Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Non-disclosure of witness’ identity

• 486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

• Marginal note:Hearing may be held

  (2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private.

• Marginal note:Factors to be considered

  (3) In determining whether to make the order, the judge or justice shall consider

  • (a) the right to a fair and public hearing;

  • (b) the nature of the offence;

  • (c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

  • (d) whether the order is needed to protect the security of anyone known to the witness;

  • (e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;

  • (e.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;

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

  • (g) the importance of the witness’ testimony to the case;

  • (h) whether effective alternatives to the making of the proposed order are available in the circumstances;

  • (i) the salutary and deleterious effects of the proposed order; and

  • (j) any other factor that the judge or justice considers relevant.

• Marginal note:No adverse inference

  (4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

Marginal note:Order restricting publication  — sexual offences

• 486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

  • (a) any of the following offences:

    • (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

    • (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

  • (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

• Marginal note:Mandatory order on application

  (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

  • (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

  • (b) on application made by the victim, the prosecutor or any such witness, make the order.

• Marginal note:Victim under 18  —  other offences

  (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

• Marginal note:Mandatory order on application

  (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

  • (a) as soon as feasible, inform the victim of their right to make an application for the order; and

  • (b) on application of the victim or the prosecutor, make the order.

• Marginal note:Child pornography

  (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

• Marginal note:Limitation

  (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

Marginal note:Order restricting publication — victims and witnesses

• 486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

• Marginal note:Justice system participants

  (2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

• Marginal note:Offences

  (2.1) The offences for the purposes of subsection (2) are

  • (a) an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

  • (b) a terrorism offence;

  • (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

  • (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

• Marginal note:Limitation

  (3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

• Marginal note:Application and notice

  (4) An applicant for an order shall

  • (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

  • (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

• Marginal note:Grounds

  (5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

• Marginal note:Hearing may be held

  (6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

• Marginal note:Factors to be considered

  (7) In determining whether to make an order, the judge or justice shall consider

  • (a) the right to a fair and public hearing;

  • (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

  • (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

  • (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

  • (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

  • (f) the salutary and deleterious effects of the proposed order;

  • (g) the impact of the proposed order on the freedom of expression of those affected by it; and

  • (h) any other factor that the judge or justice considers relevant.

• Marginal note:Conditions

  (8) An order may be subject to any conditions that the judge or justice thinks fit.

• Marginal note:Publication prohibited

  (9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

  • (a) the contents of an application;

  • (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

  • (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.

Marginal note:Offence

• 486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

• Marginal note:Application of order

  (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Marginal note:Security of witnesses

• 486.7 (1) In any proceedings against an accused, the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, make any order, other than one that may be made under any of sections 486 to 486.5, if the judge or justice is of the opinion that the order is necessary to protect the security of any witness and is otherwise in the interest of the proper administration of justice.

• Marginal note:Application

  (2) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

• Marginal note:Factors to be considered

  (3) In determining whether to make the order, the judge or justice shall consider

  • (a) the age of the witness;

  • (b) the witness’s mental or physical disabilities, if any;

  • (c) the right to a fair and public hearing;

  • (d) the nature of the offence;

  • (e) whether the witness needs the order to protect them from intimidation or retaliation;

  • (f) whether the order is needed to protect the security of anyone known to the witness;

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

  • (h) the importance of the witness’s testimony to the case;

  • (i) whether effective alternatives to the making of the proposed order are available in the circumstances;

  • (j) the salutary and deleterious effects of the proposed order; and

  • (k) any other factor that the judge or justice considers relevant.

• Marginal note:No adverse inference

  (4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

Marginal note:Information for search warrant

• 487 (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

  • (a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,

  • (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

  • (c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or

  • (c.1) any offence-related property,

  may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

  • (d) to search the building, receptacle or place for any such thing and to seize it, and

  • (e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.

• Marginal note:Execution in Canada

  (2) A warrant issued under subsection (1) may be executed at any place in Canada. A public officer named in the warrant, or any peace officer, who executes the warrant must have authority to act in that capacity in the place where the warrant is executed.

• Marginal note:Operation of computer system and copying equipment

  (2.1) A person authorized under this section to search a computer system in a building or place for data may

  • (a) use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system;

  • (b) reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output;

  • (c) seize the print-out or other output for examination or copying; and

  • (d) use or cause to be used any copying equipment at the place to make copies of the data.

• Marginal note:Duty of person in possession or control

  (2.2) Every person who is in possession or control of any building or place in respect of which a search is carried out under this section shall, on presentation of the warrant, permit the person carrying out the search

  • (a) to use or cause to be used any computer system at the building or place in order to search any data contained in or available to the computer system for data that the person is authorized by this section to search for;

  • (b) to obtain a hard copy of the data and to seize it; and

  • (c) to use or cause to be used any copying equipment at the place to make copies of the data.

• Marginal note:Form

  (3) A search warrant issued under this section may be in the form set out as Form 5 in Part XXVIII, varied to suit the case.

• (4) [Repealed, 2019, c. 25, s. 191]