Acts and Regulations

P-22.1 - Provincial Offences Procedure Act

Full text
Document at 8 May 2014
CHAPTER P-22.1
Provincial Offences Procedure Act
Assented to June 27, 1987
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
Definitions
1(1)In this Act
“Act” means an Act of the Legislature and includes a regulation or by-law made under an Act;(Loi)
“Attorney General” includes the Deputy Attorney General;(procureur général)
“authorized person” means a person authorized by regulation to perform a specified function under this Act;(personne autorisée)
“categorized offence” means an offence that an Act makes punishable under this Act as a category A, B, C, D, E, F, G, H, I or J offence;(infraction classée)
“chief judge” means the chief judge of the Provincial Court of New Brunswick;(juge en chef)
“corporation” includes(corporation)
(a) a municipality,
(a.1) a rural community, and
(b) an organization, whether incorporated or not, that is liable to prosecution under an Act;
“court” means the Provincial Court of New Brunswick;(cour)
Criminal Code means the Criminal Code (Canada);(Code criminel)
“document” includes an appearance notice, an undertaking, an information, a ticket, a notice of prosecution, a summons, a warrant and any other notice or document referred to in this Act;(document)
“item of evidence” means anything that a peace officer believes, on reasonable and probable grounds, may provide evidence of the commission of an offence;(élément de preuve)
“judge” means a person appointed or authorized to act as a judge of the Provincial Court of New Brunswick and includes a supernumerary judge of the Provincial Court of New Brunswick;(juge)
“minor” means a person who has not attained the age of nineteen years;(mineur)
“named court” means the court designated by a judge under subsection 139(2) as the court at which a copy of a report under subsection 142(1) or (3) is to be filed;(cour désignée)
“offence” means an offence created by an Act or by any regulation or by-law made under an Act;(infraction)
“official language” means the English language or the French language;(langue officielle)
“peace officer” means(agent de la paix)
(a) a police officer, and
(b) any other person who is made a peace officer by an Act and who is acting in the performance of that person’s statutory duties or in relation to an offence or suspected offence under that Act;
“place” , for the purposes of sections 134 to 145 includes any land, buildings or premises;(endroit)
“police officer” means(agent de police)
(a) a member of the Royal Canadian Mounted Police, and
(b) a police officer as defined in the Police Act;
“prescribed form” means the form prescribed by regulation;(forme prescrite)
“prescribed offence” means an offence that is specified by regulation to be a prescribed offence;(infraction prescrite)
“probation officer” means a probation officer appointed for the purposes of the Corrections Act;(agent de probation)
“prosecutor” means(poursuivant)
(a) the Attorney General or an agent of the Attorney General, and
(b) any person who commences proceedings to which this Act applies unless the Attorney General or an agent of the Attorney General intervenes,
and includes counsel acting on behalf of a person referred to in paragraph (a) or (b);
“vehicle” means every device in, on or by which a person or property may be transported whether by land, air or water;(véhicule)
“weapon” includes any thing by which a person may cause harm to himself or herself or to another person;(arme)
“working day” means any day except a Saturday or a Sunday or other holiday.(jour ouvrable)
Application of Act
1(2)Subject to any special provision enacted in any other Act with respect to an offence, this Act applies to the prosecution of all offences.
1990, c.18, s.1; 1990, c.61, s.1; 1991, c.29, s.1; 1994, c.24, s.1; 2005, c.7, s.64; 2012, c.39, s.119
I
PROSECUTION
Proceedings By Way Of Information
Commencement of proceedings by information
2Except as otherwise provided in this or any other Act, proceedings in respect of an offence shall be commenced by laying before a judge, on oath or solemn affirmation, an information in prescribed form.
Laying of information
3An information may be laid by any person who has reasonable and probable grounds to believe that a person has committed an offence.
Contents of information
4(1)Any number of offences may be alleged in a single information.
4(2)Each offence alleged in an information shall be set out in a separate count.
4(3)Each count in an information shall
(a) set out an offence with which the defendant is charged, and
(b) set out sufficient detail of the circumstances of the offence charged to allow the defendant to identify the acts or omissions that are alleged to constitute the offence.
4(4)No information shall contain any reference to previous convictions.
Service of appearance notice before laying of information
5(1)A police officer who has reasonable and probable grounds to believe that a person has committed an offence may serve that person with an appearance notice in prescribed form before an information is laid in respect of that offence.
5(2)An authorized person who has reasonable and probable grounds to believe that a person has committed a prescribed offence may serve that person with an appearance notice in prescribed form before an information is laid in respect of that offence.
Procedure on laying of information
6(1)A judge before whom an information is laid shall receive the information and may, where the judge considers it desirable to do so, hear and consider ex parte the allegations of the informant and the evidence of the informant’s witnesses.
6(2)Where the judge considers that the defendant should be required to answer to the charge, the judge shall
(a) if no appearance notice has been served,
(i) issue a summons in prescribed form; or
(ii) issue a warrant in prescribed form for the arrest of the defendant if the judge considers that it is necessary in the public interest or in the interest of the proper administration of justice to do so; or
(b) if an appearance notice has been served, confirm the appearance notice.
6(3)Where the judge does not consider that the defendant should be required to answer to the charge, the judge shall
(a) so endorse the information, and
(b) if an appearance notice has been served, cancel it and cause a notice of cancellation, in prescribed form, to be served on the defendant.
Contents and service of appearance notice and summons
7(1)A summons and an appearance notice shall
(a) be directed to the defendant,
(b) set out briefly the offence with which the defendant is charged,
(c) state the time and place at which the defendant is to appear in court in order to be dealt with according to law,
(d) state that the defendant has the right to choose the official language in which the proceedings will be conducted,
(e) state that the defendant has the right to retain and instruct counsel, and
(f) state that if the defendant does not appear at the time and place stated in the summons or appearance notice, the trial may be conducted in the defendant’s absence.
7(2)A summons shall be served either by personal service in accordance with subsection 101(2) or by sending it by mail in accordance with subsection 101(4).
7(3)An appearance notice shall be served by delivering it to the defendant personally.
7(4)A person who serves an appearance notice shall ask the defendant to sign a duplicate of the appearance notice but, if the defendant fails or refuses to sign, the person serving the appearance notice shall so certify on the duplicate, and the lack of the defendant’s signature shall not invalidate the appearance notice nor form the basis of an objection to it.
7(5)Where, on the duplicate of the appearance notice kept by the person serving the appearance notice, a certificate in prescribed form is signed certifying that
(a) the appearance notice was delivered to the defendant personally, and
(b) the appearance notice was completed in the same manner as the duplicate kept by the person serving the appearance notice,
it shall be deemed, in the absence of evidence to the contrary, that the appearance notice was served and completed in the manner stated in the certificate and that the contents of the duplicate accurately reflect the contents of the appearance notice.
1990, c.18, s.2
Plea of guilty form
8(1)A person who serves a summons or an appearance notice in relation to an offence that does not, on conviction, carry a mandatory term of imprisonment shall serve, together with the summons or appearance notice, a plea of guilty form in prescribed form.
8(2)Where a plea of guilty form is served on a defendant and the defendant does not wish to dispute the charge, the defendant may sign the plea of guilty form and deliver it to the office of the court specified in the form.
8(3)The defendant may attach to the plea of guilty form a statement of the facts the defendant wishes the judge to take into consideration when imposing sentence.
8(4)Delivery by the defendant of the signed plea of guilty form to the office of the court specified in the form relieves the defendant of the duty to appear in court at the time and place stated in the summons or appearance notice.
8(5)Where a plea of guilty form is delivered to the office of the court, the person who receives the plea of guilty form shall, as soon as practicable but not before an information has been laid, notify the prosecutor that the plea of guilty form has been received.
