serious damage to the facilities of an
airport serving international civil aviation or to any aircraft not
in service located there, or causes disruption of services of the
airport, that endangers or is likely to endanger safety at the
airport, or
(g) endangers the safety of an
aircraft in flight by communicating to any other person any
information that the person knows to be false,
is
guilty of an indictable offence and liable to imprisonment for
life.
R.S.,
1985, c. C-46, s. 77; 1993, c. 7, s. 3. |
|
78. (1) Every
one, other than a peace officer engaged in the execution of his
duty, who takes on board a civil aircraft an offensive weapon or any
explosive substance
(a) without the consent of the
owner or operator of the aircraft or of a person duly authorized by
either of them to consent thereto, or
(b) with the consent referred to in
paragraph (a) but without
complying with all terms and conditions on which the consent was
given,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years. |
Definition
of “civil aircraft” |
(2)
For the purposes of this section, "civil aircraft" means all
aircraft other than aircraft operated by the Canadian Forces, a
police force in Canada or persons engaged in the administration or
enforcement of the Customs
Act , the Excise
Act or the Excise Act,
2001.
R.S.,
1985, c. C-46, s. 78; R.S., 1985, c. 1 (2nd Supp.), s. 213; 2002, c.
22, s. 325. |
|
78.1 (1)
Every one who seizes or exercises control over a ship or fixed
platform by force or threat of force or by any other form of
intimidation is guilty of an indictable offence and liable to
imprisonment for life. |
Endangering
safety of ship or fixed platform |
(2)
Every one who
(a) commits an act of violence
against a person on board a ship or fixed platform,
(b) destroys or causes damage to a
ship or its cargo or to a fixed platform,
(c) destroys or causes serious
damage to or interferes with the operation of any maritime
navigational facility, or
(d) places or causes to be placed
on board a ship or fixed platform anything that is likely to cause
damage to the ship or its cargo or to the fixed platform,
where
that act is likely to endanger the safe navigation of a ship or the
safety of a fixed platform, is guilty of an indictable offence and
liable to imprisonment for life. |
|
(3)
Every one who communicates information that endangers the safe
navigation of a ship, knowing the information to be false, is guilty
of an indictable offence and liable to imprisonment for
life. |
Threats
causing death or injury |
(4)
Every one who threatens to commit an offence under paragraph
(2)(a), (b) or (c) in order to compel a person to
do or refrain from doing any act, where the threat is likely to
endanger the safe navigation of a ship or the safety of a fixed
platform, is guilty of an indictable offence and liable to
imprisonment for life. |
|
(5) In
this section, |
“fixed platform”
« plate-forme
fixe » |
“fixed
platform” means an artificial island or a marine installation or
structure that is permanently attached to the seabed for the purpose
of exploration or exploitation of resources or for other economic
purposes; |
|
“ship”
means every description of vessel not permanently attached to the
seabed, other than a warship, a ship being used as a naval auxiliary
or for customs or police purposes or a ship that has been withdrawn
from navigation or is laid up.
1993,
c. 7, s. 4. |
|
|
|
79. Every one
who has an explosive substance in his possession or under his care
or control is under a legal duty to use reasonable care to prevent
bodily harm or death to persons or damage to property by that
explosive substance.
R.S.,
c. C-34, s. 77. |
|
80. Every one
who, being under a legal duty within the meaning of section 79,
fails without lawful excuse to perform that duty, is guilty of an
indictable offence and, if as a result an explosion of an explosive
substance occurs that
(a) causes death or is likely to
cause death to any person, is liable to imprisonment for life;
or
(b) causes bodily harm or damage to
property or is likely to cause bodily harm or damage to property, is
liable to imprisonment for a term not exceeding fourteen years.
R.S.,
c. C-34, s. 78. |
|
81. (1) Every
one commits an offence who
(a) does anything with intent to
cause an explosion of an explosive substance that is likely to cause
serious bodily harm or death to persons or is likely to cause
serious damage to property;
(b) with intent to do bodily harm
to any person
(i)
causes an explosive substance to explode,
(ii)
sends or delivers to a person or causes a person to take or receive
an explosive substance or any other dangerous substance or thing,
or
(iii)
places or throws anywhere or at or on a person a corrosive fluid,
explosive substance or any other dangerous substance or thing;
(c) with intent to destroy or
damage property without lawful excuse, places or throws an explosive
substance anywhere; or
(d) makes or has in his possession
or has under his care or control any explosive substance with intent
thereby
(i) to
endanger life or to cause serious damage to property, or
(ii)
to enable another person to endanger life or to cause serious damage
to property. |
|
(2)
Every one who commits an offence under subsection (1) is guilty of
an indictable offence and liable
(a) for an offence under paragraph
(1)(a) or (b), to imprisonment for life;
or
(b) for an offence under paragraph
(1)(c) or (d), to imprisonment for a term not
exceeding fourteen years.
R.S.,
c. C-34, s. 79. |
|
82. (1) Every
person who, without lawful excuse, the proof of which lies on the
person, makes or has in the possession or under the care or control
of the person any explosive substance is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years. |
Possession
in association with criminal organization |
(2)
Every person who, without lawful excuse, the proof of which lies on
the person, makes or has in the possession or under the care or
control of the person any explosive substance for the benefit of, at
the direction of or in association with a criminal organization is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
1985, c. C-46, s. 82; R.S., 1985, c. 27 (1st Supp.), s. 12; 1997, c.
23, s. 2; 2001, c. 32, s. 3(F). |
|
82.1 A
sentence imposed on a person for an offence under subsection 82(2)
shall be served consecutively to any other punishment imposed on the
person for an offence arising out of the same event or series of
events and to any other sentence to which the person is subject at
the time the sentence is imposed on the person for an offence under
subsection 82(2).
1997,
c. 23, s. 2. |
|
|
|
83. (1) Every
one who
(a) engages as a principal in a
prize fight,
(b) advises, encourages or promotes
a prize fight, or
(c) is present at a prize fight as
an aid, second, surgeon, umpire, backer or reporter,
is
guilty of an offence punishable on summary conviction. |
Definition
of “prize fight” |
(2) In
this section, “prize fight” means an encounter or fight with fists
or hands between two persons who have met for that purpose by
previous arrangement made by or for them, but a boxing contest
between amateur sportsmen, where the contestants wear boxing gloves
of not less than one hundred and forty grams each in mass, or any
boxing contest held with the permission or under the authority of an
athletic board or commission or similar body established by or under
the authority of the legislature of a province for the control of
sport within the province, shall be deemed not to be a prize
fight.
R.S.,
1985, c. C-46, s. 83; R.S., 1985, c. 27 (1st Supp.), s.
186. |
|
|
|
|
|
83.01 (1) The
following definitions apply in this Part. |
|
“Canadian” means a
Canadian citizen, a permanent resident within the meaning of
subsection 2(1) of the Immigration
and Refugee Protection Act or a body corporate incorporated
and continued under the laws of Canada or a province. |
|
“entity” means a person,
group, trust, partnership or fund or an unincorporated association
or organization. |
“listed entity”
« entité
inscrite » |
“listed entity” means an
entity on a list established by the Governor in Council under
section 83.05. |
“terrorist activity”
« activité
terroriste » |
“terrorist activity”
means
(a) an act or omission that is
committed in or outside Canada and that, if committed in Canada, is
one of the following offences:
(i)
the offences referred to in subsection 7(2) that implement the Convention for the Suppression of
Unlawful Seizure of Aircraft, signed at The Hague on December
16, 1970,
(ii)
the offences referred to in subsection 7(2) that implement the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, signed at
Montreal on September 23, 1971,
(iii)
the offences referred to in subsection 7(3) that implement the Convention on the Prevention and
Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents, adopted by the General Assembly
of the United Nations on December 14, 1973,
(iv)
the offences referred to in subsection 7(3.1) that implement the
International Convention against
the Taking of Hostages, adopted by the General Assembly of
the United Nations on December 17, 1979,
(v)
the offences referred to in subsection 7(3.4) or (3.6) that
implement the Convention on the
Physical Protection of Nuclear Material, done at Vienna and
New York on March 3, 1980,
(vi)
the offences referred to in subsection 7(2) that implement the Protocol for the Suppression of Unlawful
Acts of Violence at Airports Serving International Civil
Aviation, supplementary to the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, signed at
Montreal on February 24, 1988,
(vii)
the offences referred to in subsection 7(2.1) that implement the
Convention for the Suppression of
Unlawful Acts against the Safety of Maritime Navigation, done
at Rome on March 10, 1988,
(viii)
the offences referred to in subsection 7(2.1) or (2.2) that
implement the Protocol for the
Suppression of Unlawful Acts against the Safety of Fixed Platforms
Located on the Continental Shelf, done at Rome on March 10,
1988,
(ix)
the offences referred to in subsection 7(3.72) that implement the
International Convention for the
Suppression of Terrorist Bombings, adopted by the General
Assembly of the United Nations on December 15, 1997, and
(x)
the offences referred to in subsection 7(3.73) that implement the
International Convention for the
Suppression of the Financing of Terrorism, adopted by the
General Assembly of the United Nations on December 9, 1999, or
(b) an act or omission, in or
outside Canada,
(i)
that is committed
(A) in
whole or in part for a political, religious or ideological purpose,
objective or cause, and
(B) in
whole or in part with the intention of intimidating the public, or a
segment of the public, with regard to its security, including its
economic security, or compelling a person, a government or a
domestic or an international organization to do or to refrain from
doing any act, whether the public or the person, government or
organization is inside or outside Canada, and
(ii)
that intentionally
(A)
causes death or serious bodily harm to a person by the use of
violence,
(B)
endangers a person’s life,
(C)
causes a serious risk to the health or safety of the public or any
segment of the public,
(D)
causes substantial property damage, whether to public or private
property, if causing such damage is likely to result in the conduct
or harm referred to in any of clauses (A) to (C), or
(E)
causes serious interference with or serious disruption of an
essential service, facility or system, whether public or private,
other than as a result of advocacy, protest, dissent or stoppage of
work that is not intended to result in the conduct or harm referred
to in any of clauses (A) to (C),
and includes a conspiracy,
attempt or threat to commit any such act or omission, or being an
accessory after the fact or counselling in relation to any such act
or omission, but, for greater certainty, does not include an act or
omission that is committed during an armed conflict and that, at the
time and in the place of its commission, is in accordance with
customary international law or conventional international law
applicable to the conflict, or the activities undertaken by military
forces of a state in the exercise of their official duties, to the
extent that those activities are governed by other rules of
international law. |
“terrorist group”
« groupe
terroriste » |
“terrorist group”
means
(a) an entity that has as one of
its purposes or activities facilitating or carrying out any
terrorist activity, or
(b) a listed entity,
and includes an
association of such entities. |
|
(1.1)
For greater certainty, the expression of a political, religious or
ideological thought, belief or opinion does not come within
paragraph (b) of the
definition “terrorist activity” in subsection (1) unless it
constitutes an act or omission that satisfies the criteria of that
paragraph. |
|
(2)
For the purposes of this Part, facilitation shall be construed in
accordance with subsection 83.19(2).
2001,
c. 41, ss. 4, 126. |
|
|
|
83.02 Every
one who, directly or indirectly, wilfully and without lawful
justification or excuse, provides or collects property intending
that it be used or knowing that it will be used, in whole or in
part, in order to carry out
(a) an act or omission that
constitutes an offence referred to in subparagraphs (a)(i) to (ix) of the definition of
“terrorist activity” in subsection 83.01(1), or
(b) any other act or omission
intended to cause death or serious bodily harm to a civilian or to
any other person not taking an active part in the hostilities in a
situation of armed conflict, if the purpose of that act or omission,
by its nature or context, is to intimidate the public, or to compel
a government or an international organization to do or refrain from
doing any act,
is
guilty of an indictable offence and is liable to imprisonment for a
term of not more than 10 years.
2001,
c. 41, s. 4. |
|
83.03 Every
one who, directly or indirectly, collects property, provides or
invites a person to provide, or makes available property or
financial or other related services
(a) intending that they be used, or
knowing that they will be used, in whole or in part, for the purpose
of facilitating or carrying out any terrorist activity, or for the
purpose of benefiting any person who is facilitating or carrying out
such an activity, or
(b) knowing that, in whole or part,
they will be used by or will benefit a terrorist group,
is
guilty of an indictable offence and is liable to imprisonment for a
term of not more than 10 years.
2001,
c. 41, s. 4. |
|
83.04 Every
one who
(a) uses property, directly or
indirectly, in whole or in part, for the purpose of facilitating or
carrying out a terrorist activity, or
(b) possesses property intending
that it be used or knowing that it will be used, directly or
indirectly, in whole or in part, for the purpose of facilitating or
carrying out a terrorist activity,
is
guilty of an indictable offence and is liable to imprisonment for a
term of not more than 10 years.
2001,
c. 41, s. 4. |
|
|
|
83.05 (1) The
Governor in Council may, by regulation, establish a list on which
the Governor in Council may place any entity if, on the
recommendation of the Minister of Public Safety and Emergency
Preparedness, the Governor in Council is satisfied that there are
reasonable grounds to believe that
(a) the entity has knowingly
carried out, attempted to carry out, participated in or facilitated
a terrorist activity; or
(b) the entity is knowingly acting
on behalf of, at the direction of or in association with an entity
referred to in paragraph (a). |
|
(1.1)
The Minister may make a recommendation referred to in subsection (1)
only if he or she has reasonable grounds to believe that the entity
to which the recommendation relates is an entity referred to in
paragraph (1)(a) or (b). |
|
(2) On
application in writing by a listed entity, the Minister shall decide
whether there are reasonable grounds to recommend to the Governor in
Council that the applicant no longer be a listed entity. |
|
(3) If
the Minister does not make a decision on the application referred to
in subsection (2) within 60 days after receipt of the application,
he or she is deemed to have decided to recommend that the applicant
remain a listed entity. |
Notice
of the decision to the applicant |
(4)
The Minister shall give notice without delay to the applicant of any
decision taken or deemed to have been taken respecting the
application referred to in subsection (2). |
|
(5)
Within 60 days after the receipt of the notice of the decision
referred to in subsection (4), the applicant may apply to a judge
for judicial review of the decision. |
|
(6)
When an application is made under subsection (5), the judge shall,
without delay
(a) examine, in private, any
security or criminal intelligence reports considered in listing the
applicant and hear any other evidence or information that may be
presented by or on behalf of the Minister and may, at his or her
request, hear all or part of that evidence or information in the
absence of the applicant and any counsel representing the applicant,
if the judge is of the opinion that the disclosure of the
information would injure national security or endanger the safety of
any person;
(b) provide the applicant with a
statement summarizing the information available to the judge so as
to enable the applicant to be reasonably informed of the reasons for
the decision, without disclosing any information the disclosure of
which would, in the judge’s opinion, injure national security or
endanger the safety of any person;
(c) provide the applicant with a
reasonable opportunity to be heard; and
(d) determine whether the decision
is reasonable on the basis of the information available to the judge
and, if found not to be reasonable, order that the applicant no
longer be a listed entity. |
|
(6.1)
The judge may receive into evidence anything that, in the opinion of
the judge, is reliable and appropriate, even if it would not
otherwise be admissible under Canadian law, and may base his or her
decision on that evidence. |
|
(7)
The Minister shall cause to be published, without delay, in the
Canada Gazette notice of a
final order of a court that the applicant no longer be a listed
entity. |
|
(8) A
listed entity may not make another application under subsection (2),
except if there has been a material change in its circumstances
since the time when the entity made its last application or if the
Minister has completed the review under subsection (9). |
|
(9)
Two years after the establishment of the list referred to in
subsection (1), and every two years after that, the Minister shall
review the list to determine whether there are still reasonable
grounds, as set out in subsection (1), for an entity to be a listed
entity and make a recommendation to the Governor in Council as to
whether the entity should remain a listed entity. The review does
not affect the validity of the list. |
|
(10)
The Minister shall complete the review as soon as possible and in
any event, no later than 120 days after its commencement. After
completing the review, he or she shall cause to be published,
without delay, in the Canada
Gazette notice that the review has been completed. |
|
(11)
In this section, “judge” means the Chief Justice of the Federal
Court or a judge of that Court designated by the Chief Justice.
2001,
c. 41, ss. 4, 143; 2005, c. 10, ss. 18, 34. |
|
83.06 (1) For
the purposes of subsection 83.05(6), in private and in the absence
of the applicant or any counsel representing it,
(a) the Minister of Public Safety
and Emergency Preparedness may make an application to the judge for
the admission of information obtained in confidence from a
government, an institution or an agency of a foreign state, from an
international organization of states or from an institution or an
agency of an international organization of states; and
(b) the judge shall examine the
information and provide counsel representing the Minister with a
reasonable opportunity to be heard as to whether the information is
relevant but should not be disclosed to the applicant or any counsel
representing it because the disclosure would injure national
security or endanger the safety of any person. |
|
(2)
The information shall be returned to counsel representing the
Minister and shall not be considered by the judge in making the
determination under paragraph 83.05(6)(d), if
(a) the judge determines that the
information is not relevant;
(b) the judge determines that the
information is relevant but should be summarized in the statement to
be provided under paragraph 83.05(6)(b); or
(c) the Minister withdraws the
application. |
|
(3) If
the judge decides that the information is relevant but that its
disclosure would injure national security or endanger the safety of
persons, the information shall not be disclosed in the statement
mentioned in paragraph 83.05(6)(b), but the judge may base the
determination under paragraph 83.05(6)(d) on it.
2001,
c. 41, s. 4; 2005, c. 10, s. 19. |
|
83.07 (1) An
entity claiming not to be a listed entity may apply to the Minister
of Public Safety and Emergency Preparedness for a certificate
stating that it is not a listed entity. |
|
(2)
The Minister shall, within 15 days after receiving the application,
issue a certificate if he or she is satisfied that the applicant is
not a listed entity.
2001,
c. 41, s. 4; 2005, c. 10, s. 20. |
|
|
|
83.08 (1) No
person in Canada and no Canadian outside Canada shall knowingly
(a) deal directly or indirectly in
any property that is owned or controlled by or on behalf of a
terrorist group;
(b) enter into or facilitate,
directly or indirectly, any transaction in respect of property
referred to in paragraph (a); or
(c) provide any financial or other
related services in respect of property referred to in paragraph
(a) to, for the benefit of
or at the direction of a terrorist group. |
|
(2) A
person who acts reasonably in taking, or omitting to take, measures
to comply with subsection (1) shall not be liable in any civil
action arising from having taken or omitted to take the measures, if
the person took all reasonable steps to satisfy themself that the
relevant property was owned or controlled by or on behalf of a
terrorist group.
2001,
c. 41, s. 4. |
|
83.09 (1) The
Minister of Public Safety and Emergency Preparedness, or a person
designated by him or her, may authorize any person in Canada or any
Canadian outside Canada to carry out a specified activity or
transaction that is prohibited by section 83.08, or a class of such
activities or transactions. |
Ministerial
authorization |
(2)
The Minister, or a person designated by him or her, may make the
authorization subject to any terms and conditions that are required
in their opinion and may amend, suspend, revoke or reinstate
it. |
Existing
equities maintained |
(3)
All secured and unsecured rights and interests in the frozen
property that are held by persons, other than terrorist groups or
their agents, are entitled to the same ranking that they would have
been entitled to had the property not been frozen. |
|
(4) If
a person has obtained an authorization under subsection (1), any
other person involved in carrying out the activity or transaction,
or class of activities or transactions, to which the authorization
relates is not subject to sections 83.08, 83.1 and 83.11 if the
terms or conditions of the authorization that are imposed under
subsection (2), if any, are met.
2001,
c. 41, s. 4; 2005, c. 10, s. 21. |
|
83.1 (1)
Every person in Canada and every Canadian outside Canada shall
disclose forthwith to the Commissioner of the Royal Canadian Mounted
Police and to the Director of the Canadian Security Intelligence
Service
(a) the existence of property in
their possession or control that they know is owned or controlled by
or on behalf of a terrorist group; and
(b) information about a transaction
or proposed transaction in respect of property referred to in
paragraph (a). |
|
(2) No
criminal or civil proceedings lie against a person for disclosure
made in good faith under subsection (1).
2001,
c. 41, s. 4. |
|
83.11 (1) The
following entities must determine on a continuing basis whether they
are in possession or control of property owned or controlled by or
on behalf of a listed entity:
(a) authorized foreign banks within
the meaning of section 2 of the Bank Act in respect of their
business in Canada, or banks to which that Act applies;
(b) cooperative credit societies,
savings and credit unions and caisses populaires regulated by a
provincial Act and associations regulated by the Cooperative Credit Associations
Act;
(c) foreign companies within the
meaning of subsection 2(1) of the Insurance Companies Act in respect
of their insurance business in Canada;
(c.1) companies, provincial
companies and societies within the meaning of subsection 2(1) of the
Insurance Companies Act;
(c.2) fraternal benefit societies
regulated by a provincial Act in respect of their insurance
activities, and insurance companies and other entities engaged in
the business of insuring risks that are regulated by a provincial
Act;
(d) companies to which the Trust and Loan Companies Act
applies;
(e) trust companies regulated by a
provincial Act;
(f) loan companies regulated by a
provincial Act; and
(g) entities authorized under
provincial legislation to engage in the business of dealing in
securities, or to provide portfolio management or investment
counselling services. |
|
(2)
Subject to the regulations, every entity referred to in paragraphs
(1)(a) to (g) must report, within the period
specified by regulation or, if no period is specified, monthly, to
the principal agency or body that supervises or regulates it under
federal or provincial law either
(a) that it is not in possession or
control of any property referred to in subsection (1), or
(b) that it is in possession or
control of such property, in which case it must also report the
number of persons, contracts or accounts involved and the total
value of the property. |
|
(3) No
criminal or civil proceedings lie against a person for making a
report in good faith under subsection (2). |
|
(4)
The Governor in Council may make regulations
(a) excluding any entity or class
of entities from the requirement to make a report referred to in
subsection (2), and specifying the conditions of exclusion; and
(b) specifying a period for the
purposes of subsection (2).
2001,
c. 41, s. 4. |
|
83.12 (1)
Every one who contravenes any of sections 83.08, 83.1 and 83.11 is
guilty of an offence and liable
(a) on summary conviction, to a
fine of not more than $100,000 or to imprisonment for a term of not
more than one year, or to both; or
(b) on conviction on indictment, to
imprisonment for a term of not more than 10 years. |
|
(2) No
person contravenes section 83.1 if they make the disclosure referred
to in that section only to the Commissioner of the Royal Canadian
Mounted Police or the Director of the Canadian Security Intelligence
Service.
2001,
c. 41, s. 4. |
|
Seizure
and Restraint of Property |
|
83.13 (1)
Where a judge of the Federal Court, on an ex parte application by the
Attorney General, after examining the application in private, is
satisfied that there are reasonable grounds to believe that there is
in any building, receptacle or place any property in respect of
which an order of forfeiture may be made under subsection 83.14(5),
the judge may issue
(a) if the property is situated in
Canada, a warrant authorizing a person named therein or a peace
officer to search the building, receptacle or place for that
property and to seize that property and any other property in
respect of which that person or peace officer believes, on
reasonable grounds, that an order of forfeiture may be made under
that subsection; or
(b) if the property is situated in
or outside Canada, a restraint order prohibiting any person from
disposing of, or otherwise dealing with any interest in, that
property other than as may be specified in the order. |
|
(1.1)
An affidavit in support of an application under subsection (1) may
be sworn on information and belief, and, notwithstanding the Federal Court Rules, 1998, no
adverse inference shall be drawn from a failure to provide evidence
of persons having personal knowledge of material facts. |
|
(2) On
an application under subsection (1), at the request of the Attorney
General, if a judge is of the opinion that the circumstances so
require, the judge may
(a) appoint a person to take
control of, and to manage or otherwise deal with, all or part of the
property in accordance with the directions of the judge; and
(b) require any person having
possession of that property to give possession of the property to
the person appointed under paragraph (a). |
Appointment
of Minister of Public Works and Government Services |
(3)
When the Attorney General of Canada so requests, a judge appointing
a person under subsection (2) shall appoint the Minister of Public
Works and Government Services. |
|
(4)
The power to manage or otherwise deal with property under subsection
(2) includes
(a) in the case of perishable or
rapidly depreciating property, the power to sell that property;
and
(b) in the case of property that
has little or no value, the power to destroy that
property. |
Application
for destruction order |
(5)
Before a person appointed under subsection (2) destroys property
referred to in paragraph (4)(b), he or she shall apply to a
judge of the Federal Court for a destruction order. |
|
(6)
Before making a destruction order in relation to any property, a
judge shall require notice in accordance with subsection (7) to be
given to, and may hear, any person who, in the opinion of the judge,
appears to have a valid interest in the property. |
|
(7) A
notice under subsection (6) shall be given in the manner that the
judge directs or as provided in the rules of the Federal
Court. |
|
(8) A
judge may order that property be destroyed if he or she is satisfied
that the property has little or no financial or other
value. |
When
management order ceases to have effect |
(9) A
management order ceases to have effect when the property that is the
subject of the management order is returned to an applicant in
accordance with the law or forfeited to Her Majesty. |
|
(10)
The Attorney General may at any time apply to a judge of the Federal
Court to cancel or vary an order or warrant made under this section,
other than an appointment made under subsection (3). |
|
(11)
Subsections 462.32(4) and (6), sections 462.34 to 462.35 and 462.4,
subsections 487(3) and (4) and section 488 apply, with such
modifications as the circumstances require, to a warrant issued
under paragraph (1)(a). |
|
(12)
Subsections 462.33(4) and (6) to (11) and sections 462.34 to 462.35
and 462.4 apply, with such modifications as the circumstances
require, to an order issued under paragraph (1)(b).
2001,
c. 41, s. 4. |
|
|
|
83.14 (1) The
Attorney General may make an application to a judge of the Federal
Court for an order of forfeiture in respect of
(a) property owned or controlled by
or on behalf of a terrorist group; or
(b) property that has been or will
be used, in whole or in part, to facilitate or carry out a terrorist
activity. |
|
(2) An
affidavit in support of an application by the Attorney General under
subsection (1) may be sworn on information and belief, and,
notwithstanding the Federal Court
Rules, 1998, no adverse inference shall be drawn from a
failure to provide evidence of persons having personal knowledge of
material facts. |
|
(3)
The Attorney General is required to name as a respondent to an
application under subsection (1) only those persons who are known to
own or control the property that is the subject of the
application. |
|
(4)
The Attorney General shall give notice of an application under
subsection (1) to named respondents in such a manner as the judge
directs or as provided in the rules of the Federal Court. |
Granting
of forfeiture order |
(5) If
a judge is satisfied on a balance of probabilities that property is
property referred to in paragraph (1)(a) or (b), the judge shall order that the
property be forfeited to Her Majesty to be disposed of as the
Attorney General directs or otherwise dealt with in accordance with
the law. |
|
(5.1)
Any proceeds that arise from the disposal of property under
subsection (5) may be used to compensate victims of terrorist
activities and to fund anti-terrorist initiatives in accordance with
any regulations made by the Governor in Council under subsection
(5.2). |
|
(5.2)
The Governor in Council may make regulations for the purposes of
specifying how the proceeds referred to in subsection (5.1) are to
be distributed. |
Order
refusing forfeiture |
(6)
Where a judge refuses an application under subsection (1) in respect
of any property, the judge shall make an order that describes the
property and declares that it is not property referred to in that
subsection. |
|
(7) On
an application under subsection (1), a judge may require notice to
be given to any person who, in the opinion of the Court, appears to
have an interest in the property, and any such person shall be
entitled to be added as a respondent to the application. |
|
(8) If
a judge is satisfied that a person referred to in subsection (7) has
an interest in property that is subject to an application, has
exercised reasonable care to ensure that the property would not be
used to facilitate or carry out a terrorist activity, and is not a
member of a terrorist group, the judge shall order that the interest
is not affected by the forfeiture. Such an order shall declare the
nature and extent of the interest in question. |
|
(9)
Where all or part of property that is the subject of an application
under subsection (1) is a dwelling-house, the judge shall also
consider
(a) the impact of an order of
forfeiture on any member of the immediate family of the person who
owns or controls the dwelling-house, if the dwelling-house was the
member’s principal residence at the time the dwelling-house was
ordered restrained or at the time the forfeiture application was
made and continues to be the member’s principal residence; and
(b) whether the member appears
innocent of any complicity or collusion in the terrorist
activity. |
Motion
to vary or set aside |
(10) A
person who claims an interest in property that was forfeited and who
did not receive notice under subsection (7) may bring a motion to
the Federal Court to vary or set aside an order made under
subsection (5) not later than 60 days after the day on which the
forfeiture order was made. |
|
(11)
The Court may not extend the period set out in subsection (10).
2001,
c. 41, s. 4. |
|
83.15
Subsection 462.42(6) and sections 462.43 and 462.46 apply, with such
modifications as the circumstances require, to property subject to a
warrant or restraint order issued under subsection 83.13(1) or
ordered forfeited under subsection 83.14(5).
2001,
c. 41, s. 4. |
|
83.16 (1)
Pending any appeal of an order made under section 83.14, property
restrained under an order issued under section 83.13 shall continue
to be restrained, property seized under a warrant issued under that
section shall continue to be detained, and any person appointed to
manage, control or otherwise deal with that property under that
section shall continue in that capacity. |
Appeal
of refusal to grant order |
(2)
Section 462.34 applies, with such modifications as the circumstances
require, to an appeal taken in respect of a refusal to grant an
order under subsection 83.14(5).
2001,
c. 41, s. 4. |
|
83.17 (1)
This Part does not affect the operation of any other provision of
this or any other Act of Parliament respecting the forfeiture of
property. |
Priority
for restitution to victims of crime |
(2)
Property is subject to forfeiture under subsection 83.14(5) only to
the extent that it is not required to satisfy the operation of any
other provision of this or any other Act of Parliament respecting
restitution to, or compensation of, persons affected by the
commission of offences.
2001,
c. 41, s. 4. |
|
Participating,
Facilitating, Instructing and Harbouring |
|
83.18 (1)
Every one who knowingly participates in or contributes to, directly
or indirectly, any activity of a terrorist group for the purpose of
enhancing the ability of any terrorist group to facilitate or carry
out a terrorist activity is guilty of an indictable offence and
liable to imprisonment for a term not exceeding ten years. |
|
(2) An
offence may be committed under subsection (1) whether or not
(a) a terrorist group actually
facilitates or carries out a terrorist activity;
(b) the participation or
contribution of the accused actually enhances the ability of a
terrorist group to facilitate or carry out a terrorist activity;
or
(c) the accused knows the specific
nature of any terrorist activity that may be facilitated or carried
out by a terrorist group. |
Meaning
of participating or contributing |
(3)
Participating in or contributing to an activity of a terrorist group
includes
(a) providing, receiving or
recruiting a person to receive training;
(b) providing or offering to
provide a skill or an expertise for the benefit of, at the direction
of or in association with a terrorist group;
(c) recruiting a person in order to
facilitate or commit
(i) a
terrorism offence, or
(ii)
an act or omission outside Canada that, if committed in Canada,
would be a terrorism offence;
(d) entering or remaining in any
country for the benefit of, at the direction of or in association
with a terrorist group; and
(e) making oneself, in response to
instructions from any of the persons who constitute a terrorist
group, available to facilitate or commit
(i) a
terrorism offence, or
(ii)
an act or omission outside Canada that, if committed in Canada,
would be a terrorism offence. |
|
(4) In
determining whether an accused participates in or contributes to any
activity of a terrorist group, the court may consider, among other
factors, whether the accused
(a) uses a name, word, symbol or
other representation that identifies, or is associated with, the
terrorist group;
(b) frequently associates with any
of the persons who constitute the terrorist group;
(c) receives any benefit from the
terrorist group; or
(d) repeatedly engages in
activities at the instruction of any of the persons who constitute
the terrorist group.
2001,
c. 41, s. 4. |
|
83.19 (1)
Every one who knowingly facilitates a terrorist activity is guilty
of an indictable offence and liable to imprisonment for a term not
exceeding fourteen years. |
|
(2)
For the purposes of this Part, a terrorist activity is facilitated
whether or not
(a) the facilitator knows that a
particular terrorist activity is facilitated;
(b) any particular terrorist
activity was foreseen or planned at the time it was facilitated;
or
(c) any terrorist activity was
actually carried out.
2001,
c. 41, s. 4. |
|
83.2 Every
one who commits an indictable offence under this or any other Act of
Parliament for the benefit of, at the direction of or in association
with a terrorist group is guilty of an indictable offence and liable
to imprisonment for life.
2001,
c. 41, s. 4. |
|
83.21 (1)
Every person who knowingly instructs, directly or indirectly, any
person to carry out any activity for the benefit of, at the
direction of or in association with a terrorist group, for the
purpose of enhancing the ability of any terrorist group to
facilitate or carry out a terrorist activity, is guilty of an
indictable offence and liable to imprisonment for life. |
|
(2) An
offence may be committed under subsection (1) whether or not
(a) the activity that the accused
instructs to be carried out is actually carried out;
(b) the accused instructs a
particular person to carry out the activity referred to in paragraph
(a);
(c) the accused knows the identity
of the person whom the accused instructs to carry out the activity
referred to in paragraph (a);
(d) the person whom the accused
instructs to carry out the activity referred to in paragraph (a) knows that it is to be carried
out for the benefit of, at the direction of or in association with a
terrorist group;
(e) a terrorist group actually
facilitates or carries out a terrorist activity;
(f) the activity referred to in
paragraph (a) actually
enhances the ability of a terrorist group to facilitate or carry out
a terrorist activity; or
(g) the accused knows the specific
nature of any terrorist activity that may be facilitated or carried
out by a terrorist group.
2001,
c. 41, s. 4. |
|
83.22 (1)
Every person who knowingly instructs, directly or indirectly, any
person to carry out a terrorist activity is guilty of an indictable
offence and liable to imprisonment for life. |
|
(2) An
offence may be committed under subsection (1) whether or not
(a) the terrorist activity is
actually carried out;
(b) the accused instructs a
particular person to carry out the terrorist activity;
(c) the accused knows the identity
of the person whom the accused instructs to carry out the terrorist
activity; or
(d) the person whom the accused
instructs to carry out the terrorist activity knows that it is a
terrorist activity.
2001,
c. 41, s. 4. |
|
83.23 Every
one who knowingly harbours or conceals any person whom he or she
knows to be a person who has carried out or is likely to carry out a
terrorist activity, for the purpose of enabling the person to
facilitate or carry out any terrorist activity, is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding ten years.
2001,
c. 41, s. 4. |
|
Hoax
Regarding Terrorist Activity |
|
83.231 (1)
Every one commits an offence who, without lawful excuse and with
intent to cause any person to fear death, bodily harm, substantial
damage to property or serious interference with the lawful use or
operation of property,
(a) conveys or causes or procures
to be conveyed information that, in all the circumstances, is likely
to cause a reasonable apprehension that terrorist activity is
occurring or will occur, without believing the information to be
true; or
(b) commits an act that, in all the
circumstances, is likely to cause a reasonable apprehension that
terrorist activity is occurring or will occur, without believing
that such activity is occurring or will occur. |
|
(2)
Every one who commits an offence under subsection (1) is guilty
of
(a) an indictable offence and
liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on
summary conviction. |
|
(3)
Every one who commits an offence under subsection (1) and thereby
causes bodily harm to any other person is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on
summary conviction and liable to imprisonment for a term not
exceeding eighteen months. |
|
(4)
Every one who commits an offence under subsection (1) and thereby
causes the death of any other person is guilty of an indictable
offence and liable to imprisonment for life.
2004,
c. 15, s. 32. |
|
Proceedings
and Aggravated Punishment |
|
83.24
Proceedings in respect of a terrorism offence or an offence under
section 83.12 shall not be commenced without the consent of the
Attorney General.
2001,
c. 41, s. 4. |
|
83.25 (1)
Where a person is alleged to have committed a terrorism offence or
an offence under section 83.12, proceedings in respect of that
offence may, whether or not that person is in Canada, be commenced
at the instance of the Government of Canada and conducted by the
Attorney General of Canada or counsel acting on his or her behalf in
any territorial division in Canada, if the offence is alleged to
have occurred outside the province in which the proceedings are
commenced, whether or not proceedings have previously been commenced
elsewhere in Canada. |
|
(2) An
accused may be tried and punished in respect of an offence referred
to in subsection (1) in the same manner as if the offence had been
committed in the territorial division where the proceeding is
conducted.
2001,
c. 41, s. 4. |
|
83.26 A
sentence, other than one of life imprisonment, imposed on a person
for an offence under any of sections 83.02 to 83.04 and 83.18 to
83.23 shall be served consecutively to
(a) any other punishment imposed on
the person, other than a sentence of life imprisonment, for an
offence arising out of the same event or series of events; and
(b) any other sentence, other than
one of life imprisonment, to which the person is subject at the time
the sentence is imposed on the person for an offence under any of
those sections.
2001,
c. 41, s. 4. |
|
83.27 (1)
Notwithstanding anything in this Act, a person convicted of an
indictable offence, other than an offence for which a sentence of
imprisonment for life is imposed as a minimum punishment, where the
act or omission constituting the offence also constitutes a
terrorist activity, is liable to imprisonment for life. |
Offender
must be notified |
(2)
Subsection (1) does not apply unless the prosecutor satisfies the
court that the offender, before making a plea, was notified that the
application of that subsection would be sought.
2001,
c. 41, s. 4. |
|
|
|
83.28 (1) In
this section and section 83.29, “judge” means a provincial court
judge or a judge of a superior court of criminal
jurisdiction. |
Order
for gathering evidence |
(2)
Subject to subsection (3), a peace officer may, for the purposes of
an investigation of a terrorism offence, apply ex parte to a judge for an order
for the gathering of information. |
Attorney
General’s consent |
(3) A
peace officer may make an application under subsection (2) only if
the prior consent of the Attorney General was obtained. |
|
(4) A
judge to whom an application is made under subsection (2) may make
an order for the gathering of information if the judge is satisfied
that the consent of the Attorney General was obtained as required by
subsection (3) and
(a) that there are reasonable
grounds to believe that
(i) a
terrorism offence has been committed, and
(ii)
information concerning the offence, or information that may reveal
the whereabouts of a person suspected by the peace officer of having
committed the offence, is likely to be obtained as a result of the
order; or
(b) that
(i)
there are reasonable grounds to believe that a terrorism offence
will be committed,
(ii)
there are reasonable grounds to believe that a person has direct and
material information that relates to a terrorism offence referred to
in subparagraph (i), or that may reveal the whereabouts of an
individual who the peace officer suspects may commit a terrorism
offence referred to in that subparagraph, and
(iii)
reasonable attempts have been made to obtain the information
referred to in subparagraph (ii) from the person referred to in that
subparagraph. |
|
(5) An
order made under subsection (4) may
(a) order the examination, on oath
or not, of a person named in the order;
(b) order the person to attend at
the place fixed by the judge, or by the judge designated under
paragraph (d), as the case
may be, for the examination and to remain in attendance until
excused by the presiding judge;
(c) order the person to bring to
the examination any thing in their possession or control, and
produce it to the presiding judge;
(d) designate another judge as the
judge before whom the examination is to take place; and
(e) include any other terms or
conditions that the judge considers desirable, including terms or
conditions for the protection of the interests of the person named
in the order and of third parties or for the protection of any
ongoing investigation. |
|
(6) An
order made under subsection (4) may be executed anywhere in
Canada. |
|
(7)
The judge who made the order under subsection (4), or another judge
of the same court, may vary its terms and conditions. |
Obligation
to answer questions and produce things |
(8) A
person named in an order made under subsection (4) shall answer
questions put to the person by the Attorney General or the Attorney
General’s agent, and shall produce to the presiding judge things
that the person was ordered to bring, but may refuse if answering a
question or producing a thing would disclose information that is
protected by any law relating to non-disclosure of information or to
privilege. |
|
(9)
The presiding judge shall rule on any objection or other issue
relating to a refusal to answer a question or to produce a
thing. |
No
person excused from complying with subsection (8) |
(10)
No person shall be excused from answering a question or producing a
thing under subsection (8) on the ground that the answer or thing
may tend to incriminate the person or subject the person to any
proceeding or penalty, but
(a) no answer given or thing
produced under subsection (8) shall be used or received against the
person in any criminal proceedings against that person, other than a
prosecution under section 132 or 136; and
(b) no evidence derived from the
evidence obtained from the person shall be used or received against
the person in any criminal proceedings against that person, other
than a prosecution under section 132 or 136. |
|
(11) A
person has the right to retain and instruct counsel at any stage of
the proceedings. |
Order
for custody of thing |
(12)
The presiding judge, if satisfied that any thing produced during the
course of the examination will likely be relevant to the
investigation of any terrorism offence, shall order that the thing
be given into the custody of the peace officer or someone acting on
the peace officer’s behalf.
2001,
c. 41, s. 4. |
|
83.29 (1) The
judge who made the order under subsection 83.28(4), or another judge
of the same court, may issue a warrant for the arrest of the person
named in the order if the judge is satisfied, on an information in
writing and under oath, that the person
(a) is evading service of the
order;
(b) is about to abscond; or
(c) did not attend the examination,
or did not remain in attendance, as required by the order. |
|
(2) A
warrant issued under subsection (1) may be executed at any place in
Canada by any peace officer having jurisdiction in that
place. |
Person
to be brought before judge |
(3) A
peace officer who arrests a person in the execution of a warrant
issued under subsection (1) shall, without delay, bring the person,
or cause the person to be brought, before the judge who issued the
warrant or another judge of the same court. The judge in question
may, to ensure compliance with the order, order that the person be
detained in custody or released on recognizance, with or without
sureties.
2001,
c. 41, s. 4. |
|
Recognizance
with Conditions |
|
83.3 (1) The
consent of the Attorney General is required before a peace officer
may lay an information under subsection (2). |
|
(2)
Subject to subsection (1), a peace officer may lay an information
before a provincial court judge if the peace officer
(a) believes on reasonable grounds
that a terrorist activity will be carried out; and
(b) suspects on reasonable grounds
that the imposition of a recognizance with conditions on a person,
or the arrest of a person, is necessary to prevent the carrying out
of the terrorist activity. |
|
(3) A
provincial court judge who receives an information under subsection
(2) may cause the person to appear before the provincial court
judge. |
|
(4)
Notwithstanding subsections (2) and (3), if
(a) either
(i)
the grounds for laying an information referred to in paragraphs
(2)(a) and (b) exist but, by reason of exigent
circumstances, it would be impracticable to lay an information under
subsection (2), or
(ii)
an information has been laid under subsection (2) and a summons has
been issued, and
(b) the peace officer suspects on
reasonable grounds that the detention of the person in custody is
necessary in order to prevent a terrorist activity,
the
peace officer may arrest the person without warrant and cause the
person to be detained in custody, to be taken before a provincial
court judge in accordance with subsection (6). |
|
(5) If
a peace officer arrests a person without warrant in the circumstance
described in subparagraph (4)(a)(i), the peace officer shall,
within the time prescribed by paragraph (6)(a) or (b),
(a) lay an information in
accordance with subsection (2); or
(b) release the person. |
When
person to be taken before judge |
(6) A
person detained in custody shall be taken before a provincial court
judge in accordance with the following rules:
(a) if a provincial court judge is
available within a period of twenty-four hours after the person has
been arrested, the person shall be taken before a provincial court
judge without unreasonable delay and in any event within that
period, and
(b) if a provincial court judge is
not available within a period of twenty-four hours after the person
has been arrested, the person shall be taken before a provincial
court judge as soon as possible,
unless,
at any time before the expiry of the time prescribed in paragraph
(a) or (b) for taking the person before a
provincial court judge, the peace officer, or an officer in charge
within the meaning of Part XV, is satisfied that the person should
be released from custody unconditionally, and so releases the
person. |
|
(7)
When a person is taken before a provincial court judge under
subsection (6),
(a) if an information has not been
laid under subsection (2), the judge shall order that the person be
released; or
(b) if an information has been laid
under subsection (2),
(i)
the judge shall order that the person be released unless the peace
officer who laid the information shows cause why the detention of
the person in custody is justified on one or more of the following
grounds:
(A)
the detention is necessary to ensure the person’s appearance before
a provincial court judge in order to be dealt with in accordance
with subsection (8),
(B)
the detention is necessary for the protection or safety of the
public, including any witness, having regard to all the
circumstances including
(I)
the likelihood that, if the person is released from custody, a
terrorist activity will be carried out, and
(II)
any substantial likelihood that the person will, if released from
custody, interfere with the administration of justice, and
(C)
any other just cause and, without limiting the generality of the
foregoing, that the detention is necessary in order to maintain
confidence in the administration of justice, having regard to all
the circumstances, including the apparent strength of the peace
officer’s grounds under subsection (2), and the gravity of any
terrorist activity that may be carried out, and
(ii)
the judge may adjourn the matter for a hearing under subsection (8)
but, if the person is not released under subparagraph (i), the
adjournment may not exceed forty-eight hours. |
|
(8)
The provincial court judge before whom the person appears pursuant
to subsection (3)
(a) may, if satisfied by the
evidence adduced that the peace officer has reasonable grounds for
the suspicion, order that the person enter into a recognizance to
keep the peace and be of good behaviour for any period that does not
exceed twelve months and to comply with any other reasonable
conditions prescribed in the recognizance, including the conditions
set out in subsection (10), that the provincial court judge
considers desirable for preventing the carrying out of a terrorist
activity; and
(b) if the person was not released
under subparagraph (7)(b)(i), shall order that the person
be released, subject to the recognizance, if any, ordered under
paragraph (a). |
Refusal
to enter into recognizance |
(9)
The provincial court judge may commit the person to prison for a
term not exceeding twelve months if the person fails or refuses to
enter into the recognizance. |
|
(10)
Before making an order under paragraph (8)(a), the provincial court judge
shall consider whether it is desirable, in the interests of the
safety of the person or of any other person, to include as a
condition of the recognizance that the person be prohibited from
possessing any firearm, cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition, prohibited ammunition or
explosive substance, or all of those things, for any period
specified in the recognizance, and where the provincial court judge
decides that it is so desirable, the provincial court judge shall
add such a condition to the recognizance. |
|
(11)
If the provincial court judge adds a condition described in
subsection (10) to a recognizance, the provincial court judge shall
specify in the recognizance the manner and method by which
(a) the things referred to in that
subsection that are in the possession of the person shall be
surrendered, disposed of, detained, stored or dealt with; and
(b) the authorizations, licences
and registration certificates held by the person shall be
surrendered. |
|
(12)
If the provincial court judge does not add a condition described in
subsection (10) to a recognizance, the provincial court judge shall
include in the record a statement of the reasons for not adding the
condition. |
|
(13)
The provincial court judge may, on application of the peace officer,
the Attorney General or the person, vary the conditions fixed in the
recognizance. |
Other
provisions to apply |
(14)
Subsections 810(4) and (5) apply, with any modifications that the
circumstances require, to proceedings under this section.
2001,
c. 41, s. 4. |
|
83.31 (1) The
Attorney General of Canada shall prepare and cause to be laid before
Parliament and the Attorney General of every province shall publish
or otherwise make available to the public an annual report for the
previous year on the operation of sections 83.28 and 83.29 that
includes
(a) the number of consents to make
an application that were sought, and the number that were obtained,
by virtue of subsections 83.28(2) and (3);
(b) the number of orders for the
gathering of information that were made under subsection 83.28(4);
and
(c) the number of arrests that were
made with a warrant issued under section 83.29. |
Annual
report (section 83.3) |
(2)
The Attorney General of Canada shall prepare and cause to be laid
before Parliament and the Attorney General of every province shall
publish or otherwise make available to the public an annual report
for the previous year on the operation of section 83.3 that
includes
(a) the number of consents to lay
an information that were sought, and the number that were obtained,
by virtue of subsections 83.3(1) and (2);
(b) the number of cases in which a
summons or a warrant of arrest was issued for the purposes of
subsection 83.3(3);
(c) the number of cases where a
person was not released under subsection 83.3(7) pending a
hearing;
(d) the number of cases in which an
order to enter into a recognizance was made under paragraph
83.3(8)(a), and the types of
conditions that were imposed;
(e) the number of times that a
person failed or refused to enter into a recognizance, and the term
of imprisonment imposed under subsection 83.3(9) in each case;
and
(f) the number of cases in which
the conditions fixed in a recognizance were varied under subsection
83.3(13). |
Annual
report (section 83.3) |
(3)
The Minister of Public Safety and Emergency Preparedness shall
prepare and cause to be laid before Parliament and the Minister
responsible for policing in every province shall publish or
otherwise make available to the public an annual report for the
previous year on the operation of section 83.3 that includes
(a) the number of arrests without
warrant that were made under subsection 83.3(4) and the period of
the arrested person’s detention in custody in each case; and
(b) the number of cases in which a
person was arrested without warrant under subsection 83.3(4) and was
released
(i) by
a peace officer under paragraph 83.3(5)(b), or
(ii)
by a judge under paragraph 83.3(7)(a). |
|
(4)
The annual report shall not contain any information the disclosure
of which would
(a) compromise or hinder an ongoing
investigation of an offence under an Act of Parliament;
(b) endanger the life or safety of
any person;
(c) prejudice a legal proceeding;
or
(d) otherwise be contrary to the
public interest.
2001,
c. 41, s. 4; 2005, c. 10, s. 34. |
|
83.32 (1)
Sections 83.28, 83.29 and 83.3 cease to apply at the end of the
fifteenth sitting day of Parliament after December 31, 2006 unless,
before the end of that day, the application of those sections is
extended by a resolution — the text of which is established under
subsection (2) — passed by both Houses of Parliament in accordance
with the rules set out in subsection (3). |
|
(2)
The Governor General in Council may, by order, establish the text of
a resolution providing for the extension of the application of
sections 83.28, 83.29 and 83.3 and specifying the period of the
extension, which may not exceed five years from the first day on
which the resolution has been passed by both Houses of
Parliament. |
|
(3) A
motion for the adoption of the resolution may be debated in both
Houses of Parliament but may not be amended. At the conclusion of
the debate, the Speaker of the House of Parliament shall immediately
put every question necessary to determine whether or not the motion
is concurred in. |
|
(4)
The application of sections 83.28, 83.29 and 83.3 may be further
extended in accordance with the procedure set out in this section,
with the words “December 31, 2006” in subsection (1) read as “the
expiration of the most recent extension under this
section”. |
Definition
of “sitting day of Parliament” |
(5) In
subsection (1), “sitting day of Parliament” means a day on which
both Houses of Parliament sit.
2001,
c. 41, s. 4. |
|
83.33 (1) In
the event that sections 83.28 and 83.29 cease to apply pursuant to
section 83.32, proceedings commenced under those sections shall be
completed if the hearing before the judge of the application made
under subsection 83.28(2) began before those sections ceased to
apply. |
|
(2) In
the event that section 83.3 ceases to apply pursuant to section
83.32, a person detained in custody under section 83.3 shall be
released when that section ceases to apply, except that subsections
83.3(7) to (14) continue to apply to a person who was taken before a
judge under subsection 83.3(6) before section 83.3 ceased to
apply.
2001,
c. 41, s. 4. |
|
PART
III
FIREARMS AND OTHER
WEAPONS |
|
|
|
84. (1) In
this Part and subsections 491(1), 515(4.1) and (4.11) and 810(3.1)
and (3.11), |
“ammunition”
« munitions » |
“ammunition” means a
cartridge containing a projectile designed to be discharged from a
firearm and, without restricting the generality of the foregoing,
includes a caseless cartridge and a shot shell; |
“antique firearm”
« arme à feu
historique » |
“antique firearm” means
(
a) any firearm manufactured
before 1898 that was not designed to discharge rim-fire or
centre-fire ammunition and that has not been redesigned to discharge
such ammunition, or
(
b) any firearm that is
prescribed to be an antique firearm; |
“authorization”
« autorisation » |
“authorization” means an
authorization issued under the Firearms Act; |
“automatic firearm”
« arme
automatique » |
“automatic firearm” means
a firearm that is capable of, or assembled or designed and
manufactured with the capability of, discharging projectiles in
rapid succession during one pressure of the trigger; |
“cartridge magazine”
« chargeur » |
“cartridge magazine” means
a device or container from which ammunition may be fed into the
firing chamber of a firearm; |
“chief firearms officer”
« contrôleur des armes à
feu » |
“chief
firearms officer” means a chief firearms officer as defined in
subsection 2(1) of the Firearms
Act; |
“Commissioner of Firearms”
« commissaire aux armes à
feu » |
“Commissioner of Firearms”
means the Commissioner of Firearms appointed under section 81.1 of
the Firearms Act ;
|
|
“cross-bow” means a device
with a bow and a bowstring mounted on a stock that is designed to
propel an arrow, a bolt, a quarrel or any similar projectile on a
trajectory guided by a barrel or groove and that is capable of
causing serious bodily injury or death to a person; |
|
“export” means export from
Canada and, for greater certainty, includes the exportation of goods
from Canada that are imported into Canada and shipped in transit
through Canada; |
“firearms officer”
« préposé aux armes à
feu » |
“firearms officer” means a
firearms officer as defined in subsection 2(1) of the Firearms Act; |
“handgun”
« arme de poing » |
“handgun” means a firearm
that is designed, altered or intended to be aimed and fired by the
action of one hand, whether or not it has been redesigned or
subsequently altered to be aimed and fired by the action of both
hands; |
“imitation firearm”
« fausse arme à
feu » |
“imitation firearm” means
any thing that imitates a firearm, and includes a replica firearm;
|
|
“import” means import into
Canada and, for greater certainty, includes the importation of goods
into Canada that are shipped in transit through Canada and exported
from Canada; |
|
“licence” means a licence
issued under the Firearms
Act; |
“prescribed”
Version anglaise seulement
|
“prescribed” means
prescribed by the regulations; |
“prohibited ammunition”
« munitions
prohibées » |
“prohibited ammunition”
means ammunition, or a projectile of any kind, that is prescribed to
be prohibited ammunition; |
“prohibited device”
« dispositif
prohibé » |
“prohibited device” means
(
a) any component or part of
a weapon, or any accessory for use with a weapon, that is prescribed
to be a prohibited device,
(
b) a handgun barrel that is
equal to or less than 105 mm in length, but does not include any
such handgun barrel that is prescribed, where the handgun barrel is
for use in international sporting competitions governed by the rules
of the International Shooting Union,
(
c) a device or contrivance
designed or intended to muffle or stop the sound or report of a
firearm,
(
d) a cartridge magazine that
is prescribed to be a prohibited device, or
(
e) a replica
firearm; |
“prohibited firearm”
« arme à feu
prohibée » |
“prohibited firearm” means
(
a) a handgun that
(i)
has a barrel equal to or less than 105 mm in length, or
(ii)
is designed or adapted to discharge a 25 or 32 calibre
cartridge,
but
does not include any such handgun that is prescribed, where the
handgun is for use in international sporting competitions governed
by the rules of the International Shooting Union,
(
b) a firearm that is adapted
from a rifle or shotgun, whether by sawing, cutting or any other
alteration, and that, as so adapted,
(i) is
less than 660 mm in length, or
(ii)
is 660 mm or greater in length and has a barrel less than 457 mm in
length,
(
c) an automatic firearm,
whether or not it has been altered to discharge only one projectile
with one pressure of the trigger, or
(
d) any firearm that is
prescribed to be a prohibited firearm; |
“prohibited weapon”
« arme prohibée » |
“prohibited weapon” means
(
a) a knife that has a blade
that opens automatically by gravity or centrifugal force or by hand
pressure applied to a button, spring or other device in or attached
to the handle of the knife, or
(
b) any weapon, other than a
firearm, that is prescribed to be a prohibited weapon; |
“prohibition order”
« ordonnance
d’interdiction » |
“prohibition order” means
an order made under this Act or any other Act of Parliament
prohibiting a person from possessing any firearm, cross-bow,
prohibited weapon, restricted weapon, prohibited device, ammunition,
prohibited ammunition or explosive substance, or all such things;
|
“Registrar”
« directeur » |
“Registrar” means the
Registrar of Firearms appointed under section 82 of the Firearms Act; |
“registration certificate”
« certificat
d’enregistrement » |
“registration certificate”
means a registration certificate issued under the Firearms Act; |
“replica firearm”
« réplique » |
“replica firearm” means
any device that is designed or intended to exactly resemble, or to
resemble with near precision, a firearm, and that itself is not a
firearm, but does not include any such device that is designed or
intended to exactly resemble, or to resemble with near precision, an
antique firearm; |
“restricted firearm”
« arme à feu à autorisation
restreinte » |
“restricted firearm” means
(
a) a handgun that is not a
prohibited firearm,
(
b) a firearm that
(i) is
not a prohibited firearm,
(ii)
has a barrel less than 470 mm in length, and
(iii)
is capable of discharging centre-fire ammunition in a semi-automatic
manner,
(
c) a firearm that is
designed or adapted to be fired when reduced to a length of less
than 660 mm by folding, telescoping or otherwise, or
(
d) a firearm of any other
kind that is prescribed to be a restricted firearm; |
“restricted weapon”
« arme à autorisation
restreinte » |
“restricted weapon” means
any weapon, other than a firearm, that is prescribed to be a
restricted weapon; |
“superior court”
« cour
supérieure » |
“superior court” means
(
a) in Ontario, the Superior
Court of Justice, sitting in the region, district or county or group
of counties where the relevant adjudication was made,
(
b) in Quebec, the Superior
Court,
(
c) in New Brunswick,
Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench,
(
d) in Nova Scotia, British
Columbia and a territory, the Supreme Court, and
(
e) in Prince Edward Island
and Newfoundland, the Trial Division of the Supreme Court; |
|
“transfer” means sell,
provide, barter, give, lend, rent, send, transport, ship, distribute
or deliver. |
|
(2)
For the purposes of this Part, the length of a barrel of a firearm
is
(a) in the case of a revolver, the
distance from the muzzle of the barrel to the breach end immediately
in front of the cylinder, and
(b) in any other case, the distance
from the muzzle of the barrel to and including the chamber,
but does
not include the length of any component, part or accessory including
any component, part or accessory designed or intended to suppress
the muzzle flash or reduce recoil. |
Certain
weapons deemed not to be firearms |
(3)
For the purposes of sections 91 to 95, 99 to 101, 103 to 107 and
117.03 of this Act and the provisions of the Firearms Act, the following
weapons are deemed not to be firearms:
(a) any antique firearm;
(b) any device that is
(i)
designed exclusively for signalling, for notifying of distress, for
firing blank cartridges or for firing stud cartridges,
explosive-driven rivets or other industrial projectiles, and
(ii)
intended by the person in possession of it to be used exclusively
for the purpose for which it is designed;
(c) any shooting device that is
(i)
designed exclusively for the slaughtering of domestic animals, the
tranquillizing of animals or the discharging of projectiles with
lines attached to them, and
(ii)
intended by the person in possession of it to be used exclusively
for the purpose for which it is designed; and
(
d) any other barrelled
weapon, where it is proved that the weapon is not designed or
adapted to discharge
(i) a
shot, bullet or other projectile at a muzzle velocity exceeding
152.4 m per second or at a muzzle energy exceeding 5.7 Joules,
or
(ii) a
shot, bullet or other projectile that is designed or adapted to
attain a velocity exceeding 152.4 m per second or an energy
exceeding 5.7 Joules. |
Exception
— antique firearms |
(3.1)
Notwithstanding subsection (3), an antique firearm is a firearm for
the purposes of regulations made under paragraph 117(h) of the Firearms Act and subsection 86(2)
of this Act. |
|
(4)
For the purposes of this Part, a person is the holder of
(a) an authorization or a licence
if the authorization or licence has been issued to the person and
the person continues to hold it; and
(b) a registration certificate for
a firearm if
(i)
the registration certificate has been issued to the person and the
person continues to hold it, or
(ii)
the person possesses the registration certificate with the
permission of its lawful holder.
R.S.,
1985, c. C-46, s. 84; R.S., 1985, c. 27 (1st Supp.), ss. 185(F),
186; 1991, c. 40, s. 2; 1995, c. 39, s. 139; 1998, c. 30, s. 16;
2003, c. 8, s. 2. |
|
|
|
85. (1) Every
person commits an offence who uses a firearm
(a) while committing an indictable
offence, other than an offence under section 220 (criminal
negligence causing death), 236 (manslaughter), 239 (attempted
murder), 244 (causing bodily harm with intent — firearm), 272
(sexual assault with a weapon) or 273 (aggravated sexual assault),
subsection 279(1) (kidnapping) or section 279.1 (hostage-taking),
344 (robbery) or 346 (extortion),
(b) while attempting to commit an
indictable offence, or
(c) during flight after committing
or attempting to commit an indictable offence,
whether
or not the person causes or means to cause bodily harm to any person
as a result of using the firearm. |
Using
imitation firearm in commission of offence |
(2)
Every person commits an offence who uses an imitation firearm
(a) while committing an indictable
offence,
(b) while attempting to commit an
indictable offence, or
(c) during flight after committing
or attempting to commit an indictable offence,
whether
or not the person causes or means to cause bodily harm to any person
as a result of using the imitation firearm. |
|
(3)
Every person who commits an offence under subsection (1) or (2) is
guilty of an indictable offence and liable
(a) in the case of a first offence,
except as provided in paragraph (b), to imprisonment for a term not
exceeding fourteen years and to a minimum punishment of imprisonment
for a term of one year;
(b) in the case of a first offence
committed by a person who, before January 1, 1978, was convicted of
an indictable offence, or an attempt to commit an indictable
offence, in the course of which or during flight after the
commission or attempted commission of which the person used a
firearm, to imprisonment for a term not exceeding fourteen years and
to a minimum punishment of imprisonment for a term of three years;
and
(c) in the case of a second or
subsequent offence, to imprisonment for a term not exceeding
fourteen years and to a minimum punishment of imprisonment for a
term of three years. |
Sentences
to be served consecutively |
(4) A
sentence imposed on a person for an offence under subsection (1) or
(2) shall be served consecutively to any other punishment imposed on
the person for an offence arising out of the same event or series of
events and to any other sentence to which the person is subject at
the time the sentence is imposed on the person for an offence under
subsection (1) or (2).
R.S.,
1985, c. C-46, s. 85; 1995, c. 39, s. 139; 2003, c. 8, s.
3. |
|
86. (1) Every
person commits an offence who, without lawful excuse, uses, carries,
handles, ships, transports or stores a firearm, a prohibited weapon,
a restricted weapon, a prohibited device or any ammunition or
prohibited ammunition in a careless manner or without reasonable
precautions for the safety of other persons. |
Contravention
of storage regulations, etc. |
(2)
Every person commits an offence who contravenes a regulation made
under paragraph 117(h) of
the Firearms Act respecting
the storage, handling, transportation, shipping, display,
advertising and mail-order sales of firearms and restricted
weapons. |
|
(3)
Every person who commits an offence under subsection (1) or (2)
(a) is guilty of an indictable
offence and liable to imprisonment
(i) in
the case of a first offence, for a term not exceeding two years,
and
(ii)
in the case of a second or subsequent offence, for a term not
exceeding five years; or
(b) is guilty of an offence
punishable on summary conviction.
R.S.,
1985, c. C-46, s. 86; 1991, c. 40, s. 3; 1995, c. 39, s.
139. |
|
87. (1) Every
person commits an offence who, without lawful excuse, points a
firearm at another person, whether the firearm is loaded or
unloaded. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction.
R.S.,
1985, c. C-46, s. 87; 1995, c. 39, s. 139. |
|
|
|
88. (1) Every
person commits an offence who carries or possesses a weapon, an
imitation of a weapon, a prohibited device or any ammunition or
prohibited ammunition for a purpose dangerous to the public peace or
for the purpose of committing an offence. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years; or
(b) is guilty of an offence
punishable on summary conviction.
R.S.,
1985, c. C-46, s. 88; 1995, c. 39, s. 139. |
|
89. (1) Every
person commits an offence who, without lawful excuse, carries a
weapon, a prohibited device or any ammunition or prohibited
ammunition while the person is attending or is on the way to attend
a public meeting. |
|
(2)
Every person who commits an offence under subsection (1) is guilty
of an offence punishable on summary conviction.
R.S.,
1985, c. C-46, s. 89; 1995, c. 39, s. 139. |
|
90. (1) Every
person commits an offence who carries a weapon, a prohibited device
or any prohibited ammunition concealed, unless the person is
authorized under the Firearms
Act to carry it concealed. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction.
R.S.,
1985, c. C-46, s. 90; 1991, c. 28, s. 6, c. 40, ss. 4, 35; 1994, c.
44, s. 6; 1995, c. 39, s. 139. |
|
91. (1)
Subject to subsections (4) and (5) and section 98, every person
commits an offence who possesses a firearm, unless the person is the
holder of
(a) a licence under which the
person may possess it; and
(b) a registration certificate for
the firearm. |
Unauthorized
possession of prohibited weapon or restricted weapon |
(2)
Subject to subsection (4) and section 98, every person commits an
offence who possesses a prohibited weapon, a restricted weapon, a
prohibited device, other than a replica firearm, or any prohibited
ammunition, unless the person is the holder of a licence under which
the person may possess it. |
|
(3)
Every person who commits an offence under subsection (1) or (2)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction. |
|
(4)
Subsections (1) and (2) do not apply to
(a) a person who possesses a
firearm, a prohibited weapon, a restricted weapon, a prohibited
device or any prohibited ammunition while the person is under the
direct and immediate supervision of a person who may lawfully
possess it, for the purpose of using it in a manner in which the
supervising person may lawfully use it; or
(b) a person who comes into
possession of a firearm, a prohibited weapon, a restricted weapon, a
prohibited device or any prohibited ammunition by the operation of
law and who, within a reasonable period after acquiring possession
of it,
(i)
lawfully disposes of it, or
(ii)
obtains a licence under which the person may possess it and, in the
case of a firearm, a registration certificate for the
firearm. |
Borrowed
firearm for sustenance |
(5)
Subsection (1) does not apply to a person who possesses a firearm
that is neither a prohibited firearm nor a restricted firearm and
who is not the holder of a registration certificate for the firearm
if the person
(a) has borrowed the firearm;
(b) is the holder of a licence
under which the person may possess it; and
(c) is in possession of the firearm
to hunt or trap in order to sustain the person or the person’s
family.
R.S.,
1985, c. C-46, s. 91; 1991, c. 28, s. 7, c. 40, ss. 5, 36; 1995, c.
22, s. 10, c. 39, s. 139. |
|
92. (1)
Subject to subsections (4) and (5) and section 98, every person
commits an offence who possesses a firearm knowing that the person
is not the holder of
(a) a licence under which the
person may possess it; and
(b) a registration certificate for
the firearm. |
Possession
of prohibited weapon, device or ammunition knowing its possession is
unauthorized |
(2)
Subject to subsection (4) and section 98, every person commits an
offence who possesses a prohibited weapon, a restricted weapon, a
prohibited device, other than a replica firearm, or any prohibited
ammunition knowing that the person is not the holder of a licence
under which the person may possess it. |
|
(3)
Every person who commits an offence under subsection (1) or (2) is
guilty of an indictable offence and liable
(a) in the case of a first offence,
to imprisonment for a term not exceeding ten years;
(b) in the case of a second
offence, to imprisonment for a term not exceeding ten years and to a
minimum punishment of imprisonment for a term of one year; and
(c) in the case of a third or
subsequent offence, to imprisonment for a term not exceeding ten
years and to a minimum punishment of imprisonment for a term of two
years less a day. |
|
(4)
Subsections (1) and (2) do not apply to
(a) a person who possesses a
firearm, a prohibited weapon, a restricted weapon, a prohibited
device or any prohibited ammunition while the person is under the
direct and immediate supervision of a person who may lawfully
possess it, for the purpose of using it in a manner in which the
supervising person may lawfully use it; or
(b) a person who comes into
possession of a firearm, a prohibited weapon, a restricted weapon, a
prohibited device or any prohibited ammunition by the operation of
law and who, within a reasonable period after acquiring possession
of it,
(i)
lawfully disposes of it, or
(ii)
obtains a licence under which the person may possess it and, in the
case of a firearm, a registration certificate for the
firearm. |
Borrowed
firearm for sustenance |
(5)
Subsection (1) does not apply to a person who possesses a firearm
that is neither a prohibited firearm nor a restricted firearm and
who is not the holder of a registration certificate for the firearm
if the person
(a) has borrowed the firearm;
(b) is the holder of a licence
under which the person may possess it; and
(c) is in possession of the firearm
to hunt or trap in order to sustain the person or the person’s
family. |
Evidence
for previous conviction |
(6)
Where a person is charged with an offence under subsection (1),
evidence that the person was convicted of an offence under
subsection 112(1) of the Firearms
Act is admissible at any stage of the proceedings and may be
taken into consideration for the purpose of proving that the person
knew that the person was not the holder of a registration
certificate for the firearm to which the offence relates.
R.S.,
1985, c. C-46, s. 92; R.S., 1985, c. 1 (2nd Supp.), s. 213; 1991, c.
40, s. 7; 1995, c. 39, s. 139. |
|
93. (1)
Subject to subsection (3) and section 98, every person commits an
offence who, being the holder of an authorization or a licence under
which the person may possess a firearm, a prohibited weapon, a
restricted weapon, a prohibited device or prohibited ammunition,
possesses the firearm, prohibited weapon, restricted weapon,
prohibited device or prohibited ammunition at a place that is
(a) indicated on the authorization
or licence as being a place where the person may not possess it;
(b) other than a place indicated on
the authorization or licence as being a place where the person may
possess it; or
(c) other than a place where it may
be possessed under the Firearms
Act. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction. |
|
(3)
Subsection (1) does not apply to a person who possesses a replica
firearm.
R.S.,
1985, c. C-46, s. 93; 1991, c. 40, s. 8; 1995, c. 39, s.
139. |
|
94. (1)
Subject to subsections (3) to (5) and section 98, every person
commits an offence who is an occupant of a motor vehicle in which
the person knows there is a firearm, a prohibited weapon, a
restricted weapon, a prohibited device, other than a replica
firearm, or any prohibited ammunition, unless
(a) in the case of a firearm,
(i)
the person or any other occupant of the motor vehicle is the holder
of
(A) an
authorization or a licence under which the person or other occupant
may possess the firearm and, in the case of a prohibited firearm or
a restricted firearm, transport the prohibited firearm or restricted
firearm, and
(B) a
registration certificate for the firearm,
(ii)
the person had reasonable grounds to believe that any other occupant
of the motor vehicle was the holder of
(A) an
authorization or a licence under which that other occupant may
possess the firearm and, in the case of a prohibited firearm or a
restricted firearm, transport the prohibited firearm or restricted
firearm, and
(B) a
registration certificate for the firearm, or
(iii)
the person had reasonable grounds to believe that any other occupant
of the motor vehicle was a person who could not be convicted of an
offence under this Act by reason of sections 117.07 to 117.1 or any
other Act of Parliament; and
(b) in the case of a prohibited
weapon, a restricted weapon, a prohibited device or any prohibited
ammunition,
(i)
the person or any other occupant of the motor vehicle is the holder
of an authorization or a licence under which the person or other
occupant may transport the prohibited weapon, restricted weapon,
prohibited device or prohibited ammunition, or
(ii)
the person had reasonable grounds to believe that any other occupant
of the motor vehicle was
(A)
the holder of an authorization or a licence under which the other
occupant may transport the prohibited weapon, restricted weapon,
prohibited device or prohibited ammunition, or
(B) a
person who could not be convicted of an offence under this Act by
reason of sections 117.07 to 117.1 or any other Act of
Parliament. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years; or
(b) is guilty of an offence
punishable on summary conviction. |
|
(3)
Subsection (1) does not apply to an occupant of a motor vehicle who,
on becoming aware of the presence of the firearm, prohibited weapon,
restricted weapon, prohibited device or prohibited ammunition in the
motor vehicle, attempted to leave the motor vehicle, to the extent
that it was feasible to do so, or actually left the motor
vehicle. |
|
(4)
Subsection (1) does not apply to an occupant of a motor vehicle
where the occupant or any other occupant of the motor vehicle is a
person who came into possession of the firearm, prohibited weapon,
restricted weapon, prohibited device or prohibited ammunition by the
operation of law. |
Borrowed
firearm for sustenance |
(5)
Subsection (1) does not apply to an occupant of a motor vehicle
where the occupant or any other occupant of the motor vehicle is a
person who possesses a firearm that is neither a prohibited firearm
nor a restricted firearm and who is not the holder of a registration
certificate for the firearm if the person
(a) has borrowed the firearm;
(b) is the holder of a licence
under which the person may possess it; and
(c) is in possession of the firearm
to hunt or trap in order to sustain the person or the person’s
family.
R.S.,
1985, c. C-46, s. 94; 1995, c. 39, s. 139. |
|
95. (1)
Subject to subsection (3) and section 98, every person commits an
offence who, in any place, possesses a loaded prohibited firearm or
restricted firearm, or an unloaded prohibited firearm or restricted
firearm together with readily accessible ammunition that is capable
of being discharged in the firearm, unless the person is the holder
of
(a) an authorization or a licence
under which the person may possess the firearm in that place;
and
(b) the registration certificate
for the firearm. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years and to a minimum punishment of imprisonment for a term of one
year; or
(b) is guilty of an offence
punishable on summary conviction and liable to imprisonment for a
term not exceeding one year. |
|
(3)
Subsection (1) does not apply to a person who is using the firearm
under the direct and immediate supervision of another person who is
lawfully entitled to possess it and is using the firearm in a manner
in which that other person may lawfully use it.
R.S.,
1985, c. C-46, s. 95; 1991, c. 28, s. 8, c. 40, ss. 9, 37; 1993, c.
25, s. 93; 1995, c. 39, s. 139. |
|
96. (1)
Subject to subsection (3), every person commits an offence who
possesses a firearm, a prohibited weapon, a restricted weapon, a
prohibited device or any prohibited ammunition that the person knows
was obtained by the commission in Canada of an offence or by an act
or omission anywhere that, if it had occurred in Canada, would have
constituted an offence. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years and to a minimum punishment of imprisonment for a term of one
year; or
(b) is guilty of an offence
punishable on summary conviction and liable to imprisonment for a
term not exceeding one year. |
|
(3)
Subsection (1) does not apply to a person who comes into possession
of anything referred to in that subsection by the operation of law
and who lawfully disposes of it within a reasonable period after
acquiring possession of it.
R.S.,
1985, c. C-46, s. 96; 1995, c. 39, s. 139. |
|
97. [Not in
force]
R.S.,
1985, c. C-46, s. 97; 1991, c. 40, ss. 10, 38. |
|
98. (1) Every
person who, immediately before the coming into force of any of
subsections 91(1), 92(1), 93(1), 94(1) and 95(1), possessed a
firearm without a firearms acquisition certificate because
(a) the person possessed the
firearm before January 1, 1979, or
(b) the firearms acquisition
certificate under which the person had acquired the firearm had
expired,
shall be
deemed for the purposes of that subsection to be, until January 1,
2001 or such other earlier date as is prescribed, the holder of a
licence under which the person may possess the firearm. |
|
(2)
Every person who, immediately before the coming into force of any of
subsections 91(1), 92(1), 93(1), 94(1) and 95(1), possessed a
firearm and was the holder of a firearms acquisition certificate
shall be deemed for the purposes of that subsection to be, until
January 1, 2001 or such other earlier date as is prescribed, the
holder of a licence under which the person may possess the
firearm. |
Transitional
— registration certificates |
(3)
Every person who, at any particular time between the coming into
force of subsection 91(1), 92(1) or 94(1) and the later of January
1, 1998 and such other date as is prescribed, possesses a firearm
that, as of that particular time, is not a prohibited firearm or a
restricted firearm shall be deemed for the purposes of that
subsection to be, until January 1, 2003 or such other earlier date
as is prescribed, the holder of a registration certificate for that
firearm.
R.S.,
1985, c. C-46, s. 98; R.S., 1985, c. 27 (1st Supp.), s. 13; 1991, c.
40, s. 11; 1995, c. 39, s. 139. |
|
|
|
99. (1) Every
person commits an offence who
(a) manufactures or transfers,
whether or not for consideration, or
(b) offers to do anything referred
to in paragraph (a) in
respect of
a
firearm, a prohibited weapon, a restricted weapon, a prohibited
device, any ammunition or any prohibited ammunition knowing that the
person is not authorized to do so under the Firearms Act or any other Act of
Parliament or any regulations made under any Act of
Parliament. |
|
(2)
Every person who commits an offence under subsection (1) is guilty
of an indictable offence and liable to imprisonment for a term not
exceeding ten years and to a minimum punishment of imprisonment for
a term of one year.
R.S.,
1985, c. C-46, s. 99; 1995, c. 39, s. 139. |
|
100. (1)
Every person commits an offence who possesses a firearm, a
prohibited weapon, a restricted weapon, a prohibited device, any
ammunition or any prohibited ammunition for the purpose of
(a) transferring it, whether or not
for consideration, or
(b) offering to transfer it,
knowing
that the person is not authorized to transfer it under the Firearms Act or any other Act of
Parliament or any regulations made under any Act of
Parliament. |
|
(2)
Every person who commits an offence under subsection (1) is guilty
of an indictable offence and liable to imprisonment for a term not
exceeding ten years and to a minimum punishment of imprisonment for
a term of one year.
R.S.,
1985, c. C-46, s. 100; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27
(1st Supp.), ss. 14, 203, c. 27 (2nd Supp.), s. 10, c. 1 (4th
Supp.), s. 18(F); 1990, c. 16, s. 2, c. 17, s. 8; 1991, c. 40, s.
12; 1992, c. 51, s. 33; 1995, c. 22, ss. 10, 18(F), c. 39, s. 139;
1996, c. 19, s. 65. |
|
101. (1)
Every person commits an offence who transfers a firearm, a
prohibited weapon, a restricted weapon, a prohibited device, any
ammunition or any prohibited ammunition to any person otherwise than
under the authority of the Firearms
Act or any other Act of Parliament or any regulations made
under an Act of Parliament. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction.
R.S.,
1985, c. C-46, s. 101; 1991, c. 40, s. 13; 1995, c. 39, s.
139. |
|
|
|
102. (1)
Every person commits an offence who, without lawful excuse, alters a
firearm so that it is capable of, or manufactures or assembles any
firearm that is capable of, discharging projectiles in rapid
succession during one pressure of the trigger. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years and to a minimum punishment of imprisonment for a term of one
year; or
(b) is guilty of an offence
punishable on summary conviction and liable to imprisonment for a
term not exceeding one year.
R.S.,
1985, c. C-46, s. 102; R.S., 1985, c. 27 (1st Supp.), s. 203; 1991,
c. 28, s. 9, c. 40, s. 14; 1995, c. 39, s. 139. |
|
Export
and Import Offences |
|
103. (1)
Every person commits an offence who imports or exports
(a) a firearm, a prohibited weapon,
a restricted weapon, a prohibited device or any prohibited
ammunition, or
(b) any component or part designed
exclusively for use in the manufacture of or assembly into an
automatic firearm,
knowing
that the person is not authorized to do so under the Firearms Act or any other Act of
Parliament or any regulations made under an Act of
Parliament. |
|
(2)
Every person who commits an offence under subsection (1) is guilty
of an indictable offence and liable to imprisonment for a term not
exceeding ten years and to a minimum punishment of imprisonment for
a term of one year. |
Attorney
General of Canada may act |
(3)
Any proceedings in respect of an offence under subsection (1) may be
commenced at the instance of the Government of Canada and conducted
by or on behalf of that government.
R.S.,
1985, c. C-46, s. 103; 1991, c. 40, s. 15; 1995, c. 39, s.
139. |
|
104. (1)
Every person commits an offence who imports or exports
(a) a firearm, a prohibited weapon,
a restricted weapon, a prohibited device or any prohibited
ammunition, or
(b) any component or part designed
exclusively for use in the manufacture of or assembly into an
automatic firearm,
otherwise
than under the authority of the Firearms Act or any other Act of
Parliament or any regulations made under an Act of
Parliament. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction. |
Attorney
General of Canada may act |
(3)
Any proceedings in respect of an offence under subsection (1) may be
commenced at the instance of the Government of Canada and conducted
by or on behalf of that government.
R.S.,
1985, c. C-46, s. 104; 1991, c. 40, s. 16; 1995, c. 39, s.
139. |
|
Offences
relating to Lost, Destroyed or Defaced Weapons, etc. |
|
105. (1)
Every person commits an offence who
(a) having lost a firearm, a
prohibited weapon, a restricted weapon, a prohibited device, any
prohibited ammunition, an authorization, a licence or a registration
certificate, or having had it stolen from the person’s possession,
does not with reasonable despatch report the loss to a peace
officer, to a firearms officer or a chief firearms officer; or
(b) on finding a firearm, a
prohibited weapon, a restricted weapon, a prohibited device or any
prohibited ammunition that the person has reasonable grounds to
believe has been lost or abandoned, does not with reasonable
despatch deliver it to a peace officer, a firearms officer or a
chief firearms officer or report the finding to a peace officer, a
firearms officer or a chief firearms officer. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction.
R.S.,
1985, c. C-46, s. 105; 1991, c. 28, s. 10, c. 40, ss. 18, 39; 1994,
c. 44, s. 7; 1995, c. 39, s. 139. |
|
106. (1)
Every person commits an offence who
(a) after destroying any firearm,
prohibited weapon, restricted weapon, prohibited device or
prohibited ammunition, or
(b) on becoming aware of the
destruction of any firearm, prohibited weapon, restricted weapon,
prohibited device or prohibited ammunition that was in the person’s
possession before its destruction,
does not
with reasonable despatch report the destruction to a peace officer,
firearms officer or chief firearms officer. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction.
R.S.,
1985, c. C-46, s. 106; R.S., 1985, c. 27 (1st Supp.), s. 203; 1991,
c. 40, s. 19; 1995, c. 22, s. 10, c. 39, s. 139. |
|
107. (1)
Every person commits an offence who knowingly makes, before a peace
officer, firearms officer or chief firearms officer, a false report
or statement concerning the loss, theft or destruction of a firearm,
a prohibited weapon, a restricted weapon, a prohibited device, any
prohibited ammunition, an authorization, a licence or a registration
certificate. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction. |
Definition
of “report” or “statement” |
(3) In
this section, “report” or “statement” means an assertion of fact,
opinion, belief or knowledge, whether material or not and whether
admissible or not.
R.S.,
1985, c. C-46, s. 107; 1991, c. 40, s. 20; 1995, c. 39, s.
139. |
|
108. (1)
Every person commits an offence who, without lawful excuse, the
proof of which lies on the person,
(a) alters, defaces or removes a
serial number on a firearm; or
(b) possesses a firearm knowing
that the serial number on it has been altered, defaced or
removed. |
|
(2)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction. |
|
(3) No
person is guilty of an offence under paragraph (1)(b) by reason only of possessing a
firearm the serial number on which has been altered, defaced or
removed, where that serial number has been replaced and a
registration certificate in respect of the firearm has been issued
setting out a new serial number for the firearm. |
|
(4) In
proceedings for an offence under subsection (1), evidence that a
person possesses a firearm the serial number on which has been
wholly or partially obliterated otherwise than through normal use
over time is, in the absence of evidence to the contrary, proof that
the person possesses the firearm knowing that the serial number on
it has been altered, defaced or removed.
R.S.,
1985, c. C-46, s. 108; 1991, c. 40, s. 20; 1995, c. 39, s.
139. |
|
|
|
109. (1)
Where a person is convicted, or discharged under section 730, of
(a) an indictable offence in the
commission of which violence against a person was used, threatened
or attempted and for which the person may be sentenced to
imprisonment for ten years or more,
(b) an offence under subsection
85(1) (using firearm in commission of offence), subsection 85(2)
(using imitation firearm in commission of offence), 95(1)
(possession of prohibited or restricted firearm with ammunition),
99(1) (weapons trafficking), 100(1) (possession for purpose of
weapons trafficking), 102(1) (making automatic firearm), 103(1)
(importing or exporting knowing it is unauthorized) or section 264
(criminal harassment),
(c) an offence relating to the
contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the
Controlled Drugs and Substances
Act, or
(d) an offence that involves, or
the subject-matter of which is, a firearm, a cross-bow, a prohibited
weapon, a restricted weapon, a prohibited device, any ammunition,
any prohibited ammunition or an explosive substance and, at the time
of the offence, the person was prohibited by any order made under
this Act or any other Act of Parliament from possessing any such
thing,
the
court that sentences the person or directs that the person be
discharged, as the case may be, shall, in addition to any other
punishment that may be imposed for that offence or any other
condition prescribed in the order of discharge, make an order
prohibiting the person from possessing any firearm, cross-bow,
prohibited weapon, restricted weapon, prohibited device, ammunition,
prohibited ammunition and explosive substance during the period
specified in the order as determined in accordance with subsection
(2) or (3), as the case may be. |
Duration
of prohibition order — first offence |
(2) An
order made under subsection (1) shall, in the case of a first
conviction for or discharge from the offence to which the order
relates, prohibit the person from possessing
(a) any firearm, other than a
prohibited firearm or restricted firearm, and any crossbow,
restricted weapon, ammunition and explosive substance during the
period that
(i)
begins on the day on which the order is made, and
(ii)
ends not earlier than ten years after the person’s release from
imprisonment after conviction for the offence or, if the person is
not then imprisoned or subject to imprisonment, after the person’s
conviction for or discharge from the offence; and
(b) any prohibited firearm,
restricted firearm, prohibited weapon, prohibited device and
prohibited ammunition for life. |
Duration
of prohibition order — subsequent offences |
(3) An
order made under subsection (1) shall, in any case other than a case
described in subsection (2), prohibit the person from possessing any
firearm, cross-bow, restricted weapon, ammunition and explosive
substance for life. |
Definition
of “release from imprisonment” |
(4) In
subparagraph (2)(a)(ii),
“release from imprisonment” means release from confinement by reason
of expiration of sentence, commencement of statutory release or
grant of parole. |
Application
of ss. 113 to 117 |
(5)
Sections 113 to 117 apply in respect of every order made under
subsection (1).
R.S.,
1985, c. C-46, s. 109; R.S., 1985, c. 27 (1st Supp.), s. 185(F);
1991, c. 40, s. 21; 1995, c. 39, ss. 139, 190; 1996, c. 19, s. 65.1;
2003, c. 8, s. 4. |
|
110. (1)
Where a person is convicted, or discharged under section 730, of
(a) an offence, other than an
offence referred to in any of paragraphs 109(1)(a), (b) and (c), in the commission of which
violence against a person was used, threatened or attempted, or
(b) an offence that involves, or
the subject-matter of which is, a firearm, a cross-bow, a prohibited
weapon, a restricted weapon, a prohibited device, ammunition,
prohibited ammunition or an explosive substance and, at the time of
the offence, the person was not prohibited by any order made under
this Act or any other Act of Parliament from possessing any such
thing,
the
court that sentences the person or directs that the person be
discharged, as the case may be, shall, in addition to any other
punishment that may be imposed for that offence or any other
condition prescribed in the order of discharge, consider whether it
is desirable, in the interests of the safety of the person or of any
other person, to make an order prohibiting the person from
possessing any firearm, cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition, prohibited ammunition or
explosive substance, or all such things, and where the court decides
that it is so desirable, the court shall so order. |
Duration
of prohibition order |
(2) An
order made under subsection (1) against a person begins on the day
on which the order is made and ends not later than ten years after
the person’s release from imprisonment after conviction for the
offence to which the order relates or, if the person is not then
imprisoned or subject to imprisonment, after the person’s conviction
for or discharge from the offence. |
|
(3)
Where the court does not make an order under subsection (1), or
where the court does make such an order but does not prohibit the
possession of everything referred to in that subsection, the court
shall include in the record a statement of the court’s reasons for
not doing so. |
Definition
of “release from imprisonment” |
(4) In
subsection (2), “release from imprisonment” means release from
confinement by reason of expiration of sentence, commencement of
statutory release or grant of parole. |
Application
of ss. 113 to 117 |
(5)
Sections 113 to 117 apply in respect of every order made under
subsection (1).
R.S.,
1985, c. C-46, s. 110; 1991, c. 40, ss. 23, 40; 1995, c. 39, ss.
139, 190. |
|
111. (1) A
peace officer, firearms officer or chief firearms officer may apply
to a provincial court judge for an order prohibiting a person from
possessing any firearm, cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition, prohibited ammunition or
explosive substance, or all such things, where the peace officer,
firearms officer or chief firearms officer believes on reasonable
grounds that it is not desirable in the interests of the safety of
the person against whom the order is sought or of any other person
that the person against whom the order is sought should possess any
such thing. |
Date
for hearing and notice |
(2) On
receipt of an application made under subsection (1), the provincial
court judge shall fix a date for the hearing of the application and
direct that notice of the hearing be given, in such manner as the
provincial court judge may specify, to the person against whom the
order is sought. |
|
(3)
Subject to subsection (4), at the hearing of an application made
under subsection (1), the provincial court judge shall hear all
relevant evidence presented by or on behalf of the applicant and the
person against whom the order is sought. |
Where
hearing may proceed ex parte
|
(4) A
provincial court judge may proceed ex parte to hear and determine an
application made under subsection (1) in the absence of the person
against whom the order is sought in the same circumstances as those
in which a summary conviction court may, under Part XXVII, proceed
with a trial in the absence of the defendant. |
|
(5)
Where, at the conclusion of a hearing of an application made under
subsection (1), the provincial court judge is satisfied that the
circumstances referred to in that subsection exist, the provincial
court judge shall make an order prohibiting the person from
possessing any firearm, cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition, prohibited ammunition or
explosive substance, or all such things, for such period, not
exceeding five years, as is specified in the order, beginning on the
day on which the order is made. |
|
(6)
Where a provincial court judge does not make an order under
subsection (1), or where a provincial court judge does make such an
order but does not prohibit the possession of everything referred to
in that subsection, the provincial court judge shall include in the
record a statement of the court’s reasons. |
Application
of ss. 113 to 117 |
(7)
Sections 113 to 117 apply in respect of every order made under
subsection (5). |
Appeal
by person or Attorney General |
(8)
Where a provincial court judge makes an order under subsection (5),
the person to whom the order relates, or the Attorney General, may
appeal to the superior court against the order. |
Appeal
by Attorney General |
(9)
Where a provincial court judge does not make an order under
subsection (5), the Attorney General may appeal to the superior
court against the decision not to make an order. |
Application
of Part XXVII to appeals |
(10)
The provisions of Part XXVII, except sections 785 to 812, 816 to 819
and 829 to 838, apply in respect of an appeal made under subsection
(8) or (9), with such modifications as the circumstances require and
as if each reference in that Part to the appeal court were a
reference to the superior court. |
Definition
of “provincial court judge” |
(11)
In this section and sections 112, 117.011 and 117.012, “provincial
court judge” means a provincial court judge having jurisdiction in
the territorial division where the person against whom the
application for an order was brought resides.
R.S.,
1985, c. C-46, s. 111; 1991, c. 40, s. 24; 1995, c. 39, s.
139. |
|
112. A
provincial court judge may, on application by the person against
whom an order is made under subsection 111(5), revoke the order if
satisfied that the circumstances for which it was made have ceased
to exist.
R.S.,
1985, c. C-46, s. 112; R.S., 1985, c. 27 (1st Supp.), s. 203; 1991,
c. 40, s. 26; 1995, c. 39, s. 139. |
|
113. (1)
Where a person who is or will be a person against whom a prohibition
order is made establishes to the satisfaction of a competent
authority that
(a) the person needs a firearm or
restricted weapon to hunt or trap in order to sustain the person or
the person’s family, or
(b) a prohibition order against the
person would constitute a virtual prohibition against employment in
the only vocation open to the person,
the
competent authority may, notwithstanding that the person is or will
be subject to a prohibition order, make an order authorizing a chief
firearms officer or the Registrar to issue, in accordance with such
terms and conditions as the competent authority considers
appropriate, an authorization, a licence or a registration
certificate, as the case may be, to the person for sustenance or
employment purposes. |
|
(2) A
competent authority may make an order under subsection (1) only
after taking the following factors into account:
(a) the criminal record, if any, of
the person;
(b) the nature and circumstances of
the offence, if any, in respect of which the prohibition order was
or will be made; and
(c) the safety of the person and of
other persons. |
|
(3)
Where an order is made under subsection (1),
(a) an authorization, a licence or
a registration certificate may not be denied to the person in
respect of whom the order was made solely on the basis of a
prohibition order against the person or the commission of an offence
in respect of which a prohibition order was made against the person;
and
(b) an authorization and a licence
may, for the duration of the order, be issued to the person in
respect of whom the order was made only for sustenance or employment
purposes and, where the order sets out terms and conditions, only in
accordance with those terms and conditions, but, for greater
certainty, the authorization or licence may also be subject to terms
and conditions set by the chief firearms officer that are not
inconsistent with the purpose for which it is issued and any terms
and conditions set out in the order. |
|
(4)
For greater certainty, an order under subsection (1) may be made
during proceedings for an order under subsection 109(1), 110(1),
111(5), 117.05(4) or 515(2), paragraph 732.1(3)(d) or subsection 810(3). |
Meaning
of “competent authority” |
(5) In
this section, “competent authority” means the competent authority
that made or has jurisdiction to make the prohibition order.
R.S.,
1985, c. C-46, s. 113; 1991, c. 40, s. 27(E); 1995, c. 22, s. 10, c.
39, ss. 139, 190. |
|
114. A
competent authority that makes a prohibition order against a person
may, in the order, require the person to surrender to a peace
officer, a firearms officer or a chief firearms officer
(a) any thing the possession of
which is prohibited by the order that is in the possession of the
person on the commencement of the order, and
(b) every authorization, licence
and registration certificate relating to any thing the possession of
which is prohibited by the order that is held by the person on the
commencement of the order,
and
where the competent authority does so, it shall specify in the order
a reasonable period for surrendering such things and documents and
during which section 117.01 does not apply to that person.
R.S.,
1985, c. C-46, s. 114; R.S., 1985, c. 27 (1st Supp.), s. 203; 1995,
c. 22, s. 10, c. 39, s. 139. |
|
115. (1)
Unless a prohibition order against a person specifies otherwise,
every thing the possession of which is prohibited by the order that,
on the commencement of the order, is in the possession of the person
is forfeited to Her Majesty. |
|
(1.1)
Subsection (1) does not apply in respect of an order made under
section 515. |
|
(2)
Every thing forfeited to Her Majesty under subsection (1) shall be
disposed of or otherwise dealt with as the Attorney General
directs.
R.S.,
1985, c. C-46, s. 115; 1995, c. 39, s. 139; 2003, c. 8, s.
5. |
|
116. (1)
Subject to subsection (2), every authorization, licence and
registration certificate relating to any thing the possession of
which is prohibited by a prohibition order and issued to a person
against whom the prohibition order is made is, on the commencement
of the prohibition order, revoked, or amended, as the case may be,
to the extent of the prohibitions in the order. |
Duration
of revocation or amendment — orders under section 515 |
(2) An
authorization, a licence and a registration certificate relating to
a thing the possession of which is prohibited by an order made under
section 515 is revoked, or amended, as the case may be, only in
respect of the period during which the order is in force.
R.S.,
1985, c. C-46, s. 116; 1991, c. 28, s. 11, c. 40, ss. 28, 41; 1995,
c. 39, s. 139; 2003, c. 8, s. 6. |
|
117. Where
the competent authority that makes a prohibition order or that would
have had jurisdiction to make the order is, on application for an
order under this section, satisfied that a person, other than the
person against whom a prohibition order was or will be made,
(a) is the owner of any thing that
is or may be forfeited to Her Majesty under subsection 115(1) and is
lawfully entitled to possess it, and
(b) in the case of a prohibition
order under subsection 109(1) or 110(1), had no reasonable grounds
to believe that the thing would or might be used in the commission
of the offence in respect of which the prohibition order was
made,
the
competent authority shall order that the thing be returned to the
owner or the proceeds of any sale of the thing be paid to that owner
or, if the thing was destroyed, that an amount equal to the value of
the thing be paid to the owner.
R.S.,
1985, c. C-46, s. 117; 1991, c. 40, s. 29; 1995, c. 39, s.
139. |
|
117.01 (1)
Subject to subsection (4), every person commits an offence who
possesses a firearm, a cross-bow, a prohibited weapon, a restricted
weapon, a prohibited device, any ammunition, any prohibited
ammunition or an explosive substance while the person is prohibited
from doing so by any order made under this Act or any other Act of
Parliament. |
Failure
to surrender authorization, etc. |
(2)
Every person commits an offence who wilfully fails to surrender to a
peace officer, a firearms officer or a chief firearms officer any
authorization, licence or registration certificate held by the
person when the person is required to do so by any order made under
this Act or any other Act of Parliament. |
|
(3)
Every person who commits an offence under subsection (1) or (2)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years; or
(b) is guilty of an offence
punishable on summary conviction. |
|
(4)
Subsection (1) does not apply to a person who possessed a firearm in
accordance with an authorization or licence issued to the person as
the result of an order made under subsection 113(1).
1995,
c. 39, s. 139. |
|
|
|
117.011 (1) A
peace officer, firearms officer or chief firearms officer may apply
to a provincial court judge for an order under this section where
the peace officer, firearms officer or chief firearms officer
believes on reasonable grounds that
(a) the person against whom the
order is sought cohabits with, or is an associate of, another person
who is prohibited by any order made under this Act or any other Act
of Parliament from possessing any firearm, cross-bow, prohibited
weapon, restricted weapon, prohibited device, ammunition, prohibited
ammunition or explosive substance, or all such things; and
(b) the other person would or might
have access to any such thing that is in the possession of the
person against whom the order is sought. |
Date
for hearing and notice |
(2) On
receipt of an application made under subsection (1), the provincial
court judge shall fix a date for the hearing of the application and
direct that notice of the hearing be given, in such manner as the
provincial court judge may specify, to the person against whom the
order is sought. |
|
(3)
Subject to subsection (4), at the hearing of an application made
under subsection (1), the provincial court judge shall hear all
relevant evidence presented by or on behalf of the applicant and the
person against whom the order is sought. |
Where
hearing may proceed ex parte
|
(4) A
provincial court judge may proceed ex parte to hear and determine an
application made under subsection (1) in the absence of the person
against whom the order is sought in the same circumstances as those
in which a summary conviction court may, under Part XXVII, proceed
with a trial in the absence of the defendant. |
|
(5)
Where, at the conclusion of a hearing of an application made under
subsection (1), the provincial court judge is satisfied that the
circumstances referred to in that subsection exist, the provincial
court judge shall make an order in respect of the person against
whom the order was sought imposing such terms and conditions on the
person’s use and possession of anything referred to in subsection
(1) as the provincial court judge considers appropriate. |
|
(6) In
determining terms and conditions under subsection (5), the
provincial court judge shall impose terms and conditions that are
the least intrusive as possible, bearing in mind the purpose of the
order. |
Appeal
by person or Attorney General |
(7)
Where a provincial court judge makes an order under subsection (5),
the person to whom the order relates, or the Attorney General, may
appeal to the superior court against the order. |
Appeal
by Attorney General |
(8)
Where a provincial court judge does not make an order under
subsection (5), the Attorney General may appeal to the superior
court against the decision not to make an order. |
Application
of Part XXVII to appeals |
(9)
The provisions of Part XXVII, except sections 785 to 812, 816 to 819
and 829 to 838, apply in respect of an appeal made under subsection
(7) or (8), with such modifications as the circumstances require and
as if each reference in that Part to the appeal court were a
reference to the superior court.
1995,
c. 39, s. 139. |
|
117.012 A
provincial court judge may, on application by the person against
whom an order is made under subsection 117.011(5), revoke the order
if satisfied that the circumstances for which it was made have
ceased to exist.
1995,
c. 39, s. 139. |
|
|
|
117.02 (1)
Where a peace officer believes on reasonable grounds
(a) that a weapon, an imitation
firearm, a prohibited device, any ammunition, any prohibited
ammunition or an explosive substance was used in the commission of
an offence, or
(b) that an offence is being
committed, or has been committed, under any provision of this Act
that involves, or the subject-matter of which is, a firearm, an
imitation firearm, a cross-bow, a prohibited weapon, a restricted
weapon, a prohibited device, ammunition, prohibited ammunition or an
explosive substance,
and
evidence of the offence is likely to be found on a person, in a
vehicle or in any place or premises other than a dwelling-house, the
peace officer may, where the conditions for obtaining a warrant
exist but, by reason of exigent circumstances, it would not be
practicable to obtain a warrant, search, without warrant, the
person, vehicle, place or premises, and seize any thing by means of
or in relation to which that peace officer believes on reasonable
grounds the offence is being committed or has been
committed. |
Disposition
of seized things |
(2)
Any thing seized pursuant to subsection (1) shall be dealt with in
accordance with sections 490 and 491.
1995,
c. 39, s. 139. |
|
117.03 (1)
Notwithstanding section 117.02, a peace officer who finds
(a) a person in possession of a
firearm who fails, on demand, to produce, for inspection by the
peace officer, an authorization or a licence under which the person
may lawfully possess the firearm and a registration certificate for
the firearm, or
(b) a person in possession of a
prohibited weapon, a restricted weapon, a prohibited device or any
prohibited ammunition who fails, on demand, to produce, for
inspection by the peace officer, an authorization or a licence under
which the person may lawfully possess it,
may
seize the firearm, prohibited weapon, restricted weapon, prohibited
device or prohibited ammunition unless its possession by the person
in the circumstances in which it is found is authorized by any
provision of this Part, or the person is under the direct and
immediate supervision of another person who may lawfully possess
it. |
Return
of seized thing on production of authorization |
(2)
Where a person from whom any thing is seized pursuant to subsection
(1) claims the thing within fourteen days after the seizure and
produces for inspection by the peace officer by whom it was seized,
or any other peace officer having custody of it,
(a) an authorization or a licence
under which the person is lawfully entitled to possess it, and
(b) in the case of a firearm, a
registration certificate for the firearm,
the
thing shall forthwith be returned to that person. |
Forfeiture
of seized thing |
(3)
Where any thing seized pursuant to subsection (1) is not claimed and
returned as and when provided by subsection (2), a peace officer
shall forthwith take the thing before a provincial court judge, who
may, after affording the person from whom it was seized or its
owner, if known, an opportunity to establish that the person is
lawfully entitled to possess it, declare it to be forfeited to Her
Majesty, to be disposed of or otherwise dealt with as the Attorney
General directs.
1995,
c. 39, s. 139. |
|
117.04 (1)
Where, pursuant to an application made by a peace officer with
respect to any person, a justice is satisfied by information on oath
that there are reasonable grounds to believe that the person
possesses a weapon, a prohibited device, ammunition, prohibited
ammunition or an explosive substance in a building, receptacle or
place and that it is not desirable in the interests of the safety of
the person, or of any other person, for the person to possess the
weapon, prohibited device, ammunition, prohibited ammunition or
explosive substance, the justice may issue a warrant authorizing a
peace officer to search the building, receptacle or place and seize
any such thing, and any authorization, licence or registration
certificate relating to any such thing, that is held by or in the
possession of the person. |
Search
and seizure without warrant |
(2)
Where, with respect to any person, a peace officer is satisfied that
there are reasonable grounds to believe that it is not desirable, in
the interests of the safety of the person or any other person, for
the person to possess any weapon, prohibited device, ammunition,
prohibited ammunition or explosive substance, the peace officer may,
where the grounds for obtaining a warrant under subsection (1) exist
but, by reason of a possible danger to the safety of that person or
any other person, it would not be practicable to obtain a warrant,
search for and seize any such thing, and any authorization, licence
or registration certificate relating to any such thing, that is held
by or in the possession of the person. |
|
(3) A
peace officer who executes a warrant referred to in subsection (1)
or who conducts a search without a warrant under subsection (2)
shall forthwith make a return to the justice who issued the warrant
or, if no warrant was issued, to a justice who might otherwise have
issued a warrant, showing
(a) in the case of an execution of
a warrant, the things or documents, if any, seized and the date of
execution of the warrant; and
(b) in the case of a search
conducted without a warrant, the grounds on which it was concluded
that the peace officer was entitled to conduct the search, and the
things or documents, if any, seized. |
Authorizations,
etc., revoked |
(4)
Where a peace officer who seizes any thing under subsection (1) or
(2) is unable at the time of the seizure to seize an authorization
or a licence under which the person from whom the thing was seized
may possess the thing and, in the case of a seized firearm, a
registration certificate for the firearm, every authorization,
licence and registration certificate held by the person is, as at
the time of the seizure, revoked.
1995,
c. 39, s. 139; 2004, c. 12, s. 3. |
|
117.05 (1)
Where any thing or document has been seized under subsection
117.04(1) or (2), the justice who issued the warrant authorizing the
seizure or, if no warrant was issued, a justice who might otherwise
have issued a warrant, shall, on application for an order for the
disposition of the thing or document so seized made by a peace
officer within thirty days after the date of execution of the
warrant or of the seizure without a warrant, as the case may be, fix
a date for the hearing of the application and direct that notice of
the hearing be given to such persons or in such manner as the
justice may specify. |
|
(2) A
justice may proceed ex parte
to hear and determine an application made under subsection (1) in
the absence of the person from whom the thing or document was seized
in the same circumstances as those in which a summary conviction
court may, under Part XXVII, proceed with a trial in the absence of
the defendant. |
|
(3) At
the hearing of an application made under subsection (1), the justice
shall hear all relevant evidence, including evidence respecting the
value of the thing in respect of which the application was
made. |
Forfeiture
and prohibition order on finding |
(4)
Where, following the hearing of an application made under subsection
(1), the justice finds that it is not desirable in the interests of
the safety of the person from whom the thing was seized or of any
other person that the person should possess any weapon, prohibited
device, ammunition, prohibited ammunition and explosive substance,
or any such thing, the justice shall
(a) order that any thing seized be
forfeited to Her Majesty or be otherwise disposed of; and
(b) where the justice is satisfied
that the circumstances warrant such an action, order that the
possession by that person of any weapon, prohibited device,
ammunition, prohibited ammunition and explosive substance, or of any
such thing, be prohibited during any period, not exceeding five
years, that is specified in the order, beginning on the making of
the order. |
|
(5)
Where a justice does not make an order under subsection (4), or
where a justice does make such an order but does not prohibit the
possession of all of the things referred to in that subsection, the
justice shall include in the record a statement of the justice’s
reasons. |
Application
of ss. 113 to 117 |
(6)
Sections 113 to 117 apply in respect of every order made under
subsection (4). |
|
(7)
Where a justice makes an order under subsection (4) in respect of a
person, or in respect of any thing that was seized from a person,
the person may appeal to the superior court against the
order. |
Appeal
by Attorney General |
(8)
Where a justice does not make a finding as described in subsection
(4) following the hearing of an application under subsection (1), or
makes the finding but does not make an order to the effect described
in paragraph (4)(b), the
Attorney General may appeal to the superior court against the
failure to make the finding or to make an order to the effect so
described. |
Application
of Part XXVII to appeals |
(9)
The provisions of Part XXVII, except sections 785 to 812, 816 to 819
and 829 to 838, apply in respect of an appeal made under subsection
(7) or (8) with such modifications as the circumstances require and
as if each reference in that Part to the appeal court were a
reference to the superior court.
1995,
c. 39, s. 139. |
|
117.06 (1)
Any thing or document seized pursuant to subsection 117.04(1) or (2)
shall be returned to the person from whom it was seized if
(a) no application is made under
subsection 117.05(1) within thirty days after the date of execution
of the warrant or of the seizure without a warrant, as the case may
be; or
(b) an application is made under
subsection 117.05(1) within the period referred to in paragraph
(a), and the justice does
not make a finding as described in subsection 117.05(4). |
Restoration
of authorizations |
(2)
Where, pursuant to subsection (1), any thing is returned to the
person from whom it was seized and an authorization, a licence or a
registration certificate, as the case may be, is revoked pursuant to
subsection 117.04(4), the justice referred to in paragraph (1)(b) may order that the revocation
be reversed and that the authorization, licence or registration
certificate be restored.
1995,
c. 39, s. 139. |
|
|
|
117.07 (1)
Notwithstanding any other provision of this Act, but subject to
section 117.1, no public officer is guilty of an offence under this
Act or the Firearms Act by
reason only that the public officer
(a) possesses a firearm, a
prohibited weapon, a restricted weapon, a prohibited device, any
prohibited ammunition or an explosive substance in the course of or
for the purpose of the public officer’s duties or employment;
(b) manufactures or transfers, or
offers to manufacture or transfer, a firearm, a prohibited weapon, a
restricted weapon, a prohibited device, any ammunition or any
prohibited ammunition in the course of the public officer’s duties
or employment;
(c) exports or imports a firearm, a
prohibited weapon, a restricted weapon, a prohibited device or any
prohibited ammunition in the course of the public officer’s duties
or employment;
(d) exports or imports a component
or part designed exclusively for use in the manufacture of or
assembly into an automatic firearm in the course of the public
officer’s duties or employment;
(e) in the course of the public
officer’s duties or employment, alters a firearm so that it is
capable of, or manufactures or assembles any firearm with intent to
produce a firearm that is capable of, discharging projectiles in
rapid succession during one pressure of the trigger;
(f) fails to report the loss, theft
or finding of any firearm, prohibited weapon, restricted weapon,
prohibited device, ammunition, prohibited ammunition or explosive
substance that occurs in the course of the public officer’s duties
or employment or the destruction of any such thing in the course of
the public officer’s duties or employment; or
(g) alters a serial number on a
firearm in the course of the public officer’s duties or
employment. |
Definition
of “public officer” |
(2) In
this section, “public officer” means
(a) a peace officer;
(b) a member of the Canadian Forces
or of the armed forces of a state other than Canada who is attached
or seconded to any of the Canadian Forces;
(c) an operator of a museum
established by the Chief of the Defence Staff or a person employed
in any such museum;
(d) a member of a cadet
organization under the control and supervision of the Canadian
Forces;
(e) a person training to become a
police officer or a peace officer under the control and supervision
of
(i) a
police force, or
(ii) a
police academy or similar institution designated by the Attorney
General of Canada or the lieutenant governor in council of a
province;
(f) a member of a visiting force,
within the meaning of section 2 of the Visiting Forces Act, who is
authorized under paragraph 14(a) of that Act to possess and
carry explosives, ammunition and firearms;
(g) a person, or member of a class
of persons, employed in the federal public administration or by the
government of a province or municipality who is prescribed to be a
public officer; or
(h) the Commissioner of Firearms,
the Registrar, a chief firearms officer, any firearms officer and
any person designated under section 100 of the Firearms Act.
1995,
c. 39, s. 139; 2003, c. 8, s. 7, c. 22, s. 224(E). |
|
117.08
Notwithstanding any other provision of this Act, but subject to
section 117.1, no individual is guilty of an offence under this Act
or the Firearms Act by
reason only that the individual
(a) possesses a firearm, a
prohibited weapon, a restricted weapon, a prohibited device, any
prohibited ammunition or an explosive substance,
(b) manufactures or transfers, or
offers to manufacture or transfer, a firearm, a prohibited weapon, a
restricted weapon, a prohibited device, any ammunition or any
prohibited ammunition,
(c) exports or imports a firearm, a
prohibited weapon, a restricted weapon, a prohibited device or any
prohibited ammunition,
(d) exports or imports a component
or part designed exclusively for use in the manufacture of or
assembly into an automatic firearm,
(e) alters a firearm so that it is
capable of, or manufactures or assembles any firearm with intent to
produce a firearm that is capable of, discharging projectiles in
rapid succession during one pressure of the trigger,
(f) fails to report the loss, theft
or finding of any firearm, prohibited weapon, restricted weapon,
prohibited device, ammunition, prohibited ammunition or explosive
substance or the destruction of any such thing, or
(g) alters a serial number on a
firearm,
if the
individual does so on behalf of, and under the authority of, a
police force, the Canadian Forces, a visiting force, within the
meaning of section 2 of the Visiting Forces Act, or a
department of the Government of Canada or of a province.
1995,
c. 39, s. 139. |
|
117.09 (1)
Notwithstanding any other provision of this Act, but subject to
section 117.1, no individual who is the holder of a licence to
possess and acquire restricted firearms and who is employed by a
business as defined in subsection 2(1) of the Firearms Act that itself is the
holder of a licence that authorizes the business to carry out
specified activities in relation to prohibited firearms, prohibited
weapons, prohibited devices or prohibited ammunition is guilty of an
offence under this Act or the Firearms Act by reason only that
the individual, in the course of the individual’s duties or
employment in relation to those specified activities,
(a) possesses a prohibited firearm,
a prohibited weapon, a prohibited device or any prohibited
ammunition;
(b) manufactures or transfers, or
offers to manufacture or transfer, a prohibited weapon, a prohibited
device or any prohibited ammunition;
(c) alters a firearm so that it is
capable of, or manufactures or assembles any firearm with intent to
produce a firearm that is capable of, discharging projectiles in
rapid succession during one pressure of the trigger; or
(d) alters a serial number on a
firearm. |
Employees
of business with licence |
(2)
Notwithstanding any other provision of this Act, but subject to
section 117.1, no individual who is employed by a business as
defined in subsection 2(1) of the Firearms Act that itself is the
holder of a licence is guilty of an offence under this Act or the
Firearms Act by reason only
that the individual, in the course of the individual’s duties or
employment, possesses, manufactures or transfers, or offers to
manufacture or transfer, a partially manufactured barrelled weapon
that, in its unfinished state, is not a barrelled weapon from which
any shot, bullet or other projectile can be discharged and that is
capable of causing serious bodily injury or death to a
person. |
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(3)
Notwithstanding any other provision of this Act, but subject to
section 117.1, no individual who is employed by a carrier, as
defined in subsection 2(1) of the Firearms Act, is guilty of an
offence under this Act or that Act by reason only that the
individual, in the course of the individual’s duties or employment,
possesses any firearm, cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition or prohibited ammunition or
transfers, or offers to transfer any such thing. |
Employees
of museums handling functioning imitation antique
firearm |
(4)
Notwithstanding any other provision of this Act, but subject to
section 117.1, no individual who is employed by a museum as defined
in subsection 2(1) of the Firearms
Act that itself is the holder of a licence is guilty of an
offence under this Act or the Firearms Act by reason only that
the individual, in the course of the individual’s duties or
employment, possesses or transfers a firearm that is designed or
intended to exactly resemble, or to resemble with near precision, an
antique firearm if the individual has been trained to handle and use
such a firearm. |
Employees
of museums handling firearms generally |
(5)
Notwithstanding any other provision of this Act, but subject to
section 117.1, no individual who is employed by a museum as defined
in subsection 2(1) of the Firearms
Act that itself is the holder of a licence is guilty of an
offence under this Act or the Firearms Act by reason only that
the individual possesses or transfers a firearm in the course of the
individual’s duties or employment if the individual is designated,
by name, by a provincial minister within the meaning of subsection
2(1) of the Firearms
Act. |
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(6) A
provincial minister shall not designate an individual for the
purpose of subsection (5) where it is not desirable, in the
interests of the safety of any person, to designate the
individual. |
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(7) A
provincial minister may attach to a designation referred to in
subsection (5) any reasonable condition that the provincial minister
considers desirable in the particular circumstances and in the
interests of the safety of any person.
1995,
c. 39, s. 139. |
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117.1
Sections 117.07 to 117.09 do not apply if the public officer or the
individual is subject to a prohibition order and acts contrary to
that order or to an authorization or a licence issued under the
authority of an order made under subsection 113(1).
1995,
c. 39, s. 139. |
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|
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117.11 Where,
in any proceedings for an offence under any of sections 89, 90, 91,
93, 97, 101, 104 and 105, any question arises as to whether a person
is the holder of an authorization, a licence or a registration
certificate, the onus is on the accused to prove that the person is
the holder of the authorization, licence or registration
certificate.
1995,
c. 39, s. 139. |
|
117.12 (1) In
any proceedings under this Act or any other Act of Parliament, a
document purporting to be an authorization, a licence or a
registration certificate is evidence of the statements contained
therein. |
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(2) In
any proceedings under this Act or any other Act of Parliament, a
copy of any authorization, licence or registration certificate is,
if certified as a true copy by the Registrar or a chief firearms
officer, admissible in evidence and, in the absence of evidence to
the contrary, has the same probative force as the authorization,
licence or registration certificate would have had if it had been
proved in the ordinary way.
1995,
c. 39, s. 139. |
|
117.13 (1) A
certificate purporting to be signed by an analyst stating that the
analyst has analyzed any weapon, prohibited device, ammunition,
prohibited ammunition or explosive substance, or any part or
component of such a thing, and stating the results of the analysis
is evidence in any proceedings in relation to any of those things
under this Act or under section 19 of the Export and Import Permits Act in
relation to subsection 15(2) of that Act without proof of the
signature or official character of the person appearing to have
signed the certificate. |
|
(2)
The party against whom a certificate of an analyst is produced may,
with leave of the court, require the attendance of the analyst for
the purposes of cross-examination. |
Notice
of intention to produce certificate |
(3) No
certificate of an analyst may be admitted in evidence unless the
party intending to produce it has, before the trial, given to the
party against whom it is intended to be produced reasonable notice
of that intention together with a copy of the certificate. |
|
(4)
For the purposes of this Act, service of a certificate of an analyst
may be proved by oral evidence given under oath by, or by the
affidavit or solemn declaration of, the person claiming to have
served it. |
Attendance
for examination |
(5)
Notwithstanding subsection (4), the court may require the person who
appears to have signed an affidavit or solemn declaration referred
to in that subsection to appear before it for examination or
cross-examination in respect of the issue of proof of service.
1995,
c. 39, s. 139. |
|
117.14 (1)
The Governor in Council may, by order, declare for any purpose
referred to in subsection (2) any period as an amnesty period with
respect to any weapon, prohibited device, prohibited ammunition,
explosive substance or component or part designed exclusively for
use in the manufacture of or assembly into an automatic
firearm. |
Purposes
of amnesty period |
(2) An
order made under subsection (1) may declare an amnesty period for
the purpose of
(a) permitting any person in
possession of any thing to which the order relates to do anything
provided in the order, including, without restricting the generality
of the foregoing, delivering the thing to a peace officer, a
firearms officer or a chief firearms officer, registering it,
destroying it or otherwise disposing of it; or
(b) permitting alterations to be
made to any prohibited firearm, prohibited weapon, prohibited device
or prohibited ammunition to which the order relates so that it no
longer qualifies as a prohibited firearm, a prohibited weapon, a
prohibited device or prohibited ammunition, as the case may
be. |
Reliance
on amnesty period |
(3) No
person who, during an amnesty period declared by an order made under
subsection (1) and for a purpose described in the order, does
anything provided for in the order, is, by reason only of the fact
that the person did that thing, guilty of an offence under this
Part. |
Proceedings
are a nullity |
(4)
Any proceedings taken under this Part against any person for
anything done by the person in reliance of this section are a
nullity.
1995,
c. 39, s. 139. |
|
117.15 (1)
Subject to subsection (2), the Governor in Council may make
regulations prescribing anything that by this Part is to be or may
be prescribed. |
|
(2) In
making regulations, the Governor in Council may not prescribe any
thing to be a prohibited firearm, a restricted firearm, a prohibited
weapon, a restricted weapon, a prohibited device or prohibited
ammunition if, in the opinion of the Governor in Council, the thing
to be prescribed is reasonable for use in Canada for hunting or
sporting purposes.
1995,
c. 39, s. 139. |
|
PART
IV
OFFENCES AGAINST THE
ADMINISTRATION OF LAW AND JUSTICE |
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|
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118. In this
Part, |
“evidence” or “statement”
« témoignage », « déposition » ou « déclaration » |
“evidence” or “statement”
means an assertion of fact, opinion, belief or knowledge, whether
material or not and whether admissible or not; |
“government”
« gouvernement » |
“government” means
(a) the Government of Canada,
(b) the government of a province,
or
(c) Her Majesty in right of Canada
or a province; |
“judicial proceeding”
« procédure
judiciaire » |
“judicial proceeding”
means a proceeding
(a) in or under the authority of a
court of justice,
(b) before the Senate or House of
Commons or a committee of the Senate or House of Commons, or before
a legislative council, legislative assembly or house of assembly or
a committee thereof that is authorized by law to administer an
oath,
(c) before a court, judge, justice,
provincial court judge or coroner,
(d) before an arbitrator or umpire,
or a person or body of persons authorized by law to make an inquiry
and take evidence therein under oath, or
(e) before a tribunal by which a
legal right or legal liability may be established,
whether or not the
proceeding is invalid for want of jurisdiction or for any other
reason; |
“office”
« charge » ou « emploi » |
“office” includes
(a) an office or appointment under
the government,
(b) a civil or military commission,
and
(c) a position or an employment in
a public department; |
“official”
« fonctionnaire » |
“official” means a person
who
(a) holds an office, or
(b) is appointed to discharge a
public duty; |
|
“witness” means a person
who gives evidence orally under oath or by affidavit in a judicial
proceeding, whether or not he is competent to be a witness, and
includes a child of tender years who gives evidence but does not
give it under oath, because, in the opinion of the person presiding,
the child does not understand the nature of an oath.
R.S.,
1985, c. C-46, s. 118; R.S., 1985, c. 27 (1st Supp.), ss. 15,
203. |
|
Corruption
and Disobedience |
|
119. (1)
Every one who
(a) being the holder of a judicial
office, or being a member of Parliament or of the legislature of a
province, corruptly
(i)
accepts or obtains,
(ii)
agrees to accept, or
(iii)
attempts to obtain,
any
money, valuable consideration, office, place or employment for
himself or another person in respect of anything done or omitted or
to be done or omitted by him in his official capacity, or
(b) gives or offers, corruptly, to
a person mentioned in paragraph (a) any money, valuable
consideration, office, place or employment in respect of anything
done or omitted or to be done or omitted by him in his official
capacity for himself or another person,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years. |
Consent
of Attorney General |
(2) No
proceedings against a person who holds a judicial office shall be
instituted under this section without the consent in writing of the
Attorney General of Canada.
R.S.,
c. C-34, s. 108. |
|
120. Every
one who
(a) being a justice, police
commissioner, peace officer, public officer or officer of a juvenile
court, or being employed in the administration of criminal law,
corruptly
(i)
accepts or obtains,
(ii)
agrees to accept, or
(iii)
attempts to obtain,
for
himself or any other person any money, valuable consideration,
office, place or employment with intent
(iv)
to interfere with the administration of justice,
(v) to
procure or facilitate the commission of an offence, or
(vi)
to protect from detection or punishment a person who has committed
or who intends to commit an offence, or
(b) gives or offers, corruptly, to
a person mentioned in paragraph (a) any money, valuable
consideration, office, place or employment with intent that the
person should do anything mentioned in subparagraph (a)(iv), (v) or (vi),
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
c. C-34, s. 109. |
|
121. (1)
Every one commits an offence who
(a) directly or indirectly
(i)
gives, offers or agrees to give or offer to an official or to any
member of his family, or to any one for the benefit of an official,
or
(ii)
being an official, demands, accepts or offers or agrees to accept
from any person for himself or another person,
a
loan, reward, advantage or benefit of any kind as consideration for
cooperation, assistance, exercise of influence or an act or omission
in connection with
(iii)
the transaction of business with or any matter of business relating
to the government, or
(iv) a
claim against Her Majesty or any benefit that Her Majesty is
authorized or is entitled to bestow,
whether
or not, in fact, the official is able to cooperate, render
assistance, exercise influence or do or omit to do what is proposed,
as the case may be;
(b) having dealings of any kind
with the government, pays a commission or reward to or confers an
advantage or benefit of any kind on an employee or official of the
government with which he deals, or to any member of his family, or
to any one for the benefit of the employee or official, with respect
to those dealings, unless he has the consent in writing of the head
of the branch of government with which he deals, the proof of which
lies on him;
(c) being an official or employee
of the government, demands, accepts or offers or agrees to accept
from a person who has dealings with the government a commission,
reward, advantage or benefit of any kind directly or indirectly, by
himself or through a member of his family or through any one for his
benefit, unless he has the consent in writing of the head of the
branch of government that employs him or of which he is an official,
the proof of which lies on him;
(d) having or pretending to have
influence with the government or with a minister of the government
or an official, demands, accepts or offers or agrees to accept for
himself or another person a reward, advantage or benefit of any kind
as consideration for cooperation, assistance, exercise of influence
or an act or omission in connection with
(i)
anything mentioned in subparagraph (a)(iii) or (iv), or
(ii)
the appointment of any person, including himself, to an office;
(e) gives, offers or agrees to give
or offer to a minister of the government or an official a reward,
advantage or benefit of any kind as consideration for cooperation,
assistance, exercise of influence or an act or omission in
connection with
(i)
anything mentioned in subparagraph (a)(iii) or (iv), or
(ii)
the appointment of any person, including himself, to an office;
or
(f) having made a tender to obtain
a contract with the government
(i)
gives, offers or agrees to give or offer to another person who has
made a tender or to a member of his family, or to another person for
the benefit of that person, a reward, advantage or benefit of any
kind as consideration for the withdrawal of the tender of that
person, or
(ii)
demands, accepts or offers or agrees to accept from another person
who has made a tender a reward, advantage or benefit of any kind as
consideration for the withdrawal of his tender. |
Contractor
subscribing to election fund |
(2)
Every one commits an offence who, in order to obtain or retain a
contract with the government, or as a term of any such contract,
whether express or implied, directly or indirectly subscribes or
gives, or agrees to subscribe or give, to any person any valuable
consideration
(a) for the purpose of promoting
the election of a candidate or a class or party of candidates to
Parliament or the legislature of a province; or
(b) with intent to influence or
affect in any way the result of an election conducted for the
purpose of electing persons to serve in Parliament or the
legislature of a province. |
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(3)
Every one who commits an offence under this section is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding five years.
R.S.,
c. C-34, s. 110. |
|
122. Every
official who, in connection with the duties of his office, commits
fraud or a breach of trust is guilty of an indictable offence and
liable to imprisonment for a term not exceeding five years, whether
or not the fraud or breach of trust would be an offence if it were
committed in relation to a private person.
R.S.,
c. C-34, s. 111. |
|
123. (1)
Every one who
(a) gives, offers or agrees to give
or offer to a municipal official, or
(b) being a municipal official,
demands, accepts or offers or agrees to accept from any person,
a loan,
reward, advantage or benefit of any kind as consideration for the
official
(c) to abstain from voting at a
meeting of the municipal council or a committee thereof,
(d) to vote in favour of or against
a measure, motion or resolution,
(e) to aid in procuring or
preventing the adoption of a measure, motion or resolution, or
(f) to perform or fail to perform
an official act,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years. |
Influencing
municipal official |
(2)
Every one who
(a) by suppression of the truth, in
the case of a person who is under a duty to disclose the truth,
(b) by threats or deceit, or
(c) by any unlawful means,
influences
or attempts to influence a municipal official to do anything
mentioned in paragraphs (1)(c) to (f) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years. |
Definition
of “municipal official” |
(3) In
this section, “municipal official” means a member of a municipal
council or a person who holds an office under a municipal
government.
R.S.,
1985, c. C-46, s. 123; R.S., 1985, c. 27 (1st Supp.), s.
16. |
|
124. Every
one who
(a) purports to sell or agrees to
sell an appointment to or a resignation from an office, or a consent
to any such appointment or resignation, or receives or agrees to
receive a reward or profit from the purported sale thereof, or
(b) purports to purchase or gives a
reward or profit for the purported purchase of any such appointment,
resignation or consent, or agrees or promises to do so,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 113. |
|
125. Every
one who
(a) receives, agrees to receive,
gives or procures to be given, directly or indirectly, a reward,
advantage or benefit of any kind as consideration for cooperation,
assistance or exercise of influence to secure the appointment of any
person to an office,
(b) solicits, recommends or
negotiates in any manner with respect to an appointment to or
resignation from an office, in expectation of a direct or indirect
reward, advantage or benefit, or
(c) keeps without lawful authority,
the proof of which lies on him, a place for transacting or
negotiating any business relating to
(i)
the filling of vacancies in offices,
(ii)
the sale or purchase of offices, or
(iii)
appointments to or resignations from offices,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 114. |
|
126. (1)
Every one who, without lawful excuse, contravenes an Act of
Parliament by wilfully doing anything that it forbids or by wilfully
omitting to do anything that it requires to be done is, unless a
punishment is expressly provided by law, guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years. |
Attorney
General of Canada may act |
(2)
Any proceedings in respect of a contravention of or conspiracy to
contravene an Act mentioned in subsection (1), other than this Act,
may be instituted at the instance of the Government of Canada and
conducted by or on behalf of that Government.
R.S.,
1985, c. C-46, s. 126; R.S., 1985, c. 27 (1st Supp.), s.
185(F). |
|
127. (1)
Every one who, without lawful excuse, disobeys a lawful order made
by a court of justice or by a person or body of persons authorized
by any Act to make or give the order, other than an order for the
payment of money, is, unless a punishment or other mode of
proceeding is expressly provided by law, guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction. |
Attorney
General of Canada may act |
(2)
Where the order referred to in subsection (1) was made in
proceedings instituted at the instance of the Government of Canada
and conducted by or on behalf of that Government, any proceedings in
respect of a contravention of or conspiracy to contravene that order
may be instituted and conducted in like manner.
R.S.,
1985, c. C-46, s. 127; R.S., 1985, c. 27 (1st Supp.), s. 185(F);
2005, c. 32, s. 1. |
|
128. Every
peace officer or coroner who, being entrusted with the execution of
a process, wilfully
(a) misconducts himself in the
execution of the process, or
(b) makes a false return to the
process,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years.
R.S.,
c. C-34, s. 117. |
|
129. Every
one who
(a) resists or wilfully obstructs a
public officer or peace officer in the execution of his duty or any
person lawfully acting in aid of such an officer,
(b) omits, without reasonable
excuse, to assist a public officer or peace officer in the execution
of his duty in arresting a person or in preserving the peace, after
having reasonable notice that he is required to do so, or
(c) resists or wilfully obstructs
any person in the lawful execution of a process against lands or
goods or in making a lawful distress or seizure,
is
guilty of
(d) an indictable offence and is
liable to imprisonment for a term not exceeding two years, or
(e) an offence punishable on
summary conviction.
R.S.,
c. C-34, s. 118; 1972, c. 13, s. 7. |
|
130. Every
one who
(a) falsely represents himself to
be a peace officer or a public officer, or
(b) not being a peace officer or
public officer, uses a badge or article of uniform or equipment in a
manner that is likely to cause persons to believe that he is a peace
officer or a public officer, as the case may be,
is
guilty of an offence punishable on summary conviction.
R.S.,
c. C-34, s. 119. |
|
|
|
131. (1)
Subject to subsection (3), every one commits perjury who, with
intent to mislead, makes before a person who is authorized by law to
permit it to be made before him a false statement under oath or
solemn affirmation, by affidavit, solemn declaration or deposition
or orally, knowing that the statement is false. |
|
(1.1)
Subject to subsection (3), every person who gives evidence under
subsection 46(2) of the Canada
Evidence Act, or gives evidence or a statement pursuant to an
order made under section 22.2 of the Mutual Legal Assistance in Criminal
Matters Act, commits perjury who, with intent to mislead,
makes a false statement knowing that it is false, whether or not the
false statement was made under oath or solemn affirmation in
accordance with subsection (1), so long as the false statement was
made in accordance with any formalities required by the law of the
place outside Canada in which the person is virtually present or
heard. |
|
(2)
Subsection (1) applies, whether or not a statement referred to in
that subsection is made in a judicial proceeding. |
|
(3)
Subsections (1) and (1.1) do not apply to a statement referred to in
either of those subsections that is made by a person who is not
specially permitted, authorized or required by law to make that
statement.
R.S.,
1985, c. C-46, s. 131; R.S., 1985, c. 27 (1st Supp.), s. 17; 1999,
c. 18, s. 92. |
|
132. Every
one who commits perjury is guilty of an indictable offence and
liable to imprisonment for a term not exceeding fourteen years.
R.S.,
1985, c. C-46, s. 132; R.S., 1985, c. 27 (1st Supp.), s. 17; 1998,
c. 35, s. 119. |
|
133. No
person shall be convicted of an offence under section 132 on the
evidence of only one witness unless the evidence of that witness is
corroborated in a material particular by evidence that implicates
the accused.
R.S.,
1985, c. C-46, s. 133; R.S., 1985, c. 27 (1st Supp.), s.
17. |
|
134. (1)
Subject to subsection (2), every one who, not being specially
permitted, authorized or required by law to make a statement under
oath or solemn affirmation, makes such a statement, by affidavit,
solemn declaration or deposition or orally before a person who is
authorized by law to permit it to be made before him, knowing that
the statement is false, is guilty of an offence punishable on
summary conviction. |
|
(2)
Subsection (1) does not apply to a statement referred to in that
subsection that is made in the course of a criminal
investigation.
R.S.,
1985, c. C-46, s. 134; R.S., 1985, c. 27 (1st Supp.), s.
17. |
|
135.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 17] |
|
136. (1)
Every one who, being a witness in a judicial proceeding, gives
evidence with respect to any matter of fact or knowledge and who
subsequently, in a judicial proceeding, gives evidence that is
contrary to his previous evidence is guilty of an indictable offence
and liable to imprisonment for a term not exceeding fourteen years,
whether or not the prior or later evidence or either is true, but no
person shall be convicted under this section unless the court, judge
or provincial court judge, as the case may be, is satisfied beyond a
reasonable doubt that the accused, in giving evidence in either of
the judicial proceedings, intended to mislead. |
Evidence
in specific cases |
(1.1)
Evidence given under section 714.1, 714.2, 714.3 or 714.4 or under
subsection 46(2) of the Canada
Evidence Act or evidence or a statement given pursuant to an
order made under section 22.2 of the Mutual Legal Assistance in Criminal
Matters Act is deemed to be evidence given by a witness in a
judicial proceeding for the purposes of subsection (1). |
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(2)
Notwithstanding the definition “evidence” in section 118,
“evidence”, for the purposes of this section, does not include
evidence that is not material. |
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(2.1)
Where a person is charged with an offence under this section, a
certificate specifying with reasonable particularity the proceeding
in which that person is alleged to have given the evidence in
respect of which the offence is charged, is evidence that it was
given in a judicial proceeding, without proof of the signature or
official character of the person by whom the certificate purports to
be signed if it purports to be signed by the clerk of the court or
other official having the custody of the record of that proceeding
or by his lawful deputy. |
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(3) No
proceedings shall be instituted under this section without the
consent of the Attorney General.
R.S.,
1985, c. C-46, s. 136; R.S., 1985, c. 27 (1st Supp.), ss. 18, 203;
1999, c. 18, s. 93. |
|
137. Every
one who, with intent to mislead, fabricates anything with intent
that it shall be used as evidence in a judicial proceeding, existing
or proposed, by any means other than perjury or incitement to
perjury is guilty of an indictable offence and liable to
imprisonment for a term not exceeding fourteen years.
R.S.,
c. C-34, s. 125. |
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138. Every
one who
(a) signs a writing that purports
to be an affidavit or statutory declaration and to have been sworn
or declared before him when the writing was not so sworn or declared
or when he knows that he has no authority to administer the oath or
declaration,
(b) uses or offers for use any
writing purporting to be an affidavit or statutory declaration that
he knows was not sworn or declared, as the case may be, by the
affiant or declarant or before a person authorized in that behalf,
or
(c) signs as affiant or declarant a
writing that purports to be an affidavit or statutory declaration
and to have been sworn or declared by him, as the case may be, when
the writing was not so sworn or declared,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years.
R.S.,
c. C-34, s. 126. |
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139. (1)
Every one who wilfully attempts in any manner to obstruct, pervert
or defeat the course of justice in a judicial proceeding,
(a) by indemnifying or agreeing to
indemnify a surety, in any way and either in whole or in part,
or
(b) where he is a surety, by
accepting or agreeing to accept a fee or any form of indemnity
whether in whole or in part from or in respect of a person who is
released or is to be released from custody,
is
guilty of
(c) an indictable offence and is
liable to imprisonment for a term not exceeding two years, or
(d) an offence punishable on
summary conviction. |
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(2)
Every one who wilfully attempts in any manner other than a manner
described in subsection (1) to obstruct, pervert or defeat the
course of justice is guilty of an indictable offence and liable to
imprisonment for a term not exceeding ten years. |
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(3)
Without restricting the generality of subsection (2), every one
shall be deemed wilfully to attempt to obstruct, pervert or defeat
the course of justice who in a judicial proceeding, existing or
proposed,
(a) dissuades or attempts to
dissuade a person by threats, bribes or other corrupt means from
giving evidence;
(b) influences or attempts to
influence by threats, bribes or other corrupt means a person in his
conduct as a juror; or
(c) accepts or obtains, agrees to
accept or attempts to obtain a bribe or other corrupt consideration
to abstain from giving evidence, or to do or to refrain from doing
anything as a juror.
R.S.,
c. C-34, s. 127; R.S., c. 2(2nd Supp.), s. 3; 1972, c. 13, s.
8. |
|
140. (1)
Every one commits public mischief who, with intent to mislead,
causes a peace officer to enter on or continue an investigation
by
(a) making a false statement that
accuses some other person of having committed an offence;
(b) doing anything intended to
cause some other person to be suspected of having committed an
offence that the other person has not committed, or to divert
suspicion from himself;
(c) reporting that an offence has
been committed when it has not been committed; or
(d) reporting or in any other way
making it known or causing it to be made known that he or some other
person has died when he or that other person has not died. |
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(2)
Every one who commits public mischief
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction.
R.S.,
1985, c. C-46, s. 140; R.S., 1985, c. 27 (1st Supp.), s.
19. |
|
141. (1)
Every one who asks for or obtains or agrees to receive or obtain any
valuable consideration for himself or any other person by agreeing
to compound or conceal an indictable offence is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding two years. |
Exception
for diversion agreements |
(2) No
offence is committed under subsection (1) where valuable
consideration is received or obtained or is to be received or
obtained under an agreement for compensation or restitution or
personal services that is
(a) entered into with the consent
of the Attorney General; or
(b) made as part of a program,
approved by the Attorney General, to divert persons charged with
indictable offences from criminal proceedings.
R.S.,
1985, c. C-46, s. 141; R.S., 1985, c. 27 (1st Supp.), s.
19. |
|
142. Every
one who corruptly accepts any valuable consideration, directly or
indirectly, under pretence or on account of helping any person to
recover anything obtained by the commission of an indictable offence
is guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 130. |
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143. Every
one who
(a) publicly advertises a reward
for the return of anything that has been stolen or lost, and in the
advertisement uses words to indicate that no questions will be asked
if it is returned,
(b) uses words in a public
advertisement to indicate that a reward will be given or paid for
anything that has been stolen or lost, without interference with or
inquiry about the person who produces it,
(c) promises or offers in a public
advertisement to return to a person who has advanced money by way of
loan on, or has bought, anything that has been stolen or lost, the
money so advanced or paid, or any other sum of money for the return
of that thing, or
(d) prints or publishes any
advertisement referred to in paragraph (a), (b) or (c),
is
guilty of an offence punishable on summary conviction.
R.S.,
c. C-34, s. 131. |
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|
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144. Every
one who
(a) by force or violence breaks a
prison with intent to set at liberty himself or any other person
confined therein, or
(b) with intent to escape forcibly
breaks out of, or makes any breach in, a cell or other place within
a prison in which he is confined,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years.
R.S.,
c. C-34, s. 132; 1976-77, c. 53, s. 5. |
|
145. (1)
Every one who
(a) escapes from lawful custody,
or
(b) is, before the expiration of a
term of imprisonment to which he was sentenced, at large in or out
of Canada without lawful excuse, the proof of which lies on him,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years or is guilty of an offence punishable
on summary conviction. |
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(2)
Every one who,
(a) being at large on his
undertaking or recognizance given to or entered into before a
justice or judge, fails, without lawful excuse, the proof of which
lies on him, to attend court in accordance with the undertaking or
recognizance, or
(b) having appeared before a court,
justice or judge, fails, without lawful excuse, the proof of which
lies on him, to attend court as thereafter required by the court,
justice or judge,
or to
surrender himself in accordance with an order of the court, justice
or judge, as the case may be, is guilty of an indictable offence and
liable to imprisonment for a term not exceeding two years or is
guilty of an offence punishable on summary conviction. |
Failure
to comply with condition of undertaking or recognizance |
(3)
Every person who is at large on an undertaking or recognizance given
to or entered into before a justice or judge and is bound to comply
with a condition of that undertaking or recognizance directed by a
justice or judge, and every person who is bound to comply with a
direction ordered under subsection 515(12) or 522(2.1), and who
fails, without lawful excuse, the proof of which lies on that
person, to comply with that condition or direction, is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction. |
Failure
to appear or to comply with summons |
(4)
Every one who is served with a summons and who fails, without lawful
excuse, the proof of which lies on him, to appear at a time and
place stated therein, if any, for the purposes of the Identification of Criminals Act or
to attend court in accordance therewith, is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction. |
Failure
to comply with appearance notice or promise to appear |
(5)
Every person who is named in an appearance notice or promise to
appear, or in a recognizance entered into before an officer in
charge or another peace officer, that has been confirmed by a
justice under section 508 and who fails, without lawful excuse, the
proof of which lies on the person, to appear at the time and place
stated therein, if any, for the purposes of the Identification of Criminals Act,
or to attend court in accordance therewith, is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction. |
Failure
to comply with conditions of undertaking |
(5.1)
Every person who, without lawful excuse, the proof of which lies on
the person, fails to comply with any condition of an undertaking
entered into pursuant to subsection 499(2) or 503(2.1)
(a) is guilty of an indictable
offence and is liable to imprisonment for a term not exceeding two
years; or
(b) is guilty of an offence
punishable on summary conviction. |
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(6)
For the purposes of subsection (5), it is not a lawful excuse that
an appearance notice, promise to appear or recognizance states
defectively the substance of the alleged offence.
(7)
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 20] |
Election
of Crown under Contraventions
Act |
(8)
For the purposes of subsections (3) to (5), it is a lawful excuse to
fail to comply with a condition of an undertaking or recognizance or
to fail to appear at a time and place stated in a summons, an
appearance notice, a promise to appear or a recognizance for the
purposes of the Identification of
Criminals Act if before the failure the Attorney General,
within the meaning of the Contraventions Act, makes an
election under section 50 of that Act. |
Proof
of certain facts by certificate |
(9) In
any proceedings under subsection (2), (4) or (5), a certificate of
the clerk of the court or a judge of the court before which the
accused is alleged to have failed to attend or of the person in
charge of the place at which it is alleged the accused failed to
attend for the purposes of the Identification of Criminals Act
stating that,
(a) in the case of proceedings
under subsection (2), the accused gave or entered into an
undertaking or recognizance before a justice or judge and failed to
attend court in accordance therewith or, having attended court,
failed to attend court thereafter as required by the court, justice
or judge or to surrender in accordance with an order of the court,
justice or judge, as the case may be,
(b) in the case of proceedings
under subsection (4), a summons was issued to and served on the
accused and the accused failed to attend court in accordance
therewith or failed to appear at the time and place stated therein
for the purposes of the Identification of Criminals Act,
as the case may be, and
(c) in the case of proceedings
under subsection (5), the accused was named in an appearance notice,
a promise to appear or a recognizance entered into before an officer
in charge or another peace officer, that was confirmed by a justice
under section 508, and the accused failed to appear at the time and
place stated therein for the purposes of the Identification of Criminals Act,
failed to attend court in accordance therewith or, having attended
court, failed to attend court thereafter as required by the court,
justice or judge, as the case may be,
is
evidence of the statements contained in the certificate without
proof of the signature or the official character of the person
appearing to have signed the certificate. |
Attendance
and right to cross-examination |
(10)
An accused against whom a certificate described in subsection (9) is
produced may, with leave of the court, require the attendance of the
person making the certificate for the purposes of
cross-examination. |
Notice
of intention to produce |
(11)
No certificate shall be received in evidence pursuant to subsection
(9) unless the party intending to produce it has, before the trial,
given to the accused reasonable notice of his intention together
with a copy of the certificate.
R.S.,
1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992,
c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s.
3. |
|
146. Every
one who
(a) permits a person whom he has in
lawful custody to escape, by failing to perform a legal duty,
(b) conveys or causes to be
conveyed into a prison anything, with intent to facilitate the
escape of a person imprisoned therein, or
(c) directs or procures, under
colour of pretended authority, the discharge of a prisoner who is
not entitled to be discharged,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years.
R.S.,
c. C-34, s. 134. |
|
147. Every
one who
(a) rescues any person from lawful
custody or assists any person in escaping or attempting to escape
from lawful custody,
(b) being a peace officer, wilfully
permits a person in his lawful custody to escape, or
(c) being an officer of or an
employee in a prison, wilfully permits a person to escape from
lawful custody therein,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 135. |
|
148. Every
one who knowingly and wilfully
(a) assists a prisoner of war in
Canada to escape from a place where he is detained, or
(b) assists a prisoner of war, who
is permitted to be at large on parole in Canada, to escape from the
place where he is at large on parole,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 136. |
|
149. (1)
Notwithstanding section 743.1, a court that convicts a person for an
escape committed while undergoing imprisonment may order that the
term of imprisonment be served in a penitentiary, even if the time
to be served is less than two years. |
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(2) In
this section, “escape” means breaking prison, escaping from lawful
custody or, without lawful excuse, being at large before the
expiration of a term of imprisonment to which a person has been
sentenced.
R.S.,
1985, c. C-46, s. 149; R.S., 1985, c. 27 (1st Supp.), s. 203; 1992,
c. 20, s. 199; 1995, c. 22, s. 1. |
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PART
V
SEXUAL OFFENCES, PUBLIC
MORALS AND DISORDERLY CONDUCT |
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150. In this
Part, |
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“guardian” includes any
person who has in law or in fact the custody or control of another
person; |
“public place”
« endroit public » |
“public place” includes
any place to which the public have access as of right or by
invitation, express or implied; |
|
“theatre” includes any
place that is open to the public where entertainments are given,
whether or not any charge is made for admission.
R.S.,
c. C-34, s. 138. |
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|
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150.1 (1)
Where an accused is charged with an offence under section 151 or 152
or subsection 153(1), 160(3) or 173(2) or is charged with an offence
under section 271, 272 or 273 in respect of a complainant under the
age of fourteen years, it is not a defence that the complainant
consented to the activity that forms the subject-matter of the
charge. |
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(2)
Notwithstanding subsection (1), where an accused is charged with an
offence under section 151 or 152, subsection 173(2) or section 271
in respect of a complainant who is twelve years of age or more but
under the age of fourteen years, it is not a defence that the
complainant consented to the activity that forms the subject-matter
of the charge unless the accused
(a) is twelve years of age or more
but under the age of sixteen years;
(b) is less than two years older
than the complainant; and
(c) is not in a position of trust
or authority towards the complainant, is not a person with whom the
complainant is in a relationship of dependency and is not in a
relationship with the complainant that is exploitative of the
complainant. |
Exemption
for accused aged twelve or thirteen |
(3) No
person aged twelve or thirteen years shall be tried for an offence
under section 151 or 152 or subsection 173(2) unless the person is
in a position of trust or authority towards the complainant, is a
person with whom the complainant is in a relationship of dependency
or is in a relationship with the complainant that is exploitative of
the complainant. |
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(4) It
is not a defence to a charge under section 151 or 152, subsection
160(3) or 173(2), or section 271, 272 or 273 that the accused
believed that the complainant was fourteen years of age or more at
the time the offence is alleged to have been committed unless the
accused took all reasonable steps to ascertain the age of the
complainant. |
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(5) It
is not a defence to a charge under section 153, 159, 170, 171 or 172
or subsection 212(2) or (4) that the accused believed that the
complainant was eighteen years of age or more at the time the
offence is alleged to have been committed unless the accused took
all reasonable steps to ascertain the age of the complainant.
R.S.,
1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 2. |
|
151. Every
person who, for a sexual purpose, touches, directly or indirectly,
with a part of the body or with an object, any part of the body of a
person under the age of fourteen years
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years and to a minimum punishment of imprisonment for a term of
forty-five days; or
(b) is guilty of an offence
punishable on summary conviction and liable to imprisonment for a
term not exceeding eighteen months and to a minimum punishment of
imprisonment for a term of fourteen days.
R.S.,
1985, c. C-46, s. 151; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c.
32, s. 3. |
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152. Every
person who, for a sexual purpose, invites, counsels or incites a
person under the age of fourteen years to touch, directly or
indirectly, with a part of the body or with an object, the body of
any person, including the body of the person who so invites,
counsels or incites and the body of the person under the age of
fourteen years,
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years and to a minimum punishment of imprisonment for a term of
forty-five days; or
(b) is guilty of an offence
punishable on summary conviction and liable to imprisonment for a
term not exceeding eighteen months and to a minimum punishment of
imprisonment for a term of fourteen days.
R.S.,
1985, c. C-46, s. 152; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c.
32, s. 3. |
|
153. (1)
Every person commits an offence who is in a position of trust or
authority towards a young person, who is a person with whom the
young person is in a relationship of dependency or who is in a
relationship with a young person that is exploitative of the young
person, and who
(a) for a sexual purpose, touches,
directly or indirectly, with a part of the body or with an object,
any part of the body of the young person; or
(b) for a sexual purpose, invites,
counsels or incites a young person to touch, directly or indirectly,
with a part of the body or with an object, the body of any person,
including the body of the person who so invites, counsels or incites
and the body of the young person. |
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(1.1)
Every person who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years and to a minimum punishment of imprisonment for a term of
forty-five days; or
(b) is guilty of an offence
punishable on summary conviction and liable to imprisonment for a
term not exceeding eighteen months and to a minimum punishment of
imprisonment for a term of fourteen days. |
Inference
of sexual exploitation |
(1.2)
A judge may infer that a person is in a relationship with a young
person that is exploitative of the young person from the nature and
circumstances of the relationship, including
(a) the age of the young
person;
(b) the age difference between the
person and the young person;
(c) the evolution of the
relationship; and
(d) the degree of control or
influence by the person over the young person. |
Definition
of “young person” |
(2) In
this section, “young person” means a person fourteen years of age or
more but under the age of eighteen years.
R.S.,
1985, c. C-46, s. 153; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c.
32, s. 4. |
|
153.1 (1)
Every person who is in a position of trust or authority towards a
person with a mental or physical disability or who is a person with
whom a person with a mental or physical disability is in a
relationship of dependency and who, for a sexual purpose, counsels
or incites that person to touch, without that person’s consent, his
or her own body, the body of the person who so counsels or incites,
or the body of any other person, directly or indirectly, with a part
of the body or with an object, is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on
summary conviction and liable to imprisonment for a term not
exceeding eighteen months. |
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(2)
Subject to subsection (3), “consent” means, for the purposes of this
section, the voluntary agreement of the complainant to engage in the
sexual activity in question. |
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(3) No
consent is obtained, for the purposes of this section, if
(a) the agreement is expressed by
the words or conduct of a person other than the complainant;
(b) the complainant is incapable of
consenting to the activity;
(c) the accused counsels or incites
the complainant to engage in the activity by abusing a position of
trust, power or authority;
(d) the complainant expresses, by
words or conduct, a lack of agreement to engage in the activity;
or
(e) the complainant, having
consented to engage in sexual activity, expresses, by words or
conduct, a lack of agreement to continue to engage in the
activity. |
Subsection
(3) not limiting |
(4)
Nothing in subsection (3) shall be construed as limiting the
circumstances in which no consent is obtained. |
When
belief in consent not a defence |
(5) It
is not a defence to a charge under this section that the accused
believed that the complainant consented to the activity that forms
the subject-matter of the charge if
(a) the accused’s belief arose from
the accused’s
(i)
self-induced intoxication, or
(ii)
recklessness or wilful blindness; or
(b) the accused did not take
reasonable steps, in the circumstances known to the accused at the
time, to ascertain that the complainant was consenting. |
Accused’s
belief as to consent |
(6) If
an accused alleges that he or she believed that the complainant
consented to the conduct that is the subject-matter of the charge, a
judge, if satisfied that there is sufficient evidence and that, if
believed by the jury, the evidence would constitute a defence, shall
instruct the jury, when reviewing all the evidence relating to the
determination of the honesty of the accused’s belief, to consider
the presence or absence of reasonable grounds for that belief.
1998,
c. 9, s. 2. |
|
154.
[Repealed, R.S., 1985, c. 19 (3rd Supp.), s. 1] |
|
155. (1)
Every one commits incest who, knowing that another person is by
blood relationship his or her parent, child, brother, sister,
grandparent or grandchild, as the case may be, has sexual
intercourse with that person. |
|
(2)
Every one who commits incest is guilty of an indictable offence and
liable to imprisonment for a term not exceeding fourteen
years. |
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(3) No
accused shall be determined by a court to be guilty of an offence
under this section if the accused was under restraint, duress or
fear of the person with whom the accused had the sexual intercourse
at the time the sexual intercourse occurred. |
Definition
of “brother” and “sister” |
(4) In
this section, “brother” and “sister”, respectively, include
half-brother and half-sister.
R.S.,
1985, c. C-46, s. 155; R.S., 1985, c. 27 (1st Supp.), s.
21. |
|
156. to 158.
[Repealed, R.S., 1985, c. 19 (3rd Supp.), s. 2] |
|
159. (1)
Every person who engages in an act of anal intercourse is guilty of
an indictable offence and liable to imprisonment for a term not
exceeding ten years or is guilty of an offence punishable on summary
conviction. |
|
(2)
Subsection (1) does not apply to any act engaged in, in private,
between
(a) husband and wife, or
(b) any two persons, each of whom
is eighteen years of age or more,
both of
whom consent to the act. |
|
(3)
For the purposes of subsection (2),
(a) an act shall be deemed not to
have been engaged in in private if it is engaged in in a public
place or if more than two persons take part or are present; and
(b) a person shall be deemed not to
consent to an act
(i) if
the consent is extorted by force, threats or fear of bodily harm or
is obtained by false and fraudulent misrepresentations respecting
the nature and quality of the act, or
(ii)
if the court is satisfied beyond a reasonable doubt that the person
could not have consented to the act by reason of mental
disability.
R.S.,
1985, c. C-46, s. 159; R.S., 1985, c. 19 (3rd Supp.), s.
3. |
|
160. (1)
Every person who commits bestiality is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years or is guilty of an offence punishable on summary
conviction. |
Compelling
the commission of bestiality |
(2)
Every person who compels another to commit bestiality is guilty of
an indictable offence and liable to imprisonment for a term not
exceeding ten years or is guilty of an offence punishable on summary
conviction. |
Bestiality
in presence of or by child |
(3)
Notwithstanding subsection (1), every person who, in the presence of
a person under the age of fourteen years, commits bestiality or who
incites a person under the age of fourteen years to commit
bestiality is guilty of an indictable offence and liable to
imprisonment for a term not exceeding ten years or is guilty of an
offence punishable on summary conviction.
R.S.,
1985, c. C-46, s. 160; R.S., 1985, c. 19 (3rd Supp.), s.
3. |
|
161. (1) When
an offender is convicted, or is discharged on the conditions
prescribed in a probation order under section 730, of an offence
referred to in subsection (1.1) in respect of a person who is under
the age of fourteen years, the court that sentences the offender or
directs that the accused be discharged, as the case may be, in
addition to any other punishment that may be imposed for that
offence or any other condition prescribed in the order of discharge,
shall consider making and may make, subject to the conditions or
exemptions that the court directs, an order prohibiting the offender
from
(a) attending a public park or
public swimming area where persons under the age of fourteen years
are present or can reasonably be expected to be present, or a
daycare centre, schoolground, playground or community centre;
(b) seeking, obtaining or
continuing any employment, whether or not the employment is
remunerated, or becoming or being a volunteer in a capacity, that
involves being in a position of trust or authority towards persons
under the age of fourteen years; or
(c) using a computer system within
the meaning of subsection 342.1(2) for the purpose of communicating
with a person under the age of fourteen years. |
|
(1.1)
The offences for the purpose of subsection (1) are
(a) an offence under section 151,
152, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171
or 172.1, subsection 173(2) or section 271, 272, 273 or 281;
(b) 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
(c) an offence under subsection
146(1) (sexual intercourse with a female under 14) or section 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. |
|
(2)
The prohibition may be for life or for any shorter duration that the
court considers desirable and, in the case of a prohibition that is
not for life, the prohibition begins on the later of
(a) the date on which the order is
made; and
(b) where the offender is sentenced
to a term of imprisonment, the date on which the offender is
released from imprisonment for the offence, including release on
parole, mandatory supervision or statutory release. |
|
(3) A
court that makes an order of prohibition or, where the court is for
any reason unable to act, another court of equivalent jurisdiction
in the same province, may, on application of the offender or the
prosecutor, require the offender to appear before it at any time
and, after hearing the parties, that court may vary the conditions
prescribed in the order if, in the opinion of the court, the
variation is desirable because of changed circumstances after the
conditions were prescribed. |
|
(4)
Every person who is bound by an order of prohibition and who does
not comply with the order is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction.
R.S.,
1985, c. C-46, s. 161; R.S., 1985, c. 19 (3rd Supp.), s. 4; 1993, c.
45, s. 1; 1995, c. 22, s. 18; 1997, c. 18, s. 4; 1999, c. 31, s. 67;
2002, c. 13, s. 4; 2005, c. 32, s. 5. |
|
162. (1)
Every one commits an offence who, surreptitiously, observes —
including by mechanical or electronic means — or makes a visual
recording of a person who is in circumstances that give rise to a
reasonable expectation of privacy, if
(a) the person is in a place in
which a person can reasonably be expected to be nude, to expose his
or her genital organs or anal region or her breasts, or to be
engaged in explicit sexual activity;
(b) the person is nude, is exposing
his or her genital organs or anal region or her breasts, or is
engaged in explicit sexual activity, and the observation or
recording is done for the purpose of observing or recording a person
in such a state or engaged in such an activity; or
(c) the observation or recording is
done for a sexual purpose. |
Definition
of “visual recording” |
(2) In
this section, “visual recording” includes a photographic, film or
video recording made by any means. |
|
(3)
Paragraphs (1)(a) and (b) do not apply to a peace officer
who, under the authority of a warrant issued under section 487.01,
is carrying out any activity referred to in those
paragraphs. |
Printing,
publication, etc., of voyeuristic recordings |
(4)
Every one commits an offence who, knowing that a recording was
obtained by the commission of an offence under subsection (1),
prints, copies, publishes, distributes, circulates, sells,
advertises or makes available the recording, or has the recording in
his or her possession for the purpose of printing, copying,
publishing, distributing, circulating, selling or advertising it or
making it available. |
|
(5)
Every one who commits an offence under subsection (1) or (4)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction. |
|
(6) No
person shall be convicted of an offence under this section if the
acts that are alleged to constitute the offence serve the public
good and do not extend beyond what serves the public good. |
|
(7)
For the purposes of subsection (6),
(a) it is a question of law whether
an act serves the public good and whether there is evidence that the
act alleged goes beyond what serves the public good, but it is a
question of fact whether the act does or does not extend beyond what
serves the public good; and
(b) the motives of an accused are
irrelevant.
R.S.,
1985, c. C-46, s. 162; R.S., 1985, c. 19 (3rd Supp.), s. 4; 2005, c.
32, s. 6. |
|
Offences
Tending to Corrupt Morals |
|
163. (1)
Every one commits an offence who
(a) makes, prints, publishes,
distributes, circulates, or has in his possession for the purpose of
publication, distribution or circulation any obscene written matter,
picture, model, phonograph record or other thing whatever; or
(b) makes, prints, publishes,
distributes, sells or has in his possession for the purpose of
publication, distribution or circulation a crime comic. |
|
(2)
Every one commits an offence who knowingly, without lawful
justification or excuse,
(a) sells, exposes to public view
or has in his possession for such a purpose any obscene written
matter, picture, model, phonograph record or other thing
whatever;
(b) publicly exhibits a disgusting
object or an indecent show;
(c) offers to sell, advertises or
publishes an advertisement of, or has for sale or disposal, any
means, instructions, medicine, drug or article intended or
represented as a method of causing abortion or miscarriage; or
(d) advertises or publishes an
advertisement of any means, instructions, medicine, drug or article
intended or represented as a method for restoring sexual virility or
curing venereal diseases or diseases of the generative
organs. |
|
(3) No
person shall be convicted of an offence under this section if the
public good was served by the acts that are alleged to constitute
the offence and if the acts alleged did not extend beyond what
served the public good. |
Question
of law and question of fact |
(4)
For the purposes of this section, it is a question of law whether an
act served the public good and whether there is evidence that the
act alleged went beyond what served the public good, but it is a
question of fact whether the acts did or did not extend beyond what
served the public good. |
|
(5)
For the purposes of this section, the motives of an accused are
irrelevant.
(6)
[Repealed, 1993, c. 46, s. 1] |
Definition
of “crime comic” |
(7) In
this section, “crime comic” means a magazine, periodical or book
that exclusively or substantially comprises matter depicting
pictorially
(a) the commission of crimes, real
or fictitious; or
(b) events connected with the
commission of crimes, real or fictitious, whether occurring before
or after the commission of the crime. |
|
(8)
For the purposes of this Act, any publication a dominant
characteristic of which is the undue exploitation of sex, or of sex
and any one or more of the following subjects, namely, crime,
horror, cruelty and violence, shall be deemed to be obscene.
R.S.,
1985, c. C-46, s. 163; 1993, c. 46, s. 1. |
|
163.1 (1) In
this section, “child pornography” means
(a) a photographic, film, video or
other visual representation, whether or not it was made by
electronic or mechanical means,
(i)
that shows a person who is or is depicted as being under the age of
eighteen years and is engaged in or is depicted as engaged in
explicit sexual activity, or
(ii)
the dominant characteristic of which is the depiction, for a sexual
purpose, of a sexual organ or the anal region of a person under the
age of eighteen years;
(b) any written material, visual
representation or audio recording that advocates or counsels sexual
activity with a person under the age of eighteen years that would be
an offence under this Act;
(c) any written material whose
dominant characteristic is the description, for a sexual purpose, of
sexual activity with a person under the age of eighteen years that
would be an offence under this Act; or
(d) any audio recording that has as
its dominant characteristic the description, presentation or
representation, for a sexual purpose, of sexual activity with a
person under the age of eighteen years that would be an offence
under this Act. |
|
(2)
Every person who makes, prints, publishes or possesses for the
purpose of publication any child pornography is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding ten years and to a
minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on
summary conviction and liable to imprisonment for a term not
exceeding eighteen months and to a minimum punishment of
imprisonment for a term of ninety days. |
Distribution,
etc. of child pornography |
(3)
Every person who transmits, makes available, distributes, sells,
advertises, imports, exports or possesses for the purpose of
transmission, making available, distribution, sale, advertising or
exportation any child pornography is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding ten years and to a
minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on
summary conviction and liable to imprisonment for a term not
exceeding eighteen months and to a minimum punishment of
imprisonment for a term of ninety days. |
Possession
of child pornography |
(4)
Every person who possesses any child pornography is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding five years and to a
minimum punishment of imprisonment for a term of forty-five days;
or
(b) an offence punishable on
summary conviction and liable to imprisonment for a term not
exceeding eighteen months and to a minimum punishment of
imprisonment for a term of fourteen days. |
Accessing
child pornography |
(4.1)
Every person who accesses any child pornography is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding five years and to a
minimum punishment of imprisonment for a term of forty-five days;
or
(b) an offence punishable on
summary conviction and liable to imprisonment for a term not
exceeding eighteen months and to a minimum punishment of
imprisonment for a term of fourteen days. |
|
(4.2)
For the purposes of subsection (4.1), a person accesses child
pornography who knowingly causes child pornography to be viewed by,
or transmitted to, himself or herself. |
|
(4.3)
If a person is convicted of an offence under this section, the court
that imposes the sentence shall consider as an aggravating factor
the fact that the person committed the offence with intent to make a
profit. |
|
(5) It
is not a defence to a charge under subsection (2) in respect of a
visual representation that the accused believed that a person shown
in the representation that is alleged to constitute child
pornography was or was depicted as being eighteen years of age or
more unless the accused took all reasonable steps to ascertain the
age of that person and took all reasonable steps to ensure that,
where the person was eighteen years of age or more, the
representation did not depict that person as being under the age of
eighteen years. |
|
(6) No
person shall be convicted of an offence under this section if the
act that is alleged to constitute the offence
(a) has a legitimate purpose
related to the administration of justice or to science, medicine,
education or art; and
(b) does not pose an undue risk of
harm to persons under the age of eighteen years. |
|
(7)
For greater certainty, for the purposes of this section, it is a
question of law whether any written material, visual representation
or audio recording advocates or counsels sexual activity with a
person under the age of eighteen years that would be an offence
under this Act.
