Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Independent monitor — conflict of interest

715.35 A candidate for appointment as an independent monitor must notify the prosecutor in writing of any previous or ongoing relationship, in particular with the organization or any of its representatives, that may have a real or perceived impact on the candidate’s ability to provide an independent verification.

Marginal note:Duty to inform victims

• 715.36 (1) After an organization has accepted the offer to negotiate according to the terms of the notice referred to in section 715.33, the prosecutor must take reasonable steps to inform any victim, or any third party that is acting on the victim’s behalf, that a remediation agreement may be entered into.

• Marginal note:Interpretation

  (2) The duty to inform any victim is to be construed and applied in a manner that is reasonable in the circumstances and not likely to interfere with the proper administration of justice, including by causing interference with prosecutorial discretion or compromising, hindering or causing excessive delay to the negotiation of an agreement or its conclusion.

• Marginal note:Reasons

  (3) If the prosecutor elects not to inform a victim or third party under subsection (1), they must provide the court, when applying for approval of the agreement, with a statement of the reasons why it was not appropriate to do so in the circumstances.

Marginal note:Application for court approval

• 715.37 (1) When the prosecutor and the organization have agreed to the terms of a remediation agreement, the prosecutor must apply to the court in writing for an order approving the agreement.

• Marginal note:Coming into force

  (2) The coming into force of the agreement is subject to the approval of the court.

• Marginal note:Consideration of victims

  (3) To determine whether to approve the agreement, the court hearing an application must consider

  • (a) any reparations, statement and other measure referred to in paragraph 715.34(1)(g);

  • (b) any statement made by the prosecutor under subsection 715.36(3);

  • (c) any victim or community impact statement presented to the court; and

  • (d) any victim surcharge referred to in paragraph 715.34(1)(h).

• Marginal note:Victim or community impact statement

  (4) For the purpose of paragraph (3)(c), the rules provided for in sections 722 to 722.2 apply, other than subsection 722(6), with any necessary modifications and, in particular,

  • (a) a victim or community impact statement, or any other evidence concerning any victim, must be considered when determining whether to approve the agreement under subsection (6);

  • (b) the inquiry referred to in subsection 722(2) must be made at the hearing of the application; and

  • (c) the duty of the clerk under section 722.1 or subsection 722.2(5) is deemed to be the duty of the prosecutor to make reasonable efforts to provide a copy of the statement to the organization or counsel for the organization as soon as feasible after the prosecutor obtains it.

• Marginal note:Victim surcharge

  (5) For the purpose of paragraph 715.34(1)(h), the amount of the victim surcharge is 30% of any penalty referred to in paragraph 715.34(1)(f), or any other percentage that the prosecutor deems appropriate in the circumstances, and is payable to the treasurer of the province in which the application for approval referred to in section 715.37 is made.

• Marginal note:Approval order

  (6) The court must, by order, approve the agreement if it is satisfied that

  • (a) the organization is charged with an offence to which the agreement applies;

  • (b) the agreement is in the public interest; and

  • (c) the terms of the agreement are fair, reasonable and proportionate to the gravity of the offence.

• Marginal note:Stay of proceedings

  (7) As soon as practicable after the court approves the agreement, the prosecutor must direct the clerk or other proper officer of the court to make an entry on the record that the proceedings against the organization in respect of any offence to which the agreement applies are stayed by that direction and that entry must be made immediately, after which time the proceedings shall be stayed accordingly.

• Marginal note:Other proceedings

  (8) No other proceedings may be initiated against the organization for the same offence while the agreement is in force.

• Marginal note:Limitation period

  (9) The running of a limitation period in respect of any offence to which the agreement applies is suspended while the agreement is in force.

Marginal note:Variation order

715.38 On application by the prosecutor, the court must, by order, approve any modification to a remediation agreement if the court is satisfied that the agreement continues to meet the conditions set out in subsection 715.37(6). On approval, the modification is deemed to form part of the agreement.

Marginal note:Termination order

• 715.39 (1) On application by the prosecutor, the court must, by order, terminate the agreement if it is satisfied that the organization has breached a term of the agreement.

• Marginal note:Recommencement of proceedings

  (2) As soon as the order is made, proceedings stayed in accordance with subsection 715.37(7) may be recommenced, without a new information or a new indictment, as the case may be, by the prosecutor giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered.

• Marginal note:Stay of proceedings

  (3) If no notice is given within one year after the order is made under subsection (1), or before the expiry of the time within which the proceedings could have been commenced, whichever is earlier, the proceedings are deemed never to have been commenced.

Marginal note:Order declaring successful completion

• 715.4 (1) On application by the prosecutor, the court must, by order, declare that the terms of the agreement were met if it is satisfied that the organization has complied with the agreement.

• Marginal note:Stay of proceedings

  (2) The order stays the proceedings against the organization for any offence to which the agreement applies, the proceedings are deemed never to have been commenced and no other proceedings may be initiated against the organization for the same offence.

Marginal note:Deadline

• 715.41 (1) The prosecutor must, as soon as practicable after the deadline referred to in paragraph 715.34(1)(p), apply to the court in writing for a variation order under section 715.38, including to extend the deadline, an order terminating the agreement under section 715.39 or an order under section 715.4 declaring that its terms were met and the court may issue any of these orders as it deems appropriate.

• Marginal note:Deeming

  (2) The agreement is deemed to remain in force until a court issues an order terminating it or declaring that its terms were met.

