An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments) (S.C. 2008, c. 18)
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Assented to 2008-05-29
R.S., c. C-46CRIMINAL CODE
22. Section 537 of the Act is amended by adding the following after subsection (1):
Marginal note:Section 715
(1.01) Where a justice grants a request under paragraph (1)(j.1), the Court must inform the accused that the evidence taken during his or her absence could still be admissible under section 715.
Marginal note:2002, c. 13, s. 41
23. Subsections 565(2) and (3) of the Act are replaced by the following:
Marginal note: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 re-elect to be tried by a judge without a jury without a preliminary inquiry.
Marginal note:Notice of re-election
(3) Where an accused wishes to re-elect under subsection (2), the accused shall give notice in writing that he wishes to re-elect to a judge or clerk of the court where the indictment has been filed or preferred who shall, on receipt of the notice, notify a judge having jurisdiction or clerk of the court by which the accused wishes to be tried of the accused’s intention to re-elect and send to that judge or clerk the indictment and any promise to appear, undertaking or recognizance given or entered into in accordance with Part XVI, any summons or warrant issued under section 578, or any evidence taken before a coroner, that is in the possession of the first-mentioned judge or clerk.
Marginal note:2002, c. 13, s. 43
24. Section 568 of the Act is replaced by the following:
Marginal note:Attorney General may require trial by jury
568. Even if an accused elects under section 536 or re-elects under section 561 or subsection 565(2) to be tried by a judge or provincial court judge, as the case may be, the Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge or provincial court judge has no jurisdiction to try the accused under this Part and a preliminary inquiry must be held if requested under subsection 536(4), unless one has already been held or the re-election was made under subsection 565(2).
Marginal note:2002, c. 13, s. 44
24.1 Subsection 569(1) of the Act is replaced by the following:
Marginal note:Attorney General may require trial by jury — Nunavut
569. (1) Even if an accused elects under section 536.1 or re-elects under section 561.1 or subsection 565(2) to be tried by a judge without a jury, the Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge has no jurisdiction to try the accused under this Part and a preliminary inquiry must be held if requested under subsection 536.1(3), unless one has already been held or the re-election was made under subsection 565(2).
25. Section 634 of the Act is amended by adding the following after subsection (2.1):
Marginal note:Supplemental peremptory challenges
(2.2) For the purposes of replacing jurors under subsection 644(1.1), the prosecutor and the accused are each entitled to one peremptory challenge for each juror to be replaced.
26. Subsections 640(2) and (3) of the Act are replaced by the following:
Marginal note:Other grounds
(2) If the ground of a challenge is one that is not mentioned in subsection (1) and no order has been made under subsection (2.1), the two jurors who were last sworn — or, if no jurors have been sworn, two persons present who are appointed by the court for the purpose — shall be sworn to determine whether the ground of challenge is true.
Marginal note:Challenge for cause
(2.1) If the challenge is for cause and if the ground of the challenge is one that is not mentioned in subsection (1), on the application of the accused, the court may order the exclusion of all jurors — sworn and unsworn — from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors.
Marginal note:Exclusion order
(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until twelve jurors and any alternate jurors are sworn.
Marginal note:If challenge not sustained, or if sustained
(3) Where the finding, pursuant to subsection (1), (2) or (2.2) is that the ground of challenge is not true, the juror shall be sworn, but if the finding is that the ground of challenge is true, the juror shall not be sworn.
Marginal note:2005, c. 10, subpar. 34(1)(f)(xii)
27. Subsection 667(5) of the French version of the Act is replaced by the following:
Définition de « préposé aux empreintes digitales »
(5) Au présent article, préposé aux empreintes digitales s’entend de toute personne désignée à ce titre pour l’application du présent article par le ministre de la Sécurité publique et de la Protection civile.