1993,
c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7. |
|
164. (1) A
judge who is satisfied by information on oath that there are
reasonable grounds for believing that
(
a) any publication, copies
of which are kept for sale or distribution in premises within the
jurisdiction of the court, is obscene or a crime comic, within the
meaning of section 163,
(
b) any representation,
written material or recording, copies of which are kept in premises
within the jurisdiction of the court, is child pornography within
the meaning of section 163.1, or
(
c) any recording, copies of
which are kept for sale or distribution in premises within the
jurisdiction of the court, is a voyeuristic recording,
may
issue a warrant authorizing seizure of the copies. |
|
(2)
Within seven days of the issue of a warrant under subsection (1),
the judge shall issue a summons to the occupier of the premises
requiring him to appear before the court and show cause why the
matter seized should not be forfeited to Her Majesty. |
Owner
and maker may appear |
(3)
The owner and the maker of the matter seized under subsection (1),
and alleged to be obscene, a crime comic, child pornography or a
voyeuristic recording, may appear and be represented in the
proceedings in order to oppose the making of an order for the
forfeiture of the matter. |
|
(4) If
the court is satisfied, on a balance of probabilities, that the
publication, representation, written material or recording referred
to in subsection (1) is obscene, a crime comic, child pornography or
a voyeuristic recording, it may make an order declaring the matter
forfeited to Her Majesty in right of the province in which the
proceedings take place, for disposal as the Attorney General may
direct. |
|
(5) If
the court is not satisfied that the publication, representation,
written material or recording referred to in subsection (1) is
obscene, a crime comic, child pornography or a voyeuristic
recording, it shall order that the matter be restored to the person
from whom it was seized without delay after the time for final
appeal has expired. |
|
(6) An
appeal lies from an order made under subsection (4) or (5) by any
person who appeared in the proceedings
(a) on any ground of appeal that
involves a question of law alone,
(b) on any ground of appeal that
involves a question of fact alone, or
(c) on any ground of appeal that
involves a question of mixed law and fact,
as if it
were an appeal against conviction or against a judgment or verdict
of acquittal, as the case may be, on a question of law alone under
Part XXI and sections 673 to 696 apply with such modifications as
the circumstances require. |
|
(7) If
an order is made under this section by a judge in a province with
respect to one or more copies of a publication, a representation,
written material or a recording, no proceedings shall be instituted
or continued in that province under section 162, 163 or 163.1 with
respect to those or other copies of the same publication,
representation, written material or recording without the consent of
the Attorney General. |
|
(8) In
this section, |
|
“court” means
(
a) in the Province of
Quebec, the Court of Quebec, the municipal court of Montreal and the
municipal court of Quebec,
(
a.1) in the Province of
Ontario, the Superior Court of Justice,
(
b) in the Provinces of New
Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s
Bench,
(
c) in the Provinces of
Prince Edward Island and Newfoundland, the Trial Division of the
Supreme Court,
(
c.1) [Repealed, 1992, c. 51,
s. 34]
(
d) in the Provinces of Nova
Scotia and British Columbia, in Yukon and in the Northwest
Territories, the Supreme Court, and
(
e) in Nunavut, the Nunavut
Court of Justice; |
“crime comic”
« histoire illustrée de
crime » |
“crime
comic” has the same meaning as in section 163; |
|
“judge” means a judge of a
court. |
“voyeuristic recording”
« enregistrement
voyeuriste » |
“voyeuristic recording”
means a visual recording within the meaning of subsection 162(2)
that is made as described in subsection 162(1).
R.S.,
1985, c. C-46, s. 164; R.S., 1985, c. 27 (2nd Supp.), s. 10, c. 40
(4th Supp.), s. 2; 1990, c. 16, s. 3, c. 17, s. 9; 1992, c. 1, s.
58, c. 51, s. 34; 1993, c. 46, s. 3; 1997, c. 18, s. 5; 1998, c. 30,
s. 14; 1999, c. 3, s. 27; 2002, c. 7, s. 139, c. 13, s. 6; 2005, c.
32, s. 8. |
|
164.1 (1) If
a judge is satisfied by information on oath that there are
reasonable grounds to believe that there is material — namely child
pornography within the meaning of section 163.1, a voyeuristic
recording within the meaning of subsection 164(8) or data within the
meaning of subsection 342.1(2) that makes child pornography or a
voyeuristic recording available — that is stored on and made
available through a computer system within the meaning of subsection
342.1(2) that is within the jurisdiction of the court, the judge may
order the custodian of the computer system to
(a) give an electronic copy of the
material to the court;
(b) ensure that the material is no
longer stored on and made available through the computer system;
and
(c) provide the information
necessary to identify and locate the person who posted the
material. |
Notice
to person who posted the material |
(2)
Within a reasonable time after receiving the information referred to
in paragraph (1)(c), the
judge shall cause notice to be given to the person who posted the
material, giving that person the opportunity to appear and be
represented before the court, and show cause why the material should
not be deleted. If the person cannot be identified or located or
does not reside in Canada, the judge may order the custodian of the
computer system to post the text of the notice at the location where
the material was previously stored and made available, until the
time set for the appearance. |
Person
who posted the material may appear |
(3)
The person who posted the material may appear and be represented in
the proceedings in order to oppose the making of an order under
subsection (5). |
|
(4) If
the person who posted the material does not appear for the
proceedings, the court may proceed ex parte to hear and determine the
proceedings in the absence of the person as fully and effectually as
if the person had appeared. |
|
(5) If
the court is satisfied, on a balance of probabilities, that the
material is child pornography within the meaning of section
163.1, a voyeuristic recording within the meaning of subsection
164(8) or data within the meaning of subsection 342.1(2) that makes
child pornography or the voyeuristic recording available, it may
order the custodian of the computer system to delete the
material. |
|
(6)
When the court makes the order for the deletion of the material, it
may order the destruction of the electronic copy in the court’s
possession. |
|
(7) If
the court is not satisfied that the material is child pornography
within the meaning of section 163.1, a voyeuristic recording within
the meaning of subsection 164(8) or data within the meaning of
subsection 342.1(2) that makes child pornography or the voyeuristic
recording available, the court shall order that the electronic copy
be returned to the custodian and terminate the order under paragraph
(1)(b). |
Other
provisions to apply |
(8)
Subsections 164(6) to (8) apply, with any modifications that the
circumstances require, to this section. |
|
(9) No
order made under subsections (5) to (7) takes effect until the time
for final appeal has expired.
2002,
c. 13, s. 7; 2005, c. 32, s. 9. |
|
164.2 (1) On
application of the Attorney General, a court that convicts a person
of an offence under section 163.1, in addition to any other
punishment that it may impose, may order that any thing — other than
real property — be forfeited to Her Majesty and disposed of as the
Attorney General directs if it is satisfied, on a balance of
probabilities, that the thing
(a) was used in the commission of
the offence; and
(b) is the property of
(i)
the convicted person or another person who was a party to the
offence, or
(ii) a
person who acquired the thing from a person referred to in
subparagraph (i) under circumstances that give rise to a reasonable
inference that it was transferred for the purpose of avoiding
forfeiture. |
|
(2)
Before making an order under subsection (1), the court shall cause
notice to be given to, and may hear, any person whom it considers to
have an interest in the thing, and may declare the nature and extent
of the person’s interest in it. |
Right
of appeal — third party |
(3) A
person who was heard in response to a notice given under subsection
(2) may appeal to the court of appeal against an order made under
subsection (1). |
Right
of appeal — Attorney General |
(4)
The Attorney General may appeal to the court of appeal against the
refusal of a court to make an order under subsection (1). |
|
(5)
Part XXI applies, with any modifications that the circumstances
require, with respect to the procedure for an appeal under
subsections (3) and (4).
2002,
c. 13, s. 7. |
|
164.3 (1)
Within thirty days after an order under subsection 164.2(1) is made,
a person who claims an interest in the thing forfeited may apply in
writing to a judge for an order under subsection (4). |
|
(2)
The judge shall fix a day — not less than thirty days after the
application is made — for its hearing. |
Notice
to Attorney General |
(3) At
least fifteen days before the hearing, the applicant shall cause
notice of the application and of the hearing day to be served on the
Attorney General. |
|
(4)
The judge may make an order declaring that the applicant’s interest
in the thing is not affected by the forfeiture and declaring the
nature and extent of the interest if the judge is satisfied that the
applicant
(a) was not a party to the offence;
and
(b) did not acquire the thing from
a person who was a party to the offence under circumstances that
give rise to a reasonable inference that it was transferred for the
purpose of avoiding forfeiture. |
Appeal
to court of appeal |
(5) A
person referred to in subsection (4) or the Attorney General may
appeal to the court of appeal against an order made under that
subsection. Part XXI applies, with any modifications that the
circumstances require, with respect to the procedure for an appeal
under this subsection. |
Powers
of Attorney General |
(6) On
application by a person who obtained an order under subsection (4),
made after the expiration of the time allowed for an appeal against
the order and, if an appeal is taken, after it has been finally
disposed of, the Attorney General shall direct that
(a) the thing be returned to the
person; or
(b) an amount equal to the value of
the extent of the person’s interest, as declared in the order, be
paid to the person.
2002,
c. 13, s. 7. |
|
165. Every
one commits an offence who refuses to sell or supply to any other
person copies of any publication for the reason only that the other
person refuses to purchase or acquire from him copies of any other
publication that the other person is apprehensive may be obscene or
a crime comic.
R.S.,
c. C-34, s. 161. |
|
166.
[Repealed, 1994, c. 44, s. 9] |
|
167. (1)
Every one commits an offence who, being the lessee, manager, agent
or person in charge of a theatre, presents or gives or allows to be
presented or given therein an immoral, indecent or obscene
performance, entertainment or representation. |
|
(2)
Every one commits an offence who takes part or appears as an actor,
a performer or an assistant in any capacity, in an immoral, indecent
or obscene performance, entertainment or representation in a
theatre.
R.S.,
c. C-34, s. 163. |
|
168. (1)
Every one commits an offence who makes use of the mails for the
purpose of transmitting or delivering anything that is obscene,
indecent, immoral or scurrilous. |
|
(2)
Subsection (1) does not apply to a person who
(a) prints or publishes any matter
for use in connection with any judicial proceedings or communicates
it to persons who are concerned in the proceedings;
(b) prints or publishes a notice or
report under the direction of a court; or
(c) prints or publishes any
matter
(i) in
a volume or part of a genuine series of law reports that does not
form part of any other publication and consists solely of reports of
proceedings in courts of law, or
(ii)
in a publication of a technical character that is intended, in good
faith, for circulation among members of the legal or medical
profession.
R.S.,
1985, c. C-46, s. 168; 1999, c. 5, s. 2. |
|
169. Every
one who commits an offence under section 163, 165, 167 or 168 is
guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction.
R.S.,
1985, c. C-46, s. 169; 1999, c. 5, s. 3. |
|
170. Every
parent or guardian of a person under the age of eighteen years who
procures the person for the purpose of engaging in any sexual
activity prohibited by this Act with a person other than the parent
or guardian is guilty of an indictable offence and liable
(a) to imprisonment for a term not
exceeding five years and to a minimum punishment of imprisonment for
a term of six months if the person procured is under the age of
fourteen years; or
(b) to imprisonment for a term not
exceeding two years and to a minimum punishment of imprisonment for
a term of forty-five days if the person procured is fourteen years
of age or more but under the age of eighteen years.
R.S.,
1985, c. C-46, s. 170; R.S., 1985, c. 19 (3rd Supp.), s. 5; 2005, c.
32, s. 9.1. |
|
171. Every
owner, occupier or manager of premises, or any other person who has
control of premises or assists in the management or control of
premises, who knowingly permits a person under the age of eighteen
years to resort to or to be in or on the premises for the purpose of
engaging in any sexual activity prohibited by this Act is guilty of
an indictable offence and liable
(a) to imprisonment for a term not
exceeding five years and to a minimum punishment of imprisonment for
a term of six months if the person in question is under the age of
fourteen years; or
(b) to imprisonment for a term not
exceeding two years and to a minimum punishment of imprisonment for
a term of forty-five days if the person is fourteen years of age or
more but under the age of eighteen years.
R.S.,
1985, c. C-46, s. 171; R.S., 1985, c. 19 (3rd Supp.), s. 5; 2005, c.
32, s. 9.1. |
|
172. (1)
Every one who, in the home of a child, participates in adultery or
sexual immorality or indulges in habitual drunkenness or any other
form of vice, and thereby endangers the morals of the child or
renders the home an unfit place for the child to be in, is guilty of
an indictable offence and liable to imprisonment for a term not
exceeding two years.
(2)
[Repealed, R.S., 1985, c. 19 (3rd Supp.), s. 6] |
|
(3)
For the purposes of this section, “child” means a person who is or
appears to be under the age of eighteen years. |
Who
may institute prosecutions |
(4) No
proceedings shall be commenced under subsection (1) without the
consent of the Attorney General, unless they are instituted by or at
the instance of a recognized society for the protection of children
or by an officer of a juvenile court.
R.S.,
1985, c. C-46, s. 172; R.S., 1985, c. 19 (3rd Supp.), s.
6. |
|
172.1 (1)
Every person commits an offence who, by means of a computer system
within the meaning of subsection 342.1(2), communicates with
(a) a person who is, or who the
accused believes is, under the age of eighteen years, for the
purpose of facilitating the commission of an offence under
subsection 153(1), section 155 or 163.1, subsection 212(1) or (4) or
section 271, 272 or 273 with respect to that person;
(b) a person who is, or who the
accused believes is, under the age of sixteen years, for the purpose
of facilitating the commission of an offence under section 280 with
respect to that person; or
(c) a person who is, or who the
accused believes is, under the age of fourteen years, for the
purpose of facilitating the commission of an offence under section
151 or 152, subsection 160(3) or 173(2) or section 281 with respect
to that person. |
|
(2)
Every person who commits an offence under subsection (1) is guilty
of
(a) an indictable offence and
liable to imprisonment for a term of not more than five years;
or
(b) an offence punishable on
summary conviction. |
|
(3)
Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused
as being under the age of eighteen years, sixteen years or fourteen
years, as the case may be, is, in the absence of evidence to the
contrary, proof that the accused believed that the person was under
that age. |
|
(4) It
is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that
the person referred to in that paragraph was at least eighteen years
of age, sixteen years or fourteen years of age, as the case may be,
unless the accused took reasonable steps to ascertain the age of the
person.
2002,
c. 13, s. 8. |
|
|
|
173. (1)
Every one who wilfully does an indecent act
(a) in a public place in the
presence of one or more persons, or
(b) in any place, with intent
thereby to insult or offend any person,
is
guilty of an offence punishable on summary conviction. |
|
(2)
Every person who, in any place, for a sexual purpose, exposes his or
her genital organs to a person who is under the age of fourteen
years is guilty of an offence punishable on summary conviction.
R.S.,
1985, c. C-46, s. 173; R.S., 1985, c. 19 (3rd Supp.), s.
7. |
|
174. (1)
Every one who, without lawful excuse,
(a) is nude in a public place,
or
(b) is nude and exposed to public
view while on private property, whether or not the property is his
own,
is
guilty of an offence punishable on summary conviction. |
|
(2)
For the purposes of this section, a person is nude who is so clad as
to offend against public decency or order. |
Consent
of Attorney General |
(3) No
proceedings shall be commenced under this section without the
consent of the Attorney General.
R.S.,
c. C-34, s. 170. |
|
175. (1)
Every one who
(a) not being in a dwelling-house,
causes a disturbance in or near a public place,
(i) by
fighting, screaming, shouting, swearing, singing or using insulting
or obscene language,
(ii)
by being drunk, or
(iii)
by impeding or molesting other persons,
(b) openly exposes or exhibits an
indecent exhibition in a public place,
(c) loiters in a public place and
in any way obstructs persons who are in that place, or
(d) disturbs the peace and quiet of
the occupants of a dwelling-house by discharging firearms or by
other disorderly conduct in a public place or who, not being an
occupant of a dwelling-house comprised in a particular building or
structure, disturbs the peace and quiet of the occupants of a
dwelling-house comprised in the building or structure by discharging
firearms or by other disorderly conduct in any part of a building or
structure to which, at the time of such conduct, the occupants of
two or more dwelling-houses comprised in the building or structure
have access as of right or by invitation, express or implied,
is
guilty of an offence punishable on summary conviction. |
Evidence
of peace officer |
(2) In
the absence of other evidence, or by way of corroboration of other
evidence, a summary conviction court may infer from the evidence of
a peace officer relating to the conduct of a person or persons,
whether ascertained or not, that a disturbance described in
paragraph (1)(a) or (d) or an obstruction described in
paragraph (1)(c) was caused
or occurred.
R.S.,
1985, c. C-46, s. 175; 1997, c. 18, s. 6. |
|
176. (1)
Every one who
(a) by threats or force, unlawfully
obstructs or prevents or endeavours to obstruct or prevent a
clergyman or minister from celebrating divine service or performing
any other function in connection with his calling, or
(b) knowing that a clergyman or
minister is about to perform, is on his way to perform or is
returning from the performance of any of the duties or functions
mentioned in paragraph (a)
(i)
assaults or offers any violence to him, or
(ii)
arrests him on a civil process, or under the pretence of executing a
civil process,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
Disturbing
religious worship or certain meetings |
(2)
Every one who wilfully disturbs or interrupts an assemblage of
persons met for religious worship or for a moral, social or
benevolent purpose is guilty of an offence punishable on summary
conviction. |
|
(3)
Every one who, at or near a meeting referred to in subsection (2),
wilfully does anything that disturbs the order or solemnity of the
meeting is guilty of an offence punishable on summary
conviction.
R.S.,
c. C-34, s. 172. |
|
177. Every
one who, without lawful excuse, the proof of which lies on him,
loiters or prowls at night on the property of another person near a
dwelling-house situated on that property is guilty of an offence
punishable on summary conviction.
R.S.,
c. C-34, s. 173. |
|
178. Every
one other than a peace officer engaged in the discharge of his duty
who has in his possession in a public place or who deposits, throws
or injects or causes to be deposited, thrown or injected in, into or
near any place,
(a) an offensive volatile substance
that is likely to alarm, inconvenience, discommode or cause
discomfort to any person or to cause damage to property, or
(b) a stink or stench bomb or
device from which any substance mentioned in paragraph (a) is or is capable of being
liberated,
is
guilty of an offence punishable on summary conviction.
R.S.,
c. C-34, s. 174. |
|
179. (1)
Every one commits vagrancy who
(a) supports himself in whole or in
part by gaming or crime and has no lawful profession or calling by
which to maintain himself; or
(b) having at any time been
convicted of an offence under section 151, 152 or 153, subsection
160(3) or 173(2) or section 271, 272 or 273, or of an offence under
a provision referred to in paragraph (b) of the definition “serious
personal injury offence” in section 687 of the Criminal Code, chapter C-34 of the
Revised Statutes of Canada, 1970, as it read before January 4, 1983,
is found loitering in or near a school ground, playground, public
park or bathing area. |
|
(2)
Every one who commits vagrancy is guilty of an offence punishable on
summary conviction.
R.S.,
1985, c. C-46, s. 179; R.S., 1985, c. 27 (1st Supp.), s. 22, c. 19
(3rd Supp.), s. 8. |
|
|
|
180. (1)
Every one who commits a common nuisance and thereby
(a) endangers the lives, safety or
health of the public, or
(b) causes physical injury to any
person,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
|
(2)
For the purposes of this section, every one commits a common
nuisance who does an unlawful act or fails to discharge a legal duty
and thereby
(a) endangers the lives, safety,
health, property or comfort of the public; or
(b) obstructs the public in the
exercise or enjoyment of any right that is common to all the
subjects of Her Majesty in Canada.
R.S.,
c. C-34, s. 176. |
|
181. Every
one who wilfully publishes a statement, tale or news that he knows
is false and that causes or is likely to cause injury or mischief to
a public interest is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years.
R.S.,
c. C-34, s. 177. |
|
182. Every
one who
(a) neglects, without lawful
excuse, to perform any duty that is imposed on him by law or that he
undertakes with reference to the burial of a dead human body or
human remains, or
(b) improperly or indecently
interferes with or offers any indignity to a dead human body or
human remains, whether buried or not,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 178. |
|
PART
VI
INVASION OF
PRIVACY |
|
|
|
183. In this
Part, |
“authorization”
« autorisation » |
“authorization” means an
authorization to intercept a private communication given under
section 186 or subsection 184.2(3), 184.3(6) or 188(2); |
“electro-magnetic, acoustic,
mechanical or other device”
« dispositif électromagnétique, acoustique,
mécanique ou autre » |
“electro-magnetic,
acoustic, mechanical or other device” means any device or apparatus
that is used or is capable of being used to intercept a private
communication, but does not include a hearing aid used to correct
subnormal hearing of the user to not better than normal
hearing; |
“intercept”
« intercepter » |
“intercept” includes
listen to, record or acquire a communication or acquire the
substance, meaning or purport thereof; |
|
“offence” means an offence
contrary to, any conspiracy or attempt to commit or being an
accessory after the fact in relation to an offence contrary to, or
any counselling in relation to an offence contrary to
(a) any of the following provisions
of this Act, namely,
(i)
section 47 (high treason),
(ii)
section 51 (intimidating Parliament or a legislature),
(iii)
section 52 (sabotage),
(iv)
section 57 (forgery, etc.),
(v)
section 61 (sedition),
(vi)
section 76 (hijacking),
(vii)
section 77 (endangering safety of aircraft or airport),
(viii)
section 78 (offensive weapons, etc., on aircraft),
(ix)
section 78.1 (offences against maritime navigation or fixed
platforms),
(x)
section 80 (breach of duty),
(xi)
section 81 (using explosives),
(xii)
section 82 (possessing explosives),
(xii.1)
section 83.02 (providing or collecting property for certain
activities),
(xii.2)
section 83.03 (providing, making available, etc., property or
services for terrorist purposes),
(xii.3)
section 83.04 (using or possessing property for terrorist
purposes),
(xii.4)
section 83.18 (participation in activity of terrorist group),
(xii.5)
section 83.19 (facilitating terrorist activity),
(xii.6)
section 83.2 (commission of offence for terrorist group),
(xii.7)
section 83.21 (instructing to carry out activity for terrorist
group),
(xii.8)
section 83.22 (instructing to carry out terrorist activity),
(xii.9)
section 83.23 (harbouring or concealing),
(xii.91)
section 83.231 (hoax — terrorist activity),
(xiii)
section 96 (possession of weapon obtained by commission of
offence),
(xiv)
section 99 (weapons trafficking),
(xv)
section 100 (possession for purpose of weapons trafficking),
(xvi)
section 102 (making automatic firearm),
(xvii)
section 103 (importing or exporting knowing it is unauthorized),
(xviii)
section 104 (unauthorized importing or exporting),
(xix)
section 119 (bribery, etc.),
(xx)
section 120 (bribery, etc.),
(xxi)
section 121 (fraud on government),
(xxii)
section 122 (breach of trust),
(xxiii)
section 123 (municipal corruption),
(xxiv)
section 132 (perjury),
(xxv)
section 139 (obstructing justice),
(xxvi)
section 144 (prison breach),
(xxvii)
subsection 145(1) (escape, etc.),
(xxvii.1)
section 162 (voyeurism),
(xxviii)
paragraph 163(1)(a) (obscene
materials),
(xxix)
section 163.1 (child pornography),
(xxx)
section 184 (unlawful interception),
(xxxi)
section 191 (possession of intercepting device),
(xxxii)
subsection 201(1) (keeping gaming or betting house),
(xxxiii)
paragraph 202(1)(e)
(pool-selling, etc.),
(xxxiv)
subsection 210(1) (keeping common bawdy house),
(xxxv)
subsection 212(1) (procuring),
(xxxvi)
subsection 212(2) (procuring),
(xxxvii)
subsection 212(2.1) (aggravated offence in relation to living on the
avails of prostitution of a person under the age of eighteen
years),
(xxxviii)
subsection 212(4) (offence — prostitution of person under
eighteen),
(xxxix)
section 235 (murder),
(xl)
section 264.1 (uttering threats),
(xli)
section 267 (assault with a weapon or causing bodily harm),
(xlii)
section 268 (aggravated assault),
(xliii)
section 269 (unlawfully causing bodily harm),
(xliv)
section 271 (sexual assault),
(xlv)
section 272 (sexual assault with a weapon, threats to a third party
or causing bodily harm),
(xlvi)
section 273 (aggravated sexual assault),
(xlvii)
section 279 (kidnapping),
(xlviii)
section 279.1 (hostage taking),
(xlix)
section 280 (abduction of person under sixteen),
(l)
section 281 (abduction of person under fourteen),
(li)
section 282 (abduction in contravention of custody order),
(lii)
section 283 (abduction),
(liii)
section 318 (advocating genocide),
(liv)
section 327 (possession of device to obtain telecommunication
facility or service),
(lv)
section 334 (theft),
(lvi)
section 342 (theft, forgery, etc., of credit card),
(lvii)
section 342.1 (unauthorized use of computer),
(lviii)
section 342.2 (possession of device to obtain computer service),
(lix)
section 344 (robbery),
(lx)
section 346 (extortion),
(lxi)
section 347 (criminal interest rate),
(lxii)
section 348 (breaking and entering),
(lxiii)
section 354 (possession of property obtained by crime),
(lxiv)
section 356 (theft from mail),
(lxv)
section 367 (forgery),
(lxvi)
section 368 (uttering forged document),
(lxvii)
section 372 (false messages),
(lxviii)
section 380 (fraud),
(lxix)
section 381 (using mails to defraud),
(lxx)
section 382 (fraudulent manipulation of stock exchange
transactions),
(lxxi)
section 423.1 (intimidation of justice system participant or
journalist),
(lxxii)
section 424 (threat to commit offences against internationally
protected person),
(lxxii.1)
section 424.1 (threat against United Nations or associated
personnel),
(lxxiii)
section 426 (secret commissions),
(lxxiv)
section 430 (mischief),
(lxxv)
section 431 (attack on premises, residence or transport of
internationally protected person),
(lxxv.1)
section 431.1 (attack on premises, accommodation or transport of
United Nations or associated personnel),
(lxxv.2)
subsection 431.2(2) (explosive or other lethal device),
(lxxvi)
section 433 (arson),
(lxxvii)
section 434 (arson),
(lxxviii)
section 434.1 (arson),
(lxxix)
section 435 (arson for fraudulent purpose),
(lxxx)
section 449 (making counterfeit money),
(lxxxi)
section 450 (possession, etc., of counterfeit money),
(lxxxii)
section 452 (uttering, etc., counterfeit money),
(lxxxiii)
section 462.31 (laundering proceeds of crime),
(lxxxiv)
subsection 462.33(11) (acting in contravention of restraint
order),
(lxxxv)
section 467.11 (participation in criminal organization),
(lxxxvi)
section 467.12 (commission of offence for criminal organization),
or
(lxxxvii)
section 467.13 (instructing commission of offence for criminal
organization),
(b) section 198 (fraudulent
bankruptcy) of the Bankruptcy and
Insolvency Act,
(b.1) any of the following
provisions of the Biological and
Toxin Weapons Convention Implementation Act, namely,
(i)
section 6 (production, etc., of biological agents and means of
delivery), or
(ii)
section 7 (unauthorized production, etc., of biological agents),
(c) any of the following provisions
of the Competition Act,
namely,
(i)
section 45 (conspiracy) in relation to any of the matters referred
to in paragraphs 45(4)(a) to
(d) of that Act,
(ii)
section 47 (bid-rigging), or
(iii)
subsection 52.1(3) (deceptive telemarketing),
(d) any of the following provisions
of the Controlled Drugs and
Substances Act, namely,
(i)
section 5 (trafficking),
(ii)
section 6 (importing and exporting), or
(iii)
section 7 (production),
(e) section 3 (bribing a foreign
public official) of the Corruption
of Foreign Public Officials Act,
(e.1) the Crimes Against Humanity and War Crimes
Act,
(f) either of the following
provisions of the Customs
Act, namely,
(i)
section 153 (false statements), or
(ii)
section 159 (smuggling),
(g) any of the following provisions
of the Excise Act, 2001,
namely,
(i)
section 214 (unlawful production, sale, etc., of tobacco or
alcohol),
(ii)
section 216 (unlawful possession of tobacco product),
(iii)
section 218 (unlawful possession, sale, etc., of alcohol),
(iv)
section 219 (falsifying or destroying records),
(v)
section 230 (possession of property obtained by excise offences),
or
(vi)
section 231 (laundering proceeds of excise offences),
(h) any of the following provisions
of the Export and Import Permits
Act, namely,
(i)
section 13 (export or attempt to export),
(ii)
section 14 (import or attempt to import),
(iii)
section 15 (diversion, etc.),
(iv)
section 16 (no transfer of permits),
(v)
section 17 (false information), or
(vi)
section 18 (aiding and abetting),
(i) any of the following provisions
of the Immigration and Refugee
Protection Act, namely,
(i)
section 117 (organizing entry into Canada),
(ii)
section 118 (trafficking in persons),
(iii)
section 119 (disembarking persons at sea),
(iv)
section 122 (offences related to documents),
(v)
section 126 (counselling misrepresentation), or
(vi)
section 129 (offences relating to officers), or
(j) any offence under the Security of Information Act,
and includes any other
offence that there are reasonable grounds to believe is a criminal
organization offence or any other offence that there are reasonable
grounds to believe is an offence described in paragraph (b) or (c) of the definition “terrorism
offence” in section 2; |
“private communication”
« communication
privée » |
“private communication”
means any oral communication, or any telecommunication, that is made
by an originator who is in Canada or is intended by the originator
to be received by a person who is in Canada and that is made under
circumstances in which it is reasonable for the originator to expect
that it will not be intercepted by any person other than the person
intended by the originator to receive it, and includes any
radio-based telephone communication that is treated electronically
or otherwise for the purpose of preventing intelligible reception by
any person other than the person intended by the originator to
receive it; |
“public switched telephone
network”
« réseau téléphonique public
commuté » |
“public switched telephone
network” means a telecommunication facility the primary purpose of
which is to provide a land line-based telephone service to the
public for compensation; |
“radio-based telephone
communication”
« communication
radiotéléphonique » |
“radio-based telephone
communication” means any radiocommunication within the meaning of
the Radiocommunication Act
that is made over apparatus that is used primarily for connection to
a public switched telephone network; |
|
“sell”
includes offer for sale, expose for sale, have in possession for
sale or distribute or advertise for sale; |
|
“solicitor” means, in the
Province of Quebec, an advocate or a notary and, in any other
province, a barrister or solicitor.
R.S.,
1985, c. C-46, s. 183; R.S., 1985, c. 27 (1st Supp.), ss. 7, 23, c.
1 (2nd Supp.), s. 213, c. 1 (4th Supp.), s. 13, c. 29 (4th Supp.),
s. 17, c. 42 (4th Supp.), s. 1; 1991, c. 28, s. 12; 1992, c. 27, s.
90; 1993, c. 7, s. 5, c. 25, s. 94, c. 40, s. 1, c. 46, s. 4; 1995,
c. 39, s. 140; 1996, c. 19, s. 66; 1997, c. 18, s. 7, c. 23, s. 3;
1998, c. 34, s. 8; 1999, c. 2, s. 47, c. 5, s. 4; 2000, c. 24, s.
43; 2001, c. 32, s. 4, c. 41, ss. 5, 31, 133; 2002, c. 22, s. 409;
2004, c. 15, s. 108; 2005, c. 32, s. 10. |
|
183.1 Where a
private communication is originated by more than one person or is
intended by the originator thereof to be received by more than one
person, a consent to the interception thereof by any one of those
persons is sufficient consent for the purposes of any provision of
this Part.
1993,
c. 40, s. 2. |
|
Interception
of Communications |
|
184. (1)
Every one who, by means of any electro-magnetic, acoustic,
mechanical or other device, wilfully intercepts a private
communication is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years. |
|
(2)
Subsection (1) does not apply to
(
a) a person who has the
consent to intercept, express or implied, of the originator of the
private communication or of the person intended by the originator
thereof to receive it;
(
b) a person who intercepts a
private communication in accordance with an authorization or
pursuant to section 184.4 or any person who in good faith aids in
any way another person who the aiding person believes on reasonable
grounds is acting with an authorization or pursuant to section
184.4;
(
c) a person engaged in
providing a telephone, telegraph or other communication service to
the public who intercepts a private communication,
(i) if
the interception is necessary for the purpose of providing the
service,
(ii)
in the course of service observing or random monitoring necessary
for the purpose of mechanical or service quality control checks,
or
(iii)
if the interception is necessary to protect the person’s rights or
property directly related to providing the service;
(
d) an officer or servant of
Her Majesty in right of Canada who engages in radio frequency
spectrum management, in respect of a private communication
intercepted by that officer or servant for the purpose of
identifying, isolating or preventing an unauthorized or interfering
use of a frequency or of a transmission; or
(
e) a person, or any person
acting on their behalf, in possession or control of a computer
system, as defined in subsection 342.1(2), who intercepts a private
communication originating from, directed to or transmitting through
that computer system, if the interception is reasonably necessary
for
(i)
managing the quality of service of the computer system as it relates
to performance factors such as the responsiveness and capacity of
the system as well as the integrity and availability of the system
and data, or
(ii)
protecting the computer system against any act that would be an
offence under subsection 342.1(1) or 430(1.1). |
|
(3) A
private communication intercepted by a person referred to in
paragraph (2)( e) can be
used or retained only if
(
a) it is essential to
identify, isolate or prevent harm to the computer system; or
(
b) it is to be disclosed in
circumstances referred to in subsection 193(2).
R.S.,
1985, c. C-46, s. 184; 1993, c. 40, s. 3; 2004, c. 12, s.
4. |
|
184.1 (1) An
agent of the state may intercept, by means of any electro-magnetic,
acoustic, mechanical or other device, a private communication if
(a) either the originator of the
private communication or the person intended by the originator to
receive it has consented to the interception;
(b) the agent of the state believes
on reasonable grounds that there is a risk of bodily harm to the
person who consented to the interception; and
(c) the purpose of the interception
is to prevent the bodily harm. |
Admissibility
of intercepted communication |
(2)
The contents of a private communication that is obtained from an
interception pursuant to subsection (1) are inadmissible as evidence
except for the purposes of proceedings in which actual, attempted or
threatened bodily harm is alleged, including proceedings in respect
of an application for an authorization under this Part or in respect
of a search warrant or a warrant for the arrest of any
person. |
Destruction
of recordings and transcripts |
(3)
The agent of the state who intercepts a private communication
pursuant to subsection (1) shall, as soon as is practicable in the
circumstances, destroy any recording of the private communication
that is obtained from an interception pursuant to subsection (1),
any full or partial transcript of the recording and any notes made
by that agent of the private communication if nothing in the private
communication suggests that bodily harm, attempted bodily harm or
threatened bodily harm has occurred or is likely to occur. |
Definition
of “agent of the state” |
(4)
For the purposes of this section, “agent of the state” means
(a) a peace officer; and
(b) a person acting under the
authority of, or in cooperation with, a peace officer.
1993,
c. 40, s. 4. |
|
184.2 (1) A
person may intercept, by means of any electro-magnetic, acoustic,
mechanical or other device, a private communication where either the
originator of the private communication or the person intended by
the originator to receive it has consented to the interception and
an authorization has been obtained pursuant to subsection
(3). |
Application
for authorization |
(2) An
application for an authorization under this section shall be made by
a peace officer, or a public officer who has been appointed or
designated to administer or enforce any federal or provincial law
and whose duties include the enforcement of this or any other Act of
Parliament, ex parte and in
writing to a provincial court judge, a judge of a superior court of
criminal jurisdiction or a judge as defined in section 552, and
shall be accompanied by an affidavit, which may be sworn on the
information and belief of that peace officer or public officer or of
any other peace officer or public officer, deposing to the following
matters:
(a) that there are reasonable
grounds to believe that an offence against this or any other Act of
Parliament has been or will be committed;
(b) the particulars of the
offence;
(c) the name of the person who has
consented to the interception;
(d) the period for which the
authorization is requested; and
(e) in the case of an application
for an authorization where an authorization has previously been
granted under this section or section 186, the particulars of the
authorization. |
|
(3) An
authorization may be given under this section if the judge to whom
the application is made is satisfied that
(a) there are reasonable grounds to
believe that an offence against this or any other Act of Parliament
has been or will be committed;
(b) either the originator of the
private communication or the person intended by the originator to
receive it has consented to the interception; and
(c) there are reasonable grounds to
believe that information concerning the offence referred to in
paragraph (a) will be
obtained through the interception sought. |
Content
and limitation of authorization |
(4) An
authorization given under this section shall
(a) state the offence in respect of
which private communications may be intercepted;
(b) state the type of private
communication that may be intercepted;
(c) state the identity of the
persons, if known, whose private communications are to be
intercepted, generally describe the place at which private
communications may be intercepted, if a general description of that
place can be given, and generally describe the manner of
interception that may be used;
(d) contain the terms and
conditions that the judge considers advisable in the public
interest; and
(e) be valid for the period, not
exceeding sixty days, set out therein.
1993,
c. 40, s. 4. |
|
184.3 (1)
Notwithstanding section 184.2, an application for an authorization
under subsection 184.2(2) may be made ex parte to a provincial court
judge, a judge of a superior court of criminal jurisdiction or a
judge as defined in section 552, by telephone or other means of
telecommunication, if it would be impracticable in the circumstances
for the applicant to appear personally before a judge. |
|
(2) An
application for an authorization made under this section shall be on
oath and shall be accompanied by a statement that includes the
matters referred to in paragraphs 184.2(2)(a) to (e) and that states the
circumstances that make it impracticable for the applicant to appear
personally before a judge. |
|
(3)
The judge shall record, in writing or otherwise, the application for
an authorization made under this section and, on determination of
the application, shall cause the writing or recording to be placed
in the packet referred to in subsection 187(1) and sealed in that
packet, and a recording sealed in a packet shall be treated as if it
were a document for the purposes of section 187. |
|
(4)
For the purposes of subsection (2), an oath may be administered by
telephone or other means of telecommunication. |
|
(5) An
applicant who uses a means of telecommunication that produces a
writing may, instead of swearing an oath for the purposes of
subsection (2), make a statement in writing stating that all matters
contained in the application are true to the knowledge or belief of
the applicant and such a statement shall be deemed to be a statement
made under oath. |
|
(6)
Where the judge to whom an application is made under this section is
satisfied that the circumstances referred to in paragraphs
184.2(3)(a) to (c) exist and that the
circumstances referred to in subsection (2) make it impracticable
for the applicant to appear personally before a judge, the judge
may, on such terms and conditions, if any, as are considered
advisable, give an authorization by telephone or other means of
telecommunication for a period of up to thirty-six hours. |
|
(7)
Where a judge gives an authorization by telephone or other means of
telecommunication, other than a means of telecommunication that
produces a writing,
(a) the judge shall complete and
sign the authorization in writing, noting on its face the time, date
and place at which it is given;
(b) the applicant shall, on the
direction of the judge, complete a facsimile of the authorization in
writing, noting on its face the name of the judge who gave it and
the time, date and place at which it was given; and
(c) the judge shall, as soon as is
practicable after the authorization has been given, cause the
authorization to be placed in the packet referred to in subsection
187(1) and sealed in that packet. |
Giving
authorization where telecommunication produces writing |
(8)
Where a judge gives an authorization by a means of telecommunication
that produces a writing, the judge shall
(a) complete and sign the
authorization in writing, noting on its face the time, date and
place at which it is given;
(b) transmit the authorization by
the means of telecommunication to the applicant, and the copy
received by the applicant shall be deemed to be a facsimile referred
to in paragraph (7)(b);
and
(c) as soon as is practicable after
the authorization has been given, cause the authorization to be
placed in the packet referred to in subsection 187(1) and sealed in
that packet.
1993,
c. 40, s. 4. |
|
184.4 A peace
officer may intercept, by means of any electro-magnetic, acoustic,
mechanical or other device, a private communication where
(a) the peace officer believes on
reasonable grounds that the urgency of the situation is such that an
authorization could not, with reasonable diligence, be obtained
under any other provision of this Part;
(b) the peace officer believes on
reasonable grounds that such an interception is immediately
necessary to prevent an unlawful act that would cause serious harm
to any person or to property; and
(c) either the originator of the
private communication or the person intended by the originator to
receive it is the person who would perform the act that is likely to
cause the harm or is the victim, or intended victim, of the
harm.
1993,
c. 40, s. 4. |
|
184.5 (1)
Every person who intercepts, by means of any electro-magnetic,
acoustic, mechanical or other device, maliciously or for gain, a
radio-based telephone communication, if the originator of the
communication or the person intended by the originator of the
communication to receive it is in Canada, is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years. |
Other
provisions to apply |
(2)
Section 183.1, subsection 184(2) and sections 184.1 to 190 and 194
to 196 apply, with such modifications as the circumstances require,
to interceptions of radio-based telephone communications referred to
in subsection (1).
1993,
c. 40, s. 4. |
|
184.6 For
greater certainty, an application for an authorization under this
Part may be made with respect to both private communications and
radio-based telephone communications at the same time.
1993,
c. 40, s. 4. |
|
185. (1) An
application for an authorization to be given under section 186 shall
be made ex parte and in
writing to a judge of a superior court of criminal jurisdiction or a
judge as defined in section 552 and shall be signed by the Attorney
General of the province in which the application is made or the
Minister of Public Safety and Emergency Preparedness or an agent
specially designated in writing for the purposes of this section
by
(a) the Minister personally or the
Deputy Minister of Public Safety and Emergency Preparedness
personally, if the offence under investigation is one in respect of
which proceedings, if any, may be instituted at the instance of the
Government of Canada and conducted by or on behalf of the Attorney
General of Canada, or
(b) the Attorney General of a
province personally or the Deputy Attorney General of a province
personally, in any other case,
and
shall be accompanied by an affidavit, which may be sworn on the
information and belief of a peace officer or public officer deposing
to the following matters:
(c) the facts relied on to justify
the belief that an authorization should be given together with
particulars of the offence,
(d) the type of private
communication proposed to be intercepted,
(e) the names, addresses and
occupations, if known, of all persons, the interception of whose
private communications there are reasonable grounds to believe may
assist the investigation of the offence, a general description of
the nature and location of the place, if known, at which private
communications are proposed to be intercepted and a general
description of the manner of interception proposed to be used,
(f) the number of instances, if
any, on which an application has been made under this section in
relation to the offence and a person named in the affidavit pursuant
to paragraph (e) and on
which the application was withdrawn or no authorization was given,
the date on which each application was made and the name of the
judge to whom each application was made,
(g) the period for which the
authorization is requested, and
(h) whether other investigative
procedures have been tried and have failed or why it appears they
are unlikely to succeed or that the urgency of the matter is such
that it would be impractical to carry out the investigation of the
offence using only other investigative procedures. |
Exception
for criminal organizations and terrorist groups |
(1.1)
Notwithstanding paragraph (1)(h), that paragraph does not apply
where the application for an authorization is in relation to
(a) an offence under section
467.11, 467.12 or 467.13;
(b) an offence committed for the
benefit of, at the direction of or in association with a criminal
organization; or
(c) a terrorism offence. |
Extension
of period for notification |
(2) An
application for an authorization may be accompanied by an
application, personally signed by the Attorney General of the
province in which the application for the authorization is made or
the Minister of Public Safety and Emergency Preparedness if the
application for the authorization is made by him or on his behalf,
to substitute for the period mentioned in subsection 196(1) such
longer period not exceeding three years as is set out in the
application. |
Where
extension to be granted |
(3)
Where an application for an authorization is accompanied by an
application referred to in subsection (2), the judge to whom the
applications are made shall first consider the application referred
to in subsection (2) and where, on the basis of the affidavit in
support of the application for the authorization and any other
affidavit evidence submitted in support of the application referred
to in subsection (2), the judge is of the opinion that the interests
of justice warrant the granting of the application, he shall fix a
period, not exceeding three years, in substitution for the period
mentioned in subsection 196(1). |
Where
extension not granted |
(4)
Where the judge to whom an application for an authorization and an
application referred to in subsection (2) are made refuses to fix a
period in substitution for the period mentioned in subsection 196(1)
or where the judge fixes a period in substitution therefor that is
less than the period set out in the application referred to in
subsection (2), the person appearing before the judge on the
application for the authorization may withdraw the application for
the authorization and thereupon the judge shall not proceed to
consider the application for the authorization or to give the
authorization and shall return to the person appearing before him on
the application for the authorization both applications and all
other material pertaining thereto.
R.S.,
1985, c. C-46, s. 185; 1993, c. 40, s. 5; 1997, c. 18, s. 8, c. 23,
s. 4; 2001, c. 32, s. 5, c. 41, ss. 6, 133; 2005, c. 10, ss. 22,
34. |
|
186. (1) An
authorization under this section may be given if the judge to whom
the application is made is satisfied
(a) that it would be in the best
interests of the administration of justice to do so; and
(b) that other investigative
procedures have been tried and have failed, other investigative
procedures are unlikely to succeed or the urgency of the matter is
such that it would be impractical to carry out the investigation of
the offence using only other investigative procedures. |
Exception
for criminal organizations and terrorism offences |
(1.1)
Notwithstanding paragraph (1)(b), that paragraph does not apply
where the judge is satisfied that the application for an
authorization is in relation to
(a) an offence under section
467.11, 467.12 or 467.13;
(b) an offence committed for the
benefit of, at the direction of or in association with a criminal
organization; or
(c) a terrorism offence. |
Where
authorization not to be given |
(2) No
authorization may be given to intercept a private communication at
the office or residence of a solicitor, or at any other place
ordinarily used by a solicitor and by other solicitors for the
purpose of consultation with clients, unless the judge to whom the
application is made is satisfied that there are reasonable grounds
to believe that the solicitor, any other solicitor practising with
him, any person employed by him or any other such solicitor or a
member of the solicitor’s household has been or is about to become a
party to an offence. |
|
(3)
Where an authorization is given in relation to the interception of
private communications at a place described in subsection (2), the
judge by whom the authorization is given shall include therein such
terms and conditions as he considers advisable to protect privileged
communications between solicitors and clients. |
Content
and limitation of authorization |
(4) An
authorization shall
(a) state the offence in respect of
which private communications may be intercepted;
(b) state the type of private
communication that may be intercepted;
(c) state the identity of the
persons, if known, whose private communications are to be
intercepted, generally describe the place at which private
communications may be intercepted, if a general description of that
place can be given, and generally describe the manner of
interception that may be used;
(d) contain such terms and
conditions as the judge considers advisable in the public interest;
and
(e) be valid for the period, not
exceeding sixty days, set out therein. |
|
(5)
The Minister of Public Safety and Emergency Preparedness or the
Attorney General, as the case may be, may designate a person or
persons who may intercept private communications under
authorizations. |
Installation
and removal of device |
(5.1)
For greater certainty, an authorization that permits interception by
means of an electro-magnetic, acoustic, mechanical or other device
includes the authority to install, maintain or remove the device
covertly. |
Removal
after expiry of authorization |
(5.2)
On an ex parte application,
in writing, supported by affidavit, the judge who gave an
authorization referred to in subsection (5.1) or any other judge
having jurisdiction to give such an authorization may give a further
authorization for the covert removal of the electro-magnetic,
acoustic, mechanical or other device after the expiry of the
original authorization
(a) under any terms or conditions
that the judge considers advisable in the public interest; and
(b) during any specified period of
not more than sixty days. |
|
(6)
Renewals of an authorization may be given by a judge of a superior
court of criminal jurisdiction or a judge as defined in section 552
on receipt by him or her of an ex
parte application in writing signed by the Attorney General
of the province in which the application is made or the Minister of
Public Safety and Emergency Preparedness — or an agent specially
designated in writing for the purposes of section 185 by the
Minister or the Attorney General, as the case may be — accompanied
by an affidavit of a peace officer or public officer deposing to the
following matters:
(a) the reason and period for which
the renewal is required,
(b) full particulars, together with
times and dates, when interceptions, if any, were made or attempted
under the authorization, and any information that has been obtained
by any interception, and
(c) the number of instances, if
any, on which, to the knowledge and belief of the deponent, an
application has been made under this subsection in relation to the
same authorization and on which the application was withdrawn or no
renewal was given, the date on which each application was made and
the name of the judge to whom each application was made,
and
supported by such other information as the judge may
require. |
|
(7) A
renewal of an authorization may be given if the judge to whom the
application is made is satisfied that any of the circumstances
described in subsection (1) still obtain, but no renewal shall be
for a period exceeding sixty days.
R.S.,
1985, c. C-46, s. 186; 1993, c. 40, s. 6; 1997, c. 23, s. 5; 1999,
c. 5, s. 5; 2001, c. 32, s. 6, c. 41, ss. 6.1, 133; 2005, c. 10, ss.
23, 34. |
|
186.1
Notwithstanding paragraphs 184.2(4)(e) and 186(4)(e) and subsection 186(7), an
authorization or any renewal of an authorization may be valid for
one or more periods specified in the authorization exceeding sixty
days, each not exceeding one year, where the authorization is in
relation to
(a) an offence under section
467.11, 467.12 or 467.13;
(b) an offence committed for the
benefit of, at the direction of or in association with a criminal
organization; or
(c) a terrorism offence.
1997,
c. 23, s. 6; 2001, c. 32, s. 7, c. 41, ss. 7, 133. |
|
187. (1) All
documents relating to an application made pursuant to any provision
of this Part are confidential and, subject to subsection (1.1),
shall be placed in a packet and sealed by the judge to whom the
application is made immediately on determination of the application,
and that packet shall be kept in the custody of the court in a place
to which the public has no access or in such other place as the
judge may authorize and shall not be dealt with except in accordance
with subsections (1.2) to (1.5). |
|
(1.1)
An authorization given under this Part need not be placed in the
packet except where, pursuant to subsection 184.3(7) or (8), the
original authorization is in the hands of the judge, in which case
that judge must place it in the packet and the facsimile remains
with the applicant. |
Opening
for further applications |
(1.2)
The sealed packet may be opened and its contents removed for the
purpose of dealing with an application for a further authorization
or with an application for renewal of an authorization. |
Opening
on order of judge |
(1.3)
A provincial court judge, a judge of a superior court of criminal
jurisdiction or a judge as defined in section 552 may order that the
sealed packet be opened and its contents removed for the purpose of
copying and examining the documents contained in the
packet. |
Opening
on order of trial judge |
(1.4)
A judge or provincial court judge before whom a trial is to be held
and who has jurisdiction in the province in which an authorization
was given may order that the sealed packet be opened and its
contents removed for the purpose of copying and examining the
documents contained in the packet if
(a) any matter relevant to the
authorization or any evidence obtained pursuant to the authorization
is in issue in the trial; and
(b) the accused applies for such an
order for the purpose of consulting the documents to prepare for
trial. |
Order
for destruction of documents |
(1.5)
Where a sealed packet is opened, its contents shall not be destroyed
except pursuant to an order of a judge of the same court as the
judge who gave the authorization. |
|
(2) An
order under subsection (1.2), (1.3), (1.4) or (1.5) made with
respect to documents relating to an application made pursuant to
section 185 or subsection 186(6) or 196(2) may only be made after
the Attorney General or the Minister of Public Safety and Emergency
Preparedness by whom or on whose authority the application for the
authorization to which the order relates was made has been given an
opportunity to be heard. |
|
(3) An
order under subsection (1.2), (1.3), (1.4) or (1.5) made with
respect to documents relating to an application made pursuant to
subsection 184.2(2) or section 184.3 may only be made after the
Attorney General has been given an opportunity to be
heard. |
|
(4)
Where a prosecution has been commenced and an accused applies for an
order for the copying and examination of documents pursuant to
subsection (1.3) or (1.4), the judge shall not, notwithstanding
those subsections, provide any copy of any document to the accused
until the prosecutor has deleted any part of the copy of the
document that the prosecutor believes would be prejudicial to the
public interest, including any part that the prosecutor believes
could
(a) compromise the identity of any
confidential informant;
(b) compromise the nature and
extent of ongoing investigations;
(c) endanger persons engaged in
particular intelligence-gathering techniques and thereby prejudice
future investigations in which similar techniques would be used;
or
(d) prejudice the interests of
innocent persons. |
Accused
to be provided with copies |
(5)
After the prosecutor has deleted the parts of the copy of the
document to be given to the accused under subsection (4), the
accused shall be provided with an edited copy of the
document. |
Original
documents to be returned |
(6)
After the accused has received an edited copy of a document, the
prosecutor shall keep a copy of the original document, and an edited
copy of the document and the original document shall be returned to
the packet and the packet resealed. |
|
(7) An
accused to whom an edited copy of a document has been provided
pursuant to subsection (5) may request that the judge before whom
the trial is to be held order that any part of the document deleted
by the prosecutor be made available to the accused, and the judge
shall order that a copy of any part that, in the opinion of the
judge, is required in order for the accused to make full answer and
defence and for which the provision of a judicial summary would not
be sufficient, be made available to the accused.
R.S.,
1985, c. C-46, s. 187; R.S., 1985, c. 27 (1st Supp.), s. 24; 1993,
c. 40, s. 7; 2005, c. 10, s. 24. |
|
188. (1)
Notwithstanding section 185, an application made under that section
for an authorization may be made ex
parte to a judge of a superior court of criminal
jurisdiction, or a judge as defined in section 552, designated from
time to time by the Chief Justice, by a peace officer specially
designated in writing, by name or otherwise, for the purposes of
this section by
(a) the Minister of Public Safety
and Emergency Preparedness, if the offence is one in respect of
which proceedings, if any, may be instituted by the Government of
Canada and conducted by or on behalf of the Attorney General of
Canada, or
(b) the Attorney General of a
province, in respect of any other offence in the province,
if the
urgency of the situation requires interception of private
communications to commence before an authorization could, with
reasonable diligence, be obtained under section 186. |
Authorizations
in emergency |
(2)
Where the judge to whom an application is made pursuant to
subsection (1) is satisfied that the urgency of the situation
requires that interception of private communications commence before
an authorization could, with reasonable diligence, be obtained under
section 186, he may, on such terms and conditions, if any, as he
considers advisable, give an authorization in writing for a period
of up to thirty-six hours.
(3)
[Repealed, 1993, c. 40, s. 8] |
Definition
of “Chief Justice” |
(4) In
this section, “Chief Justice” means
(a) in the Province of Ontario, the
Chief Justice of the Ontario Court;
(b) in the Province of Quebec, the
Chief Justice of the Superior Court;
(c) in the Provinces of Nova Scotia
and British Columbia, the Chief Justice of the Supreme Court;
(d) in the Provinces of New
Brunswick, Manitoba, Saskatchewan and Alberta, the Chief Justice of
the Court of Queen’s Bench;
(e) in the Provinces of Prince
Edward Island and Newfoundland, the Chief Justice of the Supreme
Court, Trial Division; and
(f) in Yukon, the Northwest
Territories and Nunavut, the senior judge within the meaning of
subsection 22(3) of the Judges
Act. |
Inadmissibility
of evidence |
(5)
The trial judge may deem inadmissible the evidence obtained by means
of an interception of a private communication pursuant to a
subsequent authorization given under this section, where he finds
that the application for the subsequent authorization was based on
the same facts, and involved the interception of the private
communications of the same person or persons, or related to the same
offence, on which the application for the original authorization was
based.
R.S.,
1985, c. C-46, s. 188; R.S., 1985, c. 27 (1st Supp.), ss. 25,
185(F), c. 27 (2nd Supp.), s. 10; 1990, c. 17, s. 10; 1992, c. 1, s.
58, c. 51, s. 35; 1993, c. 40, s. 8; 1999, c. 3, s. 28; 2002, c. 7,
s. 140; 2005, c. 10, s. 34. |
|
188.1 (1)
Subject to subsection (2), the interception of a private
communication authorized pursuant to section 184.2, 184.3, 186 or
188 may be carried out anywhere in Canada. |
Execution
in another province |
(2)
Where an authorization is given under section 184.2, 184.3, 186 or
188 in one province but it may reasonably be expected that it is to
be executed in another province and the execution of the
authorization would require entry into or upon the property of any
person in the other province or would require that an order under
section 487.02 be made with respect to any person in that other
province, a judge in the other province may, on application, confirm
the authorization and when the authorization is so confirmed, it
shall have full force and effect in that other province as though it
had originally been given in that other province.
1993,
c. 40, s. 9. |
|
188.2 No
person who acts in accordance with an authorization or under section
184.1 or 184.4 or who aids, in good faith, a person who he or she
believes on reasonable grounds is acting in accordance with an
authorization or under one of those sections incurs any criminal or
civil liability for anything reasonably done further to the
authorization or to that section.
1993,
c. 40, s. 9. |
|
189. (1) to
(4) [Repealed, 1993, c. 40, s. 10] |
Notice
of intention to produce evidence |
(5)
The contents of a private communication that is obtained from an
interception of the private communication pursuant to any provision
of, or pursuant to an authorization given under, this Part shall not
be received in evidence unless the party intending to adduce it has
given to the accused reasonable notice of the intention together
with
(a) a transcript of the private
communication, where it will be adduced in the form of a recording,
or a statement setting out full particulars of the private
communication, where evidence of the private communication will be
given viva voce ; and
(b) a statement respecting the
time, place and date of the private communication and the parties
thereto, if known. |
|
(6)
Any information obtained by an interception that, but for the
interception, would have been privileged remains privileged and
inadmissible as evidence without the consent of the person enjoying
the privilege.
R.S.,
1985, c. C-46, s. 189; 1993, c. 40, s. 10. |
|
190. Where an
accused has been given notice pursuant to subsection 189(5), any
judge of the court in which the trial of the accused is being or is
to be held may at any time order that further particulars be given
of the private communication that is intended to be adduced in
evidence.
1973-74,
c. 50, s. 2. |
|
191. (1)
Every one who possesses, sells or purchases any electro-magnetic,
acoustic, mechanical or other device or any component thereof
knowing that the design thereof renders it primarily useful for
surreptitious interception of private communications is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding two years. |
|
(2)
Subsection (1) does not apply to
(a) a police officer or police
constable in possession of a device or component described in
subsection (1) in the course of his employment;
(b) a person in possession of such
a device or component for the purpose of using it in an interception
made or to be made in accordance with an authorization;
(b.1) a person in possession of
such a device or component under the direction of a police officer
or police constable in order to assist that officer or constable in
the course of his duties as a police officer or police
constable;
(c) an officer or a servant of Her
Majesty in right of Canada or a member of the Canadian Forces in
possession of such a device or component in the course of his duties
as such an officer, servant or member, as the case may be; and
(d) any other person in possession
of such a device or component under the authority of a licence
issued by the Minister of Public Safety and Emergency
Preparedness. |
Terms
and conditions of licence |
(3) A
licence issued for the purpose of paragraph (2)( d) may contain such terms and
conditions relating to the possession, sale or purchase of a device
or component described in subsection (1) as the Minister of Public
Safety and Emergency Preparedness may prescribe.
R.S.,
1985, c. C-46, s. 191; R.S., 1985, c. 27 (1st Supp.), s. 26; 2005,
c. 10, s. 34. |
|
192. (1)
Where a person is convicted of an offence under section 184 or 191,
any electro-magnetic, acoustic, mechanical or other device by means
of which the offence was committed or the possession of which
constituted the offence, on the conviction, in addition to any
punishment that is imposed, may be ordered forfeited to Her Majesty
whereupon it may be disposed of as the Attorney General
directs. |
|
(2) No
order for forfeiture shall be made under subsection (1) in respect
of telephone, telegraph or other communication facilities or
equipment owned by a person engaged in providing telephone,
telegraph or other communication service to the public or forming
part of the telephone, telegraph or other communication service or
system of that person by means of which an offence under section 184
has been committed if that person was not a party to the
offence.
1973-74,
c. 50, s. 2. |
|
193. (1)
Where a private communication has been intercepted by means of an
electro-magnetic, acoustic, mechanical or other device without the
consent, express or implied, of the originator thereof or of the
person intended by the originator thereof to receive it, every one
who, without the express consent of the originator thereof or of the
person intended by the originator thereof to receive it,
wilfully
(a) uses or discloses the private
communication or any part thereof or the substance, meaning or
purport thereof or of any part thereof, or
(b) discloses the existence
thereof,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
|
(2)
Subsection (1) does not apply to a person who discloses a private
communication or any part thereof or the substance, meaning or
purport thereof or of any part thereof or who discloses the
existence of a private communication
(a) in the course of or for the
purpose of giving evidence in any civil or criminal proceedings or
in any other proceedings in which the person may be required to give
evidence on oath;
(b) in the course of or for the
purpose of any criminal investigation if the private communication
was lawfully intercepted;
(c) in giving notice under section
189 or furnishing further particulars pursuant to an order under
section 190;
(
d) in the course of the
operation of
(i) a
telephone, telegraph or other communication service to the
public,
(ii) a
department or an agency of the Government of Canada, or
(iii)
services relating to the management or protection of a computer
system, as defined in subsection 342.1(2),
if the
disclosure is necessarily incidental to an interception described in
paragraph 184(2)( c), (
d) or (e);
(e) where disclosure is made to a
peace officer or prosecutor in Canada or to a person or authority
with responsibility in a foreign state for the investigation or
prosecution of offences and is intended to be in the interests of
the administration of justice in Canada or elsewhere; or
(f) where the disclosure is made to
the Director of the Canadian Security Intelligence Service or to an
employee of the Service for the purpose of enabling the Service to
perform its duties and functions under section 12 of the Canadian Security Intelligence Service
Act. |
Publishing
of prior lawful disclosure |
(3)
Subsection (1) does not apply to a person who discloses a private
communication or any part thereof or the substance, meaning or
purport thereof or of any part thereof or who discloses the
existence of a private communication where that which is disclosed
by him was, prior to the disclosure, lawfully disclosed in the
course of or for the purpose of giving evidence in proceedings
referred to in paragraph (2)(a).
R.S.,
1985, c. C-46, s. 193; R.S., 1985, c. 30 (4th Supp.), s. 45; 1993,
c. 40, s. 11; 2004, c. 12, s. 5. |
|
193.1 (1)
Every person who wilfully uses or discloses a radio-based telephone
communication or who wilfully discloses the existence of such a
communication is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years, if
(a) the originator of the
communication or the person intended by the originator of the
communication to receive it was in Canada when the communication was
made;
(b) the communication was
intercepted by means of an electromagnetic, acoustic, mechanical or
other device without the consent, express or implied, of the
originator of the communication or of the person intended by the
originator to receive the communication; and
(c) the person does not have the
express or implied consent of the originator of the communication or
of the person intended by the originator to receive the
communication. |
Other
provisions to apply |
(2)
Subsections 193(2) and (3) apply, with such modifications as the
circumstances require, to disclosures of radio-based telephone
communications.
1993,
c. 40, s. 12. |
|
194. (1)
Subject to subsection (2), a court that convicts an accused of an
offence under section 184, 184.5, 193 or 193.1 may, on the
application of a person aggrieved, at the time sentence is imposed,
order the accused to pay to that person an amount not exceeding five
thousand dollars as punitive damages. |
No
damages where civil proceedings commenced |
(2) No
amount shall be ordered to be paid under subsection (1) to a person
who has commenced an action under Part II of the Crown Liability Act. |
Judgment
may be registered |
(3)
Where an amount that is ordered to be paid under subsection (1) is
not paid forthwith, the applicant may, by filing the order, enter as
a judgment, in the superior court of the province in which the trial
was held, the amount ordered to be paid, and that judgment is
enforceable against the accused in the same manner as if it were a
judgment rendered against the accused in that court in civil
proceedings. |
Moneys
in possession of accused may be taken |
(4)
All or any part of an amount that is ordered to be paid under
subsection (1) may be taken out of moneys found in the possession of
the accused at the time of his arrest, except where there is a
dispute respecting ownership of or right of possession to those
moneys by claimants other than the accused.
R.S.,
1985, c. C-46, s. 194; 1993, c. 40, s. 13. |
|
195. (1) The
Minister of Public Safety and Emergency Preparedness shall, as soon
as possible after the end of each year, prepare a report relating
to
(a) authorizations for which he and
agents to be named in the report who were specially designated in
writing by him for the purposes of section 185 made application,
and
(b) authorizations given under
section 188 for which peace officers to be named in the report who
were specially designated by him for the purposes of that section
made application,
and
interceptions made thereunder in the immediately preceding
year. |
Information
respecting authorizations |
(2)
The report referred to in subsection (1) shall, in relation to
authorizations and interceptions made thereunder, set out
(a) the number of applications made
for authorizations;
(b) the number of applications made
for renewal of authorizations;
(c) the number of applications
referred to in paragraphs (a) and (b) that were granted, the number
of those applications that were refused and the number of
applications referred to in paragraph (a) that were granted subject to
terms and conditions;
(d) the number of persons
identified in an authorization against whom proceedings were
commenced at the instance of the Attorney General of Canada in
respect of
(i) an
offence specified in the authorization,
(ii)
an offence other than an offence specified in the authorization but
in respect of which an authorization may be given, and
(iii)
an offence in respect of which an authorization may not be
given;
(e) the number of persons not
identified in an authorization against whom proceedings were
commenced at the instance of the Attorney General of Canada in
respect of
(i) an
offence specified in such an authorization,
(ii)
an offence other than an offence specified in such an authorization
but in respect of which an authorization may be given, and
(iii)
an offence other than an offence specified in such an authorization
and for which no such authorization may be given,
and
whose commission or alleged commission of the offence became known
to a peace officer as a result of an interception of a private
communication under an authorization;
(f) the average period for which
authorizations were given and for which renewals thereof were
granted;
(g) the number of authorizations
that, by virtue of one or more renewals thereof, were valid for more
than sixty days, for more than one hundred and twenty days, for more
than one hundred and eighty days and for more than two hundred and
forty days;
(h) the number of notifications
given pursuant to section 196;
(i) the offences in respect of
which authorizations were given, specifying the number of
authorizations given in respect of each of those offences;
(j) a description of all classes of
places specified in authorizations and the number of authorizations
in which each of those classes of places was specified;
(k) a general description of the
methods of interception involved in each interception under an
authorization;
(l) the number of persons arrested
whose identity became known to a peace officer as a result of an
interception under an authorization;
(m) the number of criminal
proceedings commenced at the instance of the Attorney General of
Canada in which private communications obtained by interception
under an authorization were adduced in evidence and the number of
those proceedings that resulted in a conviction; and
(n) the number of criminal
investigations in which information obtained as a result of the
interception of a private communication under an authorization was
used although the private communication was not adduced in evidence
in criminal proceedings commenced at the instance of the Attorney
General of Canada as a result of the investigations. |
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(3)
The report referred to in subsection (1) shall, in addition to the
information referred to in subsection (2), set out
(a) the number of prosecutions
commenced against officers or servants of Her Majesty in right of
Canada or members of the Canadian Forces for offences under section
184 or 193; and
(b) a general assessment of the
importance of interception of private communications for the
investigation, detection, prevention and prosecution of offences in
Canada. |
Report
to be laid before Parliament |
(4)
The Minister of Public Safety and Emergency Preparedness shall cause
a copy of each report prepared by him under subsection (1) to be
laid before Parliament forthwith on completion thereof, or if
Parliament is not then sitting, on any of the first fifteen days
next thereafter that Parliament is sitting. |
Report
by Attorneys General |
(5)
The Attorney General of each province shall, as soon as possible
after the end of each year, prepare and publish or otherwise make
available to the public a report relating to
(a) authorizations for which he and
agents specially designated in writing by him for the purposes of
section 185 made application, and
(b) authorizations given under
section 188 for which peace officers specially designated by him for
the purposes of that section made application,
and
interceptions made thereunder in the immediately preceding year
setting out, with such modifications as the circumstances require,
the information described in subsections (2) and (3).
R.S.,
1985, c. C-46, s. 195; R.S., 1985, c. 27 (1st Supp.), s. 27; 2005,
c. 10, s. 34. |
|
196. (1) The
Attorney General of the province in which an application under
subsection 185(1) was made or the Minister of Public Safety and
Emergency Preparedness if the application was made by or on behalf
of that Minister shall, within 90 days after the period for which
the authorization was given or renewed or within such other period
as is fixed pursuant to subsection 185(3) or subsection (3) of this
section, notify in writing the person who was the object of the
interception pursuant to the authorization and shall, in a manner
prescribed by regulations made by the Governor in Council, certify
to the court that gave the authorization that the person has been so
notified. |
Extension
of period for notification |
(2)
The running of the 90 days referred to in subsection (1), or of any
other period fixed pursuant to subsection 185(3) or subsection (3)
of this section, is suspended until any application made by the
Attorney General or the Minister to a judge of a superior court of
criminal jurisdiction or a judge as defined in section 552 for an
extension or a subsequent extension of the period for which the
authorization was given or renewed has been heard and disposed
of. |
Where
extension to be granted |
(3)
Where the judge to whom an application referred to in subsection (2)
is made, on the basis of an affidavit submitted in support of the
application, is satisfied that
(a) the investigation of the
offence to which the authorization relates, or
(b) a subsequent investigation of
an offence listed in section 183 commenced as a result of
information obtained from the investigation referred to in paragraph
(a),
is
continuing and is of the opinion that the interests of justice
warrant the granting of the application, the judge shall grant an
extension, or a subsequent extension, of the period, each extension
not to exceed three years. |
Application
to be accompanied by affidavit |
(4) An
application pursuant to subsection (2) shall be accompanied by an
affidavit deposing to
(a) the facts known or believed by
the deponent and relied on to justify the belief that an extension
should be granted; and
(b) the number of instances, if
any, on which an application has, to the knowledge or belief of the
deponent, been made under that subsection in relation to the
particular authorization and on which the application was withdrawn
or the application was not granted, the date on which each
application was made and the judge to whom each application was
made. |
Exception
for criminal organizations and terrorist groups |
(5)
Notwithstanding subsections (3) and 185(3), where the judge to whom
an application referred to in subsection (2) or 185(2) is made, on
the basis of an affidavit submitted in support of the application,
is satisfied that the investigation is in relation to
(a) an offence under section
467.11, 467.12 or 467.13,
(b) an offence committed for the
benefit of, at the direction of or in association with a criminal
organization, or
(c) a terrorism offence,
and is
of the opinion that the interests of justice warrant the granting of
the application, the judge shall grant an extension, or a subsequent
extension, of the period, but no extension may exceed three
years.
R.S.,
1985, c. C-46, s. 196; R.S., 1985, c. 27 (1st Supp.), s. 28; 1993,
c. 40, s. 14; 1997, c. 23, s. 7; 2001, c. 32, s. 8, c. 41, ss. 8,
133; 2005, c. 10, s. 25. |
|
PART
VII
DISORDERLY HOUSES,
GAMING AND BETTING |
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197. (1) In
this Part, |
|
“bet”
means a bet that is placed on any contingency or event that is to
take place in or out of Canada, and without restricting the
generality of the foregoing, includes a bet that is placed on any
contingency relating to a horse-race, fight, match or sporting event
that is to take place in or out of Canada; |
“common bawdy-house”
« maison de
débauche » |
“common bawdy-house” means
a place that is
(a) kept or occupied, or
(b) resorted to by one or more
persons
for the purpose of
prostitution or the practice of acts of indecency; |
“common betting house”
« maison de pari » |
“common betting house”
means a place that is opened, kept or used for the purpose of
(a) enabling, encouraging or
assisting persons who resort thereto to bet between themselves or
with the keeper, or
(b) enabling any person to receive,
record, register, transmit or pay bets or to announce the results of
betting; |
“common gaming house”
« maison de jeu » |
“common gaming house”
means a place that is
(a) kept for gain to which persons
resort for the purpose of playing games, or
(b) kept or used for the purpose of
playing games
(i) in
which a bank is kept by one or more but not all of the players,
(ii)
in which all or any portion of the bets on or proceeds from a game
is paid, directly or indirectly, to the keeper of the place,
(iii)
in which, directly or indirectly, a fee is charged to or paid by the
players for the privilege of playing or participating in a game or
using gaming equipment, or
(iv)
in which the chances of winning are not equally favourable to all
persons who play the game, including the person, if any, who
conducts the game; |
“disorderly house”
« maison de
désordre » |
“disorderly house” means a
common bawdy-house, a common betting house or a common gaming
house; |
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“game”
means a game of chance or mixed chance and skill; |
“gaming equipment”
« matériel de
jeu » |
“gaming equipment” means
anything that is or may be used for the purpose of playing games or
for betting; |
|
“keeper” includes a person
who
(a) is an owner or occupier of a
place,
(b) assists or acts on behalf of an
owner or occupier of a place,
(c) appears to be, or to assist or
act on behalf of an owner or occupier of a place,
(d) has the care or management of a
place, or
(e) uses a place permanently or
temporarily, with or without the consent of the owner or occupier
thereof; |
“place”
« local » ou « endroit » |
“place” includes any
place, whether or not
(a) it is covered or enclosed,
(b) it is used permanently or
temporarily, or
(c) any person has an exclusive
right of user with respect to it; |
“prostitute”
« prostitué » |
“prostitute” means a
person of either sex who engages in prostitution; |
“public place”
« endroit public » |
“public place” includes
any place to which the public have access as of right or by
invitation, express or implied. |
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(2) A
place is not a common gaming house within the meaning of paragraph
(a) or subparagraph (b)(ii) or (iii) of the definition
“common gaming house” in subsection (1) while it is occupied and
used by an incorporated genuine social club or branch thereof,
if
(a) the whole or any portion of the
bets on or proceeds from games played therein is not directly or
indirectly paid to the keeper thereof; and
(b) no fee is charged to persons
for the right or privilege of participating in the games played
therein other than under the authority of and in accordance with the
terms of a licence issued by the Attorney General of the province in
which the place is situated or by such other person or authority in
the province as may be specified by the Attorney General
thereof. |
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(3)
The onus of proving that, by virtue of subsection (2), a place is
not a common gaming house is on the accused. |
Effect
when game partly played on premises |
(4) A
place may be a common gaming house notwithstanding that
(a) it is used for the purpose of
playing part of a game and another part of the game is played
elsewhere;
(b) the stake that is played for is
in some other place; or
(c) it is used on only one occasion
in the manner described in paragraph (b) of the definition “common
gaming house” in subsection (1), if the keeper or any person acting
on behalf of or in concert with the keeper has used another place on
another occasion in the manner described in that paragraph.
R.S.,
1985, c. C-46, s. 197; R.S., 1985, c. 27 (1st Supp.), s.
29. |
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198. (1) In
proceedings under this Part,
(a) evidence that a peace officer
who was authorized to enter a place was wilfully prevented from
entering or was wilfully obstructed or delayed in entering is, in
the absence of any evidence to the contrary, proof that the place is
a disorderly house;
(b) evidence that a place was found
to be equipped with gaming equipment or any device for concealing,
removing or destroying gaming equipment is, in the absence of any
evidence to the contrary, proof that the place is a common gaming
house or a common betting house, as the case may be;
(c) evidence that gaming equipment
was found in a place entered under a warrant issued pursuant to this
Part, or on or about the person of anyone found therein, is, in the
absence of any evidence to the contrary, proof that the place is a
common gaming house and that the persons found therein were playing
games, whether or not any person acting under the warrant observed
any persons playing games therein; and
(d) evidence that a person was
convicted of keeping a disorderly house is, for the purpose of
proceedings against any one who is alleged to have been an inmate or
to have been found in that house at the time the person committed
the offence of which he was convicted, in the absence of any
evidence to the contrary, proof that the house was, at that time, a
disorderly house. |
Conclusive
presumption from slot machine |
(2)
For the purpose of proceedings under this Part, a place that is
found to be equipped with a slot machine shall be conclusively
presumed to be a common gaming house. |
Definition
of “slot machine” |
(3) In
subsection (2), “slot machine” means any automatic machine or slot
machine
(a) that is used or intended to be
used for any purpose other than vending merchandise or services,
or
(b) that is used or intended to be
used for the purpose of vending merchandise or services if
(i)
the result of one of any number of operations of the machine is a
matter of chance or uncertainty to the operator,
(ii)
as a result of a given number of successive operations by the
operator the machine produces different results, or
(iii)
on any operation of the machine it discharges or emits a slug or
token,
but
does not include an automatic machine or slot machine that dispenses
as prizes only one or more free games on that machine.
R.S.,
c. C-34, s. 180; 1974-75-76, c. 93, s. 10. |
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|
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199. (1) A
justice who is satisfied by information on oath that there are
reasonable grounds to believe that an offence under section 201,
202, 203, 206, 207 or 210 is being committed at any place within the
jurisdiction of the justice may issue a warrant authorizing a peace
officer to enter and search the place by day or night and seize
anything found therein that may be evidence that an offence under
section 201, 202, 203, 206, 207 or 210, as the case may be, is being
committed at that place, and to take into custody all persons who
are found in or at that place and requiring those persons and things
to be brought before that justice or before another justice having
jurisdiction, to be dealt with according to law. |
Search
without warrant, seizure and arrest |
(2) A
peace officer may, whether or not he is acting under a warrant
issued pursuant to this section, take into custody any person whom
he finds keeping a common gaming house and any person whom he finds
therein, and may seize anything that may be evidence that such an
offence is being committed and shall bring those persons and things
before a justice having jurisdiction, to be dealt with according to
law. |
Disposal
of property seized |
(3)
Except where otherwise expressly provided by law, a court, judge,
justice or provincial court judge before whom anything that is
seized under this section is brought may declare that the thing is
forfeited, in which case it shall be disposed of or dealt with as
the Attorney General may direct if no person shows sufficient cause
why it should not be forfeited. |
When
declaration or direction may be made |
(4) No
declaration or direction shall be made pursuant to subsection (3) in
respect of anything seized under this section until
(a) it is no longer required as
evidence in any proceedings that are instituted pursuant to the
seizure; or
(b) the expiration of thirty days
from the time of seizure where it is not required as evidence in any
proceedings. |
|
(5)
The Attorney General may, for the purpose of converting anything
forfeited under this section into money, deal with it in all
respects as if he were the owner thereof. |
Telephones
exempt from seizure |
(6)
Nothing in this section or in section 489 authorizes the seizure,
forfeiture or destruction of telephone, telegraph or other
communication facilities or equipment that may be evidence of or
that may have been used in the commission of an offence under
section 201, 202, 203, 206, 207 or 210 and that is owned by a person
engaged in providing telephone, telegraph or other communication
service to the public or forming part of the telephone, telegraph or
other communication service or system of that person. |
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(7)
Subsection (6) does not apply to prohibit the seizure, for use as
evidence, of any facility or equipment described in that subsection
that is designed or adapted to record a communication.
R.S.,
1985, c. C-46, s. 199; R.S., 1985, c. 27 (1st Supp.), s. 203; 1994,
c. 44, s. 10. |
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|
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200.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 30] |
|
|
|
201. (1)
Every one who keeps a common gaming house or common betting house is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
Person
found in or owner permitting use |
(2)
Every one who
(a) is found, without lawful
excuse, in a common gaming house or common betting house, or
(b) as owner, landlord, lessor,
tenant, occupier or agent, knowingly permits a place to be let or
used for the purposes of a common gaming house or common betting
house,
is
guilty of an offence punishable on summary conviction.
R.S.,
c. C-34, s. 185. |
|
202. (1)
Every one commits an offence who
(a) uses or knowingly allows a
place under his control to be used for the purpose of recording or
registering bets or selling a pool;
(b) imports, makes, buys, sells,
rents, leases, hires or keeps, exhibits, employs or knowingly allows
to be kept, exhibited or employed in any place under his control any
device or apparatus for the purpose of recording or registering bets
or selling a pool, or any machine or device for gambling or
betting;
(c) has under his control any money
or other property relating to a transaction that is an offence under
this section;
(d) records or registers bets or
sells a pool;
(e) engages in book-making or
pool-selling, or in the business or occupation of betting, or makes
any agreement for the purchase or sale of betting or gaming
privileges, or for the purchase or sale of information that is
intended to assist in book-making, pool-selling or betting;
(f) prints, provides or offers to
print or provide information intended for use in connection with
book-making, pool-selling or betting on any horse-race, fight, game
or sport, whether or not it takes place in or outside Canada or has
or has not taken place;
(g) imports or brings into Canada
any information or writing that is intended or is likely to promote
or be of use in gambling, book-making, pool-selling or betting on a
horse-race, fight, game or sport, and where this paragraph applies
it is immaterial
(i)
whether the information is published before, during or after the
race, fight game or sport, or
(ii)
whether the race, fight, game or sport takes place in Canada or
elsewhere,
but
this paragraph does not apply to a newspaper, magazine or other
periodical published in good faith primarily for a purpose other
than the publication of such information;
(h) advertises, prints, publishes,
exhibits, posts up, or otherwise gives notice of any offer,
invitation or inducement to bet on, to guess or to foretell the
result of a contest, or a result of or contingency relating to any
contest;
(i) wilfully and knowingly sends,
transmits, delivers or receives any message by radio, telegraph,
telephone, mail or express that conveys any information relating to
book-making, pool-selling, betting or wagering, or that is intended
to assist in book-making, pool-selling, betting or wagering; or
(j) aids or assists in any manner
in anything that is an offence under this section. |
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(2)
Every one who commits an offence under this section is guilty of an
indictable offence and liable
(a) for a first offence, to
imprisonment for not more than two years;
(b) for a second offence, to
imprisonment for not more than two years and not less than fourteen
days; and
(c) for each subsequent offence, to
imprisonment for not more than two years and not less than three
months.
R.S.,
c. C-34, s. 186; 1974-75-76, c. 93, s. 11. |
|
203. Every
one who
(a) places or offers or agrees to
place a bet on behalf of another person for a consideration paid or
to be paid by or on behalf of that other person,
(b) engages in the business or
practice of placing or agreeing to place bets on behalf of other
persons, whether for a consideration or otherwise, or
(c) holds himself out or allows
himself to be held out as engaging in the business or practice of
placing or agreeing to place bets on behalf of other persons,
whether for a consideration or otherwise,
is
guilty of an indictable offence and liable
(d) for a first offence, to
imprisonment for not more than two years,
(e) for a second offence, to
imprisonment for not more than two years and not less than fourteen
days, and
(f) for each subsequent offence, to
imprisonment for not more than two years and not less than three
months.
R.S.,
c. C-34, s. 187; 1974-75-76, c. 93, s. 11. |
|
204. (1)
Sections 201 and 202 do not apply to
(a) any person or association by
reason of his or their becoming the custodian or depository of any
money, property or valuable thing staked, to be paid to
(i)
the winner of a lawful race, sport, game or exercise,
(ii)
the owner of a horse engaged in a lawful race, or
(iii)
the winner of any bets between not more than ten individuals;
(b) a private bet between
individuals not engaged in any way in the business of betting;
(c) bets made or records of bets
made through the agency of a pari-mutuel system on running, trotting
or pacing horse-races if
(i)
the bets or records of bets are made on the race-course of an
association in respect of races conducted at that race-course or
another race-course in or out of Canada, and, in the case of a race
conducted on a race-course situated outside Canada, the governing
body that regulates the race has been certified as acceptable by the
Minister of Agriculture and Agri-Food or a person designated by that
Minister pursuant to subsection (8.1) and that Minister or person
has permitted pari-mutuel betting in Canada on the race pursuant to
that subsection, and
(ii)
the provisions of this section and the regulations are complied
with. |
|
(1.1)
For greater certainty, a person may, in accordance with the
regulations, do anything described in section 201 or 202, if the
person does it for the purposes of legal pari-mutuel
betting. |
|
(2)
For the purposes of paragraph 1(c), bets made, in accordance with
the regulations, in a betting theatre referred to in paragraph
(8)(e), or by telephone
calls to the race-course of an association or to such a betting
theatre, are deemed to be made on the race-course of the
association. |
Operation
of pari-mutuel system |
(3) No
person or association shall use a pari-mutuel system of betting in
respect of a horse-race unless the system has been approved by and
its operation is carried on under the supervision of an officer
appointed by the Minister of Agriculture and Agri-Food. |
Supervision
of pari-mutuel system |
(4)
Every person or association operating a pari-mutuel system of
betting in accordance with this section in respect of a horse-race,
whether or not the person or association is conducting the
race-meeting at which the race is run, shall pay to the Receiver
General in respect of each individual pool of the race and each
individual feature pool one-half of one per cent, or such greater
fraction not exceeding one per cent as may be fixed by the Governor
in Council, of the total amount of money that is bet through the
agency of the pari-mutuel system of betting. |
Percentage
that may be deducted and retained |
(5)
Where any person or association becomes a custodian or depository of
any money, bet or stakes under a pari-mutuel system in respect of a
horse-race, that person or association shall not deduct or retain
any amount from the total amount of money, bets or stakes unless it
does so pursuant to subsection (6). |
Percentage
that may be deducted and retained |
(6) An
association operating a pari-mutuel system of betting in accordance
with this section in respect of a horse-race, or any other
association or person acting on its behalf, may deduct and retain
from the total amount of money that is bet through the agency of the
pari-mutuel system, in respect of each individual pool of each race
or each individual feature pool, a percentage not exceeding the
percentage prescribed by the regulations plus any odd cents over any
multiple of five cents in the amount calculated in accordance with
the regulations to be payable in respect of each dollar
bet. |
|
(7)
Where an officer appointed by the Minister of Agriculture and
Agri-Food is not satisfied that the provisions of this section and
the regulations are being carried out in good faith by any person or
association in relation to a race meeting, he may, at any time,
order any betting in relation to the race meeting to be stopped for
any period that he considers proper. |
|
(8)
The Minister of Agriculture and Agri-Food may make regulations
(a) prescribing the maximum number
of races for each race-course on which a race meeting is conducted,
in respect of which a pari-mutuel system of betting may be used for
the race meeting or on any one calendar day during the race meeting,
and the circumstances in which the Minister of Agriculture and
Agri-Food or a person designated by him for that purpose may approve
of the use of that system in respect of additional races on any
race-course for a particular race meeting or on a particular day
during the race meeting;
(b) prohibiting any person or
association from using a pari-mutuel system of betting for any
race-course on which a race meeting is conducted in respect of more
than the maximum number of races prescribed pursuant to paragraph
(a) and the additional
races, if any, in respect of which the use of a pari-mutuel system
of betting has been approved pursuant to that paragraph;
(c) prescribing the maximum
percentage that may be deducted and retained pursuant to subsection
(6) by or on behalf of a person or association operating a
pari-mutuel system of betting in respect of a horse-race in
accordance with this section and providing for the determination of
the percentage that each such person or association may deduct and
retain;
(d) respecting pari-mutuel betting
in Canada on horse-races conducted on a race-course situated outside
Canada; and
(e) authorizing pari-mutuel betting
and governing the conditions for pari-mutuel betting, including the
granting of licences therefor, that is conducted by an association
in a betting theatre owned or leased by the association in a
province in which the Lieutenant Governor in Council, or such other
person or authority in the province as may be specified by the
Lieutenant Governor in Council thereof, has issued a licence to that
association for the betting theatre. |
|
(8.1)
The Minister of Agriculture and Agri-Food or a person designated by
that Minister may, with respect to a horse-race conducted on a
race-course situated outside Canada,
(a) certify as acceptable, for the
purposes of this section, the governing body that regulates the
race; and
(b) permit pari-mutuel betting in
Canada on the race. |
|
(9)
The Minister of Agriculture and Agri-Food may make regulations
respecting
(a) the supervision and operation
of pari-mutuel systems related to race meetings, and the fixing of
the dates on which and the places at which an association may
conduct those meetings;
(b) the method of calculating the
amount payable in respect of each dollar bet;
(c) the conduct of race-meetings in
relation to the supervision and operation of pari-mutuel systems,
including photo-finishes, video patrol and the testing of bodily
substances taken from horses entered in a race at such meetings,
including, in the case of a horse that dies while engaged in racing
or immediately before or after the race, the testing of any tissue
taken from its body;
(d) the prohibition, restriction or
regulation of
(i)
the possession of drugs or medicaments or of equipment used in the
administering of drugs or medicaments at or near race-courses,
or
(ii)
the administering of drugs or medicaments to horses participating in
races run at a race meeting during which a pari-mutuel system of
betting is used; and
(e) the provision, equipment and
maintenance of accommodation, services or other facilities for the
proper supervision and operation of pari-mutuel systems related to
race meetings, by associations conducting those meetings or by other
associations. |
|
(9.1)
For the purposes of this section, the Minister of Agriculture and
Agri-Food may designate, with respect to any race-course, a zone
that shall be deemed to be part of the race-course, if
(a) the zone is immediately
adjacent to the race-course;
(b) the farthest point of that zone
is not more than 900 metres from the nearest point on the race track
of the race-course; and
(c) all real property situated in
that zone is owned or leased by the person or association that owns
or leases the race-course. |
|
(10)
Every person who contravenes or fails to comply with any of the
provisions of this section or of any regulations made under this
section is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction. |
Definition
of “association” |
(11)
For the purposes of this section, “association” means an association
incorporated by or pursuant to an Act of Parliament or of the
legislature of a province that owns or leases a race-course and
conducts horse-races in the ordinary course of its business and, to
the extent that the applicable legislation requires that the
purposes of the association be expressly stated in its constating
instrument, having as one of its purposes the conduct of
horse-races.
R.S.,
1985, c. C-46, s. 204; R.S., 1985, c. 47 (1st Supp.), s. 1; 1989, c.
2, s. 1; 1994, c. 38, ss. 14, 25. |
|
205.
[Repealed, R.S., 1985, c. 52 (1st Supp.), s. 1] |
|
206. (1)
Every one is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years who
(a) makes, prints, advertises or
publishes, or causes or procures to be made, printed, advertised or
published, any proposal, scheme or plan for advancing, lending,
giving, selling or in any way disposing of any property by lots,
cards, tickets or any mode of chance whatever;
(b) sells, barters, exchanges or
otherwise disposes of, or causes or procures, or aids or assists in,
the sale, barter, exchange or other disposal of, or offers for sale,
barter or exchange, any lot, card, ticket or other means or device
for advancing, lending, giving, selling or otherwise disposing of
any property by lots, tickets or any mode of chance whatever;
(c) knowingly sends, transmits,
mails, ships, delivers or allows to be sent, transmitted, mailed,
shipped or delivered, or knowingly accepts for carriage or transport
or conveys any article that is used or intended for use in carrying
out any device, proposal, scheme or plan for advancing, lending,
giving, selling or otherwise disposing of any property by any mode
of chance whatever;
(d) conducts or manages any scheme,
contrivance or operation of any kind for the purpose of determining
who, or the holders of what lots, tickets, numbers or chances, are
the winners of any property so proposed to be advanced, lent, given,
sold or disposed of;
(e) conducts, manages or is a party
to any scheme, contrivance or operation of any kind by which any
person, on payment of any sum of money, or the giving of any
valuable security, or by obligating himself to pay any sum of money
or give any valuable security, shall become entitled under the
scheme, contrivance or operation to receive from the person
conducting or managing the scheme, contrivance or operation, or any
other person, a larger sum of money or amount of valuable security
than the sum or amount paid or given, or to be paid or given, by
reason of the fact that other persons have paid or given, or
obligated themselves to pay or give any sum of money or valuable
security under the scheme, contrivance or operation;
(f) disposes of any goods, wares or
merchandise by any game of chance or any game of mixed chance and
skill in which the contestant or competitor pays money or other
valuable consideration;
(g) induces any person to stake or
hazard any money or other valuable property or thing on the result
of any dice game, three-card monte, punch board, coin table or on
the operation of a wheel of fortune;
(h) for valuable consideration
carries on or plays or offers to carry on or to play, or employs any
person to carry on or play in a public place or a place to which the
public have access, the game of three-card monte;
(i) receives bets of any kind on
the outcome of a game of three-card monte; or
(j) being the owner of a place,
permits any person to play the game of three-card monte
therein. |
Definition
of “three-card monte” |
(2) In
this section, “three-card monte” means the game commonly known as
three-card monte and includes any other game that is similar to it,
whether or not the game is played with cards and notwithstanding the
number of cards or other things that are used for the purpose of
playing. |
|
(3)
Paragraphs (1)(f) and (g), in so far as they do not
relate to a dice game, three-card monte, punch board or coin table,
do not apply to the board of an annual fair or exhibition, or to any
operator of a concession leased by that board within its own grounds
and operated during the fair or exhibition on those
grounds. |
Definition
of “fair or exhibition” |
(3.1)
For the purposes of this section, “fair or exhibition” means an
event where agricultural or fishing products are presented or where
activities relating to agriculture or fishing take place. |
|
(4)
Every one who buys, takes or receives a lot, ticket or other device
mentioned in subsection (1) is guilty of an offence punishable on
summary conviction. |
|
(5)
Every sale, loan, gift, barter or exchange of any property, by any
lottery, ticket, card or other mode of chance depending on or to be
determined by chance or lot, is void, and all property so sold,
lent, given, bartered or exchanged is forfeited to Her
Majesty. |
|
(6)
Subsection (5) does not affect any right or title to property
acquired by any bona fide
purchaser for valuable consideration without notice. |
|
(7)
This section applies to the printing or publishing, or causing to be
printed or published, of any advertisement, scheme, proposal or plan
of any foreign lottery, and the sale or offer for sale of any
ticket, chance or share, in any such lottery, or the advertisement
for sale of such ticket, chance or share, and the conducting or
managing of any such scheme, contrivance or operation for
determining the winners in any such lottery. |
|
(8)
This section does not apply to
(a) the division by lot or chance
of any property by joint tenants or tenants in common, or persons
having joint interests in any such property; or
(b) [Repealed, 1999, c. 28, s.
156]
(c) bonds, debentures, debenture
stock or other securities recallable by drawing of lots and
redeemable with interest and providing for payment of premiums on
redemption or otherwise.
R.S.,
1985, c. C-46, s. 206; R.S., 1985, c. 52 (1st Supp.), s. 2; 1999, c.
28, s. 156. |
|
207. (1)
Notwithstanding any of the provisions of this Part relating to
gaming and betting, it is lawful
(a) for the government of a
province, either alone or in conjunction with the government of
another province, to conduct and manage a lottery scheme in that
province, or in that and the other province, in accordance with any
law enacted by the legislature of that province;
(b) for a charitable or religious
organization, pursuant to a licence issued by the Lieutenant
Governor in Council of a province or by such other person or
authority in the province as may be specified by the Lieutenant
Governor in Council thereof, to conduct and manage a lottery scheme
in that province if the proceeds from the lottery scheme are used
for a charitable or religious object or purpose;
(c) for the board of a fair or of
an exhibition, or an operator of a concession leased by that board,
to conduct and manage a lottery scheme in a province where the
Lieutenant Governor in Council of the province or such other person
or authority in the province as may be specified by the Lieutenant
Governor in Council thereof has
(i)
designated that fair or exhibition as a fair or exhibition where a
lottery scheme may be conducted and managed, and
(ii)
issued a licence for the conduct and management of a lottery scheme
to that board or operator;
(d) for any person, pursuant to a
licence issued by the Lieutenant Governor in Council of a province
or by such other person or authority in the province as may be
specified by the Lieutenant Governor in Council thereof, to conduct
and manage a lottery scheme at a public place of amusement in that
province if
(i)
the amount or value of each prize awarded does not exceed five
hundred dollars, and
(ii)
the money or other valuable consideration paid to secure a chance to
win a prize does not exceed two dollars;
(e) for the government of a
province to agree with the government of another province that lots,
cards or tickets in relation to a lottery scheme that is by any of
paragraphs (a) to (d) authorized to be conducted and
managed in that other province may be sold in the province;
(f) for any person, pursuant to a
licence issued by the Lieutenant Governor in Council of a province
or such other person or authority in the province as may be
designated by the Lieutenant Governor in Council thereof, to conduct
and manage in the province a lottery scheme that is authorized to be
conducted and managed in one or more other provinces where the
authority by which the lottery scheme was first authorized to be
conducted and managed consents thereto;
(g) for any person, for the purpose
of a lottery scheme that is lawful in a province under any of
paragraphs (a) to (f), to do anything in the
province, in accordance with the applicable law or licence, that is
required for the conduct, management or operation of the lottery
scheme or for the person to participate in the scheme; and
(h) for any person to make or print
anywhere in Canada or to cause to be made or printed anywhere in
Canada anything relating to gaming and betting that is to be used in
a place where it is or would, if certain conditions provided by law
are met, be lawful to use such a thing, or to send, transmit, mail,
ship, deliver or allow to be sent, transmitted, mailed, shipped or
delivered or to accept for carriage or transport or convey any such
thing where the destination thereof is such a place. |
Terms
and conditions of licence |
(2)
Subject to this Act, a licence issued by or under the authority of
the Lieutenant Governor in Council of a province as described in
paragraph (1)(b), (c), (d) or (f) may contain such terms and
conditions relating to the conduct, management and operation of or
participation in the lottery scheme to which the licence relates as
the Lieutenant Governor in Council of that province, the person or
authority in the province designated by the Lieutenant Governor in
Council thereof or any law enacted by the legislature of that
province may prescribe. |
|
(3)
Every one who, for the purposes of a lottery scheme, does anything
that is not authorized by or pursuant to a provision of this
section
(a) in the case of the conduct,
management or operation of that lottery scheme,
(i) is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years, or
(ii)
is guilty of an offence punishable on summary conviction; or
(b) in the case of participating in
that lottery scheme, is guilty of an offence punishable on summary
conviction. |
Definition
of “lottery scheme” |
(4) In
this section, “lottery scheme” means a game or any proposal, scheme,
plan, means, device, contrivance or operation described in any of
paragraphs 206(1)(a) to
(g), whether or not it
involves betting, pool selling or a pool system of betting other
than
(a) three-card monte, punch board
or coin table;
(b) bookmaking, pool selling or the
making or recording of bets, including bets made through the agency
of a pool or pari-mutuel system, on any race or fight, or on a
single sport event or athletic contest; or
(c) for the purposes of paragraphs
(1)(b) to (f), a game or proposal, scheme,
plan, means, device, contrivance or operation described in any of
paragraphs 206(1)(a) to
(g) that is operated on or
through a computer, video device or slot machine, within the meaning
of subsection 198(3), or a dice game. |
Exception
re: pari-mutuel betting |
(5)
For greater certainty, nothing in this section shall be construed as
authorizing the making or recording of bets on horse-races through
the agency of a pari-mutuel system other than in accordance with
section 204.
R.S.,
1985, c. C-46, s. 207; R.S., 1985, c. 27 (1st Supp.), s. 31, c. 52
(1st Supp.), s. 3; 1999, c. 5, s. 6. |
|
207.1 (1)
Despite any of the provisions of this Part relating to gaming and
betting, it is lawful for the owner or operator of an international
cruise ship, or their agent, to conduct, manage or operate and for
any person to participate in a lottery scheme during a voyage on an
international cruise ship when all of the following conditions are
satisfied:
(a) all the people participating in
the lottery scheme are located on the ship;
(b) the lottery scheme is not
linked, by any means of communication, with any lottery scheme,
betting, pool selling or pool system of betting located off the
ship;
(c) the lottery scheme is not
operated within five nautical miles of a Canadian port at which the
ship calls or is scheduled to call; and
(d) the ship is registered
(i) in
Canada and its entire voyage is scheduled to be outside Canada,
or
(ii)
anywhere, including Canada, and its voyage includes some scheduled
voyaging within Canada and the voyage
(A) is
of at least forty-eight hours duration and includes some voyaging in
international waters and at least one non-Canadian port of call
including the port at which the voyage begins or ends, and
(B) is
not scheduled to disembark any passengers at a Canadian port who
have embarked at another Canadian port, without calling on at least
one non-Canadian port between the two Canadian ports. |
Paragraph
207(1)(h) and subsection
207(5) apply |
(2)
For greater certainty, paragraph 207(1)(h) and subsection 207(5) apply for
the purposes of this section. |
|
(3)
Every one who, for the purpose of a lottery scheme, does anything
that is not authorized by this section
(a) in the case of the conduct,
management or operation of the lottery scheme,
(i) is
guilty of an indictable offence and liable to imprisonment for a
term of not more than two years, or
(ii)
is guilty of an offence punishable on summary conviction; and
(b) in the case of participating in
the lottery scheme, is guilty of an offence punishable on summary
conviction. |
|
(4)
The definitions in this subsection apply in this section. |
“international cruise ship”
« navire de croisière
internationale » |
“international cruise
ship” means a passenger ship that is suitable for continuous ocean
voyages of at least forty-eight hours duration, but does not include
such a ship that is used or fitted for the primary purpose of
transporting cargo or vehicles. |
“lottery scheme”
« loterie » |
“lottery scheme” means a
game or any proposal, scheme, plan, means, device, contrivance or
operation described in any of paragraphs 206(1)(a) to (g), whether or not it involves
betting, pool selling or a pool system of betting. It does not
include
(a) three-card monte, punch board
or coin table; or
(b) bookmaking, pool selling or the
making or recording of bets, including bets made through the agency
of a pool or pari-mutuel system, on any race or fight, or on a
single sporting event or athletic contest.
1999,
c. 5, s. 7. |
|
208.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 32] |
|
209. Every
one who, with intent to defraud any person, cheats while playing a
game or in holding the stakes for a game or in betting is guilty of
an indictable offence and liable to imprisonment for a term not
exceeding two years.
R.S.,
c. C-34, s. 192. |
|
|
|
210. (1)
Every one who keeps a common bawdy-house is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years. |
|
(2)
Every one who
(a) is an inmate of a common
bawdy-house,
(b) is found, without lawful
excuse, in a common bawdy-house, or
(c) as owner, landlord, lessor,
tenant, occupier, agent or otherwise having charge or control of any
place, knowingly permits the place or any part thereof to be let or
used for the purposes of a common bawdy-house,
is
guilty of an offence punishable on summary conviction. |
Notice
of conviction to be served on owner |
(3)
Where a person is convicted of an offence under subsection (1), the
court shall cause a notice of the conviction to be served on the
owner, landlord or lessor of the place in respect of which the
person is convicted or his agent, and the notice shall contain a
statement to the effect that it is being served pursuant to this
section. |
Duty
of landlord on notice |
(4)
Where a person on whom a notice is served under subsection (3) fails
forthwith to exercise any right he may have to determine the tenancy
or right of occupation of the person so convicted, and thereafter
any person is convicted of an offence under subsection (1) in
respect of the same premises, the person on whom the notice was
served shall be deemed to have committed an offence under subsection
(1) unless he proves that he has taken all reasonable steps to
prevent the recurrence of the offence.
R.S.,
c. C-34, s. 193. |
|
211. Every
one who knowingly takes, transports, directs, or offers to take,
transport or direct, any other person to a common bawdy-house is
guilty of an offence punishable on summary conviction.
R.S.,
c. C-34, s. 194. |
|
|
|
212. (1)
Every one who
(a) procures, attempts to procure
or solicits a person to have illicit sexual intercourse with another
person, whether in or out of Canada,
(b) inveigles or entices a person
who is not a prostitute to a common bawdy-house for the purpose of
illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in
a common bawdy-house,
(d) procures or attempts to procure
a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure
a person to leave the usual place of abode of that person in Canada,
if that place is not a common bawdy-house, with intent that the
person may become an inmate or frequenter of a common bawdy-house,
whether in or out of Canada,
(f) on the arrival of a person in
Canada, directs or causes that person to be directed or takes or
causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or
leave Canada, for the purpose of prostitution,
(h) for the purposes of gain,
exercises control, direction or influence over the movements of a
person in such manner as to show that he is aiding, abetting or
compelling that person to engage in or carry on prostitution with
any person or generally,
(i) applies or administers to a
person or causes that person to take any drug, intoxicating liquor,
matter or thing with intent to stupefy or overpower that person in
order thereby to enable any person to have illicit sexual
intercourse with that person, or
(j) lives wholly or in part on the
avails of prostitution of another person,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years. |
Living
on the avails of prostitution of person under eighteen |
(2)
Despite paragraph (1)(j),
every person who lives wholly or in part on the avails of
prostitution of another person who is under the age of eighteen
years is guilty of an indictable offence and liable to imprisonment
for a term not exceeding fourteen years and to a minimum punishment
of imprisonment for a term of two years. |
Aggravated
offence in relation to living on the avails of prostitution of a
person under the age of eighteen years |
(2.1)
Notwithstanding paragraph (1)(j) and subsection (2), every
person who lives wholly or in part on the avails of prostitution of
another person under the age of eighteen years, and who
(a) for the purposes of profit,
aids, abets, counsels or compels the person under that age to engage
in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or
attempts to use violence, intimidation or coercion in relation to
the person under that age,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years but not less than five
years. |
|
(3)
Evidence that a person lives with or is habitually in the company of
a prostitute or lives in a common bawdy-house is, in the absence of
evidence to the contrary, proof that the person lives on the avails
of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and
(2.1). |
Offence
— prostitution of person under eighteen |
(4)
Every person who, in any place, obtains for consideration, or
communicates with anyone for the purpose of obtaining for
consideration, the sexual services of a person who is under the age
of eighteen years is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years and to a minimum
punishment of imprisonment for a term of six months.
(5)
[Repealed, 1999, c. 5, s. 8]
R.S.,
1985, c. C-46, s. 212; R.S., 1985, c. 19 (3rd Supp.), s. 9; 1997, c.
16, s. 2; 1999, c. 5, s. 8; 2005, c. 32, s. 10.1. |
|
Offence
in Relation to Prostitution |
|
213. (1)
Every person who in a public place or in any place open to public
view
(a) stops or attempts to stop any
motor vehicle,
(b) impedes the free flow of
pedestrian or vehicular traffic or ingress to or egress from
premises adjacent to that place, or
(c) stops or attempts to stop any
person or in any manner communicates or attempts to communicate with
any person
for the
purpose of engaging in prostitution or of obtaining the sexual
services of a prostitute is guilty of an offence punishable on
summary conviction. |
Definition
of “public place” |
(2) In
this section, “public place” includes any place to which the public
have access as of right or by invitation, express or implied, and
any motor vehicle located in a public place or in any place open to
public view.
R.S.,
1985, c. C-46, s. 213; R.S., 1985, c. 51 (1st Supp.), s.
1. |
|
PART
VIII
OFFENCES AGAINST THE
PERSON AND REPUTATION |
|
|
|
214. In this
Part, |
“abandon” or “expose”
« abandonner » ou « exposer » |
“abandon” or “expose”
includes
(a) a wilful omission to take
charge of a child by a person who is under a legal duty to do so,
and
(b) dealing with a child in a
manner that is likely to leave that child exposed to risk without
protection; |
|
“aircraft” does not
include a machine designed to derive support in the atmosphere
primarily from reactions against the earth’s surface of air expelled
from the machine; |
|
“child” [Repealed, 2002,
c. 13, s. 9] |
“form of marriage”
« formalité de
mariage » |
“form
of marriage” includes a ceremony of marriage that is recognized as
valid
(a) by the law of the place where
it was celebrated, or
(b) by the law of the place where
an accused is tried, notwithstanding that it is not recognized as
valid by the law of the place where it was celebrated; |
|
“guardian” includes a
person who has in law or in fact the custody or control of a
child; |
|
“operate”
(a) means, in respect of a motor
vehicle, to drive the vehicle,
(b) means, in respect of railway
equipment, to participate in the direct control of its motion,
whether
(i) as
a member of the crew of the equipment,
(ii)
as a person who, by remote control, acts in lieu of such crew,
or
(iii)
as other than a member or person described in subparagraphs (i) and
(ii), and
(c) includes, in respect of a
vessel or an aircraft, to navigate the vessel or aircraft; |
|
“vessel” includes a
machine designed to derive support in the atmosphere primarily from
reactions against the earth’s surface of air expelled from the
machine.
R.S.,
1985, c. C-46, s. 214; R.S., 1985, c. 27 (1st Supp.), s. 33, c. 32
(4th Supp.), s. 56; 2002, c. 13, s. 9. |
|
Duties
Tending to Preservation of Life |
|
215. (1)
Every one is under a legal duty
(a) as a parent, foster parent,
guardian or head of a family, to provide necessaries of life for a
child under the age of sixteen years;
(b) to provide necessaries of life
to their spouse or common-law partner; and
(c) to provide necessaries of life
to a person under his charge if that person
(i) is
unable, by reason of detention, age, illness, mental disorder or
other cause, to withdraw himself from that charge, and
(ii)
is unable to provide himself with necessaries of life. |
|
(2)
Every one commits an offence who, being under a legal duty within
the meaning of subsection (1), fails without lawful excuse, the
proof of which lies on him, to perform that duty, if
(a) with respect to a duty imposed
by paragraph (1)(a) or
(b),
(i)
the person to whom the duty is owed is in destitute or necessitous
circumstances, or
(ii)
the failure to perform the duty endangers the life of the person to
whom the duty is owed, or causes or is likely to cause the health of
that person to be endangered permanently; or
(b) with respect to a duty imposed
by paragraph (1)(c), the
failure to perform the duty endangers the life of the person to whom
the duty is owed or causes or is likely to cause the health of that
person to be injured permanently. |
|
(3)
Every one who commits an offence under subsection (2)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction and liable to imprisonment for a
term not exceeding eighteen months. |
|
(4)
For the purpose of proceedings under this section,
(a) [Repealed, 2000, c. 12, s.
93]
(b) evidence that a person has in
any way recognized a child as being his child is, in the absence of
any evidence to the contrary, proof that the child is his child;
(c) evidence that a person has
failed for a period of one month to make provision for the
maintenance of any child of theirs under the age of sixteen years
is, in the absence of any evidence to the contrary, proof that the
person has failed without lawful excuse to provide necessaries of
life for the child; and
(d) the fact that a spouse or
common-law partner or child is receiving or has received necessaries
of life from another person who is not under a legal duty to provide
them is not a defence.
R.S.,
1985, c. C-46, s. 215; 1991, c. 43, s. 9; 2000, c. 12, ss. 93, 95;
2005, c. 32, s. 11. |
|
216. Every
one who undertakes to administer surgical or medical treatment to
another person or to do any other lawful act that may endanger the
life of another person is, except in cases of necessity, under a
legal duty to have and to use reasonable knowledge, skill and care
in so doing.
R.S.,
c. C-34, s. 198. |
|
217. Every
one who undertakes to do an act is under a legal duty to do it if an
omission to do the act is or may be dangerous to life.
R.S.,
c. C-34, s. 199. |
|
217.1 Every
one who undertakes, or has the authority, to direct how another
person does work or performs a task is under a legal duty to take
reasonable steps to prevent bodily harm to that person, or any other
person, arising from that work or task.
2003,
c. 21, s. 3. |
|
218. Every
one who unlawfully abandons or exposes a child who is under the age
of ten years, so that its life is or is likely to be endangered or
its health is or is likely to be permanently injured,
(
a) is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding five years; or
(
b) is guilty of an offence
punishable on summary conviction and liable to imprisonment for a
term not exceeding eighteen months.
R.S.,
1985, c. C-46, s. 218; 2005, c. 32, s. 12. |
|
|
|
219. (1)
Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that
it is his duty to do,
shows
wanton or reckless disregard for the lives or safety of other
persons. |
|
(2)
For the purposes of this section, “duty” means a duty imposed by
law.
R.S.,
c. C-34, s. 202. |
|
220. Every
person who by criminal negligence causes death to another person is
guilty of an indictable offence and liable
(a) where a firearm is used in the
commission of the offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years; and
(b) in any other case, to
imprisonment for life.
R.S.,
1985, c. C-46, s. 220; 1995, c. 39, s. 141. |
|
221. Every
one who by criminal negligence causes bodily harm to another person
is guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years.
R.S.,
c. C-34, s. 204. |
|
|
|
222. (1) A
person commits homicide when, directly or indirectly, by any means,
he causes the death of a human being. |
|
(2)
Homicide is culpable or not culpable. |
|
(3)
Homicide that is not culpable is not an offence. |
|
(4)
Culpable homicide is murder or manslaughter or
infanticide. |
|
(5) A
person commits culpable homicide when he causes the death of a human
being,
(a) by means of an unlawful
act;
(b) by criminal negligence;
(c) by causing that human being, by
threats or fear of violence or by deception, to do anything that
causes his death; or
(d) by wilfully frightening that
human being, in the case of a child or sick person. |
|
(6)
Notwithstanding anything in this section, a person does not commit
homicide within the meaning of this Act by reason only that he
causes the death of a human being by procuring, by false evidence,
the conviction and death of that human being by sentence of the
law.
R.S.,
c. C-34, s. 205. |
|
223. (1) A
child becomes a human being within the meaning of this Act when it
has completely proceeded, in a living state, from the body of its
mother, whether or not
(a) it has breathed;
(b) it has an independent
circulation; or
(c) the navel string is
severed. |
|
(2) A
person commits homicide when he causes injury to a child before or
during its birth as a result of which the child dies after becoming
a human being.
R.S.,
c. C-34, s. 206. |
|
224. Where a
person, by an act or omission, does any thing that results in the
death of a human being, he causes the death of that human being
notwithstanding that death from that cause might have been prevented
by resorting to proper means.
R.S.,
c. C-34, s. 207. |
|
225. Where a
person causes to a human being a bodily injury that is of itself of
a dangerous nature and from which death results, he causes the death
of that human being notwithstanding that the immediate cause of
death is proper or improper treatment that is applied in good
faith.
R.S.,
c. C-34, s. 208. |
|
226. Where a
person causes to a human being a bodily injury that results in
death, he causes the death of that human being notwithstanding that
the effect of the bodily injury is only to accelerate his death from
a disease or disorder arising from some other cause.
R.S.,
c. C-34, s. 209. |
|
227.
[Repealed, 1999, c. 5, s. 9] |
|
228. No
person commits culpable homicide where he causes the death of a
human being
(a) by any influence on the mind
alone, or
(b) by any disorder or disease
resulting from influence on the mind alone,
but this
section does not apply where a person causes the death of a child or
sick person by wilfully frightening him.
R.S.,
c. C-34, s. 211. |
|
Murder,
Manslaughter and Infanticide |
|
229. Culpable
homicide is murder
(a) where the person who causes the
death of a human being
(i)
means to cause his death, or
(ii)
means to cause him bodily harm that he knows is likely to cause his
death, and is reckless whether death ensues or not;
(b) where a person, meaning to
cause death to a human being or meaning to cause him bodily harm
that he knows is likely to cause his death, and being reckless
whether death ensues or not, by accident or mistake causes death to
another human being, notwithstanding that he does not mean to cause
death or bodily harm to that human being; or
(c) where a person, for an unlawful
object, does anything that he knows or ought to know is likely to
cause death, and thereby causes death to a human being,
notwithstanding that he desires to effect his object without causing
death or bodily harm to any human being.
R.S.,
c. C-34, s. 212. |
|
230. Culpable
homicide is murder where a person causes the death of a human being
while committing or attempting to commit high treason or treason or
an offence mentioned in section 52 (sabotage), 75 (piratical acts),
76 (hijacking an aircraft), 144 or subsection 145(1) or sections 146
to 148 (escape or rescue from prison or lawful custody), section 270
(assaulting a peace officer), section 271 (sexual assault), 272
(sexual assault with a weapon, threats to a third party or causing
bodily harm), 273 (aggravated sexual assault), 279 (kidnapping and
forcible confinement), 279.1 (hostage taking), 343 (robbery), 348
(breaking and entering) or 433 or 434 (arson), whether or not the
person means to cause death to any human being and whether or not he
knows that death is likely to be caused to any human being, if
(a) he means to cause bodily harm
for the purpose of
(i)
facilitating the commission of the offence, or
(ii)
facilitating his flight after committing or attempting to commit the
offence,
and
the death ensues from the bodily harm;
(b) he administers a stupefying or
overpowering thing for a purpose mentioned in paragraph (a), and the death ensues
therefrom; or
(c) he wilfully stops, by any
means, the breath of a human being for a purpose mentioned in
paragraph (a), and the death
ensues therefrom.
(d) [Repealed, 1991, c. 4, s.
1]
R.S.,
1985, c. C-46, s. 230; R.S., 1985, c. 27 (1st Supp.), s. 40; 1991,
c. 4, s. 1. |
|
231. (1)
Murder is first degree murder or second degree murder. |
Planned
and deliberate murder |
(2)
Murder is first degree murder when it is planned and
deliberate. |
|
(3)
Without limiting the generality of subsection (2), murder is planned
and deliberate when it is committed pursuant to an arrangement under
which money or anything of value passes or is intended to pass from
one person to another, or is promised by one person to another, as
consideration for that other’s causing or assisting in causing the
death of anyone or counselling another person to do any act causing
or assisting in causing that death. |
Murder
of peace officer, etc. |
(4)
Irrespective of whether a murder is planned and deliberate on the
part of any person, murder is first degree murder when the victim
is
(a) a police officer, police
constable, constable, sheriff, deputy sheriff, sheriff’s officer or
other person employed for the preservation and maintenance of the
public peace, acting in the course of his duties;
(b) a warden, deputy warden,
instructor, keeper, jailer, guard or other officer or a permanent
employee of a prison, acting in the course of his duties; or
(c) a person working in a prison
with the permission of the prison authorities and acting in the
course of his work therein. |
Hijacking,
sexual assault or kidnapping |
(5)
Irrespective of whether a murder is planned and deliberate on the
part of any person, murder is first degree murder in respect of a
person when the death is caused by that person while committing or
attempting to commit an offence under one of the following
sections:
(a) section 76 (hijacking an
aircraft);
(b) section 271 (sexual
assault);
(c) section 272 (sexual assault
with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual
assault);
(e) section 279 (kidnapping and
forcible confinement); or
(f) section 279.1 (hostage
taking). |
|
(6)
Irrespective of whether a murder is planned and deliberate on the
part of any person, murder is first degree murder when the death is
caused by that person while committing or attempting to commit an
offence under section 264 and the person committing that offence
intended to cause the person murdered to fear for the safety of the
person murdered or the safety of anyone known to the person
murdered. |
Murder
during terrorist activity |
(6.01)
Irrespective of whether a murder is planned and deliberate on the
part of a person, murder is first degree murder when the death is
caused while committing or attempting to commit an indictable
offence under this or any other Act of Parliament where the act or
omission constituting the offence also constitutes a terrorist
activity. |
Using
explosives in association with criminal organization |
(6.1)
Irrespective of whether a murder is planned and deliberate on the
part of a person, murder is first degree murder when the death is
caused while committing or attempting to commit an offence under
section 81 for the benefit of, at the direction of or in association
with a criminal organization. |
|
(6.2)
Irrespective of whether a murder is planned and deliberate on the
part of a person, murder is first degree murder when the death is
caused while committing or attempting to commit an offence under
section 423.1. |
|
(7)
All murder that is not first degree murder is second degree
murder.
R.S.,
1985, c. C-46, s. 231; R.S., 1985, c. 27 (1st Supp.), ss. 7, 35, 40,
185(F), c. 1 (4th Supp.), s. 18(F); 1997, c. 16, s. 3, c. 23, s. 8;
2001, c. 32, s. 9, c. 41, s. 9. |
|
232. (1)
Culpable homicide that otherwise would be murder may be reduced to
manslaughter if the person who committed it did so in the heat of
passion caused by sudden provocation. |
|
(2) A
wrongful act or an insult that is of such a nature as to be
sufficient to deprive an ordinary person of the power of
self-control is provocation for the purposes of this section if the
accused acted on it on the sudden and before there was time for his
passion to cool. |
|
(3)
For the purposes of this section, the questions
(a) whether a particular wrongful
act or insult amounted to provocation, and
(b) whether the accused was
deprived of the power of self-control by the provocation that he
alleges he received,
are
questions of fact, but no one shall be deemed to have given
provocation to another by doing anything that he had a legal right
to do, or by doing anything that the accused incited him to do in
order to provide the accused with an excuse for causing death or
bodily harm to any human being. |
Death
during illegal arrest |
(4)
Culpable homicide that otherwise would be murder is not necessarily
manslaughter by reason only that it was committed by a person who
was being arrested illegally, but the fact that the illegality of
the arrest was known to the accused may be evidence of provocation
for the purpose of this section.
R.S.,
c. C-34, s. 215. |
|
233. A female
person commits infanticide when by a wilful act or omission she
causes the death of her newly-born child, if at the time of the act
or omission she is not fully recovered from the effects of giving
birth to the child and by reason thereof or of the effect of
lactation consequent on the birth of the child her mind is then
disturbed.
R.S.,
c. C-34, s. 216. |
|
234. Culpable
homicide that is not murder or infanticide is manslaughter.
R.S.,
c. C-34, s. 217. |
|
235. (1)
Every one who commits first degree murder or second degree murder is
guilty of an indictable offence and shall be sentenced to
imprisonment for life. |
|
(2)
For the purposes of Part XXIII, the sentence of imprisonment for
life prescribed by this section is a minimum punishment.
R.S.,
c. C-34, s. 218; 1973-74, c. 38, s. 3; 1974-75-76, c. 105, s.
5. |
|
236. Every
person who commits manslaughter is guilty of an indictable offence
and liable
(a) where a firearm is used in the
commission of the offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years; and
(b) in any other case, to
imprisonment for life.
R.S.,
1985, c. C-46, s. 236; 1995, c. 39, s. 142. |
|
237. Every
female person who commits infanticide is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years.
R.S.,
c. C-34, s. 220. |
|
238. (1)
Every one who causes the death, in the act of birth, of any child
that has not become a human being, in such a manner that, if the
child were a human being, he would be guilty of murder, is guilty of
an indictable offence and liable to imprisonment for life. |
|
(2)
This section does not apply to a person who, by means that, in good
faith, he considers necessary to preserve the life of the mother of
a child, causes the death of that child.
R.S.,
c. C-34, s. 221. |
|
239. Every
person who attempts by any means to commit murder is guilty of an
indictable offence and liable
(a) where a firearm is used in the
commission of the offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years; and
(b) in any other case, to
imprisonment for life.
R.S.,
1985, c. C-46, s. 239; 1995, c. 39, s. 143. |
|
240. Every
one who is an accessory after the fact to murder is guilty of an
indictable offence and liable to imprisonment for life.
R.S.,
c. C-34, s. 223. |
|
|
|
241. Every
one who
(a) counsels a person to commit
suicide, or
(b) aids or abets a person to
commit suicide,
whether
suicide ensues or not, is guilty of an indictable offence and liable
to imprisonment for a term not exceeding fourteen years.
R.S.,
1985, c. C-46, s. 241; R.S., 1985, c. 27 (1st Supp.), s.
7. |
|
Neglect
in Child-birth and Concealing Dead Body |
|
242. A female
person who, being pregnant and about to be delivered, with intent
that the child shall not live or with intent to conceal the birth of
the child, fails to make provision for reasonable assistance in
respect of her delivery is, if the child is permanently injured as a
result thereof or dies immediately before, during or in a short time
after birth, as a result thereof, guilty of an indictable offence
and is liable to imprisonment for a term not exceeding five
years.
R.S.,
c. C-34, s. 226. |
|
243. Every
one who in any manner disposes of the dead body of a child, with
intent to conceal the fact that its mother has been delivered of it,
whether the child died before, during or after birth, is guilty of
an indictable offence and liable to imprisonment for a term not
exceeding two years.
R.S.,
c. C-34, s. 227. |
|
Bodily
Harm and Acts and Omissions Causing Danger to the
Person |
|
244. Every
person who, with intent
(a) to wound, maim or disfigure any
person,
(b) to endanger the life of any
person, or
(c) to prevent the arrest or
detention of any person,
discharges
a firearm at any person, whether or not that person is the person
mentioned in paragraph (a),
(b) or (c), is guilty of an indictable
offence and liable to imprisonment for a term not exceeding fourteen
years and to a minimum punishment of imprisonment for a term of four
years.
R.S.,
1985, c. C-46, s. 244; 1995, c. 39, s. 144. |
|
244.1 Every
person who, with intent
(a) to wound, maim or disfigure any
person,
(b) to endanger the life of any
person, or
(c) to prevent the arrest or
detention of any person,
discharges
an air or compressed gas gun or pistol at any person, whether or not
that person is the person mentioned in paragraph (a), (b) or (c), is guilty of an indictable
offence and liable to imprisonment for a term not exceeding fourteen
years.
1995,
c. 39, s. 144. |
|
245. Every
one who administers or causes to be administered to any person or
causes any person to take poison or any other destructive or noxious
thing is guilty of an indictable offence and liable
(a) to imprisonment for a term not
exceeding fourteen years, if he intends thereby to endanger the life
of or to cause bodily harm to that person; or
(b) to imprisonment for a term not
exceeding two years, if he intends thereby to aggrieve or annoy that
person.
R.S.,
c. C-34, s. 229. |
|
246. Every
one who, with intent to enable or assist himself or another person
to commit an indictable offence,
(a) attempts, by any means, to
choke, suffocate or strangle another person, or by any means
calculated to choke, suffocate or strangle, attempts to render
another person insensible, unconscious or incapable of resistance,
or
(b) administers or causes to be
administered to any person, or attempts to administer to any person,
or causes or attempts to cause any person to take a stupefying or
overpowering drug, matter or thing,
is
guilty of an indictable offence and liable to imprisonment for
life.
R.S.,
c. C-34, s. 230; 1972, c. 13, s. 70. |
|
247. (1)
Every one is guilty of an indictable offence and is liable to
imprisonment for a term not exceeding five years, who with intent to
cause death or bodily harm to a person, whether ascertained or
not,
(a) sets or places a trap, device
or other thing that is likely to cause death or bodily harm to a
person; or
(b) being in occupation or
possession of a place, knowingly permits such a trap, device or
other thing to remain in that place. |
|
(2)
Every one who commits an offence under subsection (1) and thereby
causes bodily harm to any other person is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years. |
|
(3)
Every one who commits an offence under subsection (1), in a place
kept or used for the purpose of committing another indictable
offence, is guilty of an indictable offence and is liable to a term
of imprisonment not exceeding ten years. |
Offence-related
place - bodily harm |
(4)
Every one who commits an offence under subsection (1), in a place
kept or used for the purpose of committing another indictable
offence, and thereby causes bodily harm to a person is guilty of an
indictable offence and liable to a term of imprisonment not
exceeding fourteen years. |
|
(5)
Every one who commits an offence under subsection (1) and thereby
causes the death of any other person is guilty of an indictable
offence and liable to imprisonment for life.
R.S.,
1985, c. C-46, s. 247; 2004, c. 12, s. 6. |
|
248. Every
one who, with intent to endanger the safety of any person, places
anything on or does anything to any property that is used for or in
connection with the transportation of persons or goods by land,
water or air that is likely to cause death or bodily harm to persons
is guilty of an indictable offence and liable to imprisonment for
life.
R.S.,
c. C-34, s. 232. |
|
Motor
Vehicles, Vessels and Aircraft |
|
249. (1)
Every one commits an offence who operates
(a) a motor vehicle in a manner
that is dangerous to the public, having regard to all the
circumstances, including the nature, condition and use of the place
at which the motor vehicle is being operated and the amount of
traffic that at the time is or might reasonably be expected to be at
that place;
(b) a vessel or any water skis,
surf-board, water sled or other towed object on or over any of the
internal waters of Canada or the territorial sea of Canada, in a
manner that is dangerous to the public, having regard to all the
circumstances, including the nature and condition of those waters or
sea and the use that at the time is or might reasonably be expected
to be made of those waters or sea;
(c) an aircraft in a manner that is
dangerous to the public, having regard to all the circumstances,
including the nature and condition of that aircraft or the place or
air space in or through which the aircraft is operated; or
(d) railway equipment in a manner
that is dangerous to the public, having regard to all the
circumstances, including the nature and condition of the equipment
or the place in or through which the equipment is
operated. |
|
(2)
Every one who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction. |
Dangerous
operation causing bodily harm |
(3)
Every one who commits an offence under subsection (1) and thereby
causes bodily harm to any other person is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years. |
Dangerous
operation causing death |
(4)
Every one who commits an offence under subsection (1) and thereby
causes the death of any other person is guilty of an indictable
offence and liable to imprisonment for a term not exceeding fourteen
years.
R.S.,
1985, c. C-46, s. 249; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32
(4th Supp.), s. 57; 1994, c. 44, s. 11. |
|
249.1 (1)
Every one commits an offence who, operating a motor vehicle while
being pursued by a peace officer operating a motor vehicle, fails,
without reasonable excuse and in order to evade the peace officer,
to stop the vehicle as soon as is reasonable in the
circumstances. |
|
(2)
Every one who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction. |
Flight
causing bodily harm or death |
(3)
Every one commits an offence who causes bodily harm to or the death
of another person by operating a motor vehicle in a manner described
in paragraph 249(1)(a), if
the person operating the motor vehicle was being pursued by a peace
officer operating a motor vehicle and failed, without reasonable
excuse and in order to evade the police officer, to stop the vehicle
as soon as is reasonable in the circumstances. |
|
(4)
Every person who commits an offence under subsection (3)
(a) if bodily harm was caused, is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding 14 years; and
(b) if death was caused, is guilty
of an indictable offence and liable to imprisonment for life.
2000,
c. 2, s. 1. |
|
250. (1)
Every one who operates a vessel while towing a person on any water
skis, surf-board, water sled or other object, when there is not on
board such vessel another responsible person keeping watch on the
person being towed, is guilty of an offence punishable on summary
conviction. |
Towing
of person after dark |
(2)
Every one who operates a vessel while towing a person on any water
skis, surf-board, water sled or other object during the period from
one hour after sunset to sunrise is guilty of an offence punishable
on summary conviction.
R.S.,
1985, c. C-46, s. 250; R.S., 1985, c. 27 (1st Supp.), s.
36. |
|
251. (1)
Every one who knowingly
(a) sends or being the master takes
a vessel that is registered or licensed, or for which an
identification number has been issued, pursuant to any Act of
Parliament and that is unseaworthy
(i) on
a voyage from a place in Canada to any other place in or out of
Canada, or
(ii)
on a voyage from a place on the inland waters of the United States
to a place in Canada,
(b) sends an aircraft on a flight
or operates an aircraft that is not fit and safe for flight, or
(c) sends for operation or operates
railway equipment that is not fit and safe for operation
and
thereby endangers the life of any person, is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years. |
|
(2) An
accused shall not be convicted of an offence under this section
where the accused establishes that,
(a) in the case of an offence under
paragraph (1)(a),
(i)
the accused used all reasonable means to ensure that the vessel was
seaworthy, or
(ii)
to send or take the vessel while it was unseaworthy was, under the
circumstances, reasonable and justifiable;
(b) in the case of an offence under
paragraph (1)(b),
(i)
the accused used all reasonable means to ensure that the aircraft
was fit and safe for flight, or
(ii)
to send or operate the aircraft while it was not fit and safe for
flight was, under the circumstances, reasonable and justifiable;
and
(c) in the case of an offence under
paragraph (1)(c),
(i)
the accused used all reasonable means to ensure that the railway
equipment was fit and safe for operation, or
(ii)
to send the railway equipment for operation or to operate it while
it was not fit and safe for operation was, under the circumstances,
reasonable and justifiable. |
Consent
of Attorney General |
(3) No
proceedings shall be instituted under this section in respect of a
vessel or aircraft, or in respect of railway equipment sent for
operation or operated on a line of railway that is within the
legislative authority of Parliament, without the consent in writing
of the Attorney General of Canada.
R.S.,
1985, c. C-46, s. 251; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32
(4th Supp.), s. 58. |
|
252. (1)
Every person commits an offence who has the care, charge or control
of a vehicle, vessel or aircraft that is involved in an accident
with
(a) another person,
(b) a vehicle, vessel or aircraft,
or
(c) in the case of a vehicle,
cattle in the charge of another person,
and with
intent to escape civil or criminal liability fails to stop the
vehicle, vessel or, if possible, the aircraft, give his or her name
and address and, where any person has been injured or appears to
require assistance, offer assistance. |
|
(1.1)
Every person who commits an offence under subsection (1) in a case
not referred to in subsection (1.2) or (1.3) is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding five years or is guilty of an offence punishable on
summary conviction. |
Offence
involving bodily harm |
(1.2)
Every person who commits an offence under subsection (1) knowing
that bodily harm has been caused to another person involved in the
accident is guilty of an indictable offence and liable to
imprisonment for a term not exceeding ten years. |
Offence
involving bodily harm or death |
(1.3)
Every person who commits an offence under subsection (1) is guilty
of an indictable offence and liable to imprisonment for life if
(a) the person knows that another
person involved in the accident is dead; or
(b) the person knows that bodily
harm has been caused to another person involved in the accident and
is reckless as to whether the death of the other person results from
that bodily harm, and the death of that other person so
results. |
|
(2) In
proceedings under subsection (1), evidence that an accused failed to
stop his vehicle, vessel or, where possible, his aircraft, as the
case may be, offer assistance where any person has been injured or
appears to require assistance and give his name and address is, in
the absence of evidence to the contrary, proof of an intent to
escape civil or criminal liability.
R.S.,
1985, c. C-46, s. 252; R.S., 1985, c. 27 (1st Supp.), s. 36; 1994,
c. 44, s. 12; 1999, c. 32, s. 1(Preamble). |
|
253. Every
one commits an offence who operates a motor vehicle or vessel or
operates or assists in the operation of an aircraft or of railway
equipment or has the care or control of a motor vehicle, vessel,
aircraft or railway equipment, whether it is in motion or not,
(a) while the person’s ability to
operate the vehicle, vessel, aircraft or railway equipment is
impaired by alcohol or a drug; or
(b) having consumed alcohol in such
a quantity that the concentration in the person’s blood exceeds
eighty milligrams of alcohol in one hundred millilitres of
blood.
R.S.,
1985, c. C-46, s. 253; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32
(4th Supp.), s. 59. |
|
254. (1) In
this section and sections 255 to 258, |
|
“analyst” means a person
designated by the Attorney General as an analyst for the purposes of
section 258; |
“approved container”
« contenant
approuvé » |
“approved container”
means
(a) in respect of breath samples, a
container of a kind that is designed to receive a sample of the
breath of a person for analysis and is approved as suitable for the
purposes of section 258 by order of the Attorney General of Canada,
and
(b) in respect of blood samples, a
container of a kind that is designed to receive a sample of the
blood of a person for analysis and is approved as suitable for the
purposes of section 258 by order of the Attorney General of
Canada; |
“approved instrument”
« alcootest
approuvé » |
“approved instrument”
means an instrument of a kind that is designed to receive and make
an analysis of a sample of the breath of a person in order to
measure the concentration of alcohol in the blood of that person and
is approved as suitable for the purposes of section 258 by order of
the Attorney General of Canada; |
“approved screening device”
« appareil de détection
approuvé » |
“approved screening
device” means a device of a kind that is designed to ascertain the
presence of alcohol in the blood of a person and that is approved
for the purposes of this section by order of the Attorney General of
Canada; |
“qualified medical
practitioner”
« médecin
qualifié » |
“qualified medical
practitioner” means a person duly qualified by provincial law to
practise medicine; |
“qualified technician”
« technicien
qualifié » |
“qualified technician”
means,
(a) in respect of breath samples, a
person designated by the Attorney General as being qualified to
operate an approved instrument, and
(b) in respect of blood samples,
any person or person of a class of persons designated by the
Attorney General as being qualified to take samples of blood for the
purposes of this section and sections 256 and 258. |
Testing
for presence of alcohol in the blood |
(2)
Where a peace officer reasonably suspects that a person who is
operating a motor vehicle or vessel or operating or assisting in the
operation of an aircraft or of railway equipment or who has the care
or control of a motor vehicle, vessel or aircraft or of railway
equipment, whether it is in motion or not, has alcohol in the
person’s body, the peace officer may, by demand made to that person,
require the person to provide forthwith such a sample of breath as
in the opinion of the peace officer is necessary to enable a proper
analysis of the breath to be made by means of an approved screening
device and, where necessary, to accompany the peace officer for the
purpose of enabling such a sample of breath to be taken. |
Samples
of breath or blood where reasonable belief of commission of
offence |
(3)
Where a peace officer believes on reasonable and probable grounds
that a person is committing, or at any time within the preceding
three hours has committed, as a result of the consumption of
alcohol, an offence under section 253, the peace officer may, by
demand made to that person forthwith or as soon as practicable,
require that person to provide then or as soon thereafter as is
practicable
(a) such samples of the person’s
breath as in the opinion of a qualified technician, or
(b) where the peace officer has
reasonable and probable grounds to believe that, by reason of any
physical condition of the person,
(i)
the person may be incapable of providing a sample of his breath,
or
(ii)
it would be impracticable to obtain a sample of the person’s
breath,
such
samples of the person’s blood, under the conditions referred to in
subsection (4), as in the opinion of the qualified medical
practitioner or qualified technician taking the samples
are
necessary to enable proper analysis to be made in order to determine
the concentration, if any, of alcohol in the person’s blood, and to
accompany the peace officer for the purpose of enabling such samples
to be taken. |
|
(4)
Samples of blood may only be taken from a person pursuant to a
demand made by a peace officer under subsection (3) if the samples
are taken by or under the direction of a qualified medical
practitioner and the qualified medical practitioner is satisfied
that the taking of those samples would not endanger the life or
health of the person. |
Failure
or refusal to provide sample |
(5)
Every one commits an offence who, without reasonable excuse, fails
or refuses to comply with a demand made to him by a peace officer
under this section. |
Only
one conviction for failure to comply with demand |
(6) A
person who is convicted of an offence committed under subsection (5)
for a failure or refusal to comply with a demand made under
subsection (2) or paragraph (3)(a) or (b) in respect of any transaction
may not be convicted of another offence committed under subsection
(5) in respect of the same transaction.
R.S.,
1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1
(4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32,
s. 2(Preamble). |
|
255. (1)
Every one who commits an offence under section 253 or 254 is guilty
of an indictable offence or an offence punishable on summary
conviction and is liable,
(
a) whether the offence is
prosecuted by indictment or punishable on summary conviction, to the
following minimum punishment, namely,
(i)
for a first offence, to a fine of not less than six hundred
dollars,
(ii)
for a second offence, to imprisonment for not less than fourteen
days, and
(iii)
for each subsequent offence, to imprisonment for not less than
ninety days;
(
b) where the offence is
prosecuted by indictment, to imprisonment for a term not exceeding
five years; and
(
c) where the offence is
punishable on summary conviction, to imprisonment for a term not
exceeding six months. |
Impaired
driving causing bodily harm |
(2)
Every one who commits an offence under paragraph 253( a) and thereby causes bodily harm
to any other person is guilty of an indictable offence and liable to
imprisonment for a term not exceeding ten years. |
Impaired
driving causing death |
(3)
Every one who commits an offence under paragraph 253( a) and thereby causes the death of
any other person is guilty of an indictable offence and liable to
imprisonment for life. |
|
(4)
Where a person is convicted of an offence committed under paragraph
253( a) or ( b) or subsection 254(5), that
person shall, for the purposes of this Act, be deemed to be
convicted for a second or subsequent offence, as the case may be, if
the person has previously been convicted of
(
a) an offence committed
under any of those provisions;
(
b) an offence under
subsection (2) or (3); or
(
c) an offence under section
250, 251, 252, 253, 259 or 260 or subsection 258(4) of this Act as
this Act read immediately before the coming into force of this
subsection. |
|
*(5)
Notwithstanding subsection 730(1), a court may, instead of
convicting a person of an offence committed under section 253, after
hearing medical or other evidence, if it considers that the person
is in need of curative treatment in relation to his consumption of
alcohol or drugs and that it would not be contrary to the public
interest, by order direct that the person be discharged under
section 730 on the conditions prescribed in a probation order,
including a condition respecting the person's attendance for
curative treatment in relation to that consumption of alcohol or
drugs.
* [Note: In
force in the Provinces of Nova Scotia, New Brunswick, Manitoba,
Prince Edward Island, Saskatchewan and Alberta and in the Yukon
Territory and the Northwest Territories, see SI/85-211 and SI/88-24.]
R.S.,
1985, c. C-46, s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S.,
1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32,
s. 3(Preamble); 2000, c. 25, s. 2. |
|
255.1 Without
limiting the generality of section 718.2, where a court imposes a
sentence for an offence committed under this Act by means of a motor
vehicle, vessel or aircraft or of railway equipment, evidence that
the concentration of alcohol in the blood of the offender at the
time when the offence was committed exceeded one hundred and sixty
milligrams of alcohol in one hundred millilitres of blood shall be
deemed to be aggravating circumstances relating to the offence that
the court shall consider under paragraph 718.2(a).
1999,
c. 32, s. 4(Preamble). |
|
256. (1)
Subject to subsection (2), if a justice is satisfied, on an
information on oath in Form 1 or on an information on oath submitted
to the justice under section 487.1 by telephone or other means of
telecommunication, that there are reasonable grounds to believe
that
(a) a person has, within the
preceding four hours, committed, as a result of the consumption of
alcohol or a drug, an offence under section 253 and the person was
involved in an accident resulting in the death of another person or
in bodily harm to himself or herself or to any other person, and
(b) a qualified medical
practitioner is of the opinion that
(i) by
reason of any physical or mental condition of the person that
resulted from the consumption of alcohol or a drug, the accident or
any other occurrence related to or resulting from the accident, the
person is unable to consent to the taking of samples of his or her
blood, and
(ii)
the taking of samples of blood from the person would not endanger
the life or health of the person,
the
justice may issue a warrant authorizing a peace officer to require a
qualified medical practitioner to take, or to cause to be taken by a
qualified technician under the direction of the qualified medical
practitioner, the samples of the blood of the person that in the
opinion of the person taking the samples are necessary to enable a
proper analysis to be made in order to determine the concentration,
if any, of alcohol or drugs in the person’s blood. |
|
(2) A
warrant issued pursuant to subsection (1) may be in Form 5 or 5.1
varied to suit the case. |
|
(3)
Notwithstanding paragraphs 487.1(4)(b) and (c), an information on oath
submitted by telephone or other means of telecommunication for the
purposes of this section shall include, instead of the statements
referred to in those paragraphs, a statement setting out the offence
alleged to have been committed and identifying the person from whom
blood samples are to be taken. |
|
(4)
Samples of blood may be taken from a person pursuant to a warrant
issued pursuant to subsection (1) only during such time as a
qualified medical practitioner is satisfied that the conditions
referred to in subparagraphs (1)(b)(i) and (ii) continue to exist
in respect of that person. |
|
(5)
Where a warrant issued pursuant to subsection (1) is executed, the
peace officer shall, as soon as practicable thereafter, give a copy
or, in the case of a warrant issued by telephone or other means of
telecommunication, a facsimile of the warrant to the person from
whom the blood samples were taken.
R.S.,
1985, c. C-46, s. 256; R.S., 1985, c. 27 (1st Supp.), s. 36; 1992,
c. 1, s. 58; 1994, c. 44, s. 13; 2000, c. 25, s. 3. |
|
257. (1) No
qualified medical practitioner or qualified technician is guilty of
an offence only by reason of his refusal to take a sample of blood
from a person for the purposes of section 254 or 256 and no
qualified medical practitioner is guilty of an offence only by
reason of his refusal to cause to be taken by a qualified technician
under his direction a sample of blood from a person for those
purposes. |
No
criminal or civil liability |
(2) No
qualified medical practitioner by whom or under whose direction a
sample of blood is taken from a person pursuant to a demand made
under subsection 254(3) or a warrant issued under section 256 and no
qualified technician acting under the direction of a qualified
medical practitioner incurs any criminal or civil liability for
anything necessarily done with reasonable care and skill in the
taking of such a sample of blood.
R.S.,
1985, c. C-46, s. 257; R.S., 1985, c. 27 (1st Supp.), s.
36. |
|
258. (1) In
any proceedings under subsection 255(1) in respect of an offence
committed under section 253 or in any proceedings under subsection
255(2) or (3),
(a) where it is proved that the
accused occupied the seat or position ordinarily occupied by a
person who operates a motor vehicle, vessel or aircraft or any
railway equipment or who assists in the operation of an aircraft or
of railway equipment, the accused shall be deemed to have had the
care or control of the vehicle, vessel, aircraft or railway
equipment, as the case may be, unless the accused establishes that
the accused did not occupy that seat or position for the purpose of
setting the vehicle, vessel, aircraft or railway equipment in motion
or assisting in the operation of the aircraft or railway equipment,
as the case may be;
(b) the result of an analysis of a
sample of the breath or blood of the accused (other than a sample
taken pursuant to a demand made under subsection 254(3)) or of the
urine or other bodily substance of the accused may be admitted in
evidence notwithstanding that, before the accused gave the sample,
he was not warned that he need not give the sample or that the
result of the analysis of the sample might be used in evidence;
(c) where samples of the breath of
the accused have been taken pursuant to a demand made under
subsection 254(3), if
(i)
[Not in force]
(ii)
each sample was taken as soon as practicable after the time when the
offence was alleged to have been committed and, in the case of the
first sample, not later than two hours after that time, with an
interval of at least fifteen minutes between the times when the
samples were taken,
(iii)
each sample was received from the accused directly into an approved
container or into an approved instrument operated by a qualified
technician, and
(iv)
an analysis of each sample was made by means of an approved
instrument operated by a qualified technician,
evidence
of the results of the analyses so made is, in the absence of
evidence to the contrary, proof that the concentration of alcohol in
the blood of the accused at the time when the offence was alleged to
have been committed was, where the results of the analyses are the
same, the concentration determined by the analyses and, where the
results of the analyses are different, the lowest of the
concentrations determined by the analyses;
(d) where a sample of the blood of
the accused has been taken pursuant to a demand made under
subsection 254(3) or otherwise with the consent of the accused or
pursuant to a warrant issued under section 256, if
(i) at
the time the sample was taken, the person taking the sample took an
additional sample of the blood of the accused and one of the samples
was retained, to permit an analysis thereof to be made by or on
behalf of the accused and, in the case where the accused makes a
request within six months from the taking of the samples, one of the
samples was ordered to be released pursuant to subsection (4),
(ii)
both samples referred to in subparagraph (i) were taken as soon as
practicable after the time when the offence was alleged to have been
committed and in any event not later than two hours after that
time,
(iii)
both samples referred to in subparagraph (i) were taken by a
qualified medical practitioner or a qualified technician under the
direction of a qualified medical practitioner,
(iv)
both samples referred to in subparagraph (i) were received from the
accused directly into, or placed directly into, approved containers
that were subsequently sealed, and
(v) an
analysis was made by an analyst of at least one of the samples that
was contained in a sealed approved container,
evidence
of the result of the analysis is, in the absence of evidence to the
contrary, proof that the concentration of alcohol in the blood of
the accused at the time when the offence was alleged to have been
committed was the concentration determined by the analysis or, where
more than one sample was analyzed and the results of the analyses
are the same, the concentration determined by the analyses and,
where the results of the analyses are different, the lowest of the
concentrations determined by the analyses;
(d.1) where samples of the breath
of the accused or a sample of the blood of the accused have been
taken as described in paragraph (c) or (d) under the conditions described
therein and the results of the analyses show a concentration of
alcohol in blood exceeding eighty milligrams of alcohol in one
hundred millilitres of blood, evidence of the result of the analyses
is, in the absence of evidence tending to show that the
concentration of alcohol in the blood of the accused at the time
when the offence was alleged to have been committed did not exceed
eighty milligrams of alcohol in one hundred millilitres of blood,
proof that the concentration of alcohol in the blood of the accused
at the time when the offence was alleged to have been committed
exceeded eighty milligrams of alcohol in one hundred millilitres of
blood;
(e) a certificate of an analyst
stating that the analyst has made an analysis of a sample of the
blood, urine, breath or other bodily substance of the accused and
stating the result of that analysis is evidence of the facts alleged
in the certificate without proof of the signature or the official
character of the person appearing to have signed the
certificate;
(f) a certificate of an analyst
stating that the analyst has made an analysis of a sample of an
alcohol standard that is identified in the certificate and intended
for use with an approved instrument and that the sample of the
standard analyzed by the analyst was found to be suitable for use
with an approved instrument, is evidence that the alcohol standard
so identified is suitable for use with an approved instrument
without proof of the signature or the official character of the
person appearing to have signed the certificate;
(g) where samples of the breath of
the accused have been taken pursuant to a demand made under
subsection 254(3), a certificate of a qualified technician
stating
(i)
that the analysis of each of the samples has been made by means of
an approved instrument operated by the technician and ascertained by
the technician to be in proper working order by means of an alcohol
standard, identified in the certificate, that is suitable for use
with an approved instrument,
(ii)
the results of the analyses so made, and
(iii)
if the samples were taken by the technician,
(A)
[Not in force]
(B)
the time when and place where each sample and any specimen described
in clause (A) was taken, and
(C)
that each sample was received from the accused directly into an
approved container or into an approved instrument operated by the
technician,
is
evidence of the facts alleged in the certificate without proof of
the signature or the official character of the person appearing to
have signed the certificate;
(h) where a sample of the blood of
the accused has been taken pursuant to a demand made under
subsection 254(3) or otherwise with the consent of the accused or
pursuant to a warrant issued under section 256,
(i) a
certificate of a qualified medical practitioner stating that
(A)
the medical practitioner took the sample and that before the sample
was taken he was of the opinion that the taking of blood samples
from the accused would not endanger the life or health of the
accused and, in the case of a demand made pursuant to a warrant
issued pursuant to section 256, that by reason of any physical or
mental condition of the accused that resulted from the consumption
of alcohol, the accident or any other occurrence related to or
resulting from the accident, the accused was unable to consent to
the taking of his blood,
(B) at
the time the sample was taken, an additional sample of the blood of
the accused was taken to permit analysis of one of the samples to be
made by or on behalf of the accused,
(C)
the time when and place where both samples referred to in clause (B)
were taken, and
(D)
both samples referred to in clause (B) were received from the
accused directly into, or placed directly into, approved containers
that were subsequently sealed and that are identified in the
certificate,
(ii) a
certificate of a qualified medical practitioner stating that the
medical practitioner caused the sample to be taken by a qualified
technician under his direction and that before the sample was taken
the qualified medical practitioner was of the opinion referred to in
clause (i)(A), or
(iii)
a certificate of a qualified technician stating that the technician
took the sample and the facts referred to in clauses (i)(B) to
(D)
is
evidence of the facts alleged in the certificate without proof of
the signature or official character of the person appearing to have
signed the certificate; and
(i) a certificate of an analyst
stating that the analyst has made an analysis of a sample of the
blood of the accused that was contained in a sealed approved
container identified in the certificate, the date on which and place
where the sample was analyzed and the result of that analysis is
evidence of the facts alleged in the certificate without proof of
the signature or official character of the person appearing to have
signed it. |
No
obligation to give sample except as required under section
254 |
(2) No
person is required to give a sample of urine or other bodily
substance for analysis for the purposes of this section except
breath or blood as required under section 254, and evidence that a
person failed or refused to give such a sample or that such a sample
was not taken is not admissible nor shall such a failure or refusal
or the fact that a sample was not taken be the subject of comment by
any person in the proceedings. |
Evidence
of failure to comply with demand |
(3) In
any proceedings under subsection 255(1) in respect of an offence
committed under paragraph 253(a) or in any proceedings under
subsection 255(2) or (3), evidence that the accused, without
reasonable excuse, failed or refused to comply with a demand made to
him by a peace officer under section 254 is admissible and the court
may draw an inference therefrom adverse to the accused. |
Release
of specimen for testing |
(4) A
judge of a superior court of criminal jurisdiction or a court of
criminal jurisdiction shall, on the summary application of the
accused made within six months from the day on which samples of the
blood of the accused were taken, order the release of one of the
samples for the purpose of an examination or analysis thereof,
subject to such terms as appear to be necessary or desirable to
ensure the safeguarding of the sample and its preservation for use
in any proceedings in respect of which it was retained. |
Testing
blood for presence of drugs |
(5)
Where a sample of blood of an accused has been taken pursuant to a
demand made under subsection 254(3) or otherwise with the consent of
the accused or pursuant to a warrant issued under section 256, the
sample may be tested for the presence of drugs in the blood of the
accused. |
Attendance
and right to cross-examine |
(6) A
party against whom a certificate described in paragraph (1)(e), (f), (g), (h) or (i) is produced may, with leave of
the court, require the attendance of the qualified medical
practitioner, analyst or qualified technician, as the case may be,
for the purposes of cross-examination. |
Notice
of intention to produce certificate |
(7) No
certificate shall be received in evidence pursuant to paragraph
(1)(e), (f), (g), (h) or (i) unless the party intending to
produce it has, before the trial, given to the other party
reasonable notice of his intention and a copy of the
certificate.
R.S.,
1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32
(4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E);
1997, c. 18, s. 10. |
|
259. (1) When
an offender is convicted of an offence committed under section 253
or 254 or discharged under section 730 of an offence committed under
section 253 and, at the time the offence was committed or, in the
case of an offence committed under section 254, within the three
hours preceding that time, was operating or had the care or control
of a motor vehicle, vessel or aircraft or of railway equipment or
was assisting in the operation of an aircraft or of railway
equipment, the court that sentences the offender shall, in addition
to any other punishment that may be imposed for that offence, make
an order prohibiting the offender from operating a motor vehicle on
any street, road, highway or other public place, or from operating a
vessel or an aircraft or railway equipment, as the case may be,
(a) for a first offence, during a
period of not more than three years plus any period to which the
offender is sentenced to imprisonment, and not less than one
year;
(b) for a second offence, during a
period of not more than five years plus any period to which the
offender is sentenced to imprisonment, and not less than two years;
and
(c) for each subsequent offence,
during a period of not less than three years plus any period to
which the offender is sentenced to imprisonment. |
Alcohol
ignition interlock device program |
(1.1)
In making the order, the court may authorize the offender to operate
a motor vehicle equipped with an alcohol ignition interlock device
during the prohibition period if the offender registers in an
alcohol ignition interlock device program established under the law
of the province in which the offender resides. |
Minimum
absolute prohibition period |
(1.2)
The authorization has no effect until the expiry of a period fixed
by the court
(a) of at least 3 months, for a
first offence;
(b) of at least 6 months, for a
second offence; and
(c) of at least 12 months, for each
subsequent offence. |
Change
of province of residence |
(1.3)
The authorization applies to an offender who becomes resident in
another province and registers in a program referred to in
subsection (1.1) in that province. |
|
(1.4)
The authorization has no effect during any period that the offender
is not registered in a program referred to in subsection
(1.1). |
Discretionary
order of prohibition |
(2)
Where an offender is convicted or discharged under section 730 of an
offence under section 220, 221, 236, 249, 249.1, 250, 251 or 252,
subsection 255(2) or (3) or this section committed by means of a
motor vehicle, vessel or aircraft or of railway equipment, the court
that sentences the offender may, in addition to any other punishment
that may be imposed for that offence, make an order prohibiting the
offender from operating a motor vehicle on any street, road, highway
or other public place, or from operating a vessel, an aircraft or
railway equipment, as the case may be
(a) during any period that the
court considers proper, if the offender is liable to imprisonment
for life in respect of that offence;
(b) during any period not exceeding
ten years plus any period to which the offender is sentenced to
imprisonment, if the offender is liable to imprisonment for more
than five years but less than life in respect of that offence;
and
(c) during any period not exceeding
three years plus any period to which the offender is sentenced to
imprisonment, in any other case. |
|
(3) No
order made under subsection (1) or (2) shall operate to prevent any
person from acting as master, mate or engineer of a vessel that is
required to carry officers holding certificates as master, mate or
engineer. |
Operation
while disqualified |
(4)
Every one who operates a motor vehicle, vessel or aircraft or any
railway equipment in Canada while disqualified from doing so
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction. |
Definition
of “disqualification” |
(5)
For the purposes of this section, “disqualification” means
(a) a prohibition from operating a
motor vehicle, vessel or aircraft or any railway equipment ordered
pursuant to subsection (1) or (2); or
(b) a disqualification or any other
form of legal restriction of the right or privilege to operate a
motor vehicle, vessel or aircraft imposed
(i) in
the case of a motor vehicle, under the law of a province, or
(ii)
in the case of a vessel or an aircraft, under an Act of
Parliament,
in
respect of a conviction or discharge under section 730 of any
offence referred to in subsection (1) or (2).
R.S.,
1985, c. C-46, s. 259; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1
(4th Supp.), s. 18(F), c. 32 (4th Supp.), s. 62; 1995, c. 22, ss.
10, 18; 1997, c. 18, s. 11; 1999, c. 32, s. 5(Preamble); 2000, c. 2,
s. 2; 2001, c. 37, s. 1. |
|
260. (1)
Where a court makes a prohibition order under subsection 259(1) or
(2) in relation to an offender, it shall cause
(a) the order to be read by or to
the offender;
(b) a copy of the order to be given
to the offender; and
(c) the offender to be informed of
subsection 259(4). |
|
(2)
After subsection (1) has been complied with in relation to an
offender who is bound by an order referred to in that subsection,
the offender shall endorse the order, acknowledging receipt of a
copy thereof and that the order has been explained to him. |
Validity
of order not affected |
(3)
The failure of an offender to endorse an order pursuant to
subsection (2) does not affect the validity of the order. |
|
(4) In
the absence of evidence to the contrary, where it is proved that a
disqualification referred to in paragraph 259(5)(b) has been imposed on a person
and that notice of the disqualification has been mailed by
registered or certified mail to that person, that person shall,
after five days following the mailing of the notice, be deemed to
have received the notice and to have knowledge of the
disqualification, of the date of its commencement and of its
duration. |
Certificate
admissible in evidence |
(5) In
proceedings under section 259, a certificate setting out with
reasonable particularity that a person is disqualified from
(a) driving a motor vehicle in a
province, purporting to be signed by the registrar of motor vehicles
for that province, or
(b) operating a vessel or aircraft,
purporting to be signed by the Minister of Transport or any person
authorized by the Minister of Transport for that purpose
is
evidence of the facts alleged therein without proof of the signature
or official character of the person by whom it purports to be
signed. |
|
(6)
Subsection (5) does not apply in any proceedings unless at least
seven days notice in writing is given to the accused that it is
intended to tender the certificate in evidence. |
Definition
of “registrar of motor vehicles” |
(7) In
subsection (5), “registrar of motor vehicles” includes the deputy of
that registrar and any other person or body, by whatever name or
title designated, that from time to time performs the duties of
superintending the registration of motor vehicles in the
province.
R.S.,
1985, c. C-46, s. 260; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1
(4th Supp.), s. 18(F). |
|
261. (1)
Where an appeal is taken against a conviction or discharge under
section 730 for an offence committed under any of sections 220, 221,
236, 249 to 255 and 259, a judge of the court being appealed to may
direct that any order under subsection 259(1) or (2) arising out of
the conviction or discharge shall, on such conditions as the judge
or court may impose, be stayed pending the final disposition of the
appeal or until otherwise ordered by that court. |
|
(2)
Where conditions are imposed pursuant to a direction made under
subsection (1) that a prohibition order under subsection 259(1) or
(2) be stayed, the direction shall not operate to decrease the
period of prohibition provided in the order made under subsection
259(1) or (2).
R.S.,
1985, c. C-46, s. 261; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1
(4th Supp.), s. 18(F); 1994, c. 44, ss. 15, 103; 1995, c. 22, s. 10;
1997, c. 18, ss. 12, 141. |
|
262. Every
one who
(a) prevents or impedes or attempts
to prevent or impede any person who is attempting to save his own
life, or
(b) without reasonable cause
prevents or impedes or attempts to prevent or impede any person who
is attempting to save the life of another person,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years.
R.S.,
c. C-34, s. 241. |
|
263. (1)
Every one who makes or causes to be made an opening in ice that is
open to or frequented by the public is under a legal duty to guard
it in a manner that is adequate to prevent persons from falling in
by accident and is adequate to warn them that the opening
exists. |
|
(2)
Every one who leaves an excavation on land that he owns or of which
he has charge or supervision is under a legal duty to guard it in a
manner that is adequate to prevent persons from falling in by
accident and is adequate to warn them that the excavation
exists. |
|
(3)
Every one who fails to perform a duty imposed by subsection (1) or
(2) is guilty of
(a) manslaughter, if the death of
any person results therefrom;
(b) an offence under section 269,
if bodily harm to any person results therefrom; or
(c) an offence punishable on
summary conviction.
R.S.,
c. C-34, s. 242; 1980-81-82-83, c. 125, s. 18. |
|
264. (1) No
person shall, without lawful authority and knowing that another
person is harassed or recklessly as to whether the other person is
harassed, engage in conduct referred to in subsection (2) that
causes that other person reasonably, in all the circumstances, to
fear for their safety or the safety of anyone known to
them. |
|
(2)
The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place
to place the other person or anyone known to them;
(b) repeatedly communicating with,
either directly or indirectly, the other person or anyone known to
them;
(c) besetting or watching the
dwelling-house, or place where the other person, or anyone known to
them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct
directed at the other person or any member of their
family. |
|
(3)
Every person who contravenes this section is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on
summary conviction. |
|
(4)
Where a person is convicted of an offence under this section, the
court imposing the sentence on the person shall consider as an
aggravating factor that, at the time the offence was committed, the
person contravened
(a) the terms or conditions of an
order made pursuant to section 161 or a recognizance entered into
pursuant to section 810, 810.1 or 810.2; or
(b) the terms or conditions of any
other order or recognizance made or entered into under the common
law or a provision of this or any other Act of Parliament or of a
province that is similar in effect to an order or recognizance
referred to in paragraph (a). |
|
(5)
Where the court is satisfied of the existence of an aggravating
factor referred to in subsection (4), but decides not to give effect
to it for sentencing purposes, the court shall give reasons for its
decision.
R.S.,
1985, c. C-46, s. 264; R.S., 1985, c. 27 (1st Supp.), s. 37; 1993,
c. 45, s. 2; 1997, c. 16, s. 4, c. 17, s. 9; 2002, c. 13, s.
10. |
|
|
|
264.1 (1)
Every one commits an offence who, in any manner, knowingly utters,
conveys or causes any person to receive a threat
(a) to cause death or bodily harm
to any person;
(b) to burn, destroy or damage real
or personal property; or
(c) to kill, poison or injure an
animal or bird that is the property of any person. |
|
(2)
Every one who commits an offence under paragraph (1)(a) is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on
summary conviction and liable to imprisonment for a term not
exceeding eighteen months. |
|
(3)
Every one who commits an offence under paragraph (1)(b) or (c)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years; or
(b) is guilty of an offence
punishable on summary conviction.