8(6)Where an appearance notice has been served and a plea of guilty form has been delivered to the office of the court but, no information has been laid by the time stated in the appearance notice for the defendant to appear in court, the plea of guilty form shall be returned to the defendant together with a notice in prescribed form stating that
(a) no information has been laid in respect of the offence to which the defendant has pleaded guilty by means of the plea of guilty form, and
(b) the defendant has not been convicted of the offence in respect of which the defendant has pleaded guilty by means of the plea of guilty form.
8(7)Subsection (6) does not preclude the commencement of proceedings against the defendant in relation to the same offence, nor does it form the basis of any plea of autrefois acquit.
1990, c.18, s.3; 1991, c.29, s.2
Ticket Procedure
Ticket for prescribed offences
9A police officer or authorized person who believes, on reasonable and probable grounds, that a person has committed a prescribed offence may serve that person with a ticket in prescribed form.
Contents of ticket
10(1)A ticket shall
(a) be directed to the defendant,
(b) set out the offence with which the defendant is charged,
(c) state the time and place at which the defendant is to appear in court in order to be dealt with according to law,
(d) state that the defendant has the right to choose the official language in which the proceedings will be conducted,
(e) state that the defendant has the right to retain and instruct counsel,
(f) state that the defendant may pay a fixed penalty instead of appearing in court at the time and place stated in the ticket but that a defendant who makes such a payment shall be deemed to have been convicted of the offence,
(g) state the amount of the fixed penalty and the time, place and manner of payment, and
(h) state that if the defendant does not pay the fixed penalty and does not appear in court at the time and place stated in the ticket, the defendant may be convicted of the offence.
10(2)For the purposes of paragraph (1)(b) the offence with which the defendant is charged shall be set out in the ticket
(a) using words that are prescribed by regulation,
(b) using any words that describe the general nature of the offence, or
(c) using words that identify a provision of an Act and charge the defendant with a violation of that provision.
1990, c.18, s.4; 1991, c.29, s.3
Service of ticket
11(1)A ticket shall be served by delivering it to the defendant personally.
11(2)The person who serves the ticket shall ask the defendant to sign a notice of prosecution corresponding to the ticket but, if the defendant fails or refuses to sign, the person serving the ticket shall so certify on the notice of prosecution and the lack of the defendant’s signature shall not invalidate the notice of prosecution nor form the basis of an objection to it, to the ticket or to service of the ticket.
11(3)A notice of prosecution shall be in prescribed form and shall
(a) name the defendant, and
(b) so far as concerns the matters set out in paragraphs 10(1)(b) and (c), be in a form substantially similar to that prescribed for a ticket.
1991, c.29, s.4
Filing of notice of prosecution and commencement of proceedings
12(1)Unless payment of a fixed penalty is made in accordance with section 14 within the time stated in the ticket, the notice of prosecution shall be filed with a judge no later than the date stated in the ticket for the defendant’s appearance.
12(2)Proceedings in respect of the offence charged in the ticket commence when the notice of prosecution is filed with the judge.
Appearance by the defendant to dispute the charge set out in ticket
13A defendant who wishes to dispute the charge set out in the ticket shall appear in court at the time and place stated in the ticket, and where the defendant so appears the proceedings continue as if an information had been laid and a summons issued and served.
Payment of a fixed penalty
14(1)A defendant who does not wish to dispute the charge set out in the ticket may, no later than the time stated in the ticket for payment, pay a fixed penalty
(a) at the address specified in the ticket,
(b) at any address or office of Service New Brunswick,
(c) electronically on the Internet site maintained by Service New Brunswick, or
(d) by telephone, by calling Service New Brunswick TeleServices.
14(2)Notwithstanding subsection (1),
(a) the person who served the ticket may accept payment of a fixed penalty when the ticket is served,
(b) a peace officer may accept payment of a fixed penalty later than the time stated in the ticket for payment if the notice of prosecution has not been filed with the judge, and
(c) Service New Brunswick may accept payment of a fixed penalty later than the time stated in the ticket for payment if
(i) the payment is personally delivered to an office of Service New Brunswick, and
(ii) the notice of prosecution has not been filed with the judge.
14(3)Repealed: 2007, c.33, s.1
14(4)Except as otherwise provided by regulation, the time to be stated in the ticket as the time by which the fixed penalty is to be paid is 4:30 p.m. on the working day which is two working days before the day stated in the ticket for the defendant’s appearance in court.
14(5)The amount of the fixed penalty payable shall be the sum of
(a) the minimum fine set for the offence charged,
(b) any other additional fine or money penalty required to be imposed under an Act,
(c) the surcharge under the Victims Services Act, if any is payable, and
(d) the administrative fee prescribed by regulation.
14(6)Payment of the fixed penalty by the defendant in accordance with this section relieves the defendant of the duty to appear in court at the time and place stated in the ticket.
14(7)Repealed: 1990, c.18, s.5
14(8)Where a fixed penalty has been paid, the defendant, on the day stated in the ticket for the defendant’s appearance in court, shall be deemed for all purposes
(a) to have been convicted of the offence charged in the ticket,
(b) to have been fined the amount set out in the ticket, and
(c) to have paid that fine in full.
14(9)Repealed: 1990, c.18, s.5
1990, c.18, s.5; 1991, c.29, s.5; 1992, c.41, s.1; 2007, c.33, s.1; 2008, c.29, s.8
Application for leave to dispute charge where fixed penalty paid
15(1)Notwithstanding subsection 14(8), a defendant who has paid a fixed penalty may, on delivering notice in prescribed form to the address specified in the ticket for payment of the fixed penalty or to any address or office of Service New Brunswick, appear in court at the time and place stated in the ticket for the defendant’s appearance and apply for leave to dispute the charge.
15(2)Where leave is granted under subsection (1),
(a) the notice of prosecution shall be filed with the judge, and
(b) the fixed penalty paid by the defendant shall be deposited with the office of the court and shall be retained until the proceedings are concluded.
15(3)When the proceedings are concluded, the fixed penalty retained under paragraph (2)(b) shall
(a) be returned to the defendant if the defendant is acquitted, or
(b) be applied towards discharge of the fine if the defendant is convicted.
1990, c.18, s.6; 1991, c.29, s.6; 2007, c.33, s.2
Conviction on non-appearance
16(1)Where the defendant has not paid a fixed penalty before the time stated in the ticket for the payment of the fixed penalty and does not appear in court at the time and place stated in the ticket, the judge shall examine the notice of prosecution and, if the notice of prosecution contains the certificate referred to in subsection (2), the judge shall, subject to subsection (3), convict the defendant and impose a fine in the amount of the fixed penalty set out in the ticket.
16(2)The certificate on a notice of prosecution shall be in prescribed form, shall be signed, and shall state
(a) that the person signing the certificate delivered personally to the defendant the ticket to which the notice of prosecution corresponds, and
(b) that the ticket was in prescribed form and was completed in the same manner as the notice of prosecution.
16(3)The judge shall not convict the defendant if
(a) the judge has reason to believe that the certificate on the notice of prosecution is inaccurate, or
(b) the notice of prosecution contains a defect and the defect cannot be cured under section 106.
1990, c.18, s.7
First Appearance and Plea
Language of the proceedings
17(1)When a defendant first appears before a judge, the judge shall
(a) advise the defendant that the defendant has the right to have the proceedings conducted in the official language of the defendant’s choice, and
(b) establish the defendant’s choice of official language.
17(2)For the purposes of subsection (1), the judge may use the procedure set out in section 18 or such other means as the judge considers appropriate.
