Bill C-334: An Act to amend the Criminal Code, the Judges Act and the Director of Public Prosecutions Act (orders prohibiting publication of identifying information)

R.S., c. C- 46 Criminal Code 1 (1) The portion of subsection 486.4(1) of the Criminal Code before paragraph (a) is replaced by the following: Order restricting publication — sexual offences 486.4 (1) Subject to subsections (2) and (3.2) , the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (2) The portion of subsection 486.4(2) of the Act before paragraph (a) is replaced by the following: Mandatory order on application (2) Subject to subsection (3.2) , in proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (3) Section 486.4 of the Act is amended by adding the following after subsection (3): Inquiry by court (3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall inquire of the prosecutor if reasonable steps were taken, before the application was made, to consult the victim with respect to the application. Victim over 18 — consent (3.2) If a victim who is at least 18 years of age was consulted with respect to an application for an order under paragraph (2)(b), the presiding judge or justice shall not make the order without the victim’s consent. Notice of order (3.3) If, on application of the prosecutor, the presiding judge or justice makes an order under paragraph (2)(b) or (2.2)(b), the prosecutor shall provide notice of the order to every victim and witness whose identity is protected by the order, together with an explanation of the procedure for applying under section 486.51 for the order to be revoked or varied. 2 The Act is amended by adding the following after section 486.5: Revocation or variation of order 486.51 (1) A court that makes an order under section 486.4 or 486.5 or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province may, and, on application of a victim who is at least 18 years of age, must, hold a hearing to determine whether the order should be revoked or varied. Notice (2) The court shall provide notice of the hearing to the prosecutor, if proceedings in respect of the offence are ongoing, and to every victim and witness whose identity is protected by the order. Ex parte hearing (3) The court may proceed ex parte to hear and determine the application in the absence of the accused, whether the proceedings are ongoing or not . Factors (4) The court may revoke or vary the order if it is satisfied that (a) every victim or witness whose identity would no longer be protected by the order understands the nature and effect of a revocation or variation of the order; and (b) the revocation or variation of the order would not identify any other victim or witness whose identity is protected under that order or any other order made under section 486.4 or 486.5. Conditions (5) The revocation or variation of an order may be subject to any conditions that the court thinks fit. Publication prohibited (6) If the court refuses to revoke or vary an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of the application; (b) any evidence taken, information given or submissions made at a hearing under this section; or (c) any other information that could identify a victim or witness whose identity is protected by the order. Subsequent application (7) The revocation or variation of an order under subsection (4) does not prevent the applicant from making a subsequent application under paragraph 486.4(2)(b) or (2.2)(b) or subsection 486.5(1) in respect of the same matter. 3 (1) Subsection 722(2) of the Act is replaced by the following: Inquiry by court (2) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor ( a ) if reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection (1); and (b) in a case where the victim is at least 18 years of age and their identity is protected by an order made under subsection 486.4(1), if the victim has been informed of the opportunity to request, in the statement, that the order be revoked or varied. (2) Section 722 of the Act is amended by adding the following after subsection (8): Order restricting publication — sexual offences (8.1) Despite subsection (8), if the victim is at least 18 years of age, the victim’s identity is protected by an order made under subsection 486.4(1) and the statement expresses a desire that that order be revoked or varied, the court may revoke or vary the order if the court is satisfied that (a) the victim understands the nature and effect of a revocation or variation of the order; and (b) the revocation or variation of the order would not identify any other victim or witness whose identity is protected under that order or any other order made under section 486.4 or 486.5. R.S., c. J- 1 Judges Act 4 Paragraph 60(3)(b) of the Judges Act is replaced by the following: (b) include, if the Council finds it appropriate, instruction in evidentiary prohibitions, principles of consent and the conduct of sexual assault proceedings, as well as education regarding the impact on sexual assault complainants of orders made under subsection 486.4(1) of the Criminal Code and myths and stereotypes associated with sexual assault complainants. 