R.S.,
1985, c. 27 (1st Supp.), s. 38; 1994, c. 44, s. 16. |
|
265. (1) A
person commits an assault when
(a) without the consent of another
person, he applies force intentionally to that other person,
directly or indirectly;
(b) he attempts or threatens, by an
act or a gesture, to apply force to another person, if he has, or
causes that other person to believe on reasonable grounds that he
has, present ability to effect his purpose; or
(c) while openly wearing or
carrying a weapon or an imitation thereof, he accosts or impedes
another person or begs. |
|
(2)
This section applies to all forms of assault, including sexual
assault, sexual assault with a weapon, threats to a third party or
causing bodily harm and aggravated sexual assault. |
|
(3)
For the purposes of this section, no consent is obtained where the
complainant submits or does not resist by reason of
(a) the application of force to the
complainant or to a person other than the complainant;
(b) threats or fear of the
application of force to the complainant or to a person other than
the complainant;
(c) fraud; or
(d) the exercise of
authority. |
Accused’s
belief as to consent |
(4)
Where an accused alleges that he believed that the complainant
consented to the conduct that is the subject-matter of the charge, a
judge, if satisfied that there is sufficient evidence and that, if
believed by the jury, the evidence would constitute a defence, shall
instruct the jury, when reviewing all the evidence relating to the
determination of the honesty of the accused’s belief, to consider
the presence or absence of reasonable grounds for that belief.
R.S.,
c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s.
19. |
|
266. Every
one who commits an assault is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on
summary conviction.
R.S.,
c. C-34, s. 245; 1972, c. 13, s. 21; 1974-75-76, c. 93, s. 22;
1980-81-82-83, c. 125, s. 19. |
|
267. Every
one who, in committing an assault,
(a) carries, uses or threatens to
use a weapon or an imitation thereof, or
(b) causes bodily harm to the
complainant,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years or an offence punishable on summary
conviction and liable to imprisonment for a term not exceeding
eighteen months.
R.S.,
1985, c. C-46, s. 267; 1994, c. 44, s. 17. |
|
268. (1)
Every one commits an aggravated assault who wounds, maims,
disfigures or endangers the life of the complainant. |
|
(2)
Every one who commits an aggravated assault is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding fourteen years. |
|
(3)
For greater certainty, in this section, “wounds” or “maims” includes
to excise, infibulate or mutilate, in whole or in part, the labia
majora, labia minora or clitoris of a person, except where
(a) a surgical procedure is
performed, by a person duly qualified by provincial law to practise
medicine, for the benefit of the physical health of the person or
for the purpose of that person having normal reproductive functions
or normal sexual appearance or function; or
(b) the person is at least eighteen
years of age and there is no resulting bodily harm. |
|
(4)
For the purposes of this section and section 265, no consent to the
excision, infibulation or mutilation, in whole or in part, of the
labia majora, labia minora or clitoris of a person is valid, except
in the cases described in paragraphs (3)(a) and (b).
R.S.,
1985, c. C-46, s. 268; 1997, c. 16, s. 5. |
|
269. Every
one who unlawfully causes bodily harm to any person is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on
summary conviction and liable to imprisonment for a term not
exceeding eighteen months.
R.S.,
1985, c. C-46, s. 269; 1994, c. 44, s. 18. |
|
269.1 (1)
Every official, or every person acting at the instigation of or with
the consent or acquiescence of an official, who inflicts torture on
any other person is guilty of an indictable offence and liable to
imprisonment for a term not exceeding fourteen years. |
|
(2)
For the purposes of this section, |
“official”
« fonctionnaire » |
“official” means
(a) a peace officer,
(b) a public officer,
(c) a member of the Canadian
Forces, or
(d) any person who may exercise
powers, pursuant to a law in force in a foreign state, that would,
in Canada, be exercised by a person referred to in paragraph (a), (b), or (c),
whether the person
exercises powers in Canada or outside Canada; |
|
“torture” means any act or
omission by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person
(a) for a purpose including
(i)
obtaining from the person or from a third person information or a
statement,
(ii)
punishing the person for an act that the person or a third person
has committed or is suspected of having committed, and
(iii)
intimidating or coercing the person or a third person, or
(b) for any reason based on
discrimination of any kind,
but does not include any
act or omission arising only from, inherent in or incidental to
lawful sanctions. |
|
(3) It
is no defence to a charge under this section that the accused was
ordered by a superior or a public authority to perform the act or
omission that forms the subject-matter of the charge or that the act
or omission is alleged to have been justified by exceptional
circumstances, including a state of war, a threat of war, internal
political instability or any other public emergency. |
|
(4) In
any proceedings over which Parliament has jurisdiction, any
statement obtained as a result of the commission of an offence under
this section is inadmissible in evidence, except as evidence that
the statement was so obtained.
R.S.,
1985, c. 10 (3rd Supp.), s. 2. |
|
270. (1)
Every one commits an offence who
(a) assaults a public officer or
peace officer engaged in the execution of his duty or a person
acting in aid of such an officer;
(b) assaults a person with intent
to resist or prevent the lawful arrest or detention of himself or
another person; or
(c) assaults a person
(i)
who is engaged in the lawful execution of a process against lands or
goods or in making a lawful distress or seizure, or
(ii)
with intent to rescue anything taken under lawful process, distress
or seizure. |
|
(2)
Every one who commits an offence under subsection (1) is guilty
of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on
summary conviction.
R.S.,
c. C-34, s. 246; 1972, c. 13, s. 22; 1980-81-82-83, c. 125, s.
19. |
|
270.1 (1)
Every one commits an offence who, without the consent of a peace
officer, takes or attempts to take a weapon that is in the
possession of the peace officer when the peace officer is engaged in
the execution of his or her duty. |
|
(2)
For the purpose of subsection (1), “weapon” means any thing that is
designed to be used to cause injury or death to, or to temporarily
incapacitate, a person. |
|
(3)
Every one who commits an offence under subsection (1) is guilty
of
(a) an indictable offence and
liable to imprisonment for a term of not more than five years;
or
(b) an offence punishable on
summary conviction and liable to imprisonment for a term of not more
than eighteen months.
2002,
c. 13, s. 11. |
|
271. (1)
Every one who commits a sexual assault is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on
summary conviction and liable to imprisonment for a term not
exceeding eighteen months.
(2)
[Repealed, R.S., 1985, c. 19 (3rd Supp.), s. 10]
R.S.,
1985, c. C-46, s. 271; R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994,
c. 44, s. 19. |
|
272. (1)
Every person commits an offence who, in committing a sexual
assault,
(a) carries, uses or threatens to
use a weapon or an imitation of a weapon;
(b) threatens to cause bodily harm
to a person other than the complainant;
(c) causes bodily harm to the
complainant; or
(d) is a party to the offence with
any other person. |
|
(2)
Every person who commits an offence under subsection (1) is guilty
of an indictable offence and liable
(a) where a firearm is used in the
commission of the offence, to imprisonment for a term not exceeding
fourteen years and to a minimum punishment of imprisonment for a
term of four years; and
(b) in any other case, to
imprisonment for a term not exceeding fourteen years.
R.S.,
1985, c. C-46, s. 272; 1995, c. 39, s. 145. |
|
273. (1)
Every one commits an aggravated sexual assault who, in committing a
sexual assault, wounds, maims, disfigures or endangers the life of
the complainant. |
Aggravated
sexual assault |
(2)
Every person who commits an aggravated sexual assault is guilty of
an indictable offence and liable
(a) where a firearm is used in the
commission of the offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years; and
(b) in any other case, to
imprisonment for life.
R.S.,
1985, c. C-46, s. 273; 1995, c. 39, s. 146. |
|
273.1 (1)
Subject to subsection (2) and subsection 265(3), “consent” means,
for the purposes of sections 271, 272 and 273, the voluntary
agreement of the complainant to engage in the sexual activity in
question. |
Where
no consent obtained |
(2) No
consent is obtained, for the purposes of sections 271, 272 and 273,
where
(a) the agreement is expressed by
the words or conduct of a person other than the complainant;
(b) the complainant is incapable of
consenting to the activity;
(c) the accused induces the
complainant to engage in the activity by abusing a position of
trust, power or authority;
(d) the complainant expresses, by
words or conduct, a lack of agreement to engage in the activity;
or
(e) the complainant, having
consented to engage in sexual activity, expresses, by words or
conduct, a lack of agreement to continue to engage in the
activity. |
Subsection
(2) not limiting |
(3)
Nothing in subsection (2) shall be construed as limiting the
circumstances in which no consent is obtained.
1992,
c. 38, s. 1. |
|
273.2 It is
not a defence to a charge under section 271, 272 or 273 that the
accused believed that the complainant consented to the activity that
forms the subject-matter of the charge, where
(a) the accused’s belief arose from
the accused’s
(i)
self-induced intoxication, or
(ii)
recklessness or wilful blindness; or
(b) the accused did not take
reasonable steps, in the circumstances known to the accused at the
time, to ascertain that the complainant was consenting.
1992,
c. 38, s. 1. |
|
273.3 (1) No
person shall do anything for the purpose of removing from Canada a
person who is ordinarily resident in Canada and who is
(a) under the age of fourteen
years, with the intention that an act be committed outside Canada
that if it were committed in Canada would be an offence against
section 151 or 152 or subsection 160(3) or 173(2) in respect of that
person;
(b) fourteen years of age or more
but under the age of eighteen years, with the intention that an act
be committed outside Canada that if it were committed in Canada
would be an offence against section 153 in respect of that person;
or
(c) under the age of eighteen
years, with the intention that an act be committed outside Canada
that if it were committed in Canada would be an offence against
section 155 or 159, subsection 160(2) or section 170, 171, 267, 268,
269, 271, 272 or 273 in respect of that person. |
|
(2)
Every person who contravenes this section is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on
summary conviction.
1993,
c. 45, s. 3; 1997, c. 18, s. 13. |
|
274. If an
accused is charged with an offence under section 151, 152, 153,
153.1, 155, 159, 160, 170, 171, 172, 173, 212, 271, 272 or 273, no
corroboration is required for a conviction and the judge shall not
instruct the jury that it is unsafe to find the accused guilty in
the absence of corroboration.
R.S.,
1985, c. C-46, s. 274; R.S., 1985, c. 19 (3rd Supp.), s. 11; 2002,
c. 13, s. 12. |
|
275. The
rules relating to evidence of recent complaint are hereby abrogated
with respect to offences under sections 151, 152, 153, 153.1, 155
and 159, subsections 160(2) and (3) and sections 170, 171, 172, 173,
271, 272 and 273.
R.S.,
1985, c. C-46, s. 275; R.S., 1985, c. 19 (3rd Supp.), s. 11; 2002,
c. 13, s. 12. |
|
276. (1) In
proceedings in respect of an offence under section 151, 152, 153,
153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171,
172, 173, 271, 272 or 273, evidence that the complainant has engaged
in sexual activity, whether with the accused or with any other
person, is not admissible to support an inference that, by reason of
the sexual nature of that activity, the complainant
(a) is more likely to have
consented to the sexual activity that forms the subject-matter of
the charge; or
(b) is less worthy of
belief. |
|
(2) In
proceedings in respect of an offence referred to in subsection (1),
no evidence shall be adduced by or on behalf of the accused that the
complainant has engaged in sexual activity other than the sexual
activity that forms the subject-matter of the charge, whether with
the accused or with any other person, unless the judge, provincial
court judge or justice determines, in accordance with the procedures
set out in sections 276.1 and 276.2, that the evidence
(a) is of specific instances of
sexual activity;
(b) is relevant to an issue at
trial; and
(c) has significant probative value
that is not substantially outweighed by the danger of prejudice to
the proper administration of justice. |
Factors
that judge must consider |
(3) In
determining whether evidence is admissible under subsection (2), the
judge, provincial court judge or justice shall take into account
(a) the interests of justice,
including the right of the accused to make a full answer and
defence;
(b) society’s interest in
encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable
prospect that the evidence will assist in arriving at a just
determination in the case;
(d) the need to remove from the
fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may
unduly arouse sentiments of prejudice, sympathy or hostility in the
jury;
(f) the potential prejudice to the
complainant’s personal dignity and right of privacy;
(g) the right of the complainant
and of every individual to personal security and to the full
protection and benefit of the law; and
(h) any other factor that the
judge, provincial court judge or justice considers relevant.
R.S.,
1985, c. C-46, s. 276; R.S., 1985, c. 19 (3rd Supp.), s. 12; 1992,
c. 38, s. 2; 2002, c. 13, s. 13. |
|
276.1 (1)
Application may be made to the judge, provincial court judge or
justice by or on behalf of the accused for a hearing under section
276.2 to determine whether evidence is admissible under subsection
276(2). |
Form
and content of application |
(2) An
application referred to in subsection (1) must be made in writing
and set out
(a) detailed particulars of the
evidence that the accused seeks to adduce, and
(b) the relevance of that evidence
to an issue at trial,
and a
copy of the application must be given to the prosecutor and to the
clerk of the court. |
|
(3)
The judge, provincial court judge or justice shall consider the
application with the jury and the public excluded. |
Judge
may decide to hold hearing |
(4)
Where the judge, provincial court judge or justice is satisfied
(a) that the application was made
in accordance with subsection (2),
(b) that a copy of the application
was given to the prosecutor and to the clerk of the court at least
seven days previously, or such shorter interval as the judge,
provincial court judge or justice may allow where the interests of
justice so require, and
(c) that the evidence sought to be
adduced is capable of being admissible under subsection 276(2),
the
judge, provincial court judge or justice shall grant the application
and hold a hearing under section 276.2 to determine whether the
evidence is admissible under subsection 276(2).
1992,
c. 38, s. 2. |
|
276.2 (1) At
a hearing to determine whether evidence is admissible under
subsection 276(2), the jury and the public shall be
excluded. |
Complainant
not compellable |
(2)
The complainant is not a compellable witness at the
hearing. |
Judge’s
determination and reasons |
(3) At
the conclusion of the hearing, the judge, provincial court judge or
justice shall determine whether the evidence, or any part thereof,
is admissible under subsection 276(2) and shall provide reasons for
that determination, and
(a) where not all of the evidence
is to be admitted, the reasons must state the part of the evidence
that is to be admitted;
(b) the reasons must state the
factors referred to in subsection 276(3) that affected the
determination; and
(c) where all or any part of the
evidence is to be admitted, the reasons must state the manner in
which that evidence is expected to be relevant to an issue at
trial. |
|
(4)
The reasons provided under subsection (3) shall be entered in the
record of the proceedings or, where the proceedings are not
recorded, shall be provided in writing.
1992,
c. 38, s. 2. |
|
276.3 (1) No
person shall publish in a newspaper, as defined in section 297, or
in a broadcast, any of the following:
(a) the contents of an application
made under section 276.1;
(b) any evidence taken, the
information given and the representations made at an application
under section 276.1 or at a hearing under section 276.2;
(c) the decision of a judge,
provincial court judge or justice under subsection 276.1(4), unless
the judge, provincial court judge or justice, after taking into
account the complainant’s right of privacy and the interests of
justice, orders that the decision may be published; and
(d) the determination made and the
reasons provided under section 276.2, unless
(i)
that determination is that evidence is admissible, or
(ii)
the judge, provincial court judge or justice, after taking into
account the complainant’s right of privacy and the interests of
justice, orders that the determination and reasons may be
published. |
|
(2)
Every person who contravenes subsection (1) is guilty of an offence
punishable on summary conviction.
1992,
c. 38, s. 2. |
|
276.4 Where
evidence is admitted at trial pursuant to a determination made under
section 276.2, the judge shall instruct the jury as to the uses that
the jury may and may not make of that evidence.
1992,
c. 38, s. 2. |
|
276.5 For the
purposes of sections 675 and 676, a determination made under section
276.2 shall be deemed to be a question of law.
1992,
c. 38, s. 2. |
|
277. In
proceedings in respect of an offence under section 151, 152, 153,
153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171,
172, 173, 271, 272 or 273, evidence of sexual reputation, whether
general or specific, is not admissible for the purpose of
challenging or supporting the credibility of the complainant.
R.S.,
1985, c. C-46, s. 277; R.S., 1985, c. 19 (3rd Supp.), s. 13; 2002,
c. 13, s. 14. |
|
278. A
husband or wife may be charged with an offence under section 271,
272 or 273 in respect of his or her spouse, whether or not the
spouses were living together at the time the activity that forms the
subject-matter of the charge occurred.
1980-81-82-83,
c. 125, s. 19. |
|
278.1 For the
purposes of sections 278.2 to 278.9, “record” means any form of
record that contains personal information for which there is a
reasonable expectation of privacy and includes, without limiting the
generality of the foregoing, medical, psychiatric, therapeutic,
counselling, education, employment, child welfare, adoption and
social services records, personal journals and diaries, and records
containing personal information the production or disclosure of
which is protected by any other Act of Parliament or a provincial
legislature, but does not include records made by persons
responsible for the investigation or prosecution of the offence.
1997,
c. 30, s. 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. |
Application
of provisions |
(2)
Section 278.1, this section and sections 278.3 to 278.91 apply where
a record is in the possession or control of any person, including
the prosecutor in the proceedings, unless, in the case of a record
in the possession or control of the prosecutor, the complainant or
witness to whom the record relates has expressly waived the
application of those sections. |
Duty
of prosecutor to give notice |
(3) In
the case of a record in respect of which this section applies that
is in the possession or control of the prosecutor, the prosecutor
shall notify the accused that the record is in the prosecutor’s
possession but, in doing so, the prosecutor shall not disclose the
record’s contents.
1997,
c. 30, s. 1; 1998, c. 9, s. 3. |
|
278.3 (1) An
accused who seeks production of a record referred to in subsection
278.2(1) must make an application to the judge before whom the
accused is to be, or is being, tried. |
No
application in other proceedings |
(2)
For greater certainty, an application under subsection (1) may not
be made to a judge or justice presiding at any other proceedings,
including a preliminary inquiry. |
Form
and content of application |
(3) An
application must be made in writing and set out
(a) particulars identifying the
record that the accused seeks to have produced and the name of the
person who has possession or control of the record; and
(b) the grounds on which the
accused relies to establish that the record is likely relevant to an
issue at trial or to the competence of a witness to
testify. |
|
(4)
Any one or more of the following assertions by the accused are not
sufficient on their own to establish that the record is likely
relevant to an issue at trial or to the competence of a witness to
testify:
(a) that the record exists;
(b) that the record relates to
medical or psychiatric treatment, therapy or counselling that the
complainant or witness has received or is receiving;
(c) that the record relates to the
incident that is the subject-matter of the proceedings;
(d) that the record may disclose a
prior inconsistent statement of the complainant or witness;
(e) that the record may relate to
the credibility of the complainant or witness;
(f) that the record may relate to
the reliability of the testimony of the complainant or witness
merely because the complainant or witness has received or is
receiving psychiatric treatment, therapy or counselling;
(g) that the record may reveal
allegations of sexual abuse of the complainant by a person other
than the accused;
(h) that the record relates to the
sexual activity of the complainant with any person, including the
accused;
(i) that the record relates to the
presence or absence of a recent complaint;
(j) that the record relates to the
complainant’s sexual reputation; or
(k) that the record was made close
in time to a complaint or to the activity that forms the
subject-matter of the charge against the accused. |
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 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. |
|
(6)
The judge may at any time order that the application be served on
any person to whom the judge considers the record may relate.
1997,
c. 30, s. 1. |
|
278.4 (1) The
judge shall hold a hearing in
camera to determine whether to order the person who has
possession or control of the record to produce it to the court for
review by the judge. |
Persons
who may appear at hearing |
(2)
The person who has possession or control of the record, the
complainant or witness, as the case may be, and any other person to
whom the record relates may appear and make submissions at the
hearing, but they are not compellable as witnesses at the
hearing. |
|
(3) No
order for costs may be made against a person referred to in
subsection (2) in respect of their participation in the hearing.
1997,
c. 30, s. 1. |
|
278.5 (1) The
judge may order the person who has possession or control of the
record to produce the record or part of the record to the court for
review by the judge if, after the hearing referred to in subsection
278.4(1), the judge is satisfied that
(a) the application was made in
accordance with subsections 278.3(2) to (6);
(b) the accused has established
that the record is likely relevant to an issue at trial or to the
competence of a witness to testify; and
(c) the production of the record is
necessary in the interests of justice. |
|
(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:
(a) the extent to which the record
is necessary for the accused to make a full answer and defence;
(b) the probative value of the
record;
(c) the nature and extent of the
reasonable expectation of privacy with respect to the record;
(d) whether production of the
record is based on a discriminatory belief or bias;
(e) the potential prejudice to the
personal dignity and right to privacy of any person to whom the
record relates;
(f) society’s interest in
encouraging the reporting of sexual offences;
(g) society’s interest in
encouraging the obtaining of treatment by complainants of sexual
offences; and
(h) the effect of the determination
on the integrity of the trial process.
1997,
c. 30, s. 1. |
|
278.6 (1)
Where the judge has ordered the production of the record or part of
the record for review, the judge shall review it in the absence of
the parties in order to determine whether the record or part of the
record should be produced to the accused. |
|
(2)
The judge may hold a hearing in
camera if the judge considers that it will assist in making
the determination. |
|
(3)
Subsections 278.4(2) and (3) apply in the case of a hearing under
subsection (2).
1997,
c. 30, s. 1. |
|
278.7 (1)
Where the judge is satisfied that the record or part of the record
is likely relevant to an issue at trial or to the competence of a
witness to testify and its production is necessary in the interests
of justice, the judge may order that the record or part of the
record that is likely relevant be produced to the accused, subject
to any conditions that may be imposed pursuant to subsection
(3). |
|
(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. |
|
(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:
(a) that the record be edited as
directed by the judge;
(b) that a copy of the record,
rather than the original, be produced;
(c) that the accused and counsel
for the accused not disclose the contents of the record to any other
person, except with the approval of the court;
(d) that the record be viewed only
at the offices of the court;
(e) that no copies of the record be
made or that restrictions be imposed on the number of copies of the
record that may be made; and
(f) that information regarding any
person named in the record, such as their address, telephone number
and place of employment, be severed from the record. |
|
(4)
Where the judge orders the production of the record or part of the
record to the accused, the judge shall direct that a copy of the
record or part of the record be provided to the prosecutor, unless
the judge determines that it is not in the interests of justice to
do so. |
Record
not to be used in other proceedings |
(5)
The record or part of the record that is produced to the accused
pursuant to an order under subsection (1) shall not be used in any
other proceedings. |
Retention
of record by court |
(6)
Where the judge refuses to order the production of the record or
part of the record to the accused, the record or part of the record
shall, unless a court orders otherwise, be kept in a sealed package
by the court until the later of the expiration of the time for any
appeal and the completion of any appeal in the proceedings against
the accused, whereupon the record or part of the record shall be
returned to the person lawfully entitled to possession or control of
it.
1997,
c. 30, s. 1. |
|
278.8 (1) The
judge shall provide reasons for ordering or refusing to order the
production of the record or part of the record pursuant to
subsection 278.5(1) or 278.7(1). |
|
(2)
The reasons referred to in subsection (1) shall be entered in the
record of the proceedings or, where the proceedings are not
recorded, shall be provided in writing.
1997,
c. 30, s. 1. |
|
278.9 (1) No
person shall publish in a newspaper, as defined in section 297, or
in a broadcast, any of the following:
(a) the contents of an application
made under section 278.3;
(b) any evidence taken, information
given or submissions made at a hearing under subsection 278.4(1) or
278.6(2); or
(c) the determination of the judge
pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided
pursuant to section 278.8, unless the judge, after taking into
account the interests of justice and the right to privacy of the
person to whom the record relates, orders that the determination may
be published. |
|
(2)
Every person who contravenes subsection (1) is guilty of an offence
punishable on summary conviction.
1997,
c. 30, s. 1. |
|
278.91 For
the purposes of sections 675 and 676, a determination to make or
refuse to make an order pursuant to subsection 278.5(1) or 278.7(1)
is deemed to be a question of law.
1997,
c. 30, s. 1. |
|
Kidnapping,
Hostage Taking and Abduction |
|
279. (1)
Every person commits an offence who kidnaps a person with intent
(a) to cause the person to be
confined or imprisoned against the person’s will;
(b) to cause the person to be
unlawfully sent or transported out of Canada against the person’s
will; or
(c) to hold the person for ransom
or to service against the person’s will. |
|
(1.1)
Every person who commits an offence under subsection (1) is guilty
of an indictable offence and liable
(a) where a firearm is used in the
commission of the offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years; and
(b) in any other case, to
imprisonment for life. |
|
(2)
Every one who, without lawful authority, confines, imprisons or
forcibly seizes another person is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on
summary conviction and liable to imprisonment for a term not
exceeding eighteen months. |
|
(3) In
proceedings under this section, the fact that the person in relation
to whom the offence is alleged to have been committed did not resist
is not a defence unless the accused proves that the failure to
resist was not caused by threats, duress, force or exhibition of
force.
R.S.,
1985, c. C-46, s. 279; R.S., 1985, c. 27 (1st Supp.), s. 39; 1995,
c. 39, s. 147; 1997, c. 18, s. 14. |
|
279.1 (1)
Every one takes a person hostage who
(a) confines, imprisons, forcibly
seizes or detains that person, and
(b) in any manner utters, conveys
or causes any person to receive a threat that the death of, or
bodily harm to, the hostage will be caused or that the confinement,
imprisonment or detention of the hostage will be continued
with
intent to induce any person, other than the hostage, or any group of
persons or any state or international or intergovernmental
organization to commit or cause to be committed any act or omission
as a condition, whether express or implied, of the release of the
hostage. |
|
(2)
Every person who takes a person hostage is guilty of an indictable
offence and liable
(a) where a firearm is used in the
commission of the offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years; and
(b) in any other case, to
imprisonment for life. |
|
(3)
Subsection 279(3) applies to proceedings under this section as if
the offence under this section were an offence under section
279.
R.S.,
1985, c. 27 (1st Supp.), s. 40; 1995, c. 39, s. 148. |
|
280. (1)
Every one who, without lawful authority, takes or causes to be taken
an unmarried person under the age of sixteen years out of the
possession of and against the will of the parent or guardian of that
person or of any other person who has the lawful care or charge of
that person is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years. |
|
(2) In
this section and sections 281 to 283, “guardian” includes any person
who has in law or in fact the custody or control of another
person.
R.S.,
c. C-34, s. 249; 1980-81-82-83, c. 125, s. 20. |
|
281. Every
one who, not being the parent, guardian or person having the lawful
care or charge of a person under the age of fourteen years,
unlawfully takes, entices away, conceals, detains, receives or
harbours that person with intent to deprive a parent or guardian, or
any other person who has the lawful care or charge of that person,
of the possession of that person is guilty of an indictable offence
and liable to imprisonment for a term not exceeding ten years.
R.S.,
c. C-34, s. 250; 1980-81-82-83, c. 125, s. 20. |
|
282. (1)
Every one who, being the parent, guardian or person having the
lawful care or charge of a person under the age of fourteen years,
takes, entices away, conceals, detains, receives or harbours that
person, in contravention of the custody provisions of a custody
order in relation to that person made by a court anywhere in Canada,
with intent to deprive a parent or guardian, or any other person who
has the lawful care or charge of that person, of the possession of
that person is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on
summary conviction. |
Where
no belief in validity of custody order |
(2)
Where a count charges an offence under subsection (1) and the
offence is not proven only because the accused did not believe that
there was a valid custody order but the evidence does prove an
offence under section 283, the accused may be convicted of an
offence under section 283.
R.S.,
1985, c. C-46, s. 282; 1993, c. 45, s. 4. |
|
283. (1)
Every one who, being the parent, guardian or person having the
lawful care or charge of a person under the age of fourteen years,
takes, entices away, conceals, detains, receives or harbours that
person, whether or not there is a custody order in relation to that
person made by a court anywhere in Canada, with intent to deprive a
parent or guardian, or any other person who has the lawful care or
charge of that person, of the possession of that person, is guilty
of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on
summary conviction. |
|
(2) No
proceedings may be commenced under subsection (1) without the
consent of the Attorney General or counsel instructed by him for
that purpose.
R.S.,
1985, c. C-46, s. 283; 1993, c. 45, s. 5. |
|
284. No one
shall be found guilty of an offence under sections 281 to 283 if he
establishes that the taking, enticing away, concealing, detaining,
receiving or harbouring of any young person was done with the
consent of the parent, guardian or other person having the lawful
possession, care or charge of that young person.
1980-81-82-83,
c. 125, s. 20. |
|
285. No one
shall be found guilty of an offence under sections 280 to 283 if the
court is satisfied that the taking, enticing away, concealing,
detaining, receiving or harbouring of any young person was necessary
to protect the young person from danger of imminent harm or if the
person charged with the offence was escaping from danger of imminent
harm.
R.S.,
1985, c. C-46, s. 285; 1993, c. 45, s. 6. |
|
286. In
proceedings in respect of an offence under sections 280 to 283, it
is not a defence to any charge that a young person consented to or
suggested any conduct of the accused.
1980-81-82-83,
c. 125, s. 20. |
|
|
|
287. (1)
Every one who, with intent to procure the miscarriage of a female
person, whether or not she is pregnant, uses any means for the
purpose of carrying out his intention is guilty of an indictable
offence and liable to imprisonment for life. |
Woman
procuring her own miscarriage |
(2)
Every female person who, being pregnant, with intent to procure her
own miscarriage, uses any means or permits any means to be used for
the purpose of carrying out her intention is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years. |
|
(3) In
this section, “means” includes
(a) the administration of a drug or
other noxious thing;
(b) the use of an instrument;
and
(c) manipulation of any
kind. |
|
(4)
Subsections (1) and (2) do not apply to
(a) a qualified medical
practitioner, other than a member of a therapeutic abortion
committee for any hospital, who in good faith uses in an accredited
or approved hospital any means for the purpose of carrying out his
intention to procure the miscarriage of a female person, or
(b) a female person who, being
pregnant, permits a qualified medical practitioner to use in an
accredited or approved hospital any means for the purpose of
carrying out her intention to procure her own miscarriage,
if,
before the use of those means, the therapeutic abortion committee
for that accredited or approved hospital, by a majority of the
members of the committee and at a meeting of the committee at which
the case of the female person has been reviewed,
(c) has by certificate in writing
stated that in its opinion the continuation of the pregnancy of the
female person would or would be likely to endanger her life or
health, and
(d) has caused a copy of that
certificate to be given to the qualified medical
practitioner. |
|
(5)
The Minister of Health of a province may by order
(a) require a therapeutic abortion
committee for any hospital in that province, or any member thereof,
to furnish him with a copy of any certificate described in paragraph
(4)(c) issued by that
committee, together with such other information relating to the
circumstances surrounding the issue of that certificate as he may
require; or
(b) require a medical practitioner
who, in that province, has procured the miscarriage of any female
person named in a certificate described in paragraph (4)(c), to furnish him with a copy of
that certificate, together with such other information relating to
the procuring of the miscarriage as he may require. |
|
(6)
For the purposes of subsections (4) and (5) and this
subsection, |
“accredited hospital”
« hôpital
accrédité » |
“accredited hospital”
means a hospital accredited by the Canadian Council on Hospital
Accreditation in which diagnostic services and medical, surgical and
obstetrical treatment are provided; |
“approved hospital”
« hôpital
approuvé » |
“approved hospital” means
a hospital in a province approved for the purposes of this section
by the Minister of Health of that province; |
|
“board” means the board of
governors, management or directors, or the trustees, commission or
other person or group of persons having the control and management
of an accredited or approved hospital; |
“Minister of Health”
« ministre de la
Santé » |
“Minister of Health”
means
(a) in the Provinces of Ontario,
Quebec, New Brunswick, Prince Edward Island, Manitoba and
Newfoundland, the Minister of Health,
(b) in the Provinces of Nova Scotia
and Saskatchewan, the Minister of Public Health, and
(c) in the Province of British
Columbia, the Minister of Health Services and Hospital
Insurance,
(d) in the Province of Alberta, the
Minister of Hospitals and Medical Care,
(e) in Yukon, the Northwest
Territories and Nunavut, the Minister of Health; |
“qualified medical
practitioner”
« médecin
qualifié » |
“qualified medical
practitioner” means a person entitled to engage in the practice of
medicine under the laws of the province in which the hospital
referred to in subsection (4) is situated; |
“therapeutic abortion
committee”
« comité de l’avortement
thérapeutique » |
“therapeutic abortion
committee” for any hospital means a committee, comprised of not less
than three members each of whom is a qualified medical practitioner,
appointed by the board of that hospital for the purpose of
considering and determining questions relating to terminations of
pregnancy within that hospital. |
Requirement
of consent not affected |
(7)
Nothing in subsection (4) shall be construed as making unnecessary
the obtaining of any authorization or consent that is or may be
required, otherwise than under this Act, before any means are used
for the purpose of carrying out an intention to procure the
miscarriage of a female person.
R.S.,
1985, c. C-46, s. 287; 1993, c. 28, s. 78; 1996, c. 8, s. 32; 2002,
c. 7, s. 141. |
|
288. Every
one who unlawfully supplies or procures a drug or other noxious
thing or an instrument or thing, knowing that it is intended to be
used or employed to procure the miscarriage of a female person,
whether or not she is pregnant, is guilty of an indictable offence
and liable to imprisonment for a term not exceeding two years.
R.S.,
c. C-34, s. 252. |
|
|
|
289.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 41] |
|
Offences
Against Conjugal Rights |
|
290. (1)
Every one commits bigamy who
(a) in Canada,
(i)
being married, goes through a form of marriage with another
person,
(ii)
knowing that another person is married, goes through a form of
marriage with that person, or
(iii)
on the same day or simultaneously, goes through a form of marriage
with more than one person; or
(b) being a Canadian citizen
resident in Canada leaves Canada with intent to do anything
mentioned in subparagraphs (a)(i) to (iii) and, pursuant
thereto, does outside Canada anything mentioned in those
subparagraphs in circumstances mentioned therein. |
|
(2) No
person commits bigamy by going through a form of marriage if
(a) that person in good faith and
on reasonable grounds believes that his spouse is dead;
(b) the spouse of that person has
been continuously absent from him for seven years immediately
preceding the time when he goes through the form of marriage, unless
he knew that his spouse was alive at any time during those seven
years;
(c) that person has been divorced
from the bond of the first marriage; or
(d) the former marriage has been
declared void by a court of competent jurisdiction. |
|
(3)
Where a person is alleged to have committed bigamy, it is not a
defence that the parties would, if unmarried, have been incompetent
to contract marriage under the law of the place where the offence is
alleged to have been committed. |
|
(4)
Every marriage or form of marriage shall, for the purpose of this
section, be deemed to be valid unless the accused establishes that
it was invalid. |
Act
or omission by accused |
(5) No
act or omission on the part of an accused who is charged with bigamy
invalidates a marriage or form of marriage that is otherwise
valid.
R.S.,
c. C-34, s. 254. |
|
291. (1)
Every one who commits bigamy is guilty of an indictable offence and
liable to imprisonment for a term not exceeding five
years. |
|
(2)
For the purposes of this section, a certificate of marriage issued
under the authority of law is evidence of the marriage or form of
marriage to which it relates without proof of the signature or
official character of the person by whom it purports to be
signed.
R.S.,
c. C-34, s. 255. |
|
292. (1)
Every person who procures or knowingly aids in procuring a feigned
marriage between himself and another person is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding five years. |
|
(2) No
person shall be convicted of an offence under this section on the
evidence of only one witness unless the evidence of that witness is
corroborated in a material particular by evidence that implicates
the accused.
R.S.,
c. C-34, s. 256; 1980-81-82-83, c. 125, s. 21. |
|
293. (1)
Every one who
(a) practises or enters into or in
any manner agrees or consents to practise or enter into
(i)
any form of polygamy, or
(ii)
any kind of conjugal union with more than one person at the same
time,
whether
or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a
party to a rite, ceremony, contract or consent that purports to
sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years. |
Evidence
in case of polygamy |
(2)
Where an accused is charged with an offence under this section, no
averment or proof of the method by which the alleged relationship
was entered into, agreed to or consented to is necessary in the
indictment or on the trial of the accused, nor is it necessary on
the trial to prove that the persons who are alleged to have entered
into the relationship had or intended to have sexual
intercourse.
R.S.,
c. C-34, s. 257. |
|
Unlawful
Solemnization of Marriage |
|
294. Every
one who
(a) solemnizes or pretends to
solemnize a marriage without lawful authority, the proof of which
lies on him, or
(b) procures a person to solemnize
a marriage knowing that he is not lawfully authorized to solemnize
the marriage,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years.
R.S.,
c. C-34, s. 258. |
|
295. Every
one who, being lawfully authorized to solemnize marriage, knowingly
and wilfully solemnizes a marriage in contravention of the laws of
the province in which the marriage is solemnized is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding two years.
R.S.,
c. C-34, s. 259. |
|
|
|
296. (1)
Every one who publishes a blasphemous libel is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding two years. |
|
(2) It
is a question of fact whether or not any matter that is published is
a blasphemous libel. |
|
(3) No
person shall be convicted of an offence under this section for
expressing in good faith and in decent language, or attempting to
establish by argument used in good faith and conveyed in decent
language, an opinion on a religious subject.
R.S.,
c. C-34, s. 260. |
|
|
|
297. In
sections 303, 304 and 308, “newspaper” means any paper, magazine or
periodical containing public news, intelligence or reports of
events, or any remarks or observations thereon, printed for sale and
published periodically or in parts or numbers, at intervals not
exceeding thirty-one days between the publication of any two such
papers, parts or numbers, and any paper, magazine or periodical
printed in order to be dispersed and made public, weekly or more
often, or at intervals not exceeding thirty-one days, that contains
advertisements, exclusively or principally.
R.S.,
c. C-34, s. 261. |
|
298. (1) A
defamatory libel is matter published, without lawful justification
or excuse, that is likely to injure the reputation of any person by
exposing him to hatred, contempt or ridicule, or that is designed to
insult the person of or concerning whom it is published. |
|
(2) A
defamatory libel may be expressed directly or by insinuation or
irony
(a) in words legibly marked on any
substance; or
(b) by any object signifying a
defamatory libel otherwise than by words.
R.S.,
c. C-34, s. 262. |
|
299. A person
publishes a libel when he
(a) exhibits it in public;
(b) causes it to be read or seen;
or
(c) shows or delivers it, or causes
it to be shown or delivered, with intent that it should be read or
seen by the person whom it defames or by any other person.
R.S.,
c. C-34, s. 263. |
|
300. Every
one who publishes a defamatory libel that he knows is false is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 264. |
|
301. Every
one who publishes a defamatory libel is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years.
R.S.,
c. C-34, s. 265. |
|
302. (1)
Every one commits an offence who, with intent
(a) to extort money from any
person, or
(b) to induce a person to confer on
or procure for another person an appointment or office of profit or
trust,
publishes
or threatens to publish or offers to abstain from publishing or to
prevent the publication of a defamatory libel. |
|
(2)
Every one commits an offence who, as the result of the refusal of
any person to permit money to be extorted or to confer or procure an
appointment or office of profit or trust, publishes or threatens to
publish a defamatory libel. |
|
(3)
Every one who commits an offence under this section is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding five years.
R.S.,
c. C-34, s. 266. |
|
303. (1) The
proprietor of a newspaper shall be deemed to publish defamatory
matter that is inserted and published therein, unless he proves that
the defamatory matter was inserted in the newspaper without his
knowledge and without negligence on his part. |
General
authority to manager when negligence |
(2)
Where the proprietor of a newspaper gives to a person general
authority to manage or conduct the newspaper as editor or otherwise,
the insertion by that person of defamatory matter in the newspaper
shall, for the purposes of subsection (1), be deemed not to be
negligence on the part of the proprietor unless it is proved
that
(a) he intended the general
authority to include authority to insert defamatory matter in the
newspaper; or
(b) he continued to confer general
authority after he knew that it had been exercised by the insertion
of defamatory matter in the newspaper. |
|
(3) No
person shall be deemed to publish a defamatory libel by reason only
that he sells a number or part of a newspaper that contains a
defamatory libel, unless he knows that the number or part contains
defamatory matter or that defamatory matter is habitually contained
in the newspaper.
R.S.,
c. C-34, s. 267. |
|
304. (1) No
person shall be deemed to publish a defamatory libel by reason only
that he sells a book, magazine, pamphlet or other thing, other than
a newspaper that contains defamatory matter, if, at the time of the
sale, he does not know that it contains the defamatory
matter. |
|
(2)
Where a servant, in the course of his employment, sells a book,
magazine, pamphlet or other thing, other than a newspaper, the
employer shall be deemed not to publish any defamatory matter
contained therein unless it is proved that the employer authorized
the sale knowing that
(a) defamatory matter was contained
therein; or
(b) defamatory matter was
habitually contained therein, in the case of a periodical.
R.S.,
c. C-34, s. 268. |
|
305. No
person shall be deemed to publish a defamatory libel by reason only
that he publishes defamatory matter
(a) in a proceeding held before or
under the authority of a court exercising judicial authority; or
(b) in an inquiry made under the
authority of an Act or by order of Her Majesty, or under the
authority of a public department or a department of the government
of a province.
R.S.,
c. C-34, s. 269. |
|
306. No
person shall be deemed to publish a defamatory libel by reason only
that he
(a) publishes to the Senate or
House of Commons or to the legislature of a province defamatory
matter contained in a petition to the Senate or House of Commons or
to the legislature of a province, as the case may be;
(b) publishes by order or under the
authority of the Senate or House of Commons or of the legislature of
a province a paper containing defamatory matter; or
(c) publishes, in good faith and
without ill-will to the person defamed, an extract from or abstract
of a petition or paper mentioned in paragraph (a) or (b).
R.S.,
c. C-34, s. 270. |
|
307. (1) No
person shall be deemed to publish a defamatory libel by reason only
that he publishes in good faith, for the information of the public,
a fair report of the proceedings of the Senate or House of Commons
or the legislature of a province, or a committee thereof, or of the
public proceedings before a court exercising judicial authority, or
publishes, in good faith, any fair comment on any such
proceedings. |
Divorce
proceedings an exception |
(2)
This section does not apply to a person who publishes a report of
evidence taken or offered in any proceeding before the Senate or
House of Commons or any committee thereof, on a petition or bill
relating to any matter of marriage or divorce, if the report is
published without authority from or leave of the House in which the
proceeding is held or is contrary to any rule, order or practice of
that House.
R.S.,
c. C-34, s. 271. |
|
308. No
person shall be deemed to publish a defamatory libel by reason only
that he publishes in good faith, in a newspaper, a fair report of
the proceedings of any public meeting if
(a) the meeting is lawfully
convened for a lawful purpose and is open to the public;
(b) the report is fair and
accurate;
(c) the publication of the matter
complained of is for the public benefit; and
(d) he does not refuse to publish
in a conspicuous place in the newspaper a reasonable explanation or
contradiction by the person defamed in respect of the defamatory
matter.
R.S.,
c. C-34, s. 272. |
|
309. No
person shall be deemed to publish a defamatory libel by reason only
that he publishes defamatory matter that, on reasonable grounds, he
believes is true, and that is relevant to any subject of public
interest, the public discussion of which is for the public
benefit.
R.S.,
c. C-34, s. 273. |
|
310. No
person shall be deemed to publish a defamatory libel by reason only
that he publishes fair comments
(a) on the public conduct of a
person who takes part in public affairs; or
(b) on a published book or other
literary production, or on any composition or work of art or
performance publicly exhibited, or on any other communication made
to the public on any subject, if the comments are confined to
criticism thereof.
R.S.,
c. C-34, s. 274. |
|
311. No
person shall be deemed to publish a defamatory libel where he proves
that the publication of the defamatory matter in the manner in which
it was published was for the public benefit at the time when it was
published and that the matter itself was true.
R.S.,
c. C-34, s. 275. |
|
312. No
person shall be deemed to publish a defamatory libel by reason only
that he publishes defamatory matter
(a) on the invitation or challenge
of the person in respect of whom it is published, or
(b) that it is necessary to publish
in order to refute defamatory matter published in respect of him by
another person,
if he
believes that the defamatory matter is true and it is relevant to
the invitation, challenge or necessary refutation, as the case may
be, and does not in any respect exceed what is reasonably sufficient
in the circumstances.
R.S.,
c. C-34, s. 276. |
|
313. No
person shall be deemed to publish a defamatory libel by reason only
that he publishes, in answer to inquiries made to him, defamatory
matter relating to a subject-matter in respect of which the person
by whom or on whose behalf the inquiries are made has an interest in
knowing the truth or who, on reasonable grounds, the person who
publishes the defamatory matter believes has such an interest,
if
(a) the matter is published, in
good faith, for the purpose of giving information in answer to the
inquiries;
(b) the person who publishes the
defamatory matter believes that it is true;
(c) the defamatory matter is
relevant to the inquiries; and
(d) the defamatory matter does not
in any respect exceed what is reasonably sufficient in the
circumstances.
R.S.,
c. C-34, s. 277. |
|
314. No
person shall be deemed to publish a defamatory libel by reason only
that he publishes to another person defamatory matter for the
purpose of giving information to that person with respect to a
subject-matter in which the person to whom the information is given
has, or is believed on reasonable grounds by the person who gives it
to have, an interest in knowing the truth with respect to that
subject-matter if
(a) the conduct of the person who
gives the information is reasonable in the circumstances;
(b) the defamatory matter is
relevant to the subject-matter; and
(c) the defamatory matter is true,
or if it is not true, is made without ill-will toward the person who
is defamed and is made in the belief, on reasonable grounds, that it
is true.
R.S.,
c. C-34, s. 278. |
|
315. No
person shall be deemed to publish a defamatory libel by reason only
that he publishes defamatory matter in good faith for the purpose of
seeking remedy or redress for a private or public wrong or grievance
from a person who has, or who on reasonable grounds he believes has,
the right or is under an obligation to remedy or redress the wrong
or grievance, if
(a) he believes that the defamatory
matter is true;
(b) the defamatory matter is
relevant to the remedy or redress that is sought; and
(c) the defamatory matter does not
in any respect exceed what is reasonably sufficient in the
circumstances.
R.S.,
c. C-34, s. 279. |
|
316. (1) An
accused who is alleged to have published a defamatory libel may, at
any stage of the proceedings, adduce evidence to prove that the
matter that is alleged to be defamatory was contained in a paper
published by order or under the authority of the Senate or House of
Commons or the legislature of a province. |
|
(2)
Where at any stage in proceedings referred to in subsection (1) the
court, judge, justice or provincial court judge is satisfied that
the matter alleged to be defamatory was contained in a paper
published by order or under the authority of the Senate or House of
Commons or the legislature of a province, he shall direct a verdict
of not guilty to be entered and shall discharge the
accused. |
|
(3)
For the purposes of this section, a certificate under the hand of
the Speaker or clerk of the Senate or House of Commons or the
legislature of a province to the effect that the matter that is
alleged to be defamatory was contained in a paper published by order
or under the authority of the Senate, House of Commons or the
legislature of a province, as the case may be, is conclusive
evidence thereof.
R.S.,
1985, c. C-46, s. 316; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
|
|
317. Where,
on the trial of an indictment for publishing a defamatory libel, a
plea of not guilty is pleaded, the jury that is sworn to try the
issue may give a general verdict of guilty or not guilty on the
whole matter put in issue on the indictment, and shall not be
required or directed by the judge to find the defendant guilty
merely on proof of publication by the defendant of the alleged
defamatory libel, and of the sense ascribed thereto in the
indictment, but the judge may, in his discretion, give a direction
or opinion to the jury on the matter in issue as in other criminal
proceedings, and the jury may, on the issue, find a special
verdict.
R.S.,
c. C-34, s. 281. |
|
|
|
318. (1)
Every one who advocates or promotes genocide is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding five years. |
|
(2) In
this section, “genocide” means any of the following acts committed
with intent to destroy in whole or in part any identifiable group,
namely,
(a) killing members of the group;
or
(b) deliberately inflicting on the
group conditions of life calculated to bring about its physical
destruction. |
|
(3) No
proceeding for an offence under this section shall be instituted
without the consent of the Attorney General. |
Definition
of “identifiable group” |
(4) In
this section, “identifiable group” means any section of the public
distinguished by colour, race, religion, ethnic origin or sexual
orientation.
R.S.,
1985, c. C-46, s. 318; 2004, c. 14, s. 1. |
|
319. (1)
Every one who, by communicating statements in any public place,
incites hatred against any identifiable group where such incitement
is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction. |
Wilful
promotion of hatred |
(2)
Every one who, by communicating statements, other than in private
conversation, wilfully promotes hatred against any identifiable
group is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction. |
|
(3) No
person shall be convicted of an offence under subsection (2)
(a) if he establishes that the
statements communicated were true;
(b) if, in good faith, the person
expressed or attempted to establish by an argument an opinion on a
religious subject or an opinion based on a belief in a religious
text;
(c) if the statements were relevant
to any subject of public interest, the discussion of which was for
the public benefit, and if on reasonable grounds he believed them to
be true; or
(d) if, in good faith, he intended
to point out, for the purpose of removal, matters producing or
tending to produce feelings of hatred toward an identifiable group
in Canada. |
|
(4)
Where a person is convicted of an offence under section 318 or
subsection (1) or (2) of this section, anything by means of or in
relation to which the offence was committed, on such conviction,
may, in addition to any other punishment imposed, be ordered by the
presiding provincial court judge or judge to be forfeited to Her
Majesty in right of the province in which that person is convicted,
for disposal as the Attorney General may direct. |
Exemption
from seizure of communication facilities |
(5)
Subsections 199(6) and (7) apply with such modifications as the
circumstances require to section 318 or subsection (1) or (2) of
this section. |
|
(6) No
proceeding for an offence under subsection (2) shall be instituted
without the consent of the Attorney General. |
|
(7) In
this section, |
“communicating”
« communiquer » |
“communicating” includes
communicating by telephone, broadcasting or other audible or visible
means; |
“identifiable group”
« groupe
identifiable » |
“identifiable group” has
the same meaning as in section 318; |
“public place”
« endroit public » |
“public place” includes
any place to which the public have access as of right or by
invitation, express or implied; |
“statements”
« déclarations » |
“statements” includes
words spoken or written or recorded electronically or
electro-magnetically or otherwise, and gestures, signs or other
visible representations.
R.S.,
1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004,
c. 14, s. 2. |
|
320. (1) A
judge who is satisfied by information on oath that there are
reasonable grounds for believing that any publication, copies of
which are kept for sale or distribution in premises within the
jurisdiction of the court, is hate propaganda shall issue a warrant
under his hand authorizing seizure of the copies. |
|
(2)
Within seven days of the issue of a warrant under subsection (1),
the judge shall issue a summons to the occupier of the premises
requiring him to appear before the court and show cause why the
matter seized should not be forfeited to Her Majesty. |
Owner
and author may appear |
(3)
The owner and the author of the matter seized under subsection (1)
and alleged to be hate propaganda may appear and be represented in
the proceedings in order to oppose the making of an order for the
forfeiture of the matter. |
|
(4) If
the court is satisfied that the publication referred to in
subsection (1) is hate propaganda, it shall make an order declaring
the matter forfeited to Her Majesty in right of the province in
which the proceedings take place, for disposal as the Attorney
General may direct. |
|
(5) If
the court is not satisfied that the publication referred to in
subsection (1) is hate propaganda, it shall order that the matter be
restored to the person from whom it was seized forthwith after the
time for final appeal has expired. |
|
(6) An
appeal lies from an order made under subsection (4) or (5) by any
person who appeared in the proceedings
(a) on any ground of appeal that
involves a question of law alone,
(b) on any ground of appeal that
involves a question of fact alone, or
(c) on any ground of appeal that
involves a question of mixed law and fact,
as if it
were an appeal against conviction or against a judgment or verdict
of acquittal, as the case may be, on a question of law alone under
Part XXI, and sections 673 to 696 apply with such modifications as
the circumstances require. |
|
(7) No
proceeding under this section shall be instituted without the
consent of the Attorney General. |
|
(8) In
this section, |
|
“court” means
(a) in the Province of Quebec, the
Court of Quebec,
(a.1) in the Province of Ontario,
the Superior Court of Justice,
(b) in the Provinces of New
Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s
Bench,
(c) in the Provinces of Prince
Edward Island and Newfoundland, the Supreme Court, Trial
Division,
(c.1) [Repealed, 1992, c. 51, s.
36]
(d) in the Provinces of Nova Scotia
and British Columbia, in Yukon and in the Northwest Territories, the
Supreme Court, and
(e) in Nunavut, the Nunavut Court
of Justice; |
|
“genocide” has the same
meaning as in section 318; |
“hate propaganda”
« propagande
haineuse » |
“hate
propaganda” means any writing, sign or visible representation that
advocates or promotes genocide or the communication of which by any
person would constitute an offence under section 319; |
|
“judge” means a judge of a
court.
R.S.,
1985, c. C-46, s. 320; R.S., 1985, c. 27 (2nd Supp.), s. 10, c. 40
(4th Supp.), s. 2; 1990, c. 16, s. 4, c. 17, s. 11; 1992, c. 1, s.
58, c. 51, s. 36; 1998, c. 30, s. 14; 1999, c. 3, s. 29; 2002, c. 7,
s. 142. |
|
320.1 (1) If
a judge is satisfied by information on oath that there are
reasonable grounds for believing that there is material that is hate
propaganda within the meaning of subsection 320(8) or data within
the meaning of subsection 342.1(2) that makes hate propaganda
available, that is stored on and made available to the public
through a computer system within the meaning of subsection 342.1(2)
that is within the jurisdiction of the court, the judge may order
the custodian of the computer system to
(a) give an electronic copy of the
material to the court;
(b) ensure that the material is no
longer stored on and made available through the computer system;
and
(c) provide the information
necessary to identify and locate the person who posted the
material. |
Notice
to person who posted the material |
(2)
Within a reasonable time after receiving the information referred to
in paragraph (1)(c), the
judge shall cause notice to be given to the person who posted the
material, giving that person the opportunity to appear and be
represented before the court and show cause why the material should
not be deleted. If the person cannot be identified or located or
does not reside in Canada, the judge may order the custodian of the
computer system to post the text of the notice at the location where
the material was previously stored and made available, until the
time set for the appearance. |
Person
who posted the material may appear |
(3)
The person who posted the material may appear and be represented in
the proceedings in order to oppose the making of an order under
subsection (5). |
|
(4) If
the person who posted the material does not appear for the
proceedings, the court may proceed ex parte to hear and determine the
proceedings in the absence of the person as fully and effectually as
if the person had appeared. |
|
(5) If
the court is satisfied, on a balance of probabilities, that the
material is available to the public and is hate propaganda within
the meaning of subsection 320(8) or data within the meaning of
subsection 342.1(2) that makes hate propaganda available, it may
order the custodian of the computer system to delete the
material. |
|
(6)
When the court makes the order for the deletion of the material, it
may order the destruction of the electronic copy in the court’s
possession. |
|
(7) If
the court is not satisfied that the material is available to the
public and is hate propaganda within the meaning of subsection
320(8) or data within the meaning of subsection 342.1(2) that makes
hate propaganda available, the court shall order that the electronic
copy be returned to the custodian and terminate the order under
paragraph (1)(b). |
Other
provisions to apply |
(8)
Subsections 320(6) to (8) apply, with any modifications that the
circumstances require, to this section. |
|
(9) No
order made under subsections (5) to (7) takes effect until the time
for final appeal has expired.
2001,
c. 41, s. 10. |
|
PART
IX
OFFENCES AGAINST RIGHTS
OF PROPERTY |
|
|
|
321. In this
Part, |
|
“break” means
(a) to break any part, internal or
external, or
(b) to open any thing that is used
or intended to be used to close or to cover an internal or external
opening; |
“credit card”
« carte de
crédit » |
“credit card” means any
card, plate, coupon book or other device issued or otherwise
distributed for the purpose of being used
(a) on presentation to obtain, on
credit, money, goods, services or any other thing of value, or
(b) in an automated teller machine,
a remote service unit or a similar automated banking device to
obtain any of the services offered through the machine, unit or
device; |
|
“document” means any
paper, parchment or other material on which is recorded or marked
anything that is capable of being read or understood by a person,
computer system or other device, and includes a credit card, but
does not include trade-marks on articles of commerce or inscriptions
on stone or metal or other like material; |
“exchequer bill”
« bon du Trésor » |
“exchequer bill” means a
bank-note, bond, note, debenture or security that is issued or
guaranteed by Her Majesty under the authority of Parliament or the
legislature of a province; |
“exchequer bill paper”
« papier de bons du
Trésor » |
“exchequer bill paper”
means paper that is used to manufacture exchequer bills; |
“false document”
« faux document » |
“false
document” means a document
(a) the whole or a material part of
which purports to be made by or on behalf of a person
(i)
who did not make it or authorize it to be made, or
(ii)
who did not in fact exist,
(b) that is made by or on behalf of
the person who purports to make it but is false in some material
particular,
(c) that is made in the name of an
existing person, by him or under his authority, with a fraudulent
intention that it should pass as being made by a person, real or
fictitious, other than the person who makes it or under whose
authority it is made; |
“revenue paper”
« papier de
revenu » |
“revenue paper” means
paper that is used to make stamps, licences or permits or for any
purpose connected with the public revenue.
R.S.,
1985, c. C-46, s. 321; R.S., 1985, c. 27 (1st Supp.), s.
42. |
|
|
|
322. (1)
Every one commits theft who fraudulently and without colour of right
takes, or fraudulently and without colour of right converts to his
use or to the use of another person, anything, whether animate or
inanimate, with intent
(a) to deprive, temporarily or
absolutely, the owner of it, or a person who has a special property
or interest in it, of the thing or of his property or interest in
it;
(b) to pledge it or deposit it as
security;
(c) to part with it under a
condition with respect to its return that the person who parts with
it may be unable to perform; or
(d) to deal with it in such a
manner that it cannot be restored in the condition in which it was
at the time it was taken or converted. |
Time
when theft completed |
(2) A
person commits theft when, with intent to steal anything, he moves
it or causes it to move or to be moved, or begins to cause it to
become movable. |
|
(3) A
taking or conversion of anything may be fraudulent notwithstanding
that it is effected without secrecy or attempt at
concealment. |
|
(4)
For the purposes of this Act, the question whether anything that is
converted is taken for the purpose of conversion, or whether it is,
at the time it is converted, in the lawful possession of the person
who converts it is not material. |
|
(5)
For the purposes of this section, a person who has a wild living
creature in captivity shall be deemed to have a special property or
interest in it while it is in captivity and after it has escaped
from captivity.
R.S.,
c. C-34, s. 283. |
|
323. (1)
Where oysters and oyster brood are in oyster beds, layings or
fisheries that are the property of any person and are sufficiently
marked out or known as the property of that person, that person
shall be deemed to have a special property or interest in
them. |
|
(2) An
indictment is sufficient if it describes an oyster bed, laying or
fishery by name or in any other way, without stating that it is
situated in a particular territorial division.
R.S.,
c. C-34, s. 284. |
|
324. Every
one who is a bailee of anything that is under lawful seizure by a
peace officer or public officer in the execution of the duties of
his office, and who is obliged by law or agreement to produce and
deliver it to that officer or to another person entitled thereto at
a certain time and place, or on demand, steals it if he does not
produce and deliver it in accordance with his obligation, but he
does not steal it if his failure to produce and deliver it is not
the result of a wilful act or omission by him.
R.S.,
c. C-34, s. 285. |
|
325. A factor
or an agent does not commit theft by pledging or giving a lien on
goods or documents of title to goods that are entrusted to him for
the purpose of sale or for any other purpose, if the pledge or lien
is for an amount that does not exceed the sum of
(a) the amount due to him from his
principal at the time the goods or documents are pledged or the lien
is given; and
(b) the amount of any bill of
exchange that he has accepted for or on account of his
principal.
R.S.,
c. C-34, s. 286. |
|
326. (1)
Every one commits theft who fraudulently, maliciously, or without
colour of right,
(a) abstracts, consumes or uses
electricity or gas or causes it to be wasted or diverted; or
(b) uses any telecommunication
facility or obtains any telecommunication service. |
Definition
of “telecommunication” |
(2) In
this section and section 327, “telecommunication” means any
transmission, emission or reception of signs, signals, writing,
images or sounds or intelligence of any nature by wire, radio,
visual or other electromagnetic system.
R.S.,
c. C-34, s. 287; 1974-75-76, c. 93, s. 23. |
|
327. (1)
Every one who, without lawful excuse, the proof of which lies on
him, manufactures, possesses, sells or offers for sale or
distributes any instrument or device or any component thereof, the
design of which renders it primarily useful for obtaining the use of
any telecommunication facility or service, under circumstances that
give rise to a reasonable inference that the device has been used or
is or was intended to be used to obtain the use of any
telecommunication facility or service without payment of a lawful
charge therefor, is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years. |
|
(2)
Where a person is convicted of an offence under subsection (1) or
paragraph 326(1)(b), any
instrument or device in relation to which the offence was committed
or the possession of which constituted the offence, on such
conviction, in addition to any punishment that is imposed, may be
ordered forfeited to Her Majesty, whereupon it may be disposed of as
the Attorney General directs. |
|
(3) No
order for forfeiture shall be made under subsection (2) in respect
of telephone, telegraph or other communication facilities or
equipment owned by a person engaged in providing telephone,
telegraph or other communication service to the public or forming
part of the telephone, telegraph or other communication service or
system of such a person by means of which an offence under
subsection (1) has been committed if such person was not a party to
the offence.
1974-75-76,
c. 93, s. 24. |
|
328. A person
may be convicted of theft notwithstanding that anything that is
alleged to have been stolen was stolen
(a) by the owner of it from a
person who has a special property or interest in it;
(b) by a person who has a special
property or interest in it from the owner of it;
(c) by a lessee of it from his
reversioner;
(d) by one of several joint owners,
tenants in common or partners of or in it from the other persons who
have an interest in it; or
(e) by the representatives of an
organization from the organization.
R.S.,
1985, c. C-46, s. 328; 2003, c. 21, s. 4. |
|
329.
[Repealed, 2000, c. 12, s. 94] |
|
330. (1)
Every one commits theft who, having received anything from any
person on terms that require him to account for or pay it or the
proceeds of it or a part of the proceeds to that person or another
person, fraudulently fails to account for or pay it or the proceeds
of it or the part of the proceeds of it accordingly. |
Effect
of entry in account |
(2)
Where subsection (1) otherwise applies, but one of the terms is that
the thing received or the proceeds or part of the proceeds of it
shall be an item in a debtor and creditor account between the person
who receives the thing and the person to whom he is to account for
or to pay it, and that the latter shall rely only on the liability
of the other as his debtor in respect thereof, a proper entry in
that account of the thing received or the proceeds or part of the
proceeds of it, as the case may be, is a sufficient accounting
therefor, and no fraudulent conversion of the thing or the proceeds
or part of the proceeds of it thereby accounted for shall be deemed
to have taken place.
R.S.,
c. C-34, s. 290. |
|
331. Every
one commits theft who, being entrusted, whether solely or jointly
with another person, with a power of attorney for the sale,
mortgage, pledge or other disposition of real or personal property,
fraudulently sells, mortgages, pledges or otherwise disposes of the
property or any part of it, or fraudulently converts the proceeds of
a sale, mortgage, pledge or other disposition of the property, or
any part of the proceeds, to a purpose other than that for which he
was entrusted by the power of attorney.
R.S.,
c. C-34, s. 291. |
|
332. (1)
Every one commits theft who, having received, either solely or
jointly with another person, money or valuable security or a power
of attorney for the sale of real or personal property, with a
direction that the money or a part of it, or the proceeds or a part
of the proceeds of the security or the property shall be applied to
a purpose or paid to a person specified in the direction,
fraudulently and contrary to the direction applies to any other
purpose or pays to any other person the money or proceeds or any
part of it. |
Effect
of entry in account |
(2)
This section does not apply where a person who receives anything
mentioned in subsection (1) and the person from whom he receives it
deal with each other on such terms that all money paid to the former
would, in the absence of any such direction, be properly treated as
an item in a debtor and creditor account between them, unless the
direction is in writing.
R.S.,
c. C-34, s. 292. |
|
333. No
person commits theft by reason only that he takes, for the purpose
of exploration or scientific investigation, a specimen of ore or
mineral from land that is not enclosed and is not occupied or worked
as a mine, quarry or digging.
R.S.,
c. C-34, s. 293. |
|
334. Except
where otherwise provided by law, every one who commits theft
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years, where the property stolen is a testamentary instrument or the
value of what is stolen exceeds five thousand dollars; or
(b) is guilty
(i) of
an indictable offence and is liable to imprisonment for a term not
exceeding two years, or
(ii)
of an offence punishable on summary conviction,
where
the value of what is stolen does not exceed five thousand
dollars.
R.S.,
1985, c. C-46, s. 334; R.S., 1985, c. 27 (1st Supp.), s. 43; 1994,
c. 44, s. 20. |
|
Offences
Resembling Theft |
|
335. (1)
Subject to subsection (1.1), every one who, without the consent of
the owner, takes a motor vehicle or vessel with intent to drive,
use, navigate or operate it or cause it to be driven, used,
navigated or operated, or is an occupant of a motor vehicle or
vessel knowing that it was taken without the consent of the owner,
is guilty of an offence punishable on summary conviction. |
|
(1.1)
Subsection (1) does not apply to an occupant of a motor vehicle or
vessel who, on becoming aware that it was taken without the consent
of the owner, attempted to leave the motor vehicle or vessel, to the
extent that it was feasible to do so, or actually left the motor
vehicle or vessel. |
|
(2)
For the purposes of subsection (1), “vessel” has the meaning
assigned by section 214.
R.S.,
1985, c. C-46, s. 335; R.S., 1985, c. 1 (4th Supp.), s. 15; 1997, c.
18, s. 15. |
|
336. Every
one who, being a trustee of anything for the use or benefit, whether
in whole or in part, of another person, or for a public or
charitable purpose, converts, with intent to defraud and in
contravention of his trust, that thing or any part of it to a use
that is not authorized by the trust is guilty of an indictable
offence and liable to imprisonment for a term not exceeding fourteen
years.
R.S.,
c. C-34, s. 296. |
|
337. Every
one who, being or having been employed in the service of Her Majesty
in right of Canada or a province, or in the service of a
municipality, and entrusted by virtue of that employment with the
receipt, custody, management or control of anything, refuses or
fails to deliver it to a person who is authorized to demand it and
does demand it is guilty of an indictable offence and liable to
imprisonment for a term not exceeding fourteen years.
R.S.,
c. C-34, s. 297. |
|
338. (1)
Every one who, without the consent of the owner,
(a) fraudulently takes, holds,
keeps in his possession, conceals, receives, appropriates, purchases
or sells cattle that are found astray, or
(b) fraudulently, in whole or in
part,
(i)
obliterates, alters or defaces a brand or mark on cattle, or
(ii)
makes a false or counterfeit brand or mark on cattle,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years. |
Punishment
for theft of cattle |
(2)
Every one who commits theft of cattle is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years. |
Evidence
of property in cattle |
(3) In
any proceedings under this Act, evidence that cattle are marked with
a brand or mark that is recorded or registered in accordance with
any Act is, in the absence of any evidence to the contrary, proof
that the cattle are owned by the registered owner of that brand or
mark. |
Presumption
from possession |
(4)
Where an accused is charged with an offence under subsection (1) or
(2), the burden of proving that the cattle came lawfully into the
possession of the accused or his employee or into the possession of
another person on behalf of the accused is on the accused, if the
accused is not the registered owner of the brand or mark with which
the cattle are marked, unless it appears that possession of the
cattle by an employee of the accused or by another person on behalf
of the accused was without the knowledge and authority, sanction or
approval of the accused.
R.S.,
c. C-34, s. 298; 1974-75-76, c. 93, s. 26. |
|
339. (1)
Every one is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years who, without the
consent of the owner,
(a) fraudulently takes, holds,
keeps in his possession, conceals, receives, appropriates, purchases
or sells,
(b) removes, alters, obliterates or
defaces a mark or number on, or
(c) refuses to deliver up to the
owner or to the person in charge thereof on behalf of the owner or
to a person authorized by the owner to receive it,
any
lumber or lumbering equipment that is found adrift, cast ashore or
lying on or embedded in the bed or bottom, or on the bank or beach,
of a river, stream or lake in Canada, or in the harbours or any of
the coastal waters of Canada. |
Dealer
in second-hand goods |
(2)
Every one who, being a dealer in second-hand goods of any kind,
trades or traffics in or has in his possession for sale or traffic
any lumbering equipment that is marked with the mark, brand,
registered timber mark, name or initials of a person, without the
written consent of that person, is guilty of an offence punishable
on summary conviction. |
Search
for timber unlawfully detained |
(3) A
peace officer who suspects, on reasonable grounds, that any lumber
owned by any person and bearing the registered timber mark of that
person is kept or detained in or on any place without the knowledge
or consent of that person, may enter into or on that place to
ascertain whether or not it is detained there without the knowledge
or consent of that person. |
Evidence
of property in timber |
(4)
Where any lumber or lumbering equipment is marked with a timber mark
or a boom chain brand registered under any Act, the mark or brand
is, in proceedings under subsection (1), and, in the absence of any
evidence to the contrary, proof that it is the property of the
registered owner of the mark or brand. |
Presumption
from possession |
(5)
Where an accused or his servants or agents are in possession of
lumber or lumbering equipment marked with the mark, brand,
registered timber mark, name or initials of another person, the
burden of proving that it came lawfully into his possession or into
possession of his servants or agents is, in proceedings under
subsection (1), on the accused. |
|
(6) In
this section, |
“coastal waters of Canada”
« eaux côtières du
Canada » |
“coastal waters of Canada”
includes all of Queen Charlotte Sound, all the Strait of Georgia and
the Canadian waters of the Strait of Juan de Fuca; |
|
“lumber” means timber,
mast, spar, shingle bolt, sawlog or lumber of any
description; |
“lumbering equipment”
« matériel d’exploitation
forestière » |
“lumbering equipment”
includes a boom chain, chain, line and shackle.
R.S.,
c. C-34, s. 299. |
|
340. Every
one who, for a fraudulent purpose, destroys, cancels, conceals or
obliterates
(a) a document of title to goods or
lands,
(b) a valuable security or
testamentary instrument, or
(c) a judicial or official
document,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years.
R.S.,
c. C-34, s. 300. |
|
341. Every
one who, for a fraudulent purpose, takes, obtains, removes or
conceals anything is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years.
R.S.,
c. C-34, s. 301. |
|
342. (1)
Every person who
(a) steals a credit card,
(b) forges or falsifies a credit
card,
(c) possesses, uses or traffics in
a credit card or a forged or falsified credit card, knowing that it
was obtained, made or altered
(i) by
the commission in Canada of an offence, or
(ii)
by an act or omission anywhere that, if it had occurred in Canada,
would have constituted an offence, or
(d) uses a credit card knowing that
it has been revoked or cancelled,
is
guilty of
(e) an indictable offence and is
liable to imprisonment for a term not exceeding ten years, or
(f) an offence punishable on
summary conviction. |
|
(2) An
accused who is charged with an offence under subsection (1) may be
tried and punished by any court having jurisdiction to try that
offence in the place where the offence is alleged to have been
committed or in the place where the accused is found, is arrested or
is in custody, but where the place where the accused is found, is
arrested or is in custody is outside the province in which the
offence is alleged to have been committed, no proceedings in respect
of that offence shall be commenced in that place without the consent
of the Attorney General of that province. |
Unauthorized
use of credit card data |
(3)
Every person who, fraudulently and without colour of right,
possesses, uses, traffics in or permits another person to use credit
card data, whether or not authentic, that would enable a person to
use a credit card or to obtain the services that are provided by the
issuer of a credit card to credit card holders is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on
summary conviction. |
|
(4) In
this section, “traffic” means, in relation to a credit card or
credit card data, to sell, export from or import into Canada,
distribute or deal with in any other way.
R.S.,
1985, c. C-46, s. 342; R.S., 1985, c. 27 (1st Supp.), ss. 44,
185(F); 1997, c. 18, s. 16. |
|
342.01 (1)
Every person who, without lawful justification or excuse,
(a) makes or repairs,
(b) buys or sells,
(c) exports from or imports into
Canada, or
(d) possesses
any
instrument, device, apparatus, material or thing that the person
knows has been used or knows is adapted or intended for use in
forging or falsifying credit cards is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years, or is guilty of an offence punishable on summary
conviction. |
|
(2)
Where a person is convicted of an offence under subsection (1), any
instrument, device, apparatus, material or thing in relation to
which the offence was committed or the possession of which
constituted the offence may, in addition to any other punishment
that may be imposed, be ordered forfeited to Her Majesty, whereupon
it may be disposed of as the Attorney General directs. |
|
(3) No
order of forfeiture may be made under subsection (2) in respect of
any thing that is the property of a person who was not a party to
the offence under subsection (1).
1997,
c. 18, s. 17. |
|
342.1 (1)
Every one who, fraudulently and without colour of right,
(a) obtains, directly or
indirectly, any computer service,
(b) by means of an
electro-magnetic, acoustic, mechanical or other device, intercepts
or causes to be intercepted, directly or indirectly, any function of
a computer system,
(c) uses or causes to be used,
directly or indirectly, a computer system with intent to commit an
offence under paragraph (a)
or (b) or an offence under
section 430 in relation to data or a computer system, or
(d) uses, possesses, traffics in or
permits another person to have access to a computer password that
would enable a person to commit an offence under paragraph (a), (b) or (c)
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years, or is guilty of an offence punishable
on summary conviction. |
|
(2) In
this section, |
“computer password”
« mot de passe » |
“computer password” means
any data by which a computer service or computer system is capable
of being obtained or used; |
“computer program”
« programme
d’ordinateur » |
“computer program” means
data representing instructions or statements that, when executed in
a computer system, causes the computer system to perform a
function; |
“computer service”
« service
d’ordinateur » |
“computer service”
includes data processing and the storage or retrieval of
data; |
“computer system”
« ordinateur » |
“computer system” means a
device that, or a group of interconnected or related devices one or
more of which,
(a) contains computer programs or
other data, and
(b) pursuant to computer
programs,
(i)
performs logic and control, and
(ii)
may perform any other function; |
|
“data”
means representations of information or of concepts that are being
prepared or have been prepared in a form suitable for use in a
computer system; |
“electro-magnetic, acoustic,
mechanical or other device”
« dispositif électromagnétique, acoustique,
mécanique ou autre » |
“electro-magnetic,
acoustic, mechanical or other device” means any device or apparatus
that is used or is capable of being used to intercept any function
of a computer system, but does not include a hearing aid used to
correct subnormal hearing of the user to not better than normal
hearing; |
|
“function” includes logic,
control, arithmetic, deletion, storage and retrieval and
communication or telecommunication to, from or within a computer
system; |
“intercept”
« intercepter » |
“intercept” includes
listen to or record a function of a computer system, or acquire the
substance, meaning or purport thereof; |
|
“traffic” means, in
respect of a computer password, to sell, export from or import into
Canada, distribute or deal with in any other way.
R.S.,
1985, c. 27 (1st Supp.), s. 45; 1997, c. 18, s. 18. |
|
342.2 (1)
Every person who, without lawful justification or excuse, makes,
possesses, sells, offers for sale or distributes any instrument or
device or any component thereof, the design of which renders it
primarily useful for committing an offence under section 342.1,
under circumstances that give rise to a reasonable inference that
the instrument, device or component has been used or is or was
intended to be used to commit an offence contrary to that
section,
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years; or
(b) is guilty of an offence
punishable on summary conviction. |
|
(2)
Where a person is convicted of an offence under subsection (1), any
instrument or device, in relation to which the offence was committed
or the possession of which constituted the offence, may, in addition
to any other punishment that may be imposed, be ordered forfeited to
Her Majesty, whereupon it may be disposed of as the Attorney General
directs. |
|
(3) No
order of forfeiture may be made under subsection (2) in respect of
any thing that is the property of a person who was not a party to
the offence under subsection (1).
1997,
c. 18, s. 19. |
|
|
|
343. Every
one commits robbery who
(a) steals, and for the purpose of
extorting whatever is stolen or to prevent or overcome resistance to
the stealing, uses violence or threats of violence to a person or
property;
(b) steals from any person and, at
the time he steals or immediately before or immediately thereafter,
wounds, beats, strikes or uses any personal violence to that
person;
(c) assaults any person with intent
to steal from him; or
(d) steals from any person while
armed with an offensive weapon or imitation thereof.
R.S.,
c. C-34, s. 302. |
|
344. Every
person who commits robbery is guilty of an indictable offence and
liable
(a) where a firearm is used in the
commission of the offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years; and
(b) in any other case, to
imprisonment for life.
R.S.,
1985, c. C-46, s. 344; 1995, c. 39, s. 149. |
|
345. Every
one who stops a mail conveyance with intent to rob or search it is
guilty of an indictable offence and liable to imprisonment for
life.
R.S.,
c. C-34, s. 304. |
|
346. (1)
Every one commits extortion who, without reasonable justification or
excuse and with intent to obtain anything, by threats, accusations,
menaces or violence induces or attempts to induce any person,
whether or not he is the person threatened, accused or menaced or to
whom violence is shown, to do anything or cause anything to be
done. |
|
(1.1)
Every person who commits extortion is guilty of an indictable
offence and liable
(a) where a firearm is used in the
commission of the offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years; and
(b) in any other case, to
imprisonment for life. |
|
(2) A
threat to institute civil proceedings is not a threat for the
purposes of this section.
R.S.,
1985, c. C-46, s. 346; R.S., 1985, c. 27 (1st Supp.), s. 46; 1995,
c. 39, s. 150. |
|
|
|
347. (1)
Notwithstanding any Act of Parliament, every one who
(a) enters into an agreement or
arrangement to receive interest at a criminal rate, or
(b) receives a payment or partial
payment of interest at a criminal rate,
is
guilty of
(c) an indictable offence and is
liable to imprisonment for a term not exceeding five years, or
(d) an offence punishable on
summary conviction and is liable to a fine not exceeding twenty-five
thousand dollars or to imprisonment for a term not exceeding six
months or to both. |
|
(2) In
this section, |
“credit advanced”
« capital prêté » |
“credit advanced” means
the aggregate of the money and the monetary value of any goods,
services or benefits actually advanced or to be advanced under an
agreement or arrangement minus the aggregate of any required deposit
balance and any fee, fine, penalty, commission and other similar
charge or expense directly or indirectly incurred under the original
or any collateral agreement or arrangement; |
“criminal rate”
« taux criminel » |
“criminal rate” means an
effective annual rate of interest calculated in accordance with
generally accepted actuarial practices and principles that exceeds
sixty per cent on the credit advanced under an agreement or
arrangement; |
“insurance charge”
« frais
d’assurance » |
“insurance charge” means
the cost of insuring the risk assumed by the person who advances or
is to advance credit under an agreement or arrangement, where the
face amount of the insurance does not exceed the credit
advanced; |
|
“interest” means the
aggregate of all charges and expenses, whether in the form of a fee,
fine, penalty, commission or other similar charge or expense or in
any other form, paid or payable for the advancing of credit under an
agreement or arrangement, by or on behalf of the person to whom the
credit is or is to be advanced, irrespective of the person to whom
any such charges and expenses are or are to be paid or payable, but
does not include any repayment of credit advanced or any insurance
charge, official fee, overdraft charge, required deposit balance or,
in the case of a mortgage transaction, any amount required to be
paid on account of property taxes; |
“official fee”
« taxe
officielle » |
“official fee” means a fee
required by law to be paid to any governmental authority in
connection with perfecting any security under an agreement or
arrangement for the advancing of credit; |
“overdraft charge”
« frais pour découvert de
compte » |
“overdraft charge” means a
charge not exceeding five dollars for the creation of or increase in
an overdraft, imposed by a credit union or caisse populaire the
membership of which is wholly or substantially comprised of natural
persons or a deposit taking institution the deposits in which are
insured, in whole or in part, by the Canada Deposit Insurance
Corporation or guaranteed, in whole or in part, by the Quebec
Deposit Insurance Board; |
“required deposit balance”
« dépôt de
garantie » |
“required deposit balance”
means a fixed or an ascertainable amount of the money actually
advanced or to be advanced under an agreement or arrangement that is
required, as a condition of the agreement or arrangement, to be
deposited or invested by or on behalf of the person to whom the
advance is or is to be made and that may be available, in the event
of his defaulting in any payment, to or for the benefit of the
person who advances or is to advance the money. |
|
(3)
Where a person receives a payment or partial payment of interest at
a criminal rate, he shall, in the absence of evidence to the
contrary, be deemed to have knowledge of the nature of the payment
and that it was received at a criminal rate. |
Proof
of effective annual rate |
(4) In
any proceedings under this section, a certificate of a Fellow of the
Canadian Institute of Actuaries stating that he has calculated the
effective annual rate of interest on any credit advanced under an
agreement or arrangement and setting out the calculations and the
information on which they are based is, in the absence of evidence
to the contrary, proof of the effective annual rate without proof of
the signature or official character of the person appearing to have
signed the certificate. |
|
(5) A
certificate referred to in subsection (4) shall not be received in
evidence unless the party intending to produce it has given to the
accused or defendant reasonable notice of that intention together
with a copy of the certificate. |
Cross-examination
with leave |
(6) An
accused or a defendant against whom a certificate referred to in
subsection (4) is produced may, with leave of the court, require the
attendance of the actuary for the purposes of
cross-examination. |
Consent
required for proceedings |
(7) No
proceedings shall be commenced under this section without the
consent of the Attorney General. |
|
(8)
This section does not apply to any transaction to which the Tax Rebate Discounting Act
applies.
R.S.,
1985, c. C-46, s. 347; 1992, c. 1, s. 60(F). |
|
|
|
348. (1)
Every one who
(a) breaks and enters a place with
intent to commit an indictable offence therein,
(b) breaks and enters a place and
commits an indictable offence therein, or
(c) breaks out of a place after
(i)
committing an indictable offence therein, or
(ii)
entering the place with intent to commit an indictable offence
therein,
is
guilty
(d) if the offence is committed in
relation to a dwelling-house, of an indictable offence and liable to
imprisonment for life, and
(e) if the offence is committed in
relation to a place other than a dwelling-house, of an indictable
offence and liable to imprisonment for a term not exceeding ten
years or of an offence punishable on summary conviction. |
|
(2)
For the purposes of proceedings under this section, evidence that an
accused
(a) broke and entered a place or
attempted to break and enter a place is, in the absence of evidence
to the contrary, proof that he broke and entered the place or
attempted to do so, as the case may be, with intent to commit an
indictable offence therein; or
(b) broke out of a place is, in the
absence of any evidence to the contrary, proof that he broke out
after
(i)
committing an indictable offence therein, or
(ii)
entering with intent to commit an indictable offence
therein. |
|
(3)
For the purposes of this section and section 351, “place” means
(a) a dwelling-house;
(b) a building or structure or any
part thereof, other than a dwelling-house;
(c) a railway vehicle, a vessel, an
aircraft or a trailer; or
(d) a pen or an enclosure in which
fur-bearing animals are kept in captivity for breeding or commercial
purposes.
R.S.,
1985, c. C-46, s. 348; R.S., 1985, c. 27 (1st Supp.), s. 47; 1997,
c. 18, s. 20. |
|
348.1 If a
person is convicted of an offence under any of subsection 279(2) or
sections 343, 346 and 348 in relation to a dwelling-house, the court
imposing the sentence on the person shall consider as an aggravating
circumstance the fact that the dwelling-house was occupied at the
time of the commission of the offence and that the person, in
committing the offence,
(a) knew that or was reckless as to
whether the dwelling-house was occupied; and
(b) used violence or threats of
violence to a person or property.
2002,
c. 13, s. 15. |
|
349. (1)
Every person who, without lawful excuse, the proof of which lies on
that person, enters or is in a dwelling-house with intent to commit
an indictable offence in it is guilty of an indictable offence and
liable to imprisonment for a term not exceeding ten years or of an
offence punishable on summary conviction. |
|
(2)
For the purposes of proceedings under this section, evidence that an
accused, without lawful excuse, entered or was in a dwelling-house
is, in the absence of any evidence to the contrary, proof that he
entered or was in the dwelling-house with intent to commit an
indictable offence therein.
R.S.,
1985, c. C-46, s. 349; 1997, c. 18, s. 21. |
|
350. For the
purposes of sections 348 and 349,
(a) a person enters as soon as any
part of his body or any part of an instrument that he uses is within
any thing that is being entered; and
(b) a person shall be deemed to
have broken and entered if
(i) he
obtained entrance by a threat or an artifice or by collusion with a
person within, or
(ii)
he entered without lawful justification or excuse, the proof of
which lies on him, by a permanent or temporary opening.
R.S.,
c. C-34, s. 308. |
|
351. (1)
Every one who, without lawful excuse, the proof of which lies on
him, has in his possession any instrument suitable for the purpose
of breaking into any place, motor vehicle, vault or safe under
circumstances that give rise to a reasonable inference that the
instrument has been used or is or was intended to be used for any
such purpose, is guilty of an indictable offence and liable to
imprisonment for a term not exceeding ten years. |
|
(2)
Every one who, with intent to commit an indictable offence, has his
face masked or coloured or is otherwise disguised is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding ten years.
R.S.,
1985, c. C-46, s. 351; R.S., 1985, c. 27 (1st Supp.), s.
48. |
|
352. Every
one who, without lawful excuse, the proof of which lies on him, has
in his possession any instrument suitable for breaking into a
coin-operated device or a currency exchange device, under
circumstances that give rise to a reasonable inference that the
instrument has been used or is or was intended to be used for
breaking into a coin-operated device or a currency exchange device,
is guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years.
R.S.,
c. C-34, s. 310; 1972, c. 13, s. 26; 1974-75-76, c. 93, s.
28. |
|
353. (1)
Every one who
(a) sells, offers for sale or
advertises in a province an automobile master key otherwise than
under the authority of a licence issued by the Attorney General of
that province, or
(b) purchases or has in his
possession in a province an automobile master key otherwise than
under the authority of a licence issued by the Attorney General of
that province,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
|
(1.1)
A police officer specially authorized by the chief of the police
force to possess an automobile master key is not guilty of an
offence under subsection (1) by reason only that the police officer
possesses an automobile master key for the purposes of the execution
of the police officer’s duties. |
Terms
and conditions of licence |
(2) A
licence issued by the Attorney General of a province as described in
paragraph (1)(a) or (b) may contain such terms and
conditions relating to the sale, offering for sale, advertising,
purchasing, having in possession or use of an automobile master key
as the Attorney General of that province may prescribe. |
|
(2.1)
The Attorney General of a province may prescribe fees for the issue
or renewal of licences as described in paragraph (1)(a) or (b). |
|
(3)
Every one who sells an automobile master key
(a) shall keep a record of the
transaction showing the name and address of the purchaser and
particulars of the licence issued to the purchaser as described in
paragraph (1)(b); and
(b) shall produce the record for
inspection at the request of a peace officer. |
Failure
to comply with subsection (3) |
(4)
Every one who fails to comply with subsection (3) is guilty of an
offence punishable on summary conviction. |
|
(5)
The definitions in this subsection apply in this section. |
“automobile master key”
« passe-partout
d’automobile » |
“automobile master key”
includes a key, pick, rocker key or other instrument designed or
adapted to operate the ignition or other switches or locks of a
series of motor vehicles. |
|
“licence” includes any
authorization.
R.S.,
1985, c. C-46, s. 353; 1997, c. 18, s. 22. |
|
|
|
354. (1)
Every one commits an offence who has in his possession any property
or thing or any proceeds of any property or thing knowing that all
or part of the property or thing or of the proceeds was obtained by
or derived directly or indirectly from
(a) the commission in Canada of an
offence punishable by indictment; or
(b) an act or omission anywhere
that, if it had occurred in Canada, would have constituted an
offence punishable by indictment. |
Obliterated
vehicle identification number |
(2) In
proceedings in respect of an offence under subsection (1), evidence
that a person has in his possession a motor vehicle the vehicle
identification number of which has been wholly or partially removed
or obliterated or a part of a motor vehicle being a part bearing a
vehicle identification number that has been wholly or partially
removed or obliterated is, in the absence of any evidence to the
contrary, proof that the motor vehicle or part, as the case may be,
was obtained, and that such person had the motor vehicle or part, as
the case may be, in his possession knowing that it was obtained,
(a) by the commission in Canada of
an offence punishable by indictment; or
(b) by an act or omission anywhere
that, if it had occurred in Canada, would have constituted an
offence punishable by indictment. |
Definition
of “vehicle identification number” |
(3)
For the purposes of subsection (2), “vehicle identification number”
means any number or other mark placed on a motor vehicle for the
purpose of distinguishing the motor vehicle from other similar motor
vehicles. |
|
(4) A
peace officer or a person acting under the direction of a peace
officer is not guilty of an offence under this section by reason
only that the peace officer or person possesses property or a thing
or the proceeds of property or a thing mentioned in subsection (1)
for the purposes of an investigation or otherwise in the execution
of the peace officer’s duties.
R.S.,
1985, c. C-46, s. 354; 1997, c. 18, s. 23. |
|
355. Every
one who commits an offence under section 354
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years, where the subject-matter of the offence is a testamentary
instrument or the value of the subject-matter of the offence exceeds
five thousand dollars; or
(b) is guilty
(i) of
an indictable offence and is liable to imprisonment for a term not
exceeding two years, or
(ii)
of an offence punishable on summary conviction,
where
the value of the subject-matter of the offence does not exceed five
thousand dollars.
R.S.,
1985, c. C-46, s. 355; R.S., 1985, c. 27 (1st Supp.), s. 49; 1994,
c. 44, s. 21. |
|
356. (1)
Every one who
(a) steals
(i)
any thing sent by post, after it is deposited at a post office and
before it is delivered,
(ii) a
bag, sack or other container or covering in which mail is conveyed,
whether or not it contains mail, or
(iii)
a key suited to a lock adopted for use in the Canada Post
Corporation, or
(b) has in his possession anything
in respect of which he knows that an offence has been committed
under paragraph (a),
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years. |
Allegation
of value not necessary |
(2) In
proceedings for an offence under this section it is not necessary to
allege in the indictment or to prove on the trial that anything in
respect of which the offence was committed had any value.
R.S.,
c. C-34, s. 314; 1980-81-82-83, c. 54, s. 56. |
|
357. Every
one who brings into or has in Canada anything that he has obtained
outside Canada by an act that, if it had been committed in Canada,
would have been the offence of theft or an offence under section 342
or 354 is guilty of an indictable offence and liable to a term of
imprisonment not exceeding ten years.
R.S.,
1985, c. C-46, s. 357; R.S., 1985, c. 27 (1st Supp.), s.
50. |
|
358. For the
purposes of sections 342 and 354 and paragraph 356(1)(b), the offence of having in
possession is complete when a person has, alone or jointly with
another person, possession of or control over anything mentioned in
those sections or when he aids in concealing or disposing of it, as
the case may be.
R.S.,
1985, c. C-46, s. 358; R.S., 1985, c. 27 (1st Supp.), s.
50. |
|
359. (1)
Where an accused is charged with an offence under section 342 or 354
or paragraph 356(1)(b),
evidence is admissible at any stage of the proceedings to show that
property other than the property that is the subject-matter of the
proceedings
(a) was found in the possession of
the accused, and
(b) was stolen within twelve months
before the proceedings were commenced,
and that
evidence may be considered for the purpose of proving that the
accused knew that the property that forms the subject-matter of the
proceedings was stolen property. |
|
(2)
Subsection (1) does not apply unless
(a) at least three days notice in
writing is given to the accused that in the proceedings it is
intended to prove that property other than the property that is the
subject-matter of the proceedings was found in his possession;
and
(b) the notice sets out the nature
or description of the property and describes the person from whom it
is alleged to have been stolen.
R.S.,
1985, c. C-46, s. 359; R.S., 1985, c. 27 (1st Supp.), s.
51. |
|
360. (1)
Where an accused is charged with an offence under section 354 or
paragraph 356(1)(b) and
evidence is adduced that the subject-matter of the proceedings was
found in his possession, evidence that the accused was, within five
years before the proceedings were commenced, convicted of an offence
involving theft or an offence under section 354 is admissible at any
stage of the proceedings and may be taken into consideration for the
purpose of proving that the accused knew that the property that
forms the subject-matter of the proceedings was unlawfully
obtained. |
|
(2)
Subsection (1) does not apply unless at least three days notice in
writing is given to the accused that in the proceedings it is
intended to prove the previous conviction.
R.S.,
c. C-34, s. 318. |
|
|
|
361. (1) A
false pretence is a representation of a matter of fact either
present or past, made by words or otherwise, that is known by the
person who makes it to be false and that is made with a fraudulent
intent to induce the person to whom it is made to act on
it. |
|
(2)
Exaggerated commendation or depreciation of the quality of anything
is not a false pretence unless it is carried to such an extent that
it amounts to a fraudulent misrepresentation of fact. |
|
(3)
For the purposes of subsection (2), it is a question of fact whether
commendation or depreciation amounts to a fraudulent
misrepresentation of fact.
R.S.,
c. C-34, s. 319. |
|
362. (1)
Every one commits an offence who
(a) by a false pretence, whether
directly or through the medium of a contract obtained by a false
pretence, obtains anything in respect of which the offence of theft
may be committed or causes it to be delivered to another person;
(b) obtains credit by a false
pretence or by fraud;
(c) knowingly makes or causes to be
made, directly or indirectly, a false statement in writing with
intent that it should be relied on, with respect to the financial
condition or means or ability to pay of himself or herself or any
person or organization that he or she is interested in or that he or
she acts for, for the purpose of procuring, in any form whatever,
whether for his or her benefit or the benefit of that person or
organization,
(i)
the delivery of personal property,
(ii)
the payment of money,
(iii)
the making of a loan,
(iv)
the grant or extension of credit,
(v)
the discount of an account receivable, or
(vi)
the making, accepting, discounting or endorsing of a bill of
exchange, cheque, draft or promissory note; or
(d) knowing that a false statement
in writing has been made with respect to the financial condition or
means or ability to pay of himself or herself or another person or
organization that he or she is interested in or that he or she acts
for, procures on the faith of that statement, whether for his or her
benefit or for the benefit of that person or organization, anything
mentioned in subparagraphs (c)(i) to (vi). |
|
(2)
Every one who commits an offence under paragraph (1)(a)
(a) is guilty of an indictable
offence and liable to a term of imprisonment not exceeding ten
years, where the property obtained is a testamentary instrument or
the value of what is obtained exceeds five thousand dollars; or
(b) is guilty
(i) of
an indictable offence and is liable to imprisonment for a term not
exceeding two years, or
(ii)
of an offence punishable on summary conviction,
where
the value of what is obtained does not exceed five thousand
dollars. |
|
(3)
Every one who commits an offence under paragraph (1)(b), (c) or (d) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years. |
Presumption
from cheque issued without funds |
(4)
Where, in proceedings under paragraph (1)(a), it is shown that anything was
obtained by the accused by means of a cheque that, when presented
for payment within a reasonable time, was dishonoured on the ground
that no funds or insufficient funds were on deposit to the credit of
the accused in the bank or other institution on which the cheque was
drawn, it shall be presumed to have been obtained by a false
pretence, unless the court is satisfied by evidence that when the
accused issued the cheque he believed on reasonable grounds that it
would be honoured if presented for payment within a reasonable time
after it was issued. |
|
(5) In
this section, “cheque” includes, in addition to its ordinary
meaning, a bill of exchange drawn on any institution that makes it a
business practice to honour bills of exchange or any particular kind
thereof drawn on it by depositors.
R.S.,
1985, c. C-46, s. 362; R.S., 1985, c. 27 (1st Supp.), s. 52; 1994,
c. 44, s. 22; 2003, c. 21, s. 5. |
|
363. Every
one who, with intent to defraud or injure another person, by a false
pretence causes or induces any person
(a) to execute, make, accept,
endorse or destroy the whole or any part of a valuable security,
or
(b) to write, impress or affix a
name or seal on any paper or parchment in order that it may
afterwards be made or converted into or used or dealt with as a
valuable security,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 321. |
|
364. (1)
Every one who fraudulently obtains food, a beverage or accommodation
at any place that is in the business of providing those things is
guilty of an offence punishable on summary conviction. |
|
(2) In
proceedings under this section, evidence that the accused obtained
food, a beverage or accommodation at a place that is in the business
of providing those things and did not pay for it and
(a) made a false or fictitious show
or pretence of having baggage,
(b) had any false or pretended
baggage,
(c) surreptitiously removed or
attempted to remove his baggage or any material part of it,
(d) absconded or surreptitiously
left the premises,
(e) knowingly made a false
statement to obtain credit or time for payment, or
(f) offered a worthless cheque,
draft or security in payment for the food, beverage or
accommodation,
is, in
the absence of any evidence to the contrary, proof of
fraud. |
|
(3) In
this section, “cheque” includes, in addition to its ordinary
meaning, a bill of exchange drawn on any institution that makes it a
business practice to honour bills of exchange or any particular kind
thereof drawn on it by depositors.
R.S.,
1985, c. C-46, s. 364; 1994, c. 44, s. 23. |
|
365. Every
one who fraudulently
(a) pretends to exercise or to use
any kind of witchcraft, sorcery, enchantment or conjuration,
(b) undertakes, for a
consideration, to tell fortunes, or
(c) pretends from his skill in or
knowledge of an occult or crafty science to discover where or in
what manner anything that is supposed to have been stolen or lost
may be found,
is
guilty of an offence punishable on summary conviction.
R.S.,
c. C-34, s. 323. |
|
Forgery
and Offences Resembling Forgery |
|
366. (1)
Every one commits forgery who makes a false document, knowing it to
be false, with intent
(a) that it should in any way be
used or acted on as genuine, to the prejudice of any one whether
within Canada or not; or
(b) that a person should be
induced, by the belief that it is genuine, to do or to refrain from
doing anything, whether within Canada or not. |
|
(2)
Making a false document includes
(a) altering a genuine document in
any material part;
(b) making a material addition to a
genuine document or adding to it a false date, attestation, seal or
other thing that is material; or
(c) making a material alteration in
a genuine document by erasure, obliteration, removal or in any other
way. |
|
(3)
Forgery is complete as soon as a document is made with the knowledge
and intent referred to in subsection (1), notwithstanding that the
person who makes it does not intend that any particular person
should use or act on it as genuine or be induced, by the belief that
it is genuine, to do or refrain from doing anything. |
Forgery
complete though document incomplete |
(4)
Forgery is complete notwithstanding that the false document is
incomplete or does not purport to be a document that is binding in
law, if it is such as to indicate that it was intended to be acted
on as genuine.
R.S.,
c. C-34, s. 324. |
|
367. Every
one who commits forgery
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years; or
(b) is guilty of an offence
punishable on summary conviction.
R.S.,
1985, c. C-46, s. 367; 1994, c. 44, s. 24; 1997, c. 18, s.
24. |
|
368. (1)
Every one who, knowing that a document is forged,
(a) uses, deals with or acts on it,
or
(b) causes or attempts to cause any
person to use, deal with or act on it,
as if
the document were genuine,
(c) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years; or
(d) is guilty of an offence
punishable on summary conviction. |
|
(2)
For the purposes of proceedings under this section, the place where
a document was forged is not material.
R.S.,
1985, c. C-46, s. 368; 1992, c. 1, s. 60(F); 1997, c. 18, s.
25. |
|
369. Every
one who, without lawful authority or excuse, the proof of which lies
on him,
(a) makes, uses or knowingly has in
his possession
(i)
any exchequer bill paper, revenue paper or paper that is used to
make bank-notes, or
(ii)
any paper that is intended to resemble paper mentioned in
subparagraph (i),
(b) makes, offers or disposes of or
knowingly has in his possession any plate, die, machinery,
instrument or other writing or material that is adapted and intended
to be used to commit forgery, or
(c) makes, reproduces or uses a
public seal of Canada or of a province, or the seal of a public body
or authority in Canada, or of a court of law,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
c. C-34, s. 327. |
|
370. Every
one who knowingly
(a) prints any proclamation, order,
regulation or appointment, or notice thereof, and causes it falsely
to purport to have been printed by the Queen’s Printer for Canada or
the Queen’s Printer for a province, or
(b) tenders in evidence a copy of
any proclamation, order, regulation or appointment that falsely
purports to have been printed by the Queen’s Printer for Canada or
the Queen’s Printer for a province,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 328. |
|
371. Every
one who, with intent to defraud, causes or procures a telegram,
cablegram or radio message to be sent or delivered as being sent by
the authority of another person, knowing that it is not sent by his
authority and with intent that the message should be acted on as
being sent by his authority, is guilty of an indictable offence and
liable to imprisonment for a term not exceeding five years.
R.S.,
c. C-34, s. 329. |
|
372. (1)
Every one who, with intent to injure or alarm any person, conveys or
causes or procures to be conveyed by letter, telegram, telephone,
cable, radio or otherwise information that he knows is false is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
|
(2)
Every one who, with intent to alarm or annoy any person, makes any
indecent telephone call to that person is guilty of an offence
punishable on summary conviction. |
Harassing
telephone calls |
(3)
Every one who, without lawful excuse and with intent to harass any
person, makes or causes to be made repeated telephone calls to that
person is guilty of an offence punishable on summary conviction.
R.S.,
c. C-34, s. 330. |
|
373.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 53] |
|
374. Every
one who
(a) with intent to defraud and
without lawful authority makes, executes, draws, signs, accepts or
endorses a document in the name or on the account of another person
by procuration or otherwise, or
(b) makes use of or utters a
document knowing that it has been made, executed, signed, accepted
or endorsed with intent to defraud and without lawful authority, in
the name or on the account of another person, by procuration or
otherwise,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
c. C-34, s. 332. |
|
375. Every
one who demands, receives or obtains anything, or causes or procures
anything to be delivered or paid to any person under, on or by
virtue of any instrument issued under the authority of law, knowing
that it is based on a forged document, is guilty of an indictable
offence and liable to imprisonment for a term not exceeding fourteen
years.
R.S.,
c. C-34, s. 333. |
|
376. (1)
Every one who
(a) fraudulently uses, mutilates,
affixes, removes or counterfeits a stamp or part thereof,
(b) knowingly and without lawful
excuse, the proof of which lies on him, has in his possession
(i) a
counterfeit stamp or a stamp that has been fraudulently mutilated,
or
(ii)
anything bearing a stamp of which a part has been fraudulently
erased, removed or concealed, or
(c) without lawful excuse, the
proof of which lies on him, makes or knowingly has in his possession
a die or instrument that is capable of making the impression of a
stamp or part thereof,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years. |
|
(2)
Every one who, without lawful authority,
(a) makes a mark,
(b) sells, or exposes for sale, or
has in his possession a counterfeit mark,
(c) affixes a mark to anything that
is required by law to be marked, branded, sealed or wrapped other
than the thing to which the mark was originally affixed or was
intended to be affixed, or
(d) affixes a counterfeit mark to
anything that is required by law to be marked, branded, sealed or
wrapped,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years. |
|
(3) In
this section, |
|
“mark”
means a mark, brand, seal, wrapper or design used by or on behalf
of
(a) the government of Canada or a
province,
(b) the government of a state other
than Canada, or
(c) any department, board,
commission or agent established by a government mentioned in
paragraph (a) or (b) in connection with the service
or business of that government; |
|
“stamp” means an impressed
or adhesive stamp used for the purpose of revenue by the government
of Canada or a province or by the government of a state other than
Canada.
R.S.,
c. C-34, s. 334. |
|
377. (1)
Every one who unlawfully
(a) destroys, defaces or injures a
register, or any part of a register, of births, baptisms, marriages,
deaths or burials that is required or authorized by law to be kept
in Canada, or a copy or any part of a copy of such a register that
is required by law to be transmitted to a registrar or other
officer,
(b) inserts or causes to be
inserted in a register or copy referred to in paragraph (a) an entry, that he knows is
false, of any matter relating to a birth, baptism, marriage, death
or burial, or erases any material part from that register or
copy,
(c) destroys, damages or
obliterates an election document or causes an election document to
be destroyed, damaged or obliterated, or
(d) makes or causes to be made an
erasure, alteration or interlineation in or on an election
document,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years. |
Definition
of “election document” |
(2) In
this section, “election document” means any document or writing
issued under the authority of an Act of Parliament or the
legislature of a province with respect to an election held pursuant
to the authority of that Act.
R.S.,
c. C-34, s. 335. |
|
378. Every
one who
(a) being authorized or required by
law to make or issue a certified copy of, extract from or
certificate in respect of a register, record or document, knowingly
makes or issues a false certified copy, extract or certificate,
(b) not being authorized or
required by law to make or issue a certified copy of, extract from
or certificate in respect of a register, record or document,
fraudulently makes or issues a copy, extract or certificate that
purports to be certified as authorized or required by law, or
(c) being authorized or required by
law to make a certificate or declaration concerning any particular
required for the purpose of making entries in a register, record or
document, knowingly and falsely makes the certificate or
declaration,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 336. |
|
PART
X
FRAUDULENT TRANSACTIONS
RELATING TO CONTRACTS AND TRADE |
|
|
|
379. In this
Part, |
|
“goods” means anything
that is the subject of trade or commerce; |
“trading stamps”
« bons-primes » |
“trading stamps” includes
any form of cash receipt, receipt, coupon, premium ticket or other
device, designed or intended to be given to the purchaser of goods
by the vendor thereof or on his behalf, and to represent a discount
on the price of the goods or a premium to the purchaser thereof
(a) that may be redeemed
(i) by
any person other than the vendor, the person from whom the vendor
purchased the goods or the manufacturer of the goods,
(ii)
by the vendor, the person from whom the vendor purchased the goods
or the manufacturer of the goods in cash or in goods that are not
his property in whole or in part, or
(iii)
by the vendor elsewhere than in the premises where the goods are
purchased, or
(b) that does not show on its face
the place where it is delivered and the merchantable value thereof,
or
(c) that may not be redeemed on
demand at any time,
but an offer, endorsed by
the manufacturer on a wrapper or container in which goods are sold,
of a premium or reward for the return of that wrapper or container
to the manufacturer is not a trading stamp.
R.S.,
c. C-34, s. 337. |
|
|
|
380. (1)
Every one who, by deceit, falsehood or other fraudulent means,
whether or not it is a false pretence within the meaning of this
Act, defrauds the public or any person, whether ascertained or not,
of any property, money or valuable security or any service,
(a) is guilty of an indictable
offence and liable to a term of imprisonment not exceeding fourteen
years, where the subject-matter of the offence is a testamentary
instrument or the value of the subject-matter of the offence exceeds
five thousand dollars; or
(b) is guilty
(i) of
an indictable offence and is liable to imprisonment for a term not
exceeding two years, or
(ii)
of an offence punishable on summary conviction,
where
the value of the subject-matter of the offence does not exceed five
thousand dollars. |
|
(2)
Every one who, by deceit, falsehood or other fraudulent means,
whether or not it is a false pretence within the meaning of this
Act, with intent to defraud, affects the public market price of
stocks, shares, merchandise or anything that is offered for sale to
the public is guilty of an indictable offence and liable to
imprisonment for a term not exceeding fourteen years.
R.S.,
1985, c. C-46, s. 380; R.S., 1985, c. 27 (1st Supp.), s. 54; 1994,
c. 44, s. 25; 1997, c. 18, s. 26; 2004, c. 3, s. 2. |
|
380.1 (1)
Without limiting the generality of section 718.2, where a court
imposes a sentence for an offence referred to in sections 380, 382,
382.1 and 400, it shall consider the following as aggravating
circumstances:
(
a) the value of the fraud
committed exceeded one million dollars;
(
b) the offence adversely
affected, or had the potential to adversely affect, the stability of
the Canadian economy or financial system or any financial market in
Canada or investor confidence in such a financial market;
(
c) the offence involved a
large number of victims; and
(
d) in committing the
offence, the offender took advantage of the high regard in which the
offender was held in the community. |
|
(2)
The court shall not consider as mitigating circumstances the
offender's employment, employment skills or status or reputation in
the community if those circumstances were relevant to, contributed
to, or were used in the commission of the offence.
2004,
c. 3, s. 3. |
|
381. Every
one who makes use of the mails for the purpose of transmitting or
delivering letters or circulars concerning schemes devised or
intended to deceive or defraud the public, or for the purpose of
obtaining money under false pretences, is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years.
R.S.,
c. C-34, s. 339. |
|
382. Every
one who, through the facility of a stock exchange, curb market or
other market, with intent to create a false or misleading appearance
of active public trading in a security or with intent to create a
false or misleading appearance with respect to the market price of a
security,
(a) effects a transaction in the
security that involves no change in the beneficial ownership
thereof,
(b) enters an order for the
purchase of the security, knowing that an order of substantially the
same size at substantially the same time and at substantially the
same price for the sale of the security has been or will be entered
by or for the same or different persons, or
(c) enters an order for the sale of
the security, knowing that an order of substantially the same size
at substantially the same time and at substantially the same price
for the purchase of the security has been or will be entered by or
for the same or different persons,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years.
R.S.,
1985, c. C-46, s. 382; 2004, c. 3, s. 4. |
|
382.1 (1) A
person is guilty of an indictable offence and liable to imprisonment
for a term not exceeding ten years who, directly or indirectly, buys
or sells a security, knowingly using inside information that
they
(
a) possess by virtue of
being a shareholder of the issuer of that security;
(
b) possess by virtue of, or
obtained in the course of, their business or professional
relationship with that issuer;
(
c) possess by virtue of, or
obtained in the course of, a proposed takeover or reorganization of,
or amalgamation, merger or similar business combination with, that
issuer;
(
d) possess by virtue of, or
obtained in the course of, their employment, office, duties or
occupation with that issuer or with a person referred to in
paragraphs ( a) to ( c); or
(
e) obtained from a person
who possesses or obtained the information in a manner referred to in
paragraphs ( a) to ( d). |
|
(2)
Except when necessary in the course of business, a person who
knowingly conveys inside information that they possess or obtained
in a manner referred to in subsection (1) to another person, knowing
that there is a risk that the person will use the information to buy
or sell, directly or indirectly, a security to which the information
relates, or that they may convey the information to another person
who may buy or sell such a security, is guilty of
(
a) an indictable offence and
liable to imprisonment for a term not exceeding five years; or
(
b) an offence punishable on
summary conviction. |
|
(3)
For greater certainty, an act is not an offence under this section
if it is authorized or required, or is not prohibited, by any
federal or provincial Act or regulation applicable to it. |
Definition
of “inside information” |
(4) In
this section, “inside information” means information relating to or
affecting the issuer of a security or a security that they have
issued, or are about to issue, that
(
a) has not been generally
disclosed; and
(
b) could reasonably be
expected to significantly affect the market price or value of a
security of the issuer.
2004,
c. 3, s. 5. |
|
383. (1)
Every one is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years who, with intent to
make gain or profit by the rise or fall in price of the stock of an
incorporated or unincorporated company or undertaking, whether in or
outside Canada, or of any goods, wares or merchandise,
(a) makes or signs, or authorizes
to be made or signed, any contract or agreement, oral or written,
purporting to be for the purchase or sale of shares of stock or
goods, wares or merchandise, without the bona fide intention of acquiring
the shares, goods, wares or merchandise or of selling them, as the
case may be, or
(b) makes or signs, or authorizes
to be made or signed, any contract or agreement, oral or written,
purporting to be for the sale or purchase of shares of stock or
goods, wares or merchandise in respect of which no delivery of the
thing sold or purchased is made or received, and without the bona fide intention of making or
receiving delivery thereof, as the case may be,
but this
section does not apply where a broker, on behalf of a purchaser,
receives delivery, notwithstanding that the broker retains or
pledges what is delivered as security for the advance of the
purchase money or any part thereof. |
|
(2)
Where, in proceedings under this section, it is established that the
accused made or signed a contract or an agreement for the sale or
purchase of shares of stock or goods, wares or merchandise, or
acted, aided or abetted in the making or signing thereof, the burden
of proof of a bona fide
intention to acquire or to sell the shares, goods, wares or
merchandise or to deliver or to receive delivery thereof, as the
case may be, lies on the accused.
R.S.,
c. C-34, s. 341. |
|
384. Every
one is guilty of an indictable offence and liable to imprisonment
for a term not exceeding five years who, being an individual, or a
member or an employee of a partnership, or a director, an officer or
an employee of a corporation, where he or the partnership or
corporation is employed as a broker by any customer to buy and carry
on margin any shares of an incorporated or unincorporated company or
undertaking, whether in or out of Canada, thereafter sells or causes
to be sold shares of the company or undertaking for any account in
which
(a) he or his firm or a partner
thereof, or
(b) the corporation or a director
thereof,
has a
direct or indirect interest, if the effect of the sale is, otherwise
than unintentionally, to reduce the amount of those shares in the
hands of the broker or under his control in the ordinary course of
business below the amount of those shares that the broker should be
carrying for all customers.
R.S.,
c. C-34, s. 342. |
|
385. (1)
Every one who, being a vendor or mortgagor of property or of a chose
in action or being a solicitor for or agent of a vendor or mortgagor
of property or a chose in action, is served with a written demand
for an abstract of title by or on behalf of the purchaser or
mortgagee before the completion of the purchase or mortgage, and
who
(a) with intent to defraud and for
the purpose of inducing the purchaser or mortgagee to accept the
title offered or produced to him, conceals from him any settlement,
deed, will or other instrument material to the title, or any
encumbrance on the title, or
(b) falsifies any pedigree on which
the title depends,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
|
(2) No
proceedings shall be instituted under this section without the
consent of the Attorney General.
R.S.,
c. C-34, s. 343. |
|
386. Every
one who, as principal or agent, in a proceeding to register title to
real property, or in a transaction relating to real property that is
or is proposed to be registered, knowingly and with intent to
deceive,
(a) makes a material false
statement or representation,
(b) suppresses or conceals from a
judge or registrar, or any person employed by or assisting the
registrar, any material document, fact, matter or information,
or
(c) is privy to anything mentioned
in paragraph (a) or (b),
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 344. |
|
387. Every
one who, knowing of an unregistered prior sale or of an existing
unregistered grant, mortgage, hypothec, privilege or encumbrance of
or on real property, fraudulently sells the property or any part
thereof is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years.
R.S.,
c. C-34, s. 345. |
|
388. Every
one who wilfully
(a) with intent to mislead, injure
or defraud any person, whether or not that person is known to him,
gives to a person anything in writing that purports to be a receipt
for or an acknowledgment of property that has been delivered to or
received by him, before the property referred to in the purported
receipt or acknowledgment has been delivered to or received by him,
or
(b) accepts, transmits or uses a
purported receipt or acknowledgment to which paragraph (a) applies,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years.
R.S.,
c. C-34, s. 346. |
|
389. (1)
Every one who
(a) having shipped or delivered to
the keeper of a warehouse or to a factor, an agent or a carrier
anything on which the consignee thereof has advanced money or has
given valuable security, thereafter, with intent to deceive, defraud
or injure the consignee, disposes of it in a manner that is
different from and inconsistent with any agreement that has been
made in that behalf between him and the consignee, or
(b) knowingly and wilfully aids or
assists any person to make a disposition of anything to which
paragraph (a) applies for
the purpose of deceiving, defrauding or injuring the consignee,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
|
(2) No
person is guilty of an offence under this section where, before
disposing of anything in a manner that is different from and
inconsistent with any agreement that has been made in that behalf
between him and the consignee, he pays or tenders to the consignee
the full amount of money or valuable security that the consignee has
advanced.
R.S.,
c. C-34, s. 347. |
|
390. Every
one is guilty of an indictable offence and liable to imprisonment
for a term not exceeding two years who
(a) wilfully makes a false
statement in any receipt, certificate or acknowledgment for anything
that may be used for a purpose mentioned in the Bank Act; or
(b) wilfully,
(i)
after giving to another person,
(ii)
after a person employed by him has, to his knowledge, given to
another person, or
(iii)
after obtaining and endorsing or assigning to another person,
any
receipt, certificate or acknowledgment for anything that may be used
for a purpose mentioned in the Bank
Act, without the consent in writing of the holder or endorsee
or the production and delivery of the receipt, certificate or
acknowledgment, alienates or parts with, or does not deliver to the
holder or owner the property mentioned in the receipt, certificate
or acknowledgment.
R.S.,
c. C-34, s. 348. |
|
391.
[Repealed, 2003, c. 21, s. 6] |
|
392. Every
one who,
(a) with intent to defraud his
creditors,
(i)
makes or causes to be made any gift, conveyance, assignment, sale,
transfer or delivery of his property, or
(ii)
removes, conceals or disposes of any of his property, or
(b) with intent that any one should
defraud his creditors, receives any property by means of or in
relation to which an offence has been committed under paragraph
(a),
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years.
R.S.,
c. C-34, s. 350. |
|
393. (1)
Every one whose duty it is to collect a fare, toll, ticket or
admission who wilfully
(a) fails to collect it,
(b) collects less than the proper
amount payable in respect thereof, or
(c) accepts any valuable
consideration for failing to collect it or for collecting less than
the proper amount payable in respect thereof,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
|
(2)
Every one who gives or offers to a person whose duty it is to
collect a fare, toll, ticket or admission fee any valuable
consideration
(a) for failing to collect it,
or
(b) for collecting an amount less
than the amount payable in respect thereof,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
Fraudulently
obtaining transportation |
(3)
Every one who, by any false pretence or fraud, unlawfully obtains
transportation by land, water or air is guilty of an offence
punishable on summary conviction.
R.S.,
c. C-34, s. 351. |
|
394. (1) No
person who is the holder of a lease or licence issued under an Act
relating to the mining of valuable minerals, or by the owner of land
that is supposed to contain valuable minerals, shall
(a) by a fraudulent device or
contrivance, defraud or attempt to defraud any person of
(i)
any valuable minerals obtained under or reserved by the lease or
licence, or
(ii)
any money or valuable interest or thing payable in respect of
valuable minerals obtained or rights reserved by the lease or
licence; or
(b) fraudulently conceal or make a
false statement with respect to the amount of valuable minerals
obtained under the lease or licence. |
Sale
of valuable minerals |
(2) No
person, other than the owner or the owner’s agent or someone
otherwise acting under lawful authority, shall sell any valuable
mineral that is unrefined, partly refined, uncut or otherwise
unprocessed. |
Purchase
of valuable minerals |
(3) No
person shall buy any valuable mineral that is unrefined, partly
refined, uncut or otherwise unprocessed from anyone who the person
has reason to believe is not the owner or the owner’s agent or
someone otherwise acting under lawful authority. |
|
(4) In
any proceeding in relation to subsection (2) or (3), in the absence
of evidence raising a reasonable doubt to the contrary, it is
presumed that
(a) in the case of a sale, the
seller is not the owner of the valuable mineral or the owner’s agent
or someone otherwise acting under lawful authority; and
(b) in the case of a purchase, the
purchaser, when buying the valuable mineral, had reason to believe
that the seller was not the owner of the mineral or the owner’s
agent or someone otherwise acting under lawful authority. |
|
(5) A
person who contravenes subsection (1), (2) or (3) is guilty of an
indictable offence and liable to imprisonment for a term of not more
than five years. |
|
(6) If
a person is convicted of an offence under this section, the court
may order anything by means of or in relation to which the offence
was committed, on such conviction, to be forfeited to Her
Majesty. |
|
(7)
Subsection (6) does not apply to real property other than real
property built or significantly modified for the purpose of
facilitating the commission of an offence under this section.
R.S.,
1985, c. C-46, s. 394; R.S., 1985, c. 27 (1st Supp.), s. 186; 1999,
c. 5, s. 10. |
|
394.1 (1) No
person shall possess any valuable mineral that is unrefined, partly
refined, uncut or otherwise unprocessed that has been stolen or
dealt with contrary to section 394. |
|
(2)
Reasonable grounds to believe that the valuable mineral has been
stolen or dealt with contrary to section 394 are, in the absence of
evidence raising a reasonable doubt to the contrary, proof that the
valuable mineral has been stolen or dealt with contrary to section
394. |
|
(3) A
person who contravenes subsection (1) is guilty of an indictable
offence and liable to imprisonment for a term of not more than five
years. |
|
(4) If
a person is convicted of an offence under this section, the court
may, on that conviction, order that anything by means of or in
relation to which the offence was committed be forfeited to Her
Majesty. |
|
(5)
Subsection (4) does not apply to real property, other than real
property built or significantly modified for the purpose of
facilitating the commission of an offence under subsection (3).
1999,
c. 5, s. 10. |
|
395. (1) If
an information in writing is laid under oath before a justice by a
peace officer or by a public officer who has been appointed or
designated to administer or enforce a federal or provincial law and
whose duties include the enforcement of this Act or any other Act of
Parliament and the justice is satisfied that there are reasonable
grounds to believe that, contrary to this Act or any other Act of
Parliament, any valuable mineral is deposited in a place or held by
a person, the justice may issue a warrant authorizing a peace
officer or a public officer, if the public officer is named in it,
to search any of the places or persons mentioned in the
information. |
|
(2)
Where, on search, anything mentioned in subsection (1) is found, it
shall be seized and carried before the justice who shall order
(a) that it be detained for the
purposes of an inquiry or a trial; or
(b) if it is not detained for the
purposes of an inquiry or a trial,
(i)
that it be restored to the owner, or
(ii)
that it be forfeited to Her Majesty in right of the province in
which the proceedings take place if the owner cannot be
ascertained. |
|
(3) An
appeal lies from an order made under paragraph (2)(b) in the manner in which an
appeal lies in summary conviction proceedings under Part XXVII and
the provisions of that Part relating to appeals apply to appeals
under this subsection.
R.S.,
1985, c. C-46, s. 395; 1999, c. 5, s. 11. |
|
396. (1)
Every one who
(a) adds anything to or removes
anything from any existing or prospective mine, mining claim or oil
well with a fraudulent intent to affect the result of an assay, a
test or a valuation that has been made or is to be made with respect
to the mine, mining claim or oil well, or
(b) adds anything to, removes
anything from or tampers with a sample or material that has been
taken or is being or is about to be taken from any existing or
prospective mine, mining claim or oil well for the purpose of being
assayed, tested or otherwise valued, with a fraudulent intent to
affect the result of the assay, test or valuation,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years. |
|
(2)
For the purposes of proceedings under subsection (1), evidence
that
(a) something has been added to or
removed from anything to which subsection (1) applies, or
(b) anything to which subsection
(1) applies has been tampered with,
is, in
the absence of any evidence to the contrary, proof of a fraudulent
intent to affect the result of an assay, a test or a valuation.
R.S.,
c. C-34, s. 354. |
|
Falsification
of Books and Documents |
|
397. (1)
Every one who, with intent to defraud,
(a) destroys, mutilates, alters,
falsifies or makes a false entry in, or
(b) omits a material particular
from, or alters a material particular in,
a book,
paper, writing, valuable security or document is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding five years. |
|
(2)
Every one who, with intent to defraud his creditors, is privy to the
commission of an offence under subsection (1) is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding five years.
R.S.,
c. C-34, s. 355. |
|
398. Every
one who, with intent to deceive, falsifies an employment record by
any means, including the punching of a time clock, is guilty of an
offence punishable on summary conviction.
R.S.,
1985, c. C-46, s. 398; 1992, c. 1, s. 60(F). |
|
399. Every
one who, being entrusted with the receipt, custody or management of
any part of the public revenues, knowingly furnishes a false
statement or return of
(a) any sum of money collected by
him or entrusted to his care, or
(b) any balance of money in his
hands or under his control,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 357. |
|
400. (1)
Every one who makes, circulates or publishes a prospectus, a
statement or an account, whether written or oral, that he knows is
false in a material particular, with intent
(a) to induce persons, whether
ascertained or not, to become shareholders or partners in a
company,
(b) to deceive or defraud the
members, shareholders or creditors, whether ascertained or not, of a
company, or
(c) to induce any person to
(i)
entrust or advance anything to a company, or
(ii)
enter into any security for the benefit of a company,
(d) [Repealed, 1994, c. 44, s.
26]
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years. |
|
(2) In
this section, “company” means a syndicate, body corporate or
company, whether existing or proposed to be created.
R.S.,
1985, c. C-46, s. 400; 1994, c. 44, s. 26. |
|
401. (1)
Every one who, by means of a false or misleading representation,
knowingly obtains or attempts to obtain the carriage of anything by
any person into a country, province, district or other place,
whether or not within Canada, where the importation or
transportation of it is, in the circumstances of the case, unlawful
is guilty of an offence punishable on summary conviction. |
|
(2)
Where a person is convicted of an offence under subsection (1),
anything by means of or in relation to which the offence was
committed, on such conviction, in addition to any punishment that is
imposed, is forfeited to Her Majesty and shall be disposed of as the
court may direct.
R.S.,
c. C-34, s. 359. |
|
402. (1)
Every one who, being a trader or in business,
(a) is indebted in an amount
exceeding one thousand dollars,
(b) is unable to pay his creditors
in full, and
(c) has not kept books of account
that, in the ordinary course of the trade or business in which he is
engaged, are necessary to exhibit or explain his transactions,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
|
(2) No
person shall be convicted of an offence under this section
(a) where, to the satisfaction of
the court or judge, he
(i)
accounts for his losses, and
(ii)
shows that his failure to keep books was not intended to defraud his
creditors; or
(b) where his failure to keep books
occurred at a time more than five years prior to the day on which he
was unable to pay his creditors in full.
R.S.,
c. C-34, s. 360. |
|
|
|
403. Every
one who fraudulently personates any person, living or dead,
(a) with intent to gain advantage
for himself or another person,
(b) with intent to obtain any
property or an interest in any property, or
(c) with intent to cause
disadvantage to the person whom he personates or another person,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years or an offence punishable on summary
conviction.
R.S.,
1985, c. C-46, s. 403; 1994, c. 44, s. 27. |
|
404. Every
one who falsely, with intent to gain advantage for himself or some
other person, personates a candidate at a competitive or qualifying
examination held under the authority of law or in connection with a
university, college or school or who knowingly avails himself of the
results of such personation is guilty of an offence punishable on
summary conviction.
R.S.,
c. C-34, s. 362. |
|
405. Every
one who, without lawful authority or excuse, the proof of which lies
on him, acknowledges, in the name of another person before a court
or a judge or other person authorized to receive the acknowledgment,
a recognizance of bail, a confession of judgment, a consent to
judgment or a judgment, deed or other instrument is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding five years.
R.S.,
c. C-34, s. 363. |
|
Forgery
of Trade-marks and Trade Descriptions |
|
406. For the
purposes of this Part, every one forges a trade-mark who
(a) without the consent of the
proprietor of the trade-mark, makes or reproduces in any manner that
trade-mark or a mark so nearly resembling it as to be calculated to
deceive; or
(b) falsifies, in any manner, a
genuine trade-mark.
R.S.,
c. C-34, s. 364. |
|
407. Every
one commits an offence who, with intent to deceive or defraud the
public or any person, whether ascertained or not, forges a
trade-mark.
R.S.,
c. C-34, s. 365. |
|
408. Every
one commits an offence who, with intent to deceive or defraud the
public or any person, whether ascertained or not,
(a) passes off other wares or
services as and for those ordered or required; or
(b) makes use, in association with
wares or services, of any description that is false in a material
respect regarding
(i)
the kind, quality, quantity or composition,
(ii)
the geographical origin, or
(iii)
the mode of the manufacture, production or performance
of
those wares or services.
R.S.,
1985, c. C-46, s. 408; 1992, c. 1, s. 60(F). |
|
409. (1)
Every one commits an offence who makes, has in his possession or
disposes of a die, block, machine or other instrument designed or
intended to be used in forging a trade-mark. |
|
(2) No
person shall be convicted of an offence under this section where he
proves that he acted in good faith in the ordinary course of his
business or employment.
R.S.,
c. C-34, s. 367. |
|
410. Every
one commits an offence who, with intent to deceive or defraud,
(a) defaces, conceals or removes a
trade-mark or the name of another person from anything without the
consent of that other person; or
(b) being a manufacturer, dealer,
trader or bottler, fills any bottle or siphon that bears the
trade-mark or name of another person, without the consent of that
other person, with a beverage, milk, by-product of milk or other
liquid commodity for the purpose of sale or traffic.
R.S.,
c. C-34, s. 368. |
|
411. Every
one commits an offence who sells, exposes or has in his possession
for sale, or advertises for sale, goods that have been used,
reconditioned or remade and that bear the trade-mark or the
trade-name of another person, without making full disclosure that
the goods have been reconditioned, rebuilt or remade for sale and
that they are not then in the condition in which they were
originally made or produced.
R.S.,
c. C-34, s. 369. |
|
412. (1)
Every one who commits an offence under section 407, 408, 409, 410 or
411 is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction. |
|
(2)
Anything by means of or in relation to which a person commits an
offence under section 407, 408, 409, 410 or 411 is, unless the court
otherwise orders, forfeited on the conviction of that person for
that offence.
R.S.,
c. C-34, s. 370. |
|
413. Every
one who falsely represents that goods are made by a person holding a
royal warrant, or for the service of Her Majesty, a member of the
Royal Family or a public department is guilty of an offence
punishable on summary conviction.
R.S.,
c. C-34, s. 371. |
|
414. Where,
in proceedings under this Part, the alleged offence relates to
imported goods, evidence that the goods were shipped to Canada from
a place outside Canada is, in the absence of any evidence to the
contrary, proof that the goods were made or produced in the country
from which they were shipped.
R.S.,
c. C-34, s. 372. |
|
|
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415. Every
one who
(a) secretes wreck, defaces or
obliterates the marks on wreck or uses any means to disguise or
conceal the fact that anything is wreck, or in any manner conceals
the character of wreck, from a person who is entitled to inquire
into the wreck,
(b) receives wreck, knowing that it
is wreck, from a person other than the owner thereof or a receiver
of wreck, and does not within forty-eight hours thereafter inform
the receiver of wreck thereof,
(c) offers wreck for sale or
otherwise deals with it, knowing that it is wreck, and not having a
lawful authority to sell or deal with it,
(d) keeps wreck in his possession
knowing that it is wreck, without lawful authority to keep it, for
any time longer than the time reasonably necessary to deliver it to
the receiver of wreck, or
(e) boards, against the will of the
master, a vessel that is wrecked, stranded or in distress unless he
is a receiver of wreck or a person acting under orders of a receiver
of wreck,
is
guilty of
(f) an indictable offence and is
liable to imprisonment for a term not exceeding two years, or
(g) an offence punishable on
summary conviction.
R.S.,
c. C-34, s. 373. |
|
|
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416. The
Governor in Council may, by notice to be published in the Canada Gazette, prescribe
distinguishing marks that are appropriated for use on public stores
to denote the property of Her Majesty therein, whether the stores
belong to Her Majesty in right of Canada or to Her Majesty in any
other right.
R.S.,
c. C-34, s. 374. |
|
417. (1)
Every one who,
(a) without lawful authority, the
proof of which lies on him, applies a distinguishing mark to
anything, or
(b) with intent to conceal the
property of Her Majesty in public stores, removes, destroys or
obliterates, in whole or in part, a distinguishing mark,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years. |
Unlawful
transactions in public stores |
(2)
Every one who, without lawful authority, the proof of which lies on
him, receives, possesses, keeps, sells or delivers public stores
that he knows bear a distinguishing mark is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction. |
Definition
of “distinguishing mark” |
(3)
For the purposes of this section, “distinguishing mark” means a
distinguishing mark that is appropriated for use on public stores
pursuant to section 416.
R.S.,
c. C-34, s. 375. |
|
418. (1)
Every one who knowingly sells or delivers defective stores to Her
Majesty or commits fraud in connection with the sale, lease or
delivery of stores to Her Majesty or the manufacture of stores for
Her Majesty is guilty of an indictable offence and liable to
imprisonment for a term not exceeding fourteen years. |
Offences
by representatives |
(2)
Every one who, being a representative of an organization that
commits, by fraud, an offence under subsection (1),
(a) knowingly takes part in the
fraud, or
(b) knows or has reason to suspect
that the fraud is being committed or has been or is about to be
committed and does not inform the responsible government, or a
department thereof, of Her Majesty,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
1985, c. C-46, s. 418; 2003, c. 21, s. 6.1. |
|
419. Every
one who without lawful authority, the proof of which lies on
him,
(a) wears a uniform of the Canadian
Forces or any other naval, army or air force or a uniform that is so
similar to the uniform of any of those forces that it is likely to
be mistaken therefor,
(b) wears a distinctive mark
relating to wounds received or service performed in war, or a
military medal, ribbon, badge, chevron or any decoration or order
that is awarded for war services, or any imitation thereof, or any
mark or device or thing that is likely to be mistaken for any such
mark, medal, ribbon, badge, chevron, decoration or order,
(c) has in his possession a
certificate of discharge, certificate of release, statement of
service or identity card from the Canadian Forces or any other
naval, army or air force that has not been issued to and does not
belong to him, or
(d) has in his possession a
commission or warrant or a certificate of discharge, certificate of
release, statement of service or identity card, issued to an officer
or a person in or who has been in the Canadian Forces or any other
naval, army or air force, that contains any alteration that is not
verified by the initials of the officer who issued it, or by the
initials of an officer thereto lawfully authorized,
is
guilty of an offence punishable on summary conviction.
R.S.,
c. C-34, s. 377. |
|
420. (1)
Every one who buys, receives or detains from a member of the
Canadian Forces or a deserter or an absentee without leave therefrom
any military stores that are owned by Her Majesty or for which the
member, deserter or absentee without leave is accountable to Her
Majesty is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on
summary conviction. |
|
(2) No
person shall be convicted of an offence under this section where he
establishes that he did not know and had no reason to suspect that
the military stores in respect of which the offence was committed
were owned by Her Majesty or were military stores for which the
member, deserter or absentee without leave was accountable to Her
Majesty.
R.S.,
c. C-34, s. 378. |
|
421. (1) In
proceedings under sections 417 to 420, evidence that a person was at
any time performing duties in the Canadian Forces is, in the absence
of any evidence to the contrary, proof that his enrolment in the
Canadian Forces prior to that time was regular. |
Presumption
when accused a dealer in stores |
(2) An
accused who is charged with an offence under subsection 417(2) shall
be presumed to have known that the stores in respect of which the
offence is alleged to have been committed bore a distinguishing mark
within the meaning of that subsection at the time the offence is
alleged to have been committed if he was, at that time, in the
service or employment of Her Majesty or was a dealer in marine
stores or in old metals.
R.S.,
c. C-34, s. 379. |
|
Breach
of Contract, Intimidation and Discrimination Against Trade
Unionists |
|
422. (1)
Every one who wilfully breaks a contract, knowing or having
reasonable cause to believe that the probable consequences of doing
so, whether alone or in combination with others, will be
(a) to endanger human life,
(b) to cause serious bodily
injury,
(c) to expose valuable property,
real or personal, to destruction or serious injury,
(d) to deprive the inhabitants of a
city or place, or part thereof, wholly or to a great extent, of
their supply of light, power, gas or water, or
(e) to delay or prevent the running
of any locomotive engine, tender, freight or passenger train or car,
on a railway that is a common carrier,
is
guilty of
(f) an indictable offence and is
liable to imprisonment for a term not exceeding five years, or
(g) an offence punishable on
summary conviction. |
|
(2) No
person wilfully breaks a contract within the meaning of subsection
(1) by reason only that
(a) being the employee of an
employer, he stops work as a result of the failure of his employer
and himself to agree on any matter relating to his employment,
or,
(b) being a member of an
organization of employees formed for the purpose of regulating
relations between employers and employees, he stops work as a result
of the failure of the employer and a bargaining agent acting on
behalf of the organization to agree on any matter relating to the
employment of members of the organization,
if,
before the stoppage of work occurs, all steps provided by law with
respect to the settlement of industrial disputes are taken and any
provision for the final settlement of differences, without stoppage
of work, contained in or by law deemed to be contained in a
collective agreement is complied with and effect given
thereto. |
|
(3) No
proceedings shall be instituted under this section without the
consent of the Attorney General.
R.S.,
c. C-34, s. 380. |
|
423. (1)
Every one is guilty of an indictable offence and liable to
imprisonment for a term of not more than five years or is guilty of
an offence punishable on summary conviction who, wrongfully and
without lawful authority, for the purpose of compelling another
person to abstain from doing anything that he or she has a lawful
right to do, or to do anything that he or she has a lawful right to
abstain from doing,
(a) uses violence or threats of
violence to that person or his or her spouse or common-law partner
or children, or injures his or her property;
(b) intimidates or attempts to
intimidate that person or a relative of that person by threats that,
in Canada or elsewhere, violence or other injury will be done to or
punishment inflicted on him or her or a relative of his or hers, or
that the property of any of them will be damaged;
(c) persistently follows that
person;
(d) hides any tools, clothes or
other property owned or used by that person, or deprives him or her
of them or hinders him or her in the use of them;
(e) with one or more other persons,
follows that person, in a disorderly manner, on a highway;
(f) besets or watches the place
where that person resides, works, carries on business or happens to
be; or
(g) blocks or obstructs a
highway. |
|
(2) A
person who attends at or near or approaches a dwelling-house or
place, for the purpose only of obtaining or communicating
information, does not watch or beset within the meaning of this
section.
R.S.,
1985, c. C-46, s. 423; 2000, c. 12, s. 95; 2001, c. 32, s.
10. |
|
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
(a) a group of persons or the
general public in order to impede the administration of criminal
justice;
(b) a justice system participant in
order to impede him or her in the performance of his or her duties;
or
(c) a journalist in order to impede
him or her in the transmission to the public of information in
relation to a criminal organization. |
|
(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. |
|
(3)
Every person who contravenes this section is guilty of an indictable
offence and is liable to imprisonment for a term of not more than
fourteen years.
2001,
c. 32, s. 11. |
|
424. Every
one who threatens to commit an offence under section 235, 236, 266,
267, 268, 269, 269.1, 271, 272, 273, 279 or 279.1 against an
internationally protected person or who threatens to commit an
offence under section 431 is guilty of an indictable offence and
liable to imprisonment for a term of not more than five years.
R.S.,
1985, c. C-46, s. 424; R.S., 1985, c. 27 (1st Supp.), s. 55; 2001,
c. 41, s. 11. |
|
424.1 Every
one who, with intent to compel any person, group of persons, state
or any international or intergovernmental organization to do or
refrain from doing any act, threatens to commit an offence under
section 235, 236, 266, 267, 268, 269, 269.1, 271, 272, 273, 279 or
279.1 against a member of United Nations personnel or associated
personnel or threatens to commit an offence under section 431.1 is
guilty of an indictable offence and liable to imprisonment for a
term of not more than ten years.
2001,
c. 41, s. 11. |
|
425. Every
one who, being an employer or the agent of an employer, wrongfully
and without lawful authority
(a) refuses to employ or dismisses
from his employment any person for the reason only that the person
is a member of a lawful trade union or of a lawful association or
combination of workmen or employees formed for the purpose of
advancing, in a lawful manner, their interests and organized for
their protection in the regulation of wages and conditions of
work,
(b) seeks by intimidation, threat
of loss of position or employment, or by causing actual loss of
position or employment, or by threatening or imposing any pecuniary
penalty, to compel workmen or employees to abstain from belonging to
any trade union, association or combination to which they have a
lawful right to belong, or
(c) conspires, combines, agrees or
arranges with any other employer or his agent to do anything
mentioned in paragraph (a)
or (b),
is
guilty of an offence punishable on summary conviction.
R.S.,
c. C-34, s. 382. |
|
425.1 (1) No
employer or person acting on behalf of an employer or in a position
of authority in respect of an employee of the employer shall take a
disciplinary measure against, demote, terminate or otherwise
adversely affect the employment of such an employee, or threaten to
do so,
(
a) with the intent to compel
the employee to abstain from providing information to a person whose
duties include the enforcement of federal or provincial law,
respecting an offence that the employee believes has been or is
being committed contrary to this or any other federal or provincial
Act or regulation by the employer or an officer or employee of the
employer or, if the employer is a corporation, by one or more of its
directors; or
(
b) with the intent to
retaliate against the employee because the employee has provided
information referred to in paragraph ( a) to a person whose duties
include the enforcement of federal or provincial law. |
|
(2)
Any one who contravenes subsection (1) is guilty of
(
a) an indictable offence and
liable to imprisonment for a term not exceeding five years; or
(
b) an offence punishable on
summary conviction.
2004,
c. 3, s. 6. |
|
|
|
426. (1)
Every one commits an offence who
(a) corruptly
(i)
gives, offers or agrees to give or offer to an agent, or
(ii)
being an agent, demands, accepts or offers or agrees to accept from
any person,
any
reward, advantage or benefit of any kind as consideration for doing
or forbearing to do, or for having done or forborne to do, any act
relating to the affairs or business of his principal or for showing
or forbearing to show favour or disfavour to any person with
relation to the affairs or business of his principal; or
(b) with intent to deceive a
principal, gives to an agent of that principal, or, being an agent,
uses with intent to deceive his principal, a receipt, an account or
other writing
(i) in
which the principal has an interest,
(ii)
that contains any statement that is false or erroneous or defective
in any material particular, and
(iii)
that is intended to mislead the principal. |
|
(2)
Every one commits an offence who is knowingly privy to the
commission of an offence under subsection (1). |
|
(3) A
person who commits an offence under this section is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding five years. |
Definition
of “agent” and “principal” |
(4) In
this section, “agent” includes an employee, and “principal” includes
an employer.
R.S.,
1985, c. C-46, s. 426; R.S., 1985, c. 27 (1st Supp.), s.
56. |
|
|
|
427. (1)
Every one who, by himself or his employee or agent, directly or
indirectly issues, gives, sells or otherwise disposes of, or offers
to issue, give, sell or otherwise dispose of trading stamps to a
merchant or dealer in goods for use in his business is guilty of an
offence punishable on summary conviction. |
Giving
to purchaser of goods |
(2)
Every one who, being a merchant or dealer in goods, by himself or
his employee or agent, directly or indirectly gives or in any way
disposes of, or offers to give or in any way dispose of, trading
stamps to a person who purchases goods from him is guilty of an
offence punishable on summary conviction.
R.S.,
c. C-34, s. 384. |
|
PART
XI
WILFUL AND FORBIDDEN
ACTS IN RESPECT OF CERTAIN PROPERTY |
|
|
|
428. In this
Part, “property” means real or personal corporeal property.
R.S.,
c. C-34, s. 385. |
|
429. (1)
Every one who causes the occurrence of an event by doing an act or
by omitting to do an act that it is his duty to do, knowing that the
act or omission will probably cause the occurrence of the event and
being reckless whether the event occurs or not, shall be deemed, for
the purposes of this Part, wilfully to have caused the occurrence of
the event. |
|
(2) No
person shall be convicted of an offence under sections 430 to 446
where he proves that he acted with legal justification or excuse and
with colour of right. |
|
(3)
Where it is an offence to destroy or to damage anything,
(a) the fact that a person has a
partial interest in what is destroyed or damaged does not prevent
him from being guilty of the offence if he caused the destruction or
damage; and
(b) the fact that a person has a
total interest in what is destroyed or damaged does not prevent him
from being guilty of the offence if he caused the destruction or
damage with intent to defraud.
R.S.,
c. C-34, s. 386. |
|
|
|
430. (1)
Every one commits mischief who wilfully
(a) destroys or damages
property;
(b) renders property dangerous,
useless, inoperative or ineffective;
(c) obstructs, interrupts or
interferes with the lawful use, enjoyment or operation of property;
or
(d) obstructs, interrupts or
interferes with any person in the lawful use, enjoyment or operation
of property. |
Mischief
in relation to data |
(1.1)
Every one commits mischief who wilfully
(a) destroys or alters data;
(b) renders data meaningless,
useless or ineffective;
(c) obstructs, interrupts or
interferes with the lawful use of data; or
(d) obstructs, interrupts or
interferes with any person in the lawful use of data or denies
access to data to any person who is entitled to access
thereto. |
|
(2)
Every one who commits mischief that causes actual danger to life is
guilty of an indictable offence and liable to imprisonment for
life. |
|
(3)
Every one who commits mischief in relation to property that is a
testamentary instrument or the value of which exceeds five thousand
dollars
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years; or
(b) is guilty of an offence
punishable on summary conviction. |
|
(4)
Every one who commits mischief in relation to property, other than
property described in subsection (3),
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years; or
(b) is guilty of an offence
punishable on summary conviction. |
Mischief
relating to religious property |
(4.1)
Every one who commits mischief in relation to property that is a
building, structure or part thereof that is primarily used for
religious worship, including a church, mosque, synagogue or temple,
or an object associated with religious worship located in or on the
grounds of such a building or structure, or a cemetery, if the
commission of the mischief is motivated by bias, prejudice or hate
based on religion, race, colour or national or ethnic origin,
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years; or
(b) is guilty of an offence
punishable on summary conviction and liable to imprisonment for a
term not exceeding eighteen months. |
|
(5)
Every one who commits mischief in relation to data
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years; or
(b) is guilty of an offence
punishable on summary conviction. |
|
(5.1)
Every one who wilfully does an act or wilfully omits to do an act
that it is his duty to do, if that act or omission is likely to
constitute mischief causing actual danger to life, or to constitute
mischief in relation to property or data,
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five
years; or
(b) is guilty of an offence
punishable on summary conviction. |
|
(6) No
person commits mischief within the meaning of this section by reason
only that
(a) he stops work as a result of
the failure of his employer and himself to agree on any matter
relating to his employment;
(b) he stops work as a result of
the failure of his employer and a bargaining agent acting on his
behalf to agree on any matter relating to his employment; or
(c) he stops work as a result of
his taking part in a combination of workmen or employees for their
own reasonable protection as workmen or employees. |
|
(7) No
person commits mischief within the meaning of this section by reason
only that he attends at or near or approaches a dwelling-house or
place for the purpose only of obtaining or communicating
information. |
|
(8) In
this section, “data” has the same meaning as in section 342.1.
R.S.,
1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994,
c. 44, s. 28; 2001, c. 41, s. 12. |
|
431. Every
one who commits a violent attack on the official premises, private
accommodation or means of transport of an internationally protected
person that is likely to endanger the life or liberty of such a
person is guilty of an indictable offence and liable to imprisonment
for a term of not more than fourteen years.
R.S.,
1985, c. C-46, s. 431; R.S., 1985, c. 27 (1st Supp.), s. 58; 2001,
c. 41, s. 13. |
|
431.1 Every
one who commits a violent attack on the official premises, private
accommodation or means of transport of a member of United Nations
personnel or associated personnel that is likely to endanger the
life or liberty of such a person is guilty of an indictable offence
and liable to imprisonment for a term of not more than fourteen
years.
2001,
c. 41, s. 13. |
|
431.2 (1) The
following definitions apply in this section. |
“explosive or other lethal
device”
« engin explosif ou autre engin
meurtrier » |
“explosive or other lethal
device” means
(a) an explosive or incendiary
weapon or device that is designed to cause, or is capable of
causing, death, serious bodily injury or substantial material
damage; or
(b) a weapon or device that is
designed to cause, or is capable of causing, death, serious bodily
injury or substantial material damage through the release,
dissemination or impact of toxic chemicals, biological agents or
toxins or similar substances, or radiation or radioactive
material. |
“infrastructure facility”
« infrastructure » |
“infrastructure facility”
means a publicly or privately owned facility that provides or
distributes services for the benefit of the public, including
services relating to water, sewage, energy, fuel and
communications. |
“military forces of a state”
« forces armées d’un
État » |
“military forces of a
state” means the armed forces that a state organizes, trains and
equips in accordance with the law of the state for the primary
purpose of national defence or national security, and every person
acting in support of those armed forces who is under their formal
command, control and responsibility. |
“place of public use”
« lieu public » |
“place
of public use” means those parts of land, a building, street,
waterway or other location that are accessible or open to members of
the public, whether on a continuous, periodic or occasional basis,
and includes any commercial, business, cultural, historical,
educational, religious, governmental, entertainment, recreational or
other place that is accessible or open to the public on such a
basis. |
“public transportation system”
« système de transport
public » |
“public transportation
system” means a publicly or privately owned facility, conveyance or
other thing that is used in connection with publicly available
services for the transportation of persons or cargo. |
Explosive
or other lethal device |
(2)
Every one who delivers, places, discharges or detonates an explosive
or other lethal device to, into, in or against a place of public
use, a government or public facility, a public transportation system
or an infrastructure facility, either with intent to cause death or
serious bodily injury or with intent to cause extensive destruction
of such a place, system or facility that results in or is likely to
result in major economic loss, is guilty of an indictable offence
and liable to imprisonment for life. |
|
(3)
For greater certainty, subsection (2) does not apply to an act or
omission that is committed during an armed conflict and that, at the
time and in the place of its commission, is in accordance with
customary international law or conventional international law
applicable to the conflict, or to activities undertaken by military
forces of a state in the exercise of their official duties, to the
extent that those activities are governed by other rules of
international law.
2001,
c. 41, s. 13. |
|
432.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 58] |
|
|
|
433. Every
person who intentionally or recklessly causes damage by fire or
explosion to property, whether or not that person owns the property,
is guilty of an indictable offence and liable to imprisonment for
life where
(a) the person knows that or is
reckless with respect to whether the property is inhabited or
occupied; or
(b) the fire or explosion causes
bodily harm to another person.
R.S.,
1985, c. C-46, s. 433; 1990, c. 15, s. 1. |
|
434. Every
person who intentionally or recklessly causes damage by fire or
explosion to property that is not wholly owned by that person is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
1985, c. C-46, s. 434; 1990, c. 15, s. 1. |
|
434.1 Every
person who intentionally or recklessly causes damage by fire or
explosion to property that is owned, in whole or in part, by that
person is guilty of an indictable offence and liable to imprisonment
for a term not exceeding fourteen years, where the fire or explosion
seriously threatens the health, safety or property of another
person.
1990,
c. 15, s. 1. |
|
435. (1)
Every person who, with intent to defraud any other person, causes
damage by fire or explosion to property, whether or not that person
owns, in whole or in part, the property, is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years. |
Holder
or beneficiary of fire insurance policy |
(2)
Where a person is charged with an offence under subsection (1), the
fact that the person was the holder of or was named as a beneficiary
under a policy of fire insurance relating to the property in respect
of which the offence is alleged to have been committed is a fact
from which intent to defraud may be inferred by the court.
R.S.,
1985, c. C-46, s. 435; 1990, c. 15, s. 1. |
|
436. (1)
Every person who owns, in whole or in part, or controls property is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years where, as a result of a marked
departure from the standard of care that a reasonably prudent person
would use to prevent or control the spread of fires or to prevent
explosions, that person is a cause of a fire or explosion in that
property that causes bodily harm to another person or damage to
property. |
Non-compliance
with prevention laws |
(2)
Where a person is charged with an offence under subsection (1), the
fact that the person has failed to comply with any law respecting
the prevention or control of fires or explosions in the property is
a fact from which a marked departure from the standard of care
referred to in that subsection may be inferred by the court.
R.S.,
1985, c. C-46, s. 436; 1990, c. 15, s. 1. |
|
436.1 Every
person who possesses any incendiary material, incendiary device or
explosive substance for the purpose of committing an offence under
any of sections 433 to 436 is guilty of an indictable offence and
liable to imprisonment for a term not exceeding five years.
1990,
c. 15, s. 1. |
|
Other
Interference with Property |
|
437. Every
one who wilfully, without reasonable cause, by outcry, ringing
bells, using a fire alarm, telephone or telegraph, or in any other
manner, makes or circulates or causes to be made or circulated an
alarm of fire is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction.
R.S.,
c. C-34, s. 393; 1972, c. 13, s. 31. |
|
438. (1)
Every one who wilfully prevents or impedes, or who wilfully
endeavours to prevent or impede,
(a) the saving of a vessel that is
wrecked, stranded, abandoned or in distress, or
(b) a person who attempts to save a
vessel that is wrecked, stranded, abandoned or in distress,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years. |
Interfering
with saving of wreck |
(2)
Every one who wilfully prevents or impedes or wilfully endeavours to
prevent or impede the saving of wreck is guilty of an offence
punishable on summary conviction.
R.S.,
c. C-34, s. 394. |
|
439. (1)
Every one who makes fast a vessel or boat to a signal, buoy or other
sea-mark that is used for purposes of navigation is guilty of an
offence punishable on summary conviction. |
|
(2)
Every one who wilfully alters, removes or conceals a signal, buoy or
other sea-mark that is used for purposes of navigation is guilty of
an indictable offence and liable to imprisonment for a term not
exceeding ten years.
R.S.,
c. C-34, s. 395. |
|
440. Every
one who wilfully and without the written permission of the Minister
of Transport, the burden of proof of which lies on the accused,
removes any stone, wood, earth or other material that forms a
natural bar necessary to the existence of a public harbour, or that
forms a natural protection to such a bar, is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years.
R.S.,
c. C-34, s. 396. |
|
441. Every
one who, wilfully and to the prejudice of a mortgagee or an owner,
pulls down, demolishes or removes all or any part of a
dwelling-house or other building of which he is in possession or
occupation, or severs from the freehold any fixture fixed therein or
thereto, is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years.
R.S.,
c. C-34, s. 397. |
|
442. Every
one who wilfully pulls down, defaces, alters or removes anything
planted or set up as the boundary line or part of the boundary line
of land is guilty of an offence punishable on summary
conviction.
R.S.,
c. C-34, s. 398. |
|
443. (1)
Every one who wilfully pulls down, defaces, alters or removes
(a) a boundary mark lawfully placed
to mark any international, provincial, county or municipal boundary,
or
(b) a boundary mark lawfully placed
by a land surveyor to mark any limit, boundary or angle of a
concession, range, lot or parcel of land,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years. |
|
(2) A
land surveyor does not commit an offence under subsection (1) where,
in his operations as a land surveyor,
(a) he takes up, when necessary, a
boundary mark mentioned in paragraph (1)(b) and carefully replaces it as it
was before he took it up; or
(b) he takes up a boundary mark
mentioned in paragraph (1)(b) in the course of surveying for
a highway or other work that, when completed, will make it
impossible or impracticable for that boundary mark to occupy its
original position, and he establishes a permanent record of the
original position sufficient to permit that position to be
ascertained.
R.S.,
c. C-34, s. 399. |
|
|
|
444. Every
one who wilfully
(a) kills, maims, wounds, poisons
or injures cattle, or
(b) places poison in such a
position that it may easily be consumed by cattle,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 400. |
|
445. Every
one who wilfully and without lawful excuse
(a) kills, maims, wounds, poisons
or injures dogs, birds or animals that are not cattle and are kept
for a lawful purpose, or
(b) places poison in such a
position that it may easily be consumed by dogs, birds or animals
that are not cattle and are kept for a lawful purpose,
is
guilty of an offence punishable on summary conviction.
R.S.,
c. C-34, s. 401. |
|
|
|
446. (1)
Every one commits an offence who
(a) wilfully causes or, being the
owner, wilfully permits to be caused unnecessary pain, suffering or
injury to an animal or a bird;
(b) by wilful neglect causes damage
or injury to animals or birds while they are being driven or
conveyed;
(c) being the owner or the person
having the custody or control of a domestic animal or a bird or an
animal or a bird wild by nature that is in captivity, abandons it in
distress or wilfully neglects or fails to provide suitable and
adequate food, water, shelter and care for it;
(d) in any manner encourages, aids
or assists at the fighting or baiting of animals or birds;
(e) wilfully, without reasonable
excuse, administers a poisonous or an injurious drug or substance to
a domestic animal or bird or an animal or a bird wild by nature that
is kept in captivity or, being the owner of such an animal or a
bird, wilfully permits a poisonous or an injurious drug or substance
to be administered to it;
(f) promotes, arranges, conducts,
assists in, receives money for or takes part in any meeting,
competition, exhibition, pastime, practice, display or event at or
in the course of which captive birds are liberated by hand, trap,
contrivance or any other means for the purpose of being shot when
they are liberated; or
(g) being the owner, occupier or
person in charge of any premises, permits the premises or any part
thereof to be used for a purpose mentioned in paragraph (f). |
|
(2)
Every one who commits an offence under subsection (1) is guilty of
an offence punishable on summary conviction. |
Failure
to exercise reasonable care as evidence |
(3)
For the purposes of proceedings under paragraph (1)(a) or (b), evidence that a person failed
to exercise reasonable care or supervision of an animal or a bird
thereby causing it pain, suffering, damage or injury is, in the
absence of any evidence to the contrary, proof that the pain,
suffering, damage or injury was caused or was permitted to be caused
wilfully or was caused by wilful neglect, as the case may
be. |
Presence
at baiting as evidence |
(4)
For the purpose of proceedings under paragraph (1)(d), evidence that an accused was
present at the fighting or baiting of animals or birds is, in the
absence of any evidence to the contrary, proof that he encouraged,
aided or assisted at the fighting or baiting. |
|
(5)
Where an accused is convicted of an offence under subsection (1),
the court may, in addition to any other sentence that may be imposed
for the offence, make an order prohibiting the accused from owning
or having the custody or control of an animal or a bird during any
period not exceeding two years. |
|
(6)
Every one who owns or has the custody or control of an animal or a
bird while he is prohibited from doing so by reason of an order made
under subsection (5) is guilty of an offence punishable on summary
conviction.
R.S.,
c. C-34, s. 402; 1974-75-76, c. 93, s. 35. |
|
447. (1)
Every one who builds, makes, maintains or keeps a cockpit on
premises that he owns or occupies, or allows a cockpit to be built,
made, maintained or kept on such premises is guilty of an offence
punishable on summary conviction. |
|
(2) A
peace officer who finds cocks in a cockpit or on premises where a
cockpit is located shall seize them and take them before a justice
who shall order them to be destroyed.
R.S.,
c. C-34, s. 403. |
|
PART
XII
OFFENCES RELATING TO
CURRENCY |
|
|
|
448. In this
Part, |
“counterfeit money”
« monnaie
contrefaite » |
“counterfeit money”
includes
(a) a false coin or false paper
money that resembles or is apparently intended to resemble or pass
for a current coin or current paper money,
(b) a forged bank-note or forged
blank bank-note, whether complete or incomplete,
(c) a genuine coin or genuine paper
money that is prepared or altered to resemble or pass for a current
coin or current paper money of a higher denomination,
(d) a current coin from which the
milling is removed by filing or cutting the edges and on which new
milling is made to restore its appearance,
(e) a coin cased with gold, silver
or nickel, as the case may be, that is intended to resemble or pass
for a current gold, silver or nickel coin, and
(f) a coin or a piece of metal or
mixed metals that is washed or coloured by any means with a wash or
material capable of producing the appearance of gold, silver or
nickel and that is intended to resemble or pass for a current gold,
silver or nickel coin; |
“counterfeit token of value”
« symbole de valeur
contrefait » |
“counterfeit token of
value” means a counterfeit excise stamp, postage stamp or other
evidence of value, by whatever technical, trivial or deceptive
designation it may be described, and includes genuine coin or paper
money that has no value as money; |
|
“current” means lawfully
current in Canada or elsewhere by virtue of a law, proclamation or
regulation in force in Canada or elsewhere as the case may
be; |
“utter”
« mettre en
circulation » |
“utter” includes sell,
pay, tender and put off.
R.S.,
c. C-34, s. 406. |
|
|
|
449. Every
one who makes or begins to make counterfeit money is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding fourteen years.
R.S.,
c. C-34, s. 407. |
|
|
|
450. Every
one who, without lawful justification or excuse, the proof of which
lies on him,
(a) buys, receives or offers to buy
or receive,
(b) has in his custody or
possession, or
(c) introduces into Canada,
counterfeit
money is guilty of an indictable offence and liable to imprisonment
for a term not exceeding fourteen years.
R.S.,
c. C-34, s. 408. |
|
451. Every
one who, without lawful justification or excuse, the proof of which
lies on him, has in his custody or possession
(a) gold or silver filings or
clippings,
(b) gold or silver bullion, or
(c) gold or silver in dust,
solution or otherwise,
produced
or obtained by impairing, diminishing or lightening a current gold
or silver coin, knowing that it has been so produced or obtained, is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years.
R.S.,
c. C-34, s. 409. |
|
|
|
452. Every
one who, without lawful justification or excuse, the proof of which
lies on him,
(a) utters or offers to utter
counterfeit money or uses counterfeit money as if it were genuine,
or
(b) exports, sends or takes
counterfeit money out of Canada,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
c. C-34, s. 410. |
|
453. Every
one who, with intent to defraud, knowingly utters
(a) a coin that is not current,
or
(b) a piece of metal or mixed
metals that resembles in size, figure or colour a current coin for
which it is uttered,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding two years.
R.S.,
c. C-34, s. 411. |
|
454. Every
one who without lawful excuse, the proof of which lies on him,
(a) manufactures, produces or
sells, or
(b) has in his possession
anything
that is intended to be fraudulently used in substitution for a coin
or token of value that any coin or token-operated device is designed
to receive is guilty of an offence punishable on summary
conviction.
R.S.,
c. C-34, s. 412; 1972, c. 13, s. 32. |
|
|
|
455. Every
one who
(a) impairs, diminishes or lightens
a current gold or silver coin with intent that it should pass for a
current gold or silver coin, or
(b) utters a coin knowing that it
has been impaired, diminished or lightened contrary to paragraph
(a),
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
c. C-34, s. 413. |
|
456. Every
one who
(a) defaces a current coin, or
(b) utters a current coin that has
been defaced,
is
guilty of an offence punishable on summary conviction.
R.S.,
c. C-34, s. 414. |
|
457. (1) No
person shall make, publish, print, execute, issue, distribute or
circulate, including by electronic or computer-assisted means,
anything in the likeness of
(a) a current bank-note; or
(b) an obligation or a security of
a government or bank. |
|
(2)
Subsection (1) does not apply to
(a) the Bank of Canada or its
employees when they are carrying out their duties;
(b) the Royal Canadian Mounted
Police or its members or employees when they are carrying out their
duties; or
(c) any person acting under a
contract or licence from the Bank of Canada or Royal Canadian
Mounted Police. |
|
(3) A
person who contravenes subsection (1) is guilty of an offence
punishable on summary conviction. |
|
(4) No
person shall be convicted of an offence under subsection (3) in
relation to the printed likeness of a Canadian bank-note if it is
established that the length or width of the likeness is less than
three-fourths or greater than one-and-one-half times the length or
width, as the case may be, of the bank-note and
(a) the likeness is in
black-and-white only; or
(b) the likeness of the bank-note
appears on only one side of the likeness.
R.S.,
1985, c. C-46, s. 457; 1999, c. 5, s. 12. |
|
|
|
458. Every
one who, without lawful justification or excuse, the proof of which
lies on him,
(a) makes or repairs,
(b) begins or proceeds to make or
repair,
(c) buys or sells, or
(d) has in his custody or
possession,
any
machine, engine, tool, instrument, material or thing that he knows
has been used or that he knows is adapted and intended for use in
making counterfeit money or counterfeit tokens of value is guilty of
an indictable offence and liable to imprisonment for a term not
exceeding fourteen years.
