Criminal Law Amendment Act, 2001 (S.C. 2002, c. 13)
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Assented to 2002-06-04
R.S., c. C-46CRIMINAL CODE
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.1APPLICATIONS 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.
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