Criminal Law Amendment Act, 2001

Link to law: http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2002_13/FullText.html

Criminal Law Amendment Act, 2001

S.C. 2002, c. 13

Assented to 2002-06-04

An Act to amend the Criminal Code and to amend other Acts

SUMMARY

This enactment amends the Criminal Code by

(a) adding offences and other measures that provide additional protection to children from sexual exploitation, including sexual exploitation involving use of the Internet;

(b) increasing the maximum penalty for criminal harassment;

(c) making home invasions an aggravating circumstance for sentencing purposes;

(d) creating an offence of disarming, or attempting to disarm, a peace officer;

(e) codifying and clarifying the review process for applications to the Minister of Justice with respect to allegations of miscarriage of justice; and

(f) reforming and modernizing criminal procedure with respect to

(i) procedural aspects of preliminary inquiries,

(ii) the disclosure of expert evidence,

(iii) rules of court in relation to case management and preliminary inquiries,

(iv) electronic documents and remote appearances,

(v) a plea comprehension inquiry scheme,

(vi) private prosecutions,

(vii) the selection of alternate jurors, and

(viii) restriction on the use of agents.

This enactment also amends the following Acts:

(a) the National Capital Act, by increasing the maximum fine available; and

(b) the National Defence Act, by providing for fingerprinting.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

1. This Act may be cited as the Criminal Law Amendment Act, 2001.

R.S., c. C-46 CRIMINAL CODE

2. The Criminal Code is amended by adding the following before section 4:

Marginal note:Effect of judicial acts

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.

Marginal note:1999, c. 35, s. 11

3. (1) Paragraph 7(2.31)(b) of the English version of the Act is replaced by the following:

(b) is committed on or in relation to, or damages, a flight element provided by Canada.

Marginal note:1997, c. 16, s. 1

(2) Subsections 7(4.2) and (4.3) of the Act are replaced by the following:

Marginal note: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.

Marginal note:1999, c. 31, s. 67

4. (1) The portion of subsection 161(1) of the Act before paragraph (a) is replaced by the following:

Marginal note:Order of prohibition

161. (1) If an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence under section 151, 152, 155 or 159, subsection 160(2) or (3) or section 163.1, 170, 171, 172.1, 271, 272, 273 or 281, 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

(2) Subsection 161(1) of the Act is amended by striking out the word “or” at the end of paragraph (a), by adding the word “or” at the end of paragraph (b) and by adding the following after paragraph (b):

(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.

Marginal note:1993, c. 46, s. 2

5. (1) The portion of paragraph 163.1(1)(a) of the French version of the Act before subparagraph (i) is replaced by the following:

a) de toute représentation photographique, filmée, vidéo ou autre, réalisée ou non par des moyens mécaniques ou électroniques :

Marginal note:1993, c. 46, s. 2

(2) The portion of subsection 163.1(3) of the Act before paragraph (a) is replaced by the following:

Marginal note:Distribution, etc. of child pornography

(3) Every person who transmits, makes available, distributes, sells, imports, exports or possesses for the purpose of transmission, making available, distribution, sale or exportation any child pornography is guilty of

(3) Section 163.1 of the Act is amended by adding the following after subsection (4):

Marginal note: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; or

(b) an offence punishable on summary conviction.

Marginal note:Interpretation

(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.

Marginal note:1993, c. 46, s. 2

(4) Subsections 163.1(6) and (7) of the Act are replaced by the following:

Marginal note:Defences

(6) Where the accused is charged with an offence under subsection (2), (3), (4) or (4.1), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

Marginal note:Other provisions to apply

(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3), (4) or (4.1).

Marginal note:1993, s. 46, s. 3(2)

6. Subsection 164(4) of the Act is replaced by the following:

Marginal note:Order of forfeiture

(4) If the court is satisfied, on a balance of probabilities, that the publication, representation or written material referred to in subsection (1) is obscene, a crime comic or child pornography, 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.

7. The Act is amended by adding the following after section 164:

Marginal note:Warrant of seizure

164.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds for believing that there is material, namely child pornography within the meaning of section 163.1 or data within the meaning of subsection 342.1(2) that makes child pornography 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.

Marginal note: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.

Marginal note: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).

Marginal note:Non-appearance

(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.

