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Criminal Code (R.S.C., 1985, c. C-46)

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Act current to 2022-11-28 and last amended on 2022-11-17. Previous Versions

PART XXIAppeals — Indictable Offences (continued)

Appeals to the Supreme Court of Canada (continued)

Marginal note:Appeal by Attorney General

  •  (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3), the Attorney General may appeal to the Supreme Court of Canada

    • (a) on any question of law on which a judge of the court of appeal dissents; or

    • (b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

  • Marginal note:Terms

    (2) Where leave to appeal is granted under paragraph (1)(b), the Supreme Court of Canada may impose such terms as it sees fit.

  • R.S., 1985, c. C-46, s. 693
  • R.S., 1985, c. 27 (1st Supp.), s. 146, c. 34 (3rd Supp.), s. 12

Marginal note:Notice of appeal

 No appeal lies to the Supreme Court of Canada unless notice of appeal in writing is served by the appellant on the respondent in accordance with the Supreme Court Act.

  • R.S., 1985, c. C-46, s. 694
  • R.S., 1985, c. 34 (3rd Supp.), s. 13

Marginal note:Legal assistance for accused

  •  (1) The Supreme Court of Canada or a judge thereof may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal to the Court or to proceedings preliminary or incidental to an appeal to the Court where, in the opinion of the Court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.

  • Marginal note:Counsel fees and disbursements

    (2) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal.

  • Marginal note:Taxation of fees and disbursements

    (3) Where subsection (2) applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the Registrar of the Supreme Court of Canada, and the Registrar may tax the disputed fees and disbursements.

  • R.S., 1985, c. 34 (3rd Supp.), s. 13
  • 1992, c. 1, s. 60(F)

Marginal note:Right of appellant to attend

  •  (1) Subject to subsection (2), an appellant who is in custody and who desires to be present at the hearing of the appeal before the Supreme Court of Canada is entitled to be present at it.

  • Marginal note:Appellant represented by counsel

    (2) An appellant who is in custody and who is represented by counsel is not entitled to be present before the Supreme Court of Canada

    • (a) on an application for leave to appeal,

    • (b) on any proceedings that are preliminary or incidental to an appeal, or

    • (c) at the hearing of the appeal,

    unless rules of court provide that entitlement or the Supreme Court of Canada or a judge thereof gives the appellant leave to be present.

  • R.S., 1985, c. 34 (3rd Supp.), s. 13

Marginal note:Order of Supreme Court of Canada

  •  (1) The Supreme Court of Canada may, on an appeal under this Part, make any order that the court of appeal might have made and may make any rule or order that is necessary to give effect to its judgment.

  • Marginal note:Election if new trial

    (2) Subject to subsection (3), if a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury or a provincial court judge. The election is deemed to be a re-election within the meaning of subsection 561(5) and subsections 561(5) to (7) apply to it with any modifications that the circumstances require.

  • Marginal note:Nunavut

    (3) If a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury in Nunavut, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury. The election is deemed to be a re-election within the meaning of subsection 561.1(6) and subsections 561.1(6) to (9) apply to it with any modifications that the circumstances require.

  • R.S., 1985, c. C-46, s. 695
  • 1999, c. 5, s. 27
  • 2008, c. 18, s. 31

Appeals by Attorney General of Canada

Marginal note:Right of Attorney General of Canada to appeal

 The Attorney General of Canada has the same rights of appeal in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government as the Attorney General of a province has under this Part.

  • R.S., c. C-34, s. 624

PART XXI.1Applications for Ministerial Review — Miscarriages of Justice

Marginal note:Application

  •  (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.

  • 2002, c. 13, s. 71

Marginal note:Review of applications

  •  (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).

  • 2002, c. 13, s. 71

Marginal note:Definition of court of appeal

  •  (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.

  • 2002, c. 13, s. 71

Marginal note:Considerations

 In making a decision under subsection 696.3(3), the Minister of Justice shall take into account all matters that the Minister considers relevant, including

  • (a) whether the application is supported by new matters of significance that were not considered by the courts or previously considered by the Minister in an application in relation to the same conviction or finding under Part XXIV;

  • (b) the relevance and reliability of information that is presented in connection with the application; and

  • (c) the fact that an application under this Part is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy.

  • 2002, c. 13, s. 71

Marginal note:Annual report

 The Minister of Justice shall within six months after the end of each financial year submit an annual report to Parliament in relation to applications under this Part.

  • 2002, c. 13, s. 71

Marginal note:Regulations

 The Governor in Council may make regulations

  • (a) prescribing the form of, the information required to be contained in and any documents that must accompany an application under this Part;

  • (b) prescribing the process of review in relation to applications under this Part, which may include the following stages, namely, preliminary assessment, investigation, reporting on investigation and decision; and

  • (c) respecting the form and content of the annual report under section 696.5.

