|
|
|
|
|
|
This enactment relates to the implementation of Canada's
obligations under the Rome Statute of the International Criminal Court.
|
|
|
|
The enactment makes it an offence to commit genocide, a crime
against humanity or a war crime. Consequential changes are also made
to Canada's extradition and mutual legal assistance legislation to enable
Canada to comply with its obligations to the International Criminal
Court. The enactment also affirms that any immunities otherwise
existing under Canadian law will not bar extradition to the International
Criminal Court or to any international criminal tribunal established by
resolution of the Security Council of the United Nations.
|
|
|
|
|
|
|
|
|
|
|
|
Clause 33: The relevant portion of subsection 22(1)
reads as follows:
|
|
|
|
22. (1) Notwithstanding anything in this Act, a person shall not be
granted citizenship under section 5 or subsection 11(1) or take the oath
of citizenship
|
|
|
|
|
|
|
|
(c) while the person is under investigation by the Minister of Justice,
the Royal Canadian Mounted Police or the Canadian Security
Intelligence Service for, or is charged with, on trial for, subject to or
a party to an appeal relating to, an act or omission referred to in
subsection 7(3.71) of the Criminal Code;
|
|
|
|
(d) if the person has been convicted of an offence in respect of an act
or omission referred to in subsection 7(3.71) of the Criminal Code;
|
|
|
|
|
|
|
|
Clause 34: The relevant portion of subsection 17(1)
reads as follows:
|
|
|
|
17. (1) Where, in the opinion of the institutional head,
|
|
|
|
|
|
|
|
the absence may, subject to section 746.1 of the Criminal Code and
subsection 140.3(2) of the National Defence Act, be authorized by the
institutional head
|
|
|
|
Clause 35: The relevant portion of subsection 18(2)
reads as follows:
|
|
|
|
(2) Where an inmate is eligible for unescorted temporary absences
under Part II or pursuant to section 746.1 of the Criminal Code or
subsection 140.3(2) of the National Defence Act, and, in the opinion of
the institutional head,
|
|
|
|
Clause 36: The relevant portion of subsection 107(1)
reads as follows:
|
|
|
|
107. (1) Subject to this Act, the Prisons and Reformatories Act, the
Transfer of Offenders Act, the National Defence Act and the Criminal
Code, the Board has exclusive jurisdiction and absolute discretion
|
|
|
|
Clause 37: (1) The relevant portion of subsection
119(1) reads as follows:
|
|
|
|
119. (1) Subject to section 746.1 of the Criminal Code and
subsection 140.3(2) of the National Defence Act, the portion of a
sentence that must be served before an offender may be released on day
parole is
|
|
|
|
(2) Subsection 119(1.1) reads as follows:
|
|
|
|
(1.1) Notwithstanding section 746.1 of the Criminal Code and
subsection 140.3(2) of the National Defence Act, an offender described
in subsection 746.1(1) or (2) of the Criminal Code or to whom those
subsections apply pursuant to subsection 140.3(2) of the National
Defence Act, shall not, in the circumstances described in subsection
120.2(2) or (3), be released on day parole until three years before the
day that is determined in accordance with subsection 120.2(2) or (3).
|
|
|
|
(3) The relevant portion of subsection 119(1.2) reads
as follows:
|
|
|
|
(1.2) Notwithstanding section 746.1 of the Criminal Code and
subsection 140.3(2) of the National Defence Act, in the circumstances
described in subsection 120.2(2), the portion of the sentence of an
offender described in subsection 746.1(3) of the Criminal Code or to
whom that subsection applies pursuant to subsection 140.3(2) of the
National Defence Act that must be served before the offender may be
released on day parole is the longer of
|
|
|
|
Clause 38: Subsection 120(1) reads as follows:
|
|
|
|
120. (1) Subject to sections 746.1 and 761 of the Criminal Code and
to any order made under section 743.6 of that Act and subject to
subsection 140.3(2) of the National Defence Act and to any order made
under section 140.4 of that Act, an offender is not eligible for full parole
until the day on which the offender has served a period of ineligibility
of the lesser of one third of the sentence and seven years.