Determination of language of proceedings
18(1)The judge may, in one of the official languages, read or cause to be read to the defendant a statement, the wording of which is prescribed by regulation, advising the defendant of the right to have the proceedings conducted in the official language of the defendant’s choice and asking the defendant to choose the official language in which the proceedings are to be conducted.
18(2)Where the defendant does not indicate a choice of official language when asked to do so by the judge under subsection (1), the judge may read or cause to be read to the defendant in the other official language the statement referred to in subsection (1).
18(3)Where the defendant does not indicate a choice of official language when asked to do so by the judge under subsection (2), the judge may read or cause to be read to the defendant, in both official languages, a statement, the wording of which is prescribed by regulation, specifying one of the official languages as the language in which the proceedings will be conducted and asking if the defendant objects to the proceedings being conducted in that language.
18(4)Where the defendant does not object to the official language specified by the judge under subsection (3), the defendant shall be deemed to have chosen the official language specified under subsection (3).
18(5)Where the defendant objects to the official language specified by the judge under subsection (3), the defendant shall be deemed to have chosen the other official language.
Translation of an information or notice of prosecution
19(1)Where the official language in which the proceedings are to be conducted is not the official language in which the information has been sworn or the notice of prosecution completed, the judge shall inform the defendant that if the defendant so chooses a translation of the information or notice of prosecution by an Official Translator under the Official Languages of New Brunswick Act will be provided.
19(2)Where the defendant indicates to the judge that a translation of the information or notice of prosecution by an Official Translator will be required, the judge shall adjourn the proceedings to allow the translation to be obtained.
19(3)Subsections (1) and (2) do not prevent a translation other than a translation prepared by an Official Translator from being used in proceedings under this Act.
1990, c.18, s.8
Ability of judge to conduct proceedings in the official language chosen
20Where the judge’s ability in the official language chosen by the defendant is, in the opinion of that judge, not such as to enable that judge to conduct the proceedings in the official language chosen, the judge shall adjourn the proceedings so that they can be resumed before a judge who is able to conduct the proceedings in the official language chosen.
Taking of plea
21(1)Where proceedings are not adjourned under section 20 or where proceedings adjourned under section 20 are resumed before a judge who is able to conduct the proceedings in the official language chosen by the defendant, the judge shall
(a) where the defendant is not represented by counsel, inform the defendant of the right to retain and instruct counsel,
(b) cause the information or the notice of prosecution, as the case may be, to be read to the defendant,
(c) take reasonable steps to establish that the defendant understands the charge set out in the information or the notice of prosecution,
(d) explain to the defendant that the defendant may plead guilty or not guilty to the charge, and
(e) call upon the defendant to plead.
21(2)A defendant may waive the requirement under paragraph (1)(b) where the defendant is represented by counsel.
1990, c.18, s.9
Plea of not guilty
22Where the defendant pleads not guilty to the offence charged, the judge shall fix a time and place for trial.
Determination by judge on plea of guilty
23Where the defendant pleads guilty to the offence charged, the judge shall find the defendant guilty unless the judge has reason to believe that the facts may not support the offence charged and the defendant, having been given an opportunity to do so, changes the plea.
1991, c.29, s.7
Refusal to plead
24Where the defendant refuses to plead or does not answer directly, the judge shall enter a plea of not guilty and fix a time and place for trial.
Plea of guilty to another offence
25Where the defendant pleads not guilty to the offence charged but admits being guilty of another offence, whether or not it is an included offence, the judge shall, with the consent of the prosecutor,
(a) permit the information or notice of prosecution to be amended so as to substitute the offence to which the defendant has admitted guilt,
(b) accept the defendant’s admission as a plea of guilty to that offence, and
(c) proceed in accordance with section 23.
1990, c.18, s.10
Time for trial
26Where the judge is notified that the prosecutor or the defendant is in possession of witness statements and intends to serve them, the judge shall, when fixing the time for trial, take into account the time set under section 36 for service of witness statements.
1990, c.18, s.11
Idem
26.1If the judge is notified that the prosecutor or the defendant intends to make an application under subsection 43(1.1), the judge shall, when fixing the time for trial, take into account the time set under that subsection for making such an application.
2011, c.16, s.1
Plea of guilty by signed plea of guilty form
27Where the defendant does not appear before the judge at the time and place stated in the appearance notice or summons but has delivered a signed plea of guilty form to the office of the court, the judge shall proceed as if the defendant had appeared in person and pleaded guilty, and in a case where the judge has reason to believe that the facts may not support the offence charged, the judge may adjourn the proceedings so that the defendant may consider a change of plea.
1990, c.18, s.12
Failure To Appear
Non-appearance by defendant
28(1)Where a defendant has not delivered a signed plea of guilty form to the office of the court and does not appear at the time and place stated in an appearance notice or summons or at the time and place fixed by a judge for taking the defendant’s plea, the judge may, if satisfied that an appearance notice or summons was served on the defendant or that the defendant was notified of the time and place fixed for taking the plea,
(a) on motion by the prosecutor, proceed immediately to try the defendant in the defendant’s absence,
(b) fix a later time and place at which the judge will try the defendant in the defendant’s absence,
(c) fix a later time and place for the trial of the defendant and issue a summons in prescribed form, or
(d) issue a warrant in prescribed form for the arrest of the defendant if the judge is satisfied that it is necessary in the public interest or in the interest of the proper administration of justice to do so.
28(2)Repealed: 1990, c.18, s.13
1990, c.18, s.13
Non-appearance by defendant
29(1)If a defendant does not appear at a time and place fixed by a judge for trial or for the resumption of a trial that has been adjourned and the proceedings were commenced by the laying of an information, the judge shall, on motion by the prosecutor, proceed immediately to try the defendant in the defendant’s absence.
29(1.1)If a defendant does not appear at a time and place fixed by a judge for trial or for the resumption of a trial that has been adjourned and the proceedings were commenced by the filing of a notice of prosecution, the judge shall,
(a) on motion by the prosecutor, convict the defendant and impose a fine in the amount of the fixed penalty set out in the ticket to which the notice of prosecution corresponds if it appears to the judge that it would not be contrary to the interest of justice to do so, or
(b) on motion by the prosecutor, proceed immediately to try the defendant in the defendant’s absence.
29(1.2)If a motion by a prosecutor under paragraph (1.1)(a) is refused, the prosecutor is not prevented from making a motion under paragraph (1.1)(b) immediately after the refusal.
29(2)If the prosecutor does not make a motion under subsection (1) or (1.1) or a motion made by him or her under paragraph (1.1)(a) is refused and he or she does not make a motion under paragraph (1.1)(b) immediately after the refusal, the judge shall adjourn the proceedings and may
(a) issue a summons in prescribed form, or
(b) issue a warrant in prescribed form for the arrest of the defendant if the judge is satisfied that it is necessary in the public interest or in the interest of the proper administration of justice to do so.
2011, c.16, s.2
Non-appearance by prosecutor
30(1)Where the defendant appears at any time and place as required under this Act and the prosecutor, having had due notice, does not appear, the judge may, upon such terms as the judge considers proper,
(a) dismiss the charge, or
(b) adjourn the proceedings to another time.
30(2)Notwithstanding any applicable limitation period prescribed by this or any other Act, where a charge is dismissed under subsection (1), the proceedings may, with the consent in writing of the Attorney General, be recommenced within thirty days after the day the charge is dismissed and, where proceedings are recommenced under this subsection, no plea of autrefois acquit may be based upon a dismissal under subsection (1).
1990, c.18, s.14
Trial
Right to defend
31The defendant is entitled to make a full answer and defence.
Right to examine and cross-examine witness
32The prosecutor and the defendant may examine, cross-examine and re-examine witnesses.
1990, c.18, s.15
Giving of evidence
33Evidence in proceedings under this Act shall be given under oath or solemn affirmation except as otherwise provided by law, and when given orally shall be recorded in accordance with the Recording of Evidence Act.