Marginal note:1997, c. 18, s. 93(2)
28. The portion of subsection 676(1.1) of the Act before paragraph (a) is replaced by the following:
Marginal note: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 verdict of acquittal in a summary offence proceeding or a sentence passed with respect to a summary conviction as if the summary offence proceeding was a proceeding by indictment if
Marginal note:R.S., c. 23 (4th Supp.), s. 5; 1995, c. 22, s. 10 (Sch. I, item 28); 1997, c. 18, s. 97(1) and par. 141(b); 1999, c. 25, s. 15
29. (1) Subsection 683(5) of the Act is replaced by the following:
Marginal note:Power to order suspension
(5) If an appeal or an application for leave to appeal has been filed in the court of appeal, that court, or a judge of that court, may, when the court, or the judge, considers it to be in the interests of justice, order that any of the following be suspended until the appeal has been determined:
(a) an obligation to pay a fine;
(b) an order of forfeiture or disposition of forfeited property;
(c) an order to make restitution under section 738 or 739;
(d) an obligation to pay a victim surcharge under section 737;
(e) a probation order under section 731; and
(f) a conditional sentence order under section 742.1.
Marginal note:Undertaking or recognizance
(5.1) Before making an order under paragraph (5)(e) or (f), the court of appeal, or a judge of that court, may order the offender to enter into an undertaking or recognizance.
(2) Section 683 of the Act is amended by adding the following after subsection (6):
Marginal note:Undertaking or recognizance to be taken into account
(7) If the offender has been ordered to enter into an undertaking or recognizance under subsection (5.1), the court of appeal shall, in determining whether to vary the sentence of the offender, take into account the conditions of that undertaking or recognizance and the period during which they were imposed.
30. Section 685 of the Act is renumbered as subsection 685(1) and is amended by adding the following:
Marginal note:Summary determination of appeals filed in error
(2) If it appears to the registrar that a notice of appeal should have been filed with another court, the registrar may refer the appeal to a judge of the court of appeal for summary determination, and the judge may dismiss the appeal summarily without calling on any person to attend the hearing or to appear for the respondent on the hearing.
31. Section 695 of the Act is amended by adding the following after subsection (1):
Marginal note:Election if new trial
(2) Subject to subsection (3), if a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury or a provincial court judge. The election is deemed to be a re-election within the meaning of subsection 561(5) and subsections 561(5) to (7) apply to it with any modifications that the circumstances require.
Marginal note:Nunavut
(3) If a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury in Nunavut, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury. The election is deemed to be a re-election within the meaning of subsection 561.1(6) and subsections 561.1(6) to (9) apply to it with any modifications that the circumstances require.
32. Subsection 701(3) of the Act is repealed.
Marginal note:1997, c. 18, s. 100
33. Section 701.1 of the Act is replaced by the following:
Marginal note:Service in accordance with provincial laws
701.1 Despite section 701, in any province, service of a document may be made in accordance with the laws of the province relating to offences created by the laws of that province.
34. Section 715 of the Act is amended by adding the following after subsection (2):
Marginal note:Admission of evidence
(2.1) Despite subsections (1) and (2), evidence that has been taken at a preliminary inquiry in the absence of the accused may be admitted as evidence for the purposes referred to in those subsections if the accused was absent further to the permission of a justice granted under paragraph 537(1)(j.1).
35. Section 720 of the Act is renumbered as subsection 720(1) and is amended by adding the following:
Marginal note:Court-supervised programs
(2) The court may, with the consent of the Attorney General and the offender and after considering the interests of justice and of any victim of the offence, delay sentencing to enable the offender to attend a treatment program approved by the province under the supervision of the court, such as an addiction treatment program or a domestic violence counselling program.
Marginal note:1995, c. 22, s. 6
36. Subsections 729(4) and (5) of the Act are repealed.
Marginal note:1995, c. 22, s. 6
37. Subsection 732.1(5) of the Act is replaced by the following:
Marginal note:Obligations of court
(5) The court that makes a probation order shall
(a) cause a copy of the order to be given to the offender;
(b) explain the conditions of the order set under subsections (2) to (3.1) and the substance of section 733.1 to the offender;
(c) cause an explanation to be given to the offender of the procedure for applying under subsection 732.2(3) for a change to the optional conditions and of the substance of subsections 732.2(3) and (5); and
(d) take reasonable measures to ensure that the offender understands the order and the explanations.
