Criminal Code (R.S.C., 1985, c. C-46)

Act current to 2016-09-18 and last amended on 2016-06-17. Previous Versions

Protected Statements

Marginal note:Definition of “protected statement”
  •  (1) In this section, protected statement means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person’s direction.

  • Marginal note:Protected statements not admissible against accused

    (2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.

  • Marginal note:Exceptions

    (3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of

    • (a) determining whether the accused is unfit to stand trial;

    • (b) making a disposition or placement decision respecting the accused;

    • (c) determining, under section 672.84, whether to refer to the court for review a finding that an accused is a high-risk accused or whether to revoke such a finding;

    • (d) determining whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;

    • (e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;

    • (f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously; or

    • (g) establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding.

  • 1991, c. 43, s. 4;
  • 2005, c. 22, s. 12;
  • 2014, c. 6, s. 5.

Fitness to Stand Trial

Marginal note:Presumption of fitness

 An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial.

  • 1991, c. 43, s. 4.
Marginal note:Court may direct issue to be tried
  •  (1) Where the court has reasonable grounds, at any stage of the proceedings before a verdict is rendered, to believe that the accused is unfit to stand trial, the court may direct, of its own motion or on application of the accused or the prosecutor, that the issue of fitness of the accused be tried.

  • Marginal note:Burden of proof

    (2) An accused or a prosecutor who makes an application under subsection (1) has the burden of proof that the accused is unfit to stand trial.

  • 1991, c. 43, s. 4.
Marginal note:Counsel
  •  (1) Where the court has reasonable grounds to believe that an accused is unfit to stand trial and the accused is not represented by counsel, the court shall order that the accused be represented by counsel.

  • Marginal note:Counsel fees and disbursements

    (2) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General to the extent that the accused is unable to pay them.

  • Marginal note:Taxation of fees and disbursements

    (3) Where counsel and the Attorney General cannot agree on the fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court and the registrar may tax the disputed fees and disbursements.

  • 1991, c. 43, s. 4;
  • 1997, c. 18, s. 82.
Marginal note:Postponing trial of issue
  •  (1) The court shall postpone directing the trial of the issue of fitness of an accused in proceedings for an offence for which the accused may be prosecuted by indictment or that is punishable on summary conviction, until the prosecutor has elected to proceed by way of indictment or summary conviction.

  • Marginal note:Idem

    (2) The court may postpone directing the trial of the issue of fitness of an accused

    • (a) where the issue arises before the close of the case for the prosecution at a preliminary inquiry, until a time that is not later than the time the accused is called on to answer to the charge; or

    • (b) where the issue arises before the close of the case for the prosecution at trial, until a time not later than the opening of the case for the defence or, on motion of the accused, any later time that the court may direct.

  • 1991, c. 43, s. 4.
Marginal note:Trial of issue by judge and jury

 Where an accused is tried or is to be tried before a court composed of a judge and jury,

  • (a) if the judge directs that the issue of fitness of the accused be tried before the accused is given in charge to a jury for trial on the indictment, a jury composed of the number of jurors required in respect of the indictment in the province where the trial is to be held shall be sworn to try that issue and, with the consent of the accused, the issues to be tried on the indictment; and

  • (b) if the judge directs that the issue of fitness of the accused be tried after the accused has been given in charge to a jury for trial on the indictment, the jury shall be sworn to try that issue in addition to the issues in respect of which it is already sworn.

  • 1991, c. 43, s. 4.
Marginal note:Trial of issue by court

 The court shall try the issue of fitness of an accused and render a verdict where the issue arises

  • (a) in respect of an accused who is tried or is to be tried before a court other than a court composed of a judge and jury; or

  • (b) before a court at a preliminary inquiry or at any other stage of the proceedings.

  • 1991, c. 43, s. 4.
Marginal note:Proceeding continues where accused is fit

 Where the verdict on trial of the issue is that an accused is fit to stand trial, the arraignment, preliminary inquiry, trial or other stage of the proceeding shall continue as if the issue of fitness of the accused had never arisen.

  • 1991, c. 43, s. 4.
Marginal note:Where continued detention in custody

 Where an accused is detained in custody on delivery of a verdict that the accused is fit to stand trial, the court may order the accused to be detained in a hospital until the completion of the trial, if the court has reasonable grounds to believe that the accused would become unfit to stand trial if released.

  • 1991, c. 43, s. 4.
Marginal note:Acquittal

 Where the court has postponed directing the trial of the issue of fitness of an accused pursuant to subsection 672.25(2) and the accused is discharged or acquitted before the issue is tried, it shall not be tried.

  • 1991, c. 43, s. 4.
Marginal note:Verdict of unfit to stand trial

 Where the verdict on trial of the issue is that an accused is unfit to stand trial, any plea that has been made shall be set aside and any jury shall be discharged.

  • 1991, c. 43, s. 4.
Marginal note:Subsequent proceedings
  •  (1) A verdict of unfit to stand trial shall not prevent the accused from being tried subsequently where the accused becomes fit to stand trial.

  • Marginal note:Burden of proof

    (2) The burden of proof that the accused has subsequently become fit to stand trial is on the party who asserts it, and is discharged by proof on the balance of probabilities.

  • 1991, c. 43, s. 4.
Marginal note:Prima facie case to be made every two years
  •  (1) The court that has jurisdiction in respect of the offence charged against an accused who is found unfit to stand trial shall hold an inquiry, not later than two years after the verdict is rendered and every two years thereafter until the accused is acquitted pursuant to subsection (6) or tried, to decide whether sufficient evidence can be adduced at that time to put the accused on trial.

  • Marginal note:Extension of time for holding inquiry

    (1.1) Despite subsection (1), the court may extend the period for holding an inquiry where it is satisfied on the basis of an application by the prosecutor or the accused that the extension is necessary for the proper administration of justice.

  • Marginal note:Court may order inquiry to be held

    (2) On application of the accused, the court may order an inquiry under this section to be held at any time if it is satisfied, on the basis of the application and any written material submitted by the accused, that there is reason to doubt that there is a prima facie case against the accused.

  • Marginal note:Burden of proof

    (3) At an inquiry under this section, the burden of proof that sufficient evidence can be adduced to put the accused on trial is on the prosecutor.

  • Marginal note:Admissible evidence at an inquiry

    (4) In an inquiry under this section, the court shall admit as evidence

    • (a) any affidavit containing evidence that would be admissible if given by the person making the affidavit as a witness in court; or

    • (b) any certified copy of the oral testimony given at a previous inquiry or hearing held before a court in respect of the offence with which the accused is charged.

  • Marginal note:Conduct of inquiry

    (5) The court may determine the manner in which an inquiry under this section is conducted and may follow the practices and procedures in respect of a preliminary inquiry under Part XVIII where it concludes that the interests of justice so require.

  • Marginal note:Where prima facie case not made

    (6) Where, on the completion of an inquiry under this section, the court is satisfied that sufficient evidence cannot be adduced to put the accused on trial, the court shall acquit the accused.

  • 1991, c. 43, s. 4;
  • 2005, c. 22, ss. 13, 42(F).
 
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