Full Text:Volume 5B

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See also: Full Text:Volume 5

Concurrent and Consecutive Sentences

This page was last substantively updated or reviewed July 2021. (Rev. # 79465)

General Principles

Cumulative punishments arising from a single sentencing hearing on multiple offences are known as consecutive sentences. This only applies to jail sentences, all other sentences run concurrently.

All sentences are presumed to be served concurrently. The Code provides for cumulative punishments at section 718.3:

718.3
[omitted (1), (2) and (3)]

Cumulative punishments

(4) The court that sentences an accused shall consider directing

(a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing; and
(b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when
(i) the offences do not arise out of the same event or series of events,
(ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or
(iii) one of the offences was committed while the accused was fleeing from a peace officer.
Cumulative punishments — fines

(5) For the purposes of subsection (4) [degrees of punishment limitations – cumulative punishments], a term of imprisonment includes imprisonment that results from the operation of subsection 734(4) [fine – imprisonment in default of payment].

[omitted (6), (7) and (8)]
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182; 2015, c. 23, s. 17.
[annotation(s) added]

CCC


Note up: 718.3(4) and (5)

Generally, sentences for offences that occur at separate occasions will be served consecutively.[1] While where the offences arise out of the same transaction, the sentences will be typically concurrent.[2]

If the court does not indicate whether sentences are concurrent or consecutive it is presumed concurrent.[3]

It has been observed that the “proper approach to sentencing an offender for multiple offences is unsettled.”[4]

Consideration

Judges should be cautious not to "slavishly impose consecutive sentences merely because offences are... committed on different days." Instead, where there is a "reasonably close" nexus, concurrent sentences can be imposed. [5]

When deciding whether a sentence should be consecutive or concurrent, the court should consider 1) the time frame of the offences, 2) the similarity of the offences, 3) whether a new intent broached each offence, and 4) whether the total sentence is fit and proper.[6]

Procedure

The recommended procedure for dealing with multiple offences suggests that the sentencing judge must first determine whether the sentences should be served consecutively or concurrently. If consecutive, appropriate sentence for each offence is calculated, following this, the totality principle is applied which would adjust the sentence as needed.[7]

Consecutive When There is Single Transaction

A judge may order a sentence to be served consecutively despite the offences arising from the same transaction or incident, such as where the offences "constitute invasions of different legally protected interests, although the principles of totality must be kept in mind"[8] , where the offences "protect different societal interests" or the gravamen of the two offences are different.[9]

Nevertheless, the decision of consecutive sentences is a discretionary one and is entitled to deference.[10]

Sentences may be imposed consecutively in relation to a single transaction where the punishments protect "different societal interests" or "different legal interests".[11] A judge should consider the time frame within which the offences occurred, the similarity of the offences, whether a new intent or impulse initiated each of the offences and whether the total sentence is fit and proper under the circumstances.[12]

Where offences "protect different social interests" the principle requiring concurrency of sentence when the offences arise from the "same transaction or incident" does "not necessarily apply when the offences constitute invasions of different legally protected interests".[13]

Consecutive Intermittent Sentences

It is not possible to order consecutive sentences that total more than 90 days and have the time served intermittently.[14]

  1. R v Dube, 2006 QCCA 699 (CanLII), per curiam
    R v Leroux, 2015 SKCA 48 (CanLII), [2015] 9 WWR 709, per Caldwell JA
  2. R v Mascarenhas, 2002 CanLII 41625 (ON CA), 58 WCB (2d) 492, per Abella JA, at para 31
    R v Veysey, 2006 NBCA 55 (CanLII), 211 CCC (3d) 558, per Larlee and Robertson JJA
    R v Desmarest (1986), 2 QAC 151 (*no CanLII links)
    R v Charchuk (1973), 6 NSR (2d) 519 (*no CanLII links)
  3. cf. R v SPM, 2005 NLCA 36 (CanLII), 198 CCC (3d) 383, per Cameron JA, at para 11
  4. R v Wozny, 2010 MBCA 115 (CanLII), 267 CCC (3d) 308, per MacInnes JA
    R v Ahmed, 2017 ONCA 76 (CanLII), 346 CCC (3d) 504, per van Rensburg JA, at para 85
  5. R v Hatch, [1979] NSJ 520 (*no CanLII links)
  6. R v GAW, 1993 CanLII 5618 (NS CA), NSR (2d) 312 (NSCA), per Roscoe JA
    R v Maroti, 2010 MBCA 54 (CanLII), 256 CCC (3d) 332, per Steel JA
    R v Naugle, 2011 NSCA 33 (CanLII), 271 CCC (3d) 321, per Beveridge JA
  7. R v Draper (T.G.), 2010 MBCA 35 (CanLII), 253 CCC (3d) 351, per Steel JA, at paras 29 to 31
  8. Mascarenhas, supra, at para 31
    R v Gummer (1983), 1 OAC 141, 25 MVR 282(*no CanLII links) , at p. 144
  9. R v Berezowsky, 2006 CanLII 7030 (ON SC), per Fuerst J, at para 20
    R v Dua, [1999] OJ No 5068 (SCJ) (*no CanLII links)
  10. R v TEM, 1997 CanLII 389 (SCC), [1997] 1 SCR 948, per Sopinka J, at para 46
    Maroti, supra
  11. R v Gillis, 2009 ONCA 312 (CanLII), 248 OAC 1, per curiam
    R v Clarke, 1994 CanLII 4071 (NS CA), 94 CCC 249 (NSCA), per Hallett JA
  12. GAW, supra
    Naugle, supra
  13. R v Clouthier, 2016 ONCA 197 (CanLII), 129 OR (3d) 481, per Watt JA, at para 55 - failing to stay at scene of accident consecutive to impaired driving causing bodily harm
    Gummer, supra, at para 13
    R v Van Puyenbroek, 2007 ONCA 824 (CanLII), 226 CCC (3d) 289, per Feldman JA, at para 63
  14. see Intermittent Sentences

Consecutive Sentencing Based on Type of Offence

Where offences are committed in prison "must be consecutive", particularly when it involves violence against correctional officers.[1]

Offences committed while out on bail awaiting trial will be consecutive even where the latter offence may be part of an ongoing spree.[2]

Where an offender is convicted of a possession offence and then an offence involving "using or dealing with it". The sentences should be concurrent.[3]

Crime Sprees

Where a judge is sentencing an offender for a series of alike offences, he may order that the individual sentences be all served concurrently to each other and sentence the series of offences as a whole amounting to a "crime spree" or simply a "single" criminal transaction.[4] For the sentences be concurrent as a "crime spree" the acts must be "similar, continuous and recurring" with "the same gravamen within a sustained and relatively short period of time".[5]

Life Sentences

At common law, sentencing judge may not impose consecutive life sentences.[6] It is a logical impossibility to order any sentence to be consecutive to a previously imposed life sentence.[7] Accordingly, where a sentence is required by statute to be served consecutively to any other sentence, the court must order it concurrent to a life sentence.[8]

Appellate Review

The decision to give a concurrent or consecutive sentence should be given the same deference as the judge's decision on the length of sentence.[9]

  1. Ruby, Sentencing (7th ed.) Markham:LexisNexis Canada Inc 2008, at p. 524
    R v Healey, 2016 CanLII 26778 (NL PC), per Orr J, at para 15
  2. R v McKinney, 1963 CanLII 360 (SK QB), [1963] SJ No 17, per Disbery J
    Healey, supra, at para 16
  3. Healey, supra, at para 18
    Ruby, supra, at p. 530
    R v KDH, 2012 ABQB 471 (CanLII), 102 WCB (2d) 621, per Manderscheid J, at paras 13 to 54
  4. e.g. R v Arbuthnot, 2009 MBCA 106 (CanLII), 248 CCC (3d) 219, per Chartier JA, at paras 19 and 24
    R v Osachie, [1973] NSJ 112 (NSCA)(*no CanLII links) , at para 10
  5. Arbuthnot, ibid., at para 24
  6. R v Hawkins, 2011 NSCA 7 (CanLII), 265 CCC (3d) 513, per Beveridge JA, at para 39
  7. R v Cochrane, 1994 CanLII 1733 (BC CA), 88 CCC (3d) 570, per Lambert JA, at para 9 ("These decisions all establish and agree that a term of years cannot be imposed on the basis that it be served consecutively with a life sentence, but only on the basis that it be served concurrently with a life sentence. The reason is that such a sentence, that is a sentence imposed consecutively to a life sentence, is a logical impossibility.")
  8. Cochrane, ibid.
  9. R v McDonnell, 1997 CanLII 389 (SCC), [1997] 1 SCR 948, per Sopinka J

Cumulative Sentences for Sexual Offences

Treatment of sexual offences are addressed in s. 718.3(7). That section states:

718.3
[omitted (1), (2), (3), (4), (5) and (6)]

Cumulative punishments — sexual offences against children

(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct

(a) that a sentence of imprisonment it imposes for an offence under section 163.1 [child pornography] be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1 [child pornography], be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1 [child pornography].

[omitted (8)]
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182; 2015, c. 23, s. 17.
[annotation(s) added]

CCC


Note up: 718.3(7)

This section must still be subject to the principle of totality.[1]

History

This section was added with the Tougher Penalties for Child Predators Act, 2015, c. 23, which came into force July 16, 2015.

Constitutionality

There is some appellate authority finding s. 718.3(7) unconstitutional.[2]

  1. R v Dichrow, 2022 ABCA 282 (CanLII), per curiam, at para 28
    R v Kalliraq, 2022 NUCA 6 (CanLII), per curiam, at para 19
  2. R v Camacho, 2021 QCCA 683 (CanLII), per Vauclair JA - on crown concession only
    R v Kalliraq, 2022 NUCA 6 (CanLII), per curiam, at paras 21 to 23

Youth Sentencing

See also: Sentencing Young Offenders

718.3
[omitted (1), (2), (3), (4) and (5)]

Cumulative punishments — youth

(6) For the purposes of subsection (4), a sentence of imprisonment includes

(a) a disposition made under paragraph 20(1)(k) or (k.1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985;
(b) a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act; and
(c) a sentence that results from the operation of subsection 743.5(1) or (2).

[omitted (7) and (8)]
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182; 2015, c. 23, s. 17.

CCC


Note up: 718.3(6)

42
[omitted (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11) and (12)]

Consecutive youth sentences

(13) Subject to subsections (15) and (16), a youth justice court that sentences a young person may direct that a sentence imposed on the young person under paragraph (2)(n) [youth sentences – custody and supervision order (general)], (o) [youth sentences – custody and supervision order (serious offence)], (q) [youth sentences – custody and supervision order] or (r) [youth sentences – intensive rehabilitative custody and supervision order] be served consecutively if the young person

(a) is sentenced while under sentence for an offence under any of those paragraphs; or
(b) is found guilty of more than one offence under any of those paragraphs.

[omitted (14), (15), (16) and (17)]
2002, c. 1, s. 42; 2012, c. 1, s. 174.
[annotation(s) added]

YCJA


Note up: 42(13)

A youth court judge may not order a sentence for open custody followed by a consecutive sentence of deferred custody.[1]

  1. LSJPA — 1833, 2018 QCCA 1910 (CanLII), per curiam (3:0) see s. 42(13)

Additional Sentences

Additional youth sentences

43 Subject to subsection 42(15) (duration of youth sentences), if a young person who is subject to a custodial sentence imposed under paragraph 42(2)(n), (o), (q) or (r) that has not expired receives an additional youth sentence under one of those paragraphs, the young person is, for the purposes of the Corrections and Conditional Release Act, the Criminal Code, the Prisons and Reformatories Act and this Act, deemed to have been sentenced to one youth sentence commencing at the beginning of the first of those youth sentences to be served and ending on the expiry of the last of them to be served.

YCJA


Note up: 43

Custodial portion if additional youth sentence

44 Subject to subsection 42(15) (duration of youth sentences) and section 46 (exception when youth sentence in respect of earlier offence), if an additional youth sentence under paragraph 42(2)(n), (o), (q) or (r) is imposed on a young person on whom a youth sentence had already been imposed under one of those paragraphs that has not expired and the expiry date of the youth sentence that includes the additional youth sentence, as determined in accordance with section 43, is later than the expiry date of the youth sentence that the young person was serving before the additional youth sentence was imposed, the custodial portion of the young person’s youth sentence is, from the date the additional sentence is imposed, the total of

(a) the unexpired portion of the custodial portion of the youth sentence before the additional youth sentence was imposed, and
(b) the relevant period set out in subparagraph (i), (ii) or (iii):
(i) if the additional youth sentence is imposed under paragraph 42(2)(n), the period that is two thirds of the period that constitutes the difference between the expiry of the youth sentence as determined in accordance with section 43 and the expiry of the youth sentence that the young person was serving before the additional youth sentence was imposed,
(ii) if the additional youth sentence is a concurrent youth sentence imposed under paragraph 42(2)(o), (q) or (r), the custodial portion of the youth sentence imposed under that paragraph that extends beyond the expiry date of the custodial portion of the sentence being served before the imposition of the additional sentence, or
(iii) if the additional youth sentence is a consecutive youth sentence imposed under paragraph 42(2)(o), (q) or (r), the custodial portion of the additional youth sentence imposed under that paragraph.

YCJA


Note up: 44

Supervision when additional youth sentence extends the period in custody

45 (1) If a young person has begun to serve a portion of a youth sentence in the community subject to conditions under paragraph 42(2)(n) or under conditional supervision under paragraph 42(2)(o), (q) or (r) at the time an additional youth sentence is imposed under one of those paragraphs, and, as a result of the application of section 44, the custodial portion of the young person’s youth sentence ends on a day that is later than the day on which the young person received the additional youth sentence, the serving of a portion of the youth sentence under supervision in the community subject to conditions or under conditional supervision shall become inoperative and the young person shall be committed to custody under paragraph 102(1)(b) or 106(b) until the end of the extended portion of the youth sentence to be served in custody.

Supervision when additional youth sentence does not extend the period in custody

(2) If a youth sentence has been imposed under paragraph 42(2)(n), (o), (q) or (r) on a young person who is under supervision in the community subject to conditions under paragraph 42(2)(n) or under conditional supervision under paragraph 42(2)(o), (q) or (r), and the additional youth sentence would not modify the expiry date of the youth sentence that the young person was serving at the time the additional youth sentence was imposed, the young person may be remanded to the youth custody facility that the provincial director considers appropriate. The provincial director shall review the case and, no later than forty-eight hours after the remand of the young person, shall either refer the case to the youth justice court for a review under section 103 or 109 or release the young person to continue the supervision in the community or the conditional supervision.

Supervision when youth sentence additional to supervision

(3) If a youth sentence has been imposed under paragraph 42(2)(n), (o), (q) or (r) on a young person who is under conditional supervision under paragraph 94(19)(b) or subsection 96(5), the young person shall be remanded to the youth custody facility that the provincial director considers appropriate. The provincial director shall review the case and, no later than forty-eight hours after the remand of the young person, shall either refer the case to the youth justice court for a review under section 103 or 109 or release the young person to continue the conditional supervision.

YCJA


Note up: 45(1), (2) and (3)

Exception when youth sentence in respect of earlier offence

46 The total of the custodial portions of a young person’s youth sentences shall not exceed six years calculated from the beginning of the youth sentence that is determined in accordance with section 43 if

(a) a youth sentence is imposed under paragraph 42(2)(n), (o), (q) or (r) on the young person already serving a youth sentence under one of those paragraphs; and
(b) the later youth sentence imposed is in respect of an offence committed before the commencement of the earlier youth sentence.

YCJA


Note up: 46

History of s. 718.3

The previous version of 718.3(4) read:

718.3.
...

Cumulative punishments

(4) The court or youth justice court that sentences an accused may direct that the terms of imprisonment that are imposed by the court or the youth justice court or that result from the operation of subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when

(a) the accused is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed;
(b) the accused is found guilty or convicted of an offence punishable with both a fine and imprisonment and both are imposed;
(c) the accused is found guilty or convicted of more than one offence, and
(i) more than one fine is imposed,
(ii) terms of imprisonment for the respective offences are imposed, or
(iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence; or
(d) subsection 743.5(1) or (2) applies.

1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182.

CCC

Sections 718.3(5) to (7) were first introduced in 2012.

Mandatory Consecutive Sentences

Certain sentences must be ordered to be served consecutively:

  1. Possession of Explosive Substance in association with criminal organization (s. 82 and 82.1)
  2. offences under s. 83.02 to 83.04 and 83.18 to 83.23
  3. Commission of indictable offence to advantage a terrorist group (s. 83.2 and s. 83.26)
  4. Instructing activity for terrorist group (s. 83.21(1) and s. 83.26)
  5. Instructing terrorist activity (s. 83.22(1) and s. 83.26)
  6. Using Firearm in Commission of Offence (s. 85(4))
  7. offences under s. 270(1), 270.01(1) or 270.02 committed against a law enforcement officer (270.03)
  8. Killing or injuring certain animals (445.01)
  9. Instructing commission of offence for criminal organization (s. 467.13(1) and s. 467.14)

The decision on whether a sentence should be concurrent or consecutive "should be treated with the same deference owed by appellate courts to sentencing judges concerning the length of sentences ordered."[1]

  1. R v McDonnell, 1997 CanLII 389 (SCC), [1997] 1 SCR 948, per Sopinka J, at para 17

See Also

Maximum and Minimum Sentences

Statutory Minimum

Statutory Maximums

See Also

Life Sentences

This page was last substantively updated or reviewed January 2020. (Rev. # 79465)

General Principles

Ordering Life Sentences

When a sentencing judge is considering making a life sentence for a maximum life sentence offence, the circumstances justifying a life sentence should include "one or more" of the following future:[1]

  • cruelty, brutality, unusual violence;
  • terrorizing and torturing victim over a period of time;
  • intentional, prolonged, repeated violence against victim;
  • acts needlessly repeated or lack of feeling suggesting sadistic intent to cause terror or even torture;
  • intentional infliction of pain, fright, panic that is tantamount to torture solely for gratification or other perverse reason;
  • cruelty and callousness not frequently encountered;
  • deliberate infliction of brutal, disfiguring, life threatening injuries.

Prior consideration have been on the standard of offences of "stark horror".[2]

Mandatory Life Sentences

Sentence of life imprisonment

745. Subject to section 745.1 [murder conviction – under 18 – instruction], the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be

(a) in respect of a person who has been convicted of high treason or first degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(b) in respect of a person who has been convicted of second degree murder where that person has previously been convicted of culpable homicide that is murder, however described in this Act, that that person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(b.1) in respect of a person who has been convicted of second degree murder where that person has previously been convicted of an offence under section 4 or 6 of the Crimes Against Humanity and War Crimes Act that had as its basis an intentional killing, whether or not it was planned and deliberate, that that person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 745.4 [murder conviction - under 16 – substitute jury sentence]; and
(d) in respect of a person who has been convicted of any other offence, that the person be sentenced to imprisonment for life with normal eligibility for parole.

R.S., 1985, c. C-46, s. 745; R.S., 1985, c. 27 (2nd Supp.), s. 10; 1990, c. 17, s. 14; 1992, c. 51, s. 39; 1995, c. 22, s. 6; 2000, c. 24, s. 46.
[annotation(s) added]

CCC


Note up: 745


Defined terms: "person" (s. 2)

Information in respect of parole

745.01 (1) Except where subsection 745.6(2) [application for judicial review of parole ineligibility – exception for multi-murders] applies, at the time of sentencing under paragraph 745(a) [sentence of life imprisonment – high treason or first-degree murder], (b) [sentence of life imprisonment – subsequent conviction for second-degree murder] or (c) [sentence of life imprisonment – second-degree murder], the judge who presided at the trial of the offender shall state the following, for the record:

The offender has been found guilty of (state offence) and sentenced to imprisonment for life. The offender is not eligible for parole until (state date). However, after serving at least 15 years of the sentence, the offender may apply under section 745.6 [application for judicial review of parole ineligibility] of the Criminal Code for a reduction in the number of years of imprisonment without eligibility for parole. If the jury hearing the application reduces the period of parole ineligibility, the offender may then make an application for parole under the Corrections and Conditional Release Act at the end of that reduced period.
Exception

(2) Subsection (1) [information in respect of parole] does not apply if the offender is convicted of an offence committed on or after the day on which this subsection comes into force.
1999, c. 25, s. 21(Preamble); 2011, c. 2, s. 2.
[annotation(s) added]

CCC


Note up: 745.5(1) and (2)


Defined terms: "offender" (s. 2)

Judicial screening

745.61 (1) On receipt of an application under subsection 745.6(1) [application for judicial review of parole ineligibility], the appropriate Chief Justice shall determine, or shall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed:

(a) the application;
(b) any report provided by the Correctional Service of Canada or other correctional authorities; and
(c) any other written evidence presented to the Chief Justice or judge by the applicant or the Attorney General.
Criteria

(2) In determining whether the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(a) to (e) [hearing before jury – criteria for reduction of ineligibility], with any modifications that the circumstances require.

Decision re new application

(3) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge may

(a) set a time, no earlier than five years after the date of the determination, at or after which the applicant may make another application under subsection 745.6(1) [application for judicial review of parole ineligibility]; or
(b) decide that the applicant may not make another application under that subsection.
If no decision re new application

(4) If the Chief Justice or judge determines that the applicant has not shown that there is a substantial likelihood that the application will succeed but does not set a time for another application or decide that such an application may not be made, the applicant may make another application no earlier than five years after the date of the determination.

Designation of judge to empanel jury

(5) If the Chief Justice or judge determines that the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application.
1996, c. 34, s. 2; 2011, c. 2, s. 4.
[annotation(s) added]

CCC


Note up: 745.61(1), (2), (3), (4), and (5)


Defined terms: "Attorney General" (s. 2) and "superior court of criminal jurisdiction" (s. 2)

Appeal

745.62 (1) The applicant or the Attorney General may appeal to the Court of Appeal from a determination or a decision made under section 745.61 [judicial screening of review of parole ineligibility ] on any question of law or fact or mixed law and fact.

Documents to be considered

(2) The appeal shall be determined on the basis of the documents presented to the Chief Justice or judge who made the determination or decision, any reasons for the determination or decision and any other documents that the Court of Appeal requires.

Sections to apply

(3) Sections 673 to 696 [appeal of indictable offences, including to SCC] apply, with such modifications as the circumstances require.
1996, c. 34, s. 2.
[annotation(s) added]

CCC


Note up: 745.62(1), (2) and (3)


Defined terms: "Attorney General" (s. 2)

Hearing of application

745.63 (1) The jury empanelled under subsection 745.61(5) [designation of judge to empanel jury] to hear the application shall consider the following criteria and determine whether the applicant’s number of years of imprisonment without eligibility for parole ought to be reduced:

(a) the character of the applicant;
(b) the applicant’s conduct while serving the sentence;
(c) the nature of the offence for which the applicant was convicted;
(d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and
(e) any other matters that the judge considers relevant in the circumstances.
Information provided by victim

(1.1) Information provided by a victim referred to in paragraph (1)(d) [hearing before jury – decision re new application – other info] may be provided either orally or in writing, at the discretion of the victim, or in any other manner that the judge considers appropriate.

Definition of “victim”

(2) In paragraph (1)(d) [hearing before jury – decision re new application – other info], “victim” has the same meaning as in subsection 722(4) [victim impact statement – required form].

Reduction

(3) The jury hearing an application under subsection (1) [hearing before jury – criteria for reduction of ineligibility] may determine that the applicant’s number of years of imprisonment without eligibility for parole ought to be reduced. The determination to reduce the number of years must be by unanimous vote.

No reduction

(4) The applicant’s number of years of imprisonment without eligibility for parole is not reduced if

(a) the jury hearing an application under subsection (1) [hearing before jury – criteria for reduction of ineligibility] determines that the number of years ought not to be reduced;
(b) the jury hearing an application under subsection (1) [hearing before jury – criteria for reduction of ineligibility] concludes that it cannot unanimously determine that the number of years ought to be reduced; or
(c) the presiding judge, after the jury has deliberated for a reasonable period, concludes that the jury is unable to unanimously determine that the number of years ought to be reduced.
Where determination to reduce number of years

(5) If the jury determines that the number of years of imprisonment without eligibility for parole ought to be reduced, the jury may, by a vote of not less than two thirds of the members of the jury,

(a) substitute a lesser number of years of imprisonment without eligibility for parole than that then applicable; or
(b) terminate the ineligibility for parole.
Decision re new application

(6) If the applicant’s number of years of imprisonment without eligibility for parole is not reduced, the jury may

(a) set a time, no earlier than five years after the date of the determination or conclusion under subsection (4), at or after which the applicant may make another application under subsection 745.6(1) [application for judicial review of parole ineligibility]; or
(b) decide that the applicant may not make another application under that subsection.
Two-thirds decision

(7) The decision of the jury under paragraph (6)(a) [hearing before jury – set new hearing in 5 years or more] or (b) must be made by not less than two thirds of its members.

If no decision re new application

(8) If the jury does not set a date on or after which another application may be made or decide that such an application may not be made, the applicant may make another application no earlier than five years after the date of the determination or conclusion under subsection (4) [hearing before jury – when jury not satisfied].
1996, c. 34, s. 2; 1999, c. 25, s. 22(Preamble); 2011, c. 2, s. 5.
[annotation(s) added]

CCC


Note up: 745.63(1), (1.1), (2), (3), (4), (5), (6), (7), and (8)

Rules

745.64 (1) The appropriate Chief Justice in each province or territory may make such rules as are required for the purposes of sections 745.6 to 745.63 [application and procedure for review of parole ineligibility].

Statutory Instruments Act

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

Territories

(2) When the appropriate Chief Justice is designating a judge of the superior court of criminal jurisdiction, for the purpose of a judicial screening under subsection 745.61(1) [judicial screening of review of parole ineligibility] or to empanel a jury to hear an application under subsection 745.61(5) [designation of judge to empanel jury], in respect of a conviction that took place in Yukon, the Northwest Territories or Nunavut, the appropriate Chief Justice may designate the judge from the Court of Appeal of Yukon, the Northwest Territories or Nunavut, or the Supreme Court of Yukon or the Northwest Territories or the Nunavut Court of Justice, as the case may be.

1996, c. 34, s. 2; 1999, c. 3, s. 53; 2002, c. 7, s. 147(E); 2019, c. 25, s. 306.
[annotation(s) added]

CCC


Note up: 745.64(1), (1.1) and (2)


Defined terms: "superior court of criminal jurisdiction" (s. 2)

Time spent in custody

746. In calculating the period of imprisonment served for the purposes of section 745 [sentence of life imprisonment], 745.1 [murder conviction – under 18 – instruction], 745.4 [murder conviction - under 16 – substitute jury sentence], 745.5 [murder conviction - under 16 – substitute jury ineligibility] or 745.6 [application for judicial review of parole ineligibility], there shall be included any time spent in custody between

(a) in the case of a sentence of imprisonment for life after July 25, 1976, the day on which the person was arrested and taken into custody in respect of the offence for which that person was sentenced to imprisonment for life and the day the sentence was imposed; or
(b) in the case of a sentence of death that has been or is deemed to have been commuted to a sentence of imprisonment for life, the day on which the person was arrested and taken into custody in respect of the offence for which that person was sentenced to death and the day the sentence was commuted or deemed to have been commuted to a sentence of imprisonment for life.

R.S., 1985, c. C-46, s. 746; 1995, c. 19, s. 41, c. 22, ss. 6, 24.
[annotation(s) added]

CCC


Note up: 746


Defined terms: "person" (s. 2)

Parole prohibited

746.1 (1) Unless Parliament otherwise provides by an enactment making express reference to this section, a person who has been sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act shall not be considered for parole or released pursuant to a grant of parole under the Corrections and Conditional Release Act or any other Act of Parliament until the expiration or termination of the specified number of years of imprisonment.

Absence with or without escort and day parole

(2) Subject to subsection (3) [parole prohibited – young offenders req one-fifth], in respect of a person sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act, until the expiration of all but three years of the specified number of years of imprisonment,

(a) no day parole may be granted under the Corrections and Conditional Release Act;
(b) no absence without escort may be authorized under that Act or the Prisons and Reformatories Act; and
(c) except with the approval of the Parole Board of Canada, no absence with escort otherwise than for medical reasons or in order to attend judicial proceedings or a coroner’s inquest may be authorized under either of those Acts.

[omitted (3)]
1995, c. 22, s. 6, c. 42, s. 87; 1997, c. 17, s. 2; 2012, c. 1, ss. 160, 201.
[annotation(s) added]

CCC


Note up: 746.1(1) and (2)


Defined terms: "Act" (s. 2) and "person" (s. 2)

Young Persons

Persons under eighteen

745.1 The sentence to be pronounced against a person who was under the age of eighteen at the time of the commission of the offence for which the person was convicted of first degree murder or second degree murder and who is to be sentenced to imprisonment for life shall be that the person be sentenced to imprisonment for life without eligibility for parole until the person has served

(a) such period between five and seven years of the sentence as is specified by the judge presiding at the trial, or if no period is specified by the judge presiding at the trial, five years, in the case of a person who was under the age of sixteen at the time of the commission of the offence;
(b) ten years, in the case of a person convicted of first degree murder who was sixteen or seventeen years of age at the time of the commission of the offence; and
(c) seven years, in the case of a person convicted of second degree murder who was sixteen or seventeen years of age at the time of the commission of the offence.

1995, c. 22, ss. 6, 21.

CCC


Note up: 745.1


Defined terms: "person" (s. 2)


Persons under sixteen

745.3 Where a jury finds an accused guilty of first degree murder or second degree murder and the accused was under the age of sixteen at the time of the commission of the offence, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty of first degree murder (or second degree murder) and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the period of imprisonment that the accused must serve before the accused is eligible for release on parole? You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining the period of imprisonment that is between five years and seven years that the law would require the accused to serve before the accused is eligible to be considered for release on parole.


1995, c. 22, ss. 6, 22.

CCC


Note up: 745.3


Defined terms: "person" (s. 2)


Idem

745.5 At the time of the sentencing under section 745.1 [murder conviction – under 18 – instruction] of an offender who is convicted of first degree murder or second degree murder and who was under the age of sixteen at the time of the commission of the offence, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court, may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.3 [murder conviction - under 16 – instruction], by order, decide the period of imprisonment the offender is to serve that is between five years and seven years without eligibility for parole, as the judge deems fit in the circumstances.
1995, c. 22, ss. 6, 23.
[annotation(s) added]

CCC


Note up: 745.5


Defined terms: "offender" (s. 2)

746.1
[omitted (1) and (2)]

Young offenders

(3) In the case of any person convicted of first degree murder or second degree murder who was under the age of eighteen at the time of the commission of the offence and who is sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act, until the expiration of all but one fifth of the period of imprisonment the person is to serve without eligibility for parole,

(a) no day parole may be granted under the Corrections and Conditional Release Act;
(b) no absence without escort may be authorized under that Act or the Prisons and Reformatories Act; and
(c) except with the approval of the Parole Board of Canada, no absence with escort otherwise than for medical reasons or in order to attend judicial proceedings or a coroner’s inquest may be authorized under either of those Acts.

1995, c. 22, s. 6, c. 42, s. 87; 1997, c. 17, s. 2; 2012, c. 1, ss. 160, 201.

CCC


Note up: 746.1(3)


Defined terms: "Act" (s. 2) and "person" (s. 2)

Concurrent or Consecutive Sentences for Multiple Murders

Where an offender is to be sentenced for multiple offences of murder involving more than one victim, the judge is required to consider under s. 745.51 whether to order that the sentences be served consecutively:

Ineligibility for parole — multiple murders

745.51 (1) At the time of the sentencing under section 745 [sentence of life imprisonment] of an offender who is convicted of murder and who has already been convicted of one or more other murders, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation, if any, made pursuant to section 745.21 [recommendation by jury – multiple murders], by order, decide that the periods without eligibility for parole for each murder conviction are to be served consecutively.

Reasons

(2) The judge shall give, either orally or in writing, reasons for the decision to make or not to make an order under subsection (1) [order delaying parole for multiple murders].

Application

(3) Subsections (1) [order delaying parole for multiple murders] and (2) [order delaying parole for multiple murders – reasons] apply to an offender who is convicted of murders committed on a day after the day on which this section comes into force and for which the offender is sentenced under this Act, the National Defence Act or the Crimes Against Humanity and War Crimes Act.
2011, c. 5, s. 5.
[annotation(s) added]

CCC


Note up: 745.51(1), (2) and (3)

Recommendation by jury — multiple murders

745.21 (1) Where a jury finds an accused guilty of murder and that accused has previously been convicted of murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty of murder. The law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the period without eligibility for parole to be served for this murder consecutively to the period without eligibility for parole imposed for the previous murder? You are not required to make any recommendation, but if you do, your recommendation will be considered by me when I make my determination.
Application

(2) Subsection (1) [recommendation by jury – instruction on multiple murders] applies to an offender who is convicted of murders committed on a day after the day on which this section comes into force and for which the offender is sentenced under this Act, the National Defence Act or the Crimes Against Humanity and War Crimes Act.
2011, c. 5, s. 4.
[annotation(s) added]

CCC


Note up: 745.21(1) and (2)


For the purpose of s. 745.21 and 745.51, the date of the section coming into force was Dec 2, 2011.[3]

Constitutionality

Section 745.51 does not violate s. 7 or 12 of the Charter as it provides discretionary authority to impose certain types of sentence.[4]

  1. R v Klair, 2004 CanLII 8965 (ON CA), [2004] O.J. 2320 (CA), per Sharpe JA (2:1)
  2. R v Cheddesingh, 2002 CanLII 49362 (ON CA), 168 CCC (3d) 310, at paras 14 to 15
  3. see List of Criminal Code Amendments
  4. R v Granados-Arana, 2017 ONSC 6785 (CanLII), 356 CCC (3d) 340, per Campbell J

Second Degree Murder

Under s. 745.4, the judge may increase the parole ineligibility period from 10 years to anywhere not exceeding 25 years.