Marginal note:Order

(5) If the court is satisfied, on a balance of probabilities, that the material is child pornography within the meaning of section 163.1 or data within the meaning of subsection 342.1(2) that makes child pornography available, it may order the custodian of the computer system to delete the material.

Marginal note:Destruction of copy

(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.

Marginal note:Return of material

(7) If the court is not satisfied that the material is child pornography within the meaning of section 163.1 or data within the meaning of subsection 342.1(2) that makes child pornography available, the court shall order that the electronic copy be returned to the custodian and terminate the order under paragraph (1)(b).

Marginal note:Other provisions to apply

(8) Subsections 164(6) to (8) apply, with any modifications that the circumstances require, to this section.

Marginal note:When order takes effect

(9) No order made under subsections (5) to (7) takes effect until the time for final appeal has expired.

Marginal note:Forfeiture of things used for child pornography

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.

Marginal note:Third party rights

(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.

Marginal note: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).

Marginal note: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).

Marginal note:Application of Part XXI

(5) Part XXI applies, with any modifications that the circumstances require, with respect to the procedure for an appeal under subsections (3) and (4).

Marginal note:Relief from forfeiture

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).

Marginal note:Hearing of application

(2) The judge shall fix a day — not less than thirty days after the application is made — for its hearing.

Marginal note: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.

Marginal note:Order

(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.

Marginal note: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.

Marginal note: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.

8. The Act is amended by adding the following after section 172:

Marginal note:Luring a child

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.

Marginal note:Punishment

(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.

Marginal note:Presumption re age

(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.

Marginal note:No defence

(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.

9. The definition “child” in section 214 of the Act is repealed.

Marginal note:1993, c. 45, s. 2

10. Paragraph 264(3)(a) of the Act is replaced by the following:

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

11. The Act is amended by adding the following after section 270:

Marginal note:Disarming a peace officer

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.

Definition of “weapon”

(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.

Marginal note:Punishment

(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.

Marginal note:R.S., c. 19 (3rd Supp.), s. 11

12. Sections 274 and 275 of the Act are replaced by the following:

Marginal note:Corroboration not required

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.

Marginal note:Rules respecting recent complaint abrogated

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.

Marginal note:1992, c. 38, s. 2

13. The portion of subsection 276(1) of the Act before paragraph (a) is replaced by the following:

Marginal note:Evidence of complainant’s sexual activity

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

Marginal note:R.S., c. 19 (3rd Supp.), s. 13

14. Section 277 of the Act is replaced by the following:

Marginal note:Reputation evidence

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.

15. The Act is amended by adding the following after section 348:

Marginal note:Aggravating circumstance — home invasion

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.

Marginal note:R.S., c. 42 (4th Supp.), s. 2; 1996, c. 19, par. 70(j)

16. Section 462.47 of the French version of the Act is replaced by the following:

Marginal note:Nullité des actions contre les informateurs

462.47 Il est entendu que, sous réserve de l’article 241 de la Loi de l’impôt sur le revenu, aucune action ne peut être intentée contre une personne pour le motif qu’elle aurait révélé à un agent de la paix ou au procureur général des faits sur lesquels elle se fonde pour avoir des motifs raisonnables de soupçonner que des biens sont des produits de la criminalité ou pour croire qu’une autre personne a commis une infraction de criminalité organisée ou une infraction désignée ou s’apprête à le faire.

Marginal note:R.S., c. 27 (1st Supp.), s. 66(1)

17. (1) Subsection 482(2) of the Act is replaced by the following:

Marginal note:Power to make rules

(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.

Marginal note:R.S., c. 27 (1st Supp.), s. 66(3)

(2) Paragraph 482(3)(c) of the Act is replaced by the following:

(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

18. The Act is amended by adding the following after section 482:

Marginal note:Power to make rules respecting case management

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.

Marginal note:Compliance with directions

(2) The parties to a case shall comply with any direction made in accordance with a rule made under subsection (1).

Marginal note:Summons or warrant

(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.

Marginal note:Provisions to apply

(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).

Marginal note: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.

Marginal note: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).

Marginal note:1997, c. 18, s. 40

19. Subsection 485(1.1) of the Act is replaced by the following:

Marginal note:When accused not present

(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.

Marginal note:1997, c. 16, s. 6(1)

20. Subsection 486(2.1) of the Act is replaced by the following:

Marginal note: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.

