Criminal Law Amendment Act, 2001 (S.C. 2002, c. 13)
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Assented to 2002-06-04
R.S., c. C-46CRIMINAL CODE
62. Section 657.3 of the Act is amended by adding the following after subsection (2):
Marginal note:Notice for expert testimony
(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses,
(a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by
(i) the name of the proposed witness,
(ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and
(iii) a statement of the qualifications of the proposed witness as an expert;
(b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party or parties
(i) a copy of the report, if any, prepared by the proposed witness for the case, and
(ii) if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; and
(c) in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b).
Marginal note:If notices not given
(4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party,
(a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness;
(b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b); and
(c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony, unless the court considers it inappropriate to do so.
Marginal note:Additional court orders
(5) If, in the opinion of the court, a party who has received the notice and material referred to in subsection (3) has not been able to prepare for the evidence of the proposed witness, the court may do one or more of the following:
(a) adjourn the proceedings;
(b) order that further particulars be given of the evidence of the proposed witness; and
(c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony.
Marginal note:Use of material by prosecution
(6) If the proposed witness does not testify, the prosecutor may not produce material provided to him or her under paragraph (3)(c) in evidence without the consent of the accused.
Marginal note:No further disclosure
(7) Unless otherwise ordered by a court, information disclosed under this section in relation to a proceeding may only be used for the purpose of that proceeding.
63. Paragraph (b) of the definition “sentence” in section 673 of the Act is replaced by the following:
(b) an order made under subsection 109(1) or 110(1), section 161, subsection 164.2(1), 194(1) or 259(1) or (2), section 261 or 462.37, subsection 491.1(2), 730(1) or 737(3) or (5) or section 738, 739, 742.1, 742.3, 743.6, 745.4, 745.5 or 747.1,
Marginal note:1995, c. 42, s. 73
64. Subsection 675(2.1) of the Act is replaced by the following:
Marginal note:Appeal against section 743.6 order
(2.1) A person against whom an order under section 743.6 has been made may appeal to the court of appeal against the order.
Marginal note:1995, c. 42, s. 74
65. Subsection 676(5) of the Act is replaced by the following:
Marginal note:Appeal against decision not to make section 743.6 order
(5) The Attorney General or counsel instructed by the Attorney General for the purpose may appeal to the court of appeal against the decision of the court not to make an order under section 743.6.
Marginal note:1997, c. 18, s. 95
66. Subsection 679(7) of the Act is replaced by the following:
Marginal note:Release or detention pending hearing of reference
(7) If, with respect to any person, the Minister of Justice gives a direction or makes a reference under section 696.3, this section applies to the release or detention of that person pending the hearing and determination of the reference as though that person were an appellant in an appeal described in paragraph (1)(a).
67. Section 683 of the Act is amended by adding the following after subsection (2):
Marginal note:Virtual presence of parties
(2.1) In proceedings under this section, the court of appeal may order that the presence of a party may be by any technological means satisfactory to the court that permits the court and the other party or parties to communicate simultaneously.
Marginal note:Virtual presence of witnesses
(2.2) Sections 714.1 to 714.8 apply, with any modifications that the circumstances require, to examinations and cross-examinations of witnesses under this section.
68. Section 688 of the Act is amended by adding the following after subsection (2):
Marginal note:Manner of appearance
(2.1) In the case of an appellant who is in custody and who is entitled to be present at any proceedings on an appeal, the court may order that, instead of the appellant personally appearing,
(a) at an application for leave to appeal or at any proceedings that are preliminary or incidental to an appeal, the appellant appear by means of any suitable telecommunication device, including telephone, that is satisfactory to the court; and
(b) at the hearing of the appeal, if the appellant has access to legal advice, he or she appear by means of closed-circuit television or any other means that permits the court and all parties to engage in simultaneous visual and oral communication.
Marginal note:R.S., c. 42 (4th Supp.), s. 5; 1995, c. 22, s. 10 (Sch. I, item 30)
69. The portion of subsection 689(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Restitution or forfeiture of property
689. (1) If the trial court makes an order for compensation or for the restitution of property under section 738 or 739 or an order of forfeiture of property under subsection 164.2(1) or 462.37(1), the operation of the order is suspended
Marginal note:1997, c. 17, s. 4
70. Section 690 of the Act and the heading before it are repealed.
71. The Act is amended by adding the following after section 696:
PART XXI.1APPLICATIONS FOR MINISTERIAL REVIEW — MISCARRIAGES OF JUSTICE
Marginal note:Application
696.1 (1) An application for ministerial review on the grounds of miscarriage of justice may be made to the Minister of Justice by or on behalf of a person who has been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament or has been found to be a dangerous offender or a long-term offender under Part XXIV and whose rights of judicial review or appeal with respect to the conviction or finding have been exhausted.
Marginal note:Form of application
(2) The application must be in the form, contain the information and be accompanied by any documents prescribed by the regulations.
Marginal note:Review of applications
696.2 (1) On receipt of an application under this Part, the Minister of Justice shall review it in accordance with the regulations.
Marginal note:Powers of investigation
(2) For the purpose of any investigation in relation to an application under this Part, the Minister of Justice has and may exercise the powers of a commissioner under Part I of the Inquiries Act and the powers that may be conferred on a commissioner under section 11 of that Act.
Marginal note:Delegation
(3) Despite subsection 11(3) of the Inquiries Act, the Minister of Justice may delegate in writing to any member in good standing of the bar of a province, retired judge or any other individual who, in the opinion of the Minister, has similar background or experience the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence and otherwise conduct an investigation under subsection (2).
Definition of “court of appeal”
696.3 (1) In this section, “the court of appeal” means the court of appeal, as defined by the definition “court of appeal” in section 2, for the province in which the person to whom an application under this Part relates was tried.
Marginal note:Power to refer
(2) The Minister of Justice may, at any time, refer to the court of appeal, for its opinion, any question in relation to an application under this Part on which the Minister desires the assistance of that court, and the court shall furnish its opinion accordingly.
Marginal note:Powers of Minister of Justice
(3) On an application under this Part, the Minister of Justice may
(a) if the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred,
(i) direct, by order in writing, a new trial before any court that the Minister thinks proper or, in the case of a person found to be a dangerous offender or a long-term offender under Part XXIV, a new hearing under that Part, or
(ii) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person found to be a dangerous offender or a long-term offender under Part XXIV, as the case may be; or
(b) dismiss the application.
Marginal note:No appeal
(4) A decision of the Minister of Justice made under subsection (3) is final and is not subject to appeal.
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