Note: Any text in
italics is
commentary by
myself, and not actually in the
criminal code. This part of the code is quite long, and will have to be broken up into three sections, this being the 2nd section.
Previous Part
Index
Offences Against the Person and Reputation: Section 1 of 3
Offences Against the Person and Reputation: Section 3 of 3
Evidence of failure to comply with demand
(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made to him by a peace officer under section 254 is admissible and the court may draw an inference therefrom adverse to the accused.
Release of specimen for testing
(4) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the accused made within six months from the day on which samples of the blood of the accused were taken, order the release of one of the samples for the purpose of an examination or analysis thereof, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the sample and its preservation for use in any proceedings in respect of which it was retained.
Testing blood for presence of drugs
(5) Where a sample of blood of an accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256, the sample may be tested for the presence of drugs in the blood of the accused.
Attendance and right to cross-examine
(6) A party against whom a certificate described in paragraph (1)(e), (f), (g), (h) or (i) is produced may, with leave of the court, require the attendance of the qualified medical practitioner, analyst or qualified technician, as the case may be, for the purposes of cross-examination.
Notice of intention to produce certificate
(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10.
Mandatory order of
prohibition
259. (1) When an offender is convicted of an offence committed under section 253 or 254 or discharged under section 730 of an offence committed under section 253 and, at the time the offence was committed or, in the case of an offence committed under section 254, within the three hours preceding that time, was operating or had the care or control of a
motor vehicle,
vessel or
aircraft or of
railway equipment or was assisting in the operation of an aircraft or of railway equipment, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be,
(a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year;
(b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and
(c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.
Exception where Alcohol
Ignition Interlock Program
(1.1) Notwithstanding paragraph (1)(a), where the
lieutenant governor in council of the province in which the prohibition order under paragraph (1)(a) is to be made has established a program governing the use of an alcohol ignition interlock device by an offender convicted of an offence for which the order is to be made, the minimum period of not less than one year is reduced to a period of not less than three months, if the offender participates in the program during the remainder of the one year period.
I do believe this is a device that requires you to blow into a tube, and your car will not be able to start unless it reads that your breath is free of alcohol. A useful program.
Discretionary order of prohibition
(2) Where an offender is convicted or discharged under section 730 of an offence under section 220, 221, 236, 249, 249.1, 250, 251 or 252, subsection 255(2) or (3) or this section committed by means of a motor vehicle, vessel or aircraft or of railway equipment, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel, an aircraft or railway equipment, as the case may be
(a) during any period that the court considers proper, if the offender is liable to
imprisonment for life in respect of that offence;
(b) during any period not exceeding ten years plus any period to which the offender is sentenced to imprisonment, if the offender is liable to imprisonment for more than five years but less than life in respect of that offence; and
(c) during any period not exceeding three years plus any period to which the offender is sentenced to imprisonment, in any other case.
Saving
(3) No order made under subsection (1) or (2) shall operate to prevent any person from acting as master, mate or engineer of a vessel that is required to carry officers holding certificates as master, mate or engineer.
Operation while
disqualified
(4) Every one who operates a motor vehicle, vessel or aircraft or any railway equipment in
Canada while disqualified from doing so
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
Definition of "disqualification"
(5) For the purposes of this section, "disqualification" means
(a) a prohibition from operating a motor vehicle, vessel or aircraft or any railway equipment ordered pursuant to subsection (1) or (2); or
(b) a disqualification or any other form of legal
restriction of the
right or
privilege to
operate a motor vehicle,
vessel or
aircraft imposed
(i) in the case of a motor vehicle, under the law of a
province, or
(ii) in the case of a vessel or an aircraft, under an
Act of
Parliament,
in respect of a
conviction or
discharge under section 730 of any offence referred to in subsection (1) or (2).
R.S., 1985, c. C-46, s. 259; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F), c. 32 (4th Supp.), s. 62; 1995, c. 22, ss. 10, 18; 1997, c. 18, s. 11; 1999, c. 32, s. 5(Preamble); 2000, c. 2, s. 2.
Proceedings on making of prohibition order
260. (1) Where a court makes a prohibition order under subsection 259(1) or (2) in relation to an offender, it shall cause
(a) the order to be read by or to the offender;
(b) a copy of the order to be given to the offender; and
(c) the offender to be informed of subsection 259(4).