Marginal note:R.S., c. 27 (1st Supp.), s. 78(1)

21. The portion of subsection 507(1) of the Act before paragraph (a) is replaced by the following:

Marginal note:Justice to hear informant and witnesses — public prosecutions

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,

22. The Act is amended by adding the following after section 507:

Marginal note:Referral when private prosecution

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.

Marginal note:Summons or warrant

(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.

Marginal note:Conditions for issuance

(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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Subsections 507(2) to (8) to apply

(8) Subsections 507(2) to (8) apply to proceedings under this section.

Marginal note: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.

Marginal note:1997, c. 39, s. 2

23. Paragraph 529.1(b) of the Act is replaced by the following:

(b) grounds exist to arrest the person without warrant under paragraph 495(1)(a) or (b) or section 672.91; or

Marginal note:R.S., c. 27 (1st Supp.), s. 96

24. Section 535 of the Act is replaced by the following:

Marginal note:Inquiry by justice

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.

Marginal note:R.S., c. 27 (1st Supp.), s. 96

25. (1) Subsection 536(2) of the Act is replaced by the following:

Marginal note: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?

Marginal note:R.S., c. 27 (1st Supp.), s. 96

(2) Subsection 536(4) of the Act is replaced by the following:

Marginal note: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, 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.

Marginal note:Procedure if accused elects trial by judge alone or by judge and jury or deemed election

(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, 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.

Marginal note: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.

Marginal note: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.

Marginal note:1999, c. 3, s. 35

26. Subsections 536.1(2) to (5) of the Act are replaced by the following:

Marginal note: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?

Marginal note: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, 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.

Marginal note:Procedure if accused elects trial by judge alone or by judge and jury or deemed election

(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, 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.

Marginal note: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.

Marginal note: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.

Marginal note:Jurisdiction — Nunavut

(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).

27. The Act is amended by adding the following after section 536.1:

Marginal note:Elections and re-elections in writing

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.

Procedures before Preliminary Inquiry

Marginal note:Statement of issues and witnesses

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.

Marginal note:Order for hearing

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.

Marginal note:Agreement to be recorded

(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.

Marginal note:Agreement to limit scope of preliminary inquiry

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.

28. (1) Paragraph 537(1)(i) of the Act is replaced by the following:

(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;

(2) Subsection 537(1) of the Act is amended by striking out the word “and” at the end of paragraph (j) and by adding the following after paragraph (j):

(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

(3) Section 537 of the Act is amended by adding the following after subsection (1):

Marginal note: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.

29. (1) Paragraph 540(1)(a) of the Act is replaced by the following:

(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

(2) Section 540 of the Act is amended by adding the following after subsection (6):

Marginal note:Evidence

(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.

Marginal note: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.

Marginal note: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).

Marginal note:R.S., c. 27 (1st Supp.), s. 101(3) (Sch. II, s. 3)

30. Subsection 549(2) of the Act is replaced by the following:

Marginal note: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.

Marginal note:Procedure

(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.

Marginal note:1999, c. 3, s. 38

31. Subsection 554(2) of the Act is replaced by the following:

Marginal note:Nunavut

(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.

Marginal note:R.S., c. 27 (1st Supp.), s. 106

32. Paragraph 555(3)(a) of the Act is replaced by the following:

(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

Marginal note:1999, c. 3, s. 39

33. Subsections 555.1(3) and (4) of the Act are replaced by the following:

Marginal note: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.

Marginal note: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.

Marginal note:R.S., c. 27 (1st Supp.), s. 107

34. (1) Paragraph 556(2)(b) of the Act is replaced by the following:

(b) shall, if the charge is not one over which he or she has absolute jurisdiction, fix the date for the trial or the date on which the accused corporation must appear in the trial court to have that date fixed.

Marginal note:1999, c. 3, s. 40(2)

(2) Subsection 556(3) of the Act is replaced by the following:

Marginal note:Preliminary inquiry not requested

(3) If an accused corporation 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 corporation must appear in the trial court to have that date fixed.

Marginal note:Preliminary inquiry not requested — Nunavut

(4) If an accused corporation 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 corporation must appear in the trial court to have that date fixed.

Marginal note:1999, c. 3, s. 41

35. Section 557 of the Act is replaced by the following:

Marginal note:Taking evidence

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.