R.S.,
c. C-34, s. 416. |
|
459. Every
one who, without lawful justification or excuse, the proof of which
lies on him, knowingly conveys out of any of Her Majesty’s mints in
Canada,
(a) any machine, engine, tool,
instrument, material or thing used or employed in connection with
the manufacture of coins,
(b) a useful part of anything
mentioned in paragraph (a),
or
(c) coin, bullion, metal or a
mixture of metals,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
R.S.,
c. C-34, s. 417. |
|
Advertising
and Trafficking in Counterfeit Money or Counterfeit Tokens of
Value |
|
460. (1)
Every one who
(a) by an advertisement or any
other writing, offers to sell, procure or dispose of counterfeit
money or counterfeit tokens of value or to give information with
respect to the manner in which or the means by which counterfeit
money or counterfeit tokens of value may be sold, procured or
disposed of, or
(b) purchases, obtains, negotiates
or otherwise deals with counterfeit tokens of value, or offers to
negotiate with a view to purchasing or obtaining them,
is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding five years. |
Fraudulent
use of money genuine but valueless |
(2) No
person shall be convicted of an offence under subsection (1) in
respect of genuine coin or genuine paper money that has no value as
money unless, at the time when the offence is alleged to have been
committed, he knew that the coin or paper money had no value as
money and he had a fraudulent intent in his dealings with or with
respect to the coin or paper money.
R.S.,
c. C-34, s. 418. |
|
Special
Provisions as to Proof |
|
461. (1)
Every offence relating to counterfeit money or counterfeit tokens of
value shall be deemed to be complete notwithstanding that the money
or tokens of value in respect of which the proceedings are taken are
not finished or perfected or do not copy exactly the money or tokens
of value that they are apparently intended to resemble or for which
they are apparently intended to pass. |
Certificate
of examiner of counterfeit |
(2) In
any proceedings under this Part, a certificate signed by a person
designated as an examiner of counterfeit by the Minister of Public
Safety and Emergency Preparedness, stating that any coin, paper
money or bank-note described therein is counterfeit money or that
any coin, paper money or bank-note described therein is genuine and
is or is not, as the case may be, current in Canada or elsewhere, is
evidence of the statements contained in the certificate without
proof of the signature or official character of the person appearing
to have signed the certificate. |
Cross-examination
and notice |
(3)
Subsections 258(6) and (7) apply, with such modifications as the
circumstances require, in respect of a certificate described in
subsection (2).
R.S.,
1985, c. C-46, s. 461; 1992, c. 1, s. 58; 2005, c. 10, s.
34. |
|
|
|
462. (1)
Counterfeit money, counterfeit tokens of value and anything that is
used or is intended to be used to make counterfeit money or
counterfeit tokens of value belong to Her Majesty. |
|
(2) A
peace officer may seize and detain
(a) counterfeit money,
(b) counterfeit tokens of value,
and
(c) machines, engines, tools,
instruments, materials or things that have been used or that have
been adapted and are intended for use in making counterfeit money or
counterfeit tokens of value,
and
anything seized shall be sent to the Minister of Finance to be
disposed of or dealt with as he may direct, but anything that is
required as evidence in any proceedings shall not be sent to the
Minister until it is no longer required in those proceedings.
R.S.,
c. C-34, s. 420. |
|
PART
XII.1
INSTRUMENTS AND
LITERATURE FOR ILLICIT DRUG USE |
|
|
|
462.1 In this
Part, |
|
“consume” includes inhale,
inject into the human body, masticate and smoke; |
“illicit drug”
« drogue
illicite » |
“illicit drug” means a
controlled substance or precursor the import, export, production,
sale or possession of which is prohibited or restricted pursuant to
the Controlled Drugs and Substances
Act; |
“illicit drug use”
« utilisation de drogues
illicites » |
“illicit drug use” means
the importation, exportation, production, sale or possession of a
controlled substance or precursor contrary to the Controlled Drugs and Substances
Act or a regulation made under that Act; |
“instrument for illicit drug
use”
« instrument pour l’utilisation de drogues
illicites » |
“instrument for illicit
drug use” means anything designed primarily or intended under the
circumstances for consuming or to facilitate the consumption of an
illicit drug, but does not include a “device” as that term is
defined in section 2 of the Food
and Drugs Act; |
“literature for illicit drug
use”
« documentation pour l’utilisation de
drogues illicites » |
“literature for illicit
drug use” means any printed matter or video describing or depicting,
and designed primarily or intended under the circumstances to
promote, encourage or advocate, the production, preparation or
consumption of illicit drugs; |
|
“sell”
includes offer for sale, expose for sale, have in possession for
sale and distribute, whether or not the distribution is made for
consideration.
R.S.,
1985, c. 50 (4th Supp.), s. 1; 1996, c. 19, s. 67. |
|
|
|
462.2 Every
one who knowingly imports into Canada, exports from Canada,
manufactures, promotes or sells instruments or literature for
illicit drug use is guilty of an offence and liable on summary
conviction
(a) for a first offence, to a fine
not exceeding one hundred thousand dollars or to imprisonment for a
term not exceeding six months or to both; or
(b) for a second or subsequent
offence, to a fine not exceeding three hundred thousand dollars or
to imprisonment for a term not exceeding one year or to both.
R.S.,
1985, c. 50 (4th Supp.), s. 1. |
|
PART
XII.2
PROCEEDS OF
CRIME |
|
|
|
462.3 (1) In
this Part, |
“designated drug offence” |
“designated drug offence”
[Repealed, 1996, c. 19, s. 68] |
“designated offence”
« infraction
désignée » |
“designated offence”
means
(a) an indictable offence under
this or any other Act of Parliament, other than an indictable
offence prescribed by regulation, or
(b) a conspiracy or an attempt to
commit, being an accessory after the fact in relation to, or any
counselling in relation to, an offence referred to in paragraph
(a); |
“designated substance offence” |
“designated substance
offence” [Repealed, 2001, c. 32, s. 12] |
“enterprise crime offence” |
“enterprise crime offence”
[Repealed, 2001, c. 32, s. 12] |
|
“judge” means a judge as
defined in section 552 or a judge of a superior court of criminal
jurisdiction; |
“proceeds of crime”
« produits de la
criminalité » |
“proceeds of crime” means
any property, benefit or advantage, within or outside Canada,
obtained or derived directly or indirectly as a result of
(a) the commission in Canada of a
designated offence, or
(b) an act or omission anywhere
that, if it had occurred in Canada, would have constituted a
designated offence. |
|
(2)
The Governor in Council may make regulations prescribing indictable
offences that are excluded from the definition “designated offence”
in subsection (1). |
Powers
of Attorney General of Canada |
(3)
Notwithstanding the definition “Attorney General” in section 2, the
Attorney General of Canada may exercise all the powers and perform
all the duties and functions assigned to the Attorney General by or
under this Act in respect of a designated offence where the alleged
offence arises out of conduct that in whole or in part is in
relation to an alleged contravention of an Act of Parliament or a
regulation made under such an Act, other than this Act or a
regulation made under this Act. |
Powers
of Attorney General of a province |
(4)
Subsection (3) does not affect the authority of the Attorney General
of a province to conduct proceedings in respect of a designated
offence or to exercise any of the powers or perform any of the
duties and functions assigned to the Attorney General by or under
this Act.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c.
46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss.
68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11;
1999, c. 5, ss. 13, 52; 2001, c. 32, s. 12, c. 41, ss. 14,
33. |
|
|
|
462.31 (1)
Every one commits an offence who uses, transfers the possession of,
sends or delivers to any person or place, transports, transmits,
alters, disposes of or otherwise deals with, in any manner and by
any means, any property or any proceeds of any property with intent
to conceal or convert that property or those proceeds, knowing or
believing that all or a part of that property or of those proceeds
was obtained or derived directly or indirectly as a result of
(a) the commission in Canada of a
designated offence; or
(b) an act or omission anywhere
that, if it had occurred in Canada, would have constituted a
designated offence. |
|
(2)
Every one who commits an offence under subsection (1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten
years; or
(b) is guilty of an offence
punishable on summary conviction. |
|
(3) A
peace officer or a person acting under the direction of a peace
officer is not guilty of an offence under subsection (1) if the
peace officer or person does any of the things mentioned in that
subsection for the purposes of an investigation or otherwise in the
execution of the peace officer’s duties.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, s.
28; 2001, c. 32, s. 13. |
|
Search,
Seizure and Detention of Proceeds of Crime |
|
462.32 (1)
Subject to subsection (3), where a judge, on application of the
Attorney General, is satisfied by information on oath in Form 1 that
there are reasonable grounds to believe that there is in any
building, receptacle or place, within the province in which the
judge has jurisdiction or any other province, any property in
respect of which an order of forfeiture may be made under subsection
462.37(1) or 462.38(2), in respect of a designated offence alleged
to have been committed within the province in which the judge has
jurisdiction, the judge may issue a warrant authorizing a person
named in the warrant or a peace officer to search the building,
receptacle or place for that property and to seize that property and
any other property in respect of which that person or peace officer
believes, on reasonable grounds, that an order of forfeiture may be
made under that subsection. |
|
(2) An
application for a warrant under subsection (1) may be made ex parte, shall be made in writing
and shall include a statement as to whether any previous
applications have been made under subsection (1) with respect to the
property that is the subject of the application. |
|
(2.1)
Subject to subsection (2.2), a warrant issued pursuant to subsection
(1) may be executed anywhere in Canada. |
Execution
in another province |
(2.2)
Where a warrant is issued under subsection (1) in one province but
it may be reasonably expected that it is to be executed in another
province and the execution of the warrant would require entry into
or on the property of any person in the other province, a judge in
the other province may, on ex
parte application, confirm the warrant, and when the warrant
is so confirmed it shall have full force and effect in that other
province as though it had originally been issued in that
province. |
Execution
of warrant in other territorial jurisdictions |
(3)
Subsections 487(2) to (4) and section 488 apply, with such
modifications as the circumstances require, to a warrant issued
under this section. |
Detention
and record of property seized |
(4)
Every person who executes a warrant issued by a judge under this
section shall
(a) detain or cause to be detained
the property seized, taking reasonable care to ensure that the
property is preserved so that it may be dealt with in accordance
with the law;
(b) as soon as practicable after
the execution of the warrant but within a period not exceeding seven
days thereafter, prepare a report in Form 5.3, identifying the
property seized and the location where the property is being
detained, and cause the report to be filed with the clerk of the
court; and
(c) cause a copy of the report to
be provided, on request, to the person from whom the property was
seized and to any other person who, in the opinion of the judge,
appears to have a valid interest in the property. |
|
(4.1)
Subject to this or any other Act of Parliament, a peace officer who
has seized anything under a warrant issued by a judge under this
section may, with the written consent of the Attorney General, on
being issued a receipt for it, return the thing seized to the person
lawfully entitled to its possession, if
(a) the peace officer is satisfied
that there is no dispute as to who is lawfully entitled to
possession of the thing seized;
(b) the peace officer is satisfied
that the continued detention of the thing seized is not required for
the purpose of forfeiture; and
(c) the thing seized is returned
before a report is filed with the clerk of the court under paragraph
(4)(b). |
|
(5)
Before issuing a warrant under this section in relation to any
property, a judge may require notice to be given to and may hear any
person who, in the opinion of the judge, appears to have a valid
interest in the property unless the judge is of the opinion that
giving such notice before the issuance of the warrant would result
in the disappearance, dissipation or reduction in value of the
property or otherwise affect the property so that all or a part
thereof could not be seized pursuant to the warrant. |
Undertakings
by Attorney General |
(6)
Before issuing a warrant under this section, a judge shall require
the Attorney General to give such undertakings as the judge
considers appropriate with respect to the payment of damages or
costs, or both, in relation to the issuance and execution of the
warrant.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 29; 2001, c. 32, s.
14. |
|
462.33 (1)
The Attorney General may make an application in accordance with
subsection (2) for a restraint order under subsection (3) in respect
of any property. |
|
(2) An
application made under subsection (1) for a restraint order under
subsection (3) in respect of any property may be made ex parte and shall be made in
writing to a judge and be accompanied by an affidavit sworn on the
information and belief of the Attorney General or any other person
deposing to the following matters, namely,
(a) the offence or matter under
investigation;
(b) the person who is believed to
be in possession of the property;
(c) the grounds for the belief that
an order of forfeiture may be made under subsection 462.37(1) or
462.38(2) in respect of the property;
(d) a description of the property;
and
(e) whether any previous
applications have been made under this section with respect to the
property. |
|
(3)
Where an application for a restraint order is made to a judge under
subsection (1), the judge may, if satisfied that there are
reasonable grounds to believe that there exists within the province
in which the judge has jurisdiction or any other province, any
property in respect of which an order of forfeiture may be made
under subsection 462.37(1) or 462.38(2), in respect of a designated
offence alleged to have been committed within the province in which
the judge has jurisdiction, make an order prohibiting any person
from disposing of, or otherwise dealing with any interest in, the
property specified in the order otherwise than in such manner as may
be specified in the order. |
Execution
in another province |
(3.01)
Subsections 462.32(2.1) and (2.2) apply, with such modifications as
the circumstances require, in respect of a restraint
order. |
|
(3.1)
A restraint order may be issued under this section in respect of
property situated outside Canada, with any modifications that the
circumstances require. |
|
(4) An
order made by a judge under subsection (3) may be subject to such
reasonable conditions as the judge thinks fit. |
|
(5)
Before making an order under subsection (3) in relation to any
property, a judge may require notice to be given to and may hear any
person who, in the opinion of the judge, appears to have a valid
interest in the property unless the judge is of the opinion that
giving such notice before making the order would result in the
disappearance, dissipation or reduction in value of the property or
otherwise affect the property so that all or a part thereof could
not be subject to an order of forfeiture under subsection 462.37(1)
or 462.38(2). |
|
(6) An
order made under subsection (3) shall be made in writing. |
Undertakings
by Attorney General |
(7)
Before making an order under subsection (3), a judge shall require
the Attorney General to give such undertakings as the judge
considers appropriate with respect to the payment of damages or
costs, or both, in relation to
(a) the making of an order in
respect of property situated within or outside Canada; and
(b) the execution of an order in
respect of property situated within Canada. |
|
(8) A
copy of an order made by a judge under subsection (3) shall be
served on the person to whom the order is addressed in such manner
as the judge directs or as may be prescribed by rules of
court. |
|
(9) A
copy of an order made under subsection (3) shall be registered
against any property in accordance with the laws of the province in
which the property is situated. |
|
(10)
An order made under subsection (3) remains in effect until
(a) it is revoked or varied under
subsection 462.34(4) or revoked under paragraph 462.43(a);
(b) it ceases to be in force under
section 462.35; or
(c) an order of forfeiture or
restoration of the property is made under subsection 462.37(1),
462.38(2) or 462.41(3) or any other provision of this or any other
Act of Parliament. |
|
(11)
Any person on whom an order made under subsection (3) is served in
accordance with this section and who, while the order is in force,
acts in contravention of or fails to comply with the order is guilty
of an indictable offence or an offence punishable on summary
conviction.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1993, c. 37, s. 21; 1996, c. 16, s.
60; 1997, c. 18, s. 30; 2001, c. 32, s. 15. |
|
462.331 (1)
With respect to property seized under section 462.32 or restrained
under section 462.33, other than a controlled substance within the
meaning of the Controlled Drugs and
Substances Act, on application of the Attorney General or of
any other person with the written consent of the Attorney General,
where a judge is of the opinion that the circumstances so require,
the judge may
(a) appoint a person to take
control of and to manage or otherwise deal with all or part of the
property in accordance with the directions of the judge; and
(b) require any person having
possession of that property to give possession of the property to
the person appointed under paragraph (a). |
Appointment
of Minister of Public Works and Government Services |
(2)
When the Attorney General of Canada so requests, a judge appointing
a person under subsection (1) shall appoint the Minister of Public
Works and Government Services. |
|
(3)
The power to manage or otherwise deal with property under subsection
(1) includes
(a) in the case of perishable or
rapidly depreciating property, the power to make an interlocutory
sale of that property; and
(b) in the case of property that
has little or no value, the power to destroy that
property. |
Application
for destruction order |
(4)
Before a person appointed to manage property destroys property that
has little or no value, he or she shall apply to a court for a
destruction order. |
|
(5)
Before making a destruction order in relation to any property, a
court shall require notice in accordance with subsection (6) to be
given to, and may hear, any person who, in the opinion of the court,
appears to have a valid interest in the property. |
|
(6) A
notice shall
(a) be given or served in the
manner that the court directs or that may be specified in the rules
of the court; and
(b) be of any duration that the
court considers reasonable or that may be specified in the rules of
the court. |
|
(7) A
court may order that the property be destroyed if it is satisfied
that the property has little or no value, whether financial or
other. |
When
management order ceases to have effect |
(8) A
management order ceases to have effect when the property that is the
subject of the management order is returned in accordance with the
law to an applicant or forfeited to Her Majesty. |
Application
to vary conditions |
(9)
The Attorney General may at any time apply to the judge to cancel or
vary any condition to which a management order is subject but may
not apply to vary an appointment made under subsection (2).
2001,
c. 32, s. 16. |
|
462.34 (1)
Any person who has an interest in property that was seized under a
warrant issued pursuant to section 462.32 or in respect of which a
restraint order was made under subsection 462.33(3) may, at any
time, apply to a judge
(a) for an order under subsection
(4); or
(b) for permission to examine the
property. |
Notice
to Attorney General |
(2)
Where an application is made under paragraph (1)(a),
(a) the application shall not,
without the consent of the Attorney General, be heard by a judge
unless the applicant has given to the Attorney General at least two
clear days notice in writing of the application; and
(b) the judge may require notice of
the application to be given to and may hear any person who, in the
opinion of the judge, appears to have a valid interest in the
property. |
Terms
of examination order |
(3) A
judge may, on an application made to the judge under paragraph
(1)(b), order that the
applicant be permitted to examine property subject to such terms as
appear to the judge to be necessary or desirable to ensure that the
property is safeguarded and preserved for any purpose for which it
may subsequently be required. |
Order
of restoration of property or revocation or variation of
order |
(4) On
an application made to a judge under paragraph (1)(a) in respect of any property and
after hearing the applicant and the Attorney General and any other
person to whom notice was given pursuant to paragraph (2)(b), the judge may order that the
property or a part thereof be returned to the applicant or, in the
case of a restraint order made under subsection 462.33(3), revoke
the order, vary the order to exclude the property or any interest in
the property or part thereof from the application of the order or
make the order subject to such reasonable conditions as the judge
thinks fit,
(a) if the applicant enters into a
recognizance before the judge, with or without sureties, in such
amount and with such conditions, if any, as the judge directs and,
where the judge considers it appropriate, deposits with the judge
such sum of money or other valuable security as the judge
directs;
(b) if the conditions referred to
in subsection (6) are satisfied; or
(c) for the purpose of
(i)
meeting the reasonable living expenses of the person who was in
possession of the property at the time the warrant was executed or
the order was made or any person who, in the opinion of the judge,
has a valid interest in the property and of the dependants of that
person,
(ii)
meeting the reasonable business and legal expenses of a person
referred to in subparagraph (i), or
(iii)
permitting the use of the property in order to enter into a
recognizance under Part XVI,
if the
judge is satisfied that the applicant has no other assets or means
available for the purposes set out in this paragraph and that no
other person appears to be the lawful owner of or lawfully entitled
to possession of the property. |
|
(5)
For the purpose of determining the reasonableness of legal expenses
referred to in subparagraph (4)(c)(ii), a judge shall hold an
in camera hearing, without
the presence of the Attorney General, and shall take into account
the legal aid tariff of the province. |
|
(5.1)
For the purpose of determining the reasonableness of expenses
referred to in paragraph (4)(c), the Attorney General may
(a) at the hearing of the
application, make representations as to what would constitute the
reasonableness of the expenses, other than legal expenses; and
(b) before or after the hearing of
the application held in
camera pursuant to subsection (5), make representations as to
what would constitute reasonable legal expenses referred to in
subparagraph (4)(c)(ii). |
|
(5.2)
The judge who made an order under paragraph (4)(c) may, and on the application of
the Attorney General shall, tax the legal fees forming part of the
legal expenses referred to in subparagraph (4)(c)(ii) and, in so doing, shall
take into account
(a) the value of property in
respect of which an order of forfeiture may be made;
(b) the complexity of the
proceedings giving rise to those legal expenses;
(c) the importance of the issues
involved in those proceedings;
(d) the duration of any hearings
held in respect of those proceedings;
(e) whether any stage of those
proceedings was improper or vexatious;
(f) any representations made by the
Attorney General; and
(g) any other relevant
matter. |
Conditions
to be satisfied |
(6) An
order under paragraph (4)(b)
in respect of property may be made by a judge if the judge is
satisfied
(a) where the application is made
by
(i) a
person charged with a designated offence, or
(ii)
any person who acquired title to or a right of possession of that
property from a person referred to in subparagraph (i) under
circumstances that give rise to a reasonable inference that the
title or right was transferred from that person for the purpose of
avoiding the forfeiture of the property,
that a
warrant should not have been issued pursuant to section 462.32 or a
restraint order under subsection 462.33(3) should not have been made
in respect of that property, or
(b) in any other case, that the
applicant is the lawful owner of or lawfully entitled to possession
of the property and appears innocent of any complicity in a
designated offence or of any collusion in relation to such an
offence, and that no other person appears to be the lawful owner of
or lawfully entitled to possession of the property,
and that
the property will no longer be required for the purpose of any
investigation or as evidence in any proceeding. |
|
(7)
Section 354 of this Act does not apply to a person who comes into
possession of any property or thing that, pursuant to an order made
under paragraph (4)(c), was
returned to any person after having been seized or was excluded from
the application of a restraint order made under subsection
462.33(3). |
|
(8) A
recognizance entered into pursuant to paragraph (4)(a) may be in Form 32.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, ss. 69, 70; 1997, c. 18,
ss. 31, 140; 2001, c. 32, s. 17. |
|
462.341
Subsection 462.34(2), paragraph 462.34(4)(c) and subsections 462.34(5),
(5.1) and (5.2) apply, with any modifications that the circumstances
require, to a person who has an interest in money or bank-notes that
are seized under this Act or the Controlled Drugs and Substances
Act and in respect of which proceedings may be taken under
subsection 462.37(1) or 462.38(2).
1997,
c. 18, ss. 32, 140; 1999, c. 5, s. 14. |
|
462.35 (1)
Subject to this section, where property has been seized under a
warrant issued pursuant to section 462.32 or a restraint order has
been made under section 462.33 in relation to property, the property
may be detained or the order may continue in force, as the case may
be, for a period not exceeding six months from the seizure or the
making of the order, as the case may be. |
Where
proceedings instituted |
(2)
The property may continue to be detained, or the order may continue
in force, for a period that exceeds six months if proceedings are
instituted in respect of which the thing detained may be
forfeited. |
|
(3)
The property may continue to be detained or the order may continue
in force for a period or periods that exceed six months if the
continuation is, on application made by the Attorney General,
ordered by a judge, where the judge is satisfied that the property
is required, after the expiration of the period or periods, for the
purpose of section 462.37 or 462.38 or any other provision of this
or any other Act of Parliament respecting forfeiture or for the
purpose of any investigation or as evidence in any proceeding.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 33. |
|
462.36 Where
a judge issues a warrant under section 462.32 or makes a restraint
order under section 462.33 in respect of any property, the clerk of
the court shall, when an accused is ordered to stand trial for a
designated offence, cause to be forwarded to the clerk of the court
to which the accused has been ordered to stand trial a copy of the
report filed pursuant to paragraph 462.32(4)(b) or of the restraint order in
respect of the property.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 2001, c. 32, s. 18. |
|
Forfeiture
of Proceeds of Crime |
|
462.37 (1)
Subject to this section and sections 462.39 to 462.41, where an
offender is convicted, or discharged under section 730, of a
designated offence and the court imposing sentence on the offender,
on application of the Attorney General, is satisfied, on a balance
of probabilities, that any property is proceeds of crime and that
the designated offence was committed in relation to that property,
the court shall order that the property be forfeited to Her Majesty
to be disposed of as the Attorney General directs or otherwise dealt
with in accordance with the law. |
Proceeds
of crime derived from other offences |
(2)
Where the evidence does not establish to the satisfaction of the
court that the designated offence of which the offender is
convicted, or discharged under section 730, was committed in
relation to property in respect of which an order of forfeiture
would otherwise be made under subsection (1) but the court is
satisfied, beyond a reasonable doubt, that that property is proceeds
of crime, the court may make an order of forfeiture under subsection
(1) in relation to that property. |
|
(2.1)
An order may be issued under this section in respect of property
situated outside Canada, with any modifications that the
circumstances require. |
Fine
instead of forfeiture |
(3)
Where a court is satisfied that an order of forfeiture under
subsection (1) should be made in respect of any property of an
offender, but that that property or any part thereof or interest
therein cannot be made subject to such an order and, in
particular,
(a) cannot, on the exercise of due
diligence, be located,
(b) has been transferred to a third
party,
(c) is located outside Canada,
(d) has been substantially
diminished in value or rendered worthless, or
(e) has been commingled with other
property that cannot be divided without difficulty,
the
court may, instead of ordering that property or part thereof or
interest therein to be forfeited pursuant to subsection (1), order
the offender to pay a fine in an amount equal to the value of that
property, part or interest. |
Imprisonment
in default of payment of fine |
(4)
Where a court orders an offender to pay a fine pursuant to
subsection (3), the court shall
(a) impose, in default of payment
of that fine, a term of imprisonment
(i)
not exceeding six months, where the amount of the fine does not
exceed ten thousand dollars,
(ii)
of not less than six months and not exceeding twelve months, where
the amount of the fine exceeds ten thousand dollars but does not
exceed twenty thousand dollars,
(iii)
of not less than twelve months and not exceeding eighteen months,
where the amount of the fine exceeds twenty thousand dollars but
does not exceed fifty thousand dollars,
(iv)
of not less than eighteen months and not exceeding two years, where
the amount of the fine exceeds fifty thousand dollars but does not
exceed one hundred thousand dollars,
(v) of
not less than two years and not exceeding three years, where the
amount of the fine exceeds one hundred thousand dollars but does not
exceed two hundred and fifty thousand dollars,
(vi)
of not less than three years and not exceeding five years, where the
amount of the fine exceeds two hundred and fifty thousand dollars
but does not exceed one million dollars, or
(vii)
of not less than five years and not exceeding ten years, where the
amount of the fine exceeds one million dollars; and
(b) direct that the term of
imprisonment imposed pursuant to paragraph (a) be served consecutively to any
other term of imprisonment imposed on the offender or that the
offender is then serving. |
Fine
option program not available to offender |
(5)
Section 736 does not apply to an offender against whom a fine is
imposed pursuant to subsection (3).
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60(F); 1995, c. 22, s.
10; 1999, c. 5, s. 15(F); 2001, c. 32, s. 19. |
|
462.371 (1)
In this section, “order” means an order made under section 462.37 or
462.38. |
|
(2) An
order may be executed anywhere in Canada. |
Filing
of order from another province |
(3)
Where the Attorney General of a province in which property that is
the subject of an order made in another province is situated
receives a certified copy of the order and files it with the
superior court of criminal jurisdiction of the province in which the
property is situated, the order shall be entered as a judgment of
that court. |
Attorney
General of Canada |
(4)
Where the Attorney General of Canada receives a certified copy of an
order made in a province in respect of property situated in another
province and files the order with the superior court of criminal
jurisdiction of the province in which the property is situated, the
order shall be entered as a judgment of that court. |
Effect
of registered order |
(5) An
order has, from the date it is filed in a court of a province under
subsection (3) or (4), the same effect as if it had been an order
originally made by that court. |
|
(6)
Where an order has been filed in a court under subsection (3) or
(4), it shall not be executed before notice in accordance with
subsection 462.41(2) is given to every person who, in the opinion of
the court, appears to have a valid interest in the
property. |
Application
of section 462.42 |
(7)
Section 462.42 applies, with such modifications as the circumstances
require, in respect of a person who claims an interest in property
that is the subject of an order filed under subsection (3) or
(4). |
Application
under section 462.42 to be made in one province |
(8) No
person may make an application under section 462.42 in relation to
property that is the subject of an order filed under subsection (3)
or (4) if that person has previously made an application in respect
of the same property in another province. |
Finding
in one court binding |
(9)
The finding by a court of a province in relation to property that is
the subject of an order filed under subsection (3) or (4) as to
whether or not an applicant referred to in subsection 462.42(4) is
affected by the forfeiture referred to in that subsection or
declaring the nature and extent of the interest of the applicant
under that subsection is binding on the superior court of criminal
jurisdiction of the province where the order is entered as a
judgment.
1997,
c. 18, s. 34. |
|
462.38 (1)
Where an information has been laid in respect of a designated
offence, the Attorney General may make an application to a judge for
an order of forfeiture under subsection (2) in respect of any
property. |
Order
of forfeiture of property |
(2)
Subject to sections 462.39 to 462.41, where an application is made
to a judge under subsection (1), the judge shall, if the judge is
satisfied that
(a) any property is, beyond a
reasonable doubt, proceeds of crime,
(b) proceedings in respect of a
designated offence committed in relation to that property were
commenced, and
(c) the accused charged with the
offence referred to in paragraph (b) has died or absconded,
order
that the property be forfeited to Her Majesty to be disposed of as
the Attorney General directs or otherwise dealt with in accordance
with the law. |
|
(2.1)
An order may be issued under this section in respect of property
situated outside Canada, with any modifications that the
circumstances require. |
|
(3)
For the purposes of this section, a person shall be deemed to have
absconded in connection with a designated offence if
(a) an information has been laid
alleging the commission of the offence by the person,
(b) a warrant for the arrest of the
person or a summons in respect of an organization has been issued in
relation to that information, and
(c) reasonable attempts to arrest
the person pursuant to the warrant or to serve the summons have been
unsuccessful during the period of six months commencing on the day
the warrant or summons was issued, or, in the case of a person who
is not or never was in Canada, the person cannot be brought within
that period to the jurisdiction in which the warrant or summons was
issued,
and the
person shall be deemed to have so absconded on the last day of that
period of six months.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 35; 2001, c. 32, s.
20; 2003, c. 21, s. 7. |
|
462.39 For
the purpose of subsection 462.37(1) or 462.38(2), the court may
infer that property was obtained or derived as a result of the
commission of a designated offence where evidence establishes that
the value, after the commission of that offence, of all the property
of the person alleged to have committed the offence exceeds the
value of all the property of that person before the commission of
that offence and the court is satisfied that the income of that
person from sources unrelated to designated offences committed by
that person cannot reasonably account for such an increase in
value.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 2001, c. 32, s.
21. |
|
462.4 A court
may,
(a) prior to ordering property to
be forfeited under subsection 462.37(1) or 462.38(2), and
(b) in the case of property in
respect of which a restraint order was made under section 462.33,
where the order was served in accordance with subsection
462.33(8),
set
aside any conveyance or transfer of the property that occurred after
the seizure of the property or the service of the order under
section 462.33, unless the conveyance or transfer was for valuable
consideration to a person acting in good faith.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 36(E). |
|
462.41 (1)
Before making an order under subsection 462.37(1) or 462.38(2) in
relation to any property, a court shall require notice in accordance
with subsection (2) to be given to and may hear any person who, in
the opinion of the court, appears to have a valid interest in the
property. |
Service,
duration and contents of notice |
(2) A
notice given under subsection (1) shall
(a) be given or served in such
manner as the court directs or as may be prescribed by the rules of
the court;
(b) be of such duration as the
court considers reasonable or as may be prescribed by the rules of
the court; and
(c) set out the designated offence
charged and a description of the property. |
Order
of restoration of property |
(3)
Where a court is satisfied that any person, other than
(a) a person who is charged with,
or was convicted of, a designated offence, or
(b) a person who acquired title to
or a right of possession of that property from a person referred to
in paragraph (a) under
circumstances that give rise to a reasonable inference that the
title or right was transferred for the purpose of avoiding the
forfeiture of the property,
is the
lawful owner or is lawfully entitled to possession of any property
or any part thereof that would otherwise be forfeited pursuant to
subsection 462.37(1) or 462.38(2) and that the person appears
innocent of any complicity in an offence referred to in paragraph
(a) or of any collusion in
relation to such an offence, the court may order that the property
or part thereof be returned to that person.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, ss.
37, 140; 2001, c. 32, s. 22. |
|
462.42 (1)
Where any property is forfeited to Her Majesty under subsection
462.37(1) or 462.38(2), any person who claims an interest in the
property, other than
(a) a person who is charged with,
or was convicted of, a designated offence that was committed in
relation to the property forfeited, or
(b) a person who acquired title to
or a right of possession of that property from a person referred to
in paragraph (a) under
circumstances that give rise to a reasonable inference that the
title or right was transferred from that person for the purpose of
avoiding the forfeiture of the property,
may,
within thirty days after that forfeiture, apply by notice in writing
to a judge for an order under subsection (4). |
|
(2)
The judge to whom an application is made under subsection (1) shall
fix a day not less than thirty days after the date of filing of the
application for the hearing thereof. |
|
(3) An
applicant shall serve a notice of the application made under
subsection (1) and of the hearing thereof on the Attorney General at
least fifteen days before the day fixed for the hearing. |
Order
declaring interest not subject to forfeiture |
(4)
Where, on the hearing of an application made under subsection (1),
the judge is satisfied that the applicant is not a person referred
to in paragraph (1)(a) or
(b) and appears innocent of
any complicity in any designated offence that resulted in the
forfeiture or of any collusion in relation to any such offence, the
judge may make an order declaring that the interest of the applicant
is not affected by the forfeiture and declaring the nature and
extent of the interest. |
Appeal
from order under subsection (4) |
(5) An
applicant or the Attorney General may appeal to the court of appeal
from an order under subsection (4) and the provisions of Part XXI
with respect to procedure on appeals apply, with such modifications
as the circumstances require, to appeals under this
subsection. |
|
(6)
The Attorney General shall, on application made to the Attorney
General by any person who has obtained an order under subsection (4)
and where the periods with respect to the taking of appeals from
that order have expired and any appeal from that order taken under
subsection (5) has been determined,
(a) direct that the property or the
part thereof to which the interest of the applicant relates be
returned to the applicant; or
(b) direct that an amount equal to
the value of the interest of the applicant, as declared in the
order, be paid to the applicant.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, ss.
38, 140; 2001, c. 32, s. 23. |
|
462.43 (1)
Where property has been seized under a warrant issued pursuant to
section 462.32, a restraint order has been made under section 462.33
in relation to any property or a recognizance has been entered into
pursuant to paragraph 462.34(4)(a) in relation to any property and
a judge, on application made to the judge by the Attorney General or
any person having an interest in the property or on the judge’s own
motion, after notice given to the Attorney General and any other
person having an interest in the property, is satisfied that the
property will no longer be required for the purpose of section
462.37, 462.38 or any other provision of this or any other Act of
Parliament respecting forfeiture or for the purpose of any
investigation or as evidence in any proceeding, the judge
(a) in the case of a restraint
order, shall revoke the order;
(b) in the case of a recognizance,
shall cancel the recognizance; and
(c) in the case of property seized
under a warrant issued pursuant to section 462.32 or property under
the control of a person appointed pursuant to paragraph 462.331(1)(
a),
(i) if
possession of it by the person from whom it was taken is lawful,
shall order that it be returned to that person,
(ii)
if possession of it by the person from whom it was taken is unlawful
and the lawful owner or person who is lawfully entitled to its
possession is known, shall order that it be returned to the lawful
owner or the person who is lawfully entitled to its possession,
or
(iii)
if possession of it by the person from whom it was taken is unlawful
and the lawful owner or person who is lawfully entitled to its
possession is not known, may order that it be forfeited to Her
Majesty, to be disposed of as the Attorney General directs, or
otherwise dealt with in accordance with the law. |
|
(2) An
order may be issued under this section in respect of property
situated outside Canada, with any modifications that the
circumstances require.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 2001, c. 32, s. 24; 2004, c. 12, s.
7. |
|
462.44 Any
person who considers that they are aggrieved by an order made under
subsection 462.38(2) or 462.41(3) or section 462.43 may appeal from
the order as if the order were an appeal against conviction or
against a judgment or verdict of acquittal, as the case may be,
under Part XXI, and that Part applies, with such modifications as
the circumstances require, to such an appeal.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 39. |
|
462.45
Notwithstanding anything in this Part, the operation of an order of
forfeiture or restoration of property under subsection 462.34(4),
462.37(1), 462.38(2) or 462.41(3) or section 462.43 is suspended
pending
(a) any application made in respect
of the property under any of those provisions or any other provision
of this or any other Act of Parliament that provides for the
restoration or forfeiture of such property,
(b) any appeal taken from an order
of forfeiture or restoration in respect of the property, or
(c) any other proceeding in which
the right of seizure of the property is questioned,
and
property shall not be disposed of within thirty days after an order
of forfeiture is made under any of those provisions.
R.S.,
1985, c. 42 (4th Supp.), s. 2. |
|
462.46 (1)
Where any document is returned or ordered to be returned, forfeited
or otherwise dealt with under subsection 462.34(3) or (4),
462.37(1), 462.38(2) or 462.41(3) or section 462.43, the Attorney
General may, before returning the document or complying with the
order, cause a copy of the document to be made and
retained. |
|
(2)
Every copy made under subsection (1) shall, if certified as a true
copy by the Attorney General, be admissible in evidence and, in the
absence of evidence to the contrary, shall have the same probative
force as the original document would have had if it had been proved
in the ordinary way.
R.S.,
1985, c. 42 (4th Supp.), s. 2. |
|
|
|
462.47 For
greater certainty but subject to section 241 of the Income Tax Act, a person is
justified in disclosing to a peace officer or the Attorney General
any facts on the basis of which that person reasonably suspects that
any property is proceeds of crime or that any person has committed
or is about to commit a designated offence.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 2001, c. 32, ss.
25, 82; 2002, c. 13, s. 16(F); 2004, c. 12, s. 8(F). |
|
462.48 (1) In
this section, “designated substance offence” means
(a) an offence under Part I of the
Controlled Drugs and Substances
Act, except subsection 4(1) of that Act; or
(b) a conspiracy or an attempt to
commit, being an accessory after the fact in relation to, or any
counselling in relation to, an offence referred to in paragraph
(a). |
Disclosure
of income tax information |
(1.1)
The Attorney General may make an application in accordance with
subsection (2) for an order for disclosure of information under
subsection (3), for the purposes of an investigation in relation
to
(a) a designated substance
offence;
(b) an offence against section 354
or 462.31 where the offence is alleged to have been committed in
relation to any property, thing or proceeds obtained or derived
directly or indirectly as a result of
(i)
the commission in Canada of a designated substance offence, or
(ii)
an act or omission anywhere that, if it had occurred in Canada,
would have constituted a designated substance offence;
(c) an offence against section
467.11, 467.12 or 467.13 or a conspiracy or an attempt to commit, or
being an accessory after the fact in relation to, such an offence;
or
(d) a terrorism offence. |
|
(2) An
application under subsection (1.1) shall be made ex parte in writing to a judge and
be accompanied by an affidavit sworn on the information and belief
of the Attorney General or a person specially designated by the
Attorney General for that purpose deposing to the following matters,
namely,
(a) the offence or matter under
investigation;
(b) the person in relation to whom
the information or documents referred to in paragraph (c) are required;
(c) the type of information or
book, record, writing, return or other document obtained by or on
behalf of the Minister of National Revenue for the purposes of the
Income Tax Act to which
access is sought or that is proposed to be examined or communicated;
and
(d) the facts relied on to justify
the belief, on reasonable grounds, that the person referred to in
paragraph (b) has committed
or benefited from the commission of an offence referred to in
paragraph (1.1)(a), (b) or (c) and that the information or
documents referred to in paragraph (c) are likely to be of substantial
value, whether alone or together with other material, to the
investigation for the purposes of which the application is
made. |
Order
for disclosure of information |
(3)
Where the judge to whom an application under subsection (1.1) is
made is satisfied
(a) of the matters referred to in
paragraph (2)(d), and
(b) that there are reasonable
grounds for believing that it is in the public interest to allow
access to the information or documents to which the application
relates, having regard to the benefit likely to accrue to the
investigation if the access is obtained,
the
judge may, subject to any conditions that the judge considers
advisable in the public interest, order the Commissioner of Customs
and Revenue or any person specially designated in writing by the
Commissioner for the purposes of this section
(c) to allow a police officer named
in the order access to all such information and documents and to
examine them, or
(d) where the judge considers it
necessary in the circumstances, to produce all such information and
documents to the police officer and allow the police officer to
remove the information and documents,
within
such period after the expiration of seven clear days following the
service of the order pursuant to subsection (4) as the judge may
specify. |
|
(4) A
copy of an order made by a judge under subsection (3) shall be
served on the person to whom the order is addressed in such manner
as the judge directs or as may be prescribed by rules of
court. |
Extension
of period for compliance with order |
(5) A
judge who makes an order under subsection (3) may, on application of
the Minister of National Revenue, extend the period within which the
order is to be complied with. |
Objection
to disclosure of information |
(6)
The Minister of National Revenue or any person specially designated
in writing by that Minister for the purposes of this section may
object to the disclosure of any information or document in respect
of which an order under subsection (3) has been made by certifying
orally or in writing that the information or document should not be
disclosed on the ground that
(a) the Minister of National
Revenue is prohibited from disclosing the information or document by
any bilateral or international treaty, convention or other agreement
respecting taxation to which the Government of Canada is a
signatory;
(b) a privilege is attached by law
to the information or document;
(c) the information or document has
been placed in a sealed package pursuant to law or an order of a
court of competent jurisdiction; or
(d) disclosure of the information
or document would not, for any other reason, be in the public
interest. |
Determination
of objection |
(7)
Where an objection to the disclosure of information or a document is
made under subsection (6), the objection may be determined, on
application, in accordance with subsection (8), by the Chief Justice
of the Federal Court, or by such other judge of that Court as the
Chief Justice may designate to hear such applications. |
Judge
may examine information |
(8) A
judge who is to determine an objection pursuant to subsection (7)
may, if the judge considers it necessary to determine the objection,
examine the information or document in relation to which the
objection is made and shall grant the objection and order that
disclosure of the information or document be refused where the judge
is satisfied of any of the grounds mentioned in subsection
(6). |
|
(9) An
application under subsection (7) shall be made within ten days after
the objection is made or within such greater or lesser period as the
Chief Justice of the Federal Court, or such other judge of that
Court as the Chief Justice may designate to hear such applications,
considers appropriate. |
Appeal
to Federal Court of Appeal |
(10)
An appeal lies from a determination under subsection (7) to the
Federal Court of Appeal. |
Limitation
period for appeal |
(11)
An appeal under subsection (10) shall be brought within ten days
from the date of the determination appealed from or within such
further time as the Federal Court of Appeal considers appropriate in
the circumstances. |
Special
rules for hearings |
(12)
An application under subsection (7) or an appeal brought in respect
of that application shall
(a) be heard in camera; and
(b) on the request of the person
objecting to the disclosure of information, be heard and determined
in the National Capital Region described in the schedule to the
National Capital
Act. |
|
(13)
During the hearing of an application under subsection (7) or an
appeal brought in respect of that application, the person who made
the objection in respect of which the application was made or the
appeal was brought shall, on the request of that person, be given
the opportunity to make representations ex parte. |
|
(14)
When any information or document is examined or provided under
subsection (3), the person by whom it is examined or to whom it is
provided or any officer of the Canada Customs and Revenue Agency may
make, or cause to be made, one or more copies of it, and any copy
purporting to be certified by the Minister of National Revenue or an
authorized person to be a copy made under this subsection is
evidence of the nature and content of the original information or
document and has the same probative force as the original
information or document would have had if it had been proved in the
ordinary way. |
|
(15)
No person to whom information or documents have been disclosed or
provided pursuant to this subsection or pursuant to an order made
under subsection (3) shall further disclose the information or
documents except for the purposes of the investigation in relation
to which the order was made. |
|
(16)
An order made under subsection (3) may be in Form 47. |
Definition
of “police officer” |
(17)
In this section, “police officer” means any officer, constable or
other person employed for the preservation and maintenance of the
public peace.
R.S.,
1985, c. 42 (4th Supp.), s. 2; 1994, c. 13, s. 7; 1996, c. 19, s.
70; 1997, c. 23, s. 10; 1999, c. 17, s. 120; 2001, c. 32, s. 26, c.
41, ss. 15, 133. |
|
Specific
Rules of Forfeiture |
|
462.49 (1)
This Part does not affect the operation of any other provision of
this or any other Act of Parliament respecting the forfeiture of
property. |
Priority
for restitution to victims of crime |
(2)
The property of an offender may be used to satisfy the operation of
a provision of this or any other Act of Parliament respecting the
forfeiture of property only to the extent that it is not required to
satisfy the operation of any other provision of this or any other
Act of Parliament respecting restitution to or compensation of
persons affected by the commission of offences.
R.S.,
1985, c. 42 (4th Supp.), s. 2. |
|
|
|
462.5 The
Attorney General may make regulations governing the manner of
disposing of or otherwise dealing with, in accordance with the law,
property forfeited under this Part.
R.S.,
1985, c. 42 (4th Supp.), s. 2. |
|
PART
XIII
ATTEMPTS — CONSPIRACIES
— ACCESSORIES |
|
463. Except
where otherwise expressly provided by law, the following provisions
apply in respect of persons who attempt to commit or are accessories
after the fact to the commission of offences:
(a) every one who attempts to
commit or is an accessory after the fact to the commission of an
indictable offence for which, on conviction, an accused is liable to
be sentenced to imprisonment for life is guilty of an indictable
offence and liable to imprisonment for a term not exceeding fourteen
years;
(b) every one who attempts to
commit or is an accessory after the fact to the commission of an
indictable offence for which, on conviction, an accused is liable to
imprisonment for fourteen years or less is guilty of an indictable
offence and liable to imprisonment for a term that is one-half of
the longest term to which a person who is guilty of that offence is
liable;
(c) every one who attempts to
commit or is an accessory after the fact to the commission of an
offence punishable on summary conviction is guilty of an offence
punishable on summary conviction; and
(d) every one who attempts to
commit or is an accessory after the fact to the commission of an
offence for which the offender may be prosecuted by indictment or
for which he is punishable on summary conviction
(i) is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding a term that is one-half of the longest term to
which a person who is guilty of that offence is liable, or
(ii)
is guilty of an offence punishable on summary conviction.
R.S.,
1985, c. C-46, s. 463; R.S., 1985, c. 27 (1st Supp.), s. 59; 1998,
c. 35, s. 120. |
|
464. Except
where otherwise expressly provided by law, the following provisions
apply in respect of persons who counsel other persons to commit
offences, namely,
(a) every one who counsels another
person to commit an indictable offence is, if the offence is not
committed, guilty of an indictable offence and liable to the same
punishment to which a person who attempts to commit that offence is
liable; and
(b) every one who counsels another
person to commit an offence punishable on summary conviction is, if
the offence is not committed, guilty of an offence punishable on
summary conviction.
R.S.,
1985, c. C-46, s. 464; R.S., 1985, c. 27 (1st Supp.), s.
60. |
|
465. (1)
Except where otherwise expressly provided by law, the following
provisions apply in respect of conspiracy:
(a) every one who conspires with
any one to commit murder or to cause another person to be murdered,
whether in Canada or not, is guilty of an indictable offence and
liable to a maximum term of imprisonment for life;
(b) every one who conspires with
any one to prosecute a person for an alleged offence, knowing that
he did not commit that offence, is guilty of an indictable offence
and liable
(i) to
imprisonment for a term not exceeding ten years, if the alleged
offence is one for which, on conviction, that person would be liable
to be sentenced to imprisonment for life or for a term not exceeding
fourteen years, or
(ii)
to imprisonment for a term not exceeding five years, if the alleged
offence is one for which, on conviction, that person would be liable
to imprisonment for less than fourteen years;
(c) every one who conspires with
any one to commit an indictable offence not provided for in
paragraph (a) or (b) is guilty of an indictable
offence and liable to the same punishment as that to which an
accused who is guilty of that offence would, on conviction, be
liable; and
(d) every one who conspires with
any one to commit an offence punishable on summary conviction is
guilty of an offence punishable on summary conviction.
(2)
[Repealed, 1985, c. 27 (1st Supp.), s. 61] |
Conspiracy
to commit offences |
(3)
Every one who, while in Canada, conspires with any one to do
anything referred to in subsection (1) in a place outside Canada
that is an offence under the laws of that place shall be deemed to
have conspired to do that thing in Canada. |
|
(4)
Every one who, while in a place outside Canada, conspires with any
one to do anything referred to in subsection (1) in Canada shall be
deemed to have conspired in Canada to do that thing. |
|
(5)
Where a person is alleged to have conspired to do anything that is
an offence by virtue of subsection (3) or (4), proceedings in
respect of that offence may, whether or not that person is in
Canada, be commenced in any territorial division in Canada, and the
accused may be tried and punished in respect of that offence in the
same manner as if the offence had been committed in that territorial
division. |
Appearance
of accused at trial |
(6)
For greater certainty, the provisions of this Act relating to
(a) requirements that an accused
appear at and be present during proceedings, and
(b) the exceptions to those
requirements,
apply to
proceedings commenced in any territorial division pursuant to
subsection (5). |
Where
previously tried outside Canada |
(7)
Where a person is alleged to have conspired to do anything that is
an offence by virtue of subsection (3) or (4) and that person has
been tried and dealt with outside Canada in respect of the offence
in such a manner that, if the person had been tried and dealt with
in Canada, he would be able to plead autrefois acquit, autrefois convict or pardon, the
person shall be deemed to have been so tried and dealt with in
Canada.
R.S.,
1985, c. C-46, s. 465; R.S., 1985, c. 27 (1st Supp.), s. 61; 1998,
c. 35, s. 121. |
|
466. (1) A
conspiracy in restraint of trade is an agreement between two or more
persons to do or to procure to be done any unlawful act in restraint
of trade. |
|
(2)
The purposes of a trade union are not, by reason only that they are
in restraint of trade, unlawful within the meaning of subsection
(1).
R.S.,
1985, c. C-46, s. 466; 1992, c. 1, s. 60(F). |
|
467. (1) No
person shall be convicted of the offence of conspiracy by reason
only that he
(a) refuses to work with a workman
or for an employer; or
(b) does any act or causes any act
to be done for the purpose of a trade combination, unless that act
is an offence expressly punishable by law. |
Definition
of “trade combination” |
(2) In
this section, “trade combination” means any combination between
masters or workmen or other persons for the purpose of regulating or
altering the relations between masters or workmen, or the conduct of
a master or workman in or in respect of his business, employment or
contract of employment or service.
R.S.,
c. C-34, s. 425. |
|
467.1 (1) The
following definitions apply in this Act. |
“criminal organization”
« organisation
criminelle » |
“criminal organization”
means a group, however organized, that
(a) is composed of three or more
persons in or outside Canada; and
(b) has as one of its main purposes
or main activities the facilitation or commission of one or more
serious offences that, if committed, would likely result in the
direct or indirect receipt of a material benefit, including a
financial benefit, by the group or by any of the persons who
constitute the group.
It does not include a
group of persons that forms randomly for the immediate commission of
a single offence. |
“serious offence”
« infraction
grave » |
“serious offence” means an
indictable offence under this or any other Act of Parliament for
which the maximum punishment is imprisonment for five years or more,
or another offence that is prescribed by regulation. |
|
(2)
For the purposes of this section and section 467.11, facilitation of
an offence does not require knowledge of a particular offence the
commission of which is facilitated, or that an offence actually be
committed. |
|
(3) In
this section and in sections 467.11 to 467.13, committing an offence
means being a party to it or counselling any person to be a party to
it. |
|
(4)
The Governor in Council may make regulations prescribing offences
that are included in the definition “serious offence” in subsection
(1).
1997,
c. 23, s. 11; 2001, c. 32, s. 27. |
|
467.11 (1)
Every person who, for the purpose of enhancing the ability of a
criminal organization to facilitate or commit an indictable offence
under this or any other Act of Parliament, knowingly, by act or
omission, participates in or contributes to any activity of the
criminal organization is guilty of an indictable offence and liable
to imprisonment for a term not exceeding five years. |
|
(2) In
a prosecution for an offence under subsection (1), it is not
necessary for the prosecutor to prove that
(a) the criminal organization
actually facilitated or committed an indictable offence;
(b) the participation or
contribution of the accused actually enhanced the ability of the
criminal organization to facilitate or commit an indictable
offence;
(c) the accused knew the specific
nature of any indictable offence that may have been facilitated or
committed by the criminal organization; or
(d) the accused knew the identity
of any of the persons who constitute the criminal
organization. |
|
(3) In
determining whether an accused participates in or contributes to any
activity of a criminal organization, the Court may consider, among
other factors, whether the accused
(a) uses a name, word, symbol or
other representation that identifies, or is associated with, the
criminal organization;
(b) frequently associates with any
of the persons who constitute the criminal organization;
(c) receives any benefit from the
criminal organization; or
(d) repeatedly engages in
activities at the instruction of any of the persons who constitute
the criminal organization.
2001,
c. 32, s. 27. |
|
467.12 (1)
Every person who commits an indictable offence under this or any
other Act of Parliament for the benefit of, at the direction of, or
in association with, a criminal organization is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding fourteen years. |
|
(2) In
a prosecution for an offence under subsection (1), it is not
necessary for the prosecutor to prove that the accused knew the
identity of any of the persons who constitute the criminal
organization.
2001,
c. 32, s. 27. |
|
467.13 (1)
Every person who is one of the persons who constitute a criminal
organization and who knowingly instructs, directly or indirectly,
any person to commit an offence under this or any other Act of
Parliament for the benefit of, at the direction of, or in
association with, the criminal organization is guilty of an
indictable offence and liable to imprisonment for life. |
|
(2) In
a prosecution for an offence under subsection (1), it is not
necessary for the prosecutor to prove that
(a) an offence other than the
offence under subsection (1) was actually committed;
(b) the accused instructed a
particular person to commit an offence; or
(c) the accused knew the identity
of all of the persons who constitute the criminal organization.
2001,
c. 32, s. 27. |
|
467.14 A
sentence imposed on a person for an offence under section 467.11,
467.12 or 467.13 shall be served consecutively to any other
punishment imposed on the person for an offence arising out of the
same event or series of events and to any other sentence to which
the person is subject at the time the sentence is imposed on the
person for an offence under any of those sections.
2001,
c. 32, s. 27. |
|
467.2 (1)
Notwithstanding the definition of “Attorney General” in section 2,
the Attorney General of Canada may conduct proceedings in respect
of
(a) an offence under section
467.11; or
(b) another criminal organization
offence where the alleged offence arises out of conduct that in
whole or in part is in relation to an alleged contravention of an
Act of Parliament or a regulation made under such an Act, other than
this Act or a regulation made under this Act.
For
those purposes, the Attorney General of Canada may exercise all the
powers and perform all the duties and functions assigned to the
Attorney General by or under this Act. |
Powers
of the Attorney General of a province |
(2)
Subsection (1) does not affect the authority of the Attorney General
of a province to conduct proceedings in respect of an offence
referred to in section 467.11, 467.12 or 467.13 or to exercise any
of the powers or perform any of the duties and functions assigned to
the Attorney General by or under this Act.
1997,
c. 23, s. 11; 2001, c. 32, s. 28. |
|
|
|
|
|
468. Every
superior court of criminal jurisdiction has jurisdiction to try any
indictable offence.
R.S.,
c. C-34, s. 426. |
|
469. Every
court of criminal jurisdiction has jurisdiction to try an indictable
offence other than
(a) an offence under any of the
following sections:
(i)
section 47 (treason),
(ii)
section 49 (alarming Her Majesty),
(iii)
section 51 (intimidating Parliament or a legislature),
(iv)
section 53 (inciting to mutiny),
(v)
section 61 (seditious offences),
(vi)
section 74 (piracy),
(vii)
section 75 (piratical acts), or
(viii)
section 235 (murder); |
|
(b) the offence of being an
accessory after the fact to high treason or treason or murder;
(c) an offence under section 119
(bribery) by the holder of a judicial office; |
|
(c.1) an offence under any of
sections 4 to 7 of the Crimes
Against Humanity and War Crimes Act; |
|
(d) the offence of attempting to
commit any offence mentioned in subparagraphs (a)(i) to (vii); or |
|
(e) the offence of conspiring to
commit any offence mentioned in paragraph (a).
R.S.,
1985, c. C-46, s. 469; R.S., 1985, c. 27 (1st Supp.), s. 62; 2000,
c. 24, s. 44. |
|
470. Subject
to this Act, every superior court of criminal jurisdiction and every
court of criminal jurisdiction that has power to try an indictable
offence is competent to try an accused for that offence
(a) if the accused is found, is
arrested or is in custody within the territorial jurisdiction of the
court; or
(b) if the accused has been ordered
to be tried by
(i)
that court, or
(ii)
any other court, the jurisdiction of which has by lawful authority
been transferred to that court.
R.S.,
1985, c. C-46, s. 470; R.S., 1985, c. 27 (1st Supp.), s.
101. |
|
471. Except
where otherwise expressly provided by law, every accused who is
charged with an indictable offence shall be tried by a court
composed of a judge and jury.
R.S.,
c. C-34, s. 429. |
|
472.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 63] |
|
473. (1)
Notwithstanding anything in this Act, an accused charged with an
offence listed in section 469 may, with the consent of the accused
and the Attorney General, be tried without a jury by a judge of a
superior court of criminal jurisdiction. |
Joinder
of other offences |
(1.1)
Where the consent of the accused and the Attorney General is given
in accordance with subsection (1), the judge of the superior court
of criminal jurisdiction may order that any offence be tried by that
judge in conjunction with the offence listed in section
469. |
|
(2)
Notwithstanding anything in this Act, where the consent of an
accused and the Attorney General is given in accordance with
subsection (1), that consent shall not be withdrawn unless both the
accused and the Attorney General agree to the withdrawal.
R.S.,
1985, c. C-46, s. 473; R.S., 1985, c. 27 (1st Supp.), s. 63; 1994,
c. 44, s. 30. |
|
474. (1)
Where the competent authority has determined that a panel of jurors
is not to be summoned for a term or sittings of the court for the
trial of criminal cases in any territorial division, the clerk of
the court may, on the day of the opening of the term or sittings, if
a judge is not present to preside over the court, adjourn the court
and the business of the court to a subsequent day. |
Adjournment
on instructions of judge |
(2) A
clerk of the court for the trial of criminal cases in any
territorial division may, at any time, on the instructions of the
presiding judge or another judge of the court, adjourn the court and
the business of the court to a subsequent day.
R.S.,
1985, c. C-46, s. 474; 1994, c. 44, s. 31. |
|
475. (1)
Notwithstanding any other provision of this Act, where an accused,
whether or not he is charged jointly with another, absconds during
the course of his trial,
(a) he shall be deemed to have
waived his right to be present at his trial, and
(b) the court may
(i)
continue the trial and proceed to a judgment or verdict and, if it
finds the accused guilty, impose a sentence on him in his absence,
or
(ii)
if a warrant in Form 7 is issued for the arrest of the accused,
adjourn the trial to await his appearance,
but
where the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any
time, continue the trial if it is satisfied that it is no longer in
the interests of justice to await the appearance of the
accused. |
|
(2)
Where a court continues a trial pursuant to subsection (1), it may
draw an inference adverse to the accused from the fact that he has
absconded. |
Accused
not entitled to re-opening |
(3)
Where an accused reappears at his trial that is continuing pursuant
to subsection (1), he is not entitled to have any part of the
proceedings that was conducted in his absence re-opened unless the
court is satisfied that because of exceptional circumstances it is
in the interests of justice to re-open the proceedings. |
Counsel
for accused may continue to act |
(4)
Where an accused has absconded during the course of his trial and
the court continues the trial, counsel for the accused is not
thereby deprived of any authority he may have to continue to act for
the accused in the proceedings.
R.S.,
1985, c. C-46, s. 475; R.S., 1985, c. 27 (1st Supp.), s. 185(F), c.
1 (4th Supp.), s. 18(F). |
|
|
|
476. For the
purposes of this Act,
(a) where an offence is committed
in or on any water or on a bridge between two or more territorial
divisions, the offence shall be deemed to have been committed in any
of the territorial divisions;
(b) where an offence is committed
on the boundary of two or more territorial divisions or within five
hundred metres of any such boundary, or the offence was commenced
within one territorial division and completed within another, the
offence shall be deemed to have been committed in any of the
territorial divisions;
(c) where an offence is committed
in or on a vehicle employed in a journey, or on board a vessel
employed on a navigable river, canal or inland water, the offence
shall be deemed to have been committed in any territorial division
through which the vehicle or vessel passed in the course of the
journey or voyage on which the offence was committed, and where the
center or other part of the road, or navigable river, canal or
inland water on which the vehicle or vessel passed in the course of
the journey or voyage is the boundary of two or more territorial
divisions, the offence shall be deemed to have been committed in any
of the territorial divisions;
(d) where an offence is committed
in an aircraft in the course of a flight of that aircraft, it shall
be deemed to have been committed
(i) in
the territorial division in which the flight commenced,
(ii)
in any territorial division over which the aircraft passed in the
course of the flight, or
(iii)
in the territorial division in which the flight ended; and
(e) where an offence is committed
in respect of the mail in the course of its door-to-door delivery,
the offence shall be deemed to have been committed in any
territorial division through which the mail was carried on that
delivery.
R.S.,
1985, c. C-46, s. 476; R.S., 1985, c. 27 (1st Supp.), s. 186; 1992,
c. 1, s. 58. |
|
477. (1) In
sections 477.1 to 477.4, “ship” includes any description of vessel,
boat or craft designed, used or capable of being used solely or
partly for marine navigation, without regard to method or lack of
propulsion. |
|
(2)
Nothing in sections 477.1 to 477.4 limits the operation of any other
Act of Parliament or the jurisdiction that a court may exercise
apart from those sections.
R.S.,
1985, c. C-46, s. 477; 1990, c. 44, s. 15; 1996, c. 31, s.
67. |
|
477.1 Every
person who commits an act or omission that, if it occurred in
Canada, would be an offence under a federal law, within the meaning
of section 2 of the Oceans
Act, is deemed to have committed that act or omission in
Canada if it is an act or omission
(a) in the exclusive economic zone
of Canada that
(i) is
committed by a person who is in the exclusive economic zone of
Canada in connection with exploring or exploiting, conserving or
managing the natural resources, whether living or non-living, of the
exclusive economic zone of Canada, and
(ii)
is committed by or in relation to a person who is a Canadian citizen
or a permanent resident within the meaning of subsection 2(1) of the
Immigration and Refugee Protection
Act;
(b) that is committed in a place in
or above the continental shelf of Canada and that is an offence in
that place by virtue of section 20 of the Oceans Act;
(c) that is committed outside
Canada on board or by means of a ship registered or licensed, or for
which an identification number has been issued, pursuant to any Act
of Parliament;
(d) that is committed outside
Canada in the course of hot pursuit; or
(e) that is committed outside the
territory of any state by a Canadian citizen.
1990,
c. 44, s. 15; 1996, c. 31, s. 68; 2001, c. 27, s. 247. |
|
477.2 (1) No
proceedings in respect of an offence committed in or on the
territorial sea of Canada shall be continued unless the consent of
the Attorney General of Canada is obtained not later than eight days
after the proceedings are commenced, if the accused is not a
Canadian citizen and the offence is alleged to have been committed
on board any ship registered outside Canada. |
|
(1.1)
Subsection (1) does not apply to proceedings by way of summary
conviction. |
Consent
of Attorney General of Canada |
(2) No
proceedings in respect of which courts have jurisdiction by virtue
only of paragraph 477.1(a)
or (b) shall be continued
unless the consent of the Attorney General of Canada is obtained not
later than eight days after the proceedings are commenced, if the
accused is not a Canadian citizen and the offence is alleged to have
been committed on board any ship registered outside
Canada. |
Consent
of Attorney General of Canada |
(3) No
proceedings in respect of which courts have jurisdiction by virtue
only of paragraph 477.1(d)
or (e) shall be continued
unless the consent of the Attorney General of Canada is obtained not
later than eight days after the proceedings are commenced. |
|
(4)
The consent of the Attorney General required by subsection (1), (2)
or (3) must be filed with the clerk of the court in which the
proceedings have been instituted.
1990,
c. 44, s. 15; 1994, c. 44, s. 32; 1996, c. 31, s. 69. |
|
477.3 (1)
Every power of arrest, entry, search or seizure or other power that
could be exercised in Canada in respect of an act or omission
referred to in section 477.1 may be exercised, in the circumstances
referred to in that section,
(a) at the place or on board the
ship or marine installation or structure, within the meaning of
section 2 of the Oceans Act,
where the act or omission occurred; or
(b) where hot pursuit has been
commenced, at any place on the seas, other than a place that is part
of the territorial sea of any other state. |
Arrest,
search, seizure, etc. |
(2) A
justice or judge in any territorial division in Canada has
jurisdiction to authorize an arrest, entry, search or seizure or an
investigation or other ancillary matter related to an offence
(a) committed in or on the
territorial sea of Canada or any area of the sea that forms part of
the internal waters of Canada, or
(b) referred to in section
477.1
in the
same manner as if the offence had been committed in that territorial
division. |
|
(3)
Where an act or omission that is an offence by virtue only of
section 477.1 is alleged to have been committed on board any ship
registered outside Canada, the powers referred to in subsection (1)
shall not be exercised outside Canada with respect to that act or
omission without the consent of the Attorney General of Canada.
1990,
c. 44, s. 15; 1996, c. 31, s. 70. |
|
477.4 (1) and
(2) [Repealed, 1996, c. 31, s. 71] |
|
(3) In
proceedings in respect of an offence,
(a) a certificate referred to in
subsection 23(1) of the Oceans
Act, or
(b) a certificate issued by or
under the authority of the Minister of Foreign Affairs containing a
statement that any geographical location specified in the
certificate was, at any time material to the proceedings, in an area
of a fishing zone of Canada that is not within the internal waters
of Canada or the territorial sea of Canada or outside the territory
of any state,
is
conclusive proof of the truth of the statement without proof of the
signature or official character of the person appearing to have
issued the certificate. |
Certificate
cannot be compelled |
(4) A
certificate referred to in subsection (3) is admissible in evidence
in proceedings referred to in that subsection but its production
cannot be compelled.
1990,
c. 44, s. 15; 1995, c. 5, s. 25; 1996, c. 31, s. 71. |
|
478. (1)
Subject to this Act, a court in a province shall not try an offence
committed entirely in another province. |
|
(2)
Every proprietor, publisher, editor or other person charged with the
publication of a defamatory libel in a newspaper or with conspiracy
to publish a defamatory libel in a newspaper shall be dealt with,
indicted, tried and punished in the province where he resides or in
which the newspaper is printed. |
|
(3) An
accused who is charged with an offence that is alleged to have been
committed in Canada outside the province in which the accused is
may, if the offence is not an offence mentioned in section 469
and
(a) in the case of proceedings
instituted at the instance of the Government of Canada and conducted
by or on behalf of that Government, if the Attorney General of
Canada consents, or
(b) in any other case, if the
Attorney General of the province where the offence is alleged to
have been committed consents,
appear
before a court or judge that would have had jurisdiction to try that
offence if it had been committed in the province where the accused
is, and where the accused consents to plead guilty and pleads guilty
to that offence, the court or judge shall determine the accused to
be guilty of the offence and impose the punishment warranted by law,
but where the accused does not consent to plead guilty and does not
plead guilty, the accused shall, if the accused was in custody prior
to appearance, be returned to custody and shall be dealt with
according to law. |
Where
accused ordered to stand trial |
(4)
Notwithstanding that an accused described in subsection (3) has been
ordered to stand trial or that an indictment has been preferred
against the accused in respect of the offence to which he desires to
plead guilty, the accused shall be deemed simply to stand charged of
that offence without a preliminary inquiry having been conducted or
an indictment having been preferred with respect thereto. |
Definition
of “newspaper” |
(5) In
this section, “newspaper” has the same meaning as in section
297.
R.S.,
1985, c. C-46, s. 478; R.S., 1985, c. 27 (1st Supp.), ss. 64,
101(E); 1994, c. 44, s. 33(E). |
|
479. Where an
accused is charged with an offence that is alleged to have been
committed in the province in which he is, he may, if the offence is
not an offence mentioned in section 469 and
(a) in the case of proceedings
instituted at the instance of the Government of Canada and conducted
by or on behalf of that Government, the Attorney General of Canada
consents, or
(b) in any other case, the Attorney
General of the province where the offence is alleged to have been
committed consents,
appear
before a court or judge that would have had jurisdiction to try that
offence if it had been committed in the place where the accused is,
and where the accused consents to plead guilty and pleads guilty to
that offence, the court or judge shall determine the accused to be
guilty of the offence and impose the punishment warranted by law,
but where the accused does not consent to plead guilty and does not
plead guilty, the accused shall, if the accused was in custody prior
to appearance, be returned to custody and shall be dealt with
according to law.
R.S.,
1985, c. C-46, s. 479; R.S., 1985, c. 27 (1st Supp.), s. 65; 1994,
c. 44, s. 34(E). |
|
480. (1)
Where an offence is committed in an unorganized tract of country in
any province or on a lake, river or other water therein, not
included in a territorial division or in a provisional judicial
district, proceedings in respect thereof may be commenced and an
accused may be charged, tried and punished in respect thereof within
any territorial division or provisional judicial district of the
province in the same manner as if the offence had been committed
within that territorial division or provisional judicial
district. |
|
(2)
Where a provisional judicial district or a new territorial division
is constituted in an unorganized tract referred to in subsection
(1), the jurisdiction conferred by that subsection continues until
appropriate provision is made by law for the administration of
criminal justice within the provisional judicial district or new
territorial division.
R.S.,
c. C-34, s. 436. |
|
481. Where an
offence is committed in a part of Canada not in a province,
proceedings in respect thereof may be commenced and the accused may
be charged, tried and punished within any territorial division in
any province in the same manner as if that offence had been
committed in that territorial division.
R.S.,
c. C-34, s. 437. |
|
481.1 Where
an offence is committed in or on the territorial sea of Canada or
any area of the sea that forms part of the internal waters of
Canada, proceedings in respect thereof may, whether or not the
accused is in Canada, be commenced and an accused may be charged,
tried and punished within any territorial division in Canada in the
same manner as if the offence had been committed in that territorial
division.
1996,
c. 31, s. 72. |
|
481.2 Subject
to this or any other Act of Parliament, where an act or omission is
committed outside Canada and the act or omission, when committed in
those circumstances, is an offence under this or any other Act of
Parliament, proceedings in respect thereof may, whether or not the
accused is in Canada, be commenced, and an accused may be charged,
tried and punished within any territorial division in Canada in the
same manner as if the offence had been committed in that territorial
division.
1996,
c. 31, s. 72. |
|
481.3 For
greater certainty, the provisions of this Act relating to
(a) the requirement of the
appearance of an accused at proceedings, and
(b) the exceptions to that
requirement
apply to
proceedings commenced in any territorial division pursuant to
section 481, 481.1 or 481.2.
1996,
c. 31, s. 72. |
|
|
|
482. (1)
Every superior court of criminal jurisdiction and every court of
appeal may make rules of court not inconsistent with this or any
other Act of Parliament, and any rules so made apply to any
prosecution, proceeding, action or appeal, as the case may be,
within the jurisdiction of that court, instituted in relation to any
matter of a criminal nature or arising from or incidental to any
such prosecution, proceeding, action or appeal. |
|
(2)
The following courts may, subject to the approval of the lieutenant
governor in council of the relevant province, make rules of court
not inconsistent with this Act or any other Act of Parliament that
are applicable to any prosecution, proceeding, including a
preliminary inquiry or proceedings within the meaning of Part XXVII,
action or appeal, as the case may be, within the jurisdiction of
that court, instituted in relation to any matter of a criminal
nature or arising from or incidental to the prosecution, proceeding,
action or appeal:
(a) every court of criminal
jurisdiction for a province;
(b) every appeal court within the
meaning of section 812 that is not a court referred to in subsection
(1);
(c) the Ontario Court of
Justice;
(d) the Court of Quebec and every
municipal court in the Province of Quebec;
(e) the Provincial Court of Nova
Scotia;
(f) the Provincial Court of New
Brunswick;
(g) the Provincial Court of
Manitoba;
(h) the Provincial Court of British
Columbia;
(i) the Provincial Court of Prince
Edward Island;
(j) the Provincial Court of
Saskatchewan;
(k) the Provincial Court of
Alberta;
(l) the Provincial Court of
Newfoundland;
(m) the Territorial Court of
Yukon;
(n) the Territorial Court of the
Northwest Territories; and
(o) the Nunavut Court of
Justice. |
|
(3)
Rules under subsection (1) or (2) may be made
(a) generally to regulate the
duties of the officers of the court and any other matter considered
expedient to attain the ends of justice and carry into effect the
provisions of the law;
(b) to regulate the sittings of the
court or any division thereof, or of any judge of the court sitting
in chambers, except in so far as they are regulated by law;
(c) to regulate the pleading,
practice and procedure in criminal matters, including pre-hearing
conferences held under section 625.1, proceedings with respect to
judicial interim release and preliminary inquiries and, in the case
of rules under subsection (1), proceedings with respect to mandamus, certiorari, habeas corpus, prohibition and
procedendo and proceedings
on an appeal under section 830; and
(d) to carry out the provisions of
this Act relating to appeals from conviction, acquittal or sentence
and, without restricting the generality of this paragraph,
(i)
for furnishing necessary forms and instructions in relation to
notices of appeal or applications for leave to appeal to officials
or other persons requiring or demanding them,
(ii)
for ensuring the accuracy of notes taken at a trial and the
verification of any copy or transcript,
(iii)
for keeping writings, exhibits or other things connected with the
proceedings on the trial,
(iv)
for securing the safe custody of property during the period in which
the operation of an order with respect to that property is suspended
under subsection 689(1), and
(v)
for providing that the Attorney General and counsel who acted for
the Attorney General at the trial be supplied with certified copies
of writings, exhibits and things connected with the proceedings that
are required for the purposes of their duties. |
|
(4)
Rules of court that are made under the authority of this section
shall be published in the Canada
Gazette. |
Regulations
to secure uniformity |
(5)
Notwithstanding anything in this section, the Governor in Council
may make such provision as he considers proper to secure uniformity
in the rules of court in criminal matters, and all uniform rules
made under the authority of this subsection prevail and have effect
as if enacted by this Act.
R.S.,
1985, c. C-46, s. 482; R.S., 1985, c. 27 (1st Supp.), s. 66; 1994,
c. 44, s. 35; 2002, c. 13, s. 17. |
|
482.1 (1) A
court referred to in subsection 482(1) or (2) may make rules for
case management, including rules
(a) for the determination of any
matter that would assist the court in effective and efficient case
management;
(b) permitting personnel of the
court to deal with administrative matters relating to proceedings
out of court if the accused is represented by counsel; and
(c) establishing case management
schedules. |
Compliance
with directions |
(2)
The parties to a case shall comply with any direction made in
accordance with a rule made under subsection (1). |
|
(3) If
rules are made under subsection (1), a court, justice or judge may
issue a summons or warrant to compel the presence of the accused at
case management proceedings. |
|
(4)
Section 512 and subsection 524(1) apply, with any modifications that
the circumstances require, to the issuance of a summons or a warrant
under subsection (3). |
Approval
of lieutenant governor in council |
(5)
Rules made under this section by a court referred to in subsection
482(2) must be approved by the lieutenant governor in council of the
relevant province in order to come into force. |
Subsections
482(4) and (5) to apply |
(6)
Subsections 482(4) and (5) apply, with any modifications that the
circumstances require, to rules made under subsection (1).
2002,
c. 13, s. 18. |
|
PART
XV
SPECIAL PROCEDURE AND
POWERS |
|
General
Powers of Certain Officials |
|
483. Every
judge or provincial court judge authorized by the law of the
province in which he is appointed to do anything that is required to
be done by two or more justices may do alone anything that this Act
or any other Act of Parliament authorizes two or more justices to
do.
R.S.,
1985, c. C-46, s. 483; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
484. Every
judge or provincial court judge has the same power and authority to
preserve order in a court over which he presides as may be exercised
by the superior court of criminal jurisdiction of the province
during the sittings thereof.
R.S.,
1985, c. C-46, s. 484; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
485. (1)
Jurisdiction over an offence is not lost by reason of the failure of
any court, judge, provincial court judge or justice to act in the
exercise of that jurisdiction at any particular time, or by reason
of a failure to comply with any of the provisions of this Act
respecting adjournments or remands. |
|
(1.1)
Jurisdiction over an accused is not lost by reason of the failure of
the accused to appear personally, so long as subsection 515(2.2),
paragraph 537(1)(j), (j.1) or (k), subsection 650(1.1) or (1.2),
paragraph 650(2)(b) or
650.01(3)(a), subsection
683(2.1) or 688(2.1) or a rule of court made under section 482 or
482.1 applies. |
|
(2)
Where jurisdiction over an accused or a defendant is lost and has
not been regained, a court, judge, provincial court judge or justice
may, within three months after the loss of jurisdiction, issue a
summons, or if it or he considers it necessary in the public
interest, a warrant for the arrest of the accused or
defendant. |
Dismissal
for want of prosecution |
(3)
Where no summons or warrant is issued under subsection (2) within
the period provided therein, the proceedings shall be deemed to be
dismissed for want of prosecution and shall not be recommenced
except in accordance with section 485.1. |
|
(4)
Where, in the opinion of the court, judge, provincial court judge or
justice, an accused or a defendant who appears at a proceeding has
been misled or prejudiced by reason of any matter referred to in
subsection (1), the court, judge, provincial court judge or justice
may adjourn the proceeding and may make such order as it or he
considers appropriate. |
|
(5)
The provisions of Part XVI apply with such modifications as the
circumstances require where a summons or warrant is issued under
subsection (2).
R.S.,
1985, c. C-46, s. 485; R.S., 1985, c. 27 (1st Supp.), s. 67; 1992,
c. 1, s. 60(F); 1997, c. 18, s. 40; 2002, c. 13, s. 19. |
|
485.1 Where
an indictment in respect of a transaction is dismissed or deemed by
any provision of this Act to be dismissed for want of prosecution, a
new information shall not be laid and a new indictment shall not be
preferred before any court in respect of the same transaction
without
(a) the personal consent in writing
of the Attorney General or Deputy Attorney General, in any
prosecution conducted by the Attorney General or in which the
Attorney General intervenes; or
(b) the written order of a judge of
that court, in any prosecution conducted by a prosecutor other than
the Attorney General and in which the Attorney General does not
intervene.
R.S.,
1985, c. 27 (1st Supp.), s. 67. |
|
486. (1) Any
proceedings against an accused shall be held in open court, but
where the presiding judge, provincial court judge or justice, as the
case may be, is of the opinion that it is in the interest of public
morals, the maintenance of order or the proper administration of
justice, or that it is necessary to prevent injury to international
relations or national defence or national security, to exclude all
or any members of the public from the court room for all or part of
the proceedings, he or she may so order. |
Protection
of child witnesses |
(1.1)
For the purposes of subsections (1) and (2.3) and for greater
certainty, the “proper administration of justice” includes ensuring
that the interests of witnesses under the age of eighteen years are
safeguarded in proceedings in which the accused is charged with a
sexual offence, an offence against any of sections 271, 272 and 273
or an offence in which violence against the person is alleged to
have been used, threatened or attempted. |
|
(1.2)
In proceedings referred to in subsection (1.1), the presiding judge,
provincial court judge or justice may, on application of the
prosecutor or a witness who, at the time of the trial or preliminary
hearing, is under the age of fourteen years or 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 testifying. |
Witness
not to be a support person |
(1.3)
The presiding judge, provincial court judge or justice shall not
permit a witness in the proceedings referred to in subsection (1.1)
to be a support person unless the presiding judge, provincial court
judge or justice is of the opinion that the proper administration of
justice so requires. |
No
communication while testifying |
(1.4)
The presiding judge, provincial court judge or justice may order
that the support person and the witness not communicate with each
other during the testimony of the witness. |
Protection
of justice system participants |
(1.5)
For the purposes of subsection (1) and for greater certainty, the
“proper administration of justice” includes ensuring the protection
of justice system participants who are involved in the
proceedings. |
|
(2)
Where an accused is charged with an offence mentioned in section 274
and the prosecutor or the accused makes an application for an order
under subsection (1), the presiding judge, provincial court judge or
justice, as the case may be, shall, if no such order is made, state,
by reference to the circumstances of the case, the reason for not
making an order. |
Testimony
outside court room |
(2.1)
Despite section 650, if an accused is charged with an offence under
section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3)
or section 163.1, 170, 171, 172, 173, 210, 211, 212, 213, 266, 267,
268, 271, 272 or 273 and the complainant or any witness, at the time
of the trial or preliminary inquiry, is under the age of eighteen
years or is able to communicate evidence but may have difficulty
doing so by reason of a mental or physical disability, the presiding
judge or justice, as the case may be, may order that the complainant
or witness testify outside the court room or behind a screen or
other device that would allow the complainant or witness not to see
the accused, if the judge or justice is of the opinion that the
exclusion is necessary to obtain a full and candid account of the
acts complained of from the complainant or witness. |
Testimony
outside court room |
(2.101)
Notwithstanding section 650, where an accused is charged with an
offence referred to in subsection (2.102), the presiding judge or
justice, as the case may be, 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. |
|
(2.102)
The offences for the purposes of subsection (2.101) 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;
and
(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). |
Same
procedure for opinion |
(2.11)
Where the judge or justice is of the opinion that it is necessary
for the complainant or witness to testify in order to determine
whether an order under subsection (2.1) or (2.101) should be made in
respect of that complainant or witness, the judge or justice shall
order that the complainant or witness testify pursuant to that
subsection. |
|
(2.2)
A complainant or witness shall not testify outside the court room
pursuant to subsection (2.1), (2.101) or (2.11) unless arrangements
are made for the accused, the judge or justice and the jury to watch
the testimony of the complainant or witness by means of
closed-circuit television or otherwise and the accused is permitted
to communicate with counsel while watching the testimony. |
Accused
not to cross-examine child witness |
(2.3)
In proceedings referred to in subsection (1.1), the accused shall
not personally cross-examine a witness who at the time of the
proceedings is under the age of eighteen years, unless the presiding
judge, provincial court judge or justice is of the opinion that the
proper administration of justice requires the accused to personally
conduct the cross-examination and, if the accused is not personally
conducting the cross-examination, the presiding judge, provincial
court judge or justice shall appoint counsel for the purpose of
conducting the cross-examination. |
Order
restricting publication |
(3)
Subject to subsection (4), the presiding judge or justice may make
an order directing that the identity of a complainant or a witness
and any information that could disclose the identity of the
complainant or witness shall not be published in any document or
broadcast in any way, when an accused is charged with
(a) any of the following
offences:
(i) an
offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171,
172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii)
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
(iii)
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
(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), (ii) and (iii). |
|
(3.1)
An order made under subsection (3) does not apply in respect of the
disclosure of information in the course of the administration of
justice where it is not the purpose of the disclosure to make the
information known in the community. |
Mandatory
order on application |
(4)
The presiding judge or justice shall
(a) at the first reasonable
opportunity, inform any witness under the age of eighteen years and
the complainant to proceedings in respect of an offence mentioned in
subsection (3) of the right to make an application for an order
under subsection (3); and
(b) on application made by the
complainant, the prosecutor or any such witness, make an order under
that subsection. |
|
(4.1)
A judge or justice may, in any proceedings against an accused other
than in respect of an offence set out in subsection (3), make an
order directing that the identity of a victim or witness — or, in
the case of an offence referred to in subsection (4.11), the
identity of a justice system participant who is involved in the
proceedings — or any information that could disclose their identity,
shall not be published in any document or broadcast in any way, if
the judge or justice is satisfied that the order is necessary for
the proper administration of justice. |
|
(4.11)
The offences for the purposes of subsection (4.1) are
(a) an offence under section 423.1
or a criminal organization offence;
(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;
and
(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). |
Order
restricting publication |
(4.2)
An order made under subsection (4.1) does not apply in respect of
the disclosure of information in the course of the administration of
justice if it is not the purpose of the disclosure to make the
information known in the community. |
|
(4.3)
An order under subsection (4.1) may be made on the application of
the prosecutor, a victim or a witness. The application must be made
to the presiding judge or justice or, if the judge or justice has
not been determined, to a judge of a superior court of criminal
jurisdiction in the judicial district where the proceedings will
take place. |
|
(4.4)
The application must be in writing and set out the grounds on which
the applicant relies to establish that the order is necessary for
the proper administration of justice. |
|
(4.5)
The applicant shall provide notice of the application to the
prosecutor, the accused and any other person affected by the order
that the judge or justice specifies. |
|
(4.6)
The judge or justice may hold a hearing to determine whether an
order under subsection (4.1) should be made, and the hearing may be
in private. |
|
(4.7)
In determining whether to make an order under subsection (4.1), the
judge or justice shall consider
(a) the right to a fair and public
hearing;
(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;
(c) whether the victim, witness or
justice system participant needs the order for their security or to
protect them from intimidation or retaliation;
(d) society’s interest in
encouraging the reporting of offences and the participation of
victims, witnesses and justice system participants in the criminal
justice process;
(e) whether effective alternatives
are available to protect the identity of the victim, witness or
justice system participant;
(f) the salutary and deleterious
effects of the proposed order;
(g) the impact of the proposed
order on the freedom of expression of those affected by it; and
(h) any other factor that the judge
or justice considers relevant. |
|
(4.8)
An order made under subsection (4.1) may be subject to any
conditions that the judge or justice thinks fit. |
Publication
of application prohibited |
(4.9)
Unless the presiding judge or justice refuses to make an order under
subsection (4.1), no person shall publish in any document or
broadcast in any way
(a) the contents of an application
referred to in subsection (4.3);
(b) any evidence taken, information
given, or submissions made at a hearing under subsection (4.6);
or
(c) any other information that
could identify the person to whom the application relates as a
victim, witness or justice system participant in the
proceedings. |
Failure
to comply with order |
(5)
Every person who fails to comply with an order made under subsection
(3) or (4.1) is guilty of an offence punishable on summary
conviction.
(6)
[Repealed, R.S., 1985, c. 19 (3rd Supp.), s. 14]
R.S.,
1985, c. C-46, s. 486; R.S., 1985, c. 27 (1st Supp.), s. 203, c. 19
(3rd Supp.), s. 14, c. 23 (4th Supp.), s. 1; 1992, c. 1, s. 60(F),
c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s.
2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c.
13, s. 20. |
|
487. (1) A
justice who is satisfied by information on oath in Form 1 that there
are reasonable grounds to believe that there is in a building,
receptacle or place
(a) anything on or in respect of
which any offence against this Act or any other Act of Parliament
has been or is suspected to have been committed,
(b) anything that there are
reasonable grounds to believe will afford evidence with respect to
the commission of an offence, or will reveal the whereabouts of a
person who is believed to have committed an offence, against this
Act or any other Act of Parliament,
(c) anything that there are
reasonable grounds to believe is intended to be used for the purpose
of committing any offence against the person for which a person may
be arrested without warrant, or
(c.1) any offence-related
property,
may at
any time issue a warrant authorizing a peace officer or a public
officer who has been appointed or designated to administer or
enforce a federal or provincial law and whose duties include the
enforcement of this Act or any other Act of Parliament and who is
named in the warrant
(d) to search the building,
receptacle or place for any such thing and to seize it, and
(e) subject to any other Act of
Parliament, to, as soon as practicable, bring the thing seized
before, or make a report in respect thereof to, the justice or some
other justice for the same territorial division in accordance with
section 489.1. |
Endorsement
of search warrant |
(2)
Where the building, receptacle or place in which anything mentioned
in subsection (1) is believed to be is in any other territorial
division, the justice may issue his warrant in like form modified
according to the circumstances, and the warrant may be executed in
the other territorial division after it has been endorsed, in Form
28, by a justice having jurisdiction in that territorial
division. |
Operation
of computer system and copying equipment |
(2.1)
A person authorized under this section to search a computer system
in a building or place for data may
(a) use or cause to be used any
computer system at the building or place to search any data
contained in or available to the computer system;
(b) reproduce or cause to be
reproduced any data in the form of a print-out or other intelligible
output;
(c) seize the print-out or other
output for examination or copying; and
(d) use or cause to be used any
copying equipment at the place to make copies of the data. |
Duty
of person in possession or control |
(2.2)
Every person who is in possession or control of any building or
place in respect of which a search is carried out under this section
shall, on presentation of the warrant, permit the person carrying
out the search
(a) to use or cause to be used any
computer system at the building or place in order to search any data
contained in or available to the computer system for data that the
person is authorized by this section to search for;
(b) to obtain a hard copy of the
data and to seize it; and
(c) to use or cause to be used any
copying equipment at the place to make copies of the data. |
|
(3) A
search warrant issued under this section may be in the form set out
as Form 5 in Part XXVIII, varied to suit the case. |
|
(4) An
endorsement that is made on a warrant as provided for in subsection
(2) is sufficient authority to the peace officers or public officers
to whom it was originally directed, and to all peace officers within
the jurisdiction of the justice by whom it is endorsed, to execute
the warrant and to deal with the things seized in accordance with
section 489.1 or as otherwise provided by law.
R.S.,
1985, c. C-46, s. 487; R.S., 1985, c. 27 (1st Supp.), s. 68; 1994,
c. 44, s. 36; 1997, c. 18, s. 41, c. 23, s. 12; 1999, c. 5, s.
16. |
|
487.01 (1) A
provincial court judge, a judge of a superior court of criminal
jurisdiction or a judge as defined in section 552 may issue a
warrant in writing authorizing a peace officer to, subject to this
section, use any device or investigative technique or procedure or
do any thing described in the warrant that would, if not authorized,
constitute an unreasonable search or seizure in respect of a person
or a person’s property if
(a) the judge is satisfied by
information on oath in writing that there are reasonable grounds to
believe that an offence against this or any other Act of Parliament
has been or will be committed and that information concerning the
offence will be obtained through the use of the technique, procedure
or device or the doing of the thing;
(b) the judge is satisfied that it
is in the best interests of the administration of justice to issue
the warrant; and
(c) there is no other provision in
this or any other Act of Parliament that would provide for a
warrant, authorization or order permitting the technique, procedure
or device to be used or the thing to be done. |
|
(2)
Nothing in subsection (1) shall be construed as to permit
interference with the bodily integrity of any person. |
Search
or seizure to be reasonable |
(3) A
warrant issued under subsection (1) shall contain such terms and
conditions as the judge considers advisable to ensure that any
search or seizure authorized by the warrant is reasonable in the
circumstances. |
|
(4) A
warrant issued under subsection (1) that authorizes a peace officer
to observe, by means of a television camera or other similar
electronic device, any person who is engaged in activity in
circumstances in which the person has a reasonable expectation of
privacy shall contain such terms and conditions as the judge
considers advisable to ensure that the privacy of the person or of
any other person is respected as much as possible. |
Other
provisions to apply |
(5)
The definition “offence” in section 183 and sections 183.1, 184.2,
184.3 and 185 to 188.2, subsection 189(5), and sections 190, 193 and
194 to 196 apply, with such modifications as the circumstances
require, to a warrant referred to in subsection (4) as though
references in those provisions to interceptions of private
communications were read as references to observations by peace
officers by means of television cameras or similar electronic
devices of activities in circumstances in which persons had
reasonable expectations of privacy. |
Notice
after covert entry |
(5.1)
A warrant issued under subsection (1) that authorizes a peace
officer to enter and search a place covertly shall require, as part
of the terms and conditions referred to in subsection (3), that
notice of the entry and search be given within any time after the
execution of the warrant that the judge considers reasonable in the
circumstances. |
Extension
of period for giving notice |
(5.2)
Where the judge who issues a warrant under subsection (1) or any
other judge having jurisdiction to issue such a warrant is, on the
basis of an affidavit submitted in support of an application to vary
the period within which the notice referred to in subsection (5.1)
is to be given, is satisfied that the interests of justice warrant
the granting of the application, the judge may grant an extension,
or a subsequent extension, of the period, but no extension may
exceed three years. |
|
(6)
Subsections 487(2) and (4) apply, with such modifications as the
circumstances require, to a warrant issued under subsection
(1). |
Telewarrant
provisions to apply |
(7)
Where a peace officer believes that it would be impracticable to
appear personally before a judge to make an application for a
warrant under this section, a warrant may be issued under this
section on an information submitted by telephone or other means of
telecommunication and, for that purpose, section 487.1 applies, with
such modifications as the circumstances require, to the warrant.
1993,
c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13. |
|
487.011 The
following definitions apply in sections 487.012 to
487.017. |
|
“data”
has the same meaning as in subsection 342.1(2). |
|
“document” means any
medium on which is recorded or marked anything that is capable of
being read or understood by a person or a computer system or other
device.
2004,
c. 3, s. 7. |
|
487.012 (1) A
justice or judge may order a person, other than a person under
investigation for an offence referred to in paragraph (3)( a),
(
a) to produce documents, or
copies of them certified by affidavit to be true copies, or to
produce data; or
(
b) to prepare a document
based on documents or data already in existence and produce
it. |
Production
to peace officer |
(2)
The order shall require the documents or data to be produced within
the time, at the place and in the form specified and given
(
a) to a peace officer named
in the order; or
(
b) to a public officer named
in the order, who has been appointed or designated to administer or
enforce a federal or provincial law and whose duties include the
enforcement of this or any other Act of Parliament. |
Conditions
for issuance of order |
(3)
Before making an order, the justice or judge must be satisfied, on
the basis of an ex parte
application containing information on oath in writing, that there
are reasonable grounds to believe that
(
a) an offence against this
Act or any other Act of Parliament has been or is suspected to have
been committed;
(
b) the documents or data
will afford evidence respecting the commission of the offence;
and
(
c) the person who is subject
to the order has possession or control of the documents or
data. |
|
(4)
The order may contain any terms and conditions that the justice or
judge considers advisable in the circumstances, including terms and
conditions to protect a privileged communication between a lawyer
and their client or, in the province of Quebec, between a lawyer or
a notary and their client. |
Power
to revoke, renew or vary order |
(5)
The justice or judge who made the order, or a judge of the same
territorial division, may revoke, renew or vary the order on an
ex parte application made by
the peace officer or public officer named in the order. |
|
(6)
Sections 489.1 and 490 apply, with any modifications that the
circumstances require, in respect of documents or data produced
under this section. |
Probative
force of copies |
(7)
Every copy of a document produced under this section, on proof by
affidavit that it is a true copy, is admissible in evidence in
proceedings under this or any other Act of Parliament and has the
same probative force as the original document would have if it had
been proved in the ordinary way. |
|
(8)
Copies of documents produced under this section need not be
returned.
2004,
c. 3, s. 7. |
|
487.013 (1) A
justice or judge may order a financial institution, as defined in
section 2 of the Bank Act,
or a person or entity referred to in section 5 of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act, unless they are under investigation
for an offence referred to in paragraph (4)(a), to produce in writing the
account number of a person named in the order or the name of a
person whose account number is specified in the order, the status
and type of the account, and the date on which it was opened or
closed. |
Identification
of person named in the order |
(2)
For the purpose of confirming the identity of the person named in
the order or whose account number is specified in the order, the
production order may require the financial institution, person or
entity to produce that person's date of birth, current address and
any previous addresses. |
Production
to peace officer |
(3)
The order shall require the information to be produced within the
time, at the place and in the form specified and given
(a) to a peace officer named in the
order; or
(b) to a public officer named in
the order, who has been appointed or designated to administer or
enforce a federal or provincial law and whose duties include the
enforcement of this or any other Act of Parliament. |
Conditions
for issuance of order |
(4)
Before making an order, the justice or judge must be satisfied, on
the basis of an ex parte
application containing information on oath in writing, that there
are reasonable grounds to suspect that
(a) an offence against this Act or
any other Act of Parliament has been or will be committed;
(b) the information will assist in
the investigation of the offence; and
(c) the institution, person or
entity that is subject to the order has possession or control of the
information. |
|
(5)
The order may contain any terms and conditions that the justice or
judge considers advisable in the circumstances, including terms and
conditions to protect a privileged communication between a lawyer
and their client or, in the province of Quebec, between a lawyer or
a notary and their client. |
Power
to revoke, renew or vary order |
(6)
The justice or judge who made the order, or a judge of the same
territorial division, may revoke, renew or vary the order on an
ex parte application made by
the peace officer or public officer named in the order.
2004,
c. 3, s. 7. |
|
487.014 (1)
For greater certainty, no production order is necessary for a peace
officer or public officer enforcing or administering this or any
other Act of Parliament to ask a person to voluntarily provide to
the officer documents, data or information that the person is not
prohibited by law from disclosing. |
Application
of section 25 |
(2) A
person who provides documents, data or information in the
circumstances referred to in subsection (1) is deemed to be
authorized to do so for the purposes of section 25.
2004,
c. 3, s. 7. |
|
487.015 (1) A
person named in an order made under section 487.012 and a financial
institution, person or entity named in an order made under section
487.013 may, before the order expires, apply in writing to the judge
who issued the order, or a judge of the same territorial division as
the judge or justice who issued the order, for an exemption from the
requirement to produce any document, data or information referred to
in the order. |
|
(2) A
person, financial institution or entity may only make an application
under subsection (1) if they give notice of their intention to do so
to the peace officer or public officer named in the order, within 30
days after it is made. |
|
(3)
The execution of a production order is suspended in respect of any
document, data or information referred to in the application for
exemption until a final decision is made in respect of the
application. |
|
(4)
The judge may grant the exemption if satisfied that
(
a) the document, data or
information would disclose information that is privileged or
otherwise protected from disclosure by law;
(
b) it is unreasonable to
require the applicant to produce the document, data or information;
or
(
c) the document, data or
information is not in the possession or control of the
applicant.
2004,
c. 3, s. 7. |
|
487.016 No
person is excused from complying with an order made under section
487.012 or 487.013 on the ground that the document, data or
information referred to in the order may tend to incriminate them or
subject them to any proceeding or penalty, but no document prepared
by an individual under paragraph 487.012(1)(b) may be used or received in
evidence against that individual in any criminal proceedings
subsequently instituted against them, other than a prosecution under
section 132, 136 or 137.
2004,
c. 3, s. 7. |
|
487.017 A
financial institution, person or entity who does not comply with a
production order made under section 487.012 or 487.013 is guilty of
an offence and liable on summary conviction to a fine not exceeding
$250,000 or imprisonment for a term not exceeding six months, or to
both.
2004,
c. 3, s. 7. |
|
487.02 Where
an authorization is given under section 184.2, 184.3, 186 or 188, a
warrant is issued under this Act or an order is made under
subsection 492.2(2), the judge or justice who gives the
authorization, issues the warrant or makes the order may order any
person to provide assistance, where the person’s assistance may
reasonably be considered to be required to give effect to the
authorization, warrant or order.
1993,
c. 40, s. 15; 1997, c. 18, s. 43. |
|
487.03 (1)
Where
(a) a warrant is issued under
section 487.01, 487.05 or 492.1 or subsection 492.2(1) in one
province,
(b) it may reasonably be expected
that the warrant is to be executed in another province, and
(c) the execution of the warrant
would require entry into or on the property of any person in the
other province or would require that an order be made under section
487.02 with respect to any person in that other province,
a judge
or justice, as the case may be, in the other province may, on
application, endorse the warrant and the warrant, after being so
endorsed, has the same force in that other province as though it had
originally been issued in that other province. |
Execution
in another province — taking of bodily substances |
(2)
When an order or authorization referred to in section 487.051,
487.052, 487.055 or 487.091 is made or granted, and it may
reasonably be expected to be executed in another province, a
provincial court judge of that province may, on application, endorse
the order or authorization in Form 28.1. Once the order or
authorization is endorsed, it has the same force in that province as
though it had originally been issued there.
1993,
c. 40, s. 15; 1995, c. 27, s. 1; 2000, c. 10, s. 13. |
|
|
|
487.04 In
this section and sections 487.05 to 487.09, |
|
“adult” has the meaning
assigned by subsection 2(1) of the Youth Criminal Justice Act
; |
“designated offence”
« infraction
désignée » |
“designated offence” means
a primary designated offence or a secondary designated
offence; |
|
“DNA”
means deoxyribonucleic acid; |
“forensic DNA analysis”
« analyse
génétique » |
“forensic DNA
analysis”
(a) in relation to a bodily
substance that is taken from a person in execution of a warrant
under section 487.05, means forensic DNA analysis of the bodily
substance and the comparison of the results of that analysis with
the results of the analysis of the DNA in the bodily substance
referred to in paragraph 487.05(1)(b), and includes any incidental
tests associated with that analysis, and
(b) in relation to a bodily
substance that is provided voluntarily in the course of an
investigation of a designated offence or taken from a person in
execution of an order under section 487.051 or 487.052 or under an
authorization under section 487.055 or 487.091, or a bodily
substance referred to in paragraph 487.05(1)(b), means forensic DNA analysis of
the bodily substance; |
“primary designated offence”
« infraction
primaire » |
“primary designated
offence” means
(a) an offence under any of the
following provisions, namely,
(i)
section 75 (piratical acts),
(i.01)
section 76 (hijacking),
(i.02)
section 77 (endangering safety of aircraft or airport),
(i.03)
section 78.1 (seizing control of ship or fixed platform),
(i.04)
subsection 81(1) (using explosives),
(i.05)
section 83.18 (participation in activity of terrorist group),
(i.06)
section 83.19 (facilitating terrorist activity),
(i.07)
section 83.2 (commission of offence for terrorist group),
(i.08)
section 83.21 (instructing to carry out activity for terrorist
group),
(i.09)
section 83.22 (instructing to carry out terrorist activity),
(i.1)
section 83.23 (harbouring or concealing),
(i.11)
section 151 (sexual interference),
(ii)
section 152 (invitation to sexual touching),
(iii)
section 153 (sexual exploitation),
(iv)
section 155 (incest),
(v)
subsection 212(4) (offence in relation to juvenile
prostitution),
(vi)
section 233 (infanticide),
(vii)
section 235 (murder),
(viii)
section 236 (manslaughter),
(ix)
section 244 (causing bodily harm with intent),
(x)
section 267 (assault with a weapon or causing bodily harm),
(xi)
section 268 (aggravated assault),
(xii)
section 269 (unlawfully causing bodily harm),
(xiii)
section 271 (sexual assault),
(xiv)
section 272 (sexual assault with a weapon, threats to a third party
or causing bodily harm),
(xv)
section 273 (aggravated sexual assault),
(xvi)
section 279 (kidnapping),
(xvii)
section 279.1 (hostage taking),
(xviii)
section 431 (attack on premises, residence or transport of
internationally protected person),
(xix)
section 431.1 (attack on premises, accommodation or transport of
United Nations or associated personnel), and
(xx)
subsection 431.2(2) (explosive or other lethal device),
(b) an offence under any of the
following provisions of the Criminal Code, chapter C-34 of the
Revised Statutes of Canada, 1970, as they read from time to time
before January 4, 1983, namely,
(i)
section 144 (rape),
(ii)
section 146 (sexual intercourse with female under fourteen and
between fourteen and sixteen), and
(iii)
section 148 (sexual intercourse with feeble-minded, etc.),
(c) an offence under paragraph
153(1)(a) (sexual
intercourse with step-daughter, etc.) of the Criminal Code, chapter C-34 of the
Revised Statutes of Canada, 1970, as it read from time to time
before January 1, 1988,
(c.1) an offence under any of the
following provisions of the Security of Information Act,
namely,
(i)
section 6 (approaching, entering, etc., a prohibited place),
(ii)
subsection 20(1) (threats or violence), and
(iii)
subsection 21(1) (harbouring or concealing), and
(d) an attempt to commit or, other
than for the purposes of subsection 487.05(1), a conspiracy to
commit an offence referred to in any of paragraphs (a) to (c); |
“provincial court judge”
« juge de la cour
provinciale » |
“provincial court judge”,
in relation to a young person, includes a youth justice court judge
within the meaning of subsection 2(1) of the Youth Criminal Justice Act
; |
“secondary designated offence”
« infraction
secondaire » |
“secondary designated
offence” means
(a) an offence under any of the
following provisions, namely,
(i) to
(v) [Repealed, 2001, c. 41, s. 17]
(vi)
subsection 160(3) (bestiality in the presence of or by child),
(vii)
section 163.1 (child pornography),
(viii)
section 170 (parent or guardian procuring sexual activity),
(ix)
section 173 (indecent acts),
(x)
section 220 (causing death by criminal negligence),
(xi)
section 221 (causing bodily harm by criminal negligence),
(xii)
subsection 249(3) (dangerous operation causing bodily harm),
(xiii)
subsection 249(4) (dangerous operation causing death),
(xiv)
section 252 (failure to stop at scene of accident),
(xv)
subsection 255(2) (impaired driving causing bodily harm),
(xvi)
subsection 255(3) (impaired driving causing death),
(xvii)
section 266 (assault),
(xviii)
section 269.1 (torture),
(xix)
paragraph 270(1)(a)
(assaulting a peace officer),
(xx)
[Repealed, 2001, c. 41, s. 17]
(xxi)
section 344 (robbery),
(xxii)
subsection 348(1) (breaking and entering with intent, committing
offence or breaking out),
(xxiii)
subsection 430(2) (mischief that causes actual danger to life),
(xxiv)
section 433 (arson — disregard for human life), and
(xxv)
section 434.1 (arson — own property),
(b) an offence under any of the
following provisions of the Criminal Code, as they read from
time to time before July 1, 1990, namely,
(i)
section 433 (arson), and
(ii)
section 434 (setting fire to other substance), and
(c) an attempt to commit or, other
than for the purposes of subsection 487.05(1), a conspiracy to
commit an offence referred to in paragraph (a) or (b); |
“young person”
« adolescent » |
“young
person” has the meaning assigned by subsection 2(1) of the Youth Criminal Justice Act .
1995,
c. 27, s. 1; 1998, c. 37, s. 15; 2001, c. 41, s. 17; 2002, c. 1, s.
175. |
|
487.05 (1) A
provincial court judge who on ex
parte application made in Form 5.01 is satisfied by
information on oath that there are reasonable grounds to believe
(a) that a designated offence has
been committed,
(b) that a bodily substance has
been found or obtained
(i) at
the place where the offence was committed,
(ii)
on or within the body of the victim of the offence,
(iii)
on anything worn or carried by the victim at the time when the
offence was committed, or
(iv)
on or within the body of any person or thing or at any place
associated with the commission of the offence,
(c) that a person was a party to
the offence, and
(d) that forensic DNA analysis of a
bodily substance from the person will provide evidence about whether
the bodily substance referred to in paragraph (b) was from that person
and who
is satisfied that it is in the best interests of the administration
of justice to do so may issue a warrant in Form 5.02 authorizing the
taking, from that person, for the purpose of forensic DNA analysis,
of any number of samples of one or more bodily substances that is
reasonably required for that purpose, by means of the investigative
procedures described in subsection 487.06(1). |
|
(2) In
considering whether to issue the warrant, the provincial court judge
shall have regard to all relevant matters, including
(a) the nature of the designated
offence and the circumstances of its commission; and
(b) whether there is
(i) a
peace officer who is able, by virtue of training or experience, to
take samples of bodily substances from the person, by means of the
investigative procedures described in subsection 487.06(1), or
(ii)
another person who is able, by virtue of training or experience, to
take, under the direction of a peace officer, samples of bodily
substances from the person, by means of those investigative
procedures. |
|
(3)
Where a peace officer believes that it would be impracticable to
appear personally before a judge to make an application for a
warrant under this section, a warrant may be issued under this
section on an information submitted by telephone or other means of
telecommunication and, for that purpose, section 487.1 applies, with
such modifications as the circumstances require, to the warrant.
1995,
c. 27, s. 1; 1997, c. 18, s. 44; 1998, c. 37, s. 16. |
|
487.051 (1)
Subject to section 487.053, if a person is convicted, discharged
under section 730 or, in the case of a young person, found guilty
under the Young Offenders
Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or
the Youth Criminal Justice
Act of a designated offence, the court
(a) shall, subject to subsection
(2), in the case of a primary designated offence, make an order in
Form 5.03 authorizing the taking, from that person, for the purpose
of forensic DNA analysis, of any number of samples of one or more
bodily substances that is reasonably required for that purpose, by
means of the investigative procedures described in subsection
487.06(1); or
(b) may, in the case of a secondary
designated offence, make an order in Form 5.04 authorizing the
taking of such samples if the court is satisfied that it is in the
best interests of the administration of justice to do so. |
|
(2)
The court is not required to make an order under paragraph (1)(a) if it is satisfied that the
person or young person has established that, were the order made,
the impact on the person’s or young person’s privacy and security of
the person would be grossly disproportionate to the public interest
in the protection of society and the proper administration of
justice, to be achieved through the early detection, arrest and
conviction of offenders. |
|
(3) In
deciding whether to make an order under paragraph (1)(b), the court shall consider the
criminal record of the person or young person, the nature of the
offence and the circumstances surrounding its commission and the
impact such an order would have on the person’s or young person’s
privacy and security of the person and shall give reasons for its
decision.
1998,
c. 37, s. 17; 2002, c. 1, s. 176. |
|
487.052 (1)
Subject to section 487.053, if a person is convicted, discharged
under section 730 or, in the case of a young person, found guilty
under the Young Offenders
Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or
the Youth Criminal Justice
Act, of a designated offence committed before the coming into
force of subsection 5(1) of the DNA
Identification Act, the court may, on application by the
prosecutor, make an order in Form 5.04 authorizing the taking, from
that person or young person, for the purpose of forensic DNA
analysis, of any number of samples of one or more bodily substances
that is reasonably required for that purpose, by means of the
investigative procedures described in subsection 487.06(1), if the
court is satisfied that it is in the best interests of the
administration of justice to do so. |
|
(2) In
deciding whether to make the order, the court shall consider the
criminal record of the person or young person, the nature of the
offence and the circumstances surrounding its commission and the
impact such an order would have on the person’s or young person’s
privacy and security of the person and shall give reasons for its
decision.
1998,
c. 37, s. 17; 2002, c. 1, s. 177. |
|
487.053 An
order shall not be made under section 487.051 or 487.052 if the
prosecutor advises the court that the national DNA data bank,
established under the DNA
Identification Act, contains a DNA profile, within the
meaning of section 2 of that Act, of the person or young person in
question.
1998,
c. 37, s. 17; 2000, c. 10, s. 14. |
|
487.054 The
offender or the prosecutor may appeal from a decision of the court
made under subsection 487.051(1) or 487.052(1).
1998,
c. 37, s. 17. |
|
487.055 (1) A
provincial court judge may, on ex
parte application made in Form 5.05, authorize in Form 5.06
the taking, for the purpose of forensic DNA analysis, of any number
of samples of bodily substances that is reasonably required for that
purpose, by means of the investigative procedures described in
subsection 487.06(1), from a person who, before June 30, 2000,
(a) had been declared a dangerous
offender under Part XXIV;
(b) had been declared a dangerous
offender or a dangerous sexual offender under Part XXI of the Criminal Code, being chapter C-34
of the Revised Statutes of Canada, 1970, as it read from time to
time before January 1, 1988;
(c) had been convicted of
murder;
(d) had been convicted of a sexual
offence within the meaning of subsection (3) and, on the date of the
application, is serving a sentence of imprisonment of at least two
years for that offence; or
(e) had been convicted of
manslaughter and, on the date of the application, is serving a
sentence of imprisonment of at least two years for that
offence. |
|
(2)
The application shall be accompanied by a certificate referred to in
paragraph 667(1)(a) that
establishes that the person is a person referred to in subsection
(1). The certificate may be received in evidence without giving the
notice referred to in subsection 667(4). |
Definition
of “sexual offence” |
(3)
For the purposes of subsection (1), “sexual offence” means
(a) an offence under any of the
following provisions, namely,
(i)
section 151 (sexual interference),
(ii)
section 152 (invitation to sexual touching),
(iii)
section 153 (sexual exploitation),
(iv)
section 155 (incest),
(v)
subsection 212(4) (offence in relation to juvenile
prostitution),
(vi)
section 271 (sexual assault),
(vii)
section 272 (sexual assault with a weapon, threats to a third party
or causing bodily harm), and
(viii)
section 273 (aggravated sexual assault);
(a.1) an offence under subsection
348(1) if the indictable offence referred to in that subsection is a
sexual offence within the meaning of paragraph (a), (b), (c) or (d);
(
b) an offence under any of
the following provisions of the Criminal Code, chapter C-34 of the
Revised Statutes of Canada, 1970, as they read from time to time
before January 4, 1983, namely,
(i)
section 144 (rape),
(ii)
section 146 (sexual intercourse with female under fourteen or
between fourteen and sixteen),
(iii)
section 148 (sexual intercourse with feeble-minded, etc.),
(iv)
section 149 (indecent assault on female),
(v)
section 156 (indecent assault on male), or
(vi)
section 157 (acts of gross indecency);
(c) an offence under paragraph
153(1)(a) (sexual
intercourse with step-daughter, etc.) of the Criminal Code, chapter C-34 of the
Revised Statutes of Canada, 1970, as it read from time to time
before January 1, 1988; and
(d) an attempt to commit an offence
referred to in any of paragraphs (a) to (c). |
|
(3.1)
In deciding whether to grant an authorization under subsection (1),
the court shall consider the person’s criminal record, the nature of
the offence and the circumstances surrounding its commission and the
impact such an authorization would have on the privacy and security
of the person and shall give reasons for its decision. |
|
(4) A
summons shall be directed to a person referred to in subsection (1)
who is on conditional release requiring the person to report at the
place, day and time set out in the summons in order to submit to the
taking from the person of samples of bodily substances under an
authorization granted under that subsection and setting out the
matters referred to in paragraphs 487.07(1)(b) to (e). |
|
(5)
The summons shall be accompanied by a copy of the authorization
referred to in subsection (1) and be served by a peace officer who
shall either deliver it personally to the person to whom it is
directed or, if that person cannot conveniently be found, leave it
for the person at their latest or usual place of residence with any
person found there who appears to be at least sixteen years of
age. |
|
(6)
Service of a summons may be proved by the oral evidence, given under
oath, of the peace officer who served it or by the peace officer’s
affidavit made before a justice of the peace or other person
authorized to administer oaths or to take affidavits. |
|
(7)
The text of subsection (8) shall be set out in the
summons. |
|
(8) If
the person to whom a summons is directed does not report at the
place, day and time set out in the summons, a justice of the peace
may issue a warrant for the arrest of the person in order to allow
the taking of samples of bodily substances from the person under the
authorization. |
Contents
of warrant to arrest |
(9)
The warrant shall name or describe the person and order that the
person be arrested without delay for the purpose of allowing the
taking from them of samples of bodily substances under the
authorization. |
|
(10) A
warrant issued under subsection (8) remains in force until it is
executed and need not be made returnable at any particular time.
1998,
c. 37, s. 17; 2000, c. 10, s. 15; 2005, c. 25, s. 5. |
|
487.056 (1)
Samples of bodily substances referred to in sections 487.051 and
487.052 shall be taken at the time the person is convicted,
discharged under section 730 or, in the case of a young person,
found guilty under the Young
Offenders Act, chapter Y-1 of the Revised Statutes of Canada,
1985, or the Youth Criminal Justice
Act, or as soon as is feasible afterwards, even though an
appeal may have been taken. |
Collection
under authorization |
(2)
Samples of bodily substances referred to in section 487.055 or
487.091 shall be taken as soon as is feasible after the
authorization referred to in that section is granted. |
|
(3)
The samples shall be taken by a peace officer, or another person
acting under the direction of a peace officer, who is able, by
virtue of training or experience, to take them.
1998,
c. 37, s. 17; 2000, c. 10, s. 16; 2002, c. 1, s. 179(E). |
|
487.057 (1) A
peace officer who is authorized to take, or cause to be taken under
the direction of the peace officer, samples of bodily substances
from a person in execution of a warrant under section 487.05 or an
order under section 487.051 or 487.052 or under an authorization
under section 487.055 or 487.091 shall, as soon as is feasible after
the samples have been taken, make a written report in Form 5.07 and
cause the report to be filed with
(a) the provincial court judge who
issued the warrant or granted the authorization, or another judge of
that provincial court; or
(b) the court that made the
order. |
|
(2)
The report shall include
(a) a statement of the time and
date the samples were taken; and
(b) a description of the bodily
substances that were taken.
1998,
c. 37, s. 17; 2000, c. 10, s. 17. |
|
487.058 No
peace officer or person acting under the direction of a peace
officer incurs any criminal or civil liability for anything
necessarily done with reasonable care and skill in the taking of
samples of bodily substances from a person in execution of a warrant
under section 487.05 or an order under section 487.051 or 487.052 or
under an authorization under section 487.055 or 487.091.
1998,
c. 37, s. 17; 2000, c. 10, s. 18. |
|
487.06 (1) A
peace officer or another person under the direction of a peace
officer is authorized to take samples of bodily substances from a
person by a warrant under section 487.05 or an order under section
487.051 or 487.052 or an authorization under section 487.055 or
487.091, by any of the following means:
(a) the plucking of individual
hairs from the person, including the root sheath;
(b) the taking of buccal swabs by
swabbing the lips, tongue and inside cheeks of the mouth to collect
epithelial cells; or
(c) the taking of blood by pricking
the skin surface with a sterile lancet. |
|
(2)
The warrant, order or authorization shall include any terms and
conditions that the provincial court judge or court, as the case may
be, considers advisable to ensure that the taking of the samples
authorized by the warrant, order or authorization is reasonable in
the circumstances. |
|
(3) A
peace officer, or any person acting under a peace officer’s
direction, who is authorized to take samples of bodily substances
from a person by an order under section 487.051 or 487.052 or an
authorization under section 487.055 or 487.091 may take fingerprints
from the person for the purpose of the DNA Identification Act.
1995,
c. 27, s. 1; 1998, c. 37, s. 18; 2000, c. 10, s. 19. |
|
487.07 (1)
Before taking samples of bodily substances from a person, or causing
samples of bodily substances to be taken from a person under the
direction of a peace officer, in execution of a warrant under
section 487.05 or an order under section 487.051 or 487.052 or under
an authorization under section 487.055 or 487.091, the peace officer
shall inform the person from whom the samples are to be taken of
(a) the contents of the warrant,
order or authorization;
(b) the nature of the investigative
procedures by means of which the samples are to be taken;
(c) the purpose of taking the
samples;
(d) the authority of the peace
officer and any other person under the direction of the peace
officer to use as much force as is necessary for the purpose of
taking the samples; and
(d.1) [Repealed, 2000, c. 10, s.
20]
(e) in the case of samples of
bodily substances taken in execution of a warrant,
(i)
the possibility that the results of forensic DNA analysis may be
used in evidence, and
(ii)
if the sample is taken from a young person, the rights of the young
person under subsection (4). |
|
(2) A
person from whom samples of bodily substances are to be taken
may
(a) be detained for that purpose
for a period that is reasonable in the circumstances; and
(b) be required to accompany a
peace officer for that purpose. |
|
(3) A
peace officer who takes samples of bodily substances from a person,
or a person who takes such samples under the direction of a peace
officer, shall ensure that the person’s privacy is respected in a
manner that is reasonable in the circumstances. |
Execution
of warrant against young person |
(4) A
young person against whom a warrant is executed has, in addition to
any other rights arising from his or her detention under the
warrant,
(a) the right to a reasonable
opportunity to consult with, and
(b) the right to have the warrant
executed in the presence of
counsel
and a parent or, in the absence of a parent, an adult relative or,
in the absence of a parent and an adult relative, any other
appropriate adult chosen by the young person. |
Waiver
of rights of young person |
(5) A
young person may waive his or her rights under subsection (4) but
any such waiver
(a) must be recorded on audio tape
or video tape or otherwise; or
(b) must be made in writing and
contain a statement signed by the young person that he or she has
been informed of the right being waived.
1995,
c. 27, ss. 1, 3; 1998, c. 37, s. 19; 2000, c. 10, s. 20. |
|
487.071 (1)
There shall be transmitted to the Commissioner of the Royal Canadian
Mounted Police for entry in the convicted offenders index of the
national DNA data bank established under the DNA Identification Act the results
of forensic DNA analysis of bodily substances that are taken in
execution of an order under section 487.051 or 487.052 or an
authorization under section 487.055 or 487.091. |
Transmission
of bodily substances |
(2)
Any portions of samples of bodily substances referred to in
subsection (1) that are not used in forensic DNA analysis shall be
transmitted to the Commissioner of the Royal Canadian Mounted Police
for the purposes of the DNA
Identification Act.
1998,
c. 37, s. 20; 2000, c. 10, s. 21. |
|
487.08 (1) No
person shall use bodily substances that are taken in execution of a
warrant under section 487.05 or under section 196.12 of the National Defence Act except to use
them for the purpose of forensic DNA analysis in the course of an
investigation of a designated offence. |
Use
of bodily substances — order, authorization |
(1.1)
No person shall use bodily substances that are taken in execution of
an order under section 487.051 or 487.052, under an authorization
under section 487.055 or 487.091, in execution of an order under
section 196.14 or 196.15 of the National Defence Act, or under an
authorization under section 196.24 of that Act except
(a) to use them for the purpose of
forensic DNA analysis; or
(b) to transmit any portions of
samples of those bodily substances that are not used in forensic DNA
analysis to the Commissioner of the Royal Canadian Mounted Police
under subsection 487.071(2). |
|
(2) No
person shall use the results of forensic DNA analysis of bodily
substances that are taken in execution of a warrant under section
487.05 or under section 196.12 of the National Defence Act except
(a) in the course of an
investigation of the designated offence or any other designated
offence in respect of which a warrant was issued or a bodily
substance was found in the circumstances described in paragraph
487.05(1)(b) or in paragraph
196.12(1)(b) of the National Defence Act; or
(b) in any proceeding for such an
offence. |
Use
of results — order, authorization |
(2.1)
No person shall use the results of forensic DNA analysis of bodily
substances that are taken in execution of an order under section
487.051 or 487.052 or under an authorization under section 487.055
or 487.091, or in execution of an order under section 196.14 or
196.15 of the National Defence
Act, or under an authorization under section 196.24 of that
Act, except to transmit them to the Commissioner of the Royal
Canadian Mounted Police. |
|
(3)
Every person who contravenes subsection (1) or (2) is guilty of an
offence punishable on summary conviction. |
|
(4)
Every person who contravenes subsection (1.1) or (2.1)
(a) is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years; or
(b) is guilty of an offence
punishable on summary conviction and liable to a fine not exceeding
$2,000 or to imprisonment for a term not exceeding six months, or to
both.
1995,
c. 27, s. 1; 1998, c. 37, s. 21; 2000, c. 10, s. 22. |
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487.09 (1)
Subject to subsection (2), bodily substances that are taken from a
person in execution of a warrant under section 487.05 and the
results of forensic DNA analysis shall be destroyed or, in the case
of results in electronic form, access to those results shall be
permanently removed, without delay after
(a) the results of that analysis
establish that the bodily substance referred to in paragraph
487.05(1)(b) was not from
that person;
(b) the person is finally acquitted
of the designated offence and any other offence in respect of the
same transaction; or
(c) the expiration of one year
after
(i)
the person is discharged after a preliminary inquiry into the
designated offence or any other offence in respect of the same
transaction,
(ii)
the dismissal, for any reason other than acquittal, or the
withdrawal of any information charging the person with the
designated offence or any other offence in respect of the same
transaction, or
(iii)
any proceeding against the person for the offence or any other
offence in respect of the same transaction is stayed under section
579 or under that section as applied by section 572 or 795,
unless
during that year a new information is laid or an indictment is
preferred charging the person with the designated offence or any
other offence in respect of the same transaction or the proceeding
is recommenced. |
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(2) A
provincial court judge may order that the bodily substances that are
taken from a person and the results of forensic DNA analysis not be
destroyed during any period that the provincial court judge
considers appropriate if the provincial court judge is satisfied
that the bodily substances or results might reasonably be required
in an investigation or prosecution of the person for another
designated offence or of another person for the designated offence
or any other offence in respect of the same transaction. |
Destruction
of bodily substances, etc., voluntarily given |
(3)
Bodily substances that are provided voluntarily by a person and the
results of forensic DNA analysis shall be destroyed or, in the case
of results in electronic form, access to those results shall be
permanently removed, without delay after the results of that
analysis establish that the bodily substance referred to in
paragraph 487.05(1)(b) was
not from that person.
1995,
c. 27, s. 1; 1998, c. 37, s. 22. |
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487.091 (1)
If a DNA profile could not be derived from the bodily substances
that were taken from a person in execution of an order under section
487.051 or 487.052 or under an authorization under section 487.055,
a provincial court judge may, on ex
parte application made in Form 5.08 within a reasonable time
after it is determined that the DNA profile could not be derived,
grant an authorization in Form 5.09 authorizing the taking, from
that person, for the purpose of forensic DNA analysis, of any number
of additional samples of bodily substances that is required for that
purpose, by means of the investigative procedures described in
subsection 487.06(1). |
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(2)
The application shall state the reasons why a DNA profile could not
be derived from the bodily substances that were taken from the
person under the initial order or authorization. |
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(3)
Subsections 487.055(4) to (10) apply, with any modifications that
the circumstances require and without regard to the words “referred
to in subsection (1) who is on conditional release” in subsection
487.055(4), in respect of any person who is not in custody and from
whom bodily substances are authorized to be taken under this
section.
1998,
c. 37, s. 23; 2000, c. 10, s. 23. |
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487.092 (1) A
justice may issue a warrant in writing authorizing a peace officer
to do any thing, or cause any thing to be done under the direction
of the peace officer, described in the warrant in order to obtain
any handprint, fingerprint, footprint, foot impression, teeth
impression or other print or impression of the body or any part of
the body in respect of a person if the justice is satisfied
(a) by information on oath in
writing that there are reasonable grounds to believe that an offence
against this or any other Act of Parliament has been committed and
that information concerning the offence will be obtained by the
print or impression; and
(b) that it is in the best
interests of the administration of justice to issue the
warrant. |
Search
or seizure to be reasonable |
(2) A
warrant issued under subsection (1) shall contain such terms and
conditions as the justice considers advisable to ensure that any
search or seizure authorized by the warrant is reasonable in the
circumstances. |
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(3)
Subsections 487(2) and (4) apply, with such modifications as the
circumstances require, to a warrant issued under subsection
(1). |
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(4)
Where a peace officer believes that it would be impracticable to
appear personally before a justice to make an application for a
warrant under this section, a warrant may be issued under this
section on an information submitted by telephone or other means of
telecommunication and, for that purpose, section 487.1 applies, with
such modifications as the circumstances require, to the warrant.
1997,
c. 18, s. 45; 1998, c. 37, s. 23. |
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Other
Provisions respecting Search Warrants |
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487.1 (1)
Where a peace officer believes that an indictable offence has been
committed and that it would be impracticable to appear personally
before a justice to make application for a warrant in accordance
with section 256 or 487, the peace officer may submit an information
on oath by telephone or other means of telecommunication to a
justice designated for the purpose by the chief judge of the
provincial court having jurisdiction in the matter. |
Information
submitted by telephone |
(2) An
information submitted by telephone or other means of
telecommunication, other than a means of telecommunication that
produces a writing, shall be on oath and shall be recorded verbatim
by the justice, who shall, as soon as practicable, cause to be
filed, with the clerk of the court for the territorial division in
which the warrant is intended for execution, the record or a
transcription of it, certified by the justice as to time, date and
contents. |
Information
submitted by other means of telecommunication |
(2.1)
The justice who receives an information submitted by a means of
telecommunication that produces a writing shall, as soon as
practicable, cause to be filed, with the clerk of the court for the
territorial division in which the warrant is intended for execution,
the information certified by the justice as to time and date of
receipt. |
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(3)
For the purposes of subsection (2), an oath may be administered by
telephone or other means of telecommunication. |
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(3.1)
A peace officer who uses a means of telecommunication referred to in
subsection (2.1) may, instead of swearing an oath, make a statement
in writing stating that all matters contained in the information are
true to his or her knowledge and belief and such a statement is
deemed to be a statement made under oath. |
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(4) An
information submitted by telephone or other means of
telecommunication shall include
(a) a statement of the
circumstances that make it impracticable for the peace officer to
appear personally before a justice;
(b) a statement of the indictable
offence alleged, the place or premises to be searched and the items
alleged to be liable to seizure;
(c) a statement of the peace
officer’s grounds for believing that items liable to seizure in
respect of the offence alleged will be found in the place or
premises to be searched; and
(d) a statement as to any prior
application for a warrant under this section or any other search
warrant, in respect of the same matter, of which the peace officer
has knowledge. |
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(5) A
justice referred to in subsection (1) who is satisfied that an
information submitted by telephone or other means of
telecommunication
(a) is in respect of an indictable
offence and conforms to the requirements of subsection (4),
(b) discloses reasonable grounds
for dispensing with an information presented personally and in
writing, and
(c) discloses reasonable grounds,
in accordance with subsection 256(1) or paragraph 487(1)(a), (b) or (c), as the case may be, for the
issuance of a warrant in respect of an indictable offence,
may
issue a warrant to a peace officer conferring the same authority
respecting search and seizure as may be conferred by a warrant
issued by a justice before whom the peace officer appears personally
pursuant to subsection 256(1) or 487(1), as the case may be, and may
require that the warrant be executed within such time period as the
justice may order. |
Formalities
respecting warrant and facsimiles |
(6)
Where a justice issues a warrant by telephone or other means of
telecommunication, other than a means of telecommunication that
produces a writing,
(a) the justice shall complete and
sign the warrant in Form 5.1, noting on its face the time, date and
place of issuance;
(b) the peace officer, on the
direction of the justice, shall complete, in duplicate, a facsimile
of the warrant in Form 5.1, noting on its face the name of the
issuing justice and the time, date and place of issuance; and
(c) the justice shall, as soon as
practicable after the warrant has been issued, cause the warrant to
be filed with the clerk of the court for the territorial division in
which the warrant is intended for execution. |
Issuance
of warrant where telecommunication produces writing |
(6.1)
Where a justice issues a warrant by a means of telecommunication
that produces a writing,
(a) the justice shall complete and
sign the warrant in Form 5.1, noting on its face the time, date and
place of issuance;
(b) the justice shall transmit the
warrant by the means of telecommunication to the peace officer who
submitted the information and the copy of the warrant received by
the peace officer is deemed to be a facsimile within the meaning of
paragraph (6)(b);
(c) the peace officer shall procure
another facsimile of the warrant; and
(d) the justice shall, as soon as
practicable after the warrant has been issued, cause the warrant to
be filed with the clerk of the court for the territorial division in
which the warrant is intended for execution. |
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(7) A
peace officer who executes a warrant issued by telephone or other
means of telecommunication, other than a warrant issued pursuant to
subsection 256(1), shall, before entering the place or premises to
be searched or as soon as practicable thereafter, give a facsimile
of the warrant to any person present and ostensibly in control of
the place or premises. |
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(8) A
peace officer who, in any unoccupied place or premises, executes a
warrant issued by telephone or other means of telecommunication,
other than a warrant issued pursuant to subsection 256(1), shall, on
entering the place or premises or as soon as practicable thereafter,
cause a facsimile of the warrant to be suitably affixed in a
prominent place within the place or premises. |
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(9) A
peace officer to whom a warrant is issued by telephone or other
means of telecommunication shall file a written report with the
clerk of the court for the territorial division in which the warrant
was intended for execution as soon as practicable but within a
period not exceeding seven days after the warrant has been executed,
which report shall include
(a) a statement of the time and
date the warrant was executed or, if the warrant was not executed, a
statement of the reasons why it was not executed;
(b) a statement of the things, if
any, that were seized pursuant to the warrant and the location where
they are being held; and
(c) a statement of the things, if
any, that were seized in addition to the things mentioned in the
warrant and the location where they are being held, together with a
statement of the peace officer’s grounds for believing that those
additional things had been obtained by, or used in, the commission
of an offence. |
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(10)
The clerk of the court shall, as soon as practicable, cause the
report, together with the information and the warrant to which it
pertains, to be brought before a justice to be dealt with, in
respect of the things seized referred to in the report, in the same
manner as if the things were seized pursuant to a warrant issued, on
an information presented personally by a peace officer, by that
justice or another justice for the same territorial
division. |
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(11)
In any proceeding in which it is material for a court to be
satisfied that a search or seizure was authorized by a warrant
issued by telephone or other means of telecommunication, the absence
of the information or warrant, signed by the justice and carrying on
its face a notation of the time, date and place of issuance, is, in
the absence of evidence to the contrary, proof that the search or
seizure was not authorized by a warrant issued by telephone or other
means of telecommunication. |
Duplicates
and facsimiles acceptable |
(12) A
duplicate or a facsimile of an information or a warrant has the same
probative force as the original for the purposes of subsection
(11).
R.S.,
1985, c. 27 (1st Supp.), s. 69; 1992, c. 1, ss. 58, 59(E), 60(F);
1994, c. 44, s. 37. |
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487.11 A
peace officer, or a public officer who has been appointed or
designated to administer or enforce any federal or provincial law
and whose duties include the enforcement of this or any other Act of
Parliament, may, in the course of his or her duties, exercise any of
the powers described in subsection 487(1) or 492.1(1) without a
warrant if the conditions for obtaining a warrant exist but by
reason of exigent circumstances it would be impracticable to obtain
a warrant.
1997,
c. 18, s. 46. |
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487.2 (1)
Where a search warrant is issued under section 487 or 487.1 or a
search is made under such a warrant, every one who publishes in any
newspaper or broadcasts any information with respect to
(a) the location of the place
searched or to be searched, or
(b) the identity of any person who
is or appears to occupy or be in possession or control of that place
or who is suspected of being involved in any offence in relation to
which the warrant was issued,
without
the consent of every person referred to in paragraph (b) is, unless a charge has been
laid in respect of any offence in relation to which the warrant was
issued, guilty of an offence punishable on summary
conviction. |
Definition
of “newspaper” |
(2) In
this section, “newspaper” has the same meaning as in section
297.
R.S.,
1985, c. 27 (1st Supp.), s. 69. |
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487.3 (1) A
judge or justice may, on application made at the time of issuing a
warrant under this or any other Act of Parliament or a production
order under section 487.012 or 487.013, or of granting an
authorization to enter a dwelling-house under section 529 or an
authorization under section 529.4 or at any time thereafter, make an
order prohibiting access to and the disclosure of any information
relating to the warrant, production order or authorization on the
ground that
(a) the ends of justice would be
subverted by the disclosure for one of the reasons referred to in
subsection (2) or the information might be used for an improper
purpose; and
(b) the ground referred to in
paragraph (a) outweighs in
importance the access to the information. |
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(2)
For the purposes of paragraph (1)(a), an order may be made under
subsection (1) on the ground that the ends of justice would be
subverted by the disclosure
(a) if disclosure of the
information would
(i)
compromise the identity of a confidential informant,
(ii)
compromise the nature and extent of an ongoing investigation,
(iii)
endanger a person engaged in particular intelligence-gathering
techniques and thereby prejudice future investigations in which
similar techniques would be used, or
(iv)
prejudice the interests of an innocent person; and
(b) for any other sufficient
reason. |
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(3)
Where an order is made under subsection (1), all documents relating
to the application shall, subject to any terms and conditions that
the justice or judge considers desirable in the circumstances,
including, without limiting the generality of the foregoing, any
term or condition concerning the duration of the prohibition,
partial disclosure of a document, deletion of any information or the
occurrence of a condition, be placed in a packet and sealed by the
justice or judge immediately on determination of the application,
and that packet shall be kept in the custody of the court in a place
to which the public has no access or in any other place that the
justice or judge may authorize and shall not be dealt with except in
accordance with the terms and conditions specified in the order or
as varied under subsection (4). |
Application
for variance of order |
(4) An
application to terminate the order or vary any of its terms and
conditions may be made to the justice or judge who made the order or
a judge of the court before which any proceedings arising out of the
investigation in relation to which the warrant or production order
was obtained may be held.
1997,
c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8. |
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488. A
warrant issued under section 487 or 487.1 shall be executed by day,
unless
(a) the justice is satisfied that
there are reasonable grounds for it to be executed by night;
(b) the reasonable grounds are
included in the information; and
(c) the warrant authorizes that it
be executed by night.
R.S.,
1985, c. C-46, s. 488; R.S., 1985, c. 27 (1st Supp.), s. 70; 1997,
c. 18, s. 47. |
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488.1 (1) In
this section, |
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“custodian” means a person
in whose custody a package is placed pursuant to subsection
(2); |
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“document”, for the
purposes of this section, has the same meaning as in section
321; |
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“judge” means a judge of a
superior court of criminal jurisdiction of the province where the
seizure was made; |
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“lawyer” means, in the
Province of Quebec, an advocate, lawyer or notary and, in any other
province, a barrister or solicitor; |
“officer”
« fonctionnaire » |
“officer” means a peace
officer or public officer. |
Examination
or seizure of certain documents where privilege claimed |
(2)
Where an officer acting under the authority of this or any other Act
of Parliament is about to examine, copy or seize a document in the
possession of a lawyer who claims that a named client of his has a
solicitor-client privilege in respect of that document, the officer
shall, without examining or making copies of the document,
(a) seize the document and place it
in a package and suitably seal and identify the package; and
(b) place the package in the
custody of the sheriff of the district or county in which the
seizure was made or, if there is agreement in writing that a
specified person act as custodian, in the custody of that
person. |
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(3)
Where a document has been seized and placed in custody under
subsection (2), the Attorney General or the client or the lawyer on
behalf of the client, may
(a) within fourteen days from the
day the document was so placed in custody, apply, on two days notice
of motion to all other persons entitled to make application, to a
judge for an order
(i)
appointing a place and a day, not later than twenty-one days after
the date of the order, for the determination of the question whether
the document should be disclosed, and
(ii)
requiring the custodian to produce the document to the judge at that
time and place;
(b) serve a copy of the order on
all other persons entitled to make application and on the custodian
within six days of the date on which it was made; and
(c) if he has proceeded as
authorized by paragraph (b),
apply, at the appointed time and place, for an order determining the
question. |
Disposition
of application |
(4) On
an application under paragraph (3)(c), the judge
(a) may, if the judge considers it
necessary to determine the question whether the document should be
disclosed, inspect the document;
(b) where the judge is of the
opinion that it would materially assist him in deciding whether or
not the document is privileged, may allow the Attorney General to
inspect the document;
(c) shall allow the Attorney
General and the person who objects to the disclosure of the document
to make representations; and
(d) shall determine the question
summarily and,
(i) if
the judge is of the opinion that the document should not be
disclosed, ensure that it is repackaged and resealed and order the
custodian to deliver the document to the lawyer who claimed the
solicitor-client privilege or to the client, or
(ii)
if the judge is of the opinion that the document should be
disclosed, order the custodian to deliver the document to the
officer who seized the document or some other person designated by
the Attorney General, subject to such restrictions or conditions as
the judge deems appropriate,
and
shall, at the same time, deliver concise reasons for the
determination in which the nature of the document is described
without divulging the details thereof. |
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(5)
Where the judge determines pursuant to paragraph (4)(d) that a solicitor-client
privilege exists in respect of a document, whether or not the judge
has, pursuant to paragraph (4)(b), allowed the Attorney General
to inspect the document, the document remains privileged and
inadmissible as evidence unless the client consents to its admission
in evidence or the privilege is otherwise lost. |
Order
to custodian to deliver |
(6)
Where a document has been seized and placed in custody under
subsection (2) and a judge, on the application of the Attorney
General, is satisfied that no application has been made under
paragraph (3)(a) or that
following such an application no further application has been made
under paragraph (3)(c), the
judge shall order the custodian to deliver the document to the
officer who seized the document or to some other person designated
by the Attorney General. |
Application
to another judge |
(7)
Where the judge to whom an application has been made under paragraph
(3)(c) cannot act or
continue to act under this section for any reason, subsequent
applications under that paragraph may be made to another
judge. |
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(8) No
officer shall examine, make copies of or seize any document without
affording a reasonable opportunity for a claim of solicitor-client
privilege to be made under subsection (2). |
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(9) At
any time while a document is in the custody of a custodian under
this section, a judge may, on an ex
parte application of a person claiming a solicitor-client
privilege under this section, authorize that person to examine the
document or make a copy of it in the presence of the custodian or
the judge, but any such authorization shall contain provisions to
ensure that the document is repackaged and that the package is
resealed without alteration or damage. |
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(10)
An application under paragraph (3)(c) shall be heard in
private. |
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(11)
This section does not apply in circumstances where a claim of
solicitor-client privilege may be made under the Income Tax Act or under the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act.
R.S.,
1985, c. 27 (1st Supp.), s. 71; 2000, c. 17, s. 89; 2001, c. 41, s.
80. |
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489. (1)
Every person who executes a warrant may seize, in addition to the
things mentioned in the warrant, any thing that the person believes
on reasonable grounds
(a) has been obtained by the
commission of an offence against this or any other Act of
Parliament;
(b) has been used in the commission
of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect
of an offence against this or any other Act of Parliament. |
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(2)
Every peace officer, and every public officer who has been appointed
or designated to administer or enforce any federal or provincial law
and whose duties include the enforcement of this or any other Act of
Parliament, who is lawfully present in a place pursuant to a warrant
or otherwise in the execution of duties may, without a warrant,
seize any thing that the officer believes on reasonable grounds
(a) has been obtained by the
commission of an offence against this or any other Act of
Parliament;
(b) has been used in the commission
of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect
of an offence against this or any other Act of Parliament.
R.S.,
1985, c. C-46, s. 489; R.S., 1985, c. 27 (1st Supp.), s. 72, c. 42
(4th Supp.), s. 3; 1993, c. 40, s. 16; 1997, c. 18, s. 48. |
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489.1 (1)
Subject to this or any other Act of Parliament, where a peace
officer has seized anything under a warrant issued under this Act or
under section 487.11 or 489 or otherwise in the execution of duties
under this or any other Act of Parliament, the peace officer shall,
as soon as is practicable,
(a) where the peace officer is
satisfied,
(i)
that there is no dispute as to who is lawfully entitled to
possession of the thing seized, and
(ii)
that the continued detention of the thing seized is not required for
the purposes of any investigation or a preliminary inquiry, trial or
other proceeding,
return
the thing seized, on being issued a receipt therefor, to the person
lawfully entitled to its possession and report to the justice who
issued the warrant or some other justice for the same territorial
division or, if no warrant was issued, a justice having jurisdiction
in respect of the matter, that he has done so; or
(b) where the peace officer is not
satisfied as described in subparagraphs (a)(i) and (ii),
(i)
bring the thing seized before the justice referred to in paragraph
(a), or
(ii)
report to the justice that he has seized the thing and is detaining
it or causing it to be detained
to be
dealt with by the justice in accordance with subsection
490(1). |
Restitution
of property or report by peace officer |
(2)
Subject to this or any other Act of Parliament, where a person,
other than a peace officer, has seized anything under a warrant
issued under this Act or under section 487.11 or 489 or otherwise in
the execution of duties under this or any other Act of Parliament,
that person shall, as soon as is practicable,
(a) bring the thing seized before
the justice who issued the warrant or some other justice for the
same territorial division or, if no warrant was issued, before a
justice having jurisdiction in respect of the matter, or
(b) report to the justice referred
to in paragraph (a) that he
has seized the thing and is detaining it or causing it to be
detained,
to be
dealt with by the justice in accordance with subsection
490(1). |
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(3) A
report to a justice under this section shall be in the form set out
as Form 5.2 in Part XXVIII, varied to suit the case and shall
include, in the case of a report in respect of a warrant issued by
telephone or other means of telecommunication, the statements
referred to in subsection 487.1(9).
R.S.,
1985, c. 27 (1st Supp.), s. 72; 1993, c. 40, s. 17; 1997, c. 18, s.
49. |
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490. (1)
Subject to this or any other Act of Parliament, where, pursuant to
paragraph 489.1(1)(b) or
subsection 489.1(2), anything that has been seized is brought before
a justice or a report in respect of anything seized is made to a
justice, the justice shall,
(a) where the lawful owner or
person who is lawfully entitled to possession of the thing seized is
known, order it to be returned to that owner or person, unless the
prosecutor, or the peace officer or other person having custody of
the thing seized, satisfies the justice that the detention of the
thing seized is required for the purposes of any investigation or a
preliminary inquiry, trial or other proceeding; or
(b) where the prosecutor, or the
peace officer or other person having custody of the thing seized,
satisfies the justice that the thing seized should be detained for a
reason set out in paragraph (a), detain the thing seized or
order that it be detained, taking reasonable care to ensure that it
is preserved until the conclusion of any investigation or until it
is required to be produced for the purposes of a preliminary
inquiry, trial or other proceeding. |
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(2)
Nothing shall be detained under the authority of paragraph (1)(b) for a period of more than three
months after the day of the seizure, or any longer period that ends
when an application made under paragraph (a) is decided, unless
(a) a justice, on the making of a
summary application to him after three clear days notice thereof to
the person from whom the thing detained was seized, is satisfied
that, having regard to the nature of the investigation, its further
detention for a specified period is warranted and the justice so
orders; or
(b) proceedings are instituted in
which the thing detained may be required. |
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(3)
More than one order for further detention may be made under
paragraph (2)(a) but the
cumulative period of detention shall not exceed one year from the
day of the seizure, or any longer period that ends when an
application made under paragraph (a) is decided, unless
(a) a judge of a superior court of
criminal jurisdiction or a judge as defined in section 552, on the
making of a summary application to him after three clear days notice
thereof to the person from whom the thing detained was seized, is
satisfied, having regard to the complex nature of the investigation,
that the further detention of the thing seized is warranted for a
specified period and subject to such other conditions as the judge
considers just, and the judge so orders; or
(b) proceedings are instituted in
which the thing detained may be required. |
Detention
without application where consent |
(3.1)
A thing may be detained under paragraph (1)(b) for any period, whether or not
an application for an order under subsection (2) or (3) is made, if
the lawful owner or person who is lawfully entitled to possession of
the thing seized consents in writing to its detention for that
period. |
When
accused ordered to stand trial |
(4)
When an accused has been ordered to stand trial, the justice shall
forward anything detained pursuant to subsections (1) to (3) to the
clerk of the court to which the accused has been ordered to stand
trial to be detained by the clerk of the court and disposed of as
the court directs. |
Where
continued detention no longer required |
(5)
Where at any time before the expiration of the periods of detention
provided for or ordered under subsections (1) to (3) in respect of
anything seized, the prosecutor, or the peace officer or other
person having custody of the thing seized, determines that the
continued detention of the thing seized is no longer required for
any purpose mentioned in subsection (1) or (4), the prosecutor,
peace officer or other person shall apply to
(a) a judge of a superior court of
criminal jurisdiction or a judge as defined in section 552, where a
judge ordered its detention under subsection (3), or
(b) a justice, in any other
case,
who
shall, after affording the person from whom the thing was seized or
the person who claims to be the lawful owner thereof or person
entitled to its possession, if known, an opportunity to establish
that he is lawfully entitled to the possession thereof, make an
order in respect of the property under subsection (9). |
|
(6)
Where the periods of detention provided for or ordered under
subsections (1) to (3) in respect of anything seized have expired
and proceedings have not been instituted in which the thing detained
may be required, the prosecutor, peace officer or other person shall
apply to a judge or justice referred to in paragraph (5)(a) or (b) in the circumstances set out in
that paragraph, for an order in respect of the property under
subsection (9) or (9.1). |
Application
for order of return |
(7) A
person from whom anything has been seized may, after the expiration
of the periods of detention provided for or ordered under
subsections (1) to (3) and on three clear days notice to the
Attorney General, apply summarily to
(a) a judge of a superior court of
criminal jurisdiction or a judge as defined in section 552, where a
judge ordered the detention of the thing seized under subsection
(3), or
(b) a justice, in any other
case,
for an
order under paragraph (9)(c)
that the thing seized be returned to the applicant. |
|
(8) A
judge of a superior court of criminal jurisdiction or a judge as
defined in section 552, where a judge ordered the detention of the
thing seized under subsection (3), or a justice, in any other case,
may allow an application to be made under subsection (7) prior to
the expiration of the periods referred to therein where he is
satisfied that hardship will result unless the application is so
allowed. |
Disposal
of things seized |
(9)
Subject to this or any other Act of Parliament, if
(a) a judge referred to in
subsection (7), where a judge ordered the detention of anything
seized under subsection (3), or
(b) a justice, in any other
case,
is
satisfied that the periods of detention provided for or ordered
under subsections (1) to (3) in respect of anything seized have
expired and proceedings have not been instituted in which the thing
detained may be required or, where those periods have not expired,
that the continued detention of the thing seized will not be
required for any purpose mentioned in subsection (1) or (4), he
shall
(c) if possession of it by the
person from whom it was seized is lawful, order it to be returned to
that person, or
(d) if possession of it by the
person from whom it was seized is unlawful and the lawful owner or
person who is lawfully entitled to its possession is known, order it
to be returned to the lawful owner or to the person who is lawfully
entitled to its possession,
and may,
if possession of it by the person from whom it was seized is
unlawful, or if it was seized when it was not in the possession of
any person, and the lawful owner or person who is lawfully entitled
to its possession is not known, order it to be forfeited to Her
Majesty, to be disposed of as the Attorney General directs, or
otherwise dealt with in accordance with the law. |
|
(9.1)
Notwithstanding subsection (9), a judge or justice referred to in
paragraph (9)(a) or (b) may, if the periods of
detention provided for or ordered under subsections (1) to (3) in
respect of a thing seized have expired but proceedings have not been
instituted in which the thing may be required, order that the thing
continue to be detained for such period as the judge or justice
considers necessary if the judge or justice is satisfied
(a) that the continued detention of
the thing might reasonably be required for a purpose mentioned in
subsection (1) or (4); and
(b) that it is in the interests of
justice to do so. |
Application
by lawful owner |
(10)
Subject to this or any other Act of Parliament, a person, other than
a person who may make an application under subsection (7), who
claims to be the lawful owner or person lawfully entitled to
possession of anything seized and brought before or reported to a
justice under section 489.1 may, at any time, on three clear days
notice to the Attorney General and the person from whom the thing
was seized, apply summarily to
(a) a judge referred to in
subsection (7), where a judge ordered the detention of the thing
seized under subsection (3), or
(b) a justice, in any other
case,
for an
order that the thing detained be returned to the
applicant. |
|
(11)
Subject to this or any other Act of Parliament, on an application
under subsection (10), where a judge or justice is satisfied
that
(a) the applicant is the lawful
owner or lawfully entitled to possession of the thing seized,
and
(b) the periods of detention
provided for or ordered under subsections (1) to (3) in respect of
the thing seized have expired and proceedings have not been
instituted in which the thing detained may be required or, where
such periods have not expired, that the continued detention of the
thing seized will not be required for any purpose mentioned in
subsection (1) or (4),
the
judge or justice shall order that
(c) the thing seized be returned to
the applicant, or
(d) except as otherwise provided by
law, where, pursuant to subsection (9), the thing seized was
forfeited, sold or otherwise dealt with in such a manner that it
cannot be returned to the applicant, the applicant be paid the
proceeds of sale or the value of the thing seized. |
Detention
pending appeal, etc. |
(12)
Notwithstanding anything in this section, nothing shall be returned,
forfeited or disposed of under this section pending any application
made, or appeal taken, thereunder in respect of the thing or
proceeding in which the right of seizure thereof is questioned or
within thirty days after an order in respect of the thing is made
under this section. |
Copies
of documents returned |
(13)
The Attorney General, the prosecutor or the peace officer or other
person having custody of a document seized may, before bringing it
before a justice or complying with an order that the document be
returned, forfeited or otherwise dealt with under subsection (1),
(9) or (11), make or cause to be made, and may retain, a copy of the
document. |
|
(14)
Every copy made under subsection (13) that is certified as a true
copy by the Attorney General, the person who made the copy or the
person in whose presence the copy was made is admissible in evidence
and, in the absence of evidence to the contrary, has the same
probative force as the original document would have if it had been
proved in the ordinary way. |
Access
to anything seized |
(15)
Where anything is detained pursuant to subsections (1) to (3.1), a
judge of a superior court of criminal jurisdiction, a judge as
defined in section 552 or a provincial court judge may, on summary
application on behalf of a person who has an interest in what is
detained, after three clear days notice to the Attorney General,
order that the person by or on whose behalf the application is made
be permitted to examine anything so detained. |
|
(16)
An order that is made under subsection (15) shall be made on such
terms as appear to the judge to be necessary or desirable to ensure
that anything in respect of which the order is made is safeguarded
and preserved for any purpose for which it may subsequently be
required. |
|
(17) A
person who feels aggrieved by an order made under subsection (8),
(9), (9.1) or (11) may appeal from the order to the appeal court, as
defined in section 812, and for the purposes of the appeal the
provisions of sections 814 to 828 apply with such modifications as
the circumstances require. |
|
(18)
Any person to whom three days notice must be given under paragraph
(2)(a) or (3)(a) or subsection (7), (10) or (15)
may agree that the application for which the notice is given be made
before the expiration of the three days.
R.S.,
1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994,
c. 44, s. 38; 1997, c. 18, s. 50. |
|
490.01 Where
any thing seized pursuant to this Act is perishable or likely to
depreciate rapidly, the person who seized the thing or any other
person having custody of the thing
(a) may return it to its lawful
owner or the person who is lawfully entitled to possession of it;
or
(b) where, on ex parte application to a justice,
the justice so authorizes, may
(i)
dispose of it and give the proceeds of disposition to the lawful
owner of the thing seized, if the lawful owner was not a party to an
offence in relation to the thing or, if the identity of that lawful
owner cannot be reasonably ascertained, the proceeds of disposition
are forfeited to Her Majesty, or
(ii)
destroy it.
1997,
c. 18, s. 51; 1999, c. 5, s. 17. |
|
|
|
|
|
490.011 (1)
The following definitions apply in this section and in sections
490.012 to 490.032. |
“crime of a sexual nature”
« crimes de nature
sexuelle » |
“crime
of a sexual nature” means a crime referred to in subsection 3(2) of
the Sex Offender Information
Registration Act. |
“database”
« banque de
données » |
“database” has the same
meaning as in subsection 3(1) of the Sex Offender Information Registration
Act. |
“designated offence”
« infraction
désignée » |
“designated offence”
means
(a) an offence under any of the
following provisions:
(i)
subsection 7(4.1) (offence in relation to sexual offences against
children),
(ii)
section 151 (sexual interference),
(iii)
section 152 (invitation to sexual touching),
(iv)
section 153 (sexual exploitation),
(v)
section 153.1 (sexual exploitation of person with disability),
(vi)
section 155 (incest),
(vii)
subsection 160(3) (bestiality in presence of or by a child),
(viii)
section 163.1 (child pornography),
(ix)
section 170 (parent or guardian procuring sexual activity),
(x)
section 172.1 (luring a child by means of a computer system),
(xi)
subsection 173(2) (exposure),
(xii)
paragraph 212(1)(i)
(stupefying or overpowering for the purpose of sexual
intercourse),
(xiii)
subsection 212(2) (living on the avails of prostitution of a person
under age of eighteen),
(xiv)
subsection 212(2.1) (aggravated offence — living on the avails of
prostitution of a person under age of eighteen),
(xv)
subsection 212(4) (obtaining prostitution of person under age of
eighteen),
(xvi)
section 271 (sexual assault),
(xvii)
section 272 (sexual assault with a weapon, threats to a third party
or causing bodily harm),
(xviii)
paragraph 273(2)(a)
(aggravated sexual assault — use of a firearm),
(xix)
paragraph 273(2)(b)
(aggravated sexual assault), and
(xx)
subsection 273.3(2) (removal of a child from Canada);
(b) an offence under any of the
following provisions:
(i)
subsection 173(1) (indecent acts),
(ii)
section 177 (trespassing at night),
(iii)
section 230 (murder in commission of offences),
(iv)
section 234 (manslaughter),
(v)
paragraph 246(b) (overcoming
resistance to commission of offence),
(vi)
section 264 (criminal harassment),
(vii)
section 279 (kidnapping),
(viii)
section 280 (abduction of a person under age of sixteen),
(ix)
section 281 (abduction of a person under age of fourteen),
(x)
paragraph 348(1)(d)
(breaking and entering a dwelling house with intent to commit an
indictable offence),
(xi)
paragraph 348(1)(d)
(breaking and entering a dwelling house and committing an indictable
offence),
(xii)
paragraph 348(1)(e)
(breaking and entering a place other than a dwelling house with
intent to commit an indictable offence), and
(xiii)
paragraph 348(1)(e)
(breaking and entering a place other than a dwelling house and
committing an indictable offence);
(c) an offence under any of the
following provisions of the Criminal Code, chapter C-34 of the
Revised Statutes of Canada, 1970, as they read from time to time
before January 4, 1983:
(i)
section 144 (rape),
(ii)
section 145 (attempt to commit rape),
(iii)
section 149 (indecent assault on female),
(iv)
section 156 (indecent assault on male), and
(v)
subsection 246(1) (assault with intent);
(d) an offence under any of the
following provisions of the Criminal Code, chapter C-34 of the
Revised Statutes of Canada, 1970, as they read from time to time
before January 1, 1988:
(i)
subsection 146(1) (sexual intercourse with a female under age of
fourteen),
(ii)
subsection 146(2) (sexual intercourse with a female between ages of
fourteen and sixteen),
(iii)
section 153 (sexual intercourse with step-daughter),
(iv)
section 157 (gross indecency),
(v)
section 166 (parent or guardian procuring defilement), and
(vi)
section 167 (householder permitting defilement);
(e) an attempt or conspiracy to
commit an offence referred to in any of paragraphs (a), (c) and (d); or
(f) an attempt or conspiracy to
commit an offence referred to in paragraph (b). |
“Ontario Act”
« loi ontarienne » |
“Ontario Act” means Christopher’s Law (Sex Offender
Registry), 2000, S.O. 2000, c. 1. |
“pardon”
« réhabilitation » |
“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. |
“registration centre”
« bureau
d’inscription » |
“registration centre” has
the same meaning as in subsection 3(1) of the Sex Offender Information Registration
Act. |
“Review Board”
« commission
d’examen » |
“Review Board” means the
Review Board established or designated for a province under
subsection 672.38(1). |
“verdict of not criminally
responsible on account of mental disorder”
« verdict de
non-responsabilité » |
“verdict of not criminally
responsible on account of mental disorder” has the same meaning as
in section 672.1. |
|
(2)
For the purpose of this section and sections 490.012 to 490.032, a
person who is convicted of, or found not criminally responsible on
account of mental disorder for, a designated offence does not
include a young person
(a) within the meaning of
subsection 2(1) of the Youth
Criminal Justice Act unless they are given an adult sentence
within the meaning of that subsection for the offence; or
(b) within the meaning of
subsection 2(1) of the Young
Offenders Act, chapter Y-1 of the Revised Statutes of Canada,
1985, unless they are convicted of the offence in ordinary court
within the meaning of that subsection.
2004,
c. 10, s. 20. |
|
Order
to Comply with Registration Requirements |
|
490.012 (1) A
court shall, on application of the prosecutor, make an order in Form
52 requiring a person to comply with the Sex Offender Information Registration
Act for the applicable period specified in subsection
490.013(2), (3) or (4) as soon as possible after it imposes a
sentence on the person for an offence referred to in paragraph
(a), (c), (d) or (e) of the definition “designated
offence” in subsection 490.011(1), or renders a verdict of not
criminally responsible on account of mental disorder for such an
offence. |
|
(2) A
court shall, on application of the prosecutor, make an order in Form
52 requiring a person to comply with the Sex Offender Information Registration
Act for the applicable period specified in subsection
490.013(2), (3) or (4) as soon as possible after it imposes a
sentence on the person for an offence referred to in paragraph
(b) or (f) of the definition “designated
offence” in subsection 490.011(1), if the prosecutor establishes
beyond a reasonable doubt that the person committed the offence with
the intent to commit an offence referred to in paragraph (a), (c), (d) or (e) of that definition. |
|
(3) A
court shall, on application of the prosecutor, make an order in Form
52 requiring a person in respect of whom an order may be made under
subsection (1) or (2) to comply with the Sex Offender Information Registration
Act for the applicable period specified in subsection
490.013(5), as soon as possible after it imposes a sentence on the
person for a designated offence or renders a verdict of not
criminally responsible on account of mental disorder for such an
offence, if the prosecutor establishes that
(a) the person was, before or after
the coming into force of that Act, previously convicted of, or found
not criminally responsible on account of mental disorder for, an
offence referred to in paragraph (a), (c), (d) or (e) of the definition “designated
offence” in subsection 490.011(1);
(b) the person is not, and was not
at any time, subject to an obligation under section 490.019; and
(c) no order was made under
subsection (1) in connection with the previous offence. |
|
(4)
The court is not required to make an order under this section if it
is satisfied that the person has established that, if the order were
made, the impact on them, including on their privacy or liberty,
would be grossly disproportionate to the public interest in
protecting society through the effective investigation of crimes of
a sexual nature, to be achieved by the registration of information
relating to sex offenders under the Sex Offender Information Registration
Act. |
|
(5)
The court shall give reasons for its decision.
2004,
c. 10, s. 20. |
|
490.013 (1)
An order made under section 490.012 begins on the day on which it is
made. |
|
(2) An
order made under subsection 490.012(1) or (2)
(a) ends 10 years after it was made
if the offence in connection with which it was made was prosecuted
summarily or is an offence for which the maximum term of
imprisonment is two or five years;
(b) ends 20 years after it was made
if the offence in connection with which it was made is one for which
the maximum term of imprisonment is 10 or 14 years; and
(c) applies to the person for life
if the offence in connection with which it was made is one for which
the maximum term of imprisonment is life. |
|
(3) An
order made under subsection 490.012(1) or (2) applies to a person
for life if they are, or were at any time, subject to an obligation
under section 490.019. |
|
(4) An
order made under subsection 490.012(1) or (2) applies to a person
for life if they are, or were at any time, subject to an order made
previously under either of those subsections. |
|
(5) An
order made under subsection 490.012(3) applies to a person for
life.
2004,
c. 10, s. 20. |
|
490.014 The
prosecutor, or a person who is subject to an order under section
490.012, may appeal from a decision of the court under that section
on any ground of appeal that raises a question of law or of mixed
law and fact. The appeal court may dismiss the appeal, or allow it
and order a new hearing, quash the order or make an order that may
be made under that section.
2004,
c. 10, s. 20. |
|
490.015 (1) A
person who is subject to an order may apply for a termination
order
(a) not earlier than five years
after the order was made, in the case of an order that is applicable
for 10 years under paragraph 490.013(2)(a);
(b) not earlier than 10 years after
the order was made, in the case of an order that is applicable for
20 years under paragraph 490.013(2)(b);
(c) not earlier than 20 years after
the order was made, in the case of an order that is applicable for
life under paragraph 490.013(2)(c) or subsection 490.013(3) or
(5); or
(d) on or after the day on which
they receive a pardon. |
Application
for termination of multiple orders |
(2) If
more than one order is made in respect of a person, the person may
apply for a termination order not earlier than 20 years after the
most recent order was made under section 490.012, or on or after the
day on which they receive a pardon. The application must be in
relation to every order that is in effect. |
Person
subject to obligation |
(3) If
an applicant is also subject to an obligation under section 490.019,
the application must be in relation to that obligation as well as to
every order that is in effect. |
|
(4) A
person whose application is refused may re-apply not earlier than
five years after they made the previous application. However, they
may not re-apply under this subsection if an order is made with
respect to them under section 490.012 after the previous application
was made. |
Court
to which application is made |
(5) A
person must apply to a superior court of criminal jurisdiction under
this section if such a court made an order to which the application
relates. In any other case, they must apply to a court of criminal
jurisdiction.
