An
Act to amend the Criminal Code, the Young Offenders Act
and the Transfer of Offenders Act (death penalty)
Her Majesty, by and with the advice and consent of the
Senate and House of Commons of Canada,
enacts as follows:
R.S., c. C-46; R.S., cc. 2, 11, 27, 31,
47, 51, 52 (1st Supp.), cc. 1, 24, 27,
35 (2nd Supp.), cc. 10, 19, 30, 34
(3rd Supp.), cc. 1, 23, 29, 30, 31, 32,
40, 42, 50 (4th Supp.); 1989, c. 2;
1990, cc. 15, 16, 17, 44; 1991, cc. 1,
4, 28, 40, 43; 1992, cc. 1, 11, 20, 21,
22, 27, 38, 41, 47, 51; 1993, cc. 7,
25, 28, 34, 37, 40, 45, 46; 1994, cc.
12, 13, 38, 44; 1995, cc. 5, 19, 22,
27, 29, 32, 39, 42; 1996, cc. 7, 8, 16,
19, 31, 34; 1997, cc. 9, 16, 17, 18,
23, 30, 39; 1998, cc. 7, 9, 15, 30, 34,
35, 37; 1999, cc. 2, 3, 5, 17, 18, 25,
28, 31, 32
CRIMINAL CODE
1. (1) Subsection 231(1) of the Criminal Code is
replaced by the following:
Classification of murder
231. (1) Murder is aggravated first degree murder, first
degree murder or second degree murder.
Aggravated first degree murder
(1.1) Murder is aggravated first degree murder when it is
committed in a heinous manner that defies human dignity.
(2) Subsection 231(7) of the Act is replaced by the
following:
Second degree murder
(7) All murder that is not aggravated first degree murder
or first degree murder is second degree murder.
2. Section 235 of the Act is amended by adding the
following after subsection (1):
Punishment for aggravated first degree
murder
(1.1) Every one who commits aggravated first degree
murder is guilty of an indictable offence and shall be
sentenced
(a) to death, where the offender was eighteen
years of age or more at the time the offence was
committed; and
(b) to imprisonment for life, where the offender
was less than eighteen years old at the time the
offence was committed.
3. Section 582 of the Act is replaced by the
following:
High treason, aggravated first degree
murder and first degree murder
582. No person shall be convicted for the offence of
high treason, aggravated first degree murder or first
degree murder unless in the indictment charging the
offence he is specifically charged with that offence.
4. Section 610 of the Act is amended by adding the
following after subsection (3):
Previous charges
(3.1) A conviction or an acquittal on an indictment for
aggravated first degree murder bars a subsequent
indictment for the same homicide charging it as first
degree murder or second degree murder, and a
conviction or acquittal on an indictment for first degree
murder or second degree murder bars a subsequent
indictment for the same homicide charging it as
aggravated first degree murder.
5. Paragraph 634(2)(a) of the Act is replaced by the
following:
(a) twenty peremptory challenges, where the
accused is charged with high treason, aggravated
first degree murder or first degree murder;
6. Section 662 of the Act is amended by adding the
following after subsection (2):
Aggravated first degree murder
charged
(2.1) For greater certainty and without limiting the
generality of subsection (1), where a count charges
aggravated first degree murder and the evidence does
not prove aggravated first degree murder but proves first
degree murder or second degree murder or an attempt
to commit first degree murder or second degree murder,
the jury may find the accused not guilty of aggravated
first degree murder but guilty of first degree murder,
second degree murder or an attempt to commit first
degree murder or second degree murder, as the case
may be.
7. Subsection 675(2.2) of the Act is replaced by the
following:
Persons under eighteen
(2.1) 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 aggravated first degree murder
, first degree murder or second degree murder and
sentenced to imprisonment for life without eligibility for
parole until the person has served the period specified by
the judge presiding at the trial may appeal to the court of
appeal against the number of years in excess of the
minimum number of years of imprisonment without
eligibility for parole that are required to be served in
respect of that person's case.