Ineligibility for parole

745.4 Subject to section 745.5 [murder conviction - under 16 – substitute jury ineligibility], at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2 [murder conviction – under 18], by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.
1995, c. 22, s. 6.
[annotation(s) added]

CCC


Note up: 745.4

The power to delay eligibility for parole does not need to be used "sparingly". [1]

In certain circumstances such as where it reveals character and background, evidence of uncharged criminal offences can be admissible in a parole ineligibility hearing.[2]

  1. R v Shropshire, 1995 CanLII 47 (SCC), [1995] 4 SCR 227, per Iacobucci J (9:0)
  2. R v Roberts, 2006 ABCA 113 (CanLII), 208 CCC (3d) 454, per Russell JA, at paras 29 to 45

Jury Recommendation

Single Murder
Recommendation by jury

745.2 Subject to section 745.3 [murder conviction - under 16 – instruction], where a jury finds an accused guilty of second degree murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty of second degree murder and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the number of years that the accused must serve before the accused is eligible for release on parole? You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining whether I should substitute for the ten year period, which the law would otherwise require the accused to serve before the accused is eligible to be considered for release on parole, a number of years that is more than ten but not more than twenty-five.

1995, c. 22, s. 6.
[annotation(s) added]

CCC


Note up: 745.2

Multiple Murders
Recommendation by jury — multiple murders

745.21 (1) Where a jury finds an accused guilty of murder and that accused has previously been convicted of murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty of murder. The law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the period without eligibility for parole to be served for this murder consecutively to the period without eligibility for parole imposed for the previous murder? You are not required to make any recommendation, but if you do, your recommendation will be considered by me when I make my determination.
Application

(2) Subsection (1) [recommendation by jury – instruction on multiple murders] applies to an offender who is convicted of murders committed on a day after the day on which this section comes into force and for which the offender is sentenced under this Act, the National Defence Act or the Crimes Against Humanity and War Crimes Act.
2011, c. 5, s. 4.
[annotation(s) added]

CCC


Note up: 745.21(1) and (2)

A jury may only consider "material leading to the conviction" when determining a recommendation. No other factors may be considered.[1] This means that there can be no submissions by counsel to the jury and no admission of criminal record after conviction has been made.[2]

A failure of the jury to make a recommendation on parole ineligibility is not the equivalent of a recommendation of 10 years.[3]

A recommendation of a jury is only one factor that the sentencing judge is to consider.[4]

  1. R v Nepoose, 1988 ABCA 382 (CanLII), 46 CCC (3d) 421, per Stratton JA, at para 16
  2. Nepoose, ibid., at paras 18, 19
  3. R v Cerra, 2004 BCCA 594 (CanLII), 192 CCC (3d) 78, per Donald JA (3:0), at para 13
  4. R v Joseph, 1984 CanLII 470 (BCCA), 15 CCC (3d) 314, per Craig JA, at para 18
    R v Jordan, 1983 CanLII 239 (BCCA), 7 CCC (3d) 143, per Anderson JA and MacFarlane JA

Review of Ineligibility

Application for judicial review

745.6 (1) Subject to subsections (2) to (2.6) , a person may apply, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole if the person

(a) has been convicted of murder or high treason;
(a.1) committed the murder or high treason before the day on which this paragraph comes into force;
(b) has been sentenced to imprisonment for life without eligibility for parole until more than fifteen years of their sentence has been served; and
(c) has served at least fifteen years of their sentence.
Exception — multiple murderers

(2) A person who has been convicted of more than one murder may not make an application under subsection (1) [application for judicial review of parole ineligibility], whether or not proceedings were commenced in respect of any of the murders before another murder was committed.

Less than 15 years of sentence served

(2.1) A person who is convicted of murder or high treason and who has served less than 15 years of their sentence on the day on which this subsection comes into force may, within 90 days after the day on which they have served 15 years of their sentence, make an application under subsection (1) [application for judicial review of parole ineligibility].

At least 15 years of sentence served

(2.2) A person who is convicted of murder or high treason and who has served at least 15 years of their sentence on the day on which this subsection comes into force may make an application under subsection (1) [application for judicial review of parole ineligibility] within 90 days after

(a) the end of five years after the day on which the person was the subject of a determination made under subsection 745.61(4) [timing of re new application if judge does not set new date] or a determination or conclusion to which subsection 745.63(8) applies; or
(b) the day on which this subsection comes into force, if the person has not made an application under subsection (1) [application for judicial review of parole ineligibility].
Non-application of subsection (2.2)

(2.3) Subsection (2.2) [application for judicial review of parole ineligibility – at least 15 years served] has no effect on a determination or decision made under subsection 745.61(3) [judge may reject application and delay or prevent new applications] or (5) [designation of judge to empanel jury] or 745.63(3) [hearing before jury – jury determines reduction unanimously], (5) [hearing before jury – jury determines amount of reduction by two-thirds vote] or (6) [hearing before jury – decision re new application] as it read immediately before the day on which this subsection comes into force. A person in respect of whom a time is set under paragraph 745.61(3)(a) [judge may reject application and delay new applications 5 years or more] or 745.63(6)(a) [hearing before jury – set new hearing in 5 years or more] as it read immediately before that day may make an application under subsection (1) [application for judicial review of parole ineligibility] within 90 days after the end of that time.

Further five-year period if no application made

(2.4) If the person does not make an application in accordance with subsection (2.1) [application for judicial review of parole ineligibility – less than 15 years served], (2.2) [application for judicial review of parole ineligibility – at least 15 years served] or (2.3) [application of (2.2) re retrospective cases], as the case may be, they may make an application within 90 days after the day on which they have served a further five years of their sentence following the 90-day period referred to in that subsection, as the case may be.

Subsequent applications

(2.5) A person who makes an application in accordance with subsection (2.1) [application for judicial review of parole ineligibility – less than 15 years served], (2.2) [application for judicial review of parole ineligibility – at least 15 years served] or (2.3) [application of (2.2) re retrospective cases], as the case may be, may make another application under subsection (1) [application for judicial review of parole ineligibility] within 90 days after

(a) the end of the time set under paragraph 745.61(3)(a) [judge may reject application and delay new applications 5 years or more] or 745.63(6)(a) [hearing before jury – set new hearing in 5 years or more], if a time is set under that paragraph; or
(b) the end of five years after the day on which the person is the subject of a determination made under subsection 745.61(4) [timing of re new application if judge does not set new date] or a determination or conclusion to which subsection 745.63(8) [hearing before jury – if no decision re new application] applies, if the person is the subject of such a determination or conclusion.
Subsequent applications

(2.6) A person who had made an application under subsection (1) [application for judicial review of parole ineligibility] as it read immediately before the day on which this subsection comes into force, whose application was finally disposed of on or after that day and who has then made a subsequent application may make a further application in accordance with subsection (2.5) [application for judicial review of parole ineligibility – subsequent application], if either paragraph (2.5)(a) [application for judicial review of parole ineligibility – murder or high treason – subsequent application] or (b) [application for judicial review of parole ineligibility – life with 15 years or more – subsequent application] is applicable.
(2.7) The 90-day time limits for the making of any application referred to in subsections (2.1) to (2.5) [application for judicial review of parole ineligibility – more than 15 years served] may be extended by the appropriate Chief Justice, or his or her designate, to a maximum of 180 days if the person, due to circumstances beyond their control, is unable to make an application within the 90-day time limit.
(2.8) If a person convicted of murder does not make an application under subsection (1) [application for judicial review of parole ineligibility] within the maximum time period allowed by this section, the Commissioner of Correctional Service Canada, or his or her designate, shall immediately notify in writing a parent, child, spouse or common-law partner of the victim that the convicted person did not make an application. If it is not possible to notify one of the aforementioned relatives, then the notification shall be given to another relative of the victim. The notification shall specify the next date on which the convicted person will be eligible to make an application under subsection (1) [application for judicial review of parole ineligibility].

Definition of “appropriate Chief Justice”

(3) For the purposes of this section and sections 745.61 to 745.64 [proceedings re reduction of parole ineligibility (faint hope)], the “appropriate Chief Justice” is

(a) in relation to the Province of Ontario, the Chief Justice of the Ontario Court;
(b) in relation to the Province of Quebec, the Chief Justice of the Superior Court;
(c) in relation to the Province of Newfoundland and Labrador, the Chief Justice of the Supreme Court, Trial Division;
(d) in relation to the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Chief Justice of the Court of Queen’s Bench;
(e) in relation to the Provinces of Nova Scotia, British Columbia and Prince Edward Island, the Chief Justice of the Supreme Court; and
(f) in relation to Yukon, the Northwest Territories and Nunavut, the Chief Justice of the Court of Appeal.

1993, c. 28, s. 78; 1995, c. 22, s. 6; 1996, c. 34, s. 2; 1998, c. 15, s. 20; 2002, c. 7, s. 146; 2011, c. 2, s. 3; 2015, c. 3, s. 55.
[annotation(s) added]

CCC


See Also

Tools of Sentencing: Ancillary Orders

There are a variety of ancillary sentencing orders including:

Ancillary Investigative Orders

DNA Orders

This page was last substantively updated or reviewed April 2021. (Rev. # 79465)

DNA Orders

DNA[1] Orders are court orders permitting certain law enforcement persons to take bodily substance samples for the purpose of adding a record of the offender's DNA to the national database.

Only "designated offences" are eligible for including DNA orders as part of sentencing. Section 487.04 defines "designated offence" as:

Definitions

487.04 In this section and in sections 487.05 to 487.0911 [DNA order related provisions],
...
"designated offence" means a primary designated offence or a secondary designated offence; (infraction désignée)
...
1995, c. 27, s. 1; 1998, c. 37, s. 15; 2001, c. 41, s. 17; 2002, c. 1, s. 175; 2005, c. 25, s. 1, c. 43, ss. 5, 9; 2007, c. 22, ss. 2, 8, 47; 2008, c. 6, ss. 35, 63; 2009, c. 22, s. 16; 2010, c. 3, s. 6, c. 17, s. 3; 2012, c. 1, s. 30; 2013, c. 9, s. 16, c. 13, s. 8; 2014, c. 17, s. 13, c. 25, s. 23; 2015, c. 20, s. 23; 2018, c. 16, s. 216, c. 21, s. 18; 2019, c. 13, s. 152; 2019, c. 25, s. 196.1.
[annotation(s) added]

CCC


Note up: 487.04

A DNA order can be made by a sentencing judge where the offence being sentenced is either a "primary designated offence", for which it is mandatory, or a "secondary designated offence", for which it is discretionary.

Under Part XV of the Code, s. 487.04 to 487.092 concern the "Forensic DNA Analysis". Section 487.04 defines "forensic DNA analysis" as follows:

Definitions

487.04 In this section and in sections 487.05 to 487.0911 [DNA order related provisions],
...
"forensic DNA analysis"

(a) in relation to a bodily substance that is taken from a person in execution of a warrant under section 487.05 [warrant to Obtain DNA samples], means forensic DNA analysis of the bodily substance and the comparison of the results of that analysis with the results of the analysis of the DNA in the bodily substance referred to in paragraph 487.05(1)(b) [information for warrant to take bodily substances for forensic DNA analysis – location of bodily substance], and includes any incidental tests associated with that analysis, and
(b) in relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or is taken from a person under an order made under section 487.051 [DNA Orders — primary designated offences] or an authorization granted under section 487.055 [DNA Orders — offenders serving sentences] or 487.091 [collection of additional bodily substances], or to a bodily substance referred to in paragraph 487.05(1)(b) [information for warrant to take bodily substances for forensic DNA analysis – location of bodily substance], means forensic DNA analysis of the bodily substance;

...
1995, c. 27, s. 1; 1998, c. 37, s. 15; 2001, c. 41, s. 17; 2002, c. 1, s. 175; 2005, c. 25, s. 1, c. 43, ss. 5, 9; 2007, c. 22, ss. 2, 8, 47; 2008, c. 6, ss. 35, 63; 2009, c. 22, s. 16; 2010, c. 3, s. 6, c. 17, s. 3; 2012, c. 1, s. 30; 2013, c. 9, s. 16, c. 13, s. 8; 2014, c. 17, s. 13, c. 25, s. 23; 2015, c. 20, s. 23; 2018, c. 16, s. 216, c. 21, s. 18; 2019, c. 13, s. 152; 2019, c. 25, s. 196.1.
[annotation(s) added]

CCC


Note up: 487.04

Purpose

The purpose behind taking a DNA sample from offenders is not simply for law enforcement. Objectives include:[2]

  1. deter potential repeat offenders;
  2. promote the safety of the community;
  3. detect when a serial offender is at work;
  4. assist in solving cold crimes;
  5. streamline investigations; and most importantly,
  6. assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted).
Format of Order

DNA orders for primary designated offences under s. 487.051(1) or (2) should be based on Form 5.03 of the Code. Those that are secondary designated offences under s. 487.051(3) should be Form 5.04.

  1. DNA is defined in s. 487.04 as "deoxyribonucleic acid"
  2. R v Jackpine/Rodgers, 2006 SCC 15 (CanLII), [2006] 1 SCR 554, per Charron J (4:3), at para 32
    R v Briggs, 2001 CanLII 24113 (ON CA), 157 CCC (3d) 38, per Weiler JA, at para 22

Primary Designated Offences

Primary designated offences divided into two categories. The first category of PDOs are mandatory DNA Orders under s. 487.051(1) where the offence is listed under s. 487.04(a) or (c.2). The second category of PDOs (sometimes referred to as "presumptive" PDOs) allow for a DNA order under s. 487.051(2) where the offence is listed under s. 487.04(a.1) to (d), except for (c.2). However, the court may refuse to make the DNA order for the offences under the second category where "it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders".

Order — primary designated offences

487.051 (1) The court shall make an order in Form 5.03 [forms] authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is convicted, discharged under section 730 [order of discharge] or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraphs (a) and (c.02) of the definition “primary designated offence” in section 487.04 [DNA analysis – definitions] when the person is sentenced or discharged.

Order  —  primary designated offences

(2) The court shall make such an order in Form 5.03 [forms] in relation to a person who is convicted, discharged under section 730 [order of discharge] or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of any of paragraphs (a.1) to (c.01) and (c.03) to (d) of the definition “primary designated offence” in section 487.04 [DNA analysis – definitions] when the person is sentenced or discharged. However, the court is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.
[omitted (3) and (4)]

1998, c. 37, s. 17; 2002, c. 1, s. 176; 2005, c. 25, s. 3; 2007, c. 22, ss. 9, 47; 2014, c. 25, s. 24.
[annotation(s) added]

CCC


Note up: 487.051(1) and (2)

Forms

The mandatory PDOs and presumptive PDOs use Form 5.03.[1]

List of Primary Designated DNA Offences

The sample will only be refused where "the impact of the order on the offender's privacy and security of the person [is] grossly disproportionate to the public interest in the protection of society and the proper administration of justice to be achieved through the early detection, arrest and conviction of offenders" [1]

Factors to be considered include "the nature of the offence, the nature of the intrusion and the circumstances of the individual who will be the subject of the intrusion."[2]

  1. R v Jordan, 2002 NSCA 11 (CanLII), 162 CCC (3d) 385, per Cromwell JA, at para 59
  2. Jordan, ibid., at para 61

Secondary Designated Offences

Distinct from "primary designated offences" are the "secondary designated offences" which is defined as:

s. 487.051
[omitted (1) and (2)]

Order — persons found not criminally responsible and secondary designated offences

(3) The court may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of justice to do so, make such an order in Form 5.04 in relation to

(a) a person who is found not criminally responsible on account of mental disorder for an offence committed at any time, including before June 30, 2000, if that offence is a designated offence when the finding is made; or
(b) a person who is convicted, discharged under section 730 [order of discharge] or found guilty under the Youth Criminal Justice Act or the Young Offenders Act, of an offence committed at any time, including before June 30, 2000, if that offence is a secondary designated offence when the person is sentenced or discharged.

In deciding whether to make the order, the court shall consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision.
[omitted (4)]
1998, c. 37, s. 17; 2002, c. 1, s. 176; 2005, c. 25, s. 3; 2007, c. 22, ss. 9, 47; 2014, c. 25, s. 24.
[annotation(s) added]

CCC


Note up: 487.051(3)

Burden

When an offender is convicted of a secondary designated offence, the burden is upon the Crown to show that the order is in the "best interests of the administration of justice".[1]

When to be Granted

Under s. 487.051(3)(b), DNA orders can only be granted for secondary offences where the prosecution applies and where the court is “satisfied that it is in the best interests of the administration of justice to do so, make [a DNA order] ... in relation to ...(b) a person who is convicted ... of an offence ... if that offence is a secondary designated offence when the person is sentenced or discharged.”

Due to the wording of the provision, the court has no authority to seek a DNA order for a SDO where the crown is not seeking one.[2]


Forms

The SDOs use Form 5.04.[3]

  1. R v RC, 2005 SCC 61 (CanLII), [2005] 3 SCR 99, per Fish J
  2. similar provision was interpreted in such a fashion in R v BER, 2005 BCCA 420 (CanLII), 32 CR (6th) 151, per Ryan JA, at paras 20 to 22
  3. see s. 487.051(3)
    Criminal Code Forms

Secondary Designated Offences under 487.04(a), (a.1) or (b)

Secondary Designated Offences (SDO) that are classified under (a) or (b) of the definition under s. 487.04 designates Offences that are either straight indictment with maximum penalties of 5 years or more or hybrid offences, prosecuted by indictment, that have a maximum penalty of 5 years or more. Summary Offences or those with maximum penalties of less than 5 years are not SDOs.

Offences that are classified as "secondary designated offences" consist of:

487.04
...
"secondary designated offence" means an offence, other than a primary designated offence, that is

(a) an offence under this Act that may be prosecuted by indictment — or, for section 487.051 [DNA Orders — primary designated offences] to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more,
(a.1) an offence under any of the following provisions of the Cannabis Act that may be prosecuted by indictment — or, for section 487.051 [DNA Orders — primary designated offences] to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more:
(i) section 9 (distribution and possession for purpose of distributing),
(ii) section 10 (selling and possession for purpose of selling),
(iii) section 11 (importing and exporting and possession for purpose of exporting),
(iv) section 12 (production),
(v) section 13 (possession, etc., for use in production or distribution of illicit cannabis), and
(vi) section 14 (use of young person),
(b) an offence under any of the following provisions of the Controlled Drugs and Substances Act that may be prosecuted by indictment — or, for section 487.051 [DNA Orders — primary designated offences] to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more:
(i) section 5 (trafficking in substance and possession for purpose of trafficking),
(ii) section 6 (importing and exporting), and
(iii) section 7 (production of substance),
[omitted (c), (d), (d.1), (d.2) and (e)]

...
1995, c. 27, s. 1; 1998, c. 37, s. 15; 2001, c. 41, s. 17; 2002, c. 1, s. 175; 2005, c. 25, s. 1, c. 43, ss. 5, 9; 2007, c. 22, ss. 2, 8, 47; 2008, c. 6, ss. 35, 63; 2009, c. 22, s. 16; 2010, c. 3, s. 6, c. 17, s. 3; 2012, c. 1, s. 30; 2013, c. 9, s. 16, c. 13, s. 8; 2014, c. 17, s. 13, c. 25, s. 23; 2015, c. 20, s. 23; 2018, c. 16, s. 216, c. 21, s. 18; 2019, c. 13, s. 152; 2019, c. 25, s. 196.1.
[annotation(s) added]

CCC


Note up: 487.04

Note that in the definition of "secondary designated offence" under (b) regarding CDSA trafficking-related convictions, this will only apply to drugs under Schedule I, II, and IV. Schedule IV offences, when prosecuted by indictment, have a maximum penalty of 3 years and so would not be subject to a secondary DNA Order.[1]

487.04(a) Grouping

Secondary Designated Offences Under s. 487.04(c) to (e)

The SDOs listed under (c) to (e) of s. 487.04 apply irrespective of maximum penalty or Crown election.

Group C

Group C consists of a long enumerated list:

Group D to E

487.04 In this section and in sections 487.05 to 487.0911 [DNA order related provisions],
...

(d) an offence under any of the following provisions of the Criminal Code, as they read from time to time before July 1, 1990:
(i) section 433 (arson), and
(ii) section 434 (setting fire to other substance),
(d.1) an offence under section 252 [failure to stop at scene of accident], as it read from time to time before the day on which section 14 of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts comes into force,
(d.2) an offence under any of sections 249 [dangerous operation of motor vehicles, vessels and aircraft], 249.1 [flight from peace officer], 249.2 [causing death by criminal negligence (street racing)], 249.3 , 249.4 [dangerous operation of motor vehicle while street racing], 253 [operation while impaired], 254 [taking samples of breath/blood] and 255 [Operation while impaired and procedure – punishment], as they read from time to time before the day on which section 14 of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts comes into force, that may be prosecuted by indictment or, for section 487.051 to apply, is prosecuted by indictment, and
(e) an attempt to commit or, other than for the purposes of subsection 487.05(1) [information for warrant to take bodily substances for forensic DNA analysis – reasonable grounds], a conspiracy to commit
(i) an offence referred to in paragraph (a) or (b) — which, for section 487.051 [DNA Orders — primary designated offences] to apply, is prosecuted by indictment, or
(ii) an offence referred to in any of paragraphs (c) to (d.2); (infraction secondaire)

...
1995, c. 27, s. 1; 1998, c. 37, s. 15; 2001, c. 41, s. 17; 2002, c. 1, s. 175; 2005, c. 25, s. 1, c. 43, ss. 5, 9; 2007, c. 22, ss. 2, 8, 47; 2008, c. 6, ss. 35, 63; 2009, c. 22, s. 16; 2010, c. 3, s. 6, c. 17, s. 3; 2012, c. 1, s. 30; 2013, c. 9, s. 16, c. 13, s. 8; 2014, c. 17, s. 13, c. 25, s. 23; 2015, c. 20, s. 23; 2018, c. 16, s. 216, c. 21, s. 18; 2019, c. 25, s. 196.1.
[annotation(s) added]

CCC


Note up: 487.04

Factors

The three enumerated factors to consider consist of:

  1. the criminal record of the offender
  2. the nature of the offence
  3. the impact on the privacy and security of the person

Courts have commented that in the "vast majority of cases it would be in the best interests of the administration of justice to make" a DNA Order.[1]

  1. R v PRF, 2001 CanLII 21168 (ON CA), 161 CCC (3d) 275, per Rosenberg JA

Criminal Record

The higher the rate of recidivism the greater the chance of making the DNA order.[1]

A lengthy record for violent offences may trump the low end nature of the offence.[2]

  1. R v North, 2002 ABCA 134 (CanLII), 165 CCC (3d) 393, per curiam, at para 50
  2. R v Garland, 2002 NSCA 112 (CanLII), 649 APR 399, per Cromwell JA, at para 4

Nature of the Offence

There are a number of considerations that are not considered relevant:

  • The ineptitude of the offence[1]
  • failure of the accused to disguise himself in the commission of the offence[2]

The difference between a commercial and residential break-in is not significant.[3]

  1. R v PRF, 2001 CanLII 21168 (ON CA), 161 CCC (3d) 275, per Rosenberg JA, at para 36
  2. R v SFA, 2002 NSCA 42 (CanLII), 635 APR 71, per Freeman JA
  3. PRF, supra

Impact on Privacy

The accused must present "cogent evidence" establishing an impact on the accused's privacy interests.[1]

Taking of samples does not amount to a punishment.[2]

  1. R v SFA, 2002 NSCA 42 (CanLII), 635 APR 71, per Freeman JA
  2. R v Rodgers, 2006 SCC 15 (CanLII), [2006] 1 SCR 554, per Charron J, at para 5
    R v Murrins, 2002 NSCA 12 (CanLII), 162 CCC (3d) 412, per Bateman JA, at para 96

Taking of Samples

See also: Section 487.05 Seizure Warrant of DNA Samples

Offences Relating to DNA Orders

Appeals

Appeal

487.054 The offender or the prosecutor may appeal from a decision of the court under any of subsections 487.051(1) to (3) [DNA Orders – types of orders].
1998, c. 37, s. 17; 2007, c. 22, s. 10.
[annotation(s) added]

CCC


Note up: 487.054

An appellant who is subject to a 487.056 Order may apply to have the order stayed pending appeal.[1]

A DNA order issued under s. 487.04 as a primary designed offence cannot be stayed pending appeal.[2]

  1. R v Gibson, 2011 BCSC 324 (CanLII), per Williamson J
  2. R v Kaplan, 2018 BCCA 31 (CanLII), per Fisher JA (chambers)

Procedure

Timing of order

487.053 (1) The court may make an order under section 487.051 [DNA Orders — primary designated offences] authorizing the taking of samples of bodily substances when it imposes a sentence on a person, finds the person not criminally responsible on account of mental disorder or directs that they be discharged under section 730 [order of discharge].

Hearing

(2) If the court does not consider the matter at that time, it

(a) shall, within 90 days after the day on which it imposes the sentence, makes the finding or directs that the person be discharged, set a date for a hearing to do so;
(b) retains jurisdiction over the matter; and
(c) may require the person to appear by closed-circuit television or videoconference, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

1998, c. 37, s. 17; 2000, c. 10, s. 14; 2005, c. 25, s. 4; 2007, c. 22, s. 3; 2019, c. 25, s. 198.
[annotation(s) added]

CCC


Note up: 487.053(1) and (2)

Form Required

487.051
[omitted (1), (2) and (3)]

Order to offender

(4) When the court makes an order authorizing the taking of samples of bodily substances, it may make an order in Form 5.041 [forms] to require the person to report at the place, day and time set out in the order and submit to the taking of the samples.
1998, c. 37, s. 17; 2002, c. 1, s. 176; 2005, c. 25, s. 3; 2007, c. 22, ss. 9, 47; 2014, c. 25, s. 24.
[annotation(s) added]

CCC


Note up: 487.051(4)

Misc DNA Provisions

See Also

List of Primary Designated DNA Offences

List

See also: DNA Orders

Each section represents a category:

  • (a) mandatory
  • (a.1) presumptive
  • (b) historical presumptive, pre january 4, 1983
  • (c) historical presumptive, pre january 1, 1988
  • (c.01) historical presumptive, 1970 to 1983
  • (c.02) historical mandatory, pre-december 6, 2014
  • (c.03) historical presumptive, pre-december 6, 2014

Under s. 487.04, a "primary designated offence" is defined as:

"primary designated offence" means

[SECTION (a)]
(a) an offence under any of the following provisions, namely,
(i) subsection 7(4.1) (offence in relation to sexual offences against children),
[s. 7(4.1) lists offences under 151, 152, 153, 155, 160(2), 160(3), 163.1, 170, 171, 171.1, 172.1, 172.2, 173]
(i.1) section 151 (sexual interference),
(i.2) section 152 (invitation to sexual touching),
(i.3) section 153 (sexual exploitation),
(i.4) section 153.1 (sexual exploitation of person with disability),
(i.5) section 155 (incest),
(i.6) subsection 160(2) (compelling the commission of bestiality),
(i.7) subsection 160(3) (bestiality in presence of or by a child),
(i.8) section 163.1 (child pornography),
(i.9) section 170 (parent or guardian procuring sexual activity),
(i.901) section 171.1 (making sexually explicit material available to child),
(i.91) section 172.1 (luring a child),
(i.911) section 172.2 (agreement or arrangement — sexual offence against child),
(i.92) subsection 173(2) (exposure),
(i.93) to (i.96) [Repealed, 2014, c. 25, s. 23]
(ii) section 235 (murder),
(iii) section 236 (manslaughter),
(iv) section 239 (attempt to commit murder ),
(v) section 244 (discharging firearm with intent),
(vi) section 244.1 (causing bodily harm with intent — air gun or pistol),
(vi.1) section 244.2 (discharging firearm — recklessness),
(vii) paragraph 245(a) (administering noxious thing with intent to endanger life or cause bodily harm),
(viii) section 246 (overcoming resistance to commission of offence),
(ix) section 267 ( assault with a weapon or causing bodily harm),
(x) section 268 (aggravated assault),
(xi) section 269 (unlawfully causing bodily harm),
(xi.1) section 270.01 (assaulting peace officer with weapon or causing bodily harm),
(xi.2) section 270.02 (aggravated assault of peace officer),
(xi.3) section 271 (sexual assault),
(xii) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),
(xiii) section 273 (aggravated sexual assault),
(xiii.1) subsection 273.3(2) (removal of a child from Canada),
(xiv) section 279 (kidnapping),
(xiv.1) section 279.011 (trafficking  —  person under 18 years),
(xiv.2) subsection 279.02(2) (material benefit  —  trafficking of person under 18 years),
(xiv.3) subsection 279.03(2) (withholding or destroying documents  —  trafficking of person under 18 years+),
(xiv.4) subsection 286.1(2) (obtaining sexual services for consideration from person under 18 years),
(xiv.5) subsection 286.2(2) (material benefit from sexual services provided by person under 18 years),
(xiv.6) subsection 286.3(2) (procuring  — person under 18 years),
(xv) section 344 (robbery), and
(xvi) section 346 (extortion),
[SECTION (a.1)]
(a.1) an offence under any of the following provisions, namely,
(i) section 75 (piratical acts),
(i.01) section 76 (hijacking),
(i.02) section 77 (endangering safety of aircraft or airport),
(i.03) section 78.1 (seizing control of ship or fixed platform),
(i.04) subsection 81(1) (using explosives),
(i.041) section 82.3 (possession, etc., of nuclear material, radioactive material or device),
(i.042) section 82.4 (use or alteration of nuclear material, radioactive material or device),
(i.043) section 82.5 (commission of indictable offence to obtain nuclear material, etc.),
(i.044) section 82.6 (threats),
(i.05) section 83.18 (participation in activity of terrorist group),
(i.051) section 83.181 (leaving Canada to participate in activity of terrorist group),
(i.06) section 83.19 (facilitating terrorist activity),
(i.061) section 83.191 (leaving Canada to facilitate terrorist activity),
(i.07) section 83.2 (commission of offence for terrorist group),
(i.071) section 83.201 (leaving Canada to commit offence for terrorist group),
(i.072) section 83.202 (leaving Canada to commit offence that is terrorist activity),
(i.08) section 83.21 (instructing to carry out activity for terrorist group),
(i.09) section 83.22 (instructing to carry out terrorist activity),
(i.091) section 83.221 (counselling commission of terrorism offence),
(i.1) section 83.23 (harbouring or concealing),
(i.11) to (iii.1) [Repealed, 2010, c. 17, s. 3]
(iv) [Repealed, 2014, c. 25, s. 23]
(iv.1) to (iv.5) [Repealed, 2010, c. 17, s. 3]
(v) [Repealed, 2014, c. 25, s. 23]
(v.1) and (v.2) [Repealed, 2010, c. 17, s. 3]
(vi) section 233 (infanticide),
(vii) [Repealed, 2010, c. 17, s. 3]
(vii.1) section 279.01 (trafficking in persons),
(vii.11) subsection 279.02(1) (material benefit  —  trafficking),
(vii.12) subsection 279.03(1) (withholding or destroying documents  —  trafficking),
(viii) section 279.1 (hostage taking),
(viii.1) subsection 286.2(1) (material benefit from sexual services),
(viii.2) subsection 286.3(1) (procuring),
(ix) breaking and entering a dwelling-house,
(x) intimidation of a justice system participant or journalist,
(xi) attack on premises, residence or transport of internationally protected person,
(xii) accommodation or transport of United Nations or associated personnel,
(xiii) explosive or other lethal device,
(xiv) participation in activities of criminal organization,
(xiv.1) section 467.111 (recruitment of members — criminal organization),
(xv) commission of offence for criminal organization,
(xvi) instructing commission of offence for criminal organization
(xvi.1) to (xx) [Repealed, 2005, c. 25, s. 1]
[SECTION (b)]
(b) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983, namely,
(i) section 144 (rape),
(i.1) section 145 (attempt to commit rape),
(ii) section 146 (sexual intercourse with female under fourteen and between fourteen and sixteen),
(iii) section 148 (sexual intercourse with feeble-minded, etc.),
(iv) section 149 (indecent assault on female),
(v) section 156 (indecent assault on male),
(vi) section 157 (acts of gross indecency), and
(vii) subsection 246(1) (assault with intent) if the intent is to commit an offence referred to in subparagraphs (i) to (vi),
[SECTION (c)]
(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:
(i) subsection 146(1) (sexual intercourse with a female under age of 14),
(ii) subsection 146(2) (sexual intercourse with a female between ages of 14 and 16),
(iii) section 153 (sexual intercourse with step-daughter),
(iv) section 157 (gross indecency),
(v) section 166 (parent or guardian procuring defilement), and
(vi) section 167 (householder permitting defilement),
[SECTION (c.01)]
(c.01) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as enacted by section 19 of An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, chapter 125 of the Statutes of Canada, 1980-81-82-83:
(i) section 246.1 (sexual assault),
(ii) section 246.2 (sexual assault with weapon, threats to third party or causing bodily harm), and
(iii) section 246.3 (aggravated sexual assault),
[SECTION (c.02)]
(c.02) an offence under any of the following provisions of this Act, as they read from time to time before the day on which this paragraph comes into force:
(i) paragraph 212(1)(i) (stupefying or overpowering for the purpose of sexual intercourse),
(ii) subsection 212(2) (living on the avails of prostitution of person under 18 years),
(iii) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years), and
(iv) subsection 212(4) (prostitution of person under 18 years),
[SECTION (c.03)]
(c.03) an offence under any of paragraphs 212(1)(a) to (h) (procuring) of this Act, as they read from time to time before the day on which this paragraph comes into force,
[SECTION (c.1)]
(c.1) an offence under any of the following provisions of the Security of Information Act, namely, ::(i) section 6 (approaching, entering, etc., a prohibited place),
(ii) subsection 20(1) (threats or violence), and
(iii) subsection 21(1) (harbouring or concealing), and
[SECTION (d)]
(d) an attempt to commit or, other than for the purposes of subsection 487.05(1) , a conspiracy to commit an offence referred to in any of paragraphs (a) to (c.03);