2009, c.R-4.5, s.23
Exhibits
34Where any thing is filed as an exhibit in proceedings, the judge may order that the exhibit be kept in such custody and place as are, in the opinion of the judge, appropriate for its preservation.
1990, c.18, s.16
Witness statements
35(1)A prosecutor may use a witness statement to give the evidence of a witness
(a) if a copy of the witness statement has been served on the defendant in accordance with subsection 36(1) and the defendant has not notified the prosecutor, in accordance with subsection 36(3), that the witness will be required to attend court to give evidence in person, or
(b) without serving the witness statement on the defendant if the defendant does not appear at the time and place stated in the appearance notice or summons or set by the judge for taking the defendant’s plea and the judge proceeds in the absence of the defendant immediately under paragraph 28(1)(a) or at a later date under paragraph 28(1)(b).
35(2)A defendant may use a witness statement to give the evidence of a witness if a copy of the witness statement has been served on the prosecutor in accordance with subsection 36(2) and the prosecutor has not notified the defendant, in accordance with subsection 36(3), that the witness will be required to attend court to give evidence in person.
35(3)A witness statement shall be in prescribed form and shall be signed by the witness in the presence of another person.
35(4)The evidence of a witness given by way of a witness statement has the same force and effect as evidence given orally under oath or solemn affirmation.
35(5)Every person who knowingly makes a false statement in a witness statement commits a category H offence.
1990, c.18, s.17
Service of witness statements
36(1)A prosecutor who intends to give the evidence of a witness by way of a witness statement shall serve on the defendant, no later than twenty days before the date fixed for trial, a copy of the witness statement together with a notice in prescribed form of the prosecutor’s intention to give the evidence by way of a witness statement.
36(2)A defendant who intends to give the evidence of a witness by way of a witness statement shall serve on the prosecutor, no later than twenty days before the date fixed for trial, a copy of the witness statement together with a notice in prescribed form of the defendant’s intention to give the evidence by way of a witness statement.
36(3)The person on whom a witness statement is served shall, within ten days after being served, notify the person who served the witness statement if the attendance of the witness who has provided the witness statement will be required.
36(4)Notwithstanding that the attendance in court of a witness whose statement has been served has not been required under subsection (3), the person who served the witness statement may call that witness to give evidence in person.
36(5)Where a witness statement that identifies a defendant by name has been served and the attendance in court of the witness who has provided the statement has not been required under subsection (3), the defendant shall not dispute the identification made in the statement.
36(6)Where, in accordance with this section, evidence is given by way of a witness statement but the evidence at trial is such that it appears to the judge that the witness who provided the witness statement should appear in person to be examined or cross-examined or to give evidence in rebuttal, the judge may adjourn the trial and issue a summons to witness in prescribed form.
36(7)An adjournment under subsection (6) for the purpose of requiring a witness to attend may be made on the application of the prosecutor or the defendant or by the judge without an application.
1990, c.18, s.18
Exhibits referred to in witness statement
37(1)Where a witness statement refers to any thing as an exhibit, the copy of the witness statement served under subsection 36(1) or 36(2) shall be accompanied by
(a) a copy of the exhibit if the exhibit is written or photographic material that can be readily reproduced, or
(b) a statement setting out where the exhibit may be inspected if the exhibit
(i) is written or photographic material but cannot be readily reproduced, or
(ii) is not written or photographic material.
37(2)Any thing referred to as an exhibit and identified in a witness statement that is used under section 35 to give evidence shall, when produced in court, be deemed to have been identified in court by the witness who provided the witness statement.
1990, c.18, s.19
Evidence taken by Commissioner
38(1)Upon the application of the defendant or the prosecutor with notice to the other, a judge may by order in prescribed form appoint a commissioner to take the evidence of a witness who is out of the Province or is likely to be unable to attend the trial by reason of illness or physical disability or for some other good and sufficient reason.
38(2)Evidence taken by a commissioner appointed under subsection (1) may be adduced in evidence in the proceedings if
(a) it is proved to the satisfaction of the judge that reasonable notice of the time and place for taking the evidence was given to the prosecutor or defendant, as the case may be, and that the prosecutor or defendant had full opportunity to cross-examine the witness, and
(b) the transcript of the evidence is signed by the commissioner by or before whom it purports to have been taken.
38(3)An order under subsection (1) may make provision to enable the defendant to be present or represented by counsel or agent when the evidence is taken, but failure of the defendant to be present or to be represented by counsel or agent in accordance with the order does not prevent the adducing of the evidence in the proceedings.
38(4)Except as otherwise provided by this section or by regulation, the practice and procedure for the taking of evidence under this section shall be the same as if the evidence were being taken before a judge.
38(5)The costs of a commissioner appointed under this section shall be borne by the person who applied for the commissioner to be appointed.
1990, c.18, s.20
Agreed facts
39The judge may receive and act upon any facts agreed upon by the defendant and the prosecutor.
1990, c.18, s.21
Evidence taken on another charge
40With the consent of the prosecutor and the defendant, the judge may receive and consider evidence taken before the judge or before another judge on a different charge against the same defendant.
Inference as to age
41In the absence of other evidence, or when corroborated by other evidence, a judge may infer the age of a person from that person’s appearance.
Presumption as to age
42In the absence of evidence to the contrary, a defendant who is alleged in an information or notice of prosecution to be of, over or under a specified age shall be presumed to be of, over or under that age.
Attendance of Witnesses
Summons to witness
43(1)Where a judge is satisfied that a person is able to give material evidence either for the prosecution or for the defence in proceedings under this Act, the judge may issue a summons to witness in prescribed form requiring the person to attend to give evidence and to bring any writings or things referred to in the summons.
43(1.1)On application by the defendant or the prosecutor in prescribed form no later than ten days before the date fixed for trial, a judge may issue a summons to witness in prescribed form requiring a witness in or outside the Province to attend to give evidence by means of technology that permits the witness to testify in the virtual presence of the judge and the defendant and prosecutor, if
(a) the judge is satisfied that the witness is able to give material evidence for the applicant, and
(b) the judge is of the opinion that requiring the witness to appear by means of the technology would be appropriate in all of the circumstances, including the location and the personal circumstances of the witness, the cost that would be incurred if the witness had to be physically present and the nature of the witness’s anticipated evidence.
43(1.2)A summons to witness issued under subsection (1.1) may require the witness to whom it is issued to bring any writing or things referred to in the summons.
43(1.3)The costs associated with the use of technology when giving evidence in accordance with a summons to witness issued under subsection (1.1) shall be borne by the person who made the application under that subsection for the witness to give evidence by means of the technology.
43(1.4)Before issuing a summons to witness under subsection (1.1), a judge shall revoke any existing summons to witness issued under subsection (1) to the witness with respect to the trial.
43(2)A person who is served with a summons to witness shall attend at the time and place stated in the summons to give evidence and, if required by the summons, shall bring any writing or other thing of which the person has possession or control that relates to the subject-matter of the proceedings.
43(3)A person who is served with a summons to witness, other than a summons to witness issued under subsection (1.1), shall remain in attendance during the trial and the trial as resumed after adjournment from time to time unless the person is excused from attendance by the judge.
43(4)Every person who, being required under this section to attend at a time and place stated in a summons to witness or to remain in attendance at a trial, fails without lawful excuse to attend or remain in attendance commits a category F offence.
43(5)A certificate, in prescribed form, of a judge who issued a summons to witness under this section stating that a person failed to attend or to remain in attendance is admissible in evidence and is proof, in the absence of evidence to the contrary, of the fact without proof of the appointment, authority or signature of the judge appearing to have signed the certificate.