Marginal note:1999, c. 3, s. 42

36. The portion of subsection 560(1) of the Act before paragraph (a) is replaced by the following:

Marginal note:Duty of judge

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

Marginal note:R.S., c. 27 (1st Supp.), s. 110

37. Subsection 561(2) of the Act is replaced by the following:

Marginal note:Right to re-elect

(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.

Marginal note:1999, c. 3, s. 43

38. (1) Subsections 561.1(1) to (3) of the Act are replaced by the following:

Marginal note:Right to re-elect with consent — Nunavut

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.

Marginal note: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.

Marginal note: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.

Marginal note:1999, c. 3, s. 43

(2) Subsections 561.1(5) to (7) of the Act are replaced by the following:

Marginal note: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.

Marginal note: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.

Marginal note:1999, c. 3, s. 44

39. Subsections 562.1(1) and (2) of the Act are replaced by the following:

Marginal note:Proceedings following re-election — Nunavut

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.

Marginal note: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.

Marginal note:1999, c. 3, s. 45

40. The portion of subsection 563.1(1) of the Act before paragraph (a) is replaced by the following:

Marginal note:Proceedings on re-election to be tried by judge without jury — Nunavut

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),

Marginal note:R.S., c. 27 (1st Supp.), s. 111

41. Subsection 565(2) of the Act is 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, with the written consent of the prosecutor, re-elect to be tried by a judge without a jury without a preliminary inquiry.

Marginal note:1999, c. 3, s. 47

42. Subsections 566.1(1) and (2) of the Act are replaced by the following:

Marginal note:Indictment — Nunavut

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.

Marginal note: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.

Marginal note:R.S., c. 27 (1st Supp), s. 111; 1999, c. 3, s. 48

43. Sections 567 to 568 of the Act are replaced by the following:

Marginal note:Mode of trial when two or more accused

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.

Marginal note:Mode of trial if two or more accused — Nunavut

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.

Marginal note:Application to Nunavut

(2) This section, and not section 567, applies in respect of criminal proceedings in Nunavut.

Marginal note:Attorney General may require trial by jury

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.

Marginal note:1999, c. 3, s. 49

44. 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 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.

Marginal note:R.S., c. 27, (1st Supp.), s. 113

45. Section 574 of the Act is replaced by the following:

Marginal note:Prosecutor may prefer indictment

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.

Marginal note: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.

Marginal note: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).

Marginal note: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.

Marginal note: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.

Marginal note:R.S., c. 27 (1st Supp.), s. 115, c. 1 (4th Supp.), s. 18 (Sch. I, s. 15) (F)

46. Section 577 of the Act is replaced by the following:

Marginal note:Direct indictments

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.

47. The Act is amended by adding the following after section 579:

Marginal note:When Attorney General does not stay proceedings

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.

Marginal note:1999, c. 3, s. 51(2)

48. Subsection 598(2) of the English version of the Act is replaced by the following:

Marginal note: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.

49. (1) Section 606 of the Act is amended by adding the following after subsection (1):

Marginal note: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.

Marginal note:Validity of plea

(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) Section 606 of the Act is amended by adding the following after subsection (4):

Marginal note:Video links

(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.

Marginal note:R.S., c. 27 (1st Supp.), s. 127, c. 1 (4th Supp.), s. 45 (Sch. III, item 6)(F)

50. Subsection 625.1(2) of the Act is replaced by the following:

Marginal note: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.

51. The Act is amended by adding the following after section 626:

Marginal note:Presiding judge

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.

52. (1) Section 631 of the Act is amended by adding the following after subsection (2):

Marginal note:Alternate jurors

(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).

Marginal note:1992, c. 41, s. 1

(2) The portion of subsection 631(3) of the Act after paragraph (b) is replaced by the following:

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 to their names 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.

Marginal note:1998, c. 9, s. 5

(3) Subsections 631(4) and (5) of the Act are replaced by the following:

Marginal note: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 the names of the jurors were drawn and shall swear any other person providing technical, personal, interpretative or other support services to a juror with a physical disability.

Marginal note:Drawing additional names if necessary

(5) If the number of persons who answer to their names under subsection (3) 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) and (4) until twelve jurors and any alternate jurors are sworn.