|
|
|
|
Clause 39: The relevant portion of subsection
120.2(3) reads as follows:
|
|
|
|
(3) Where, pursuant to section 745.6 of the Criminal Code or
subsection 140.3(2) of the National Defence Act, there has been a
reduction in the number of years of imprisonment without eligibility for
parole of an offender referred to in subsection (2), the offender is not
eligible for full parole until the day on which the offender has served,
commencing on the day on which the additional sentence was imposed,
|
|
|
|
Clause 40: Section 120.3 reads as follows:
|
|
|
|
120.3 Subject to section 745 of the Criminal Code and subsection
140.3(1) of the National Defence Act, where an offender who is serving
a sentence receives an additional sentence, the day on which the
offender is eligible for full parole shall not be later than the day on which
the offender has served fifteen years from the day on which the last of
the sentences was imposed.
|
|
|
|
Clause 41: New.
|
|
|
|
|
|
|
|
Clause 42: Subsections 7(3.71) to (3.77) read as
follows:
|
|
|
|
(3.71) Notwithstanding anything in this Act or any other Act, every
person who, either before or after the coming into force of this
subsection, commits an act or omission outside Canada that constitutes
a war crime or a crime against humanity and that, if committed in
Canada, would constitute an offence against the laws of Canada in force
at the time of the act or omission shall be deemed to commit that act or
omission in Canada at that time if,
|
|
|
|
(a) at the time of the act or omission,
|
|
|
|
(i) that person is a Canadian citizen or is employed by Canada in
a civilian or military capacity,
|
|
|
|
(ii) that person is a citizen of, or is employed in a civilian or
military capacity by, a state that is engaged in an armed conflict
against Canada, or
|
|
|
|
(iii) the victim of the act or omission is a Canadian citizen or a
citizen of a state that is allied with Canada in an armed conflict;
or
|
|
|
|
(b) at the time of the act or omission, Canada could, in conformity
with international law, exercise jurisdiction over the person with
respect to the act or omission on the basis of the person's presence
in Canada and, subsequent to the time of the act or omission, the
person is present in Canada.
|
|
|
|
(3.72) Any proceedings with respect to an act or omission referred
to in subsection (3.71) shall be conducted in accordance with the laws
of evidence and procedure in force at the time of the proceedings.
|
|
|
|
(3.73) In any proceedings with respect to an act or omission referred
to in subsection (3.71), notwithstanding that the act or omission is an
offence under the laws of Canada in force at the time of the act or
omission, the accused may, subject to subsection 607(6), rely on any
justification, excuse or defence available under the laws of Canada or
under international law at that time or at the time of the proceedings.
|
|
|
|
(3.74) Notwithstanding subsection (3.73) and section 15, a person
may be convicted of an offence in respect of an act or omission referred
to in subsection (3.71) even if the act or omission is committed in
obedience to or in conformity with the law in force at the time and in the
place of its commission.
|
|
|
|
(3.75) Notwithstanding any other provision of this Act, no
proceedings may be commenced with respect to an act or omission
referred to in subsection (3.71) without the personal consent in writing
of the Attorney General or Deputy Attorney General of Canada, and
such proceedings may only be conducted by the Attorney General of
Canada or counsel acting on his behalf.
|
|
|
|
(3.76) For the purposes of this section,
|
|
|
|
``conventional international law'' means
|
|
|
|
(a) any convention, treaty or other international agreement that is
in force and to which Canada is a party, or
|
|
|
|
(b) any convention, treaty or other international agreement that is
in force and the provisions of which Canada has agreed to accept
and apply in an armed conflict in which it is involved;
|
|
|
|
``crime against humanity'' means murder, extermination, enslavement,
deportation, persecution or any other inhumane act or omission that
is committed against any civilian population or any identifiable
group of persons, whether or not it constitutes a contravention of the
law in force at the time and in the place of its commission, and that,
at that time and in that place, constitutes a contravention of
customary international law or conventional international law or is
criminal according to the general principles of law recognized by the
community of nations;
|
|
|
|
``war crime'' means an act or omission that is committed during an
international armed conflict, whether or not it constitutes a
contravention of the law in force at the time and in the place of its
commission, and that, at that time and in that place, constitutes a
contravention of the customary international law or conventional
international law applicable in international armed conflicts.