1990, c.18, s.22; 2011, c.16, s.3
Witness outside the Province
43.1When a witness outside the Province gives evidence in accordance with a summons issued under subsection 43(1.1),
(a) the evidence shall be given under oath or affirmation in accordance with the law of the Province, and
(b) the evidence is deemed to be given in the Province for the purposes of the laws relating to evidence, procedure and contempt of court.
2011, c.16, s.4
Warrant for arrest of witness
44(1)Where a judge is satisfied upon evidence, given under oath or by solemn affirmation, that a person who is able to give material evidence that is necessary in proceedings under this Act
(a) will not attend if a summons to witness is served,
(b) is evading service of a summons to witness,
(c) has failed to attend or remain in attendance in response to a summons to witness, or
(d) has failed to attend or remain in attendance in breach of an undertaking to appear entered into under subsection 44(3),
the judge may issue a warrant in prescribed form for the arrest of the person.
44(2)The peace officer who arrests a person under a warrant issued under subsection (1) shall as soon as practicable take the person before a judge.
44(3)Unless the judge is satisfied that it is necessary to detain the person arrested in custody to ensure that person’s attendance to give evidence, the judge shall order the person released on the person’s entering into an undertaking, in prescribed form, to appear, and the judge may also require the person to enter into a recognizance, in prescribed form, with or without sureties, in such amount and with such conditions, if any, as are appropriate, in the opinion of the judge, to ensure the attendance of that person to give evidence.
44(4)Where the judge is satisfied that it is necessary to detain the person arrested in custody to ensure that person’s attendance to give evidence, the judge may order that the person be detained in custody to give evidence at the trial, and such an order is sufficient authority
(a) for a peace officer or sheriff to convey the defendant to a correctional institution for the purpose of detention under the order, and
(b) for the reception and detention of the defendant by officers of a correctional institution in accordance with the terms of the order.
44(5)A person who is detained in custody under an order made under subsection (4) shall not be detained in custody for a period longer than ten days.
44(6)A judge may at any time order the release of a person detained in custody under this section where the judge is satisfied that the detention is no longer justified.
1990, c.18, s.23; 2009, c.29, s.1; 2011, c.16, s.5
II
SENTENCE
Disposition - General
Acquittal
45A judge who finds a defendant not guilty of the offence charged shall acquit the defendant.
Conviction
46(1)A judge who finds a defendant guilty of the offence charged shall,
(a) convict the defendant,
(b) subject to subsections 62(1) and 73(2), impose sentence,
(c) calculate the surcharge, if any, payable under the Victims Services Act,
(c.1) if the proceedings were commenced by the filing of a notice of prosecution and a fine is imposed, add the administrative fee referred to in subsection (1.1) to the combined total of the fine and the surcharge, if any, payable under the Victims Services Act, and
(d) if a fine is imposed, determine in accordance with section 53 or 54 the means that may be used to enforce payment of the fine.
46(1.1)Where a defendant is convicted of an offence and a fine is imposed, an administrative fee prescribed by regulation is payable if the proceedings were commenced by the filing of a notice of prosecution.
46(2)A judge who finds a defendant guilty of the offence charged may, in addition to the action taken under subsection (1), make any other order or determination authorized by an Act.
46(3)Paragraphs (1)(c) and (c.1) and subsection (1.1) do not apply if a judge acting under subsection 16(1) or paragraph 29(1.1)(a) convicts a defendant on whom a ticket has been served and imposes a fine in the amount of the fixed penalty established under subsection 14(5).
46(4)Repealed: 2007, c.33, s.3
1990, c.18, s.24; 1992, c.41, s.2; 2007, c.33, s.3; 2008, c.29, s.8; 2011, c.16, s.6
Record of disposition
47(1)A judge or an authorized person may complete a record, in prescribed form, stating the disposition made by the judge under section 45 or 46.
47(2)The combined total of the fine, any surcharge imposed under the Victims Services Act and any administrative fee payable under subsection 46(1.1) may appear as a single figure in the record of disposition and this figure may be described as a fine, notwithstanding that the combined total may exceed the maximum fine that may be imposed for the offence.
47(3)The record of disposition shall state
(a) the amount of any surcharge imposed under the Victims Services Act whether that amount was
(i) included in the fixed penalty under paragraph 14(5)(c), or
(ii) calculated by the judge under paragraph 46(1)(c), and
(b) the amount of the administrative fee, if any, payable under this Act whether the amount was
(i) included in the fixed penalty under paragraph 14(5)(d), or
(ii) added by the judge under paragraph 46(1)(c.1).
1990, c.18, s.25; 1991, c.29, s.8; 2007, c.33, s.4; 2008, c.29, s.8
Acquittal or conviction in the defendant’s absence
48(1)A judge acting under subsection 16(1), section 27, paragraph 28(1)(a) or (b) or subsection 29(1) or (1.1) who acquits or convicts a defendant in the defendant’s absence shall cause a copy of the record of disposition to be served on the defendant.
48(2)Where a judge convicts a defendant who is present in court and imposes a fine, the judge may cause a copy of the record of disposition to be served on the defendant.
1990, c.18, s.26; 2011, c.16, s.7
Submissions as to sentence and investigation and report on request by judge
49(1)A judge shall, before imposing sentence,
(a) give the prosecutor an opportunity to make submissions as to sentence,
(b) if the defendant is represented by counsel or agent, give the defendant’s counsel or agent an opportunity to make submissions as to sentence,
(c) if the defendant is present in court, ask the defendant if the defendant has anything to say before sentence is imposed, and
(d) if the defendant does not appear but has delivered to the court a signed plea of guilty form, take into consideration any statement of facts the defendant has submitted with the signed plea of guilty form.
49(2)A judge may, before imposing sentence,
(a) make such inquiries, on oath or solemn affirmation or otherwise, of and concerning the defendant as the judge considers desirable, including inquiries concerning the economic circumstances of the defendant, but the defendant shall not be compelled to answer, and
(b) request an investigation and a report in accordance with section 11 of the Corrections Act.
49(3)The report submitted to the judge under paragraph (2)(b) shall form part of the record of the proceedings.
2011, c.20, s.17
Questioning of statement by prosecutor or defendant
50Where the prosecutor or the defendant considers that any statement made orally or in writing during proceedings under section 49 is inaccurate or misleading, the prosecutor or the defendant may question the statement and may request the judge to hear evidence or to adjourn the proceedings to allow witnesses to be called.
Sentences
51The sentences that a judge may impose are:
(a) for an offence other than an offence that, on conviction, carries a mandatory term of imprisonment, a release without penalty if section 55 applies;
(b) for a categorized offence,
(i) a fine in accordance with this Act, and
(ii) a term of imprisonment when permitted by this Act,
(c) for an offence other than a categorized offence,
(i) the sentence set out in the Act that creates the offence, or
(ii) if the Act that creates the offence does not set out the sentence, the sentence permitted under sections 60, 61 and 65; and
(d) for any offence, a probation order in accordance with this Act if a sentence under paragraph (b) or (c) is also imposed.
Additional penalty
52(1)Where an Act creates an offence and makes that offence a categorized offence but also provides for an additional penalty that the judge shall or may impose in relation to that offence, the judge shall or may impose the additional penalty accordingly.
52(2)Where the additional penalty referred to in subsection (1) is a fine or a money penalty, the sum that represents the combined total of the fine under this Act and the additional penalty under the other Act shall be deemed to be a single fine for the purposes of this Act.
52(3)Nothing prevents the sum described in subsection (2) from exceeding the maximum amount of the fine set by this or any other Act for the offence committed.