Marginal note:1992, c. 41, s. 2

53. Paragraph 632(b) of the Act is replaced by the following:

(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

Marginal note:1992, c. 41, s. 2

54. (1) The portion of subsection 634(2) of the Act before paragraph (a) is replaced by the following:

Marginal note:Maximum number

(2) Subject to subsections (2.1) to (4), the prosecutor and the accused are each entitled to

(2) Section 634 of the Act is amended by adding the following after subsection (2):

Marginal note:If alternate jurors

(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.

Marginal note:1992, c. 41, s. 3

55. Subsection 641(1) of the Act is replaced by the following:

Marginal note:Calling jurors who have stood by

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.

56. Subsection 642(1) of the Act is replaced by the following:

Marginal note:Summoning other jurors when panel exhausted

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.

57. The Act is amended by adding the following after section 642:

Marginal note:Substitution of alternate jurors

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.

Marginal note:Excusing of alternate jurors

(2) An alternate juror who is not required as a substitute shall be excused.

Marginal note:1992, c. 41, s. 5

58. Subsection 643(1) of the Act is replaced by the following:

Marginal note:Who shall be jury

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.

Marginal note:Names of jurors

(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.

59. Section 646 of the Act is replaced by the following:

Marginal note:Taking evidence

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.

Marginal note:1994, c. 44, s. 61

60. Subsection 650(1) of the Act is replaced by the following:

Marginal note:Accused to be present

650. (1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than a corporation, shall be present in court during the whole of his or her trial.

61. The Act is amended by adding the following after section 650:

Marginal note:Designation of counsel of record

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.

Marginal note:Contents of designation

(2) The designation must contain the name and address of the counsel and be signed by the accused and the designated counsel.

Marginal note:Effect of designation

(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.

Marginal note: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.

Marginal note:Technological appearance

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.

62. Section 657.3 of the Act is amended by adding the following after subsection (2):

Marginal note: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).

Marginal note:If notices not given

(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.

Marginal note:Additional court orders

(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.

Marginal note: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.

Marginal note:No further disclosure

(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.

63. Paragraph (b) of the definition “sentence” in section 673 of the Act is replaced by the following:

(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,

Marginal note:1995, c. 42, s. 73

64. Subsection 675(2.1) of the Act is replaced by the following:

Marginal note: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.

Marginal note:1995, c. 42, s. 74

65. Subsection 676(5) of the Act is replaced by the following:

Marginal note: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.

Marginal note:1997, c. 18, s. 95

66. Subsection 679(7) of the Act is replaced by the following:

Marginal note: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).

67. Section 683 of the Act is amended by adding the following after subsection (2):

Marginal note: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.

Marginal note: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.

68. Section 688 of the Act is amended by adding the following after subsection (2):

Marginal note:Manner of appearance

(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.

Marginal note:R.S., c. 42 (4th Supp.), s. 5; 1995, c. 22, s. 10 (Sch. I, item 30)

69. The portion of subsection 689(1) of the Act before paragraph (a) is replaced by the following:

Marginal note:Restitution or forfeiture of property

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

Marginal note:1997, c. 17, s. 4

70. Section 690 of the Act and the heading before it are repealed.

71. The Act is amended by adding the following after section 696:

PART XXI.1 APPLICATIONS FOR MINISTERIAL REVIEW — MISCARRIAGES OF JUSTICE

Marginal note:Application

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.

Marginal note:Form of application

(2) The application must be in the form, contain the information and be accompanied by any documents prescribed by the regulations.

Marginal note:Review of applications

696.2 (1) On receipt of an application under this Part, the Minister of Justice shall review it in accordance with the regulations.

Marginal note:Powers of investigation

(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.

Marginal note:Delegation

(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).

Definition of “court of appeal”

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.

Marginal note:Power to refer

(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.

Marginal note: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.

Marginal note:No appeal

(4) A decision of the Minister of Justice made under subsection (3) is final and is not subject to appeal.

Marginal note:Considerations

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.

Marginal note:Annual report

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.

Marginal note:Regulations

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.

72. Section 715 of the Act is amended by adding the following after subsection (3):

Marginal note:Exception

(4) Subsections (1) to (3) do not apply in respect of evidence received under subsection 540(7).

Marginal note:1995, c. 22, s. 6

73. Section 731.1 of the Act is replaced by the following:

Marginal note:Firearm, etc., prohibitions

731.1 (1) Before making a probation order, the court shall consider whether section 109 or 110 is applicable.

Marginal note: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.