Endorsement by offender
(2) After subsection (1) has been complied with in relation to an offender who is bound by an order referred to in that subsection, the offender shall endorse the order, acknowledging receipt of a copy thereof and that the order has been explained to him.
Validity of order not affected
(3) The failure of an offender to endorse an order pursuant to subsection (2) does not affect the validity of the order.
Onus
(4) In the absence of evidence to the contrary, where it is proved that a disqualification referred to in paragraph 259(5)(b) has been imposed on a person and that notice of the disqualification has been mailed by registered or certified mail to that person, that person shall, after five days following the mailing of the notice, be deemed to have received the notice and to have knowledge of the disqualification, of the date of its commencement and of its duration.
Certificate admissible in evidence
(5) In proceedings under section 259, a certificate setting out with reasonable particularity that a person is disqualified from
(a) driving a motor vehicle in a province, purporting to be signed by the registrar of motor vehicles for that province, or
(b) operating a vessel or aircraft, purporting to be signed by the Minister of Transport or any person authorized by the Minister of Transport for that purpose
is evidence of the facts alleged therein without proof of the signature or official character of the person by whom it purports to be signed.
Notice to accused
(6) Subsection (5) does not apply in any proceedings unless at least seven days notice in writing is given to the accused that it is intended to tender the certificate in evidence.
Definition of "
registrar of motor vehicles"
(7) In subsection (5), "registrar of motor vehicles" includes the
deputy of that registrar and any other person or body, by whatever name or title designated, that from time to time performs the duties of superintending the registration of motor vehicles in the province.
R.S., 1985, c. C-46, s. 260; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F).
Stay of order pending appeal
261. (1) Where an appeal is taken against a conviction or discharge under section 730 for an offence committed under any of sections 220, 221, 236, 249 to 255 and 259, a judge of the court being appealed to may direct that any order under subsection 259(1) or (2) arising out of the conviction or discharge shall, on such conditions as the judge or court may impose, be stayed pending the final disposition of the appeal or until otherwise ordered by that court.
Effect of conditions
(2) Where conditions are imposed pursuant to a direction made under subsection (1) that a prohibition order under subsection 259(1) or (2) be stayed, the direction shall not operate to decrease the period of prohibition provided in the order made under subsection 259(1) or (2).
R.S., 1985, c. C-46, s. 261; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F); 1994, c. 44, ss. 15, 103; 1995, c. 22, s. 10; 1997, c. 18, ss. 12, 141.
Holy cow. The section dealing with freaking drunk driving and the consequences thereof was a full twenty percent of this section of the criminal code. Murder had nothing on it.
Impeding attempt to save life
262. Every one who
(a)
prevents or
impedes or attempts to prevent or impede any
person who is attempting to save his own life, or
(b) without
reasonable cause prevents or impedes or attempts to prevent or impede any person who is attempting to save the life of another person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
R.S., c. C-34, s. 241.
Duty to
safeguard opening in ice
So put up a freaking sign already.
263. (1) Every one who makes or causes to be made an opening in ice that is open to or frequented by the public is under a legal duty to guard it in a manner that is adequate to prevent persons from falling in by accident and is adequate to
warn them that the opening exists.
Excavation on land
Or maybe some of those flashing signs you see on construction sites.
(2) Every one who leaves an excavation on land that he owns or of which he has charge or supervision is under a legal duty to guard it in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the excavation exists.
Offences
(3) Every one who fails to perform a duty imposed by subsection (1) or (2) is guilty of
(a)
manslaughter, if the death of any person results therefrom;
(b) an offence under section 269, if bodily harm to any person results therefrom; or
(c) an offence punishable on summary conviction.
R.S., c. C-34, s. 242; 1980-81-82-83, c. 125, s. 18.
Criminal
harassment No stalking people.
264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
Prohibited
conduct
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c)
besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
Punishment
(3) Every person who contravenes this section is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
Factors to be considered
(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened
(a) the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810, 810.1 or 810.2; or
(b) the terms or conditions of any other order or recognizance made or entered into under the common law or a provision of this or any other Act of
Parliament or of a
province that is similar in effect to an order or recognizance referred to in paragraph (a).