1990, c.18, s.27
Means to enforce payment of fine
53(1)Subject to section 54, the means that may be used to enforce payment of a fine are
(a) an order for seizure and sale in accordance with section 88 if the defendant is a corporation,
(b) a payment order in accordance with section 89 if the defendant is not a corporation and the proceedings were commenced by the filing of a notice of prosecution, or
(c) a warrant of committal in accordance with section 91 if the defendant is not a corporation and the proceedings were commenced by the laying of an information.
53(2)Where a judge determines that a warrant of committal may be used to enforce payment of a fine, the judge shall calculate in accordance with subsection 91(3) the duration of the imprisonment that may follow if the defendant is in default of payment of a fine and shall state that calculation in the record of disposition.
1991, c.29, s.9; 2005, c.15, s.1
Application by prosecutor for determination of means to enforce payment
54(1)In this section
“prosecutor” means the Attorney General or an agent of the Attorney General or counsel acting on behalf of the Attorney General.
54(2)On application made to the judge by the prosecutor at the time sentence is to be imposed, the judge may determine that one of the following means may also be used to enforce payment of a fine:
(a) an order for seizure and sale in accordance with section 88 in relation to a defendant who is not a corporation,
(b) a payment order in accordance with section 89
(i) in relation to a defendant that is a corporation, or
(ii) in relation to a defendant who is not a corporation if the proceedings were commenced by the laying of an information, or
(c) a suspension order in accordance with section 90.
54(3)Where a determination is made that an order issued under subsection (2) may be used to enforce payment of a fine, that order shall be the first order issued if the defendant is in default of payment of a fine, and the order or warrant referred to in section 53 may be issued if the order referred to in subsection (2) does not secure payment of the fine.
1990, c.18, s.28; 1991, c.29, s.10; 2005, c.15, s.2
Release Without Penalty
Release without penalty
55Notwithstanding any provision of this Act or any other Act, where a judge who has convicted a defendant of an offence that does not, on conviction, carry a mandatory term of imprisonment is of the opinion that
(a) it is not in the public interest to impose a fine or a term of imprisonment, and
(b) the imposition of such a sentence would harm the reputation of the system of justice,
the judge may release the defendant without the imposition of a fine, a term of imprisonment or any other sentence that a judge may or shall impose under this Act or any other Act.
Fines
Fines for categorized offences
56(1)Where an Act makes an offence punishable as a category A offence, a judge shall impose a fine of $140.
56(2)Where an Act makes an offence punishable as a category B offence, a judge shall impose a fine of not less than $140 and not more than $640.
56(3)Where an Act makes an offence punishable as a category C offence, a judge shall impose a fine of not less than $140 and not more than $1,100.
56(4)Where an Act makes an offence punishable as a category D offence, a judge shall impose a fine of not less than $140 and not more than $2,100.
56(5)Where an Act makes an offence punishable as a category E offence, a judge shall impose a fine of not less than $240 and not more than $5,200.
56(6)Where an Act makes an offence punishable as a category F offence, a judge shall impose a fine of not less than $240 and not more than $10,200.
56(7)Where an Act makes an offence punishable as a category G offence, a judge shall impose a fine of not less than $240 and not more than $15,200.
56(8)Where an Act makes an offence punishable as a category H offence, a judge shall impose a fine of not less than $500 and not more than $20,500.
56(9)Where an Act makes an offence punishable as a category I offence, a judge shall impose a fine of not less than $500 and not more than $50,000.
56(10)Where an Act makes an offence punishable as a category J offence, a judge shall impose a fine of not less than $500 and not more than $200,000.
1990, c.61, s.1; 1992, c.41, s.3; 2004, c.30, s.1; 2011, c.16, s.8
Fine where maximum fine imposed for previous conviction
57Notwithstanding any maximum fine set for an offence under section 56, where a defendant is convicted of a categorized offence for which, on a previous conviction of the same offence, the defendant has been sentenced to the maximum fine available for that offence, the maximum fine the judge may impose is as follows:
(a) for a category A offence, $350,
(b) for a category B offence, $1,100,
(c) for a category C offence, $2,100,
(d) for a category D offence, $5,200,
(e) for a category E offence, $10,200,
(f) for a category F offence, $15,000,
(g) for a category G offence, $20,200,
(h) for a category H offence, $50,000,
(i) for a category I offence, $200,000,
(j) for a category J offence, $500,000.
1990, c.61, s.1; 2004, c.30, s.1; 2011, c.16, s.9
Fine where financial gain or avoidance of financial burden of compliance
58(1)Where, in the opinion of a judge, a defendant has committed a categorized offence for financial advantage or to avoid the financial burden of compliance with the law, the judge may, notwithstanding any maximum fine set for that offence under section 56 or 57, impose such fine as the judge considers appropriate in the circumstances.
58(2)A judge shall not impose a fine under subsection (1) unless
(a) the proceedings were commenced by the laying of an information, and
(b) the prosecutor has, before the time stated in the summons or appearance notice for the defendant to appear in court, served on the defendant a notice in prescribed form stating that a fine under subsection (1) will be sought if the defendant is convicted.
58(3)The notice referred to in subsection (2) shall inform the defendant that any written plea of guilty that the defendant may have already delivered to the office of the court will be disregarded if the defendant appears in court at the time and place set out in the summons or appearance notice and pleads to the charge in person.
1990, c.18, s.29
Consideration of time spent in custody
59Where a defendant has spent time in custody in consequence of an alleged offence before being sentenced for that offence, the judge may, notwithstanding any minimum fine set for the offence, take that time spent in custody into consideration when imposing the sentence and may accordingly impose a fine of less than the minimum or waive the imposition of the fine.
Offence category C where not stated
60Where an Act creates an offence but does not make the offence a categorized offence and does not state the sentence that may be imposed in respect of that offence, the offence is a category C offence.
Amount of fine where not stated
61Where an Act creates an offence and states that a fine may be imposed in respect of that offence but does not state the amount of the fine that may be imposed, the fine imposed shall not exceed two hundred and fifty dollars.
Imprisonment
No sentence of imprisonment in absence of defendant
62(1)A judge shall not sentence a defendant to a term of imprisonment in the absence of the defendant.
62(2)For the purposes of subsection (1), a defendant who is represented in court by counsel or agent but is not present personally is absent from the court.
62(3)Where a judge acting under section 27, paragraph 28(1)(a) or (b), subsection 29(1) or paragraph 29(1.1)(b) convicts a defendant in the defendant’s absence or where a defendant does not appear at the time and place set for sentencing, the judge may, if considering imposing a sentence of imprisonment or if notified that the prosecutor intends to ask the judge to impose a sentence of imprisonment, issue
(a) a summons for sentencing in prescribed form, or
(b) a warrant in prescribed form for the arrest of the defendant if the judge is of the opinion that the defendant is unlikely to appear or has failed to appear in response to a summons for sentencing.
1990, c.18, s.30; 1991, c.29, s.11; 1994, c.24, s.2; 2011, c.16, s.10
Imprisonment for category E, F and G offences
63(1)Where, in relation to a category E offence, a defendant is convicted of an offence and has a previous conviction for the same offence, the judge may, if satisfied that no other sentence will deter the defendant from repeating that offence, sentence the defendant to a term of imprisonment of not more than thirty days.
63(2)Where, in relation to a category F offence, the defendant is convicted of an offence and has a previous conviction for the same offence, the judge may, if satisfied that no other sentence will deter the defendant from repeating that offence, sentence the defendant to a term of imprisonment of not more than ninety days.
63(3)Where, in relation to a category G offence, the defendant is convicted of an offence and has a previous conviction for the same offence, the judge may, if satisfied that no other sentence will deter the defendant from repeating the offence, sentence the defendant to a term of imprisonment of not more than one hundred and twenty days.
Imprisonment for category H and I offences
64(1)A judge may, in relation to a category H offence, sentence a defendant to a term of imprisonment of not more than one hundred and eighty days.