2004,
c. 10, s. 20. |
|
490.016 (1)
The court shall make a termination order if it is satisfied that the
person has established that the impact on them of continuing the
order or orders, and any obligation, to which the application
relates, including on their privacy or liberty, would be grossly
disproportionate to the public interest in the protection of society
through the effective investigation of crimes of a sexual nature, to
be achieved by the registration of information relating to sex
offenders under the Sex Offender
Information Registration Act. |
|
(2)
The court shall give reasons for its decision.
2004,
c. 10, s. 20. |
|
490.017 The
prosecutor or the person who applied for a termination order may
appeal from a decision made under subsection 490.016(1) on any
ground of appeal that raises a question of law or of mixed law and
fact. The appeal court may dismiss the appeal, or allow it and order
a new hearing, quash the termination order or make an order that may
be made under that subsection.
2004,
c. 10, s. 20. |
|
490.018 (1)
When a court or appeal court makes an order under section 490.012,
it shall cause
(a) the order to be read by or to
the person who is subject to it;
(b) a copy of the order to be given
to that person;
(c) that person to be informed of
sections 4 to 7 and subsection 17(1) of the Sex Offender Information Registration
Act and section 490.031; and
(d) a copy of the order to be sent
to
(i)
the Review Board that is responsible for making a disposition with
respect to that person, if applicable,
(ii)
the person in charge of the place in which that person is to serve
the custodial portion of a sentence or is to be detained in custody
as part of a disposition under Part XX.1, if applicable, and
(iii)
the police service whose member charged that person with the offence
in connection with which the order is made. |
|
(2)
After paragraphs (1)(a) to
(c) have been complied with,
the person who is subject to the order shall endorse the
order. |
Notice
on disposition by Review Board |
(3) A
Review Board shall cause a copy of the order to be given to the
person who is subject to it when it directs
(a) under paragraph 672.54(a), that the person be discharged
absolutely; or
(b) under paragraph 672.54(b), that the person be discharged
subject to conditions, unless the conditions restrict the person’s
liberty in a manner and to an extent that prevent them from
complying with section 4, 4.1, 4.3 or 6 of the Sex Offender Information Registration
Act. |
|
(4)
The person in charge of the place in which the person is serving the
custodial portion of a sentence, or is detained in custody, before
their release or discharge shall give the person a copy of the order
not earlier than 10 days before their release or discharge.
2004,
c. 10, s. 20. |
|
Obligation
to Comply with Registration Requirements |
|
490.019 A
person who is served with a notice in Form 53 shall comply with the
Sex Offender Information
Registration Act for the applicable period specified in
section 490.022 unless a court makes an exemption order under
subsection 490.023(2).
2004,
c. 10, s. 20. |
|
490.02 (1)
The Attorney General of a province or minister of justice of a
territory may serve a person with a notice only if the person was
convicted of, or found not criminally responsible on account of
mental disorder for, an offence referred to in paragraph (a), (c), (d) or (e) of the definition “designated
offence” in subsection 490.011(1) and
(a) on the day on which the Sex Offender Information Registration
Act comes into force, they are subject to a sentence for, or
have not received an absolute discharge under Part XX.1 from, the
offence; or
(b) in any other case,
(i)
their name appears in connection with the offence, immediately
before the Sex Offender Information
Registration Act comes into force, in the sex offender
registry established under the Ontario Act, and
(ii)
they either were a resident of Ontario at any time between April 23,
2001 and the day on which the Sex
Offender Information Registration Act comes into force or
committed the offence in Ontario. |
|
(2) A
notice shall not be served on a person
(a) referred to in paragraph
(1)(a) or (b) if they have been finally
acquitted of, or have received a free pardon granted under Her
Majesty’s royal prerogative of mercy or section 748 for, every
offence in connection with which notice may be served on them under
that paragraph;
(b) referred to in paragraph
(1)(a) or (b) if an application has been made
for an order under subsection 490.012(3) in relation to any offence
in connection with which notice may be served on them under that
paragraph; or
(c) referred to in paragraph
(1)(b) if they have provided
proof of a pardon in accordance with subsection 9(1) of the Ontario
Act.
2004,
c. 10, s. 20. |
|
490.021 (1)
The notice shall be personally served within one year after the day
on which the Sex Offender
Information Registration Act comes into force. |
|
(2) If
a person referred to in paragraph 490.02(1)(a) is unlawfully at large or is in
breach of any terms of their sentence or discharge, or conditions
set under this Act, that relate to residence, the notice may be
served by registered mail at their last known address. |
|
(3) If
a person referred to in paragraph 490.02(1)(b) is not in compliance with
section 3 of the Ontario Act on the day on which the Sex Offender Information Registration
Act comes into force, the notice may be served by registered
mail at their last known address. |
|
(4) If
a person referred to in paragraph 490.02(1)(b) is in compliance with section 3
and subsection 7(2) of the Ontario Act on the day on which the Sex Offender Information Registration
Act comes into force but fails to comply with subsection 3(1)
or 7(2) of the Ontario Act within one year after that day, the
notice shall be served within one year after the day on which they
failed to comply and may be served by registered mail at their last
known address. |
|
(5) An
affidavit of the person who served the notice, sworn before a
commissioner or other person authorized to take affidavits, is
evidence of the service and the notice if it sets out that
(a) the person who served the
notice has charge of the appropriate records and has knowledge of
the facts in the particular case;
(b) the notice was personally
served on, or mailed to, the person to whom it was directed on a
named day; and
(c) the person who served the
notice identifies a true copy of the notice as an exhibit attached
to the affidavit. |
Requirements
relating to notice |
(6)
The person who served the notice shall, without delay, send a copy
of the affidavit and the notice to the Attorney General of the
province, or the minister of justice of the territory, in which the
person was served.
2004,
c. 10, s. 20. |
|
490.022 (1)
The obligation under section 490.019 begins
(a) either one year after the day
on which a person is served with a notice under section 490.021 or
when a court decides not to make an exemption order under subsection
490.023(2), whichever is later; or
(b) when an exemption order made
under this Act is quashed. |
|
(2)
The obligation ends on the earliest of
(a) the day on which an exemption
order is made on an appeal from a decision made under subsection
490.023(2),
(b) the day on which the obligation
of a person referred to in paragraph 490.02(1)(b) to comply with section 3 of the
Ontario Act ends under paragraph 7(1)(a) of that Act, or
(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. |
|
(3) If
none of paragraphs (2)(a) to
(c) applies earlier, the
obligation
(a) ends 10 years after the day on
which the person was sentenced, or found not criminally responsible
on account of mental disorder, for an offence to which the
obligation relates that was prosecuted summarily or for which the
maximum term of imprisonment is two or five years;
(b) ends 20 years after the day on
which the person was sentenced, or found not criminally responsible
on account of mental disorder, for an offence to which the
obligation relates and for which the maximum term of imprisonment is
10 or 14 years;
(c) applies for life if the maximum
term of imprisonment for an offence to which the obligation relates
is life; or
(d) applies for life if the person
was convicted of, or found not criminally responsible on account of
mental disorder for, more than one offence referred to in paragraph
(a), (c), (d) or (e) of the definition “designated
offence” in subsection 490.011(1).
2004,
c. 10, s. 20. |
|
490.023 (1) A
person who is not subject to an order under section 490.012 may,
within one year after the day on which they are served with a notice
under section 490.021, apply to any court of criminal jurisdiction
for an order exempting them from the obligation under section
490.019. |
|
(2)
The court shall make an exemption order if it is satisfied that the
person has established that the impact of the obligation on them,
including on their privacy or liberty, would be grossly
disproportionate to the public interest in protecting society
through the effective investigation of crimes of a sexual nature, to
be achieved by the registration of information relating to sex
offenders under the Sex Offender
Information Registration Act. |
|
(3)
The court shall give reasons for its decision. |
Effect
of exemption order |
(4) If
the court makes an exemption order, it shall also make an order
requiring the permanent removal from the database of all information
that relates to the person.
2004,
c. 10, s. 20. |
|
490.024 (1)
The Attorney General or the person who applied for an exemption
order may appeal from a decision of the court under subsection
490.023(2) on any ground of appeal that raises a question of law or
of mixed law and fact. The appeal court may dismiss the appeal, or
allow it and order a new hearing, quash the exemption order or make
an order that may be made under that subsection. |
Effect
of exemption order |
(2) If
an appeal court makes an exemption order, it shall also make an
order requiring the permanent removal from the database of all
information that relates to the person.
2004,
c. 10, s. 20. |
|
490.025 When
a court decides not to make an exemption order under subsection
490.023(2) or an appeal court dismisses an appeal from such a
decision or quashes an exemption order made under that subsection,
it shall notify the Attorney General of the decision and cause the
person who applied for the exemption order to be informed of
sections 4 to 7 and subsection 17(1) of the Sex Offender Information Registration
Act and section 490.031.
2004,
c. 10, s. 20. |
|
490.026 (1) A
person who is subject to an obligation under section 490.019 and is
not subject to an order under section 490.012 may apply to a court
of criminal jurisdiction for a termination order. |
|
(2) A
person may apply for a termination order under subsection (1) if the
following period has elapsed since the day on which they were
sentenced, or found not criminally responsible on account of mental
disorder, for an offence referred to in paragraph (a), (c), (d) or (e) of the definition “designated
offence” in subsection 490.011(1):
(a) five years if the offence was
prosecuted summarily or is an offence for which the maximum term of
imprisonment is two or five years;
(b) 10 years if the offence is one
for which the maximum term of imprisonment is 10 or 14 years;
and
(c) 20 years if the offence is one
for which the maximum term of imprisonment is life. |
|
(3) A
person who committed more than one offence referred to in paragraph
(a), (c), (d) or (e) of the definition “designated
offence” in subsection 490.011(1) may apply for a termination order
under subsection (1) if 20 years have elapsed since the day on which
they were sentenced, or found not criminally responsible on account
of mental disorder, for the most recent offence. |
|
(4) A
person whose application is refused may re-apply if five years have
elapsed since the day on which they made the previous application.
However, they may not re-apply under this subsection if an order is
made with respect to them under section 490.012 after the previous
application was made.
2004,
c. 10, s. 20. |
|
490.027 (1)
The court shall make an order terminating the obligation if it is
satisfied that the person has established that the impact on them of
continuing the obligation, including on their privacy or liberty,
would be grossly disproportionate to the public interest in the
protection of society through the effective investigation of crimes
of a sexual nature, to be achieved by the registration of
information relating to sex offenders under the Sex Offender Information Registration
Act. |
|
(2)
The court shall give reasons for its decision.
2004,
c. 10, s. 20. |
|
490.028 If a
person is eligible to apply for both an exemption order under
section 490.023 and a termination order under section 490.026 within
one year after they are served with a notice under section 490.021,
an application within that period for one order is deemed to be an
application for both.
2004,
c. 10, s. 20. |
|
490.029 The
Attorney General or the person who applied for a termination order
may appeal from a decision of the court made under section 490.027
on any ground of appeal that raises a question of law or of mixed
law and fact. The appeal court may dismiss the appeal, or allow it
and order a new hearing, quash the termination order or make an
order that may be made under that section.
2004,
c. 10, s. 20. |
|
Disclosure
of Information |
|
490.03 (1) At
the request of a prosecutor or the Attorney General, as the case may
be, the Commissioner of the Royal Canadian Mounted Police shall
disclose information that is registered in the database or the fact
that such information is registered in the database
(a) to the prosecutor, if the
Commissioner is satisfied that the disclosure is necessary for the
purposes of a proceeding for an order under section 490.012; or
(b) to the Attorney General, if the
Commissioner is satisfied that the disclosure is necessary for the
purposes of a proceeding under section 490.015, 490.023 or 490.026,
or an appeal from a decision made in a proceeding under any of those
sections or in a proceeding for an order under section
490.012. |
Disclosure
by Commissioner |
(2) At
the request of the Attorney General, the Commissioner shall disclose
to the Attorney General all information relating to a person that is
registered in the database if the person, in connection with a
proceeding, discloses any such information or the fact that any such
information is registered in the database. |
Disclosure
in legal proceedings |
(3)
The prosecutor or the Attorney General may disclose the information
to a court in connection with a proceeding referred to in subsection
(1) or (2), or to an appeal court in connection with an appeal from
a decision made in the proceeding, if the information is relevant to
the proceeding or appeal. |
Disclosure
in legal proceedings |
(4)
Information that is collected under the Sex Offender Information Registration
Act or registered in the database and that is relevant to the
proceeding may be disclosed to a judge or justice in a proceeding
relating to an application for a search warrant in connection with
the investigation of a crime that there are reasonable grounds to
suspect is of a sexual nature.
2004,
c. 10, s. 20. |
|
|
|
490.031 Every
person who, without reasonable excuse, fails to comply with an order
made under section 490.012 or with an obligation under section
490.019, is guilty of an offence and liable
(a) in the case of a first offence,
on summary conviction, to a fine of not more than $10,000 or to
imprisonment for a term of not more than six months, or to both;
and
(b) in the case of a second or
subsequent offence,
(i) on
conviction on indictment, to a fine of not more than $10,000 or to
imprisonment for a term of not more than two years, or to both,
or
(ii)
on summary conviction, to a fine of not more than $10,000 or to
imprisonment for a term of not more than six months, or to both.
2004,
c. 10, s. 20. |
|
|
|
490.032 The
Governor in Council may make regulations
(a) requiring that additional
information be contained in a notice under Form 53; and
(b) prescribing, for one or more
provinces, the form and content of that information.
2004,
c. 10, s. 20. |
|
Forfeiture
of Offence-related Property |
|
490.1 (1)
Subject to sections 490.3 to 490.41, where a person is convicted of
an indictable offence under this Act and, on application of the
Attorney General, the court is satisfied, on a balance of
probabilities, that any property is offence-related property and
that the offence was committed in relation to that property, the
court shall
(a) where the prosecution of the
offence was commenced at the instance of the government of a
province and conducted by or on behalf of that government, order
that the property be forfeited to Her Majesty in right of that
province and disposed of by the Attorney General or Solicitor
General of that province in accordance with the law; and
(b) in any other case, order that
the property be forfeited to Her Majesty in right of Canada and
disposed of by the member of the Queen’s Privy Council for Canada
that may be designated for the purpose of this paragraph in
accordance with the law.
(1.1)
[Repealed, 2001, c. 41, s. 130] |
Property
related to other offences |
(2)
Subject to sections 490.3 to 490.41, where the evidence does not
establish to the satisfaction of the court that the indictable
offence under this Act of which a person has been convicted was
committed in relation to property in respect of which an order of
forfeiture would otherwise be made under subsection (1) but the
court is satisfied, beyond a reasonable doubt, that the property is
offence-related property, the court may make an order of forfeiture
under subsection (1) in relation to that property. |
|
(2.1)
An order may be issued under this section in respect of property
situated outside Canada, with any modifications that the
circumstances require. |
|
(3) A
person who has been convicted of an indictable offence under this
Act or the Attorney General may appeal to the court of appeal from
an order or a failure to make an order under subsection (1) as if
the appeal were an appeal against the sentence imposed on the person
in respect of the offence.
1997,
c. 23, s. 15; 2001, c. 32, s. 30, c. 41, ss. 18, 130. |
|
490.2 (1)
Where an information has been laid in respect of an indictable
offence under this Act, the Attorney General may make an application
to a judge for an order of forfeiture under subsection
(2). |
Order
of forfeiture of property |
(2)
Subject to sections 490.3 to 490.41, where an application is made to
a judge under subsection (1) and the judge is satisfied
(a) beyond a reasonable doubt that
any property is offence-related property,
(b) that proceedings in respect of
an indictable offence under this Act in relation to the property
referred to in paragraph (a)
were commenced, and
(c) that the accused charged with
the offence has died or absconded,
the
judge shall order that the property be forfeited and disposed of in
accordance with subsection (4). |
|
(3)
For the purpose of subsection (2), an accused is deemed to have
absconded in connection with the indictable offence if
(a) an information has been laid
alleging the commission of the offence by the accused,
(b) a warrant for the arrest of the
accused has been issued in relation to that information, and
(c) reasonable attempts to arrest
the accused under the warrant have been unsuccessful during a period
of six months beginning on the day on which the warrant was
issued,
and the
accused is deemed to have so absconded on the last day of that six
month period. |
Who
may dispose of forfeited property |
(4)
For the purpose of subsection (2), the judge shall
(a) where the prosecution of the
offence was commenced at the instance of the government of a
province and conducted by or on behalf of that government, order
that the property be forfeited to Her Majesty in right of that
province and disposed of by the Attorney General or Solicitor
General of that province in accordance with the law; and
(b) in any other case, order that
the property be forfeited to Her Majesty in right of Canada and
disposed of by the member of the Queen’s Privy Council for Canada
that may be designated for the purpose of this paragraph in
accordance with the law. |
|
(4.1)
An order may be issued under this section in respect of property
situated outside Canada, with any modifications that the
circumstances require. |
|
(5) In
this section and sections 490.5 and 490.8, “judge” means a judge as
defined in section 552 or a judge of a superior court of criminal
jurisdiction.
1997,
c. 23, s. 15; 2001, c. 32, s. 31. |
|
490.3 A court
may, before ordering that offence-related property be forfeited
under subsection 490.1(1) or 490.2(2), set aside any conveyance or
transfer of the property that occurred after the seizure of the
property, or the making of a restraint order in respect of the
property, unless the conveyance or transfer was for valuable
consideration to a person acting in good faith.
1997,
c. 23, s. 15. |
|
490.4 (1)
Before making an order under subsection 490.1(1) or 490.2(2) in
relation to any property, a court shall require notice in accordance
with subsection (2) to be given to, and may hear, any person who, in
the opinion of the court, appears to have a valid interest in the
property. |
|
(2) A
notice given under subsection (1) shall
(a) be given or served in the
manner that the court directs or that may be specified in the rules
of the court;
(b) be of any duration that the
court considers reasonable or that may be specified in the rules of
the court; and
(c) set out the offence charged and
a description of the property. |
Order
of restoration of property |
(3)
Where a court is satisfied that a person, other than
(a) a person who was charged with
an indictable offence under this Act, or
(b) a person who acquired title to
or a right of possession of the property from a person referred to
in paragraph (a) under
circumstances that give rise to a reasonable inference that the
title or right was transferred for the purpose of avoiding the
forfeiture of the property,
is the
lawful owner or is lawfully entitled to possession of any property
or a part of any property that would otherwise be forfeited pursuant
to an order made under subsection 490.1(1) or 490.2(2) and that the
person appears innocent of any complicity in an offence referred to
in paragraph (a) or of any
collusion in relation to such an offence, the court may order that
the property or part be returned to the person.
1997,
c. 23, s. 15; 2001, c. 32, s. 32. |
|
490.41 (1)
Where all or part of offence-related property that would otherwise
be forfeited under subsection 490.1(1) or 490.2(2) is a
dwelling-house, before making an order of forfeiture, a court shall
require notice in accordance with subsection (2) to be given to, and
may hear, any person who resides in the dwelling-house and is a
member of the immediate family of the person charged with or
convicted of the indictable offence under this Act in relation to
which the property would be forfeited. |
|
(2) A
notice shall
(a) be given or served in the
manner that the court directs or that may be specified in the rules
of the court;
(b) be of any duration that the
court considers reasonable or that may be specified in the rules of
the court; and
(c) set out the offence charged and
a description of the property. |
Non-forfeiture
of property |
(3)
Subject to an order made under subsection 490.4(3), if a court is
satisfied that the impact of an order of forfeiture made under
subsection 490.1(1) or 490.2(2) would be disproportionate to the
nature and gravity of the offence, the circumstances surrounding the
commission of the offence and the criminal record, if any, of the
person charged with or convicted of the offence, as the case may be,
it may decide not to order the forfeiture of the property or part of
the property and may revoke any restraint order made in respect of
that property or part. |
Factors
in relation to dwelling-house |
(4)
Where all or part of the property that would otherwise be forfeited
under subsection 490.1(1) or 490.2(2) is a dwelling-house, when
making a decision under subsection (3), the court shall also
consider
(a) the impact of an order of
forfeiture on any member of the immediate family of the person
charged with or convicted of the offence, if the dwelling-house was
the member’s principal residence at the time the charge was laid and
continues to be the member’s principal residence; and
(b) whether the member referred to
in paragraph (a) appears
innocent of any complicity in the offence or of any collusion in
relation to the offence.
2001,
c. 32, s. 33. |
|
490.5 (1)
Where any offence-related property is forfeited to Her Majesty
pursuant to an order made under subsection 490.1(1) or 490.2(2), any
person who claims an interest in the property, other than
(a) in the case of property
forfeited pursuant to an order made under subsection 490.1(1), a
person who was convicted of the indictable offence in relation to
which the property was forfeited,
(b) in the case of property
forfeited pursuant to an order made under subsection 490.2(2), a
person who was charged with the indictable offence in relation to
which the property was forfeited, or
(c) a person who acquired title to
or a right of possession of the property from a person referred to
in paragraph (a) or (b) under circumstances that give
rise to a reasonable inference that the title or right was
transferred from that person for the purpose of avoiding the
forfeiture of the property,
may,
within thirty days after the forfeiture, apply by notice in writing
to a judge for an order under subsection (4). |
|
(2)
The judge to whom an application is made under subsection (1) shall
fix a day not less than thirty days after the date of the filing of
the application for the hearing of the application. |
|
(3) An
applicant shall serve a notice of the application made under
subsection (1) and of the hearing of it on the Attorney General at
least fifteen days before the day fixed for the hearing. |
Order
declaring interest not affected by forfeiture |
(4)
Where, on the hearing of an application made under subsection (1),
the judge is satisfied that the applicant
(a) is not a person referred to in
paragraph (1)(a), (b) or (c) and appears innocent of any
complicity in any indictable offence that resulted in the forfeiture
of the property or of any collusion in relation to such an offence,
and
(b) exercised all reasonable care
to be satisfied that the property was not likely to have been used
in connection with the commission of an unlawful act by the person
who was permitted by the applicant to obtain possession of the
property or from whom the applicant obtained possession or, where
the applicant is a mortgagee or lienholder, by the mortgagor or
lien-giver,
the
judge may make an order declaring that the interest of the applicant
is not affected by the forfeiture and declaring the nature and the
extent or value of the interest. |
Appeal
from order made under subsection (4) |
(5) An
applicant or the Attorney General may appeal to the court of appeal
from an order made under subsection (4), and the provisions of Part
XXI with respect to procedure on appeals apply, with any
modifications that the circumstances require, in respect of appeals
under this subsection. |
|
(6)
The Attorney General shall, on application made to the Attorney
General by any person in respect of whom a judge has made an order
under subsection (4), and where the periods with respect to the
taking of appeals from that order have expired and any appeal from
that order taken under subsection (5) has been determined, direct
that
(a) the property, or the part of it
to which the interest of the applicant relates, be returned to the
applicant; or
(b) an amount equal to the value of
the interest of the applicant, as declared in the order, be paid to
the applicant.
1997,
c. 23, s. 15; 2001, c. 32, s. 34. |
|
490.6 Any
person who, in their opinion, is aggrieved by an order made under
subsection 490.2(2) may appeal from the order as if the order were
an appeal against conviction or against a judgment or verdict of
acquittal, as the case may be, under Part XXI, and that Part
applies, with any modifications that the circumstances require, in
respect of such an appeal.
1997,
c. 23, s. 15. |
|
490.7
Notwithstanding anything in this Act, the operation of an order made
in respect of property under subsection 490.1(1), 490.2(2) or
490.5(4) is suspended pending
(a) any application made in respect
of the property under any of those provisions or any other provision
of this or any other Act of Parliament that provides for restoration
or forfeiture of the property, or
(b) any appeal taken from an order
of forfeiture or restoration in respect of the property,
and the
property shall not be disposed of or otherwise dealt with until
thirty days have expired after an order is made under any of those
provisions.
1997,
c. 23, s. 15. |
|
490.8 (1) The
Attorney General may make an application in accordance with this
section for a restraint order under this section in respect of any
offence-related property. |
|
(2) An
application made under subsection (1) for a restraint order in
respect of any offence-related property may be made ex parte and shall be made in
writing to a judge and be accompanied by an affidavit sworn on the
information and belief of the Attorney General or any other person
deposing to the following matters:
(a) the indictable offence to which
the offence-related property relates;
(b) the person who is believed to
be in possession of the offence-related property; and
(c) a description of the
offence-related property. |
|
(3)
Where an application for a restraint order is made to a judge under
subsection (1), the judge may, if satisfied that there are
reasonable grounds to believe that the property is offence-related
property, make a restraint order prohibiting any person from
disposing of, or otherwise dealing with any interest in, the
offence-related property specified in the order otherwise than in
the manner that may be specified in the order. |
|
(3.1)
A restraint order may be issued under this section in respect of
property situated outside Canada, with any modifications that the
circumstances require. |
|
(4) A
restraint order made by a judge under this section may be subject to
any reasonable conditions that the judge thinks fit. |
|
(5) A
restraint order made under this section shall be made in
writing. |
|
(6) A
copy of a restraint order made under this section shall be served on
the person to whom the order is addressed in any manner that the
judge making the order directs or in accordance with the rules of
the court. |
|
(7) A
copy of a restraint order made under this section shall be
registered against any property in accordance with the laws of the
province in which the property is situated. |
|
(8) A
restraint order made under this section remains in effect until
(a) an order is made under
subsection 490(9) or (11), 490.4(3) or 490.41(3) in relation to the
property; or
(b) an order of forfeiture of the
property is made under section 490 or subsection 490.1(1) or
490.2(2). |
|
(9)
Any person on whom a restraint order made under this section is
served in accordance with this section and who, while the order is
in force, acts in contravention of or fails to comply with the order
is guilty of an indictable offence or an offence punishable on
summary conviction.
1997,
c. 23, s. 15; 2001, c. 32, s. 35. |
|
490.81 (1)
With respect to offence-related property other than a controlled
substance within the meaning of the Controlled Drugs and Substances
Act, on application of the Attorney General or of any other
person with the written consent of the Attorney General, a judge or
justice in the case of offence-related property seized under section
487, or a judge in the case of offence-related property restrained
under section 490.8, may, where he or she is of the opinion that the
circumstances so require,
(a) appoint a person to take
control of and to manage or otherwise deal with all or part of the
property in accordance with the directions of the judge or justice;
and
(b) require any person having
possession of that property to give possession of the property to
the person appointed under paragraph (a). |
Appointment
of Minister of Public Works and Government Services |
(2)
When the Attorney General of Canada so requests, a judge or justice
appointing a person under subsection (1) shall appoint the Minister
of Public Works and Government Services. |
|
(3)
The power to manage or otherwise deal with property under subsection
(1) includes
(a) in the case of perishable or
rapidly depreciating property, the power to make an interlocutory
sale of that property; and
(b) in the case of property that
has little or no value, the power to destroy that
property. |
Application
for destruction order |
(4)
Before a person appointed to manage property destroys property that
has little or no value, he or she shall apply to a court for a
destruction order. |
|
(5)
Before making a destruction order in relation to any property, a
court shall require notice in accordance with subsection (6) to be
given to, and may hear, any person who, in the opinion of the court,
appears to have a valid interest in the property. |
|
(6) A
notice shall
(a) be given or served in the
manner that the court directs or that may be specified in the rules
of the court; and
(b) be of any duration that the
court considers reasonable or that may be specified in the rules of
the court. |
|
(7) A
court may order that the property be destroyed if it is satisfied
that the property has little or no value, whether financial or
other. |
When
management order ceases to have effect |
(8) A
management order ceases to have effect when the property that is the
subject of the management order is returned in accordance with the
law to an applicant or forfeited to Her Majesty. |
Application
to vary conditions |
(9)
The Attorney General may at any time apply to the judge or justice
to cancel or vary any condition to which a management order is
subject, but may not apply to vary an appointment made under
subsection (2).
2001,
c. 32, s. 36. |
|
490.9 (1)
Subject to sections 490.1 to 490.7, sections 489.1 and 490 apply,
with any modifications that the circumstances require, to any
offence-related property that is the subject of a restraint order
made under section 490.8. |
|
(2)
Where, pursuant to subsection (1), an order is made under paragraph
490(9)(c) for the return of
any offence-related property that is the subject of a restraint
order under section 490.8, the judge or justice making the order may
require the applicant for the order to enter into a recognizance
before the judge or justice, with or without sureties, in any amount
and with any conditions that the judge or justice directs and, where
the judge or justice considers it appropriate, require the applicant
to deposit with the judge or justice any sum of money or other
valuable security that the judge or justice directs.
1997,
c. 23, s. 15. |
|
491. (1)
Subject to subsection (2), where it is determined by a court
that
(a) a weapon, an imitation firearm,
a prohibited device, any ammunition, any prohibited ammunition or an
explosive substance was used in the commission of an offence and
that thing has been seized and detained, or
(b) that a person has committed an
offence that involves, or the subject-matter of which is, a firearm,
a cross-bow, a prohibited weapon, a restricted weapon, a prohibited
device, ammunition, prohibited ammunition or an explosive substance
and any such thing has been seized and detained,
the
thing so seized and detained is forfeited to Her Majesty and shall
be disposed of as the Attorney General directs. |
|
(2) If
the court by which a determination referred to in subsection (1) is
made is satisfied that the lawful owner of any thing that is or may
be forfeited to Her Majesty under subsection (1) was not a party to
the offence and had no reasonable grounds to believe that the thing
would or might be used in the commission of an offence, the court
shall order that the thing be returned to that lawful owner, that
the proceeds of any sale of the thing be paid to that lawful owner
or, if the thing was destroyed, that an amount equal to the value of
the thing be paid to the owner. |
|
(3)
Where any thing in respect of which this section applies is sold,
the proceeds of the sale shall be paid to the Attorney General or,
where an order is made under subsection (2), to the person who was,
immediately prior to the sale, the lawful owner of the thing.
R.S.,
1985, c. C-46, s. 491; 1991, c. 40, s. 30; 1995, c. 39, s.
152. |
|
491.1 (1)
Where an accused or defendant is tried for an offence and the court
determines that an offence has been committed, whether or not the
accused has been convicted or discharged under section 730 of the
offence, and at the time of the trial any property obtained by the
commission of the offence
(a) is before the court or has been
detained so that it can be immediately dealt with, and
(b) will not be required as
evidence in any other proceedings,
section
490 does not apply in respect of the property and the court shall
make an order under subsection (2) in respect of the
property. |
|
(2) In
the circumstances referred to in subsection (1), the court shall
order, in respect of any property,
(a) if the lawful owner or person
lawfully entitled to possession of the property is known, that it be
returned to that person; and
(b) if the lawful owner or person
lawfully entitled to possession of the property is not known, that
it be forfeited to Her Majesty, to be disposed of as the Attorney
General directs or otherwise dealt with in accordance with the
law. |
When
certain orders not to be made |
(3) An
order shall not be made under subsection (2)
(a) in the case of proceedings
against a trustee, banker, merchant, attorney, factor, broker or
other agent entrusted with the possession of goods or documents of
title to goods, for an offence under section 330, 331, 332 or 336;
or
(b) in respect of
(i)
property to which a person acting in good faith and without notice
has acquired lawful title for valuable consideration,
(ii) a
valuable security that has been paid or discharged in good faith by
a person who was liable to pay or discharge it,
(iii)
a negotiable instrument that has, in good faith, been taken or
received by transfer or delivery for valuable consideration by a
person who had no notice and no reasonable cause to suspect that an
offence had been committed, or
(iv)
property in respect of which there is a dispute as to ownership or
right of possession by claimants other than the accused or
defendant. |
|
(4) An
order made under this section shall, on the direction of the court,
be executed by the peace officers by whom the process of the court
is ordinarily executed.
R.S.,
1985, c. 27 (1st Supp.), s. 74, c. 1 (4th Supp.), s. 18(F); 1995, c.
22, s. 18. |
|
491.2 (1)
Before any property that would otherwise be required to be produced
for the purposes of a preliminary inquiry, trial or other proceeding
in respect of an offence under section 334, 344, 348, 354, 362 or
380 is returned or ordered to be returned, forfeited or otherwise
dealt with under section 489.1 or 490 or is otherwise returned, a
peace officer or any person under the direction of a peace officer
may take and retain a photograph of the property. |
Certified
photograph admissible in evidence |
(2)
Every photograph of property taken under subsection (1), accompanied
by a certificate of a person containing the statements referred to
in subsection (3), shall be admissible in evidence and, in the
absence of evidence to the contrary, shall have the same probative
force as the property would have had if it had been proved in the
ordinary way. |
Statements
made in certificate |
(3)
For the purposes of subsection (2), a certificate of a person
stating that
(a) the person took the photograph
under the authority of subsection (1),
(b) the person is a peace officer
or took the photograph under the direction of a peace officer,
and
(c) the photograph is a true
photograph
shall be
admissible in evidence and, in the absence of evidence to the
contrary, is evidence of the statements contained in the certificate
without proof of the signature of the person appearing to have
signed the certificate. |
Secondary
evidence of peace officer |
(4) An
affidavit or solemn declaration of a peace officer or other person
stating that the person has seized property and detained it or
caused it to be detained from the time that person took possession
of the property until a photograph of the property was taken under
subsection (1) and that the property was not altered in any manner
before the photograph was taken shall be admissible in evidence and,
in the absence of evidence to the contrary, is evidence of the
statements contained in the affidavit or solemn declaration without
proof of the signature or official character of the person appearing
to have signed the affidavit or solemn declaration. |
Notice
of intention to produce certified photograph |
(5)
Unless the court orders otherwise, no photograph, certificate,
affidavit or solemn declaration shall be received in evidence at a
trial or other proceeding pursuant to subsection (2), (3) or (4)
unless the prosecutor has, before the trial or other proceeding,
given to the accused a copy thereof and reasonable notice of
intention to produce it in evidence. |
Attendance
for examination |
(6)
Notwithstanding subsection (3) or (4), the court may require the
person who appears to have signed a certificate, an affidavit or a
solemn declaration referred to in that subsection to appear before
it for examination or cross-examination in respect of the issue of
proof of any of the facts contained in the certificate, affidavit or
solemn declaration. |
Production
of property in court |
(7) A
court may order any property seized and returned pursuant to section
489.1 or 490 to be produced in court or made available for
examination by all parties to a proceeding at a reasonable time and
place, notwithstanding that a photograph of the property has been
received in evidence pursuant to subsection (2), where the court is
satisfied that the interests of justice so require and that it is
possible and practicable to do so in the circumstances. |
Definition
of “photograph” |
(8) In
this section, “photograph” includes a still photograph, a
photographic film or plate, a microphotographic film, a photostatic
negative, an X-ray film, a motion picture and a videotape.
R.S.,
1985, c. 23 (4th Supp.), s. 2; 1992, c. 1, s. 58. |
|
492. (1)
Every person who executes a warrant issued under section 487 or
487.1 may seize any explosive substance that he suspects is intended
to be used for an unlawful purpose, and shall, as soon as possible,
remove to a place of safety anything that he seizes by virtue of
this section and detain it until he is ordered by a judge of a
superior court to deliver it to some other person or an order is
made pursuant to subsection (2). |
|
(2)
Where an accused is convicted of an offence in respect of anything
seized by virtue of subsection (1), it is forfeited and shall be
dealt with as the court that makes the conviction may
direct. |
|
(3)
Where anything to which this section applies is sold, the proceeds
of the sale shall be paid to the Attorney General.
R.S.,
1985, c. C-46, s. 492; R.S., 1985, c. 27 (1st Supp.), s.
70. |
|
492.1 (1) A
justice who is satisfied by information on oath in writing that
there are reasonable grounds to suspect that an offence under this
or any other Act of Parliament has been or will be committed and
that information that is relevant to the commission of the offence,
including the whereabouts of any person, can be obtained through the
use of a tracking device, may at any time issue a warrant
authorizing a peace officer or a public officer who has been
appointed or designated to administer or enforce a federal or
provincial law and whose duties include the enforcement of this Act
or any other Act of Parliament and who is named in the warrant
(a) to install, maintain and remove
a tracking device in or on any thing, including a thing carried,
used or worn by any person; and
(b) to monitor, or to have
monitored, a tracking device installed in or on any thing. |
|
(2) A
warrant issued under subsection (1) is valid for the period, not
exceeding sixty days, mentioned in it. |
|
(3) A
justice may issue further warrants under this section. |
Definition
of “tracking device” |
(4)
For the purposes of this section, “tracking device” means any device
that, when installed in or on any thing, may be used to help
ascertain, by electronic or other means, the location of any thing
or person. |
Removal
after expiry of warrant |
(5) On
ex parte application in
writing supported by affidavit, the justice who issued a warrant
under subsection (1) or a further warrant under subsection (3) or
any other justice having jurisdiction to issue such warrants may
authorize that the tracking device be covertly removed after the
expiry of the warrant
(a) under any terms or conditions
that the justice considers advisable in the public interest; and
(b) during any specified period of
not more than sixty days.
1993,
c. 40, s. 18; 1999, c. 5, s. 18. |
|
492.2 (1) A
justice who is satisfied by information on oath in writing that
there are reasonable grounds to suspect that an offence under this
or any other Act of Parliament has been or will be committed and
that information that would assist in the investigation of the
offence could be obtained through the use of a number recorder, may
at any time issue a warrant authorizing a peace officer or a public
officer who has been appointed or designated to administer or
enforce a federal or provincial law and whose duties include the
enforcement of this Act or any other Act of Parliament and who is
named in the warrant
(a) to install, maintain and remove
a number recorder in relation to any telephone or telephone line;
and
(b) to monitor, or to have
monitored, the number recorder. |
Order
re telephone records |
(2)
When the circumstances referred to in subsection (1) exist, a
justice may order that any person or body that lawfully possesses
records of telephone calls originated from, or received or intended
to be received at, any telephone give the records, or a copy of the
records, to a person named in the order. |
Other
provisions to apply |
(3)
Subsections 492.1(2) and (3) apply to warrants and orders issued
under this section, with such modifications as the circumstances
require. |
Definition
of “number recorder” |
(4)
For the purposes of this section, “number recorder” means any device
that can be used to record or identify the telephone number or
location of the telephone from which a telephone call originates, or
at which it is received or is intended to be received.
1993,
c. 40, s. 18; 1999, c. 5, s. 19. |
|
PART
XVI
COMPELLING APPEARANCE OF
ACCUSED BEFORE A JUSTICE AND INTERIM RELEASE |
|
|
|
493. In this
Part, |
|
“accused” includes
(a) a person to whom a peace
officer has issued an appearance notice under section 496, and
(b) a person arrested for a
criminal offence; |
“appearance notice”
« citation à
comparaître » |
“appearance notice” means
a notice in Form 9 issued by a peace officer; |
|
“judge” means
(a) in the Province of Ontario, a
judge of the superior court of criminal jurisdiction of the
Province,
(b) in the Province of Quebec, a
judge of the superior court of criminal jurisdiction of the province
or three judges of the Court of Quebec,
(c) [Repealed, 1992, c. 51, s.
37]
(d) in the Provinces of Nova
Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward
Island, Saskatchewan, Alberta and Newfoundland, a judge of the
superior court of criminal jurisdiction of the Province,
(e) in Yukon and the Northwest
Territories, a judge of the Supreme Court, and
(f) in Nunavut, a judge of the
Nunavut Court of Justice; |
“officer in charge”
« fonctionnaire
responsable » |
“officer in charge” means
the officer for the time being in command of the police force
responsible for the lock-up or other place to which an accused is
taken after arrest or a peace officer designated by him for the
purposes of this Part who is in charge of that place at the time an
accused is taken to that place to be detained in custody; |
“promise to appear”
« promesse de
comparaître » |
“promise to appear” means
a promise in Form 10; |
“recognizance”
« engagement » |
“recognizance”, when used
in relation to a recognizance entered into before an officer in
charge, or other peace officer, means a recognizance in Form 11, and
when used in relation to a recognizance entered into before a
justice or judge, means a recognizance in Form 32; |
|
“summons” means a summons
in Form 6 issued by a justice or judge; |
“undertaking”
« promesse » |
“undertaking” means an
undertaking in Form 11.1 or 12; |
|
“warrant”, when used in
relation to a warrant for the arrest of a person, means a warrant in
Form 7 and, when used in relation to a warrant for the committal of
a person, means a warrant in Form 8.
R.S.,
1985, c. C-46, s. 493; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27
(2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 5, c.
17, s. 12; 1992, c. 51, s. 37; 1994, c. 44, s. 39; 1999, c. 3, s.
30; 2002, c. 7, s. 143. |
|
Arrest
without Warrant and Release from Custody |
|
494. (1) Any
one may arrest without warrant
(a) a person whom he finds
committing an indictable offence; or
(b) a person who, on reasonable
grounds, he believes
(i)
has committed a criminal offence, and
(ii)
is escaping from and freshly pursued by persons who have lawful
authority to arrest that person. |
Arrest
by owner, etc., of property |
(2)
Any one who is
(a) the owner or a person in lawful
possession of property, or
(b) a person authorized by the
owner or by a person in lawful possession of property,
may
arrest without warrant a person whom he finds committing a criminal
offence on or in relation to that property. |
Delivery
to peace officer |
(3)
Any one other than a peace officer who arrests a person without
warrant shall forthwith deliver the person to a peace officer.
R.S.,
c. C-34, s. 449; R.S., c. 2(2nd Supp.), s. 5. |
|
495. (1) A
peace officer may arrest without warrant
(a) a person who has committed an
indictable offence or who, on reasonable grounds, he believes has
committed or is about to commit an indictable offence;
(b) a person whom he finds
committing a criminal offence; or
(c) a person in respect of whom he
has reasonable grounds to believe that a warrant of arrest or
committal, in any form set out in Part XXVIII in relation thereto,
is in force within the territorial jurisdiction in which the person
is found. |
|
(2) A
peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned
in section 553,
(b) an offence for which the person
may be prosecuted by indictment or for which he is punishable on
summary conviction, or
(c) an offence punishable on
summary conviction,
in any
case where
(d) he believes on reasonable
grounds that the public interest, having regard to all the
circumstances including the need to
(i)
establish the identity of the person,
(ii)
secure or preserve evidence of or relating to the offence, or
(iii)
prevent the continuation or repetition of the offence or the
commission of another offence,
may be
satisfied without so arresting the person, and
(e) he has no reasonable grounds to
believe that, if he does not so arrest the person, the person will
fail to attend court in order to be dealt with according to
law. |
Consequences
of arrest without warrant |
(3)
Notwithstanding subsection (2), a peace officer acting under
subsection (1) is deemed to be acting lawfully and in the execution
of his duty for the purposes of
(a) any proceedings under this or
any other Act of Parliament; and
(b) any other proceedings, unless
in any such proceedings it is alleged and established by the person
making the allegation that the peace officer did not comply with the
requirements of subsection (2).
R.S.,
1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s.
75. |
|
496. Where,
by virtue of subsection 495(2), a peace officer does not arrest a
person, he may issue an appearance notice to the person if the
offence is
(a) an indictable offence mentioned
in section 553;
(b) an offence for which the person
may be prosecuted by indictment or for which he is punishable on
summary conviction; or
(c) an offence punishable on
summary conviction.
R.S.,
c. C-34, s. 451; R.S., c. 2(2nd Supp.), s. 5. |
|
497. (1)
Subject to subsection (1.1), if a peace officer arrests a person
without warrant for an offence described in paragraph 496(a), (b) or (c), the peace officer shall, as
soon as practicable,
(a) release the person from custody
with the intention of compelling their appearance by way of summons;
or
(b) issue an appearance notice to
the person and then release them. |
|
(1.1)
A peace officer shall not release a person under subsection (1) if
the peace officer believes, on reasonable grounds,
(a) that it is necessary in the
public interest that the person be detained in custody or that the
matter of their release from custody be dealt with under another
provision of this Part, having regard to all the circumstances
including the need to
(i)
establish the identity of the person,
(ii)
secure or preserve evidence of or relating to the offence,
(iii)
prevent the continuation or repetition of the offence or the
commission of another offence, or
(iv)
ensure the safety and security of any victim of or witness to the
offence; or
(b) that if the person is released
from custody, the person will fail to attend court in order to be
dealt with according to law. |
Where
subsection (1) does not apply |
(2)
Subsection (1) does not apply in respect of a person who has been
arrested without warrant by a peace officer for an offence described
in subsection 503(3). |
Consequences
of non-release |
(3) A
peace officer who has arrested a person without warrant for an
offence described in subsection (1) and who does not release the
person from custody as soon as practicable in the manner described
in that subsection shall be deemed to be acting lawfully and in the
execution of the peace officer’s duty for the purposes of
(a) any proceedings under this or
any other Act of Parliament; and
(b) any other proceedings, unless
in any such proceedings it is alleged and established by the person
making the allegation that the peace officer did not comply with the
requirements of subsection (1).
R.S.,
1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble). |
|
498. (1)
Subject to subsection (1.1), if a person who has been arrested
without warrant by a peace officer is taken into custody, or if a
person who has been arrested without warrant and delivered to a
peace officer under subsection 494(3) or placed in the custody of a
peace officer under subsection 163.5(3) of the Customs Act is detained in
custody under subsection 503(1) for an offence described in
paragraph 496(a), (b) or (c), or any other offence that is
punishable by imprisonment for five years or less, and has not been
taken before a justice or released from custody under any other
provision of this Part, the officer in charge or another peace
officer shall, as soon as practicable,
(a) release the person with the
intention of compelling their appearance by way of summons;
(b) release the person on their
giving a promise to appear;
(c) release the person on the
person’s entering into a recognizance before the officer in charge
or another peace officer without sureties in an amount not exceeding
$500 that the officer directs, but without deposit of money or other
valuable security; or
(d) if the person is not ordinarily
resident in the province in which the person is in custody or does
not ordinarily reside within 200 kilometres of the place in which
the person is in custody, release the person on the person’s
entering into a recognizance before the officer in charge or another
peace officer without sureties in an amount not exceeding $500 that
the officer directs and, if the officer so directs, on depositing
with the officer a sum of money or other valuable security not
exceeding in amount or value $500, that the officer
directs. |
|
(1.1)
The officer in charge or the peace officer shall not release a
person under subsection (1) if the officer in charge or peace
officer believes, on reasonable grounds,
(a) that it is necessary in the
public interest that the person be detained in custody or that the
matter of their release from custody be dealt with under another
provision of this Part, having regard to all the circumstances
including the need to
(i)
establish the identity of the person,
(ii)
secure or preserve evidence of or relating to the offence,
(iii)
prevent the continuation or repetition of the offence or the
commission of another offence, or
(iv)
ensure the safety and security of any victim of or witness to the
offence; or
(b) that, if the person is released
from custody, the person will fail to attend court in order to be
dealt with according to law. |
Where
subsection (1) does not apply |
(2)
Subsection (1) does not apply in respect of a person who has been
arrested without warrant by a peace officer for an offence described
in subsection 503(3). |
Consequences
of non-release |
(3) An
officer in charge or another peace officer who has the custody of a
person taken into or detained in custody for an offence described in
subsection (1) and who does not release the person from custody as
soon as practicable in the manner described in that subsection shall
be deemed to be acting lawfully and in the execution of the
officer’s duty for the purposes of
(a) any proceedings under this or
any other Act of Parliament; or
(b) any other proceedings, unless
in any such proceedings it is alleged and established by the person
making the allegation that the officer in charge or other peace
officer did not comply with the requirements of subsection (1).
R.S.,
1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997,
c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4,
30(Preamble). |
|
499. (1)
Where a person who has been arrested with a warrant by a peace
officer is taken into custody for an offence other than one
mentioned in section 522, the officer in charge may, if the warrant
has been endorsed by a justice under subsection 507(6),
(a) release the person on the
person’s giving a promise to appear;
(b) release the person on the
person’s entering into a recognizance before the officer in charge
without sureties in the amount not exceeding five hundred dollars
that the officer in charge directs, but without deposit of money or
other valuable security; or
(c) if the person is not ordinarily
resident in the province in which the person is in custody or does
not ordinarily reside within two hundred kilometres of the place in
which the person is in custody, release the person on the person’s
entering into a recognizance before the officer in charge without
sureties in the amount not exceeding five hundred dollars that the
officer in charge directs and, if the officer in charge so directs,
on depositing with the officer in charge such sum of money or other
valuable security not exceeding in amount or value five hundred
dollars, as the officer in charge directs. |
|
(2) In
addition to the conditions for release set out in paragraphs
(1)(a), (b) and (c), the officer in charge may also
require the person to enter into an undertaking in Form 11.1 in
which the person, in order to be released, undertakes to do one or
more of the following things:
(a) to remain within a territorial
jurisdiction specified in the undertaking;
(b) to notify a peace officer or
another person mentioned in the undertaking of any change in his or
her address, employment or occupation;
(c) to abstain from communicating,
directly or indirectly, with any victim, witness or other person
identified in the undertaking, or from going to a place specified in
the undertaking, except in accordance with the conditions specified
in the undertaking;
(d) to deposit the person’s
passport with the peace officer or other person mentioned in the
undertaking;
(e) to abstain from possessing a
firearm and to surrender any firearm in the possession of the person
and any authorization, licence or registration certificate or other
document enabling that person to acquire or possess a firearm;
(f) to report at the times
specified in the undertaking to a peace officer or other person
designated in the undertaking;
(g) to abstain from
(i)
the consumption of alcohol or other intoxicating substances, or
(ii)
the consumption of drugs except in accordance with a medical
prescription; and
(h) to comply with any other
condition specified in the undertaking that the officer in charge
considers necessary to ensure the safety and security of any victim
of or witness to the offence. |
|
(3) A
person who has entered into an undertaking under subsection (2) may,
at any time before or at his or her appearance pursuant to a promise
to appear or recognizance, apply to a justice for an order under
subsection 515(1) to replace his or her undertaking, and section 515
applies, with such modifications as the circumstances require, to
such a person. |
Application
by prosecutor |
(4)
Where a person has entered into an undertaking under subsection (2),
the prosecutor may
(a) at any time before the
appearance of the person pursuant to a promise to appear or
recognizance, after three days notice has been given to that person,
or
(b) at the appearance,
apply to
a justice for an order under subsection 515(2) to replace the
undertaking, and section 515 applies, with such modifications as the
circumstances require, to such a person.
R.S.,
1985, c. C-46, s. 499; R.S., 1985, c. 27 (1st Supp.), s. 186; 1994,
c. 44, s. 40; 1997, c. 18, s. 53; 1999, c. 25, s.
5(Preamble). |
|
500. If a
person has, under paragraph 498(1)(d) or 499(1)(c), deposited any sum of money or
other valuable security with the officer in charge, the officer in
charge shall, without delay after the deposit, cause the money or
valuable security to be delivered to a justice for deposit with the
justice.
R.S.,
1985, c. C-46, s. 500; 1999, c. 5, s. 20, c. 25, s.
6(Preamble). |
|
501. (1) An
appearance notice issued by a peace officer or a promise to appear
given to, or a recognizance entered into before, an officer in
charge or another peace officer shall
(a) set out the name of the
accused;
(b) set out the substance of the
offence that the accused is alleged to have committed; and
(c) require the accused to attend
court at a time and place to be stated therein and to attend
thereafter as required by the court in order to be dealt with
according to law. |
|
(2) An
appearance notice issued by a peace officer or a promise to appear
given to, or a recognizance entered into before, an officer in
charge or another peace officer shall set out the text of
subsections 145(5) and (6) and section 502. |
Attendance
for purposes of Identification of
Criminals Act |
(3) An
appearance notice issued by a peace officer or a promise to appear
given to, or a recognizance entered into before, an officer in
charge or another peace officer may require the accused to appear at
a time and place stated in it for the purposes of the Identification of Criminals Act,
where the accused is alleged to have committed an indictable offence
and, in the case of an offence designated as a contravention under
the Contraventions Act, the
Attorney General, within the meaning of that Act, has not made an
election under section 50 of that Act. |
|
(4) An
accused shall be requested to sign in duplicate his appearance
notice, promise to appear or recognizance and, whether or not he
complies with that request, one of the duplicates shall be given to
the accused, but if the accused fails or refuses to sign, the lack
of his signature does not invalidate the appearance notice, promise
to appear or recognizance, as the case may be. |
Proof
of issue of appearance notice |
(5)
The issue of an appearance notice by any peace officer may be proved
by the oral evidence, given under oath, of the officer who issued it
or by the officer’s affidavit made before a justice or other person
authorized to administer oaths or to take affidavits.
R.S.,
1985, c. C-46, s. 501; R.S., 1985, c. 27 (1st Supp.), s. 76; 1992,
c. 47, s. 69; 1994, c. 44, ss. 41, 94; 1996, c. 7, s. 38. |
|
502. Where an
accused who is required by an appearance notice or promise to appear
or by a recognizance entered into before an officer in charge or
another peace officer to appear at a time and place stated therein
for the purposes of the Identification of Criminals Act
does not appear at that time and place, a justice may, where the
appearance notice, promise to appear or recognizance has been
confirmed by a justice under section 508, issue a warrant for the
arrest of the accused for the offence with which the accused is
charged.
R.S.,
1985, c. C-46, s. 502; 1992, c. 47, s. 70; 1996, c. 7, s. 38; 1997,
c. 18, s. 54. |
|
Appearance
of Accused before Justice |
|
503. (1) A
peace officer who arrests a person with or without warrant or to
whom a person is delivered under subsection 494(3) or into whose
custody a person is placed under subsection 163.5(3) of the Customs Act shall cause the
person to be detained in custody and, in accordance with the
following provisions, to be taken before a justice to be dealt with
according to law:
(a) where a justice is available
within a period of twenty-four hours after the person has been
arrested by or delivered to the peace officer, the person shall be
taken before a justice without unreasonable delay and in any event
within that period, and
(b) where a justice is not
available within a period of twenty-four hours after the person has
been arrested by or delivered to the peace officer, the person shall
be taken before a justice as soon as possible,
unless,
at any time before the expiration of the time prescribed in
paragraph (a) or (b) for taking the person before a
justice,
(c) the peace officer or officer in
charge releases the person under any other provision of this Part,
or
(d) the peace officer or officer in
charge is satisfied that the person should be released from custody,
whether unconditionally under subsection (4) or otherwise
conditionally or unconditionally, and so releases him. |
|
(2) If
a peace officer or an officer in charge is satisfied that a person
described in subsection (1) should be released from custody
conditionally, the officer may, unless the person is detained in
custody for an offence mentioned in section 522, release that person
on the person’s giving a promise to appear or entering into a
recognizance in accordance with paragraphs 498(1)(b) to (d) and subsection (2.1). |
|
(2.1)
In addition to the conditions referred to in subsection (2), the
peace officer or officer in charge may, in order to release the
person, require the person to enter into an undertaking in Form 11.1
in which the person undertakes to do one or more of the following
things:
(a) to remain within a territorial
jurisdiction specified in the undertaking;
(b) to notify the peace officer or
another person mentioned in the undertaking of any change in his or
her address, employment or occupation;
(c) to abstain from communicating,
directly or indirectly, with any victim, witness or other person
identified in the undertaking, or from going to a place specified in
the undertaking, except in accordance with the conditions specified
in the undertaking;
(d) to deposit the person’s
passport with the peace officer or other person mentioned in the
undertaking;
(e) to abstain from possessing a
firearm and to surrender any firearm in the possession of the person
and any authorization, licence or registration certificate or other
document enabling that person to acquire or possess a firearm;
(f) to report at the times
specified in the undertaking to a peace officer or other person
designated in the undertaking;
(g) to abstain from
(i)
the consumption of alcohol or other intoxicating substances, or
(ii)
the consumption of drugs except in accordance with a medical
prescription; or
(h) to comply with any other
condition specified in the undertaking that the peace officer or
officer in charge considers necessary to ensure the safety and
security of any victim of or witness to the offence. |
|
(2.2)
A person who has entered into an undertaking under subsection (2.1)
may, at any time before or at his or her appearance pursuant to a
promise to appear or recognizance, apply to a justice for an order
under subsection 515(1) to replace his or her undertaking, and
section 515 applies, with such modifications as the circumstances
require, to such a person. |
Application
by prosecutor |
(2.3)
Where a person has entered into an undertaking under subsection
(2.1), the prosecutor may
(a) at any time before the
appearance of the person pursuant to a promise to appear or
recognizance, after three days notice has been given to that person,
or
(b) at the appearance,
apply to
a justice for an order under subsection 515(2) to replace the
undertaking, and section 515 applies, with such modifications as the
circumstances require, to such a person. |
Remand
in custody for return to jurisdiction where offence alleged to have
been committed |
(3)
Where a person has been arrested without warrant for an indictable
offence alleged to have been committed in Canada outside the
territorial division where the arrest took place, the person shall,
within the time prescribed in paragraph (1)(a) or (b), be taken before a justice
within whose jurisdiction the person was arrested unless, where the
offence was alleged to have been committed within the province in
which the person was arrested, the person was taken before a justice
within whose jurisdiction the offence was alleged to have been
committed, and the justice within whose jurisdiction the person was
arrested
(a) if the justice is not satisfied
that there are reasonable grounds to believe that the person
arrested is the person alleged to have committed the offence, shall
release that person; or
(b) if the justice is satisfied
that there are reasonable grounds to believe that the person
arrested is the person alleged to have committed the offence,
may
(i)
remand the person to the custody of a peace officer to await
execution of a warrant for his or her arrest in accordance with
section 528, but if no warrant is so executed within a period of six
days after the time he or she is remanded to such custody, the
person in whose custody he or she then is shall release him or her,
or
(ii)
where the offence was alleged to have been committed within the
province in which the person was arrested, order the person to be
taken before a justice having jurisdiction with respect to the
offence. |
|
(3.1)
Notwithstanding paragraph (3)(b), a justice may, with the
consent of the prosecutor, order that the person referred to in
subsection (3), pending the execution of a warrant for the arrest of
that person, be released
(a) unconditionally; or
(b) on any of the following terms
to which the prosecutor consents, namely,
(i)
giving an undertaking, including an undertaking to appear at a
specified time before the court that has jurisdiction with respect
to the indictable offence that the person is alleged to have
committed, or
(ii)
entering into a recognizance described in any of paragraphs
515(2)(a) to (e)
with
such conditions described in subsection 515(4) as the justice
considers desirable and to which the prosecutor consents. |
Release
of person about to commit indictable offence |
(4) A
peace officer or an officer in charge having the custody of a person
who has been arrested without warrant as a person about to commit an
indictable offence shall release that person unconditionally as soon
as practicable after he is satisfied that the continued detention of
that person in custody is no longer necessary in order to prevent
the commission by him of an indictable offence. |
Consequences
of non-release |
(5)
Notwithstanding subsection (4), a peace officer or an officer in
charge having the custody of a person referred to in that subsection
who does not release the person before the expiration of the time
prescribed in paragraph (1)(a) or (b) for taking the person before
the justice shall be deemed to be acting lawfully and in the
execution of his duty for the purposes of
(a) any proceedings under this or
any other Act of Parliament; or
(b) any other proceedings, unless
in such proceedings it is alleged and established by the person
making the allegation that the peace officer or officer in charge
did not comply with the requirements of subsection (4).
R.S.,
1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994,
c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s.
7(Preamble). |
|
Information,
Summons and Warrant |
|
504. Any one
who, on reasonable grounds, believes that a person has committed an
indictable offence may lay an information in writing and under oath
before a justice, and the justice shall receive the information,
where it is alleged
(a) that the person has committed,
anywhere, an indictable offence that may be tried in the province in
which the justice resides, and that the person
(i) is
or is believed to be, or
(ii)
resides or is believed to reside,
within
the territorial jurisdiction of the justice;
(b) that the person, wherever he
may be, has committed an indictable offence within the territorial
jurisdiction of the justice;
(c) that the person has, anywhere,
unlawfully received property that was unlawfully obtained within the
territorial jurisdiction of the justice; or
(d) that the person has in his
possession stolen property within the territorial jurisdiction of
the justice.
R.S.,
c. C-34, s. 455; R.S., c. 2(2nd Supp.), s. 5. |
|
505.
Where
(a) an appearance notice has been
issued to an accused under section 496, or
(b) an accused has been released
from custody under section 497 or 498,
an
information relating to the offence alleged to have been committed
by the accused or relating to an included or other offence alleged
to have been committed by him shall be laid before a justice as soon
as practicable thereafter and in any event before the time stated in
the appearance notice, promise to appear or recognizance issued to
or given or entered into by the accused for his attendance in
court.
R.S.,
c. 2(2nd Supp.), s. 5. |
|
506. An
information laid under section 504 or 505 may be in Form 2.
R.S.,
c. 2(2nd Supp.), s. 5. |
|
507. (1)
Subject to subsection 523(1.1), a justice who receives an
information laid under section 504 by a peace officer, a public
officer, the Attorney General or the Attorney General’s agent, other
than an information laid before the justice under section 505,
shall, except if an accused has already been arrested with or
without a warrant,
(a) hear and consider, ex parte,
(i)
the allegations of the informant, and
(ii)
the evidence of witnesses, where he considers it desirable or
necessary to do so; and
(b) where he considers that a case
for so doing is made out, issue, in accordance with this section,
either a summons or a warrant for the arrest of the accused to
compel the accused to attend before him or some other justice for
the same territorial division to answer to a charge of an
offence. |
|
(2) No
justice shall refuse to issue a summons or warrant by reason only
that the alleged offence is one for which a person may be arrested
without warrant. |
Procedure
when witnesses attend |
(3) A
justice who hears the evidence of a witness pursuant to subsection
(1) shall
(a) take the evidence on oath;
and
(b) cause the evidence to be taken
in accordance with section 540 in so far as that section is capable
of being applied. |
Summons
to be issued except in certain cases |
(4)
Where a justice considers that a case is made out for compelling an
accused to attend before him to answer to a charge of an offence, he
shall issue a summons to the accused unless the allegations of the
informant or the evidence of any witness or witnesses taken in
accordance with subsection (3) discloses reasonable grounds to
believe that it is necessary in the public interest to issue a
warrant for the arrest of the accused. |
|
(5) A
justice shall not sign a summons or warrant in blank. |
Endorsement
of warrant by justice |
(6) A
justice who issues a warrant under this section or section 508 or
512 may, unless the offence is one mentioned in section 522,
authorize the release of the accused pursuant to section 499 by
making an endorsement on the warrant in Form 29. |
Promise
to appear or recognizance deemed to have been confirmed |
(7)
Where, pursuant to subsection (6), a justice authorizes the release
of an accused pursuant to section 499, a promise to appear given by
the accused or a recognizance entered into by the accused pursuant
to that section shall be deemed, for the purposes of subsection
145(5), to have been confirmed by a justice under section
508. |
Issue
of summons or warrant |
(8)
Where, on an appeal from or review of any decision or matter of
jurisdiction, a new trial or hearing or a continuance or renewal of
a trial or hearing is ordered, a justice may issue either a summons
or a warrant for the arrest of the accused in order to compel the
accused to attend at the new or continued or renewed trial or
hearing.
R.S.,
1985, c. C-46, s. 507; R.S., 1985, c. 27 (1st Supp.), s. 78; 1994,
c. 44, s. 43; 2002, c. 13, s. 21. |
|
507.1 (1) A
justice who receives an information laid under section 504, other
than an information referred to in subsection 507(1), shall refer it
to a provincial court judge or, in Quebec, a judge of the Court of
Quebec, or to a designated justice, to consider whether to compel
the appearance of the accused on the information. |
|
(2) A
judge or designated justice to whom an information is referred under
subsection (1) and who considers that a case for doing so is made
out shall issue either a summons or warrant for the arrest of the
accused to compel him or her to attend before a justice to answer to
a charge of the offence charged in the information. |
|
(3)
The judge or designated justice may issue a summons or warrant only
if he or she
(a) has heard and considered the
allegations of the informant and the evidence of witnesses;
(b) is satisfied that the Attorney
General has received a copy of the information;
(c) is satisfied that the Attorney
General has received reasonable notice of the hearing under
paragraph (a); and
(d) has given the Attorney General
an opportunity to attend the hearing under paragraph (a) and to cross-examine and call
witnesses and to present any relevant evidence at the
hearing. |
Appearance
of Attorney General |
(4)
The Attorney General may appear at the hearing held under paragraph
(3)(a) without being deemed
to intervene in the proceeding. |
Information
deemed not to have been laid |
(5) If
the judge or designated justice does not issue a summons or warrant
under subsection (2), he or she shall endorse the information with a
statement to that effect. Unless the informant, not later than six
months after the endorsement, commences proceedings to compel the
judge or designated justice to issue a summons or warrant, the
information is deemed never to have been laid. |
Information
deemed not to have been laid — proceedings commenced |
(6) If
proceedings are commenced under subsection (5) and a summons or
warrant is not issued as a result of those proceedings, the
information is deemed never to have been laid. |
New
evidence required for new hearing |
(7) If
a hearing in respect of an offence has been held under paragraph
(3)(a) and the judge or
designated justice has not issued a summons or a warrant, no other
hearings may be held under that paragraph with respect to the
offence or an included offence unless there is new evidence in
support of the allegation in respect of which the hearing is sought
to be held. |
Subsections
507(2) to (8) to apply |
(8)
Subsections 507(2) to (8) apply to proceedings under this
section. |
Non-application
— informations laid under sections 810 and 810.1 |
(9)
Subsections (1) to (8) do not apply in respect of an information
laid under section 810 or 810.1. |
Definition
of “designated justice” |
(10)
In this section, “designated justice” means a justice designated for
the purpose by the chief judge of the provincial court having
jurisdiction in the matter or, in Quebec, a justice designated by
the chief judge of the Court of Quebec.
2002,
c. 13, s. 22. |
|
508. (1) A
justice who receives an information laid before him under section
505 shall
(a) hear and consider, ex parte,
(i)
the allegations of the informant, and
(ii)
the evidence of witnesses, where he considers it desirable or
necessary to do so;
(b) where he considers that a case
for so doing is made out, whether the information relates to the
offence alleged in the appearance notice, promise to appear or
recognizance or to an included or other offence,
(i)
confirm the appearance notice, promise to appear or recognizance, as
the case may be, and endorse the information accordingly, or
(ii)
cancel the appearance notice, promise to appear or recognizance, as
the case may be, and issue, in accordance with section 507, either a
summons or a warrant for the arrest of the accused to compel the
accused to attend before him or some other justice for the same
territorial division to answer to a charge of an offence and endorse
on the summons or warrant that the appearance notice, promise to
appear or recognizance, as the case may be, has been cancelled;
and
(c) where he considers that a case
is not made out for the purposes of paragraph (b), cancel the appearance notice,
promise to appear or recognizance, as the case may be, and cause the
accused to be notified forthwith of the cancellation. |
Procedure
when witnesses attend |
(2) A
justice who hears the evidence of a witness pursuant to subsection
(1) shall
(a) take the evidence on oath;
and
(b) cause the evidence to be taken
in accordance with section 540 in so far as that section is capable
of being applied.
R.S.,
1985, c. C-46, s. 508; R.S., 1985, c. 27 (1st Supp.), s.
79. |
|
508.1 (1) For
the purposes of sections 504 to 508, a peace officer may lay an
information by any means of telecommunication that produces a
writing. |
|
(2) A
peace officer who uses a means of telecommunication referred to in
subsection (1) shall, instead of swearing an oath, make a statement
in writing stating that all matters contained in the information are
true to the officer’s knowledge and belief, and such a statement is
deemed to be a statement made under oath.
1997,
c. 18, s. 56. |
|
509. (1) A
summons issued under this Part shall
(a) be directed to the accused;
(b) set out briefly the offence in
respect of which the accused is charged; and
(c) require the accused to attend
court at a time and place to be stated therein and to attend
thereafter as required by the court in order to be dealt with
according to law. |
|
(2) A
summons shall be served by a peace officer who shall deliver it
personally to the person to whom it is directed or, if that person
cannot conveniently be found, shall leave it for him at his latest
or usual place of abode with an inmate thereof who appears to be at
least sixteen years of age. |
|
(3)
Service of a summons may be proved by the oral evidence, given under
oath, of the peace officer who served it or by his affidavit made
before a justice or other person authorized to administer oaths or
to take affidavits. |
|
(4)
There shall be set out in every summons the text of subsection
145(4) and section 510. |
Attendance
for purposes of Identification of
Criminals Act |
(5) A
summons may require the accused to appear at a time and place stated
in it for the purposes of the Identification of Criminals Act,
where the accused is alleged to have committed an indictable offence
and, in the case of an offence designated as a contravention under
the Contraventions Act, the
Attorney General, within the meaning of that Act, has not made an
election under section 50 of that Act.
R.S.,
1985, c. C-46, s. 509; R.S., 1985, c. 27 (1st Supp.), s. 80; 1992,
c. 47, s. 71; 1996, c. 7, s. 38. |
|
510. Where an
accused who is required by a summons to appear at a time and place
stated in it for the purposes of the Identification of Criminals Act
does not appear at that time and place and, in the case of an
offence designated as a contravention under the Contraventions Act, the Attorney
General, within the meaning of that Act, has not made an election
under section 50 of that Act, a justice may issue a warrant for the
arrest of the accused for the offence with which the accused is
charged.
R.S.,
1985, c. C-46, s. 510; 1992, c. 47, s. 72; 1996, c. 7, s.
38. |
|
511. (1) A
warrant issued under this Part shall
(a) name or describe the
accused;
(b) set out briefly the offence in
respect of which the accused is charged; and
(c) order that the accused be
forthwith arrested and brought before the judge or justice who
issued the warrant or before some other judge or justice having
jurisdiction in the same territorial division, to be dealt with
according to law. |
|
(2) A
warrant issued under this Part remains in force until it is executed
and need not be made returnable at any particular time. |
Discretion
to postpone execution |
(3)
Notwithstanding paragraph (1)(c), a judge or justice who issues
a warrant may specify in the warrant the period before which the
warrant shall not be executed, to allow the accused to appear
voluntarily before a judge or justice having jurisdiction in the
territorial division in which the warrant was issued. |
Deemed
execution of warrant |
(4)
Where the accused appears voluntarily for the offence in respect of
which the accused is charged, the warrant is deemed to be
executed.
R.S.,
1985, c. C-46, s. 511; R.S., 1985, c. 27 (1st Supp.), s. 81; 1997,
c. 18, s. 57. |
|
512. (1) A
justice may, where the justice has reasonable and probable grounds
to believe that it is necessary in the public interest to issue a
summons or a warrant for the arrest of the accused, issue a summons
or warrant, notwithstanding that
(a) an appearance notice or a
promise to appear or a recognizance entered into before an officer
in charge or another peace officer has been confirmed or cancelled
under subsection 508(1);
(b) a summons has previously been
issued under subsection 507(4); or
(c) the accused has been released
unconditionally or with the intention of compelling his appearance
by way of summons. |
Warrant
in default of appearance |
(2)
Where
(a) service of a summons is proved
and the accused fails to attend court in accordance with the
summons,
(b) an appearance notice or a
promise to appear or a recognizance entered into before an officer
in charge or another peace officer has been confirmed under
subsection 508(1) and the accused fails to attend court in
accordance therewith in order to be dealt with according to law,
or
(c) it appears that a summons
cannot be served because the accused is evading service,
a
justice may issue a warrant for the arrest of the accused.
R.S.,
1985, c. C-46, s. 512; R.S., 1985, c. 27 (1st Supp.), s. 82; 1997,
c. 18, s. 58. |
|
513. A
warrant in accordance with this Part shall be directed to the peace
officers within the territorial jurisdiction of the justice, judge
or court by whom or by which it is issued.
R.S.,
c. 2(2nd Supp.), s. 5. |
|
514. (1) A
warrant in accordance with this Part may be executed by arresting
the accused
(a) wherever he is found within the
territorial jurisdiction of the justice, judge or court by whom or
by which the warrant was issued; or
(b) wherever he is found in Canada,
in the case of fresh pursuit. |
By
whom warrant may be executed |
(2) A
warrant in accordance with this Part may be executed by a person who
is one of the peace officers to whom it is directed, whether or not
the place in which the warrant is to be executed is within the
territory for which the person is a peace officer.
R.S.,
c. 2(2nd Supp.), s. 5. |
|
|
|
515. (1)
Subject to this section, where an accused who is charged with an
offence other than an offence listed in section 469 is taken before
a justice, the justice shall, unless a plea of guilty by the accused
is accepted, order, in respect of that offence, that the accused be
released on his giving an undertaking without conditions, unless the
prosecutor, having been given a reasonable opportunity to do so,
shows cause, in respect of that offence, why the detention of the
accused in custody is justified or why an order under any other
provision of this section should be made and where the justice makes
an order under any other provision of this section, the order shall
refer only to the particular offence for which the accused was taken
before the justice. |
Release
on undertaking with conditions, etc. |
(2)
Where the justice does not make an order under subsection (1), he
shall, unless the prosecutor shows cause why the detention of the
accused is justified, order that the accused be released
(a) on his giving an undertaking
with such conditions as the justice directs;
(b) on his entering into a
recognizance before the justice, without sureties, in such amount
and with such conditions, if any, as the justice directs but without
deposit of money or other valuable security;
(c) on his entering into a
recognizance before the justice with sureties in such amount and
with such conditions, if any, as the justice directs but without
deposit of money or other valuable security;
(d) with the consent of the
prosecutor, on his entering into a recognizance before the justice,
without sureties, in such amount and with such conditions, if any,
as the justice directs and on his depositing with the justice such
sum of money or other valuable security as the justice directs;
or
(e) if the accused is not
ordinarily resident in the province in which the accused is in
custody or does not ordinarily reside within two hundred kilometres
of the place in which he is in custody, on his entering into a
recognizance before the justice with or without sureties in such
amount and with such conditions, if any, as the justice directs, and
on his depositing with the justice such sum of money or other
valuable security as the justice directs. |
Power
of justice to name sureties in order |
(2.1)
Where, pursuant to subsection (2) or any other provision of this
Act, a justice, judge or court orders that an accused be released on
his entering into a recognizance with sureties, the justice, judge
or court may, in the order, name particular persons as
sureties. |
Alternative
to physical presence |
(2.2)
Where, by this Act, the appearance of an accused is required for the
purposes of judicial interim release, the appearance shall be by
actual physical attendance of the accused but the justice may,
subject to subsection (2.3), allow the accused to appear by means of
any suitable telecommunication device, including telephone, that is
satisfactory to the justice. |
|
(2.3)
The consent of the prosecutor and the accused is required for the
purposes of an appearance if the evidence of a witness is to be
taken at the appearance and the accused cannot appear by
closed-circuit television or any other means that allow the court
and the accused to engage in simultaneous visual and oral
communication. |
|
(3)
The justice shall not make an order under any of paragraphs
(2)(b) to (e) unless the prosecution shows
cause why an order under the immediately preceding paragraph should
not be made. |
|
(4)
The justice may direct as conditions under subsection (2) that the
accused shall do any one or more of the following things as
specified in the order:
(a) report at times to be stated in
the order to a peace officer or other person designated in the
order;
(b) remain within a territorial
jurisdiction specified in the order;
(c) notify the peace officer or
other person designated under paragraph (a) of any change in his address or
his employment or occupation;
(d) abstain from communicating,
directly or indirectly, with any victim, witness or other person
identified in the order, or refrain from going to any place
specified in the order, except in accordance with the conditions
specified in the order that the justice considers necessary;
(e) where the accused is the holder
of a passport, deposit his passport as specified in the order;
(e.1) comply with any other
condition specified in the order that the justice considers
necessary to ensure the safety and security of any victim of or
witness to the offence; and
(f) comply with such other
reasonable conditions specified in the order as the justice
considers desirable. |
Condition
prohibiting possession of firearms, etc. |
(4.1)
When making an order under subsection (2), in the case of an accused
who is charged with
(a) an offence in the commission of
which violence against a person was used, threatened or
attempted,
(a.1) a terrorism offence,
(b) an offence under section 264
(criminal harassment),
(b.1) an offence under section
423.1 (intimidation of a justice system participant),
(c) an offence relating to the
contravention of subsection 5(3) or (4), 6(3) or 7(2) of the Controlled Drugs and Substances
Act,
(d) an offence that involves, or
the subject-matter of which is, a firearm, a cross-bow, a prohibited
weapon, a restricted weapon, a prohibited device, ammunition,
prohibited ammunition or an explosive substance, or
(e) an offence under subsection
20(1) of the Security of
Information Act, or an offence under subsection 21(1) or
22(1) or section 23 of that Act that is committed in relation to on
offence under subsection 20(1) of that Act,
the
justice shall add to the order a condition prohibiting the accused
from possessing a firearm, cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition, prohibited ammunition or
explosive substance, or all those things, until the accused is dealt
with according to law unless the justice considers that such a
condition is not required in the interests of the safety of the
accused or the safety and security of a victim of the offence or of
any other person. |
|
(4.11)
Where the justice adds a condition described in subsection (4.1) to
an order made under subsection (2), the justice shall specify in the
order the manner and method by which
(a) the things referred to in
subsection (4.1) that are in the possession of the accused shall be
surrendered, disposed of, detained, stored or dealt with; and
(b) the authorizations, licences
and registration certificates held by the person shall be
surrendered. |
|
(4.12)
Where the justice does not add a condition described in subsection
(4.1) to an order made under subsection (2), the justice shall
include in the record a statement of the reasons for not adding the
condition. |
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(4.2)
Before making an order under subsection (2), in the case of an
accused who is charged with an offence referred to in subsection
(4.3), the justice shall consider whether it is desirable, in the
interests of the safety and security of any person, particularly a
victim of or witness to the offence or a justice system participant,
to include as a condition of the order
(a) that the accused abstain from
communicating, directly or indirectly, with any victim, witness or
other person identified in the order, or refrain from going to any
place specified in the order; or
(b) that the accused comply with
any other condition specified in the order that the justice
considers necessary to ensure the safety and security of those
persons. |
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(4.3)
The offences for the purposes of subsection (4.2) are
(a) a terrorism offence;
(b) an offence described in section
264 or 423.1;
(c) an offence in the commission of
which violence against a person was used, threatened or attempted;
and
(d) an offence under subsection
20(1) of the Security of
Information Act, or an offence under subsection 21(1) or
22(1) or section 23 of that Act that is committed in relation to an
offence under subsection 20(1) of that Act. |
|
(5)
Where the prosecutor shows cause why the detention of the accused in
custody is justified, the justice shall order that the accused be
detained in custody until he is dealt with according to law and
shall include in the record a statement of his reasons for making
the order. |
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(6)
Notwithstanding any provision of this section, where an accused is
charged
(a) with an indictable offence,
other than an offence listed in section 469,
(i)
that is alleged to have been committed while at large after being
released in respect of another indictable offence pursuant to the
provisions of this Part or section 679 or 680,
(ii)
that is an offence under section 467.11, 467.12 or 467.13, or a
serious offence alleged to have been committed for the benefit of,
at the direction of, or in association with, a criminal
organization,
(iii)
that is an offence under any of sections 83.02 to 83.04 and 83.18 to
83.23 or otherwise is alleged to be a terrorism offence,
(iv)
an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or
22(1) of the Security of
Information Act, or
(v) an
offence under subsection 21(1) or 22(1) or section 23 of the Security of Information Act that
is committed in relation to on offence referred to in subparagraph
(iv),
(b) with an indictable offence,
other than an offence listed in section 469 and is not ordinarily
resident in Canada,
(c) with an offence under any of
subsections 145(2) to (5) that is alleged to have been committed
while he was at large after being released in respect of another
offence pursuant to the provisions of this Part or section 679, 680
or 816, or
(d) with having committed an
offence punishable by imprisonment for life under subsection 5(3),
6(3) or 7(2) of the Controlled
Drugs and Substances Act or the offence of conspiring to
commit such an offence,
the
justice shall order that the accused be detained in custody until he
is dealt with according to law, unless the accused, having been
given a reasonable opportunity to do so, shows cause why his
detention in custody is not justified, but where the justice orders
that the accused be released, he shall include in the record a
statement of his reasons for making the order. |
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(7)
Where an accused to whom paragraph 6(a), (c) or (d) applies shows cause why the
accused’s detention in custody is not justified, the justice shall
order that the accused be released on giving an undertaking or
entering into a recognizance described in any of paragraphs
(2)(a) to (e) with the conditions described
in subsections (4) to (4.2) or, where the accused was at large on an
undertaking or recognizance with conditions, the additional
conditions described in subsections (4) to (4.2), that the justice
considers desirable, unless the accused, having been given a
reasonable opportunity to do so, shows cause why the conditions or
additional conditions should not be imposed. |
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(8)
Where an accused to whom paragraph (6)(b) applies shows cause why the
accused’s detention in custody is not justified, the justice shall
order that the accused be released on giving an undertaking or
entering into a recognizance described in any of paragraphs
(2)(a) to (e) with the conditions, described
in subsections (4) to (4.2), that the justice considers
desirable. |
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(9)
For the purposes of subsections (5) and (6), it is sufficient if a
record is made of the reasons in accordance with the provisions of
Part XVIII relating to the taking of evidence at preliminary
inquiries. |
Justification
for detention in custody |
(10)
For the purposes of this section, the detention of an accused in
custody is justified only on one or more of the following
grounds:
(a) where the detention is
necessary to ensure his or her attendance in court in order to be
dealt with according to law;
(b) where the 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 any substantial likelihood that the accused
will, if released from custody, commit a criminal offence or
interfere with the administration of justice; and
(c) on any other just cause being
shown and, without limiting the generality of the foregoing, where
the detention is necessary in order to maintain confidence in the
administration of justice, having regard to all the circumstances,
including the apparent strength of the prosecution’s case, the
gravity of the nature of the offence, the circumstances surrounding
its commission and the potential for a lengthy term of
imprisonment. |
Detention
in custody for offence listed in section 469 |
(11)
Where an accused who is charged with an offence mentioned in section
469 is taken before a justice, the justice shall order that the
accused be detained in custody until he is dealt with according to
law and shall issue a warrant in Form 8 for the committal of the
accused. |
Order
re no communication |
(12) A
justice who orders that an accused be detained in custody under this
section may include in the order a direction that the accused
abstain from communicating, directly or indirectly, with any victim,
witness or other person identified in the order, except in
accordance with such conditions specified in the order as the
justice considers necessary.
R.S.,
1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186;
1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c.
39, s. 153; 1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s.
16; 1999, c. 5, s. 21, c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c.
41, ss. 19, 133. |
|
515.1 An
undertaking or recognizance pursuant to which the accused was
released that has been entered into under section 499, 503 or 515
may, with the written consent of the prosecutor, be varied, and
where so varied, is deemed to have been entered into pursuant to
section 515.
1997,
c. 18, s. 60. |
|
516. (1) A
justice may, before or at any time during the course of any
proceedings under section 515, on application by the prosecutor or
the accused, adjourn the proceedings and remand the accused to
custody in prison by warrant in Form 19, but no adjournment shall be
for more than three clear days except with the consent of the
accused. |
Detention
pending bail hearing |
(2) A
justice who remands an accused to custody under subsection (1) or
subsection 515(11) may order that the accused abstain from
communicating, directly or indirectly, with any victim, witness or
other person identified in the order, except in accordance with any
conditions specified in the order that the justice considers
necessary.
R.S.,
1985, c. C-46, s. 516; 1999, c. 5, s. 22, c. 25, s.
31(Preamble). |
|
517. (1)
Where the prosecutor or the accused intends to show cause under
section 515, he shall so state to the justice and the justice may,
and shall on application by the accused, before or at any time
during the course of the proceedings under that section, make an
order directing that the evidence taken, the information given or
the representations made and the reasons, if any, given or to be
given by the justice shall not be published in any newspaper or
broadcast before such time as
(a) if a preliminary inquiry is
held, the accused in respect of whom the proceedings are held is
discharged; or
(b) if the accused in respect of
whom the proceedings are held is tried or ordered to stand trial,
the trial is ended. |
|
(2)
Every one who fails without lawful excuse, the proof of which lies
on him, to comply with an order made under subsection (1) is guilty
of an offence punishable on summary conviction. |
Definition
of “newspaper” |
(3) In
this section, “newspaper” has the same meaning as in section
297.
R.S.,
1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s.
101(E). |
|
518. (1) In
any proceedings under section 515,
(a) the justice may, subject to
paragraph (b), make such
inquiries, on oath or otherwise, of and concerning the accused as he
considers desirable;
(b) the accused shall not be
examined by the justice or any other person except counsel for the
accused respecting the offence with which the accused is charged,
and no inquiry shall be made of the accused respecting that offence
by way of cross-examination unless the accused has testified
respecting the offence;
(c) the prosecutor may, in addition
to any other relevant evidence, lead evidence
(i) to
prove that the accused has previously been convicted of a criminal
offence,
(ii)
to prove that the accused has been charged with and is awaiting
trial for another criminal offence,
(iii)
to prove that the accused has previously committed an offence under
section 145, or
(iv)
to show the circumstances of the alleged offence, particularly as
they relate to the probability of conviction of the accused;
(d) the justice may take into
consideration any relevant matters agreed on by the prosecutor and
the accused or his counsel;
(d.1) the justice may receive
evidence obtained as a result of an interception of a private
communication under and within the meaning of Part VI, in writing,
orally or in the form of a recording and, for the purposes of this
section, subsection 189(5) does not apply to that evidence;
(d.2) the justice shall take into
consideration any evidence submitted regarding the need to ensure
the safety or security of any victim of or witness to an offence;
and
(e) the justice may receive and
base his decision on evidence considered credible or trustworthy by
him in the circumstances of each case. |
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(2)
Where, before or at any time during the course of any proceedings
under section 515, the accused pleads guilty and that plea is
accepted, the justice may make any order provided for in this Part
for the release of the accused until the accused is sentenced.
R.S.,
1985, c. C-46, s. 518; R.S., 1985, c. 27 (1st Supp.), ss. 84,
185(F); 1994, c. 44, s. 45; 1999, c. 25, s. 9(Preamble). |
|
519. (1)
Where a justice makes an order under subsection 515(1), (2), (7) or
(8),
(a) if the accused thereupon
complies with the order, the justice shall direct that the accused
be released
(i)
forthwith, if the accused is not required to be detained in custody
in respect of any other matter, or
(ii)
as soon thereafter as the accused is no longer required to be
detained in custody in respect of any other matter; and
(b) if the accused does not
thereupon comply with the order, the justice who made the order or
another justice having jurisdiction shall issue a warrant for the
committal of the accused and may endorse thereon an authorization to
the person having the custody of the accused to release the accused
when the accused complies with the order
(i)
forthwith after the compliance, if the accused is not required to be
detained in custody in respect of any other matter, or
(ii)
as soon thereafter as the accused is no longer required to be
detained in custody in respect of any other matter
and if
the justice so endorses the warrant, he shall attach to it a copy of
the order. |
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(2)
Where the accused complies with an order referred to in paragraph
(1)(b) and is not required
to be detained in custody in respect of any other matter, the
justice who made the order or another justice having jurisdiction
shall, unless the accused has been or will be released pursuant to
an authorization referred to in that paragraph, issue an order for
discharge in Form 39. |
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(3)
Where the justice makes an order under subsection 515(5) or (6) for
the detention of the accused, he shall issue a warrant for the
committal of the accused.
R.S.,
1985, c. C-46, s. 519; R.S., 1985, c. 27 (1st Supp.), s.
85. |
|
520. (1) If a
justice, or a judge of the Nunavut Court of Justice, makes an order
under subsection 515(2), (5), (6), (7), (8) or (12) or makes or
vacates any order under paragraph 523(2)(b), the accused may, at any time
before the trial of the charge, apply to a judge for a review of the
order. |
|
(2) An
application under this section shall not, unless the prosecutor
otherwise consents, be heard by a judge unless the accused has given
to the prosecutor at least two clear days notice in writing of the
application. |
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(3) If
the judge so orders or the prosecutor or the accused or his counsel
so requests, the accused shall be present at the hearing of an
application under this section and, where the accused is in custody,
the judge may order, in writing, the person having the custody of
the accused to bring him before the court. |
Adjournment
of proceedings |
(4) A
judge may, before or at any time during the hearing of an
application under this section, on application by the prosecutor or
the accused, adjourn the proceedings, but if the accused is in
custody no adjournment shall be for more than three clear days
except with the consent of the accused. |
Failure
of accused to attend |
(5)
Where an accused, other than an accused who is in custody, has been
ordered by a judge to be present at the hearing of an application
under this section and does not attend the hearing, the judge may
issue a warrant for the arrest of the accused. |
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(6) A
warrant issued under subsection (5) may be executed anywhere in
Canada. |
Evidence
and powers of judge on review |
(7) On
the hearing of an application under this section, the judge may
consider
(a) the transcript, if any, of the
proceedings heard by the justice and by any judge who previously
reviewed the order made by the justice,
(b) the exhibits, if any, filed in
the proceedings before the justice, and
(c) such additional evidence or
exhibits as may be tendered by the accused or the prosecutor,
and
shall either
(d) dismiss the application, or
(e) if the accused shows cause,
allow the application, vacate the order previously made by the
justice and make any other order provided for in section 515 that he
considers is warranted. |
Limitation
of further applications |
(8)
Where an application under this section or section 521 has been
heard, a further or other application under this section or section
521 shall not be made with respect to that same accused, except with
leave of a judge, prior to the expiration of thirty days from the
date of the decision of the judge who heard the previous
application. |
Application
of sections 517, 518 and 519 |
(9)
The provisions of sections 517, 518 and 519 apply with such
modifications as the circumstances require in respect of an
application under this section.
R.S.,
1985, c. C-46, s. 520; R.S., 1985, c. 27 (1st Supp.), s. 86; 1994,
c. 44, s. 46; 1999, c. 3, s. 31. |
|
521. (1) If a
justice, or a judge of the Nunavut Court of Justice, makes an order
under subsection 515(1), (2), (7), (8) or (12) or makes or vacates
any order under paragraph 523(2)(b), the prosecutor may, at any
time before the trial of the charge, apply to a judge for a review
of the order. |
|
(2) An
application under this section shall not be heard by a judge unless
the prosecutor has given to the accused at least two clear days
notice in writing of the application. |
|
(3) If
the judge so orders or the prosecutor or the accused or his counsel
so requests, the accused shall be present at the hearing of an
application under this section and, where the accused is in custody,
the judge may order, in writing, the person having the custody of
the accused to bring him before the court. |
Adjournment
of proceedings |
(4) A
judge may, before or at any time during the hearing of an
application under this section, on application of the prosecutor or
the accused, adjourn the proceedings, but if the accused is in
custody no adjournment shall be for more than three clear days
except with the consent of the accused. |
Failure
of accused to attend |
(5)
Where an accused, other than an accused who is in custody, has been
ordered by a judge to be present at the hearing of an application
under this section and does not attend the hearing, the judge may
issue a warrant for the arrest of the accused. |
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(6)
Where, pursuant to paragraph (8)(e), the judge makes an order that
the accused be detained in custody until he is dealt with according
to law, he shall, if the accused is not in custody, issue a warrant
for the committal of the accused. |
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(7) A
warrant issued under subsection (5) or (6) may be executed anywhere
in Canada. |
Evidence
and powers of judge on review |
(8) On
the hearing of an application under this section, the judge may
consider
(a) the transcript, if any, of the
proceedings heard by the justice and by any judge who previously
reviewed the order made by the justice,
(b) the exhibits, if any, filed in
the proceedings before the justice, and
(c) such additional evidence or
exhibits as may be tendered by the prosecutor or the accused,
and
shall either
(d) dismiss the application, or
(e) if the prosecutor shows cause,
allow the application, vacate the order previously made by the
justice and make any other order provided for in section 515 that he
considers to be warranted. |
Limitation
of further applications |
(9)
Where an application under this section or section 520 has been
heard, a further or other application under this section or section
520 shall not be made with respect to the same accused, except with
leave of a judge, prior to the expiration of thirty days from the
date of the decision of the judge who heard the previous
application. |
Application
of sections 517, 518 and 519 |
(10)
The provisions of sections 517, 518 and 519 apply with such
modifications as the circumstances require in respect of an
application under this section.
R.S.,
1985, c. C-46, s. 521; R.S., 1985, c. 27 (1st Supp.), s. 87; 1994,
c. 44, s. 47; 1999, c. 3, s. 32. |
|
522. (1)
Where an accused is charged with an offence listed in section 469,
no court, judge or justice, other than a judge of or a judge
presiding in a superior court of criminal jurisdiction for the
province in which the accused is so charged, may release the accused
before or after the accused has been ordered to stand
trial. |
|
(2)
Where an accused is charged with an offence listed in section 469, a
judge of or a judge presiding in a superior court of criminal
jurisdiction for the province in which the accused is charged shall
order that the accused be detained in custody unless the accused,
having been given a reasonable opportunity to do so, shows cause why
his detention in custody is not justified within the meaning of
subsection 515(10). |
Order
re no communication |
(2.1)
A judge referred to in subsection (2) who orders that an accused be
detained in custody under this section may include in the order a
direction that the accused abstain from communicating, directly or
indirectly, with any victim, witness or other person identified in
the order except in accordance with such conditions specified in the
order as the judge considers necessary. |
|
(3) If
the judge does not order that the accused be detained in custody
under subsection (2), the judge may order that the accused be
released on giving an undertaking or entering into a recognizance
described in any of paragraphs 515(2)(a) to (e) with such conditions described
in subsections 515(4), (4.1) and (4.2) as the judge considers
desirable. |
Order
not reviewable except under section 680 |
(4) An
order made under this section is not subject to review, except as
provided in section 680. |
Application
of sections 517, 518 and 519 |
(5)
The provisions of sections 517, 518 except subsection (2) thereof,
and 519 apply with such modifications as the circumstances require
in respect of an application for an order under subsection
(2). |
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(6)
Where an accused is charged with an offence mentioned in section 469
and with any other offence, a judge acting under this section may
apply the provisions of this Part respecting judicial interim
release to that other offence.
R.S.,
1985, c. C-46, s. 522; R.S., 1985, c. 27 (1st Supp.), s. 88; 1991,
c. 40, s. 32; 1994, c. 44, s. 48; 1999, c. 25, s.
10(Preamble). |
|
523. (1)
Where an accused, in respect of an offence with which he is charged,
has not been taken into custody or has been released from custody
under or by virtue of any provision of this Part, the appearance
notice, promise to appear, summons, undertaking or recognizance
issued to, given or entered into by the accused continues in force,
subject to its terms, and applies in respect of any new information
charging the same offence or an included offence that was received
after the appearance notice, promise to appear, summons, undertaking
or recognizance was issued, given or entered into,
(a) where the accused was released
from custody pursuant to an order of a judge made under subsection
522(3), until his trial is completed; or
(b) in any other case,
(i)
until his trial is completed, and
(ii)
where the accused is, at his trial, determined to be guilty of the
offence, until a sentence within the meaning of section 673 is
imposed on the accused unless, at the time the accused is determined
to be guilty, the court, judge or justice orders that the accused be
taken into custody pending such sentence. |
Where
new information charging same offence |
(1.1)
Where an accused, in respect of an offence with which he is charged,
has not been taken into custody or is being detained or has been
released from custody under or by virtue of any provision of this
Part and after the order for interim release or detention has been
made, or the appearance notice, promise to appear, summons,
undertaking or recognizance has been issued, given or entered into,
a new information, charging the same offence or an included offence,
is received, section 507 or 508, as the case may be, does not apply
in respect of the new information and the order for interim release
or detention of the accused and the appearance notice, promise to
appear, summons, undertaking or recognizance, if any, applies in
respect of the new information. |
Order
vacating previous order for release or detention |
(2)
Notwithstanding subsections (1) and (1.1),
(a) the court, judge or justice
before which or whom an accused is being tried, at any time,
(b) the justice, on completion of
the preliminary inquiry in relation to an offence for which an
accused is ordered to stand trial, other than an offence listed in
section 469, or
(c) with the consent of the
prosecutor and the accused or, where the accused or the prosecutor
applies to vacate an order that would otherwise apply pursuant to
subsection (1.1), without such consent, at any time
(i)
where the accused is charged with an offence other than an offence
listed in section 469, the justice by whom an order was made under
this Part or any other justice,
(ii)
where the accused is charged with an offence listed in section 469,
a judge of or a judge presiding in a superior court of criminal
jurisdiction for the province, or
(iii)
the court, judge or justice before which or whom an accused is to be
tried,
may,
on cause being shown, vacate any order previously made under this
Part for the interim release or detention of the accused and make
any other order provided for in this Part for the detention or
release of the accused until his trial is completed that the court,
judge or justice considers to be warranted. |
Provisions
applicable to proceedings under subsection (2) |
(3)
The provisions of sections 517, 518 and 519 apply, with such
modifications as the circumstances require, in respect of any
proceedings under subsection (2), except that subsection 518(2) does
not apply in respect of an accused who is charged with an offence
listed in section 469.
R.S.,
1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s.
89. |
|
Arrest
of Accused on Interim Release |
|
524. (1)
Where a justice is satisfied that there are reasonable grounds to
believe that an accused
(a) has contravened or is about to
contravene any summons, appearance notice, promise to appear,
undertaking or recognizance that was issued or given to him or
entered into by him, or
(b) has committed an indictable
offence after any summons, appearance notice, promise to appear,
undertaking or recognizance was issued or given to him or entered
into by him,
he may
issue a warrant for the arrest of the accused. |
Arrest
of accused without warrant |
(2)
Notwithstanding anything in this Act, a peace officer who believes
on reasonable grounds that an accused
(a) has contravened or is about to
contravene any summons, appearance notice, promise to appear,
undertaking or recognizance that was issued or given to him or
entered into by him, or
(b) has committed an indictable
offence after any summons, appearance notice, promise to appear,
undertaking or recognizance was issued or given to him or entered
into by him,
may
arrest the accused without warrant. |
|
(3)
Where an accused who has been arrested with a warrant issued under
subsection (1), or who has been arrested under subsection (2), is
taken before a justice, the justice shall
(a) where the accused was released
from custody pursuant to an order made under subsection 522(3) by a
judge of the superior court of criminal jurisdiction of any
province, order that the accused be taken before a judge of that
court; or
(b) in any other case, hear the
prosecutor and his witnesses, if any, and the accused and his
witnesses, if any. |
|
(4)
Where an accused described in paragraph (3)(a) is taken before a judge and the
judge finds
(a) that the accused has
contravened or had been about to contravene his summons, appearance
notice, promise to appear, undertaking or recognizance, or
(b) that there are reasonable
grounds to believe that the accused has committed an indictable
offence after any summons, appearance notice, promise to appear,
undertaking or recognizance was issued or given to him or entered
into by him,
he shall
cancel the summons, appearance notice, promise to appear,
undertaking or recognizance and order that the accused be detained
in custody unless the accused, having been given a reasonable
opportunity to do so, shows cause why his detention in custody is
not justified within the meaning of subsection 515(10). |
|
(5)
Where the judge does not order that the accused be detained in
custody pursuant to subsection (4), he may order that the accused be
released on his giving an undertaking or entering into a
recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions described
in subsection 515(4) or, where the accused was at large on an
undertaking or a recognizance with conditions, such additional
conditions, described in subsection 515(4), as the judge considers
desirable. |
|
(6)
Any order made under subsection (4) or (5) is not subject to review,
except as provided in section 680. |
|
(7)
Where the judge does not make a finding under paragraph (4)(a) or (b), he shall order that the
accused be released from custody. |
Powers
of justice after hearing |
(8)
Where an accused described in subsection (3), other than an accused
to whom paragraph (a) of
that subsection applies, is taken before the justice and the justice
finds
(a) that the accused has
contravened or had been about to contravene his summons, appearance
notice, promise to appear, undertaking or recognizance, or
(b) that there are reasonable
grounds to believe that the accused has committed an indictable
offence after any summons, appearance notice, promise to appear,
undertaking or recognizance was issued or given to him or entered
into by him,
he shall
cancel the summons, appearance notice, promise to appear,
undertaking or recognizance and order that the accused be detained
in custody unless the accused, having been given a reasonable
opportunity to do so, shows cause why his detention in custody is
not justified within the meaning of subsection 515(10). |
|
(9)
Where an accused shows cause why his detention in custody is not
justified within the meaning of subsection 515(10), the justice
shall order that the accused be released on his giving an
undertaking or entering into a recognizance described in any of
paragraphs 515(2)(a) to
(e) with such conditions,
described in subsection 515(4), as the justice considers
desirable. |
|
(10)
Where the justice makes an order under subsection (9), he shall
include in the record a statement of his reasons for making the
order, and subsection 515(9) is applicable with such modifications
as the circumstances require in respect thereof. |
Where
justice to order that accused be released |
(11)
Where the justice does not make a finding under paragraph (8)(a) or (b), he shall order that the
accused be released from custody. |
Provisions
applicable to proceedings under this section |
(12)
The provisions of sections 517, 518 and 519 apply with such
modifications as the circumstances require in respect of any
proceedings under this section, except that subsection 518(2) does
not apply in respect of an accused who is charged with an offence
mentioned in section 522. |
Certain
provisions applicable to order under this section |
(13)
Section 520 applies in respect of any order made under subsection
(8) or (9) as though the order were an order made by a justice or a
judge of the Nunavut Court of Justice under subsection 515(2) or
(5), and section 521 applies in respect of any order made under
subsection (9) as though the order were an order made by a justice
or a judge of the Nunavut Court of Justice under subsection
515(2).
R.S.,
1985, c. C-46, s. 524; 1999, c. 3, s. 33. |
|
Review
of Detention where Trial Delayed |
|
525. (1)
Where an accused who has been charged with an offence other than an
offence listed in section 469 and who is not required to be detained
in custody in respect of any other matter is being detained in
custody pending his trial for that offence and the trial has not
commenced
(a) in the case of an indictable
offence, within ninety days from
(i)
the day on which the accused was taken before a justice under
section 503, or
(ii)
where an order that the accused be detained in custody has been made
under section 521 or 524, or a decision has been made with respect
to a review under section 520, the later of the day on which the
accused was taken into custody under that order and the day of the
decision, or
(b) in the case of an offence for
which the accused is being prosecuted in proceedings by way of
summary conviction, within thirty days from
(i)
the day on which the accused was taken before a justice under
subsection 503(1), or
(ii)
where an order that the accused be detained in custody has been made
under section 521 or 524, or a decision has been made with respect
to a review under section 520, the later of the day on which the
accused was taken into custody under that order and the day of the
decision,
the
person having the custody of the accused shall, forthwith on the
expiration of those ninety or thirty days, as the case may be, apply
to a judge having jurisdiction in the place in which the accused is
in custody to fix a date for a hearing to determine whether or not
the accused should be released from custody. |
|
(2) On
receiving an application under subsection (1), the judge shall
(a) fix a date for the hearing
described in subsection (1) to be held in the jurisdiction
(i)
where the accused is in custody, or
(ii)
where the trial is to take place; and
(b) direct that notice of the
hearing be given to such persons, including the prosecutor and the
accused, and in such manner as the judge may specify. |
Matters
to be considered on hearing |
(3) On
the hearing described in subsection (1), the judge may, in deciding
whether or not the accused should be released from custody, take
into consideration whether the prosecutor or the accused has been
responsible for any unreasonable delay in the trial of the
charge. |
|
(4)
If, following the hearing described in subsection (1), the judge is
not satisfied that the continued detention of the accused in custody
is justified within the meaning of subsection 515(10), the judge
shall order that the accused be released from custody pending the
trial of the charge on his giving an undertaking or entering into a
recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions described
in subsection 515(4) as the judge considers desirable. |
Warrant
of judge for arrest |
(5)
Where a judge having jurisdiction in the province where an order
under subsection (4) for the release of an accused has been made is
satisfied that there are reasonable grounds to believe that the
accused
(a) has contravened or is about to
contravene the undertaking or recognizance on which he has been
released, or
(b) has, after his release from
custody on his undertaking or recognizance, committed an indictable
offence,
he may
issue a warrant for the arrest of the accused. |
Arrest
without warrant by peace officer |
(6)
Notwithstanding anything in this Act, a peace officer who believes
on reasonable grounds that an accused who has been released from
custody under subsection (4)
(a) has contravened or is about to
contravene the undertaking or recognizance on which he has been
released, or
(b) has, after his release from
custody on his undertaking or recognizance, committed an indictable
offence,
may
arrest the accused without warrant and take him or cause him to be
taken before a judge having jurisdiction in the province where the
order for his release was made. |
|
(7) A
judge before whom an accused is taken pursuant to a warrant issued
under subsection (5) or pursuant to subsection (6) may, where the
accused shows cause why his detention in custody is not justified
within the meaning of subsection 515(10), order that the accused be
released on his giving an undertaking or entering into a
recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions, described
in subsection 515(4), as the judge considers desirable. |
Provisions
applicable to proceedings |
(8)
The provisions of sections 517, 518 and 519 apply with such
modifications as the circumstances require in respect of any
proceedings under this section. |
Directions
for expediting trial |
(9)
Where an accused is before a judge under any of the provisions of
this section, the judge may give directions for expediting the trial
of the accused.
R.S.,
1985, c. C-46, s. 525; R.S., 1985, c. 27 (1st Supp.), s. 90; 1994,
c. 44, s. 49; 1997, c. 18, s. 61. |
|
526. Subject
to subsection 525(9), a court, judge or justice before which or whom
an accused appears pursuant to this Part may give directions for
expediting any proceedings in respect of the accused.
R.S.,
1985, c. C-46, s. 526; R.S., 1985, c. 27 (1st Supp.), s.
91. |
|
Procedure
to Procure Attendance of a Prisoner |
|
527. (1) A
judge of a superior court of criminal jurisdiction may order in
writing that a person who is confined in a prison be brought before
the court, judge, justice or provincial court judge before whom the
prisoner is required to attend, from day to day as may be necessary,
if
(a) the applicant for the order
sets out the facts of the case in an affidavit and produces the
warrant, if any; and
(b) the judge is satisfied that the
ends of justice require that an order be made. |
Provincial
court judge’s order |
(2) A
provincial court judge has the same powers for the purposes of
subsection (1) or (7) as a judge has under that subsection where the
person whose attendance is required is within the province in which
the provincial court judge has jurisdiction. |
|
(3) An
order that is made under subsection (1) or (2) shall be addressed to
the person who has custody of the prisoner, and on receipt thereof
that person shall
(a) deliver the prisoner to any
person who is named in the order to receive him; or
(b) bring the prisoner before the
court, judge, justice or provincial court judge, as the case may be,
on payment of his reasonable charges in respect thereof. |
Detention
of prisoner required as witness |
(4)
Where a prisoner is required as a witness, the judge or provincial
court judge shall direct, in the order, the manner in which the
prisoner shall be kept in custody and returned to the prison from
which he is brought. |
|
(5)
Where the appearance of a prisoner is required for the purposes of
paragraph (1)(a) or (b), the judge or provincial court
judge shall give appropriate directions in the order with respect to
the manner in which the prisoner is
(a) to be kept in custody, if he is
ordered to stand trial; or
(b) to be returned, if he is
discharged on a preliminary inquiry or if he is acquitted of the
charge against him. |
Application
of sections respecting sentence |
(6)
Sections 718.3 and 743.1 apply where a prisoner to whom this section
applies is convicted and sentenced to imprisonment by the court,
judge, justice or provincial court judge. |
|
(7) On
application by the prosecutor, a judge of a superior court of
criminal jurisdiction may, if a prisoner or a person in the custody
of a peace officer consents in writing, order the transfer of the
prisoner or other person to the custody of a peace officer named in
the order for a period specified in the order, where the judge is
satisfied that the transfer is required for the purpose of assisting
a peace officer acting in the execution of his or her
duties. |
|
(8) An
order under subsection (7) shall be addressed to the person who has
custody of the prisoner and on receipt thereof that person shall
deliver the prisoner to the peace officer who is named in the order
to receive him. |
|
(9)
When the purposes of any order made under this section have been
carried out, the prisoner shall be returned to the place where he
was confined at the time the order was made.
R.S.,
1985, c. C-46, s. 527; R.S., 1985, c. 27 (1st Supp.), ss. 92,
101(E), 203; 1994, c. 44, s. 50; 1995, c. 22, s. 10; 1997, c. 18, s.
62. |
|
|
|
528. (1)
Where a warrant for the arrest or committal of an accused, in any
form set out in Part XXVIII in relation thereto, cannot be executed
in accordance with section 514 or 703, a justice within whose
jurisdiction the accused is or is believed to be shall, on
application and proof on oath or by affidavit of the signature of
the justice who issued the warrant, authorize the arrest of the
accused within his jurisdiction by making an endorsement, which may
be in Form 28, on the warrant. |
Copy
of affidavit or warrant |
(1.1)
A copy of an affidavit or warrant submitted by a means of
telecommunication that produces a writing has the same probative
force as the original for the purposes of subsection (1). |
|
(2) An
endorsement that is made on a warrant pursuant to subsection (1) is
sufficient authority to the peace officers to whom it was originally
directed, and to all peace officers within the territorial
jurisdiction of the justice by whom it is endorsed, to execute the
warrant and to take the accused before the justice who issued the
warrant or before any other justice for the same territorial
division.
R.S.,
1985, c. C-46, s. 528; R.S., 1985, c. 27 (1st Supp.), s. 93; 1994,
c. 44, s. 51. |
|
Powers
to Enter Dwelling-houses to Carry out Arrests |
|
529. (1) A
warrant to arrest or apprehend a person issued by a judge or justice
under this or any other Act of Parliament may authorize a peace
officer, subject to subsection (2), to enter a dwelling-house
described in the warrant for the purpose of arresting or
apprehending the person if the judge or justice is satisfied by
information on oath in writing that there are reasonable grounds to
believe that the person is or will be present in the
dwelling-house. |
|
(2) An
authorization to enter a dwelling-house granted under subsection (1)
is subject to the condition that the peace officer may not enter the
dwelling-house unless the peace officer has, immediately before
entering the dwelling-house, reasonable grounds to believe that the
person to be arrested or apprehended is present in the
dwelling-house.
R.S.,
1985, c. C-46, s. 529; 1994, c. 44, s. 52; 1997, c. 39, s.
2. |
|
529.1 A judge
or justice may issue a warrant in Form 7.1 authorizing a peace
officer to enter a dwelling-house described in the warrant for the
purpose of arresting or apprehending a person identified or
identifiable by the warrant if the judge or justice is satisfied by
information on oath that there are reasonable grounds to believe
that the person is or will be present in the dwelling-house and
that
(a) a warrant referred to in this
or any other Act of Parliament to arrest or apprehend the person is
in force anywhere in Canada;
(b) grounds exist to arrest the
person without warrant under paragraph 495(1)(a) or (b) or section 672.91; or
(c) grounds exist to arrest or
apprehend without warrant the person under an Act of Parliament,
other than this Act.
1997,
c. 39, s. 2; 2002, c. 13, s. 23. |
|
529.2 Subject
to section 529.4, the judge or justice shall include in a warrant
referred to in section 529 or 529.1 any terms and conditions that
the judge or justice considers advisable to ensure that the entry
into the dwelling-house is reasonable in the circumstances.
1997,
c. 39, s. 2. |
|
529.3 (1)
Without limiting or restricting any power a peace officer may have
to enter a dwelling-house under this or any other Act or law, the
peace officer may enter the dwelling-house for the purpose of
arresting or apprehending a person, without a warrant referred to in
section 529 or 529.1 authorizing the entry, if the peace officer has
reasonable grounds to believe that the person is present in the
dwelling-house, and the conditions for obtaining a warrant under
section 529.1 exist but by reason of exigent circumstances it would
be impracticable to obtain a warrant. |
|
(2)
For the purposes of subsection (1), exigent circumstances include
circumstances in which the peace officer
(a) has reasonable grounds to
suspect that entry into the dwelling-house is necessary to prevent
imminent bodily harm or death to any person; or
(b) has reasonable grounds to
believe that evidence relating to the commission of an indictable
offence is present in the dwelling-house and that entry into the
dwelling-house is necessary to prevent the imminent loss or imminent
destruction of the evidence.
1997,
c. 39, s. 2. |
|
529.4 (1) A
judge or justice who authorizes a peace officer to enter a
dwelling-house under section 529 or 529.1, or any other judge or
justice, may authorize the peace officer to enter the dwelling-house
without prior announcement if the judge or justice is satisfied by
information on oath that there are reasonable grounds to believe
that prior announcement of the entry would
(a) expose the peace officer or any
other person to imminent bodily harm or death; or
(b) result in the imminent loss or
imminent destruction of evidence relating to the commission of an
indictable offence. |
Execution
of authorization |
(2) An
authorization under this section is subject to the condition that
the peace officer may not enter the dwelling-house without prior
announcement despite being authorized to do so unless the peace
officer has, immediately before entering the dwelling-house,
(a) reasonable grounds to suspect
that prior announcement of the entry would expose the peace officer
or any other person to imminent bodily harm or death; or
(b) reasonable grounds to believe
that prior announcement of the entry would result in the imminent
loss or imminent destruction of evidence relating to the commission
of an indictable offence. |
|
(3) A
peace officer who enters a dwelling-house without a warrant under
section 529.3 may not enter the dwelling-house without prior
announcement unless the peace officer has, immediately before
entering the dwelling-house,
(a) reasonable grounds to suspect
that prior announcement of the entry would expose the peace officer
or any other person to imminent bodily harm or death; or
(b) reasonable grounds to believe
that prior announcement of the entry would result in the imminent
loss or imminent destruction of evidence relating to the commission
of an indictable offence.
1997,
c. 39, s. 2. |
|
529.5 If a
peace officer believes that it would be impracticable in the
circumstances to appear personally before a judge or justice to make
an application for a warrant under section 529.1 or an authorization
under section 529 or 529.4, the warrant or authorization may be
issued on an information submitted by telephone or other means of
telecommunication and, for that purpose, section 487.1 applies, with
any modifications that the circumstances require, to the warrant or
authorization.
1997,
c. 39, s. 2. |
|
PART
XVII
LANGUAGE OF
ACCUSED |
|
530. (1) On
application by an accused whose language is one of the official
languages of Canada, made not later than
(a) the time of the appearance of
the accused at which his trial date is set, if
(i) he
is accused of an offence mentioned in section 553 or punishable on
summary conviction, or
(ii)
the accused is to be tried on an indictment preferred under section
577,
(b) the time of the accused’s
election, if the accused elects under section 536 to be tried by a
provincial court judge or under section 536.1 to be tried by a judge
without a jury and without having a preliminary inquiry, or
(c) the time when the accused is
ordered to stand trial, if the accused
(i) is
charged with an offence listed in section 469,
(ii)
has elected to be tried by a court composed of a judge or a judge
and jury, or
(iii)
is deemed to have elected to be tried by a court composed of a judge
and jury,
a
justice of the peace, provincial court judge or judge of the Nunavut
Court of Justice shall grant an order directing that the accused be
tried before a justice of the peace, provincial court judge, judge
or judge and jury, as the case may be, who speak the official
language of Canada that is the language of the accused or, if the
circumstances warrant, who speak both official languages of
Canada. |
|
(2) On
application by an accused whose language is not one of the official
languages of Canada, made not later than whichever of the times
referred to in paragraphs (1)(a) to (c) is applicable, a justice of the
peace or provincial court judge may grant an order directing that
the accused be tried before a justice of the peace, provincial court
judge, judge or judge and jury, as the case may be, who speak the
official language of Canada in which the accused, in the opinion of
the justice or provincial court judge, can best give testimony or,
if the circumstances warrant, who speak both official languages of
Canada. |
Accused
to be advised of right |
(3)
The justice of the peace or provincial court judge before whom an
accused first appears shall, if the accused is not represented by
counsel, advise the accused of his right to apply for an order under
subsection (1) or (2) and of the time before which such an
application must be made. |
|
(4)
Where an accused fails to apply for an order under subsection (1) or
(2) and the justice of the peace, provincial court judge or judge
before whom the accused is to be tried, in this Part referred to as
“the court”, is satisfied that it is in the best interests of
justice that the accused be tried before a justice of the peace,
provincial court judge, judge or judge and jury who speak the
official language of Canada that is the language of the accused or,
if the language of the accused is not one of the official languages
of Canada, the official language of Canada in which the accused, in
the opinion of the court, can best give testimony, the court may, if
it does not speak that language, by order remand the accused to be
tried by a justice of the peace, provincial court judge, judge or
judge and jury, as the case may be, who speak that language or, if
the circumstances warrant, who speak both official languages of
Canada. |
|
(5) An
order under this section that an accused be tried before a justice
of the peace, provincial court judge, judge or judge and jury who
speak the official language of Canada that is the language of the
accused or the official language of Canada in which the accused can
best give testimony may, if the circumstances warrant, be varied by
the court to require that the accused be tried before a justice of
the peace, provincial court judge, judge or judge and jury who speak
both official languages of Canada.
R.S.,
1985, c. C-46, s. 530; R.S., 1985, c. 27 (1st Supp.), ss. 94, 203;
1999, c. 3, s. 34. |
|
530.1 Where
an order is granted under section 530 directing that an accused be
tried before a justice of the peace, provincial court judge, judge
or judge and jury who speak the official language that is the
language of the accused or in which the accused can best give
testimony,
(a) the accused and his counsel
have the right to use either official language for all purposes
during the preliminary inquiry and trial of the accused;
(b) the accused and his counsel may
use either official language in written pleadings or other documents
used in any proceedings relating to the preliminary inquiry or trial
of the accused;
(c) any witness may give evidence
in either official language during the preliminary inquiry or
trial;
(d) the accused has a right to have
a justice presiding over the preliminary inquiry who speaks the
official language that is the language of the accused;
(e) except where the prosecutor is
a private prosecutor, the accused has a right to have a prosecutor
who speaks the official language that is the language of the
accused;
(f) the court shall make
interpreters available to assist the accused, his counsel or any
witness during the preliminary inquiry or trial;
(g) the record of proceedings
during the preliminary inquiry or trial shall include
(i) a
transcript of everything that was said during those proceedings in
the official language in which it was said,
(ii) a
transcript of any interpretation into the other official language of
what was said, and
(iii)
any documentary evidence that was tendered during those proceedings
in the official language in which it was tendered; and
(h) any trial judgment, including
any reasons given therefor, issued in writing in either official
language, shall be made available by the court in the official
language that is the language of the accused.
R.S.,
1985, c. 31 (4th Supp.), s. 94. |
|
531.
Notwithstanding any other provision of this Act but subject to any
regulations made pursuant to section 533, the court shall order that
the trial of an accused be held in a territorial division in the
same province other than that in which the offence would otherwise
be tried if an order has been made that the accused be tried before
a justice of the peace, provincial court judge, judge or judge and
jury who speak the official language of Canada that is the language
of the accused or the official language of Canada in which the
accused can best give testimony or both official languages of Canada
and such order cannot be conveniently complied with in the
territorial division in which the offence would otherwise be
tried.
R.S.,
1985, c. C-46, s. 531; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
532. Nothing
in this Part or the Official
Languages Act derogates from or otherwise adversely affects
any right afforded by a law of a province in force on the coming
into force of this Part in that province or thereafter coming into
force relating to the language of proceedings or testimony in
criminal matters that is not inconsistent with this Part or that
Act.
1977-78,
c. 36, s. 1. |
|
533. The
Lieutenant Governor in Council of a province may make regulations
generally for carrying into effect the purposes and provisions of
this Part in the province and the Commissioner of Yukon, the
Commissioner of the Northwest Territories and the Commissioner of
Nunavut may make regulations generally for carrying into effect the
purposes and provisions of this Part in Yukon, the Northwest
Territories and Nunavut, respectively.
R.S.,
1985, c. C-46, s. 533; 1993, c. 28, s. 78; 2002, c. 7, s.
144. |
|
534.
[Repealed, 1997, c. 18, s. 63] |
|
PART
XVIII
PROCEDURE ON PRELIMINARY
INQUIRY |
|
|
|
535. If an
accused who is charged with an indictable offence is before a
justice and a request has been made for a preliminary inquiry under
subsection 536(4) or 536.1(3), the justice shall, in accordance with
this Part, inquire into the charge and any other indictable offence,
in respect of the same transaction, founded on the facts that are
disclosed by the evidence taken in accordance with this Part.
R.S.,
1985, c. C-46, s. 535; R.S., 1985, c. 27 (1st Supp.), s. 96; 2002,
c. 13, s. 24. |
|
536. (1)
Where an accused is before a justice other than a provincial court
judge charged with an offence over which a provincial court judge
has absolute jurisdiction under section 553, the justice shall
remand the accused to appear before a provincial court judge having
jurisdiction in the territorial division in which the offence is
alleged to have been committed. |
Election
before justice in certain cases |
(2) If
an accused is before a justice charged with an indictable offence,
other than an offence listed in section 469, and the offence is not
one over which a provincial court judge has absolute jurisdiction
under section 553, the justice shall, after the information has been
read to the accused, put the accused to an election in the following
words:
You
have the option to elect to be tried by a provincial court judge
without a jury and without having had a preliminary inquiry; or you
may elect to be tried by a judge without a jury; or you may elect to
be tried by a court composed of a judge and jury. If you do not
elect now, you are deemed to have elected to be tried by a court
composed of a judge and jury. If you elect to be tried by a judge
without a jury or by a court composed of a judge and jury or if you
are deemed to have elected to be tried by a court composed of a
judge and jury, you will have a preliminary inquiry only if you or
the prosecutor requests one. How do you elect to be tried? |
Procedure
where accused elects trial by provincial court judge |
(3)
Where an accused elects to be tried by a provincial court judge, the
justice shall endorse on the information a record of the election
and shall
(
a) where the justice is not
a provincial court judge, remand the accused to appear and plead to
the charge before a provincial court judge having jurisdiction in
the territorial division in which the offence is alleged to have
been committed; or
(
b) where the justice is a
provincial court judge, call on the accused to plead to the charge
and if the accused does not plead guilty, proceed with the trial or
fix a time for the trial. |
Request
for preliminary inquiry |
(4) If
an accused elects to be tried by a judge without a jury or by a
court composed of a judge and jury or does not elect when put to the
election or is deemed under paragraph 565(1)( b) to have elected to be tried by
a court composed of a judge and jury or is charged with an offence
listed in section 469, the justice shall, subject to section 577, on
the request of the accused or the prosecutor made at that time or
within the period fixed by rules of court made under section 482 or
482.1 or, if there are no such rules, by the justice, hold a
preliminary inquiry into the charge. |
Endorsement
on the information |
(4.1)
If an accused elects to be tried by a judge without a jury or by a
court composed of a judge and jury or does not elect when put to the
election or is deemed under paragraph 565(1)( b) to have elected to be tried by
a court composed of a judge and jury or is charged with an offence
listed in section 469, the justice shall endorse on the information
and, if the accused is in custody, on the warrant of remand, a
statement showing
(
a) the nature of the
election or deemed election of the accused or that the accused did
not elect, as the case may be; and
(
b) whether the accused or
the prosecutor has requested that a preliminary inquiry be
held. |
Preliminary
inquiry if two or more accused |
(4.2)
If two or more persons are jointly charged in an information and one
or more of them make a request for a preliminary inquiry under
subsection (4), a preliminary inquiry must be held with respect to
all of them. |
When
no request for preliminary inquiry |
(4.3)
If no request for a preliminary inquiry is made under subsection
(4), the justice shall fix the date for the trial or the date on
which the accused must appear in the trial court to have the date
fixed. |
|
(5)
Where a justice before whom a preliminary inquiry is being or is to
be held has not commenced to take evidence, any justice having
jurisdiction in the province where the offence with which the
accused is charged is alleged to have been committed has
jurisdiction for the purposes of subsection (4).
R.S.,
1985, c. C-46, s. 536; R.S., 1985, c. 27 (1st Supp.), s. 96; 2002,
c. 13, s. 25; 2004, c. 12, s. 9. |
|
536.1 (1) If
an accused is before a justice of the peace charged with an
indictable offence mentioned in section 553, the justice of the
peace shall remand the accused to appear before a judge. |
Election
before justice in certain cases — Nunavut |
(2) If
an accused is before a justice of the peace or a judge charged with
an indictable offence, other than an offence mentioned in section
469 or 553, the justice of the peace or judge shall, after the
information has been read to the accused, put the accused to an
election in the following words:
You
have the option to elect to be tried by a judge without a jury or to
be tried by a court composed of a judge and jury. If you do not
elect now, you are deemed to have elected to be tried by a court
composed of a judge and jury. If you elect to be tried by a judge
without a jury or by a court composed of a judge and jury or if you
are deemed to have elected to be tried by a court composed of a
judge and jury, you will have a preliminary inquiry only if you or
the prosecutor requests one. How do you elect to be tried? |
Request
for preliminary inquiry - Nunavut |
(3) If
an accused elects to be tried by a judge without a jury or by a
court composed of a judge and jury or does not elect when put to the
election or is deemed under paragraph 565(1)(b) to have elected to be tried by
a court composed of a judge and jury or is charged with an offence
listed in section 469, the justice or judge shall, subject to
section 577, on the request of the accused or the prosecutor made at
that time or within the period fixed by rules of court made under
section 482 or 482.1 or, if there are no such rules, by the judge or
justice, hold a preliminary inquiry into the charge. |
Endorsement
on the information |
(4) If
an accused elects to be tried by a judge without a jury or by a
court composed of a judge and jury or does not elect when put to the
election or is deemed under paragraph 565(1)( b) to have elected to be tried by
a court composed of a judge and jury or is charged with an offence
listed in section 469, the justice or judge shall endorse on the
information and, if the accused is in custody, on the warrant of
remand, a statement showing
(
a) the nature of the
election or deemed election of the accused or that the accused did
not elect, as the case may be; and
(
b) whether the accused or
the prosecutor has requested that a preliminary inquiry be
held. |
Preliminary
inquiry if two or more accused |
(4.1)
If two or more persons are jointly charged in an information and one
or more of them make a request for a preliminary inquiry under
subsection (3), a preliminary inquiry must be held with respect to
all of them. |
Procedure
if accused elects trial by judge — Nunavut |
(4.2)
If no request for a preliminary inquiry is made under subsection
(3),
(
a) if the accused is before
a justice of the peace, the justice of the peace shall remand the
accused to appear and plead to the charge before a judge; or
(
b) if the accused is before
a judge, the judge shall
(i) if
the accused elects to be tried by a judge without a jury, call on
the accused to plead to the charge and if the accused does not plead
guilty, proceed with the trial or fix a time for the trial, or
(ii)
if the accused elects or is deemed to have elected to be tried by a
court composed of a judge and jury, fix a time for the
trial. |
|
(5) If
a justice of the peace before whom a preliminary inquiry is being or
is to be held has not commenced to take evidence, any justice of the
peace having jurisdiction in Nunavut has jurisdiction for the
purpose of subsection (3). |
|
(6)
This section, and not section 536, applies in respect of criminal
proceedings in Nunavut.
1999,
c. 3, s. 35; 2002, c. 13, s. 26; 2004, c. 12, s. 10. |
|
536.2 An
election or a re-election by an accused in respect of a mode of
trial may be made by submission of a document in writing without the
personal appearance of the accused.
2002,
c. 13, s. 27. |
|
Procedures
before Preliminary Inquiry |
|
536.3 If a
request for a preliminary inquiry is made, the prosecutor or, if the
request was made by the accused, counsel for the accused shall,
within the period fixed by rules of court made under section 482 or
482.1 or, if there are no such rules, by the justice, provide the
court and the other party with a statement that identifies
(
a) the issues on which the
requesting party wants evidence to be given at the inquiry; and
(
b) the witnesses that the
requesting party wants to hear at the inquiry.
2002,
c. 13, s. 27. |
|
536.4 (1) The
justice before whom a preliminary inquiry is to be held may order,
on application of the prosecutor or the accused or on the justice's
own motion, that a hearing be held, within the period fixed by rules
of court made under section 482 or 482.1 or, if there are no such
rules, by the justice, to
(
a) assist the parties to
identify the issues on which evidence will be given at the
inquiry;
(
b) assist the parties to
identify the witnesses to be heard at the inquiry, taking into
account the witnesses' needs and circumstances; and
(
c) encourage the parties to
consider any other matters that would promote a fair and expeditious
inquiry. |
|
(2)
When the hearing is completed, the justice shall record any
admissions of fact agreed to by the parties and any agreement
reached by the parties.
2002,
c. 13, s. 27. |
|
536.5 Whether
or not a hearing is held under section 536.4 in respect of a
preliminary inquiry, the prosecutor and the accused may agree to
limit the scope of the preliminary inquiry to specific issues. An
agreement shall be filed with the court or recorded under subsection
536.4(2), as the case may be.
2002,
c. 13, s. 27. |
|
|
|
537. (1) A
justice acting under this Part may
(
a) adjourn an inquiry from
time to time and change the place of hearing, where it appears to be
desirable to do so by reason of the absence of a witness, the
inability of a witness who is ill to attend at the place where the
justice usually sits or for any other sufficient reason;
(
b) remand the accused to
custody for the purposes of the Identification of Criminals
Act;
(
c) except where the accused
is authorized pursuant to Part XVI to be at large, remand the
accused to custody in a prison by warrant in Form 19;
(
d) resume an inquiry before
the expiration of a period for which it has been adjourned with the
consent of the prosecutor and the accused or his counsel;
(
e) order in writing, in Form
30, that the accused be brought before him, or any other justice for
the same territorial division, at any time before the expiration of
the time for which the accused has been remanded;
(
f) grant or refuse
permission to the prosecutor or his counsel to address him in
support of the charge, by way of opening or summing up or by way of
reply on any evidence that is given on behalf of the accused;
(
g) receive evidence on the
part of the prosecutor or the accused, as the case may be, after
hearing any evidence that has been given on behalf of either of
them;
(
h) order that no person
other than the prosecutor, the accused and their counsel shall have
access to or remain in the room in which the inquiry is held, where
it appears to him that the ends of justice will be best served by so
doing;
(
i) regulate the course of
the inquiry in any way that appears to the justice to be consistent
with this Act and that, unless the justice is satisfied that to do
so would be contrary to the best interests of the administration of
justice, is in accordance with any admission of fact or agreement
recorded under subsection 536.4(2) or agreement made under section
536.5;
(
j) where the prosecutor and
the accused so agree, permit the accused to appear by counsel or by
closed-circuit television or any other means that allow the court
and the accused to engage in simultaneous visual and oral
communication, for any part of the inquiry other than a part in
which the evidence of a witness is taken;
(
j.1) permit, on the request
of the accused, that the accused be out of court during the whole or
any part of the inquiry on any conditions that the justice considers
appropriate; and
(
k) for any part of the
inquiry other than a part in which the evidence of a witness is
taken, require an accused who is confined in prison to appear by
closed-circuit television or any other means that allow the court
and the accused to engage in simultaneous visual and oral
communication, if the accused is given the opportunity to
communicate privately with counsel, in a case in which the accused
is represented by counsel. |
Inappropriate
questioning |
(1.1)
A justice acting under this Part shall order the immediate cessation
of any part of an examination or cross-examination of a witness that
is, in the opinion of the justice, abusive, too repetitive or
otherwise inappropriate. |
|
(2)
Where a justice changes the place of hearing under paragraph (1)(
a) to a place in the same
province, other than a place in a territorial division in which the
justice has jurisdiction, any justice who has jurisdiction in the
place to which the hearing is changed may continue the hearing.
(3)
and (4) [Repealed, 1991, c. 43, s. 9]
R.S.,
1985, c. C-46, s. 537; 1991, c. 43, s. 9; 1994, c. 44, s. 53; 1997,
c. 18, s. 64; 2002, c. 13, s. 28. |
|
538. Where an
accused is an organization, subsections 556(1) and (2) apply with
such modifications as the circumstances require.
R.S.,
1985, c. C-46, s. 538; 2003, c. 21, s. 8. |
|
Taking
Evidence of Witnesses |
|
539. (1)
Prior to the commencement of the taking of evidence at a preliminary
inquiry, the justice holding the inquiry
(a) may, if application therefor is
made by the prosecutor, and
(b) shall, if application therefor
is made by any of the accused,
make an
order directing that the evidence taken at the inquiry shall not be
published in any newspaper or broadcast before such time as, in
respect of each of the accused,
(c) he is discharged, or
(d) if he is ordered to stand
trial, the trial is ended. |
Accused
to be informed of right to apply for order |
(2)
Where an accused is not represented by counsel at a preliminary
inquiry, the justice holding the inquiry shall, prior to the
commencement of the taking of evidence at the inquiry, inform the
accused of his right to make application under subsection
(1). |
Failure
to comply with order |
(3)
Every one who fails to comply with an order made pursuant to
subsection (1) is guilty of an offence punishable on summary
conviction. |
Definition
of “newspaper” |
(4) In
this section, “newspaper” has the same meaning as in section
297.
R.S.,
1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s.
97. |
|
540. (1)
Where an accused is before a justice holding a preliminary inquiry,
the justice shall
(
a) take the evidence under
oath of the witnesses called on the part of the prosecution and
allow the accused or counsel for the accused to cross-examine them;
and
(
b) cause a record of the
evidence of each witness to be taken
(i) in
legible writing in the form of a deposition, in Form 31, or by a
stenographer appointed by him or pursuant to law, or
(ii)
in a province where a sound recording apparatus is authorized by or
under provincial legislation for use in civil cases, by the type of
apparatus so authorized and in accordance with the requirements of
the provincial legislation. |
Reading
and signing depositions |
(2)
Where a deposition is taken down in writing, the justice shall, in
the presence of the accused, before asking the accused if he wishes
to call witnesses,
(
a) cause the deposition to
be read to the witness;
(
b) cause the deposition to
be signed by the witness; and
(
c) sign the deposition
himself. |
Authentication
by justice |
(3)
Where depositions are taken down in writing, the justice may
sign
(
a) at the end of each
deposition; or
(
b) at the end of several or
of all the depositions in a manner that will indicate that his
signature is intended to authenticate each deposition. |
|
(4)
Where the stenographer appointed to take down the evidence is not a
duly sworn court stenographer, he shall make oath that he will truly
and faithfully report the evidence. |
Authentication
of transcript |
(5)
Where the evidence is taken down by a stenographer appointed by the
justice or pursuant to law, it need not be read to or signed by the
witnesses, but, on request of the justice or of one of the parties,
shall be transcribed, in whole or in part, by the stenographer and
the transcript shall be accompanied by
(
a) an affidavit of the
stenographer that it is a true report of the evidence; or
(
b) a certificate that it is
a true report of the evidence if the stenographer is a duly sworn
court stenographer. |
Transcription
of record taken by sound recording apparatus |
(6)
Where, in accordance with this Act, a record is taken in any
proceedings under this Act by a sound recording apparatus, the
record so taken shall, on request of the justice or of one of the
parties, be dealt with and transcribed, in whole or in part, and the
transcription certified and used in accordance with the provincial
legislation, with such modifications as the circumstances require
mentioned in subsection (1). |
|
(7) A
justice acting under this Part may receive as evidence any
information that would not otherwise be admissible but that the
justice considers credible or trustworthy in the circumstances of
the case, including a statement that is made by a witness in writing
or otherwise recorded. |
Notice
of intention to tender |
(8)
Unless the justice orders otherwise, no information may be received
as evidence under subsection (7) unless the party has given to each
of the other parties reasonable notice of his or her intention to
tender it, together with a copy of the statement, if any, referred
to in that subsection. |
Appearance
for examination |
(9)
The justice shall, on application of a party, require any person
whom the justice considers appropriate to appear for examination or
cross-examination with respect to information intended to be
tendered as evidence under subsection (7).
R.S.,
1985, c. C-46, s. 540; R.S., 1985, c. 27 (1st Supp.), s. 98; 1997,
c. 18, s. 65; 2002, c. 13, s. 29. |
|
541. (1) When
the evidence of the witnesses called on the part of the prosecution
has been taken down and, where required by this Part, has been read,
the justice shall, subject to this section, hear the witnesses
called by the accused. |
Contents
of address to accused |
(2)
Before hearing any witness called by an accused who is not
represented by counsel, the justice shall address the accused as
follows or to the like effect:
“Do
you wish to say anything in answer to these charges or to any other
charges which might have arisen from the evidence led by the
prosecution? You are not obliged to say anything, but whatever you
do say may be given in evidence against you at your trial. You
should not make any confession or admission of guilt because of any
promise or threat made to you but if you do make any statement it
may be given in evidence against you at your trial in spite of the
promise or threat.” |
|
(3)
Where the accused who is not represented by counsel says anything in
answer to the address made by the justice pursuant to subsection
(2), the answer shall be taken down in writing and shall be signed
by the justice and kept with the evidence of the witnesses and dealt
with in accordance with this Part. |
|
(4)
Where an accused is not represented by counsel, the justice shall
ask the accused if he or she wishes to call any witnesses after
subsections (2) and (3) have been complied with. |
Depositions
of such witnesses |
(5)
The justice shall hear each witness called by the accused who
testifies to any matter relevant to the inquiry, and for the
purposes of this subsection, section 540 applies with such
modifications as the circumstances require.
R.S.,
1985, c. C-46, s. 541; R.S., 1985, c. 27 (1st Supp.), s. 99; 1994,
c. 44, s. 54. |
|
542. (1)
Nothing in this Act prevents a prosecutor giving in evidence at a
preliminary inquiry any admission, confession or statement made at
any time by the accused that by law is admissible against
him. |
Restriction
of publication of reports of preliminary inquiry |
(2)
Every one who publishes in any newspaper, or broadcasts, a report
that any admission or confession was tendered in evidence at a
preliminary inquiry or a report of the nature of such admission or
confession so tendered in evidence unless
(a) the accused has been
discharged, or
(b) if the accused has been ordered
to stand trial, the trial has ended,
is
guilty of an offence punishable on summary conviction. |
Definition
of “newspaper” |
(3) In
this section, “newspaper” has the same meaning as in section
297.
R.S.,
1985, c. C-46, s. 542; R.S., 1985, c. 27 (1st Supp.), s.
101(E). |
|
Remand
Where Offence Committed in Another Jurisdiction |
|
543. (1)
Where an accused is charged with an offence alleged to have been
committed out of the limits of the jurisdiction in which he has been
charged, the justice before whom he appears or is brought may, at
any stage of the inquiry after hearing both parties,
(a) order the accused to appear,
or
(b) if the accused is in custody,
issue a warrant in Form 15 to convey the accused
before a
justice having jurisdiction in the place where the offence is
alleged to have been committed, who shall continue and complete the
inquiry. |
Transmission
of transcript and documents and effect of order or
warrant |
(2)
Where a justice makes an order or issues a warrant pursuant to
subsection (1), he shall cause the transcript of any evidence given
before him in the inquiry and all documents that were then before
him and that are relevant to the inquiry to be transmitted to a
justice having jurisdiction in the place where the offence is
alleged to have been committed and
(a) any evidence the transcript of
which is so transmitted shall be deemed to have been taken by the
justice to whom it is transmitted; and
(b) any appearance notice, promise
to appear, undertaking or recognizance issued to or given or entered
into by the accused under Part XVI shall be deemed to have been
issued, given or entered into in the jurisdiction where the offence
is alleged to have been committed and to require the accused to
appear before the justice to whom the transcript and documents are
transmitted at the time provided in the order made in respect of the
accused under paragraph (1)(a).
R.S.,
c. C-34, s. 471; R.S., c. 2(2nd Supp.), s. 7. |
|
|
|
544. (1)
Notwithstanding any other provision of this Act, where an accused,
whether or not he is charged jointly with another, absconds during
the course of a preliminary inquiry into an offence with which he is
charged,
(a) he shall be deemed to have
waived his right to be present at the inquiry, and
(b) the justice
(i)
may continue the inquiry and, when all the evidence has been taken,
shall dispose of the inquiry in accordance with section 548, or
(ii)
if a warrant is issued for the arrest of the accused, may adjourn
the inquiry to await his appearance,
but
where the inquiry is adjourned pursuant to subparagraph (b)(ii), the justice may continue
it at any time pursuant to subparagraph (b)(i) if he is satisfied that it
would no longer be in the interests of justice to await the
appearance of the accused. |
|
(2)
Where the justice continues a preliminary inquiry pursuant to
subsection (1), he may draw an inference adverse to the accused from
the fact that he has absconded. |
Accused
not entitled to re-opening |
(3)
Where an accused reappears at a preliminary inquiry that is
continuing pursuant to subsection (1), he is not entitled to have
any part of the proceedings that was conducted in his absence
re-opened unless the justice is satisfied that because of
exceptional circumstances it is in the interests of justice to
re-open the inquiry. |
Counsel
for accused may continue to act |
(4)
Where an accused has absconded during the course of a preliminary
inquiry and the justice continues the inquiry, counsel for the
accused is not thereby deprived of any authority he may have to
continue to act for the accused in the proceedings. |
Accused
calling witnesses |
(5)
Where, at the conclusion of the evidence on the part of the
prosecution at a preliminary inquiry that has been continued
pursuant to subsection (1), the accused is absent but counsel for
the accused is present, he or she shall be given an opportunity to
call witnesses on behalf of the accused and subsection 541(5)
applies with such modifications as the circumstances require.
R.S.,
1985, c. C-46, s. 544; 1994, c. 44, s. 55. |
|
Procedure
where Witness Refuses to Testify |
|
545. (1)
Where a person, being present at a preliminary inquiry and being
required by the justice to give evidence,
(a) refuses to be sworn,
(b) having been sworn, refuses to
answer the questions that are put to him,
(c) fails to produce any writings
that he is required to produce, or
(d) refuses to sign his
deposition,
without
offering a reasonable excuse for his failure or refusal, the justice
may adjourn the inquiry and may, by warrant in Form 20, commit the
person to prison for a period not exceeding eight clear days or for
the period during which the inquiry is adjourned, whichever is the
lesser period. |
|
(2)
Where a person to whom subsection (1) applies is brought before the
justice on the resumption of the adjourned inquiry and again refuses
to do what is required of him, the justice may again adjourn the
inquiry for a period not exceeding eight clear days and commit him
to prison for the period of adjournment or any part thereof, and may
adjourn the inquiry and commit the person to prison from time to
time until the person consents to do what is required of
him. |
|
(3)
Nothing in this section shall be deemed to prevent the justice from
sending the case for trial on any other sufficient evidence taken by
him.
R.S.,
c. C-34, s. 472. |
|
|
|
546. The
validity of any proceeding at or subsequent to a preliminary inquiry
is not affected by
(a) any irregularity or defect in
the substance or form of the summons or warrant;
(b) any variance between the charge
set out in the summons or warrant and the charge set out in the
information; or
(c) any variance between the charge
set out in the summons, warrant or information and the evidence
adduced by the prosecution at the inquiry.
R.S.,
c. C-34, s. 473. |
|
547. Where it
appears to the justice that the accused has been deceived or misled
by any irregularity, defect or variance mentioned in section 546, he
may adjourn the inquiry and may remand the accused or grant him
interim release in accordance with Part XVI.
R.S.,
c. C-34, s. 474; 1974-75-76, c. 93, s. 59.1. |
|
547.1 Where a
justice acting under this Part has commenced to take evidence and
dies or is unable to continue for any reason, another justice
may
(a) continue taking the evidence at
the point at which the interruption in the taking of the evidence
occurred, where the evidence was recorded pursuant to section 540
and is available; or
(b) commence taking the evidence as
if no evidence had been taken, where no evidence was recorded
pursuant to section 540 or where the evidence is not available.
R.S.,
1985, c. 27 (1st Supp.), s. 100. |
|
Adjudication
and Recognizances |
|
548. (1) When
all the evidence has been taken by the justice, he shall
(a) if in his opinion there is
sufficient evidence to put the accused on trial for the offence
charged or any other indictable offence in respect of the same
transaction, order the accused to stand trial; or
(b) discharge the accused, if in
his opinion on the whole of the evidence no sufficient case is made
out to put the accused on trial for the offence charged or any other
indictable offence in respect of the same transaction. |
|
(2)
Where the justice orders the accused to stand trial for an
indictable offence, other than or in addition to the one with which
the accused was charged, the justice shall endorse on the
information the charges on which he orders the accused to stand
trial. |
Where
accused ordered to stand trial |
(2.1)
A justice who orders that an accused is to stand trial has the power
to fix the date for the trial or the date on which the accused must
appear in the trial court to have that date fixed. |
Defect
not to affect validity |
(3)
The validity of an order to stand trial is not affected by any
defect apparent on the face of the information in respect of which
the preliminary inquiry is held or in respect of any charge on which
the accused is ordered to stand trial unless, in the opinion of the
court before which an objection to the information or charge is
taken, the accused has been misled or prejudiced in his defence by
reason of that defect.
R.S.,
1985, c. C-46, s. 548; R.S., 1985, c. 27 (1st Supp.), s. 101; 1994,
c. 44, s. 56. |
|
549. (1)
Notwithstanding any other provision of this Act, the justice may, at
any stage of a preliminary inquiry, with the consent of the accused
and the prosecutor, order the accused to stand trial in the court
having criminal jurisdiction, without taking or recording any
evidence or further evidence. |
Limited
preliminary inquiry |
(1.1)
If the prosecutor and the accused agree under section 536.5 to limit
the scope of a preliminary inquiry to specific issues, the justice,
without recording evidence on any other issues, may order the
accused to stand trial in the court having criminal
jurisdiction. |
|
(2) If
an accused is ordered to stand trial under this section, the justice
shall endorse on the information a statement of the consent of the
accused and the prosecutor, and the accused shall after that be
dealt with in all respects as if ordered to stand trial under
section 548.
R.S.,
1985, c. C-46, s. 549; R.S., 1985, c. 27 (1st Supp.), s. 101; 2002,
c. 13, s. 30. |
|
550. (1)
Where an accused is ordered to stand trial, the justice who held the
preliminary inquiry may require any witness whose evidence is, in
his opinion, material to enter into a recognizance to give evidence
at the trial of the accused and to comply with such reasonable
conditions prescribed in the recognizance as the justice considers
desirable for securing the attendance of the witness to give
evidence at the trial of the accused. |
|
(2) A
recognizance entered into pursuant to this section may be in Form
32, and may be set out at the end of a deposition or be separate
therefrom. |
Sureties
or deposit for appearance of witness |
(3) A
justice may, for any reason satisfactory to him, require any witness
entering into a recognizance pursuant to this section
(a) to produce one or more sureties
in such amount as he may direct; or
(b) to deposit with him a sum of
money sufficient in his opinion to ensure that the witness will
appear and give evidence. |
Witness
refusing to be bound |
(4)
Where a witness does not comply with subsection (1) or (3) when
required to do so by a justice, he may be committed by the justice,
by warrant in Form 24, to a prison in the territorial division where
the trial is to be held, there to be kept until he does what is
required of him or until the trial is concluded. |
|
(5)
Where a witness has been committed to prison pursuant to subsection
(4), the court before which the witness appears or a justice having
jurisdiction in the territorial division where the prison is
situated may, by order in Form 39, discharge the witness from
custody when the trial is concluded.
R.S.,
1985, c. C-46, s. 550; R.S., 1985, c. 27 (1st Supp.), s.
101. |
|
|
|
551. Where a
justice orders an accused to stand trial, the justice shall
forthwith send to the clerk or other proper officer of the court by
which the accused is to be tried, the information, the evidence, the
exhibits, the statement if any of the accused taken down in writing
under section 541, any promise to appear, undertaking or
recognizance given or entered into in accordance with Part XVI, or
any evidence taken before a coroner, that is in the possession of
the justice.
R.S.,
1985, c. C-46, s. 551; R.S., 1985, c. 27 (1st Supp.), s.
102. |
|
PART
XIX
INDICTABLE OFFENCES —
TRIAL WITHOUT JURY |
|
|
|
552. In this
Part, |
|
“judge” means,
(a) in the Province of Ontario, a
judge of the superior court of criminal jurisdiction of the
Province,
(b) in the Province of Quebec, a
judge of the Court of Quebec,
(c) in the Province of Nova Scotia,
a judge of the superior court of criminal jurisdiction of the
Province,
(d) in the Province of New
Brunswick, a judge of the Court of Queen’s Bench,
(e) in the Province of British
Columbia, the Chief Justice or a puisne judge of the Supreme
Court,
(f) in the Provinces of Prince
Edward Island and Newfoundland, a judge of the Supreme Court,
(g) in the Province of Manitoba,
the Chief Justice or a puisne judge of the Court of Queen’s
Bench,
(h) in the Provinces of
Saskatchewan and Alberta, a judge of the superior court of criminal
jurisdiction of the province,
(i) in Yukon and the Northwest
Territories, a judge of the Supreme Court, and
(j) in Nunavut, a judge of the
Nunavut Court of Justice; |
|
“magistrate”[Repealed,
R.S., 1985, c. 27 (1st Supp.), s. 103]
R.S.,
1985, c. C-46, s. 552; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27
(1st Supp.), s. 103, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s.
2; 1990, c. 16, s. 6, c. 17, s. 13; 1992, c. 51, s. 38; 1999, c. 3,
s. 36; 2002, c. 7, s. 145. |
|
Jurisdiction
of Provincial Court Judges |
|
|
|
553. The
jurisdiction of a provincial court judge, or in Nunavut, of a judge
of the Nunavut Court of Justice, to try an accused is absolute and
does not depend on the consent of the accused where the accused is
charged in an information
(a) with
(i)
theft, other than theft of cattle,
(ii)
obtaining money or property by false pretences,
(iii)
unlawfully having in his possession any property or thing or any
proceeds of any property or thing knowing that all or a part of the
property or thing or of the proceeds was obtained by or derived
directly or indirectly from the commission in Canada of an offence
punishable by indictment or an act or omission anywhere that, if it
had occurred in Canada, would have constituted an offence punishable
by indictment,
(iv)
having, by deceit, falsehood or other fraudulent means, defrauded
the public or any person, whether ascertained or not, of any
property, money or valuable security, or
(v)
mischief under subsection 430(4),
where
the subject-matter of the offence is not a testamentary instrument
and the alleged value of the subject-matter of the offence does not
exceed five thousand dollars;
(b) with counselling or with a
conspiracy or attempt to commit or with being an accessory after the
fact to the commission of
(i)
any offence referred to in paragraph (a) in respect of the
subject-matter and value thereof referred to in that paragraph,
or
(ii)
any offence referred to in paragraph (c); or
(c) with an offence under
(i)
section 201 (keeping gaming or betting house),
(ii)
section 202 (betting, pool-selling, book-making, etc.),
(iii)
section 203 (placing bets),
(iv)
section 206 (lotteries and games of chance),
(v)
section 209 (cheating at play),
(vi)
section 210 (keeping common bawdy-house),
(vii)
[Repealed, 2000, c. 25, s. 4]
(viii)
section 393 (fraud in relation to fares),
(viii.1)
section 811 (breach of recognizance),
(ix)
subsection 733.1(1) (failure to comply with probation order),
(x)
paragraph 4(4)(a) of the
Controlled Drugs and Substances
Act, or
(xi)
subsection 5(4) of the Controlled
Drugs and Substances Act.
R.S.,
1985, c. C-46, s. 553; R.S., 1985, c. 27 (1st Supp.), s. 104; 1992,
c. 1, s. 58; 1994, c. 44, s. 57; 1995, c. 22, s. 2; 1996, c. 19, s.
72; 1997, c. 18, s. 66; 1999, c. 3, s. 37; 2000, c. 25, s.
4. |
|
Provincial
Court Judge’s Jurisdiction with Consent |
|
554. (1)
Subject to subsection (2), if an accused is charged in an
information with an indictable offence other than an offence that is
mentioned in section 469, and the offence is not one over which a
provincial court judge has absolute jurisdiction under section 553,
a provincial court judge may try the accused if the accused elects
to be tried by a provincial court judge. |
|
(2)
With respect to criminal proceedings in Nunavut, if an accused is
charged in an information with an indictable offence other than an
offence that is mentioned in section 469 and the offence is not one
over which a judge of the Nunavut Court of Justice has absolute
jurisdiction under section 553, a judge of the Nunavut Court of
Justice may try the accused if the accused elects to be tried by a
judge without a jury.
R.S.,
1985, c. C-46, s. 554; R.S., 1985, c. 27 (1st Supp.), ss. 105, 203;
1999, c. 3, s. 38; 2002, c. 13, s. 31. |
|
555. (1)
Where in any proceedings under this Part an accused is before a
provincial court judge and it appears to the provincial court judge
that for any reason the charge should be prosecuted by indictment,
he may, at any time before the accused has entered on his defence,
decide not to adjudicate and shall thereupon inform the accused of
his decision and continue the proceedings as a preliminary
inquiry. |
Where
subject-matter is a testamentary instrument or exceeds $5,000 in
value |
(2)
Where an accused is before a provincial court judge charged with an
offence mentioned in paragraph 553(a) or subparagraph 553(b)(i), and, at any time before the
provincial court judge makes an adjudication, the evidence
establishes that the subject-matter of the offence is a testamentary
instrument or that its value exceeds five thousand dollars, the
provincial court judge shall put the accused to his or her election
in accordance with subsection 536(2). |
|
(3)
Where an accused is put to his election pursuant to subsection (2),
the following provisions apply, namely,
(a) if the accused elects to be
tried by a judge without a jury or a court composed of a judge and
jury or does not elect when put to his or her election, the
provincial court judge shall continue the proceedings as a
preliminary inquiry under Part XVIII and, if the provincial court
judge orders the accused to stand trial, he or she shall endorse on
the information a record of the election; and
(b) if the accused elects to be
tried by a provincial court judge, the provincial court judge shall
endorse on the information a record of the election and continue
with the trial.
R.S.,
1985, c. C-46, s. 555; R.S., 1985, c. 27 (1st Supp.), ss. 106, 203;
1994, c. 44, s. 58; 2002, c. 13, s. 32. |
|
555.1 (1) If
in any criminal proceedings under this Part an accused is before a
judge of the Nunavut Court of Justice and it appears to the judge
that for any reason the charge should be prosecuted by indictment,
the judge may, at any time before the accused has entered a defence,
decide not to adjudicate and shall then inform the accused of the
decision and continue the proceedings as a preliminary
inquiry. |
If
subject-matter is a testamentary instrument or exceeds $5,000 in
value — Nunavut |
(2) If
an accused is before a judge of the Nunavut Court of Justice charged
with an indictable offence mentioned in paragraph 553( a) or subparagraph 553( b)(i), and, at any time before the
judge makes an adjudication, the evidence establishes that the
subject-matter of the offence is a testamentary instrument or that
its value exceeds five thousand dollars, the judge shall put the
accused to an election in accordance with subsection
536.1(2). |
Continuation
as preliminary inquiry — Nunavut |
(3) A
judge shall continue the proceedings as a preliminary inquiry under
Part XVIII if the accused is put to an election under subsection (2)
and elects to be tried by a judge without a jury and requests a
preliminary inquiry under subsection 536.1(3) or elects to be tried
by a court composed of a judge and jury or does not elect when put
to the election. |
Continuing
proceedings — Nunavut |
(4) If
an accused is put to an election under subsection (2) and elects to
be tried by a judge without a jury and does not request a
preliminary inquiry under subsection 536.1(3), the judge shall
endorse on the information a record of the election and continue
with the trial. |
|
(5)
This section, and not section 555, applies in respect of criminal
proceedings in Nunavut.
1999,
c. 3, s. 39; 2002, c. 13, s. 33. |
|
556. (1) An
accused organization shall appear by counsel or agent. |
|
(2)
Where an accused organization does not appear pursuant to a summons
and service of the summons on the organization is proved, the
provincial court judge or, in Nunavut, the judge of the Nunavut
Court of Justice
(
a) may, if the charge is one
over which the judge has absolute jurisdiction, proceed with the
trial of the charge in the absence of the accused organization;
and
(
b) shall, if the charge is
not one over which the judge has absolute jurisdiction, fix the date
for the trial or the date on which the accused organization must
appear in the trial court to have that date fixed. |
Preliminary
inquiry not requested |
(3) If
an accused organization appears and a preliminary inquiry is not
requested under subsection 536(4), the provincial court judge shall
fix the date for the trial or the date on which the organization
must appear in the trial court to have that date fixed. |
Preliminary
inquiry not requested — Nunavut |
(4) If
an accused organization appears and a preliminary inquiry is not
requested under subsection 536.1(3), the justice of the peace or the
judge of the Nunavut Court of Justice shall fix the date for the
trial or the date on which the organization must appear in the trial
court to have that date fixed.
R.S.,
1985, c. C-46, s. 556; R.S., 1985, c. 27 (1st Supp.), s. 107; 1999,
c. 3, s. 40; 2002, c. 13, s. 34; 2003, c. 21, ss. 9, 22. |
|
557. If an
accused is tried by a provincial court judge or a judge of the
Nunavut Court of Justice in accordance with this Part, the evidence
of witnesses for the prosecutor and the accused must be taken in
accordance with the provisions of Part XVIII, other than subsections
540(7) to (9), relating to preliminary inquiries.
R.S.,
1985, c. C-46, s. 557; R.S., 1985, c. 27 (1st Supp.), s. 203; 1999,
c. 3, s. 41; 2002, c. 13, s. 35. |
|
|
|
Judge’s
Jurisdiction with Consent |
|
558. If an
accused who is charged with an indictable offence, other than an
offence mentioned in section 469, elects under section 536 or 536.1
or re-elects under section 561 or 561.1 to be tried by a judge
without a jury, the accused shall, subject to this Part, be tried by
a judge without a jury.
R.S.,
1985, c. C-46, s. 558; R.S., 1985, c. 27 (1st Supp.), s. 108; 1999,
c. 3, s. 41. |
|
559. (1) A
judge who holds a trial under this Part shall, for all purposes
thereof and proceedings connected therewith or relating thereto, be
a court of record. |
|
(2)
The record of a trial that a judge holds under this Part shall be
kept in the court over which the judge presides.
R.S.,
c. C-34, s. 489. |
|
|
|
560. (1) If
an accused elects, under section 536 or 536.1, to be tried by a
judge without a jury, a judge having jurisdiction shall
(a) on receiving a written notice
from the sheriff or other person having custody of the accused
stating that the accused is in custody and setting out the nature of
the charge against him, or
(b) on being notified by the clerk
of the court that the accused is not in custody and of the nature of
the charge against him,
fix a
time and place for the trial of the accused. |
Notice
by sheriff, when given |
(2)
The sheriff or other person having custody of the accused shall give
the notice mentioned in paragraph (1)(a) within twenty-four hours after
the accused is ordered to stand trial, if the accused is in custody
pursuant to that order or if, at the time of the order, he is in
custody for any other reason. |
Duty
of sheriff when date set for trial |
(3)
Where, pursuant to subsection (1), a time and place is fixed for the
trial of an accused who is in custody, the accused
(a) shall be notified forthwith by
the sheriff or other person having custody of the accused of the
time and place so fixed; and
(b) shall be produced at the time
and place so fixed. |
Duty
of accused when not in custody |
(4)
Where an accused is not in custody, the duty of ascertaining from
the clerk of the court the time and place fixed for the trial,
pursuant to subsection (1), is on the accused, and he shall attend
for his trial at the time and place so fixed.
(5)
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 109]
R.S.,
1985, c. C-46, s. 560; R.S., 1985, c. 27 (1st Supp.), ss. 101(E),
109; 1999, c. 3, s. 42; 2002, c. 13, s. 36. |
|
561. (1) An
accused who elects or is deemed to have elected a mode of trial
other than trial by a provincial court judge may re-elect
(a) at any time before or after the
completion of the preliminary inquiry, with the written consent of
the prosecutor, to be tried by a provincial court judge;
(b) at any time before the
completion of the preliminary inquiry or before the fifteenth day
following the completion of the preliminary inquiry, as of right,
another mode of trial other than trial by a provincial court judge;
and
(c) on or after the fifteenth day
following the completion of the preliminary inquiry, any mode of
trial with the written consent of the prosecutor. |
|
(2) An
accused who elects to be tried by a provincial court judge or who
does not request a preliminary inquiry under subsection 536(4) may,
not later than 14 days before the day first appointed for the trial,
re-elect as of right another mode of trial, and may do so after that
time with the written consent of the prosecutor. |
|
(3)
Where an accused wishes to re-elect under subsection (1) before the
completion of the preliminary inquiry, the accused shall give notice
in writing that he wishes to re-elect, together with the written
consent of the prosecutor, where that consent is required, to the
justice presiding at the preliminary inquiry who shall on receipt of
the notice,
(a) in the case of a re-election
under paragraph (1)(b), put
the accused to his re-election in the manner set out in subsection
(7); or
(b) where the accused wishes to
re-elect under paragraph (1)(a) and the justice is not a
provincial court judge, notify a provincial court judge or clerk of
the court of the accused’s intention to re-elect and send to the
provincial court judge or clerk the information and any promise to
appear, undertaking or recognizance given or entered into in
accordance with Part XVI, or any evidence taken before a coroner,
that is in the possession of the justice. |
|
(4)
Where an accused wishes to re-elect under subsection (2), the
accused shall give notice in writing that he wishes to re-elect
together with the written consent of the prosecutor, where that
consent is required, to the provincial court judge before whom the
accused appeared and pleaded or to a clerk of the court. |
Notice
and transmitting record |
(5)
Where an accused wishes to re-elect under subsection (1) after the
completion of the preliminary inquiry, the accused shall give notice
in writing that he wishes to re-elect, together with the written
consent of the prosecutor, where that consent is required, to a
judge or clerk of the court of his original election who shall, on
receipt of the notice, notify the judge or provincial court judge or
clerk of the court by which the accused wishes to be tried of the
accused’s intention to re-elect and send to that judge or provincial
court judge or clerk the information, the evidence, the exhibits and
the statement, if any, of the accused taken down in writing under
section 541 and any promise to appear, undertaking or recognizance
given or entered into in accordance with Part XVI, or any evidence
taken before a coroner, that is in the possession of the
first-mentioned judge or clerk. |
Time
and place for re-election |
(6)
Where a provincial court judge or judge or clerk of the court is
notified under paragraph (3)(b) or subsection (4) or (5) that
the accused wishes to re-elect, the provincial court judge or judge
shall forthwith appoint a time and place for the accused to re-elect
and shall cause notice thereof to be given to the accused and the
prosecutor. |
Proceedings
on re-election |
(7)
The accused shall attend or, if he is in custody, shall be produced
at the time and place appointed under subsection (6) and shall,
after
(a) the charge on which he has been
ordered to stand trial or the indictment, where an indictment has
been preferred pursuant to section 566, 574 or 577 or is filed with
the court before which the indictment is to be preferred pursuant to
section 577, or
(b) in the case of a re-election
under subsection (1) before the completion of the preliminary
inquiry or under subsection (2), the information
has been
read to the accused, be put to his re-election in the following
words or in words to the like effect:
You
have given notice of your wish to re-elect the mode of your trial.
You now have the option to do so. How do you wish to re-elect?