...
1995, c. 27, s. 1; 1998, c. 37, s. 15; 2001, c. 41, s. 17; 2002, c. 1, s. 175; 2005, c. 25, s. 1, c. 43, ss. 5, 9; 2007, c. 22, ss. 2, 8, 47; 2008, c. 6, ss. 35, 63; 2009, c. 22, s. 16; 2010, c. 3, s. 6, c. 17, s. 3; 2012, c. 1, s. 30; 2013, c. 9, s. 16, c. 13, s. 8; 2014, c. 17, s. 13, c. 25, s. 23; 2015, c. 20, s. 23; 2018, c. 16, s. 216, c. 21, s. 18; 2019, c. 13, s. 152; 2019, c. 25, s. 196.1.
[annotation(s) added]

CCC

List of Secondary Designated DNA Offences (Group A)

List

See also: DNA Orders

Section 487.04 definition of secondary designated offences states in part:

487.04 In this section and in sections 487.05 to 487.0911,
...
"secondary designated offence" means an offence, other than a primary designated offence, that is

(a) an offence under this Act that may be prosecuted by indictment — or, for section 487.051 [DNA Orders — primary designated offences] to apply, is prosecuted by indictment — for which the maximum punishment is imprisonment for five years or more,
[omitted (a.1), (b), (c), (d), (d.1), (d.2) and (e)]

...
1995, c. 27, s. 1; 1998, c. 37, s. 15; 2001, c. 41, s. 17; 2002, c. 1, s. 175; 2005, c. 25, s. 1, c. 43, ss. 5, 9; 2007, c. 22, ss. 2, 8, 47; 2008, c. 6, ss. 35, 63; 2009, c. 22, s. 16; 2010, c. 3, s. 6, c. 17, s. 3; 2012, c. 1, s. 30; 2013, c. 9, s. 16, c. 13, s. 8; 2014, c. 17, s. 13, c. 25, s. 23; 2015, c. 20, s. 23; 2018, c. 16, s. 216, c. 21, s. 18; 2019, c. 13, s. 152; 2019, c. 25, s. 196.1.
[annotation(s) added]

CCC


Note up: 487.04

Offences that are SDO under the 487.04 (a) grouping (Offences requiring indictable election in bold):


Repealed SDO Offences Under 487.04 (a) Grouping

Repealed Offences

List of Secondary Designated DNA Offences (Group C)

See also: DNA Orders

487.04 In this section and in sections 487.05 to 487.0911 [DNA order related provisions],
...
"secondary designated offence" means an offence, other than a primary designated offence, that is

[omitted (a), (a.1) and (b)]
(c) an offence under any of the following provisions of this Act:
(i) subsection 52(1) (sabotage),
(i.001) subsection 57(3) (possession of a forged passport),
(i.002) section 62 (offences in relation to military forces),
(i.003) subsection 65(2) (riot — concealing identity),
(i.004) subsection 70(3) (contravening order made by governor in council),
(i.005) subsection 82(1) (explosives, possession without lawful excuse),
(i.006) subsection 121(1) (frauds on the government),
(i.007) subsection 121(2) (contractor subscribing to election fund),
(i.008) section 122 (breach of trust by public officer),
(i.009) subsection 123(1) (municipal corruption),
(i.01) subsection 123(2) (influencing municipal official),
(i.011) section 124 (selling or purchasing office),
(i.012) section 125 (influencing or negotiating appointments or dealings in offices),
(i.013) subsection 139(2) (obstructing justice),
(i.014) section 142 (corruptly taking reward for recovery of goods),
(i.015) section 144 (prison breach),
(i.016) section 145 (escape and being at large without excuse),
(i.1) section 146 (permitting or assisting escape),
(i.2) section 147 (rescue or permitting escape),
(i.3) section 148 (assisting prisoner of war to escape),
(i.4) and (ii) [Repealed, 2010, c. 17, s. 3]
(iii) subsection 173(1) (indecent acts),
(iv) section 182 (dead body — neglect to perform duty, improper or indecent interference with),
(iv.1) section 184 (interception of private communication),
(iv.2) section 184.5 (interception of radio-based telephone communications),
(iv.3) section 221 (cause bodily harm by criminal negligence),
(iv.4) section 237 (infanticide),
(iv.5) section 242 (neglect to obtain assistance in child-birth),
(iv.6) subsection 247(1) (traps likely to cause bodily harm),
(iv.7) subsection 247(2) (traps — causing bodily harm),
(iv.8) subsection 247(3) (traps — in a place kept or used for committing other indictable offence),
(iv.9) section 262 (impeding attempt to save life),
(v) section 264 (criminal harassment),
(vi) section 264.1 (uttering threats),
(vii) section 266 (assault),
(viii) section 270 (assaulting a peace officer),
(viii.01) section 280 (abduction of person under 16),
(viii.02) section 281 (abduction of person under 14),
(viii.1) subsection 286.1(1) (obtaining sexual services for consideration),
(viii.11) section 291 (bigamy),
(viii.12) section 292 (procuring feigned marriage),
(viii.13) section 293 (polygamy),
(viii.14) section 293.1 (forced marriage),
(viii.15) section 293.2 (marriage under age of 16 years),
(viii.16) section 300 (publishing defamatory libel known to be false),
(viii.17) section 302 (extortion by libel),
(viii.2) subsection 320.16(1) (failure to stop after accident),
(viii.21) paragraph 334(a) (theft over $5,000 or testamentary instrument),
(viii.22) section 338 (fraudulently taking cattle or defacing brand),
(viii.23) subsection 339(1) (take possession of drift timber, etc.),
(viii.24) section 340 (destroying documents of title),
(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),
(x) section 349 (being unlawfully in dwelling-house),
(x.1) subsection 351(2) (disguise with intent),
(x.11) paragraph 355(a) (possession of property over $5,000 or testamentary instrument),
(x.12) section 357 (bring into Canada property obtained by crime),
(x.13) paragraph 362(2)(a) (false pretence, property over $5,000 or testamentary instrument),
(x.14) subsection 362(3) (obtain credit, etc. by false pretence),
(x.15) section 363 (obtain execution of valuable security by fraud),
(x.16) subsection 377(1) (damaging documents),
(x.17) section 378 (offences in relation to registers),
(x.18) section 382 (manipulation of stock exchange),
(x.19) subsection 382.1(1) (prohibited insider trading),
(x.2) section 383 (gaming in stocks or merchandise),
(x.21) section 384 (broker reducing stock by selling his own account),
(x.22) section 386 (fraudulent registration of title),
(x.23) section 394 (fraud in relation to minerals),
(x.24) section 394.1 (possession of stolen minerals),
(x.25) section 396 (offences in relation to mines),
(x.26) section 397 (falsification of books and documents),
(x.27) section 399 (false return by public officer),
(x.28) section 400 (false prospectus),
(x.29) section 405 (acknowledging instrument in false name),
(xi) section 423 (intimidation),
(xi.01) subsection 423.2(1) (intimidation — health services),
(xi.1) section 424 (threat against an internationally protected person),
(xi.11) section 424.1 (threat against United Nations or associated personnel),
(xi.12) section 426 (secret commissions),
(xi.13) section 435 (arson for fraudulent purpose),
(xi.14) section 436 (arson by negligence),
(xi.15) section 436.1 (possession incendiary material),
(xi.16) subsection 438(1) (interfering with saving of a wrecked vessel),
(xi.17) subsection 439(2) (interfering with a marine signal),
(xi.18) section 441 (occupant injuring building),
(xi.19) section 443 (interfering with international boundary marks, etc.),
(xi.2) section 451 (having clippings, etc.),
(xi.21) section 460 (advertising and dealing in counterfeit money),
(xi.22) subparagraphs 465(1)(b)(i) and (ii) (conspiracy to prosecute),
(xi.23) section 753.3 (breach of long-term supervision),
[omitted (d), (d.1), (d.2) and (e)]

...
1995, c. 27, s. 1; 1998, c. 37, s. 15; 2001, c. 41, s. 17; 2002, c. 1, s. 175; 2005, c. 25, s. 1, c. 43, ss. 5, 9; 2007, c. 22, ss. 2, 8, 47; 2008, c. 6, ss. 35, 63; 2009, c. 22, s. 16; 2010, c. 3, s. 6, c. 17, s. 3; 2012, c. 1, s. 30; 2013, c. 9, s. 16, c. 13, s. 8; 2014, c. 17, s. 13, c. 25, s. 23; 2015, c. 20, s. 23; 2018, c. 16, s. 216, c. 21, s. 18; 2019, c. 13, s. 152; 2019, c. 25, s. 196.1; 2021, c. 27, s. 3.

CCC


Note up: 487.04

Taking of Sample of DNA Under Section 487.056

See also: DNA Orders
When collection to take place

487.056 (1) Samples of bodily substances shall be taken as authorized under section 487.051 [DNA Orders — primary designated offences]

(a) at the place, day and time set out in an order made under subsection 487.051(4) [DNA Orders – primary designated offences & form of order] or as soon as feasible afterwards; or
(b) in any other case, on the day on which the order authorizing the taking of the samples is made or as soon as feasible afterwards.
When collection to take place

(2) Samples of bodily substances shall be taken as authorized under section 487.055 [DNA Orders — offenders serving sentences] or 487.091 [collection of additional bodily substances]

(a) at the place, day and time set out in an order made under subsection 487.055(3.11) [DNA Orders – offenders serving sentences – order] or a summons referred to in subsection 487.055(4) [DNA Orders – offenders serving sentences – summons] or 487.091(3) [collection of additional bodily substances – persons not in custody] or as soon as feasible afterwards; or
(b) in any other case, as soon as feasible after the authorization is granted.
When collection to take place

(3) If a person fails to appear as required by an order made under subsection 487.051(4) [DNA Orders – primary designated offences & form of order] or 487.055(3.11) [DNA Orders – offenders serving sentences – order] or a summons referred to in subsection 487.055(4) [DNA Orders – offenders serving sentences – summons] or 487.091(3) [collection of additional bodily substances – persons not in custody], samples of bodily substances shall be taken

(a) when the person is arrested under a warrant issued under subsection 487.0551(1) or as soon as feasible afterwards; or
(b) as soon as feasible after the person appears at the place set out in the order or summons if no warrant is issued.
Appeal

(4) Subsections (1) to (3) [when collection to take place] apply even if the order or authorization to take the samples of bodily substances is appealed.

Collection of samples

(5) A peace officer who is authorized under section 487.051 [DNA Orders — primary designated offences], 487.055 [DNA Orders — offenders serving sentences] or 487.091 [collection of additional bodily substances] to take samples of bodily substances may cause the samples to be taken in any place in Canada in which the person who is subject to the order or authorization is located.

Who collects samples

(6) The samples shall be taken by a peace officer who has jurisdiction over the person or in the place in which the samples are taken — or a person acting under their direction — who is able, by virtue of training or experience, to take them.
1998, c. 37, s. 17; 2000, c. 10, s. 16; 2002, c. 1, s. 179(E); 2005, c. 25, s. 6; 2007, c. 22, s. 13.
[annotation(s) added]

CCC


Note up: 487.056(1), (2), (3), (4), (5), and (6)


Defined terms: "place"

Section 487.056(4) does not remove inherent jurisdiction of the courts to stay pending conviction appeal an order for a DNA sample.[1]

Report of peace officer

487.057 (1) A peace officer who takes samples of bodily substances from a person or who causes a person who is not a peace officer to take samples under their direction shall, as soon as feasible after the samples are taken, make a written report in Form 5.07 [forms] and cause the report to be filed with

(a) the provincial court judge who issued the warrant under section 487.05 [warrant to Obtain DNA samples] or granted the authorization under section 487.055 [DNA Orders — offenders serving sentences] or 487.091 [collection of additional bodily substances] or another judge of that provincial court; or
(b) the court that made the order under section 487.051 [DNA Orders — primary designated offences].
Contents of report

(2) The report shall include

(a) a statement of the time and date the samples were taken; and
(b) a description of the bodily substances that were taken.
Copy of report

(3) A peace officer who takes the samples or causes the samples to be taken under their direction at the request of another peace officer shall send a copy of the report to the other peace officer unless that other peace officer had jurisdiction to take the samples.
1998, c. 37, s. 17; 2000, c. 10, s. 17; 2007, c. 22, s. 14.
[annotation(s) added]

CCC


Note up: 487.057(1), (2) and (3)

  1. R v Churchill, 2020 NLSC 144 (CanLII), per Khaladkar J, at para 3

Miscellaneous DNA Provisions

This page was last substantively updated or reviewed January 2020. (Rev. # 79465)

DNA Order for Offenders Convicted Prior to June 30, 2000

Offenders serving sentences

487.055 (1) A provincial court judge may, on ex parte application made in Form 5.05 [forms], authorize in Form 5.06 [forms] the taking, for the purpose of forensic DNA analysis, of any number of samples of bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1) [procedure of taking sample for s. 487.05 DNA warrant – means of sampling], from a person who, before June 30, 2000,

(a) had been declared a dangerous offender under Part XXIV [Pt. XXIV – Dangerous Offenders and Long-Term Offenders (s. 752 to 761)];
(b) had been declared a dangerous offender or a dangerous sexual offender under Part XXI [Pt. XXI – Appeals – Indictable Offences (s. 673 to 696)] of the Criminal Code, being chapter C-34 of the Revised Statutes of Canada, 1970, as it read from time to time before January 1, 1988;
(c) had been convicted of murder;
(c.1) had been convicted of attempted murder or conspiracy to commit murder or to cause another person to be murdered and, on the date of the application, is serving a sentence of imprisonment for that offence;
(d) had been convicted of a sexual offence within the meaning of subsection (3) [DNA Orders – offenders serving sentences – categories of offences] and, on the date of the application, is serving a sentence of imprisonment for that offence; or
(e) had been convicted of manslaughter and, on the date of the application, is serving a sentence of imprisonment for that offence.
Certificate

(2) The application shall be accompanied by a certificate referred to in paragraph 667(1)(a) [proof of previous conviction – certificate] that establishes that the person is a person referred to in subsection (1) [DNA Orders – offenders serving sentences – categories of offenders]. The certificate may be received in evidence without giving the notice referred to in subsection 667(4) [notice of intention to produce certificate].

Definition of sexual offence

(3) For the purposes of subsection (1), sexual offence means

(a) an offence under any of the following provisions, namely,
(i) section 151 (sexual interference),
(ii) section 152 (invitation to sexual touching),
(iii) section 153 (sexual exploitation),
(iv) section 155 (incest),
(v) subsection 212(4) (offence in relation to juvenile prostitution),
(vi) section 271 (sexual assault),
(vii) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), and
(viii) section 273 (aggravated sexual assault);
(a.1) an offence under subsection 348(1) if the indictable offence referred to in that subsection is a sexual offence within the meaning of paragraph (a), (b), (c) or (d);
(b) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983, namely,
(i) section 144 (rape),
(ii) section 146 (sexual intercourse with female under fourteen or between fourteen and sixteen),
(iii) section 148 (sexual intercourse with feeble-minded, etc.),
(iv) section 149 (indecent assault on female),
(v) section 156 (indecent assault on male), or
(vi) section 157 (acts of gross indecency);
(c) an offence under paragraph 153(1)(a) (sexual intercourse with step-daughter, etc.) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read from time to time before January 1, 1988; and
(d) an attempt to commit an offence referred to in any of paragraphs (a) to (c).
Manner of appearance

(3.01) The court may require a person who is given notice of an application under subsection (1) [DNA Orders – offenders serving sentences – categories of offenders] and who wishes to appear at the hearing to appear by closed-circuit television or videoconference, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

Criteria

(3.1) In deciding whether to grant an authorization under subsection (1) [DNA Orders – offenders serving sentences – categories of offenders], the court shall consider the person’s criminal record, the nature of the offence and the circumstances surrounding its commission and the impact such an authorization would have on the privacy and security of the person and shall give reasons for its decision.

Order

(3.11) If the court authorizes the taking of samples of bodily substances from a person who is on conditional release and who has appeared at the hearing, it shall make an order in Form 5.041 [forms] to require the person to report at the place, day and time set out in the order and submit to the taking of the samples.

Summons

(4) However, if a person who is on conditional release has not appeared at the hearing, a summons in Form 5.061 [forms] setting out the information referred to in paragraphs 487.07(1)(b) to (d) [duty to inform – elements] shall be directed to them requiring them to report at the place, day and time set out in the summons and submit to the taking of the samples.

Service on individual

(5) The summons shall be accompanied by a copy of the authorization referred to in subsection (1) [DNA Orders – offenders serving sentences – categories of offenders] and be served by a peace officer who shall either deliver it personally to the person to whom it is directed or, if that person cannot conveniently be found, leave it for the person at their latest or usual place of residence with any person found there who appears to be at least sixteen years of age.
(6) [Repealed, 2008, c. 18, s. 13]
(7) to (10) [Repealed, 2007, c. 22, s. 11]
[annotation(s) added]
1998, c. 37, s. 17; 2000, c. 10, s. 15; 2005, c. 25, s. 5; 2007, c. 22, s. 11; 2008, c. 18, s. 13; 2019, c. 25, s. 199.
[annotation(s) added]

CCC


Note up: 487.055(1), (2), (3), (3.01), (3.1), (3.11), (4), and (5)


Defined terms: "provincial court judge" (s. 487.04) and "summons" (s. 2)

SOIRA Orders

This page was last substantively updated or reviewed January 2021. (Rev. # 79465)

SOIRA Orders

The SOIRA provisions in the Criminal Code are found between ss. 490.012 to 490.02911. They are divided as follows:

  • Order to Comply with the Sex Offender Information Registration Act (490.012 to 490.018)
  • Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before December 15, 2004 (490.019 to 490.029)
  • Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Outside Canada (490.02901 to 490.02911)
Purpose

The purpose of a SOIRA Order "is to help police investigate sexual offences by making available to them information provided by convicted sexual offenders required to register under the Act. This information may be of investigative assistance in the inculpation or elimination of various suspects."[1]

Scheme

The making of a SOIRA Order will depend on whether the designated offence is listed under s. 490.013 (a), (c), (c.1), (d) or (e) in which case it is mandatory. Where the designated offence is under para (b) or (f), then it will only be ordered where "prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence" listed under para (a), (c), (c.1), (d) or (e).

Section 490.012 grant judges the power to order an offender to comply with the SOIRA:

Order

490.012 (1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition “designated offence” in subsection 490.011(1) [sex offender information – definitions] or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 [forms] requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013 [commencement and duration of SOIRA Order].

Order  — if intent established

(2) When a court imposes a sentence on a person for an offence referred to in paragraph (b) or (f) of the definition “designated offence” in subsection 490.011(1) [sex offender information – definitions], it shall, on application of the prosecutor, make an order in Form 52 [forms] requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013 [commencement and duration of SOIRA Order] if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of that definition.
[omitted (3)]

Failure to make order

(4) If the court does not consider the matter under subsection (1) [power to make SOIRA orders – designated offences] or (3) [power to make SOIRA orders – where previous conviction] at that time, the court

(a) shall, within 90 days after the day on which it imposes the sentence or renders the verdict, set a date for a hearing to do so;
(b) retains jurisdiction over the matter; and
(c) may require the person to appear at the hearing by closed-circuit television or videoconference, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

2004, c. 10, s. 20; 2007, c. 5, s. 13; 2010, c. 17, s. 5; 2014, c. 25, s. 26; 2019, c. 25, s. 203.
[annotation(s) added]

CCC


Note up: 490.012(1), (2) and (4)

Effect of Amendments

The provisions regarding SOIRA within the Criminal Code are regulatory and are not intended to be punitive in nature. Consequently, the laws are retroactive to offences that occurred before any amendment and do not violate s. 11(i) of the Charter protecting against retroactive punishment.[2]

Young Offenders

s. 490.011
[omitted (1)]

Interpretation

(2) For the purpose of this section and sections 490.012 [SOIRA orders] to 490.032 [power of GIC to make regulations relating to SOIRA], a person who is convicted of, or found not criminally responsible on account of mental disorder for, a designated offence does not include a young person

(a) within the meaning of subsection 2(1) of the Youth Criminal Justice Act unless they are given an adult sentence within the meaning of that subsection for the offence; or
(b) within the meaning of subsection 2(1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, unless they are convicted of the offence in ordinary court within the meaning of that subsection.

2004, c. 10, s. 20; 2005, c. 43, s. 6; 2007, c. 5, s. 11; 2008, c. 6, s. 36; 2010, c. 3, s. 7, c. 17, s. 4; 2012, c. 1, ss. 31, 141; 2014, c. 25, s. 25.
[annotation(s) added]

CCC


Note up: 490.011(2)

Constitutionality

There is support that mandatory nature of SOIRA Orders does not violate s. 7 of the Charter for being grossly disproportionate to the aim of protecting the public.[3]

  1. R v Debidin, 2008 ONCA 868 (CanLII), 241 CCC (3d) 152, per Watt JA, at para 35
    see also s. 2(1) of Sex Offender Information Registration Act, SC 2004, c 10
  2. R v Cross, 2006 NSCA 30 (CanLII), 205 CCC (3d) 289, per Bateman JA
    R v SSC, 2008 BCCA 262 (CanLII), 234 CCC (3d) 365, per Chiasson JA
  3. R v Ndhlovu, 2020 ABCA 307 (CanLII), per Schutz JA (2:1)
    cf. R v RL, 2018 ONCA 282 (CanLII), 45 CR (7th) 98, per Strathy CJ

Obligations of Registered Offenders

The Sex Offender Information Registration Act, SC 2004, c 10 requires that those registered to:

  • report for the first time to a registration centre (SOIRA s. 4(1)) within 7 days after the making of the order or release from custody (if applicable).
    • reporting for the first time shall be in person (SOIRA s. 4(3)). They are not permitted to leave Canada until they have reported for the first time (SOIRA s. 4(4)).
  • report within 7 days of changing primary or secondary residence or change their first name or family name (SOIRA s. 4.1(1))
    • reporting shall be in person unless the regulations permit exceptions
  • upon reporting provide (SOIRA s. 5(1))
    • their given name and surname, and every alias that they use;
    • their date of birth and gender;
    • the address of their main residence and every secondary residence or, if there is no such address, the location of that place;
    • the address of every place at which they are employed or retained or are engaged on a volunteer basis — or, if there is no address, the location of that place — the name of their employer or the person who engages them on a volunteer basis or retains them and the type of work that they do there;
    • if applicable, their status as an officer or a non-commissioned member of the Canadian Forces within the meaning of subsection 2(1) of the National Defence Act and the address and telephone number of their unit within the meaning of that subsection;
    • the address of every educational institution at which they are enrolled or, if there is no such address, the location of that place;
    • a telephone number at which they may be reached, if any, for every place referred to in paragraphs (c) and (d), and the number of every mobile telephone or pager in their possession;
    • their height and weight and a description of every physical distinguishing mark that they have; and
    • the licence plate number, make, model, body type, year of manufacture and colour of the motor vehicles that are registered in their name or that they use regularly.

Designated offences

Duration

Under Section 490.13, the length of the SOIRA order is based on the election and the maximum penalty.

Date order begins

490.013 (1) An order made under section 490.012 [SOIRA orders] begins on the day on which it is made.

Duration of order [first offence]

(2) An order made under subsection 490.012(1) [power to make SOIRA orders – designated offences] or (2) [SOIRA order – if intent to commit SOIRA designated offence]

(a) ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;
(b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and
(c) applies for life if the maximum term of imprisonment for the offence is life.
Duration of order [more than one offence]

(2.1) An order made under subsection 490.012(1) [power to make SOIRA orders – designated offences] applies for life if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition “designated offence” in subsection 490.011(1) [sex offender information – definitions].

Duration of order

(3) An order made under subsection 490.012(1) [power to make SOIRA orders – designated offences] or (2) [SOIRA order – if intent to commit SOIRA designated offence] applies for life if the person is, or was at any time, subject to an obligation under section 490.019 [Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before December 15, 2004] or 490.02901 [Obligation to Comply with the Sex Offender Information Registration Act — Convictions Outside Canada], under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act.

Duration of order

(4) An order made under subsection 490.012(1) [power to make SOIRA orders – designated offences] or (2) [SOIRA order – if intent to commit SOIRA designated offence] applies for life if the person is, or was at any time, subject to an order made previously under section 490.012 [SOIRA orders] of this Act or section 227.01 of the National Defence Act.

Duration of order

(5) An order made under subsection 490.012(3) [power to make SOIRA orders – where previous conviction] applies for life.
2004, c. 10, s. 20; 2007, c. 5, s. 14; 2010, c. 17, s. 6; 2014, c. 25, s. 27.
[annotation(s) added]

CCC


Note up: 490.013(1), (2), (2.1), (3), (4), and (5)


Lifetime Duration

An order must be made for a minimum of life where:

  • "if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence" that is a "designated offence". (490.013 (2.1))
  • "if the person is, or was at any time, subject to an obligation under section 490.019 or 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act" (490.013 (3))
  • "if the person is, or was at any time, subject to [a SOIRA] order made previously" (490.013 (4))


Lifetime duration is not permitted under s. 490.013(2.1).[1]

Correcting SOIRA of Improper Duration

See Appeals below

Effect of Prior Orders and Convictions

See also: Notice of Increased Penalty

490.012
[omitted (1) and (2)]

Order — if previous offence established

(3) When a court imposes a sentence on a person for a designated offence in connection with which an order may be made under subsection (1) [power to make SOIRA orders – designated offences] or (2) [SOIRA order – if intent to commit SOIRA designated offence] or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall, on application of the prosecutor, make an order in Form 52 [forms] requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013 [commencement and duration of SOIRA Order] if the prosecutor establishes that

(a) the person was, before or after the coming into force of this paragraph, previously convicted of, or found not criminally responsible on account of mental disorder for, an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition “designated offence” in subsection 490.011(1) [sex offender information – definitions] or in paragraph (a) or (c) of the definition “designated offence” in section 227 of the National Defence Act;
(b) the person was not served with a notice under section 490.021 [period for and method of service] or 490.02903 [notice of SOIRA obligations outside Canada – timing and method of service] or under section 227.08 of the National Defence Act in connection with that offence; and
(c) no order was made under subsection (1) [power to make SOIRA orders – designated offences] or under subsection 227.01(1) of the National Defence Act in connection with that offence.

[omitted (4)]
2004, c. 10, s. 20; 2007, c. 5, s. 13; 2010, c. 17, s. 5; 2014, c. 25, s. 26.
[annotation(s) added]

CCC


Note up: 490.012(3)

When considering the effect of prior-related records, convictions for sexual offences while the offender was a youth should not be considered if it occurred more than 5 years prior to the adult offence.[1]

  1. R v Able, 2013 ONCA 385 (CanLII), 116 OR (3d) 500, per Tulloch JA (3:0), at paras 11 to 29

Sentencing Procedure

A recommended approach for a sentencing judge to follow is:[1]

(1) Inquire whether the offender wished to challenge the making of the order;
(2) If the offender so wished, then inquire as to whether the offender wished to call further evidence respecting the impact of such an order;
(3) If the offender chooses to do so, then hear that evidence and inquire of the prosecutor whether the prosecutor wished to call evidence to rebut the evidence called by the offender and, if so, hear that evidence;
(4) Weigh the evidence heard at trial and on the sentencing hearing, to the extent that the offender or the prosecutor relied on such evidence, and weigh any evidence specifically called, together with arguments presented by the parties, in order to determine the manner and extent to which:
(a) making the order might impact on
(i) privacy and liberty of the offender,
(ii) the abilities or limitations of the offender,
(iii) the offender as a result of the stigma of being registered,
(iv) the potential for rehabilitation and reintegration of the offender in the community, and
(v) any other significant characteristic of the offender; and
(b) failure to make the order might impact the public interest;
(5) Accepting Parliament’s declaration that there is a public interest in protecting society through effective investigation of crimes of a sexual nature, weigh the impact on the offender of being registered, as against the impact on that public interest, of the offender not being registered and come to a conclusion as to whether the impact on the offender is so severe as to result in a “marked and serious imbalance” between the impact on the offender of making the order and the impact on the public interest of not making the order; and
(6) If, but only if, the impact on the offender of making the order is grossly disproportionate to the impact on the public interest of not making the order, the exemption should be granted.
  1. R v Turnbull, 2006 NLCA 66 (CanLII), 214 CCC (3d) 18, per Wells CJ

Notice

Requirements relating to notice

490.018 (1) When a court or appeal court makes an order under section 490.012 [SOIRA orders], it shall cause

(a) the order to be read by or to the person who is subject to it;
(b) a copy of the order to be given to that person;
(c) that person to be informed of sections 4 to 7.1 of the Sex Offender Information Registration Act, sections 490.031 [failing to comply with SOIRA order] and 490.0311 [providing false or misleading info under SOIRA order] of this Act and section 119.1 of the National Defence Act; and
(d) a copy of the order to be sent to
(i) the Review Board that is responsible for making a disposition with respect to that person, if applicable,
(ii) the person in charge of the place in which that person is to serve the custodial portion of a sentence or is to be detained in custody as part of a disposition under Part XX.1 [Pt. XX.1 – Mental Disorder (s. 672.1 to 672.95)], if applicable,
(iii) the police service whose member charged that person with the offence in connection with which the order is made, and
(iv) the Commissioner of the Royal Canadian Mounted Police.
Endorsement

(2) After paragraphs (1)(a) to (c) [obligations of appeal court on making a SOIRA order] have been complied with, the person who is subject to the order shall endorse the order.

Notice on disposition by Review Board

(3) A Review Board shall cause a copy of the order to be given to the person who is subject to it when it directs

(a) under paragraph 672.54(a) [absolute discharge – review board], that the person be discharged absolutely; or
(b) under paragraph 672.54(b) [conditional discharge – review board], that the person be discharged subject to conditions, unless the conditions restrict the person’s liberty in a manner and to an extent that prevent them from complying with sections 4, 4.1, 4.3 and 6 of the Sex Offender Information Registration Act.
Notice before release

(4) The person in charge of the place in which the person is serving the custodial portion of a sentence, or is detained in custody, before their release or discharge shall give the person a copy of the order not earlier than 10 days before their release or discharge.
2004, c. 10, s. 20; 2007, c. 5, s. 18; 2010, c. 17, s. 11.
[annotation(s) added]

CCC


Note up: 490.018(1), (2), (3), and (4)

Early Termination of a SOIRA Order

Effect of the Order

A SOIRA Order under s. 490.012 will comply with From 52.

When a conviction occurs outside of Canada, an order under s. 490.02901. The Order to comply will use Form 54.

Disclosure of Information

Disclosure of Information
Disclosure

490.03 (1) The Commissioner of the Royal Canadian Mounted Police or a person authorized by the Commissioner shall, on request, disclose information that is registered in the database or the fact that such information is registered in the database

(a) to the prosecutor if the disclosure is necessary for the purpose of a proceeding under section 490.012 [SOIRA orders]; or
(b) to the Attorney General if the disclosure is necessary for the purpose of a proceeding under subsection 490.016(1) [power to make SOIRA termination order], 490.023(2) [application for exemption order – jurisdiction], 490.027(1) [termination order – gross disproportion test], 490.02905(2) [SOIRA where convicted outside Canada – exemption order], 490.02909(1) [termination order – gross disproportion test] or 490.02913(1) [termination order & disproportionate purpose test] or for the purpose of an appeal from a decision made in any of those proceedings or in a proceeding under subsection 490.012(2) [SOIRA order – if intent to commit SOIRA designated offence].
Disclosure in connection with proceedings

(2) The Commissioner or that person shall, on request, disclose to the prosecutor or Attorney General the information that is registered in the database relating to a person if the person discloses, in connection with a proceeding or appeal other than one referred to in subsection (1) [disclosure from SOIRA registry], the fact that information relating to them is registered in the database.

Disclosure in proceedings

(3) The prosecutor or the Attorney General may, if the information is relevant to the proceeding, appeal or any subsequent appeal, disclose it to the presiding court.
(4) [Repealed, 2007, c. 5, s. 27]
2004, c. 10, s. 20; 2007, c. 5, s. 27; 2010, c. 17, s. 20.