Marginal note:1995, c. 22, s. 6

74. Section 734.3 of the Act is replaced by the following:

Marginal note:Change in terms of order

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.

Marginal note:1995, c. 22, s. 6

75. Section 742.2 of the Act is replaced by the following:

Marginal note:Firearm, etc., prohibitions

742.2 (1) Before imposing a conditional sentence under section 742.1, the court shall consider whether section 109 or 110 is applicable.

Marginal note:Application of section 109 or 110

(2) For greater certainty, a condition of a conditional sentence referred to in paragraph 742.3(2)(b) does not affect the operation of section 109 or 110.

Marginal note:1997, c. 17, s. 4

76. Paragraph 753.1(2)(a) of the Act is replaced by the following:

(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

77. The Act is amended by adding the following after section 774:

Marginal note:Appearance in person — habeas corpus

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.

Marginal note:1999, c. 25, s. 23

78. Paragraph (b) of the definition “sentence” in section 785 of the Act is replaced by the following:

(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,

79. The Act is amended by adding the following after section 802:

Marginal note:Limitation on the use of agents

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.

Marginal note:1997, c. 23, s. 19

80. (1) Subsection 810.01(2) of the Act is replaced by the following:

Marginal note:Appearances

(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge.

Marginal note:1997, c. 23, s. 19

(2) Subsection 810.01(6) of the Act is replaced by the following:

Marginal note:Variance of conditions

(6) A provincial court judge may, on application of the informant, the Attorney General or the defendant, vary the conditions fixed in the recognizance.

Marginal note:1993, c. 45, s. 11; 1997, c. 18, s. 113(1)(F)

81. (1) Subsections 810.1(1) to (3) of the Act are replaced by the following:

Marginal note:Where fear of sexual offence

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.

Marginal note:Appearances

(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge.

Marginal note:Adjudication

(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.

Marginal note:1993, c. 45, s. 11

(2) Subsection 810.1(4) of the Act is replaced by the following:

Marginal note: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.

Marginal note:1997, c. 17, s. 9(1)

82. (1) Subsection 810.2(2) of the Act is replaced by the following:

Marginal note:Appearances

(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge.

Marginal note:1997, c. 17, s. 9(1)

(2) Subsection 810.2(7) of the Act is replaced by the following:

Marginal note:Variance of conditions

(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.

83. Subsection 822(4) of the Act is replaced by the following:

Marginal note:Trial de novo

(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.

Marginal note:R.S., c. 31 (4th Supp.), s. 97

84. Section 841 of the Act and the headings before it are replaced by the following:

PART XXVIII MISCELLANEOUS

Electronic Documents

Marginal note:Definitions

841. The definitions in this section apply in this section and in sections 842 to 847.

“data”

« données »

“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.

Marginal note:Dealing with data in court

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.

Marginal note:Transfer of data

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.

Marginal note:Time of filing

(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.

Marginal note:Documents in writing

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.

Marginal note:Signatures

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.

Marginal note:Oaths

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.

Marginal note:Copies

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.

Remote Appearance by Incarcerated Accused

Marginal note:Condition for remote appearance

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.

Forms

Marginal note:Forms

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.

Marginal note:Seal not required

(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.

Marginal note:Official languages

(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.

Marginal note:1997, c. 39, s. 3

85. Paragraph (b) of Form 7.1 of Part XXVIII of the Act is replaced by the following:

(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

Marginal note:1997, c. 18, s. 115

86. The portion of Form 11.1 of Part XXVIII of the French version of the Act before paragraph (a) is replaced by the following:

Formule 11.1(articles 493, 499 et 503)Promesse remise à un agent de la paix ou à un fonctionnaire responsable

Canada,

Province de ................,

(circonscription territoriale).

Moi, A.B., de ................, (profession ou occupation), je comprends qu’il est allégué que j’ai commis (indiquer l’essentiel de l’infraction).

Afin de pouvoir être mis en liberté, je m’engage, par (cette promesse de comparaître ou cet engagement) (insérer toutes les conditions qui sont fixées) :

R.S., c. N-4 NATIONAL CAPITAL ACT

87. Subsection 20(2) of the National Capital Act is replaced by the following:

Marginal note:Punishment

(2) The Governor in Council may by regulation prescribe the punishment that may be imposed on summary conviction for the contravention of any regulation made under subsection (1), but the punishment so prescribed shall not exceed that set out in subsection 787(1) of the Criminal Code.

