Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Recommencement where dismissal for want of prosecution

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.

Marginal note:Summons — Identification of Criminals Act

• 485.2 (1) A justice or judge may, on application in writing and on oath in Form 6.1, issue a summons, in Form 6.2, requiring an accused or offender to appear at a time and place stated in it for the purposes of the Identification of Criminals Act if

  • (a) the accused is charged with, or the offender has been determined to be guilty of, an offence referred to in paragraph 2(1)(c) of that Act;

  • (b) the accused or offender was previously required to appear for the purposes of that Act and the measurements, processes or operations referred to in that Act were not completed; and

  • (c) the justice or judge is satisfied that the reasons for the measurements, processes or operations not having been completed were exceptional.

• Marginal note:Limitation

  (2) Subsection (1) applies in respect of an offender only if proceedings are ongoing in relation to the matter for which they were previously required to appear for the purposes of the Identification of Criminals Act and for which the sentencing proceedings have not concluded.

• Marginal note:Reasons

  (3) The application must state the reasons why the measurements, processes or operations were not completed.

• Marginal note:Ex parte application

  (4) A justice or judge may proceed ex parte to determine an application made under subsection (1).

• Marginal note:Application — telecommunication

  (5) The application may also be made by any means of telecommunication that produces a writing.

• Marginal note:Alternative to oath

  (6) A person who uses a means of telecommunication referred to in subsection (5) may, instead of swearing an oath, make a statement in writing stating that all matters contained in the application are true to their knowledge and belief, and that statement is deemed to be a statement made under oath.

• Marginal note:Contents of summons

  (7) The summons must

  • (a) be directed to the accused or offender;

  • (b) set out briefly the offence in respect of which the accused is charged or the offender has been determined to be guilty; and

  • (c) set out a summary of subsection 145(3), section 512.1 and subsection 524(4).

• Marginal note:Service of summons

  (8) The summons must 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 16 years of age.

Marginal note:Exclusion of public

• 486 (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

• Marginal note:Application

  (1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

• Marginal note:Factors to be considered

  (2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider

  • (a) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

  • (b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

  • (c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

  • (d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

  • (e) the protection of justice system participants who are involved in the proceedings;

  • (f) whether effective alternatives to the making of the proposed order are available in the circumstances;

  • (g) the salutary and deleterious effects of the proposed order; and

  • (h) any other factor that the judge or justice considers relevant.

• Marginal note:Reasons to be stated

  (3) If an accused is charged with an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

• Marginal note:No adverse inference

  (4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

Marginal note:Support person — witnesses under 18 or who have a disability

• 486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

• Marginal note:Other witnesses

  (2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.

• Marginal note:Application

  (2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

• Marginal note:Factors to be considered

  (3) In determining whether to make an order under subsection (2), the judge or justice shall consider

  • (a) the age of the witness;

  • (b) the witness’ mental or physical disabilities, if any;

  • (c) the nature of the offence;

  • (d) the nature of any relationship between the witness and the accused;

  • (e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

  • (f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and

  • (g) any other factor that the judge or justice considers relevant.

• Marginal note:Witness not to be a support person

  (4) The judge or justice shall not permit a witness to be a support person unless the judge or justice is of the opinion that doing so is necessary for the proper administration of justice.

• Marginal note:No communication while testifying

  (5) The judge or justice may order that the support person and the witness not communicate with each other while the witness testifies.

• Marginal note:No adverse inference

  (6) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

Marginal note:Testimony outside court room — witnesses under 18 or who have a disability

• 486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

• Marginal note:Other witnesses

  (2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.

• Marginal note:Application

  (2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

• Marginal note:Factors to be considered

  (3) In determining whether to make an order under subsection (2), the judge or justice shall consider

  • (a) the age of the witness;

  • (b) the witness’ mental or physical disabilities, if any;

  • (c) the nature of the offence;

  • (d) the nature of any relationship between the witness and the accused;

  • (e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

  • (f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;

  • (f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;

  • (g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and

  • (h) any other factor that the judge or justice considers relevant.

• Marginal note:Same procedure for determination

  (4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.

• Marginal note:Conditions of exclusion

  (5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.

• Marginal note:No adverse inference

  (6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).

Marginal note:Accused not to cross-examine witness under 18

• 486.3 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.

• Marginal note:Accused not to cross-examine complainant  — certain offences

  (2) In any proceedings against an accused in respect of an offence under any of sections 264, 271, 272 and 273, the judge or justice shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.

• Marginal note:Other witnesses

  (3) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness who is not entitled to make an application under subsection (1) or (2), or on application of such a witness, order that the accused not personally cross-examine the witness if the judge or justice is of the opinion that the order would allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. If the order is made, the judge or justice shall appoint counsel to conduct the cross-examination.

• Marginal note:Factors to be considered

  (4) In determining whether to make an order under subsection (3), the judge or justice shall consider

  • (a) the age of the witness;

  • (b) the witness’ mental or physical disabilities, if any;

  • (c) the nature of the offence;

  • (d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

  • (e) the nature of any relationship between the witness and the accused;

  • (f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and

  • (g) any other factor that the judge or justice considers relevant.

• Marginal note:Application

  (4.1) An application referred to in any of subsections (1) to (3) may be made during the proceedings to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

• Marginal note:No adverse inference

  (5) No adverse inference may be drawn from the fact that counsel is, or is not, appointed under this section.