8. The Act is amended by adding the following after
section 675:
Right of appeal of person sentenced to
death
675.1 (1) Notwithstanding any other provision of this
Act, a person who has been sentenced to death may
appeal to the court of appeal against his conviction on
any ground of appeal that involves a question of law or
fact or mixed law and fact.
Notice deemed to have been given
(2) A person sentenced to death shall, notwithstanding
that the person has not given notice pursuant to section
678, be deemed to have given such notice and to have
appealed against the conviction.
Court of appeal may consider
(3) A court of appeal, pursuant to an appeal pursuant to
this section, shall
(a) consider any ground of appeal alleged in the
notice of appeal, if any notice of appeal has been
given; and
(b) consider the record to establish whether there
are present any other grounds upon which the
conviction ought to be set aside.
9. Subsection 678(2) of the Act is replaced by the
following:
Extension of time
(2) The court of appeal or a judge thereof may at any
time extend the time within which notice of appeal or
notice of an application for leave to appeal may be given,
but this subsection does not apply where a sentence of
death has been imposed pursuant to a conviction.
Effect of certificate from the registrar
(3) The production of a certificate from the registrar that
notice of appeal has been given or the production of a
certificate from the Minister of Justice that the Minister
has exercised any of the powers conferred upon him by
section 690 is sufficient authority to suspend the
execution of a sentence of death, and where, pursuant to
such suspension, a new time is required to be fixed for
execution of the sentence, it may be fixed by the judge
who imposed the sentence or any judge who might have
held or sat in the same court.
Suspension of execution of sentence of
death
(4) Where, pursuant to a conviction, a sentence of death
has been imposed, the execution of the sentence shall be
suspended until after the determination of the appeal
pursuant to section 675.1 whether or not the production
of a certificate mentioned in subsection (3) has been
made, and where, as a result of such suspension, a new
time is required to be fixed for the execution of the
sentence, it may be fixed by the judge who imposed the
sentence or any judge who might have held or sat in the
same court.
10. Subsection 682(4) of the Act is replaced by the
following:
Copies to interested parties
(4) A party to an appeal is entitled to receive
(a) without charge, if the appeal is against a
conviction in respect of which a sentence of death
has been imposed, or
(b ) on payment of any charges that are fixed by
rules of court, in any other case,
a copy or transcript of any material that is prepared
under subsections (1) and (2).
11. Section 691 of the Act is replaced by the
following:
Appeal from conviction
691. (1) A person who is convicted of an indictable
offence other than an offence punishable by death and
whose conviction is affirmed by the court of appeal 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.
Appeal where acquittal set aside
(2) A person who is acquitted of an indictable offence
other than an offence punishable by death or by reason
of a verdict of not criminally responsible on account of
mental disorder and whose acquittal is set aside by the
court of appeal may appeal to the Supreme Court of
Canada
(a) on any question of law on which a judge of the
court of appeal dissents;
(b) on any question of law, if the court of appeal
enters a verdict of guilty against the person; or
(c) on any question of law, if leave to appeal is
granted by the Supreme Court of Canada.
12. The Act is amended by adding the following
after section 691:
Appeal where sentence of death
691.1 Notwithstanding any other provision of this Act, a
person
(a) who has been sentenced to death and whose
conviction is affirmed by the court of appeal, or
(b) who is acquitted of any offence punishable by
death and whose acquittal is set aside by the court
of appeal,
may appeal to the Supreme Court of Canada on any
ground of law or fact or mixed law and fact.
13. Subsection 730(1) of the Act is replaced by the
following:
Absolute and conditional discharge
730. (1) Where an accused, other than a corporation,
pleads guilty to or is found guilty of an offence, other
than an offence for which a minimum punishment is
prescribed by law or an offence punishable by
imprisonment for fourteen years or for life or by the
death penalty , the court before which the accused
appears may, if it considers it to be in the best interests
of the accused and not contrary to the public interest,
instead of convicting the accused, by order direct that
the accused be discharged absolutely or on the
conditions prescribed in a probation order made under
subsection 731(2).