|
|
|
|
(3.77) In the definitions ``crime against humanity'' and ``war crime''
in subsection (3.76), ``act or omission'' includes, for greater certainty,
attempting or conspiring to commit, counselling any person to commit,
aiding or abetting any person in the commission of, or being an
accessory after the fact in relation to, an act or omission.
|
|
|
|
Clause 43: The relevant portion of section 183 reads
as follows:
|
|
|
|
``offence'' means. . .;
|
|
|
|
Clause 44: New. The relevant portion of section 469
reads as follows:
|
|
|
|
469. Every court of criminal jurisdiction has jurisdiction to try an
indictable offence other than
|
|
|
|
Clause 45: Subsection 607(6) reads as follows:
|
|
|
|
(6) A person who is alleged to have committed an act or omission
outside Canada that is an offence in Canada by virtue of any of
subsections 7(2) to (3.4) or (3.7), and in respect of which the person has
been tried and convicted outside Canada, may not plead autrefois
convict with respect to a count that charges that offence if
|
|
|
|
(a) at the trial outside Canada the person was not present and was not
represented by counsel acting under the person's instructions, and
|
|
|
|
(b) the person was not punished in accordance with the sentence
imposed on conviction in respect of the act or omission,
|
|
|
|
notwithstanding that the person is deemed by virtue of subsection 7(6)
to have been tried and convicted in Canada in respect of the act or
omission.
|
|
|
|
Clause 46: New. The relevant portion of section 745
reads as follows:
|
|
|
|
745. Subject to section 745.1, the sentence to be pronounced against
a person who is to be sentenced to imprisonment for life shall be
|
|
|
|
|
|
|
|
Clause 47: New
|
|
|
|
Clause 48: New.
|
|
|
|
Clause 49: Subsection 14(2) reads as follows:
|
|
|
|
(2) A judge may, on application of the Attorney General, extend a
period referred to in subsection (1).
|
|
|
|
Clause 50: Subsections 18(1.1) and (1.2) are new.
Subsection 18(1) reads as follows:
|
|
|
|
18. (1) The judge before whom a person is brought following arrest
under section 13 or 16 shall order the release, with or without
conditions, or detention in custody of the person.
|
|
|
|
Clause 51: Subsection 40(5) reads as follows:
|
|
|
|
(5) If the person has made submissions to the Minister under section
43 and the Minister is of the opinion that further time is needed to act
on those submissions, the Minister may extend the period referred to in
subsection (1) for one additional period that does not exceed 60 days.
|
|
|
|
Clause 52: New.
|
|
|
|
Clause 53: Section 76 reads as follows:
|
|
|
|
76. If a person being extradited from one State or entity to another
arrives in Canada without prior consent to transit, a peace officer may,
at the request of a public officer who has custody of the person being
extradited while the person is being conveyed, hold the person in
custody for a maximum period of 24 hours pending receipt by the
Minister of a request for a consent to transit from the requesting State
or entity.
|
|
|
|
|
|
|
|
Clause 54: New. The relevant portion of subsection
5(1) reads as follows:
|
|
|
|
5. (1) Subject to subsection (2), the Governor in Council may, by
order, provide that
|
|
|
|
|
|
|
|
Clause 55: The relevant portion of subsection 19(1)
reads as follows:
|
|
|
|
19. (1) No person shall be granted admission who is a member of any
of the following classes:
|
|
|
|
|
|
|
|
(j) persons who there are reasonable grounds to believe have
committed an act or omission outside Canada that constituted a war
crime or a crime against humanity within the meaning of subsection
7(3.76) of the Criminal Code and that, if it had been committed in
Canada, would have constituted an offence against the laws of
Canada in force at the time of the act or omission;
|
|
|
|
|
|
|
|
(l) persons who are or were senior members of or senior officials in
the service of a government that is or was, in the opinion of the
Minister, engaged in terrorism, systematic or gross human rights
violations or war crimes or crimes against humanity within the
meaning of subsection 7(3.76) of the Criminal Code, except persons
who have satisfied the Minister that their admission would not be
detrimental to the national interest.
|
|
|
|
|
|
|
|
Clause 56: New.
|
|
|
|
Clause 57: New.
