An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts (S.C. 2019, c. 25)

Marginal note:Victim surcharge

• 737 (1) An offender who is convicted, or discharged under section 730, of an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act shall pay a victim surcharge for each offence, in addition to any other punishment imposed on the offender.

• Marginal note:Amount of surcharge

  (2) Subject to subsections (2.1) and (3), the amount of the victim surcharge in respect of an offence is

  • (a) 30% of any fine that is imposed on the offender for the offence; or

  • (b) if no fine is imposed on the offender for the offence,

    • (i) $100 in the case of an offence punishable by summary conviction, and

    • (ii) $200 in the case of an offence punishable by indictment.

• Marginal note:Exception

  (2.1) Despite subsection (1), the court may, on application of the offender or on its own motion, order an offender to pay no victim surcharge, or to pay a reduced amount, if it is satisfied that the victim surcharge

  • (a) would cause undue hardship to the offender; or

  • (b) would not cause undue hardship to the offender but would be disproportionate to the gravity of the offence or the degree of responsibility of the offender.

• Marginal note:Definition of undue hardship

  (2.2) For the purposes of subsection (2.1), undue hardship means the offender is unable to pay a victim surcharge on account of the offender’s precarious financial circumstances, including because of their unemployment, homelessness, lack of assets or significant financial obligations towards their dependants.

• Marginal note:For greater certainty

  (2.3) For greater certainty, for the purposes of subsection (2.2), the imprisonment of the offender alone does not constitute undue hardship.

• Marginal note:Reasons

  (2.4) When the court makes an order under subsection (2.1), the court shall state its reasons in the record of the proceedings.

• Marginal note:Increase in surcharge

  (3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount.

• Marginal note:Time for payment

  (4) The victim surcharge imposed in respect of an offence is payable within the time established by the lieutenant governor in council of the province in which the surcharge is imposed. If no time has been so established, the surcharge is payable within a reasonable time after its imposition.

• Marginal note:Amounts applied to aid victims

  (5) A victim surcharge shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.

• Marginal note:Notice

  (6) The court shall cause to be given to the offender a written notice setting out

  • (a) the amount of the victim surcharge;

  • (b) the manner in which the victim surcharge is to be paid;

  • (c) the time by which the victim surcharge must be paid; and

  • (d) the procedure for applying for a change in any terms referred to in paragraphs (b) and (c) in accordance with section 734.3.

• Marginal note:Enforcement

  (7) Subsections 734(3) to (7) and sections 734.3, 734.5, 734.7, 734.8 and 736 apply, with any modifications that the circumstances require, in respect of a victim surcharge imposed under this section and, in particular,

  • (a) a reference in any of those provisions to “fine”, other than in subsection 734.8(5), must be read as if it were a reference to “victim surcharge”; and

  • (b) the notice provided under subsection (6) is deemed to be an order made under section 734.1.

• Marginal note:Application — subsections (2.1) to (2.4)

  (8) Subsections (2.1) to (2.4) apply to any offender who is sentenced for an offence under this Act, the Controlled Drugs and Substances Act or the Cannabis Act that was committed after the day on which those subsections come into force.

• (c) in the case of bodily harm or threat of bodily harm to the offender’s intimate partner or child, or any other person, as a result of the commission of the offence or the arrest or attempted arrest of the offender, where the intimate partner, child or other person was a member of the offender’s household at the relevant time, by paying to the person in question, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount not exceeding actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, where the amount is readily ascertainable;

• (e) if an offender is arrested for the alleged breach, the peace officer who makes the arrest or a judge or justice may release the offender and the offender’s appearance may be compelled under the provisions referred to in paragraph (a); and

• (b) is guilty of an offence punishable on summary conviction.

• Marginal note:Statutory Instruments Act

  (1.1) The Statutory Instruments Act does not apply to those rules.

Marginal note:Breach of long-term supervision

• 753.3 (1) An offender who, without reasonable excuse, fails or refuses to comply with long-term supervision is guilty of

  • (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

  • (b) an offence punishable on summary conviction.

Effect and Enforcement of Undertakings, Release Orders and Recognizances

Marginal note:Applications for forfeiture

• 762 (1) Applications for the forfeiture of an amount set out in an undertaking, release order or recognizance must be made to the courts designated in column II of the schedule of the respective provinces designated in column I of the schedule.

Marginal note:Undertaking or release order binding on person

• 763 (1) If a person is bound by an undertaking, release order or recognizance to appear before a court, provincial court judge or justice for any purpose and the session or sittings of that court or the proceedings are adjourned or an order is made changing the place of trial, that person and their sureties continue to be bound by the undertaking, release order or recognizance as if it had been entered into or issued with respect to the resumed proceedings or the trial at the time and place at which the proceedings are ordered to be resumed or the trial is ordered to be held.

• Marginal note:Summary of certain provisions

  (2) A summary of section 763 must be set out in any undertaking, release order or recognizance.

Marginal note:Undertaking or release order binding on accused

• 764 (1) If an accused is bound by an undertaking or release order to appear for trial, their arraignment or conviction does not cancel the undertaking or release order, and it continues to bind them and their sureties for their appearance until the accused is discharged or sentenced, as the case may be.

• Marginal note:Committal or new sureties

  (2) Despite subsection (1), the court, provincial court judge or justice may commit an accused to prison or may require them to furnish new or additional sureties for their appearance until the accused is discharged or sentenced, as the case may be.

• Marginal note:Effect of committal

  (3) The sureties of an accused who is bound by a release order to appear for trial are discharged if the accused is committed to prison under subsection (2).