CCC


Note up: 490.03(1), (2) and (3)

Appeal From Order

See also: Appeals Other Than Verdicts or Sentences
Appeal

490.014 The prosecutor, or a person who is subject to an order under subsection 490.012(2) [SOIRA order – if intent to commit SOIRA designated offence], may appeal from a decision of the court under that subsection on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash the order or make an order that may be made under that subsection.
2004, c. 10, s. 20; 2010, c. 17, s. 7.
[annotation(s) added]

CCC


Note up: 490.014

Section 490.014 does not give a right of appeal for an order made under s. 490.012(1).[1] There may still be an option to corrected by means of a Judicial Review.[2]

Despite s. 490.014, the Crown has the ability to appeal under s. 676(1)(b) for the refusal of a sentencing judge to order a SOIRA.[3]

  1. R v Chisholm, 2012 NBCA 79 (CanLII), 292 CCC (3d) 132, per Drapeau JA
  2. R v Batley, 2016 BCSC 2296 (CanLII), per Bernard J
    R v Clancy, 2017 BCSC 576 (CanLII), per Baird J
    see also Chisholm, ibid., at para 23 ("First, I need not, and do not decide whether the SOIRA order in question can be corrected by means of a prerogative writ. Any debate on point would be expected to feature consideration of Dagenais v Canadian Broadcasting Corp")
  3. R v Whiting, 2013 SKCA 127 (CanLII), 304 CCC (3d) 342, per Whitmore JA

Improperly Ordered Duration

A Court is functus officio and does not have the jurisdiction to correct any errors made in setting the duration of the SOIRA Order.[1]

  1. R v RRDG, 2014 NSSC 384 (CanLII), per Rosinski J
    cf. R v E(J), 2013 ONCJ 247 (CanLII), per Nakatsuru J
    cf. R v Alvarenga-Alas, 2014 ONSC 4725 (CanLII), per Goldstein J
    cf. R v WR, 2016 ONSC 2798 (CanLII), per Conlan J

Breach of SOIRA Orders (s. 490.031 to 490.0312)

Regulations

Regulations

490.032 The Governor in Council may make regulations

(a) requiring that additional information be contained in a notice under Form 53 [forms] or Form 54 [forms]; and
(b) prescribing, for one or more provinces, the form and content of that information.

2004, c. 10, s. 20; 2010, c. 17, s. 24.
[annotation(s) added]

CCC


Note up: 490.032

Legislative History

SOIRA Notice Convictions Outside Canada

Misc. Definitions Under the SOIRA Provisions of the Code

Definitions

490.011 (1) The following definitions apply in this section and in sections 490.012 to 490.032 [relating to SOIRA orders].
"crime of a sexual nature" means a crime referred to in subsection 3(2) of the Sex Offender Information Registration Act. (crimes de nature sexuelle)
"database" has the same meaning as in subsection 3(1) of the Sex Offender Information Registration Act. (banque de données)
...
"Ontario Act" means Christopher’s Law (Sex Offender Registry), 2000, S.O. 2000, c. 1. (loi ontarienne)
"pardon" means a conditional pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 that has not been revoked. (pardon)
"record suspension" means a record suspension, as defined in subsection 2(1) of the Criminal Records Act, that has not been revoked or ceased to have effect. (suspension du casier)
"registration centre" has the same meaning as in subsection 3(1) of the Sex Offender Information Registration Act. (bureau d’inscription)
"Review Board" means the Review Board established or designated for a province under subsection 672.38(1) [authority to establish a review board]. (commission d’examen)
"verdict of not criminally responsible on account of mental disorder" means a verdict of not criminally responsible on account of mental disorder within the meaning of subsection 672.1(1) [mental disorders – definitions] or a finding of not responsible on account of mental disorder within the meaning of subsection 2(1) of the National Defence Act, as the case may be. (verdict de non-responsabilité)
[omitted (2)]
2004, c. 10, s. 20; 2005, c. 43, s. 6; 2007, c. 5, s. 11; 2008, c. 6, s. 36; 2010, c. 3, s. 7, c. 17, s. 4; 2012, c. 1, ss. 31, 141; 2014, c. 25, s. 25.
[annotation(s) added]

CCC


Note up: 490.011(1)

See Also

Early Termination of SOIRA Orders

General Principles

See also: SOIRA Orders

Sections 490.015 and 490.016 permit an accused who is subject to a SOIRA Order to terminate the order before its expiration.

Application for termination order

490.015 (1) A person who is subject to an order may apply for a termination order

(a) if five years have elapsed since the order was made, in the case of an order referred to in paragraph 490.013(2)(a) [duration of SOIRA – max penalty of 5 years or less];
(b) if 10 years have elapsed since the order was made, in the case of an order referred to in paragraph 490.013(2)(b) [duration of SOIRA – max penalty of 10 or 14 years]; or
(c) if 20 years have elapsed since the order was made, in the case of an order referred to in paragraph 490.013(2)(c) [duration of SOIRA – max penalty life] or subsection 490.013(2.1) [duration of SOIRA – designated offence], (3) [duration of subsequent SOIRA order] or (5) [duration of subsequent SOIRA order].
Multiple orders

(2) A person who is subject to more than one order made under section 490.012 [SOIRA orders] of this Act, or under that section and section 227.01 of the National Defence Act, may apply for a termination order if 20 years have elapsed since the most recent order was made.

Pardon or record suspension

(3) Despite subsections (1) [power to set duration of SOIRA orders] and (2) [power to set duration of SOIRA orders – multiple orders], a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.

Scope of application

(4) The application shall be in relation to every order that is in effect. If a person is subject to an obligation under section 490.019 [Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before December 15, 2004] or 490.02901 [Obligation to Comply with the Sex Offender Information Registration Act — Convictions Outside Canada], under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act, the application shall also be in relation to that obligation.

Re-application

(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon or once a record suspension is ordered. However, they may not re-apply under this subsection if an order is made with respect to them under section 490.012 [SOIRA orders] of this Act or section 227.01 of the National Defence Act after the previous application was made.

Jurisdiction

(6) The application shall be made to

(a) a superior court of criminal jurisdiction if
(i) one or more of the orders to which it relates were made by such a court under section 490.012 [SOIRA orders], or
(ii) one or more of the orders to which it relates were made under section 227.01 of the National Defence Act and the Chief Military Judge does not have jurisdiction to receive the application under subsection 227.03(6) of that Act; or
(b) a court of criminal jurisdiction, in any other case in which the application relates to one or more orders made under section 490.012 [SOIRA orders].

2004, c. 10, s. 20; 2007, c. 5, s. 15; 2010, c. 17, s. 8; 2012, c. 1, s. 142.
[annotation(s) added]

CCC


Note up: 490.015(1), (2), (3), (4), (5), and (6)

Termination order

490.016 (1) The court shall make a termination order if it is satisfied that the person has established that the impact on them of continuing an order or an obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

Reasons for decision

(2) The court shall give reasons for its decision.

Requirements relating to notice

(3) If the court makes a termination order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, to be notified of the decision.
2004, c. 10, s. 20; 2007, c. 5, s. 16; 2010, c. 17, s. 9.

CCC


Note up: 490.015(1), (2) and (3)

Burden

The burden is upon the applicant on a balance of probabilities.[1]

Standard

The applicant must establish that the order has a "grossly disproportionate impact" upon the applicant by continuing the order.[2]

Gross disproportionality requires either:[3]

  • "no impact, or a very low level of impact, on the public interest of his or her not being registered." It includes "consideration of such factors as":
    • the record of the offender;
    • the nature of the offence;
    • circumstances surrounding the offence;
    • whether the offence was committed many years earlier and
    • the record of the offender in the interim; and
  • any other factors bearing on the potential impact of that specific offender not being registered.

The applicant should be expected to present evidence showing gross disproportionality.[4]

  1. R v Berube, 2016 ONCJ 332 (CanLII), per Bourgeois J, at para 10
  2. Berube, ibid., at para 10
    see also R v Nassereddine, 2016 ABPC 266 (CanLII), per Bascom J - reviews cases
  3. R v Turnbull, 2006 NLCA 66 (CanLII), 214 CCC (3d) 18, per Wells CJ, at para 33
    Berube, supra, at para 10
  4. R v RL, 2007 ONCA 347 (CanLII), 74 WCB (2d) 11, per curiam (3:0), at para 7
    Berube, supra, at para 11

Appeal of Termination Decision

Appeal

490.017 (1) The prosecutor or the person who applied for a termination order may appeal from a decision made under subsection 490.016(1) [power to make SOIRA termination order] on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash the termination order or make an order that may be made under that subsection.

Requirements relating to notice

(2) If the appeal court makes an order that may be made under subsection 490.016(1) [power to make SOIRA termination order], it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.
2004, c. 10, s. 20; 2007, c. 5, s. 17; 2010, c. 17, s. 10.
[annotation(s) added]

CCC


Note up: 490.017(1) and (2)

Application to Terminate by International Offenders

Application for termination order

490.02912 (1) A person who is subject to an obligation under section 36.1 of the International Transfer of Offenders Act may apply to a court of criminal jurisdiction for a termination order unless they are also subject to an obligation under section 490.019 or 490.02901 or under section 227.06 of the National Defence Act — or to an order under section 490.012 or under section 227.01 of the National Defence Act — that began later.

Time for application — one offence

(2) The person may apply for a termination order if the following period has elapsed since the sentence was imposed or the verdict of not criminally responsible on account of mental disorder was rendered:

(a) five years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is two or five years;
(b) 10 years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is 10 or 14 years; or
(c) 20 years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is life.
More than one offence

(3) If more than one offence is listed in the copy of the Form 1 [see forms] that was delivered under subparagraph 8(4)(a)(ii) of the International Transfer of Offenders Act, the person may apply for a termination order if 20 years have elapsed since the sentence was imposed, or the verdict of not criminally responsible on account of mental disorder was rendered, for the most recent offence.

Re-application

(4) A person whose application is refused may apply again if five years have elapsed since the application was made. 2010, c. 17, s. 19.

[annotation(s) added]

CCC


Note up: 490.02912(1), (2) and (3)

Termination order

490.02913 (1) The court shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

Reasons for decision

(2) The court shall give reasons for its decision.

Requirements relating to notice

(3) If the court makes a termination order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, to be notified of the decision.
2010, c. 17, s. 19.

CCC


Note up: 490.02913(1), (2) and (3)

Appeal

490.02914 (1) The Attorney General or the person who applied for a termination order may appeal from a decision under subsection 490.02913(1) [termination order & disproportionate purpose test] on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, allow the appeal and order a new hearing, quash the termination order or make an order that may be made under that subsection.

Requirements relating to notice

(2) If the appeal court makes an order that may be made under subsection 490.02913(1) [termination order & disproportionate purpose test], it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.
2010, c. 17, s. 19.
[annotation(s) added]

CCC


Note up: 490.02914(1) and (2)

Notice before release

490.02915 (1) The person in charge of the place in which a person who is subject to an obligation under section 36.1 of the International Transfer of Offenders Act is serving the custodial portion of a sentence, or is detained in custody before their release or discharge, shall give the person a copy of the Form 1 [forms] referred to in subsection 490.02912(3) [obligation to advise police service – more than one offence] not earlier than 10 days before their release or discharge.

Notice on disposition by Review Board

(2) A Review Board shall cause a copy of the Form 1 [forms] to be given to the person when it directs

(a) under paragraph 672.54(a) [absolute discharge – review board], that the person be discharged absolutely; or
(b) under paragraph 672.54(b) [conditional discharge – review board], that the person be discharged subject to conditions unless the conditions restrict the person’s liberty in a manner and to an extent that prevent them from complying with sections 4, 4.1, 4.3 and 6 of the Sex Offender Information Registration Act.

2010, c. 17, s. 19.
[annotation(s) added]

CCC


Note up: 490.02915(1) and (2)

SOIRA Designated Offences

This page was last substantively updated or reviewed January 2020. (Rev. # 79465)

Designated offences

The offences in the left column are designated offences under s.490.011(1)(a) that are eligible for a SOIRA Order under s. 490.012(1). The offences in the right column are designated offences under s.490.011(1)(b) that are eligible for a SOIRA Order under s. 490.012(2), if the crown can prove beyond a reasonable doubt that the offence was committed for the intent to commit an offence under s.490.011(1)(a).

Sex Offender Registration Act establishes a database accessible to police that contains addresses, descriptions, and other information regarding sex offenders. The offender is obligated to keep the information on file up to date for the period ordered. This will either be 10 years, 20 years, or life. Failure to comply with the order is a criminal offence.

Legislation

Sex Offender Information
Interpretation
Definitions

490.011 (1) The following definitions apply in this section and in sections 490.012 to 490.032 [relating to SOIRA orders].
...
"designated offence" means

(a) an offence under any of the following provisions:
(i) subsection 7(4.1) (offence in relation to sexual offences against children),
(ii) section 151 (sexual interference),
(iii) section 152 (invitation to sexual touching),
(iv) section 153 (sexual exploitation),
(v) section 153.1 (sexual exploitation of person with disability),
(vi) section 155 (incest),
(vi.01) subsection 160(1) (bestiality),
(vi.1) subsection 160(2) (compelling the commission of bestiality),
(vii) subsection 160(3) (bestiality in presence of or by a child),
(viii) section 163.1 (child pornography),
(ix) section 170 (parent or guardian procuring sexual activity),
(ix.1) section 171.1 (making sexually explicit material available to child),
(x) section 172.1 (luring a child),
(x.1) section 172.2 (agreement or arrangement — sexual offence against child),
(xi) subsection 173(2) (exposure),
(xii) to (xv) [Repealed, 2014, c. 25, s. 25]
(xvi) section 271 (sexual assault),
(xvii) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),
(xviii) paragraph 273(2)(a) (aggravated sexual assault — use of a restricted firearm or prohibited firearm or any firearm in connection with criminal organization),
(xviii.1) paragraph 273(2)(a.1) (aggravated sexual assault — use of a firearm),
(xix) paragraph 273(2)(b) (aggravated sexual assault),
(xx) subsection 273.3(2) (removal of a child from Canada),
(xxi) section 279.011 (trafficking  —  person under 18 years),
(xxii) subsection 279.02(2) (material benefit  —  trafficking of person under 18 years),
(xxiii) subsection 279.03(2) (withholding or destroying documents  —  trafficking of person under 18 years),
(xxiv) subsection 286.1(2) (obtaining sexual services for consideration from person under 18 years),
(xxv) subsection 286.2(2) (material benefit from sexual services provided by person under 18 years), and
(xxvi) subsection 286.3(2) (procuring  — person under 18 years);
(b) an offence under any of the following provisions:
(i) section 162 (voyeurism),
(i.1) subsection 173(1) (indecent acts),
(ii) section 177 (trespassing at night),
(iii) [Repealed, 2019, c. 25, s. 202]
(iii.1) section 231 (murder),
(iv) section 234 (manslaughter),
(v) paragraph 246(b) (overcoming resistance to commission of offence),
(vi) section 264 (criminal harassment),
(vii) section 279 (kidnapping),
(vii.1) section 279.01 (trafficking in persons),
(vii.11) subsection 279.02(1) (material benefit  —  trafficking),
(vii.12) subsection 279.03(1) (withholding or destroying documents — trafficking),
(viii) section 280 (abduction of a person under age of sixteen),
(ix) section 281 (abduction of a person under age of fourteen),
(ix.1) subsection 286.1(1) (obtaining sexual services for consideration),
(ix.2) subsection 286.2(1) (material benefit from sexual services),
(ix.3) subsection 286.3(1) (procuring),
(x) paragraph 348(1)(d) (breaking and entering a dwelling house with intent to commit an indictable offence),
(xi) paragraph 348(1)(d) (breaking and entering a dwelling house and committing an indictable offence),
(xii) paragraph 348(1)(e) (breaking and entering a place other than a dwelling house with intent to commit an indictable offence), and
(xiii) paragraph 348(1)(e) (breaking and entering a place other than a dwelling house and committing an indictable offence);
(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983:
(i) section 144 (rape),
(ii) section 145 (attempt to commit rape),
(iii) section 149 (indecent assault on female),
(iv) section 156 (indecent assault on male), and
(v) subsection 246(1) (assault with intent) if the intent is to commit an offence referred to in any of subparagraphs (i) to (iv);
(c.1) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as enacted by section 19 of An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, chapter 125 of the Statutes of Canada, 1980-81-82-83:
(i) section 246.1 (sexual assault),
(ii) section 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm), and
(iii) section 246.3 (aggravated sexual assault);
(d) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988:
(i) subsection 146(1) (sexual intercourse with a female under age of fourteen),
(ii) subsection 146(2) (sexual intercourse with a female between ages of fourteen and sixteen),
(iii) section 153 (sexual intercourse with step-daughter),
(iv) section 157 (gross indecency),
(v) section 166 (parent or guardian procuring defilement), and
(vi) section 167 (householder permitting defilement);
(d.1) an offence under any of the following provisions of this Act, as they read from time to time before the day on which this paragraph comes into force:
(i) paragraph 212(1)(i) (stupefying or overpowering for the purpose of sexual intercourse),
(ii) subsection 212(2) (living on the avails of prostitution of person under 18 years),
(iii) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years), and
(iv) subsection 212(4) (prostitution of person under 18 years);
(e) an attempt or conspiracy to commit an offence referred to in any of paragraphs (a), (c), (c.1), (d) and (d.1); or
(f) an attempt or conspiracy to commit an offence referred to in paragraph (b). (infraction désignée)

...
[omitted (2)]
2004, c. 10, s. 20; 2005, c. 43, s. 6; 2007, c. 5, s. 11; 2008, c. 6, s. 36; 2010, c. 3, s. 7, c. 17, s. 4; 2012, c. 1, ss. 31, 141; 2014, c. 25, s. 25; 2019, c. 17, s. 4; 2019, c. 25, s. 202.

CCC


Note up: 490.011(1)

SOIRA Notice Convictions Outside Canada

Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Outside Canada
Obligation

490.02901 A person who is served with a notice in Form 54 [forms] shall comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.02904 [When obligation under s. 490.02901 begins] unless a court makes an exemption order under subsection 490.02905(2) [SOIRA where convicted outside Canada – exemption order].
2010, c. 17, s. 19.
[annotation(s) added]

CCC


Note up: 490.02901

Persons who may be served

490.02902 (1) The Attorney General of a province, or the minister of justice of a territory, may serve a person with a notice in Form 54 [forms] only if the person arrived in Canada after the coming into force of this subsection and they were convicted of or found not criminally responsible on account of mental disorder for an offence outside Canada — other than a service offence as defined in subsection 2(1) of the National Defence Act — that is, in the opinion of the Attorney General or minister of justice, equivalent to an offence referred to in paragraph (a) of the definition designated offence in subsection 490.011(1) [sex offender information – definitions].

Exception

(2) The notice shall not be served on a person who has been acquitted of every offence in connection with which a notice may be served on them under section 490.02903 [notice of SOIRA obligations outside Canada – timing and method of service].
2010, c. 17, s. 19.
[annotation(s) added]

CCC


Note up: 490.02902(1) and (2)

Period for and method of service

490.02903 (1) A notice in Form 54 [forms] shall be personally served.

Proof of service

(2) An affidavit of the person who served the notice, sworn before a commissioner or other person authorized to take affidavits, is evidence of the service and the notice if it sets out that

(a) the person who served the notice has charge of the appropriate records and has knowledge of the facts in the particular case;
(b) the notice was personally served on the person to whom it was directed on a named day; and
(c) the person who served the notice identifies a true copy of the notice as an exhibit attached to the affidavit.
Requirements relating to notice

(3) The person who served the notice shall, without delay, send a copy of the affidavit and the notice to the Attorney General of the province, or the minister of justice of the territory, in which the person was served.
2010, c. 17, s. 19.
[annotation(s) added]

CCC


Note up: 490.02903(1), (2) and (3)

When obligation begins

490.02904 (1) The obligation under section 490.02901 [Obligation to Comply with the Sex Offender Information Registration Act — Convictions Outside Canada] begins on the day on which the person is served with the notice.

When obligation ends

(2) The obligation ends on the day on which an exemption order is made.

Duration of obligation

(3) If subsection (2) does not apply, the obligation

(a) ends 10 years after the person was sentenced or found not criminally responsible on account of mental disorder if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is two or five years;
(b) ends 20 years after the person was sentenced or found not criminally responsible on account of mental disorder if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is 10 or 14 years;
(c) applies for life if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is life; or
(d) applies for life if, before or after the coming into force of this paragraph, the person was convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or :(e) of the definition designated offence in subsection 490.011(1) [sex offender information – definitions] or referred to in paragraph (a) or (c) of the definition designated offence in section 227 of the National Defence Act and if more than one of those offences is listed in the notice.

2010, c. 17, s. 19; 2014, c. 25, s. 28.
[annotation(s) added]

CCC


Note up: 490.02904(1), (2) and (3)

Application for exemption order

490.02905 (1) A person who is served with a notice in Form 54 [forms] under section 490.02903 [notice of SOIRA obligations outside Canada – timing and method of service] may apply to a court of criminal jurisdiction for an order exempting them from the obligation within one year after they are served.

Exemption order

(2) The court

(a) shall make an exemption order if it is satisfied that the person has established that
(i) they were not convicted of or found not criminally responsible on account of mental disorder for or were acquitted of the offence in question, or
(ii) the offence in question is not equivalent to an offence referred to in paragraph (a) of the definition designated offence in subsection 490.011(1) [sex offender information – definitions]; and
(b) shall order that the notice be corrected if it is satisfied that the offence in question is not equivalent to the offence referred to in the notice but is equivalent to another offence referred to in paragraph (a) of the definition designated offence in subsection 490.011(1) [sex offender information – definitions].
Reasons for decision

(3) The court shall give reasons for its decision.

Removal of information from database

(4) If the court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the copy of the notice.

Notification

(5) If the court makes an order referred to in paragraph (2)(b) [SOIRA where convicted outside Canada – exemption order – alternate equivalent offence], it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.
2010, c. 17, s. 19.
[annotation(s) added]

CCC


Note up: 490.02905(1), (2), (3), (4), and (5)

Appeal

490.02906 (1) The Attorney General or the person who applied for an exemption order may appeal from a decision under subsection 490.02905(2) [SOIRA where convicted outside Canada – exemption order] on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may

(a) dismiss the appeal;
(b) allow the appeal and order a new hearing;
(c) quash the exemption order; or
(d) make an order that may be made under that subsection.
Removal of information from database

(2) If an appeal court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the copy of the notice.
2010, c. 17, s. 19.
[annotation(s) added]

CCC


Note up: 490.02906(1) and (2)

Requirements relating to notice

490.02907 If an appeal court quashes an exemption order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision and shall cause the person who applied for the order to be informed of sections 4 to 7.1 of the Sex Offender Information Registration Act, sections 490.031 [failing to comply with SOIRA order] and 490.0311 [providing false or misleading info under SOIRA order] of this Act and section 119.1 of the National Defence Act.
2010, c. 17, s. 19.

CCC


Note up: 490.02907

Application for termination order

490.02908 (1) A person who is subject to an obligation under section 490.02901 [Obligation to Comply with the Sex Offender Information Registration Act — Convictions Outside Canada] may apply to a court of criminal jurisdiction for a termination order unless they are also subject to another obligation under that section — or to an obligation under section 490.019 [Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before December 15, 2004], under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act or an order under section 490.012 [SOIRA orders] or under section 227.01 of the National Defence Act — that began later.

Time for application — one offence

(2) The person may apply for a termination order if the following period has elapsed since the sentence was imposed or the verdict of not criminally responsible on account of mental disorder was rendered:

(a) five years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is two or five years;
(b) 10 years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is 10 or 14 years; or
(c) 20 years if the maximum term of imprisonment provided for in Canadian law for the equivalent offence is life.
Time for application — more than one offence

(3) If more than one offence is listed in the notice served under section 490.02903 [notice of SOIRA obligations outside Canada – timing and method of service], the person may apply for a termination order if 20 years have elapsed since the sentence was imposed, or the verdict of not criminally responsible on account of mental disorder was rendered, for the most recent offence.

Re-application

(4) A person whose application is refused may apply again if five years have elapsed since the application was made.
2010, c. 17, s. 19.
[annotation(s) added]

CCC


Note up: 490.02908(1), (2), (3), and (4)

Termination order

490.02909 (1) The court shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

Reasons for decision

(2) The court shall give reasons for its decision.

Requirements relating to notice

(3) If the court makes a termination order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, to be notified of the decision.
2010, c. 17, s. 19.

CCC


Note up: 490.02909(1), (2) and (3)

Appeal

490.0291 (1) The Attorney General or the person who applied for a termination order may appeal from a decision under subsection 490.02909(1) [termination order – gross disproportion test] on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, allow the appeal and order a new hearing, quash the termination order or make an order that may be made under that subsection.

Requirements relating to notice

(2) If the appeal court makes an order that may be made under subsection 490.02909(1) [termination order – gross disproportion test], it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.
2010, c. 17, s. 19.
[annotation(s) added]

CCC


Note up: 490.0291(1) and (2)

Obligation to advise police service

490.02911 (1) A person who was convicted of or found not criminally responsible on account of mental disorder for an offence outside Canada shall, if the offence is equivalent to one referred to in paragraph (a) of the definition designated offence in subsection 490.011(1) [sex offender information – definitions], advise a police service within seven days after the day on which they arrive in Canada of that fact and of their name, date of birth, gender and address. They are not required to so advise the police service again unless they are later convicted of or found not criminally responsible on account of mental disorder for another such offence.

Change in address

(2) The person shall, if they are in Canada, advise a police service of a change in address within seven days after the day on which the change is made.

Information to be provided to Attorney General

(3) The police service shall cause the Attorney General of the province, or the minister of justice of the territory, in which it is located to be provided with the information.

Obligation ends

(4) A person’s obligation under subsection (2) [obligation to advise police service — address] ends when they are served under section 490.02902 [SOIRA where convicted outside Canada – persons who may be served] or, if it is earlier, one year after the day on which they advise the police service under subsection (1) [obligation to advise police service].
2010, c. 17, s. 19.
[annotation(s) added]

CCC


Note up: 490.02911(1), (2), (3), and (4)

SOIRA Notice Convictions Pre-December 15, 2004

Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before December 15, 2004
Obligation to comply

490.019 A person who is served with a notice in Form 53 shall comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.022 unless a court makes an exemption order under subsection 490.023(2) [application for exemption order – jurisdiction].
2004, c. 10, s. 20.

CCC


Note up: 490.019

Persons who may be served

490.02 (1) The Attorney General of a province or minister of justice of a territory may serve a person with a notice only if the person was convicted of, or found not criminally responsible on account of mental disorder for, an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition designated offence in subsection 490.011(1) and

(a) on the day on which the Sex Offender Information Registration Act comes into force, they are subject to a sentence for, or have not received an absolute discharge under Part XX.1 [Pt. XX.1 – Mental Disorder (s. 672.1 to 672.95)] from, the offence; or
(b) in any other case,
(i) their name appears in connection with the offence, immediately before the Sex Offender Information Registration Act comes into force, in the sex offender registry established under the Ontario Act, and
(ii) they either were a resident of Ontario at any time between April 23, 2001 and the day on which the Sex Offender Information Registration Act comes into force or committed the offence in Ontario.
Exception

(2) A notice shall not be served on a person

(a) if they have been finally acquitted of, or have received a free pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 for, every offence in connection with which a notice may be served on them under section 490.021 of this Act or section 227.08 of the National Defence Act;
(b) if an application has been made for an order under subsection 490.012(3) of this Act or subsection 227.01(3) of the National Defence Act in relation to any offence in connection with which a notice may be served on them under section 490.021 of this Act or section 227.08 of the National Defence Act; or
(c) who is referred to in paragraph (1)(b) if they have provided proof of a pardon in accordance with subsection 9(1) of the Ontario Act.

2004, c. 10, s. 20; 2007, c. 5, s. 20.

CCC


Note up: 490.02(1) and (2)

Period for and method of service

490.021 (1) The notice shall be personally served within one year after the day on which the Sex Offender Information Registration Act comes into force.

Exception

(2) If a person referred to in paragraph 490.02(1)(a) is unlawfully at large or is in breach of any terms of their sentence or discharge, or of any conditions set under this Act or under Part III of the National Defence Act, that relate to residence, the notice may be served by registered mail at their last known address.

Exception

(3) If a person referred to in paragraph 490.02(1)(b) is not in compliance with section 3 of the Ontario Act on the day on which the Sex Offender Information Registration Act comes into force, the notice may be served by registered mail at their last known address.

Exception

(4) If a person referred to in paragraph 490.02(1)(b) is in compliance with section 3 and subsection 7(2) of the Ontario Act on the day on which the Sex Offender Information Registration Act comes into force but fails to comply with subsection 3(1) or 7(2) of the Ontario Act within one year after that day, the notice shall be served within one year after the day on which they failed to comply and may be served by registered mail at their last known address.

Proof of service

(5) An affidavit of the person who served the notice, sworn before a commissioner or other person authorized to take affidavits, is evidence of the service and the notice if it sets out that

(a) the person who served the notice has charge of the appropriate records and has knowledge of the facts in the particular case;
(b) the notice was personally served on, or mailed to, the person to whom it was directed on a named day; and
(c) the person who served the notice identifies a true copy of the notice as an exhibit attached to the affidavit.
Requirements relating to notice

(6) The person who served the notice shall, without delay, send a copy of the affidavit and the notice to the Attorney General of the province, or the minister of justice of the territory, in which the person was served.
2004, c. 10, s. 20; 2007, c. 5, s. 21.

CCC


Note up: 490.021(1), (2), (3), (4), (5), and (6)

Date obligation begins

490.022 (1) The obligation under section 490.019 begins

(a) either one year after the day on which the person is served with the notice or when an exemption order is refused under subsection 490.023(2), whichever is later; or
(b) when an exemption order is quashed.
Date obligation ends

(2) The obligation ends on the earliest of

(a) the day on which an exemption order is made on an appeal from a decision made under subsection 490.023(2),
(b) the day on which the obligation of a person referred to in paragraph 490.02(1)(b) to comply with section 3 of the Ontario Act ends under paragraph 7(1)(a) of that Act, or
(c) the day on which a person referred to in paragraph 490.02(1)(b) provides satisfactory proof of a pardon or record suspension to a person who collects information, as defined in subsection 3(1) of the Sex Offender Information Registration Act, at a registration centre.
Duration of obligation

(3) If none of paragraphs (2)(a) to (c) applies earlier, the obligation

(a) ends 10 years after the person was sentenced, or found not criminally responsible on account of mental disorder, for the offence listed in the notice if the offence was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;
(b) ends 20 years after the person was sentenced, or found not criminally responsible on account of mental disorder, for the offence listed in the notice if the maximum term of imprisonment for the offence is 10 or 14 years;
(c) applies for life if the maximum term of imprisonment for the offence listed in the notice is life; or
(d) applies for life if, at any time, the person was convicted of, or found not criminally responsible on account of mental disorder for, more than one offence that is referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition designated offence in subsection 490.011(1) of this Act or in paragraph (a) or (c) of the definition designated offence in section 227 of the National Defence Act and if more than one of those offences is listed in the notice.

2004, c. 10, s. 20; 2007, c. 5, s. 22; 2012, c. 1, s. 143.

CCC


Note up: 490.022(1), (2) and (3)

Application for exemption order

490.023 (1) A person who is not subject to an order under section 490.012 of this Act or section 227.01 of the National Defence Act may apply for an order exempting them from the obligation within one year after they are served with a notice under section 490.021 of this Act or section 227.08 of the National Defence Act.

Jurisdiction

(1.1) The application shall be made to a court of criminal jurisdiction if

(a) it relates to an obligation under section 490.019 of this Act; or
(b) it relates to an obligation under section 227.06 of the National Defence Act and the Chief Military Judge does not have jurisdiction to receive the application under subsection 227.1(2) of that Act.
Exemption order

(2) The court shall make an exemption order if it is satisfied that the person has established that the impact of the obligation on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

Reasons for decision

(3) The court shall give reasons for its decision.

Removal of information from database

(4) If the court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the copy of the notice.
2004, c. 10, s. 20; 2007, c. 5, s. 23; 2010, c. 17, s. 13.

CCC


Note up: 490.023(1), (1.1), (2), (3), and (4)

Appeal

490.024 (1) The Attorney General or the person who applied for an exemption order may appeal from a decision of the court under subsection 490.023(2) on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash the exemption order or make an order that may be made under that subsection.

Removal of information from database

(2) If the appeal court makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the copy of the notice.
2004, c. 10, s. 20; 2010, c. 17, s. 14.

CCC


Note up: 490.024(1) and (2)

Requirements relating to notice

490.025 If a court refuses to make an exemption order or an appeal court dismisses an appeal from such a decision or quashes an exemption order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision and shall cause the person who applied for the order to be informed of sections 4 to 7.1 of the Sex Offender Information Registration Act, sections 490.031 and 490.0311 of this Act and section 119.1 of the National Defence Act.
2004, c. 10, s. 20; 2007, c. 5, s. 24; 2010, c. 17, s. 15.

CCC


Note up: 490.025

Application for termination order

490.026 (1) A person who is subject to an obligation under section 490.019 may apply for a termination order unless they are also subject to an obligation under section 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act — or an order under section 490.012 or under section 227.01 of the National Defence Act — that began later.

Time for application

(2) A person may apply for a termination order if the following period has elapsed since they were sentenced, or found not criminally responsible on account of mental disorder, for an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition designated offence in subsection 490.011(1) of this Act or in paragraph (a) or (c) of the definition designated offence in section 227 of the National Defence Act:

(a) five years if the offence was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;
(b) 10 years if the maximum term of imprisonment for the offence is 10 or 14 years; or
(c) 20 years if the maximum term of imprisonment for the offence is life.
More than one offence

(3) If more than one offence is listed in the notice served under section 490.021, the person may apply for a termination order if 20 years have elapsed since they were sentenced, or found not criminally responsible on account of mental disorder, for the most recent offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition designated offence in subsection 490.011(1) of this Act or in paragraph (a) or (c) of the definition designated offence in section 227 of the National Defence Act.