Reasons
(5) Where the court is satisfied of the existence of an aggravating factor referred to in subsection (4), but decides not to give effect to it for sentencing purposes, the court shall give reasons for its decision.
R.S., 1985, c. C-46, s. 264; R.S., 1985, c. 27 (1st Supp.), s. 37; 1993, c. 45, s. 2; 1997, c. 16, s. 4, c. 17, s. 9.
Assaults
Uttering threats
264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;
(b) to
burn,
destroy or damage real or personal
property; or
(c) to kill, poison or injure an animal or bird that is the property of any person.
Punishment
(2) Every one who commits an offence under paragraph (1)(a) is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Idem
(3) Every one who commits an offence under paragraph (1)(b) or (c)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
R.S., 1985, c. 27 (1st Supp.), s. 38; 1994, c. 44, s. 16.
Assault
265. (1) A person commits an assault when
(a)
without the
consent of another person, he applies
force intentionally to that other person, directly or indirectly;
I like the without consent clause. Glad to see we"re still allowed our BDSM.
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a
weapon or an imitation thereof, he
accosts or impedes another person or begs.
Application
(2) This section applies to all forms of assault, including
sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
Consent
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c)
fraud; or
(d) the
exercise of
authority.
Accused's belief as to consent
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is
sufficient evidence and that, if believed by the jury, the evidence would
constitute a
defence, shall instruct the jury, when reviewing all the
evidence relating to the
determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.
R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.
Assault
266. Every one who commits an assault is guilty of
(a) an indictable offence and is liable to
imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
R.S., c. C-34, s. 245; 1972, c. 13, s. 21; 1974-75-76, c. 93, s. 22; 1980-81-82-83, c. 125, s. 19.
Assault with a
weapon or causing bodily harm
267. Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
R.S., 1985, c. C-46, s. 267; 1994, c. 44, s. 17.
Aggravated assault
268. (1) Every one commits an aggravated assault who wounds,
maims,
disfigures or
endangers the
life of the
complainant.
Punishment
(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Excision
(3) For greater certainty, in this section, "
wounds" or "maims" includes to excise,
infibulate or
mutilate, in whole or in part, the
labia majora,
labia minora or
clitoris of a person, except where
(a) a surgical procedure is performed, by a person duly qualified by
provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal
reproductive functions or normal
sexual appearance or function; or
(b) the person is at least eighteen years of age and there is no resulting bodily harm.
Consent
(4) For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).
This would be the section specifically outlawing female circumcision, aka female genital mutilation.
R.S., 1985, c. C-46, s. 268; 1997, c. 16, s. 5.
Unlawfully causing bodily harm
269. Every one who unlawfully causes bodily harm to any person is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
R.S., 1985, c. C-46, s. 269; 1994, c. 44, s. 18.
Torture
269.1 (1) Every official, or every person acting at the
instigation of or with the consent or
acquiescence of an
official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Definitions
(2) For the purposes of this section,
"official" «fonctionnaire»
"official" means
(a) a
peace officer,
(b) a public officer,
(c) a member of the
Canadian Forces, or
(d) any person who may exercise powers, pursuant to a law in force in a foreign state, that would, in Canada, be exercised by a person referred to in paragraph (a), (b), or (c),
whether the person exercises powers in Canada or outside Canada;
"torture" «torture»
"torture" means any act or omission by which severe pain or
suffering, whether
physical or
mental, is intentionally inflicted on a person
(a) for a purpose including
(i) obtaining from the person or from a third person
information or a statement,
(ii)
punishing the person for an act that the person or a third person has committed or is suspected of having committed, and
(iii)
intimidating or
coercing the person or a third person, or
(b) for any reason based on
discrimination of any kind,
but does not include any act or
omission arising only from,
inherent in or
Incidental to lawful sanctions.
No
defence
(3) It is no defence to a charge under this section that the accused was ordered by a superior or a public authority to perform the act or omission that forms the subject-matter of the charge or that the act or omission is alleged to have been justified by exceptional circumstances, including a state of
war, a threat of war,
internal political instability or any other public emergency.
That excuse didn"t work for the Nazis, don"t expect it to work for you.
Evidence
(4) In any proceedings over which Parliament has jurisdiction, any statement obtained as a result of the commission of an offence under this section is inadmissible in evidence, except as evidence that the statement was so obtained.