R.S.,
1985, c. C-46, s. 561; R.S., 1985, c. 27 (1st Supp.), s. 110; 2002,
c. 13, s. 37. |
|
561.1 (1) An
accused who has elected or is deemed to have elected a mode of trial
may re-elect any other mode of trial at any time with the written
consent of the prosecutor. |
Right
to re-elect before trial — Nunavut |
(2) An
accused who has elected or is deemed to have elected a mode of trial
but has not requested a preliminary inquiry under subsection
536.1(3) may, as of right, re-elect to be tried by any other mode of
trial at any time up to 14 days before the day first appointed for
the trial. |
Right
to re-elect at preliminary inquiry — Nunavut |
(3) An
accused who has elected or is deemed to have elected a mode of trial
and has requested a preliminary inquiry under subsection 536.1(3)
may, as of right, re-elect to be tried by the other mode of trial at
any time before the completion of the preliminary inquiry or before
the 15th day after its completion. |
Notice
of re-election under subsection (1) or (3) — Nunavut |
(4) If
an accused wishes to re-elect under subsection (1) or (3), before
the completion of the preliminary inquiry, the accused shall give
notice in writing of the wish to re-elect, together with the written
consent of the prosecutor, if that consent is required, to the
justice of the peace or judge presiding at the preliminary inquiry
who shall on receipt of the notice put the accused to a re-election
in the manner set out in subsection (9). |
Notice
at preliminary inquiry — Nunavut |
(5) If
at a preliminary inquiry an accused wishes to re-elect under
subsection (1) or (3) to be tried by a judge without a jury but does
not wish to request a preliminary inquiry under subsection 536.1(3),
the presiding justice of the peace shall notify a judge or a clerk
of the Nunavut Court of Justice of the accused's intention to
re-elect and send to the judge or clerk the information and any
promise to appear, undertaking or recognizance given or entered into
in accordance with Part XVI, or any evidence taken before a coroner,
that is in the possession of the justice of the peace. |
Notice
when no preliminary inquiry or preliminary inquiry completed —
Nunavut |
(6) If
an accused who has not requested a preliminary inquiry under
subsection 536.1(3) or who has had one wishes to re-elect under this
section, the accused shall give notice in writing of the wish to
re-elect together with the written consent of the prosecutor, if
that consent is required, to the judge before whom the accused
appeared and pleaded or to a clerk of the Nunavut Court of
Justice.
(7)
[Repealed, 2002, c. 13, s. 38] |
Time
and place for re-election — Nunavut |
(8) On
receipt of a notice given under any of subsections (4) to (7) that
the accused wishes to re-elect, a judge shall immediately appoint a
time and place for the accused to re-elect and shall cause notice of
the time and place to be given to the accused and the
prosecutor. |
Proceedings
on re-election — Nunavut |
(9)
The accused shall attend or, if in custody, shall be produced at the
time and place appointed under subsection (8) and shall, after
(
a) the charge on which the
accused has been ordered to stand trial or the indictment, if an
indictment has been preferred pursuant to section 566, 574 or 577 or
is filed with the court before which the indictment is to be
preferred pursuant to section 577, or
(
b) in the case of a
re-election under subsection (1) or (3), before the completion of
the preliminary inquiry or under subsection (2), the information
has been
read to the accused, be put to a re-election in the following words
or in words to the like effect:
You
have given notice of your wish to re-elect the mode of your trial.
You now have the option to do so. How do you wish to
re-elect? |
|
(10)
This section, and not section 561, applies in respect of criminal
proceedings in Nunavut.
1999,
c. 3, s. 43; 2002, c. 13, s. 38. |
|
562. (1)
Where the accused re-elects under paragraph 561(1)(a) before the completion of the
preliminary inquiry or under subsection 561(1) after the completion
of the preliminary inquiry, the provincial court judge or judge, as
the case may be, shall proceed with the trial or appoint a time and
place for the trial. |
|
(2)
Where the accused re-elects under paragraph 561(1)(b) before the completion of the
preliminary inquiry or under subsection 561(2), the justice shall
proceed with the preliminary inquiry.
R.S.,
1985, c. C-46, s. 562; R.S., 1985, c. 27 (1st Supp.), s.
110. |
|
562.1 (1) If
the accused re-elects under subsection 561.1(1) to be tried by a
judge without a jury and does not request a preliminary inquiry
under subsection 536.1(3), the judge shall proceed with the trial or
appoint a time and place for the trial. |
Proceedings
following re-election — Nunavut |
(2) If
the accused re-elects under section 561.1 before the completion of
the preliminary inquiry to be tried by a judge without a jury or by
a court composed of a judge and jury, and requests a preliminary
inquiry under subsection 536.1(3), the justice of the peace or judge
shall proceed with the preliminary inquiry. |
|
(3)
This section, and not section 562, applies in respect of criminal
proceedings in Nunavut.
1999,
c. 3, s. 44; 2002, c. 13, s. 39. |
|
563. Where an
accused re-elects under section 561 to be tried by a provincial
court judge,
(a) the accused shall be tried on
the information that was before the justice at the preliminary
inquiry, subject to any amendments thereto that may be allowed by
the provincial court judge by whom the accused is tried; and
(b) the provincial court judge
before whom the re-election is made shall endorse on the information
a record of the re-election.
R.S.,
1985, c. C-46, s. 563; R.S., 1985, c. 27 (1st Supp.), s.
110. |
|
563.1 (1) If
an accused re-elects under section 561.1 to be tried by a judge
without a jury and does not request a preliminary inquiry under
subsection 536.1(3),
(a) the accused shall be tried on
the information that was before the justice of the peace or judge at
the preliminary inquiry, subject to any amendments that may be
allowed by the judge by whom the accused is tried; and
(b) the judge before whom the
re-election is made shall endorse on the information a record of the
re-election. |
|
(2)
This section, and not section 563, applies in respect of criminal
proceedings in Nunavut.
1999,
c. 3, s. 45; 2002, c. 13, s. 40. |
|
564.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 110] |
|
565. (1)
Subject to subsection (1.1), if an accused is ordered to stand trial
for an offence that, under this Part, may be tried by a judge
without a jury, the accused shall, for the purposes of the
provisions of this Part relating to election and re-election, be
deemed to have elected to be tried by a court composed of a judge
and jury if
(a) the accused was ordered to
stand trial by a provincial court judge who, pursuant to subsection
555(1), continued the proceedings before him as a preliminary
inquiry;
(b) the justice, provincial court
judge or judge, as the case may be, declined pursuant to section 567
to record the election or re-election of the accused; or
(c) the accused does not elect when
put to an election under section 536. |
|
(1.1)
With respect to criminal proceedings in Nunavut, if an accused is
ordered to stand trial for an offence that, under this Part, may be
tried by a judge without a jury, the accused shall, for the purposes
of the provisions of this Part relating to election and re-election,
be deemed to have elected to be tried by a court composed of a judge
and jury if
(a) the accused was ordered to
stand trial by a judge who, under subsection 555.1(1), continued the
proceedings as a preliminary inquiry;
(b) the justice of the peace or
judge, as the case may be, declined pursuant to subsection 567.1(1)
to record the election or re-election of the accused; or
(c) the accused did not elect when
put to an election under section 536.1. |
When
direct indictment preferred |
(2) If
an accused is to be tried after an indictment has been preferred
against the accused pursuant to a consent or order given under
section 577, the accused is, for the purposes of the provisions of
this Part relating to election and re-election, deemed both to have
elected to be tried by a court composed of a judge and jury and not
to have requested a preliminary inquiry under subsection 536(4) or
536.1(3) and may, with the written consent of the prosecutor,
re-elect to be tried by a judge without a jury without a preliminary
inquiry. |
|
(3)
Where an accused wishes to re-elect under subsection (2), the
accused shall give notice in writing that he wishes to re-elect,
together with the written consent of the prosecutor, to a judge or
clerk of the court where the indictment has been filed or preferred
who shall, on receipt of the notice, notify a judge having
jurisdiction or clerk of the court by which the accused wishes to be
tried of the accused’s intention to re-elect and send to that judge
or clerk the indictment and any promise to appear, undertaking or
recognizance given or entered into in accordance with Part XVI, any
summons or warrant issued under section 578, or any evidence taken
before a coroner, that is in the possession of the first-mentioned
judge or clerk. |
|
(4)
Subsections 561(6) and (7), or subsections 561.1(8) and (9), as the
case may be, apply to a re-election made under subsection (3).
R.S.,
1985, c. C-46, s. 565; R.S., 1985, c. 27 (1st Supp.), s. 111; 1999,
c. 3, s. 46; 2002, c. 13, s. 41. |
|
|
|
566. (1) The
trial of an accused for an indictable offence, other than a trial
before a provincial court judge, shall be on an indictment in
writing setting forth the offence with which he is
charged. |
|
(2)
Where an accused elects under section 536 or re-elects under section
561 to be tried by a judge without a jury, an indictment in Form 4
may be preferred. |
What
counts may be included and who may prefer indictment |
(3)
Section 574 and subsection 576(1) apply, with such modifications as
the circumstances require, to the preferring of an indictment
pursuant to subsection (2).
R.S.,
1985, c. C-46, s. 566; R.S., 1985, c. 27 (1st Supp.), s. 111; 1997,
c. 18, s. 67. |
|
566.1 (1) The
trial of an accused for an indictable offence, other than an
indictable offence referred to in section 553 or an offence in
respect of which the accused has elected or re-elected to be tried
by a judge without a jury and in respect of which no party has
requested a preliminary inquiry under subsection 536.1(3), must be
on an indictment in writing setting out the offence with which the
accused is charged. |
Preferring
indictment — Nunavut |
(2) If
an accused elects under section 536.1 or re-elects under section
561.1 to be tried by a judge without a jury and one of the parties
requests a preliminary inquiry under subsection 536.1(3), an
indictment in Form 4 may be preferred. |
What
counts may be included and who may prefer indictment —
Nunavut |
(3)
Section 574 and subsection 576(1) apply, with any modifications that
the circumstances require, to the preferring of an indictment under
subsection (2). |
|
(4)
This section, and not section 566, applies in respect of criminal
proceedings in Nunavut.
1999,
c. 3, s. 47; 2002, c. 13, s. 42. |
|
|
|
567. Despite
any other provision of this Part, if two or more persons are jointly
charged in an information, unless all of them elect or re-elect or
are deemed to have elected the same mode of trial, the justice,
provincial court judge or judge may decline to record any election,
re-election or deemed election for trial by a provincial court judge
or a judge without a jury.
R.S.,
1985, c. C-46, s. 567; R.S., 1985, c. 27 (1st Supp.), s. 111; 2002,
c. 13, s. 43. |
|
567.1 (1)
Despite any other provision of this Part, if two or more persons are
jointly charged in an information, unless all of them elect or
re-elect or are deemed to have elected the same mode of trial, the
justice of the peace or judge may decline to record any election,
re-election or deemed election for trial by a judge without a
jury. |
|
(2)
This section, and not section 567, applies in respect of criminal
proceedings in Nunavut.
1999,
c. 3, s. 48; 2002, c. 13, s. 43. |
|
568. Even if
an accused elects under section 536 or re-elects under section 561
to be tried by a judge or provincial court judge, the Attorney
General may require the accused to be tried by a court composed of a
judge and jury unless the alleged offence is one that is punishable
with imprisonment for five years or less. If the Attorney General so
requires, a judge or provincial court judge has no jurisdiction to
try the accused under this Part and a preliminary inquiry must be
held if requested under subsection 536(4), unless one has already
been held.
R.S.,
1985, c. C-46, s. 568; R.S., 1985, c. 27 (1st Supp.), s. 111; 2002,
c. 13, s. 43. |
|
569. (1) Even
if an accused elects under section 536.1 or re-elects under section
561.1 to be tried by a judge without a jury, the Attorney General
may require the accused to be tried by a court composed of a judge
and jury unless the alleged offence is one that is punishable with
imprisonment for five years or less. If the Attorney General so
requires, a judge has no jurisdiction to try the accused under this
Part and a preliminary inquiry must be held if requested under
subsection 536.1(3), unless one has already been held. |
|
(2)
This section, and not section 568, applies in respect of criminal
proceedings in Nunavut.
R.S.,
1985, c. C-46, s. 569; R.S., 1985, c. 27 (1st Supp.), s. 111; 1999,
c. 3, s. 49; 2002, c. 13, s. 44. |
|
570. (1)
Where an accused who is tried under this Part is determined by a
judge or provincial court judge to be guilty of an offence on
acceptance of a plea of guilty or on a finding of guilt, the judge
or provincial court judge, as the case may be, shall endorse the
information accordingly and shall sentence the accused or otherwise
deal with the accused in the manner authorized by law and, on
request by the accused, the prosecutor, a peace officer or any other
person, shall cause a conviction in Form 35 and a certified copy of
it, or an order in Form 36 and a certified copy of it, to be drawn
up and shall deliver the certified copy to the person making the
request. |
Acquittal
and record of acquittal |
(2)
Where an accused who is tried under this Part is found not guilty of
an offence with which the accused is charged, the judge or
provincial court judge, as the case may be, shall immediately acquit
the accused in respect of that offence and shall cause an order in
Form 37 to be drawn up, and on request shall make out and deliver to
the accused a certified copy of the order. |
|
(3)
Where an accused elects to be tried by a provincial court judge
under this Part, the provincial court judge shall transmit the
written charge, the memorandum of adjudication and the conviction,
if any, into such custody as the Attorney General may
direct. |
Proof
of conviction, order or acquittal |
(4) A
copy of a conviction in Form 35 or of an order in Form 36 or 37,
certified by the judge or by the clerk or other proper officer of
the court, or by the provincial court judge, as the case may be, or
proved to be a true copy, is, on proof of the identity of the person
to whom the conviction or order relates, sufficient evidence in any
legal proceedings to prove the conviction of that person or the
making of the order against that person or his acquittal, as the
case may be, for the offence mentioned in the copy of the conviction
or order. |
|
(5)
Where an accused other than an organization is convicted, the judge
or provincial court judge, as the case may be, shall issue or cause
to be issued a warrant of committal in Form 21, and section 528
applies in respect of a warrant of committal issued under this
subsection. |
Admissibility
of certified copy |
(6)
Where a warrant of committal is issued by a clerk of a court, a copy
of the warrant of committal, certified by the clerk, is admissible
in evidence in any proceeding.
R.S.,
1985, c. C-46, s. 570; R.S., 1985, c. 27 (1st Supp.), ss. 112, 203,
c. 1 (4th Supp.), s. 18(F); 1994, c. 44, s. 59; 2003, c. 21, s.
10. |
|
571. A judge
or provincial court judge acting under this Part may from time to
time adjourn a trial until it is finally terminated.
R.S.,
1985, c. C-46, s. 571; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
572. The
provisions of Part XVI, the provisions of Part XVIII relating to
transmission of the record by a provincial court judge where he
holds a preliminary inquiry, and the provisions of Parts XX and
XXIII, in so far as they are not inconsistent with this Part, apply,
with such modifications as the circumstances require, to proceedings
under this Part.
R.S.,
1985, c. C-46, s. 572; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
PART
XIX.1
NUNAVUT COURT OF
JUSTICE |
|
573. (1) The
powers to be exercised and the duties and functions to be performed
under this Act by a court of criminal jurisdiction, a summary
conviction court, a judge, a provincial court judge, a justice or a
justice of the peace may be exercised or performed by a judge of the
Nunavut Court of Justice. |
Status
when exercising power |
(2) A
power exercised or a duty or function performed by a judge of the
Nunavut Court of Justice under subsection (1) is exercised or
performed by that judge as a judge of a superior court. |
|
(3)
Subsection (2) does not authorize a judge of the Nunavut Court of
Justice who is presiding at a preliminary inquiry to grant a remedy
under section 24 of the Canadian
Charter of Rights and Freedoms.
R.S.,
1985, c. C-46, s. 573; R.S., 1985, c. 27 (1st Supp.), s. 113; 1999,
c. 3, s. 50. |
|
573.1 (1) An
application for review may be made by the Attorney General or the
accused, or by any person directly affected by the decision or
order, to a judge of the Court of Appeal of Nunavut in respect of a
decision or order of a judge of the Nunavut Court of Justice
(a) relating to a warrant or
summons;
(b) relating to the conduct of a
preliminary inquiry, including an order under subsection 548(1);
(c) relating to a subpoena;
(d) relating to the publication or
broadcasting of information or access to the court room for all or
part of the proceedings;
(e) to refuse to quash an
information or indictment; or
(f) relating to the detention,
disposal or forfeiture of any thing seized under a warrant or
order. |
|
(2) A
decision or order may not be reviewed under this section if
(a) the decision or order is of a
kind that could only be made in a province or a territory other than
Nunavut by a superior court of criminal jurisdiction or a judge as
defined in section 552; or
(b) another statutory right of
review is available. |
|
(3)
The judge of the Court of Appeal of Nunavut may grant relief under
subsection (4) only if the judge is satisfied that
(a) in the case of any decision or
order mentioned in subsection (1),
(i)
the judge of the Nunavut Court of Justice failed to observe a
principle of natural justice or failed or refused to exercise the
judge’s jurisdiction, or
(ii)
the decision or order was made as a result of an irrelevant
consideration or for an improper purpose;
(b) in the case of a decision or
order mentioned in paragraph (1)(a), that
(i)
the judge failed to comply with a statutory requirement for the
making of the decision or order,
(ii)
the decision or order was made in the absence of any evidence that a
statutory requirement for the making of the decision or order was
met,
(iii)
the decision or order was made as a result of reckless disregard for
the truth, fraud, intentional misrepresentation of material facts or
intentional omission to state material facts,
(iv)
the warrant is so vague or lacking in particularity that it
authorizes an unreasonable search, or
(v)
the warrant lacks a material term or condition that is required by
law;
(c) in the case of a decision or
order mentioned in paragraph (1)(b), that the judge of the Nunavut
Court of Justice
(i)
failed to follow a mandatory provision of this Act relating to the
conduct of a preliminary inquiry,
(ii)
ordered the accused to stand trial when there was no evidence
adduced on which a properly instructed jury acting reasonably could
convict, or
(iii)
discharged the accused when there was some evidence adduced on which
a properly instructed jury acting reasonably could convict;
(d) in the case of a decision or
order mentioned in paragraph (1)(c) or (d), that the judge of the Nunavut
Court of Justice erred in law;
(e) in the case of a decision or
order mentioned in paragraph (1)(e), that
(i)
the information or indictment failed to give the accused notice of
the charge,
(ii)
the judge of the Nunavut Court of Justice did not have jurisdiction
to try the offence, or
(iii)
the provision creating the offence alleged to have been committed by
the accused is unconstitutional; or
(f) in the case of a decision or
order mentioned in paragraph (1)(f), that
(i)
the judge failed to comply with a statutory requirement for the
making of the decision or order,
(ii)
the decision or order was made in the absence of any evidence that a
statutory requirement for the making of the decision or order was
met, or
(iii)
the decision or order was made as a result of reckless disregard for
the truth, fraud, intentional misrepresentation of material facts or
intentional omission to state material facts. |
|
(4) On
the hearing of the application for review, the judge of the Court of
Appeal of Nunavut may do one or more of the following:
(a) order a judge of the Nunavut
Court of Justice to do any act or thing that the judge or any other
judge of that court failed or refused to do or has delayed in
doing;
(b) prohibit or restrain a
decision, order or proceeding of a judge of the Nunavut Court of
Justice;
(c) declare invalid or unlawful,
quash or set aside, in whole or in part, a decision, order or
proceeding of a judge of the Nunavut Court of Justice;
(d) refer back for determination in
accordance with any directions that the judge considers to be
appropriate, a decision, order or proceeding of a judge of the
Nunavut Court of Justice;
(e) grant any remedy under
subsection 24(1) of the Canadian
Charter of Rights and Freedoms;
(f) refuse to grant any relief if
the judge is of the opinion that no substantial wrong or miscarriage
of justice has occurred or that the subject-matter of the
application should be determined at trial or on appeal; and
(g) dismiss the
application. |
|
(5) If
an application for review is made, a judge of the Court of Appeal of
Nunavut may make any interim order that the judge considers
appropriate pending the final disposition of the application for
review. |
|
(6) A
person who proposes to make an application for review shall do so in
the manner and within the period that may be directed by rules of
court, except that a judge of the Court of Appeal of Nunavut may at
any time extend any period specified in the rules. |
|
(7) An
appeal lies to the Court of Appeal of Nunavut against a decision or
order made under subsection (4). The provisions of Part XXI apply,
with any modifications that the circumstances require, to the
appeal.
1999,
c. 3, s. 50. |
|
573.2 (1)
Habeas corpus proceedings
may be brought before a judge of the Court of Appeal of Nunavut in
respect of an order made or warrant issued by a judge of the Nunavut
Court of Justice, except where
(a) the order or warrant is of a
kind that could only be made or issued in a province or a territory
other than Nunavut by a superior court of criminal jurisdiction or a
judge as defined in section 552; or
(b) another statutory right of
review or appeal is available. |
|
(2)
Despite subsection (1), habeas
corpus proceedings may be brought before a judge of the Court
of Appeal of Nunavut with respect to an order or warrant of a judge
of the Nunavut Court of Justice if the proceedings are brought to
challenge the constitutionality of a person’s detention or
confinement. |
|
(3)
Subsections 784(2) to (6) apply in respect of any proceedings
brought under subsection (1) or (2).
1999,
c. 3, s. 50. |
|
PART
XX
PROCEDURE IN JURY TRIALS
AND GENERAL PROVISIONS |
|
|
|
574. (1)
Subject to subsection (3), the prosecutor may, whether the charges
were included in one information or not, prefer an indictment
against any person who has been ordered to stand trial in respect
of
(
a) any charge on which that
person was ordered to stand trial; or
(
b) any charge founded on the
facts disclosed by the evidence taken on the preliminary inquiry, in
addition to or in substitution for any charge on which that person
was ordered to stand trial. |
Preferring
indictment when no preliminary inquiry requested |
(1.1)
If a person has not requested a preliminary inquiry under subsection
536(4) or 536.1(3) into the charge, the prosecutor may, subject to
subsection (3), prefer an indictment against a person in respect of
a charge set out in an information or informations, or any included
charge, at any time after the person has made an election,
re-election or deemed election on the information or
informations. |
Preferring
single indictment |
(1.2)
If indictments may be preferred under both subsections (1) and
(1.1), the prosecutor may prefer a single indictment in respect of
one or more charges referred to in subsection (1) combined with one
or more charges or included charges referred to in subsection
(1.1). |
Consent
to inclusion of other charges |
(2) An
indictment preferred under any of subsections (1) to (1.2) may, if
the accused consents, include a charge that is not referred to in
those subsections, and the offence charged may be dealt with, tried
and determined and punished in all respects as if it were an offence
in respect of which the accused had been ordered to stand trial.
However, if the offence was committed wholly in a province other
than that in which the accused is before the court, subsection
478(3) applies. |
Private
prosecutor requires consent |
(3) In
a prosecution conducted by a prosecutor other than the Attorney
General and in which the Attorney General does not intervene, an
indictment may not be preferred under any of subsections (1) to
(1.2) before a court without the written order of a judge of that
court.
R.S.,
1985, c. C-46, s. 574; R.S., 1985, c. 27 (1st Supp.), s. 113; 2002,
c. 13, s. 45. |
|
575.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 113] |
|
576. (1)
Except as provided in this Act, no indictment shall be
preferred. |
Criminal
information and bill of indictment |
(2) No
criminal information shall be laid or granted and no bill of
indictment shall be preferred before a grand jury. |
|
(3) No
person shall be tried on a coroner’s inquisition.
R.S.,
1985, c. C-46, s. 576; R.S., 1985, c. 27 (1st Supp.), s.
114. |
|
577. Despite
section 574, an indictment may be preferred even if the accused has
not been given the opportunity to request a preliminary inquiry, a
preliminary inquiry has been commenced but not concluded or a
preliminary inquiry has been held and the accused has been
discharged, if
(
a) in the case of a
prosecution conducted by the Attorney General or one in which the
Attorney General intervenes, the personal consent in writing of the
Attorney General or Deputy Attorney General is filed in court;
or
(
b) in any other case, a
judge of the court so orders.
R.S.,
1985, c. C-46, s. 577; R.S., 1985, c. 27 (1st Supp.), s. 115, c. 1
(4th Supp.), s. 18(F); 2002, c. 13, s. 46. |
|
578. (1)
Where notice of the recommencement of proceedings has been given
pursuant to subsection 579(2) or an indictment has been filed with
the court before which the proceedings are to commence or
recommence, the court, if it considers it necessary, may issue
(a) a summons addressed to, or
(b) a warrant for the arrest
of,
the
accused or defendant, as the case may be, to compel him to attend
before the court to answer the charge described in the
indictment. |
|
(2)
The provisions of Part XVI apply with such modifications as the
circumstances require where a summons or warrant is issued under
subsection (1).
R.S.,
1985, c. C-46, s. 578; R.S., 1985, c. 27 (1st Supp.), s.
116. |
|
579. (1) The
Attorney General or counsel instructed by him for that purpose may,
at any time after any proceedings in relation to an accused or a
defendant are commenced and before judgment, direct the clerk or
other proper officer of the court to make an entry on the record
that the proceedings are stayed by his direction, and such entry
shall be made forthwith thereafter, whereupon the proceedings shall
be stayed accordingly and any recognizance relating to the
proceedings is vacated. |
Recommencement
of proceedings |
(2)
Proceedings stayed in accordance with subsection (1) may be
recommenced, without laying a new information or preferring a new
indictment, as the case may be, by the Attorney General or counsel
instructed by him for that purpose giving notice of the
recommencement to the clerk of the court in which the stay of the
proceedings was entered, but where no such notice is given within
one year after the entry of the stay of proceedings, or before the
expiration of the time within which the proceedings could have been
commenced, whichever is the earlier, the proceedings shall be deemed
never to have been commenced.
R.S.,
1985, c. C-46, s. 579; R.S., 1985, c. 27 (1st Supp.), s.
117. |
|
579.01 If the
Attorney General intervenes in proceedings and does not stay them
under section 579, he or she may, without conducting the
proceedings, call witnesses, examine and cross-examine witnesses,
present evidence and make submissions.
2002,
c. 13, s. 47. |
|
579.1 (1) The
Attorney General of Canada or counsel instructed by him or her for
that purpose may intervene in proceedings in the following
circumstances:
(a) the proceedings are in respect
of a contravention of, a conspiracy or attempt to contravene or
counselling the contravention of an Act of Parliament or a
regulation made under that Act, other than this Act or a regulation
made under this Act;
(b) the proceedings have not been
instituted by an Attorney General;
(c) judgment has not been rendered;
and
(d) the Attorney General of the
province in which the proceedings are taken has not
intervened. |
|
(2)
Section 579 applies, with such modifications as the circumstances
require, to proceedings in which the Attorney General of Canada
intervenes pursuant to this section.
1994,
c. 44, s. 60. |
|
580. An
indictment is sufficient if it is on paper and is in Form 4.
R.S.,
1985, c. C-46, s. 580; R.S., 1985, c. 27 (1st Supp.), s.
117. |
|
General
Provisions respecting Counts |
|
581. (1) Each
count in an indictment shall in general apply to a single
transaction and shall contain in substance a statement that the
accused or defendant committed an offence therein
specified. |
|
(2)
The statement referred to in subsection (1) may be
(a) in popular language without
technical averments or allegations of matters that are not essential
to be proved;
(b) in the words of the enactment
that describes the offence or declares the matters charged to be an
indictable offence; or
(c) in words that are sufficient to
give to the accused notice of the offence with which he is
charged. |
|
(3) A
count shall contain sufficient detail of the circumstances of the
alleged offence to give to the accused reasonable information with
respect to the act or omission to be proved against him and to
identify the transaction referred to, but otherwise the absence or
insufficiency of details does not vitiate the count. |
|
(4)
Where an accused is charged with an offence under section 47 or
sections 49 to 53, every overt act that is to be relied on shall be
stated in the indictment. |
|
(5) A
count may refer to any section, subsection, paragraph or
subparagraph of the enactment that creates the offence charged, and
for the purpose of determining whether a count is sufficient,
consideration shall be given to any such reference. |
General
provisions not restricted |
(6)
Nothing in this Part relating to matters that do not render a count
insufficient shall be deemed to restrict or limit the application of
this section.
R.S.,
1985, c. C-46, s. 581; R.S., 1985, c. 27 (1st Supp.), s.
118. |
|
582. No
person shall be convicted for the offence of high treason or first
degree murder unless in the indictment charging the offence he is
specifically charged with that offence.
R.S.,
c. C-34, s. 511; 1973-74, c. 38, s. 4; 1974-75-76, c. 105, s.
6. |
|
583. No count
in an indictment is insufficient by reason of the absence of details
where, in the opinion of the court, the count otherwise fulfils the
requirements of section 581 and, without restricting the generality
of the foregoing, no count in an indictment is insufficient by
reason only that
(a) it does not name the person
injured or intended or attempted to be injured;
(b) it does not name the person who
owns or has a special property or interest in property mentioned in
the count;
(c) it charges an intent to defraud
without naming or describing the person whom it was intended to
defraud;
(d) it does not set out any writing
that is the subject of the charge;
(e) it does not set out the words
used where words that are alleged to have been used are the subject
of the charge;
(f) it does not specify the means
by which the alleged offence was committed;
(g) it does not name or describe
with precision any person, place or thing; or
(h) it does not, where the consent
of a person, official or authority is required before proceedings
may be instituted for an offence, state that the consent has been
obtained.
R.S.,
c. C-34, s. 512. |
|
Special
Provisions respecting Counts |
|
584. (1) No
count for publishing a blasphemous, seditious or defamatory libel,
or for selling or exhibiting an obscene book, pamphlet, newspaper or
other written matter, is insufficient by reason only that it does
not set out the words that are alleged to be libellous or the
writing that is alleged to be obscene. |
|
(2) A
count for publishing a libel may charge that the published matter
was written in a sense that by innuendo made the publication thereof
criminal, and may specify that sense without any introductory
assertion to show how the matter was written in that
sense. |
|
(3) It
is sufficient, on the trial of a count for publishing a libel, to
prove that the matter published was libellous, with or without
innuendo.
R.S.,
c. C-34, s. 513. |
|
585. No count
that charges
(a) perjury,
(b) the making of a false oath or a
false statement,
(c) fabricating evidence, or
(d) procuring the commission of an
offence mentioned in paragraph (a), (b) or (c),
is
insufficient by reason only that it does not state the nature of the
authority of the tribunal before which the oath or statement was
taken or made, or the subject of the inquiry, or the words used or
the evidence fabricated, or that it does not expressly negative the
truth of the words used.
R.S.,
1985, c. C-46, s. 585; 1992, c. 1, s. 60(F). |
|
586. No count
that alleges false pretences, fraud or any attempt or conspiracy by
fraudulent means is insufficient by reason only that it does not set
out in detail the nature of the false pretence, fraud or fraudulent
means.
R.S.,
c. C-34, s. 515. |
|
|
|
587. (1) A
court may, where it is satisfied that it is necessary for a fair
trial, order the prosecutor to furnish particulars and, without
restricting the generality of the foregoing, may order the
prosecutor to furnish particulars
(a) of what is relied on in support
of a charge of perjury, the making of a false oath or a false
statement, fabricating evidence or counselling the commission of any
of those offences;
(b) of any false pretence or fraud
that is alleged;
(c) of any alleged attempt or
conspiracy by fraudulent means;
(d) setting out the passages in a
book, pamphlet, newspaper or other printing or writing that are
relied on in support of a charge of selling or exhibiting an obscene
book, pamphlet, newspaper, printing or writing;
(e) further describing any writing
or words that are the subject of a charge;
(f) further describing the means by
which an offence is alleged to have been committed; or
(g) further describing a person,
place or thing referred to in an indictment. |
|
(2)
For the purpose of determining whether or not a particular is
required, the court may give consideration to any evidence that has
been taken. |
|
(3)
Where a particular is delivered pursuant to this section,
(a) a copy shall be given without
charge to the accused or his counsel;
(b) the particular shall be entered
in the record; and
(c) the trial shall proceed in all
respects as if the indictment had been amended to conform with the
particular.
R.S.,
1985, c. C-46, s. 587; R.S., 1985, c. 27 (1st Supp.), s.
7. |
|
|
|
588. The real
and personal property of which a person has, by law, the management,
control or custody shall, for the purposes of an indictment or
proceeding against any other person for an offence committed on or
in respect of the property, be deemed to be the property of the
person who has the management, control or custody of it.
R.S.,
c. C-34, s. 517. |
|
Joinder
or Severance of Counts |
|
589. No count
that charges an indictable offence other than murder shall be joined
in an indictment to a count that charges murder unless
(a) the count that charges the
offence other than murder arises out of the same transaction as a
count that charges murder; or
(b) the accused signifies consent
to the joinder of the counts.
R.S.,
1985, c. C-46, s. 589; 1991, c. 4, s. 2. |
|
590. (1) A
count is not objectionable by reason only that
(a) it charges in the alternative
several different matters, acts or omissions that are stated in the
alternative in an enactment that describes as an indictable offence
the matters, acts or omissions charged in the count; or
(b) it is double or
multifarious. |
Application
to amend or divide counts |
(2) An
accused may at any stage of his trial apply to the court to amend or
to divide a count that
(a) charges in the alternative
different matters, acts or omissions that are stated in the
alternative in the enactment that describes the offence or declares
that the matters, acts or omissions charged are an indictable
offence, or
(b) is double or multifarious,
on the
ground that, as framed, it embarrasses him in his defence. |
|
(3)
The court may, where it is satisfied that the ends of justice
require it, order that a count be amended or divided into two or
more counts, and thereupon a formal commencement may be inserted
before each of the counts into which it is divided.
R.S.,
c. C-34, s. 519. |
|
591. (1)
Subject to section 589, any number of counts for any number of
offences may be joined in the same indictment, but the counts shall
be distinguished in the manner shown in Form 4. |
|
(2)
Where there is more than one count in an indictment, each count may
be treated as a separate indictment. |
Severance
of accused and counts |
(3)
The court may, where it is satisfied that the interests of justice
so require, order
(a) that the accused or defendant
be tried separately on one or more of the counts; and
(b) where there is more than one
accused or defendant, that one or more of them be tried separately
on one or more of the counts. |
|
(4) An
order under subsection (3) may be made before or during the trial
but, if the order is made during the trial, the jury shall be
discharged from giving a verdict on the counts
(a) on which the trial does not
proceed; or
(b) in respect of the accused or
defendant who has been granted a separate trial. |
|
(5)
The counts in respect of which a jury is discharged pursuant to
paragraph (4)(a) may
subsequently be proceeded on in all respects as if they were
contained in a separate indictment. |
|
(6)
Where an order is made in respect of an accused or defendant under
paragraph (3)(b), the
accused or defendant may be tried separately on the counts in
relation to which the order was made as if they were contained in a
separate indictment.
R.S.,
1985, c. C-46, s. 591; R.S., 1985, c. 27 (1st Supp.), s.
119. |
|
Joinder
of Accused in Certain Cases |
|
592. Any one
who is charged with being an accessory after the fact to any offence
may be indicted, whether or not the principal or any other party to
the offence has been indicted or convicted or is or is not amenable
to justice.
R.S.,
c. C-34, s. 521. |
|
593. (1) Any
number of persons may be charged in the same indictment with an
offence under section 354 or paragraph 356(1)(b), notwithstanding that
(a) the property was had in
possession at different times; or
(b) the person by whom the property
was obtained
(i) is
not indicted with them, or
(ii)
is not in custody or is not amenable to justice. |
Conviction
of one or more |
(2)
Where, pursuant to subsection (1), two or more persons are charged
in the same indictment with an offence referred to in that
subsection, any one or more of those persons who separately
committed the offence in respect of the property or any part of it
may be convicted.
R.S.,
c. C-34, s. 522. |
|
594. to 596.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 120] |
|
Proceedings
when Person Indicted is at Large |
|
597. (1)
Where an indictment has been preferred against a person who is at
large, and that person does not appear or remain in attendance for
his trial, the court before which the accused should have appeared
or remained in attendance may issue a warrant in Form 7 for his
arrest. |
|
(2) A
warrant issued under subsection (1) may be executed anywhere in
Canada. |
|
(3)
Where an accused is arrested under a warrant issued under subsection
(1), a judge of the court that issued the warrant may order that the
accused be released on his giving an undertaking that he will do any
one or more of the following things as specified in the order,
namely,
(a) report at times to be stated in
the order to a peace officer or other person designated in the
order;
(b) remain within a territorial
jurisdiction specified in the order;
(c) notify the peace officer or
other person designated under paragraph (a) of any change in his address or
his employment or occupation;
(d) abstain from communicating with
any witness or other person expressly named in the order except in
accordance with such conditions specified in the order as the judge
deems necessary;
(e) where the accused is the holder
of a passport, deposit his passport as specified in the order;
and
(f) comply with such other
reasonable conditions specified in the order as the judge considers
desirable. |
Discretion
to postpone execution |
(4) A
judge who issues a warrant may specify in the warrant the period
before which the warrant shall not be executed, to allow the accused
to appear voluntarily before a judge having jurisdiction in the
territorial division in which the warrant was issued. |
Deemed
execution of warrant |
(5)
Where the accused appears voluntarily for the offence in respect of
which the accused is charged, the warrant is deemed to be
executed.
R.S.,
1985, c. C-46, s. 597; R.S., 1985, c. 27 (1st Supp.), s. 121; 1997,
c. 18, s. 68. |
|
598. (1)
Notwithstanding anything in this Act, where a person to whom
subsection 597(1) applies has elected or is deemed to have elected
to be tried by a court composed of a judge and jury and, at the time
he failed to appear or to remain in attendance for his trial, he had
not re-elected to be tried by a court composed of a judge without a
jury or a provincial court judge without a jury, he shall not be
tried by a court composed of a judge and jury unless
(a) he establishes to the
satisfaction of a judge of the court in which he is indicted that
there was a legitimate excuse for his failure to appear or remain in
attendance for his trial; or
(b) the Attorney General requires
pursuant to section 568 or 569 that the accused be tried by a court
composed of a judge and jury. |
Election
deemed to be waived |
(2) An
accused who, under subsection (1), may not be tried by a court
composed of a judge and jury is deemed to have elected under section
536 or 536.1 to be tried without a jury by a judge of the court
where the accused was indicted and section 561 or 561.1, as the case
may be, does not apply in respect of the accused.
R.S.,
1985, c. C-46, s. 598; R.S., 1985, c. 27 (1st Supp.), ss. 122,
185(F), 203(E); 1999, c. 3, s. 51; 2002, c. 13, s. 48(E). |
|
|
|
599. (1) A
court before which an accused is or may be indicted, at any term or
sittings thereof, or a judge who may hold or sit in that court, may
at any time before or after an indictment is found, on the
application of the prosecutor or the accused, order the trial to be
held in a territorial division in the same province other than that
in which the offence would otherwise be tried if
(a) it appears expedient to the
ends of justice; or
(b) a competent authority has
directed that a jury is not to be summoned at the time appointed in
a territorial division where the trial would otherwise by law be
held.
(2)
[Repealed, R.S., 1985, c. 1 (4th Supp.), s. 16] |
Conditions
respecting expense |
(3)
The court or judge may, in an order made on an application by the
prosecutor under subsection (1), prescribe conditions that he thinks
proper with respect to the payment of additional expenses caused to
the accused as a result of the change of venue. |
|
(4)
Where an order is made under subsection (1), the officer who has
custody of the indictment, if any, and the writings and exhibits
relating to the prosecution, shall transmit them forthwith to the
clerk of the court before which the trial is ordered to be held, and
all proceedings in the case shall be held or, if previously
commenced, shall be continued in that court. |
|
(5)
Where the writings and exhibits referred to in subsection (4) have
not been returned to the court in which the trial was to be held at
the time an order is made to change the place of trial, the person
who obtains the order shall serve a true copy thereof on the person
in whose custody they are and that person shall thereupon transmit
them to the clerk of the court before which the trial is to be
held.
R.S.,
1985, c. C-46, s. 599; R.S., 1985, c. 1 (4th Supp.), s.
16. |
|
600. An order
that is made under section 599 is sufficient warrant, justification
and authority to all sheriffs, keepers of prisons and peace officers
for the removal, disposal and reception of an accused in accordance
with the terms of the order, and the sheriff may appoint and
authorize any peace officer to convey the accused to a prison in the
territorial division in which the trial is ordered to be held.
R.S.,
c. C-34, s. 528. |
|
|
|
601. (1) An
objection to an indictment or to a count in an indictment for a
defect apparent on the face thereof shall be taken by motion to
quash the indictment or count before the accused has pleaded, and
thereafter only by leave of the court before which the proceedings
take place, and the court before which an objection is taken under
this section may, if it considers it necessary, order the indictment
or count to be amended to cure the defect. |
|
(2)
Subject to this section, a court may, on the trial of an indictment,
amend the indictment or a count therein or a particular that is
furnished under section 587, to make the indictment, count or
particular conform to the evidence, where there is a variance
between the evidence and
(a) a count in the indictment as
preferred; or
(b) a count in the indictment
(i) as
amended, or
(ii)
as it would have been if it had been amended in conformity with any
particular that has been furnished pursuant to section
587. |
|
(3)
Subject to this section, a court shall, at any stage of the
proceedings, amend the indictment or a count therein as may be
necessary where it appears
(a) that the indictment has been
preferred under a particular Act of Parliament instead of another
Act of Parliament;
(b) that the indictment or a count
thereof
(i)
fails to state or states defectively anything that is requisite to
constitute the offence,
(ii)
does not negative an exception that should be negatived,
(iii)
is in any way defective in substance,
and
the matters to be alleged in the proposed amendment are disclosed by
the evidence taken on the preliminary inquiry or on the trial;
or
(c) that the indictment or a count
thereof is in any way defective in form. |
Matters
to be considered by the court |
(4)
The court shall, in considering whether or not an amendment should
be made to the indictment or a count in it, consider
(a) the matters disclosed by the
evidence taken on the preliminary inquiry;
(b) the evidence taken on the
trial, if any;
(c) the circumstances of the
case;
(d) whether the accused has been
misled or prejudiced in his defence by any variance, error or
omission mentioned in subsection (2) or (3); and
(e) whether, having regard to the
merits of the case, the proposed amendment can be made without
injustice being done. |
|
(4.1)
A variance between the indictment or a count therein and the
evidence taken is not material with respect to
(a) the time when the offence is
alleged to have been committed, if it is proved that the indictment
was preferred within the prescribed period of limitation, if any;
or
(b) the place where the
subject-matter of the proceedings is alleged to have arisen, if it
is proved that it arose within the territorial jurisdiction of the
court. |
Adjournment
if accused prejudiced |
(5)
Where, in the opinion of the court, the accused has been misled or
prejudiced in his defence by a variance, error or omission in an
indictment or a count therein, the court may, if it is of the
opinion that the misleading or prejudice may be removed by an
adjournment, adjourn the proceedings to a specified day or sittings
of the court and may make such an order with respect to the payment
of costs resulting from the necessity for amendment as it considers
desirable. |
|
(6)
The question whether an order to amend an indictment or a count
thereof should be granted or refused is a question of law. |
|
(7) An
order to amend an indictment or a count therein shall be endorsed on
the indictment as part of the record and the proceedings shall
continue as if the indictment or count had been originally preferred
as amended. |
|
(8) A
mistake in the heading of an indictment shall be corrected as soon
as it is discovered but, whether corrected or not, is not
material. |
|
(9)
The authority of a court to amend indictments does not authorize the
court to add to the overt acts stated in an indictment for high
treason or treason or for an offence against any provision in
sections 49, 50, 51 and 53. |
|
(10)
In this section, “court” means a court, judge, justice or provincial
court judge acting in summary conviction proceedings or in
proceedings on indictment. |
|
(11)
This section applies to all proceedings, including preliminary
inquiries, with such modifications as the circumstances require.
R.S.,
1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999,
c. 5, s. 23(E). |
|
602.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 124] |
|
Inspection
and Copies of Documents |
|
603. An
accused is entitled, after he has been ordered to stand trial or at
his trial,
(a) to inspect without charge the
indictment, his own statement, the evidence and the exhibits, if
any; and
(b) to receive, on payment of a
reasonable fee determined in accordance with a tariff of fees fixed
or approved by the Attorney General of the province, a copy
(i) of
the evidence,
(ii)
of his own statement, if any, and
(iii)
of the indictment;
but
the trial shall not be postponed to enable the accused to secure
copies unless the court is satisfied that the failure of the accused
to secure them before the trial is not attributable to lack of
diligence on the part of the accused.
R.S.,
1985, c. C-46, s. 603; R.S., 1985, c. 27 (1st Supp.), s.
101(E). |
|
604.
[Repealed, 1997, c. 18, s. 69] |
|
605. (1) A
judge of a superior court of criminal jurisdiction or a court of
criminal jurisdiction may, on summary application on behalf of the
accused or the prosecutor, after three days notice to the accused or
prosecutor, as the case may be, order the release of any exhibit for
the purpose of a scientific or other test or examination, subject to
such terms as appear to be necessary or desirable to ensure the
safeguarding of the exhibit and its preservation for use at the
trial. |
|
(2)
Every one who fails to comply with the terms of an order made under
subsection (1) is guilty of contempt of court and may be dealt with
summarily by the judge or provincial court judge who made the order
or before whom the trial of the accused takes place.
R.S.,
1985, c. C-46, s. 605; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
|
|
606. (1) An
accused who is called on to plead may plead guilty or not guilty, or
the special pleas authorized by this Part and no others. |
Conditions
for accepting guilty plea |
(1.1)
A court may accept a plea of guilty only if it is satisfied that the
accused
(a) is making the plea voluntarily;
and
(b) understands
(i)
that the plea is an admission of the essential elements of the
offence,
(ii)
the nature and consequences of the plea, and
(iii)
that the court is not bound by any agreement made between the
accused and the prosecutor. |
|
(1.2)
The failure of the court to fully inquire whether the conditions set
out in subsection (1.1) are met does not affect the validity of the
plea. |
|
(2)
Where an accused refuses to plead or does not answer directly, the
court shall order the clerk of the court to enter a plea of not
guilty. |
|
(3) An
accused is not entitled as of right to have his trial postponed but
the court may, if it considers that the accused should be allowed
further time to plead, move to quash or prepare for his defence or
for any other reason, adjourn the trial to a later time in the
session or sittings of the court, or to the next of any subsequent
session or sittings of the court, on such terms as the court
considers proper. |
Included
or other offence |
(4)
Notwithstanding any other provision of this Act, where an accused or
defendant pleads 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 may, with the consent of the
prosecutor, accept that plea of guilty and, if the plea is accepted,
the court shall find the accused or defendant not guilty of the
offence charged and find him guilty of the offence in respect of
which the plea of guilty was accepted and enter those findings in
the record of the court. |
|
(5)
For greater certainty, subsections 650(1.1) and (1.2) apply, with
any modifications that the circumstances require, to pleas under
this section if the accused has agreed to use a means referred to in
those subsections.
R.S.,
1985, c. C-46, s. 606; R.S., 1985, c. 27 (1st Supp.), s. 125; 2002,
c. 13, s. 49. |
|
607. (1) An
accused may plead the special pleas of
(a) autrefois acquit;
(b) autrefois convict; and
(c) pardon. |
|
(2) An
accused who is charged with defamatory libel may plead in accordance
with sections 611 and 612. |
|
(3)
The pleas of autrefois
acquit, autrefois convict and
pardon shall be disposed of by the judge without a jury before the
accused is called on to plead further. |
|
(4)
When the pleas referred to in subsection (3) are disposed of against
the accused, he may plead guilty or not guilty. |
|
(5)
Where an accused pleads autrefois
acquit or autrefois
convict, it is sufficient if he
(a) states that he has been
lawfully acquitted, convicted or discharged under subsection 730(1),
as the case may be, of the offence charged in the count to which the
plea relates; and
(b) indicates the time and place of
the acquittal, conviction or discharge under subsection
730(1). |
Exception:
foreign trials in absentia
|
(6) A
person who is alleged to have committed an act or omission outside
Canada that is an offence in Canada by virtue of any of subsections
7(2) to (3.4) or (3.7), or an offence under the Crimes Against Humanity and War Crimes
Act, and in respect of which the person has been tried and
convicted outside Canada, may not plead autrefois convict with respect to
a count that charges that offence if
(a) at the trial outside Canada the
person was not present and was not represented by counsel acting
under the person’s instructions, and
(b) the person was not punished in
accordance with the sentence imposed on conviction in respect of the
act or omission,
notwithstanding
that the person is deemed by virtue of subsection 7(6), or
subsection 12(1) of the Crimes
Against Humanity and War Crimes Act, as the case may be, to
have been tried and convicted in Canada in respect of the act or
omission.
R.S.,
1985, c. C-46, s. 607; R.S., 1985, c. 27 (1st Supp.), s. 126, c. 30
(3rd Supp.), s. 2, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, s. 60(F);
1995, c. 22, s. 10; 2000, c. 24, s. 45. |
|
608. Where an
issue on a plea of autrefois
acquit or autrefois
convict is tried, the evidence and adjudication and the notes
of the judge and official stenographer on the former trial and the
record transmitted to the court pursuant to section 551 on the
charge that is pending before that court are admissible in evidence
to prove or to disprove the identity of the charges.
R.S.,
c. C-34, s. 536. |
|
609. (1)
Where an issue on a plea of autrefois acquit or autrefois convict to a count is
tried and it appears
(a) that the matter on which the
accused was given in charge on the former trial is the same in whole
or in part as that on which it is proposed to give him in charge,
and
(b) that on the former trial, if
all proper amendments had been made that might then have been made,
he might have been convicted of all the offences of which he may be
convicted on the count to which the plea of autrefois acquit or autrefois convict is pleaded,
the
judge shall give judgment discharging the accused in respect of that
count. |
Allowance
of special plea in part |
(2)
The following provisions apply where an issue on a plea of autrefois acquit or autrefois convict is tried:
(a) where it appears that the
accused might on the former trial have been convicted of an offence
of which he may be convicted on the count in issue, the judge shall
direct that the accused shall not be found guilty of any offence of
which he might have been convicted on the former trial; and
(b) where it appears that the
accused may be convicted on the count in issue of an offence of
which he could not have been convicted on the former trial, the
accused shall plead guilty or not guilty with respect to that
offence.
R.S.,
c. C-34, s. 537. |
|
610. (1)
Where an indictment charges substantially the same offence as that
charged in an indictment on which an accused was previously
convicted or acquitted, but adds a statement of intention or
circumstances of aggravation tending, if proved, to increase the
punishment, the previous conviction or acquittal bars the subsequent
indictment. |
Effect
of previous charge of murder or manslaughter |
(2) A
conviction or an acquittal on an indictment for murder bars a
subsequent indictment for the same homicide charging it as
manslaughter or infanticide, and a conviction or acquittal on an
indictment for manslaughter or infanticide bars a subsequent
indictment for the same homicide charging it as murder. |
Previous
charges of first degree murder |
(3) A
conviction or an acquittal on an indictment for first degree murder
bars a subsequent indictment for the same homicide charging it as
second degree murder, and a conviction or acquittal on an indictment
for second degree murder bars a subsequent indictment for the same
homicide charging it as first degree murder. |
Effect
of previous charge of infanticide or manslaughter |
(4) A
conviction or an acquittal on an indictment for infanticide bars a
subsequent indictment for the same homicide charging it as
manslaughter, and a conviction or acquittal on an indictment for
manslaughter bars a subsequent indictment for the same homicide
charging it as infanticide.
R.S.,
c. C-34, s. 538; 1973-74, c. 38, s. 5; 1974-75-76, c. 105, s.
9. |
|
611. (1) An
accused who is charged with publishing a defamatory libel may plead
that the defamatory matter published by him was true, and that it
was for the public benefit that the matter should have been
published in the manner in which and at the time when it was
published. |
Where
more than one sense alleged |
(2) A
plea that is made under subsection (1) may justify the defamatory
matter in any sense in which it is specified in the count, or in the
sense that the defamatory matter bears without being specified, or
separate pleas justifying the defamatory matter in each sense may be
pleaded separately to each count as if two libels had been charged
in separate counts. |
|
(3) A
plea that is made under subsection (1) shall be in writing and shall
set out the particular facts by reason of which it is alleged to
have been for the public good that the matter should have been
published. |
|
(4)
The prosecutor may in his reply deny generally the truth of a plea
that is made under this section.
R.S.,
c. C-34, s. 539. |
|
612. (1) The
truth of the matters charged in an alleged libel shall not be
inquired into in the absence of a plea of justification under
section 611 unless the accused is charged with publishing the libel
knowing it to be false, in which case evidence of the truth may be
given to negative the allegation that the accused knew that the
libel was false. |
|
(2)
The accused may, in addition to a plea that is made under section
611, plead not guilty and the pleas shall be inquired into
together. |
Effect
of plea on punishment |
(3)
Where a plea of justification is pleaded and the accused is
convicted, the court may, in pronouncing sentence, consider whether
the guilt of the accused is aggravated or mitigated by the plea.
R.S.,
c. C-34, s. 540. |
|
613. Any
ground of defence for which a special plea is not provided by this
Act may be relied on under the plea of not guilty.
R.S.,
c. C-34, s. 541. |
|
614. to 619.
[ Repealed, 1991, c. 43, s. 3] |
|
|
|
620. Every
organization against which an indictment is filed shall appear and
plead by counsel or agent.
R.S.,
1985, c. C-46, s. 620; 1997, c. 18, s. 70; 2003, c. 21, s.
11. |
|
621. (1) The
clerk of the court or the prosecutor may, where an indictment is
filed against an organization, cause a notice of the indictment to
be served on the organization. |
|
(2) A
notice of an indictment referred to in subsection (1) shall set out
the nature and purport of the indictment and advise that, unless the
organization appears on the date set out in the notice or the date
fixed under subsection 548(2.1), and enters a plea, a plea of not
guilty will be entered for the accused by the court, and that the
trial of the indictment will be proceeded with as though the
organization had appeared and pleaded.
R.S.,
1985, c. C-46, s. 621; 1997, c. 18, s. 71; 2003, c. 21, s.
11. |
|
622. Where an
organization does not appear in accordance with the notice referred
to in section 621, the presiding judge may, on proof of service of
the notice, order the clerk of the court to enter a plea of not
guilty on behalf of the organization, and the plea has the same
force and effect as if the organization had appeared by its counsel
or agent and pleaded that plea.
R.S.,
1985, c. C-46, s. 622; 1997, c. 18, s. 72; 2003, c. 21, s.
11. |
|
623. Where an
organization appears and pleads to an indictment or a plea of not
guilty is entered by order of the court under section 622, the court
shall proceed with the trial of the indictment and, where the
organization is convicted, section 735 applies.
R.S.,
1985, c. C-46, s. 623; 1995, c. 22, s. 10; 2003, c. 21, s.
11. |
|
|
|
624. (1) It
is sufficient, in making up the record of a conviction or acquittal
on an indictment, to copy the indictment and the plea that was
pleaded, without a formal caption or heading. |
|
(2)
The court shall keep a record of every arraignment and of
proceedings subsequent to arraignment.
R.S.,
c. C-34, s. 552. |
|
625. Where it
is necessary to draw up a formal record in proceedings in which the
indictment has been amended, the record shall be drawn up in the
form in which the indictment remained after the amendment, without
reference to the fact that the indictment was amended.
R.S.,
c. C-34, s. 553. |
|
|
|
625.1 (1)
Subject to subsection (2), on application by the prosecutor or the
accused or on its own motion, the court, or a judge of the court,
before which, or the judge, provincial court judge or justice before
whom, any proceedings are to be held may order that a conference
between the prosecutor and the accused or counsel for the accused,
to be presided over by the court, judge, provincial court judge or
justice, be held prior to the proceedings to consider the matters
that, to promote a fair and expeditious hearing, would be better
decided before the start of the proceedings, and other similar
matters, and to make arrangements for decisions on those
matters. |
Mandatory
pre-trial hearing for jury trials |
(2) In
any case to be tried with a jury, a judge of the court before which
the accused is to be tried shall, before the trial, order that a
conference between the prosecutor and the accused or counsel for the
accused, to be presided over by a judge of that court, be held in
accordance with the rules of court made under sections 482 and 482.1
to consider any matters that would promote a fair and expeditious
trial.
R.S.,
1985, c. 27 (1st Supp.), s. 127, c. 1 (4th Supp.), s. 45(F); 1997,
c. 18, s. 73; 2002, c. 13, s. 50. |
|
|
|
626. (1) A
person who is qualified as a juror according to, and summoned as a
juror in accordance with, the laws of a province is qualified to
serve as a juror in criminal proceedings in that province. |
No
disqualification based on sex |
(2)
Notwithstanding any law of a province referred to in subsection (1),
no person may be disqualified, exempted or excused from serving as a
juror in criminal proceedings on the grounds of his or her sex.
R.S.,
1985, c. C-46, s. 626; R.S., 1985, c. 27 (1st Supp.), s.
128. |
|
626.1 The
judge before whom an accused is tried may be either the judge who
presided over matters pertaining to the selection of a jury before
the commencement of a trial or another judge of the same court.
2002,
c. 13, s. 51. |
|
627. The
judge may permit a juror with a physical disability who is otherwise
qualified to serve as a juror to have technical, personal,
interpretative or other support services.
R.S.,
1985, c. C-46, s. 627; R.S., 1985, c. 2 (1st Supp.), s. 1; 1998, c.
9, s. 4. |
|
|
|
628.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 129] |
|
629. (1) The
accused or the prosecutor may challenge the jury panel only on the
ground of partiality, fraud or wilful misconduct on the part of the
sheriff or other officer by whom the panel was returned. |
|
(2) A
challenge under subsection (1) shall be in writing and shall state
that the person who returned the panel was partial or fraudulent or
that he wilfully misconducted himself, as the case may be. |
|
(3) A
challenge under this section may be in Form 40.
R.S.,
1985, c. C-46, s. 629; R.S., 1985, c. 27 (1st Supp.), s.
130. |
|
630. Where a
challenge is made under section 629, the judge shall determine
whether the alleged ground of challenge is true or not, and where he
is satisfied that the alleged ground of challenge is true, he shall
direct a new panel to be returned.
R.S.,
c. C-34, s. 559. |
|
|
|
631. (1) The
name of each juror on a panel of jurors that has been returned, his
number on the panel and his address shall be written on a separate
card, and all the cards shall, as far as possible, be of equal
size. |
|
(2)
The sheriff or other officer who returns the panel shall deliver the
cards referred to in subsection (1) to the clerk of the court who
shall cause them to be placed together in a box to be provided for
the purpose and to be thoroughly shaken together. |
|
(2.1)
If the judge considers it advisable in the interests of justice to
have one or two alternate jurors, the judge shall so order before
the clerk of the court draws out the cards under subsection (3) or
(3.1). |
To
be drawn by clerk of court |
(3)
The clerk of the court shall, in open court, draw out the cards
referred to in subsection (1), one after another, and shall call out
the name and number on each card as it is drawn, until the number of
persons who have answered is, in the opinion of the judge,
sufficient to provide a full jury and any alternate jurors ordered
by the judge after allowing for orders to excuse, challenges and
directions to stand by where
(
a) the array of jurors is
not challenged; or
(
b) the array of jurors is
challenged but the judge does not direct a new panel to be
returned. |
Where
name not to be called |
(3.1)
On application by the prosecutor or on its own motion, the court, or
a judge of the court, before which the jury trial is to be held, if
it is satisfied that it is in the best interest of the
administration of justice to do so, including in order to protect
the privacy or safety of the members of the jury and alternate
jurors, may order that, for the purposes of subsection (3), the
clerk of the court shall only call out the number on each
card. |
Juror
and other persons to be sworn |
(4)
The clerk of the court shall swear each member of the jury, and any
alternate jurors, in the order in which his or her card was drawn
and shall swear any other person providing technical, personal,
interpretative or other support services to a juror with a physical
disability. |
Drawing
additional cards if necessary |
(5) If
the number of persons who answer under subsection (3) or (3.1) is
not sufficient to provide a full jury and the number of alternate
jurors ordered by the judge, the clerk of the court shall proceed in
accordance with subsections (3), (3.1) and (4) until twelve jurors
and any alternate jurors are sworn. |
|
(6) On
application by the prosecutor or on its own motion, the court or
judge before which a jury trial is to be held may, if an order under
subsection (3.1) has been made, make an order directing that the
identity of a juror or alternate juror or any information that could
disclose their identity shall not be published in any document or
broadcast in any way, if the court or judge is satisfied that such
an order is necessary for the proper administration of justice.
R.S.,
1985, c. C-46, s. 631; R.S., 1985, c. 27 (1st Supp.), s. 131; 1992,
c. 41, s. 1; 1998, c. 9, s. 5; 2001, c. 32, ss. 38, 82; 2002, c. 13,
s. 52. |
|
632. The
judge may, at any time before the commencement of a trial, order
that any juror be excused from jury service, whether or not the
juror has been called pursuant to subsection 631(3) or (3.1) or any
challenge has been made in relation to the juror, for reasons of
(a) personal interest in the matter
to be tried;
(b) relationship with the judge
presiding over the jury selection process, the judge before whom the
accused is to be tried, the prosecutor, the accused, the counsel for
the accused or a prospective witness; or
(c) personal hardship or any other
reasonable cause that, in the opinion of the judge, warrants that
the juror be excused.
R.S.,
1985, c. C-46, s. 632; 1992, c. 41, s. 2; 2001, c. 32, s. 39; 2002,
c. 13, s. 53. |
|
633. The
judge may direct a juror who has been called pursuant to subsection
631(3) or (3.1) to stand by for reasons of personal hardship or any
other reasonable cause.
R.S.,
1985, c. C-46, s. 633; R.S., 1985, c. 27 (1st Supp.), s. 185(F);
1992, c. 41, s. 2; 2001, c. 32, s. 40. |
|
634. (1) A
juror may be challenged peremptorily whether or not the juror has
been challenged for cause pursuant to section 638. |
|
(2)
Subject to subsections (2.1) to (4), the prosecutor and the accused
are each entitled to
(a) twenty peremptory challenges,
where the accused is charged with high treason or first degree
murder;
(b) twelve peremptory challenges,
where the accused is charged with an offence, other than an offence
mentioned in paragraph (a),
for which the accused may be sentenced to imprisonment for a term
exceeding five years; or
(c) four peremptory challenges,
where the accused is charged with an offence that is not referred to
in paragraph (a) or (b). |
|
(2.1)
If the judge makes an order for alternate jurors, the total number
of peremptory challenges that the prosecutor and the accused are
each entitled to is increased by one for each alternate
juror. |
Where
there are multiple counts |
(3)
Where two or more counts in an indictment are to be tried together,
the prosecutor and the accused are each entitled only to the number
of peremptory challenges provided in respect of the count for which
the greatest number of peremptory challenges is available. |
Where
there are joint trials |
(4)
Where two or more accused are to be tried together,
(a) each accused is entitled to the
number of peremptory challenges to which the accused would be
entitled if tried alone; and
(b) the prosecutor is entitled to
the total number of peremptory challenges available to all the
accused.
R.S.,
1985, c. C-46, s. 634; 1992, c. 41, s. 2; 2002, c. 13, s.
54. |
|
635. (1) The
accused shall be called on before the prosecutor is called on to
declare whether the accused challenges the first juror, for cause or
peremptorily, and thereafter the prosecutor and the accused shall be
called on alternately, in respect of each of the remaining jurors,
to first make such a declaration. |
Where
there are joint trials |
(2)
Subsection (1) applies where two or more accused are to be tried
together, but all of the accused shall exercise the challenges of
the defence in turn, in the order in which their names appear in the
indictment or in any other order agreed on by them,
(a) in respect of the first juror,
before the prosecutor; and
(b) in respect of each of the
remaining jurors, either before or after the prosecutor, in
accordance with subsection (1).
R.S.,
1985, c. C-46, s. 635; R.S., 1985, c. 2 (1st Supp.), s. 2; 1992, c.
41, s. 2. |
|
636. and 637.
[Repealed, 1992, c. 41, s. 2] |
|
638. (1) A
prosecutor or an accused is entitled to any number of challenges on
the ground that
(a) the name of a juror does not
appear on the panel, but no misnomer or misdescription is a ground
of challenge where it appears to the court that the description
given on the panel sufficiently designates the person referred
to;
(b) a juror is not indifferent
between the Queen and the accused;
(c) a juror has been convicted of
an offence for which he was sentenced to death or to a term of
imprisonment exceeding twelve months;
(d) a juror is an alien;
(e) a juror, even with the aid of
technical, personal, interpretative or other support services
provided to the juror under section 627, is physically unable to
perform properly the duties of a juror; or
(f) a juror does not speak the
official language of Canada that is the language of the accused or
the official language of Canada in which the accused can best give
testimony or both official languages of Canada, where the accused is
required by reason of an order under section 530 to be tried before
a judge and jury who speak the official language of Canada that is
the language of the accused or the official language of Canada in
which the accused can best give testimony or who speak both official
languages of Canada, as the case may be. |
|
(2) No
challenge for cause shall be allowed on a ground not mentioned in
subsection (1).
(3)
and (4) [Repealed, 1997, c. 18, s. 74]
(5)
[Repealed, R.S., 1985, c. 31 (4th Supp.), s. 96]
R.S.,
1985, c. C-46, s. 638; R.S., 1985, c. 27 (1st Supp.), s. 132, c. 31
(4th Supp.), s. 96; 1997, c. 18, s. 74; 1998, c. 9, s. 6. |
|
639. (1)
Where a challenge is made on a ground mentioned in section 638, the
court may, in its discretion, require the party that challenges to
put the challenge in writing. |
|
(2) A
challenge may be in Form 41. |
|
(3) A
challenge may be denied by the other party to the proceedings on the
ground that it is not true.
R.S.,
c. C-34, s. 568. |
|
640. (1)
Where the ground of a challenge is that the name of a juror does not
appear on the panel, the issue shall be tried by the judge on the
voir dire by the inspection
of the panel, and such other evidence as the judge thinks fit to
receive. |
|
(2)
Where the ground of a challenge is one not mentioned in subsection
(1), the two jurors who were last sworn, or if no jurors have then
been sworn, two persons present whom the court may appoint for the
purpose, shall be sworn to determine whether the ground of challenge
is true. |
If
challenge not sustained, or if sustained |
(3)
Where the finding, pursuant to subsection (1) or (2) is that the
ground of challenge is not true, the juror shall be sworn, but if
the finding is that the ground of challenge is true, the juror shall
not be sworn. |
|
(4)
Where, after what the court considers to be a reasonable time, the
two persons who are sworn to determine whether the ground of
challenge is true are unable to agree, the court may discharge them
from giving a verdict and may direct two other persons to be sworn
to determine whether the ground of challenge is true.
R.S.,
c. C-34, s. 569. |
|
641. (1) If a
full jury and any alternate jurors have not been sworn and no names
remain to be called, the names of those who have been directed to
stand by shall be called again in the order in which their names
were drawn and the jurors necessary to make a full jury and any
alternate jurors shall be sworn, unless excused by the judge or
challenged by the accused or the prosecutor. |
Other
jurors becoming available |
(2)
Where, before a juror is sworn pursuant to subsection (1), other
jurors in the panel become available, the prosecutor may require the
cards of those jurors to be put into and drawn from the box in
accordance with section 631, and those jurors shall be challenged,
directed to stand by, excused or sworn, as the case may be, before
the jurors who were originally directed to stand by are called
again.
R.S.,
1985, c. C-46, s. 641; 1992, c. 41, s. 3; 2001, c. 32, s. 41; 2002,
c. 13, s. 55. |
|
642. (1) If a
full jury and any alternate jurors considered advisable cannot be
provided notwithstanding that the relevant provisions of this Part
have been complied with, the court may, at the request of the
prosecutor, order the sheriff or other proper officer to summon
without delay as many persons, whether qualified jurors or not, as
the court directs for the purpose of providing a full jury and
alternate jurors. |
|
(2)
Jurors may be summoned under subsection (1) by word of mouth, if
necessary. |
|
(3)
The names of the persons who are summoned under this section shall
be added to the general panel for the purposes of the trial, and the
same proceedings shall be taken with respect to calling and
challenging those persons, excusing them and directing them to stand
by as are provided in this Part with respect to the persons named in
the original panel.
R.S.,
1985, c. C-46, s. 642; 1992, c. 41, s. 4; 2002, c. 13, s.
56. |
|
642.1 (1)
Alternate jurors shall attend at the commencement of the trial and,
if there is not a full jury present, alternate jurors shall be
substituted, in the order in which their names were drawn under
subsection 631(3), until there are twelve jurors. |
Excusing
of alternate jurors |
(2) An
alternate juror who is not required as a substitute shall be
excused.
2002,
c. 13, s. 57. |
|
643. (1) The
twelve jurors who are sworn in accordance with this Part and present
at the commencement of the trial shall be the jury to try the issues
of the indictment. |
|
(1.1)
The name of each juror, including alternate jurors, who is sworn
shall be kept apart until the juror is excused or the jury gives its
verdict or is discharged, at which time the name shall be returned
to the box as often as occasion arises, as long as an issue remains
to be tried before a jury. |
Same
jury may try another issue by consent |
(2)
The court may try an issue with the same jury in whole or in part
that previously tried or was drawn to try another issue, without the
jurors being sworn again, but if the prosecutor or the accused
objects to any of the jurors or the court excuses any of the jurors,
the court shall order those persons to withdraw and shall direct
that the required number of cards to make up a full jury be drawn
and, subject to the provisions of this Part relating to challenges,
orders to excuse and directions to stand by, the persons whose cards
are drawn shall be sworn. |
|
(3)
Failure to comply with the directions of this section or section
631, 635 or 641 does not affect the validity of a proceeding.
R.S.,
1985, c. C-46, s. 643; 1992, c. 41, s. 5; 2001, c. 32, s. 42; 2002,
c. 13, s. 58. |
|
644. (1)
Where in the course of a trial the judge is satisfied that a juror
should not, by reason of illness or other reasonable cause, continue
to act, the judge may discharge the juror. |
|
(1.1)
A judge may select another juror to take the place of a juror who by
reason of illness or other reasonable cause cannot continue to act,
if the jury has not yet begun to hear evidence, either by drawing a
name from a panel of persons who were summoned to act as jurors and
who are available at the court at the time of replacing the juror or
by using the procedure referred to in section 642. |
|
(2)
Where in the course of a trial a member of the jury dies or is
discharged pursuant to subsection (1), the jury shall, unless the
judge otherwise directs and if the number of jurors is not reduced
below ten, be deemed to remain properly constituted for all purposes
of the trial and the trial shall proceed and a verdict may be given
accordingly.
R.S.,
1985, c. C-46, s. 644; 1992, c. 41, s. 6; 1997, c. 18, s.
75. |
|
|
|
645. (1) The
trial of an accused shall proceed continuously subject to
adjournment by the court. |
|
(2) A
judge may adjourn a trial from time to time in the same
sittings. |
Formal
adjournment unnecessary |
(3)
For the purpose of subsection (2), no formal adjournment of trial or
entry thereof is required. |
Questions
reserved for decision |
(4) A
judge, in any case tried without a jury, may reserve final decision
on any question raised at the trial, or any matter raised further to
a pre-hearing conference, and the decision, when given, shall be
deemed to have been given at the trial. |
Questions
reserved for decision in a trial with a jury |
(5) In
any case to be tried with a jury, the judge before whom an accused
is or is to be tried has jurisdiction, before any juror on a panel
of jurors is called pursuant to subsection 631(3) or (3.1) and in
the absence of any such juror, to deal with any matter that would
ordinarily or necessarily be dealt with in the absence of the jury
after it has been sworn.
R.S.,
1985, c. C-46, s. 645; R.S., 1985, c. 27 (1st Supp.), s. 133; 1997,
c. 18, s. 76; 2001, c. 32, s. 43. |
|
646. On the
trial of an accused for an indictable offence, the evidence of the
witnesses for the prosecutor and the accused and the addresses of
the prosecutor and the accused or counsel for the accused by way of
summing up shall be taken in accordance with the provisions of Part
XVIII, other than subsections 540(7) to (9), relating to the taking
of evidence at preliminary inquiries.
R.S.,
1985, c. C-46, s. 646; 2002, c. 13, s. 59. |
|
647. (1) The
judge may, at any time before the jury retires to consider its
verdict, permit the members of the jury to separate. |
|
(2)
Where permission to separate under subsection (1) cannot be given or
is not given, the jury shall be kept under the charge of an officer
of the court as the judge directs, and that officer shall prevent
the jurors from communicating with anyone other than himself or
another member of the jury without leave of the judge. |
Non-compliance
with subsection (2) |
(3)
Failure to comply with subsection (2) does not affect the validity
of the proceedings. |
Empanelling
new jury in certain cases |
(4)
Where the fact that there has been a failure to comply with this
section or section 648 is discovered before the verdict of the jury
is returned, the judge may, if he considers that the failure to
comply might lead to a miscarriage of justice, discharge the jury
and
(a) direct that the accused be
tried with a new jury during the same session or sittings of the
court; or
(b) postpone the trial on such
terms as justice may require. |
Refreshment
and accommodation |
(5)
The judge shall direct the sheriff to provide the jurors who are
sworn with suitable and sufficient refreshment, food and lodging
while they are together until they have given their verdict.
R.S.,
c. C-34, s. 576; 1972, c. 13, s. 48. |
|
648. (1)
Where permission to separate is given to members of a jury under
subsection 647(1), no information regarding any portion of the trial
at which the jury is not present shall be published, after the
permission is granted, in any newspaper or broadcast before the jury
retires to consider its verdict. |
|
(2)
Every one who fails to comply with subsection (1) is guilty of an
offence punishable on summary conviction. |
Definition
of “newspaper” |
(3) In
this section, “newspaper” has the same meaning as in section
297.
1972,
c. 13, s. 49. |
|
649. Every
member of a jury, and every person providing technical, personal,
interpretative or other support services to a juror with a physical
disability, who, except for the purposes of
(a) an investigation of an alleged
offence under subsection 139(2) in relation to a juror, or
(b) giving evidence in criminal
proceedings in relation to such an offence,
discloses
any information relating to the proceedings of the jury when it was
absent from the courtroom that was not subsequently disclosed in
open court is guilty of an offence punishable on summary
conviction.
R.S.,
1985, c. C-46, s. 649; 1998, c. 9, s. 7. |
|
650. (1)
Subject to subsections (1.1) to (2) and section 650.01, an accused,
other than an organization, shall be present in court during the
whole of his or her trial. |
|
(1.1)
Where the court so orders, and where the prosecutor and the accused
so agree, the accused may appear by counsel or by closed-circuit
television or any other means that allow the court and the accused
to engage in simultaneous visual and oral communication, for any
part of the trial other than a part in which the evidence of a
witness is taken. |
|
(1.2)
Where the court so orders, an accused who is confined in prison may
appear by closed-circuit television or any other means that allow
the court and the accused to engage in simultaneous visual and oral
communication, for any part of the trial other than a part in which
the evidence of a witness is taken, if the accused is given the
opportunity to communicate privately with counsel, in a case in
which the accused is represented by counsel. |
|
(2)
The court may
(a) cause the accused to be removed
and to be kept out of court, where he misconducts himself by
interrupting the proceedings so that to continue the proceedings in
his presence would not be feasible;
(b) permit the accused to be out of
court during the whole or any part of his trial on such conditions
as the court considers proper; or
(c) cause the accused to be removed
and to be kept out of court during the trial of an issue as to
whether the accused is unfit to stand trial, where it is satisfied
that failure to do so might have an adverse effect on the mental
condition of the accused. |
|
(3) An
accused is entitled, after the close of the case for the
prosecution, to make full answer and defence personally or by
counsel.
R.S.,
1985, c. C-46, s. 650; 1991, c. 43, s. 9; 1994, c. 44, s. 61; 1997,
c. 18, s. 77; 2002, c. 13, s. 60; 2003, c. 21, s. 12. |
|
650.01 (1) An
accused may appoint counsel to represent the accused for any
proceedings under this Act by filing a designation with the
court. |
|
(2)
The designation must contain the name and address of the counsel and
be signed by the accused and the designated counsel. |
|
(3) If
a designation is filed,
(a) the accused may appear by the
designated counsel without being present for any part of the
proceedings, other than
(i) a
part during which oral evidence of a witness is taken,
(ii) a
part during which jurors are being selected, and
(iii)
an application for a writ of habeas
corpus;
(b) an appearance by the designated
counsel is equivalent to the accused’s being present, unless the
court orders otherwise; and
(c) a plea of guilty may be made,
and a sentence may be pronounced, only if the accused is present,
unless the court orders otherwise. |
When
court orders presence of accused |
(4) If
the court orders the accused to be present otherwise than by
appearance by the designated counsel, the court may
(a) issue a summons to compel the
presence of the accused and order that it be served by leaving a
copy at the address contained in the designation; or
(b) issue a warrant to compel the
presence of the accused.
2002,
c. 13, s. 61. |
|
650.02 The
prosecutor or the counsel designated under section 650.01 may appear
before the court by any technological means satisfactory to the
court that permits the court and all counsel to communicate
simultaneously.
2002,
c. 13, s. 61. |
|
650.1 A judge
in a jury trial may, before the charge to the jury, confer with the
accused or counsel for the accused and the prosecutor with respect
to the matters that should be explained to the jury and with respect
to the choice of instructions to the jury.
1997,
c. 18, s. 78. |
|
651. (1)
Where an accused, or any one of several accused being tried
together, is defended by counsel, the counsel shall, at the end of
the case for the prosecution, declare whether or not he intends to
adduce evidence on behalf of the accused for whom he appears and if
he does not announce his intention to adduce evidence, the
prosecutor may address the jury by way of summing up. |
|
(2)
Counsel for the accused or the accused, where he is not defended by
counsel, is entitled, if he thinks fit, to open the case for the
defence, and after the conclusion of that opening to examine such
witnesses as he thinks fit, and when all the evidence is concluded
to sum up the evidence. |
|
(3)
Where no witnesses are examined for an accused, he or his counsel is
entitled to address the jury last, but otherwise counsel for the
prosecution is entitled to address the jury last. |
Prosecutor’s
right of reply where more than one accused |
(4)
Where two or more accused are tried jointly and witnesses are
examined for any of them, all the accused or their respective
counsel are required to address the jury before it is addressed by
the prosecutor.
R.S.,
c. C-34, s. 578. |
|
652. (1) The
judge may, where it appears to be in the interests of justice, at
any time after the jury has been sworn and before it gives its
verdict, direct the jury to have a view of any place, thing or
person, and shall give directions respecting the manner in which,
and the persons by whom, the place, thing or person shall be shown
to the jury, and may for that purpose adjourn the trial. |
Directions
to prevent communication |
(2)
Where a view is ordered under subsection (1), the judge shall give
any directions that he considers necessary for the purpose of
preventing undue communication by any person with members of the
jury, but failure to comply with any directions given under this
subsection does not affect the validity of the
proceedings. |
|
(3)
Where a view is ordered under subsection (1), the accused and the
judge shall attend.
R.S.,
c. C-34, s. 579. |
|
653. (1)
Where the judge is satisfied that the jury is unable to agree on its
verdict and that further detention of the jury would be useless, he
may in his discretion discharge that jury and direct a new jury to
be empanelled during the sittings of the court, or may adjourn the
trial on such terms as justice may require. |
Discretion
not reviewable |
(2) A
discretion that is exercised under subsection (1) by a judge is not
reviewable.
R.S.,
c. C-34, s. 580. |
|
654. The
taking of the verdict of a jury and any proceeding incidental
thereto is not invalid by reason only that it is done on Sunday or
on a holiday.
R.S.,
c. C-34, s. 581. |
|
|
|
655. Where an
accused is on trial for an indictable offence, he or his counsel may
admit any fact alleged against him for the purpose of dispensing
with proof thereof.
R.S.,
c. C-34, s. 582. |
|
656. In any
proceeding in relation to theft or possession of a valuable mineral
that is unrefined, partly refined, uncut or otherwise unprocessed by
any person actively engaged in or on a mine, if it is established
that the person possesses the valuable mineral, the person is
presumed, in the absence of evidence raising a reasonable doubt to
the contrary, to have stolen or unlawfully possessed the valuable
mineral.
R.S.,
1985, c. C-46, s. 656; 1999, c. 5, s. 24. |
|
657. A
statement made by an accused under subsection 541(3) and purporting
to be signed by the justice before whom it was made may be given in
evidence against the accused at his or her trial without proof of
the signature of the justice, unless it is proved that the justice
by whom the statement purports to be signed did not sign it.
R.S.,
1985, c. C-46, s. 657; 1994, c. 44, s. 62. |
|
657.1 (1) In
any proceedings, an affidavit or a solemn declaration of a person
who claims to be the lawful owner of, or the person lawfully
entitled to possession of, property that was the subject-matter of
the offence, or any other person who has specialized knowledge of
the property or of that type of property, containing the statements
referred to in subsection (2), shall be admissible in evidence and,
in the absence of evidence to the contrary, is evidence of the
statements contained in the affidavit or solemn declaration without
proof of the signature of the person appearing to have signed the
affidavit or solemn declaration. |
|
(2)
For the purposes of subsection (1), a person shall state in an
affidavit or a solemn declaration
(a) that the person is the lawful
owner of, or is lawfully entitled to possession of, the property, or
otherwise has specialized knowledge of the property or of property
of the same type as that property;
(b) the value of the property;
(c) in the case of a person who is
the lawful owner of or is lawfully entitled to possession of the
property, that the person has been deprived of the property by
fraudulent means or otherwise without the lawful consent of the
person;
(c.1) in the case of proceedings in
respect of an offence under section 342, that the credit card had
been revoked or cancelled, is a false document within the meaning of
section 321 or that no credit card that meets the exact description
of that credit card was ever issued; and
(d) any facts within the personal
knowledge of the person relied on to justify the statements referred
to in paragraphs (a) to
(c.1). |
Notice
of intention to produce affidavit or solemn declaration |
(3)
Unless the court orders otherwise, no affidavit or solemn
declaration shall be received in evidence pursuant to subsection (1)
unless the prosecutor has, before the trial or other proceeding,
given to the accused a copy of the affidavit or solemn declaration
and reasonable notice of intention to produce it in
evidence. |
Attendance
for examination |
(4)
Notwithstanding subsection (1), the court may require the person who
appears to have signed an affidavit or solemn declaration referred
to in that subsection to appear before it for examination or
cross-examination in respect of the issue of proof of any of the
statements contained in the affidavit or solemn declaration.
R.S.,
1985, c. 23 (4th Supp.), s. 3; 1994, c. 44, s. 63; 1997, c. 18, s.
79. |
|
657.2 (1)
Where an accused is charged with possession of any property obtained
by the commission of an offence, evidence of the conviction or
discharge of another person of theft of the property is admissible
against the accused, and in the absence of evidence to the contrary
is proof that the property was stolen. |
|
(2)
Where an accused is charged with being an accessory after the fact
to the commission of an offence, evidence of the conviction or
discharge of another person of the offence is admissible against the
accused, and in the absence of evidence to the contrary is proof
that the offence was committed.
1997,
c. 18, s. 80. |
|
657.3 (1) In
any proceedings, the evidence of a person as an expert may be given
by means of a report accompanied by the affidavit or solemn
declaration of the person, setting out, in particular, the
qualifications of the person as an expert if
(a) the court recognizes that
person as an expert; and
(b) the party intending to produce
the report in evidence has, before the proceeding, given to the
other party a copy of the affidavit or solemn declaration and the
report and reasonable notice of the intention to produce it in
evidence. |
Attendance
for examination |
(2)
Notwithstanding subsection (1), the court may require the person who
appears to have signed an affidavit or solemn declaration referred
to in that subsection to appear before it for examination or
cross-examination in respect of the issue of proof of any of the
statements contained in the affidavit or solemn declaration or
report. |
Notice
for expert testimony |
(3)
For the purpose of promoting the fair, orderly and efficient
presentation of the testimony of witnesses,
(a) a party who intends to call a
person as an expert witness shall, at least thirty days before the
commencement of the trial or within any other period fixed by the
justice or judge, give notice to the other party or parties of his
or her intention to do so, accompanied by
(i)
the name of the proposed witness,
(ii) a
description of the area of expertise of the proposed witness that is
sufficient to permit the other parties to inform themselves about
that area of expertise, and
(iii)
a statement of the qualifications of the proposed witness as an
expert;
(b) in addition to complying with
paragraph (a), a prosecutor
who intends to call a person as an expert witness shall, within a
reasonable period before trial, provide to the other party or
parties
(i) a
copy of the report, if any, prepared by the proposed witness for the
case, and
(ii)
if no report is prepared, a summary of the opinion anticipated to be
given by the proposed witness and the grounds on which it is based;
and
(c) in addition to complying with
paragraph (a), an accused,
or his or her counsel, who intends to call a person as an expert
witness shall, not later than the close of the case for the
prosecution, provide to the other party or parties the material
referred to in paragraph (b). |
|
(4) If
a party calls a person as an expert witness without complying with
subsection (3), the court shall, at the request of any other
party,
(a) grant an adjournment of the
proceedings to the party who requests it to allow him or her to
prepare for cross-examination of the expert witness;
(b) order the party who called the
expert witness to provide that other party and any other party with
the material referred to in paragraph (3)(b); and
(c) order the calling or recalling
of any witness for the purpose of giving testimony on matters
related to those raised in the expert witness’s testimony, unless
the court considers it inappropriate to do so. |
|
(5)
If, in the opinion of the court, a party who has received the notice
and material referred to in subsection (3) has not been able to
prepare for the evidence of the proposed witness, the court may do
one or more of the following:
(a) adjourn the proceedings;
(b) order that further particulars
be given of the evidence of the proposed witness; and
(c) order the calling or recalling
of any witness for the purpose of giving testimony on matters
related to those raised in the expert witness’s testimony. |
Use
of material by prosecution |
(6) If
the proposed witness does not testify, the prosecutor may not
produce material provided to him or her under paragraph (3)(c) in evidence without the consent
of the accused. |
|
(7)
Unless otherwise ordered by a court, information disclosed under
this section in relation to a proceeding may only be used for the
purpose of that proceeding.
1997,
c. 18, s. 80; 2002, c. 13, s. 62. |
|
Children
and Young Persons |
|
658. (1) In
any proceedings to which this Act applies, the testimony of a person
as to the date of his or her birth is admissible as evidence of that
date. |
|
(2) In
any proceedings to which this Act applies, the testimony of a parent
as to the age of a person of whom he or she is a parent is
admissible as evidence of the age of that person. |
|
(3) In
any proceedings to which this Act applies,
(a) a birth or baptismal
certificate or a copy of such a certificate purporting to be
certified under the hand of the person in whose custody the
certificate is held is evidence of the age of that person; and
(b) an entry or record of an
incorporated society or its officers who have had the control or
care of a child or young person at or about the time the child or
young person was brought to Canada is evidence of the age of the
child or young person if the entry or record was made before the
time when the offence is alleged to have been committed. |
|
(4) In
the absence of any certificate, copy, entry or record mentioned in
subsection (3), or in corroboration of any such certificate, copy,
entry or record, a jury, judge, justice or provincial court judge,
as the case may be, may receive and act on any other information
relating to age that they consider reliable. |
Inference
from appearance |
(5) In
the absence of other evidence, or by way of corroboration of other
evidence, a jury, judge, justice or provincial court judge, as the
case may be, may infer the age of a child or young person from his
or her appearance.
R.S.,
1985, c. C-46, s. 658; 1994, c. 44, s. 64. |
|
|
|
659. Any
requirement whereby it is mandatory for a court to give the jury a
warning about convicting an accused on the evidence of a child is
abrogated.
R.S.,
1985, c. C-46, s. 659; R.S., 1985, c. 19 (3rd Supp.), s. 15; 1993,
c. 45, s. 9. |
|
|
|
660. Where
the complete commission of an offence charged is not proved but the
evidence establishes an attempt to commit the offence, the accused
may be convicted of the attempt.
R.S.,
c. C-34, s. 587. |
|
661. (1)
Where an attempt to commit an offence is charged but the evidence
establishes the commission of the complete offence, the accused is
not entitled to be acquitted, but the jury may convict him of the
attempt unless the judge presiding at the trial, in his discretion,
discharges the jury from giving a verdict and directs that the
accused be indicted for the complete offence. |
|
(2) An
accused who is convicted under this section is not liable to be
tried again for the offence that he was charged with attempting to
commit.
R.S.,
c. C-34, s. 588. |
|
662. (1) A
count in an indictment is divisible and where the commission of the
offence charged, as described in the enactment creating it or as
charged in the count, includes the commission of another offence,
whether punishable by indictment or on summary conviction, the
accused may be convicted
(a) of an offence so included that
is proved, notwithstanding that the whole offence that is charged is
not proved; or
(b) of an attempt to commit an
offence so included. |
First
degree murder charged |
(2)
For greater certainty and without limiting the generality of
subsection (1), where a count charges first degree murder and the
evidence does not prove first degree murder but proves second degree
murder or an attempt to commit second degree murder, the jury may
find the accused not guilty of first degree murder but guilty of
second degree murder or an attempt to commit second degree murder,
as the case may be. |
Conviction
for infanticide or manslaughter on charge of murder |
(3)
Subject to subsection (4), where a count charges murder and the
evidence proves manslaughter or infanticide but does not prove
murder, the jury may find the accused not guilty of murder but
guilty of manslaughter or infanticide, but shall not on that count
find the accused guilty of any other offence. |
Conviction
for concealing body of child where murder or infanticide
charged |
(4)
Where a count charges the murder of a child or infanticide and the
evidence proves the commission of an offence under section 243 but
does not prove murder or infanticide, the jury may find the accused
not guilty of murder or infanticide, as the case may be, but guilty
of an offence under section 243. |
Conviction
for dangerous driving where manslaughter charged |
(5)
For greater certainty, where a count charges an offence under
section 220, 221 or 236 arising out of the operation of a motor
vehicle or the navigation or operation of a vessel or aircraft, and
the evidence does not prove such offence but does prove an offence
under section 249 or subsection 249.1(3), the accused may be
convicted of an offence under section 249 or subsection 249.1(3), as
the case may be. |
Conviction
for break and enter with intent |
(6)
Where a count charges an offence under paragraph 348(1)(b) and the evidence does not prove
such offence but does prove an offence under paragraph 348(1)(a), the accused may be convicted
of an offence under paragraph 348(1)(a).
R.S.,
1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000,
c. 2, s. 3. |
|
663. Where a
female person is charged with infanticide and the evidence
establishes that she caused the death of her child but does not
establish that, at the time of the act or omission by which she
caused the death of the child,
(a) she was not fully recovered
from the effects of giving birth to the child or from the effect of
lactation consequent on the birth of the child, and
(b) the balance of her mind was, at
that time, disturbed by reason of the effect of giving birth to the
child or of the effect of lactation consequent on the birth of the
child,
she may
be convicted unless the evidence establishes that the act or
omission was not wilful.
R.S.,
c. C-34, s. 590. |
|
|
|
664. No
indictment in respect of an offence for which, by reason of previous
convictions, a greater punishment may be imposed shall contain any
reference to previous convictions.
R.S.,
c. C-34, s. 591. |
|
665.
[Repealed, 1995, c. 22, s. 3] |
|
666. Where,
at a trial, the accused adduces evidence of his good character, the
prosecutor may, in answer thereto, before a verdict is returned,
adduce evidence of the previous conviction of the accused for any
offences, including any previous conviction by reason of which a
greater punishment may be imposed.
R.S.,
c. C-34, s. 593. |
|
667. (1) In
any proceedings,
(
a) a certificate setting out
with reasonable particularity the conviction or discharge under
section 730, the finding of guilt under the Young Offenders Act, chapter Y-1
of the Revised Statutes of Canada, 1985, the finding of guilt under
the Youth Criminal Justice
Act, or the judicial determination under subsection 42(9) of
that Act, or the conviction and sentence or finding of guilt and
sentence in Canada of an offender, signed by
(i)
the person who made the conviction, order for the discharge, finding
of guilt or judicial determination,
(ii)
the clerk of the court in which the conviction, order for the
discharge, finding of guilt or judicial determination was made,
or
(iii)
a fingerprint examiner,
is, on
proof that the accused or defendant is the offender referred to in
the certificate, evidence that the accused or defendant was so
convicted, so discharged or so convicted and sentenced or found
guilty and sentenced, or that a judicial determination was made
against the accused or defendant, without proof of the signature or
the official character of the person appearing to have signed the
certificate;
(
b) evidence that the
fingerprints of the accused or defendant are the same as the
fingerprints of the offender whose fingerprints are reproduced in or
attached to a certificate issued under subparagraph ( a)(iii) is, in the absence of
evidence to the contrary, proof that the accused or defendant is the
offender referred to in that certificate;
(
c) a certificate of a
fingerprint examiner stating that he has compared the fingerprints
reproduced in or attached to that certificate with the fingerprints
reproduced in or attached to a certificate issued under subparagraph
( a)(iii) and that they are
those of the same person is evidence of the statements contained in
the certificate without proof of the signature or the official
character of the person appearing to have signed the certificate;
and
(
d) a certificate under
subparagraph ( a)(iii) may
be in Form 44, and a certificate under paragraph ( c) may be in Form 45. |
|
(2) In
any proceedings, a copy of the summary conviction or discharge under
section 730 in Canada of an offender, signed by the person who made
the conviction or order for the discharge or by the clerk of the
court in which the conviction or order for the discharge was made,
is, on proof that the accused or defendant is the offender referred
to in the copy of the summary conviction, evidence of the conviction
or discharge under section 730 of the accused or defendant, without
proof of the signature or the official character of the person
appearing to have signed it. |
|
(2.1)
In any summary conviction proceedings, where the name of a defendant
is similar to the name of an offender referred to in a certificate
made under subparagraph (1)(a)(i) or (ii) in respect of a
summary conviction or referred to in a copy of a summary conviction
mentioned in subsection (2), that similarity of name is, in the
absence of evidence to the contrary, evidence that the defendant is
the offender referred to in the certificate or the copy of the
summary conviction. |
Attendance
and right to cross-examine |
(3) An
accused against whom a certificate issued under subparagraph
(1)(a)(iii) or paragraph
(1)(c) is produced may, with
leave of the court, require the attendance of the person who signed
the certificate for the purposes of cross-examination. |
Notice
of intention to produce certificate |
(4) No
certificate issued under subparagraph (1)(a)(iii) or paragraph (1)(c) shall be received in evidence
unless the party intending to produce it has given to the accused
reasonable notice of his intention together with a copy of the
certificate. |
Definition
of “fingerprint examiner” |
(5) In
this section, “fingerprint examiner” means a person designated as
such for the purposes of this section by the Minister of Public
Safety and Emergency Preparedness.
R.S.,
1985, c. C-46, s. 667; R.S., 1985, c. 27 (1st Supp.), s. 136, c. 1
(4th Supp.), s. 18(F); 1995, c. 22, s. 10; 2002, c. 1, s. 181; 2005,
c. 10, s. 34. |
|
668. and 669.
[Repealed, 1995, c. 22, s. 4] |
|
|
|
669.1 (1)
Where any judge, court or provincial court judge by whom or which
the plea of the accused or defendant to an offence was taken has not
commenced to hear evidence, any judge, court or provincial court
judge having jurisdiction to try the accused or defendant has
jurisdiction for the purpose of the hearing and
adjudication. |
|
(2)
Any court, judge or provincial court judge having jurisdiction to
try an accused or a defendant, or any clerk or other proper officer
of the court, or in the case of an offence punishable on summary
conviction, any justice, may, at any time before or after the plea
of the accused or defendant is taken, adjourn the proceedings.
R.S.,
1985, c. 27 (1st Supp.), s. 137. |
|
669.2 (1)
Subject to this section, where an accused or a defendant is being
tried by
(a) a judge or provincial court
judge,
(b) a justice or other person who
is, or is a member of, a summary conviction court, or
(c) a court composed of a judge and
jury,
as the
case may be, and the judge, provincial court judge, justice or other
person dies or is for any reason unable to continue, the proceedings
may be continued before another judge, provincial court judge,
justice or other person, as the case may be, who has jurisdiction to
try the accused or defendant. |
Where
adjudication is made |
(2)
Where a verdict was rendered by a jury or an adjudication was made
by a judge, provincial court judge, justice or other person before
whom the trial was commenced, the judge, provincial court judge,
justice or other person before whom the proceedings are continued
shall, without further election by an accused, impose the punishment
or make the order that is authorized by law in the
circumstances. |
Where
no adjudication is made |
(3)
Subject to subsections (4) and (5), where the trial was commenced
but no adjudication was made or verdict rendered, the judge,
provincial court judge, justice or other person before whom the
proceedings are continued shall, without further election by an
accused, commence the trial again as if no evidence had been
taken. |
Where
no adjudication is made — jury trials |
(4)
Where a trial that is before a court composed of a judge and a jury
was commenced but no adjudication was made or verdict rendered, the
judge before whom the proceedings are continued may, without further
election by an accused,
(a) continue the trial; or
(b) commence the trial again as if
no evidence had been taken. |
|
(5)
Where a trial is continued under paragraph (4)(a), any evidence that was adduced
before a judge referred to in paragraph (1)(c) is deemed to have been adduced
before the judge before whom the trial is continued but, where the
prosecutor and the accused so agree, any part of that evidence may
be adduced again before the judge before whom the trial is
continued.
R.S.,
1985, c. 27 (1st Supp.), s. 137; 1994, c. 44, s. 65. |
|
669.3 Where a
court composed of a judge and a jury, a judge or a provincial court
judge is conducting a trial and the judge or provincial court judge
is appointed to another court, he or she continues to have
jurisdiction in respect of the trial until its completion.
1994,
c. 44, s. 66. |
|
Formal
Defects in Jury Process |
|
670. Judgment
shall not be stayed or reversed after verdict on an indictment
(a) by reason of any irregularity
in the summoning or empanelling of the jury; or
(b) for the reason that a person
who served on the jury was not returned as a juror by a sheriff or
other officer.
R.S.,
c. C-34, s. 598. |
|
671. No
omission to observe the directions contained in any Act with respect
to the qualification, selection, balloting or distribution of
jurors, the preparation of the jurors’ book, the selecting of jury
lists or the drafting of panels from the jury lists is a ground for
impeaching or quashing a verdict rendered in criminal
proceedings.
R.S.,
c. C-34, s. 599. |
|
672. Nothing
in this Act alters, abridges or affects any power or authority that
a court or judge had immediately before April 1, 1955, or any
practice or form that existed immediately before April 1, 1955, with
respect to trials by jury, jury process, juries or jurors, except
where the power or authority, practice or form is expressly altered
by or is inconsistent with this Act.
R.S.,
c. C-34, s. 600. |
|
PART
XX.1
MENTAL
DISORDER |
|
|
|
672.1 (1) In
this Part, |
|
“accused” includes a
defendant in summary conviction proceedings and an accused in
respect of whom a verdict of not criminally responsible on account
of mental disorder has been rendered; |
“assessment”
« évaluation » |
“assessment” means an
assessment by a medical practitioner or any other person who has
been designated by the Attorney General as being qualified to
conduct an assessment of the mental condition of the accused under
an assessment order made under section 672.11 or 672.121, and any
incidental observation or examination of the accused; |
“chairperson”
« président » |
“chairperson” includes any
alternate that the chairperson of a Review Board may designate to
act on the chairperson’s behalf; |
|
“court” includes a summary
conviction court as defined in section 785, a judge, a justice and a
judge of the court of appeal as defined in section 673; |
“disposition”
« décision » |
“disposition” means an
order made by a court or Review Board under section 672.54 or an
order made by a court under section 672.58; |
“dual status offender”
« contrevenant à double
statut » |
“dual
status offender” means an offender who is subject to a sentence of
imprisonment in respect of one offence and a custodial disposition
under paragraph 672.54(c) in
respect of another offence; |
|
“hospital” means a place
in a province that is designated by the Minister of Health for the
province for the custody, treatment or assessment of an accused in
respect of whom an assessment order, a disposition or a placement
decision is made; |
“medical practitioner”
« médecin » |
“medical practitioner”
means a person who is entitled to practise medicine by the laws of a
province; |
|
“party”, in relation to
proceedings of a court or Review Board to make or review a
disposition, means
(a) the accused,
(b) the person in charge of the
hospital where the accused is detained or is to attend pursuant to
an assessment order or a disposition,
(c) an Attorney General designated
by the court or Review Board under subsection 672.5(3),
(d) any interested person
designated by the court or Review Board under subsection 672.5(4),
or
(e) where the disposition is to be
made by a court, the prosecutor of the charge against the
accused; |
“placement decision”
« ordonnance de
placement » |
“placement decision” means
a decision by a Review Board under subsection 672.68(2) as to the
place of custody of a dual status offender; |
“prescribed”
Version anglaise seulement
|
“prescribed” means
prescribed by regulations made by the Governor in Council under
section 672.95; |
“Review Board”
« commission
d’examen » |
“Review Board” means the
Review Board established or designated for a province pursuant to
subsection 672.38(1); |
“verdict of not criminally
responsible on account of mental disorder”
« verdict de non-responsabilité criminelle
pour cause de troubles mentaux » |
“verdict of not criminally
responsible on account of mental disorder” means a verdict that the
accused committed the act or made the omission that formed the basis
of the offence with which the accused is charged but is not
criminally responsible on account of mental disorder. |
|
(2)
For the purposes of subsections 672.5(3) and (5), paragraph
672.86(1)(b) and subsections
672.86(2) and (2.1), 672.88(2) and 672.89(2), in respect of a
territory or proceedings commenced at the instance of the Government
of Canada and conducted by or on behalf of that Government, a
reference to the Attorney General of a province shall be read as a
reference to the Attorney General of Canada.
1991,
c. 43, s. 4; 2005, c. 22, s. 1. |
|
|
|
672.11 A
court having jurisdiction over an accused in respect of an offence
may order an assessment of the mental condition of the accused, if
it has reasonable grounds to believe that such evidence is necessary
to determine
(a) whether the accused is unfit to
stand trial;
(b) whether the accused was, at the
time of the commission of the alleged offence, suffering from a
mental disorder so as to be exempt from criminal responsibility by
virtue of subsection 16(1);
(c) whether the balance of the mind
of the accused was disturbed at the time of commission of the
alleged offence, where the accused is a female person charged with
an offence arising out of the death of her newly-born child;
(d) the appropriate disposition to
be made, where a verdict of not criminally responsible on account of
mental disorder or unfit to stand trial has been rendered in respect
of the accused; or
(e) whether an order should be made
under section 672.851 for a stay of proceedings, where a verdict of
unfit to stand trial has been rendered against the accused.
1991,
c. 43, s. 4; 1995, c. 22, s. 10; 2005, c. 22, s. 2. |
|
672.12 (1)
The court may make an assessment order at any stage of proceedings
against the accused of its own motion, on application of the accused
or, subject to subsections (2) and (3), on application of the
prosecutor. |
Limitation
on prosecutor’s application for assessment of fitness |
(2)
Where the prosecutor applies for an assessment in order to determine
whether the accused is unfit to stand trial for an offence that is
prosecuted by way of summary conviction, the court may only order
the assessment if
(a) the accused raised the issue of
fitness; or
(b) the prosecutor satisfies the
court that there are reasonable grounds to doubt that the accused is
fit to stand trial. |
Limitation
on prosecutor’s application for assessment |
(3)
Where the prosecutor applies for an assessment in order to determine
whether the accused was suffering from a mental disorder at the time
of the offence so as to be exempt from criminal responsibility, the
court may only order the assessment if
(a) the accused puts his or her
mental capacity for criminal intent into issue; or
(b) the prosecutor satisfies the
court that there are reasonable grounds to doubt that the accused is
criminally responsible for the alleged offence, on account of mental
disorder.
1991,
c. 43, s. 4. |
|
672.121 The
Review Board that has jurisdiction over an accused found not
criminally responsible on account of mental disorder or unfit to
stand trial may order an assessment of the mental condition of the
accused of its own motion or on application of the prosecutor or the
accused, if it has reasonable grounds to believe that such evidence
is necessary to
(a) make a recommendation to the
court under subsection 672.851(1); or
(b) make a disposition under
section 672.54 in one of the following circumstances:
(i) no
assessment report on the mental condition of the accused is
available,
(ii)
no assessment of the mental condition of the accused has been
conducted in the last twelve months, or
(iii)
the accused has been transferred from another province under section
672.86.
2005,
c. 22, s. 3. |
|
672.13 (1) An
assessment order must specify
(a) the service that or the person
who is to make the assessment, or the hospital where it is to be
made;
(b) whether the accused is to be
detained in custody while the order is in force; and
(c) the period that the order is to
be in force, including the time required for the assessment and for
the accused to travel to and from the place where the assessment is
to be made. |
|
(2) An
assessment order may be in Form 48 or 48.1.
1991,
c. 43, s. 4; 2005, c. 22, s. 4. |
|
672.14 (1) An
assessment order shall not be in force for more than thirty
days. |
Exception
in fitness cases |
(2) No
assessment order to determine whether the accused is unfit to stand
trial shall be in force for more than five days, excluding holidays
and the time required for the accused to travel to and from the
place where the assessment is to be made, unless the accused and the
prosecutor agree to a longer period not exceeding thirty
days. |
Exception
for compelling circumstances |
(3)
Despite subsections (1) and (2), a court or Review Board may make an
assessment order that remains in force for sixty days if the court
or Review Board is satisfied that compelling circumstances exist
that warrant it.
1991,
c. 43, s. 4; 2005, c. 22, s. 5. |
|
672.15 (1)
Subject to subsection (2), a court or Review Board may extend an
assessment order, of its own motion or on the application of the
accused or the prosecutor made during or at the end of the period
during which the order is in force, for any further period that is
required, in its opinion, to complete the assessment of the
accused. |
Maximum
duration of extensions |
(2) No
extension of an assessment order shall exceed thirty days, and the
period of the initial order together with all extensions shall not
exceed sixty days.
1991,
c. 43, s. 4; 2005, c. 22, s. 6. |
|
672.16 (1)
Subject to subsection (3), an accused shall not be detained in
custody under an assessment order of a court unless
(
a) the court is satisfied
that on the evidence custody is necessary to assess the accused, or
that on the evidence of a medical practitioner custody is desirable
to assess the accused and the accused consents to custody;
(
b) custody of the accused is
required in respect of any other matter or by virtue of any other
provision of this Act; or
(
c) the prosecutor, having
been given a reasonable opportunity to do so, shows that detention
of the accused in custody is justified on either of the grounds set
out in subsection 515(10). |
Presumption
against custody — Review Board |
(1.1)
If the Review Board makes an order for an assessment of an accused
under section 672.121, the accused shall not be detained in custody
under the order unless
(a) the accused is currently
subject to a disposition made under paragraph 672.54(c);
(b) the Review Board is satisfied
on the evidence that custody is necessary to assess the accused, or
that on the evidence of a medical practitioner custody is desirable
to assess the accused and the accused consents to custody; or
(c) custody of the accused is
required in respect of any other matter or by virtue of any other
provision of this Act. |
Residency
as a condition of disposition |
(1.2)
Subject to paragraphs (1.1)(b) and (c), if the accused is subject to a
disposition made under paragraph 672.54(b) that requires the accused to
reside at a specified place, an assessment ordered under section
672.121 shall require the accused to reside at the same
place. |
Report
of medical practitioner |
(2)
For the purposes of paragraphs (1)(a) and (1.1)(b), if the prosecutor and the
accused agree, the evidence of a medical practitioner may be
received in the form of a report in writing. |
Presumption
of custody in certain circumstances |
(3) An
assessment order made in respect of an accused who is detained under
subsection 515(6) or 522(2) shall order that the accused be detained
in custody under the same circumstances referred to in that
subsection, unless the accused shows that custody is not justified
under the terms of that subsection.
1991,
c. 43, s. 4; 2005, c. 22, s. 7. |
|
672.17 During
the period that an assessment order of an accused charged with an
offence is in force, no order for the interim release or detention
of the accused may be made by virtue of Part XVI or section 679 in
respect of that offence or an included offence.
1991,
c. 43, s. 4. |
|
672.18 Where
at any time while an assessment order made by a court is in force
the prosecutor or an accused shows cause, the court may vary the
terms of the order respecting the interim release or detention of
the accused in such manner as it considers appropriate in the
circumstances.
1991,
c. 43, s. 4. |
|
672.19 No
assessment order may direct that psychiatric or any other treatment
of the accused be carried out, or direct the accused to submit to
such treatment.
1991,
c. 43, s. 4. |
|
672.191 An
accused in respect of whom an assessment order is made shall appear
before the court or Review Board that made the order as soon as
practicable after the assessment is completed and not later than the
last day of the period that the order is to be in force.
1997,
c. 18, s. 81; 2005, c. 22, s. 10. |
|
|
|
672.2 (1) An
assessment order may require the person who makes the assessment to
submit in writing an assessment report on the mental condition of
the accused. |
Assessment
report to be filed |
(2) An
assessment report shall be filed with the court or Review Board that
ordered it, within the period fixed by the court or Review Board, as
the case may be. |
Court
to send assessment report to Review Board |
(3)
The court shall send to the Review Board without delay a copy of any
report filed with it pursuant to subsection (2), to assist in
determining the appropriate disposition to be made in respect of the
accused. |
Copies
of reports to accused and prosecutor |
(4)
Subject to subsection 672.51(3), copies of any report filed with a
court or Review Board under subsection (2) shall be provided without
delay to the prosecutor, the accused and any counsel representing
the accused.
1991,
c. 43, s. 4; 2005, c. 22, s. 11. |
|
|
|
672.21 (1) In
this section, “protected statement” means a statement made by the
accused during the course and for the purposes of an assessment or
treatment directed by a disposition, to the person specified in the
assessment order or the disposition, or to anyone acting under that
person’s direction. |
Protected
statements not admissible against accused |
(2) No
protected statement or reference to a protected statement made by an
accused is admissible in evidence, without the consent of the
accused, in any proceeding before a court, tribunal, body or person
with jurisdiction to compel the production of evidence. |
|
(3)
Notwithstanding subsection (2), evidence of a protected statement is
admissible for the purpose of
(a) determining whether the accused
is unfit to stand trial;
(b) making a disposition or
placement decision respecting the accused;
(c) finding whether the accused is
a dangerous mentally disordered accused under section 672.65;
(d) determining whether the balance
of the mind of the accused was disturbed at the time of commission
of the alleged offence, where the accused is a female person charged
with an offence arising out of the death of her newly-born
child;
(e) determining whether the accused
was, at the time of the commission of an alleged offence, suffering
from automatism or a mental disorder so as to be exempt from
criminal responsibility by virtue of subsection 16(1), if the
accused puts his or her mental capacity for criminal intent into
issue, or if the prosecutor raises the issue after verdict;
(f) challenging the credibility of
an accused in any proceeding where the testimony of the accused is
inconsistent in a material particular with a protected statement
that the accused made previously; or
(g) establishing the perjury of an
accused who is charged with perjury in respect of a statement made
in any proceeding.
1991,
c. 43, s. 4. |
|
|
|
672.22 An
accused is presumed fit to stand trial unless the court is satisfied
on the balance of probabilities that the accused is unfit to stand
trial.
1991,
c. 43, s. 4. |
|
672.23 (1)
Where the court has reasonable grounds, at any stage of the
proceedings before a verdict is rendered, to believe that the
accused is unfit to stand trial, the court may direct, of its own
motion or on application of the accused or the prosecutor, that the
issue of fitness of the accused be tried. |
|
(2) An
accused or a prosecutor who makes an application under subsection
(1) has the burden of proof that the accused is unfit to stand
trial.
1991,
c. 43, s. 4. |
|
672.24 (1)
Where the court has reasonable grounds to believe that an accused is
unfit to stand trial and the accused is not represented by counsel,
the court shall order that the accused be represented by
counsel. |
Counsel
fees and disbursements |
(2)
Where counsel is assigned pursuant to subsection (1) and legal aid
is not granted to the accused pursuant to a provincial legal aid
program, the fees and disbursements of counsel shall be paid by the
Attorney General to the extent that the accused is unable to pay
them. |
Taxation
of fees and disbursements |
(3)
Where counsel and the Attorney General cannot agree on the fees or
disbursements of counsel, the Attorney General or the counsel may
apply to the registrar of the court and the registrar may tax the
disputed fees and disbursements.
1991,
c. 43, s. 4; 1997, c. 18, s. 82. |
|
672.25 (1)
The court shall postpone directing the trial of the issue of fitness
of an accused in proceedings for an offence for which the accused
may be prosecuted by indictment or that is punishable on summary
conviction, until the prosecutor has elected to proceed by way of
indictment or summary conviction. |
|
(2)
The court may postpone directing the trial of the issue of fitness
of an accused
(a) where the issue arises before
the close of the case for the prosecution at a preliminary inquiry,
until a time that is not later than the time the accused is called
on to answer to the charge; or
(b) where the issue arises before
the close of the case for the prosecution at trial, until a time not
later than the opening of the case for the defence or, on motion of
the accused, any later time that the court may direct.
1991,
c. 43, s. 4. |
|
672.26 Where
an accused is tried or is to be tried before a court composed of a
judge and jury,
(a) if the judge directs that the
issue of fitness of the accused be tried before the accused is given
in charge to a jury for trial on the indictment, a jury composed of
the number of jurors required in respect of the indictment in the
province where the trial is to be held shall be sworn to try that
issue and, with the consent of the accused, the issues to be tried
on the indictment; and
(b) if the judge directs that the
issue of fitness of the accused be tried after the accused has been
given in charge to a jury for trial on the indictment, the jury
shall be sworn to try that issue in addition to the issues in
respect of which it is already sworn.
1991,
c. 43, s. 4. |
|
672.27 The
court shall try the issue of fitness of an accused and render a
verdict where the issue arises
(a) in respect of an accused who is
tried or is to be tried before a court other than a court composed
of a judge and jury; or
(b) before a court at a preliminary
inquiry or at any other stage of the proceedings.
1991,
c. 43, s. 4. |
|
672.28 Where
the verdict on trial of the issue is that an accused is fit to stand
trial, the arraignment, preliminary inquiry, trial or other stage of
the proceeding shall continue as if the issue of fitness of the
accused had never arisen.
1991,
c. 43, s. 4. |
|
672.29 Where
an accused is detained in custody on delivery of a verdict that the
accused is fit to stand trial, the court may order the accused to be
detained in a hospital until the completion of the trial, if the
court has reasonable grounds to believe that the accused would
become unfit to stand trial if released.
1991,
c. 43, s. 4. |
|
672.3 Where
the court has postponed directing the trial of the issue of fitness
of an accused pursuant to subsection 672.25(2) and the accused is
discharged or acquitted before the issue is tried, it shall not be
tried.
1991,
c. 43, s. 4. |
|
672.31 Where
the verdict on trial of the issue is that an accused is unfit to
stand trial, any plea that has been made shall be set aside and any
jury shall be discharged.
1991,
c. 43, s. 4. |
|
672.32 (1) A
verdict of unfit to stand trial shall not prevent the accused from
being tried subsequently where the accused becomes fit to stand
trial. |
|
(2)
The burden of proof that the accused has subsequently become fit to
stand trial is on the party who asserts it, and is discharged by
proof on the balance of probabilities.
1991,
c. 43, s. 4. |
|
672.33 (1)
The court that has jurisdiction in respect of the offence charged
against an accused who is found unfit to stand trial shall hold an
inquiry, not later than two years after the verdict is rendered and
every two years thereafter until the accused is acquitted pursuant
to subsection (6) or tried, to decide whether sufficient evidence
can be adduced at that time to put the accused on trial. |
Court
may order inquiry to be held |
(2) On
application of the accused, the court may order an inquiry under
this section to be held at any time if it is satisfied, on the basis
of the application and any written material submitted by the
accused, that there is reason to doubt that there is a prima facie case against the
accused. |
|
(3) At
an inquiry under this section, the burden of proof that sufficient
evidence can be adduced to put the accused on trial is on the
prosecutor. |
Admissible
evidence at an inquiry |
(4) In
an inquiry under this section, the court shall admit as evidence
(a) any affidavit containing
evidence that would be admissible if given by the person making the
affidavit as a witness in court; or
(b) any certified copy of the oral
testimony given at a previous inquiry or hearing held before a court
in respect of the offence with which the accused is
charged. |
|
(5)
The court may determine the manner in which an inquiry under this
section is conducted and may follow the practices and procedures in
respect of a preliminary inquiry under Part XVIII where it concludes
that the interests of justice so require. |
Where
prima facie case not
made |
(6)
Where, on the completion of an inquiry under this section, the court
is satisfied that sufficient evidence cannot be adduced to put the
accused on trial, the court shall acquit the accused.
1991,
c. 43, s. 4. |
|
Verdict
of Not Criminally Responsible on Account of Mental
Disorder |
|
672.34 Where
the jury, or the judge or provincial court judge where there is no
jury, finds that an accused committed the act or made the omission
that formed the basis of the offence charged, but was at the time
suffering from mental disorder so as to be exempt from criminal
responsibility by virtue of subsection 16(1), the jury or the judge
shall render a verdict that the accused committed the act or made
the omission but is not criminally responsible on account of mental
disorder.
1991,
c. 43, s. 4. |
|
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
(a) the accused may plead autrefois acquit in respect of any
subsequent charge relating to that offence;
(b) any court may take the verdict
into account in considering an application for judicial interim
release or in considering what dispositions to make or sentence to
impose for any other offence; and
(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.
1991,
c. 43, s. 4. |
|
672.36 A
verdict of not criminally responsible on account of mental disorder
is not a previous conviction for the purposes of any offence under
any Act of Parliament for which a greater punishment is provided by
reason of previous convictions.
1991,
c. 43, s. 4. |
|
672.37 (1) In
this section, “application for federal employment” means an
application form relating to
(a) employment in any department,
as defined in section 2 of the Financial Administration Act;
(b) employment by any Crown
corporation as defined in subsection 83(1) of the Financial Administration Act;
(c) enrolment in the Canadian
Forces; or
(d) employment in connection with
the operation of any work, undertaking or business that is within
the legislative authority of Parliament. |
Application
for federal employment |
(2) No
application for federal employment shall contain any question that
requires the applicant to disclose any charge or finding that the
applicant committed an offence that resulted in a finding or a
verdict of not criminally responsible on account of mental disorder
if the applicant was discharged absolutely or is no longer subject
to any disposition in respect of that offence. |
|
(3)
Any person who uses or authorizes the use of an application for
federal employment that contravenes subsection (2) is guilty of an
offence punishable on summary conviction.
1991,
c. 43, s. 4. |
|
|
|
672.38 (1) A
Review Board shall be established or designated for each province to
make or review dispositions concerning any accused in respect of
whom a verdict of not criminally responsible by reason of mental
disorder or unfit to stand trial is rendered, and shall consist of
not fewer than five members appointed by the lieutenant governor in
council of the province. |
Treated
as provincial Board |
(2) A
Review Board shall be treated as having been established under the
laws of the province. |
|
(3) No
member of a Review Board is personally liable for any act done in
good faith in the exercise of the member’s powers or the performance
of the member’s duties and functions or for any default or neglect
in good faith in the exercise of those powers or the performance of
those duties and functions.
1991,
c. 43, s. 4; 1997, c. 18, s. 83. |
|
672.39 A
Review Board must have at least one member who is entitled under the
laws of a province to practise psychiatry and, where only one member
is so entitled, at least one other member must have training and
experience in the field of mental health, and be entitled under the
laws of a province to practise medicine or psychology.
1991,
c. 43, s. 4. |
|
672.4 (1)
Subject to subsection (2), the chairperson of a Review Board shall
be a judge of the Federal Court or of a superior, district or county
court of a province, or a person who is qualified for appointment
to, or has retired from, such a judicial office. |
|
(2)
Where the chairperson of a Review Board that was established before
the coming into force of subsection (1) is not a judge or other
person referred to therein, the chairperson may continue to act
until the expiration of his or her term of office if at least one
other member of the Review Board is a judge or other person referred
to in subsection (1) or is a member of the bar of the province.
1991,
c. 43, s. 4. |
|
672.41 (1)
Subject to subsection (2), the quorum of a Review Board is
constituted by the chairperson, a member who is entitled under the
laws of a province to practise psychiatry, and any other
member. |
|
(2)
Where the chairperson of a Review Board that was established before
the coming into force of this section is not a judge or other person
referred to in subsection 672.4(1), the quorum of the Review Board
is constituted by the chairperson, a member who is entitled under
the laws of a province to practise psychiatry, and a member who is a
person referred to in that subsection or a member of the bar of the
province.
1991,
c. 43, s. 4. |
|
672.42 A
decision of a majority of the members present and voting is the
decision of a Review Board.
1991,
c. 43, s. 4. |
|
672.43 At a
hearing held by a Review Board to make a disposition or review a
disposition in respect of an accused, the chairperson has all the
powers that are conferred by sections 4 and 5 of the Inquiries Act on persons appointed
as commissioners under Part I of that Act.
1991,
c. 43, s. 4. |
|
672.44 (1) A
Review Board may, subject to the approval of the lieutenant governor
in council of the province, make rules providing for the practice
and procedure before the Review Board. |
Application
and publication of rules |
(2)
The rules made by a Review Board under subsection (1) apply to any
proceeding within its jurisdiction, and shall be published in the
Canada Gazette. |
|
(3)
Notwithstanding anything in this section, the Governor in Council
may make regulations to provide for the practice and procedure
before Review Boards, in particular to make the rules of Review
Boards uniform, and all regulations made under this subsection
prevail over any rules made under subsection (1).
1991,
c. 43, s. 4. |
|
|
|
672.45 (1)
Where a verdict of not criminally responsible on account of mental
disorder or unfit to stand trial is rendered in respect of an
accused, the court may of its own motion, and shall on application
by the accused or the prosecutor, hold a disposition
hearing. |
|
(2) At
a disposition hearing, the court shall make a disposition in respect
of the accused, if it is satisfied that it can readily do so and
that a disposition should be made without delay.
1991,
c. 43, s. 4. |
|
672.46 (1)
Where the court does not make a disposition in respect of the
accused at a disposition hearing, any order for the interim release
or detention of the accused or any appearance notice, promise to
appear, summons, undertaking or recognizance in respect of the
accused that is in force at the time the verdict of not criminally
responsible on account of mental disorder or unfit to stand trial is
rendered continues in force, subject to its terms, until the Review
Board makes a disposition. |
|
(2)
Notwithstanding subsection (1), a court may, on cause being shown,
vacate any order, appearance notice, promise to appear, summons,
undertaking or recognizance referred to in that subsection and make
any other order for the interim release or detention of the accused
that the court considers to be appropriate in the circumstances,
including an order directing that the accused be detained in custody
in a hospital pending a disposition by the Review Board in respect
of the accused.
1991,
c. 43, s. 4. |
|
672.47 (1)
Where a verdict of not criminally responsible on account of mental
disorder or unfit to stand trial is rendered and the court makes no
disposition in respect of an accused, the Review Board shall, as
soon as is practicable but not later than forty-five days after the
verdict was rendered, hold a hearing and make a
disposition. |
Extension
of time for hearing |
(2)
Where the court is satisfied that there are exceptional
circumstances that warrant it, the court may extend the time for
holding a hearing under subsection (1) to a maximum of ninety days
after the verdict was rendered. |
Where
disposition made by court |
(3)
Where a court makes a disposition under section 672.54 other than an
absolute discharge in respect of an accused, the Review Board shall
hold a hearing on a day not later than the day on which the
disposition ceases to be in force, and not later than ninety days
after the disposition was made, and shall make a disposition in
respect of the accused.
1991,
c. 43, s. 4. |
|
672.48 (1)
Where a Review Board holds a hearing to make or review a disposition
in respect of an accused who has been found unfit to stand trial, it
shall determine whether in its opinion the accused is fit to stand
trial at the time of the hearing. |
Review
Board shall send accused to court |
(2) If
a Review Board determines that the accused is fit to stand trial, it
shall order that the accused be sent back to court, and the court
shall try the issue and render a verdict. |
Chairperson
may send accused to court |
(3)
The chairperson of a Review Board may, with the consent of the
accused and the person in charge of the hospital where an accused is
being detained, order that the accused be sent back to court for
trial of the issue of whether the accused is unfit to stand trial,
where the chairperson is of the opinion that
(a) the accused is fit to stand
trial; and
(b) the Review Board will not hold
a hearing to make or review a disposition in respect of the accused
within a reasonable period.
1991,
c. 43, s. 4. |
|
672.49 (1) In
a disposition made pursuant to section 672.47 the Review Board or
chairperson may require the accused to continue to be detained in a
hospital until the court determines whether the accused is fit to
stand trial, if the Review Board or chairperson has reasonable
grounds to believe that the accused would become unfit to stand
trial if released. |
Copy
of disposition to be sent to court |
(2)
The Review Board or chairperson shall send a copy of a disposition
made pursuant to section 672.47 without delay to the court having
jurisdiction over the accused and to the Attorney General of the
province where the accused is to be tried.
1991,
c. 43, s. 4. |
|
672.5 (1) A
hearing held by a court or Review Board to make or review a
disposition in respect of an accused shall be held in accordance
with this section. |
|
(2)
The hearing may be conducted in as informal a manner as is
appropriate in the circumstances. |
Attorneys
General may be parties |
(3) On
application, the court or Review Board shall designate as a party
the Attorney General of the province where the disposition is to be
made and, where an accused is transferred from another province, the
Attorney General of the province from which the accused is
transferred. |
Interested
person may be a party |
(4)
The court or Review Board may designate as a party any person who
has a substantial interest in protecting the interests of the
accused, if the court or Review Board is of the opinion that it is
just to do so. |
|
(5)
Notice of the hearing shall be given to the parties, the Attorney
General of the province where the disposition is to be made and,
where the accused is transferred to another province, the Attorney
General of the province from which the accused is transferred,
within the time and in the manner prescribed, or within the time and
in the manner fixed by the rules of the court or Review
Board. |
Order
excluding the public |
(6)
Where the court or Review Board considers it to be in the best
interests of the accused and not contrary to the public interest,
the court or Review Board may order the public or any members of the
public to be excluded from the hearing or any part of the
hearing. |
|
(7)
The accused or any other party has the right to be represented by
counsel. |
|
(8)
The court or Review Board shall, if an accused is not represented by
counsel, assign counsel to act for any accused
(a) who has been found unfit to
stand trial; or
(b) wherever the interests of
justice so require. |
Counsel
fees and disbursements |
(8.1)
Where counsel is assigned pursuant to subsection (8) and legal aid
is not granted to the accused pursuant to a provincial legal aid
program, the fees and disbursements of counsel shall be paid by the
Attorney General to the extent that the accused is unable to pay
them. |
Taxation
of fees and disbursements |
(8.2)
Where counsel and the Attorney General cannot agree on the fees or
disbursements of counsel, the Attorney General or the counsel may
apply to the registrar of the court and the registrar may tax the
disputed fees and disbursements. |
Right
of accused to be present |
(9)
Subject to subsection (10), the accused has the right to be present
during the whole of the hearing. |
Removal
or absence of accused |
(10)
The court or the chairperson of the Review Board may
(a) permit the accused to be absent
during the whole or any part of the hearing on such conditions as
the court or chairperson considers proper; or
(b) cause the accused to be removed
and barred from re-entry for the whole or any part of the
hearing
(i)
where the accused interrupts the hearing so that to continue in the
presence of the accused would not be feasible,
(ii)
on being satisfied that failure to do so would likely endanger the
life or safety of another person or would seriously impair the
treatment or recovery of the accused, or
(iii)
in order to hear, in the absence of the accused, evidence, oral or
written submissions, or the cross-examination of any witness
concerning whether grounds exist for removing the accused pursuant
to subparagraph (ii). |
Rights
of parties at hearing |
(11)
Any party may adduce evidence, make oral or written submissions,
call witnesses and cross-examine any witness called by any other
party and, on application, cross-examine any person who made an
assessment report that was submitted to the court or Review Board in
writing. |
Request
to compel attendance of witnesses |
(12) A
party may not compel the attendance of witnesses, but may request
the court or the chairperson of the Review Board to do so. |
|
(13)
Where the accused so agrees, the court or the chairperson of the
Review Board may permit the accused to appear by closed-circuit
television or any other means that allow the court or Review Board
and the accused to engage in simultaneous visual and oral
communication, for any part of the hearing. |
|
(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. |
|
(15)
The court or Review Board shall ensure that a copy of any statement
filed in accordance with subsection (14) is provided to the accused
or counsel for the accused, and the prosecutor, as soon as
practicable after a verdict of not criminally responsible on account
of mental disorder is rendered in respect of the offence. |
|
(16)
In subsection (14), “victim” has the same meaning as in subsection
722(4).
1991,
c. 43, s. 4; 1997, c. 18, s. 84; 1999, c. 25, s.
11(Preamble). |
|
672.51 (1) In
this section, “disposition information” means all or part of an
assessment report submitted to the court or Review Board and any
other written information before the court or Review Board about the
accused that is relevant to making a disposition. |
Disposition
information to be made available to parties |
(2)
Subject to this section, all disposition information shall be made
available for inspection by, and the court or Review Board shall
provide a copy of it to, each party and any counsel representing the
accused. |
Exception
where disclosure dangerous to any person |
(3)
The court or Review Board shall withhold some or all of the
disposition information from an accused where it is satisfied, on
the basis of that information and the evidence or report of the
medical practitioner responsible for the assessment or treatment of
the accused, that disclosure of the information would be likely to
endanger the life or safety of another person or would seriously
impair the treatment or recovery of the accused. |
|
(4)
Notwithstanding subsection (3), the court or Review Board may
release some or all of the disposition information to an accused
where the interests of justice make disclosure essential in its
opinion. |
Exception
where disclosure unnecessary or prejudicial |
(5)
The court or Review Board shall withhold disposition information
from a party other than the accused or an Attorney General, where
disclosure to that party, in the opinion of the court or Review
Board, is not necessary to the proceeding and may be prejudicial to
the accused. |
Exclusion
of certain persons from hearing |
(6) A
court or Review Board that withholds disposition information from
the accused or any other party pursuant to subsection (3) or (5)
shall exclude the accused or the other party, as the case may be,
from the hearing during
(a) the oral presentation of that
disposition information; or
(b) the questioning by the court or
Review Board or the cross-examination of any person concerning that
disposition information. |
Prohibition
of disclosure in certain cases |
(7) No
disposition information shall be made available for inspection or
disclosed to any person who is not a party to the proceedings
(a) where the disposition
information has been withheld from the accused or any other party
pursuant to subsection (3) or (5); or
(b) where the court or Review Board
is of the opinion that disclosure of the disposition information
would be seriously prejudicial to the accused and that, in the
circumstances, protection of the accused takes precedence over the
public interest in disclosure. |
|
(8) No
part of the record of the proceedings in respect of which the
accused was excluded pursuant to subparagraph 672.5(10)(b)(ii) or (iii) shall be made
available for inspection to the accused or to any person who is not
a party to the proceedings. |
Information
to be made available to specified persons |
(9)
Notwithstanding subsections (7) and (8), the court or Review Board
may make any disposition information, or a copy of it, available on
request to any person or member of a class of persons
(a) that has a valid interest in
the information for research or statistical purposes, where the
court or Review Board is satisfied that disclosure is in the public
interest;
(b) that has a valid interest in
the information for the purposes of the proper administration of
justice; or
(c) that the accused requests or
authorizes in writing to inspect it, where the court or Review Board
is satisfied that the person will not disclose or give to the
accused a copy of any disposition information withheld from the
accused pursuant to subsection (3), or of any part of the record of
proceedings referred to in subsection (8), or that the reasons for
withholding that information from the accused no longer
exist. |
Disclosure
for research or statistical purposes |
(10) A
person to whom the court or Review Board makes disposition
information available under paragraph (9)(a) may disclose it for research or
statistical purposes, but not in any form or manner that could
reasonably be expected to identify any person to whom it
relates. |
Prohibition
on publication |
(11)
No person shall publish in any newspaper within the meaning of
section 297 or broadcast
(a) any disposition information
that is prohibited from being disclosed pursuant to subsection (7);
or
(b) any part of the record of the
proceedings in respect of which the accused was excluded pursuant to
subparagraph 672.5(10)(b)(ii) or (iii). |
Powers
of courts not limited |
(12)
Except as otherwise provided in this section, nothing in this
section limits the powers that a court may exercise apart from this
section.
1991,
c. 43, s. 4; 1997, c. 18, s. 85. |
|
672.52 (1)
The court or Review Board shall cause a record of the proceedings of
its disposition hearings to be kept, and include in the record any
assessment report submitted. |
Transmittal
of transcript to Review Board |
(2)
Where a court makes a disposition, it shall send without delay a
transcript of the disposition hearing, any document or information
relating thereto in the possession of the court, and all exhibits
filed with the court or copies of those exhibits, to the Review
Board that has jurisdiction in respect of the matter. |
Reasons
for disposition and copies to be provided |
(3)
The court or Review Board shall state its reasons for making a
disposition in the record of the proceedings, and shall provide
every party with a copy of the disposition and those reasons.
1991,
c. 43, s. 4. |
|
672.53 Any
procedural irregularity in relation to a disposition hearing does
not affect the validity of the hearing unless it causes the accused
substantial prejudice.
1991,
c. 43, s. 4. |
|
Dispositions
by a Court or Review Board |
|
|
|
672.54 Where
a court or Review Board makes a disposition pursuant to subsection
672.45(2) or section 672.47, it shall, taking into consideration the
need to protect the public from dangerous persons, the mental
condition of the accused, the reintegration of the accused into
society and the other needs of the accused, make one of the
following dispositions that is the least onerous and least
restrictive to the accused:
(a) where a verdict of not
criminally responsible on account of mental disorder has been
rendered in respect of the accused and, in the opinion of the court
or Review Board, the accused is not a significant threat to the
safety of the public, by order, direct that the accused be
discharged absolutely;
(b) by order, direct that the
accused be discharged subject to such conditions as the court or
Review Board considers appropriate; or
(c) by order, direct that the
accused be detained in custody in a hospital, subject to such
conditions as the court or Review Board considers appropriate.
1991,
c. 43, s. 4. |
|
672.541 When
a verdict of not criminally responsible on account of mental
disorder has been rendered in respect of an accused, the court or
Review Board shall, at a hearing held under section 672.45 or
672.47, take into consideration any statement filed in accordance
with subsection 672.5(14) in determining the appropriate disposition
or conditions under section 672.54, to the extent that the statement
is relevant to its consideration of the criteria set out in section
672.54.
1999,
c. 25, s. 12(Preamble). |
|
672.55 (1) No
disposition made under section 672.54 shall direct that any
psychiatric or other treatment of the accused be carried out or that
the accused submit to such treatment except that the disposition may
include a condition regarding psychiatric or other treatment where
the accused has consented to the condition and the court or Review
Board considers the condition to be reasonable and necessary in the
interests of the accused. |
Effective
period of disposition |
(2) No
disposition made under paragraph 672.54(c) by a court shall continue in
force for more than ninety days after the day that it is made.
1991,
c. 43, s. 4; 1997, c. 18, s. 86. |
|
672.56 (1) A
Review Board that makes a disposition in respect of an accused under
paragraph 672.54(b) or
(c) may delegate to the
person in charge of the hospital authority to direct that the
restrictions on the liberty of the accused be increased or decreased
within any limits and subject to any conditions set out in that
disposition, and any direction so made is deemed for the purposes of
this Act to be a disposition made by the Review Board. |
Notice
to accused and Review Board of increase in restrictions |
(2) A
person who increases the restrictions on the liberty of the accused
significantly pursuant to authority delegated to the person by a
Review Board shall
(a) make a record of the increased
restrictions on the file of the accused; and
(b) give notice of the increase as
soon as is practicable to the accused and, if the increased
restrictions remain in force for a period exceeding seven days, to
the Review Board.
1991,
c. 43, s. 4. |
|
672.57 Where
the court or Review Board makes a disposition under paragraph
672.54(c), it shall issue a
warrant of committal of the accused, which may be in Form 49.
1991,
c. 43, s. 4. |
|
672.58 Where
a verdict of unfit to stand trial is rendered and the court has not
made a disposition under section 672.54 in respect of an accused,
the court may, on application by the prosecutor, by order, direct
that treatment of the accused be carried out for a specified period
not exceeding sixty days, subject to such conditions as the court
considers appropriate and, where the accused is not detained in
custody, direct that the accused submit to that treatment by the
person or at the hospital specified.
1991,
c. 43, s. 4. |
|
672.59 (1) No
disposition may be made under section 672.58 unless the court is
satisfied, on the basis of the testimony of a medical practitioner,
that a specific treatment should be administered to the accused for
the purpose of making the accused fit to stand trial. |
|
(2)
The testimony required by the court for the purposes of subsection
(1) shall include a statement that the medical practitioner has made
an assessment of the accused and is of the opinion, based on the
grounds specified, that
(a) the accused, at the time of the
assessment, was unfit to stand trial;
(b) the psychiatric treatment and
any other related medical treatment specified by the medical
practitioner will likely make the accused fit to stand trial within
a period not exceeding sixty days and that without that treatment
the accused is likely to remain unfit to stand trial;
(c) the risk of harm to the accused
from the psychiatric and other related medical treatment specified
is not disproportionate to the benefit anticipated to be derived
from it; and
(d) the psychiatric and other
related medical treatment specified is the least restrictive and
least intrusive treatment that could, in the circumstances, be
specified for the purpose referred to in subsection (1), considering
the opinions referred to in paragraphs (b) and (c).
1991,
c. 43, s. 4. |
|
672.6 (1) The
court shall not make a disposition under section 672.58 unless the
prosecutor notifies the accused, in writing and as soon as
practicable, of the application. |
|
(2) On
receiving the notice referred to in subsection (1), the accused may
challenge the application and adduce evidence for that purpose.
1991,
c. 43, s. 4; 1997, c. 18, s. 87. |
|
672.61 (1)
The court shall not direct, and no disposition made under section
672.58 shall include, the performance of psychosurgery or
electro-convulsive therapy or any other prohibited treatment that is
prescribed. |
|
(2) In
this section, |
“electro-convulsive therapy”
« sismothérapie » |
“electro-convulsive
therapy” means a procedure for the treatment of certain mental
disorders that induces, by electrical stimulation of the brain, a
series of generalized convulsions; |
“psychosurgery”
« psychochirurgie » |
“psychosurgery” means any
procedure that by direct or indirect access to the brain removes,
destroys or interrupts the continuity of histologically normal brain
tissue, or inserts indwelling electrodes for pulsed electrical
stimulation for the purpose of altering behaviour or treating
psychiatric illness, but does not include neurological procedures
used to diagnose or treat intractable physical pain, organic brain
conditions, or epilepsy, where any of those conditions is clearly
demonstrable.
1991,
c. 43, s. 4. |
|
672.62 (1) No
court shall make a disposition under section 672.58 without the
consent of
(a) the person in charge of the
hospital where the accused is to be treated; or
(b) the person to whom
responsibility for the treatment of the accused is assigned by the
court. |
Consent
of accused not required for treatment |
(2)
The court may direct that treatment of an accused be carried out
pursuant to a disposition made under section 672.58 without the
consent of the accused or a person who, according to the laws of the
province where the disposition is made, is authorized to consent for
the accused.
1991,
c. 43, s. 4. |
|
672.63 A
disposition shall come into force on the day that it is made or on
any later day that the court or Review Board specifies in it, and
shall remain in force until the date of expiration that the
disposition specifies or until the Review Board holds a hearing
pursuant to section 672.47 or 672.81.
1991,
c. 43, s. 4. |
|
|
|
672.64 to
672.66 [Not in force] |
|
|
|
672.67 (1)
Where a court imposes a sentence of imprisonment on an offender who
is, or thereby becomes, a dual status offender, that sentence takes
precedence over any prior custodial disposition, pending any
placement decision by the Review Board. |
Custodial
disposition by court |
(2)
Where a court imposes a custodial disposition on an accused who is,
or thereby becomes, a dual status offender, the disposition takes
precedence over any prior sentence of imprisonment except a hospital
order, as defined in section 747, pending any placement decision by
the Review Board.
1991,
c. 43, s. 4; 1995, c. 22, s. 10. |
|
672.68 (1) In
this section and in sections 672.69 and 672.7, “Minister” means the
Minister of Public Safety and Emergency Preparedness or the Minister
responsible for correctional services of the province to which a
dual status offender may be sent pursuant to a sentence of
imprisonment. |
Placement
decision by Review Board |
(2) On
application by the Minister or of its own motion, where the Review
Board is of the opinion that the place of custody of a dual status
offender pursuant to a sentence or custodial disposition made by the
court is inappropriate to meet the mental health needs of the
offender or to safeguard the well-being of other persons, the Review
Board shall, after giving the offender and the Minister reasonable
notice, decide whether to place the offender in custody in a
hospital or in a prison. |
|
(3) In
making a placement decision, the Review Board shall take into
consideration
(a) the need to protect the public
from dangerous persons;
(b) the treatment needs of the
offender and the availability of suitable treatment resources to
address those needs;
(c) whether the offender would
consent to or is a suitable candidate for treatment;
(d) any submissions made to the
Review Board by the offender or any other party to the proceedings
and any assessment report submitted in writing to the Review Board;
and
(e) any other factors that the
Review Board considers relevant. |
Time
for making placement decision |
(4)
The Review Board shall make its placement decision as soon as
practicable but not later than thirty days after receiving an
application from, or giving notice to, the Minister under subsection
(2), unless the Review Board and the Minister agree to a longer
period not exceeding sixty days. |
Effects
of placement decision |
(5)
Where the offender is detained in a prison pursuant to the placement
decision of the Review Board, the Minister is responsible for the
supervision and control of the offender.
1991,
c. 43, s. 4; 2005, c. 10, s. 34. |
|
672.69 (1)
The Minister and the Review Board are entitled to have access to any
dual status offender in respect of whom a placement decision has
been made, for the purpose of conducting a review of the sentence or
disposition imposed. |
Review
of placement decisions |
(2)
The Review Board shall hold a hearing as soon as is practicable to
review a placement decision, on application by the Minister or the
dual status offender who is the subject of the decision, where the
Review Board is satisfied that a significant change in circumstances
requires it. |
|
(3)
The Review Board may of its own motion hold a hearing to review a
placement decision after giving the Minister and the dual status
offender who is subject to it reasonable notice. |
Minister
shall be a party |
(4)
The Minister shall be a party in any proceedings relating to the
placement of a dual status offender.
1991,
c. 43, s. 4. |
|
672.7 (1)
Where the Minister or the Review Board intends to discharge a dual
status offender from custody, each shall give written notice to the
other indicating the time, place and conditions of the
discharge. |
|
(2) A
Review Board that makes a placement decision shall issue a warrant
of committal of the accused, which may be in Form 50.
1991,
c. 43, s. 4. |
|
672.71 (1)
Each day of detention of a dual status offender pursuant to a
placement decision or a custodial disposition shall be treated as a
day of service of the term of imprisonment, and the accused shall be
deemed, for all purposes, to be lawfully confined in a
prison. |
Disposition
takes precedence over probation orders |
(2)
When a dual status offender is convicted or discharged on the
conditions set out in a probation order made under section 730 in
respect of an offence but is not sentenced to a term of
imprisonment, the custodial disposition in respect of the accused
comes into force and, notwithstanding subsection 732.2(1), takes
precedence over any probation order made in respect of the
offence.
1991,
c. 43, s. 4; 1995, c. 22, s. 10. |
|
|
|
672.72 (1)
Any party may appeal against a disposition made by a court or a
Review Board, or a placement decision made by a Review Board, to the
court of appeal of the province where the disposition or placement
decision was made on any ground of appeal that raises a question of
law or fact alone or of mixed law and fact. |
Limitation
period for appeal |
(2) An
appellant shall give notice of an appeal against a disposition or
placement decision in the manner directed by the applicable rules of
court within fifteen days after the day on which the appellant
receives a copy of the placement decision or disposition and the
reasons for it or within any further time that the court of appeal,
or a judge of that court, may direct. |
Appeal
to be heard expeditiously |
(3)
The court of appeal shall hear an appeal against a disposition or
placement decision in or out of the regular sessions of the court,
as soon as practicable after the day on which the notice of appeal
is given, within any period that may be fixed by the court of
appeal, a judge of the court of appeal, or the rules of that
court.
1991,
c. 43, s. 4; 1997, c. 18, s. 88. |
|
672.73 (1) An
appeal against a disposition by a court or Review Board or placement
decision by a Review Board shall be based on a transcript of the
proceedings and any other evidence that the court of appeal finds
necessary to admit in the interests of justice. |
|
(2)
For the purpose of admitting additional evidence under this section,
subsections 683(1) and (2) apply, with such modifications as the
circumstances require.
1991,
c. 43, s. 4. |
|
672.74 (1)
The clerk of the court of appeal, on receiving notice of an appeal
against a disposition or placement decision, shall notify the court
or Review Board that made the disposition. |
Transmission
of records to court of appeal |
(2) On
receipt of notification under subsection (1), the court or Review
Board shall transmit to the court of appeal, before the time that
the appeal is to be heard or within any time that the court of
appeal or a judge of that court may direct,
(a) a copy of the disposition or
placement decision;
(b) all exhibits filed with the
court or Review Board or a copy of them; and
(c) all other material in its
possession respecting the hearing. |
Record
to be kept by court of appeal |
(3)
The clerk of the court of appeal shall keep the material referred to
in subsection (2) with the records of the court of appeal. |
Appellant
to provide transcript of evidence |
(4)
Unless it is contrary to an order of the court of appeal or any
applicable rules of court, the appellant shall provide the court of
appeal and the respondent with a transcript of any evidence taken
before a court or Review Board by a stenographer or a sound
recording apparatus, certified by the stenographer or in accordance
with subsection 540(6), as the case may be. |
|
(5) An
appeal shall not be dismissed by the court of appeal by reason only
that a person other than the appellant failed to comply with this
section.
1991,
c. 43, s. 4. |
|
672.75 The
filing of a notice of appeal against a disposition made under
paragraph 672.54(a) or
section 672.58 suspends the application of the disposition pending
the determination of the appeal.
1991,
c. 43, s. 4. |
|
672.76 (1)
Any party who gives notice to each of the other parties, within the
time and in the manner prescribed, may apply to a judge of the court
of appeal for an order under this section respecting a disposition
or placement decision that is under appeal. |
Discretionary
powers respecting suspension of dispositions |
(2) On
receipt of an application made pursuant to subsection (1) a judge of
the court of appeal may, if satisfied that the mental condition of
the accused justifies it,
(a) by order, direct that a
disposition made under paragraph 672.54(a) or section 672.58 be carried
out pending the determination of the appeal, notwithstanding section
672.75;
(b) by order, direct that the
application of a placement decision or a disposition made under
paragraph 672.54(b) or
(c) be suspended pending the
determination of the appeal;
(c) where the application of a
disposition is suspended pursuant to section 672.75 or paragraph
(b), make any other
disposition in respect of the accused that is appropriate in the
circumstances, other than a disposition under paragraph 672.54(a) or section 672.58, pending the
determination of the appeal;
(d) where the application of a
placement decision is suspended pursuant to an order made under
paragraph (b), make any
other placement decision that is appropriate in the circumstances,
pending the determination of the appeal; and
(e) give any directions that the
judge considers necessary for expediting the appeal. |
|
(3) A
judge of the court of appeal who makes an order under this section
shall send a copy of the order to each of the parties without
delay.
1991,
c. 43, s. 4. |
|
672.77 Where
the application of a disposition or placement decision appealed from
is suspended, a disposition, or in the absence of a disposition any
order for the interim release or detention of the accused, that was
in effect immediately before the disposition or placement decision
appealed from took effect, shall be in force pending the
determination of the appeal, subject to any disposition made under
paragraph 672.76(2)(c).
1991,
c. 43, s. 4. |
|
672.78 (1)
The court of appeal may allow an appeal against a disposition or
placement decision and set aside an order made by the court or
Review Board, where the court of appeal is of the opinion that
(a) it is unreasonable or cannot be
supported by the evidence;
(b) it is based on a wrong decision
on a question of law; or
(c) there was a miscarriage of
justice. |
|
(2)
The court of appeal may dismiss an appeal against a disposition or
placement decision where the court is of the opinion
(a) that paragraphs (1)(a), (b) and (c) do not apply; or
(b) that paragraph (1)(b) may apply, but the court finds
that no substantial wrong or miscarriage of justice has
occurred. |
Orders
that the court may make |
(3)
Where the court of appeal allows an appeal against a disposition or
placement decision, it may
(a) make any disposition under
section 672.54 or any placement decision that the Review Board could
have made;
(b) refer the matter back to the
court or Review Board for re-hearing, in whole or in part, in
accordance with any directions that the court of appeal considers
appropriate; or
(c) make any other order that
justice requires.
1991,
c. 43, s. 4; 1997, c. 18, s. 89. |
|
672.79 (1)
Where a court finds an accused to be a dangerous mentally disordered
accused and increases the cap applicable to the accused pursuant to
section 672.65, the accused may appeal to the court of appeal
against the increase in the cap on any ground of law or fact or
mixed law and fact. |
|
(2) On
an appeal by an accused under subsection (1), the court of appeal
may
(a) quash any increase in the cap
and impose any other cap that might have been imposed in respect of
the offence, or order a new hearing; or
(b) dismiss the appeal.
1991,
c. 43, s. 4. |
|
672.8 (1) The
Attorney General may appeal against the dismissal of an application
for a finding that the accused is a dangerous mentally disordered
accused on any ground of law. |
|
(2) On
an appeal by the Attorney General under subsection (1), the court of
appeal may
(a) allow the appeal, designate the
accused as a dangerous mentally disordered accused, and increase the
cap in respect of the offence to a maximum of life, or order a new
hearing; or
(b) dismiss the appeal. |
Part
XXI applies to appeal |
(3)
The provisions of Part XXI with respect to procedure on appeals
apply, with such modifications as the circumstances require, to
appeals under this section or section 672.79.
1991,
c. 43, s. 4. |
|
|
|
672.81 (1) A
Review Board shall hold a hearing not later than twelve months after
making a disposition and every twelve months thereafter for as long
as the disposition remains in force, to review any disposition that
it has made in respect of an accused, other than an absolute
discharge under paragraph 672.54(a). |
Additional
mandatory reviews in custody cases |
(2)
The Review Board shall hold a hearing to review any disposition made
under paragraph 672.54(b) or
(c) as soon as is
practicable after receiving notice that the person in charge of the
place where the accused is detained or directed to attend
(a) has increased the restrictions
on the liberty of the accused significantly for a period exceeding
seven days; or
(b) requests a review of the
disposition. |
|
(3)
Where an accused is detained in custody pursuant to a disposition
made under paragraph 672.54(c) and a sentence of imprisonment
is subsequently imposed on the accused in respect of another
offence, the Review Board shall hold a hearing to review the
disposition as soon as is practicable after receiving notice of that
sentence.
1991,
c. 43, s. 4. |
|
672.82 (1) A
Review Board may hold a hearing to review any of its dispositions at
any time, at the request of the accused or any other
party. |
|
(2)
Where a party requests a review of a disposition under this section,
the party is deemed to abandon any appeal against the disposition
taken under section 672.72.
1991,
c. 43, s. 4. |
|
672.83 (1) At
a hearing held pursuant to section 672.81 or 672.82, the Review
Board shall, except where a determination is made under subsection
672.48(1) that the accused is fit to stand trial, review the
disposition made in respect of the accused and make any other
disposition that the Review Board considers to be appropriate in the
circumstances. |
Certain
provisions applicable |
(2)
Subsection 672.52(3), and sections 672.64 and 672.71 to 672.82 apply
to a disposition made under this section, with such modifications as
the circumstances require.
1991,
c. 43, s. 4; 1997, c. 18, s. 90. |
|
672.84 The
Review Board shall hold a hearing to review a disposition under
section 672.81 or 672.82 in accordance with the procedures described
in section 672.5.
1991,
c. 43, s. 4. |
|
672.85 For
the purpose of bringing the accused in respect of whom a hearing
under section 672.81 is to be held before the Review Board, the
chairperson
(a) shall order the person having
custody of the accused to bring the accused to the hearing at the
time and place fixed for it; or
(b) may issue a summons or warrant
to compel the accused to appear at the time and place fixed for the
hearing, if the accused is not in custody.
1991,
c. 43, s. 4. |
|
|
|
672.851 (1)
The Review Board may, of its own motion, make a recommendation to
the court that has jurisdiction in respect of the offence charged
against an accused found unfit to stand trial to hold an inquiry to
determine whether a stay of proceedings should be ordered if
(a) the Review Board has held a
hearing under section 672.81 or 672.82 in respect of the accused;
and
(b) on the basis of any relevant
information, including disposition information within the meaning of
subsection 672.51(1) and an assessment report made under an
assessment ordered under paragraph 672.121(a), the Review Board is of the
opinion that
(i)
the accused remains unfit to stand trial and is not likely to ever
become fit to stand trial, and
(ii)
the accused does not pose a significant threat to the safety of the
public. |
|
(2) If
the Review Board makes a recommendation to the court to hold an
inquiry, the Review Board shall provide notice to the accused, the
prosecutor and any party who, in the opinion of the Review Board,
has a substantial interest in protecting the interests of the
accused. |
|
(3) As
soon as practicable after receiving the recommendation referred to
in subsection (1), the court may hold an inquiry to determine
whether a stay of proceedings should be ordered. |
Court
may act on own motion |
(4) A
court may, of its own motion, conduct an inquiry to determine
whether a stay of proceedings should be ordered if the court is of
the opinion, on the basis of any relevant information, that
(a) the accused remains unfit to
stand trial and is not likely to ever become fit to stand trial;
and
(b) the accused does not pose a
significant threat to the safety of the public. |
|
(5) If
the court holds an inquiry under subsection (3) or (4), it shall
order an assessment of the accused. |
|
(6)
Section 672.51 applies to an inquiry of the court under this
section. |
|
(7)
The court may, on completion of an inquiry under this section, order
a stay of proceedings if it is satisfied
(a) on the basis of clear
information, that the accused remains unfit to stand trial and is
not likely to ever become fit to stand trial;
(b) that the accused does not pose
a significant threat to the safety of the public; and
(c) that a stay is in the interests
of the proper administration of justice. |
Proper
administration of justice |
(8) In
order to determine whether a stay of proceedings is in the interests
of the proper administration of justice, the court shall consider
any submissions of the prosecutor, the accused and all other parties
and the following factors:
(a) the nature and seriousness of
the alleged offence;
(b) the salutary and deleterious
effects of the order for a stay of proceedings, including any effect
on public confidence in the administration of justice;
(c) the time that has elapsed since
the commission of the alleged offence and whether an inquiry has
been held under section 672.33 to decide whether sufficient evidence
can be adduced to put the accused on trial; and
(d) any other factor that the court
considers relevant. |
|
(9) If
a stay of proceedings is ordered by the court, any disposition made
in respect of the accused ceases to have effect. If a stay of
proceedings is not ordered, the finding of unfit to stand trial and
any disposition made in respect of the accused remain in force,
until the Review Board holds a disposition hearing and makes a
disposition in respect of the accused under section 672.83.
2005,
c. 22, s. 33. |
|
672.852 (1)
The Court of Appeal may allow an appeal against an order made under
subsection 672.851(7) for a stay of proceedings, if the Court of
Appeal is of the opinion that the order is unreasonable or cannot be
supported by the evidence. |
|
(2) If
the Court of Appeal allows the appeal, it may set aside the order
for a stay of proceedings and restore the finding that the accused
is unfit to stand trial and the disposition made in respect of the
accused.
2005,
c. 22, s. 33. |
|
Interprovincial
Transfers |
|
672.86 (1) An
accused who is detained in custody or directed to attend at a
hospital pursuant to a disposition made by a court or Review Board
under paragraph 672.54(c) or
a court under section 672.58 may be transferred to any other place
in Canada where
(a) the Review Board of the
province where the accused is detained or directed to attend
recommends a transfer for the purpose of the reintegration of the
accused into society or the recovery, treatment or custody of the
accused; and
(b) the Attorneys General of the
provinces to and from which the accused is to be transferred give
their consent. |
Transfer
where accused in custody |
(2)
Where an accused who is detained in custody is to be transferred, an
officer authorized by the Attorney General of the province where the
accused is being detained shall sign a warrant specifying the place
in Canada to which the accused is to be transferred. |
Transfer
where accused not in custody |
(3)
Where an accused who is not detained in custody is to be
transferred, the Review Board of the province where the accused is
directed to attend shall, by order,
(a) direct that the accused be
taken into custody and transferred pursuant to a warrant described
in subsection (2); or
(b) direct the accused to attend at
a specified place in Canada, subject to any conditions that the
Review Board considers appropriate.
1991,
c. 43, s. 4. |
|
672.87 A
warrant described in subsection 672.86(2) is sufficient
authority
(a) for any person who is
responsible for the custody of an accused to have the accused taken
into custody and conveyed to the person in charge of the place
specified in the warrant; and
(b) for the person specified in the
warrant to detain the accused in accordance with any disposition
made in respect of the accused under paragraph 672.54(c).
1991,
c. 43, s. 4. |
|
672.88 (1)
The Review Board of the province to which an accused is transferred
pursuant to section 672.86 has exclusive jurisdiction over the
accused, and may exercise the powers and shall perform the duties
mentioned in sections 672.5 and 672.81 to 672.83 as if that Review
Board had made the disposition in respect of the accused. |
|
(2)
Notwithstanding subsection (1), the Attorney General of the province
to which an accused is transferred may enter into an agreement
subject to this Act with the Attorney General of the province from
which the accused is transferred, enabling the Review Board of that
province to exercise the powers and perform the duties referred to
in subsection (1) in respect of the accused, in the circumstances
and subject to the terms and conditions set out in the
agreement.
1991,
c. 43, s. 4. |
|
672.89 (1)
Where an accused who is detained in custody pursuant to a
disposition made by a Review Board is transferred to another
province otherwise than pursuant to section 672.86, the Review Board
of the province from which the accused is transferred has exclusive
jurisdiction over the accused and may continue to exercise the
powers and shall continue to perform the duties mentioned in
sections 672.5 and 672.81 to 672.83. |
|
(2)
Notwithstanding subsection (1), the Attorneys General of the
provinces to and from which the accused is to be transferred as
described in that subsection may, after the transfer is made, enter
into an agreement subject to this Act, enabling the Review Board of
the province to which an accused is transferred to exercise the
powers and perform the duties referred to in subsection (1) in
respect of the accused, subject to the terms and conditions and in
the circumstances set out in the agreement.
1991,
c. 43, s. 4. |
|
Enforcement
of Orders and Regulations |
|
672.9 Any
warrant or process issued in relation to an assessment order or
disposition made in respect of an accused may be executed or served
in any place in Canada outside the province where the order or
disposition was made as if it had been issued in that province.
1991,
c. 43, s. 4; 1997, c. 18, s. 91. |
|
672.91 A
peace officer may arrest an accused without a warrant at any place
in Canada if the peace officer has reasonable grounds to believe
that the accused has contravened or wilfully failed to comply with
the disposition or any condition of it, or is about to do so.
1991,
c. 43, s. 4. |
|
672.92 (1) An
accused who is arrested pursuant to section 672.91 shall be taken
before a justice having jurisdiction in the territorial division in
which the accused is arrested, without unreasonable delay and in any
event within twenty-four hours after the arrest. |
|
(2) If
a justice described in subsection (1) is not available within
twenty-four hours after the arrest, the accused shall be taken
before a justice as soon as is practicable.
1991,
c. 43, s. 4. |
|
672.93 (1) A
justice shall release an accused who is brought before the justice
pursuant to section 672.92 unless the justice is satisfied that
there are reasonable grounds to believe that the accused has
contravened or failed to comply with a disposition. |
Order
of justice pending decision of Review Board |
(2) If
the justice is satisfied that there are reasonable grounds to
believe that the accused has contravened or failed to comply with a
disposition, the justice may make an order that is appropriate in
the circumstances in relation to the accused, pending a hearing of
the Review Board of the province where the disposition was made, and
shall cause notice of that order to be given to that Review
Board.
1991,
c. 43, s. 4. |
|
672.94 Where
a Review Board receives a notice given pursuant to subsection
672.93(2), it may exercise the powers and shall perform the duties
mentioned in sections 672.5 and 672.81 to 672.83 as if the Review
Board were reviewing a disposition.
1991,
c. 43, s. 4. |
|
672.95 The
Governor in Council may make regulations
(a) prescribing anything that may
be prescribed under this Part; and
(b) generally to carry out the
purposes and provisions of this Part.
1991,
c. 43, s. 4. |
|
PART
XXI
APPEALS — INDICTABLE
OFFENCES |
|
|
|
673. In this
Part, |
“court of appeal”
« cour d’appel » |
“court
of appeal” means the court of appeal, as defined by the definition
“court of appeal” in section 2, for the province or territory in
which the trial of a person by indictment is held; |
“indictment”
« acte
d’accusation » |
“indictment” includes an
information or charge in respect of which a person has been tried
for an indictable offence under Part XIX; |
“registrar”
« registraire » |
“registrar” means the
registrar or clerk of the court of appeal; |
“sentence”
« sentence », « peine » ou « condamnation » |
*“sentence”
includes
(a) a declaration made under
subsection 199(3),
(b) an order made under subsection
109(1) or 110(1), section 161, subsection 164.2(1), 194(1) or 259(1)
or (2), section 261 or 462.37, subsection 491.1(2), 730(1) or 737(3)
or (5) or section 738, 739, 742.1, 742.3, 743.6, 745.4, 745.5 or
747.1,
(c) a disposition made under
section 731 or 732 or subsection 732.2(3) or (5), 742.4(3) or
742.6(9), and
(d) an order made under subsection
16(1) of the Controlled Drugs and
Substances Act;
* [Note:
Section 747.1 not in force.] |
“trial court”
« tribunal de première
instance » |
“trial
court” means the court by which an accused was tried and includes a
judge or a provincial court judge acting under Part XIX.
R.S.,
1985, c. C-46, s. 673; R.S., 1985, c. 27 (1st Supp.), ss. 138, 203,
c. 23 (4th Supp.), s. 4, c. 42 (4th Supp.), s. 4; 1992, c. 1, s. 58;
1993, c. 45, s. 10; 1995, c. 22, s. 5, c. 39, ss. 155, 190; 1996, c.
19, s. 74; 1999, c. 5, ss. 25, 51, c. 25, ss. 13, 31(Preamble);
2002, c. 13, s. 63. |
|
|
|
674. No
proceedings other than those authorized by this Part and Part XXVI
shall be taken by way of appeal in proceedings in respect of
indictable offences.