Pardon or record suspension

(4) Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.

Re-application

(5) A person whose application is refused may apply again if five years have elapsed since they made the previous application. They may also apply again once they receive a pardon or once a record suspension is ordered. However, they may not apply again if, after the previous application was made, they become subject to an obligation under section 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act or to an order under section 490.012 or under section 227.01 of the National Defence Act.

Jurisdiction

(6) The application shall be made to a court of criminal jurisdiction if

(a) it relates to an obligation under section 490.019 of this Act; or
(b) it relates to an obligation under section 227.06 of the National Defence Act and the Chief Military Judge does not have jurisdiction to receive the application under subsection 227.12(6) of that Act.

2004, c. 10, s. 20; 2007, c. 5, s. 24; 2010, c. 17, s. 16; 2012, c. 1, s. 144.

CCC


Note up: 490.026(1), (2), (3), (4), (5), and (6)

Termination order

490.027 (1) The court shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

Reasons for decision

(2) The court shall give reasons for its decision.

Requirements relating to notice

(3) If the court makes a termination order, it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, to be notified of the decision.
2004, c. 10, s. 20; 2007, c. 5, s. 25; 2010, c. 17, s. 17.

CCC


Note up: 490.027(1), (2) and (3)

Deemed application

490.028 If a person is eligible to apply for both an exemption order under section 490.023 and a termination order under section 490.026 within one year after they are served with a notice under section 490.021 of this Act or section 227.08 of the National Defence Act, an application within that period for one order is deemed to be an application for both.
2004, c. 10, s. 20; 2007, c. 5, s. 26.

CCC


Note up: 490.028

Appeal

490.029 (1) The Attorney General or the person who applied for a termination order may appeal from a decision of the court made under subsection 490.027(1) on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash the termination order or make an order that may be made under that subsection.

Requirements relating to notice

(2) If the appeal court makes an order that may be made under subsection 490.027(1), it shall cause the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for the order was made to be notified of the decision.
2004, c. 10, s. 20; 2007, c. 5, s. 26; 2010, c. 17, s. 18.

CCC


Note up: 490.029(1) and (2)

Constitutionality

The provisions of s. 490.019 to 490.024 do not violate section 7.[1]

Ancillary Prohibition Orders

Section 161 Orders

General Principles

When an offender is convicted on an enumerated offence concerning persons under the age 16, section 161 of the Criminal Code permits the court to make an order prohibiting the offender’s from certain activities that may have them in contact with persons under the age of 16.

Order of prohibition

161 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730 [order of discharge], of an offence referred to in subsection (1.1) [161 prohibition order – applicable offences] in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;
(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or
(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

[omitted (1.1), (2), (3) and (4)]
R.S., 1985, c. C-46, s. 161; R.S., 1985, c. 19 (3rd Supp.), s. 4; 1993, c. 45, s. 1; 1995, c. 22, s. 18; 1997, c. 18, s. 4; 1999, c. 31, s. 67; 2002, c. 13, s. 4; 2005, c. 32, s. 5; 2008, c. 6, s. 54; 2012, c. 1, s. 16; 2014, c. 21, s. 1, c. 25, s. 5; 2015, c. 23, s. 6; 2019, c. 25, s. 55.
[annotation(s) added]

CCC


Note up: 161(1)

Purpose

The purpose of s. 161 orders is to protect vulnerable children from sexual violence.[2] They are preventative in nature.[3] It limits the offender's contact with children and prevents "them from obtaining access to children through positions where children will be vulnerable to them."[4] The 2012 changes to s. 161(1)(d) was enacted to "close a legislative gap created by rapid social and technological changes" as the this is so that the "court is better able to monitor offenders' use of the Internet thereby limiting their opportunities to offend and preventing such behaviour".[5]

Punishment

It is considered a "punishment" and is part of the arsenal of sanctions available to a judge.[6]

Constitutionality and Retrospectivity

Section 161(1)(c) is not retrospective as it violates s. 11(i) of the Charter prohibiting retroactive punishments.[7] However, s. 161(1)(d) is retrospective as the violation of s. 11(i) of the Charter is permitted under s. 1 of the Charter.[8]

Standard of Appellate Review

The order under s. 161 is discretionary and so appellate courts should not intervene "absent an error in principle" or where a prohibition is "demonstrably unfit and unreasonable".[9]

  1. R v SSC, 2008 BCCA 262 (CanLII), 234 CCC (3d) 365, per Chiasson JA
  2. R v KRJ, 2016 SCC 31 (CanLII), [2016] 1 SCR 906, per Karakatsanis J, at paras 44 to 46
    R v Shultz, 2018 ONCA 598 (CanLII), 142 OR (3d) 128, per Brown JA, at para 41 ("The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence")
  3. R v SB, 2008 ONCJ 383 (CanLII), per Hackett J
  4. R v RMG, 2001 CanLII 21827 (NLPC), [2001] NJ No 269 (NLPC), per Gorman J
  5. R v Brar, 2016 ONCA 724 (CanLII), 134 OR (3d) 95}, per Rouleau JA, at para 17
    Shultz, supra, at para 42
    KRJ, supra, at para 108
  6. KRJ, supra, at paras 50 and 57
    R v Miller, 2017 NLCA 22 (CanLII), 354 CCC (3d) 58, per Hoegg JA, at para 8
  7. KRJ, supra
    see also Charter Issues in Sentencing
  8. KRJ, supra
  9. Shultz, supra, at para 43
    R v WQ, 2006 CanLII 21035 (ON CA), 210 CCC (3d) 398, per Macfarland JA, at para 25
    Brar, supra, at para 26

Applicable Offences

The applicable offences are listed in s. 161(1.1):

161
[omitted (1)]

Offences

(1.1) The offences for the purpose of subsection (1) [161 prohibition order – power and conditions] are

(a) an offence under section 151 [sexual interference], 152 [invitation to sexual touching] or 155 [incest], subsection 160(2) [compelling bestiality] or (3) [bestiality in presence of or by child], section 163.1 [child pornography], 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity], 171.1 [making sexually explicit materials available to child], 172.1 [child luring] or 172.2 [agree or arrange sexual offence against child], subsection 173(2) [exposure to person under 16], section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault] or 279.011 [trafficking in persons, under 18], subsection 279.02(2) [material benefit from trafficking, under 18] or 279.03(2) [withholding or destroying docs, under 18], section 280 [abduction of a person under 16] or 281 [abduction of a person under 14] or subsection 286.1(2) [comm. to obtain sexual services for consideration – person under 18], 286.2(2) [material benefit from sexual services provided — person under 18] or 286.3(2) [procuring — person under 18];
(b) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983;
(c) an offence under subsection 146(1) (sexual intercourse with a female under 14) or section 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(d) an offence under subsection 212(1) (procuring), 212(2) (living on the avails of prostitution of person under 18 years), 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years) or 212(4) (prostitution of person under 18 years) of this Act, as it read from time to time before the day on which this paragraph comes into force.

[omitted (2), (3) and (4)]
R.S., 1985, c. C-46, s. 161; R.S., 1985, c. 19 (3rd Supp.), s. 4; 1993, c. 45, s. 1; 1995, c. 22, s. 18; 1997, c. 18, s. 4; 1999, c. 31, s. 67; 2002, c. 13, s. 4; 2005, c. 32, s. 5; 2008, c. 6, s. 54; 2012, c. 1, s. 16; 2014, c. 21, s. 1, c. 25, s. 5; 2015, c. 23, s. 6; 2019, c. 25, s. 55.

[annotation(s) added]

CCC


Note up: 161(1.1)

The amendment of 2019, c. 25 removed s. 159 (anal intercourse) from the list found in s. 161(1.1)(a).

Section 161(1.1)(b) and (c) list applicable offences as they existed pre-1988.

Offences listed include:

Certain sexual offences such as sexual exploitation of a disabled person (153.1), and voyeurism (162) are among those not listed.

Application

Section 161 Order is a discretionary order.[1] However, that discretion must be exercised "judicially".[2]

It should not be applied as a "matter of course". There must be an "evidentiary basis upon which to conclude that the particular offender poses a risk to children".[3]

The terms of the order "order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender’s specific circumstances".[4]

The sentencing judge should take a "purposive approach" to the imposition of s. 161 and assess "the extent of the risk to children based on a number of factors, including the circumstances of the offence and offender".[5]

It has been suggested that courts should not be reluctant on the imposition of an order.[6]

A judge may refuse to make an order where the victims and the public are adequately protected by other means such as probation.[7]

Simply because the child pornography consisted of drawings rather than images of child abuse will not be sufficient reason to refrain from ordering a s.161 order.[8]

Decline to Order

The judge may decline to make an order under s. 161 where they find that there is no future risk of harm to young persons.[9]

Evidentiary Basis

It is necessary that there be an "evidentiary basis upon which to conclude that the particular offender poses a risk to children" and the judge is satisfied that the specific terms of the order are "a reasonable attempt to minimize that risk".[10]

An absence of any evidence that the offender had attempted to contact children is valid reasons for the judge to decline to make orders under s. 161(1)(a), (b) or (c).[11]

Absence of Risk of Recidivism

Neither the absence of a prior record or other evidence of recidivism are reasons not to impose a s. 161 order. The circumstances of the case themselves can often be reason enough.[12]

Even with an assessment that shows the offence as a low risk of recidivism, it may still be appropriate to order a s. 161 order.[13]

  1. R v DK, 2013 ONSC 1851 (CanLII), per Conlan J, at para 22
    R v Miller, 2017 NLCA 22 (CanLII), 354 CCC (3d) 58, per Hoegg JA, at para 19 ("...the imposition of a section 161 order is a discretionary decision. A judge’s discretion, of course, must be exercised judicially..., which in this case would require the judge to have a proper basis for imposing the order. If a sentencing judge errs in a manner which impacts the imposition or the terms of the order, this Court could intervene...")
  2. Miller, ibid., at para 19
    R v Bussey, 2014 NLCA 18 (CanLII), 347 Nfld & PEIR 349, per Welsh JA, at para 12
  3. R v Schultz, 2018 ONCA 598 (CanLII), 142 OR (3d) 128, per Brown JA, at para 41 ("The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: ... . An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender’s specific circumstances: ...")
  4. Schutz, ibid., at para 41
    R v KRJ, 2016 SCC 31 (CanLII), [2016] 1 SCR 906, per Karakatsanis J, at paras 48 to 49
  5. R v RKA, 2006 ABCA 82 (CanLII), 208 CCC (3d) 74, per Paperny JA, at para 26
    Miller, supra, at para 11 ("In A.(R.K.), the Court set out a number of factors to be considered in deciding whether to impose a section 161 order. The Court directed that a court must take “a purposive approach” to the imposition of a section 161 order and “must assess the extent of the risk to children based on a number of factors, including the circumstances of the offence and the offender” ... .")
  6. RMG, ibid.
  7. DK, ibid., at para 23
  8. R v MK, 2010 NBCA 71 (CanLII), 261 CCC (3d) 359, per Robertson JA, at paras 26 to 28
  9. R v CF, 2020 ONSC 5975 (CanLII), per Leibovich J, at para 63
    R v Schulz, 2018 ONCA 598 (CanLII), [2018] O.J. No. 3526, per Brown JA
  10. Miller, supra, at para 9
    KRJ, supra, at para 48
  11. R v Schultz, 2008 ABQB 679 (CanLII), 239 CCC (3d) 535, per Topolniski J, at para 54
  12. RKA, supra, at para 28
  13. e.g. Shultz, supra

Terms and Conditions

Section 161(1)(a) to (d) sets out the available conditions for a s. 161 order:

Order of prohibition

161 (1) ... the court that sentences the offender ... shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;
(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or
(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

[omitted (1.1), (2), (3) and (4)]
R.S., 1985, c. C-46, s. 161 R.S., 1985, c. 19 (3rd Supp.), s. 4; 1993, c. 45, s. 1; 1995, c. 22, s. 18; 1997, c. 18, s. 4; 1999, c. 31, s. 67; 2002, c. 13, s. 4; 2005, c. 32, s. 5; 2008, c. 6, s. 54; 2012, c. 1, s. 16; 2014, c. 21, s. 1, c. 25, s. 5; 2015, c. 23, s. 6; 2019, c. 25, s. 55.

CCC


Note up: 161(1)

The order would prevent an offender from:

  1. attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre (161(1)(a))
  2. being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order; (161(1)(a.1))
  3. seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years (161(1)(b));
  4. having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate (161(1)(c))
  5. using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court (161(1)(d))

Internet Access

Where a s. 161(1)(d) order is being made limited use of a computer may be appropriate where risk can be minimized. Exceptions can be done for situations such as the use of "devices capable of accessing the Internet or email not only at the appellant’s place of employment, but also 'as required for employment-related purposes.'"[1]

It is inappropriate for s. 161(1)(d) as being used to impose terms that restrict ownership or use of electronic devices. It is designed only to limit internet access.[2]

  1. e.g. R v Schultz, 2018 ONCA 598 (CanLII), 142 OR (3d) 128, per Brown JA, at para 56
  2. R v Brar, 2016 ONCA 724 (CanLII), 134 OR (3d) 95, per Rouleau JA, at para 27 ("Further, I agree with the appellant’s submissions that the sentencing judge erred in imposing a prohibition on owning or using a smart phone, tablet or any mobile device with Internet capabilities. Section 161(1)(d) permits the courts to prohibit Internet use but does not provide the court with the power to restrict ownership of such Internet capable devices. Nor should such a power be inferred.")

Definitions

"Attending"

Restriction on "attending" will refer to being present on the property and not simply across the street from the location.[1]

Community Centre

A community centre will include public libraries.[2] It also includes places where members of a "community can congregate for ... purposes including recreational, social or educational" purposes.[3]

Park or Playground

A carnival is neither a park or playground.[4]

Swimming Areas

The restrictions on swimming areas will also include pools found in apartment buildings and other complexes.[5]

  1. R v Jacobs, 2014 CanLII 979 (NL PC), per Walsh J
  2. R v Allaby, 2017 SKCA 25 (CanLII), 353 CCC (3d) 476, per Ottenbreit JA, at paras 29to 38
  3. R v Jones, 2018 ONSC 4616 (CanLII), per Di Luca J
  4. R v Lachapelle, 2008 BCSC 511 (CanLII), 78 WCB (2d) 501, per Butler J see also R v Cameron, 2010 ABPC 311 (CanLII), 501 AR 15, per Creagh J
  5. R v D’Angelo, 2002 CanLII 12379 (ON CA), , (2002) 166 OAC 92 (ONCA), per MacPherson JA

Duration

161
[omitted (1) and (1.2)]

Duration of prohibition

(2) The prohibition may be for life or for any shorter duration that the court considers desirable and, in the case of a prohibition that is not for life, the prohibition begins on the later of

(a) the date on which the order is made; and
(b) where the offender is sentenced to a term of imprisonment, the date on which the offender is released from imprisonment for the offence, including release on parole, mandatory supervision or statutory release.

[omitted (3) and (4)]
R.S., 1985, c. C-46, s. 161 R.S., 1985, c. 19 (3rd Supp.), s. 4; 1993, c. 45, s. 1; 1995, c. 22, s. 18; 1997, c. 18, s. 4; 1999, c. 31, s. 67; 2002, c. 13, s. 4; 2005, c. 32, s. 5; 2008, c. 6, s. 54; 2012, c. 1, s. 16; 2014, c. 21, s. 1, c. 25, s. 5; 2015, c. 23, s. 6; 2019, c. 25, s. 55.

CCC


Note up: 161(2)

The prohibition can be of any length of time up to life.[1] The starting point of the order would either be at the time of sentence or at the time of release from custody.[2]

A 20 year order would generally be reserved for only some of the worst offenders.[3]

Sexual assaults will typically be under 10 years.[4]

When considering the effect of prior-related records, convictions for sexual offences while the offender was a youth should not be considered if it occurred more than 5 years prior to the adult offence.[5]

In practice, the judges will usually impose a 161 order for a period of 10 years or life for the most serious sexual predator offences.

Second time child pornography offence got 15 years order under 161.[6]

  1. 161(2)
  2. s. 161(2)(a) and (b)
  3. R v RRB, 2013 BCCA 224 (CanLII), 338 BCAC 106, per Prowse JA, at para 32
  4. RRB, ibid. (3 years) touching/fellatio of a minor
  5. R v Able, 2013 ONCA 385 (CanLII), 116 OR (3d) 500, per Tulloch JA, at paras 11 to 29
  6. R v Stupnikoff, 2013 SKPC 57 (CanLII), 416 Sask R 307, per Agnew J, at para 61

Variations

The condition can be varied by the same court.[1]

161
[omitted (1), (1.1) and (2)]

Court may vary order

(3) A court that makes an order of prohibition or, where the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.
[omitted (4)]
R.S., 1985, c. C-46, s. 161 R.S., 1985, c. 19 (3rd Supp.), s. 4; 1993, c. 45, s. 1; 1995, c. 22, s. 18; 1997, c. 18, s. 4; 1999, c. 31, s. 67; 2002, c. 13, s. 4; 2005, c. 32, s. 5; 2008, c. 6, s. 54; 2012, c. 1, s. 16; 2014, c. 21, s. 1, c. 25, s. 5; 2015, c. 23, s. 6; 2019, c. 25, s. 55.

CCC


Note up: 161(3)

  1. s. 161(3)

Breaches

Violations of the Order is a hybrid offence, either on summary conviction or a maximum of 2 years on indictable election.[1]

161
[omitted (1), (1.1), (2) and (3)]

Offence

(4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than four years; or
(b) an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 161 R.S., 1985, c. 19 (3rd Supp.), s. 4; 1993, c. 45, s. 1; 1995, c. 22, s. 18; 1997, c. 18, s. 4; 1999, c. 31, s. 67; 2002, c. 13, s. 4; 2005, c. 32, s. 5; 2008, c. 6, s. 54; 2012, c. 1, s. 16; 2014, c. 21, s. 1, c. 25, s. 5; 2015, c. 23, s. 6; 2019, c. 25, s. 55.

CCC


Note up: 161(4)

  1. s. 161(4)

History

Digest

Sentencing Breaches of 161 Orders

The predominant principles of sentencing for breaches of s. 161 prohibition orders is denunciation and deterrence.[1]

Ranges

Precedent

See Also

Weapons Prohibition Orders

This page was last substantively updated or reviewed January 2020. (Rev. # 79465)

General Principles

See also: Firearms Prohibition Orders

Under s. 731.1, a sentencing judge, before making a probation order, must consider whether to impose a weapons prohibition order under s. 109 or 110:

Firearm, etc., prohibitions

731.1 (1) Before making a probation order, the court shall consider whether section 109 [mandatory weapons prohibition order] or 110 [discretionary weapons prohibition order] is applicable.

Application of section 109 or 110

(2) For greater certainty, a condition of a probation order referred to in paragraph 732.1(3)(d) [probation order – weapons prohibition] does not affect the operation of section 109 [mandatory weapons prohibition order] or 110 [discretionary weapons prohibition order].
1992, c. 20, s. 201; 1995, c. 22, s. 6; 2002, c. 13, s. 73.
[annotation(s) added]

CCC


Note up: 731.1(1) and (2)

Under s. 84, and for the purposes of Part III of the Code, a ""prohibition order" means an order made under this Act or any other Act of Parliament prohibiting a person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things".[1] This will include a probation order made under .s 732.1(3).[2]

History

In 1977, the Criminal Law Amendment Act, 1977 (SC 1976-77, c 53) expanded the application of the prohibition order to include all offences where "violence was used, threatened or attempted".[3]

  1. R.S., 1985, c. C-46, s. 84; R.S., 1985, c. 27 (1st Supp.), ss. 185(F), 186; 1991, c. 40, s. 2; 1995, c. 39, s. 139; 1998, c. 30, s. 16; 2003, c. 8, s. 2; 2008, c. 6, s. 2; 2009, c. 22, s. 2; 2015, c. 3, s. 45, c. 27, s. 18.
  2. Roggie v Ontario, 2012 ONCA 808 (CanLII), 293 CCC (3d) 46, per Rosenberg JA
  3. R v Hayes, 2015 ABPC 59 (CanLII), per Groves J, at para 24

Mandatory 109 Order

Prohibition orders under s. 109 are considered mandatory. These orders apply where the offences meet the criteria set out in s. 109(1).

Applicable Offences

Mandatory prohibition order

109 (1) Where a person is convicted, or discharged under section 730 [order of discharge], of

(a) an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which the person may be sentenced to imprisonment for ten years or more,
(a.1) an indictable offence in the commission of which violence was used, threatened or attempted against
(i) the person’s intimate partner,
(ii) a child or parent of the person or of anyone referred to in subparagraph (i), or
(iii) any person who resides with the person or with anyone referred to in subparagraph (i) or (ii),
(b) an offence under subsection 85(1) (using firearm in commission of offence), subsection 85(2) (using imitation firearm in commission of offence), 95(1) (possession of prohibited or restricted firearm with ammunition), 99(1) (weapons trafficking), 100(1) (possession for purpose of weapons trafficking), 102(1) (making automatic firearm), 103(1) (importing or exporting knowing it is unauthorized) or section 264 (criminal harassment),
(c) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act,
(c.1) an offence relating to the contravention of subsection 9(1) or (2), 10(1) or (2), 11(1) or (2), 12(1), (4), (5), (6) or (7), 13(1) or 14(1) of the Cannabis Act, or
(d) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited by any order made under this Act or any other Act of Parliament from possessing any such thing,

the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order as determined in accordance with subsection (2) [mandatory prohibition order – duration with no prior] or (3) [mandatory prohibition order – duration with prior], as the case may be.
[omitted (2), (3), (4) and (5)]
R.S., 1985, c. C-46, s. 109; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1991, c. 40, s. 21; 1995, c. 39, ss. 139, 190; 1996, c. 19, s. 65.1; 2003, c. 8, s. 4; 2015, c. 27, s. 30; 2018, c. 16, s. 208; 2019, c. 25, s. 30.
[annotation(s) added]

CCC


Note up: 109(1)

An order under s. 109 prohibits "possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance". The 109 Order applies where at least one of the elements of s. 109(1)(a),(b),(c), or (d) applies.

Eligible Offences

Section 109(1)(a)

The order is mandatory under s. 109(1)(a) where the offence is:

  • indictable;[1]
  • involved violence (used, threatened or attempted) and
  • offence has maximum penalty of 10 years or more.

The order is mandatory under s. 109(1)(a.1) where the offence is:

  • indictable offence;[2]
  • "violence was used, threatened or attempted"
  • violence was against:
    • the person’s current or former intimate partner,
    • a child or parent of the person or of the intimate partner or
    • any person who resides with the person or with the intimate partner

All offences involving sexual assault against children is always offences where "violence is used" and therefore satisfies the requirement of violence under s. 109(1)(a) and 109(1)(a.1).[3] This includes:

Section 109(1)(b)

The order is mandatory under s. 109(1)(b) where the offence is:

Section 109(1)(c)

The order is mandatory under s. 109(1)(c) where it involves certain drug offences under the CDSA (s.5(1) or (2) [ trafficking ], s. 6(1) or (2)[ Importation ], s. 7(1) [ Production] )

Section 109(1)(c) was found not to violate s. 12 of the Charter for Cruel and Unusual punishment for a production of cannabis conviction.[4]

Section 109(1)(c.1)

The order is mandatory under s. 109(1)(c.1) where the offence is the following under the Cannabis Act:

  • Distribution of cannabis s. 9(1)
  • Possession for the purpose of distribution s. 9(2)
  • Selling cannabis s. 10(1)
  • Possession for the purpose of sale s. 10(2)
  • Importing and exporting cannabis s. 11(1)
  • Possession for the purpose of importing or exporting s. 9(2)
  • Production and Cultivation of cannabis s. 12(1), (4), (5), (6) or (7)
  • Possession, etc., for use in production or distribution of illicit cannabis s. 13(1)
  • Using a young person to commit a Cannabis Act offence s. 14(1)
Section 109(1)(d)

The order is mandatory under s. 109(1)(d) where the offence:

  • involves a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, and
  • the offender was prohibited from possessing such items at the time of the offence

Specific Prohibitions

The judge, in making an order under s. 109, must specifically prohibit all weapons or devices that are enumerated in the section, consisting of a prohibition from possessing:

  • firearm,
  • cross-bow,
  • prohibited weapon,
  • restricted weapon,
  • prohibited device,
  • ammunition,
  • prohibited ammunition and
  • explosive substance

Duration

The first time that a s. 109 Order is granted for an accused there is a requirement of a minimum of 10 year prohibition for firearms, crossbows, restricted weapons, ammo and explosives as well as a lifetime prohibition for prohibited firearms, restricted firearms, prohibited weapons, prohibited devices and prohibited ammunition.

All subsequent 109 orders must be a minimum prohibition of life for all items listed.

109
[omitted (1)]

Duration of prohibition order — first offence

(2) An order made under subsection (1) [mandatory weapons prohibition order] shall, in the case of a first conviction for or discharge from the offence to which the order relates, prohibit the person from possessing

(a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance during the period that
(i) begins on the day on which the order is made, and
(ii) ends not earlier than ten years after the person’s release from imprisonment after conviction for the offence or, if the person is not then imprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence; and
(b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
Duration of prohibition order — subsequent offences

(3) An order made under subsection (1) [mandatory weapons prohibition order] shall, in any case other than a case described in subsection (2) [mandatory prohibition order – duration with no prior], prohibit the person from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.
(4) In subparagraph (2)(a)(ii)[mandatory prohibition order – 10 year minimum duration], release from imprisonment means release from confinement by reason of expiration of sentence, commencement of statutory release or grant of parole.

Application of ss. 113 to 117

(5) Sections 113 to 117 [consequence of 109 and 110 prohibition orders] apply in respect of every order made under subsection (1) [mandatory weapons prohibition order].
R.S., 1985, c. C-46, s. 109; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1991, c. 40, s. 21; 1995, c. 39, ss. 139, 190; 1996, c. 19, s. 65.1; 2003, c. 8, s. 4; 2015, c. 27, s. 30; 2018, c. 16, s. 208; 2019, c. 25, s. 30.
[annotation(s) added]

CCC


Note up: 109(2), (3), (4), and (5)

Where seeking a s. 109 order for a subsequent offence requires notice of increased penalty under s. 727.[1]

  1. R v Denny, 2016 NSSC 76 (CanLII), per Rosinski J, at para 242
    R v RJF, 2004 MBCA 188 (CanLII), 192 CCC (3d) 67, per Freedman JA (3:0)
    R v Ellis, 2001 CanLII 8532 (ON CA), [2001] OJ No 1262 (CA), per Rosenberg JA (3:0)
    R v CRH, 2012 NSSC 233 (CanLII), 1029 APR 62, per Rosinski J
    see also Notice of Increased Penalty

Discretionary 110 Order

Discretionary prohibition order

110 (1) Where a person is convicted, or discharged under section 730 [order of discharge], of

(a) an offence, other than an offence referred to in any of paragraphs 109(1)(a) to (c.1) [mandatory prohibition order – various classes of offence without weapons], in the commission of which violence against a person was used, threatened or attempted, or
(b) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and, at the time of the offence, the person was not prohibited by any order made under this Act or any other Act of Parliament from possessing any such thing,

the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court decides that it is so desirable, the court shall so order.
[omitted (2), (2.1), (3), (4) and (5)]
R.S., 1985, c. C-46, s. 110; 1991, c. 40, ss. 23, 40; 1995, c. 39, ss. 139, 190; 2015, c. 27, s. 31; 2018, c. 16, s. 209; 2019, c. 25, s. 31.
[annotation(s) added]

CCC


Note up: 110(1)

An order under s. 110 prohibits "possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things".

Eligible Offences

The order is discretionary under s.110(1)(a) where the offence involves violence (used, threatened or attempted).

The order is also discretionary under s. 110(1)(b) where:

  • the offence involves a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, and
  • the offender was prohibited from possessing such items at the time of the offence

To make the order under s. 110, the order must be in the interests of the safety of the accused and other members of the public. Should the judge decline a request for an order under s.110, the judge must give reasons for declining.

An order under s. 110 will impose a maximum of 10 years prohibiting the possession of firearms, crossbows, restricted weapons, ammunition, or explosives, prohibited weapons, prohibited devices, and prohibited ammunition. This does not include prohibited firearms or restricted firearms.

Specific Prohibitions

The judge, in making an order under s. 110, may specifically prohibit any number of weapons or devices that are enumerated in the section, consisting of:

  • firearm,
  • cross-bow,
  • prohibited weapon,
  • restricted weapon,
  • prohibited device,
  • ammunition,
  • prohibited ammunition or
  • explosive substance

Duration

110
[omitted (1)]

Duration of prohibition order

(2) An order made under subsection (1) [discretionary weapons prohibition order] against a person begins on the day on which the order is made and ends not later than ten years after the person’s release from imprisonment after conviction for the offence to which the order relates or, if the person is not then imprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence.

Exception

(2.1) Despite subsection (2) [duration of prohibition order], an order made under subsection (1) [discretionary weapons prohibition order] may be imposed for life or for any shorter duration if, in the commission of the offence, violence was used, threatened or attempted against

(a) the person’s intimate partner;
(b) a child or parent of the person or of anyone referred to in paragraph (a); or
(c) any person who resides with the person or with anyone referred to in paragraph (a) or (b).
Reasons

(3) Where the court does not make an order under subsection (1) [discretionary weapons prohibition order], or where the court does make such an order but does not prohibit the possession of everything referred to in that subsection, the court shall include in the record a statement of the court’s reasons for not doing so.

Definition of release from imprisonment

(4) In subsection (2) [duration of prohibition order], "release from imprisonment" means release from confinement by reason of expiration of sentence, commencement of statutory release or grant of parole.

Application of ss. 113 to 117

(5) Sections 113 to 117 [consequence of 109 and 110 prohibition orders] apply in respect of every order made under subsection (1) [discretionary weapons prohibition order].
R.S., 1985, c. C-46, s. 110; 1991, c. 40, ss. 23, 40; 1995, c. 39, ss. 139, 190; 2015, c. 27, s. 31; 2018, c. 16, s. 209; 2019, c. 25, s. 31.
[annotation(s) added]

CCC


Note up: 110(2), (2.1), (3), (4), and (5)

Where the Crown wishes to rely upon s. 109(3) to seek an increased duration of prohibition the Crown must comply with s. 727 an provide notice. See Notice of Increased Penalty for details.[1]

  1. R v Alexander, 2013 NLCA 15 (CanLII), per Hoegg JA (3:0) , at para 5

Exercise of Discretion

Section 110 permits a judge to make an order of prohibition where it is "desirable, in the interests of the safety of the person or of any other person".

The sentencing principles including proportionality, and taking to account the "circumstances of the offence and the offender", should be applied when considering whether to make an order under s. 110.[1]

  1. R v Wauer, 2014 ABCA 270 (CanLII), 577 AR 327, per curiam (3:0)

Exemptions for Employment or Sustenance

Anyone subject to a weapons prohibition order may apply for a limited employment and sustenance order.

Lifting of prohibition order for sustenance or employment

113 (1) Where a person who is or will be a person against whom a prohibition order is made establishes to the satisfaction of a competent authority that

(a) the person needs a firearm or restricted weapon to hunt or trap in order to sustain the person or the person’s family, or
(b) a prohibition order against the person would constitute a virtual prohibition against employment in the only vocation open to the person,

the competent authority may, notwithstanding that the person is or will be subject to a prohibition order, make an order authorizing a chief firearms officer or the Registrar to issue, in accordance with such terms and conditions as the competent authority considers appropriate, an authorization, a licence or a registration certificate, as the case may be, to the person for sustenance or employment purposes.

Factors

(2) A competent authority may make an order under subsection (1) [lifting prohibition order for sustenance or employment] only after taking the following factors into account:

(a) the criminal record, if any, of the person;
(b) the nature and circumstances of the offence, if any, in respect of which the prohibition order was or will be made; and
(c) the safety of the person and of other persons.
Effect of order

(3) Where an order is made under subsection (1) [lifting prohibition order for sustenance or employment],

(a) an authorization, a licence or a registration certificate may not be denied to the person in respect of whom the order was made solely on the basis of a prohibition order against the person or the commission of an offence in respect of which a prohibition order was made against the person; and
(b) an authorization and a licence may, for the duration of the order, be issued to the person in respect of whom the order was made only for sustenance or employment purposes and, where the order sets out terms and conditions, only in accordance with those terms and conditions, but, for greater certainty, the authorization or licence may also be subject to terms and conditions set by the chief firearms officer that are not inconsistent with the purpose for which it is issued and any terms and conditions set out in the order.
When order can be made

(4) For greater certainty, an order under subsection (1) [lifting prohibition order for sustenance or employment] may be made during proceedings for an order under subsection 109(1) [mandatory weapons prohibition order], 110(1) [discretionary weapons prohibition order], 111(5) [prohibition order], 117.05(4) [forfeiture and prohibition order] or 515(2) [release order with conditions], paragraph 732.1(3)(d) [probation order – weapons prohibition] or subsection 810(3) [authority to order peace bond when satisfied].

