Criminal Code

Marginal note:Attorney General’s consent

• 83.3 (1) The Attorney General’s consent is required before a peace officer may lay an information under subsection (2).

• Marginal note:Terrorist activity

  (2) Subject to subsection (1), a peace officer may lay an information before a provincial court judge if the peace officer

  • (a) believes on reasonable grounds that a terrorist activity may be carried out; and

  • (b) suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of the terrorist activity.

• Marginal note:Appearance

  (3) The judge who receives the information may cause the person to appear before any provincial court judge.

• Marginal note:Arrest without warrant

  (4) Despite subsections (2) and (3), a peace officer may arrest a person without a warrant and cause the person to be detained in custody, in order to bring them before a provincial court judge in accordance with subsection (6), if

  • (a) either

    • (i) the grounds for laying an information referred to in paragraphs (2)(a) and (b) exist but, by reason of exigent circumstances, it would be impracticable to lay an information under subsection (2), or

    • (ii) an information has been laid under subsection (2) and a summons has been issued; and

  • (b) the peace officer suspects on reasonable grounds that the detention of the person in custody is necessary to prevent a terrorist activity.

• Marginal note:Duty of peace officer

  (5) If a peace officer arrests a person without a warrant in the circumstance described in subparagraph (4)(a)(i), the peace officer shall, within the time prescribed by paragraph (6)(a) or (b),

  • (a) lay an information in accordance with subsection (2); or

  • (b) release the person.

• Marginal note:When person to be taken before judge

  (6) Unless a peace officer, or an officer in charge as defined in Part XVI, is satisfied that a person should be released from custody unconditionally before their appearance before a provincial court judge in accordance with the rules in paragraph (a) or (b), and so releases the person, the person detained in custody shall be taken before a provincial court judge in accordance with the following rules:

  • (a) if a provincial court judge is available within 24 hours after the person has been arrested, the person shall be taken before a provincial court judge without unreasonable delay and in any event within that period; and

  • (b) if a provincial court judge is not available within 24 hours after the person has been arrested, the person shall be taken before a provincial court judge as soon as feasible.

• Marginal note:How person dealt with

  (7) When a person is taken before a provincial court judge under subsection (6),

  • (a) if an information has not been laid under subsection (2), the judge shall order that the person be released; or

  • (b) if an information has been laid under subsection (2),

    • (i) the judge shall order that the person be released unless the peace officer who laid the information shows cause why the person’s detention in custody is justified on one or more of the following grounds:

      • (A) the detention is necessary to ensure the person’s appearance before a provincial court judge in order to be dealt with in accordance with subsection (8),

      • (B) the detention is necessary for the protection or safety of the public, including any witness, having regard to all the circumstances including

        • (I) the likelihood that, if the person is released from custody, a terrorist activity will be carried out, and

        • (II) any substantial likelihood that the person will, if released from custody, interfere with the administration of justice, and

      • (C) the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the peace officer’s grounds under subsection (2), and the gravity of any terrorist activity that may be carried out, and

    • (ii) the judge may adjourn the matter for a hearing under subsection (8) but, if the person is not released under subparagraph (i), the adjournment may not exceed 48 hours.

• Marginal note:Adjournment under subparagraph (7)(b)(ii)

  (7.1) If a judge has adjourned the matter under subparagraph (7)(b)(ii) and the person remains in custody at the end of the period of adjournment, the person shall be taken before a provincial court judge who

  • (a) shall order that the person be released unless a peace officer shows cause why the person’s detention in custody is justified on one or more of the grounds set out in clauses (7)(b)(i)(A) to (C) and satisfies the judge that the investigation in relation to which the person is detained is being conducted diligently and expeditiously; and

  • (b) may adjourn the matter for a hearing under subsection (8) but, if the person is not released under paragraph (a), the adjournment may not exceed 48 hours.

• Marginal note:Adjournment under paragraph (7.1)(b)

  (7.2) If a judge has adjourned the matter under paragraph (7.1)(b) and the person remains in custody at the end of the period of adjournment, the person shall be taken before a provincial court judge who

  • (a) shall order that the person be released unless a peace officer shows cause why the person’s detention in custody is justified on one or more of the grounds set out in clauses (7)(b)(i)(A) to (C) and satisfies the judge that the investigation in relation to which the person is detained is being conducted diligently and expeditiously; and

  • (b) may adjourn the matter for a hearing under subsection (8) but, if the person is not released under paragraph (a), the adjournment may not exceed 48 hours.

• Marginal note:Hearing before judge

  (8) The judge before whom the person appears in accordance with subsection (3)

  • (a) may, if the judge is satisfied by the evidence adduced that the peace officer has reasonable grounds for the suspicion, order that the person enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for a period of not more than 12 months and to comply with any other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (10), (11.1) and (11.2), that the judge considers desirable for preventing the carrying out of a terrorist activity; and

  • (b) if the person was not released under subparagraph (7)(b)(i) or paragraph (7.1)(a) or (7.2)(a), shall order that the person be released, subject to the recognizance, if any, ordered under paragraph (a).

• Marginal note:Duration extended

  (8.1) However, if the judge is also satisfied that the person was convicted previously of a terrorism offence, the judge may order that the person enter into the recognizance for a period of not more than two years.

• Marginal note:Refusal to enter into recognizance

  (9) The judge may commit the person to prison for a term not exceeding 12 months if the person fails or refuses to enter into the recognizance.

• Marginal note:Conditions — firearms

  (10) Before making an order under paragraph (8)(a), the judge shall consider whether it is desirable, in the interests of the safety of the person or of any other person, to include as a condition of the recognizance that the person be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things, for any period specified in the recognizance, and if the judge decides that it is so desirable, they shall add the condition to the recognizance.

• Marginal note:Surrender, etc.

  (11) If the judge adds the condition described in subsection (10) to a recognizance, they shall specify in it the manner and method by which

  • (a) the things referred to in that subsection that are in the person’s possession shall be surrendered, disposed of, detained, stored or dealt with; and

  • (b) the authorizations, licences and registration certificates that are held by the person shall be surrendered.

• Marginal note:Condition — passport

  (11.1) The judge shall consider whether it is desirable, to prevent the carrying out of a terrorist activity, to include in the recognizance a condition that the person deposit, in the specified manner, any passport or other travel document issued in their name that is in their possession or control. If the judge decides that it is desirable, the judge shall add the condition to the recognizance and specify the period during which it applies.

• Marginal note:Condition — specified geographic area

  (11.2) The judge shall consider whether it is desirable, to prevent the carrying out of a terrorist activity, to include in the recognizance a condition that the person remain within a specified geographic area unless written permission to leave that area is obtained from the judge or any individual designated by the judge. If the judge decides that it is desirable, the judge shall add the condition to the recognizance and specify the period during which it applies.

• Marginal note:Reasons

  (12) If the judge does not add a condition described in subsection (10), (11.1) or (11.2) to a recognizance, the judge shall include in the record a statement of the reasons for not adding it.

• Marginal note:Variance of conditions

  (13) The judge, or any other judge of the same court, may, on application of the peace officer, the Attorney General or the person, vary the conditions fixed in the recognizance.

• Marginal note:Other provisions to apply

  (14) Subsections 810(4) and (5) apply, with any necessary modifications, to proceedings under this section.