R.S., 1985, c. 10 (3rd Supp.), s. 2.
Assaulting a
peace officer If you feel like getting your ass beaten down, try punching a cop.
270. (1) Every one commits an offence who
(a) assaults a public officer or peace officer engaged in the
execution of his duty or a person acting in aid of such an officer;
(b) assaults a person with intent to
resist or prevent the lawful
arrest or
detention of himself or another person; or
(c) assaults a person
(i) who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
(ii) with intent to rescue anything taken under lawful process, distress or seizure.
Punishment
(2) Every one who commits an offence under subsection (1) is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
R.S., c. C-34, s. 246; 1972, c. 13, s. 22; 1980-81-82-83, c. 125, s. 19.
Sexual assault
271. (1) Every one who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
And once you get there, I hear that you"re a lot more likely to be beaten up on a regular basis.
(2)
Repealed, R.S., 1985, c. 19 (3rd Supp.), s. 10
R.S., 1985, c. C-46, s. 271; R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19.
Sexual assault with a weapon, threats to a third party or causing bodily harm
272. (1) Every person commits an offence who, in committing a sexual assault,
(a) carries, uses or threatens to use a weapon or an imitation of a weapon;
(b)
threatens to cause bodily harm to a person other than the complainant;
(c) causes bodily harm to the
complainant; or
(d) is a party to the offence with any other person.
Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable
(a) where a
firearm is used in the commission of the offence, to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 272; 1995, c. 39, s. 145.
Aggravated sexual assault
273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
Aggravated sexual assault
(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
R.S., 1985, c. C-46, s. 273; 1995, c. 39, s. 146.
Meaning of "
consent"
273.1 (1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the
voluntary agreement of the complainant to engage in the sexual activity in question.
Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is
incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a
position of
trust,
power or
authority;
So you say I"ll get an A in your class…
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in
sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Subsection (2) not limiting
(3) Nothing in subsection (2) shall be construed as limiting the
circumstances in which no consent is obtained.
1992, c. 38, s. 1.
Where belief in consent not a defence
273.2 It is not a
defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused's belief arose from the accused's
(i) self-induced
intoxication, or
(ii)
recklessness or wilful
blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the
complainant was consenting.
1992, c. 38, s. 1.
Removal of child from Canada
No you sick pervert, you can't grab a 13 year old you want to fuck and take them somewhere where it's legal.
273.3 (1) No person shall do anything for the purpose of removing from Canada a person who is ordinarily resident in Canada and who is
(a) under the age of fourteen years, with the intention that an act be committed outside
Canada that if it were committed in Canada would be an offence against section 151 or 152 or subsection 160(3) or 173(2) in respect of that person;
(b) fourteen years of age or more but under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 153 in respect of that person; or
(c) under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 155 or 159, subsection 160(2) or section 170, 171, 267, 268, 269, 271, 272 or 273 in respect of that person.
Punishment
(2) Every person who contravenes this section is guilty of
(a) an indictable offence and is liable to
imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
Plus no one gets their ass kicked more in jail than pedophiles.
1993, c. 45, s. 3; 1997, c. 18, s. 13.
Corroboration not required
274. Where an accused is charged with an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 212, 271, 272 or 273, no corroboration is required for a conviction and the
judge shall not instruct the
jury that it is unsafe to find the accused guilty in the absence of corroboration.
R.S., 1985, c. C-46, s. 274; R.S., 1985, c. 19 (3rd Supp.), s. 11.
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, 155 and 159, subsections 160(2) and (3), and sections 170, 171, 172, 173, 271, 272 and 273.
R.S., 1985, c. C-46, s. 275; R.S., 1985, c. 19 (3rd Supp.), s. 11.
Evidence of complainant's sexual activity
It doesn't matter if the kid is a slut, you still can"t touch em.
276. (1) In proceedings in respect of an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
Idem
(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant
probative value that is not substantially outweighed by the danger of
prejudice to the proper administration of justice.
Factors that judge must consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b)
society's interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just
determination in the case;
(d) the need to remove from the fact-finding process any
discriminatory belief or
bias;
(e) the risk that the evidence may unduly arouse
sentiments of
prejudice,
sympathy or
hostility in the jury;
(f) the potential prejudice to the complainant's personal
dignity and right of
privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
R.S., 1985, c. C-46, s. 276; R.S., 1985, c. 19 (3rd Supp.), s. 12; 1992, c. 38, s. 2.