14. Section 745.1 of the Act is replaced by the
following:
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 aggravated first degree murder, 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 convicted of first degree murder or second
degree murder who was under the age of sixteen
at the time of the commission of the offence;
(a.1) such period between ten and fifteen 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, ten years, in the case of a
person convicted of aggravated first degree
murder who was under the age of sixteen at the
time of the commission of the offence;
(a.2) fifteen years, in the case of a person
convicted of aggravated first degree murder who
was sixteen or seventeen years of age 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.
15. Section 745.3 of the Act is replaced by the
following:
Persons under sixteen
745.3 Where a jury finds an accused guilty of
aggravated first degree murder, 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 aggravated first
degree murder (or 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
(a) in the case of aggravated first degree murder,
is between ten and fifteen years, and
(b) in the case of first degree murder or second
degree murder , is between five years and seven
years,
the law would require the accused to serve before the
accused is eligible to be considered for release on
parole.
16. Section 745.5 of the Act is replaced by the
following:
Persons under sixteen
745.5 At the time of the sentencing under section 745.1
of an offender who is convicted of aggravated first
degree murder, 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, by order, decide
the period of imprisonment the offender is to serve that
(a) in the case of aggravated first degree murder,
is between ten years and fifteen years, and
(b) in the case of murder in the first degree or
murder in the second degree, is between five
years and seven years,
without eligibility for parole, as the judge deems fit in the
circumstances.
17. Paragraph 745.6(1)(a) of the Act is replaced by
the following:
(a) has been convicted of high treason, first
degree murder or second degree murder , or
18. Subsection 746.1(3) of the Act is replaced by
the following:
Temporary absences and day parole
(3) In the case of any person convicted of aggravated
first degree murder , 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 National
Parole Board, 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.
19. The Act is amended by adding the following
after section 746.1:
CAPITAL PUNISHMENT
Intravenous injection
746.11 A sentence of death shall be executed by the
intravenous injection of sodium thiopental administered in a
quantity and in a manner calculated to cause death.
Recommen-
dation by jury
746.12 (1) Where a jury finds an accused guilty of an offence
punishable by death, the judge who presides at the trial shall,
before discharging the jury, put to it the following question:
You have found the accused guilty and the law requires that I
now pronounce a sentence of death against the accused. Do
you wish to make any recommendation as to whether or not
the accused should be granted clemency? You are not
required to make any recommendation but if you do make a
recommendation either in favour of clemency or against it, your
recommendation will be included in the report that I am
required to make of this case to the Attorney General of
Canada and will be given due consideration.
Where jury is unable to agree on
recommenda-
tion
(2) If the jury reports to the judge that it is unable to agree
upon a recommendation, either in favour of clemency or
against it, and the judge is satisfied that further retention of the
jury would not lead to agreement, the judge shall ascertain the
number of jurors who are in favour of making a
recommendation for clemency and the number of jurors who
are against making such a recommendation and shall include
such information in the report required by section 746.13.
Sentence of death to be reported
to the Attorney General of
Canada
746.13 A judge who sentences a person to death shall appoint
a day for the execution of the sentence, and in appointing that
day shall allow a period of time that, in his opinion, is sufficient
to enable the Governor General to signify the pleasure of the
Governor General before that day, and shall forthwith make a
report of the case to the Attorney General of Canada for the
information of the Governor General.
Appeal to court of appeal
746.14 (1) Where an accused is sentenced to death pursuant
to a conviction and the sentence has not been commuted
pursuant to subsection 746.15(1), the appeal from the
conviction made pursuant to section 675.1 shall be heard and
determined as soon as practicable and the sentence shall not
be executed until after the determination of the appeal.
Appeal to Supreme Court of
Canada
(2) Where an appeal from a conviction for an offence
punishable by death is dismissed by the court of appeal and the
sentence has not been commuted pursuant to subsection
746.15(1)
(a) the sentence shall not be executed until after the
expiration of the period for giving notice of appeal; and
(b) any appeal from the judgment of the court of appeal
shall be heard and determined as soon as practicable
after notice is given thereof, and the sentence shall not
be executed until after the determination of the appeal.
New time for the execution
(3) Where the execution of a sentence of death has been
suspended pursuant to subsection (1) or (2) and the conviction
for which the sentence was imposed is affirmed on appeal, a
new time for the execution of the sentence, not less than sixty
days and not more than ninety days after the delivery of the
judgment in appeal, shall be fixed by the judge who imposed
the sentence or any judge who might have held or sat in the
same court.
