Victims Bill of Rights Act (S.C. 2015, c. 13)
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Assented to 2015-04-23
R.S., c. C-46CRIMINAL CODE
Amendments to the Act
Marginal note:1997, c. 30, s. 1
6. Subsection 278.3(5) of the Act is replaced by the following:
Marginal note: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 14 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.
7. Section 278.4 of the Act is amended by adding the following after subsection (2):
Marginal note:Right to counsel
(2.1) The judge shall, as soon as feasible, inform any person referred to in subsection (2) who participates in the hearing of their right to be represented by counsel.
Marginal note:1997, c. 30, s. 1
8. The portion of subsection 278.5(2) of the Act before paragraph (a) is replaced by the following:
Marginal note: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, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the judge shall take the following factors into account:
Marginal note:1997, c. 30, s. 1
9. Subsection 278.6(3) of the Act is replaced by the following:
Marginal note:Provisions re hearing
(3) Subsections 278.4(2) to (3) apply in the case of a hearing under subsection (2).
Marginal note:1997, c. 30, s. 1
10. (1) Subsection 278.7(2) of the Act is replaced by the following:
Marginal note: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, personal security and equality of the complainant or witness, as the case may be, and of 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.
Marginal note:1997, c. 30, s. 1
(2) The portion of subsection 278.7(3) of the Act before paragraph (a) is replaced by the following:
Marginal note:Conditions on production
(3) If 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, personal security and equality interests of the complainant or witness, as the case may be, and of any other person to whom the record relates, including, for example, the following conditions:
Marginal note:2011, c. 6, s. 4
11. Sections 380.3 and 380.4 of the Act are repealed.
Marginal note:2001, c. 32, s. 11
12. (1) The portion of subsection 423.1(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Intimidation of a justice system participant or a journalist
423.1 (1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in
Marginal note:2001, c. 32, s. 11
(2) Subsection 423.1(2) of the Act is repealed.
Marginal note:2005, c. 32, s. 15
13. Subsection 486(2) of the Act is replaced by the following:
Marginal note:Factors to be considered
(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider
(a) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;
(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;
(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(e) the protection of justice system participants who are involved in the proceedings;
(f) whether effective alternatives to the making of the proposed order are available in the circumstances;
(g) the salutary and deleterious effects of the proposed order; and
(h) any other factor that the judge or justice considers relevant.
Marginal note:2005, c. 32, s. 15
14. Subsections 486.1(1) to (3) of the Act are replaced by the following:
Marginal note:Support person — witnesses under 18 or who have a disability
486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
Marginal note:Other witnesses
(2) 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, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
Marginal note:Application
(2.1) An application referred to in subsection (1) or (2) 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 an order under subsection (2), the judge or justice shall consider
(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(g) any other factor that the judge or justice considers relevant.
Marginal note:2005, c. 32, s. 15; 2014, c. 17, s. 12
15. Section 486.2 of the Act is replaced by the following:
Marginal note:Testimony outside court room — witnesses under 18 or who have a disability
486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
Marginal note:Other witnesses
(2) Despite section 650, 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, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
Marginal note:Application
(2.1) An application referred to in subsection (1) or (2) 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 an order under subsection (2), the judge or justice shall consider
(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) 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;
(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(h) any other factor that the judge or justice considers relevant.
Marginal note:Same procedure for determination
(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.
Marginal note:Conditions of exclusion
(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
Marginal note:No adverse inference
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).
Marginal note:2005, c. 32, s. 15
16. Subsections 486.3(1) to (4.1) of the Act are replaced by the following:
Marginal note:Accused not to cross-examine witnesses under 18
486.3 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Marginal note:Accused not to cross-examine complainant — certain offences
(2) In any proceedings against an accused in respect of an offence under any of sections 264, 271, 272 and 273, the judge or justice shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Marginal note:Other witnesses
(3) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness who is not entitled to make an application under subsection (1) or (2), or on application of such a witness, order that the accused not personally cross-examine the witness if the judge or justice is of the opinion that the order would allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. If the order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Marginal note:Factors to be considered
(4) In determining whether to make an order under subsection (3), the judge or justice shall consider
(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(e) the nature of any relationship between the witness and the accused;
(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(g) any other factor that the judge or justice considers relevant.
Marginal note:Application
(4.1) An application referred to in any of subsections (1) to (3) 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.
17. The Act is amended by adding the following after section 486.3:
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;
(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:2005, c. 32, s. 15
18. (1) The portion of subsection 486.4(1) of the Act before paragraph (a) is replaced by the following:
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
Marginal note:2005, c. 32, s. 15
(2) Paragraph 486.4(1)(a) of the Act is amended by adding “or” at the end of subparagraph (i) and by replacing subparagraphs (ii) and (iii) of the Act with the following:
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
Marginal note:2005, c. 32, s. 15
(3) Paragraph 486.4(1)(b) of the Act is replaced by the following:
(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:2005, c. 32, s. 15
(4) Subsection 486.4(2) of the Act is replaced by the following:
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.
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