R.S.,
c. C-34, s. 602. |
|
675. (1) A
person who is convicted by a trial court in proceedings by
indictment may appeal to the court of appeal
(a) against his conviction
(i) on
any ground of appeal that involves a question of law alone,
(ii)
on any ground of appeal that involves a question of fact or a
question of mixed law and fact, with leave of the court of appeal or
a judge thereof or on the certificate of the trial judge that the
case is a proper case for appeal, or
(iii)
on any ground of appeal not mentioned in subparagraph (i) or (ii)
that appears to the court of appeal to be a sufficient ground of
appeal, with leave of the court of appeal; or
(b) against the sentence passed by
the trial court, with leave of the court of appeal or a judge
thereof unless that sentence is one fixed by law. |
Summary
conviction appeals |
(1.1)
A person may appeal, pursuant to subsection (1), with leave of the
court of appeal or a judge of that court, to that court in respect
of a summary conviction or a sentence passed with respect to a
summary conviction as if the summary conviction had been a
conviction in proceedings by indictment if
(a) there has not been an appeal
with respect to the summary conviction;
(b) the summary conviction offence
was tried with an indictable offence; and
(c) there is an appeal in respect
of the indictable offence. |
Appeal
against absolute term in excess of 10 years |
(2) A
person who has been convicted of second degree murder and sentenced
to imprisonment for life without eligibility for parole for a
specified number of years in excess of ten may appeal to the court
of appeal against the number of years in excess of ten of his
imprisonment without eligibility for parole. |
Appeal
against section 743.6 order |
(2.1)
A person against whom an order under section 743.6 has been made may
appeal to the court of appeal against the order. |
|
(2.2)
A person who was under the age of eighteen at the time of the
commission of the offence for which the person was convicted of
first degree murder or second degree murder and sentenced to
imprisonment for life without eligibility for parole until the
person has served the period specified by the judge presiding at the
trial may appeal to the court of appeal against the number of years
in excess of the minimum number of years of imprisonment without
eligibility for parole that are required to be served in respect of
that person’s case. |
Appeals
against verdicts based on mental disorder |
(3)
Where a verdict of not criminally responsible on account of mental
disorder or unfit to stand trial is rendered in respect of a person,
that person may appeal to the court of appeal against that verdict
on any ground of appeal mentioned in subparagraph (1)(a)(i), (ii) or (iii) and subject
to the conditions described therein. |
Where
application for leave to appeal refused by judge |
(4)
Where a judge of the court of appeal refuses leave to appeal under
this section otherwise than under paragraph (1)(b), the appellant may, by filing
notice in writing with the court of appeal within seven days after
the refusal, have the application for leave to appeal determined by
the court of appeal.
R.S.,
1985, c. C-46, s. 675; 1991, c. 43, s. 9; 1995, c. 42, s. 73; 1997,
c. 18, s. 92; 1999, c. 31, s. 68; 2002, c. 13, s. 64. |
|
676. (1) The
Attorney General or counsel instructed by him for the purpose may
appeal to the court of appeal
(a) against a judgment or verdict
of acquittal or a verdict of not criminally responsible on account
of mental disorder of a trial court in proceedings by indictment on
any ground of appeal that involves a question of law alone;
(b) against an order of a superior
court of criminal jurisdiction that quashes an indictment or in any
manner refuses or fails to exercise jurisdiction on an
indictment;
(c) against an order of a trial
court that stays proceedings on an indictment or quashes an
indictment; or
(d) with leave of the court of
appeal or a judge thereof, against the sentence passed by a trial
court in proceedings by indictment, unless that sentence is one
fixed by law. |
Summary
conviction appeals |
(1.1)
The Attorney General or counsel instructed by the Attorney General
may appeal, pursuant to subsection (1), with leave of the court of
appeal or a judge of that court, to that court in respect of a
summary conviction or a sentence passed with respect to a summary
conviction as if the summary conviction had been a conviction in
proceedings by indictment if
(a) there has not been an appeal
with respect to the summary conviction;
(b) the summary conviction offence
was tried with an indictable offence; and
(c) there is an appeal in respect
of the indictable offence. |
|
(2)
For the purposes of this section, a judgment or verdict of acquittal
includes an acquittal in respect of an offence specifically charged
where the accused has, on the trial thereof, been convicted or
discharged under section 730 of any other offence. |
Appeal
against verdict of unfit to stand trial |
(3)
The Attorney General or counsel instructed by the Attorney General
for the purpose may appeal to the court of appeal against a verdict
that an accused is unfit to stand trial, on any ground of appeal
that involves a question of law alone. |
Appeal
against ineligible parole period |
(4)
The Attorney General or counsel instructed by him for the purpose
may appeal to the court of appeal in respect of a conviction for
second degree murder, against the number of years of imprisonment
without eligibility for parole, being less than twenty-five, that
has been imposed as a result of that conviction. |
Appeal
against decision not to make section 743.6 order |
(5)
The Attorney General or counsel instructed by the Attorney General
for the purpose may appeal to the court of appeal against the
decision of the court not to make an order under section 743.6.
R.S.,
1985, c. C-46, s. 676; R.S., 1985, c. 27 (1st Supp.), s. 139, c. 1
(4th Supp.), s. 18(F); 1991, c. 43, s. 9; 1995, c. 22, s. 10, c. 42,
s. 74; 1997, c. 18, s. 93; 2002, c. 13, s. 65. |
|
676.1 A party
who is ordered to pay costs may, with leave of the court of appeal
or a judge of a court of appeal, appeal the order or the amount of
costs ordered.
1997,
c. 18, s. 94. |
|
677. Where a
judge of the court of appeal expresses an opinion dissenting from
the judgment of the court, the judgment of the court shall specify
any grounds in law on which the dissent, in whole or in part, is
based.
R.S.,
1985, c. C-46, s. 677; 1994, c. 44, s. 67. |
|
|
|
678. (1) An
appellant who proposes to appeal to the court of appeal or to obtain
the leave of that court to appeal shall give notice of appeal or
notice of his application for leave to appeal in such manner and
within such period as may be directed by rules of court. |
|
(2)
The court of appeal or a judge thereof may at any time extend the
time within which notice of appeal or notice of an application for
leave to appeal may be given.
R.S.,
c. C-34, s. 607; 1972, c. 13, s. 53; 1974-75-76, c. 105, s.
16. |
|
678.1 Where a
respondent cannot be found after reasonable efforts have been made
to serve the respondent with a notice of appeal or notice of an
application for leave to appeal, service of the notice of appeal or
the notice of the application for leave to appeal may be effected
substitutionally in the manner and within the period directed by a
judge of the court of appeal.
R.S.,
1985, c. 27 (1st Supp.), s. 140; 1992, c. 1, s. 60(F). |
|
679. (1) A
judge of the court of appeal may, in accordance with this section,
release an appellant from custody pending the determination of his
appeal if,
(a) in the case of an appeal to the
court of appeal against conviction, the appellant has given notice
of appeal or, where leave is required, notice of his application for
leave to appeal pursuant to section 678;
(b) in the case of an appeal to the
court of appeal against sentence only, the appellant has been
granted leave to appeal; or
(c) in the case of an appeal or an
application for leave to appeal to the Supreme Court of Canada, the
appellant has filed and served his notice of appeal or, where leave
is required, his application for leave to appeal. |
Notice
of application for release |
(2)
Where an appellant applies to a judge of the court of appeal to be
released pending the determination of his appeal, he shall give
written notice of the application to the prosecutor or to such other
person as a judge of the court of appeal directs. |
Circumstances
in which appellant may be released |
(3) In
the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of
appeal may order that the appellant be released pending the
determination of his appeal if the appellant establishes that
(a) the appeal or application for
leave to appeal is not frivolous;
(b) he will surrender himself into
custody in accordance with the terms of the order; and
(c) his detention is not necessary
in the public interest. |
|
(4) In
the case of an appeal referred to in paragraph (1)(b), the judge of the court of
appeal may order that the appellant be released pending the
determination of his appeal or until otherwise ordered by a judge of
the court of appeal if the appellant establishes that
(a) the appeal has sufficient merit
that, in the circumstances, it would cause unnecessary hardship if
he were detained in custody;
(b) he will surrender himself into
custody in accordance with the terms of the order; and
(c) his detention is not necessary
in the public interest. |
|
(5)
Where the judge of the court of appeal does not refuse the
application of the appellant, he shall order that the appellant be
released
(a) on his giving an undertaking to
the judge, without conditions or with such conditions as the judge
directs, to surrender himself into custody in accordance with the
order, or
(b) on his entering into a
recognizance
(i)
with one or more sureties,
(ii)
with deposit of money or other valuable security,
(iii)
with both sureties and deposit, or
(iv)
with neither sureties nor deposit,
in
such amount, subject to such conditions, if any, and before such
justice as the judge directs,
(c) [Repealed, R.S., 1985, c. 27
(1st Supp.), s. 141]
and the
person having the custody of the appellant shall, where the
appellant complies with the order, forthwith release the
appellant. |
|
(5.1)
The judge may direct that the undertaking or recognizance referred
to in subsection (5) include the conditions described in subsections
515(4), (4.1) and (4.2) that the judge considers
desirable. |
Application
of certain provisions of section 525 |
(6)
The provisions of subsections 525(5), (6) and (7) apply with such
modifications as the circumstances require in respect of a person
who has been released from custody under subsection (5) of this
section. |
Release
or detention pending hearing of reference |
(7)
If, with respect to any person, the Minister of Justice gives a
direction or makes a reference under section 696.3, this section
applies to the release or detention of that person pending the
hearing and determination of the reference as though that person
were an appellant in an appeal described in paragraph (1)(a). |
Release
or detention pending new trial or new hearing |
(7.1)
Where, with respect to any person, the court of appeal or the
Supreme Court of Canada orders a new trial, section 515 or 522, as
the case may be, applies to the release or detention of that person
pending the new trial or new hearing as though that person were
charged with the offence for the first time, except that the powers
of a justice under section 515 or of a judge under section 522 are
exercised by a judge of the court of appeal. |
Application
to appeals on summary conviction proceedings |
(8)
This section applies to applications for leave to appeal and appeals
to the Supreme Court of Canada in summary conviction
proceedings. |
Form
of undertaking or recognizance |
(9) An
undertaking under this section may be in Form 12 and a recognizance
under this section may be in Form 32. |
Directions
for expediting appeal, new trial, etc. |
(10) A
judge of the court of appeal, where on the application of an
appellant he does not make an order under subsection (5) or where he
cancels an order previously made under this section, or a judge of
the Supreme Court of Canada on application by an appellant in the
case of an appeal to that Court, may give such directions as he
thinks necessary for expediting the hearing of the appellant’s
appeal or for expediting the new trial or new hearing or the hearing
of the reference, as the case may be.
R.S.,
1985, c. C-46, s. 679; R.S., 1985, c. 27 (1st Supp.), s. 141; 1997,
c. 18, s. 95; 1999, c. 25, s. 14(Preamble); 2002, c. 13, s.
66. |
|
680. (1) A
decision made by a judge under section 522 or subsection 524(4) or
(5) or a decision made by a judge of the court of appeal under
section 261 or 679 may, on the direction of the chief justice or
acting chief justice of the court of appeal, be reviewed by that
court and that court may, if it does not confirm the decision,
(a) vary the decision; or
(b) substitute such other decision
as, in its opinion, should have been made. |
|
(2) On
consent of the parties, the powers of the court of appeal under
subsection (1) may be exercised by a judge of that court. |
|
(3) A
decision as varied or substituted under this section shall have
effect and may be enforced in all respects as though it were the
decision originally made.
R.S.,
1985, c. C-46, s. 680; R.S., 1985, c. 27 (1st Supp.), s. 142; 1994,
c. 44, s. 68. |
|
681.
[Repealed, 1991, c. 43, s. 9] |
|
682. (1)
Where, under this Part, an appeal is taken or an application for
leave to appeal is made, the judge or provincial court judge who
presided at the trial shall, at the request of the court of appeal
or a judge thereof, in accordance with rules of court, furnish it or
him with a report on the case or on any matter relating to the case
that is specified in the request. |
|
(2) A
copy or transcript of
(a) the evidence taken at the
trial,
(b) any charge to the jury and any
objections that were made to a charge to the jury,
(c) the reasons for judgment, if
any, and
(d) the addresses of the prosecutor
and the accused, if a ground for the appeal is based on either of
the addresses,
shall be
furnished to the court of appeal, except in so far as it is
dispensed with by order of a judge of that court.
(3)
[Repealed, 1997, c. 18, s. 96] |
Copies
to interested parties |
(4) A
party to an appeal is entitled to receive, on payment of any charges
that are fixed by rules of court, a copy or transcript of any
material that is prepared under subsections (1) and (2). |
Copy
for Minister of Justice |
(5)
The Minister of Justice is entitled, on request, to receive a copy
or transcript of any material that is prepared under subsections (1)
and (2).
R.S.,
1985, c. C-46, s. 682; R.S., 1985, c. 27 (1st Supp.), ss. 143, 203;
1997, c. 18, s. 96. |
|
683. (1) For
the purposes of an appeal under this Part, the court of appeal may,
where it considers it in the interests of justice,
(a) order the production of any
writing, exhibit or other thing connected with the proceedings;
(b) order any witness who would
have been a compellable witness at the trial, whether or not he was
called at the trial,
(i) to
attend and be examined before the court of appeal, or
(ii)
to be examined in the manner provided by rules of court before a
judge of the court of appeal, or before any officer of the court of
appeal or justice of the peace or other person appointed by the
court of appeal for the purpose;
(c) admit, as evidence, an
examination that is taken under subparagraph (b)(ii);
(d) receive the evidence, if
tendered, of any witness, including the appellant, who is a
competent but not compellable witness;
(e) order that any question arising
on the appeal that
(i)
involves prolonged examination of writings or accounts, or
scientific or local investigation, and
(ii)
cannot in the opinion of the court of appeal conveniently be
inquired into before the court of appeal,
be
referred for inquiry and report, in the manner provided by rules of
court, to a special commissioner appointed by the court of
appeal;
(f) act on the report of a
commissioner who is appointed under paragraph (e) in so far as the court of
appeal thinks fit to do so; and
(g) amend the indictment, unless it
is of the opinion that the accused has been misled or prejudiced in
his defence or appeal. |
Parties
entitled to adduce evidence and be heard |
(2) In
proceedings under this section, the parties or their counsel are
entitled to examine or cross-examine witnesses and, in an inquiry
under paragraph (1)(e), are
entitled to be present during the inquiry, to adduce evidence and to
be heard. |
Virtual
presence of parties |
(2.1)
In proceedings under this section, the court of appeal may order
that the presence of a party may be by any technological means
satisfactory to the court that permits the court and the other party
or parties to communicate simultaneously. |
Virtual
presence of witnesses |
(2.2)
Sections 714.1 to 714.8 apply, with any modifications that the
circumstances require, to examinations and cross-examinations of
witnesses under this section. |
|
(3) A
court of appeal may exercise, in relation to proceedings in the
court, any powers not mentioned in subsection (1) that may be
exercised by the court on appeals in civil matters, and may issue
any process that is necessary to enforce the orders or sentences of
the court, but no costs shall be allowed to the appellant or
respondent on the hearing and determination of an appeal or on any
proceedings preliminary or incidental thereto. |
|
(4)
Any process that is issued by the court of appeal under this section
may be executed anywhere in Canada. |
Power
to order suspension |
(5)
Where an appeal or an application for leave to appeal has been filed
in the court of appeal, that court, or a judge of that court, may,
where it considers it to be in the interests of justice, order
that
(a) any obligation to pay a
fine,
(b) any order of forfeiture or
disposition of forfeited property,
(c) any order to make restitution
under section 738 or 739,
(d) any obligation to pay a victim
surcharge under section 737, or
(e) the conditions prescribed in a
probation order under subsections 732.1(2) and (3)
be
suspended until the appeal has been determined. |
Revocation
of suspension order |
(6)
The court of appeal may revoke any order it makes under subsection
(5) where it considers the revocation to be in the interests of
justice.
R.S.,
1985, c. C-46, s. 683; R.S., 1985, c. 27 (1st Supp.), s. 144, c. 23
(4th Supp.), s. 5; 1995, c. 22, s. 10; 1997, c. 18, ss. 97, 141;
1999, c. 25, s. 15(Preamble); 2002, c. 13, s. 67. |
|
684. (1) A
court of appeal or a judge of that court may, at any time, assign
counsel to act on behalf of an accused who is a party to an appeal
or to proceedings preliminary or incidental to an appeal where, in
the opinion of the court or judge, it appears desirable in the
interests of justice that the accused should have legal assistance
and where it appears that the accused has not sufficient means to
obtain that assistance. |
Counsel
fees and disbursements |
(2)
Where counsel is assigned pursuant to subsection (1) and legal aid
is not granted to the accused pursuant to a provincial legal aid
program, the fees and disbursements of counsel shall be paid by the
Attorney General who is the appellant or respondent, as the case may
be, in the appeal. |
Taxation
of fees and disbursements |
(3)
Where subsection (2) applies and counsel and the Attorney General
cannot agree on fees or disbursements of counsel, the Attorney
General or the counsel may apply to the registrar of the court of
appeal and the registrar may tax the disputed fees and
disbursements.
R.S.,
1985, c. C-46, s. 684; R.S., 1985, c. 34 (3rd Supp.), s.
9. |
|
685. Where it
appears to the registrar that a notice of appeal, which purports to
be on a ground of appeal that involves a question of law alone, does
not show a substantial ground of appeal, the registrar may refer the
appeal to the court of appeal for summary determination, and, where
an appeal is referred under this section, the court of appeal may,
if it considers that the appeal is frivolous or vexatious and can be
determined without being adjourned for a full hearing, dismiss the
appeal summarily, without calling on any person to attend the
hearing or to appear for the respondent on the hearing.
R.S.,
c. C-34, s. 612. |
|
Powers
of the Court of Appeal |
|
686. (1) On
the hearing of an appeal against a conviction or against a verdict
that the appellant is unfit to stand trial or not criminally
responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it
is of the opinion that
(i)
the verdict should be set aside on the ground that it is
unreasonable or cannot be supported by the evidence,
(ii)
the judgment of the trial court should be set aside on the ground of
a wrong decision on a question of law, or
(iii)
on any ground there was a miscarriage of justice;
(b) may dismiss the appeal
where
(i)
the court is of the opinion that the appellant, although he was not
properly convicted on a count or part of the indictment, was
properly convicted on another count or part of the indictment,
(ii)
the appeal is not decided in favour of the appellant on any ground
mentioned in paragraph (a),
(iii)
notwithstanding that the court is of the opinion that on any ground
mentioned in subparagraph (a)(ii) the appeal might be decided
in favour of the appellant, it is of the opinion that no substantial
wrong or miscarriage of justice has occurred, or
(iv)
notwithstanding any procedural irregularity at trial, the trial
court had jurisdiction over the class of offence of which the
appellant was convicted and the court of appeal is of the opinion
that the appellant suffered no prejudice thereby;
(c) may refuse to allow the appeal
where it is of the opinion that the trial court arrived at a wrong
conclusion respecting the effect of a special verdict, may order the
conclusion to be recorded that appears to the court to be required
by the verdict and may pass a sentence that is warranted in law in
substitution for the sentence passed by the trial court; or
(d) may set aside a conviction and
find the appellant unfit to stand trial or not criminally
responsible on account of mental disorder and may exercise any of
the powers of the trial court conferred by or referred to in section
672.45 in any manner deemed appropriate to the court of appeal in
the circumstances.
(e) [Repealed, 1991, c. 43, s.
9] |
|
(2)
Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction
and
(a) direct a judgment or verdict of
acquittal to be entered; or
(b) order a new trial. |
|
(3)
Where a court of appeal dismisses an appeal under subparagraph
(1)(b)(i), it may substitute
the verdict that in its opinion should have been found and
(a) affirm the sentence passed by
the trial court; or
(b) impose a sentence that is
warranted in law or remit the matter to the trial court and direct
the trial court to impose a sentence that is warranted in
law. |
|
(4) If
an appeal is from an acquittal or verdict that the appellant or
respondent was unfit to stand trial or not criminally responsible on
account of mental disorder, the court of appeal may
(a) dismiss the appeal; or
(b) allow the appeal, set aside the
verdict and
(i)
order a new trial, or
(ii)
except where the verdict is that of a court composed of a judge and
jury, enter a verdict of guilty with respect to the offence of
which, in its opinion, the accused should have been found guilty but
for the error in law, and pass a sentence that is warranted in law,
or remit the matter to the trial court and direct the trial court to
impose a sentence that is warranted in law. |
|
(5)
Subject to subsection (5.01), if an appeal is taken in respect of
proceedings under Part XIX and the court of appeal orders a new
trial under this Part, the following provisions apply:
(a) if the accused, in his notice
of appeal or notice of application for leave to appeal, requested
that the new trial, if ordered, should be held before a court
composed of a judge and jury, the new trial shall be held
accordingly;
(b) if the accused, in his notice
of appeal or notice of application for leave to appeal, did not
request that the new trial, if ordered, should be held before a
court composed of a judge and jury, the new trial shall, without
further election by the accused, be held before a judge or
provincial court judge, as the case may be, acting under Part XIX,
other than a judge or provincial court judge who tried the accused
in the first instance, unless the court of appeal directs that the
new trial be held before the judge or provincial court judge who
tried the accused in the first instance;
(c) if the court of appeal orders
that the new trial shall be held before a court composed of a judge
and jury, the new trial shall be commenced by an indictment in
writing setting forth the offence in respect of which the new trial
was ordered; and
(d) notwithstanding paragraph
(a), if the conviction
against which the accused appealed was for an offence mentioned in
section 553 and was made by a provincial court judge, the new trial
shall be held before a provincial court judge acting under Part XIX,
other than the provincial court judge who tried the accused in the
first instance, unless the court of appeal directs that the new
trial be held before the provincial court judge who tried the
accused in the first instance. |
New
trial under Part XIX — Nunavut |
(5.01)
If an appeal is taken in respect of proceedings under Part XIX and
the Court of Appeal of Nunavut orders a new trial under Part XXI,
the following provisions apply:
(a) if the accused, in the notice
of appeal or notice of application for leave to appeal, requested
that the new trial, if ordered, should be held before a court
composed of a judge and jury, the new trial shall be held
accordingly;
(b) if the accused, in the notice
of appeal or notice of application for leave to appeal, did not
request that the new trial, if ordered, should be held before a
court composed of a judge and jury, the new trial shall, without
further election by the accused, and without a further preliminary
inquiry, be held before a judge, acting under Part XIX, other than a
judge who tried the accused in the first instance, unless the Court
of Appeal of Nunavut directs that the new trial be held before the
judge who tried the accused in the first instance;
(c) if the Court of Appeal of
Nunavut orders that the new trial shall be held before a court
composed of a judge and jury, the new trial shall be commenced by an
indictment in writing setting forth the offence in respect of which
the new trial was ordered; and
(d) despite paragraph (a), if the conviction against
which the accused appealed was for an indictable offence mentioned
in section 553, the new trial shall be held before a judge acting
under Part XIX, other than the judge who tried the accused in the
first instance, unless the Court of Appeal of Nunavut directs that
the new trial be held before the judge who tried the accused in the
first instance. |
Election
if new trial a jury trial |
(5.1)
Subject to subsection (5.2), if a new trial ordered by the court of
appeal is to be held before a court composed of a judge and
jury,
(a) the accused may, with the
consent of the prosecutor, elect to have the trial heard before a
judge without a jury or a provincial court judge;
(b) the election shall be deemed to
be a re-election within the meaning of subsection 561(5); and
(c) subsection 561(5) applies, with
such modifications as the circumstances require, to the
election. |
Election
if new trial a jury trial — Nunavut |
(5.2)
If a new trial ordered by the Court of Appeal of Nunavut is to be
held before a court composed of a judge and jury, the accused may,
with the consent of the prosecutor, elect to have the trial heard
before a judge without a jury. The election shall be deemed to be a
re-election within the meaning of subsection 561.1(1), and
subsection 561.1(6) applies, with any modifications that the
circumstances require, to the election. |
Where
appeal allowed against verdict of unfit to stand trial |
(6)
Where a court of appeal allows an appeal against a verdict that the
accused is unfit to stand trial, it shall, subject to subsection
(7), order a new trial. |
Appeal
court may set aside verdict of unfit to stand trial |
(7)
Where the verdict that the accused is unfit to stand trial was
returned after the close of the case for the prosecution, the court
of appeal may, notwithstanding that the verdict is proper, if it is
of the opinion that the accused should have been acquitted at the
close of the case for the prosecution, allow the appeal, set aside
the verdict and direct a judgment or verdict of acquittal to be
entered. |
|
(8)
Where a court of appeal exercises any of the powers conferred by
subsection (2), (4), (6) or (7), it may make any order, in addition,
that justice requires.
R.S.,
1985, c. C-46, s. 686; R.S., 1985, c. 27 (1st Supp.), ss. 145, 203;
1991, c. 43, s. 9; 1997, c. 18, s. 98; 1999, c. 3, s. 52, c. 5, s.
26. |
|
687. (1)
Where an appeal is taken against sentence, the court of appeal
shall, unless the sentence is one fixed by law, consider the fitness
of the sentence appealed against, and may on such evidence, if any,
as it thinks fit to require or to receive,
(a) vary the sentence within the
limits prescribed by law for the offence of which the accused was
convicted; or
(b) dismiss the appeal. |
|
(2) A
judgment of a court of appeal that varies the sentence of an accused
who was convicted has the same force and effect as if it were a
sentence passed by the trial court.
R.S.,
c. C-34, s. 614. |
|
688. (1)
Subject to subsection (2), an appellant who is in custody is
entitled, if he desires, to be present at the hearing of the
appeal. |
Appellant
represented by counsel |
(2) An
appellant who is in custody and who is represented by counsel is not
entitled to be present
(a) at the hearing of the appeal,
where the appeal is on a ground involving a question of law
alone,
(b) on an application for leave to
appeal, or
(c) on any proceedings that are
preliminary or incidental to an appeal,
unless
rules of court provide that he is entitled to be present or the
court of appeal or a judge thereof gives him leave to be
present. |
|
(2.1)
In the case of an appellant who is in custody and who is entitled to
be present at any proceedings on an appeal, the court may order
that, instead of the appellant personally appearing,
(a) at an application for leave to
appeal or at any proceedings that are preliminary or incidental to
an appeal, the appellant appear by means of any suitable
telecommunication device, including telephone, that is satisfactory
to the court; and
(b) at the hearing of the appeal,
if the appellant has access to legal advice, he or she appear by
means of closed-circuit television or any other means that permits
the court and all parties to engage in simultaneous visual and oral
communication. |
Argument
may be oral or in writing |
(3) An
appellant may present his case on appeal and his argument in writing
instead of orally, and the court of appeal shall consider any case
of argument so presented. |
Sentence
in absence of appellant |
(4) A
court of appeal may exercise its power to impose sentence
notwithstanding that the appellant is not present.
R.S.,
1985, c. C-46, s. 688; 2002, c. 13, s. 68. |
|
689. (1) If
the trial court makes an order for compensation or for the
restitution of property under section 738 or 739 or an order of
forfeiture of property under subsection 164.2(1) or 462.37(1), the
operation of the order is suspended
(a) until the expiration of the
period prescribed by rules of court for the giving of notice of
appeal or of notice of application for leave to appeal, unless the
accused waives an appeal; and
(b) until the appeal or application
for leave to appeal has been determined, where an appeal is taken or
application for leave to appeal is made. |
Annulling
or varying order |
(2)
The court of appeal may by order annul or vary an order made by the
trial court with respect to compensation or the restitution of
property within the limits prescribed by the provision under which
the order was made by the trial court, whether or not the conviction
is quashed.
R.S.,
1985, c. C-46, s. 689; R.S., 1985, c. 42 (4th Supp.), s. 5; 1995, c.
22, s. 10; 2002, c. 13, s. 69. |
|
690.
[Repealed, 2002, c. 13, s. 70] |
|
Appeals
to the Supreme Court of Canada |
|
691. (1) A
person who is convicted of an indictable offence and whose
conviction is affirmed by the court of appeal may appeal to the
Supreme Court of Canada
(a) on any question of law on which
a judge of the court of appeal dissents; or
(b) on any question of law, if
leave to appeal is granted by the Supreme Court of Canada. |
Appeal
where acquittal set aside |
(2) A
person who is acquitted of an indictable offence other than by
reason of a verdict of not criminally responsible on account of
mental disorder and whose acquittal is set aside by the court of
appeal may appeal to the Supreme Court of Canada
(a) on any question of law on which
a judge of the court of appeal dissents;
(b) on any question of law, if the
Court of Appeal enters a verdict of guilty against the person;
or
(c) on any question of law, if
leave to appeal is granted by the Supreme Court of Canada.
R.S.,
1985, c. C-46, s. 691; R.S., 1985, c. 34 (3rd Supp.), s. 10; 1991,
c. 43, s. 9; 1997, c. 18, s. 99. |
|
692. (1) A
person who has been found not criminally responsible on account of
mental disorder and
(a) whose verdict is affirmed on
that ground by the court of appeal, or
(b) against whom a verdict of
guilty is entered by the court of appeal under subparagraph
686(4)(b)(ii),
may
appeal to the Supreme Court of Canada. |
Appeal
against affirmation of verdict of unfit to stand trial |
(2) A
person who is found unfit to stand trial and against whom that
verdict is affirmed by the court of appeal may appeal to the Supreme
Court of Canada. |
|
(3) An
appeal under subsection (1) or (2) may be
(a) on any question of law on which
a judge of the court of appeal dissents; or
(b) on any question of law, if
leave to appeal is granted by the Supreme Court of Canada.
R.S.,
1985, c. C-46, s. 692; R.S., 1985, c. 34 (3rd Supp.), s. 11; 1991,
c. 43, s. 9. |
|
693. (1)
Where a judgment of a court of appeal sets aside a conviction
pursuant to an appeal taken under section 675 or dismisses an appeal
taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3), the
Attorney General may appeal to the Supreme Court of Canada
(a) on any question of law on which
a judge of the court of appeal dissents; or
(b) on any question of law, if
leave to appeal is granted by the Supreme Court of Canada. |
|
(2)
Where leave to appeal is granted under paragraph (1)(b), the Supreme Court of Canada
may impose such terms as it sees fit.
R.S.,
1985, c. C-46, s. 693; R.S., 1985, c. 27 (1st Supp.), s. 146, c. 34
(3rd Supp.), s. 12. |
|
694. No
appeal lies to the Supreme Court of Canada unless notice of appeal
in writing is served by the appellant on the respondent in
accordance with the Supreme Court
Act.
R.S.,
1985, c. C-46, s. 694; R.S., 1985, c. 34 (3rd Supp.), s.
13. |
|
694.1 (1) The
Supreme Court of Canada or a judge thereof may, at any time, assign
counsel to act on behalf of an accused who is a party to an appeal
to the Court or to proceedings preliminary or incidental to an
appeal to the Court where, in the opinion of the Court or judge, it
appears desirable in the interests of justice that the accused
should have legal assistance and where it appears that the accused
has not sufficient means to obtain that assistance. |
Counsel
fees and disbursements |
(2)
Where counsel is assigned pursuant to subsection (1) and legal aid
is not granted to the accused pursuant to a provincial legal aid
program, the fees and disbursements of counsel shall be paid by the
Attorney General who is the appellant or respondent, as the case may
be, in the appeal. |
Taxation
of fees and disbursements |
(3)
Where subsection (2) applies and counsel and the Attorney General
cannot agree on fees or disbursements of counsel, the Attorney
General or the counsel may apply to the Registrar of the Supreme
Court of Canada, and the Registrar may tax the disputed fees and
disbursements.
R.S.,
1985, c. 34 (3rd Supp.), s. 13; 1992, c. 1, s. 60(F). |
|
694.2 (1)
Subject to subsection (2), an appellant who is in custody and who
desires to be present at the hearing of the appeal before the
Supreme Court of Canada is entitled to be present at it. |
Appellant
represented by counsel |
(2) An
appellant who is in custody and who is represented by counsel is not
entitled to be present before the Supreme Court of Canada
(a) on an application for leave to
appeal,
(b) on any proceedings that are
preliminary or incidental to an appeal, or
(c) at the hearing of the
appeal,
unless
rules of court provide that entitlement or the Supreme Court of
Canada or a judge thereof gives the appellant leave to be
present.
R.S.,
1985, c. 34 (3rd Supp.), s. 13. |
|
695. (1) The
Supreme Court of Canada may, on an appeal under this Part, make any
order that the court of appeal might have made and may make any rule
or order that is necessary to give effect to its judgment.
(2)
[Repealed, 1999, c. 5, s. 27]
R.S.,
1985, c. C-46, s. 695; 1999, c. 5, s. 27. |
|
Appeals
by Attorney General of Canada |
|
696. The
Attorney General of Canada has the same rights of appeal in
proceedings instituted at the instance of the Government of Canada
and conducted by or on behalf of that Government as the Attorney
General of a province has under this Part.
R.S.,
c. C-34, s. 624. |
|
PART
XXI.1
APPLICATIONS FOR
MINISTERIAL REVIEW — MISCARRIAGES OF JUSTICE |
|
696.1 (1) An
application for ministerial review on the grounds of miscarriage of
justice may be made to the Minister of Justice by or on behalf of a
person who has been convicted of an offence under an Act of
Parliament or a regulation made under an Act of Parliament or has
been found to be a dangerous offender or a long-term offender under
Part XXIV and whose rights of judicial review or appeal with respect
to the conviction or finding have been exhausted. |
|
(2)
The application must be in the form, contain the information and be
accompanied by any documents prescribed by the regulations.
2002,
c. 13, s. 71. |
|
696.2 (1) On
receipt of an application under this Part, the Minister of Justice
shall review it in accordance with the regulations. |
|
(2)
For the purpose of any investigation in relation to an application
under this Part, the Minister of Justice has and may exercise the
powers of a commissioner under Part I of the Inquiries Act and the powers that
may be conferred on a commissioner under section 11 of that
Act. |
|
(3)
Despite subsection 11(3) of the Inquiries Act, the Minister of
Justice may delegate in writing to any member in good standing of
the bar of a province, retired judge or any other individual who, in
the opinion of the Minister, has similar background or experience
the powers of the Minister to take evidence, issue subpoenas,
enforce the attendance of witnesses, compel them to give evidence
and otherwise conduct an investigation under subsection (2).
2002,
c. 13, s. 71. |
|
696.3 (1) In
this section, “the court of appeal” means the court of appeal, as
defined by the definition “court of appeal” in section 2, for the
province in which the person to whom an application under this Part
relates was tried. |
|
(2)
The Minister of Justice may, at any time, refer to the court of
appeal, for its opinion, any question in relation to an application
under this Part on which the Minister desires the assistance of that
court, and the court shall furnish its opinion
accordingly. |
Powers
of Minister of Justice |
(3) On
an application under this Part, the Minister of Justice may
(a) if the Minister is satisfied
that there is a reasonable basis to conclude that a miscarriage of
justice likely occurred,
(i)
direct, by order in writing, a new trial before any court that the
Minister thinks proper or, in the case of a person found to be a
dangerous offender or a long-term offender under Part XXIV, a new
hearing under that Part, or
(ii)
refer the matter at any time to the court of appeal for hearing and
determination by that court as if it were an appeal by the convicted
person or the person found to be a dangerous offender or a long-term
offender under Part XXIV, as the case may be; or
(b) dismiss the
application. |
|
(4) A
decision of the Minister of Justice made under subsection (3) is
final and is not subject to appeal.
2002,
c. 13, s. 71. |
|
696.4 In
making a decision under subsection 696.3(3), the Minister of Justice
shall take into account all matters that the Minister considers
relevant, including
(a) whether the application is
supported by new matters of significance that were not considered by
the courts or previously considered by the Minister in an
application in relation to the same conviction or finding under Part
XXIV;
(b) the relevance and reliability
of information that is presented in connection with the application;
and
(c) the fact that an application
under this Part is not intended to serve as a further appeal and any
remedy available on such an application is an extraordinary
remedy.
2002,
c. 13, s. 71. |
|
696.5 The
Minister of Justice shall within six months after the end of each
financial year submit an annual report to Parliament in relation to
applications under this Part.
2002,
c. 13, s. 71. |
|
696.6 The
Governor in Council may make regulations
(a) prescribing the form of, the
information required to be contained in and any documents that must
accompany an application under this Part;
(b) prescribing the process of
review in relation to applications under this Part, which may
include the following stages, namely, preliminary assessment,
investigation, reporting on investigation and decision; and
(c) respecting the form and content
of the annual report under section 696.5.
2002,
c. 13, s. 71. |
|
PART
XXII
PROCURING
ATTENDANCE |
|
|
|
697. Except
where section 527 applies, this Part applies where a person is
required to attend to give evidence in a proceeding to which this
Act applies.
R.S.,
c. C-34, s. 625. |
|
|
|
698. (1)
Where a person is likely to give material evidence in a proceeding
to which this Act applies, a subpoena may be issued in accordance
with this Part requiring that person to attend to give
evidence. |
|
(2)
Where it is made to appear that a person who is likely to give
material evidence
(a) will not attend in response to
a subpoena if a subpoena is issued, or
(b) is evading service of a
subpoena,
a court,
justice or provincial court judge having power to issue a subpoena
to require the attendance of that person to give evidence may issue
a warrant in Form 17 to cause that person to be arrested and to be
brought to give evidence. |
|
(3)
Except where paragraph (2)(a) applies, a warrant in Form 17
shall not be issued unless a subpoena has first been issued.
R.S.,
1985, c. C-46, s. 698; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
699. (1) If a
person is required to attend to give evidence before a superior
court of criminal jurisdiction, a court of appeal, an appeal court
or a court of criminal jurisdiction other than a provincial court
judge acting under Part XIX, a subpoena directed to that person
shall be issued out of the court before which the attendance of that
person is required. |
|
(2) If
a person is required to attend to give evidence before a provincial
court judge acting under Part XIX or a summary conviction court
under Part XXVII or in proceedings over which a justice has
jurisdiction, a subpoena directed to the person shall be issued
(a) by a provincial court judge or
a justice, where the person whose attendance is required is within
the province in which the proceedings were instituted; or
(b) by a provincial court judge or
out of a superior court of criminal jurisdiction of the province in
which the proceedings were instituted, where the person whose
attendance is required is not within the province. |
|
(3) A
subpoena shall not be issued out of a superior court of criminal
jurisdiction pursuant to paragraph (2)(b), except pursuant to an order of
a judge of the court made on application by a party to the
proceedings. |
|
(4) A
subpoena or warrant that is issued by a court under this Part shall
be under the seal of the court and shall be signed by a judge of the
court or by the clerk of the court. |
|
(5) A
subpoena or warrant that is issued by a justice or provincial court
judge under this Part shall be signed by the justice or provincial
court judge. |
|
(5.1)
Notwithstanding anything in subsections (1) to (5), in the case of
an offence referred to in subsection 278.2(1), a subpoena requiring
a witness to bring to the court a record, the production of which is
governed by sections 278.1 to 278.91, must be issued and signed by a
judge. |
|
(6)
Subject to subsection (7), a subpoena issued under this Part may be
in Form 16. |
Form
of subpoena in sexual offences |
(7) In
the case of an offence referred to in subsection 278.2(1), a
subpoena requiring a witness to bring anything to the court shall be
in Form 16.1.
R.S.,
1985, c. C-46, s. 699; R.S., 1985, c. 27 (1st Supp.), s. 203; 1994,
c. 44, s. 69; 1997, c. 30, s. 2; 1999, c. 5, s. 28. |
|
700. (1) A
subpoena shall require the person to whom it is directed to attend,
at a time and place to be stated in the subpoena, to give evidence
and, if required, to bring with him anything that he has in his
possession or under his control relating to the subject-matter of
the proceedings. |
Witness
to appear and remain |
(2) A
person who is served with a subpoena issued under this Part shall
attend and shall remain in attendance throughout the proceedings
unless he is excused by the presiding judge, justice or provincial
court judge.
R.S.,
1985, c. C-46, s. 700; R.S., 1985, c. 27 (1st Supp.), ss. 148,
203. |
|
700.1 (1) If
a person is to give evidence under section 714.1 or 714.3 or under
subsection 46(2) of the Canada
Evidence Act — or is to give evidence or a statement pursuant
to an order made under section 22.2 of the Mutual Legal Assistance in Criminal
Matters Act — at a place within the jurisdiction of a court
referred to in subsection 699(1) or (2) where the technology is
available, a subpoena shall be issued out of the court to order the
person to give that evidence at such a place. |
Sections
of Criminal Code
|
(2)
Sections 699, 700 and 701 to 703.2 apply, with any modifications
that the circumstances require, to a subpoena issued under this
section.
1999,
c. 18, s. 94. |
|
Execution
or Service of Process |
|
701. (1)
Subject to subsection (2), a subpoena shall be served in a province
by a peace officer or any other person who is qualified in that
province to serve civil process, in accordance with subsection
509(2), with such modifications as the circumstances
require. |
|
(2) A
subpoena that is issued pursuant to paragraph 699(2)(b) shall be served personally on
the person to whom it is directed. |
|
(3)
Service of a subpoena may be proved by the affidavit of the person
who effected service.
R.S.,
1985, c. C-46, s. 701; 1994, c. 44, s. 70. |
|
701.1
Notwithstanding section 701, in any province service and proof of
service of any subpoena, summons or other document may be made in
accordance with the laws of the province relating to offences
created by the laws of the province.
1997,
c. 18, s. 100. |
|
702. (1) A
subpoena that is issued by a provincial court judge or out of a
superior court of criminal jurisdiction, a court of appeal, an
appeal court or a court of criminal jurisdiction has effect anywhere
in Canada according to its terms. |
Subpoena
effective throughout province |
(2) A
subpoena that is issued by a justice has effect anywhere in the
province in which it is issued.
R.S.,
1985, c. C-46, s. 702; 1994, c. 44, s. 71. |
|
703. (1)
Notwithstanding any other provision of this Act, a warrant of arrest
or committal that is issued out of a superior court of criminal
jurisdiction, a court of appeal, an appeal court within the meaning
of section 812 or a court of criminal jurisdiction other than a
provincial court judge acting under Part XIX may be executed
anywhere in Canada. |
Warrant
effective in a province |
(2)
Notwithstanding any other provision of this Act but subject to
subsection 705(3), a warrant of arrest or committal that is issued
by a justice or provincial court judge may be executed anywhere in
the province in which it is issued.
R.S.,
1985, c. C-46, s. 703; R.S., 1985, c. 27 (1st Supp.), s.
149. |
|
703.1 A
summons may be served anywhere in Canada and, if served, is
effective notwithstanding the territorial jurisdiction of the
authority that issued the summons.
R.S.,
1985, c. 27 (1st Supp.), s. 149. |
|
703.2 Where
any summons, notice or other process is required to be or may be
served on an organization, and no other method of service is
provided, service may be effected by delivery
(a) in the case of a municipality,
to the mayor, warden, reeve or other chief officer of the
municipality, or to the secretary, treasurer or clerk of the
municipality; and
(b) in the case of any other
organization, to the manager, secretary or other senior officer of
the organization or one of its branches.
R.S.,
1985, c. 27 (1st Supp.), s. 149; 2003, c. 21, s. 13. |
|
Defaulting
or Absconding Witness |
|
704. (1)
Where a person is bound by recognizance to give evidence in any
proceedings, a justice who is satisfied on information being made
before him in writing and under oath that the person is about to
abscond or has absconded may issue his warrant in Form 18 directing
a peace officer to arrest that person and to bring him before the
court, judge, justice or provincial court judge before whom he is
bound to appear. |
|
(2)
Section 528 applies, with such modifications as the circumstances
require, to a warrant issued under this section. |
|
(3) A
person who is arrested under this section is entitled, on request,
to receive a copy of the information on which the warrant for his
arrest was issued.
R.S.,
1985, c. C-46, s. 704; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
705. (1)
Where a person who has been served with a subpoena to give evidence
in a proceeding does not attend or remain in attendance, the court,
judge, justice or provincial court judge before whom that person was
required to attend may, if it is established
(a) that the subpoena has been
served in accordance with this Part, and
(b) that the person is likely to
give material evidence,
issue or
cause to be issued a warrant in Form 17 for the arrest of that
person. |
Warrant
where witness bound by recognizance |
(2)
Where a person who has been bound by a recognizance to attend to
give evidence in any proceeding does not attend or does not remain
in attendance, the court, judge, justice or provincial court judge
before whom that person was bound to attend may issue or cause to be
issued a warrant in Form 17 for the arrest of that person. |
Warrant
effective throughout Canada |
(3) A
warrant that is issued by a justice or provincial court judge
pursuant to subsection (1) or (2) may be executed anywhere in
Canada.
R.S.,
1985, c. C-46, s. 705; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
706. Where a
person is brought before a court, judge, justice or provincial court
judge under a warrant issued pursuant to subsection 698(2) or
section 704 or 705, the court, judge, justice or provincial court
judge may order that the person
(a) be detained in custody, or
(b) be released on recognizance in
Form 32, with or without sureties,
to
appear and give evidence when required.
R.S.,
1985, c. C-46, s. 706; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
707. (1) No
person shall be detained in custody under the authority of any
provision of this Act, for the purpose only of appearing and giving
evidence when required as a witness, for any period exceeding thirty
days unless prior to the expiration of those thirty days he has been
brought before a judge of a superior court of criminal jurisdiction
in the province in which he is being detained. |
Application
by witness to judge |
(2)
Where at any time prior to the expiration of the thirty days
referred to in subsection (1), a witness being detained in custody
as described in that subsection applies to be brought before a judge
of a court described therein, the judge before whom the application
is brought shall fix a time prior to the expiration of those thirty
days for the hearing of the application and shall cause notice of
the time so fixed to be given to the witness, the person having
custody of the witness and such other persons as the judge may
specify, and at the time so fixed for the hearing of the application
the person having custody of the witness shall cause the witness to
be brought before a judge of the court for that purpose. |
|
(3) If
the judge before whom a witness is brought under this section is not
satisfied that the continued detention of the witness is justified,
he shall order him to be discharged, or to be released on
recognizance in Form 32, with or without sureties, to appear and to
give evidence when required, but if the judge is satisfied that the
continued detention of the witness is justified, he may order his
continued detention until the witness does what is required of him
pursuant to section 550 or the trial is concluded, or until the
witness appears and gives evidence when required, as the case may
be, except that the total period of detention of the witness from
the time he was first detained in custody shall not in any case
exceed ninety days.
R.S.,
c. C-34, s. 635. |
|
708. (1) A
person who, being required by law to attend or remain in attendance
for the purpose of giving evidence, fails, without lawful excuse, to
attend or remain in attendance accordingly is guilty of contempt of
court. |
|
(2) A
court, judge, justice or provincial court judge may deal summarily
with a person who is guilty of contempt of court under this section
and that person is liable to a fine not exceeding one hundred
dollars or to imprisonment for a term not exceeding ninety days or
to both, and may be ordered to pay the costs that are incident to
the service of any process under this Part and to his detention, if
any. |
|
(3) A
conviction under this section may be in Form 38 and a warrant of
committal in respect of a conviction under this section may be in
Form 25.
R.S.,
1985, c. C-46, s. 708; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
Electronically
Transmitted Copies |
|
708.1 A copy
of a summons, warrant or subpoena transmitted by a means of
telecommunication that produces a writing has the same probative
force as the original for the purposes of this Act.
1997,
c. 18, s. 101. |
|
|
|
709. (1) A
party to proceedings by way of indictment or summary conviction may
apply for an order appointing a commissioner to take the evidence of
a witness who
(a) is, by reason of
(i)
physical disability arising out of illness, or
(ii)
any other good and sufficient cause,
not
likely to be able to attend at the time the trial is held; or
(b) is out of Canada. |
|
(2) A
decision under subsection (1) is deemed to have been made at the
trial held in relation to the proceedings mentioned in that
subsection.
R.S.,
1985, c. C-46, s. 709; R.S., 1985, c. 27 (1st Supp.), s. 150; 1994,
c. 44, s. 72. |
|
710. (1) An
application under paragraph 709(1)(a) shall be made
(a) to a judge of a superior court
of the province in which the proceedings are taken;
(b) to a judge of a county or
district court in the territorial division in which the proceedings
are taken; or
(c) to a provincial court judge,
where
(i) at
the time the application is made, the accused is before a provincial
court judge presiding over a preliminary inquiry under Part XVIII,
or
(ii)
the accused or defendant is to be tried by a provincial court judge
acting under Part XIX or XXVII. |
Evidence
of medical practitioner |
(2) An
application under subparagraph 709(1)(a)(i) may be granted on the
evidence of a registered medical practitioner.
R.S.,
1985, c. C-46, s. 710; R.S., 1985, c. 27 (1st Supp.), s. 151; 1994,
c. 44, s. 73. |
|
711. Where
the evidence of a witness mentioned in paragraph 709(1)(a) is taken by a commissioner
appointed under section 710, it may be admitted in evidence in the
proceedings if
(a) it is proved by oral evidence
or by affidavit that the witness is unable to attend by reason of
death or physical disability arising out of illness or some other
good and sufficient cause;
(b) the transcript of the evidence
is signed by the commissioner by or before whom it purports to have
been taken; and
(c) it is proved to the
satisfaction of the court that reasonable notice of the time for
taking the evidence was given to the other party, and that the
accused or his counsel, or the prosecutor or his counsel, as the
case may be, had or might have had full opportunity to cross-examine
the witness.
R.S.,
1985, c. C-46, s. 711; R.S., 1985, c. 27 (1st Supp.), s. 152; 1994,
c. 44, s. 74; 1997, c. 18, s. 102. |
|
712. (1) An
application that is made under paragraph 709(1)(b) shall be made
(a) to a judge of a superior court
of criminal jurisdiction or of a court of criminal jurisdiction
before which the accused is to be tried; or
(b) to a provincial court judge,
where the accused or defendant is to be tried by a provincial court
judge acting under Part XIX or XXVII. |
Admitting
evidence of witness out of Canada |
(2)
Where the evidence of a witness is taken by a commissioner appointed
under this section, it may be admitted in evidence in the
proceedings.
(3)
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 153]
R.S.,
1985, c. C-46, s. 712; R.S., 1985, c. 27 (1st Supp.), s. 153; 1994,
c. 44, s. 75; 1997, c. 18, s. 103. |
|
713. (1) A
judge or provincial court judge who appoints a commissioner may make
provision in the order to enable an accused to be present or
represented by counsel when the evidence is taken, but failure of
the accused to be present or to be represented by counsel in
accordance with the order does not prevent the admission of the
evidence in the proceedings if the evidence has otherwise been taken
in accordance with the order and with this Part. |
|
(2) An
order for the taking of evidence by commission shall indicate the
officer of the court to whom the evidence that is taken under the
order shall be returned.
R.S.,
1985, c. C-46, s. 713; R.S., 1985, c. 27 (1st Supp.), s. 203; 1997,
c. 18, s. 104. |
|
713.1
Evidence taken by a commissioner appointed under section 712 shall
not be excluded by reason only that it would have been taken
differently in Canada, provided that the process used to take the
evidence is consistent with the law of the country where it was
taken and that the process used to take the evidence was not
contrary to the principles of fundamental justice.
1994,
c. 44, s. 76. |
|
714. Except
where otherwise provided by this Part or by rules of court, the
practice and procedure in connection with the appointment of
commissioners under this Part, the taking of evidence by
commissioners, the certifying and return thereof and the use of the
evidence in the proceedings shall, as far as possible, be the same
as those that govern like matters in civil proceedings in the
superior court of the province in which the proceedings are
taken.
R.S.,
c. C-34, s. 642. |
|
|
|
714.1 A court
may order that a witness in Canada give evidence by means of
technology that permits the witness to testify elsewhere in Canada
in the virtual presence of the parties and the court, if the court
is of the opinion that it would be appropriate in all the
circumstances, including
(a) the location and personal
circumstances of the witness;
(b) the costs that would be
incurred if the witness had to be physically present; and
(c) the nature of the witness’
anticipated evidence.
1999,
c. 18, s. 95. |
|
714.2 (1) A
court shall receive evidence given by a witness outside Canada by
means of technology that permits the witness to testify in the
virtual presence of the parties and the court unless one of the
parties satisfies the court that the reception of such testimony
would be contrary to the principles of fundamental
justice. |
|
(2) A
party who wishes to call a witness to give evidence under subsection
(1) shall give notice to the court before which the evidence is to
be given and the other parties of their intention to do so not less
than ten days before the witness is scheduled to testify.
1999,
c. 18, s. 95. |
|
714.3 The
court may order that a witness in Canada give evidence by means of
technology that permits the parties and the court to hear and
examine the witness elsewhere in Canada, if the court is of the
opinion that it would be appropriate, considering all the
circumstances including
(a) the location and personal
circumstances of the witness;
(b) the costs that would be
incurred if the witness had to be physically present;
(c) the nature of the witness’
anticipated evidence; and
(d) any potential prejudice to
either of the parties caused by the fact that the witness would not
be seen by them.
1999,
c. 18, s. 95. |
|
714.4 The
court may receive evidence given by a witness outside Canada by
means of technology that permits the parties and the court in Canada
to hear and examine the witness, if the court is of the opinion that
it would be appropriate, considering all the circumstances
including
(a) the nature of the witness’
anticipated evidence; and
(b) any potential prejudice to
either of the parties caused by the fact that the witness would not
be seen by them.
1999,
c. 18, s. 95. |
|
714.5 The
evidence given under section 714.2 or 714.4 shall be given
(a) under oath or affirmation in
accordance with Canadian law;
(b) under oath or affirmation in
accordance with the law in the place in which the witness is
physically present; or
(c) in any other manner that
demonstrates that the witness understands that they must tell the
truth.
1999,
c. 18, s. 95. |
|
714.6 When a
witness who is outside Canada gives evidence under section 714.2 or
714.4, the evidence is deemed to be given in Canada, and given under
oath or affirmation in accordance with Canadian law, for the
purposes of the laws relating to evidence, procedure, perjury and
contempt of court.
1999,
c. 18, s. 95. |
|
714.7 A party
who wishes to call a witness to give evidence by means of the
technology referred to in section 714.1, 714.2, 714.3 or 714.4 shall
pay any costs associated with the use of the technology.
1999,
c. 18, s. 95. |
|
714.8 Nothing
in sections 714.1 to 714.7 is to be construed as preventing a court
from receiving evidence by means of the technology referred to in
sections 714.1 to 714.4 if the parties so consent.
1999,
c. 18, s. 95. |
|
Evidence
Previously Taken |
|
715. (1)
Where, at the trial of an accused, a person whose evidence was given
at a previous trial on the same charge, or whose evidence was taken
in the investigation of the charge against the accused or on the
preliminary inquiry into the charge, refuses to be sworn or to give
evidence, or if facts are proved on oath from which it can be
inferred reasonably that the person
(
a) is dead,
(
b) has since become and is
insane,
(
c) is so ill that he is
unable to travel or testify, or
(
d) is absent from
Canada,
and
where it is proved that the evidence was taken in the presence of
the accused, it may be admitted as evidence in the proceedings
without further proof, unless the accused proves that the accused
did not have full opportunity to cross-examine the
witness. |
|
(2)
Evidence that has been taken on the preliminary inquiry or other
investigation of a charge against an accused may be admitted as
evidence in the prosecution of the accused for any other offence on
the same proof and in the same manner in all respects, as it might,
according to law, be admitted as evidence in the prosecution of the
offence with which the accused was charged when the evidence was
taken. |
Absconding
accused deemed present |
(3)
For the purposes of this section, where evidence was taken at a
previous trial or preliminary hearing or other proceeding in respect
of an accused in the absence of the accused, who was absent by
reason of having absconded, the accused is deemed to have been
present during the taking of the evidence and to have had full
opportunity to cross-examine the witness. |
|
(4)
Subsections (1) to (3) do not apply in respect of evidence received
under subsection 540(7).
R.S.,
1985, c. C-46, s. 715; 1994, c. 44, s. 77; 1997, c. 18, s. 105;
2002, c. 13, s. 72. |
|
|
|
715.1 In any
proceeding relating to an offence under section 151, 152, 153, 155
or 159, subsection 160(2) or (3), or section 163.1, 170, 171, 172,
173, 210, 211, 212, 213, 266, 267, 268, 271, 272 or 273, in which
the complainant or other witness was under the age of eighteen years
at the time the offence is alleged to have been committed, a
videotape made within a reasonable time after the alleged offence,
in which the complainant or witness describes the acts complained
of, is admissible in evidence if the complainant or witness, while
testifying, adopts the contents of the videotape.
R.S.,
1985, c. 19 (3rd Supp.), s. 16; 1997, c. 16, s. 7. |
|
715.2 (1) In
any proceeding relating to an offence under section 151, 152, 153,
153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 170,
171, 172, 173, 210, 211, 212, 213, 266, 267, 268, 271, 272 or 273 in
which the complainant or other witness is able to communicate
evidence but may have difficulty doing so by reason of a mental or
physical disability, a videotape, made within a reasonable time
after the alleged offence, in which the complainant or witness
describes the acts complained of is admissible in evidence if the
complainant or witness adopts the contents of the videotape while
testifying. |
|
(2)
The presiding judge may prohibit any other use of a videotape
referred to in subsection (1).
1998,
c. 9, s. 8. |
|
|
|
|
|
716. In this
Part, |
|
“accused” includes a
defendant; |
“alternative measures”
« mesures de
rechange » |
“alternative measures”
means measures other than judicial proceedings under this Act used
to deal with a person who is eighteen years of age or over and
alleged to have committed an offence; |
|
“court” means
(a) a superior court of criminal
jurisdiction,
(b) a court of criminal
jurisdiction,
(c) a justice or provincial court
judge acting as a summary conviction court under Part XXVII, or
(d) a court that hears an
appeal; |
|
“fine”
includes a pecuniary penalty or other sum of money, but does not
include restitution.
R.S.,
1985, c. C-46, s. 716; R.S., 1985, c. 27 (1st Supp.), s. 154; 1995,
c. 22, s. 6; 1999, c. 5, s. 29(E). |
|
|
|
717. (1)
Alternative measures may be used to deal with a person alleged to
have committed an offence only if it is not inconsistent with the
protection of society and the following conditions are met:
(a) the measures are part of a
program of alternative measures authorized by the Attorney General
or the Attorney General’s delegate or authorized by a person, or a
person within a class of persons, designated by the lieutenant
governor in council of a province;
(b) the person who is considering
whether to use the measures is satisfied that they would be
appropriate, having regard to the needs of the person alleged to
have committed the offence and the interests of society and of the
victim;
(c) the person, having been
informed of the alternative measures, fully and freely consents to
participate therein;
(d) the person has, before
consenting to participate in the alternative measures, been advised
of the right to be represented by counsel;
(e) the person accepts
responsibility for the act or omission that forms the basis of the
offence that the person is alleged to have committed;
(f) there is, in the opinion of the
Attorney General or the Attorney General’s agent, sufficient
evidence to proceed with the prosecution of the offence; and
(g) the prosecution of the offence
is not in any way barred at law. |
|
(2)
Alternative measures shall not be used to deal with a person alleged
to have committed an offence if the person
(a) denies participation or
involvement in the commission of the offence; or
(b) expresses the wish to have any
charge against the person dealt with by the court. |
Admissions
not admissible in evidence |
(3) No
admission, confession or statement accepting responsibility for a
given act or omission made by a person alleged to have committed an
offence as a condition of the person being dealt with by alternative
measures is admissible in evidence against that person in any civil
or criminal proceedings. |
|
(4)
The use of alternative measures in respect of a person alleged to
have committed an offence is not a bar to proceedings against the
person under this Act, but, if a charge is laid against that person
in respect of that offence,
(a) where the court is satisfied on
a balance of probabilities that the person has totally complied with
the terms and conditions of the alternative measures, the court
shall dismiss the charge; and
(b) where the court is satisfied on
a balance of probabilities that the person has partially complied
with the terms and conditions of the alternative measures, the court
may dismiss the charge if, in the opinion of the court, the
prosecution of the charge would be unfair, having regard to the
circumstances and that person’s performance with respect to the
alternative measures. |
Laying
of information, etc. |
(5)
Subject to subsection (4), nothing in this section shall be
construed as preventing any person from laying an information,
obtaining the issue or confirmation of any process, or proceeding
with the prosecution of any offence, in accordance with law.
R.S.,
1985, c. C-46, s. 717; 1995, c. 22, s. 6. |
|
717.1
Sections 717.2 to 717.4 apply only in respect of persons who have
been dealt with by alternative measures, regardless of the degree of
their compliance with the terms and conditions of the alternative
measures.
1995,
c. 22, s. 6. |
|
717.2 (1) A
record relating to any offence alleged to have been committed by a
person, including the original or a copy of any fingerprints or
photographs of the person, may be kept by any police force
responsible for, or participating in, the investigation of the
offence. |
Disclosure
by peace officer |
(2) A
peace officer may disclose to any person any information in a record
kept pursuant to this section that it is necessary to disclose in
the conduct of the investigation of an offence. |
|
(3) A
peace officer may disclose to an insurance company any information
in a record kept pursuant to this section for the purpose of
investigating any claim arising out of an offence committed or
alleged to have been committed by the person to whom the record
relates.
1995,
c. 22, s. 6. |
|
717.3 (1) A
department or agency of any government in Canada may keep records
containing information obtained by the department or agency
(a) for the purposes of an
investigation of an offence alleged to have been committed by a
person;
(b) for use in proceedings against
a person under this Act; or
(c) as a result of the use of
alternative measures to deal with a person. |
|
(2)
Any person or organization may keep records containing information
obtained by the person or organization as a result of the use of
alternative measures to deal with a person alleged to have committed
an offence.
1995,
c. 22, s. 6. |
|
717.4 (1) Any
record that is kept pursuant to section 717.2 or 717.3 may be made
available to
(a) any judge or court for any
purpose relating to proceedings relating to offences committed or
alleged to have been committed by the person to whom the record
relates;
(b) any peace officer
(i)
for the purpose of investigating any offence that the person is
suspected on reasonable grounds of having committed, or in respect
of which the person has been arrested or charged, or
(ii)
for any purpose related to the administration of the case to which
the record relates;
(c) any member of a department or
agency of a government in Canada, or any agent thereof, that is
(i)
engaged in the administration of alternative measures in respect of
the person, or
(ii)
preparing a report in respect of the person pursuant to this Act;
or
(d) any other person who is deemed,
or any person within a class of persons that is deemed, by a judge
of a court to have a valid interest in the record, to the extent
directed by the judge, if the judge is satisfied that the disclosure
is
(i)
desirable in the public interest for research or statistical
purposes, or
(ii)
desirable in the interest of the proper administration of
justice. |
|
(2)
Where a record is made available for inspection to any person under
subparagraph (1)(d)(i), that
person may subsequently disclose information contained in the
record, but may not disclose the information in any form that would
reasonably be expected to identify the person to whom it
relates. |
|
(3)
Any person to whom a record is authorized to be made available under
this section may be given any information contained in the record
and may be given a copy of any part of the record. |
|
(4)
Nothing in this section authorizes the introduction into evidence of
any part of a record that would not otherwise be admissible in
evidence. |
|
(5) A
record kept pursuant to section 717.2 or 717.3 may not be introduced
into evidence, except for the purposes set out in paragraph
721(3)(c), more than two
years after the end of the period for which the person agreed to
participate in the alternative measures.
1995,
c. 22, s. 6. |
|
Purpose
and Principles of Sentencing |
|
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;
(b) to deter the offender and other
persons from committing offences;
(c) to separate offenders from
society, where necessary;
(d) to assist in rehabilitating
offenders;
(e) to provide reparations for harm
done to victims or to the community; and
(f) to promote a sense of
responsibility in offenders, and acknowledgment of the harm done to
victims and to the community.
R.S.,
1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995,
c. 22, s. 6. |
|
718.01 When a
court imposes a sentence for an offence that involved the abuse of a
person under the age of eighteen years, it shall give primary
consideration to the objectives of denunciation and deterrence of
such conduct.
2005,
c. 32, s. 24. |
|
718.1 A
sentence must be proportionate to the gravity of the offence and the
degree of responsibility of the offender.
R.S.,
1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6. |
|
718.2 A court
that imposes a sentence shall also take into consideration the
following principles:
(a) a sentence should be increased
or reduced to account for any relevant aggravating or mitigating
circumstances relating to the offence or the offender, and, without
limiting the generality of the foregoing,
(i)
evidence that the offence was motivated by bias, prejudice or hate
based on race, national or ethnic origin, language, colour,
religion, sex, age, mental or physical disability, sexual
orientation, or any other similar factor,
(ii)
evidence that the offender, in committing the offence, abused the
offender’s spouse or common-law partner,
(ii.1)
evidence that the offender, in committing the offence, abused a
person under the age of eighteen years,
(iii)
evidence that the offender, in committing the offence, abused a
position of trust or authority in relation to the victim,
(iv)
evidence that the offence was committed for the benefit of, at the
direction of or in association with a criminal organization, or
(v)
evidence that the offence was a terrorism offence
shall
be deemed to be aggravating circumstances;
(b) a sentence should be similar to
sentences imposed on similar offenders for similar offences
committed in similar circumstances;
(c) where consecutive sentences are
imposed, the combined sentence should not be unduly long or
harsh;
(d) an offender should not be
deprived of liberty, if less restrictive sanctions may be
appropriate in the circumstances; and
(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.
1995,
c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s.
44(F), c. 41, s. 20; 2005, c. 32, s. 25. |
|
|
|
718.21 A
court that imposes a sentence on an organization shall also take
into consideration the following factors:
(a) any advantage realized by the
organization as a result of the offence;
(b) the degree of planning involved
in carrying out the offence and the duration and complexity of the
offence;
(c) whether the organization has
attempted to conceal its assets, or convert them, in order to show
that it is not able to pay a fine or make restitution;
(d) the impact that the sentence
would have on the economic viability of the organization and the
continued employment of its employees;
(e) the cost to public authorities
of the investigation and prosecution of the offence;
(f) any regulatory penalty imposed
on the organization or one of its representatives in respect of the
conduct that formed the basis of the offence;
(g) whether the organization was —
or any of its representatives who were involved in the commission of
the offence were — convicted of a similar offence or sanctioned by a
regulatory body for similar conduct;
(h) any penalty imposed by the
organization on a representative for their role in the commission of
the offence;
(i) any restitution that the
organization is ordered to make or any amount that the organization
has paid to a victim of the offence; and
(j) any measures that the
organization has taken to reduce the likelihood of it committing a
subsequent offence.
2003,
c. 21, s. 14. |
|
|
|
718.3 (1)
Where an enactment prescribes different degrees or kinds of
punishment in respect of an offence, the punishment to be imposed
is, subject to the limitations prescribed in the enactment, in the
discretion of the court that convicts a person who commits the
offence. |
Discretion
respecting punishment |
(2)
Where an enactment prescribes a punishment in respect of an offence,
the punishment to be imposed is, subject to the limitations
prescribed in the enactment, in the discretion of the court that
convicts a person who commits the offence, but no punishment is a
minimum punishment unless it is declared to be a minimum
punishment. |
Imprisonment
in default where term not specified |
(3)
Where an accused is convicted of an offence punishable with both
fine and imprisonment and a term of imprisonment in default of
payment of the fine is not specified in the enactment that
prescribes the punishment to be imposed, the imprisonment that may
be imposed in default of payment shall not exceed the term of
imprisonment that is prescribed in respect of the offence. |
|
(4)
The court or youth justice court that sentences an accused may
direct that the terms of imprisonment that are imposed by the court
or the youth justice court or that result from the operation of
subsection 734(4) or 743.5(1) or (2) shall be served consecutively,
when
(
a) the accused is sentenced
while under sentence for an offence, and a term of imprisonment,
whether in default of payment of a fine or otherwise, is
imposed;
(
b) the accused is found
guilty or convicted of an offence punishable with both a fine and
imprisonment and both are imposed;
(
c) the accused is found
guilty or convicted of more than one offence, and
(i)
more than one fine is imposed,
(ii)
terms of imprisonment for the respective offences are imposed,
or
(iii)
a term of imprisonment is imposed in respect of one offence and a
fine is imposed in respect of another offence; or
(
d) subsection 743.5(1) or
(2) applies.
1995,
c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182. |
|
719. (1) A
sentence commences when it is imposed, except where a relevant
enactment otherwise provides. |
Time
at large excluded from term of imprisonment |
(2)
Any time during which a convicted person is unlawfully at large or
is lawfully at large on interim release granted pursuant to any
provision of this Act does not count as part of any term of
imprisonment imposed on the person. |
Determination
of sentence |
(3) In
determining the sentence to be imposed on a person convicted of an
offence, a court may take into account any time spent in custody by
the person as a result of the offence. |
|
(4)
Notwithstanding subsection (1), a term of imprisonment, whether
imposed by a trial court or the court appealed to, commences or
shall be deemed to be resumed, as the case may be, on the day on
which the convicted person is arrested and taken into custody under
the sentence. |
|
(5)
Notwithstanding subsection (1), where the sentence that is imposed
is a fine with a term of imprisonment in default of payment, no time
prior to the day of execution of the warrant of committal counts as
part of the term of imprisonment. |
Application
for leave to appeal |
(6) An
application for leave to appeal is an appeal for the purposes of
this section.
R.S.,
1985, c. C-46, s. 719; R.S., 1985, c. 27 (1st Supp.), s. 157; 1995,
c. 22, s. 6. |
|
|
|
720. A court
shall, as soon as practicable after an offender has been found
guilty, conduct proceedings to determine the appropriate sentence to
be imposed.
R.S.,
1985, c. C-46, s. 720; 1995, c. 22, s. 6. |
|
721. (1)
Subject to regulations made under subsection (2), where an accused,
other than an organization, pleads guilty to or is found guilty of
an offence, a probation officer shall, if required to do so by a
court, prepare and file with the court a report in writing relating
to the accused for the purpose of assisting the court in imposing a
sentence or in determining whether the accused should be discharged
under section 730. |
|
(2)
The lieutenant governor in council of a province may make
regulations respecting the types of offences for which a court may
require a report, and respecting the content and form of the
report. |
|
(3)
Unless otherwise specified by the court, the report must, wherever
possible, contain information on the following matters:
(a) the offender’s age, maturity,
character, behaviour, attitude and willingness to make amends;
(b) subject to subsection 119(2) of
the Youth Criminal Justice
Act, the history of previous dispositions under the Young Offenders Act, chapter Y-1
of the Revised Statutes of Canada, 1985, the history of previous
sentences under the Youth Criminal
Justice Act, and of previous findings of guilt under this Act
and any other Act of Parliament;
(c) the history of any alternative
measures used to deal with the offender, and the offender’s response
to those measures; and
(d) any matter required, by any
regulation made under subsection (2), to be included in the
report. |
|
(4)
The report must also contain information on any other matter
required by the court, after hearing argument from the prosecutor
and the offender, to be included in the report, subject to any
contrary regulation made under subsection (2). |
|
(5)
The clerk of the court shall provide a copy of the report, as soon
as practicable after filing, to the offender or counsel for the
offender, as directed by the court, and to the prosecutor.
R.S.,
1985, c. C-46, s. 721; R.S., 1985, c. 27 (1st Supp.), s. 203; 1995,
c. 22, s. 6; 1999, c. 25, s. 16(Preamble); 2002, c. 1, s. 183; 2003,
c. 21, s. 15. |
|
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. |
Procedure
for victim impact statement |
(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. |
Presentation
of statement |
(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. |
Evidence
concerning victim admissible |
(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.
R.S.,
1985, c. C-46, s. 722; 1995, c. 22, s. 6; 1999, c. 25, s.
17(Preamble); 2000, c. 12, s. 95. |
|
722.1 The
clerk of the court shall provide a copy of a statement referred to
in subsection 722(1), as soon as practicable after a finding of
guilt, to the offender or counsel for the offender, and to the
prosecutor.
1995,
c. 22, s. 6; 1999, c. 25, s. 18(Preamble). |
|
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.
1999,
c. 25, s. 18(Preamble). |
|
723. (1)
Before determining the sentence, a court shall give the prosecutor
and the offender an opportunity to make submissions with respect to
any facts relevant to the sentence to be imposed. |
|
(2)
The court shall hear any relevant evidence presented by the
prosecutor or the offender. |
|
(3)
The court may, on its own motion, after hearing argument from the
prosecutor and the offender, require the production of evidence that
would assist it in determining the appropriate sentence. |
|
(4)
Where it is necessary in the interests of justice, the court may,
after consulting the parties, compel the appearance of any person
who is a compellable witness to assist the court in determining the
appropriate sentence. |
|
(5)
Hearsay evidence is admissible at sentencing proceedings, but the
court may, if the court considers it to be in the interests of
justice, compel a person to testify where the person
(a) has personal knowledge of the
matter;
(b) is reasonably available;
and
(c) is a compellable witness.
R.S.,
1985, c. C-46, s. 723; 1995, c. 22, s. 6. |
|
724. (1) In
determining a sentence, a court may accept as proved any information
disclosed at the trial or at the sentencing proceedings and any
facts agreed on by the prosecutor and the offender. |
|
(2)
Where the court is composed of a judge and jury, the court
(a) shall accept as proven all
facts, express or implied, that are essential to the jury’s verdict
of guilty; and
(b) may find any other relevant
fact that was disclosed by evidence at the trial to be proven, or
hear evidence presented by either party with respect to that
fact. |
|
(3)
Where there is a dispute with respect to any fact that is relevant
to the determination of a sentence,
(a) the court shall request that
evidence be adduced as to the existence of the fact unless the court
is satisfied that sufficient evidence was adduced at the trial;
(b) the party wishing to rely on a
relevant fact, including a fact contained in a presentence report,
has the burden of proving it;
(c) either party may cross-examine
any witness called by the other party;
(d) subject to paragraph (e), the court must be satisfied on
a balance of probabilities of the existence of the disputed fact
before relying on it in determining the sentence; and
(e) the prosecutor must establish,
by proof beyond a reasonable doubt, the existence of any aggravating
fact or any previous conviction by the offender.
R.S.,
1985, c. C-46, s. 724; 1995, c. 22, s. 6. |
|
725. (1) In
determining the sentence, a court
(a) shall consider, if it is
possible and appropriate to do so, any other offences of which the
offender was found guilty by the same court, and shall determine the
sentence to be imposed for each of those offences;
(b) shall consider, if the Attorney
General and the offender consent, any outstanding charges against
the offender to which the offender consents to plead guilty and
pleads guilty, if the court has jurisdiction to try those charges,
and shall determine the sentence to be imposed for each charge
unless the court is of the opinion that a separate prosecution for
the other offence is necessary in the public interest;
(b.1) shall consider any
outstanding charges against the offender, unless the court is of the
opinion that a separate prosecution for one or more of the other
offences is necessary in the public interest, subject to the
following conditions:
(i)
the Attorney General and the offender consent,
(ii)
the court has jurisdiction to try each charge,
(iii)
each charge has been described in open court,
(iv)
the offender has agreed with the facts asserted in the description
of each charge, and
(v)
the offender has acknowledged having committed the offence described
in each charge; and
(c) may consider any facts forming
part of the circumstances of the offence that could constitute the
basis for a separate charge. |
Attorney
General’s consent |
(1.1)
For the purpose of paragraphs (1)(b) and (b.1), the Attorney General shall
take the public interest into account before consenting. |
|
(2)
The court shall, on the information or indictment, note
(a) any outstanding charges
considered in determining the sentence under paragraph (1)(b.1), and
(b) any facts considered in
determining the sentence under paragraph (1)(c),
and no
further proceedings may be taken with respect to any offence
described in those charges or disclosed by those facts unless the
conviction for the offence of which the offender has been found
guilty is set aside or quashed on appeal.
R.S.,
1985, c. C-46, s. 725; R.S., 1985, c. 27 (1st Supp.), s. 158, c. 1
(4th Supp.), s. 18(F); 1995, c. 22, s. 6; 1999, c. 5, s.
31. |
|
726. Before
determining the sentence to be imposed, the court shall ask whether
the offender, if present, has anything to say.
R.S.,
1985, c. C-46, s. 726; R.S., 1985, c. 27 (1st Supp.), s. 159, c. 1
(4th Supp.), s. 18(F); 1995, c. 22, s. 6. |
|
726.1 In
determining the sentence, a court shall consider any relevant
information placed before it, including any representations or
submissions made by or on behalf of the prosecutor or the
offender.
1995,
c. 22, s. 6. |
|
726.2 When
imposing a sentence, a court shall state the terms of the sentence
imposed, and the reasons for it, and enter those terms and reasons
into the record of the proceedings.
1995,
c. 22, s. 6. |
|
727. (1)
Subject to subsections (3) and (4), where an offender is convicted
of an offence for which a greater punishment may be imposed by
reason of previous convictions, no greater punishment shall be
imposed on the offender by reason thereof unless the prosecutor
satisfies the court that the offender, before making a plea, was
notified that a greater punishment would be sought by reason
thereof. |
|
(2)
Where an offender is convicted of an offence for which a greater
punishment may be imposed by reason of previous convictions, the
court shall, on application by the prosecutor and on being satisfied
that the offender was notified in accordance with subsection (1),
ask whether the offender was previously convicted and, if the
offender does not admit to any previous convictions, evidence of
previous convictions may be adduced. |
|
(3)
Where a summary conviction court holds a trial pursuant to
subsection 803(2) and convicts the offender, the court may, whether
or not the offender was notified that a greater punishment would be
sought by reason of a previous conviction, make inquiries and hear
evidence with respect to previous convictions of the offender and,
if any such conviction is proved, may impose a greater punishment by
reason thereof. |
|
(4)
If, under section 623, the court proceeds with the trial of an
organization that has not appeared and pleaded and convicts the
organization, the court may, whether or not the organization was
notified that a greater punishment would be sought by reason of a
previous conviction, make inquiries and hear evidence with respect
to previous convictions of the organization and, if any such
conviction is proved, may impose a greater punishment by reason of
that conviction. |
|
(5)
This section does not apply to a person referred to in paragraph
745(b).
R.S.,
1985, c. C-46, s. 727; R.S., 1985, c. 27 (1st Supp.), s. 160; 1995,
c. 22, s. 6; 2003, c. 21, s. 16. |
|
728. Where
one sentence is passed on a verdict of guilty on two or more counts
of an indictment, the sentence is good if any of the counts would
have justified the sentence.
R.S.,
1985, c. C-46, s. 728; 1995, c. 22, s. 6. |
|
729. (1)
In
(a) a prosecution for failure to
comply with a condition in a probation order that the accused not
have in possession or use drugs, or
(b) a hearing to determine whether
the offender breached a condition of a conditional sentence order
that the offender not have in possession or use drugs,
a
certificate purporting to be signed by an analyst stating that the
analyst has analyzed or examined a substance and stating the result
of the analysis or examination is admissible in evidence and, in the
absence of evidence to the contrary, is proof of the statements
contained in the certificate without proof of the signature or
official character of the person appearing to have signed the
certificate. |
|
(2) In
this section, “analyst” means a person designated as an analyst
under the Controlled Drugs and
Substances Act. |
Notice
of intention to produce certificate |
(3) No
certificate shall be admitted in evidence unless the party intending
to produce it has, before the trial or hearing, as the case may be,
given reasonable notice and a copy of the certificate to the party
against whom it is to be produced. |
|
(4)
Service of any certificate referred to in subsection (1) may be
proved by oral evidence given under oath by, or by the affidavit or
solemn declaration of, the person claiming to have served
it. |
Attendance
for examination |
(5)
Notwithstanding subsection (4), the court may require the person who
appears to have signed an affidavit or solemn declaration referred
to in that subsection to appear before it for examination or
cross-examination in respect of the issue of proof of
service. |
Requiring
attendance of analyst |
(6)
The party against whom a certificate of an analyst is produced may,
with leave of the court, require the attendance of the analyst for
cross-examination.
R.S.,
1985, c. C-46, s. 729; 1995, c. 22, s. 6; 1999, c. 31, s. 69; 2004,
c. 12, s. 11(E). |
|
Absolute
and Conditional Discharges |
|
730. (1)
Where an accused, other than an organization, pleads guilty to or is
found guilty of an offence, other than an offence for which a
minimum punishment is prescribed by law or an offence punishable by
imprisonment for fourteen years or for life, the court before which
the accused appears may, if it considers it to be in the best
interests of the accused and not contrary to the public interest,
instead of convicting the accused, by order direct that the accused
be discharged absolutely or on the conditions prescribed in a
probation order made under subsection 731(2). |
Period
for which appearance notice, etc., continues in force |
(2)
Subject to Part XVI, where an accused who has not been taken into
custody or who has been released from custody under or by virtue of
any provision of Part XVI pleads guilty of or is found guilty of an
offence but is not convicted, the appearance notice, promise to
appear, summons, undertaking or recognizance issued to or given or
entered into by the accused continues in force, subject to its
terms, until a disposition in respect of the accused is made under
subsection (1) unless, at the time the accused pleads guilty or is
found guilty, the court, judge or justice orders that the accused be
taken into custody pending such a disposition. |
|
(3)
Where a court directs under subsection (1) that an offender be
discharged of an offence, the offender shall be deemed not to have
been convicted of the offence except that
(a) the offender may appeal from
the determination of guilt as if it were a conviction in respect of
the offence;
(b) the Attorney General and, in
the case of summary conviction proceedings, the informant or the
informant’s agent may appeal from the decision of the court not to
convict the offender of the offence as if that decision were a
judgment or verdict of acquittal of the offence or a dismissal of
the information against the offender; and
(c) the offender may plead autrefois convict in respect of
any subsequent charge relating to the offence. |
Where
person bound by probation order convicted of offence |
(4)
Where an offender who is bound by the conditions of a probation
order made at a time when the offender was directed to be discharged
under this section is convicted of an offence, including an offence
under section 733.1, the court that made the probation order may, in
addition to or in lieu of exercising its authority under subsection
732.2(5), at any time when it may take action under that subsection,
revoke the discharge, convict the offender of the offence to which
the discharge relates and impose any sentence that could have been
imposed if the offender had been convicted at the time of discharge,
and no appeal lies from a conviction under this subsection where an
appeal was taken from the order directing that the offender be
discharged.
R.S.,
1985, c. C-46, s. 730; 1995, c. 22, s. 6; 1997, c. 18, s. 141; 2003,
c. 21, s. 17. |
|
|
|
731. (1)
Where a person is convicted of an offence, a court may, having
regard to the age and character of the offender, the nature of the
offence and the circumstances surrounding its commission,
(a) if no minimum punishment is
prescribed by law, suspend the passing of sentence and direct that
the offender be released on the conditions prescribed in a probation
order; or
(b) in addition to fining or
sentencing the offender to imprisonment for a term not exceeding two
years, direct that the offender comply with the conditions
prescribed in a probation order. |
|
(2) A
court may also make a probation order where it discharges an accused
under subsection 730(1).
(3.1)
[Repealed, 1997, c. 17, s. 1]
R.S.,
1985, c. C-46, s. 731; 1992, c. 1, s. 58, c. 20, s. 200; 1995, c.
22, s. 6; 1997, c. 17, s. 1. |
|
731.1 (1)
Before making a probation order, the court shall consider whether
section 109 or 110 is applicable. |
Application
of section 109 or 110 |
(2)
For greater certainty, a condition of a probation order referred to
in paragraph 732.1(3)(d)
does not affect the operation of section 109 or 110.
1992,
c. 20, s. 201; 1995, c. 22, s. 6; 2002, c. 13, s. 73. |
|
732. (1)
Where the court imposes a sentence of imprisonment of ninety days or
less on an offender convicted of an offence, whether in default of
payment of a fine or otherwise, the court may, having regard to the
age and character of the offender, the nature of the offence and the
circumstances surrounding its commission, and the availability of
appropriate accommodation to ensure compliance with the sentence,
order
(a) that the sentence be served
intermittently at such times as are specified in the order; and
(b) that the offender comply with
the conditions prescribed in a probation order when not in
confinement during the period that the sentence is being served and,
if the court so orders, on release from prison after completing the
intermittent sentence. |
Application
to vary intermittent sentence |
(2) An
offender who is ordered to serve a sentence of imprisonment
intermittently may, on giving notice to the prosecutor, apply to the
court that imposed the sentence to allow it to be served on
consecutive days. |
Court
may vary intermittent sentence if subsequent offence |
(3)
Where a court imposes a sentence of imprisonment on a person who is
subject to an intermittent sentence in respect of another offence,
the unexpired portion of the intermittent sentence shall be served
on consecutive days unless the court otherwise orders.
R.S.,
1985, c. C-46, s. 732; 1995, c. 22, s. 6. |
|
732.1 (1) In
this section and section 732.2, |
“change”
« modification » |
“change”, in relation to
optional conditions, includes deletions and additions; |
“optional conditions”
« conditions
facultatives » |
“optional conditions”
means the conditions referred to in subsection (3) or
(3.1). |
Compulsory
conditions of probation order |
(2)
The court shall prescribe, as conditions of a probation order, that
the offender do all of the following:
(a) keep the peace and be of good
behaviour;
(b) appear before the court when
required to do so by the court; and
(c) notify the court or the
probation officer in advance of any change of name or address, and
promptly notify the court or the probation officer of any change of
employment or occupation. |
Optional
conditions of probation order |
(3)
The court may prescribe, as additional conditions of a probation
order, that the offender do one or more of the following:
(a) report to a probation
officer
(i)
within two working days, or such longer period as the court directs,
after the making of the probation order, and
(ii)
thereafter, when required by the probation officer and in the manner
directed by the probation officer;
(b) remain within the jurisdiction
of the court unless written permission to go outside that
jurisdiction is obtained from the court or the probation
officer;
(c) abstain from
(i)
the consumption of alcohol or other intoxicating substances, or
(ii)
the consumption of drugs except in accordance with a medical
prescription;
(d) abstain from owning, possessing
or carrying a weapon;
(e) provide for the support or care
of dependants;
(f) perform up to 240 hours of
community service over a period not exceeding eighteen months;
(g) if the offender agrees, and
subject to the program director’s acceptance of the offender,
participate actively in a treatment program approved by the
province;
(g.1) where the lieutenant governor
in council of the province in which the probation order is made has
established a program for curative treatment in relation to the
consumption of alcohol or drugs, attend at a treatment facility,
designated by the lieutenant governor in council of the province,
for assessment and curative treatment in relation to the consumption
by the offender of alcohol or drugs that is recommended pursuant to
the program;
(g.2) where the lieutenant governor
in council of the province in which the probation order is made has
established a program governing the use of an alcohol ignition
interlock device by an offender and if the offender agrees to
participate in the program, comply with the program; and
(h) comply with such other
reasonable conditions as the court considers desirable, subject to
any regulations made under subsection 738(2), for protecting society
and for facilitating the offender’s successful reintegration into
the community. |
Optional
conditions — organization |
(3.1)
The court may prescribe, as additional conditions of a probation
order made in respect of an organization, that the offender do one
or more of the following:
(a) make restitution to a person
for any loss or damage that they suffered as a result of the
offence;
(b) establish policies, standards
and procedures to reduce the likelihood of the organization
committing a subsequent offence;
(c) communicate those policies,
standards and procedures to its representatives;
(d) report to the court on the
implementation of those policies, standards and procedures;
(e) identify the senior officer who
is responsible for compliance with those policies, standards and
procedures;
(f) provide, in the manner
specified by the court, the following information to the public,
namely,
(i)
the offence of which the organization was convicted,
(ii)
the sentence imposed by the court, and
(iii)
any measures that the organization is taking — including any
policies, standards and procedures established under paragraph
(b) — to reduce the
likelihood of it committing a subsequent offence; and
(g) comply with any other
reasonable conditions that the court considers desirable to prevent
the organization from committing subsequent offences or to remedy
the harm caused by the offence. |
Consideration
— organizations |
(3.2)
Before making an order under paragraph (3.1)(b), a court shall consider whether
it would be more appropriate for another regulatory body to
supervise the development or implementation of the policies,
standards and procedures referred to in that paragraph. |
|
(4) A
probation order may be in Form 46, and the court that makes the
probation order shall specify therein the period for which it is to
remain in force. |
Proceedings
on making order |
(5) A
court that makes a probation order shall
(a) cause to be given to the
offender
(i) a
copy of the order,
(ii)
an explanation of the substance of subsections 732.2(3) and (5) and
section 733.1, and
(iii)
an explanation of the procedure for applying under subsection
732.2(3) for a change to the optional conditions; and
(b) take reasonable measures to
ensure that the offender understands the order and the explanations
given to the offender under paragraph (a).
1995,
c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s.
18. |
|
732.2 (1) A
probation order comes into force
(a) on the date on which the order
is made;
(b) where the offender is sentenced
to imprisonment under paragraph 731(1)(b) or was previously sentenced to
imprisonment for another offence, as soon as the offender is
released from prison or, if released from prison on conditional
release, at the expiration of the sentence of imprisonment; or
(c) where the offender is under a
conditional sentence order, at the expiration of the conditional
sentence order. |
Duration
of order and limit on term of order |
(2)
Subject to subsection (5),
(a) where an offender who is bound
by a probation order is convicted of an offence, including an
offence under section 733.1, or is imprisoned under paragraph
731(1)(b) in default of
payment of a fine, the order continues in force except in so far as
the sentence renders it impossible for the offender for the time
being to comply with the order; and
(b) no probation order shall
continue in force for more than three years after the date on which
the order came into force. |
Changes
to probation order |
(3) A
court that makes a probation order may at any time, on application
by the offender, the probation officer or the prosecutor, require
the offender to appear before it and, after hearing the offender and
one or both of the probation officer and the prosecutor,
(a) make any changes to the
optional conditions that in the opinion of the court are rendered
desirable by a change in the circumstances since those conditions
were prescribed,
(b) relieve the offender, either
absolutely or on such terms or for such period as the court deems
desirable, of compliance with any optional condition, or
(c) decrease the period for which
the probation order is to remain in force,
and the
court shall thereupon endorse the probation order accordingly and,
if it changes the optional conditions, inform the offender of its
action and give the offender a copy of the order so
endorsed. |
Judge
may act in chambers |
(4)
All the functions of the court under subsection (3) may be exercised
in chambers. |
Where
person convicted of offence |
(5)
Where an offender who is bound by a probation order is convicted of
an offence, including an offence under section 733.1, and
(a) the time within which an appeal
may be taken against that conviction has expired and the offender
has not taken an appeal,
(b) the offender has taken an
appeal against that conviction and the appeal has been dismissed,
or
(c) the offender has given written
notice to the court that convicted the offender that the offender
elects not to appeal the conviction or has abandoned the appeal, as
the case may be,
in
addition to any punishment that may be imposed for that offence, the
court that made the probation order may, on application by the
prosecutor, require the offender to appear before it and, after
hearing the prosecutor and the offender,
(d) where the probation order was
made under paragraph 731(1)(a), revoke the order and impose
any sentence that could have been imposed if the passing of sentence
had not been suspended, or
(e) make such changes to the
optional conditions as the court deems desirable, or extend the
period for which the order is to remain in force for such period,
not exceeding one year, as the court deems desirable,
and the
court shall thereupon endorse the probation order accordingly and,
if it changes the optional conditions or extends the period for
which the order is to remain in force, inform the offender of its
action and give the offender a copy of the order so
endorsed. |
Compelling
appearance of person bound |
(6)
The provisions of Parts XVI and XVIII with respect to compelling the
appearance of an accused before a justice apply, with such
modifications as the circumstances require, to proceedings under
subsections (3) and (5).
1995,
c. 22, s. 6; 2004, c. 12, s. 12(E). |
|
733. (1)
Where an offender who is bound by a probation order becomes a
resident of, or is convicted or discharged under section 730 of an
offence including an offence under section 733.1 in, a territorial
division other than the territorial division where the order was
made, on the application of a probation officer, the court that made
the order may, subject to subsection (1.1), transfer the order to a
court in that other territorial division that would, having regard
to the mode of trial of the offender, have had jurisdiction to make
the order in that other territorial division if the offender had
been tried and convicted there of the offence in respect of which
the order was made, and the order may thereafter be dealt with and
enforced by the court to which it is so transferred in all respects
as if that court had made the order. |
Attorney
General’s consent |
(1.1)
The transfer may be granted only with
(a) the consent of the Attorney
General of the province in which the probation order was made, if
the two territorial divisions are not in the same province; or
(b) the consent of the Attorney
General of Canada, if the proceedings that led to the issuance of
the probation order were instituted by or on behalf of the Attorney
General of Canada. |
Where
court unable to act |
(2)
Where a court that has made a probation order or to which a
probation order has been transferred pursuant to subsection (1) is
for any reason unable to act, the powers of that court in relation
to the probation order may be exercised by any other court that has
equivalent jurisdiction in the same province.
R.S.,
1985, c. C-46, s. 733; R.S., 1985, c. 24 (2nd Supp.), s. 46; 1995,
c. 22, s. 6; 1999, c. 5, s. 32. |
|
733.1 (1) An
offender who is bound by a probation order and who, without
reasonable excuse, fails or refuses to comply with that order is
guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction and is liable to imprisonment for a term not
exceeding eighteen months, or to a fine not exceeding two thousand
dollars, or both. |
Where
accused may be tried and punished |
(2) An
accused who is charged with an offence under subsection (1) may be
tried and punished by any court having jurisdiction to try that
offence in the place where the offence is alleged to have been
committed or in the place where the accused is found, is arrested or
is in custody, but where the place where the accused is found, is
arrested or is in custody is outside the province in which the
offence is alleged to have been committed, no proceedings in respect
of that offence shall be instituted in that place without the
consent of the Attorney General of that province.
1995,
c. 22, s. 6. |
|
|
|
734. (1)
Subject to subsection (2), a court that convicts a person, other
than an organization, of an offence may fine the offender by making
an order under section 734.1
(a) if the punishment for the
offence does not include a minimum term of imprisonment, in addition
to or in lieu of any other sanction that the court is authorized to
impose; or
(b) if the punishment for the
offence includes a minimum term of imprisonment, in addition to any
other sanction that the court is required or authorized to
impose. |
Offender’s
ability to pay |
(2)
Except when the punishment for an offence includes a minimum fine or
a fine is imposed in lieu of a forfeiture order, a court may fine an
offender under this section only if the court is satisfied that the
offender is able to pay the fine or discharge it under section
736. |
Meaning
of default of payment |
(3)
For the purposes of this section and sections 734.1 to 737, a person
is in default of payment of a fine if the fine has not been paid in
full by the time set out in the order made under section
734.1. |
Imprisonment
in default of payment |
(4)
Where an offender is fined under this section, a term of
imprisonment, determined in accordance with subsection (5), shall be
deemed to be imposed in default of payment of the fine. |
|
(5)
The length, in days, of the term of imprisonment referred to in
subsection (4) is the lesser of
(a) a fraction, rounded down to the
nearest whole number, of which
(i)
the numerator is the unpaid amount of the fine plus the costs and
charges of committing and conveying the defaulter to prison,
calculated in accordance with regulations made under subsection (7),
and
(ii)
the denominator is equal to eight times the provincial minimum
hourly wage, at the time of default, in the province in which the
fine was imposed, and
(b) the maximum term of
imprisonment, expressed in days, that the court could itself impose
on conviction. |
|
(6)
All or any part of a fine imposed under this section may be taken
out of moneys found in the possession of the offender at the time of
the arrest of the offender if the court making the order, on being
satisfied that ownership of or right to possession of those moneys
is not disputed by claimants other than the offender, so
directs. |
|
(7)
The lieutenant governor in council of a province may make
regulations respecting the calculation of the costs and charges
referred to in subparagraph (5)(a)(i) and in paragraph
734.8(1)(b). |
|
(8)
This section and sections 734.1 to 734.8 and 736 apply to a fine
imposed under any Act of Parliament, except that subsections (4) and
(5) do not apply if the term of imprisonment in default of payment
of the fine provided for in that Act or regulation is
(a) calculated by a different
method; or
(b) specified, either as a minimum
or a maximum.
R.S.,
1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995,
c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19. |
|
734.1 A court
that fines an offender under section 734 shall do so by making an
order that clearly sets out
(a) the amount of the fine;
(b) the manner in which the fine is
to be paid;
(c) the time or times by which the
fine, or any portion thereof, must be paid; and
(d) such other terms respecting the
payment of the fine as the court deems appropriate.
1995,
c. 22, s. 6. |
|
734.2 A court
that makes an order under section 734.1 shall
(a) cause to be given to the
offender
(i) a
copy of the order,
(ii)
an explanation of the substance of sections 734 to 734.8 and
736,
(iii)
an explanation of available programs referred to in section 736 and
of the procedure for applying for admission to such programs,
and
(iv)
an explanation of the procedure for applying under section 734.3 for
a change in the terms of the order; and
(b) take reasonable measures to
ensure that the offender understands the order and the explanations
given to the offender under paragraph (a).
1995,
c. 22, s. 6. |
|
734.3 A court
that makes an order under section 734.1, or a person designated
either by name or by title of office by that court, may, on
application by or on behalf of the offender, subject to any rules
made by the court under section 482 or 482.1, change any term of the
order except the amount of the fine, and any reference in this
section and sections 734, 734.1, 734.2 and 734.6 to an order shall
be read as including a reference to the order as changed under this
section.
1995,
c. 22, s. 6; 2002, c. 13, s. 74. |
|
734.4 (1)
Where a fine or forfeiture is imposed or a recognizance is forfeited
and no provision, other than this section, is made by law for the
application of the proceeds thereof, the proceeds belong to Her
Majesty in right of the province in which the fine or forfeiture was
imposed or the recognizance was forfeited, and shall be paid by the
person who receives them to the treasurer of that
province. |
Proceeds
to go to Receiver General for Canada |
(2)
Where
(a) a fine or forfeiture is
imposed
(i) in
respect of a contravention of a revenue law of Canada,
(ii)
in respect of a breach of duty or malfeasance in office by an
officer or employee of the Government of Canada, or
(iii)
in respect of any proceedings instituted at the instance of the
Government of Canada in which that government bears the costs of
prosecution, or
(b) a recognizance in connection
with proceedings mentioned in paragraph (a) is forfeited,
the
proceeds of the fine, forfeiture or recognizance belong to Her
Majesty in right of Canada and shall be paid by the person who
receives them to the Receiver General. |
Direction
for payment to municipality |
(3)
Where a provincial, municipal or local authority bears, in whole or
in part, the expense of administering the law under which a fine or
forfeiture is imposed or under which proceedings are taken in which
a recognizance is forfeited,
(a) the lieutenant governor in
council of a province may direct that the proceeds of a fine,
forfeiture or recognizance that belongs to Her Majesty in right of
the province shall be paid to that authority; and
(b) the Governor in Council may
direct that the proceeds of a fine, forfeiture or recognizance that
belongs to Her Majesty in right of Canada shall be paid to that
authority.
1995,
c. 22, s. 6. |
|
734.5 If an
offender is in default of payment of a fine,
(a) where the proceeds of the fine
belong to Her Majesty in right of a province by virtue of subsection
734.4(1), the person responsible, by or under an Act of the
legislature of the province, for issuing, renewing or suspending a
licence, permit or other similar instrument in relation to the
offender may refuse to issue or renew or may suspend the licence,
permit or other instrument until the fine is paid in full, proof of
which lies on the offender; or
(b) where the proceeds of the fine
belong to Her Majesty in right of Canada by virtue of subsection
734.4(2), the person responsible, by or under an Act of Parliament,
for issuing or renewing a licence, permit or other similar
instrument in relation to the offender may refuse to issue or renew
or may suspend the licence, permit or other instrument until the
fine is paid in full, proof of which lies on the offender.
1995,
c. 22, s. 6; 1999, c. 5, s. 34. |
|
734.6 (1)
Where
(a) an offender is in default of
payment of a fine, or
(b) a forfeiture imposed by law is
not paid as required by the order imposing it,
then, in
addition to any other method provided by law for recovering the fine
or forfeiture,
(c) the Attorney General of the
province to whom the proceeds of the fine or forfeiture belong,
or
(d) the Attorney General of Canada,
where the proceeds of the fine or forfeiture belong to Her Majesty
in right of Canada,
may, by
filing the order, enter as a judgment the amount of the fine or
forfeiture, and costs, if any, in any civil court in Canada that has
jurisdiction to enter a judgment for that amount. |
|
(2) An
order that is entered as a judgment under this section is
enforceable in the same manner as if it were a judgment obtained by
the Attorney General of the province or the Attorney General of
Canada, as the case may be, in civil proceedings.
1995,
c. 22, s. 6. |
|
734.7 (1)
Where time has been allowed for payment of a fine, the court shall
not issue a warrant of committal in default of payment of the
fine
(a) until the expiration of the
time allowed for payment of the fine in full; and
(b) unless the court is
satisfied
(i)
that the mechanisms provided by sections 734.5 and 734.6 are not
appropriate in the circumstances, or
(ii)
that the offender has, without reasonable excuse, refused to pay the
fine or discharge it under section 736. |
|
(2)
Where no time has been allowed for payment of a fine and a warrant
committing the offender to prison for default of payment of the fine
is issued, the court shall state in the warrant the reason for
immediate committal. |
|
(2.1)
The period of imprisonment in default of payment of the fine shall
be specified in a warrant of committal referred to in subsection (1)
or (2). |
Compelling
appearance of person bound |
(3)
The provisions of Parts XVI and XVIII with respect to compelling the
appearance of an accused before a justice apply, with such
modifications as the circumstances require, to proceedings under
paragraph (1)(b). |
|
(4)
The imprisonment of an offender for default of payment of a fine
terminates the operation of sections 734.5 and 734.6 in relation to
that fine.
1995,
c. 22, s. 6; 1999, c. 5, s. 35. |
|
734.8 (1) In
this section, “penalty” means the aggregate of
(a) the fine, and
(b) the costs and charges of
committing and conveying the defaulter to prison, calculated in
accordance with regulations made under subsection 734(7). |
Reduction
of imprisonment on part payment |
(2)
The term of imprisonment in default of payment of a fine shall, on
payment of a part of the penalty, whether the payment was made
before or after the execution of a warrant of committal, be reduced
by the number of days that bears the same proportion to the number
of days in the term as the part paid bears to the total
penalty. |
Minimum
that can be accepted |
(3) No
amount offered in part payment of a penalty shall be accepted after
the execution of a warrant of committal unless it is sufficient to
secure a reduction of sentence of one day, or a whole number
multiple of one day, and no part payment shall be accepted until any
fee that is payable in respect of the warrant or its execution has
been paid. |
|
(4)
Payment may be made under this section to the person that the
Attorney General directs or, if the offender is imprisoned, to the
person who has lawful custody of the prisoner or to any other person
that the Attorney General directs. |
Application
of money paid |
(5) A
payment under this section shall be applied firstly to the payment
in full of costs and charges, secondly to the payment in full of any
victim surcharge imposed under section 737, and then to payment of
any part of the fine that remains unpaid.
1995,
c. 22, s. 6; 1999, c. 5, s. 36, c. 25, s. 19(Preamble). |
|
735. (1) An
organization that is convicted of an offence is liable, in lieu of
any imprisonment that is prescribed as punishment for that offence,
to be fined in an amount, except where otherwise provided by
law,
(a) that is in the discretion of
the court, where the offence is an indictable offence; or
(b) not exceeding one hundred
thousand dollars, where the offence is a summary conviction
offence. |
Application
of certain provisions — fines |
(1.1)
A court that imposes a fine under subsection (1) or under any other
Act of Parliament shall make an order that clearly sets out
(a) the amount of the fine;
(b) the manner in which the fine is
to be paid;
(c) the time or times by which the
fine, or any portion of it, must be paid; and
(d) any other terms respecting the
payment of the fine that the court deems appropriate. |
|
(2)
Section 734.6 applies, with any modifications that are required,
when an organization fails to pay the fine in accordance with the
terms of the order.
R.S.,
1985, c. C-46, s. 735; R.S., 1985, c. 1 (4th Supp.), s. 18(F), c. 23
(4th Supp.), s. 7; 1995, c. 22, s. 6; 1999, c. 5, s. 37; 2003, c.
21, s. 20. |
|
736. (1) An
offender who is fined under section 734 may, whether or not the
offender is serving a term of imprisonment imposed in default of
payment of the fine, discharge the fine in whole or in part by
earning credits for work performed during a period not greater than
two years in a program established for that purpose by the
lieutenant governor in council
(a) of the province in which the
fine was imposed, or
(b) of the province in which the
offender resides, where an appropriate agreement is in effect
between the government of that province and the government of the
province in which the fine was imposed,
if the
offender is admissible to such a program. |
Credits
and other matters |
(2) A
program referred to in subsection (1) shall determine the rate at
which credits are earned and may provide for the manner of crediting
any amounts earned against the fine and any other matters necessary
for or incidental to carrying out the program. |
|
(3)
Credits earned for work performed as provided by subsection (1)
shall, for the purposes of this Act, be deemed to be payment in
respect of a fine. |
Federal-provincial
agreement |
(4)
Where, by virtue of subsection 734.4(2), the proceeds of a fine
belong to Her Majesty in right of Canada, an offender may discharge
the fine in whole or in part in a fine option program of a province
pursuant to subsection (1), where an appropriate agreement is in
effect between the government of the province and the Government of
Canada.
R.S.,
1985, c. C-46, s. 736; R.S., 1985, c. 27 (1st Supp.), s. 162, c. 1
(4th Supp.), s. 18(F); 1992, c. 1, s. 60(F); 1995, c. 22, s.
6. |
|
737. (1)
Subject to subsection (5), an offender who is convicted or
discharged under section 730 of an offence under this Act or the
Controlled Drugs and Substances
Act shall pay a victim surcharge, in addition to any other
punishment imposed on the offender. |
|
(2)
Subject to subsection (3), the amount of the victim surcharge in
respect of an offence is
(a) 15 per cent of any fine that is
imposed on the offender for the offence; or
(b) if no fine is imposed on the
offender for the offence,
(i)
$50 in the case of an offence punishable by summary conviction,
and
(ii)
$100 in the case of an offence punishable by indictment. |
|
(3)
The court may order an offender to pay a victim surcharge in an
amount exceeding that set out in subsection (2) if the court
considers it appropriate in the circumstances and is satisfied that
the offender is able to pay the higher amount. |
|
(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. |
|
(5)
When the offender establishes to the satisfaction of the court that
undue hardship to the offender or the dependants of the offender
would result from payment of the victim surcharge, the court may, on
application of the offender, make an order exempting the offender
from the application of subsection (1). |
|
(6)
When the court makes an order under subsection (5), the court shall
state its reasons in the record of the proceedings. |
Amounts
applied to aid victims |
(7) A
victim surcharge imposed under subsection (1) shall be applied for
the purposes of providing such assistance to victims of offences as
the lieutenant governor in council of the province in which the
surcharge is imposed may direct from time to time. |
|
(8)
The court shall cause to be given to the offender a written notice
setting out
(a) the amount of the victim
surcharge;
(b) the manner in which the victim
surcharge is to be paid;
(c) the time by which the victim
surcharge must be paid; and
(d) the procedure for applying for
a change in any terms referred to in paragraphs (b) and (c) in accordance with section
734.3. |
|
(9)
Subsections 734(3) to (7) and sections 734.3, 734.5, 734.7 and 734.8
apply, with any modifications that the circumstances require, in
respect of a victim surcharge imposed under subsection (1) and, in
particular,
(a) a reference in any of those
provisions to “fine”, other than in subsection 734.8(5), must be
read as if it were a reference to “victim surcharge”; and
(b) the notice provided under
subsection (8) is deemed to be an order made under section
734.1. |
Section
736 does not apply |
(10)
For greater certainty, the program referred to in section 736 for
the discharge of a fine may not be used in respect of a victim
surcharge.
R.S.,
1985, c. C-46, s. 737; 1995, c. 22, ss. 6, 18; 1996, c. 19, s. 75;
1999, c. 5, s. 38, c. 25, s. 20(Preamble). |
|
|
|
738. (1)
Where an offender is convicted or discharged under section 730 of an
offence, the court imposing sentence on or discharging the offender
may, on application of the Attorney General or on its own motion, in
addition to any other measure imposed on the offender, order that
the offender make restitution to another person as follows:
(a) in the case of damage to, or
the loss or destruction of, the property of any person as a result
of the commission of the offence or the arrest or attempted arrest
of the offender, by paying to the person an amount not exceeding the
replacement value of the property as of the date the order is
imposed, less the value of any part of the property that is returned
to that person as of the date it is returned, where the amount is
readily ascertainable;
(b) in the case of bodily harm to
any person as a result of the commission of the offence or the
arrest or attempted arrest of the offender, by paying to the person
an amount not exceeding all pecuniary damages, including loss of
income or support, incurred as a result of the bodily harm, where
the amount is readily ascertainable; and
(c) in the case of bodily harm or
threat of bodily harm to the offender’s spouse or common-law partner
or child, or any other person, as a result of the commission of the
offence or the arrest or attempted arrest of the offender, where the
spouse or common-law partner, child or other person was a member of
the offender’s household at the relevant time, by paying to the
person in question, independently of any amount ordered to be paid
under paragraphs (a) and
(b), an amount not exceeding
actual and reasonable expenses incurred by that person, as a result
of moving out of the offender’s household, for temporary housing,
food, child care and transportation, where the amount is readily
ascertainable. |
|
(2)
The lieutenant governor in council of a province may make
regulations precluding the inclusion of provisions on enforcement of
restitution orders as an optional condition of a probation order or
of a conditional sentence order.
R.S.,
1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s.
95. |
|
739. Where an
offender is convicted or discharged under section 730 of an offence
and
(a) any property obtained as a
result of the commission of the offence has been conveyed or
transferred for valuable consideration to a person acting in good
faith and without notice, or
(b) the offender has borrowed money
on the security of that property from a person acting in good faith
and without notice,
the
court may, where that property has been returned to the lawful owner
or the person who had lawful possession of that property at the time
the offence was committed, order the offender to pay as restitution
to the person referred to in paragraph (a) or (b) an amount not exceeding the
amount of consideration for that property or the total amount
outstanding in respect of the loan, as the case may be.
R.S.,
1985, c. C-46, s. 739; R.S., 1985, c. 27 (1st Supp.), s. 163, c. 1
(4th Supp.), s. 18(F); 1995, c. 22, s. 6. |
|
740. Where
the court finds it applicable and appropriate in the circumstances
of a case to make, in relation to an offender, an order of
restitution under section 738 or 739, and
(a) an order of forfeiture under
this or any other Act of Parliament may be made in respect of
property that is the same as property in respect of which the order
of restitution may be made, or
(b) the court is considering
ordering the offender to pay a fine and it appears to the court that
the offender would not have the means or ability to comply with both
the order of restitution and the order to pay the fine,
the
court shall first make the order of restitution and shall then
consider whether and to what extent an order of forfeiture or an
order to pay a fine is appropriate in the circumstances.
R.S.,
1985, c. C-46, s. 740; 1995, c. 22, s. 6. |
|
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. |
|
(2)
All or any part of an amount that is ordered to be paid under
section 738 or 739 may be taken out of moneys found in the
possession of the offender at the time of the arrest of the offender
if the court making the order, on being satisfied that ownership of
or right to possession of those moneys is not disputed by claimants
other than the offender, so directs.
R.S.,
1985, c. C-46, s. 741; R.S., 1985, c. 27 (1st Supp.), s. 164; 1995,
c. 22, s. 6; 2004, c. 12, s. 13. |
|
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.
R.S.,
1985, c. 24 (2nd Supp.), s. 47; 1992, c. 11, s. 14, c. 20, s. 202;
1995, c. 19, s. 37, c. 22, s. 6. |
|
741.2 A civil
remedy for an act or omission is not affected by reason only that an
order for restitution under section 738 or 739 has been made in
respect of that act or omission.
1992,
c. 20, s. 203; 1995, c. 22, s. 6, c. 42, s. 75. |
|
Conditional
Sentence of Imprisonment |
|
742. In
sections 742.1 to 742.7, |
“change”
« modification » |
“change”, in relation to
optional conditions, includes deletions and additions; |
“optional conditions”
« conditions
facultatives » |
“optional conditions”
means the conditions referred to in subsection 742.3(2); |
“supervisor”
« agent de
surveillance » |
“supervisor” means a
person designated by the Attorney General, either by name or by
title of office, as a supervisor for the purposes of sections 742.1
to 742.7.
R.S.,
1985, c. C-46, s. 742; R.S., 1985, c. 27 (1st Supp.), s. 165; 1992,
c. 11, s. 15; 1995, c. 22, s. 6. |
|
742.1 Where a
person is convicted of an offence, except an offence that is
punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of
imprisonment of less than two years, and
(b) is satisfied that serving the
sentence in the community would not endanger the safety of the
community and would be consistent with the fundamental purpose and
principles of sentencing set out in sections 718 to 718.2,
the
court may, for the purpose of supervising the offender’s behaviour
in the community, order that the offender serve the sentence in the
community, subject to the offender’s complying with the conditions
of a conditional sentence order made under section 742.3.
1992,
c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s.
107.1. |
|
742.2 (1)
Before imposing a conditional sentence under section 742.1, the
court shall consider whether section 109 or 110 is
applicable. |
Application
of section 109 or 110 |
(2)
For greater certainty, a condition of a conditional sentence order
referred to in paragraph 742.3(2)(b) does not affect the operation
of section 109 or 110.
1995,
c. 22, s. 6; 2002, c. 13, s. 75; 2004, c. 12, s. 14(E). |
|
742.3 (1) The
court shall prescribe, as conditions of a conditional sentence
order, that the offender do all of the following:
(a) keep the peace and be of good
behaviour;
(b) appear before the court when
required to do so by the court;
(c) report to a supervisor
(i)
within two working days, or such longer period as the court directs,
after the making of the conditional sentence order, and
(ii)
thereafter, when required by the supervisor and in the manner
directed by the supervisor;
(d) remain within the jurisdiction
of the court unless written permission to go outside that
jurisdiction is obtained from the court or the supervisor; and
(e) notify the court or the
supervisor in advance of any change of name or address, and promptly
notify the court or the supervisor of any change of employment or
occupation. |
Optional
conditions of conditional sentence order |
(2)
The court may prescribe, as additional conditions of a conditional
sentence order, that the offender do one or more of the
following:
(a) abstain from
(i)
the consumption of alcohol or other intoxicating substances, or
(ii)
the consumption of drugs except in accordance with a medical
prescription;
(b) abstain from owning, possessing
or carrying a weapon;
(c) provide for the support or care
of dependants;
(d) perform up to 240 hours of
community service over a period not exceeding eighteen months;
(e) attend a treatment program
approved by the province; and
(f) comply with such other
reasonable conditions as the court considers desirable, subject to
any regulations made under subsection 738(2), for securing the good
conduct of the offender and for preventing a repetition by the
offender of the same offence or the commission of other
offences. |
Proceedings
on making order |
(3) A
court that makes an order under this section shall
(a) cause to be given to the
offender
(i) a
copy of the order,
(ii)
an explanation of the substance of sections 742.4 and 742.6, and
(iii)
an explanation of the procedure for applying under section 742.4 for
a change to the optional conditions; and
(b) take reasonable measures to
ensure that the offender understands the order and the explanations
given to the offender under paragraph (a).
1995,
c. 22, s. 6. |
|
742.4 (1)
Where an offender’s supervisor is of the opinion that a change in
circumstances makes a change to the optional conditions desirable,
the supervisor shall give written notification of the proposed
change, and the reasons for it, to the offender, to the prosecutor
and to the court. |
|
(2)
Within seven days after receiving a notification referred to in
subsection (1),
(a) the offender or the prosecutor
may request the court to hold a hearing to consider the proposed
change, or
(b) the court may, of its own
initiative, order that a hearing be held to consider the proposed
change,
and a
hearing so requested or ordered shall be held within thirty days
after the receipt by the court of the notification referred to in
subsection (1). |
|
(3) At
a hearing held pursuant to subsection (2), the court
(a) shall approve or refuse to
approve the proposed change; and
(b) may make any other change to
the optional conditions that the court deems appropriate. |
Where
no hearing requested or ordered |
(4)
Where no request or order for a hearing is made within the time
period stipulated in subsection (2), the proposed change takes
effect fourteen days after the receipt by the court of the
notification referred to in subsection (1), and the supervisor shall
so notify the offender and file proof of that notification with the
court. |
Changes
proposed by offender or prosecutor |
(5)
Subsections (1) and (3) apply, with such modifications as the
circumstances require, in respect of a change proposed by the
offender or the prosecutor to the optional conditions, and in all
such cases a hearing must be held, and must be held within thirty
days after the receipt by the court of the notification referred to
in subsection (1). |
Judge
may act in chambers |
(6)
All the functions of the court under this section may be exercised
in chambers.
1995,
c. 22, s. 6; 1999, c. 5, s. 39. |
|
742.5 (1)
Where an offender who is bound by a conditional sentence order
becomes a resident of a territorial division, other than the
territorial division where the order was made, on the application of
a supervisor, the court that made the order may, subject to
subsection (1.1), transfer the order to a court in that other
territorial division that would, having regard to the mode of trial
of the offender, have had jurisdiction to make the order in that
other territorial division if the offender had been tried and
convicted there of the offence in respect of which the order was
made, and the order may thereafter be dealt with and enforced by the
court to which it is so transferred in all respects as if that court
had made the order. |
Attorney
General’s consent |
(1.1)
The transfer may be granted only with
(a) the consent of the Attorney
General of the province in which the conditional sentence order was
made, if the two territorial divisions are not in the same province;
or
(b) the consent of the Attorney
General of Canada, if the proceedings that led to the issuance of
the conditional sentence order were instituted by or on behalf of
the Attorney General of Canada. |
Where
court unable to act |
(2)
Where a court that has made a conditional sentence order or to which
a conditional sentence order has been transferred pursuant to
subsection (1) is for any reason unable to act, the powers of that
court in relation to the conditional sentence order may be exercised
by any other court that has equivalent jurisdiction in the same
province.
1995,
c. 22, s. 6; 1999, c. 5, s. 40. |
|
742.6 (1) For
the purpose of proceedings under this section,
(a) the provisions of Parts XVI and
XVIII with respect to compelling the appearance of an accused before
a justice apply, with any modifications that the circumstances
require, and any reference in those Parts to committing an offence
shall be read as a reference to breaching a condition of a
conditional sentence order;
(
b) the powers of arrest for
breach of a condition are those that apply to an indictable offence,
with any modifications that the circumstances require, and
subsection 495(2) does not apply;
(
c) despite paragraph ( a), if an allegation of breach of
condition is made, the proceeding is commenced by
(i)
the issuance of a warrant for the arrest of the offender for the
alleged breach,
(ii)
the arrest without warrant of the offender for the alleged breach,
or
(iii)
the compelling of the offender’s appearance in accordance with
paragraph ( d);
(
d) if the offender is
already detained or before a court, the offender’s appearance may be
compelled under the provisions referred to in paragraph ( a);
(
e) if an offender is
arrested for the alleged breach, the peace officer who makes the
arrest, the officer in charge or a judge or justice may release the
offender and the offender’s appearance may be compelled under the
provisions referred to in paragraph ( a); and
(
f) any judge of a superior
court of criminal jurisdiction or of a court of criminal
jurisdiction or any justice of the peace may issue a warrant to
arrest no matter which court, judge or justice sentenced the
offender, and the provisions that apply to the issuance of
telewarrants apply, with any modifications that the circumstances
require, as if a breach of condition were an indictable
offence. |
|
(2)
For the purpose of the application of section 515, the release from
custody of an offender who is detained on the basis of an alleged
breach of a condition of a conditional sentence order shall be
governed by subsection 515(6). |
|
(3)
The hearing of an allegation of a breach of condition shall be
commenced within thirty days, or as soon thereafter as is
practicable, after
(
a) the offender’s arrest;
or
(
b) the compelling of the
offender’s appearance in accordance with paragraph (1)( d). |
|
(3.1)
The allegation may be heard by any court having jurisdiction to hear
that allegation in the place where the breach is alleged to have
been committed or the offender is found, arrested or in
custody. |
Attorney
General’s consent |
(3.2)
If the place where the offender is found, arrested or in custody is
outside the province in which the breach is alleged to have been
committed, no proceedings in respect of that breach shall be
instituted in that place without
(
a) the consent of the
Attorney General of the province in which the breach is alleged to
have been committed; or
(
b) the consent of the
Attorney General of Canada, if the proceedings that led to the
issuance of the conditional sentence order were instituted by or on
behalf of the Attorney General of Canada. |
|
(3.3)
A judge may, at any time during a hearing of an allegation of breach
of condition, adjourn the hearing for a reasonable period. |
|
(4) An
allegation of a breach of condition must be supported by a written
report of the supervisor, which report must include, where
appropriate, signed statements of witnesses. |
Admission
of report on notice of intent |
(5)
The report is admissible in evidence if the party intending to
produce it has, before the hearing, given the offender reasonable
notice and a copy of the report. |
|
(6)
Service of any report referred to in subsection (4) may be proved by
oral evidence given under oath by, or by the affidavit or solemn
declaration of, the person claiming to have served it. |
Attendance
for examination |
(7)
Notwithstanding subsection (6), the court may require the person who
appears to have signed an affidavit or solemn declaration referred
to in that subsection to appear before it for examination or
cross-examination in respect of the issue of proof of
service. |
Requiring
attendance of supervisor or witness |
(8)
The offender may, with leave of the court, require the attendance,
for cross-examination, of the supervisor or of any witness whose
signed statement is included in the report. |
|
(9)
Where the court is satisfied, on a balance of probabilities, that
the offender has without reasonable excuse, the proof of which lies
on the offender, breached a condition of the conditional sentence
order, the court may
(
a) take no action;
(
b) change the optional
conditions;
(
c) suspend the conditional
sentence order and direct
(i)
that the offender serve in custody a portion of the unexpired
sentence, and
(ii)
that the conditional sentence order resume on the offender’s release
from custody, either with or without changes to the optional
conditions; or
(
d) terminate the conditional
sentence order and direct that the offender be committed to custody
until the expiration of the sentence. |
Warrant
or arrest - suspension of running of conditional sentence
order |
(10)
The running of a conditional sentence order imposed on an offender
is suspended during the period that ends with the determination of
whether a breach of condition had occurred and begins with the
earliest of
(
a) the issuance of a warrant
for the arrest of the offender for the alleged breach,
(
b) the arrest without
warrant of the offender for the alleged breach, and
(
c) the compelling of the
offender’s appearance in accordance with paragraph (1)( d). |
|
(11)
If the offender is not detained in custody during any period
referred to in subsection (10), the conditions of the order continue
to apply, with any changes made to them under section 742.4, and any
subsequent breach of those conditions may be dealt with in
accordance with this section. |
Detention
under s. 515(6) |
(12) A
conditional sentence order referred to in subsection (10) starts
running again on the making of an order to detain the offender in
custody under subsection 515(6) and, unless section 742.7 applies,
continues running while the offender is detained under the
order. |
Earned
remission does not apply |
(13)
Section 6 of the Prisons and
Reformatories Act does not apply to the period of detention
in custody under subsection 515(6). |
Unreasonable
delay in execution |
(14)
Despite subsection (10), if there was unreasonable delay in the
execution of a warrant, the court may, at any time, order that any
period between the issuance and execution of the warrant that it
considers appropriate in the interests of justice is deemed to be
time served under the conditional sentence order unless the period
has been so deemed under subsection (15). |
Allegation
dismissed or reasonable excuse |
(15)
If the allegation is withdrawn or dismissed or the offender is found
to have had a reasonable excuse for the breach, the sum of the
following periods is deemed to be time served under the conditional
sentence order:
(
a) any period for which the
running of the conditional sentence order was suspended; and
(
b) if subsection (12)
applies, a period equal to one half of the period that the
conditional sentence order runs while the offender is detained under
an order referred to in that subsection. |
|
(16)
If a court is satisfied, on a balance of probabilities, that the
offender has without reasonable excuse, the proof of which lies on
the offender, breached a condition of the conditional sentence
order, the court may, in exceptional cases and in the interests of
justice, order that some or all of the period of suspension referred
to in subsection (10) is deemed to be time served under the
conditional sentence order. |
|
(17)
In exercising its discretion under subsection (16), a court shall
consider
(
a) the circumstances and
seriousness of the breach;
(
b) whether not making the
order would cause the offender undue hardship based on the
offender’s individual circumstances; and
(
c) the period for which the
offender was subject to conditions while the running of the
conditional sentence order was suspended and whether the offender
complied with those conditions during that period.
1995,
c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E). |
|
742.7 (1) If
an offender who is subject to a conditional sentence order is
imprisoned as a result of a sentence imposed for another offence,
whenever committed, the running of the conditional sentence order is
suspended during the period of imprisonment for that other
offence. |
|
(2) If
an order is made under paragraph 742.6(9)(c) or (d) to commit an offender to
custody, the custodial period ordered shall, unless the court
considers that it would not be in the interests of justice, be
served consecutively to any other period of imprisonment that the
offender is serving when that order is made. |
|
(3) If
an offender is serving both a custodial period referred to in
subsection (2) and any other period of imprisonment, the periods
shall, for the purpose of section 743.1 and section 139 of the Corrections and Conditional Release
Act, be deemed to constitute one sentence of
imprisonment. |
Conditional
sentence order resumes |
(4)
The running of any period of the conditional sentence order that is
to be served in the community resumes upon the release of the
offender from prison on parole, on statutory release, on earned
remission, or at the expiration of the sentence.
1995,
c. 22, s. 6; 1999, c. 5, s. 42; 2004, c. 12, s. 16(E). |
|
|
|
743. Every
one who is convicted of an indictable offence for which no
punishment is specially provided is liable to imprisonment for a
term not exceeding five years.
R.S.,
1985, c. C-46, s. 743; 1992, c. 11, s. 16; 1995, c. 22, s.
6. |
|
743.1 (1)
Except where otherwise provided, a person who is sentenced to
imprisonment for
(a) life,
(b) a term of two years or more,
or
(c) two or more terms of less than
two years each that are to be served one after the other and that,
in the aggregate, amount to two years or more,
shall be
sentenced to imprisonment in a penitentiary. |
Subsequent
term less than two years |
(2)
Where a person who is sentenced to imprisonment in a penitentiary
is, before the expiration of that sentence, sentenced to
imprisonment for a term of less than two years, the person shall
serve that term in a penitentiary, but if the previous sentence of
imprisonment in a penitentiary is set aside, that person shall serve
that term in accordance with subsection (3). |
Imprisonment
for term less than two years |
(3) A
person who is sentenced to imprisonment and who is not required to
be sentenced as provided in subsection (1) or (2) shall, unless a
special prison is prescribed by law, be sentenced to imprisonment in
a prison or other place of confinement, other than a penitentiary,
within the province in which the person is convicted, in which the
sentence of imprisonment may be lawfully executed. |
|
(3.1)
Notwithstanding subsection (3), an offender who is required to be
supervised by an order made under paragraph 753.1(3)(b) and who is sentenced for
another offence during the period of the supervision shall be
sentenced to imprisonment in a penitentiary. |
Sentence
to penitentiary of person serving sentence elsewhere |
(4)
Where a person is sentenced to imprisonment in a penitentiary while
the person is lawfully imprisoned in a place other than a
penitentiary, that person shall, except where otherwise provided, be
sent immediately to the penitentiary, and shall serve in the
penitentiary the unexpired portion of the term of imprisonment that
that person was serving when sentenced to the penitentiary as well
as the term of imprisonment for which that person was sentenced to
the penitentiary. |
|
(5)
Where, at any time, a person who is imprisoned in a prison or place
of confinement other than a penitentiary is subject to two or more
terms of imprisonment, each of which is for less than two years,
that are to be served one after the other, and the aggregate of the
unexpired portions of those terms at that time amounts to two years
or more, the person shall be transferred to a penitentiary to serve
those terms, but if any one or more of such terms is set aside or
reduced and the unexpired portions of the remaining term or terms on
the day on which that person was transferred under this section
amounted to less than two years, that person shall serve that term
or terms in accordance with subsection (3). |
|
(6)
For the purposes of subsection (3), “penitentiary” does not, until a
day to be fixed by order of the Governor in Council, include the
facility mentioned in subsection 15(2) of the Corrections and Conditional Release
Act.
1992,
c. 11, s. 16; 1995, c. 19, s. 39, c. 22, s. 6; 1997, c. 17, s.
1. |
|
743.2 A court
that sentences or commits a person to penitentiary shall forward to
the Correctional Service of Canada its reasons and recommendation
relating to the sentence or committal, any relevant reports that
were submitted to the court, and any other information relevant to
administering the sentence or committal.
1995,
c. 22, s. 6. |
|
743.3 A
sentence of imprisonment shall be served in accordance with the
enactments and rules that govern the institution to which the
prisoner is sentenced.
1995,
c. 22, s. 6. |
|
743.4
[Repealed, 2002, c. 1, s. 184] |
|
743.5 (1) If
a young person or an adult is or has been sentenced to a term of
imprisonment for an offence while subject to a disposition made
under paragraph 20(1)( k) or
( k.1) of the Young Offenders Act, chapter Y-1
of the Revised Statutes of Canada, 1985, or a youth sentence imposed
under paragraph 42(2)( n), (
o), ( q) or ( r) of the Youth Criminal Justice Act, the
disposition or youth sentence shall be dealt with, for all purposes
under this Act or any other Act of Parliament, as if it had been a
sentence imposed under this Act. |
Transfer
of jurisdiction when youth sentence imposed under Youth Criminal Justice Act
|
(2) If
a disposition is made under paragraph 20(1)( k) or ( k.1) of the Young Offenders Act, chapter Y-1
of the Revised Statutes of Canada, 1985, with respect to a person or
a youth sentence is imposed on a person under paragraph 42(2)( n), ( o), ( q) or ( r) of the Youth Criminal Justice Act while
the young person or adult is under sentence of imprisonment imposed
under an Act of Parliament other than the Youth Criminal Justice Act, the
disposition or youth sentence shall be dealt with, for all purposes
under this Act or any other Act of Parliament, as if it had been a
sentence imposed under this Act. |
Sentences
deemed to constitute one sentence — section 743.1 |
(3)
For greater certainty, the dispositions and sentences referred to in
subsections (1) and (2) are, for the purpose of section 139 of the
Corrections and Conditional Release
Act, deemed to constitute one sentence of imprisonment.
1995,
c. 22, ss. 6, 19, 20; 2002, c. 1, s. 184. |
|
|
|
743.6 (1)
Notwithstanding subsection 120(1) of the Corrections and Conditional Release
Act, where an offender receives, on or after November 1,
1992, a sentence of imprisonment of two years or more, including a
sentence of imprisonment for life imposed otherwise than as a
minimum punishment, on conviction for an offence set out in Schedule
I or II to that Act that was prosecuted by way of indictment, the
court may, if satisfied, having regard to the circumstances of the
commission of the offence and the character and circumstances of the
offender, that the expression of society’s denunciation of the
offence or the objective of specific or general deterrence so
requires, order that the portion of the sentence that must be served
before the offender may be released on full parole is one half of
the sentence or ten years, whichever is less. |
Power
of court to delay parole |
(1.1)
Notwithstanding section 120 of the Corrections and Conditional Release
Act, where an offender receives a sentence of imprisonment of
two years or more, including a sentence of imprisonment for life
imposed otherwise than as a minimum punishment, on conviction for a
criminal organization offence other than an offence under section
467.11, 467.12 or 467.13, the court may order that the portion of
the sentence that must be served before the offender may be released
on full parole is one half of the sentence or ten years, whichever
is less. |
Power
of court to delay parole |
(1.2)
Notwithstanding section 120 of the Corrections and Conditional Release
Act, where an offender receives a sentence of imprisonment of
two years or more, including a sentence of imprisonment for life, on
conviction for a terrorism offence or an offence under section
467.11, 467.12 or 467.13, the court shall order that the portion of
the sentence that must be served before the offender may be released
on full parole is one half of the sentence or ten years, whichever
is less, unless the court is satisfied, having regard to the
circumstances of the commission of the offence and the character and
circumstances of the offender, that the expression of society’s
denunciation of the offence and the objectives of specific and
general deterrence would be adequately served by a period of parole
ineligibility determined in accordance with the Corrections and Conditional Release
Act. |
Principles
that are to guide the court |
(2)
For greater certainty, the paramount principles which are to guide
the court under this section are denunciation and specific or
general deterrence, with rehabilitation of the offender, in all
cases, being subordinate to these paramount principles.
1995,
c. 22, s. 6, c. 42, s. 86; 1997, c. 23, s. 18; 2001, c. 32, s. 45,
c. 41, ss. 21, 133. |
|
Delivery
of Offender to Keeper of Prison |
|
744. A peace
officer or other person to whom a warrant of committal authorized by
this or any other Act of Parliament is directed shall arrest the
person named or described therein, if it is necessary to do so in
order to take that person into custody, convey that person to the
prison mentioned in the warrant and deliver that person, together
with the warrant, to the keeper of the prison who shall thereupon
give to the peace officer or other person who delivers the prisoner
a receipt in Form 43 setting out the state and condition of the
prisoner when delivered into custody.
R.S.,
1985, c. C-46, s. 744; R.S., 1985, c. 27 (1st Supp.), s. 166, c. 1
(4th Supp.), s. 18(F); 1992, c. 11, s. 16; 1995, c. 22, s.
6. |
|
|
|
745. Subject
to section 745.1, the sentence to be pronounced against a person who
is to be sentenced to imprisonment for life shall be
(a) in respect of a person who has
been convicted of high treason or first degree murder, that the
person be sentenced to imprisonment for life without eligibility for
parole until the person has served twenty-five years of the
sentence;
(b) in respect of a person who has
been convicted of second degree murder where that person has
previously been convicted of culpable homicide that is murder,
however described in this Act, that that person be sentenced to
imprisonment for life without eligibility for parole until the
person has served twenty-five years of the sentence;
(b.1) in respect of a person who
has been convicted of second degree murder where that person has
previously been convicted of an offence under section 4 or 6 of the
Crimes Against Humanity and War
Crimes Act that had as its basis an intentional killing,
whether or not it was planned and deliberate, that that person be
sentenced to imprisonment for life without eligibility for parole
until the person has served twenty-five years of the sentence;
(c) in respect of a person who has
been convicted of second degree murder, that the person be sentenced
to imprisonment for life without eligibility for parole until the
person has served at least ten years of the sentence or such greater
number of years, not being more than twenty-five years, as has been
substituted therefor pursuant to section 745.4; and
(d) in respect of a person who has
been convicted of any other offence, that the person be sentenced to
imprisonment for life with normal eligibility for parole.
R.S.,
1985, c. C-46, s. 745; R.S., 1985, c. 27 (2nd Supp.), s. 10; 1990,
c. 17, s. 14; 1992, c. 51, s. 39; 1995, c. 22, s. 6; 2000, c. 24, s.
46. |
|
745.01 Except
where subsection 745.6(2) applies, at the time of sentencing under
paragraph 745(a), (b) or (c), the judge who presided at the
trial of the offender shall state the following, for the record:
The
offender has been found guilty of (state offence) and sentenced to
imprisonment for life. The offender is not eligible for parole until
(state date). However, after
serving at least 15 years of the sentence, the offender may apply
under section 745.6 of the Criminal
Code for a reduction in the number of years of imprisonment
without eligibility for parole. If the jury hearing the application
reduces the period of parole ineligibility, the offender may then
make an application for parole under the Corrections and Conditional Release
Act at the end of that reduced period.
1999,
c. 25, s. 21(Preamble). |
|
745.1 The
sentence to be pronounced against a person who was under the age of
eighteen at the time of the commission of the offence for which the
person was convicted of first degree murder or second degree murder
and who is to be sentenced to imprisonment for life shall be that
the person be sentenced to imprisonment for life without eligibility
for parole until the person has served
(a) such period between five and
seven years of the sentence as is specified by the judge presiding
at the trial, or if no period is specified by the judge presiding at
the trial, five years, in the case of a person who was under the age
of sixteen at the time of the commission of the offence;
(b) ten years, in the case of a
person convicted of first degree murder who was sixteen or seventeen
years of age at the time of the commission of the offence; and
(c) seven years, in the case of a
person convicted of second degree murder who was sixteen or
seventeen years of age at the time of the commission of the
offence.
1995,
c. 22, ss. 6, 21. |
|
745.2 Subject
to section 745.3, where a jury finds an accused guilty of second
degree murder, the judge presiding at the trial shall, before
discharging the jury, put to them the following question:
You
have found the accused guilty of second degree murder and the law
requires that I now pronounce a sentence of imprisonment for life
against the accused. Do you wish to make any recommendation with
respect to the number of years that the accused must serve before
the accused is eligible for release on parole? You are not required
to make any recommendation but if you do, your recommendation will
be considered by me when I am determining whether I should
substitute for the ten year period, which the law would otherwise
require the accused to serve before the accused is eligible to be
considered for release on parole, a number of years that is more
than ten but not more than twenty-five.
1995,
c. 22, s. 6. |
|
745.3 Where a
jury finds an accused guilty of first degree murder or second degree
murder and the accused was under the age of sixteen at the time of
the commission of the offence, the judge presiding at the trial
shall, before discharging the jury, put to them the following
question:
You
have found the accused guilty of first degree murder (or second
degree murder) and the law requires that I now pronounce a sentence
of imprisonment for life against the accused. Do you wish to make
any recommendation with respect to the period of imprisonment that
the accused must serve before the accused is eligible for release on
parole? You are not required to make any recommendation but if you
do, your recommendation will be considered by me when I am
determining the period of imprisonment that is between five years
and seven years that the law would require the accused to serve
before the accused is eligible to be considered for release on
parole.
1995,
c. 22, ss. 6, 22. |
|
745.4 Subject
to section 745.5, at the time of the sentencing under section 745 of
an offender who is convicted of second degree murder, the judge who
presided at the trial of the offender or, if that judge is unable to
do so, any judge of the same court may, having regard to the
character of the offender, the nature of the offence and the
circumstances surrounding its commission, and to the recommendation,
if any, made pursuant to section 745.2, by order, substitute for ten
years a number of years of imprisonment (being more than ten but not
more than twenty-five) without eligibility for parole, as the judge
deems fit in the circumstances.
1995,
c. 22, s. 6. |
|
745.5 At the
time of the sentencing under section 745.1 of an offender who is
convicted of first degree murder or second degree murder and who was
under the age of sixteen at the time of the commission of the
offence, the judge who presided at the trial of the offender or, if
that judge is unable to do so, any judge of the same court, may,
having regard to the age and character of the offender, the nature
of the offence and the circumstances surrounding its commission, and
to the recommendation, if any, made pursuant to section 745.3, by
order, decide the period of imprisonment the offender is to serve
that is between five years and seven years without eligibility for
parole, as the judge deems fit in the circumstances.
1995,
c. 22, ss. 6, 23. |
|
745.6 (1)
Subject to subsection (2), a person may apply, in writing, to the
appropriate Chief Justice in the province in which their conviction
took place for a reduction in the number of years of imprisonment
without eligibility for parole if the person
(a) has been convicted of murder or
high treason;
(b) has been sentenced to
imprisonment for life without eligibility for parole until more than
fifteen years of their sentence has been served; and
(c) has served at least fifteen
years of their sentence. |
Exception
— multiple murderers |
(2) A
person who has been convicted of more than one murder may not make
an application under subsection (1), whether or not proceedings were
commenced in respect of any of the murders before another murder was
committed. |
Definition
of “appropriate Chief Justice” |
(3)
For the purposes of this section and sections 745.61 to 745.64, the
“appropriate Chief Justice” is
(a) in relation to the Province of
Ontario, the Chief Justice of the Ontario Court;
(b) in relation to the Province of
Quebec, the Chief Justice of the Superior Court;
(c) in relation to the Provinces of
Prince Edward Island and Newfoundland, the Chief Justice of the
Supreme Court, Trial Division;
(d) in relation to the Provinces of
New Brunswick, Manitoba, Saskatchewan and Alberta, the Chief Justice
of the Court of Queen’s Bench;
(e) in relation to the Provinces of
Nova Scotia and British Columbia, the Chief Justice of the Supreme
Court; and
(f) in relation to Yukon, the
Northwest Territories and Nunavut, the Chief Justice of the Court of
Appeal.
1993,
c. 28, s. 78; 1995, c. 22, s. 6; 1996, c. 34, s. 2; 1998, c. 15, s.
20; 2002, c. 7, s. 146. |
|
745.61 (1) On
receipt of an application under subsection 745.6(1), the appropriate
Chief Justice shall determine, or shall designate a judge of the
superior court of criminal jurisdiction to determine, on the basis
of the following written material, whether the applicant has shown,
on a balance of probabilities, that there is a reasonable prospect
that the application will succeed:
(a) the application;
(b) any report provided by the
Correctional Service of Canada or other correctional authorities;
and
(c) any other written evidence
presented to the Chief Justice or judge by the applicant or the
Attorney General. |
|
(2) In
determining whether the applicant has shown that there is a
reasonable prospect that the application will succeed, the Chief
Justice or judge shall consider the criteria set out in paragraphs
745.63(1)(a) to (e), with such modifications as the
circumstances require. |
Decision
re new application |
(3) If
the Chief Justice or judge determines that the applicant has not
shown that there is a reasonable prospect that the application will
succeed, the Chief Justice or judge may
(a) set a time, not earlier than
two years after the date of the determination, at or after which
another application may be made by the applicant under subsection
745.6(1); or
(b) decide that the applicant may
not make another application under that subsection. |
Where
no decision re new application |
(4) If
the Chief Justice or judge determines that the applicant has not
shown that there is a reasonable prospect that the application will
succeed but does not set a time for another application or decide
that such an application may not be made, the applicant may make
another application no earlier than two years after the date of the
determination. |
Designation
of judge to empanel jury |
(5) If
the Chief Justice or judge determines that the applicant has shown
that there is a reasonable prospect that the application will
succeed, the Chief Justice shall designate a judge of the superior
court of criminal jurisdiction to empanel a jury to hear the
application.
1996,
c. 34, s. 2. |
|
745.62 (1)
The applicant or the Attorney General may appeal to the Court of
Appeal from a determination or a decision made under section 745.61
on any question of law or fact or mixed law and fact. |
Documents
to be considered |
(2)
The appeal shall be determined on the basis of the documents
presented to the Chief Justice or judge who made the determination
or decision, any reasons for the determination or decision and any
other documents that the Court of Appeal requires. |
|
(3)
Sections 673 to 696 apply, with such modifications as the
circumstances require.
1996,
c. 34, s. 2. |
|
745.63 (1)
The jury empanelled under subsection 745.61(5) to hear the
application shall consider the following criteria and determine
whether the applicant’s number of years of imprisonment without
eligibility for parole ought to be reduced:
(a) the character of the
applicant;
(b) the applicant’s conduct while
serving the sentence;
(c) the nature of the offence for
which the applicant was convicted;
(d) any information provided by a
victim at the time of the imposition of the sentence or at the time
of the hearing under this section; and
(e) any other matters that the
judge considers relevant in the circumstances. |
Information
provided by victim |
(1.1)
Information provided by a victim referred to in paragraph (1)(d) may be provided either orally
or in writing, at the discretion of the victim, or in any other
manner that the judge considers appropriate. |
|
(2) In
paragraph (1)(d), “victim”
has the same meaning as in subsection 722(4). |
|
(3)
The jury hearing an application under subsection (1) may determine
that the applicant’s number of years of imprisonment without
eligibility for parole ought to be reduced. The determination to
reduce the number of years must be by unanimous vote. |
|
(4)
The applicant’s number of years of imprisonment without eligibility
for parole is not reduced if
(a) the jury hearing an application
under subsection (1) determines that the number of years ought not
to be reduced;
(b) the jury hearing an application
under subsection (1) concludes that it cannot unanimously determine
that the number of years ought to be reduced; or
(c) the presiding judge, after the
jury has deliberated for a reasonable period, concludes that the
jury is unable to unanimously determine that the number of years
ought to be reduced. |
Where
determination to reduce number of years |
(5) If
the jury determines that the number of years of imprisonment without
eligibility for parole ought to be reduced, the jury may, by a vote
of not less than two thirds of the members of the jury,
(a) substitute a lesser number of
years of imprisonment without eligibility for parole than that then
applicable; or
(b) terminate the ineligibility for
parole. |
Decision
re new application |
(6) If
the applicant’s number of years of imprisonment without eligibility
for parole is not reduced, the jury may
(a) set a time, not earlier than
two years after the date of the determination or conclusion under
subsection (4), at or after which another application may be made by
the applicant under subsection 745.6(1); or
(b) decide that the applicant may
not make another application under that subsection. |
|
(7)
The decision of the jury under paragraph (6)(a) or (b) must be made by not less than
two thirds of its members. |
If
no decision re new application |
(8) If
the jury does not set a date at or after which another application
may be made or decide that such an application may not be made, the
applicant may make another application no earlier than two years
after the date of the determination or conclusion under subsection
(4).
1996,
c. 34, s. 2; 1999, c. 25, s. 22(Preamble). |
|
745.64 (1)
The appropriate Chief Justice in each province or territory may make
such rules as are required for the purposes of sections 745.6 to
745.63. |
|
(2)
When the appropriate Chief Justice is designating a judge of the
superior court of criminal jurisdiction, for the purpose of a
judicial screening under subsection 745.61(1) or to empanel a jury
to hear an application under subsection 745.61(5), in respect of a
conviction that took place in Yukon, the Northwest Territories or
Nunavut, the appropriate Chief Justice may designate the judge from
the Court of Appeal of Yukon, the Northwest Territories or Nunavut,
or the Supreme Court of Yukon or the Northwest Territories or the
Nunavut Court of Justice, as the case may be.
1996,
c. 34, s. 2; 1999, c. 3, s. 53; 2002, c. 7, s. 147(E). |
|
746. In
calculating the period of imprisonment served for the purposes of
section 745, 745.1, 745.4, 745.5 or 745.6, there shall be included
any time spent in custody between
(a) in the case of a sentence of
imprisonment for life after July 25, 1976, the day on which the
person was arrested and taken into custody in respect of the offence
for which that person was sentenced to imprisonment for life and the
day the sentence was imposed; or
(b) in the case of a sentence of
death that has been or is deemed to have been commuted to a sentence
of imprisonment for life, the day on which the person was arrested
and taken into custody in respect of the offence for which that
person was sentenced to death and the day the sentence was commuted
or deemed to have been commuted to a sentence of imprisonment for
life.
R.S.,
1985, c. C-46, s. 746; 1995, c. 19, s. 41, c. 22, ss. 6,
24. |
|
746.1 (1)
Unless Parliament otherwise provides by an enactment making express
reference to this section, a person who has been sentenced to
imprisonment for life without eligibility for parole for a specified
number of years pursuant to this Act shall not be considered for
parole or released pursuant to a grant of parole under the Corrections and Conditional Release
Act or any other Act of Parliament until the expiration or
termination of the specified number of years of
imprisonment. |
Absence
with or without escort and day parole |
(2)
Subject to subsection (3), in respect of a person sentenced to
imprisonment for life without eligibility for parole for a specified
number of years pursuant to this Act, until the expiration of all
but three years of the specified number of years of
imprisonment,
(a) no day parole may be granted
under the Corrections and
Conditional Release Act;
(b) no absence without escort may
be authorized under that Act or the Prisons and Reformatories Act;
and
(c) except with the approval of the
National Parole Board, no absence with escort otherwise than for
medical reasons or in order to attend judicial proceedings or a
coroner’s inquest may be authorized under either of those
Acts. |
|
(3) In
the case of any person convicted of first degree murder or second
degree murder who was under the age of eighteen at the time of the
commission of the offence and who is sentenced to imprisonment for
life without eligibility for parole for a specified number of years
pursuant to this Act, until the expiration of all but one fifth of
the period of imprisonment the person is to serve without
eligibility for parole,
(a) no day parole may be granted
under the Corrections and
Conditional Release Act;
(b) no absence without escort may
be authorized under that Act or the Prisons and Reformatories Act;
and
(c) except with the approval of the
National Parole Board, no absence with escort otherwise than for
medical reasons or in order to attend judicial proceedings or a
coroner’s inquest may be authorized under either of those Acts.
1995,
c. 22, s. 6, c. 42, s. 87; 1997, c. 17, s. 2. |
|
747.
[Repealed, 1995, c. 22, s. 6] |
|
|
|
748. (1) Her
Majesty may extend the royal mercy to a person who is sentenced to
imprisonment under the authority of an Act of Parliament, even if
the person is imprisoned for failure to pay money to another
person. |
Free
or conditional pardon |
(2)
The Governor in Council may grant a free pardon or a conditional
pardon to any person who has been convicted of an offence. |
|
(3)
Where the Governor in Council grants a free pardon to a person, that
person shall be deemed thereafter never to have committed the
offence in respect of which the pardon is granted. |
Punishment
for subsequent offence not affected |
(4) No
free pardon or conditional pardon prevents or mitigates the
punishment to which the person might otherwise be lawfully sentenced
on a subsequent conviction for an offence other than that for which
the pardon was granted.
R.S.,
1985, c. C-46, s. 748; 1992, c. 22, s. 12; 1995, c. 22, s.
6. |
|
748.1 (1) The
Governor in Council may order the remission, in whole or in part, of
a fine or forfeiture imposed under an Act of Parliament, whoever the
person may be to whom it is payable or however it may be
recoverable. |
|
(2) An
order for remission under subsection (1) may include the remission
of costs incurred in the proceedings, but no costs to which a
private prosecutor is entitled shall be remitted.
1995,
c. 22, s. 6. |
|
749. Nothing
in this Act in any manner limits or affects Her Majesty’s royal
prerogative of mercy.
R.S.,
1985, c. C-46, s. 749; 1995, c. 22, s. 6. |
|
|
|
750. (1)
Where a person is convicted of an indictable offence for which the
person is sentenced to imprisonment for two years or more and holds,
at the time that person is convicted, an office under the Crown or
other public employment, the office or employment forthwith becomes
vacant. |
|
(2) A
person to whom subsection (1) applies is, until undergoing the
punishment imposed on the person or the punishment substituted
therefor by competent authority or receives a free pardon from Her
Majesty, incapable of holding any office under the Crown or other
public employment, or of being elected or sitting or voting as a
member of Parliament or of a legislature or of exercising any right
of suffrage. |
|
(3) No
person who is convicted of an offence under section 121, 124 or 418
has, after that conviction, capacity to contract with Her Majesty or
to receive any benefit under a contract between Her Majesty and any
other person or to hold office under Her Majesty. |
Application
for restoration of privileges |
(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. |
|
(5)
Where an application is made under subsection (4), the Governor in
Council may order that the capacities lost by the applicant by
virtue of subsection (3) be restored to that applicant in whole or
in part and subject to such conditions as the Governor in Council
considers desirable in the public interest. |
|
(6)
Where a conviction is set aside by competent authority, any
disability imposed by this section is removed.
R.S.,
1985, c. C-46, s. 750; 1995, c. 22, s. 6; 2000, c. 1, s.
9. |
|
|
|
751. The
person in whose favour judgment is given in proceedings by
indictment for defamatory libel is entitled to recover from the
opposite party costs in a reasonable amount to be fixed by order of
the court.
R.S.,
1985, c. C-46, s. 751; 1995, c. 22, s. 6. |
|
751.1 Where
costs that are fixed under section 751 are not paid forthwith, the
party in whose favour judgment is given may enter judgment for the
amount of the costs by filing the order in any civil court of the
province in which the trial was held that has jurisdiction to enter
a judgment for that amount, and that judgment is enforceable against
the opposite party in the same manner as if it were a judgment
rendered against that opposite party in that court in civil
proceedings.
1995,
c. 22, s. 6. |
|
PART
XXIV
DANGEROUS OFFENDERS AND
LONG-TERM OFFENDERS |
|
|
|
752. In this
Part, |
|
“court” means the court by
which an offender in relation to whom an application under this Part
is made was convicted, or a superior court of criminal
jurisdiction; |
“serious personal injury
offence”
« sévices graves à la
personne » |
“serious personal injury
offence” means
(a) an indictable offence, other
than high treason, treason, first degree murder or second degree
murder, involving
(i)
the use or attempted use of violence against another person, or
(ii)
conduct endangering or likely to endanger the life or safety of
another person or inflicting or likely to inflict severe
psychological damage on another person,
and
for which the offender may be sentenced to imprisonment for ten
years or more, or
(b) an offence or attempt to commit
an offence mentioned in section 271 (sexual assault), 272 (sexual
assault with a weapon, threats to a third party or causing bodily
harm) or 273 (aggravated sexual assault).
R.S.,
c. C-34, s. 687; 1976-77, c. 53, s. 14; 1980-81-82-83, c. 125, s.
26. |
|
Dangerous
Offenders and Long-Term Offenders |
|
752.1 (1)
Where an offender is convicted of a serious personal injury offence
or an offence referred to in paragraph 753.1(2)(a) and, before sentence is imposed
on the offender, on application by the prosecution, the court is of
the opinion that there are reasonable grounds to believe that the
offender might be found to be a dangerous offender under section 753
or a long-term offender under section 753.1, the court may, by order
in writing, remand the offender, for a period not exceeding sixty
days, to the custody of the person that the court directs and who
can perform an assessment, or can have an assessment performed by
experts. The assessment is to be used as evidence in an application
under section 753 or 753.1. |
|
(2)
The person to whom the offender is remanded shall file a report of
the assessment with the court not later than fifteen days after the
end of the assessment period and make copies of it available to the
prosecutor and counsel for the offender.
1997,
c. 17, s. 4. |
|
753. (1) The
court may, on application made under this Part following the filing
of an assessment report under subsection 752.1(2), find the offender
to be a dangerous offender if it is satisfied
(a) that the offence for which the
offender has been convicted is a serious personal injury offence
described in paragraph (a)
of the definition of that expression in section 752 and the offender
constitutes a threat to the life, safety or physical or mental
well-being of other persons on the basis of evidence
establishing
(i) a
pattern of repetitive behaviour by the offender, of which the
offence for which he or she has been convicted forms a part, showing
a failure to restrain his or her behaviour and a likelihood of
causing death or injury to other persons, or inflicting severe
psychological damage on other persons, through failure in the future
to restrain his or her behaviour,
(ii) a
pattern of persistent aggressive behaviour by the offender, of which
the offence for which he or she has been convicted forms a part,
showing a substantial degree of indifference on the part of the
offender respecting the reasonably foreseeable consequences to other
persons of his or her behaviour, or
(iii)
any behaviour by the offender, associated with the offence for which
he or she has been convicted, that is of such a brutal nature as to
compel the conclusion that the offender’s behaviour in the future is
unlikely to be inhibited by normal standards of behavioural
restraint; or
(b) that the offence for which the
offender has been convicted is a serious personal injury offence
described in paragraph (b)
of the definition of that expression in section 752 and the
offender, by his or her conduct in any sexual matter including that
involved in the commission of the offence for which he or she has
been convicted, has shown a failure to control his or her sexual
impulses and a likelihood of causing injury, pain or other evil to
other persons through failure in the future to control his or her
sexual impulses. |
Time
for making application |
(2) An
application under subsection (1) must be made before sentence is
imposed on the offender unless
(a) before the imposition of
sentence, the prosecution gives notice to the offender of a possible
intention to make an application under section 752.1 and an
application under subsection (1) not later than six months after
that imposition; and
(b) at the time of the application
under subsection (1) that is not later than six months after the
imposition of sentence, it is shown that relevant evidence that was
not reasonably available to the prosecution at the time of the
imposition of sentence became available in the interim. |
Application
for remand for assessment after imposition of sentence |
(3)
Notwithstanding subsection 752.1(1), an application under that
subsection may be made after the imposition of sentence or after an
offender begins to serve the sentence in a case to which paragraphs
(2)(a) and (b) apply. |
If
offender found to be dangerous offender |
(4) If
the court finds an offender to be a dangerous offender, it shall
impose a sentence of detention in a penitentiary for an
indeterminate period. |
If
application made after sentencing |
(4.1)
If the application was made after the offender begins to serve the
sentence in a case to which paragraphs (2)(a) and (b) apply, the sentence of
detention in a penitentiary for an indeterminate period referred to
in subsection (4) replaces the sentence that was imposed for the
offence for which the offender was convicted. |
If
offender not found to be dangerous offender |
(5) If
the court does not find an offender to be a dangerous offender,
(a) the court may treat the
application as an application to find the offender to be a long-term
offender, section 753.1 applies to the application and the court may
either find that the offender is a long-term offender or hold
another hearing for that purpose; or
(b) the court may impose sentence
for the offence for which the offender has been convicted. |
|
(6)
Any evidence given during the hearing of an application made under
subsection (1) by a victim of an offence for which the offender was
convicted is deemed also to have been given during any hearing under
paragraph (5)(a) held with
respect to the offender.
R.S.,
1985, c. C-46, s. 753; 1997, c. 17, s. 4. |
|
753.1 (1) The
court may, on application made under this Part following the filing
of an assessment report under subsection 752.1(2), find an offender
to be a long-term offender if it is satisfied that
(a) it would be appropriate to
impose a sentence of imprisonment of two years or more for the
offence for which the offender has been convicted;
(b) there is a substantial risk
that the offender will reoffend; and
(c) there is a reasonable
possibility of eventual control of the risk in the
community. |
|
(2)
The court shall be satisfied that there is a substantial risk that
the offender will reoffend if
(a) the offender has been convicted
of an offence under section 151 (sexual interference), 152
(invitation to sexual touching) or 153 (sexual exploitation),
subsection 163.1(2) (making child pornography), subsection 163.1(3)
(distribution, etc., of child pornography), subsection 163.1(4)
(possession of child pornography), subsection 163.1(4.1) (accessing
child pornography), section 172.1 (luring a child), subsection
173(2) (exposure) or section 271 (sexual assault), 272 (sexual
assault with a weapon) or 273 (aggravated sexual assault), or has
engaged in serious conduct of a sexual nature in the commission of
another offence of which the offender has been convicted; and
(b) the offender
(i)
has shown a pattern of repetitive behaviour, of which the offence
for which he or she has been convicted forms a part, that shows a
likelihood of the offender’s causing death or injury to other
persons or inflicting severe psychological damage on other persons,
or
(ii)
by conduct in any sexual matter including that involved in the
commission of the offence for which the offender has been convicted,
has shown a likelihood of causing injury, pain or other evil to
other persons in the future through similar offences. |
If
offender found to be long-term offender |
(3)
Subject to subsections (3.1), (4) and (5), if the court finds an
offender to be a long-term offender, it shall
(a) impose a sentence for the
offence for which the offender has been convicted, which sentence
must be a minimum punishment of imprisonment for a term of two
years; and
(b) order the offender to be
supervised in the community, for a period not exceeding ten years,
in accordance with section 753.2 and the Corrections and Conditional Release
Act. |
Exception
— if application made after sentencing |
(3.1)
The court may not impose a sentence under paragraph (3)(a) and the sentence that was
imposed for the offence for which the offender was convicted stands
despite the offender’s being found to be a long-term offender, if
the application was one that
(a) was made after the offender
begins to serve the sentence in a case to which paragraphs
753(2)(a) and (b) apply; and
(b) was treated as an application
under this section further to the court deciding to do so under
paragraph 753(5)(a). |
Exception
— life sentence |
(4)
The court shall not make an order under paragraph (3)(b) if the offender has been
sentenced to life imprisonment. |
Exception
to length of supervision where new declaration |
(5) If
the offender commits another offence while required to be supervised
by an order made under paragraph (3)(b), and is thereby found to be a
long-term offender, the periods of supervision to which the offender
is subject at any particular time must not total more than ten
years. |
If
offender not found to be long-term offender |
(6) If
the court does not find an offender to be a long-term offender, the
court shall impose sentence for the offence for which the offender
has been convicted.
1997,
c. 17, s. 4; 2002, c. 13, s. 76. |
|
753.2 (1)
Subject to subsection (2), an offender who is required to be
supervised by an order made under paragraph 753.1(3)(b) shall be supervised in
accordance with the Corrections and
Conditional Release Act when the offender has finished
serving
(a) the sentence for the offence
for which the offender has been convicted; and
(b) all other sentences for
offences for which the offender is convicted and for which sentence
of a term of imprisonment is imposed on the offender, either before
or after the conviction for the offence referred to in paragraph
(a). |
|
(2) A
sentence imposed on an offender referred to in subsection (1), other
than a sentence that requires imprisonment of the offender, is to be
served concurrently with the long-term supervision ordered under
paragraph 753.1(3)(b). |
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 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. |
Notice
to Attorney General |
(4)
The applicant must give notice of an application under subsection
(3) to the Attorney General at the time the application is made.
1997,
c. 17, s. 4. |
|
753.3 (1) An
offender who is required to be supervised by an order made under
paragraph 753.1(3)(b) and
who, without reasonable excuse, fails or refuses to comply with that
order is guilty of an indictable offence and liable to imprisonment
for a term not exceeding ten years. |
Where
accused may be tried and punished |
(2) An
accused who is charged with an offence under subsection (1) may be
tried and punished by any court having jurisdiction to try that
offence in the place where the offence is alleged to have been
committed or in the place where the accused is found, is arrested or
is in custody, but if the place where the accused is found, is
arrested or is in custody is outside the province in which the
offence is alleged to have been committed, no proceedings in respect
of that offence shall be instituted in that place without the
consent of the Attorney General of that province.
1997,
c. 17, s. 4. |
|
753.4 (1)
Where an offender who is required to be supervised by an order made
under paragraph 753.1(3)(b)
commits one or more offences under this or any other Act and a court
imposes a sentence of imprisonment for the offence or offences, the
long-term supervision is interrupted until the offender has finished
serving all the sentences, unless the court orders its
termination. |
Reduction
in term of long-term supervision |
(2) A
court that imposes a sentence of imprisonment under subsection (1)
may order a reduction in the length of the period of the offender’s
long-term supervision.
1997,
c. 17, s. 4. |
|
754. (1)
Where an application under this Part has been made, the court shall
hear and determine the application except that no such application
shall be heard unless
(a) the Attorney General of the
province in which the offender was tried has, either before or after
the making of the application, consented to the application;
(b) at least seven days notice has
been given to the offender by the prosecutor, following the making
of the application, outlining the basis on which it is intended to
found the application; and
(c) a copy of the notice has been
filed with the clerk of the court or the provincial court judge, as
the case may be. |
|
(2) An
application under this Part shall be heard and determined by the
court without a jury. |
|
(3)
For the purposes of an application under this Part, where an
offender admits any allegations contained in the notice referred to
in paragraph (1)(b), no
proof of those allegations is required. |
|
(4)
The production of a document purporting to contain any nomination or
consent that may be made or given by the Attorney General under this
Part and purporting to be signed by the Attorney General is, in the
absence of any evidence to the contrary, proof of that nomination or
consent without proof of the signature or the official character of
the person appearing to have signed the document.
R.S.,
1985, c. C-46, s. 754; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
755. and 756.
[Repealed, 1997, c. 17, s. 5] |
|
757. Without
prejudice to the right of the offender to tender evidence as to his
or her character and repute, evidence of character and repute may,
if the court thinks fit, be admitted on the question of whether the
offender is or is not a dangerous offender or a long-term
offender.
R.S.,
1985, c. C-46, s. 757; 1997, c. 17, s. 5. |
|
758. (1) The
offender shall be present at the hearing of the application under
this Part and if at the time the application is to be heard
(a) he is confined in a prison, the
court may order, in writing, the person having the custody of the
accused to bring him before the court; or
(b) he is not confined in a prison,
the court shall issue a summons or a warrant to compel the accused
to attend before the court and the provisions of Part XVI relating
to summons and warrant are applicable with such modifications as the
circumstances require. |
|
(2)
Notwithstanding subsection (1), the court may
(a) cause the offender to be
removed and to be kept out of court, where he misconducts himself by
interrupting the proceedings so that to continue the proceedings in
his presence would not be feasible; or
(b) permit the offender to be out
of court during the whole or any part of the hearing on such
conditions as the court considers proper.