• Marginal note:Summary of certain provisions

  (4) A summary of subsections (1) to (3) must be set out in any undertaking or release order.

Marginal note:Effect of subsequent arrest

765 If an accused is bound by an undertaking or a release order to appear for trial, their arrest on another charge does not cancel the undertaking or release order, and it continues to bind them and their sureties for their appearance until the accused is discharged or sentenced, as the case may be, in respect of the offence to which the undertaking or release order relates.

Marginal note:Render of accused by sureties

• 766 (1) A surety for a person who is subject to a release order or recognizance may, by an application in writing to a court, provincial court judge or justice, apply to be relieved of their obligation under the release order or recognizance, and the court, provincial court judge or justice shall then make an order in writing for committal of that person to the prison named in that order.

• Marginal note:Arrest

  (2) An order issued by a court, provincial court judge or justice under subsection (1) must be given to the surety and, on receipt of it, the surety or any peace officer may arrest the person named in the order and deliver that person with the order to the keeper of the prison named in the order, and the keeper shall receive and imprison that person until the person is discharged according to law.

• Marginal note:Certificate and entry of render

  (3) If a court, provincial court judge or justice issues an order under subsection (1) and receives from the sheriff a certificate that the person named in the order has been committed to prison under subsection (2), the court, provincial court judge or justice shall order an entry of the committal to be endorsed on the release order or recognizance, as the case may be.

• Marginal note:Discharge of sureties

  (4) An endorsement under subsection (3) cancels the release order or recognizance, as the case may be, and discharges the sureties.

Marginal note:Render of accused in court by sureties

767 A surety for a person who is subject to a release order or recognizance may bring that person before the court where the person is required to appear or where the person entered into the recognizance at any time during the sittings of that court and before the person’s trial, and the surety may discharge their obligation under the release order or recognizance by giving that person into the custody of the court. The court shall then commit that person to prison until the person is discharged according to law.

Marginal note:Substitution of surety

• 767.1 (1) If a surety for a person who is subject to a release order or recognizance has given the person into the custody of a court under section 767, or a surety applies to be relieved of their obligation under the release order or recognizance under subsection 766(1), the court, justice or provincial court judge, as the case may be, may, instead of committing or issuing an order for the committal of the person to prison, substitute any other suitable person for the surety under the release order or recognizance.

• Marginal note:Signing of release order or recognizance by new sureties

  (2) If a person substituted for a surety under a release order or recognizance under subsection (1) signs the release order or recognizance, the original surety is discharged, but the release order or recognizance is not otherwise affected.

Marginal note:Rights of surety preserved

768 Nothing in this Part limits any right that a surety has of taking and giving into custody any person for whom they are a surety under a release order or recognizance.

Marginal note:Default to be endorsed

• 770 (1) If, in proceedings to which this Act applies, a person who is subject to an undertaking, release order or recognizance does not comply with any of its conditions, a court, provincial court judge or justice having knowledge of the facts shall endorse or cause to be endorsed on the undertaking, release order or recognizance a certificate in Form 33 setting out

  • (a) the nature of the default;

  • (b) the reason for the default, if it is known;

  • (c) whether the ends of justice have been defeated or delayed by reason of the default; and

  • (d) the names and addresses of the principal and sureties.

• Marginal note:Transmission to clerk of court

  (2) Once endorsed, the undertaking, release order or recognizance must be sent to the clerk of the court and shall be kept by them with the records of the court.

• Marginal note:Certificate is evidence

  (3) A certificate that has been endorsed on the undertaking, release order or recognizance is evidence of the default to which it relates.

• Marginal note:Transmission of deposit

  (4) If, in proceedings to which this section applies, the principal or surety has deposited money as security for the performance of a condition of an undertaking, release order or recognizance, that money must be sent to the clerk of the court with the defaulted undertaking, release order or recognizance, to be dealt with in accordance with this Part.

Marginal note:Proceedings in case of default

• 771 (1) If an undertaking, release order or recognizance has been endorsed with a certificate and has been received by the clerk of the court,

  • (a) a judge of the court shall, on the request of the clerk of the court or the Attorney General or counsel acting on the Attorney General’s or counsel’s behalf, as the case may be, fix a time and place for the hearing of an application for the forfeiture of the amount set out in the undertaking, release order or recognizance; and

  • (b) the clerk of the court shall, not less than 10 days before the time fixed under paragraph (a) for the hearing, send by registered mail, or have served in the manner directed by the court or prescribed by the rules of court, to each principal and surety, at the address set out in the certificate, a notice requiring the person to appear at the time and place fixed by the judge to show cause why the amount set out in the undertaking, release order or recognizance should not be forfeited.

• Marginal note:Order of judge

  (2) If subsection (1) has been complied with, the judge may, after giving the parties an opportunity to be heard, in the judge’s discretion grant or refuse the application and make any order with respect to the forfeiture of the amount that the judge considers proper.

• Marginal note:Judgment debtors of the Crown

  (3) If a judge orders forfeiture of the amount set out in the undertaking, release order or recognizance, the principal and their sureties become judgment debtors of the Crown, each in the amount that the judge orders them to pay.

• Marginal note:Order may be filed

  (3.1) An order made under subsection (2) may be filed with the clerk of the superior court and if one is filed, the clerk shall issue a writ of fieri facias in Form 34 and deliver it to the sheriff of each of the territorial divisions in which the principal or any surety resides, carries on business or has property.

• Marginal note:Transfer of deposit

  (4) If a deposit has been made by a person against whom an order for forfeiture has been made, no writ of fieri facias may be issued, but the amount of the deposit must be transferred by the person who has custody of it to the person who is entitled by law to receive it.