Meaning of “competent authority”

(5) In this section, "competent authority" means the competent authority that made or has jurisdiction to make the prohibition order.
R.S., 1985, c. C-46, s. 113; 1991, c. 40, s. 27(E); 1995, c. 22, s. 10, c. 39, ss. 139, 190.
[annotation(s) added]

CCC


Note up: 113(1), (2), (3), (4), and (5)

It has been suggested that s. 113 was a necessary exemption from s. 109 in order to ensure that the punishment is not grossly disproportionate in the case of those who need the weapons for sustenance or employment.[1]

It can be sufficient to establish that the primary source of meat for an aboriginal family is through hunting.[2] It is not necessary that hunting be for the family's survival or subsistence. It may be that other sources of food are used as well.[3] However, where a farmer uses a firearm to protect his livestock, then they must establish that he "solely or predominantly" depends on the firearm to sustain his family.[4]

There is further suggestion that the provisions of 113 are not for the part-time, cultural or social hunter.[5]

  1. R v Wiles, 2004 NSCA 3 (CanLII), 182 CCC (3d) 509, per Bateman JA (3:0), at para 57 aff'd at 2005 SCC 84 (CanLII), [2005] 3 SCR 895, per Charron J (9:0)
  2. R v Allooloo, 2010 NWTCA 7 (CanLII), 487 AR 322, per curiam (3:0)
    see also R v Jararuse, [2001] N. J. No. 431 (NLPC)(*no CanLII links)
  3. Allooloo, supra, at para 16
  4. R v Tessier, 2006 CanLII 11848 (ON CA), , [2006] O.J. No. 1477, per curiam
  5. R v Conley, 2010 BCSC 1092 (CanLII), per Willcock J, at para 39

Variation of a Prohibition Order

Section 113 has been found to provide the court with authority to apply to modify a weapons prohibition.[1]

Except for s. 113, there is no power for a provincial court judge to vary the duration of a s. 109 or 110 order.[2]

Young Offenders

Mandatory prohibition order

51 (1) Despite section 42 (youth sentences), when a young person is found guilty of an offence referred to in any of paragraphs 109(1)(a) to (d) of the Criminal Code, the youth justice court shall, in addition to imposing a sentence under section 42 (youth sentences), make an order prohibiting the young person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance during the period specified in the order as determined in accordance with subsection (2).

Duration of prohibition order

(2) An order made under subsection (1) begins on the day on which the order is made and ends not earlier than two years after the young person has completed the custodial portion of the sentence or, if the young person is not subject to custody, after the time the young person is found guilty of the offence.

Discretionary prohibition order

(3) Despite section 42 (youth sentences), where a young person is found guilty of an offence referred to in paragraph 110(1)(a) or (b) of the Criminal Code, the youth justice court shall, in addition to imposing a sentence under section 42 (youth sentences), consider whether it is desirable, in the interests of the safety of the young person or of any other person, to make an order prohibiting the young person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court decides that it is so desirable, the court shall so order.

Duration of prohibition order

(4) An order made under subsection (3) against a young person begins on the day on which the order is made and ends not later than two years after the young person has completed the custodial portion of the sentence or, if the young person is not subject to custody, after the time the young person is found guilty of the offence.

Reasons for the prohibition order

(5) When a youth justice court makes an order under this section, it shall state its reasons for making the order in the record of the case and shall give or cause to be given a copy of the order and, on request, a transcript or copy of the reasons to the young person against whom the order was made, the counsel and a parent of the young person and the provincial director.

Reasons

(6) When the youth justice court does not make an order under subsection (3), or when the youth justice court does make such an order but does not prohibit the possession of everything referred to in that subsection, the youth justice court shall include in the record a statement of the youth justice court’s reasons.

Application of Criminal Code

(7) Sections 113 to 117 (firearm prohibition orders) of the Criminal Code apply in respect of any order made under this section.

Report

(8) Before making an order referred to in section 113 (lifting firearms order) of the Criminal Code in respect of a young person, the youth justice court may require the provincial director to cause to be prepared, and to submit to the youth justice court, a report on the young person.

YCJA


Note up: 51(1), (2), (3), (4), (5), (6), (7), and (8)

Review

Review of order made under section 51

52 (1) A youth justice court may, on application, review an order made under section 51 at any time after the end of the period set out in subsection 119(2)(period of access to records) that applies to the record of the offence that resulted in the order being made.

Grounds

(2) In conducting a review under this section, the youth justice court shall take into account

(a) the nature and circumstances of the offence in respect of which the order was made; and
(b) the safety of the young person and of other persons.
Decision of review

(3) When a youth justice court conducts a review under this section, it may, after giving the young person, a parent of the young person, the Attorney General and the provincial director an opportunity to be heard,

(a) confirm the order;
(b) revoke the order; or
(c) vary the order as it considers appropriate in the circumstances of the case.
New order not to be more onerous

(4) No variation of an order made under paragraph (3)(c) may be more onerous than the order being reviewed.

Application of provisions

(5) Subsections 59(3) to (5) apply, with any modifications that the circumstances require, in respect of a review under this section.

YCJA


Note up: 52(1), (2), (3), (4), and (5)

Surrender and Forfeiture of Weapons

Requirement to surrender

114 A competent authority that makes a prohibition order against a person may, in the order, require the person to surrender to a peace officer, a firearms officer or a chief firearms officer

(a) any thing the possession of which is prohibited by the order that is in the possession of the person on the commencement of the order, and
(b) every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by the order that is held by the person on the commencement of the order,

and where the competent authority does so, it shall specify in the order a reasonable period for surrendering such things and documents and during which section 117.01 [breach of s. 109 or 110 prohibition order – offence] does not apply to that person.
R.S., 1985, c. C-46, s. 114; R.S., 1985, c. 27 (1st Supp.), s. 203; 1995, c. 22, s. 10, c. 39, s. 139.
[annotation(s) added]

CCC


Note up: 114

Forfeiture

115 (1) Unless a prohibition order against a person specifies otherwise, every thing the possession of which is prohibited by the order is forfeited to Her Majesty if, on the commencement of the order, the thing is in the person’s possession or has been seized and detained by, or surrendered to, a peace officer.

Exception

(1.1) Subsection (1) [forfeiture under prohibition order] does not apply in respect of an order made under section 515 [judicial interim release provisions].

Disposal

(2) Every thing forfeited to Her Majesty under subsection (1) [forfeiture under prohibition order] shall be disposed of or otherwise dealt with as the Attorney General directs.

R.S., 1985, c. C-46, s. 115; 1995, c. 39, s. 139; 2003, c. 8, s. 5; 2019, c. 9, s. 17.
[annotation(s) added]

CCC


Note up: 115(1), (1.1) and (2)

Revocation of Authorizations, Licences and Registration

Authorizations revoked or amended

116 (1) Subject to subsection (2) [duration of revocation or amendment – orders under s. 515], every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by a prohibition order and issued to a person against whom the prohibition order is made is, on the commencement of the prohibition order, revoked, or amended, as the case may be, to the extent of the prohibitions in the order.

Duration of revocation or amendment — orders under section 515

(2) An authorization, a licence and a registration certificate relating to a thing the possession of which is prohibited by an order made under section 515 [judicial interim release provisions] is revoked, or amended, as the case may be, only in respect of the period during which the order is in force.
R.S., 1985, c. C-46, s. 116; 1991, c. 28, s. 11, c. 40, ss. 28, 41; 1995, c. 39, s. 139; 2003, c. 8, s. 6.
[annotation(s) added]

CCC


Note up: 116(1) and (2)

Return Firearm to Lawful Owner

Return to owner

117 Where the competent authority that makes a prohibition order or that would have had jurisdiction to make the order is, on application for an order under this section, satisfied that a person, other than the person against whom a prohibition order was or will be made,

(a) is the owner of any thing that is or may be forfeited to Her Majesty under subsection 115(1) [forfeiture under prohibition order] and is lawfully entitled to possess it, and
(b) in the case of a prohibition order under subsection 109(1) [mandatory weapons prohibition order] or 110(1) [discretionary weapons prohibition order], had no reasonable grounds to believe that the thing would or might be used in the commission of the offence in respect of which the prohibition order was made,

the competent authority shall order that the thing be returned to the owner or the proceeds of any sale of the thing be paid to that owner or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.
R.S., 1985, c. C-46, s. 117; 1991, c. 40, s. 29; 1995, c. 39, s. 139.
[annotation(s) added]

CCC


Note up: 117

See Also

Firearms Prohibition Orders

This page was last substantively updated or reviewed January 2016. (Rev. # 79465)

General Principles

See also: Weapons Prohibition Orders

Section 111 Prohibition Order

Application for prohibition order

111 (1) A peace officer, firearms officer or chief firearms officer may apply to a provincial court judge for an order prohibiting a person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, where the peace officer, firearms officer or chief firearms officer believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.

Date for hearing and notice

(2) On receipt of an application made under subsection (1) [application for prohibition order], the provincial court judge shall fix a date for the hearing of the application and direct that notice of the hearing be given, in such manner as the provincial court judge may specify, to the person against whom the order is sought.

Hearing of application

(3) Subject to subsection (4) [where hearing may be ex parte], at the hearing of an application made under subsection (1) [application for prohibition order], the provincial court judge shall hear all relevant evidence presented by or on behalf of the applicant and the person against whom the order is sought.

Where hearing may proceed ex parte

(4) A provincial court judge may proceed ex parte to hear and determine an application made under subsection (1) [application for prohibition order] in the absence of the person against whom the order is sought in the same circumstances as those in which a summary conviction court may, under Part XXVII [Pt. XXVII – Summary Convictions (s. 785 to 840)], proceed with a trial in the absence of the defendant.

Prohibition order

(5) Where, at the conclusion of a hearing of an application made under subsection (1) [application for prohibition order], the provincial court judge is satisfied that the circumstances referred to in that subsection exist, the provincial court judge shall make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for such period, not exceeding five years, as is specified in the order, beginning on the day on which the order is made.

Reasons

(6) Where a provincial court judge does not make an order under subsection (1) [application for prohibition order], or where a provincial court judge does make such an order but does not prohibit the possession of everything referred to in that subsection, the provincial court judge shall include in the record a statement of the court’s reasons.

Application of ss. 113 to 117

(7) Sections 113 to 117 [consequence of 109 and 110 prohibition orders] apply in respect of every order made under subsection (5) [prohibition order].

Appeal by person or Attorney General

(8) Where a provincial court judge makes an order under subsection (5) [prohibition order], the person to whom the order relates, or the Attorney General, may appeal to the superior court against the order.

Appeal by Attorney General

(9) Where a provincial court judge does not make an order under subsection (5) [prohibition order], the Attorney General may appeal to the superior court against the decision not to make an order.

Application of Part XXVII to appeals

(10) The provisions of Part XXVII [Pt. XXVII – Summary Convictions (s. 785 to 840)], except sections 785 to 812 [provisions re summary conviction trial excluding appeals], 816 to 819 [procedural provisions re summary trial appeal] and 829 to 838 [summary appeal on transcript or agreed statement of facts], apply in respect of an appeal made under subsection (8) or (9) , with such modifications as the circumstances require and as if each reference in that Part to the appeal court were a reference to the superior court.

Definition of “provincial court judge”

(11) In this section and sections 112 [revocation of prohibition order under s. 111(5)], 117.011 [weapon prohibition order for associate of prohibited person] and 117.012 [revocation of order under s. 117.011], “provincial court judge” means a provincial court judge having jurisdiction in the territorial division where the person against whom the application for an order was brought resides.
R.S., 1985, c. C-46, s. 111; 1991, c. 40, s. 24; 1995, c. 39, s. 139.
[annotation(s) added]

CCC


Note up: 111(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), and (11)

Revocation of prohibition order under s. 111(5)

112. A provincial court judge may, on application by the person against whom an order is made under subsection 111(5) [prohibition order], revoke the order if satisfied that the circumstances for which it was made have ceased to exist.
R.S., 1985, c. C-46, s. 112; R.S., 1985, c. 27 (1st Supp.), s. 203; 1991, c. 40, s. 26; 1995, c. 39, s. 139.
[annotation(s) added]

CCC


Note up: 112

Prohibition After Section 117.04 Seizure

Application for disposition

117.05 (1) Where any thing or document has been seized under subsection 117.04(1) [application for warrant to search and seizure] or (2) [search and seizure weapon without warrant – public safety], the justice who issued the warrant authorizing the seizure or, if no warrant was issued, a justice who might otherwise have issued a warrant, shall, on application for an order for the disposition of the thing or document so seized made by a peace officer within thirty days after the date of execution of the warrant or of the seizure without a warrant, as the case may be, fix a date for the hearing of the application and direct that notice of the hearing be given to such persons or in such manner as the justice may specify.

Ex parte hearing

(2) A justice may proceed ex parte to hear and determine an application made under subsection (1) [application for disposition for items seized under s. 117.04] in the absence of the person from whom the thing or document was seized in the same circumstances as those in which a summary conviction court may, under Part XXVII [Pt. XXVII – Summary Convictions (s. 785 to 840)], proceed with a trial in the absence of the defendant.

Hearing of application

(3) At the hearing of an application made under subsection (1) [application for disposition for items seized under s. 117.04], the justice shall hear all relevant evidence, including evidence respecting the value of the thing in respect of which the application was made.

Forfeiture and prohibition order on finding

(4) Where, following the hearing of an application made under subsection (1) [application for disposition for items seized under s. 117.04], the justice finds that it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing, the justice shall

(a) order that any thing seized be forfeited to Her Majesty or be otherwise disposed of; and
(b) where the justice is satisfied that the circumstances warrant such an action, order that the possession by that person of any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or of any such thing, be prohibited during any period, not exceeding five years, that is specified in the order, beginning on the making of the order.
Reasons

(5) Where a justice does not make an order under subsection (4) [forfeiture and prohibition order], or where a justice does make such an order but does not prohibit the possession of all of the things referred to in that subsection, the justice shall include in the record a statement of the justice’s reasons.

Application of ss. 113 to 117

(6) Sections 113 to 117 [consequence of 109 and 110 prohibition orders] apply in respect of every order made under subsection (4) [forfeiture and prohibition order].

Appeal by person

(7) Where a justice makes an order under subsection (4) [forfeiture and prohibition order] in respect of a person, or in respect of any thing that was seized from a person, the person may appeal to the superior court against the order.

Appeal by Attorney General

(8) Where a justice does not make a finding as described in subsection (4) [forfeiture and prohibition order] following the hearing of an application under subsection (1) [application for disposition for items seized under s. 117.04], or makes the finding but does not make an order to the effect described in paragraph (4)(b) [forfeiture and prohibition order – additional 5 year prohibition], the Attorney General may appeal to the superior court against the failure to make the finding or to make an order to the effect so described.

Application of Part XXVII to appeals

(9) The provisions of Part XXVII [Pt. XXVII – Summary Convictions (s. 785 to 840)], except sections 785 to 812 [provisions re summary conviction trial excluding appeals], 816 to 819 [procedural provisions re summary trial appeal] and 829 to 838 [summary appeal on transcript or agreed statement of facts], apply in respect of an appeal made under subsection (7) [forfeiture and prohibition order – appeal by person] or (8) [forfeiture and prohibition order – appeal by Crown] with such modifications as the circumstances require and as if each reference in that Part to the appeal court were a reference to the superior court.
1995, c. 39, s. 139.

CCC


Note up: 117.05(1), (2), (3), (4), (5), (6), (7), (8), and (9)

Associate Prohibition Order

Limitations on Access
Application for order

117.011 (1) A peace officer, firearms officer or chief firearms officer may apply to a provincial court judge for an order under this section where the peace officer, firearms officer or chief firearms officer believes on reasonable grounds that

(a) the person against whom the order is sought cohabits with, or is an associate of, another person who is prohibited by any order made under this Act or any other Act of Parliament from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things; and
(b) the other person would or might have access to any such thing that is in the possession of the person against whom the order is sought.
Date for hearing and notice

(2) On receipt of an application made under subsection (1) [weapon prohibition order for associate – requirements], the provincial court judge shall fix a date for the hearing of the application and direct that notice of the hearing be given, in such manner as the provincial court judge may specify, to the person against whom the order is sought.

Hearing of application

(3) Subject to subsection (4) [weapon prohibition order for associate – ex parte hearing], at the hearing of an application made under subsection (1) [weapon prohibition order for associate – requirements], the provincial court judge shall hear all relevant evidence presented by or on behalf of the applicant and the person against whom the order is sought.

Where hearing may proceed ex parte

(4) A provincial court judge may proceed ex parte to hear and determine an application made under subsection (1) [weapon prohibition order for associate – requirements] in the absence of the person against whom the order is sought in the same circumstances as those in which a summary conviction court may, under Part XXVII [Pt. XXVII – Summary Convictions (s. 785 to 840)], proceed with a trial in the absence of the defendant.

Order

(5) Where, at the conclusion of a hearing of an application made under subsection (1) [weapon prohibition order for associate – requirements], the provincial court judge is satisfied that the circumstances referred to in that subsection exist, the provincial court judge shall make an order in respect of the person against whom the order was sought imposing such terms and conditions on the person’s use and possession of anything referred to in subsection (1) [weapon prohibition order for associate – requirements] as the provincial court judge considers appropriate.

Terms and conditions

(6) In determining terms and conditions under subsection (5) [weapon prohibition order for associate – order], the provincial court judge shall impose terms and conditions that are the least intrusive as possible, bearing in mind the purpose of the order.

Appeal by person or Attorney General

(7) Where a provincial court judge makes an order under subsection (5) [weapon prohibition order for associate – order], the person to whom the order relates, or the Attorney General, may appeal to the superior court against the order.

Appeal by Attorney General

(8) Where a provincial court judge does not make an order under subsection (5) [weapon prohibition order for associate – order], the Attorney General may appeal to the superior court against the decision not to make an order.

Application of Part XXVII to appeals

(9) The provisions of Part XXVII [Pt. XXVII – Summary Convictions (s. 785 to 840)], except sections 785 to 812 [provisions re summary conviction trial excluding appeals], 816 to 819 [procedural provisions re summary trial appeal] and 829 to 838 [summary appeal on transcript or agreed statement of facts], apply in respect of an appeal made under subsection (7) or (8), with such modifications as the circumstances require and as if each reference in that Part to the appeal court were a reference to the superior court.
1995, c. 39, s. 139.

CCC


Note up: 117.011(1), (2), (3), (4), (5), (6), (7), (8), and (9)

Revocation of order under s. 117.011

117.012 A provincial court judge may, on application by the person against whom an order is made under subsection 117.011(5) [weapon prohibition order for associate – order], revoke the order if satisfied that the circumstances for which it was made have ceased to exist.
1995, c. 39, s. 139.
[annotation(s) added]

CCC


Note up: 117.012

See Also

Fraud Prohibition Orders

General Principles

Anyone convicted of Fraud under s.380(1) may have a prohibition imposed upon them preventing the person from obtaining or continuing any employment, or becoming or being a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person.

Section 380.2 states:

Prohibition order

380.2 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730 [order of discharge], of an offence referred to in subsection 380(1) [fraud], the court that sentences or discharges the offender, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person.

Duration

(2) The prohibition may be for any period that the court considers appropriate, including any period to which the offender is sentenced to imprisonment.

Court may vary order

(3) A court that makes an order of prohibition or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances.

Offence

(4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

2011, c. 6, s. 4.
[annotation(s) added]

CCC


Note up: 380.2(1), (2), (3), and (4)

The provision found in s. 380.2(1) imposes "significant restrictions" on liberty and so cannot be applied retrospectively.[1]

  1. R v Hooyer, 2016 ONCA 44 (CanLII), 332 CCC (3d) 97, per Doherty JA

History

This provision was added to the Criminal Code Sept 29, 2011 with Bill C-21, Standing up for Victims of White Collar Crime Act, 2011 c.6. It came into force on November 1, 2011.

Animal Prohibition Orders

This page was last substantively updated or reviewed January 2019. (Rev. # 79465)

Order

Order of prohibition or restitution

447.1 (1) The court may, in addition to any other sentence that it may impose under subsection 445(2) [injuring or endangering other animals & ndash; punishment], 445.1(2) [causing unnecessary suffering – punishment], 446(2) [wilful neglect causing injury – punishment] or 447(2) [arena for animal fighting – punishment],

(a) make an order prohibiting the accused from owning, having the custody or control of or residing in the same premises as an animal or a bird during any period that the court considers appropriate but, in the case of a second or subsequent offence, for a minimum of five years; and
(b) on application of the Attorney General or on its own motion, order that the accused pay to a person or an organization that has taken care of an animal or a bird as a result of the commission of the offence the reasonable costs that the person or organization incurred in respect of the animal or bird, if the costs are readily ascertainable.
Breach of order

(2) Every one who contravenes an order made under paragraph (1)(a) [order of restitution for value of animal] is guilty of an offence punishable on summary conviction.

Application

(3) Sections 740 to 741.2 [provisions relating to restitution] apply, with any modifications that the circumstances require, to orders made under paragraph (1)(b) [order of restitution for value of animal].

2008, c. 12, s. 1; 2018, c. 29, s. 54.
[annotation(s) added]

CCC


Note up: 447.1(1), (2) and (3)

See Also

Driving Prohibition Orders

This page was last substantively updated or reviewed January 2019. (Rev. # 79465)

General Principles

Mandatory prohibition order

320.24 (1) If an offender is found guilty of an offence under subsection 320.14(1) [impaired operation] or 320.15(1) [refusal to provide a sample], the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (2) [mandatory prohibition order – period].

Prohibition period

(2) The prohibition period is

(a) for a first offence, not less than one year and not more than three years, plus the entire period to which the offender is sentenced to imprisonment;
(b) for a second offence, not less than two years and not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment; and
(c) for each subsequent offence, not less than three years, plus the entire period to which the offender is sentenced to imprisonment.
Discretionary order of prohibition — low blood drug concentration

(3) If an offender is found guilty of an offence under subsection 320.14(4) [operation with low blood drug concentration], the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period of not more than one year.

Discretionary order of prohibition — other offences

(4) If an offender is found guilty of an offence under section 320.13 [dangerous operation], subsection 320.14(2) [impaired operation causing bodily harm] or (3) [impaired operation causing death], 320.15(2) [refusal where collision results in bodily harm] or (3) [refusal where collision results in death] or under any of sections 320.16 to 320.18 , the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (5) [discretionary prohibition order – period].

Prohibition period

(5) The prohibition period is

(a) if the offender is liable to imprisonment for life in respect of that offence, of any duration that the court considers appropriate, plus the entire period to which the offender is sentenced to imprisonment;
(b) if the offender is liable to imprisonment for more than five years but less than life in respect of that offence, not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment; and
(c) in any other case, not more than three years, plus the entire period to which the offender is sentenced to imprisonment.
Effect of order

(5.1) Subject to subsection (9) [prohibition order – consecutive periods], a prohibition order takes effect on the day that it is made.

Obligation of court

(6) A court that makes a prohibition order under this section shall cause the order to be read by or to the offender or a copy of the order to be given to the offender.

Validity of prohibition order not affected

(7) A failure to comply with subsection (6) [prohibition order – court obligation] does not affect the validity of the prohibition order.

Application — public place

(8) A prohibition order in respect of a motor vehicle applies only to its operation on a street, road or highway or in any other public place.

Consecutive prohibition periods

(9) If the offender is, at the time of the commission of the offence, subject to an order made under this Act prohibiting the offender from operating a conveyance, a court that makes a prohibition order under this section that prohibits the offender from operating the same type of conveyance may order that the prohibition order be served consecutively to that order.

Minimum absolute prohibition period

(10) A person may not be registered in an alcohol ignition interlock device program referred to in subsection 320.18(2) [operation while prohibited – exception] until the expiry of

(a) in the case of a first offence, a period, if any, that may be fixed by order of the court;
(b) in the case of a second offence, a period of three months after the day on which the sentence is imposed or any longer period that may be fixed by order of the court; and
(c) in the case of a subsequent offence, a period of six months after the day on which the sentence is imposed or any longer period that may be fixed by order of the court.

2018, c. 21, s. 15.
[annotation(s) added]

CCC


Note up: 320.24(1), (2), (3), (4), (5), (5.1), (6), (7), (8), (9), and (10)


Defined terms: "Act" (s. 2), "conveyance" (s. 320.11), "highway" (s. 2), "motor vehicle" (s. 2), "offender" (s. 2), and "person" (s. 2)

Stay of order pending appeal

320.25 (1) Subject to subsection (2) [stay of order pending appeal – supreme court of canada], if an appeal is taken against a conviction or sentence for an offence under any of sections 320.13 to 320.18 [all conveyance offences], a judge of the court to which the appeal is taken may direct that the prohibition order under section 320.24 [mandatory prohibition order] arising out of the conviction shall, on any conditions that the judge imposes, be stayed pending the final disposition of the appeal or until otherwise ordered by that court.

Appeals to Supreme Court of Canada

(2) In the case of an appeal to the Supreme Court of Canada, a direction may be made only by a judge of the court from which the appeal was taken.

Effect of conditions

(3) The imposition of conditions on a stay of a prohibition order does not operate to decrease the prohibition period provided in the prohibition order.

2018, c. 21, s. 15.
[annotation(s) added]

CCC


Note up: 320.25(1), (2) and (3)

Street, Road, Highway or Other Public Place

See also: Definitions of Parties, Persons, Places and Organizations

History

Driving Prohibition Orders (Prior to December 2018)

This page was last substantively updated or reviewed January 2019. (Rev. # 79465)

Introduction

A person convicted of a motor vehicle offence will be subject to a mandatory driving prohibition under s. 259. The duration will be determined by a number of factors including the seriousness of the offence and the existence of any prior convictions.

The minimum prohibition duration is determined by the number of prior offences. Where there are prior convictions, the Crown must give notice in compliance with s. 727 in order to engage the increased penalty.[1]

Mandatory order of prohibition

259 (1) When an offender is convicted of an offence committed under section 253 [operation while impaired] or 254 [taking samples of breath/blood] or this section or discharged under section 730 of an offence committed under section 253 [operation while impaired] and, at the time the offence was committed or, in the case of an offence committed under section 254 [taking samples of breath/blood], within the three hours preceding that time, was operating or had the care or control of a motor vehicle, vessel or aircraft or of railway equipment or was assisting in the operation of an aircraft or of railway equipment, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be,

(a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year;
(b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and
(c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.

[omitted (1.01), (1.1), (1.2), (1.3) and (1.4), (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (4) and (5)]
R.S., 1985, c. C-46, s. 259; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F), c. 32 (4th Supp.), s. 62; 1995, c. 22, ss. 10, 18; 1997, c. 18, s. 11; 1999, c. 32, s. 5(Preamble); 2000, c. 2, s. 2; 2001, c. 37, s. 1; 2006, c. 14, s. 3; 2008, c. 6, s. 26, c. 18, s. 8.

[annotation(s) added]

CCC


Note up: 259(1)

The phrase "or other public place" is found under section 259 (1) refers to a place "upon which motor vehicles can be driven ... to which a significant segment of the public has access as of right and where it can be reasonably anticipated that the motor vehicle Will come into close proximity to pedestrians or other motor vehicles."[2]

Street, Road, Highway or Other Public Place

See also: Definitions of Parties, Persons, Places and Organizations

Duration

Section 259 requires a mandatory minimum Order of prohibition from driving for offences under s.253, 254 or 259. The length is as follows:

  • First offence: 1 to 3 years (s.259(1)(a))
  • Second offence: 2 to 5 years (s. 259(1)(b))
  • All subsequent offences: 3 years or more (s. 259(1)(c))

Interlock program is available after:

  • First offence: 3 months from sentence (s.259(1.2)(a)(i))
  • Second offence: 6 months from sentence (s.259(1.2)(a)(ii))
  • All subsequent offences: 12 months from sentence (s.259(1.2)(a)(iii))
  • Or any later time as set by the judge (s.259(1.2)(b))

Section 259(2) allows a discretionary order of prohibition from driving for offences under s. 220, 221, 236, 249, 249.1, 250, 251 or 252 or 255(2) to (3.2). The length is as follows:

  • Offences with max of life sentence or actual life sentence: any duration (s. 259(2)(a), (a1))
  • Offences with max of 10 years: up to 5 years (s.259(2)(b))
  • Any other offences: up to 3 years (s. 259(2)(c))

Street racing mandatory prohibitions in addition to other mandatory orders:

  • First offence: 1 to 3 years (s. 259(3.1)(a))
  • Second offence: 2 to 5 years (s. 259(3.1)(b))
  • Any subsequent offences: 3 years or more (s. 259(3.1)(c))

Bodily harm offences under s. 249.3 or 249.4(3), the mandatory orders are as follows:

  • First Offence: 1 to 10 years
  • Second Offence: 2 to 10 years
  • Any subsequent offences: 3 years or more

Death offences under s. 249.2 or 249.4(4), the mandatory orders are as follows:

  • s.249.2 Offences: 1 year or more
  • s. 249.4(4) offences: 1 to 10 years
  • Any second conviction is life (s. 259(3.4))

The breath readings can be used to permit a greater duration. Section 255.1 treats readings over 160mg/ml as "aggravating circumstances" which can translate to a greater duration.[1]


Calculating Duration

The period of prohibition is the aggregate of the duration of the term of imprisonment and the period of prohibition ordered by the court.[2]

When determining duration the Court may consider and subtract periods of driving prohibition that were imposed through release conditions.[3]

Procedure

When making an order for a driving prohibition, the sentencing court should spell out the duration of the prohibition as an aggregate of the duration of the term of custody and the duration of the post-custody prohibition.[4]

  1. e.g. R v Pavlovsky, 2013 ONSC 6800 (CanLII), 58 MVR (6th) 75, per Campbell J, at paras 28 to 31
  2. R v Bansal, 2017 BCCA 93 (CanLII), per Frankel JA (3:0), at para 40
  3. R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, at paras 111 to 114
  4. Bansal, supra

Consecutive vs Concurrent

See also: Concurrent and Consecutive Sentences

On Oct 1, 2008, s. 259(2.1) was added permitting discretionary orders for consecutive driving prohibitions:

259
[omitted (1), (1.01), (1.1), (1.2), (1.3) and (1.4) and (2)]

Consecutive prohibition periods

(2.1) The court may, when it makes an order under this section prohibiting the operation of a motor vehicle, a vessel, an aircraft or railway equipment, as the case may be, order that the time served under that order be served consecutively to the time served under any other order made under this section that prohibits the operation of the same means of transport and that is in force.
[omitted (3), (3.1), (3.2), (3.3), (3.4), (4) and (5)]
R.S., 1985, c. C-46, s. 259; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F), c. 32 (4th Supp.), s. 62; 1995, c. 22, ss. 10, 18; 1997, c. 18, s. 11; 1999, c. 32, s. 5(Preamble); 2000, c. 2, s. 2; 2001, c. 37, s. 1; 2006, c. 14, s. 3; 2008, c. 6, s. 26, c. 18, s. 8.

CCC


Note up: 259(2.1)

Prior to Oct 1, 2008, a driving prohibition cannot be ordered to be consecutive to another driving prohibition that is already in force. The prohibition must begin at the day the order is made.[1] Any offence that occurs prior to Oct 1, 2008, must have concurrent driving prohibitions.[2]

  1. R v Neuberger, 1997 CanLII 2443 (BC CA), 118 CCC 348, per Braidwood JA
  2. Neuberger, ibid.

Alcohol Interlock Program

259
[omitted (1) and (1.01)]

Alcohol ignition interlock device program

(1.1) If the offender is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and complies with the conditions of the program, the offender may, subject to subsection (1.2) , operate a motor vehicle equipped with an alcohol ignition interlock device during the prohibition period, unless the court orders otherwise.

Minimum absolute prohibition period

(1.2) An offender who is registered in a program referred to in subsection (1.1) may not operate a motor vehicle equipped with an alcohol ignition interlock device until

(a) the expiry of a period of
(i) for a first offence, 3 months after the day on which sentence is imposed,
(ii) for a second offence, 6 months after the day on which sentence is imposed, and
(iii) for each subsequent offence, 12 months after the day on which sentence is imposed; or
(b) the expiry of any period that may be fixed by order of the court that is greater than a period referred to in paragraph (a).

[omitted (1.3) and (1.4) and (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (4) and (5)]
R.S., 1985, c. C-46, s. 259; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F), c. 32 (4th Supp.), s. 62; 1995, c. 22, ss. 10, 18; 1997, c. 18, s. 11; 1999, c. 32, s. 5(Preamble); 2000, c. 2, s. 2; 2001, c. 37, s. 1; 2006, c. 14, s. 3; 2008, c. 6, s. 26, c. 18, s. 8.
[annotation(s) added]

CCC


Note up: 259(1.1) and (1.2)

Consequences of Driving Prohibition Order

Proceedings on making of prohibition order

260 (1) If a court makes a prohibition order under section 259 in relation to an offender, it shall cause

(a) the order to be read by or to the offender;
(b) a copy of the order to be given to the offender; and
(c) the offender to be informed of subsection 259(4) .
Endorsement by offender

(2) After subsection (1) has been complied with in relation to an offender who is bound by an order referred to in that subsection, the offender shall endorse the order, acknowledging receipt of a copy thereof and that the order has been explained to him.

Validity of order not affected

(3) The failure of an offender to endorse an order pursuant to subsection (2) does not affect the validity of the order.

Onus

(4) In the absence of evidence to the contrary, where it is proved that a disqualification referred to in paragraph 259(5)(b) has been imposed on a person and that notice of the disqualification has been mailed by registered or certified mail to that person, that person shall, after five days following the mailing of the notice, be deemed to have received the notice and to have knowledge of the disqualification, of the date of its commencement and of its duration.