|
|
|
|
Clause 58: Section 10 reads as follows:
|
|
|
|
10. The Criminal Code, other than section 487.1 (telewarrants)
thereof, applies, with such modifications as the circumstances require,
in respect of a search or a seizure pursuant to this Act, except where that
Act is inconsistent with this Act.
|
|
|
|
Clause 59: Section 11 reads as follows:
|
|
|
|
11. (1) When the Minister approves a request of a state or entity to
have a search or a seizure carried out in Canada regarding an offence
with respect to which the state or entity has jurisdiction, the Minister
shall provide a competent authority with any documents or information
necessary to apply for a search warrant.
|
|
|
|
(2) The competent authority who is provided with the documents or
information shall apply ex parte for a search warrant to a judge of the
province in which the competent authority believes that evidence of the
commission of the offence may be found.
|
|
|
|
Clause 60: The relevant portion of subsection 12(1)
reads as follows:
|
|
|
|
12. (1) A judge of a province to whom an application is made under
subsection 11(2) may issue a search warrant authorizing a peace officer
named therein to execute it anywhere in the province, where the judge
is satisfied by statements under oath that there are reasonable grounds
to believe that
|
|
|
|
(a) an offence has been committed with respect to which the state or
entity has jurisdiction;
|
|
|
|
Clause 61: New.
|
|
|
|
Clause 62: Subsection 17(1) reads as follows:
|
|
|
|
17. (1) When the Minister approves a request of a state or entity to
obtain, by means of an order of a judge, evidence regarding an offence
with respect to which the state or entity has jurisdiction, the Minister
shall provide a competent authority with any documents or information
necessary to apply for the order.
|
|
|
|
Clause 63: (1) The relevant portion of subsection
18(1) reads as follows:
|
|
|
|
18. (1) A judge to whom an application is made under subsection
17(2) may make an order for the gathering of evidence, where he is
satisfied that there are reasonable grounds to believe that
|
|
|
|
(a) an offence has been committed with respect to which the state or
entity has jurisdiction; and
|
|
|
|
(2) Subsections 18(7) to (9) read as follows:
|
|
|
|
(7) A person named in an order made under subsection (1) may
refuse to answer one or more questions or to produce certain records or
things to the person designated under paragraph (2)(c) if
|
|
|
|
(a) the refusal is based on a law in force in Canada;
|
|
|
|
(b) to require the person to answer the questions or to produce the
records or things would constitute a breach of a privilege recognized
by a law in force in the state or entity that presented the request
mentioned in subsection 17(1); or
|
|
|
|
(c) to answer the questions or to produce the records or things would
constitute the commission by the person of an offence against a law
in force in the state or entity that presented the request mentioned in
subsection 17(1).
|
|
|
|
(8) Where a person refuses to answer a question or to produce a
record or thing, the person designated under paragraph (2)(c) shall
continue the examination and ask any other question or request the
production of any other record or thing mentioned in the order.
|
|
|
|
(9) A person named in an order made under subsection (1) who,
pursuant to subsection (7), refuses to answer one or more questions or
to produce certain records or things shall, within seven days, give to the
person designated under paragraph (2)(c) a detailed statement in
writing of all of the reasons on which the person bases the refusal to
answer each question that the person refuses to answer or to produce
each record or thing that the person refuses to produce.
|
|
|
|
Clause 64: Subsection 19(3) reads as follows:
|
|
|
|
(3) A judge to whom a report is made shall determine whether the
reasons contained in any statement given under subsection 18(9) that
purport to be based on a law in force in Canada are well-founded and,
where the judge determines that they are, that determination shall be
mentioned in any order that the judge makes under section 20 but,
where the judge determines that they are not, the judge shall order that
the person named in the order made under subsection 18(1) answer the
questions or produce the records or things.
|
|
|
|
Clause 65: Subsections 20(3) and (4) read as follows:
|
|
|
|
(3) The execution of an order made under subsection 18(1) that was
not completely executed because of a refusal, by reason of a law that
applies to the state or entity, to answer one or more questions or to
produce certain records or things to the person designated under
paragraph 18(2)(c) may be continued if a court of the state or entity or
a person designated by the state or entity determines that the reasons are
not well-founded and the state or entity so advises the Minister.