R.S., c. N-5 NATIONAL DEFENCE ACT

88. The National Defence Act is amended by adding the following after section 196.25:

Division 6.2Identification of Accused Persons and Offenders

Meaning of “designated offence”

196.26 In this Division, “designated offence” means an offence under any of the following provisions of this Act:

(a) paragraphs 75(a) to (d) (offences related to security);

(b) paragraphs 77(a) and (d) to (i) (offences related to operations);

(c) section 78 (spying for the enemy);

(d) section 79 (mutiny with violence);

(e) section 80 (mutiny without violence);

(f) paragraphs 81(a) and (b) (offences related to mutiny);

(g) section 84 (striking or offering violence to a superior officer);

(h) paragraphs 87(a) to (c) (resisting arrest or custody);

(i) section 95 (abuse of subordinates);

(j) section 100 (setting free without authority or allowing or assisting escape);

(k) section 101 (escape from custody);

(l) section 101.1 (failure to comply with conditions);

(m) section 102 (hindering arrest or confinement or withholding assistance);

(n) paragraphs 111(1)(a) and (b) (improper driving of vehicles);

(o) section 113 (causing fires);

(p) section 114 (stealing);

(q) section 115 (receiving);

(r) paragraphs 116(a) and (b) (destruction, damage, loss or improper disposal), if the conduct is wilful;

(s) paragraphs 117(a) to (d) and (f) (miscellaneous offences), except where the offender unlawfully obtains transportation by fraud;

(t) section 118 (offences in relation to tribunals);

(u) section 118.1 (failure to appear or attend);

(v) section 119 (false evidence);

(w) section 124 (negligent performance of duties), if the negligence results in death or bodily harm;

(x) section 127 (negligent handling of dangerous substances);

(y) section 128 (conspiracy); or

(z) section 130 (service trial of civil offences), if the act or omission is punishable under any other Act of Parliament and constitutes an offence under that other Act that is an indictable offence or is deemed to be an indictable offence by paragraph 34(1)(a) of the Interpretation Act.

Marginal note:Fingerprints and photographs

196.27 (1) Any person who is charged with, or convicted by a court martial of, a designated offence may be fingerprinted or photographed or subjected to any other measurement, process or operation having the object of identifying persons that is approved by order of the Governor in Council under the Identification of Criminals Act.

Marginal note:Use of force

(2) Such force may be used as is necessary to the effectual carrying out and application of the measurements, processes and operations described in subsection (1).

Marginal note:Publication

(3) The results of the measurements, processes and operations to which a person has been subjected under subsection (1) may be published for the purpose of affording information to peace officers within the meaning of Division 6.1 and others engaged in the execution or administration of the law.

Marginal note:No liability for acting under this Division

196.28 No civil or criminal liability shall be incurred by any person for anything lawfully done under this Division or by any person concerned in the publication of results for the purpose of subsection 196.27(3).

Marginal note:Destruction of fingerprints, photographs, etc.

196.29 Fingerprints, photographs and other measurements that are taken under subsection 196.27(1) from a person who is charged with a designated offence shall be destroyed without delay

(a) if the person is tried by summary trial in respect of that charge; or

(b) on application by the person, if the charge has not been proceeded with in the three years after the charge is laid.

R.S., c. Y-1 YOUNG OFFENDERS ACT

Marginal note:1995, c. 19, s. 12(2)

89. Subsection 19(5.1) of the Young Offenders Act is replaced by the following:

Marginal note:Preliminary inquiry

(5.1) Where a young person elects or is deemed to have elected to be tried by a judge of a superior court of criminal jurisdiction with a jury, the youth court shall, on the request of the young person or the prosecutor made at that time or within the period fixed by rules of court made under section 67 or 68 or, if there are no such rules, by the youth court judge, conduct a preliminary inquiry and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be before a judge of the superior court of criminal jurisdiction with a jury.