Certificate admissible in evidence

(5) In proceedings under section 259 [driving prohibition orders], a certificate setting out with reasonable particularity that a person is disqualified from

(a) driving a motor vehicle in a province, purporting to be signed by the registrar of motor vehicles for that province, or
(b) operating a vessel or aircraft, purporting to be signed by the Minister of Transport or any person authorized by the Minister of Transport for that purpose

is evidence of the facts alleged therein without proof of the signature or official character of the person by whom it purports to be signed.

Notice to accused

(6) Subsection (5) does not apply in any proceedings unless at least seven days notice in writing is given to the accused that it is intended to tender the certificate in evidence.

Definition of registrar of motor vehicles

(7) In subsection (5) , registrar of motor vehicles includes the deputy of that registrar and any other person or body, by whatever name or title designated, that from time to time performs the duties of superintending the registration of motor vehicles in the province.
R.S., 1985, c. C-46, s. 260; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F); 2006, c. 14, s. 4.
[annotation(s) added]

CCC


Note up: 260(1), (2), (3), (4), (5), (6), and (7)

Stay of Driving Prohibition Order While on Appeal

Stay of order pending appeal

261 (1) Subject to subsection (1.1), if an appeal is taken against a conviction or discharge under section 730 for an offence committed under any of sections 220 [criminal negligence causing death], 221 [criminal negligence causing bodily harm], 236 [manslaughter], 249 to 255 [motor vehicles, vessels and aircraft offences] and 259 [driving prohibition orders], a judge of the court being appealed to may direct that any prohibition order under section 259 arising out of the conviction or discharge shall, on any conditions that the judge or court imposes, be stayed pending the final disposition of the appeal or until otherwise ordered by that court.

Appeals to Supreme Court of Canada

(1.1) In the case of an appeal to the Supreme Court of Canada, the direction referred to in subsection (1) may be made only by a judge of the court being appealed from and not by a judge of the Supreme Court of Canada.

Effect of conditions

(2) If conditions are imposed under a direction made under subsection (1) or (1.1) that a prohibition order be stayed, the direction shall not operate to decrease the period of prohibition provided in the order.
R.S., 1985, c. C-46, s. 261; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F); 1994, c. 44, ss. 15, 103; 1995, c. 22, s. 10; 1997, c. 18, ss. 12, 141; 2006, c. 14, s. 5; 2008, c. 6, s. 27.

CCC


Note up: 261(1), (1.1) and (2)

See Also

Ancillary Fine and Restitution Orders

Restitution

General Principles

Sections 737.1 to 741.2 deal with restitution to victims of crime.

Court to consider restitution order

737.1 (1) If an offender is convicted or is discharged under section 730 [order of discharge] of an offence, the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 [restitution orders] or 739 [restitution orders].

Inquiry by court

(2) As soon as feasible after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.

Adjournment

(3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court is satisfied that the adjournment would not interfere with the proper administration of justice.

Form

(4) Victims and other persons may indicate whether they are seeking restitution by completing Form 34.1 [forms] in Part XXVIII [Pt. XXVIII – Miscellaneous (s. 841 to 849)] or a form approved for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses and damages, the amount of which must be readily ascertainable, in the same manner.

Reasons

(5) If a victim seeks restitution and the court does not make a restitution order, it shall include in the record a statement of the court’s reasons for not doing so.
2015, c. 13, s. 29.
[annotation(s) added]

CCC


Note up: 737.1(1), (2), (3), (4), and (5)

Appellate Review

A sentencing judge making a restitution order is "entitled to deference". The appellate court should intervene only "on the gasis of error in principle or if the order is excessive or inadequate".[1]

  1. R v Castro, 2010 ONCA 718 (CanLII), 261 CCC (3d) 304, per Weiler JA, at para 22 ("A restitution order forms part of a sentence. In accordance with general sentencing principles, a restitution order is entitled to deference and an appellate court will only interfere with the sentencing judge's exercise of discretion on the basis of error in principle or if the order is excessive or inadequate")
    R v Devgan, 1999 CanLII 2412 (ON CA), 136 CCC (3d) 238, per Labrosse JA, at para 24

Stand-alone Restitution

A restitution order can be made at the time of sentencing under s. 738:

Restitution to victims of offences

738 (1) Where an offender is convicted or discharged under section 730 [order of discharge] of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, where the amount is readily ascertainable;
[omitted (b), (c), (d) and (e)]
Regulations

(2) The lieutenant governor in council of a province may make regulations precluding the inclusion of provisions on enforcement of restitution orders as an optional condition of a probation order or of a conditional sentence order.
R.S., 1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s. 95; 2005, c. 43, s. 7; 2009, c. 28, s. 11; 2014, c. 31, s. 24; 2019, c. 25, s. 302.
[annotation(s) added]

CCC


Note up: 738(1) and (2)

Restitution can be ordered to require the offender to pay a sum of money to compensate a party for a proven loss. Restitution is ordered as either a term of a probation order or else as a stand alone restitution order.[1] A stand-alone restitution order has no time limit for repayment and may be registered as a civil judgement[2] which in turn could be used to garnish wages and seize property.

Purpose of Restitution

Restitution is intended to rehabilitate the offender by making him immediately responsible for the loss of the victim. It also gives the victim a speedy means of getting money back.[3]

The purpose of the order is to be part of the sentence, not to compensate for losses.[4]

One of the primary goals of restitution orders is to deprive "offender of the fruits of his or her crime"[5]

Burden

Once an offence of fraud is fully established by the Crown, "the burden to establish that there is no money (and necessarily where it went) falls to the offender".[6]

Effect

Restitution orders are to be treated as "part of the determination of an overall fit sentence, and general sentencing principles apply".[7]

Under s. 178 (1)(a) of the Bankruptcy and Insolvency Act, a restitution order will survive bankruptcy.[8]

Considerations on Ordering Restitution

Whether to grant restitution is considered as part of the "totality" of the punishment.[9] Typically, the offender should have some ability to pay the amount, either at sentencing or in the future.[10]

Objectives and factors for the discretionary ordering restitution are as follows:[11]:

  1. An order for compensation should be made with restraint and caution;[12]
  2. The concept of compensation is essential to the sentencing process:
    1. it emphasizes the sanction imposed upon the offender;
    2. it makes the accused responsible for making restitution to the victim;
    3. it prevents the accused from profiting from crime; and
    4. it provides a convenient, rapid and inexpensive means of recovery for the victim;
  3. A sentencing judge should consider;
    1. the purpose of the aggrieved person in invoking s. 725(1);
    2. whether civil proceedings have been initiated and are being pursued; and
    3. the means of the offender.
  4. A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims.
  5. It should not be ordered when the amount is unclear.[13]
  6. A compensation order is not the appropriate mechanism to unravel involved commercial transactions;
  7. A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation.
  8. A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made;
  9. Any serious contest on legal or factual issues should signal a denial of recourse to an order;
  10. Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered; and
  11. A compensation order may be appropriate where a related civil judgement has been rendered unenforceable as a result of bankruptcy.

No single factor should be determinative on whether restitution should be ordered.[14]

Where the offence involves a breach of trust, the "paramount consideration must be the victims' claims".[15]

A judge is entitled to conclude that the pursuit of a civil judgment by victims would be unfair due to the obstacles in their path to recovery.[16]

Connection Between Offender and Loss

An order under s. 738(1)(a) requires that the loss be "as a result of the commission of the offence". This necessarily requires proof that the accused had was "involved" or had a "role" in the criminal activity.[17]

Recipient

Restitution under section 738(1)(a) can be made payable to the insurance company that paid for repairs. [18]

Quantum

The judge has discretion to order less than the full amount of restitution owed.[19]

Ability to Pay

Section 739.1 states:

Ability to pay

739.1 The offender’s financial means or ability to pay does not prevent the court from making an order under section 738 [(Stand-alone) restitution to victims of offences] or 739 [Restitution to persons acting in good faith].
2015, c. 13, s. 30.

[annotation(s) added]

CCC


Note up: 739.1

Section 739.1 removes from consideration the "offender's financial means or ability to pay" in assessing an order under s. 738 [(Stand-alone) restitution to victims of offences] or 739 [Restitution to persons acting in good faith].[20] There is also authority stating that the section codifies the common law that states that ability to pay is always a factor but is "not necessarily determinative".[21]

An offender's means has limited importance in cases of fraud.[22]

A failure to consider the offender's patent inability to pay restitution must be considered before ordering restitution.[23]

The meaning of "ability to pay" includes present and future ability to pay.[24]

  1. s. 738
  2. see s. 741
  3. R v Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 SCR 1005, per Cory J
    R v Yates, 2002 BCCA 583 (CanLII), 169 CCC (3d) 506, per Prowse JA
  4. See R v Castro, 2010 ONCA 718 (CanLII), 261 CCC (3d) 304, per Weiler JA, at paras 22, 26 and 43
  5. R v Johnson, 2010 ABCA 392 (CanLII), 265 CCC (3d) 443, per curiam, at para 29
  6. Johnson, supra, at para 23 - Fraud for $1.7 million completely on accounted for
  7. Castro, supra
  8. Johnson, supra, at para 30
  9. R v Siemens, 1999 CanLII 18651 (MB CA), 136 CCC (3d) 353, per Huband JA
  10. R v Dashner, 1973 CanLII 1372 (BC CA), 15 CCC (2d) 139 (BCCA), per McFarlane JA
    R v Biegus, 1999 CanLII 3815 (ON CA), 141 CCC (3d) 245, per Feldman JA
    R v Brown, 1999 BCCA 592 (CanLII), 130 BCAC 250, per Ryan JA
    Fitzgibbon, supra
  11. R v Devgan, 1999 CanLII 2412 (ON CA), 136 CCC (3d) 238, per Labrosse JA
    See also: R v Zelensky, 1978 CanLII 8 (SCC), [1978] 2 SCR 940, 41 CCC (2d) 97, per Laskin CJ, at p. 111-13 (CCC)
    Fitzgibbon, supra, at pp. 454-55
    London Life Insurance Co. v Zavitz, at 270
    R v Scherer, 1984 CanLII 3594 (ON CA), 16 CCC (3d) 30, per Martin JA, at pp. 37-38 (CCC)
    R v Salituro, 1990 CanLII 10984 (ON CA), 56 CCC (3d) 350, per Blair JA, at pp. 372-73 (CCC)
    R v Horne, 1996 CanLII 8051 (ON SC), 34 O.R.(3d) 142, per Watt J, at pp. 148-49 (CCC)
    R v Carter, [1990] OJ No 3140, 9 C.C.L.S. 69 (Gen. Div.)(*no CanLII links) at 75 - 76 (CCLS)
  12. Zelensky, supra
  13. R v Castro, 2010 ONCA 718 (CanLII), 261 CCC (3d) 304, per Weiler JA, at paras 26 and 43
  14. Castro, supra, at para 27
  15. Johnson, supra, at para 29
    Castro, supra, at para 28
    R v Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 SCR 1005, per Cory J, at pp. 1014-1015 (SCR)
  16. Johnson, supra, at para 30
  17. R v DeBay, 2001 NSCA 48 (CanLII), 599 APR 112, per Cromwell JA, at para 3
    R v Brown, 2010 NSPC 38 (CanLII), per Derrick J, at paras 17 to 21
  18. R v Popert, 2010 ONCA 89 (CanLII), 251 CCC (3d) 30, per Gillese JA
  19. Yates, supra
  20. Cases assessing ability to pay prior to 2015: R v Ratt, 2005 SKCA 110 (CanLII), 269 Sask R 238, per Lane JA
    R v DeBay, 2001 NSCA 48 (CanLII), 599 APR 112, per Cromwell JA
    R v Biegus, 1999 CanLII 3815 (ON CA), 141 CCC (3d) 245, per Feldman JA
    R v Hudson, 1981 CanLII 3222 (ON CA), 65 CCC (2d) 171, per Brooke JA
    103956 Canada Ltd. v Moniuk, 1981 CanLII 3350 (NWT SC), 61 CCC (2d) 285
    Yates, supra, at paras 12 and 17
  21. R v Simoneau, 2017 QCCA 1382 (CanLII)
  22. Johnson, supra, at para 29
    R v Cadieux, 2004 ABCA 98 (CanLII), 320 WAC 46, per Ritter JA, at para 9
  23. R v Kelly, 2018 NSCA 24 (CanLII), NSJ No 85, per Beveridge JA (chambers), at para 55("With respect, the failure to appropriately consider the offender’s patent inability to pay such a restitution order reflects legal error.")
  24. Simoneau, supra

Offences of Violence

Section 738 states:

Restitution to victims of offences

738 (1) Where an offender is convicted or discharged under section 730 [order of discharge] of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

[omitted (a)]
(b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable;
(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;

[omitted (d), (e) and (2)]
R.S., 1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s. 95; 2005, c. 43, s. 7; 2009, c. 28, s. 11; 2014, c. 31, s. 24; 2019, c. 25, s. 302.
[annotation(s) added]

CCC


Note up: 738(1)

Specific Offences

738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
[omitted (a), (b) and (c)]

(d) in the case of an offence under section 402.2 [identity theft] or 403 [identity fraud], by paying to a person who, as a result of the offence, incurs expenses to re-establish their identity, including expenses to replace their identity documents and to correct their credit history and credit rating, an amount that is not more than the amount of those expenses, to the extent that they are reasonable, if the amount is readily ascertainable; and
(e) in the case of an offence under subsection 162.1(1) [distribution of intimate images – offence], by paying to a person who, as a result of the offence, incurs expenses to remove the intimate image from the Internet or other digital network, an amount that is not more than the amount of those expenses, to the extent that they are reasonable, if the amount is readily ascertainable.

[omitted (2)]
R.S., 1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s. 95; 2005, c. 43, s. 7; 2009, c. 28, s. 11; 2014, c. 31, s. 24; 2019, c. 25, s. 302.
[annotation(s) added]

CCC


Note up: 738(1)

Restitution to Good Faith Recipients

Restitution can be ordered to the benefit of a third party (non-victim) where the third party receives something of value in good faith that must be returned to the victim.

Restitution to persons acting in good faith

739 Where an offender is convicted or discharged under section 730 [order of discharge] of an offence and

(a) any property obtained as a result of the commission of the offence has been conveyed or transferred for valuable consideration to a person acting in good faith and without notice, or
(b) the offender has borrowed money on the security of that property from a person acting in good faith and without notice,

the court may, where that property has been returned to the lawful owner or the person who had lawful possession of that property at the time the offence was committed, order the offender to pay as restitution to the person referred to in paragraph (a) or (b) an amount not exceeding the amount of consideration for that property or the total amount outstanding in respect of the loan, as the case may be.
R.S., 1985, c. C-46, s. 739; R.S., 1985, c. 27 (1st Supp.), s. 163, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 6.

CCC


Note up: 739

Payment Due Date and Schedule

Payment under order

739.2 In making an order under section 738 [restitution orders] or 739 [restitution orders], the court shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court is of the opinion that the amount should be paid in instalments, in which case the court shall set out a periodic payment scheme in the order.
2015, c. 13, s. 30.
[annotation(s) added]

CCC


Note up: 739.2

Multiple Offenders

More than one person

739.3 An order under section 738 [restitution orders] or 739 [restitution orders] may be made in respect of more than one person, in which case the order must specify the amount that is payable to each person. The order may also specify the order of priority in which those persons are to be paid.
2015, c. 13, s. 30.
[annotation(s) added]

CCC


Note up: 739.3

Where a judge finds were "equal participants in a joint in common enterprise" it would not be unfair to order a restitution order that makes both accused fullly liable for the entire amount.[1]

  1. R v Katchatourov, 2014 ONCA 464 (CanLII), 313 CCC (3d) 94, per MacPherson JA, at para 67
    R v Gibb, 2014 ONSC 5316 (CanLII), per Daley J, at para 100

Order in Favour of Designated Public Authority

Section 739.4 permits a sentencing judge to order a restitution order to be in favour of a designated public authority who is "responsible for enforcing the order".

What constitutes a proper "public authority" is set out by applicable regulations.

Public authority

739.4 (1) On the request of a person in whose favour an order under section 738 [restitution orders] or 739 [restitution orders] would be made, the court may make the order in favour of a public authority, designated by the regulations, who is to be responsible for enforcing the order and remitting to the person making the request all amounts received under it.

Orders

(2) The lieutenant governor in council of a province may, by order, designate any person or body as a public authority for the purpose of subsection (1) [public authority designated to enforce order].
2015, c. 13, s. 30.
[annotation(s) added]

CCC


Note up: 739.4(1) and (2)

Priority of Restitution

Priority to restitution

740 Where the court finds it applicable and appropriate in the circumstances of a case to make, in relation to an offender, an order of restitution under section 738 [restitution orders] or 739 [restitution orders], and

(a) an order of forfeiture under this or any other Act of Parliament may be made in respect of property that is the same as property in respect of which the order of restitution may be made, or
(b) the court is considering ordering the offender to pay a fine and it appears to the court that the offender would not have the means or ability to comply with both the order of restitution and the order to pay the fine,

the court shall first make the order of restitution and shall then consider whether and to what extent an order of forfeiture or an order to pay a fine is appropriate in the circumstances.
R.S., 1985, c. C-46, s. 740; 1995, c. 22, s. 6.
[annotation(s) added]

CCC


Note up: 740

Enforcement

Enforcing restitution order

741 (1) An offender who fails to pay all of the amount that is ordered to be paid under section 732.1 [imposition of conditions on probation order], 738 [restitution orders], 739 [restitution orders] or 742.3 [conditions of conditional sentence order] by the day specified in the order or who fails to make a periodic payment required under the order is in default of the order and the person to whom the amount, or the periodic payment, as the case may be, was to be made may, by filing the order, enter as a judgment any amount ordered to be paid that remains unpaid under the order in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

Moneys found on offender

(2) All or any part of an amount that is ordered to be paid under section 738 [restitution orders] or 739 [restitution orders] may be taken out of moneys found in the possession of the offender at the time of the arrest of the offender if the court making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so directs.
R.S., 1985, c. C-46, s. 741; R.S., 1985, c. 27 (1st Supp.), s. 164; 1995, c. 22, s. 6; 2004, c. 12, s. 13; 2015, c. 13, s. 31.
[annotation(s) added]

CCC


Note up: 741(1) and (2)

Notice of orders of restitution

741.1 If a court makes an order of restitution under section 738 [restitution orders] or 739 [restitution orders], it shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid, and if it is to be paid to a public authority designated by regulations made under subsection 739.4(2) [designating person as public authority to enforce order], to the public authority and the person to whom the public authority is to remit amounts received under the order.
R.S., 1985, c. 24 (2nd Supp.), s. 47; 1992, c. 11, s. 14, c. 20, s. 202; 1995, c. 19, s. 37, c. 22, s. 6; 2015, c. 13, s. 32.
[annotation(s) added]

CCC


Note up: 741.1

Civil remedy not affected

741.2 A civil remedy for an act or omission is not affected by reason only that an order for restitution under section 738 [restitution orders] or 739 [restitution orders] has been made in respect of that act or omission.
1992, c. 20, s. 203; 1995, c. 22, s. 6, c. 42, s. 75.
[annotation(s) added]

CCC


Note up: 741.2

Multiple Offenders Pay

Disposal of penalties when joint offenders

807 Where several persons join in committing the same offence and on conviction each is adjudged to pay an amount to a person aggrieved, no more shall be paid to that person than an amount equal to the value of the property destroyed or injured or the amount of the injury done, together with costs, if any, and the residue of the amount adjudged to be paid shall be applied in the manner in which other penalties imposed by law are directed to be applied.
R.S., c. C-34, s. 742.

CCC


Note up: 807

Specific Types of Restitution

A Tow-truck bill arising from the seizure of the accused vehicle purchased with proceeds of crime is not the subject of forfeiture.[1]

  1. R v Wellington, 2003 ABQB 12 (CanLII), per Sanderman J

See Also

Fines#Victim Fine Surcharge

This page was last substantively updated or reviewed January 2020. (Rev. # 79465)

General Principles

As of June 21, 2019, s. 737 reads as follows:

Victim surcharge

737 (1) An offender who is convicted, or discharged under section 730 [order of discharge], 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.

Amount of surcharge

(2) Subject to subsections (2.1) [exception for hardship] and (3) [victim fine surcharge], 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.
Exception

(2.1) Despite subsection (1) [power to order victim fine surcharge], 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.
Definition of undue hardship

(2.2) For the purposes of subsection (2.1) [exception for hardship], 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.

For greater certainty

(2.3) For greater certainty, for the purposes of subsection (2.2) [victim fine surcharge – undue hardship defined], the imprisonment of the offender alone does not constitute undue hardship.

Reasons

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

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.

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.

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.

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 [change in terms of fine order].
Enforcement

(7) Subsections 734(3) to (7) [fines – default payment] and sections 734.3 [change in terms of fine order], 734.5 [consequences on licences, permits, etc when in default], 734.7 [warrant of committal for default], 734.8 [reduction of imprisonment in default of payment] and 736 [fine option program] 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) [allocation of payment – costs and charges before fines], 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 [terms of order imposing fine].
Application — subsections (2.1) to (2.4)

(8) Subsections (2.1) to (2.4) [provision relating to undue hardship exception] 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.

R.S., 1985, c. C-46, s. 737; 1995, c. 22, ss. 6, 18; 1996, c. 19, s. 75; 1999, c. 5, s. 38, c. 25, s. 20(Preamble); 2013, c. 11, s. 3; 2015, c. 13, s. 28; 2018, c. 16, s. 222; 2019, c. 25, s. 301.
[annotation(s) added]

CCC


Note up: 727(1), (2), (2.1), (2.2), (2.3), (2.4), (3), (4), (5), (6), (7), and (8)

According to section 737, an "offender who is convicted or discharged...shall pay a victim surcharge". Under s. 737(2), the amount will be either

  1. 30% of any fine imposed;
  2. $100 for each summary conviction offence, or
  3. $200 for each indictable offence

The fine is presumed payable immediately unless the court is satisfied that time is needed to pay.

While some courts have found other reasons to decline to order the surcharge.[1]

Due Date

Provincial legislation may impose due dates as permitted under s. 737(4). In Newfoundland and Labrador the Victim Surcharge Order, requires that "Where a court does not impose a fine for an offence, a victim surcharge arising under the Criminal Code shall be paid within 30 days of the date of conviction or discharge of the offence."[2]

Constitutionality

The entire provision of s. 727 was found unconstitutional for being contrary to s. 12 of the Charter regarding "cruel and unusual punishment"[3]

Victim Surcharge is a Punishment Within Meaning of the Charter

The imposition of a victim surcharge is a form of fine which by its nature is a form of punishment and not merely a form of restitution.[4]

Cancelling Previous Orders

There is some suggestion that a provincial court has authority to grant expungement of any previously ordered victim fine surcharge made under the mandatory regime.[5]

  1. R v Johnson, 2016 NSSC 297 (CanLII), per Duncan J, at paras 60 to 62 - judge sentencing accused to second degree murder states that he has no way of assessing the meaning what a "reasonable time" to would be and so declined to order it
  2. see s. 2 of the Victim Surcharge Order, NLR 5/00
  3. R v Boudreault, 2018 SCC 58 (CanLII), [2018] 3 SCR 599, per Martin J
  4. Boudreault, ibid., at paras 40 to 44
  5. R v Seguin, 2019 ONCJ 257 (CanLII), per Renaud J

History Pre-2018

The previous drafting of s. 737 in force until the 2018 decision of Boudreault:[1]

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, in addition to any other punishment imposed on the offender.

Amount of surcharge

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

(a) 30 per cent 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.
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.

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.

(5) and (6) [Repealed, 2013, c. 11, s. 3]

Amounts applied to aid victims

(7) A victim surcharge imposed under subsection (1) 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.

Notice

(8) 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.
Enforcement

(9) Subsections 734(3) to (7) and sections 734.3 [change in terms of fine order], 734.5 [consequences on licences, permits, etc when in default], 734.7 [warrant of committal for default], 734.8 [reduction of imprisonment in default of payment] and 736 [fine option program] apply, with any modifications that the circumstances require, in respect of a victim surcharge imposed under subsection (1) 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 (8) is deemed to be an order made under section 734.1.

(10) [Repealed, 2013, c. 11, s. 3]

R.S., 1985, c. C-46, s. 737; 1995, c. 22, ss. 6, 18; 1996, c. 19, s. 75; 1999, c. 5, s. 38, c. 25, s. 20(Preamble); 2013, c. 11, s. 3; 2015, c. 13, s. 28; 2018, c. 16, s. 222.
(see "Constitutionality" below)

CCC

This section was struck down in its entirety on December 14, 2018 until an amendment came into force on June 21, 2019.

Old Discretionary Waiver

An offence that occurs before the 2013 amendment to s. 737 will be subject to the old rules permitting waiver of the fine.[2]

Previous to amendments on October 24, 2013, s. 737(5) and (6) permitted the waiver of the VFS "[w]hen the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependents of the offender would result from payment of the victim surcharge, the court may, on application of the offender, make an order exempting the offender" from paying the fine. The court must give reasons for this exemption.

The amounts to be imposed consisted of either:[3]

  • 15% of any fine imposed;
  • $50 on each summary conviction count; or
  • $100 on each indictable conviction count.

If no request was made, the fine was presumed to be imposed.[4]

  1. R v Boudreault, 2018 SCC 58 (CanLII), [2018] 3 SCR 599, per Martin J
  2. R v Griffin, 2014 CanLII 3533 (NL PC), per Gorman J, at para 36
  3. see s. 737(2)
  4. R v Tellier, 2000 ABCA 219 (CanLII), 261 AR 360, per curiam

See Also

Fine in Lieu of Forfeiture

General Principles

See also: Forfeiture of Proceeds of Crime

Where the judge finds that property can be forfeited under s. 462.37(1) or (2.01) as "proceeds of crime", the court has the ability order that the offender pay a fine instead where that property is not available for forfeiture.

Purpose of Provision

The purpose of fines in lieu of forfeiture is intended to replace the proceeds of crime with their monetary equivalent.[1]

Fine-in-Lieu is Not Punishments

An order under s. 462.37 is not a punishment.[2]

Requirements

462.37
[omitted (1), (2), (2.01), (2.02), (2.03), (2.04), (2.05), (2.06), (2.07), (2.1)]

Fine instead of forfeiture

(3) If a court is satisfied that an order of forfeiture under subsection (1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property

(a) cannot, on the exercise of due diligence, be located;
(b) has been transferred to a third party;
(c) is located outside Canada;
(d) has been substantially diminished in value or rendered worthless; or
(e) has been commingled with other property that cannot be divided without difficulty.

[omitted (4) and (5)]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 1999, c. 5, s. 15(F); 2001, c. 32, s. 19; 2005, c. 44, s. 6; 2015, c. 16, s. 4; 2017, c. 7, s. 59; 2018, c. 16, s. 214; 2018, c. 16, s. 225.
[annotation(s) added]

CCC


Note up: 462.37(3)


Defined terms: "Canada" (s. 35 IA), "offender" (s. 2), and "property" (s. 2)

The fine amount "must represent an amount equal to the accused’s interest in the property which could not be located for forfeiture".[3]

Discretion to Order Fine

Where the criteria are met the Court has limited discretion to refuse to make the order.[4]

It is not permitted to decline to make the order on the basis that:

  • the proceeds were already released to pay for legal fees.[5]
  • it may impact rehabilitative prospects.[6]
  • the ability to satisfy.[7]
Ability to Pay

Ability to pay is not to be taken into account in assigning the value to the fine of lieu of forfeiture.[8]

Instead, the court may alleviate the severity of the fine only by extending the time to pay.[9]

Valuation

The value of property is the "value of the property that was possessed or controlled" by the accused, not the amount of benefit received by the accused.[10]

Where the accused only keeps part of the money he receives, such as when receiving "buy money" from a drug deal, he could still be fined in the full amount he receives.[11]

Fine Option Program

Under s. 462.27(5), the fine options program is not eligible.[12]

Priority of Orders

A concurrent restitution order can be ordered to take precedent over a fine in lieu of forfeiture. [13] Payments made to a restitution order can be used to offset the amount of the fine.[14]

  1. R v Angelis, 2016 ONCA 675 (CanLII), 340 CCC (3d) 477, per Watt JA, under appeal
  2. Angelis, ibid.
  3. R v Fleming, 2016 ONSC 2805 (CanLII), per Kurke J, at para 22
    R v Lavigne, 2006 SCC 10 (CanLII), [2006] 1 SCR 392, per Deschamps J, at paras 10 to 21, 29 to 37, 44
  4. Lavigne, supra
    R v Walker, 2016 ABQB 695 (CanLII), per Ackerl J, at para 110 (“The discretion is limited by the objective of the provision, the nature of the order and the circumstances in which the order is made. One important objective is to target criminal organizations and to deter them from continuing their criminal activities. ”)
  5. R v Rafilovich, 2017 ONCA 634 (CanLII), 353 CCC (3d) 293, per Pardu JA
  6. Angelis, supra
  7. Angelis, supra
  8. Fleming, supra, at para 22
    Angelis, supra
  9. Fleming, supra, at para 22
    Lavigne, supra, at paras 45 to 48
  10. R v Piccinini, 2015 ONCA 446 (CanLII), per curiam, at para 19
  11. Fleming, supra, at paras 29 to 32
    R v AS, 2010 ONCA 441 (CanLII), 258 CCC (3d) 13, per curiam, at para 14
  12. Fine option program not available to offender
    (5) Section 736 does not apply to an offender against whom a fine is imposed pursuant to subsection (3).
  13. Walker, supra, at para 113
  14. Walker, supra, at para 113
    R v Dhanaswar, 2016 ONCA 229 (CanLII), per curiam

Fine Option Program

Under s. 462.27(5), the fine options program is not eligible:

462.37
[omitted (1), (2), (2.01), (2.02), (2.03), (2.04), (2.05), (2.06), (2.07), (2.1), (3) and (4)]

Fine option program not available to offender

(5) Section 736 [fine option program] does not apply to an offender against whom a fine is imposed pursuant to subsection (3) [order of forfeiture of proceeds of crime – fine instead of forfeiture].
R.S., 1985, c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 1999, c. 5, s. 15(F); 2001, c. 32, s. 19; 2005, c. 44, s. 6; 2015, c. 16, s. 4; 2017, c. 7, s. 59; 2018, c. 16, s. 214; 2018, c. 16, s. 225.
[annotation(s) added]

CCC


Note up: 462.37(5)


Defined terms: "offender" (s. 2)

Time to Pay

Where a judge makes and order for a fine in lieu of forfeiture a time is set in which to pay. Failure to make the payment in the requisite time may result in further jail time.

Default Time

The period of imprisonment for failure to pay the fine is an enforcement mechanism to encourage payment.[1]

Section 462.37(4) addresses default penalties:

462.37
[omitted (1), (2), (2.01), (2.02), (2.03), (2.04), (2.05), (2.06), (2.07), (2.1) and (3)]

Imprisonment in default of payment of fine

(4) Where a court orders an offender to pay a fine pursuant to subsection (3) [order of forfeiture of proceeds of crime – fine instead of forfeiture], the court shall

(a) impose, in default of payment of that fine, a term of imprisonment
(i) not exceeding six months, where the amount of the fine does not exceed ten thousand dollars,
(ii) of not less than six months and not exceeding twelve months, where the amount of the fine exceeds ten thousand dollars but does not exceed twenty thousand dollars,
(iii) of not less than twelve months and not exceeding eighteen months, where the amount of the fine exceeds twenty thousand dollars but does not exceed fifty thousand dollars,
(iv) of not less than eighteen months and not exceeding two years, where the amount of the fine exceeds fifty thousand dollars but does not exceed one hundred thousand dollars,
(v) of not less than two years and not exceeding three years, where the amount of the fine exceeds one hundred thousand dollars but does not exceed two hundred and fifty thousand dollars,
(vi) of not less than three years and not exceeding five years, where the amount of the fine exceeds two hundred and fifty thousand dollars but does not exceed one million dollars, or
(vii) of not less than five years and not exceeding ten years, where the amount of the fine exceeds one million dollars; and
(b) direct that the term of imprisonment imposed pursuant to paragraph (a) be served consecutively to any other term of imprisonment imposed on the offender or that the offender is then serving.

[omitted (5)]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 1999, c. 5, s. 15(F); 2001, c. 32, s. 19; 2005, c. 44, s. 6; 2015, c. 16, s. 4; 2017, c. 7, s. 59; 2018, c. 16, s. 214; 2018, c. 16, s. 225.

CCC


Note up: 462.37(4)

Section 462.37 imposes the following range of penalties:

Section Imprisonment Fine Amount
462.37(4)(a)(i) 0 to 6 months 0 to $10,000
462.37(4)(a)(ii) 6 to 12 months $10,000 to $20,000
462.37(4)(a)(iii) 12 to 18 months $20,000 to $50,000
462.37(4)(a)(iv) 18 to 24 months $50,000 to $100,000
462.37(4)(a)(v) 2 to 3 years $100,000 to $150,000
462.37(4)(a)(vi) 3 to 5 years $150,000 to $1,000,000
462.37(4)(a)(vii) 5 to 10 years $1,000,000 or more

The offender's rehabilitation is not a factor in considering a failure to pay the fine.[2] The offender's ability to pay is not a relevant factor in failure to pay.[3]

  1. R v Dritsas, 2015 MBCA 19 (CanLII), 19 CR (7th) 203, per Monnin JA
  2. R v Walker, 2016 ABQB 695 (CanLII), per Ackerl J, at para 109
  3. Walker, ibid., at para 109

Forfeiture Orders

Introduction

There are a number of scheme dealing with the detention and forfeiture of property in criminal law. There is a significant amount of overlap between many of them and so provide for several methods of forfeiting property.