Marginal note:For greater certainty
(6) For greater certainty, a failure to comply with subsection (5) does not affect the validity of the probation order.
Marginal note:1995, c. 22, s. 6; 1999, c. 5, s. 33(2)
38. Subsection 734(5) of the Act is replaced by the following:
Marginal note:Determination of term
(5) The term of imprisonment referred to in subsection (4) is the lesser of
(a) the number of days that corresponds to a fraction, rounded down to the nearest whole number, of which
(i) the numerator is the unpaid amount of the fine plus the costs and charges of committing and conveying the defaulter to prison, calculated in accordance with regulations made under subsection (7), and
(ii) the denominator is equal to eight times the provincial minimum hourly wage, at the time of default, in the province in which the fine was imposed, and
(b) the maximum term of imprisonment that the court could itself impose on conviction or, if the punishment for the offence does not include a term of imprisonment, five years in the case of an indictable offence or six months in the case of a summary conviction offence.
Marginal note:1995, c. 22, s. 6
39. Section 734.2 of the Act is replaced by the following:
Marginal note:Obligations of court
734.2 (1) A court that makes an order under section 734.1 shall
(a) cause a copy of the order to be given to the offender;
(b) explain the substance of sections 734 to 734.8 and 736 to the offender;
(c) cause an explanation to be given to the offender of the procedure for applying under section 734.3 for a change to the optional conditions and of any available fine option programs referred to in section 736 as well as the procedure to apply for admission to them; and
(d) take reasonable measures to ensure that the offender understands the order and the explanations.
Marginal note:For greater certainty
(2) For greater certainty, a failure to comply with subsection (1) does not affect the validity of the order.
Marginal note:1995, c. 22, s. 6
40. Subsection 742.3(3) of the Act is replaced by the following:
Marginal note:Obligations of court
(3) A court that makes an order under this section shall
(a) cause a copy of the order to be given to the offender;
(b) explain the substance of subsection (1) and sections 742.4 and 742.6 to the offender;
(c) cause an explanation to be given to the offender of the procedure for applying under section 742.4 for a change to the optional conditions; and
(d) take reasonable measures to ensure that the offender understands the order and the explanations.
Marginal note:For greater certainty
(4) For greater certainty, a failure to comply with subsection (3) does not affect the validity of the order.
Marginal note:1995, c. 22, s. 6
41. Subsections 742.6(6) and (7) of the Act are repealed.
42. The Act is amended by adding the following after section 743.2:
Marginal note:Non-communication order
743.21 (1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary.
Marginal note:Failure to comply with order
(2) Every person who fails, without lawful excuse, the proof of which lies on that person, to comply with the order
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Marginal note:2002, c. 1, s. 184
43. (1) Subsection 743.5(1) of the Act is replaced by the following:
Marginal note:Transfer of jurisdiction when person already sentenced under Youth Criminal Justice Act
743.5 (1) If a young person or an adult is or has been sentenced to a term of imprisonment for an offence while subject to a disposition made under paragraph 20(1)(k) or (k.1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act, the remaining portion of the disposition or youth sentence shall be dealt with, for all purposes under this Act or any other Act of Parliament, as if it had been a sentence imposed under this Act.
Marginal note:2002, c. 1, s. 184
(2) Subsection 743.5(3) of the Act is replaced by the following:
Marginal note:Sentences deemed to constitute one sentence — section 743.1
(3) For greater certainty, the following are deemed to constitute one sentence of imprisonment for the purposes of section 139 of the Corrections and Conditional Release Act:
(a) for the purposes of subsection (1), the remainder of the youth sentence or disposition and the subsequent term of imprisonment; and
(b) for the purposes of subsection (2), the term of imprisonment and the subsequent youth sentence or disposition.
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