Marginal note:1999, c. 3, s. 88

90. (1) Paragraph 19.1(4)(a) of the Act is replaced by the following:

(a) to be tried by a judge of the Nunavut Court of Justice, acting as a youth court, with a jury, or

Marginal note:1999, c. 3, s. 88

(2) Subsection 19.1(6) of the Act is replaced by the following:

Marginal note:Preliminary inquiry — Nunavut

(6) If a young person elects or is deemed to have elected under paragraph (4)(b), the youth court shall, on the request of the young person or the prosecutor made at that time or within the period fixed by rules of court made under section 67 or 68 or, if there are no such rules, by the youth court judge, conduct a preliminary inquiry and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be before a judge of the Nunavut Court of Justice, acting as a youth court, with a jury.

COORDINATING AMENDMENTS

Marginal note:Bill C-7

91. (1) If Bill C-7, introduced in the 1st session of the 37th Parliament and entitled the Youth Criminal Justice Act (the “other Act”), receives royal assent, then

(a) paragraph 32(3)(c) of the other Act is replaced by the following:

(c) explain that the young person may plead guilty or not guilty to the charge or, if subsection 67(1) (election of court for trial — adult sentence) or (3) (election of court for trial in Nunavut — adult sentence) applies, explain that the young person may elect to be tried by a youth justice court judge without a jury and without having a preliminary inquiry, or to have a preliminary inquiry and be tried by a judge without a jury, or to have a preliminary inquiry and be tried by a court composed of a judge and jury and, in either of the latter two cases, a preliminary inquiry will only be conducted if requested by the young person or the prosecutor.

(b) subsection 67(2) of the other Act is replaced by the following:

Marginal note:Wording of election

(2) The youth justice court shall put the young person to his or her election in the following words:

You have the option to elect to be tried by a youth justice 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?

(c) subsection 67(4) of the other Act is replaced by the following:

Marginal note:Wording of election

(4) The youth justice court shall put the young person to his or her election in the following words:

You have the option to elect to be tried by a judge of the Nunavut Court of Justice alone, acting as a youth justice court without a jury and without a preliminary inquiry; or you may elect to be tried by a judge of the Nunavut Court of Justice, acting as a youth justice court without a jury; or you may elect to be tried by a judge of the Nunavut Court of Justice, acting as a youth justice court with a jury. If you elect to be tried by a judge without a jury or by a judge, acting as a youth justice court, with a jury or if you are deemed to have elected to be tried by a judge, acting as a youth justice court, with a jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?

(d) paragraph 67(5)(b) of the other Act is replaced by the following:

(b) if the judge declines to do so, shall hold a preliminary inquiry, if requested to do so by one of the parties, unless a preliminary inquiry has been held prior to the election, re-election or deemed election.

(e) subsection 67(7) of the other Act is replaced by the following:

Marginal note:Preliminary inquiry

(7) When a young person elects to be tried by a judge without a jury, or elects or is deemed to have elected to be tried by a court composed of a judge and jury, the youth justice court referred to in subsection 13(1) shall, on the request of the young person or the prosecutor made at that time or within the period fixed by rules of court made under section 17 or 155 or, if there are no such rules, by the youth justice court judge, conduct a preliminary inquiry and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be conducted

(a) before a judge without a jury or a court composed of a judge and jury, as the case may be; or

(b) in Nunavut, before a judge of the Nunavut Court of Justice acting as a youth justice court, with or without a jury, as the case may be.

Marginal note:Preliminary inquiry if two or more accused

(7.1) If two or more young persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (7), a preliminary inquiry must be held with respect to all of them.

Marginal note:When no request for preliminary inquiry

(7.2) If no request for a preliminary inquiry is made under subsection (7), the youth justice court shall fix the date for the trial or the date on which the young person must appear in the trial court to have the date fixed.

Marginal note:Coming into force

(2) Subsection (1) comes into force

(a) in the case of paragraph (a), on the later of the coming into force of section 25 of this Act and section 32 of the other Act; and

(b) in the case of paragraphs (b) to (e), on the later of the coming into force of section 25 of this Act and section 67 of the other Act.

Marginal note:Bill C-7

92. If Bill C-7, introduced in the 1st session of the 37th Parliament and entitled the Youth Criminal Justice Act (the “other Act”), receives royal assent, then the heading before section 89 and sections 89 and 90 of this Act are repealed if section 199 of the other Act comes into force before sections 89 and 90 of this Act come into force.

COMING INTO FORCE

Marginal note:Coming into force

93. The provisions of this Act, other than sections 91 and 92, and the provisions of any Act as enacted by this Act, come into force on a day or days to be fixed by order of the Governor in Council.
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