Forfeiture Orders arise from two scenarios, it is either post-conviction or where no conviction exists.

With Conviction

Without Conviction

Topics

See Also

Forfeiture of Proceeds of Crime

This page was last substantively updated or reviewed January 2020. (Rev. # 79465)

General Principles

See also: Seizure of Proceeds of Crime

Part XII.2 was enacted in Bill C61 to meet Canada's international obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.[1]

Purpose

The purpose of Part XII.2 is to "neutralize criminal organizations by taking the proceeds of their illegal activities away from them."[2] It is also intended to recognize "that some crime is big business, and that massive profits, both direct and indirect, can be made from criminal activity."[3]

Application for forfeiture

462.38 (1) Where an information has been laid in respect of a designated offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2) [requirements to order forfeiture] in respect of any property.

Order of forfeiture of property

(2) Subject to sections 462.39 to 462.41 [inference re forfeiture of proceeds of crime], where an application is made to a judge under subsection (1) [authority to make application of forfeiture], the judge shall, if the judge is satisfied that

(a) any property is, beyond a reasonable doubt, proceeds of crime,
(b) proceedings in respect of a designated offence committed in relation to that property were commenced, and
(c) the accused charged with the offence referred to in paragraph (b) has died or absconded,

order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.

Property outside Canada

(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Person deemed absconded

(3) For the purposes of this section, a person shall be deemed to have absconded in connection with a designated offence if

(a) an information has been laid alleging the commission of the offence by the person,
(b) a warrant for the arrest of the person or a summons in respect of an organization has been issued in relation to that information, and
(c) reasonable attempts to arrest the person pursuant to the warrant or to serve the summons have been unsuccessful during the period of six months commencing on the day the warrant or summons was issued, or, in the case of a person who is not or never was in Canada, the person cannot be brought within that period to the jurisdiction in which the warrant or summons was issued,

and the person shall be deemed to have so absconded on the last day of that period of six months.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 35; 2001, c. 32, s. 20; 2003, c. 21, s. 7.
[annotation(s) added]

CCC


Note up: 462.38(1), (2), (2.1), and (3)

Part XII.2 provides two manners of forfeiting property:

  1. forfeiture of proceeds upon conviction or discharge[4]
  2. forfeiture of proceeds upon death or abscondment of accused[5]

The proceeds of crime provision provide no discretion to the court on whether property falls within the definition.[6]

Part XII.2 does not affect the interpretation of any other legislation relating to forfeiture of property.[7]

Regulations

The Attorney General may make regulations relating to the disposal of proceeds of crime under s. 462.5[8]

Judge

The reference to "judge" under Part XII.2 is defined in s. 462.3:

Definitions

462.3 (1) In this Part [Pt. XII.2 – Proceeds of Crime (s. 462.3 to 462.5)],
...
"judge " means a judge as defined in section 552 [definitions - judges] or a judge of a superior court of criminal jurisdiction;
...
[omitted (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss. 68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11; 1999, c. 5, ss. 13, 52; 2001, c. 32, s. 12, c. 41, ss. 14, 33; 2005, c. 44, s. 1; 2010, c. 14, s. 7; 2019, c. 25, s. 179.
[annotation(s) added]

CCC


Note up: 462.3(1)

Punishments

The forfeiture of proceeds of crime is not a form of punishment.[9]

  1. Hubbard, Murphy, ODonnell, "Money Laundering & Proceeds of Crime" (Irwin Law 2004), at p. 79
  2. Quebec (AG) v Laroche, 2002 SCC 72 (CanLII), [2002] 3 SCR 708, per LeBel J
  3. R v Wilson, 1993 CanLII 8665 (ON CA), 86 CCC (3d) 464, per Doherty JA
  4. see 462.37
  5. see 462.38
  6. R v Lavigne, 2006 SCC 10 (CanLII), [2006] 1 SCR 392, per Deschamps J, at para 15
  7. see s. 462.49(1) which states:
    462.49 (1) This Part does not affect the operation of any other provision of this or any other Act of Parliament respecting the forfeiture of property.
  8. Regulations
    462.5 The Attorney General may make regulations governing the manner of disposing of or otherwise dealing with, in accordance with the law, property forfeited under this Part.
    R.S., 1985, c. 42 (4th Supp.), s. 2.
  9. Lavigne, supra, at paras 25 to 26

Evidence

The normal rules of trial evidence still apply in the forfeiture hearing, including rules relating to hearsay.[1]

Inference

462.39 For the purpose of subsection 462.37(1) [order of forfeiture of proceeds of crime] or 462.38(2) [requirements to order forfeiture], the court may infer that property was obtained or derived as a result of the commission of a designated offence where evidence establishes that the value, after the commission of that offence, of all the property of the person alleged to have committed the offence exceeds the value of all the property of that person before the commission of that offence and the court is satisfied that the income of that person from sources unrelated to designated offences committed by that person cannot reasonably account for such an increase in value.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 2001, c. 32, s. 21.
[annotation(s) added]

CCC


Note up: 462.39

  1. R v West, 2005 CanLII 30052 (ON CA), 199 CCC (3d) 449, per Weiler JA, at para 28

Proceeds of Crime Defined

Section 462.3 defines Proceeds of Crime as:

462.3 (1) In this Part [Pt. XII.2 – Proceeds of Crime (s. 462.3 to 462.5)],
...
"proceeds of crime" means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of

(a) the commission in Canada of a designated offence, or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.

[omitted (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss. 68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11; 1999, c. 5, ss. 13, 52; 2001, c. 32, s. 12, c. 41, ss. 14, 33; 2005, c. 44, s. 1; 2010, c. 14, s. 7; 2019, c. 25, s. 179.

CCC


Note up: 462.3(1)

Parliament has intended to "apply to the widest possible range of property."[1]

  1. R v Lavigne, 2006 SCC 10 (CanLII), [2006] 1 SCR 392, per Deschamps J, at para 15

Designated Offence Defined

Under Part XII.2 of the Code entitled Proceeds of Crime, s. 462.3 states:

462.3 (1) In this Part [Pt. XII.2 – Proceeds of Crime (s. 462.3 to 462.5)],

"designated drug offence"[Repealed, 1996, c. 19, s. 68]

"designated offence" means

(a) any offence that may be prosecuted as an indictable offence under this or any other Act of Parliament, other than an indictable offence prescribed by regulation, or
(b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a);

...
[omitted (2)]
(3) [Repealed, 2019, c. 25, s. 179]
(4) [Repealed, 2019, c. 25, s. 179]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss. 68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11; 1999, c. 5, ss. 13, 52; 2001, c. 32, s. 12, c. 41, ss. 14, 33; 2005, c. 44, s. 1; 2010, c. 14, s. 7.

CCC


Note up: 462.3(1)

The list of offences excluded from the definition of "designated offence" are found in Regulations Excluding Certain Indictable Offences From the Definition of "Designated Offence", SOR/2002-63,

Notice of Application

Notice

462.41 (1) Before making an order under subsection 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture] in relation to any property, a court shall require notice in accordance with subsection (2) [notice requirements for forfeiture of proceeds of crime – manner] to be given to and may hear any person who, in the opinion of the court, appears to have a valid interest in the property.

Service, duration and contents of notice

(2) A notice given under subsection (1) [notice requirements for forfeiture of proceeds of crime – requirement] shall

(a) be given or served in such manner as the court directs or as may be prescribed by the rules of the court;
(b) be of such duration as the court considers reasonable or as may be prescribed by the rules of the court; and
(c) set out the designated offence charged and a description of the property.
Order of restoration of property

(3) Where a court is satisfied that any person, other than

(a) a person who is charged with, or was convicted of, a designated offence, or
(b) a person who acquired title to or a right of possession of that property from a person referred to in paragraph (a) under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property,

is the lawful owner or is lawfully entitled to possession of any property or any part thereof that would otherwise be forfeited pursuant to subsection 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture] and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part thereof be returned to that person.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, ss. 37, 140; 2001, c. 32, s. 22; 2005, c. 44, s. 8.
[annotation(s) added]

CCC


Note up: 462.41(1), (2) and (3)

Forfeiture Upon Conviction or Discharge

Under s. 462.37, the Attorney General may apply to seek the forfeiture of proceeds of crime upon conviction or discharge of a particular offence.

Order of forfeiture of property on conviction

462.37 (1) Subject to this section and sections 462.39 to 462.41 [inference re forfeiture of proceeds of crime], if an offender is convicted, or discharged under section 730 [order of discharge], of a designated offence and the court imposing sentence on or discharging the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime obtained through the commission of the designated offence, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.

Proceeds of crime — other offences

(2) If the evidence does not establish to the satisfaction of the court that property in respect of which an order of forfeiture would otherwise be made under subsection (1) [order of forfeiture of proceeds of crime] was obtained through the commission of the designated offence of which the offender is convicted or discharged, but the court is satisfied, beyond a reasonable doubt, that the property is proceeds of crime, the court may make an order of forfeiture under subsection (1) [order of forfeiture of proceeds of crime] in relation to that property.
[omitted (2.01), (2.02), (2.03), (2.04), (2.05), (2.06), (2.07), (2.1), (3), (4) and (5)]

R.S., 1985, c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 1999, c. 5, s. 15(F); 2001, c. 32, s. 19; 2005, c. 44, s. 6; 2015, c. 16, s. 4 2017, c. 7, s. 59; 2018, c. 16, s. 214; 2018, c. 16, s. 225.
[annotation(s) added]

CCC


Note up: 462.37(1) and (2)


Purpose

The purpose of s. 462.37 is to "deprive offenders of the proceeds of crime and ensure that they do not benefit from those proceeds ".[1]

Where the offender never had control over the property there is no reason to order forfeiture against the offender.[2]

Standard of Proof

The standard is on a balance of probabilities. If the requirements are satisfied forfeiture is mandatory.

  1. R v Dwyer, 2013 ONCA 34 (CanLII), 296 CCC (3d) 193, per Rosenberg JA, at para 24
  2. Dwyer, ibid., at para 24

Evidence

Inference

462.39 For the purpose of subsection 462.37(1) [order of forfeiture of proceeds of crime] or 462.38(2) [requirements to order forfeiture], the court may infer that property was obtained or derived as a result of the commission of a designated offence where evidence establishes that the value, after the commission of that offence, of all the property of the person alleged to have committed the offence exceeds the value of all the property of that person before the commission of that offence and the court is satisfied that the income of that person from sources unrelated to designated offences committed by that person cannot reasonably account for such an increase in value.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 2001, c. 32, s. 21.
[annotation(s) added]

CCC


Note up: 462.39

Forfeiture of Proceeds of Crime (Organized Crime)

Forfeiture Upon Death or Flight

Under s. 462.38, the Attorney General may apply to seek the forfeiture of items seized where the accused is deceased or has absconded.

Forfeiture of Money

To seize money during a criminal proceedings, the Crown must prove on a balance of probabilities that:

  1. The seized monies are in relation to offences for which the defendant has been convicted; and,
  2. The property is proceeds of crime.

"Property of an offender" under s. 462.37(3) can include stolen cash[1] and so can be forfeited under those provisions.

  1. R v Robichaud, 2011 NBCA 112 (CanLII), 381 NBR (2d) 315, per Deschênes JA

Application For Relief

Purpose

While the purpose behind s. 462.42 was to "deprive criminals of the fruits of their crimes" it was not intended to accomplish this at the "expense of innocent third parties".[1]

This section provides a mechanism for 3rd parties to claim an interest in forfeited property. It permits the return of property or payment of equal value of ownership.[2]

Provisions
Application by person claiming interest for relief from forfeiture

462.42 (1) Any person who claims an interest in property that is forfeited to Her Majesty under subsection 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture] may, within thirty days after the forfeiture, apply by notice in writing to a judge for an order under subsection (4) [order declaring interest not subject to forfeiture] unless the person is

(a) a person who is charged with, or was convicted of, a designated offence that resulted in the forfeiture; or
(b) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) under circumstances that give rise to a reasonable inference that the title or right was transferred from that person for the purpose of avoiding the forfeiture of the property.
Fixing day for hearing

(2) The judge to whom an application is made under subsection (1) [application by person claiming interest for relief from forfeiture – requirements] shall fix a day not less than thirty days after the date of filing of the application for the hearing thereof.

Notice

(3) An applicant shall serve a notice of the application made under subsection (1) [application by person claiming interest for relief from forfeiture – requirements] and of the hearing thereof on the Attorney General at least fifteen days before the day fixed for the hearing.

Order declaring interest not subject to forfeiture

(4) Where, on the hearing of an application made under subsection (1) [application by person claiming interest for relief from forfeiture – requirements], the judge is satisfied that the applicant is not a person referred to in paragraph (1)(a) or (b) and appears innocent of any complicity in any designated offence that resulted in the forfeiture or of any collusion in relation to any such offence, the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and extent of the interest.

Appeal from order under subsection (4)

(5) An applicant or the Attorney General may appeal to the court of appeal from an order under subsection (4) [order declaring interest not subject to forfeiture] and the provisions of Part XXI [Pt. XXI – Appeals – Indictable Offences (s. 673 to 696)] with respect to procedure on appeals apply, with such modifications as the circumstances require, to appeals under this subsection.

Return of property

(6) The Attorney General shall, on application made to the Attorney General by any person who has obtained an order under subsection (4) [order declaring interest not subject to forfeiture] and where the periods with respect to the taking of appeals from that order have expired and any appeal from that order taken under subsection (5) [appeal from an order declaring interest not subject to forfeiture] has been determined,

(a) direct that the property or the part thereof to which the interest of the applicant relates be returned to the applicant; or
(b) direct that an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant.

R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, ss. 38, 140; 2001, c. 32, s. 23; 2005, c. 44, s. 9.
[annotation(s) added]

CCC


Note up: 462.42(1), (2), (3), (4), (5), and (6)

There are additional criteria that must be established beyond those set out in s. 462.42. The person claiming an interest must also show:[3]

  1. that he or she had a valid interest in the property that went beyond the interest of a general creditor; and
  2. the nature and extent of the claim. Accordingly, the last component the person claiming an interest must establish was that it is appropriate for his or her interest to take priority over the forfeiture order.
  1. 1431633 Ontario Inc v Canada (Attorney general), 2010 ONSC 266 (CanLII), 250 CCC (3d) 354, per Molloy J, at para 30 ("Although Parliament intended to deprive criminals of the fruits of their crimes, it clearly did not intend to do so at the expense of innocent third parties who may have a legitimate interest in that same property. That is the purpose of the provisions permitting relief from forfeiture (such as s. 462.42) and that purpose must be kept in mind when considering whether a particular applicant is entitled to the relief sought.")
    Canada (Attorney General) v Dew, 2016 MBCA 95 (CanLII), per Monnin JA, at para 24 re CDSA provisions
  2. R v Connolly, 2004 NLTD 228 (CanLII), 191 CCC (3d) 357, per LeBlanc J, at para 50 ("s. 462.42 provides a mechanism for third parties who claim an interest in property ordered forfeited to apply for relief from forfeiture. If successful, that application does not mean that the earlier order is rescinded retroactively. It merely means that the third party will be entitled to a return of the property for which a valid claim is made or the payment of an amount equal to the value of the applicant’s interest.")
    R v 170888 Canada ltée, 1999 CanLII 13794 (QC CA), 135 CCC (3d) 367, per Fish JA
  3. 1431633 Ontario Inc v Canada (Attorney general), ibid.

Priority in Forfeiture

Where proceeds are forfeited, the priority goes to victims who are owed restitution:

462.49
[omitted (1)]

Priority for restitution to victims of crime

(2) The property of an offender may be used to satisfy the operation of a provision of this or any other Act of Parliament respecting the forfeiture of property only to the extent that it is not required to satisfy the operation of any other provision of this or any other Act of Parliament respecting restitution to or compensation of persons affected by the commission of offences.
R.S., 1985, c. 42 (4th Supp.), s. 2.

CCC


Note up: 462.249(2)

Voiding Conveyance on Forfeiture

Voidable transfers

462.4 A court may,

(a) prior to ordering property to be forfeited under subsection 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances] or 462.38(2) [requirements to order forfeiture], and
(b) in the case of property in respect of which a restraint order was made under section 462.33 [restraint orders against property], where the order was served in accordance with subsection 462.33(8) [service of order],

set aside any conveyance or transfer of the property that occurred after the seizure of the property or the service of the order under section 462.33 [restraint orders against property], unless the conveyance or transfer was for valuable consideration to a person acting in good faith.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 36(E); 2005, c. 44, s. 7.
[annotation(s) added]

CCC


Note up: 462.4

Fine in Lieu of Forfeiture

Appeal of Forfeiture Orders

Appeals from certain orders

462.44 Any person who considers that they are aggrieved by an order made under subsection 462.38(2) [requirements to order forfeiture] or 462.41(3) [notice requirements for forfeiture of proceeds of crime – order to restore property] or section 462.43 [residual disposal of property seized or dealt with pursuant to special warrants or restraint orders] may appeal from the order as if the order were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, under Part XXI [Pt. XXI – Appeals – Indictable Offences (s. 673 to 696)], and that Part applies, with such modifications as the circumstances require, to such an appeal.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1997, c. 18, s. 39.
[annotation(s) added]

CCC


Note up: 462.44

Suspension of forfeiture pending appeal

462.45 Despite anything in this Part, the operation of an order of forfeiture or restoration of property under subsection 462.34(4) [order for restoration of property or revocation or variation of order], 462.37(1) [order of forfeiture of proceeds of crime] or (2.01) [order of forfeiture of proceeds of crime – particular circumstances], 462.38(2) [requirements to order forfeiture] or 462.41(3) [notice requirements for forfeiture of proceeds of crime – order to restore property] or section 462.43 [residual disposal of property seized or dealt with pursuant to special warrants or restraint orders] is suspended pending

(a) any application made in respect of the property under any of those provisions or any other provision of this or any other Act of Parliament that provides for the restoration or forfeiture of such property,
(b) any appeal taken from an order of forfeiture or restoration in respect of the property, or
(c) any other proceeding in which the right of seizure of the property is questioned,

and property shall not be disposed of within thirty days after an order of forfeiture is made under any of those provisions.

R.S., 1985, c. 42 (4th Supp.), s. 2; 2005, c. 44, s. 10.
[annotation(s) added]

CCC


Note up: 462.45

Misc Definitions

Definition of “order”

462.371 (1) In this section, "order" means an order made under section 462.37 [order of forfeiture for proceeds of crime] or 462.38 [order of forfeiture for proceeds of crime].

Execution

(2) An order may be executed anywhere in Canada.

Filing of order from another province

(3) Where the Attorney General of a province in which property that is the subject of an order made in another province is situated receives a certified copy of the order and files it with the superior court of criminal jurisdiction of the province in which the property is situated, the order shall be entered as a judgment of that court.

Attorney General of Canada

(4) Where the Attorney General of Canada receives a certified copy of an order made in a province in respect of property situated in another province and files the order with the superior court of criminal jurisdiction of the province in which the property is situated, the order shall be entered as a judgment of that court.

Effect of registered order

(5) An order has, from the date it is filed in a court of a province under subsection (3) [filing of order from another province] or (4) [AG receipt of order re property], the same effect as if it had been an order originally made by that court.

Notice

(6) Where an order has been filed in a court under subsection (3) [filing of order from another province] or (4) [AG receipt of order re property], it shall not be executed before notice in accordance with subsection 462.41(2) [notice requirements for forfeiture of proceeds of crime – manner] is given to every person who, in the opinion of the court, appears to have a valid interest in the property.

Application of section 462.42

(7) Section 462.42 [application by person claiming interest for relief from forfeiture] applies, with such modifications as the circumstances require, in respect of a person who claims an interest in property that is the subject of an order filed under subsection (3) [filing of order from another province] or (4) [filing of order from another province].

Application under section 462.42 to be made in one province

(8) No person may make an application under section 462.42 [application by person claiming interest for relief from forfeiture] in relation to property that is the subject of an order filed under subsection (3) [filing of order from another province] or (4) [AG receipt of order re property] if that person has previously made an application in respect of the same property in another province.

Finding in one court binding

(9) The finding by a court of a province in relation to property that is the subject of an order filed under subsection (3) [filing of order from another province] or (4) [AG receipt of order re property] as to whether or not an applicant referred to in subsection 462.42(4) [order declaring interest not subject to forfeiture] is affected by the forfeiture referred to in that subsection or declaring the nature and extent of the interest of the applicant under that subsection is binding on the superior court of criminal jurisdiction of the province where the order is entered as a judgment.
1997, c. 18, s. 34.
[annotation(s) added]

CCC


Note up: 462.371(1), (2), (3), (4), (5), (6), (7), (8), and (9)

See Also

Forfeiture of Offence-related Property

This page was last substantively updated or reviewed January 2020. (Rev. # 79465)

General Principles

See also: Restraint of Offence-related Property

Where an accused is convicted of an indictable offence under the Criminal Code, the Crown is entitled to seek forfeiture of certain seized property as "offence-related property" under s. 490.1. Should the accused die or abscond, the Crown can apply under s. 490.2 for the forfeiture of the property.

Similarly, an accused convicted of an indictable offence under the CDSA permits forfeiture of offence-related property under s. 16 of the CDSA.

Definition of Offence-related Property

Section 2 of the Code defines "offence-related property" (ORP):

2
...
"offence-related property" means any property, within or outside Canada,

(a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed,
(b) that is used in any manner in connection with the commission of such an offence, or
(c) that is intended to be used for committing such an offence;

...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1.

CCC


Note up: 2

The origin of the property is not relevant to determine whether the property fits the definition. The issue is the relationship the property has with the index offence.[1]

ORP may include the proceeds obtained by the sale of offence-related property.[2]

Any reference to an "indictable offence" excludes those offences for which there prosecuted by way of summary conviction.[3]

  1. R v Trac, 2013 ONCA 246 (CanLII), 298 CCC (3d) 360, per Doherty JA
  2. Maple Trust Co. v Canada (Attorney General), 2007 BCCA 304 (CanLII), 221 CCC (3d) 505, per Mackenzie JA, at para 17 ("...offence-related property extends to the proceeds of sale either by giving the CDSA definition a reasonable interpretation in the context of the scheme of the statute or by incorporating the expanded definition of property in the Criminal Code by reference with the assistance of the Interpretation Act.")
  3. s. 34(c) of the Interpretation Act

Forfeiture of Offence-related Property on Conviction

Section 490.1(1) permits the forfeiture of "offence-related property" on application of the Crown:

Order of forfeiture of property on conviction

490.1 (1) Subject to sections 490.3 to 490.41 [various orders and procedures re ORP], if a person is convicted of an indictable offence under this Act or the Corruption of Foreign Public Officials Act and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall

(a) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law; and
(b) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by the member of the Queen’s Privy Council for Canada that may be designated for the purpose of this paragraph in accordance with the law.

(1.1) [Repealed, 2001, c. 41, s. 130]

Property related to other offences

(2) Subject to sections 490.3 to 490.41 [various orders and procedures re ORP], if the evidence does not establish to the satisfaction of the court that the indictable offence under this Act or the Corruption of Foreign Public Officials Act of which a person has been convicted was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) [order of forfeiture of property on conviction] but the court is satisfied, beyond a reasonable doubt, that the property is offence-related property, the court may make an order of forfeiture under subsection (1) [order of forfeiture of property on conviction] in relation to that property.

Property outside Canada

(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

Appeal

(3) A person who has been convicted of an indictable offence under this Act or the Corruption of Foreign Public Officials Act, or the Attorney General, may appeal to the court of appeal from an order or a failure to make an order under subsection (1) [order of forfeiture of property on conviction] as if the appeal were an appeal against the sentence imposed on the person in respect of the offence.
1997, c. 23, s. 15; 2001, c. 32, s. 30, c. 41, ss. 18, 130; 2007, c. 13, s. 8.
[annotation(s) added]

CCC


Note up: 490.1(1), (1.1), (2), (2.1), and (3)


Defined terms: "Attorney General" (s. 2), "offence-related property" (s. 2), and "property" (s. 2)

Under s. 490.1(2), for property to be forfeited, the court must be satisfied that the offence convicted was "committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that the property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property."

An application under s. 490.1 is not part of a sentencing hearing and so the normal rules of evidence apply, including the presumptive inadmissibility of hearsay evidence.[1]

The standard of proof is on the balance of probabilities. [2]

Property includes cash and real property.[3]

Sentencing Provisions of s. 718

The general sentencing provisions of s. 718 and related have no application to proceedings under s. 490.41(3).[4]

  1. R v Faulkner, 2007 NBCA 47 (CanLII), 222 CCC (3d) 359, per Drapeau JA
  2. Faulkner, ibid., at para 13
  3. R v Trac, 2013 ONCA 246 (CanLII), 298 CCC (3d) 360, per Doherty JA, at para 78
  4. R v Manning, 2013 SCC 1 (CanLII), [2013] 1 SCR 3, per Fish J

Forfeiture of Offence-related Property Under the Controlled Drugs and Substances Act

In Rem Forfeiture

See also: Forfeiture of Offence-related Property Under the CDSA#In Rem Forfeiture

In rem forfeiture for offence-related property is available where the accused has either "died or absconded".

The charges must be laid before death as there is no means to lay an information against a deceased person.

Application for in rem forfeiture

490.2 (1) If an information has been laid in respect of an indictable offence under this Act or the Corruption of Foreign Public Officials Act, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2) [application for in rem forfeiture – order of forfeiture].

Order of forfeiture of property

(2) Subject to sections 490.3 to 490.41 [various orders and procedures re ORP], the judge to whom an application is made under subsection (1) [application for in rem forfeiture] shall order that the property that is subject to the application be forfeited and disposed of in accordance with subsection (4) [who may dispose of forfeited property] if the judge is satisfied

(a) beyond a reasonable doubt that the property is offence-related property;
(b) that proceedings in respect of an indictable offence under this Act or the Corruption of Foreign Public Officials Act in relation to the property were commenced; and
(c) that the accused charged with the offence has died or absconded.
Accused deemed absconded

(3) For the purpose of subsection (2) [application for in rem forfeiture – order of forfeiture], an accused is deemed to have absconded in connection with the indictable offence if

(a) an information has been laid alleging the commission of the offence by the accused,
(b) a warrant for the arrest of the accused has been issued in relation to that information, and
(c) reasonable attempts to arrest the accused under the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued,

and the accused is deemed to have so absconded on the last day of that six month period.

Who may dispose of forfeited property

(4) For the purpose of subsection (2) [application for in rem forfeiture – order of forfeiture], the judge shall

(a) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law; and
(b) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by the member of the Queen’s Privy Council for Canada that may be designated for the purpose of this paragraph in accordance with the law.
Property outside Canada

(4.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
[omitted (5)]
1997, c. 23, s. 15; 2001, c. 32, s. 31; 2007, c. 13, s. 9.
[annotation(s) added]

CCC


Note up: 490.2(1), (2), (3), (4), and (4.1)


Defined terms: "Attorney General" (s. 2), "offence-related property" (s. 2), and "property" (s. 2)

The application can be made to a provincial court or superior court judge.[1]

"Judge"

490.2
[omitted (1), (2), (3), (4) and (4.1)]

Definition of judge

(5) In this section and sections 490.5 [application by third-party to claim interest in forfeited property] and 490.8 [restraint orders for offence-related property], "judge" means a judge as defined in section 552 [definitions - judges] or a judge of a superior court of criminal jurisdiction.
1997, c. 23, s. 15; 2001, c. 32, s. 31; 2007, c. 13, s. 9.
[annotation(s) added]

CCC


Note up: 490.2(5)


Defined terms: "superior court of criminal jurisdiction" (s. 2)

Corporation

A corporation will be considered "dead" where it is determined to be a "sham, or a front".[2] The standard of proof is on the balance of probabilities.[3]

  1. s. 490.2(5)
  2. R v 2744-5360 Quebec Inc, 1994 CanLII 4244 (NS SC), per Cacchione J
  3. 2744-5360 Quebec Inc, ibid.

Considerations in Forfeiture of Dwelling-House

Where the matter sought to be forfeited is a dwelling-house, the court must take into consideration further factors:

490.41
[omitted (1), (2) and (3)]

Factors in relation to dwelling-house

(4) Where all or part of the property that would otherwise be forfeited under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture] is a dwelling-house, when making a decision under subsection (3), the court shall also consider

(a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and
(b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.

2001, c. 32, s. 33; 2007, c. 13, s. 11.
[annotation(s) added]

CCC


Note up: 490.41(4)

Other Items

Vehicles

The vehicle used to transport drugs that were the subject of a CDSA conviction is offence-related property and so can be seized.[1]

  1. R v Kopp, 2011 MBPC 74 (CanLII), 273 Man R (2d) 58, per Martin J

Weapons

Notice

Notice

490.4 (1) Before making an order under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture] in relation to any property, a court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who, in the opinion of the court, appears to have a valid interest in the property.

Manner of giving notice

(2) A notice given under subsection (1) [notice to third parties before ordering forfeiture under s. 490.1 and 490.2] shall

(a) be given or served in the manner that the court directs or that may be specified in the rules of the court;
(b) be of any duration that the court considers reasonable or that may be specified in the rules of the court; and
(c) set out the offence charged and a description of the property.
Order of restoration of property

(3) A court may order that all or part of the property that would otherwise be forfeited under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture] be returned to a person — other than a person who was charged with an indictable offence under this Act or the Corruption of Foreign Public Officials Act or a person who acquired title to or a right of possession of the property from such a person under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property — if the court is satisfied that the person is the lawful owner or is lawfully entitled to possession of all or part of that property, and that the person appears innocent of any complicity in, or collusion in relation to, the offence.
1997, c. 23, s. 15; 2001, c. 32, s. 32; 2007, c. 13, s. 10.
[annotation(s) added]

CCC


Note up: 490.4(1), (2) and (3)

Notice

490.41 (1) If all or part of offence-related property that would otherwise be forfeited under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture] is a dwelling-house, before making an order of forfeiture, a court shall require that notice in accordance with subsection (2) [notice to residents – manner of notice] be given to, and may hear, any person who resides in the dwelling-house and is a member of the immediate family of the person charged with or convicted of the indictable offence under this Act or the Corruption of Foreign Public Officials Act in relation to which the property would be forfeited.

Manner of giving notice

(2) A notice shall

(a) be given or served in the manner that the court directs or that may be specified in the rules of the court;
(b) be of any duration that the court considers reasonable or that may be specified in the rules of the court; and
(c) set out the offence charged and a description of the property.
Non-forfeiture of property

(3) Subject to an order made under subsection 490.4(3) [order of restoration of property], if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture] would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.
[omitted (4)]
2001, c. 32, s. 33; 2007, c. 13, s. 11.
[annotation(s) added]

CCC


Note up: 490.41(1), (2) and (3)

Voidable Transfers

Voidable transfers

490.3 A court may, before ordering that offence-related property be forfeited under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture], set aside any conveyance or transfer of the property that occurred after the seizure of the property, or the making of a restraint order in respect of the property, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.
1997, c. 23, s. 15.

CCC


Note up: 490.3

Third Party Applications

Application

490.5 (1) Where any offence-related property is forfeited to Her Majesty pursuant to an order made under subsection 490.1(1) [order of forfeiture of property on conviction] or 490.2(2) [application for in rem forfeiture – order of forfeiture], any person who claims an interest in the property, other than

(a) in the case of property forfeited pursuant to an order made under subsection 490.1(1) [order of forfeiture of property on conviction], a person who was convicted of the indictable offence in relation to which the property was forfeited,
(b) in the case of property forfeited pursuant to an order made under subsection 490.2(2) [application for in rem forfeiture – order of forfeiture], a person who was charged with the indictable offence in relation to which the property was forfeited, or
(c) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) or (b) under circumstances that give rise to a reasonable inference that the title or right was transferred from that person for the purpose of avoiding the forfeiture of the property,

may, within thirty days after the forfeiture, apply by notice in writing to a judge for an order under subsection (4) [order declaring interest not affected by forfeiture].

Fixing day for hearing

(2) The judge to whom an application is made under subsection (1) [application by third-party to claim interest in forfeited property] shall fix a day not less than thirty days after the date of the filing of the application for the hearing of the application.

Notice

(3) An applicant shall serve a notice of the application made under subsection (1) [application by third-party to claim interest in forfeited property] and of the hearing of it on the Attorney General at least fifteen days before the day fixed for the hearing.

Order declaring interest not affected by forfeiture

(4) Where, on the hearing of an application made under subsection (1) [application by third-party to claim interest in forfeited property], the judge is satisfied that the applicant

(a) is not a person referred to in paragraph (1)(a) [application by third-party to claim interest in forfeited property – forfeiture under s. 490.1(1)], (b) [application by third-party to claim interest in forfeited property – forfeiture under s. 490.2(2)] or (c) [application by third-party to claim interest in forfeited property – other persons] and appears innocent of any complicity in any indictable offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, and
(b) exercised all reasonable care to be satisfied that the property was not likely to have been used in connection with the commission of an unlawful act by the person who was permitted by the applicant to obtain possession of the property or from whom the applicant obtained possession or, where the applicant is a mortgagee or lienholder, by the mortgagor or lien-giver,

the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and the extent or value of the interest.

Appeal from order made under subsection (4)

(5) An applicant or the Attorney General may appeal to the court of appeal from an order made under subsection (4) [order declaring interest not affected by forfeiture], and the provisions of Part XXI [Pt. XXI – Appeals – Indictable Offences (s. 673 to 696)] with respect to procedure on