Commuting death sentence
746.15 (1) The Governor in Council may commute a sentence
of death imposed upon a person in respect of an offence to
imprisonment for life where a majority of the jurors who found
the person guilty of the offence recommended in favour of
commuting the sentence.
Effects of commutation
(2) Notwithstanding this Act, the Corrections and
Conditional Release Act or any other Act of Parliament,
where the Governor in Council commutes a death sentence
imposed on a person to imprisonment for life,
(a) parole shall not be granted;
(b) no day parole may be granted under the
Corrections and Conditional Release Act;
(c) no absence without escort may be authorized under
that Act or the Prisons and Reformatories Act; and
(d) 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 the
Corrections and Conditional Release Act or the
Prisons and Reformatories Act.
When judge may reprieve
(3) Where a judge who sentences a person to death or any
judge who might have held or sat in the same court considers
that the person should be recommended for the royal mercy,
or that, for any reason, it is necessary to delay the execution of
the sentence, the judge may, at any time, reprieve the person
for any period that is necessary for the purpose.
Notice to authorities
(4) A copy of an instrument duly certified by the Clerk of the
Privy Council or a writing under the hand of the Attorney
General of Canada or Deputy Attorney General of Canada
declaring that a sentence of death is commuted is sufficient
notice to and authority for all persons having control over the
prisoner to do all things necessary to give effect to the
commutation.
Sentence of death in N.W.T.,
Yukon and Nunavut
(5) A judge who sentences a person to death in the Northwest
Territories, in the Yukon Territory or in Nunavut shall, after
appointing a day for the execution of the sentence, forthwith
forward to the Attorney General of Canada full notes of the
evidence taken at the trial and his report upon the case, and
the execution of the sentence shall be suspended until the
report is received and the pleasure of the Governor General is
signified, and where, pursuant to such suspension, a new time
is required to be fixed for execution of the sentence, it may be
fixed by the judge who imposed the sentence or any judge
having equivalent jurisdiction.
Pregnancy
746.16 (1) A female person who is sentenced to death may
move in arrest of execution on the ground that she is pregnant.
Examination
(2) Where a motion is made under subsection (1), the court
shall direct one or more registered medical practitioners to be
sworn to examine the female person together or successively
and to determine whether or not she is pregnant.
Arresting execution
(3) Where, from the report of a medical practitioner sworn
under subsection (2), it appears to the court that the female
person is pregnant, execution shall be arrested until she is
delivered of the child or until it is no longer possible in the
course of nature that she should be so delivered.
Prisoner to be confined apart
746.17 (1) A person who is sentenced to death shall be
confined in a safe place within a prison apart from all other
prisoners.
Who to have access
(2) No person other than the keeper of the prison and his
servants, the prison doctor and a minister or a representative
of a faith professed by the person who is sentenced to death
shall have access to the person who is sentenced to death
unless permission is given in writing by a judge of the court by
which the sentence was imposed or by the sheriff.
Place of execution
746.18 (1) A sentence of death shall be executed within the
walls of a prison.
Who shall attend
(2) The sheriff, the keeper of the prison, the prison doctor and
any other persons required by the sheriff shall be present at the
execution of a sentence of death.
Who may attend
(3) A minister or a representative of a faith professed by the
person who is sentenced to death and any other person whom
the sheriff considers it proper to admit may attend the
execution of a sentence of death.
Certificate of death
746.19 (1) The prison doctor shall, as soon as possible after a
sentence of death has been executed, examine the body of the
executed person, ascertain the fact of death and sign and
deliver to the sheriff a certificate in Form 52.
Declaration by sheriff and keeper
(2) The sheriff, the keeper of the prison and any other persons
who are present at the execution of a sentence of death shall, if
required by sheriff, sign a declaration in Form 53.
Deputies may act
746.2 Any duty that is imposed upon a sheriff, keeper of the
prison or prison doctor by section 746.18 may, and in his
absence shall, be performed by his lawful deputy or assistant
or by the officer or person who ordinarily acts for him or with
him.