64(2)A judge may, in relation to a category I offence, sentence a defendant to a term of imprisonment of not more than one year.
64(3)A judge may, in relation to a category J offence, sentence a defendant to a term of imprisonment of not more than eighteen months.
1990, c.61, s.1
Maximum term of imprisonment where not stated
65Where an Act permits a sentence of imprisonment to be imposed but does not state the maximum term to which a defendant may be sentenced, the maximum term of imprisonment shall be thirty days.
Consideration of time spent in custody
66Where a defendant has spent time in custody in consequence of an alleged offence before being sentenced for that offence, the judge may take the time spent in custody into consideration when determining the duration of a sentence of imprisonment.
1990, c.18, s.31
Serving of sentences to be consecutive
67Where a person is subject to more than one term of imprisonment at the same time, the terms shall be served concurrently except in so far as the judge has ordered the terms of imprisonment to be served consecutively.
1990, c.18, s.32
Commencement of term of imprisonment
68(1)Subject to subsections (2), (3) and (4), where a judge imposes a term of imprisonment, the term commences when it is imposed.
68(2)Where a judge imposes a term of imprisonment of not more than ninety days, the judge may order the term of imprisonment to be served intermittently.
68(3)A judge may order a term of imprisonment to commence on a day not later than thirty days after the day of sentencing.
68(4)Where a person is already serving a term of imprisonment when a further term of imprisonment which the judge does not order to be served concurrently is imposed, that further term of imprisonment commences when the previous term of imprisonment expires.
1990, c.18, s.33
Probation order and sentence of imprisonment
69Where a judge orders a term of imprisonment to be served intermittently under subsection 68(2) or orders a term of imprisonment to commence on a day not later than thirty days after the day of sentencing under subsection 68(3), the judge shall make a probation order and direct the defendant to comply with the conditions set out in the probation order at all times the defendant is not in custody.
Fine in lieu of imprisonment for corporate defendant
70(1)Where a defendant is a corporation and the judge would, if the defendant were an individual, impose a term of imprisonment, the judge may, in lieu of imposing the term of imprisonment and in addition to any other fine, impose
(a) for a category E offence, a fine of not more than three thousand dollars,
(b) for a category F offence, a fine of not more than nine thousand dollars,
(c) for a category G offence, a fine of not more than twelve thousand dollars,
(d) for a category H offence, a fine of not more than twenty thousand dollars,
(e) for a category I offence, a fine of not more than thirty-five thousand dollars,
(e.1) for a category J offence, a fine of not more than fifty thousand dollars, or
(f) for an offence other than a categorized offence, a fine of not more than an amount calculated at the rate of one hundred dollars for every day of the term of imprisonment permitted under the Act that creates the offence.
70(2)The judge may impose the sentence under subsection (1) in the absence of the defendant.
1990, c.61, s.1
Warrant of committal
71(1)Where a judge sentences a defendant to a term of imprisonment, the judge shall issue a warrant of committal in prescribed form, setting out
(a) the name of the defendant,
(b) the duration and the date of commencement of the term of imprisonment, and
(c) if the judge has ordered the term of imprisonment to be served intermittently or to commence on a day later than the day of sentencing, the time at which the defendant is first to report to a correctional institution and the name of the correctional institution to which the defendant is to report at that time.
71(2)A warrant of committal is sufficient authority
(a) for a peace officer or sheriff to convey the defendant to a correctional institution for the purpose of committal under the warrant,
(b) for the reception and detention of the defendant by officers of a correctional institution in accordance with the terms of the warrant, and
(c) for a peace officer or sheriff to arrest the defendant and convey the defendant to a correctional institution if the defendant does not report to a correctional institution as required by the warrant.
1990, c.18, s.34; 2009, c.29, s.2
Sentence served in accordance with Corrections Act
72A sentence of imprisonment shall be served in accordance with the Corrections Act.
Probation Orders
Probation orders
73(1)A probation order shall be in prescribed form.
73(2)A judge shall not make a probation order in the absence of the defendant.
73(3)For the purposes of subsection (2), a defendant who is not a corporation and who is represented by counsel or agent but is not present personally is absent from the court.
73(4)Where a judge acting under section 27, paragraph 28(1)(a) or (b), subsection 29(1) or paragraph 29(1.1)(b) convicts a defendant in the defendant’s absence or where a defendant does not appear at the time and place set for sentencing, that judge may, if considering making a probation order or if notified that the prosecutor intends to ask the judge to make a probation order, issue
(a) a summons for sentencing in prescribed form, or
(b) a warrant in prescribed form for the arrest of the defendant if the judge is of the opinion that the defendant is unlikely to appear or has failed to appear in response to a summons for sentencing.
73(5)A judge who, acting under section 16 or paragraph 29(1.1)(a), convicts a defendant in the defendant’s absence, shall not make a probation order.
1990, c.18, s.35; 1991, c.29, s.12; 1994, c.24, s.3; 2011, c.16, s.11
Conditions of a probation order
74(1)A judge shall set out in a probation order the conditions that the defendant
(a) keep the peace and be of good behaviour, and
(b) appear before the court as and when required by the judge.
74(2)A judge who orders a defendant to serve a term of imprisonment intermittently shall, in addition to the conditions referred to in subsection (1), set out in the probation order the condition that the defendant report to a correctional institution at the times stated in the probation order.
74(3)In addition to the conditions referred to in subsections (1) and (2), a judge may include in a probation order any or all of the following conditions:
(a) that the defendant pay compensation or make restitution to a person to whom loss or damage was caused by the offence;
(b) that the defendant perform a community service as set out in the probation order;
(c) that the defendant submit to treatment for alcohol or drug abuse if the judge is satisfied that the defendant is in need of treatment and is a suitable candidate for treatment;
(d) that the defendant attend a program of driver education or improvement if the judge is satisfied that the defendant would benefit from such a program;
(e) that the defendant make reasonable efforts to find and maintain suitable employment or to attend educational or training programs;
(e.1) that the defendant notify the court of any change of residence;
(f) that the defendant report to and be under the supervision of a probation officer or some other person designated by the judge; and
(g) such other reasonable conditions as the judge considers desirable for securing the good conduct of the defendant and for preventing the defendant from committing offences in the future.
74(4)Where the Lieutenant-Governor in Council makes regulations respecting the compensation or restitution that a defendant may be ordered to pay or make, every condition included in a probation order under paragraph (3)(a) shall be in accordance with those regulations.
74(5)A judge shall not include a condition under paragraph (3)(a) in a probation order unless
(a) the nature and amount of the compensation or restitution to be paid or made is readily ascertainable, and
(b) the amount is not in excess of three thousand dollars, unless the defendant consents to a greater amount.
74(6)A judge shall not include a condition under paragraph (3)(b) or (f) in a probation order except on the recommendation of a probation officer.
74(7)Notwithstanding subsection (1), a judge may make a probation order in which the only condition is a condition under paragraph (3)(a).
74(8)Where a probation order is made in relation to a corporation, the judge may, notwithstanding subsection (1), include in the probation order only such conditions as the judge considers reasonable to impose on a corporate defendant.
1990, c.18, s.36
Condition in probation order of compensation or restitution
75(1)The money payable by a defendant in accordance with a condition under paragraph 74(3)(a) shall be paid into court to be forwarded to the person to whom the compensation or restitution is to be paid or made.
75(2)Where money that is to be paid into court under subsection (1) is not paid in accordance with the order, the judge, if satisfied on ex parte application by the prosecutor that it is appropriate to do so, may issue
(a) an order for seizure and sale in accordance with section 88, or
(b) a payment order in accordance with section 89,
and if such an order is issued the order shall be executed or dealt with as if the defendant were in default of payment of a fine except that the money recovered, when paid to the court, shall be forwarded to the person to whom the compensation or restitution is to be paid or made.