R.S.,
c. C-34, s. 693; 1976-77, c. 53, s. 14. |
|
759. (1) An
offender who is found to be a dangerous offender under this Part may
appeal to the court of appeal against that finding on any ground of
law or fact or mixed law and fact. |
Appeal
— long-term offender |
(1.1)
An offender who is found to be a long-term offender under this Part
may appeal to the court of appeal against that finding or against
the length of the period of long-term supervision ordered, on any
ground of law or fact or mixed law and fact. |
Appeal
by Attorney General |
(2)
The Attorney General may appeal to the court of appeal against the
dismissal of an application for an order under this Part, or against
the length of the period of long-term supervision of a long-term
offender, on any ground of law. |
Disposition
of appeal — dangerous offender |
(3) On
an appeal against a finding that an offender is a dangerous
offender, the court of appeal may
(a) allow the appeal and
(i)
find that the offender is not a dangerous offender, find that the
offender is a long-term offender, impose a minimum sentence of
imprisonment for two years, for the offence for which the offender
has been convicted, and order the offender to be supervised in the
community, for a period that does not, subject to subsection
753.1(5), exceed ten years, in accordance with section 753.2 and the
Corrections and Conditional Release
Act,
(ii)
find that the offender is not a dangerous offender and impose
sentence for the offence for which the offender has been convicted,
or
(iii)
order a new hearing; or
(b) dismiss the appeal. |
Disposition
of appeal — long-term offender |
(3.1)
On an appeal against a finding that an offender is a long-term
offender, the court of appeal may
(a) allow the appeal and
(i)
find that the offender is not a long-term offender and quash the
order for long-term supervision, or
(ii)
order a new hearing; or
(b) dismiss the appeal. |
Disposition
of appeal — long-term offender |
(3.2)
On an appeal by a long-term offender against the length of a period
of long-term supervision of the long-term offender, the court of
appeal may
(a) allow the appeal and change the
length of the period; or
(b) dismiss the appeal. |
Disposition
of appeal by Attorney General |
(4) On
an appeal against the dismissal of an application for an order that
an offender is a dangerous offender under this Part, the court of
appeal may
(a) allow the appeal and
(i)
find that the offender is a dangerous offender,
(ii)
find that the offender is not a dangerous offender, find that the
offender is a long-term offender, impose a minimum sentence of
imprisonment for two years, for the offence for which the offender
has been convicted, and order the offender to be supervised in the
community, for a period that does not, subject to subsection
753.1(5), exceed ten years, in accordance with section 753.2 and the
Corrections and Conditional Release
Act, or
(iii)
order a new hearing; or
(b) dismiss the appeal. |
Disposition
of appeal by Attorney General |
(4.1)
On an appeal by the Attorney General against the length of a period
of long-term supervision of a long-term offender, the court of
appeal may
(a) allow the appeal and change the
length of the period; or
(b) dismiss the appeal. |
Disposition
of appeal by Attorney General |
(4.2)
On an appeal against the dismissal of an application for a finding
that an offender is a long-term offender under this Part, the court
of appeal may
(a) allow the appeal and
(i)
find that the offender is a long-term offender, impose a minimum
sentence of imprisonment for two years, for the offence for which
the offender has been convicted, and order the offender to be
supervised in the community, for a period that does not, subject to
subsection 753.1(5), exceed ten years, in accordance with section
753.2 and the Corrections and
Conditional Release Act, or
(ii)
order a new hearing; or
(b) dismiss the appeal. |
|
(5) A
judgment of the court of appeal finding that an offender is or is
not a dangerous offender or a long-term offender, or changing the
length of the period of long-term supervision ordered, has the same
force and effect as if it were a finding by or judgment of the trial
court. |
|
(6)
Notwithstanding subsection 719(1), a sentence imposed on an offender
by the court of appeal pursuant to this section shall be deemed to
have commenced when the offender was sentenced by the court by which
he was convicted. |
Part
XXI applies re appeals |
(7)
The provisions of Part XXI with respect to procedure on appeals
apply, with such modifications as the circumstances require, to
appeals under this section.
R.S.,
1985, c. C-46, s. 759; 1995, c. 22, s. 10; 1997, c. 17, s.
6. |
|
760. Where a
court finds an offender to be a dangerous offender or a long-term
offender, the court shall order that a copy of all reports and
testimony given by psychiatrists, psychologists, criminologists and
other experts and any observations of the court with respect to the
reasons for the finding, together with a transcript of the trial of
the offender, be forwarded to the Correctional Service of Canada for
information.
R.S.,
1985, c. C-46, s. 760; 1997, c. 17, s. 7. |
|
761. (1)
Subject to subsection (2), where a person is in custody under a
sentence of detention in a penitentiary for an indeterminate period,
the National Parole Board shall, as soon as possible after the
expiration of seven years from the day on which that person was
taken into custody and not later than every two years after the
previous review, review the condition, history and circumstances of
that person for the purpose of determining whether he or she should
be granted parole under Part II of the Corrections and Conditional Release
Act and, if so, on what conditions. |
|
(2)
Where a person is in custody under a sentence of detention in a
penitentiary for an indeterminate period that was imposed before
October 15, 1977, the National Parole Board shall, at least once in
every year, review the condition, history and circumstances of that
person for the purpose of determining whether he should be granted
parole under Part II of the Corrections and Conditional Release
Act and, if so, on what conditions.
R.S.,
1985, c. C-46, s. 761; 1992, c. 20, s. 215; 1997, c. 17, s.
8. |
|
PART
XXV
EFFECT AND ENFORCEMENT
OF RECOGNIZANCES |
|
762. (1)
Applications for the forfeiture of recognizances shall be made to
the courts, designated in column II of the schedule, of the
respective provinces designated in column I of the
schedule. |
|
(2) In
this Part, |
“clerk of the court”
« greffier du
tribunal » |
“clerk
of the court” means the officer designated in column III of the
schedule in respect of the court designated in column II of the
schedule; |
|
“schedule” means the
schedule to this Part.
R.S.,
c. C-34, s. 696. |
|
763. Where a
person is bound by recognizance to appear before a court, justice or
provincial court judge for any purpose and the session or sittings
of that court or the proceedings are adjourned or an order is made
changing the place of trial, that person and his sureties continue
to be bound by the recognizance in like manner as if it had been
entered into with relation to the resumed proceedings or the trial
at the time and place at which the proceedings are ordered to be
resumed or the trial is ordered to be held.
R.S.,
1985, c. C-46, s. 763; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
764. (1)
Where an accused is bound by recognizance to appear for trial, his
arraignment or conviction does not discharge the recognizance, but
it continues to bind him and his sureties, if any, for his
appearance until he is discharged or sentenced, as the case may
be. |
Committal
or new sureties |
(2)
Notwithstanding subsection (1), the court, justice or provincial
court judge may commit an accused to prison or may require him to
furnish new or additional sureties for his appearance until he is
discharged or sentenced, as the case may be. |
|
(3)
The sureties of an accused who is bound by recognizance to appear
for trial are discharged if he is committed to prison pursuant to
subsection (2). |
Endorsement
on recognizance |
(4)
The provisions of section 763 and subsections (1) to (3) of this
section shall be endorsed on any recognizance entered into pursuant
to this Act.
R.S.,
1985, c. C-46, s. 764; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
765. Where an
accused is bound by recognizance to appear for trial, his arrest on
another charge does not vacate the recognizance, but it continues to
bind him and his sureties, if any, for his appearance until he is
discharged or sentenced, as the case may be, in respect of the
offence to which the recognizance relates.
R.S.,
c. C-34, s. 699. |
|
766. (1) A
surety for a person who is bound by recognizance to appear may, by
an application in writing to a court, justice or provincial court
judge, apply to be relieved of his obligation under the
recognizance, and the court, justice or provincial court judge shall
thereupon issue an order in writing for committal of that person to
the prison nearest to the place where he was, under the
recognizance, bound to appear. |
|
(2) An
order under subsection (1) shall be given to the surety and on
receipt thereof he or any peace officer may arrest the person named
in the order and deliver that person with the order to the keeper of
the prison named therein, and the keeper shall receive and imprison
that person until he is discharged according to law. |
Certificate
and entry of render |
(3)
Where a court, justice or provincial court judge issues an order
under subsection (1) and receives from the sheriff a certificate
that the person named in the order has been committed to prison
pursuant to subsection (2), the court, justice or provincial court
judge shall order an entry of the committal to be endorsed on the
recognizance. |
|
(4) An
endorsement under subsection (3) vacates the recognizance and
discharges the sureties.
R.S.,
1985, c. C-46, s. 766; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
767. A surety
for a person who is bound by recognizance to appear may bring that
person into the court at which he is required to appear at any time
during the sittings thereof and before his trial and the surety may
discharge his obligation under the recognizance by giving that
person into the custody of the court, and the court shall thereupon
commit that person to prison until he is discharged according to
law.
R.S.,
c. C-34, s. 701. |
|
767.1 (1)
Notwithstanding subsection 766(1) and section 767, where a surety
for a person who is bound by a recognizance has rendered the person
into the custody of a court pursuant to section 767 or applies to be
relieved of his obligation under the recognizance pursuant to
subsection 766(1), the court, justice or provincial court judge, as
the case may be, may, instead of committing or issuing an order for
the committal of the person to prison, substitute any other suitable
person for the surety under the recognizance. |
Signing
of recognizance by new sureties |
(2)
Where a person substituted for a surety under a recognizance
pursuant to subsection (1) signs the recognizance, the original
surety is discharged, but the recognizance and the order for
judicial interim release pursuant to which the recognizance was
entered into are not otherwise affected.
R.S.,
1985, c. 27 (1st Supp.), s. 167. |
|
768. Nothing
in this Part limits or restricts any right that a surety has of
taking and giving into custody any person for whom, under a
recognizance, he is a surety.
R.S.,
c. C-34, s. 702. |
|
769. Where a
surety for a person has rendered him into custody and that person
has been committed to prison, the provisions of Parts XVI, XXI and
XXVII relating to judicial interim release apply, with such
modifications as the circumstances require, in respect of him and he
shall forthwith be taken before a justice or judge as an accused
charged with an offence or as an appellant, as the case may be, for
the purposes of those provisions.
R.S.,
c. C-34, s. 703; R.S., c. 2(2nd Supp.), s. 14. |
|
770. (1)
Where, in proceedings to which this Act applies, a person who is
bound by recognizance does not comply with a condition of the
recognizance, a court, justice or provincial court judge having
knowledge of the facts shall endorse or cause to be endorsed on the
recognizance a certificate in Form 33 setting out
(a) the nature of the default;
(b) the reason for the default, if
it is known;
(c) whether the ends of justice
have been defeated or delayed by reason of the default; and
(d) the names and addresses of the
principal and sureties. |
Transmission
to clerk of court |
(2) A
recognizance that has been endorsed pursuant to subsection (1) shall
be sent to the clerk of the court and shall be kept by him with the
records of the court. |
|
(3) A
certificate that has been endorsed on a recognizance pursuant to
subsection (1) is evidence of the default to which it
relates. |
|
(4)
Where, in proceedings to which this section applies, the principal
or surety has deposited money as security for the performance of a
condition of a recognizance, that money shall be sent to the clerk
of the court with the defaulted recognizance, to be dealt with in
accordance with this Part.
R.S.,
1985, c. C-46, s. 770; R.S., 1985, c. 27 (1st Supp.), s. 203; 1997,
c. 18, s. 108. |
|
771. (1)
Where a recognizance has been endorsed with a certificate pursuant
to section 770 and has been received by the clerk of the court
pursuant to that section,
(a) a judge of the court shall, on
the request of the clerk of the court or the Attorney General or
counsel acting on his behalf, fix a time and place for the hearing
of an application for the forfeiture of the recognizance; and
(b) the clerk of the court shall,
not less than ten days before the time fixed under paragraph (a) for the hearing, send by
registered mail, or have served in the manner directed by the court
or prescribed by the rules of court, to each principal and surety
named in the recognizance, directed to the principal or surety at
the address set out in the certificate, a notice requiring the
person to appear at the time and place fixed by the judge to show
cause why the recognizance should not be forfeited. |
|
(2)
Where subsection (1) has been complied with, the judge may, after
giving the parties an opportunity to be heard, in his discretion
grant or refuse the application and make any order with respect to
the forfeiture of the recognizance that he considers
proper. |
Judgment
debtors of the Crown |
(3)
Where, pursuant to subsection (2), a judge orders forfeiture of a
recognizance, the principal and his sureties become judgment debtors
of the Crown, each in the amount that the judge orders him to
pay. |
|
(3.1)
An order made under subsection (2) may be filed with the clerk of
the superior court and if an order is filed, the clerk shall issue a
writ of fieri facias in Form
34 and deliver it to the sheriff of each of the territorial
divisions in which the principal or any surety resides, carries on
business or has property. |
|
(4)
Where a deposit has been made by a person against whom an order for
forfeiture of a recognizance has been made, no writ of fieri facias shall issue, but the
amount of the deposit shall be transferred by the person who has
custody of it to the person who is entitled by law to receive
it.
R.S.,
1985, c. C-46, s. 771; R.S., 1985, c. 27 (1st Supp.), s. 168; 1994,
c. 44, s. 78; 1999, c. 5, s. 43. |
|
772. (1)
Where a writ of fieri facias
is issued pursuant to section 771, the sheriff to whom it is
delivered shall execute the writ and deal with the proceeds thereof
in the same manner in which he is authorized to execute and deal
with the proceeds of writs of fieri
facias issued out of superior courts in the province in civil
proceedings. |
|
(2)
Where this section applies, the Crown is entitled to the costs of
execution and of proceedings incidental thereto that are fixed, in
the Province of Quebec, by any tariff applicable in the Superior
Court in civil proceedings, and in any other province, by any tariff
applicable in the superior court of the province in civil
proceedings, as the judge may direct.
R.S.,
c. C-34, s. 706. |
|
773. (1)
Where a writ of fieri facias
has been issued under this Part and it appears from a certificate in
a return made by the sheriff that sufficient goods and chattels,
lands and tenements cannot be found to satisfy the writ, or that the
proceeds of the execution of the writ are not sufficient to satisfy
it, a judge of the court may, upon the application of the Attorney
General or counsel acting on his behalf, fix a time and place for
the sureties to show cause why a warrant of committal should not be
issued in respect of them. |
|
(2)
Seven clear days notice of the time and place fixed for the hearing
pursuant to subsection (1) shall be given to the sureties. |
|
(3)
The judge shall, at the hearing held pursuant to subsection (1),
inquire into the circumstances of the case and may in his
discretion
(a) order the discharge of the
amount for which the surety is liable; or
(b) make any order with respect to
the surety and to his imprisonment that he considers proper in the
circumstances and issue a warrant of committal in Form 27. |
|
(4) A
warrant of committal issued pursuant to this section authorizes the
sheriff to take into custody the person in respect of whom the
warrant was issued and to confine him in a prison in the territorial
division in which the writ was issued or in the prison nearest to
the court, until satisfaction is made or until the period of
imprisonment fixed by the judge has expired. |
Definition
of “Attorney General” |
(5) In
this section and in section 771, “Attorney General” means, where
subsection 734.4(2) applies, the Attorney General of Canada.
R.S.,
1985, c. C-46, s. 773; 1995, c. 22, s. 10. |
|
PART
XXVI
EXTRAORDINARY
REMEDIES |
|
774. This
Part applies to proceedings in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition.
R.S.,
1985, c. C-46, s. 774; R.S., 1985, c. 27 (1st Supp.), s.
169. |
|
774.1 Despite
any other provision of this Act, the person who is the subject of a
writ of habeas corpus must
appear personally in court.
2002,
c. 13, s. 77. |
|
775. Where
proceedings to which this Part applies have been instituted before a
judge or court having jurisdiction, by or in respect of a person who
is in custody by reason that he is charged with or has been
convicted of an offence, to have the legality of his imprisonment
determined, the judge or court may, without determining the
question, make an order for the further detention of that person and
direct the judge, justice or provincial court judge under whose
warrant he is in custody, or any other judge, justice or provincial
court judge, to take any proceedings, hear such evidence or do any
other thing that, in the opinion of the judge or court, will best
further the ends of justice.
R.S.,
1985, c. C-46, s. 775; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
776. No
conviction or order shall be removed by certiorari
(a) where an appeal was taken,
whether or not the appeal has been carried to a conclusion; or
(b) where the defendant appeared
and pleaded and the merits were tried, and an appeal might have been
taken, but the defendant did not appeal.
R.S.,
c. C-34, s. 710. |
|
777. (1) No
conviction, order or warrant for enforcing a conviction or order
shall, on being removed by certiorari, be held to be invalid
by reason of any irregularity, informality or insufficiency therein,
where the court before which or the judge before whom the question
is raised, on perusal of the evidence, is satisfied
(a) that an offence of the nature
described in the conviction, order or warrant, as the case may be,
was committed,
(b) that there was jurisdiction to
make the conviction or order or issue the warrant, as the case may
be, and
(c) that the punishment imposed, if
any, was not in excess of the punishment that might lawfully have
been imposed,
but the
court or judge has the same powers to deal with the proceedings in
the manner that the court or judge considers proper that are
conferred on a court to which an appeal might have been
taken. |
|
(2)
Where, in proceedings to which subsection (1) applies, the court or
judge is satisfied that a person was properly convicted of an
offence but the punishment that was imposed is greater than the
punishment that might lawfully have been imposed, the court or
judge
(a) shall correct the sentence,
(i)
where the punishment is a fine, by imposing a fine that does not
exceed the maximum fine that might lawfully have been imposed,
(ii)
where the punishment is imprisonment, and the person has not served
a term of imprisonment under the sentence that is equal to or
greater than the term of imprisonment that might lawfully have been
imposed, by imposing a term of imprisonment that does not exceed the
maximum term of imprisonment that might lawfully have been imposed,
or
(iii)
where the punishment is a fine and imprisonment, by imposing a
punishment in accordance with subparagraph (i) or (ii), as the case
requires; or
(b) shall remit the matter to the
convicting judge, justice or provincial court judge and direct him
to impose a punishment that is not greater than the punishment that
may be lawfully imposed. |
|
(3)
Where an adjudication is varied pursuant to subsection (1) or (2),
the conviction and warrant of committal, if any, shall be amended to
conform to the adjudication as varied. |
|
(4)
Any statement that appears in a conviction and is sufficient for the
purpose of the conviction is sufficient for the purposes of an
information, summons, order or warrant in which it appears in the
proceedings.
R.S.,
1985, c. C-46, s. 777; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
778. Without
restricting the generality of section 777, that section shall be
deemed to apply where
(a) the statement of the
adjudication or of any other matter or thing is in the past tense
instead of in the present tense;
(b) the punishment imposed is less
than the punishment that might by law have been imposed for the
offence that appears by the evidence to have been committed; or
(c) there has been an omission to
negative circumstances, the existence of which would make the act
complained of lawful, whether those circumstances are stated by way
of exception or otherwise in the provision under which the offence
is charged or are stated in another provision.
R.S.,
c. C-34, s. 712. |
|
779. (1) A
court that has authority to quash a conviction, order or other
proceeding on certiorari may
prescribe by general order that no motion to quash any such
conviction, order or other proceeding removed to the court by certiorari shall be heard unless
the defendant has entered into a recognizance with one or more
sufficient sureties, before one or more justices of the territorial
division in which the conviction or order was made or before a judge
or other officer, or has made a deposit to be prescribed with a
condition that the defendant will prosecute the writ of certiorari at his own expense,
without wilful delay, and, if ordered, will pay to the person in
whose favour the conviction, order or other proceeding is affirmed
his full costs and charges to be taxed according to the practice of
the court where the conviction, order or proceeding is
affirmed. |
|
(2)
The provisions of Part XXV relating to forfeiture of recognizances
apply to a recognizance entered into under this section.
R.S.,
c. C-34, s. 713. |
|
780. Where a
motion to quash a conviction, order or other proceeding is refused,
the order of the court refusing the application is sufficient
authority for the clerk of the court forthwith to return the
conviction, order or proceeding to the court from which or the
person from whom it was removed, and for proceedings to be taken
with respect thereto for the enforcement thereof.
R.S.,
c. C-34, s. 714. |
|
781. (1) No
order, conviction or other proceeding shall be quashed or set aside,
and no defendant shall be discharged, by reason only that evidence
has not been given
(a) of a proclamation or order of
the Governor in Council or the lieutenant governor in council;
(b) of rules, regulations or
by-laws made by the Governor in Council under an Act of Parliament
or by the lieutenant governor in council under an Act of the
legislature of the province; or
(c) of the publication of a
proclamation, order, rule, regulation or by-law in the Canada Gazette or in the official
gazette for the province. |
|
(2)
Proclamations, orders, rules, regulations and by-laws mentioned in
subsection (1) and the publication thereof shall be judicially
noticed.
R.S.,
c. C-34, s. 715. |
|
782. No
warrant of committal shall, on certiorari or habeas corpus, be held to be void
by reason only of any defect therein, where
(a) it is alleged in the warrant
that the defendant was convicted; and
(b) there is a valid conviction to
sustain the warrant.
R.S.,
c. C-34, s. 716. |
|
783. Where an
application is made to quash a conviction, order or other proceeding
made or held by a provincial court judge acting under Part XIX or a
justice on the ground that he exceeded his jurisdiction, the court
to which or the judge to whom the application is made may, in
quashing the conviction, order or other proceeding, order that no
civil proceedings shall be taken against the justice or provincial
court judge or against any officer who acted under the conviction,
order or other proceeding or under any warrant issued to enforce
it.
R.S.,
1985, c. C-46, s. 783; R.S., 1985, c. 27 (1st Supp.), s.
203. |
|
784. (1) An
appeal lies to the court of appeal from a decision granting or
refusing the relief sought in proceedings by way of mandamus, certiorari or
prohibition. |
|
(2)
Except as provided in this section, Part XXI applies, with such
modifications as the circumstances require, to appeals under this
section. |
Refusal
of application, and appeal |
(3)
Where an application for a writ of habeas corpus ad subjiciendum is
refused by a judge of a court having jurisdiction therein, no
application may again be made on the same grounds, whether to the
same or to another court or judge, unless fresh evidence is adduced,
but an appeal from that refusal shall lie to the court of appeal,
and where on the appeal the application is refused a further appeal
shall lie to the Supreme Court of Canada, with leave of that
Court. |
|
(4)
Where a writ of habeas corpus ad
subjiciendum is granted by any judge, no appeal therefrom
shall lie at the instance of any party including the Attorney
General of the province concerned or the Attorney General of
Canada. |
Appeal
from judgment on return of writ |
(5)
Where a judgment is issued on the return of a writ of habeas corpus ad subjiciendum, an
appeal therefrom lies to the court of appeal, and from a judgment of
the court of appeal to the Supreme Court of Canada, with the leave
of that Court, at the instance of the applicant or the Attorney
General of the province concerned or the Attorney General of Canada,
but not at the instance of any other party. |
|
(6) An
appeal in habeas corpus
matters shall be heard by the court to which the appeal is directed
at an early date, whether in or out of the prescribed sessions of
the court.
R.S.,
1985, c. C-46, s. 784; 1997, c. 18, s. 109. |
|
PART
XXVII
SUMMARY
CONVICTIONS |
|
|
|
785. In this
Part, |
“clerk of the appeal court”
« greffier de la cour
d’appel » |
“clerk
of the appeal court” includes a local clerk of the appeal
court; |
“informant”
« dénonciateur » |
“informant” means a person
who lays an information; |
“information”
« dénonciation » |
“information” includes
(a) a count in an information,
and
(b) a complaint in respect of which
a justice is authorized by an Act of Parliament or an enactment made
thereunder to make an order; |
|
“order” means any order,
including an order for the payment of money; |
“proceedings”
« procédures » |
“proceedings” means
(a) proceedings in respect of
offences that are declared by an Act of Parliament or an enactment
made thereunder to be punishable on summary conviction, and
(b) proceedings where a justice is
authorized by an Act of Parliament or an enactment made thereunder
to make an order; |
“prosecutor”
« poursuivant » |
“prosecutor” means the
Attorney General or, where the Attorney General does not intervene,
the informant, and includes counsel or an agent acting on behalf of
either of them; |
“sentence”
« sentence », « peine » ou « condamnation » |
“sentence” includes
(a) a declaration made under
subsection 199(3),
(b) an order made under subsection
109(1), 110(1) or 259(1) or (2), section 261, subsection 730(1) or
737(3) or (5) or section 738, 739, 742.1 or 742.3,
(c) a disposition made under
section 731 or 732 or subsection 732.2(3) or (5), 742.4(3) or
742.6(9), and
(d) an order made under subsection
16(1) of the Controlled Drugs and
Substances Act; |
“summary conviction court”
« cour des poursuites
sommaires » |
“summary conviction court”
means a person who has jurisdiction in the territorial division
where the subject-matter of the proceedings is alleged to have
arisen and who
(a) is given jurisdiction over the
proceedings by the enactment under which the proceedings are
taken,
(b) is a justice or provincial
court judge, where the enactment under which the proceedings are
taken does not expressly give jurisdiction to any person or class of
persons, or
(c) is a provincial court judge,
where the enactment under which the proceedings are taken gives
jurisdiction in respect thereof to two or more justices; |
“trial”
« procès » ou « instruction » |
“trial” includes the
hearing of a complaint.
R.S.,
1985, c. C-46, s. 785; R.S., 1985, c. 27 (1st Supp.), ss. 170, 203;
1992, c. 1, s. 58; 1995, c. 22, s. 7, c. 39, s. 156; 1996, c. 19, s.
76; 1999, c. 25, s. 23(Preamble); 2002, c. 13, s. 78. |
|
786. (1)
Except where otherwise provided by law, this Part applies to
proceedings as defined in this Part. |
|
(2) No
proceedings shall be instituted more than six months after the time
when the subject-matter of the proceedings arose, unless the
prosecutor and the defendant so agree.
R.S.,
1985, c. C-46, s. 786; 1997, c. 18, s. 110. |
|
|
|
787. (1)
Except where otherwise provided by law, every one who is convicted
of an offence punishable on summary conviction is liable to a fine
of not more than two thousand dollars or to imprisonment for six
months or to both. |
Imprisonment
in default where not otherwise specified |
(2)
Where the imposition of a fine or the making of an order for the
payment of money is authorized by law, but the law does not provide
that imprisonment may be imposed in default of payment of the fine
or compliance with the order, the court may order that in default of
payment of the fine or compliance with the order, as the case may
be, the defendant shall be imprisoned for a term not exceeding six
months.
(3) to
(11) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 171]
R.S.,
1985, c. C-46, s. 787; R.S., 1985, c. 27 (1st Supp.), s.
171. |
|
|
|
788. (1)
Proceedings under this Part shall be commenced by laying an
information in Form 2. |
One
justice may act before the trial |
(2)
Notwithstanding any other law that requires an information to be
laid before or to be tried by two or more justices, one justice
may
(a) receive the information;
(b) issue a summons or warrant with
respect to the information; and
(c) do all other things preliminary
to the trial.
R.S.,
c. C-34, s. 723. |
|
789. (1) In
proceedings to which this Part applies, an information
(a) shall be in writing and under
oath; and
(b) may charge more than one
offence or relate to more than one matter of complaint, but where
more than one offence is charged or the information relates to more
than one matter of complaint, each offence or matter of complaint,
as the case may be, shall be set out in a separate count. |
No
reference to previous convictions |
(2) No
information in respect of an offence for which, by reason of
previous convictions, a greater punishment may be imposed shall
contain any reference to previous convictions.
R.S.,
c. C-34, s. 724. |
|
790. (1)
Nothing in this Act or any other law shall be deemed to require a
justice before whom proceedings are commenced or who issues process
before or after the trial to be the justice or one of the justices
before whom the trial is held. |
|
(2)
Where two or more justices have jurisdiction with respect to
proceedings, they shall be present and act together at the trial,
but one justice may thereafter do anything that is required or is
authorized to be done in connection with the proceedings.
(3)
and (4) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 172]
R.S.,
1985, c. C-46, s. 790; R.S., 1985, c. 27 (1st Supp.), s.
172. |
|
791.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 173] |
|
792.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 174] |
|
|
|
793.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 175] |
|
794. (1) No
exception, exemption, proviso, excuse or qualification prescribed by
law is required to be set out or negatived, as the case may be, in
an information. |
Burden
of proving exception, etc. |
(2)
The burden of proving that an exception, exemption, proviso, excuse
or qualification prescribed by law operates in favour of the
defendant is on the defendant, and the prosecutor is not required,
except by way of rebuttal, to prove that the exception, exemption,
proviso, excuse or qualification does not operate in favour of the
defendant, whether or not it is set out in the information.
R.S.,
c. C-34, s. 730. |
|
|
|
795. The
provisions of Parts XVI and XVIII with respect to compelling the
appearance of an accused before a justice, and the provisions of
Parts XX and XX.1, in so far as they are not inconsistent with this
Part, apply, with such modifications as the circumstances require,
to proceedings under this Part.
R.S.,
1985, c. C-46, s. 795; R.S., 1985, c. 27 (1st Supp.), s. 176; 1991,
c. 43, s. 7. |
|
796. and 797.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 176] |
|
|
|
798. Every
summary conviction court has jurisdiction to try, determine and
adjudge proceedings to which this Part applies in the territorial
division over which the person who constitutes that court has
jurisdiction.
R.S.,
c. C-34, s. 733. |
|
799. Where,
in proceedings to which this Part applies, the defendant appears for
the trial and the prosecutor, having had due notice, does not
appear, the summary conviction court may dismiss the information or
may adjourn the trial to some other time on such terms as it
considers proper.
R.S.,
c. C-34, s. 734. |
|
800. (1)
Where the prosecutor and defendant appear for the trial, the summary
conviction court shall proceed to hold the trial. |
|
(2) A
defendant may appear personally or by counsel or agent, but the
summary conviction court may require the defendant to appear
personally and may, if it thinks fit, issue a warrant in Form 7 for
the arrest of the defendant and adjourn the trial to await his
appearance pursuant thereto. |
|
(2.1)
Where the court so orders and the defendant agrees, the defendant
who is confined in prison may appear by closed-circuit television or
any other means that allow the court and the defendant to engage in
simultaneous visual and oral communication, if the defendant is
given the opportunity to communicate privately with counsel, in a
case in which the defendant is represented by counsel. |
Appearance
by organization |
(3)
Where the defendant is an organization, it shall appear by counsel
or agent and, if it does not appear, the summary conviction court
may, on proof of service of the summons, proceed ex parte to hold the trial.
R.S.,
1985, c. C-46, s. 800; 1997, c. 18, s. 111; 2003, c. 21, s.
21. |
|
801. (1)
Where the defendant appears for the trial, the substance of the
information laid against him shall be stated to him, and he shall be
asked,
(a) whether he pleads guilty or not
guilty to the information, where the proceedings are in respect of
an offence that is punishable on summary conviction; or
(b) whether he has cause to show
why an order should not be made against him, in proceedings where a
justice is authorized by law to make an order. |
Finding
of guilt, conviction or order if charge admitted |
(2)
Where the defendant pleads guilty or does not show sufficient cause
why an order should not be made against him, as the case may be, the
summary conviction court shall convict the defendant, discharge the
defendant under section 730 or make an order against the defendant
accordingly. |
Procedure
if charge not admitted |
(3)
Where the defendant pleads not guilty or states that he has cause to
show why an order should not be made against him, as the case may
be, the summary conviction court shall proceed with the trial, and
shall take the evidence of witnesses for the prosecutor and the
defendant in accordance with the provisions of Part XVIII relating
to preliminary inquiries.
(4)
and (5) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 177]
R.S.,
1985, c. C-46, s. 801; R.S., 1985, c. 27 (1st Supp.), s. 177, c. 1
(4th Supp.), s. 18(F); 1995, c. 22, s. 10. |
|
802. (1) The
prosecutor is entitled personally to conduct his case and the
defendant is entitled to make his full answer and defence. |
|
(2)
The prosecutor or defendant, as the case may be, may examine and
cross-examine witnesses personally or by counsel or agent. |
|
(3)
Every witness at a trial in proceedings to which this Part applies
shall be examined under oath.
R.S.,
c. C-34, s. 737. |
|
802.1 Despite
subsections 800(2) and 802(2), a defendant may not appear or examine
or cross-examine witnesses by agent if he or she is liable, on
summary conviction, to imprisonment for a term of more than six
months, unless the defendant is a corporation or the agent is
authorized to do so under a program approved by the lieutenant
governor in council of the province.
2002,
c. 13, s. 79. |
|
803. (1) The
summary conviction court may, in its discretion, before or during
the trial, adjourn the trial to a time and place to be appointed and
stated in the presence of the parties or their counsel or
agents. |
Non-appearance
of defendant |
(2)
Where a defendant does not appear at the time and place appointed
for the trial after having been notified of that time and place, or
where a defendant does not appear for the resumption of a trial that
has been adjourned in accordance with subsection (1), the summary
conviction court
(a) may proceed ex parte to hear and determine the
proceedings in the absence of the defendant as fully and effectually
as if the defendant had appeared; or
(b) may, if it thinks fit, issue a
warrant in Form 7 for the arrest of the defendant and adjourn the
trial to await his appearance pursuant thereto. |
Consent
of Attorney General required |
(3)
Where, at the trial of a defendant, the summary conviction court
proceeds in the manner described in paragraph (2)(a), no proceedings under section
145 arising out of the failure of the defendant to appear at the
time and place appointed for the trial or for the resumption of the
trial shall be instituted or if instituted shall be proceeded with,
except with the consent of the Attorney General. |
Non-appearance
of prosecutor |
(4)
Where the prosecutor does not appear at the time and place appointed
for the resumption of an adjourned trial, the summary conviction
court may dismiss the information with or without costs.
(5) to
(8) [Repealed, 1991, c. 43, s. 9]
R.S.,
1985, c. C-46, s. 803; 1991, c. 43, s. 9; 1994, c. 44, s. 79; 1997,
c. 18, s. 112. |
|
|
|
804. When the
summary conviction court has heard the prosecutor, defendant and
witnesses, it shall, after considering the matter, convict the
defendant, discharge the defendant under section 730, make an order
against the defendant or dismiss the information, as the case may
be.
R.S.,
1985, c. C-46, s. 804; R.S., 1985, c. 27 (1st Supp.), s. 178, c. 1
(4th Supp.), s. 18(F); 1995, c. 22, s. 10. |
|
805.
[Repealed, R.S., 1985, c. 27 (1st Supp.), s. 179] |
|
806. (1)
Where a defendant is convicted or an order is made in relation to
the defendant, a minute or memorandum of the conviction or order
shall be made by the summary conviction court indicating that the
matter was dealt with under this Part and, on request by the
defendant, the prosecutor or any other person, the court shall cause
a conviction or order in Form 35 or 36, as the case may be, and a
certified copy of the conviction or order to be drawn up and shall
deliver the certified copy to the person making the
request. |
|
(2)
Where a defendant is convicted or an order is made against him, the
summary conviction court shall issue a warrant of committal in Form
21 or 22, and section 528 applies in respect of a warrant of
committal issued under this subsection. |
Admissibility
of certified copy |
(3)
Where a warrant of committal in Form 21 is issued by a clerk of a
court, a copy of the warrant of committal, certified by the clerk,
is admissible in evidence in any proceeding.
R.S.,
1985, c. C-46, s. 806; R.S., 1985, c. 27 (1st Supp.), s. 185(F);
1994, c. 44, s. 80. |
|
807. Where
several persons join in committing the same offence and on
conviction each is adjudged to pay an amount to a person aggrieved,
no more shall be paid to that person than an amount equal to the
value of the property destroyed or injured or the amount of the
injury done, together with costs, if any, and the residue of the
amount adjudged to be paid shall be applied in the manner in which
other penalties imposed by law are directed to be applied.
R.S.,
c. C-34, s. 742. |
|
808. (1)
Where the summary conviction court dismisses an information, it may,
if requested by the defendant, draw up an order of dismissal and
shall give to the defendant a certified copy of the order of
dismissal. |
|
(2) A
copy of an order of dismissal, certified in accordance with
subsection (1) is, without further proof, a bar to any subsequent
proceedings against the defendant in respect of the same cause.
R.S.,
c. C-34, s. 743. |
|
809. (1) The
summary conviction court may in its discretion award and order such
costs as it considers reasonable and not inconsistent with such of
the fees established by section 840 as may be taken or allowed in
proceedings before that summary conviction court, to be paid
(a) to the informant by the
defendant, where the summary conviction court convicts or makes an
order against the defendant; or
(b) to the defendant by the
informant, where the summary conviction court dismisses an
information. |
|
(2) An
order under subsection (1) shall be set out in the conviction, order
or order of dismissal, as the case may be. |
|
(3)
Where a fine or sum of money or both are adjudged to be paid by a
defendant and a term of imprisonment in default of payment is
imposed, the defendant is, in default of payment, liable to serve
the term of imprisonment imposed, and for the purposes of this
subsection, any costs that are awarded against the defendant shall
be deemed to be part of the fine or sum of money adjudged to be
paid. |
|
(4)
Where no fine or sum of money is adjudged to be paid by a defendant,
but costs are awarded against the defendant or informant, the person
who is liable to pay them is, in default of payment, liable to
imprisonment for one month. |
|
(5) In
this section, “costs” includes the costs and charges, after they
have been ascertained, of committing and conveying to prison the
person against whom costs have been awarded.
R.S.,
c. C-34, s. 744. |
|
Sureties
to Keep the Peace |
|
810. (1) An
information may be laid before a justice by or on behalf of any
person who fears on reasonable grounds that another person will
cause personal injury to him or her or to his or her spouse or
common-law partner or child or will damage his or her
property. |
|
(2) A
justice who receives an information under subsection (1) shall cause
the parties to appear before him or before a summary conviction
court having jurisdiction in the same territorial
division. |
|
(3)
The justice or the summary conviction court before which the parties
appear may, if satisfied by the evidence adduced that the person on
whose behalf the information was laid has reasonable grounds for his
or her fears,
(a) order that the defendant enter
into a recognizance, with or without sureties, to keep the peace and
be of good behaviour for any period that does not exceed twelve
months, and comply with such other reasonable conditions prescribed
in the recognizance, including the conditions set out in subsections
(3.1) and (3.2), as the court considers desirable for securing the
good conduct of the defendant; or
(b) commit the defendant to prison
for a term not exceeding twelve months if he or she fails or refuses
to enter into the recognizance. |
|
(3.1)
Before making an order under subsection (3), the justice or the
summary conviction court shall consider whether it is desirable, in
the interests of the safety of the defendant or of any other person,
to include as a condition of the recognizance that the defendant be
prohibited from possessing any firearm, cross-bow, prohibited
weapon, restricted weapon, prohibited device, ammunition, prohibited
ammunition or explosive substance, or all such things, for any
period specified in the recognizance and, where the justice or
summary conviction court decides that it is so desirable, the
justice or summary conviction court shall add such a condition to
the recognizance. |
|
(3.11)
Where the justice or summary conviction court adds a condition
described in subsection (3.1) to a recognizance order, the justice
or summary conviction court shall specify in the order the manner
and method by which
(a) the things referred to in that
subsection that are in the possession of the accused shall be
surrendered, disposed of, detained, stored or dealt with; and
(b) the authorizations, licences
and registration certificates held by the person shall be
surrendered. |
|
(3.12)
Where the justice or summary conviction court does not add a
condition described in subsection (3.1) to a recognizance order, the
justice or summary conviction court shall include in the record a
statement of the reasons for not adding the condition. |
|
(3.2)
Before making an order under subsection (3), the justice or the
summary conviction court shall consider whether it is desirable, in
the interests of the safety of the informant, of the person on whose
behalf the information was laid or of that person’s spouse or
common-law partner or child, as the case may be, to add either or
both of the following conditions to the recognizance, namely, a
condition
(a) prohibiting the defendant from
being at, or within a distance specified in the recognizance from, a
place specified in the recognizance where the person on whose behalf
the information was laid or that person’s spouse or common-law
partner or child, as the case may be, is regularly found; and
(b) prohibiting the defendant from
communicating, in whole or in part, directly or indirectly, with the
person on whose behalf the information was laid or that person’s
spouse or common-law partner or child, as the case may be. |
|
(4) A
recognizance and committal to prison in default of recognizance
under subsection (3) may be in Forms 32 and 23,
respectively. |
Modification
of recognizance |
(4.1)
The justice or the summary conviction court may, on application of
the informant or the defendant, vary the conditions fixed in the
recognizance. |
|
(5)
The provisions of this Part apply, with such modifications as the
circumstances require, to proceedings under this section.
R.S.,
1985, c. C-46, s. 810; 1991, c. 40, s. 33; 1994, c. 44, s. 81; 1995,
c. 22, s. 8, c. 39, s. 157; 2000, c. 12, s. 95. |
|
810.01 (1) A
person who fears on reasonable grounds that another person will
commit an offence under section 423.1, a criminal organization
offence or a terrorism offence may, with the consent of the Attorney
General, lay an information before a provincial court
judge. |
|
(2) A
provincial court judge who receives an information under subsection
(1) may cause the parties to appear before a provincial court
judge. |
|
(3)
The provincial court judge before whom the parties appear may, if
satisfied by the evidence adduced that the informant has reasonable
grounds for the fear, order that the defendant enter into a
recognizance to keep the peace and be of good behaviour for any
period that does not exceed twelve months and to comply with any
other reasonable conditions prescribed in the recognizance,
including the conditions set out in subsection (5), that the
provincial court judge considers desirable for preventing the
commission of an offence referred to in subsection (1). |
Refusal
to enter into recognizance |
(4)
The provincial court judge may commit the defendant to prison for a
term not exceeding twelve months if the defendant fails or refuses
to enter into the recognizance. |
|
(5)
Before making an order under subsection (3), the provincial court
judge shall consider whether it is desirable, in the interests of
the safety of the defendant or of any other person, to include as a
condition of the recognizance that the defendant be prohibited from
possessing any firearm, cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition, prohibited ammunition or
explosive substance, or all of those things, for any period
specified in the recognizance, and where the provincial court judge
decides that it is so desirable, the provincial court judge shall
add such a condition to the recognizance. |
|
(5.1)
Where the provincial court judge adds a condition described in
subsection (5) to a recognizance, the provincial court judge shall
specify in the recognizance the manner and method by which
(a) the things referred to in that
subsection that are in the possession of the defendant shall be
surrendered, disposed of, detained, stored or dealt with; and
(b) the authorizations, licences
and registration certificates held by the defendant shall be
surrendered. |
|
(5.2)
Where the provincial court judge does not add a condition described
in subsection (5) to a recognizance, the provincial court judge
shall include in the record a statement of the reasons for not
adding the condition. |
|
(6) A
provincial court judge may, on application of the informant, the
Attorney General or the defendant, vary the conditions fixed in the
recognizance. |
Other
provisions to apply |
(7)
Subsections 810(4) and (5) apply, with any modifications that the
circumstances require, to recognizances made under this section.
1997,
c. 23, ss. 19, 26; 2001, c. 32, s. 46, c. 41, ss. 22, 133; 2002, c.
13, s. 80. |
|
810.1 (1) Any
person who fears on reasonable grounds that another person will
commit an offence under section 151, 152, 155 or 159, subsection
160(2) or (3), section 163.1, 170, 171 or 172.1, subsection 173(2)
or section 271, 272 or 273, in respect of one or more persons who
are under the age of fourteen years, may lay an information before a
provincial court judge, whether or not the person or persons in
respect of whom it is feared that the offence will be committed are
named. |
|
(2) A
provincial court judge who receives an information under subsection
(1) may cause the parties to appear before a provincial court
judge. |
|
(3)
The provincial court judge before whom the parties appear may, if
satisfied by the evidence adduced that the informant has reasonable
grounds for the fear, order the defendant to enter into a
recognizance and, for a period fixed by the provincial court judge
of not more than twelve months, comply with the conditions fixed by
the provincial court judge, including a condition prohibiting the
defendant from
(a) engaging in any activity that
involves contact with persons under the age of fourteen years,
including using a computer system within the meaning of subsection
342.1(2) for the purpose of communicating with a person under the
age of fourteen years; and
(b) attending a public park or
public swimming area where persons under the age of fourteen years
are present or can reasonably be expected to be present, or a
daycare centre, schoolground, playground or community
centre. |
Refusal
to enter into recognizance |
(3.1)
The provincial court judge may commit the defendant to prison for a
term not exceeding twelve months if the defendant fails or refuses
to enter into the recognizance. |
Judge
may vary recognizance |
(4) A
provincial court judge may, on application of the informant or the
defendant, vary the conditions fixed in the recognizance. |
Other
provisions to apply |
(5)
Subsections 810(4) and (5) apply, with such modifications as the
circumstances require, to recognizances made under this section.
1993,
c. 45, s. 11; 1997, c. 18, s. 113; 2002, c. 13, s. 81. |
|
810.2 (1) Any
person who fears on reasonable grounds that another person will
commit a serious personal injury offence, as that expression is
defined in section 752, may, with the consent of the Attorney
General, lay an information before a provincial court judge, whether
or not the person or persons in respect of whom it is feared that
the offence will be committed are named. |
|
(2) A
provincial court judge who receives an information under subsection
(1) may cause the parties to appear before a provincial court
judge. |
|
(3)
The provincial court judge before whom the parties appear may, if
satisfied by the evidence adduced that the informant has reasonable
grounds for the fear, order that the defendant enter into a
recognizance to keep the peace and be of good behaviour for any
period that does not exceed twelve months and to comply with any
other reasonable conditions prescribed in the recognizance,
including the conditions set out in subsections (5) and (6), that
the provincial court judge considers desirable for securing the good
conduct of the defendant. |
Refusal
to enter into recognizance |
(4)
The provincial court judge may commit the defendant to prison for a
term not exceeding twelve months if the defendant fails or refuses
to enter into the recognizance. |
|
(5)
Before making an order under subsection (3), the provincial court
judge shall consider whether it is desirable, in the interests of
the safety of the defendant or of any other person, to include as a
condition of the recognizance that the defendant be prohibited from
possessing any firearm, cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition, prohibited ammunition or
explosive substance, or all such things, for any period specified in
the recognizance, and where the provincial court judge decides that
it is so desirable, the provincial court judge shall add such a
condition to the recognizance. |
|
(5.1)
Where the provincial court judge adds a condition described in
subsection (5) to a recognizance order, the provincial court judge
shall specify in the order the manner and method by which
(a) the things referred to in that
subsection that are in the possession of the defendant shall be
surrendered, disposed of, detained, stored or dealt with; and
(b) the authorizations, licences
and registration certificates held by the defendant shall be
surrendered. |
|
(5.2)
Where the provincial court judge does not add a condition described
in subsection (5) to a recognizance order, the provincial court
judge shall include in the record a statement of the reasons for not
adding the condition. |
Conditions
— reporting and monitoring |
(6)
Before making an order under subsection (3), the provincial court
judge shall consider whether it is desirable to include as a
condition of the recognizance that the defendant report to the
correctional authority of a province or to an appropriate police
authority, and where the provincial court judge decides that it is
desirable for the defendant to so report, the provincial court judge
may add the appropriate condition to the recognizance. |
|
(7) A
provincial court judge may, on application of the informant, of the
Attorney General or of the defendant, vary the conditions fixed in
the recognizance. |
Other
provisions to apply |
(8)
Subsections 810(4) and (5) apply, with such modifications as the
circumstances require, to recognizances made under this section.
1997,
c. 17, s. 9; 2002, c. 13, s. 82. |
|
811. A person
bound by a recognizance under section 83.3, 810, 810.01, 810.1 or
810.2 who commits a breach of the recognizance is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction.
R.S.,
1985, c. C-46, s. 811; 1993, c. 45, s. 11; 1994, c. 44, s. 82; 1997,
c. 17, s. 10, c. 23, ss. 20, 27; 2001, c. 41, s. 23. |
|
|
|
812. (1) For
the purposes of sections 813 to 828, “appeal court” means
(a) in the Province of Ontario, the
Superior Court of Justice sitting in the region, district or county
or group of counties where the adjudication was made;
(b) in the Province of Quebec, the
Superior Court;
(c) in the Provinces of Nova Scotia
and British Columbia, the Supreme Court;
(d) in the Provinces of New
Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s
Bench;
(e) [Repealed, 1992, c. 51, s.
43]
(f) in the Province of Prince
Edward Island, the Trial Division of the Supreme Court;
(g) in the Province of
Newfoundland, the Trial Division of the Supreme Court;
(h) in Yukon and the Northwest
Territories, a judge of the Supreme Court; and
(i) in Nunavut, a judge of the
Nunavut Court of Justice. |
When
appeal court is Court of Appeal of Nunavut |
(2) A
judge of the Court of Appeal of Nunavut is the appeal court for the
purposes of sections 813 to 828 if the appeal is from a conviction,
order, sentence or verdict of a summary conviction court consisting
of a judge of the Nunavut Court of Justice.
R.S.,
1985, c. C-46, s. 812; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27
(2nd Supp.), s. 10; 1990, c. 16, s. 7, c. 17, s. 15; 1992, c. 51, s.
43; 1998, c. 30, s. 14; 1999, c. 3, s. 55; 2002, c. 7, s.
149. |
|
813. Except
where otherwise provided by law,
(a) the defendant in proceedings
under this Part may appeal to the appeal court
(i)
from a conviction or order made against him,
(ii)
against a sentence passed on him, or
(iii)
against a verdict of unfit to stand trial or not criminally
responsible on account of mental disorder; and
(b) the informant, the Attorney
General or his agent in proceedings under this Part may appeal to
the appeal court
(i)
from an order that stays proceedings on an information or dismisses
an information,
(ii)
against a sentence passed on a defendant, or
(iii)
against a verdict of not criminally responsible on account of mental
disorder or unfit to stand trial,
and
the Attorney General of Canada or his agent has the same rights of
appeal in proceedings instituted at the instance of the Government
of Canada and conducted by or on behalf of that Government as the
Attorney General of a province or his agent has under this
paragraph.
R.S.,
1985, c. C-46, s. 813; R.S., 1985, c. 27 (1st Supp.), s. 180; 1991,
c. 43, s. 9. |
|
814. (1) In
the Provinces of Manitoba and Alberta, an appeal under section 813
shall be heard at the sittings of the appeal court that is held
nearest to the place where the cause of the proceedings arose, but
the judge of the appeal court may, on the application of one of the
parties, appoint another place for the hearing of the
appeal. |
|
(2) In
the Province of Saskatchewan, an appeal under section 813 shall be
heard at the sittings of the appeal court at the judicial centre
nearest to the place where the adjudication was made, but the judge
of the appeal court may, on the application of one of the parties,
appoint another place for the hearing of the appeal. |
|
(3) In
the Province of British Columbia, an appeal under section 813 shall
be heard at the sittings of the appeal court that is held nearest to
the place where the adjudication was made, but the judge of the
appeal court may, on the application of one of the parties, appoint
another place for the hearing of the appeal. |
|
(4) In
Yukon, the Northwest Territories and Nunavut, an appeal under
section 813 shall be heard at the place where the cause of the
proceedings arose or at the place nearest to it where a court is
appointed to be held.
R.S.,
1985, c. C-46, s. 814; 1993, c. 28, s. 78; 2002, c. 7, s.
150. |
|
815. (1) An
appellant who proposes to appeal to the appeal court shall give
notice of appeal in such manner and within such period as may be
directed by rules of court. |
|
(2)
The appeal court or a judge thereof may extend the time within which
notice of appeal may be given.
R.S.,
c. C-34, s. 750; 1972, c. 13, s. 66; 1974-75-76, c. 93, s.
89. |
|
Interim
Release of Appellant |
|
816. (1) A
person who was the defendant in proceedings before a summary
conviction court and by whom an appeal is taken under section 813
shall, if he is in custody, remain in custody unless the appeal
court at which the appeal is to be heard orders that the appellant
be released
(a) on his giving an undertaking to
the appeal court, without conditions or with such conditions as the
appeal court directs, to surrender himself into custody in
accordance with the order,
(b) on his entering into a
recognizance without sureties in such amount, with such conditions,
if any, as the appeal court directs, but without deposit of money or
other valuable security, or
(c) on his entering into a
recognizance with or without sureties in such amount, with such
conditions, if any, as the appeal court directs, and on his
depositing with that appeal court such sum of money or other
valuable security as the appeal court directs,
and the
person having the custody of the appellant shall, where the
appellant complies with the order, forthwith release the
appellant. |
Application
of certain provisions of section 525 |
(2)
The provisions of subsections 525(5), (6) and (7) apply with such
modifications as the circumstances require in respect of a person
who has been released from custody under subsection (1).
R.S.,
1985, c. C-46, s. 816; R.S., 1985, c. 27 (1st Supp.), s.
181(E). |
|
817. (1) The
prosecutor in proceedings before a summary conviction court by whom
an appeal is taken under section 813 shall, forthwith after filing
the notice of appeal and proof of service thereof in accordance with
section 815, appear before a justice, and the justice shall, after
giving the prosecutor and the respondent a reasonable opportunity to
be heard, order that the prosecutor
(a) give an undertaking as
prescribed in this section; or
(b) enter into a recognizance in
such amount, with or without sureties and with or without deposit of
money or other valuable security, as the justice directs. |
|
(2)
The condition of an undertaking or recognizance given or entered
into under this section is that the prosecutor will appear
personally or by counsel at the sittings of the appeal court at
which the appeal is to be heard. |
Appeals
by Attorney General |
(3)
This section does not apply in respect of an appeal taken by the
Attorney General or by counsel acting on behalf of the Attorney
General. |
Form
of undertaking or recognizance |
(4) An
undertaking under this section may be in Form 14 and a recognizance
under this section may be in Form 32.
R.S.,
c. 2(2nd Supp.), s. 16. |
|
818. (1)
Where a justice makes an order under section 817, either the
appellant or the respondent may, before or at any time during the
hearing of the appeal, apply to the appeal court for a review of the
order made by the justice. |
Disposition
of application by appeal court |
(2) On
the hearing of an application under this section, the appeal court,
after giving the appellant and the respondent a reasonable
opportunity to be heard, shall
(a) dismiss the application; or
(b) if the person applying for the
review shows cause, allow the application, vacate the order made by
the justice and make the order that in the opinion of the appeal
court should have been made. |
|
(3) An
order made under this section shall have the same force and effect
as if it had been made by the justice.
R.S.,
c. 2(2nd Supp.), s. 16; 1974-75-76, c. 93, s. 91.1. |
|
819. (1)
Where, in the case of an appellant who has been convicted by a
summary conviction court and who is in custody pending the hearing
of his appeal, the hearing of his appeal has not commenced within
thirty days from the day on which notice of his appeal was given in
accordance with the rules referred to in section 815, the person
having the custody of the appellant shall, forthwith on the
expiration of those thirty days, apply to the appeal court to fix a
date for the hearing of the appeal. |
|
(2) On
receiving an application under subsection (1), the appeal court
shall, after giving the prosecutor a reasonable opportunity to be
heard, fix a date for the hearing of the appeal and give such
directions as it thinks necessary for expediting the hearing of the
appeal.
R.S.,
c. 2(2nd Supp.), s. 16; 1974-75-76, c. 93, s. 92. |
|
820. (1) A
person does not waive his right of appeal under section 813 by
reason only that he pays the fine imposed on conviction, without in
any way indicating an intention to appeal or reserving the right to
appeal. |
|
(2) A
conviction, order or sentence shall be deemed not to have been
appealed against until the contrary is shown.
R.S.,
c. C-34, s. 753. |
|
|
|
821. (1)
Where a notice of appeal has been given in accordance with the rules
referred to in section 815, the clerk of the appeal court shall
notify the summary conviction court that made the conviction or
order appealed from or imposed the sentence appealed against of the
appeal and on receipt of the notification that summary conviction
court shall transmit the conviction, order or order of dismissal and
all other material in its possession in connection with the
proceedings to the appeal court before the time when the appeal is
to be heard, or within such further time as the appeal court may
direct, and the material shall be kept by the clerk of the appeal
court with the records of the appeal court. |
|
(2) An
appeal shall not be dismissed by the appeal court by reason only
that a person other than the appellant failed to comply with the
provisions of this Part relating to appeals. |
Appellant
to furnish transcript of evidence |
(3)
Where the evidence on a trial before a summary conviction court has
been taken by a stenographer duly sworn or by a sound recording
apparatus, the appellant shall, unless the appeal court otherwise
orders or the rules referred to in section 815 otherwise provide,
cause a transcript thereof, certified by the stenographer or in
accordance with subsection 540(6), as the case may be, to be
furnished to the appeal court and the respondent for use on the
appeal.
R.S.,
c. C-34, s. 754; 1972, c. 13, s. 67; 1974-75-76, c. 93, s.
93. |
|
822. (1)
Where an appeal is taken under section 813 in respect of any
conviction, acquittal, sentence, verdict or order, sections 683 to
689, with the exception of subsections 683(3) and 686(5), apply,
with such modifications as the circumstances require. |
|
(2)
Where an appeal court orders a new trial, it shall be held before a
summary conviction court other than the court that tried the
defendant in the first instance, unless the appeal court directs
that the new trial be held before the summary conviction court that
tried the accused in the first instance. |
Order
of detention or release |
(3)
Where an appeal court orders a new trial, it may make such order for
the release or detention of the appellant pending the trial as may
be made by a justice pursuant to section 515 and the order may be
enforced in the same manner as if it had been made by a justice
under that section, and the provisions of Part XVI apply with such
modifications as the circumstances require to the order. |
|
(4)
Despite subsections (1) to (3), if an appeal is taken under section
813 and because of the condition of the record of the trial in the
summary conviction court or for any other reason, the appeal court,
on application of the defendant, the informant, the Attorney General
or the Attorney General’s agent, is of the opinion that the
interests of justice would be better served by hearing and
determining the appeal by holding a trial de novo, the appeal court may
order that the appeal shall be heard by way of trial de novo in accordance with any
rules that may be made under section 482 or 482.1, and for that
purpose the provisions of sections 793 to 809 apply, with any
modifications that the circumstances require. |
|
(5)
The appeal court may, for the purpose of hearing and determining an
appeal under subsection (4), permit the evidence of any witness
taken before the summary conviction court to be read if that
evidence has been authenticated in accordance with section 540 and
if
(a) the appellant and respondent
consent,
(b) the appeal court is satisfied
that the attendance of the witness cannot reasonably be obtained,
or
(c) by reason of the formal nature
of the evidence or otherwise the court is satisfied that the
opposite party will not be prejudiced,
and any
evidence that is read under the authority of this subsection has the
same force and effect as if the witness had given the evidence
before the appeal court. |
|
(6)
Where an appeal is taken under subsection (4) against sentence, the
appeal court shall, unless the sentence is one fixed by law,
consider the fitness of the sentence appealed against and may, on
such evidence, if any, as it thinks fit to require or receive, by
order,
(a) dismiss the appeal, or
(b) vary the sentence within the
limits prescribed by law for the offence of which the defendant was
convicted,
and in
making any order under paragraph (b), the appeal court may take into
account any time spent in custody by the defendant as a result of
the offence. |
General
provisions re appeals |
(7)
The following provisions apply in respect of appeals under
subsection (4):
(a) where an appeal is based on an
objection to an information or any process, judgment shall not be
given in favour of the appellant
(i)
for any alleged defect therein in substance or in form, or
(ii)
for any variance between the information or process and the evidence
adduced at the trial,
unless
it is shown
(iii)
that the objection was taken at the trial, and
(iv)
that an adjournment of the trial was refused notwithstanding that
the variance referred to in subparagraph (ii) had deceived or misled
the appellant; and
(b) where an appeal is based on a
defect in a conviction or an order, judgment shall not be given in
favour of the appellant, but the court shall make an order curing
the defect.
R.S.,
1985, c. C-46, s. 822; 1991, c. 43, s. 9; 2002, c. 13, s.
83. |
|
823.
[Repealed, 1991, c. 43, s. 9] |
|
824. The
appeal court may adjourn the hearing of an appeal from time to time
as may be necessary.
R.S.,
c. C-34, s. 756. |
|
825. The
appeal court may, on proof that notice of an appeal has been given
and that
(a) the appellant has failed to
comply with any order made under section 816 or 817 or with the
conditions of any undertaking or recognizance given or entered into
as prescribed in either of those sections, or
(b) the appeal has not been
proceeded with or has been abandoned,
order
that the appeal be dismissed.
R.S.,
c. C-34, s. 757; R.S., c. 2(2nd Supp.), s. 18. |
|
826. Where an
appeal is heard and determined or is abandoned or is dismissed for
want of prosecution, the appeal court may make any order with
respect to costs that it considers just and reasonable.
R.S.,
c. C-34, s. 758. |
|
827. (1)
Where the appeal court orders the appellant or respondent to pay
costs, the order shall direct that the costs be paid to the clerk of
the court, to be paid by him to the person entitled to them, and
shall fix the period within which the costs shall be paid. |
Certificate
of non-payment of costs |
(2)
Where costs are not paid in full within the period fixed for payment
and the person who has been ordered to pay them has not been bound
by a recognizance to pay them, the clerk of the court shall, on
application by the person entitled to the costs, or by any person on
his behalf, and on payment of any fee to which the clerk of the
court is entitled, issue a certificate in Form 42 certifying that
the costs or a part thereof, as the case may be, have not been
paid. |
|
(3) A
justice having jurisdiction in the territorial division in which a
certificate has been issued under subsection (2) may, on production
of the certificate, by warrant in Form 26, commit the defaulter to
imprisonment for a term not exceeding one month, unless the amount
of the costs and, where the justice thinks fit so to order, the
costs of the committal and of conveying the defaulter to prison are
sooner paid.
R.S.,
c. C-34, s. 759. |
|
828. (1) A
conviction or order made by the appeal court may be enforced
(a) in the same manner as if it had
been made by the summary conviction court; or
(b) by process of the appeal
court. |
|
(2)
Where an appeal taken against a conviction or order adjudging
payment of a sum of money is dismissed, the summary conviction court
that made the conviction or order or a justice for the same
territorial division may issue a warrant of committal as if no
appeal had been taken. |
|
(3)
Where a conviction or order that has been made by an appeal court is
to be enforced by a justice, the clerk of the appeal court shall
send to the justice the conviction or order and all writings
relating thereto, except the notice of intention to appeal and any
recognizance.
R.S.,
c. C-34, s. 760. |
|
Summary
Appeal on Transcript or Agreed Statement of Facts |
|
829. (1)
Subject to subsection (2), for the purposes of sections 830 to 838,
“appeal court” means, in any province, the superior court of
criminal jurisdiction for the province. |
|
(2) If
the appeal is from a conviction, judgment, verdict or other final
order or determination of a summary conviction court consisting of a
judge of the Nunavut Court of Justice, “appeal court” means a judge
of the Court of Appeal of Nunavut.
R.S.,
1985, c. C-46, s. 829; R.S., 1985, c. 27 (1st Supp.), s. 182; 1999,
c. 3, s. 56. |
|
830. (1) A
party to proceedings to which this Part applies or the Attorney
General may appeal against a conviction, judgment, verdict of
acquittal or verdict of not criminally responsible on account of
mental disorder or of unfit to stand trial or other final order or
determination of a summary conviction court on the ground that
(a) it is erroneous in point of
law;
(b) it is in excess of
jurisdiction; or
(c) it constitutes a refusal or
failure to exercise jurisdiction. |
|
(2) An
appeal under this section shall be based on a transcript of the
proceedings appealed from unless the appellant files with the appeal
court, within fifteen days of the filing of the notice of appeal, a
statement of facts agreed to in writing by the respondent. |
|
(3) An
appeal under this section shall be made within the period and in the
manner directed by any applicable rules of court and where there are
no such rules otherwise providing, a notice of appeal in writing
shall be served on the respondent and a copy thereof, together with
proof of service, shall be filed with the appeal court within thirty
days after the date of the conviction, judgment or verdict of
acquittal or other final order or determination that is the subject
of the appeal. |
Rights
of Attorney General of Canada |
(4)
The Attorney General of Canada has the same rights of appeal in
proceedings instituted at the instance of the Government of Canada
and conducted by or on behalf of that Government as the Attorney
General of a province has under this section.
R.S.,
1985, c. C-46, s. 830; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991,
c. 43, s. 9. |
|
831. The
provisions of sections 816, 817, 819 and 825 apply, with such
modifications as the circumstances require, in respect of an appeal
under section 830, except that on receiving an application by the
person having the custody of an appellant described in section 819
to appoint a date for the hearing of the appeal, the appeal court
shall, after giving the prosecutor a reasonable opportunity to be
heard, give such directions as it thinks necessary for expediting
the hearing of the appeal.
R.S.,
1985, c. C-46, s. 831; R.S., 1985, c. 27 (1st Supp.), s.
182. |
|
832. (1) When
a notice of appeal is filed pursuant to section 830, the appeal
court may order that the appellant appear before a justice and give
an undertaking or enter into a recognizance as provided in section
816 where the defendant is the appellant, or as provided in section
817, in any other case. |
|
(2)
Subsection (1) does not apply where the appellant is the Attorney
General or counsel acting on behalf of the Attorney General.
R.S.,
1985, c. C-46, s. 832; R.S., 1985, c. 27 (1st Supp.), s.
182. |
|
833. No writ
of certiorari or other writ
is required to remove any conviction, judgment, verdict or other
final order or determination of a summary conviction court for the
purpose of obtaining the judgment, determination or opinion of the
appeal court.
R.S.,
1985, c. C-46, s. 833; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991,
c. 43, s. 9. |
|
834. (1) When
a notice of appeal is filed pursuant to section 830, the appeal
court shall hear and determine the grounds of appeal and may
(a) affirm, reverse or modify the
conviction, judgment, verdict or other final order or determination,
or
(b) remit the matter to the summary
conviction court with the opinion of the appeal court,
and may
make any other order in relation to the matter or with respect to
costs that it considers proper. |
|
(2)
Where the authority and jurisdiction of the appeal court may be
exercised by a judge of that court, the authority and jurisdiction
may, subject to any applicable rules of court, be exercised by a
judge of the court sitting in chambers as well in vacation as in
term time.
R.S.,
1985, c. C-46, s. 834; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991,
c. 43, s. 9. |
|
835. (1)
Where the appeal court renders its decision on an appeal, the
summary conviction court from which the appeal was taken or a
justice exercising the same jurisdiction has the same authority to
enforce a conviction, order or determination that has been affirmed,
modified or made by the appeal court as the summary conviction court
would have had if no appeal had been taken. |
|
(2) An
order of the appeal court may be enforced by its own process.
R.S.,
1985, c. C-46, s. 835; R.S., 1985, c. 27 (1st Supp.), s.
182. |
|
836. Every
person who appeals under section 830 from any conviction, judgment,
verdict or other final order or determination in respect of which
that person is entitled to an appeal under section 813 shall be
taken to have abandoned all the person’s rights of appeal under
section 813.
R.S.,
1985, c. C-46, s. 836; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991,
c. 43, s. 9. |
|
837. Where it
is provided by law that no appeal lies from a conviction or order,
no appeal under section 830 lies from such a conviction or
order.
R.S.,
1985, c. C-46, s. 837; R.S., 1985, c. 27 (1st Supp.), s.
182. |
|
838. The
appeal court or a judge thereof may at any time extend any time
period referred to in section 830, 831 or 832.
R.S.,
1985, c. C-46, s. 838; R.S., 1985, c. 27 (1st Supp.), s.
182. |
|
Appeals
to Court of Appeal |
|
839. (1)
Subject to subsection (1.1), an appeal to the court of appeal as
defined in section 673 may, with leave of that court or a judge
thereof, be taken on any ground that involves a question of law
alone, against
(a) a decision of a court in
respect of an appeal under section 822; or
(b) a decision of an appeal court
under section 834, except where that court is the court of
appeal. |
|
(1.1)
An appeal to the Court of Appeal of Nunavut may, with leave of that
court or a judge of that court, be taken on any ground that involves
a question of law alone, against a decision of a judge of the Court
of Appeal of Nunavut acting as an appeal court under subsection
812(2) or 829(2). |
|
(2)
Sections 673 to 689 apply with such modifications as the
circumstances require to an appeal under this section. |
|
(3)
Notwithstanding subsection (2), the court of appeal may make any
order with respect to costs that it considers proper in relation to
an appeal under this section. |
|
(4)
The decision of the court of appeal may be enforced in the same
manner as if it had been made by the summary conviction court before
which the proceedings were originally heard and
determined. |
Right
of Attorney General of Canada to appeal |
(5)
The Attorney General of Canada has the same rights of appeal in
proceedings instituted at the instance of the Government of Canada
and conducted by or on behalf of that Government as the Attorney
General of a province has under this Part.
R.S.,
1985, c. C-46, s. 839; R.S., 1985, c. 27 (1st Supp.), s. 183; 1999,
c. 3, s. 57. |
|
|
|
840. (1)
Subject to subsection (2), the fees and allowances mentioned in the
schedule to this Part are the fees and allowances that may be taken
or allowed in proceedings before summary conviction courts and
justices under this Part. |
Order
of lieutenant governor in council |
(2)
The lieutenant governor in council of a province may order that all
or any of the fees and allowances mentioned in the schedule to this
Part shall not be taken or allowed in proceedings before summary
conviction courts and justices under this Part in that province and,
when the lieutenant governor in council so orders, he or she may fix
any other fees and allowances for any items similar to those
mentioned in the schedule, or any other items, to be taken or
allowed instead.
R.S.,
1985, c. C-46, s. 840; 1994, c. 44, s. 83; 1997, c. 18, s.
114. |
|
PART
XXVIII
MISCELLANEOUS |
|
|
|
841. The
definitions in this section apply in this section and in sections
842 to 847. |
|
“data”
means representations of information or concepts, in any
form. |
“electronic document”
« document
électronique » |
“electronic document”
means data that is recorded or stored on any medium in or by a
computer system or other similar device and that can be read or
perceived by a person or a computer system or other similar device.
It includes a display, print-out or other output of the data and any
document, record, order, exhibit, notice or form that contains the
data.
R.S.,
1985, c. C-46, s. 841; R.S., 1985, c. 31 (4th Supp.), s. 97; 2002,
c. 13, s. 84. |
|
842. Despite
anything in this Act, a court may create, collect, receive, store,
transfer, distribute, publish or otherwise deal with electronic
documents if it does so in accordance with an Act or with the rules
of court.
2002,
c. 13, s. 84. |
|
843. (1)
Despite anything in this Act, a court may accept the transfer of
data by electronic means if the transfer is made in accordance with
the laws of the place where the transfer originates or the laws of
the place where the data is received. |
|
(2) If
a document is required to be filed in a court and the filing is done
by transfer of data by electronic means, the filing is complete when
the transfer is accepted by the court.
2002,
c. 13, s. 84. |
|
844. A
requirement under this Act that a document be made in writing is
satisfied by the making of the document in electronic form in
accordance with an Act or the rules of court.
2002,
c. 13, s. 84. |
|
845. If this
Act requires a document to be signed, the court may accept a
signature in an electronic document if the signature is made in
accordance with an Act or the rules of court.
2002,
c. 13, s. 84. |
|
846. If under
this Act an information, an affidavit or a solemn declaration or a
statement under oath or solemn affirmation is to be made by a
person, the court may accept it in the form of an electronic
document if
(a) the person states in the
electronic document that all matters contained in the information,
affidavit, solemn declaration or statement are true to his or her
knowledge and belief;
(b) the person before whom it is
made or sworn is authorized to take or receive informations,
affidavits, solemn declarations or statements and he or she states
in the electronic document that the information, affidavit, solemn
declaration or statement was made under oath, solemn declaration or
solemn affirmation, as the case may be; and
(c) the electronic document was
made in accordance with the laws of the place where it was made.
2002,
c. 13, s. 84. |
|
847. Any
person who is entitled to obtain a copy of a document from a court
is entitled, in the case of a document in electronic form, to obtain
a printed copy of the electronic document from the court on payment
of a reasonable fee determined in accordance with a tariff of fees
fixed or approved by the Attorney General of the relevant
province.
2002,
c. 13, s. 84. |
|
Remote
Appearance by Incarcerated Accused |
|
848. Despite
anything in this Act, if an accused who is in prison does not have
access to legal advice during the proceedings, the court shall,
before permitting the accused to appear by a means of communication
that allows the court and the accused to engage in simultaneous
visual and oral communication, be satisfied that the accused will be
able to understand the proceedings and that any decisions made by
the accused during the proceedings will be voluntary.
2002,
c. 13, s. 84. |
|
|
|
849. (1) The
forms set out in this Part, varied to suit the case, or forms to the
like effect are deemed to be good, valid and sufficient in the
circumstances for which they are provided. |
|
(2) No
justice is required to attach or affix a seal to any writing or
process that he or she is authorized to issue and in respect of
which a form is provided by this Part. |
|
(3)
Any pre-printed portions of a form set out in this Part, varied to
suit the case, or of a form to the like effect shall be printed in
both official languages.
[Note:
The forms referred to in this section can be found at the end of the
Act under the heading [Forms].]
2002,
c. 13, s. 84. |
|
|
|
1.
Section 49 — acts intended to alarm Her Majesty or break public
peace
2.
Section 50 — assisting alien enemy to leave Canada, or omitting to
prevent treason
3.
Section 51 — intimidating Parliament or legislature
4.
Section 52 — sabotage
5.
Section 53 — inciting to mutiny
6.
Section 75 — piratical acts
7.
Section 76 — hijacking
8.
Section 77 — endangering safety of aircraft
9.
Section 78 — offensive weapons and explosive substances
10.
Section 80 — breach of duty (explosive substances)
11.
Section 81 — using explosives
12.
Section 82 — possession of explosives without lawful excuse
13.
Subsection 85(1) — using firearm in commission of offence
13.1.
Subsection 85(2) — using imitation firearm in commission of
offence
14.
Subsection 86(1) — careless use of firearm, etc.
15.
Subsection 87(1) — pointing a firearm
16.
Subsection 88(1) — possession of weapon for dangerous purpose
17.
Section 151 — sexual interference
18.
Section 152 — invitation to sexual touching
19.
Section 153 — sexual exploitation
20.
Section 155 — incest
21.
Section 159 — anal intercourse
22.
Subsection 160(2) — compelling commission of bestiality
23.
Subsection 160(3) — bestiality in presence of child or inciting
child to commit bestiality
24.
Section 220 — causing death by criminal negligence
25.
Section 221 — causing bodily harm by criminal negligence
26.
Section 223 — causing injury to child before or during birth
27.
Section 236 — manslaughter
28.
Section 238 — killing unborn child in act of birth
29.
Section 239 — attempt to commit murder
30.
Section 241 — counselling or aiding suicide
31.
Section 244 — causing bodily harm with intent
32.
Paragraph 245( a) —
administering noxious thing with intent to endanger life or cause
bodily harm
33.
Section 246 — overcoming resistance to commission of offence
34.
Section 247 — setting traps likely to cause death or bodily harm
35.
Section 248 — interfering with transportation facilities
36.
Subsection 249(3) — dangerous operation of motor vehicles, vessels
and aircraft causing bodily harm
37.
Subsection 249(4) — dangerous operation of motor vehicles, vessels
and aircraft causing death
38.
Subsection 255(2) — impaired driving causing bodily harm
39.
Subsection 255(3) — impaired driving causing death
40.
Section 262 — impeding attempt to save life
41.
Paragraph 265(1)( a) —
assault
42.
Section 267 — assault with a weapon or causing bodily harm
43.
Section 268 — aggravated assault
44.
Section 269 — unlawfully causing bodily harm
45.
Subsection 269.1(1) — torture
46.
Paragraph 271(1)( a) —
sexual assault
47.
Section 272 — sexual assault with a weapon, threats to a third party
or causing bodily harm
48.
Section 273 — aggravated sexual assault
49.
Subsection 279(1) — kidnapping
50.
Subsection 279(2) — forcible confinement
51.
Section 279.1 — hostage taking
52.
Section 280 — abduction of person under sixteen
53.
Section 281 — abduction of person under fourteen
54.
Paragraph 282( a) —
abduction in contravention of custody order
55.
Paragraph 283(1)( a) —
abduction where no custody order
56.
Section 344 — robbery
57.
Section 345 — stopping mail with intent
58.
Section 346 — extortion
59.
Section 348 — breaking and entering with intent, committing offence
or breaking out
60.
Subsection 349(1) — being unlawfully in dwelling?house
61.
Subsection 430(2) — mischief that causes actual danger to life
62.
Section 431 — attack on premises, etc., of internationally protected
person
63.
Section 433 — arson (disregard for human life)
64.
Section 434 — arson (damage to property)
65.
Section 434.1 — arson (own property)
66.
Section 435 — arson for fraudulent purpose |
|
ATOMIC
ENERGY CONTROL ACT
67.
Section 20 — offence and punishment |
|
68.
Subparagraph 8(1)( j)(ii) —
contravention of public welfare emergency regulation
69.
Subparagraph 19(1)( e)(ii) —
contravention of public order emergency regulation
70.
Subparagraph 30(1)( l)(ii) —
contravention of international emergency regulation
71.
Paragraph 40(3)( b) —
contravention of war emergency regulation |
|
CANADIAN
ENVIRONMENTAL PROTECTION ACT
72.
Section 274 — damage to environment and death or harm to
persons |
|
CONTROLLED
DRUGS AND SUBSTANCES ACT
73.
Subsections 4(3) and (4) — possession
74.
Subsections 5(3) and (4) — trafficking
75.
Subsection 6(3) — importing and exporting
76.
Subsection 7(2) — production
77.
[Repealed, 1996, c. 19, s. 73] |
|
78.
Section 78 — offence of being spy
79.
Section 79 — mutiny with violence
80.
Section 80 — mutiny without violence
81.
Section 81 — offences related to mutiny
82.
Section 82 — advocating governmental change by force
83.
Section 83 — disobedience of lawful command
84.
Section 84 — striking or offering violence to a superior officer
85.
Section 88 — desertion
86.
Paragraph 98( c) — maiming
or injuring self or another person
87.
Section 105 — offences in relation to convoys
88.
Section 106 — disobedience of captain's orders — ships
89.
Section 110 — disobedience of captain's orders — aircraft
90.
Section 128 — conspiracy |
|
SECURITY
OF INFORMATION ACT
91.
Subsection 4(1) — wrongful communication, etc., of information
92.
Subsection 4(2) — communication of sketch, plan, model, etc.
93.
Subsection 4(3) — receiving code word, sketch, etc.
94.
Subsection 4(4) — retaining or allowing possession of document,
etc.
95.
Subsection 5(1) unauthorized use of uniforms, falsification of
reports, forgery, personation and false documents
96.
Subsection 5(2) — unlawful dealing with dies, seals, etc.
97.
Section 6 — approaching, entering, etc., a prohibited place
98.
Section 7 — interference
99.
Subsection 13(1) — purported communication
100.
Subsection 14(1) — unauthorized communication of special operational
information
101.
Subsection 16(1) — communicating safeguarded information
102.
Subsection 16(2) — communicating safeguarded information
103.
Subsection 17(1) — communicating special operational information
104.
Subsection 18(1) — breach of trust in respect of safeguarded
information
105.
Subsection 19(1) — use of trade secret for the benefit of foreign
economic entity
106.
Subsection 20(1) — threats or violence
107.
Subsection 21(1) — harbouring or concealing
108.
Subsection 22(1) — preparatory acts
109.
Section 23 — conspiracy, attempt, etc.
1991,
c. 43, s. 4; 1995, c. 39, s. 154; 1996, c. 19, s. 73; 1999, c. 33,
s. 346; 2001, c. 41, s. 32. |
|
Column I |
Column II |
Column
III |
Ontario |
A
judge of the Court of Appeal in respect of a recognizance for
the appearance of a person before the Court
The
Superior Court of Justice in respect of all other
recognizances |
The
Registrar of the Court of Appeal
A
Registrar of the Superior Court of Justice |
Quebec |
The
Court of Quebec, Criminal and Penal Division |
The
Clerk of the Court |
Nova Scotia |
The
Supreme Court |
The
Prothonotary of the Supreme Court |
New
Brunswick |
The
Court of Queen’s Bench |
The
Registrar of the Court of Queen’s Bench |
British
Columbia |
The
Supreme Court in respect of a recognizance for the appearance
of a person before that Court or the Court of Appeal |
The
District Registrar of the Supreme Court |
|
A
Provincial Court in respect of a recognizance for the
appearance of a person before a judge of that Court or a
justice |
The
Clerk of the Provincial Court |
Prince Edward
Island |
The
Supreme Court, Trial Division |
The
Prothonotary |
Manitoba |
The
Court of Queen’s Bench |
The
registrar or a deputy registrar of the Court of Queen’s
Bench |
Saskatchewan |
The
Court of Queen’s Bench |
The
Local Registrar of the Court of Queen’s Bench |
Alberta |
The
Court of Queen’s Bench |
The
Clerk of the Court of Queen’s Bench |
Newfoundland |
The
Supreme Court |
The
Registrar of the Supreme Court |
Yukon |
The
Supreme Court |
The
Clerk of the Supreme Court |
Northwest
Territories |
The
Supreme Court |
The
Clerk of the Supreme Court |
Nunavut |
The
Nunavut Court of Justice |
The
Clerk of the Nunavut Court of Justice |
R.S.,
1985, c. C-46, Sch. to Part XXV; R.S., 1985, c. 11 (1st Supp.), s.
2, c. 27 (2nd Supp.), s. 10; 1992, c. 1, s. 58, c. 51, ss. 40 to 42;
1998, c. 30, s. 14; 1999, c. 3, s. 54, c. 5, s. 44; 2002, c. 7, s.
148. |
|
1.
Information $ 1.00
2.
Summons or warrant 0.50
3.
Warrant where summons issued in first instance 0.30
4.
Each necessary copy of summons or warrant 0.30
5.
Each subpoena or warrant to or for witnesses 0.30
(A
subpoena may contain any number of names. Only one subpoena may be
issued on behalf of a party in any proceeding, unless the summary
conviction court or the justice considers it necessary or desirable
that more than one subpoena be issued.)
6.
Information for warrant for witness and warrant for witness 1.00
7.
Each necessary copy of subpoena to or warrant for witness 0.20
8.
Each recognizance 1.00
9.
Hearing and determining proceeding 1.00
10.
Where hearing lasts more than two hours 2.00
11.
Where two or more justices hear and determine a proceeding, each is
entitled to the fee authorized by item 9.
12.
Each warrant of committal 0.50
13.
Making up record of conviction or order on request of a party to the
proceedings 1.00
14.
Copy of a writing other than a conviction or order, on request of a
party to the proceedings; for each folio of one hundred words
0.10
15.
Bill of costs, when made out in detail on request of a party to the
proceedings 0.20
(Items
14 and 15 may be charged only where there has been an
adjudication.)
16.
Attending to remand prisoner 1.00
17.
Attending to take recognizance of bail 1.00
FEES
AND ALLOWANCES THAT MAY BE ALLOWED TO PEACE OFFICERS
18.
Arresting a person on a warrant or without a warrant 1.50
19.
Serving summons or subpoena 0.50
20.
Mileage to serve summons or subpoena or to make an arrest, both
ways, for each mile 0.10
(Where
a public conveyance is not used, reasonable costs of transportation
may be allowed.)
21.
Mileage where service cannot be effected, on proof of a diligent
attempt to effect service, each way, for each mile 0.10
22.
Returning with prisoner after arrest to take him before a summary
conviction court or justice at a place different from the place
where the peace officer received the warrant to arrest, if the
journey is of necessity over a route different from that taken by
the peace officer to make the arrest, each way, for each mile
0.10
23.
Taking a prisoner to prison on remand or committal, each way, for
each mile 0.10
(Where
a public conveyance is not used, reasonable costs of transportation
may be allowed. No charge may be made under this item in respect of
a service for which a charge is made under item 22.)
24.
Attending summary conviction court or justice on summary conviction
proceedings, for each day necessarily employed 2.00
(Not
more than $2.00 may be charged under this item in respect of any day
notwithstanding the number of proceedings that the peace officer
attended on that day before that summary conviction court or
justice.)
FEES
AND ALLOWANCES THAT MAY BE ALLOWED TO WITNESSES
25.
Each day attending trial 4.00
26.
Mileage travelled to attend trial, each way, for each mile 0.10
FEES
AND ALLOWANCES THAT MAY BE ALLOWED TO INTERPRETERS
27.
Each half day attending trial 2.50
28.
Actual living expenses when away from ordinary place of residence,
not to exceed per day 10.00
29
Mileage travelled to attend trial, each way, for each mile
0.10 |
|
Canada,
Province
of ................,
(territorial division).
This
is the information of A.B., of ................ in the said (territorial division), (occupation), hereinafter called
the informant, taken before me.
The
informant says that (describe
things to be searched for and offence in respect of which search is
to be made), and that he believes on reasonable grounds that
the said things, or some part of them, are in the (dwelling-house, etc.) of C.D., of
................, in the said (territorial division). (Here add the grounds of belief, whatever
they may be.)
Wherefore
the informant prays that a search warrant may be granted to search
the said (dwelling-house,
etc.) for the said things.
Sworn
before me this
..........
day of ..........,
A.D.
.........., at ...... . |
......................................
(Signature of
Informant) |
......................................
A
Justice of the Peace in and for
............................. |
| |
|
Canada,
Province
of ................,
(territorial division).
This
is the information of C.D., of ................, (occupation), hereinafter called
the informant.
The
informant says that (if the
informant has no personal knowledge state that he believes on
reasonable grounds and state the offence).
Sworn before me this .......... day of .........., A.D.
.........., at .......... |
|
|
.................. |
|
|
A Justice of the Peace in and for .......... |
|
|
Sworn
before me this
..........
day of ..........,
A.D.
.........., at ...... . |
......................................
(Signature of
Informant) |
......................................
A
Justice of the Peace in and for
............................. |
|
Note: The date of birth of the
accused may be mentioned on the information or indictment.
|
|
[Repealed,
R.S., 1985, c. 27 (1st Supp.), s. 184] |
|
Canada,
Province
of ................,
(territorial division).
In
the (set out name of the
court)
Her
Majesty the Queen
against
(name of accused)
(name of accused) stands
charged
1.
That he (state offence).
2.
That he (state offence).
Dated
this ................ day of ................ A.D. ........, at
................ .
...........................................
(Signature of signing officer,
Agent of Attorney General
etc., as the case may be)
Note: The date of birth of the
accused may be mentioned on the information or indictment.
|
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the said (territorial division) or to the
(named public officers):
Whereas
it appears on the oath of A.B., of ................ that there are
reasonable grounds for believing that (describe things to be searched for and
offence in respect of which search is to be made) are in
................ at ................, hereinafter called the
premises;
This
is, therefore, to authorize and require you between the hours of
(as the justice may direct)
to enter into the said premises and to search for the said things
and to bring them before me or some other justice.
Dated
this ................ day of ................ A.D. ........, at
................ .
....................................
A
Justice of the Peace in
and
for ......................... |
|
Canada,
Province
of ................
(territorial division)
This
is the information of (name of
peace officer), (occupation), of ....... in the
said (territorial division),
hereinafter called the informant, taken before me.
The
informant says that he or she has reasonable grounds to believe
(a) that (offence), a designated offence
within the meaning of section 487.04 of the Criminal Code, has been
committed;
(b) that a bodily substance has
been found
(i)
at the place where the offence was committed,
(ii)
on or within the body of the victim of the offence,
(iii)
on anything worn or carried by the victim at the time when the
offence was committed, or
(iv)
on or within the body of any person or thing or at any place
associated with the commission of the offence;
(c) that (name of person) was a party to the
offence; and
(d) that forensic DNA analysis of a
bodily substance from (name of
person) will provide evidence about whether the bodily
substance referred to in paragraph (b) was from that person.
The
reasonable grounds are :
The
informant therefore requests that a warrant be issued authorizing
the taking from (name of
person) of the number of samples of bodily substances that
are reasonably required for forensic DNA analysis, provided that the
person taking the samples is able by virtue of training or
experience to take them by means of the investigative procedures
described in subsection 487.06(1) of the Criminal Code and provided that,
if the person taking the samples is not a peace officer, he or she
take the samples under the direction of a peace officer.
Sworn
before me this
..........
day of ..........,
A.D.
.........., at ...... . |
......................................
(Signature of
Informant) |
......................................
(Signature of provincial court
judge) |
| |
|
Canada,
Province
of ................
(territorial division)
To
the peace officers in (territorial
division):
Whereas
it appears on the oath of (name of
peace officer) of ...... in the said (territorial division), that there
are reasonable grounds to believe
(a) that (offence), a designated offence
within the meaning of section 487.04 of the Criminal Code, has been
committed,
(b) that a bodily substance has
been found
(i)
at the place where the offence was committed,
(ii)
on or within the body of the victim of the offence,
(iii)
on anything worn or carried by the victim at the time when the
offence was committed, or
(iv)
on or within the body of any person or thing or at any place
associated with the commission of the offence,
(c) that (name of person) was a party to the
offence, and
(d) that forensic DNA analysis of a
bodily substance from (name of
person) will provide evidence about whether the bodily
substance referred to in paragraph (b) was from that person;
And
whereas I am satisfied that it is in the best interests of the
administration of justice to issue this warrant;
This
is therefore to authorize and require you to take from (name of person) or cause to be
taken by a person acting under your direction, the number of samples
of bodily substances that are reasonably required for forensic DNA
analysis, provided that the person taking the samples is able by
virtue of training or experience to take them by means of the
investigative procedures described in subsection 487.06(1) of the
Criminal Code and provided
that, if the person taking the samples is not a peace officer, he or
she take the samples under the direction of a peace officer. This
warrant is subject to the following terms and conditions that I
consider advisable to ensure that the taking of the samples is
reasonable in the circumstances :
Dated
this ................ day of ................
A.D.
........, at ................ .
........................................
(Signature of provincial court
judge) |
|
Canada,
Province
of ................
(territorial division)
To
the peace officers in (territorial
division):
Whereas
(name of offender) has been
convicted, discharged under section 730 of the Criminal Code or, in the case of a
young person, found guilty under the Young Offenders Act, chapter Y-1
of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice Act of
(offence), an offence that
is a primary designated offence within the meaning of section 487.04
of the Criminal Code;
Therefore,
you are authorized to take from (name of offender) or cause to be
taken by a person acting under your direction, the number of samples
of bodily substances that are reasonably required for forensic DNA
analysis, provided that the person taking the samples is able by
virtue of training or experience to take them by means of the
investigative procedures described in subsection 487.06(1) of the
Criminal Code and provided
that, if the person taking the samples is not a peace officer, he or
she take the samples under the direction of a peace officer.
This
order is subject to the following terms and conditions that I
consider advisable to ensure that the taking of the samples is
reasonable in the circumstances :
Dated
this ................ day of ................
A.D.
........, at ................ .
........................................
(Signature of judge of the
court) |
|
Canada,
Province
of .................
(territorial division)
To
the peace officers in (territorial
division):
Whereas
(name of offender), in this
order called the "offender", has been convicted, discharged under
section 730 of the Criminal
Code or, in the case of a young person, found guilty under
the Young Offenders Act,
chapter Y-1 of the Revised Statutes of Canada, 1985, or the Youth Criminal Justice Act of
(offence), an offence that
is
(a) a secondary designated offence
within the meaning of section 487.04 of the Criminal Code, or
(b) a designated offence within the
meaning of section 487.04 of the Criminal Code committed before
subsection 5(1) of the DNA
Identification Act came into force;
Whereas
I have considered the offender’s criminal record, the nature of the
offence and the circumstances surrounding its commission and the
impact that this order would have on the offender’s privacy and
security of the person;
And
whereas I am satisfied that it is in the best interests of the
administration of justice to make this order;
Therefore,
you are authorized to take from (name of offender) or cause to be
taken by a person acting under your direction, the number of samples
of bodily substances that are reasonably required for forensic DNA
analysis, provided that the person taking the samples is able by
virtue of training or experience to take them by means of the
investigative procedures described in subsection 487.06(1) of the
Criminal Code and provided
that, if the person taking the samples is not a peace officer, he or
she take the samples under the direction of a peace officer.
This
order is subject to the following terms and conditions that I
consider advisable to ensure that the taking of the samples is
reasonable in the circumstances :
Dated
this ................ day of ................
A.D.
........, at ................ .
........................................
(Signature of judge of the
court) |
|
Canada,
Province
of ................,
(territorial division)
I,
(name of peace officer),
(occupation), of ..........
in the said (territorial
division), apply for an authorization to take bodily
substances for forensic DNA analysis. A certificate referred to in
paragraph 667(1)(a) of the
Criminal Code is filed with
this application.
Whereas
(name of offender)
(a) before subsection 487.055(1) of
the Criminal Code came into
force, had been declared a dangerous offender under Part XXIV of
that Act,
(b) before subsection 487.055(1) of
the Criminal Code came into
force, had been convicted of more than one murder committed at
different times, or
(c) before subsection 487.055(1) of
the Criminal Code came into
force, had been convicted of more than one sexual offence within the
meaning of subsection 487.055(3) of the Criminal Code and is currently
serving a sentence of at least two years imprisonment for one or
more of those offences;
And
whereas I have considered the offender’s criminal record, the nature
of the offence and the circumstances surrounding its commission and
the impact that this authorization would have on the offender’s
privacy and security of the person;
Therefore,
I request that an authorization be granted under subsection
487.055(1) of the Criminal
Code to take from (name of
offender) the number of samples of bodily substances that is
reasonably required for forensic DNA analysis, provided that the
person taking the samples is able by virtue of training or
experience to take them by means of the investigative procedures
described in subsection 487.06(1) of the Criminal Code and provided that,
if the person taking the samples is not a peace officer, he or she
take the samples under the direction of a peace officer.
Dated
this ... day of ........, A.D. ......,
at
............... .
.........................................
(Signature of applicant) |
|
Canada,
Province
of ................,
(territorial division)
To
the
peace
officers in (territorial
division):
Whereas
(name of offender)
(a) before subsection 487.055(1) of
the Criminal Code came into
force, had been declared a dangerous offender under Part XXIV of
that Act,
(b) before subsection 487.055(1) of
the Criminal Code came into
force, had been convicted of more than one murder committed at
different times, or
(c) before subsection 487.055(1) of
the Criminal Code came into
force, had been convicted of more than one sexual offence within the
meaning of subsection 487.055(3) of the Criminal Code and is currently
serving a sentence of at least two years imprisonment for one or
more of those offences;
Whereas
(name of peace officer), a
peace officer of the said territorial division, has applied for an
authorization for the taking of the number of samples of bodily
substances from (name of
offender) that is reasonably required for forensic DNA
analysis by means of the investigative procedures described in
subsection 487.06(1) of that Act;
And
whereas I have considered the offender’s criminal record, the nature
of the offence and the circumstances surrounding its commission and
the impact that this authorization would have on the offender’s
privacy and security of the person;
Therefore,
the peace officers of the said territorial division, are authorized
to take from (name of
offender) or cause to be taken by a person acting under their
direction those samples, provided that the person taking the samples
is able by virtue of training or experience to take them by means of
the investigative procedures described in subsection 487.06(1) of
the Criminal Code and
provided that, if the person taking the samples is not a peace
officer, he or she take the samples under the direction of a peace
officer.
This
authorization is subject to the following terms and conditions that
I consider advisable to ensure that the taking of the samples is
reasonable in the circumstances :
Dated
this ................ day of ................
A.D.,
at ................ .
........................................
(Signature of provincial court
judge) |
|
Canada,
Province
of ................,
(territorial division)
[
] To (name of judge), a
judge of the provincial court who issued a warrant under section
487.05 or granted an authorization under section 487.055 or 487.091
of the Criminal Code or to
another judge of that court :
[
] To the court from which an order under section 487.051 or 487.052
of the Criminal Code was
made :
I,
(name of peace officer),
have (state here whether you have
acted in execution of a warrant under section 487.05 or an order
under section 487.051 or 487.052, or under an authorization under
section 487.055 or 487.091) of the Criminal Code.
I
have (state here whether you have
taken the samples yourself or caused them to be taken under your
direction) from (name of
offender) the number of samples of bodily substances that I
believe are reasonably required for forensic DNA analysis, in
accordance with (state whether the
taking of the samples was under the warrant issued or an
authorization granted by the judge or another judge of the court or
an order made by the court).
The
samples were taken at .... a.m./p.m. on the ... day of ...........
A.D. ......
I
(or state the name of the person
who took the samples) was able by virtue of training or
experience to take the following samples from (name of offender) in accordance
with subsection 487.06(1) of the Criminal Code and did so take
them :
[
] individual hairs, including the root sheath
[
] epithelial cells taken by swabbing the lips, tongue or inside
cheeks of the mouth
[
] blood taken by pricking the skin surface with a sterile lancet
Any
terms or conditions in the (warrant, order or authorization)
have been complied with.
Dated
this ................ day of ................
A.D.
........, at ................ .
........................................
(Signature of peace
officer) |
|
Canada,
Province
of ................,
(territorial division)
I,
(name of peace officer),
(occupation), of ..........
in the said (territorial
division), apply for an authorization to take additional
samples of bodily substances for forensic DNA analysis.
Whereas
samples of bodily substances were taken from (name of offender) for the purpose
of forensic DNA analysis, in execution of an order made under
section 487.051 or 487.052 of the Criminal Code or an authorization
granted under section 487.055 of the Criminal Code (attach a copy of the order or
authorization);
And
whereas on (day/month/year)
it was determined that a DNA profile could not be derived from the
samples for the following reasons :
Therefore,
I request that an authorization be granted under subsection
487.091(1) of the Criminal
Code to take from (name of
offender) the number of additional samples of bodily
substances that is reasonably required for forensic DNA analysis,
provided that the person taking the samples is able by virtue of
training or experience to take them by means of the investigative
procedures described in subsection 487.06(1) of the Criminal Code and provided that,
if the person taking the samples is not a peace officer, he or she
take the samples under the direction of a peace officer.
Dated
this ... day of ........, A.D. ......, at ............... .
.........................................
(Signature of applicant) |
|
Canada,
Province
of ................,
(territorial division)
To
the peace officers in (territorial
division):
Whereas
samples of bodily substances were taken from (name of offender) for the purpose
of forensic DNA analysis, in execution of an order made under
section 487.051 or 487.052 of the Criminal Code or an authorization
granted under section 487.055 of the Criminal Code;
Whereas
on (day/month/year) it was
determined that a DNA profile could not be derived from the samples
for the following reasons :
And
whereas (name of peace
officer), a peace officer of the said territorial division,
has applied for an authorization for the taking of the number of
additional samples of bodily substances from (name of offender) that is
reasonably required for forensic DNA analysis by means of the
investigative procedures described in subsection 487.06(1) of that
Act;
Therefore,
the peace officers of the said territorial division are authorized
to take from (name of
offender) or cause to be taken by a person acting under their
direction those additional samples, provided that the person taking
the samples is able by virtue of training or experience to take them
by means of the investigative procedures described in subsection
487.06(1) of the Criminal
Code and provided that, if the person taking the samples is
not a peace officer, he or she take the samples under the direction
of a peace officer.
This
authorization is subject to the following terms and conditions that
I consider advisable to ensure that the taking of the samples is
reasonable in the circumstances :
Dated
this ................ day of ................
A.D.
........, at ................ .
........................................
(Signature of provincial court
judge) |
|
Canada,
Province
of [ specify province].
To
A.B. and other peace officers in the [ territorial division in which the warrant
is intended for execution]:
Whereas
it appears on the oath of A.B., a peace officer in the [ territorial division in which the warrant
is intended for execution], that there are reasonable grounds
for dispensing with an information presented personally and in
writing; and that there are reasonable grounds for believing that
the following things
[
describe things to be searched
for]
relevant
to the investigation of the following indictable offence
[
describe offence in respect of
which search is to be made]
are
to be found in the following place or premises
[
describe place or premises to be
searched]:
This
is, therefore, to authorize you to enter the said place or premises
between the hours of [ as the
justice may direct] and to search for and seize the said
things and to report thereon as soon as practicable but within a
period not exceeding seven days after the execution of the warrant
to the clerk of the court for the [ territorial division in which the warrant
is intended for execution].
Issued
at [ time] on the [ day] of [ month] A.D. [ year], at [ place].
...................................................................
A
Judge of the Provincial Court in and
for
the Province of [ specify
province].
To the Occupant: This search
warrant was issued by telephone or other means of telecommunication.
If you wish to know the basis on which this warrant was issued, you
may apply to the clerk of the court for the territorial division in
which the warrant was executed, at [ address], to obtain a copy of the
information on oath.
You
may obtain from the clerk of the court a copy of the report filed by
the peace officer who executed this warrant. That report will
indicate the things, if any, that were seized and the location where
they are being held. |
|
Canada,
Province
of ............,
(territorial division).
To
the justice who issued a warrant to the undersigned pursuant to
section 256, 487 or 487.1 of the Criminal Code (or another justice for the same
territorial division or, if no warrant was issued, any justice
having jurisdiction in respect of the matter).
I,
(name of the peace officer or other
person) have (state here
whether you have acted under a warrant issued pursuant to section
256, 487 or 487.1 of the Criminal Code or under section 489 of the
Criminal Code or otherwise in the execution of duties under the
Criminal Code or other Act of Parliament to be specified)
1.
searched the premises situated at
..................................... ; and
2.
seized the following things and dealt with them as
follows :
Property
Seized |
Disposition |
(describe each thing
seized) |
(state, in respect of each thing
seized, whether) |
(a) it was returned to the person lawfully
entitled to its possession, in which case the receipt therefor shall
be attached hereto, or
(b) it is being detained to be dealt with
according to law, and the location and manner in which, or where
applicable, the person by whom it is being detained).
.
. . . . . . .
1.
.......... ..........
2.
.......... ..........
3.
.......... ..........
4.
.......... ..........
.
. . . . . . .
In
the case of a warrant issued by telephone or other means of
telecommunication, the statements referred to in subsection 487.1(9)
of the Criminal Code shall
be specified in the report.
Dated
this ........ day of ............ A.D. ........, at
.............
................................................................
Signature
of peace officer or other
person |
|
Canada,
Province
of ...............,
(territorial division).
To
a judge of the court from which the warrant was issued (specify court):
I,
(name of the peace officer or other
person) have acted under a warrant issued under section
462.32 of the Criminal Code
and have
1.
searched the premises situated at ............; and
2.
seized the following property :
Property
Seized |
Location |
(describe each item of property
seized) |
(state, in respect of each item of
property seized, the location where it is being detained )
. |
.
. . . . . . .
1.
............. ...........
2.
............. ...........
3.
............. ...........
4.
............. ...........
.
. . . . . . .
Dated
this ...... day of ............ A.D. ........, at
.................
.....................................................
Signature
of peace officer
or
other person |
|
Canada,
Province
of ................,
(territorial division).
To
A.B., of ................, (occupation):
Whereas
you have this day been charged before me that (set out briefly the offence in respect of
which the accused is charged);
This
is therefore to command you, in Her Majesty’s name :
(a) to attend court on
................, the ................ day of................ A.D.
........, at ............ o’clock in the ........ noon, at
................ or before any justice for the said (territorial division) who is
there, and to attend thereafter as required by the court, in order
to be dealt with according to law; and
(b) to appear on ................,
the ................ day of ................ A.D. ........, at
............ o’clock in the ........ noon, at ................, for
the purposes of the Identification
of Criminals Act. (Ignore,
if not filled in).
You
are warned that failure without lawful excuse to attend court in
accordance with this summons is an offence under subsection 145(4)
of the Criminal Code.
Subsection
145(4) of the Criminal Code
states as follows :
"(4)
Every one who is served with a summons and who fails, without lawful
excuse, the proof of which lies on him, to appear at a time and
place stated therein, if any, for the purposes of the Identification of Criminals Act or
to attend court in accordance therewith, is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction."
Section
510 of the Criminal Code
states as follows :
"
510. Where an accused who is
required by a summons to appear at a time and place stated therein
for the purposes of the Identification of Criminals Act
does not appear at that time and place, a justice may issue a
warrant for the arrest of the accused for the offence with which he
is charged."
Dated
this ................ day of ................ A.D. ........, at
................ .
...........................................
A
Justice of the Peace in
and
for ............ or
Judge |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the said (territorial division):
This
warrant is issued for the arrest of A.B., of ................,
(occupation), hereinafter
called the accused.
Whereas
the accused has been charged that (set out briefly the offence in respect of
which the accused is charged);
And
whereas :*
(a) there are reasonable grounds to
believe that it is necessary in the public interest to issue this
warrant for the arrest of the accused [507(4), 512(1)];
(b) the accused failed to attend
court in accordance with the summons served on him [512(2)];
(c) (an appearance notice or a promise to appear or a recognizance entered into
before an officer in charge) was confirmed and the accused failed to
attend court in accordance therewith [512(2)];
(d) it appears that a summons
cannot be served because the accused is evading service
[512(2)];
(e) the accused was ordered to be
present at the hearing of an application for a review of an order
made by a justice and did not attend the hearing [520(5),
521(5)];
(f) there are reasonable grounds to
believe that the accused has contravened or is about to contravene
the (promise to appear or
undertaking or recognizance)
on which he was released [524(1), 525(5), 679(6)];
(g) there are reasonable grounds to
believe that the accused has since his release from custody on (a
promise to appear or an
undertaking or a
recognizance) committed an indictable offence [524(1), 525(5),
679(6)];
(h) the accused was required by (an
appearance notice or a
promise to appear or a
recognizance entered into before an officer in charge or a summons) to attend at a time
and place stated therein for the purposes of the Identification of Criminals Act
and did not appear at that time and place [502, 510];
(i) an indictment has been found
against the accused and the accused has not appeared or remained in
attendance before the court for his trial [597];
(j) * *
This
is, therefore, to command you, in Her Majesty’s name, forthwith to
arrest the said accused and to bring him before (state court, judge or justice), to
be dealt with according to law.
Whereas
there are reasonable grounds to believe that the accused is or will
be present in (here describe
dwelling-house);
This
warrant is also issued to authorize you to enter the dwelling-house
for the purpose of arresting or apprehending the accused, subject to
the condition that you may not enter the dwelling-house unless you
have, immediately before entering the dwelling-house, reasonable
grounds to believe that the person to be arrested or apprehended is
present in the dwelling-house.
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
Judge,
Clerk of the Court,
Provincial
Court Judge or Justice
_____
*
Initial applicable
recital.
*
* For any case not covered by
recitals (a) to (i), insert recital in the words of the statute
authorizing the warrant. |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the said (territorial division):
This
warrant is issued in respect of the arrest of A.B., or a person with
the following description ( ), of ..............., (occupation).
Whereas
there are reasonable grounds to believe :*
(a) a warrant referred to in this
or any other Act of Parliament to arrest or apprehend the person is
in force anywhere in Canada;
(b) grounds exist to arrest the
person without warrant under paragraph 495(1)(a) or (b) or section 672.91 of the Criminal Code; or
(c) grounds exist to arrest or
apprehend without warrant the person under an Act of Parliament,
other than this Act;
And
whereas there are reasonable grounds to believe that the person is
or will be present in (here
describe dwelling-house);
This
warrant is issued to authorize you to enter the dwelling-house for
the purpose of arresting or apprehending the person.
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
Judge,
Clerk of the Court,
Provincial
Court Judge or Justice
_____
*
Initial applicable
recital. |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the said (territorial division) and to the
keeper of the (prison) at
................:
This
warrant is issued for the committal of A.B., of ................,
(occupation), hereinafter
called the accused.
Whereas
the accused has been charged that (set out briefly the offence in respect of
which the accused is charged);
And
whereas :*
(a) the prosecutor has shown cause
why the detention of the accused in custody is justified
[515(5)];
(b) an order has been made that the
accused be released on (giving an undertaking or entering into a recognizance)
but the accused has not yet complied with the order [519(1), 520(9),
521(10), 524(12), 525(8)];**
(c) the application by the
prosecutor for a review of the order of a justice in respect of the
interim release of the accused has been allowed and that order has
been vacated, and the prosecutor has shown cause why the detention
of the accused in custody is justified [521];
(d) the accused has contravened or
was about to contravene his (promise to appear or undertaking or recognizance) and the same was
cancelled, and the detention of the accused in custody is justified
or seems proper in the circumstances [524(4), 524(8)];
(e) there are reasonable grounds to
believe that the accused has after his release from custody on (a
promise to appear or an
undertaking or a
recognizance) committed an indictable offence and the detention of
the accused in custody is justified or seems proper in the
circumstances [524(4), 524(8)];
(f) the accused has contravened or
was about to contravene the (undertaking or recognizance) on which he was
released and the detention of the accused in custody seems proper in
the circumstances [525(7), 679(6)];
(g) there are reasonable grounds to
believe that the accused has after his release from custody on (an
undertaking or a
recognizance) committed an indictable offence and the detention of
the accused in custody seems proper in the circumstances [525(7),
679(6)];
(h) ***
This
is, therefore, to command you, in Her Majesty's name, to arrest, if
necessary, and take the accused and convey him safely to the (prison) at ................, and
there deliver him to the keeper thereof, with the following
precept :
I
do hereby command you the said keeper to receive the accused in your
custody in the said prison and keep him safely there until he is
delivered by due course of law.
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
Provincial
Court Judge or Justice
Judge,
Clerk of the Court,
_____
*
Initial applicable
recital.
**
If the person having custody of the
accused is authorized under paragraph 519(1)(b) to release him on
his complying with an order, endorse the authorization on this
warrant and attach a copy of the order.
***
For any case not covered by
recitals (a) to (g), insert recital in the words of the statute
authorizing the warrant. |
|
Canada,
Province of ...................., (territorial division).
To
A.B., of ................, (occupation):
You
are alleged to have committed (set
out substance of offence).
1.
You are required to attend court on ....... day, the ....... day of
................ A.D. ......., at ............ o'clock in the
........ noon, in courtroom No. ........, at ................ court,
in the municipality of ................, and to attend thereafter as
required by the court, in order to be dealt with according to
law.
2.
You are also required to appear on ....... day, the ....... day of
................ A.D. ......., at ............ o'clock in the
........ noon, at .......................... (police station), (address), for the purposes of the
Identification of Criminals
Act. (Ignore if not filled
in.)
You
are warned that failure to attend court in accordance with this
appearance notice is an offence under subsection 145(5) of the Criminal Code.
Subsections
145(5) and (6) of the Criminal
Code state as follows :
"(5)
Every person who is named in an appearance notice or promise to
appear, or in a recognizance entered into before an officer in
charge or another peace officer, that has been confirmed by a
justice under section 508 and who fails, without lawful excuse, the
proof of which lies on the person, to appear at the time and place
stated therein, if any, for the purposes of the Identification of Criminals Act or
to attend court in accordance therewith, is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction.
For
the purposes of subsection (5), it is not a lawful excuse that an
appearance notice, promise to appear or recognizance states
defectively the substance of the alleged offence."
Section
502 of the Criminal Code
states as follows :
"
502. Where an accused who is
required by an appearance notice or promise to appear or by a
recognizance entered into before an officer in charge or another
peace officer to appear at a time and place stated therein for the
purposes of the Identification of
Criminals Act does not appear at that time and place, a
justice may, where the appearance notice, promise to appear or
recognizance has been confirmed by a justice under section 508,
issue a warrant for the arrest of the accused for the offence with
which the accused is charged."
Issued
at ........ a.m./p.m. this ................ day of ....... A.D.
........, at ................. .
.........................................
(Signature of peace officer)
..................................
(Signature of accused) |
|
Canada,
Province of ...................., (territorial division).
I,
A.B., of ................, (occupation), understand that it is
alleged that I have committed (set
out substance of offence).
In
order that I may be released from custody,
1.
I promise to attend court on .......... day, the .......... day of
................ A.D. ........, at ............ o'clock in the
........ noon, in courtroom No. ........, at ............ court, in
the municipality of ................, and to attend thereafter as
required by the court, in order to be dealt with according to
law.
2.
I also promise to appear on ............ day, the .......... day of
................ A.D. ........, at ............. o'clock in the
........ noon, at ................... (police station), (address), for the purposes of the
Identification of Criminals
Act. (Ignore if not filled
in.)
I
understand that failure without lawful excuse to attend court in
accordance with this promise to appear is an offence under
subsection 145(5) of the Criminal
Code.
Subsections
145(5) and (6) of the Criminal
Code state as follows :
"(5)
Every person who is named in an appearance notice or promise to
appear, or in a recognizance entered into before an officer in
charge or another peace officer, that has been confirmed by a
justice under section 508 and who fails, without lawful excuse, the
proof of which lies on the person, to appear at the time and place
stated therein, if any, for the purposes of the Identification of Criminals Act or
to attend court in accordance therewith, is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction.
For
the purposes of subsection (5), it is not a lawful excuse that an
appearance notice, promise to appear or recognizance states
defectively the substance of the alleged offence."
Section
502 of the Criminal Code
states as follows :
"
502. Where an accused who is
required by an appearance notice or promise to appear or by a
recognizance entered into before an officer in charge or another
peace officer to appear at a time and place stated therein for the
purposes of the Identification of
Criminals Act does not appear at that time and place, a
justice may, where the appearance notice, promise to appear or
recognizance has been confirmed by a justice under section 508,
issue a warrant for the arrest of the accused for the offence with
which the accused is charged."
Dated
this ............. day of ................ A.D. ........, at
................. .
..................................
(Signature of accused) |
|
Canada,
Province of ...................., (territorial division).
I,
A.B., of ................, (occupation), understand that it is
alleged that I have committed (set
out substance of offence).
In
order that I may be released from custody, I hereby acknowledge that
I owe $ (not exceeding $500)
to Her Majesty the Queen to be levied on my real and personal
property if I fail to attend court as hereinafter required.
(or, for a person not ordinarily resident
in the province in which the person is in custody or within two
hundred kilometres of the place in which the person is in
custody)
In
order that I may be released from custody, I hereby acknowledge that
I owe $ (not exceeding $500)
to Her Majesty the Queen and deposit herewith (money or other valuable security not
exceeding in amount or value $500) to be forfeited if I fail
to attend court as hereinafter required.
1.
I acknowledge that I am required to attend court on .......... day,
the .......... day of .......... A.D. ........, at ..........
o'clock in the ............. noon, in courtroom No. .............,
at ................ court, in the municipality of ................,
and to attend thereafter as required by the court, in order to be
dealt with according to law.
2.
I acknowledge that I am also required to appear on ........... day,
the ................ day of ................ A.D. ........., at
............ o'clock in the ........ noon, at ..................
(police station), (address), for the purposes of the
Identification of Criminals
Act. (Ignore if not filled
in.)
I
understand that failure without lawful excuse to attend court in
accordance with this recognizance to appear is an offence under
subsection 145(5) of the Criminal
Code.
Subsections
145(5) and (6) of the Criminal
Code state as follows :
"(5)
Every person who is named in an appearance notice or promise to
appear, or in a recognizance entered into before an officer in
charge or another peace officer, that has been confirmed by a
justice under section 508 and who fails, without lawful excuse, the
proof of which lies on the person, to appear at the time and place
stated therein, if any, for the purposes of the Identification of Criminals Act or
to attend court in accordance therewith, is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction.
For
the purposes of subsection (5), it is not a lawful excuse that an
appearance notice, promise to appear or recognizance states
defectively the substance of the alleged offence."
Section
502 of the Criminal Code
states as follows :
"
502. Where an accused who is
required by an appearance notice or promise to appear or by a
recognizance entered into before an officer in charge or another
peace officer to appear at a time and place stated therein for the
purposes of the Identification of
Criminals Act does not appear at that time and place, a
justice may, where the appearance notice, promise to appear or
recognizance has been confirmed by a justice under section 508,
issue a warrant for the arrest of the accused for the offence with
which the accused is charged."
Dated
this ............... day of ................ A.D. ........, at
................ .
..................................
(Signature of accused) |
|
Canada,
Province of ...................., (territorial division).
I,
A.B., of ................, (occupation), understand that it is
alleged that I have committed (set
out substance of the offence).
In
order that I may be released from custody by way of (a promise to
appear or a recognizance), I
undertake to (insert any conditions
that are directed):
(a) remain within (designated territorial
jurisdiction);
(b) notify (name of peace officer or other person
designated) of any change in my address, employment or
occupation;
(c) abstain from communicating,
directly or indirectly, with (identification of victim, witness or
other person) or from going to (name or description of place)
except in accordance with the following conditions : (as the peace officer or other person
designated specifies);
(d) deposit my passport with (name of peace officer or other person
designated);
(e) to abstain from possessing a
firearm and to surrender to (name
of peace officer or other person designated) any firearm in
my possession and any authorization, licence or registration
certificate or other document enabling the acquisition or possession
of a firearm;
(f) report at (state times) to (name of peace officer or other person
designated);
(g) to abstain from
(i)
the consumption of alcohol or other intoxicating substances, or
(ii)
the consumption of drugs except in accordance with a medical
prescription; and
(h) comply with any other
conditions that the peace officer or officer in charge considers
necessary to ensure the safety and security of any victim of or
witness to the offence.
I
understand that I am not required to give an undertaking to abide by
the conditions specified above, but that if I do not, I may be kept
in custody and brought before a justice so that the prosecutor may
be given a reasonable opportunity to show cause why I should not be
released on giving an undertaking without conditions.
I
understand that if I give an undertaking to abide by the conditions
specified above, then I may apply, at any time before I appear, or
when I appear, before a justice pursuant to (a promise to appear
or a recognizance entered
into before an officer in charge or another peace officer), to have
this undertaking vacated or varied and that my application will be
considered as if I were before a justice pursuant to section 515 of
the Criminal Code.
I
also understand that this undertaking remains in effect until it is
vacated or varied.
I
also understand that failure without lawful excuse to abide by any
of the conditions specified above is an offence under subsection
145(5.1) of the Criminal
Code.
Subsection
145(5.1) of the Criminal
Code states as follows :
"(5.1)
Every person who, without lawful excuse, the proof of which lies on
the person, fails to comply with any condition of an undertaking
entered into pursuant to subsection 499(2) or 503(2.1)
(a) is guilty of an indictable
offence and is liable to imprisonment for a term not exceeding two
years; or
(b) is guilty of an offence
punishable on summary conviction."
Dated
this .............. day of ................ A.D. ........, at
................ .
..................................
(Signature of accused) |
|
Canada,
Province
of ....................,
(territorial division).
I,
A.B., of ................, (occupation), understand that I
have been charged that (set out
briefly the offence in respect of which accused is
charged).
In
order that I may be released from custody, I undertake to attend
court on ........... day, the ................ day of
................ A.D. ........, and to attend thereafter as required
by the court in order to be dealt with according to law (or, where date and place of appearance
before court are not known at the time undertaking is given,
to attend at the time and place fixed by the court and thereafter as
required by the court in order to be dealt with according to
law).
(and, where applicable)
I
also undertake to (insert any
conditions that are directed)
(a) report at (state times) to (name of peace officer or other person
designated);
(b) remain within (designated territorial
jurisdiction);
(c) notify (name of peace officer or other person
designated) of any change in my address, employment or
occupation;
(d) abstain from communicating,
directly or indirectly, with (identification of victim, witness or
other person) except in accordance with the following
conditions : (as the justice
or judge specifies);
(e) deposit my passport (as the justice or judge directs);
and
(f) (any other reasonable
conditions).
I
understand that failure without lawful excuse to attend court in
accordance with this undertaking is an offence under subsection
145(2) of the Criminal
Code.
Subsections
145(2) and (3) of the Criminal
Code state as follows :
"(2)
Every one who,
(a) being at large on his
undertaking or recognizance given to or entered into before a
justice or judge, fails, without lawful excuse, the proof of which
lies on him, to attend court in accordance with the undertaking or
recognizance, or
(b) having appeared before a court,
justice or judge, fails, without lawful excuse, the proof of which
lies on him, to attend court as thereafter required by the court,
justice or judge,
or
to surrender himself in accordance with an order of the court,
justice or judge, as the case may be, is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two
years or is guilty of an offence punishable on summary
conviction.
Every
person who is at large on an undertaking or recognizance given to or
entered into before a justice or judge and is bound to comply with a
condition of that undertaking or recognizance directed by a justice
or judge, and every person who is bound to comply with a direction
ordered under subsection 515(12) or 522(2.1), and who fails, without
lawful excuse, the proof of which lies on that person, to comply
with that condition or direction, is guilty of
(a) an indictable offence and
liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on
summary conviction."
Dated
this ................ day of ................ A.D. ........, at
................ .
...................................
(Signature of accused) |
|
Canada,
Province
of ................,
(territorial division).
I,
A.B., of................, (occupation), being the appellant
against conviction (or
against sentence or against
an order or by way of stated
case) in respect of the following matter (set out the offence, subject-matter of
order or question of law) undertake to appear personally at
the sittings of the appeal court at which the appeal is to be
heard.
(and where applicable)
I
also undertake to (insert any
conditions that are directed)
(a) report at (state times) to (name of peace officer or other person
designated);
(b) remain within (designated territorial
jurisdiction);
(c) notify (name of peace officer or other person
designated) of any change in my address, employment or
occupation;
(d) abstain from communicating,
directly or indirectly, with (identification of victim, witness or
other person) except in accordance with the following
conditions : (as the justice
or judge specifies);
(e) deposit my passport (as the justice or judge directs);
and
(f) (any other reasonable
conditions).
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
(Signature of appellant) |
|
Canada,
Province
of ................,
(territorial division).
I,
A.B., of................, (occupation), being the appellant
against an order of dismissal (or against sentence) in respect of
the following charge (set out the
name of the defendant and the offence, subject-matter of order or
question of law) undertake to appear personally or by counsel
at the sittings of the appeal court at which the appeal is to be
heard.
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
(Signature of appellant) |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the said (territorial division):
Whereas
A.B., of ................ hereinafter called the accused, has been
charged that (state place of
offence and charge);
And
Whereas I have taken the deposition of X.Y. in respect of the said
charge;
And
Whereas the charge is for an offence committed in the (territorial division);
This
is to command you, in Her Majesty's name, to convey the said A.B.,
before a justice of the (last
mentioned territorial division).
Dated
this ................ day of ................ A.D. ........, at
................ .
...........................................
A
Justice of the Peace in
and
for................................. |
|
Canada,
Province
of ................,
(territorial division).
To
E.F., of ................, (occupation);
Whereas
A.B. has been charged that (state
offence as in the information), and it has been made to
appear that you are likely to give material evidence for (the
prosecution or the
defence);
This
is therefore to command you to attend before (set out court or justice), on
................ the ................ day of ................ A.D.
......., at ............ o'clock in the ........ noon at
................ to give evidence concerning the said charge.*
*
Where a witness is required to
produce anything, add the following:
and
to bring with you anything in your possession or under your control
that relates to the said charge, and more particularly the
following : (specify any
documents, objects or other things required).
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
A
Judge, Justice or Clerk
of
the
court
(Seal, if required) |
|
Canada,
Province
of ................,
(territorial division).
To
E.F., of ................, (occupation);
Whereas
A.B. has been charged that (state
offence as in the information), and it has been made to
appear that you are likely to give material evidence for (the
prosecution or the
defence);
This
is therefore to command you to attend before (set out court or justice), on
................ the ................ day of ................ A.D.
......., at ............ o'clock in the ........ noon at
................ to give evidence concerning the said charge, and to
bring with you anything in your possession or under your control
that relates to the said charge, and more particularly the
following : (specify any
documents, objects or other things required).
TAKE
NOTE
You
are only required to bring the things specified above to the court
on the date and at the time indicated, and you are not required to
provide the things specified to any person or to discuss their
contents with any person unless and until ordered by the court to do
so.
If
anything specified above is a “record” as defined in section 278.1
of the Criminal Code, it may
be subject to a determination by the court in accordance with
sections 278.1 to 278.91 of the Criminal Code as to whether and to
what extent it should be produced.
If
anything specified above is a “record” as defined in section 278.1
of the Criminal Code, the
production of which is governed by sections 278.1 to 278.91 of the
Criminal Code, this subpoena
must be accompanied by a copy of an application for the production
of the record made pursuant to section 278.3 of the Criminal Code, and you will have
an opportunity to make submissions to the court concerning the
production of the record.
If
anything specified above is a “record” as defined in section 278.1
of the Criminal Code, the
production of which is governed by sections 278.1 to 278.91 of the
Criminal Code, you are not
required to bring it with you until a determination is made in
accordance with those sections as to whether and to what extent it
should be produced.
As
defined in section 278.1 of the Criminal Code, “record” means any
form of record that contains personal information for which there is
a reasonable expectation of privacy and includes, without limiting
the generality of the foregoing, medical, psychiatric, therapeutic,
counselling, education, employment, child welfare, adoption and
social services records, personal journals and diaries, and records
containing personal information the production or disclosure of
which is protected by any other Act of Parliament or a provincial
legislature, but does not include records made by persons
responsible for the investigation or prosecution of the offence.
Dated
this ..................... day of ..................... A.D.
........, at ................ .
........................................
Judge,
Clerk
of the Court,
Provincial
Court Judge or Justice
(Seal, if required) |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the (territorial division):
Whereas
A.B. of ................, has been charged that (state offence as in the
information);
And
Whereas it has been made to appear that E.F. of ................,
hereinafter called the witness, is likely to give material evidence
for (the prosecution or the
defence) and that*
*
Insert whichever of the following
is appropriate:
(a) the said E.F. will not attend
unless compelled to do so;
(b) the said E.F. is evading
service of a subpoena;
(c) the said E.F. was duly served
with a subpoena and has neglected (to attend at the time and place
appointed therein or to
remain in attendance);
(d) the said E.F. was bound by a
recognizance to attend and give evidence and has neglected (to
attend or to remain in
attendance).
This
is therefore to command you, in Her Majesty's name, to arrest and
bring the witness forthwith before (set out court or justice) to be
dealt with in accordance with section 706 of the Criminal Code.
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
A
Justice or Clerk of
the
Court
(Seal, if required) |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the (territorial division):
Whereas
A.B., of ................, has been charged that (state offence as in the
information);
And
Whereas I am satisfied by information in writing and under oath that
C.D., of ................, hereinafter called the witness, is bound
by recognizance to give evidence on the trial of the accused on the
said charge, and that the witness (has absconded or is about to abscond);
This
is therefore to command you, in Her Majesty's name, to arrest the
witness and bring him forthwith before (the court, judge, justice or provincial
court judge before whom the witness is bound to appear) to be
dealt with in accordance with section 706 of the Criminal Code.
Dated
this ................ day of ................ A.D. ........, at
................ .
...........................................
A
Justice of the Peace in
and
for............................... |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the (territorial division):
You
are hereby commanded forthwith to arrest, if necessary, and convey
to the (prison) at
................ the persons named in the following schedule each of
whom has been remanded to the time mentioned in the
schedule :
Person
charged Offence Remanded to
And
I hereby command you, the keeper of the said prison, to receive each
of the said persons into your custody in the prison and keep him
safely until the day when his remand expires and then to have him
before me or any other justice at .................at ............
o'clock in the ........ noon of the said day, there to answer to the
charge and to be dealt with according to law, unless you are
otherwise ordered before that time.
Dated
this ................ day of ................ A.D. ........, at
................ .
...........................................
A
Justice of the Peace in
and
for............................... |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the (territorial division):
Whereas
A.B. of ................, hereinafter called the accused, has been
charged that (set out offence as in
the information);
And
Whereas E.F. of ................, hereinafter called the witness,
attending before me to give evidence for (the prosecution or the defence) concerning the
charge against the accused (refused to be sworn or being duly sworn as a witness
refused to answer certain questions concerning the charge that were
put to him or refused or
neglected to produce the following writings, namely ................
or refused to sign his
deposition) having been ordered to do so, without offering any just
excuse for such refusal or neglect;
This
is therefore to command you, in Her Majesty's name, to arrest, if
necessary, and take the witness and convey him safely to the prison
at ................, and there deliver him to the keeper thereof,
together with the following precept :
I
do hereby command you, the said keeper, to receive the said witness
into your custody in the said prison and safely keep him there for
the term of ................ days, unless he sooner consents to do
what was required of him, and for so doing this is a sufficient
warrant.
Dated
this ................ day of ................ A.D. ........, at
................ .
...........................................
A
Justice of the Peace in
and
for............................... |
|
Canada,
Province
of ............,
(territorial division).
To
the peace officers in the territorial division of (name) and to the keeper of a
federal penitentiary (or provincial correctional institution for the
province of ............, as the case may be)
Whereas
(name), hereinafter called
the offender was on the ........ day of ........ 19........,
convicted by (name of judge and court) of having committed the
following offence(s) and it was adjudged that the offender be
sentenced as follows :
Offence |
Sentence |
Remarks |
(state offence of which offender was
convicted) |
(state term imprisonment for the
offence and, in case of imprisonment for default of payment
sentence of fine, so indicate together with the amount thereof
and costs applicable and whether payable forth with or within
a time fixed) |
(state the sentence is whether
consecutive or concurrent, and specify consecutive or
concurrent to/with what other
sentence) |
.
. . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
..................... .........................
.........................
2.
..................... .........................
.........................
3.
..................... .........................
.........................
4.
..................... .........................
.........................
.
. . . . . . . . . . . . . . . . . . . . . . . . . . .
You
are hereby commanded, in her Majesty's name, to arrest the offender
if it is necessary to do so in order to take the offender into
custody, and to take and convey him safely to a federal penitentiary
(or provincial correctional institution for the province of
........, as the case may be) and deliver him to the keeper thereof,
who is hereby commanded to receive the accused into custody and to
imprison him there for the term(s) of his sentence, unless, where a
term of imprisonment was imposed only in default of payment of a
fine or costs, the said amounts and the costs and charges of the
committal and of conveying the offender to the said prison are
sooner paid, and this is a sufficient warrant for so doing.
Dated
this ........ day of ............ A.D. ........, at
.............
................................................................
Clerk
of the Court, Justice, Judge or
Provincial
Court Judge |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the (territorial division) and to the
keeper of the (prison) at
....................:
Whereas
A.B., hereinafter called the defendant, was tried on an information
alleging that (set out matter of
complaint), and it was ordered that (set out the order made), and in
default that the defendant be imprisoned in the (prison) at ................ for a
term of ....................;
I
hereby command you, in Her Majesty's name, to arrest, if necessary,
and take the defendant and convey him safely to the (prison) at ................, and
deliver him to the keeper thereof, together with the following
precept :
I
hereby command you, the keeper of the said prison, to receive the
defendant into your custody in the said prison and imprison him
there for the term of ................, unless the said amounts and
the costs and charges of the committal and of conveying the
defendant to the said prison are sooner paid, and for so doing this
is a sufficient warrant.
Dated
this ................ day of ................ A.D. ........, at
................ .
...........................................
A
Justice of the Peace in
and
for............................... |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the (territorial division) and to the
keeper of the (prison) at
....................:
Whereas
A.B., hereinafter called the accused, has been ordered to enter into
a recognizance to keep the peace and be of good behaviour, and has
(refused or failed) to enter
into a recognizance accordingly;
You
are hereby commanded, in Her Majesty's name, to arrest, if
necessary, and take the accused and convey him safely to the (prison) at ................ and
deliver him to the keeper thereof, together with the following
precept :
You,
the said keeper, are hereby commanded to receive the accused into
your custody in the said prison and imprison him there until he
enters into a recognizance as aforesaid or until he is discharged in
due course of law.
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
Clerk
of the Court, Justice
or Provincial Court Judge
(Seal, if required) |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the (territorial division) and to the
keeper of the (prison) at
....................:
Whereas
A.B., hereinafter called the accused, was committed for trial on a
charge that (state offence as in
the information);
And
Whereas E.F., hereinafter called the witness, having appeared as a
witness on the preliminary inquiry into the said charge, and being
required to enter into a recognizance to appear as a witness on the
trial of the accused on the said charge, has (failed or refused) to do so;
This
is therefore to command you, in Her Majesty's name, to arrest, if
necessary, and take and safely convey the said witness to the (prison) at ................ and
there deliver him to the keeper thereof, together with the following
precept :
I
do hereby command you, the said keeper, to receive the witness into
your custody in the said prison and keep him there safely until the
trial of the accused on the said charge, unless before that time the
witness enters into the said recognizance.
Dated
this ................ day of ................ A.D. ........, at
................ .
...........................................
A
Justice of the Peace in
and
for............................... |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers in the said (territorial division) and to the
keeper of the (prison) at
....................:
Whereas
E.F. of ................, hereinafter called the defaulter, was on
the ................ day of ................ A.D. ........, at
................., convicted before ................ for contempt in
that he did not attend before ................ to give evidence on
the trial of a charge that (state
offence as in the information) against A.B. of
................, although (duly subpoenaed or bound by recognizance to appear
and give evidence in that behalf, as the case may be) and did not
show any sufficient excuse for his default;
And
Whereas in and by the said conviction it was adjudged that the
defaulter (set out punishment
adjudged);
And
Whereas the defaulter has not paid the amounts adjudged to be paid;
(delete if not
applicable)
This
is therefore to command you, in Her Majesty's name, to arrest, if
necessary, and take the defaulter and convey him safely to the
prison at ................ and there deliver him to the keeper
thereof, together with the following precept :
I
do hereby command you, the said keeper, to receive the defaulter
into your custody in the said prison and imprison him there* and for
so doing this is a sufficient warrant.
*
Insert whichever of the following
is applicable:
(a) for the term of
................;
(b) for the term of
................ unless the said sums and the costs and charges of
the committal and of conveying the defaulter to the said prison are
sooner paid;
(c) for the term of
................ and for the term of (if consecutive so state) unless
the said sums and the costs and charges of the committal and of
conveying the defaulter to the said prison are sooner paid.
Dated
this ................ day of ............... A.D. ........, at
................ .
........................................
A
Justice or Clerk of
the
Court
(Seal, if required) |
|
Canada,
Province
of ................,
(territorial division).
To
the peace officers of (territorial
division) and to the keeper of the (prison) at
....................:
Whereas
it appears that on the hearing of an appeal before the (set out court) it was adjudged
that A.B., of ................, hereinafter called the defaulter,
should pay to the Clerk of the Court the sum of ................
dollars in respect of costs;
And
Whereas the Clerk of the Court has certified that the defaulter has
not paid the sum within the time limited therefor;
I
do hereby command you, the said peace officers, in Her Majesty's
name, to take the defaulter and safely convey him to the (prison) at ................ and
deliver him to the keeper thereof, together with the following
precept :
I
do hereby command you, the said keeper, to receive the defaulter
into your custody in the said prison and imprison him for the term
of ................, unless the said sum and the costs and charges
of the committal and of conveying the defaulter to the said prison
are sooner paid, and for so doing this is a sufficient warrant.
Dated
this ................ day of ................ A.D. ........, at
................ .
...........................................
A
Justice of the Peace in
and
for............................... |
|
Canada,
Province
of ................,
(territorial division).
To
the sheriff of (territorial
division) and to the keeper of the (prison) at ................:
You
are hereby commanded to arrest, if necessary, and take (A.B. and
C.D. as the case may be)
hereinafter called the defaulters, and to convey them safely to the
(prison) at ................
and deliver them to the keeper thereof, together with the following
precept :
You,
the said keeper, are hereby commanded to receive the defaulters into
your custody in the said prison and imprison them for a period of
................ or until satisfaction is made of a judgment debt of
............ dollars due to Her Majesty the Queen in respect of the
forfeiture of a recognizance entered into by ................ on the
................ day of ................ A.D. ........ .
Dated
this ................ day of ................ A.D. ........ .
........................................
Clerk
of the ..........
(Seal) |
|
Canada,
Province
of ............,
(territorial division).
Pursuant
to application this day made to me, I hereby authorize the arrest of
the accused (or defendant)
(or execution of this
warrant in the case of a warrant
issued pursuant to section 487), within the said (territorial division).
Dated
this ........ day of ............ A.D. ........, at
.............
.....................................................................
A
Justice of the Peace in and for............... |
|
Canada,
Province
of ............,
(territorial division).
Pursuant
to application this day made to me, I hereby authorize the execution
of this order, in the case of an
order issued under section 487.051 or 487.052 (or execution
of this authorization in the case
of an authorization issued under section 487.055 or 487.091),
within the said (territorial
division).
Dated
this ........ day of ......... A.D. ........, at ............
.......................
Judge
of the Provincial Court |
|
Canada,
Province
of ................,
(territorial division).
Whereas
this warrant is issued under section 507, 508 or 512 of the Criminal Code in respect of an
offence other than an offence mentioned in section 522 of the Criminal Code, I hereby authorize
the release of the accused pursuant to section 499 of that Act.
Dated
this ................ day of ................ A.D. ........, at
................ .
.....................................
A
Justice of the Peace in
and
for .............................. |
|
Canada,
Province
of ................,
(territorial division).
To
the keeper of the (prison)
at ................:
Whereas
by warrant dated the ................ day of ................ A.D.
........, I committed A.B., hereinafter called the accused, to your
custody and required you safely to keep until the ................
day of ................ A.D. ........, and then to have him before
me or any other justice at ................ at ............ o'clock
in the ........ noon to answer to the charge against him and to be
dealt with according to law unless you should be ordered otherwise
before that time;
Now,
therefore, I order and direct you to have the accused before
................ at ................ at ............ o'clock in the
........ noon to answer to the charge against him and to be dealt
with according to law.
Dated
this ................ day of ................ A.D. ........, at
................ .
...........................................
A
Justice of the Peace in
and
for............................... |
|
Canada,
Province
of ................,
(territorial division).
These
are the depositions of X.Y., of ................, and M.N., of
................, taken before me, this .................... day of
................ A.D., ........ at ................, in the presence
and hearing of A.B., hereinafter called the accused, who stands
charged (state offence as in the
information).
X.Y.,
having been duly sworn, deposes as follows : (insert deposition as nearly as possible
in words of witness).
M.N.,
having been duly sworn, deposes as follows :
I
certify that the depositions of X.Y., and M.N., written on the
several sheets of paper hereto annexed to which my signature is
affixed, were taken in the presence and hearing of the accused (and
signed by them respectively, in his presence where they are required to be signed by
witness). In witness whereof I have hereto signed my
name.
...........................................
A
Justice of the Peace in
and
for............................... |
|
Canada,
Province
of ................,
(territorial division).
Be
it remembered that on this day the persons named in the following
schedule personally came before me and severally acknowledged
themselves to owe to Her Majesty the Queen the several amounts set
opposite their respective names, namely,
Name
Address Occupation Amount
A.B.
C.D.
E.F.
to
be made and levied of their several goods and chattels, lands and
tenements, respectively, to the use of Her Majesty the Queen, if the
said A.B. fails in any of the conditions hereunder written.
Taken
and acknowledged before me on the ................ day of
................ A.D. ........, at ................ .
........................................
Judge,
Clerk of the Court,
Provincial
Court Judge or Justice
1.
Whereas the said ................, hereinafter called the accused,
has been charged that (set out the
offence in respect of which the accused has been
charged);
Now,
therefore, the condition of this recognizance is that if the accused
attends court on .............. day, the .................. day of
........................ A.D. ...................., at
......................... o'clock in the ................... noon
and attends thereafter as required by the court in order to be dealt
with according to law (or, where
date and place of appearance before court are not known at the time
recognizance is entered into if the accused attends at the
time and place fixed by the court and attends thereafter as required
by the court in order to be dealt with according to law) [515, 520,
521, 522, 523, 524, 525, 680];
And
further, if the accused (insert in
Schedule of Conditions any additional conditions that are
directed), the said recognizance is void, otherwise it stands
in full force and effect.
2.
Whereas the said ................, hereinafter called the appellant,
is an appellant against his conviction (or against his sentence) in
respect of the following charge (set out the offence for which the
appellant was convicted) [679, 680];
Now,
therefore, the condition of this recognizance is that if the
appellant attends as required by the court in order to be dealt with
according to law;
And
further, if the appellant (insert
in Schedule of Conditions any additional conditions that are
directed),
the
said recognizance is void, otherwise it stands in full force and
effect.
3.
Whereas the said ................, hereinafter called the appellant,
is an appellant against his conviction (or against his sentence or against an order or by way of stated case) in
respect of the following matter (set out offence, subject-matter of order
or question of law) [816, 831, 832, 834];
Now,
therefore, the condition of this recognizance is that if the
appellant appears personally at the sittings of the appeal court at
which the appeal is to be heard;
And
further, if the appellant (insert
in Schedule of Conditions any additional conditions that are
directed),
the
said recognizance is void, otherwise it stands in full force and
effect.
4.
Whereas the said ................, hereinafter called the appellant,
is an appellant against an order of dismissal (or against sentence) in respect of
the following charge (set out the
name of the defendant and the offence, subject-matter of order or
question of law) [817, 831, 832, 834];
Now,
therefore, the condition of this recognizance is that if the
appellant appears personally or by counsel at the sittings of the
appeal court at which the appeal is to be heard the said
recognizance is void, otherwise it stands in full force and
effect.
5.
Whereas the said ................, hereinafter called the accused,
was ordered to stand trial on a charge that (set out the offence in respect of which
the accused has been charged);
And
whereas A.B. appeared as a witness on the preliminary inquiry into
the said charge [550, 706, 707];
Now,
therefore, the condition of this recognizance is that if the said
A.B. appears at the time and place fixed for the trial of the
accused to give evidence on the indictment that is found against the
accused, the said recognizance is void, otherwise it stands in full
force and effect.
6.
The condition of the above written recognizance is that if A.B.
keeps the peace and is of good behaviour for the term of ......
commencing on ......, the said recognizance is void, otherwise it
stands in full force and effect [810 and 810.1].
7.
Whereas a warrant was issued under section 462.32 or a restraint
order was made under subsection 462.33(3) of the Criminal Code in relation to any
property (set out a description of
the property and its location);
Now,
therefore, the condition of this recognizance is that A.B. shall not
do or cause anything to be done that would result, directly or
indirectly, in the disappearance, dissipation or reduction in value
of the property or otherwise affect the property so that all or a
part thereof could not be subject to an order of forfeiture under
section 462.37 or 462.38 of the Criminal Code or any other
provision of the Criminal
Code or any other Act of Parliament [462.34].
Schedule of Conditions
(a) reports at (state times) to (name of peace officer or other person
designated);
(b) remains within (designated territorial
jurisdiction);
(c) notifies (name of peace officer or other person
designated) of any change in his address, employment or
occupation;
(d) abstains from communicating,
directly or indirectly, with (identification of victim, witness or
other person) except in accordance with the following
conditions : (as the justice
or judge specifies);
(e) deposits his passport (as the justice or judge directs);
and
(f) (any other reasonable
conditions).
Note: Section 763 and subsections
764(1) to (3) of the Criminal
Code state as follows :
"
763. Where a person is bound
by recognizance to appear before a court, justice or provincial
court judge for any purpose and the session or sittings of that
court or the proceedings are adjourned or an order is made changing
the place of trial, that person and his sureties continue to be
bound by the recognizance in like manner as if it had been entered
into with relation to the resumed proceedings or the trial at the
time and place at which the proceedings are ordered to be resumed or
the trial is ordered to be held.
764. (1) Where an accused is bound
by recognizance to appear for trial, his arraignment or conviction
does not discharge the recognizance, but it continues to bind him
and his sureties, if any, for his appearance until he is discharged
or sentenced, as the case may be.
Notwithstanding
subsection (1), the court, justice or provincial court judge may
commit an accused to prison or may require him to furnish new or
additional sureties for his appearance until he is discharged or
sentenced, as the case may be.
The
sureties of an accused who is bound by recognizance to appear for
trial are discharged if he is committed to prison pursuant to
subsection (2)." |
|
I
hereby certify that A.B. (has not appeared as required by this
recognizance or has not
complied with a condition of this recognizance) and that by reason
thereof the ends of justice have been (defeated or delayed, as the case may be).
The
nature of the default is ................................ and the
reason for the default is ............. (state reason if known).
The
names and addresses of the principal and sureties are as
follows :
Dated
this ................ day of ................ A.D. ........, at
................ .
....................................................................
(Signature
of justice, judge, provincial court judge, clerk of the court, peace
officer or other person, as the case may be)
(Seal, if required) |
|
Elizabeth
II by the Grace of God, etc.
To
the sheriff of (territorial
division), GREETING.
You
are hereby commanded to levy of the goods and chattels, lands and
tenements of each of the following persons the amount set opposite
the name of each :
Name
Address Occupation Amount
And
you are further commanded to make a return of what you have done in
execution of this writ.
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
Clerk
of the ..........
(Seal) |
|
Canada,
Province
of ................,
(territorial division).
Be
it remembered that on the ................ day of ................
at ................, A.B., (date of
birth) hereinafter called the accused, was tried under Part
(XIX or XXVII) of the Criminal Code on the charge that
(state fully the offence of which
accused was convicted), was convicted of the said offence and
the following punishment was imposed on him, namely,*
*
Use whichever of the following
forms of sentence is applicable:
(a) that the said accused be
imprisoned in the (prison)
at ................ for the term of ................;
(b) that the said accused forfeit
and pay the sum of ............ dollars to be applied according to
law and also pay to ................ the sum of ............ dollars
in respect of costs and in default of payment of the said sums
forthwith (or within a time fixed,
if any), to be imprisoned in the (prison) at ................ for
the term of ................ unless the said sums and the costs and
charges of the committal and of conveying the accused to the said
prison are sooner paid;
(c) that the said accused be
imprisoned in the (prison)
at ................ for the term of .................... and in
addition forfeit and pay the sum of ............ dollars to be
applied according to law and also pay to ................ the sum of
........... dollars in respect of costs and in default of payment of
the said sums forthwith (or within
a time fixed, if any), to be imprisoned in the (prison) at ................ for
the term of ................ (if
sentence to be consecutive, state accordingly) unless the
said sums and the costs and charges of the committal and of
conveying the accused to the said prison are sooner paid.
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
Clerk
of the Court, Justice
or Provincial Court Judge
(Seal, if required) |
|
Canada,
Province
of ............,
(territorial division).
Be
it remembered that on the ........ day of ............ A.D.
........, at ............, A.B., (date of birth) of ............,
was tried on an information (indictment) alleging that (set out matter of complaint or alleged
offence), and it was ordered and adjudged that (set out the order made).
Dated
this ........ day of ............ A.D. ........, at
.............
................................................................
Justice
or Clerk of the
Court |
|
Canada,
Province
of ................,
(territorial division).
Be
it remembered that on the ................ day of ................
A.D. ........, at ................ A.B., of ................, (occupation), (date of birth) was tried on the
charge that (state fully the
offence of which accused was acquitted) and was found not
guilty of the said offence.
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
Provincial
Court Judge or Clerk of
the
Court
(Seal, if required) |
|
Canada,
Province
of ................,
(territorial division).
Be
it remembered that on the ................ day of ................
A.D. ........, at ................ in the (territorial division), E.F. of
................, hereinafter called the defaulter, is convicted by
me for contempt in that he did not attend before (set out court or justice) to give
evidence on the trial of a charge that (state fully offence with which accused
was charged), although (duly subpoenaed or bound by recognizance to attend
to give evidence, as the case may
be) and has not shown before me any sufficient excuse for his
default;
Wherefore
I adjudge the defaulter for his said default, (set out punishment as authorized and
determined in accordance with section 708 of the Criminal
Code).
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
A
Justice or Clerk of
the
Court
(Seal, if required) |
|
Canada,
Province
of ................,
(territorial division).
To
the keeper of the (prison)
at ................:
I
hereby direct you to release E.F., detained by you under a (warrant
of committal or order) dated
the ................ day of ................ A.D. ........, if the
said E.F. is detained by you for no other cause.
........................................
A
Judge, Justice or Clerk of
the Court
(Seal, if required) |
|
Canada,
Province
of ................,
(territorial division).
The
Queen
v.
C.D.
The
(prosecutor or accused)
challenges the array of the panel on the ground that X.Y., (sheriff
or deputy sheriff), who
returned the panel, was guilty of (partiality or fraud or wilful misconduct) on returning
it.
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
Counsel
for (prosecutor or
accused) |
|
Canada,
Province
of ................,
(territorial division).
The
Queen
v.
C.D.
The
(prosecutor or accused)
challenges G.H. on the ground that (set out ground of challenge in accordance
with subsection 638(1) of the Criminal Code).
........................................
Counsel
for (prosecutor or
accused) |
|
In
the Court of ................
(Style of Cause)
I
hereby certify that A.B. (the appellant or respondent, as the case may be) in this
appeal, having been ordered to pay costs in the sum of ............
dollars, has failed to pay the said costs within the time limited
for the payment thereof.
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
Clerk
of the Court of..........
(Seal) |
|
I
hereby certify that I have received from X.Y., a peace officer for
(territorial division), one
A.B., together with a (warrant or order) issued by (set out court or justice, as the case may
be).*
*
Add a statement of the condition of
the prisoner
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
Keeper
of (prison) |
|
I,
(name), a fingerprint
examiner designated as such for the purposes of section 667 of the
Criminal Code by the
Minister of Public Safety and Emergency Preparedness, do hereby
certify that (name) also
known as (aliases if any),
FPS Number ........, whose fingerprints are shown reproduced below
(reproduction of
fingerprints) or attached hereto, has been convicted,
discharged under section 730 of the Criminal Code or convicted and
sentenced in Canada as follows :
(record)
Dated
this ........ day of ............ A.D. ........, at
.............
......................................
Fingerprint
Examiner |
|
I,
(name), a fingerprint
examiner designated as such for the purposes of section 667 of the
Criminal Code by the
Minister of Public Safety and Emergency Preparedness, do hereby
certify that I have compared the fingerprints reproduced in or
attached to exhibit A with the fingerprints reproduced in or
attached to the certificate in Form 44 marked exhibit B and that
they are those of the same person.
Dated
this ........ day of ............ A.D. ........, at
.............
......................................
Fingerprint
Examiner |
|
Canada,
Province
of ................,
(territorial division).
Whereas
on the ................ day of ................ at ................,
A.B., hereinafter called the offender, (pleaded guilty to or was tried under (here insert Part XIX, XX or XXVII, as the
case may be) of the Criminal
Code and was (here insert
convicted or found guilty, as the case may be) on the charge
that (here state the offence to
which the offender pleaded guilty or for which the offender was
convicted or found guilty, as the case may be);
And
whereas on the ................ day of ................ the court
adjudged*
*
Use whichever of the following
forms of disposition is applicable:
(a) that the offender be discharged
on the following conditions :
(b) that the passing of sentence on
the offender be suspended and that the said offender be released on
the following conditions :
(c) that the offender forfeit and
pay the sum of ................ dollars to be applied according to
law and in default of payment of the said sum without delay (or within a time fixed, if any),
be imprisoned in the (prison) at ................ for
the term of ................ unless the said sum and charges of the
committal and of conveying the said offender to the said prison are
sooner paid, and in addition thereto, that the said offender comply
with the following conditions :
(d) that the offender be imprisoned
in the (prison) at
................ for the term of ................ and, in addition
thereto, that the said offender comply with the following
conditions :
(e) that following the expiration
of the offender's conditional sentence order related to this or
another offence, that the said offender comply with the following
conditions :
(f) that following the expiration
of the offender's sentence of imprisonment related to another
offence, that the said offender comply with the following
conditions :
(g) when the offender is ordered to
serve the sentence of imprisonment intermittently, that the said
offender comply with the following conditions when not in
confinement :
Now
therefore the said offender shall, for the period of
................ from the date of this order (or, where paragraph (d), (e) or (f) is
applicable, the date of expiration of the offender's sentence
of imprisonment or conditional sentence order) comply with the
following conditions, namely, that the said offender shall keep the
peace and be of good behaviour, appear before the court when
required to do so by the court and notify the court or probation
officer in advance of any change of name or address and promptly
notify the court or probation officer of any change of employment or
occupation, and, in addition,
(here state any additional conditions
prescribed pursuant to subsection 732.1(3) of the Criminal Code ).
Dated
this ................ day of ................ A.D. ........, at
................ .
........................................
Clerk
of the Court, Justice
or Provincial Court Judge
|
|
Canada,
Province
of ...............,
(territorial division).
To
A.B., of ................, (office
or occupation):
Whereas,
it appears on the oath of C.D., of ................, that there are
reasonable grounds for believing that E.F., of ................, has
committed or benefited from the commission of the offence of
................ and that the information or documents (describe information or documents)
are likely to be of substantial value to an investigation of that
offence or a related matter; and
Whereas
there are reasonable grounds for believing that it is in the public
interest to allow access to the information or documents, having
regard to the benefit likely to accrue to the investigation if the
access is obtained;
This
is, therefore, to authorize and require you between the hours of
(as the judge may direct),
during the period commencing on ................ and ending on
................, to produce all the above-mentioned information and
documents to one of the following police officers, namely, (here name police officers) and
allow the police officer to remove the information or documents,
or to allow the police
officer access to the above-mentioned information and documents and
to examine them, as the judge
directs, subject to the following conditions (state conditions):
.................
Dated
this ........ day of ................ A.D. ........, at
.................... .
.....................................................
Signature
of judge |
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Canada,
Province
of
(territorial division)
Whereas
I have reasonable grounds to believe that evidence of the mental
condition of (name of
accused), who has been charged with ...., may be necessary to
determine *
[ ]
whether the accused is unfit to stand trial
[ ]
whether the accused suffered from a mental disorder so as to exempt
the accused from criminal responsibility by virtue of subsection
16(1) of the Criminal Code
at the time of the act or omission charged against the accused
[ ]
whether the balance of the mind of the accused was disturbed at the
time of commission of the alleged offence, if the accused is a
female person charged with an offence arising out of the death of
her newly-born child
[ ]
if a verdict of unfit to stand trial or a verdict of not criminally
responsible on account of mental disorder has been rendered in
respect of the accused, the appropriate disposition to be made in
respect of the accused pursuant to section 672.54 or 672.58 of the
Criminal Code
[ ]
if a verdict of unfit to stand trial has been rendered in respect of
the accused, whether the court should order a stay of proceedings
under section 672.851 of the Criminal Code
I
hereby order an assessment of the mental condition of (name of accused) to be conducted
by/at (name of person or service by
whom or place where assessment is to be made) for a period of
.................... days.
This
order is to be in force for a total of ............... days,
including travelling time, during which time the accused is to
remain *
[ ]
in custody at (place where accused
is to be detained)
[ ]
out of custody, on the following conditions:
(set out conditions, if
applicable)
* Check
applicable option.
Dated
this ............... day of ............... A.D. ....., at
............... .
........................................ |
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(Signature of justice or judge or clerk of the court, as
the case may be) |
|
| |
|
Canada,
Province
of
(territorial division)
Whereas
I have reasonable grounds to believe that evidence of the mental
condition of (name of
accused), who has been charged with ...., may be necessary to
*
[ ]
if a verdict of unfit to stand trial or a verdict of not criminally
responsible on account of mental disorder has been rendered in
respect of the accused, make a disposition under section 672.54 of
the Criminal Code
[ ]
if a verdict of unfit to stand trial has been rendered in respect of
the accused, determine whether the Review Board should make a
recommendation to the court that has jurisdiction in respect of
the offence charged against the accused to hold an inquiry to
determine whether a stay of proceedings should be ordered in
accordance with section 672.851 of the Criminal Code
I
hereby order an assessment of the mental condition of (name of accused) to be conducted
by/at (name of person or service by
whom or place where assessment is to be made) for a period of
.................... days.
This
order is to be in force for a total of ............... days,
including travelling time, during which time the accused is to
remain *
[ ]
in custody at (place where accused
is to be detained)
[ ]
out of custody, on the following conditions:
(set out conditions, if
applicable)
* Check
applicable option.
Dated
this ............... day of ............... A.D. ....., at
............... .
.................................... |
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(Signature of Chairperson of the Review Board) |
|
| |
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Canada,
Province
of
(territorial division)
To
the peace officers in the said (territorial division) and to the
keeper (administrator,
warden) of the (prison,
hospital or other appropriate place where the accused is
detained).
This
warrant is issued for the committal of A.B., of ...............,
(occupation), hereinafter
called the accused.
Whereas
the accused has been charged that (set out briefly the offence in respect of
which the accused was charged);
And
whereas the accused was found*
€
unfit to stand trial
€
not criminally responsible on account of mental disorder
This
is, therefore, to command you, in Her Majesty's name, to take the
accused in custody and convey the accused safely to the (prison, hospital or other appropriate
place) at ...., and there deliver the accused to the keeper
(administrator, warden) with
the following precept :
I
do therefore command you the said keeper (administrator, warden) to receive
the accused in your custody in the said (prison, hospital or other appropriate
place) and to keep the accused safely there until the accused
is delivered by due course of law.
The
following are the conditions to which the accused shall be subject
while in your (prison, hospital or
other appropriate place):
The
following are the powers regarding the restrictions (and the limits and conditions on those
restrictions) on the liberty of the accused that are hereby
delegated to you the said keeper (administrator, warden) of the said
(prison, hospital or other
appropriate place):
*
Check applicable option.
Dated
this .......... day of .......... A.D. .........., at ..........
.
.....................................................................................
(Signature
of judge, clerk of the court, provincial court judge or chairperson
of the Review Board) |
|
Canada,
Province
of
(territorial division)
To
the peace officers in the said (territorial division) and to the
keeper (administrator,
warden) of the (prison,
hospital or other appropriate place where the accused is
detained).
This
warrant is issued for the committal of A.B., of
...................., (occupation), hereinafter called
the accused.
Whereas
the accused has been charged that (set out briefly the offence in respect of
which the accused was charged);
And
whereas the accused was found*
€
unfit to stand trial
€
not criminally responsible on account of mental disorder
And
whereas the Review Board has held a hearing and decided that the
accused shall be detained in custody;
And
whereas the accused is required to be detained in custody pursuant
to a warrant of committal issued by (set out the name of the Judge, Clerk of
the Court, Provincial Court Judge or Justice as well as the name of
the court and territorial division), dated the
.................. day of ...................., in respect of the
offence that (set out briefly the
offence in respect of which the accused was charged or
convicted);
This
is, therefore, to command you, in Her Majesty's name, to*
€
execute the warrant of committal issued by the court, according to
its terms
€
execute the warrant of committal issued herewith by the Review
Board
*
Check applicable option.
Dated
this .................. day of .................. A.D.
...................., at ................. .
...............................................................................
(Signature
of chairperson of the Review Board) |
|
Canada,
Province
of
(territorial division)
Whereas
(name of offender), who has
been convicted of (offence)
and sentenced to a term of imprisonment of (length of term of imprisonment),
is suffering from a mental disorder in an acute phase and immediate
treatment of the mental disorder is urgently required to prevent
significant deterioration of the mental or physical health of the
offender or to prevent the offender from causing serious bodily harm
to any person;
And
whereas (name of offender)
and (name of treatment
facility) have consented to this order and its terms and
conditions;
I
hereby order that (name of
offender) be detained for treatment at (name of treatment facility) for a
period not to exceed (length of
period not to exceed sixty days) subject to the following
terms and conditions :
(set out terms and conditions, where
applicable)
Dated
this ................... day of .................... A.D.
.................... , at ...................... .
.....................................................................................
(Signature
of justice or judge or clerk of the court, as the case may
be) |
|
Canada,
Province
of ....................
(territorial division)
To
A.B., of ................, (occupation):
You
have been convicted of, or found not criminally responsible on
account of mental disorder for, ............. (insert description of offence(s)),
a designated offence (or if more
than one offence, designated offences) within the meaning of
subsection 490.011(1) of the Criminal Code, under .........
(insert the applicable designated
offence provision(s) of the Criminal Code ).
1.
You must report for the first time, in person, to the registration
centre that serves the area in which your main residence is located,
whenever required under subsection 4(2) of the Sex Offender Information Registration
Act.
2.
You must subsequently report to the registration centre that serves
the area in which your main residence is located whenever required
under section 4.1 or 4.3 of the Sex
Offender Information Registration Act, for a period of ......
years after this order is made (or
if paragraph 490.013(2)(c) or any of subsections 490.013(3) to (5)
of the Criminal Code
applies, for life).
3.
Information relating to you will be collected under sections 5 and 6
of the Sex Offender Information
Registration Act by a person who collects information at the
registration centre.
4.
Information relating to you will be registered in a database, and
may be consulted, disclosed and used in the circumstances set out in
the Sex Offender Information
Registration Act.
5.
If you believe that the information registered in the database
contains an error or omission, you may ask a person who collects
information at the registration centre that serves the area in which
your main residence is located to correct the information.
6.
You have the right to appeal this order.
7.
You have the right to apply to a court to terminate this order, and
the right to appeal any decision of that court.
8.
If you are found to have contravened this order, you may be subject
to a fine or imprisonment, or to both.
9.
If you are found to have provided false or misleading information,
you may be subject to a fine or imprisonment, or to both.
Dated
this ................ day of ................, at .................
.
.........................................
(Signature of judge and name of
court)
.........................................
(Signature of person subject to
order) |
|
Canada,
Province
of ....................
(territorial division).
To
A.B., of ............, (occupation), a person referred to
in subsection 490.02(1) of the Criminal Code:
Because,
on ....... (insert date(s)),
you were convicted of, or found not criminally responsible on
account of mental disorder for, ......... (insert description of offence(s)),
one or more offences referred to in paragraph (a), (c), (d) or (e) of the definition “designated
offence” in subsection 490.011(1) of the Criminal Code, under .......
(insert the applicable offence
provision(s) of the Criminal
Code ), this is provided to give you notice that you
are required to comply with the Sex
Offender Information Registration Act.
1.
You must report for the first time, in person, to the registration
centre that serves the area in which your main residence is located,
whenever required under subsection 4(3) of the Sex Offender Information Registration
Act.
2.
You must subsequently report to the registration centre that serves
the area in which your main residence is located whenever required
under section 4.1 or 4.3 of the Sex
Offender Information Registration Act for a period of .......
years after the day on which you were sentenced, or found not
criminally responsible on account of mental disorder, for the
offence (or if paragraph
490.022(3)(c) of the Criminal
Code applies, for life) or for any shorter period set
out in subsection 490.022(2) of the Criminal Code.
3.
Information relating to you will be collected under sections 5 and 6
of the Sex Offender Information
Registration Act by a person who collects information at the
registration centre.
4.
Information relating to you will be registered in a database, and
may be consulted, disclosed and used in the circumstances set out in
the Sex Offender Information
Registration Act.
5.
If you believe that the information registered in the database
contains an error or omission, you may ask a person who collects
information at the registration centre that serves the area in which
your main residence is located to correct the information.
6.
You have the right to apply to a court to exempt you from the
obligation to comply with the Sex
Offender Information Registration Act, and the right to
appeal any decision of that court.
7.
You have the right to apply to a court to terminate the obligation,
and the right to appeal any decision of that court.
8.
If you are found to have contravened the obligation, you may be
subject to a fine or imprisonment, or to both.
9.
If you are found to have provided false or misleading information,
you may be subject to a fine or imprisonment, or to both.
Dated
this ................ day of ................, at .................
.
R.S.,
1985, c. C-46, Part XXVIII; R.S., 1985, c. 27 (1st Supp.), ss.
101(E), 184, 203, c. 1 (4th Supp.), ss. 17, 18(F), c. 42 (4th
Supp.), ss. 6 to 8; 1991, c. 43, s. 8; 1992, c. 1, s. 58; 1993, c.
45, ss. 12 to 14; 1994, c. 44, s. 84; 1995, c. 22, ss. 9, 10, 18;
1997, c. 18, s. 115, c. 30, s. 3, c. 39, s. 3; 1998, c. 37, s. 24;
1999, c. 3, s. 58, c. 5, ss. 45 to 47, c. 25, ss. 24 to
27(Preamble); 2000, c. 10, s. 24; 2002, c. 1, ss. 185, 186, c. 13,
ss. 85, 86(F); 2004, c. 10, s. 21, c. 12, s. 17; 2005, c. 10, s. 34,
c. 22, s.
40.
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