Coroner's inquest
746.21 (1) A coroner of a district, county or place where a
sentence of death is executed shall, within twenty-four hours
after the execution of the sentence, hold an inquest on the body
of the executed person.
Identity of the body of the
executed person
(2) The coroner shall, at the inquest referred to in subsection
(1), inquire into and ascertain the identity of the body of the
executed person and whether sentence of death was duly
executed.
Inquisition in duplicate
(3) The coroner shall prepare the inquisition in duplicate and
shall deliver one to the sheriff.
Documents to be sent to
Attorney General of Canada
746.22 Where a sentence of death is executed, the sheriff
shall, as soon as possible, send the certificates mentioned in
section 746.19 and the inquisition referred to in subsection
746.21(3) to the Attorney General of Canada or to the person
who, from time to time, is appointed by the Governor in
Council to receive them.
Place of burial
746.23 The body of a person who is executed pursuant to a
sentence of death shall be buried within the prison in which the
sentence was executed, unless the Lieutenant-Governor in
Council, the Commissioner of the Yukon Territory, the
Commissioner of the Northwest Territories or the
Commissioner of Nunavut, as the case may be, otherwise
orders.
Saving
746.24 Failure to comply with sections 746.15 to 746.22
does not make the execution of a sentence of death illegal
where the execution would otherwise have been legal.
Regulations
746.25 The Governor in Council may make regulations with
respect to the execution of sentences of death.
20. Subsection 750(1) of the Act is replaced by the
following:
Public office vacated for
conviction
750. Where a person is convicted of an indictable offence for
which the person is sentenced to death or to imprisonment for
two years or more and holds, at the time that person is
convicted, an office under the Crown or other public
employment, the office or employment forthwith becomes
vacant.
21. The definition of ``serious personal injury offence'' in
section 752 of the Act is replaced by the following:
``serious personal injury offence''
« sévices graves à la personne »
``serious personal injury offence'' means
(a) an indictable offence, other than high treason,
treason, aggravated first degree murder, first
degree murder or second degree murder,
involving
(i) the use or attempted use of violence
against another person, or
(ii) conduct endangering or likely to
endanger the life or safety of another
person or inflicting or likely to inflict severe
psychological damage on another person,
and for which the offender may be sentenced to imprisonment
for ten years or more; or
(b) an offence or attempt to commit an offence
mentioned in section 271(sexual assault), 272
(sexual assault with a weapon, threats to a third
party or causing bodily harm) or 273 (aggravated
sexual assault).
22. Part XXVIII of the Act is amended by adding the
following forms after Form 51:
FORM 52
(subsection 746.19(1))
I, A.B., prison doctor of the (prison), at _____, hereby certify
that I examined the body of C.D. on whom sentence of death
was this ______ day executed in the said prison and that I
found that the said C.D. was dead.
Dated this ______ day of ______ A.D. ______, at
______.
__________
Prison Doctor
FORM 53
(subsection 746.19(2))
DECLARATION OF SHERIFF AND OTHERS
We, the undersigned, hereby declare that sentence of death
was this day executed on C.D., in our presence in the (prison)
at ______.
Dated this ______ day of ______ A.D. ______, at ______.
Sheriff of....................................
Keeper of the prison of.........................
____________________
______________________ Others
______________________
23. Paragraph 16(1.01)(a) of the Young Offenders Act is
replaced by the following:
(a) aggravated first degree murder, first degree murder
or second degree murder within the meaning of section
231 of the Criminal Code;
24. Subsection 19(4) of the Act is replaced by the
following:
Election - offence of murder
(4) Notwithstanding section 5, where a young person is
charged with having committed aggravated first degree murder,
first degree murder or second degree murder within the
meaning of section 231 of the Criminal Code, the youth court,
before proceeding with the trial, shall ask the young person to
elect to be tried by a youth court judge alone or by a judge of
a superior court of criminal jurisdiction with a jury, and where
a young person elects to be tried by a judge of a superior court
of criminal jurisdiction with a jury, the young person shall be
dealt with as provided in this Act.
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