  • 2002, c. 13, s. 71

PART XXIIProcuring Attendance

Application

Marginal note:Application

 Except where section 527 applies, this Part applies where a person is required to attend to give evidence in a proceeding to which this Act applies.

  • R.S., c. C-34, s. 625

Process

Marginal note:Subpoena

  •  (1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence.

  • Marginal note:Warrant in Form 17

    (2) Where it is made to appear that a person who is likely to give material evidence

    • (a) will not attend in response to a subpoena if a subpoena is issued, or

    • (b) is evading service of a subpoena,

    a court, justice or provincial court judge having power to issue a subpoena to require the attendance of that person to give evidence may issue a warrant in Form 17 to cause that person to be arrested and to be brought to give evidence.

  • Marginal note:Subpoena issued first

    (3) Except where paragraph (2)(a) applies, a warrant in Form 17 shall not be issued unless a subpoena has first been issued.

  • R.S., 1985, c. C-46, s. 698
  • R.S., 1985, c. 27 (1st Supp.), s. 203

Marginal note:Who may issue

  •  (1) If a person is required to attend to give evidence before a superior court of criminal jurisdiction, a court of appeal, an appeal court or a court of criminal jurisdiction other than a provincial court judge acting under Part XIX, a subpoena directed to that person shall be issued out of the court before which the attendance of that person is required.

  • Marginal note:Order of judge

    (2) If a person is required to attend to give evidence before a provincial court judge acting under Part XIX or a summary conviction court under Part XXVII or in proceedings over which a justice has jurisdiction, a subpoena directed to the person shall be issued

    • (a) by a provincial court judge or a justice, where the person whose attendance is required is within the province in which the proceedings were instituted; or

    • (b) by a provincial court judge or out of a superior court of criminal jurisdiction of the province in which the proceedings were instituted, where the person whose attendance is required is not within the province.

  • Marginal note:Order of judge

    (3) A subpoena shall not be issued out of a superior court of criminal jurisdiction pursuant to paragraph (2)(b), except pursuant to an order of a judge of the court made on application by a party to the proceedings.

  • Marginal note:Seal

    (4) A subpoena or warrant that is issued by a court under this Part shall be under the seal of the court and shall be signed by a judge of the court or by the clerk of the court.

  • Marginal note:Signature

    (5) A subpoena or warrant that is issued by a justice or provincial court judge under this Part must be signed by the justice, provincial court judge or the clerk of the court.

  • Marginal note:Sexual offences

    (5.1) Despite anything in subsections (1) to (5), in the case of an offence referred to in subsection 278.2(1), a subpoena requiring a witness to bring to the court a record, the production of which is governed by sections 278.1 to 278.91, must be issued by a judge and signed by the judge or the clerk of the court.

  • Marginal note:Form of subpoena

    (6) Subject to subsection (7), a subpoena issued under this Part may be in Form 16.

  • Marginal note:Form of subpoena in sexual offences

    (7) In the case of an offence referred to in subsection 278.2(1), a subpoena requiring a witness to bring anything to the court shall be in Form 16.1.

  • R.S., 1985, c. C-46, s. 699
  • R.S., 1985, c. 27 (1st Supp.), s. 203
  • 1994, c. 44, s. 69
  • 1997, c. 30, s. 2
  • 1999, c. 5, s. 28
  • 2019, c. 25, s. 284

Marginal note:Contents of subpoena

  •  (1) A subpoena shall require the person to whom it is directed to attend, at a time and place to be stated in the subpoena, to give evidence and, if required, to bring with him anything that he has in his possession or under his control relating to the subject-matter of the proceedings.

  • Marginal note:Witness to appear and remain

    (2) A person who is served with a subpoena issued under this Part shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial court judge.

  • R.S., 1985, c. C-46, s. 700
  • R.S., 1985, c. 27 (1st Supp.), ss. 148, 203

Marginal note:Video links

  •  (1) If a person is to give evidence under section 714.1 or under subsection 46(2) of the Canada Evidence Act — or is to give evidence or a statement under an order made under section 22.2 of the Mutual Legal Assistance in Criminal Matters Act — at a place within the jurisdiction of a court referred to in subsection 699(1) or (2) where the technology is available, a subpoena shall be issued out of the court to order the person to give that evidence at that place.

  • Marginal note:Sections of Criminal Code

    (2) Sections 699, 700 and 701 to 703.2 apply, with any modifications that the circumstances require, to a subpoena issued under this section.

 
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