Marginal note:Publication

• 715.42 (1) Subject to subsection (2), the following must be published by the court as soon as practicable:

  • (a) the remediation agreement approved by the court;

  • (b) an order made under any of sections 715.37 to 715.41 and the reasons for that order or the reasons for the decision not to make that order; and

  • (c) a decision made under subsection (2) or (5) and the reasons for that decision.

• Marginal note:Decision not to publish

  (2) The court may decide not to publish the agreement or any order or reasons referred to in paragraph (1)(b), in whole or in part, if it is satisfied that the non-publication is necessary for the proper administration of justice.

• Marginal note:Factors to be considered

  (3) To decide whether the proper administration of justice requires making the decision referred to in subsection (2), the court must consider

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

  • (b) whether it is necessary to protect the identity of any victims, any person not engaged in the wrongdoing and any person who brought the wrongdoing to the attention of investigative authorities;

  • (c) the prevention of any adverse effect to any ongoing investigation or prosecution;

  • (d) whether effective alternatives to the decision referred to in subsection (2) are available in the circumstances;

  • (e) the salutary and deleterious effects of making the decision referred to in subsection (2); and

  • (f) any other factor that the court considers relevant.

• Marginal note:Conditions

  (4) The court may make its decision subject to any conditions that it considers appropriate, including a condition related to the duration of non-publication.

• Marginal note:Review of decision

  (5) On application by any person, the court must review the decision made under subsection (2) to determine whether the non-publication continues to be necessary for the proper administration of justice. If the court is satisfied that the non-publication is no longer necessary, it must publish the agreement, order or reasons, as the case may be, in whole or in part, as soon as practicable.

Marginal note:Regulations

• 715.43 (1) On the recommendation of the Minister of Justice, the Governor in Council may make regulations generally for the purposes of carrying out this Part, including regulations respecting

  • (a) the form of the remediation agreement; and

  • (b) the verification of compliance by an independent monitor, including

    • (i) the qualifications for monitors,

    • (ii) the process to select a monitor,

    • (iii) the form and content of a conflict of interest notification, and

    • (iv) reporting requirements.

• Marginal note:Amendment of schedule

  (2) On the recommendation of the Minister of Justice, the Governor in Council may, by order, amend the schedule by adding or deleting any offence to which a remediation agreement may apply.

• Marginal note:Deleting offence

  (3) If the Governor in Council orders the deletion of an offence from the schedule to this Part, this Part continues to apply to an organization alleged to have committed that offence if a notice referred to in section 715.33 respecting that offence was sent to the organization before the day on which the order comes into force.

PART XXIIISentencing

Interpretation

Marginal note:Definitions

716 In this Part,

accused

accused includes a defendant; (accusé)

alternative measures

alternative measures means measures other than judicial proceedings under this Act used to deal with a person who is eighteen years of age or over and alleged to have committed an offence; (mesures de rechange)

court

court means

• (a) a superior court of criminal jurisdiction,

• (b) a court of criminal jurisdiction,

• (c) a justice or provincial court judge acting as a summary conviction court under Part XXVII, or

• (d) a court that hears an appeal; (tribunal)

fine

fine includes a pecuniary penalty or other sum of money, but does not include restitution. (amende)

Alternative Measures

Marginal note:When alternative measures may be used

• 717 (1) Alternative measures may be used to deal with a person alleged to have committed an offence only if it is not inconsistent with the protection of society and the following conditions are met:

  • (a) the measures are part of a program of alternative measures authorized by the Attorney General or the Attorney General’s delegate or authorized by a person, or a person within a class of persons, designated by the lieutenant governor in council of a province;

  • (b) the person who is considering whether to use the measures is satisfied that they would be appropriate, having regard to the needs of the person alleged to have committed the offence and the interests of society and of the victim;

  • (c) the person, having been informed of the alternative measures, fully and freely consents to participate therein;

  • (d) the person has, before consenting to participate in the alternative measures, been advised of the right to be represented by counsel;

  • (e) the person accepts responsibility for the act or omission that forms the basis of the offence that the person is alleged to have committed;

  • (f) there is, in the opinion of the Attorney General or the Attorney General’s agent, sufficient evidence to proceed with the prosecution of the offence; and

  • (g) the prosecution of the offence is not in any way barred at law.

• Marginal note:Restriction on use

  (2) Alternative measures shall not be used to deal with a person alleged to have committed an offence if the person

  • (a) denies participation or involvement in the commission of the offence; or

  • (b) expresses the wish to have any charge against the person dealt with by the court.

• Marginal note:Admissions not admissible in evidence

  (3) No admission, confession or statement accepting responsibility for a given act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures is admissible in evidence against that person in any civil or criminal proceedings.

• Marginal note:No bar to proceedings

  (4) The use of alternative measures in respect of a person alleged to have committed an offence is not a bar to proceedings against the person under this Act, but, if a charge is laid against that person in respect of that offence,

  • (a) where the court is satisfied on a balance of probabilities that the person has totally complied with the terms and conditions of the alternative measures, the court shall dismiss the charge; and

  • (b) where the court is satisfied on a balance of probabilities that the person has partially complied with the terms and conditions of the alternative measures, the court may dismiss the charge if, in the opinion of the court, the prosecution of the charge would be unfair, having regard to the circumstances and that person’s performance with respect to the alternative measures.

• Marginal note:Laying of information, etc.

  (5) Subject to subsection (4), nothing in this section shall be construed as preventing any person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence, in accordance with law.