2006, c. 9, s. 121 Director of Public Prosecutions Act 5 Subsection 3(3) of the Director of Public Prosecutions Act is amended by adding the following after paragraph (c): (c.1) ensures that persons acting as federal prosecutors participate in continuing education on matters related to sexual assault law, in particular orders made under subsection 486.4(1) of the Criminal Code and their impact on victims of sexual offences; Coordinating Amendments Bill S-12 6 (1) Subsections (2) to (8) apply if Bill S-12, introduced in the 1st session of the 44th Parliament and entitled An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act (in this section referred to as the “other Act”), receives royal assent. (2) On the first day on which both subsection 2(1) of the other Act and subsection 1(1) of this Act are in force, the portion of subsection 486.4(1) of the Criminal Code before paragraph (a) is replaced by the following: Order restricting publication — sexual offences 486.4 (1) Subject to subsections (2) and (3.2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way or otherwise made available, in proceedings in respect of (3) If subsection 1(3) of this Act comes into force before subsection 2(4) of the other Act, then that subsection 2(4) is deemed never to have come into force and is repealed. (4) If subsection 2(4) of the other Act comes into force before subsection 1(3) of this Act, then (a) that subsection 1(3) is deemed never to have come into force and is repealed; and (b) subsection 486.4(3.1) of the Criminal Code is replaced by the following: Inquiry by court (3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall inquire of the prosecutor if reasonable steps were taken, before the application was made, to consult the victim with respect to the application. Victim over 18 — consent (3.2) If a victim who is at least 18 years of age was consulted with respect to an application for an order under paragraph (2)(b), the presiding judge or justice shall not make the order without the victim’s consent. Notice of order (3.3) If, on application of the prosecutor, the presiding judge or justice makes an order under paragraph (2)(b) or (2.2)(b), the prosecutor shall provide notice of the order to every victim and witness whose identity is protected by the order, together with an explanation of the procedure for applying under section 486.51 for the order to be revoked or varied. (5) If subsection 1(3) of this Act comes into force on the same day as subsection 2(4) of the other Act, then that subsection 2(4) is deemed never to have come into force and is repealed. (6) If section 2 of this Act comes into force before section 4 of the other Act, then that section 4 is deemed never to have come into force and is repealed. (7) If section 4 of the other Act comes into force before section 2 of this Act, then (a) that section 2 is deemed never to have come into force and is repealed; and (b) section 486.51 of the Criminal Code is replaced by the following: Revocation or variation of order 486.51 (1) A court that makes an order under section 486.4 or 486.5 or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province may, and, on application of a victim who is at least 18 years of age, must, hold a hearing to determine whether the order should be revoked or varied. Notice (2) The court shall provide notice of the hearing to the prosecutor, if proceedings in respect of the offence are ongoing, and to every victim and witness whose identity is protected by the order. Ex parte hearing (3) The court may proceed ex parte to hear and determine the application in the absence of the accused, whether the proceedings are ongoing or not. Factors (4) The court may revoke or vary the order if it is satisfied that (a) every victim or witness whose identity would no longer be protected by the order understands the nature and effect of a revocation or variation of the order; and (b) the revocation or variation of the order would not identify any other victim or witness whose identity is protected under that order or any other order made under section 486.4 or 486.5. Conditions (5) The revocation or variation of an order may be subject to any conditions that the court thinks fit. Publication prohibited (6) If the court refuses to revoke or vary an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of the application; (b) any evidence taken, information given or submissions made at a hearing under this section; or (c) any other information that could identify a victim or witness whose identity is protected by the order. Subsequent application (7) The revocation or variation of an order under subsection (4) does not prevent the applicant from making a subsequent application under paragraph 486.4(2)(b) or (2.2)(b) or subsection 486.5(1) in respect of the same matter. (8) If section 2 of this Act comes into force on the same day as section 4 of the other Act, then that section 4 is deemed never to have come into force and is repealed.