Application for hearing
276.1 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 276.2 to determine whether evidence is admissible under subsection 276(2).
Form and content of application
(2) An application referred to in subsection (1) must be made in writing and set out
(a)
detailed particulars of the
evidence that the accused seeks to adduce, and
(b) the relevance of that evidence to an issue at trial,
and a copy of the application must be given to the prosecutor and to the clerk of the court.
Jury and public excluded
(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.
Judge may decide to hold hearing
(4) Where the judge, provincial court judge or justice is satisfied
(a) that the application was made in accordance with subsection (2),
(b) that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and
(c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2),
the judge, provincial court judge or justice shall grant the application and hold a hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2).
1992, c. 38, s. 2.
Jury and public excluded
276.2 (1) At a hearing to determine whether
evidence is
admissible under subsection 276(2), the jury and the public shall be excluded.
Complainant not compellable
(2) The complainant is not a compellable witness at the hearing.
Judge's determination and reasons
(3) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part thereof, is admissible under subsection 276(2) and shall provide reasons for that determination, and
(a) where not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;
(b) the reasons must state the factors referred to in subsection 276(3) that affected the determination; and
(c) where all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.
Record of reasons
(4) The reasons provided under subsection (3) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.
1992, c. 38, s. 2.
Publication prohibited
i
A protection of the privacy of the people involved. I know I don"t want details of my sex life being published in the paper, do you?
276.3 (1) No person shall publish in a
newspaper, as defined in section 297, or in a
broadcast, any of the following:
(a) the contents of an application made under section 276.1;
(b) any
evidence taken, the information given and the
representations made at an application under section 276.1 or at a hearing under section 276.2;
(c) the decision of a judge, provincial court judge or justice under subsection 276.1(4), unless the judge, provincial court judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the decision may be published; and
(d) the determination made and the reasons provided under section 276.2, unless
(i) that determination is that evidence is admissible, or
(ii) the judge, provincial court judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the determination and reasons may be published.
Offence
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
1992, c. 38, s. 2.
Judge to instruct jury re use of evidence
276.4 Where evidence is admitted at trial pursuant to a determination made under section 276.2, the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence.
1992, c. 38, s. 2.
Appeal
276.5 For the purposes of sections 675 and 676, a determination made under section 276.2 shall be deemed to be a question of law.
1992, c. 38, s. 2.
Reputation evidence
277. In proceedings in respect of an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the
credibility of the complainant.
R.S., 1985, c. C-46, s. 277; R.S., 1985, c. 19 (3rd Supp.), s. 13.
Spouse may be charged
278. A husband or wife may be charged with an offence under section 271, 272 or 273 in respect of his or her spouse, whether or not the spouses were living together at the time the activity that forms the subject-matter of the charge occurred.
1980-81-82-83, c. 125, s. 19.
Definition of "record"
278.1 For the purposes of sections 278.2 to 278.9, "record" means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
1997, c. 30, s. 1.
Production of record to accused
278.2 (1) No record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of
(a) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272 or 273,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
or in any proceedings in respect of two or more offences that include an offence referred to in any of paragraphs (a) to (c), except in accordance with sections 278.3 to 278.91.
Application of provisions
(2) Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.
Duty of prosecutor to give notice
(3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor's possession but, in doing so, the prosecutor shall not disclose the record's contents.
1997, c. 30, s. 1; 1998, c. 9, s. 3.
Application for production
278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.
No application in other proceedings
(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.
Form and content of application
(3) An application must be made in writing and set out
(a) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; and
(b) the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify.
Insufficient grounds
(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:
(a) that the record exists;
(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;
(c) that the record relates to the incident that is the subject-matter of the proceedings;
(d) that the record may disclose a prior inconsistent statement of the complainant or witness;
(e) that the record may relate to the credibility of the complainant or witness;
(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;
(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;
(h) that the record relates to the sexual activity of the complainant with any person, including the accused;
(i) that the record relates to the presence or absence of a recent complaint;
(j) that the record relates to the complainant's sexual reputation; or
(k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.