|
|
|
|
(4) No person named in an order made under subsection 18(1) whose
reasons for refusing to answer a question or to produce a record or thing
are determined, in accordance with subsection (3), not to be
well-founded shall, during the continued execution of the order, refuse
to answer that question or to produce that record or thing to the person
designated under paragraph 18(2)(c), except with the permission of the
judge who made the order under subsection (1) or another judge of the
same court.
|
|
|
|
Clause 66: Section 22 reads as follows:
|
|
|
|
22. A person named in an order made under subsection 18(1)
commits a contempt of court if the person refuses to answer a question
or to produce a record or thing to the person designated under paragraph
18(2)(c)
|
|
|
|
(a) without giving the detailed statement required by subsection
18(9); or
|
|
|
|
(b) where the person so named was already asked the same question
or requested to produce the same record or thing and all of the
reasons on which that person based the earlier refusal were
determined not to be well-founded by
|
|
|
|
(i) a judge, if the reasons were based on a law in force in Canada,
or
|
|
|
|
(ii) a court of the state or entity or by a person designated by the
state or entity, if the reasons were based on a law that applies to
the state or entity.
|
|
|
|
Clause 67: Subsection 22.1(1) reads as follows:
|
|
|
|
22.1 (1) If the Minister approves a request of a state or entity to
compel a person to provide evidence or a statement, by means of
technology that permits the virtual presence of the person in the territory
over which the state or entity has jurisdiction, or that permits the parties
and the court to hear and examine the witness, regarding an offence with
respect to which the state or entity has jurisdiction, the Minister shall
provide a competent authority with any documents or information
necessary to apply for the order.
|
|
|
|
Clause 68: The relevant portion of subsection 22.2(1)
reads as follows:
|
|
|
|
22.2 (1) The judge may make the order if satisfied that there are
reasonable grounds to believe that
|
|
|
|
(a) an offence has been committed with respect to which the state or
entity has jurisdiction; and
|
|
|
|
Clause 69: New.
|
|
|
|
|
|
|
|
Clause 70: Section 16 reads as follows:
|
|
|
|
16. Where, in any proceeding or other matter to which a provision
of this Act and a provision of the Visiting Forces Act or the Foreign
Missions and International Organizations Act apply, there is a conflict
between those provisions, the provision of this Act ceases to apply in the
proceeding or other matter to the extent of the conflict.
|
|
|
|
|
|
|
|
Clause 71: The relevant portion of section 3 reads as
follows:
|
|
|
|
3. The purpose of this Act is to promote law enforcement by
facilitating the protection of persons who are involved directly or
indirectly in providing assistance in law enforcement matters in relation
to
|
|
|
|
|
|
|
|
(b) activities conducted by any law enforcement agency in respect
of which an agreement or arrangement has been entered into under
section 14.
|
|
|
|
Clause 72: The relevant portion of subsection 6(1)
reads as follows:
|
|
|
|
6. (1) A witness shall not be admitted to the Program unless
|
|
|
|
(a) a recommendation for the admission has been made by a law
enforcement agency;
|
|
|
|
Clause 73: The relevant portion of section 10 reads as
follows:
|
|
|
|
10. Where a decision is taken
|
|
|
|
(a) to refuse to admit a witness to the Program, the Commissioner
shall provide the law enforcement agency that recommended the
admission or, in the case of a witness recommended by the Force, the
witness, with written reasons to enable the agency or witness to
understand the basis for the decision; or
|
|
|
|
Clause 74: New.
|
|
|
|
Clause 75: The relevant portion of section 15 reads as
follows:
|
|
|
|
15. The Commissioner's powers under this Act, other than those that
may be exercised in the circumstances referred to in paragraphs
11(3)(b) to (d), may be exercised on behalf of the Commissioner by any
member of the Force authorized to do so but, where a decision is to be
taken
|
|
|
|
|
|
|
|
(b) whether to admit a witness to the Program pursuant to an
agreement under paragraph 14(1)(a) or an arrangement under
subsection 14(2) or to change the identity of a protectee or terminate
the protection provided to a protectee, the member making the
decision shall be the Assistant Commissioner who is designated by
the Commissioner as being responsible for the Program.
|
|