Service of application and subpoena
(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least seven days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.
Service on other persons
(6) The judge may at any time order that the application be served on any person to whom the judge considers the record may relate.
1997, c. 30, s. 1.
Hearing
in camera
278.4 (1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.
Persons who may appear at hearing
(2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.
Costs
(3) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing.
1997, c. 30, s. 1.
Judge may order production of record for review
278.5 (1) The
judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that
(a) the application was made in accordance with subsections 278.3(2) to (6);
(b) the accused has
established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and
(c) the production of the record is necessary in the interests of justice.
Factors to be considered
(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused's right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account:
(a) the extent to which the record is
necessary for the accused to make a full answer and defence;
(b) the probative value of the record;
(c) the nature and extent of the reasonable
expectation of privacy with respect to the record;
(d) whether production of the record is based on a discriminatory belief or bias;
(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;
(f) society's interest in encouraging the reporting of sexual offences;
(g) society's interest in encouraging the obtaining of treatment by complainants of sexual offences; and
(h) the effect of the determination on the integrity of the trial process.
1997, c. 30, s. 1.
Review of record by judge
278.6 (1) Where the judge has ordered the production of the record or part of the record for review, the judge shall review it in the absence of the parties in order to determine whether the record or part of the record should be produced to the accused.
Hearing in camera
(2) The judge may hold a hearing in camera if the judge considers that it will assist in making the determination.
Provisions re hearing
(3) Subsections 278.4(2) and (3) apply in the case of a hearing under subsection (2).
1997, c. 30, s. 1.
Judge may order
production of record to accused
278.7 (1) Where the judge is satisfied that the record or part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of justice, the judge may order that the record or part of the record that is likely relevant be produced to the accused, subject to any conditions that may be imposed pursuant to subsection (3).
Factors to be considered
(2) In determining whether to order the production of the record or part of the record to the accused, the judge shall consider the salutary and deleterious effects of the determination on the accused's right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account.
Conditions on production
(3) Where the judge orders the production of the record or part of the record to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy and equality interests of the complainant or witness, as the case may be, and any other person to whom the record relates, including, for example, the following conditions:
(a) that the record be edited as directed by the judge;
(b) that a copy of the record, rather than the original, be produced;
(c) that the accused and counsel for the accused not disclose the contents of the record to any other person, except with the approval of the court;
(d) that the record be viewed only at the offices of the court;
(e) that no copies of the record be made or that restrictions be imposed on the number of copies of the record that may be made; and
(f) that information regarding any person named in the record, such as their address, telephone number and place of employment, be severed from the record.
Copy to prosecutor
(4) Where the judge orders the production of the record or part of the record to the accused, the judge shall direct that a copy of the record or part of the record be provided to the prosecutor, unless the judge determines that it is not in the interests of justice to do so.
Record not to be used in other proceedings
(5) The record or part of the record that is produced to the accused pursuant to an order under subsection (1) shall not be used in any other proceedings.
Retention of record by court
(6) Where the judge refuses to order the production of the record or part of the record to the accused, the record or part of the record shall, unless a court orders otherwise, be kept in a sealed package by the court until the later of the expiration of the time for any appeal and the completion of any appeal in the proceedings against the accused, whereupon the record or part of the record shall be returned to the person lawfully entitled to possession or control of it.
1997, c. 30, s. 1.
Reasons for decision
278.8 (1) The judge shall provide reasons for ordering or refusing to order the production of the record or part of the record pursuant to subsection 278.5(1) or 278.7(1).
Record of reasons
(2) The reasons referred to in subsection (1) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.
1997, c. 30, s. 1.
Publication prohibited
278.9 (1) No person shall publish in a newspaper, as defined in section 297, or in a broadcast, any of the following:
(a) the contents of an application made under section 278.3;
(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or
(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.
Offence
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
1997, c. 30, s. 1.
Appeal
278.91 For the purposes of sections 675 and 676, a determination to make or refuse to make an order pursuant to subsection 278.5(1) or 278.7(1) is deemed to be a question of law.
1997, c. 30, s. 1.
Offences Against the Person and Reputation: Section 1 of 3
Offences Against the Person and Reputation: Section 3 of 3
Next
Part IX
Offences Against Rights of Property