1990, c.18, s.37; 1991, c.29, s.13
Commencement and duration of probation order
76(1)A judge making a probation order shall specify in the probation order the period of time for which it is to remain in force.
76(2)A probation order shall not remain in force for a period of more than two years after the date when the order takes effect.
76(3)A probation order takes effect
(a) on the date on which the order is made, or
(b) where the defendant is sentenced to imprisonment, other than a sentence of imprisonment to be served intermittently or a sentence of imprisonment that commences on a day later than the day of sentencing, on the expiration of that sentence.
1990, c.18, s.38
Explanation and service of probation order
77(1)A judge shall, after making a probation order,
(a) cause the order to be read by or to the defendant,
(b) explain or cause to be explained to the defendant the purpose and effect of the order, and
(c) cause a copy of the order to be served on the defendant.
77(2)After the judge has complied with subsection (1), the defendant shall sign the order acknowledging receipt of a copy of the order and that the purpose and effect of the order have been explained.
77(3)Where the defendant is a corporation, the probation order may be read or explained to and signed by any person described by subsection 102(2) who is in court in behalf of the corporation and, without limiting section 101, service on that person is service on the corporation.
77(4)The failure of the defendant to sign a probation order in accordance with subsection (2) or (3) does not affect the validity of the order.
1990, c.18, s.39
Variation of probation order
78(1)A judge may, at any time, upon the application of the defendant or prosecutor with notice to the other, after a hearing or, with the consent of the defendant and the prosecutor, without a hearing, alter a probation order by
(a) making any changes in or additions to the conditions set out in the probation order that the judge considers desirable,
(b) relieving the defendant, either absolutely or upon such terms or for such period of time as the judge considers desirable, of compliance with any condition set out in the probation order, or
(c) terminating the probation order.
78(2)A judge who alters a probation order under subsection (1) shall
(a) sign the altered probation order,
(b) cause the defendant to be informed of the alteration, and
(c) cause a copy of the altered probation order to be served on the defendant.
Offence not to comply with probation order
79(1)A defendant who, while bound by a probation order, wilfully fails or refuses to comply with a condition of the probation order, commits a category F offence.
79(2)A judge imposing sentence for an offence under subsection (1) may, in addition to imposing any sentence that the judge may impose under paragraph 51(b) or (d),
(a) notwithstanding subsection 76(2), extend the existing probation order for a period of not more than one year, or
(b) terminate the existing probation order.
1990, c.18, s.40
Continuation of probation order where defendant imprisoned
80Where a defendant who is bound by a probation order is imprisoned in respect of an offence other than the offence in respect of which the probation order was made, the defendant remains bound by the probation order except in so far as the term of imprisonment renders it impossible for the time being for the defendant to comply with the order.
Enforcement of Fines
Fines
80.1For the purposes of the provisions of this Act relating to the payment and enforcement of fines, any reference to a fine shall be deemed to be a reference to the combined total of a fine imposed under this Act, any surcharge under the Victims Services Act and any administrative fee under subsection 46(1.1).
1990, c.18, s.41; 2007, c.33, s.5; 2008, c.29, s.8
Time for payment of fine
81Subject to section 84, a fine imposed on a defendant shall be paid to the office of the court
(a) if the amount of the fine is less than $1,200, within 90 days after its imposition, or
(b) if the amount of the fine is $1,200 or more, within 180 days after its imposition.
1990, c.18, s.42; 2009, c.29, s.3
Inquiries by the judge
82A judge may, if considering the means of enforcement of a fine, make such inquiries, on oath or solemn affirmation or otherwise, of and concerning the defendant as the judge considers necessary, but the defendant shall not be compelled to answer.
1990, c.18, s.43; 2009, c.29, s.4
Part payment
83Part payment of a fine shall not be accepted by the office of the court except
(a) if under paragraph 15(3)(b) the fixed penalty is applied towards discharge of the fine, or
(b) if the portion of the fine representing a surcharge imposed under the Victims Services Act is paid by a defendant who is applying for admission into a fine-option program referred to in section 85 for the purposes of discharging the outstanding balance of the fine.
1990, c.18, s.44; 2011, c.16, s.12
Order for immediate payment of fine
84(1)Where the judge is of the opinion that a defendant may, by leaving the Province or otherwise, attempt to evade payment of the fine, the judge may order immediate payment of the fine.
84(2)Where the defendant does not pay the fine immediately as ordered by the judge, the judge may issue a warrant of committal in prescribed form for the imprisonment of the defendant.
84(3)The defendant shall be detained under the warrant of committal issued under subsection (2) until
(a) the fine is paid,
(b) the defendant has entered into a recognizance in prescribed form, with or without sureties, in such amount and with such conditions as are appropriate, in the opinion of the judge, to ensure payment of the fine, or
(c) the defendant has been detained in custody for such time as would, taking into account any payment which may have been made in respect of the offence, discharge payment of the fine under subsection 91(3) and section 92.
1990, c.18, s.45
Fine-option program
85(0.1)The following definitions apply in this section.
“designated person” means any person designated by the Minister of Public Safety for the purposes of this section.(personne désignée)
“fine-option program” means a program under which the outstanding balance of a fine, as referred to in subsection (1), may be discharged by means of credit for work performed.(programme d’option-amende)
85(1)If the Lieutenant-Governor in Council has established by regulation a fine-option program and if the conditions prescribed by regulation are met, a defendant who has paid the portion of a fine representing a surcharge imposed under the Victims Services Act, if any, but who is unable to pay the outstanding balance of the fine may apply to be admitted into the fine-option program.
85(2)If a designated person is satisfied that the defendant satisfies the conditions referred to in subsection (1), the designated person may admit the defendant into a fine-option program.
85(2.1)A designated person shall not admit into a fine-option program a defendant who is detained under section 84.
85(2.2)A designated person may admit into a fine-option program a defendant who is in default of payment of the outstanding balance of a fine, as referred to in subsection (1), if the designated person is satisfied that action to enforce payment of the outstanding balance will be suspended while the defendant is in the fine-option program.
85(3)A designated person shall, when a defendant is admitted into a fine-option program, file with the office of the court a notice of the defendant’s admission into the program in the form determined by the Minister of Public Safety.
85(4)If a notice of admission is filed with the office of the court under subsection (3), no order or warrant shall subsequently be issued under section 87 unless a designated person files with the office of the court a notice, in the form determined by the Minister of Public Safety, of the defendant’s failure to discharge the outstanding balance of the fine in accordance with the fine-option program.
85(5)A notice of failure to discharge the outstanding balance of a fine shall state the amount of the fine that, taking into account the credits earned by the defendant for work performed under the fine-option program, remains outstanding.
85(6)A designated person shall file with the office of the court a notice of discharge of the outstanding balance of a fine, in the form determined by the Minister of Public Safety, when the defendant has discharged that outstanding balance under the fine-option program.
85(7)Where a notice of discharge of the outstanding balance of a fine is filed with the office of the court under subsection (6), the defendant shall be deemed to have paid the fine in full.
85(8)For greater certainty, a surcharge imposed under the Victims Services Act, whether included in the fixed penalty under paragraph 14(5)(c) or calculated by the judge under paragraph 46(1)(c), shall not be discharged under a fine-option program.
1990, c.18, s.46; 2011, c.16, s.13
Default of payment of fine
86A defendant is in default of payment of a fine if the fine has not been fully paid within the time set by section 81.
1990, c.18, s.47; 2009, c.29, s.5
Orders on default of payment of fine
87Where the defendant is in default of payment of a fine, a judge may, subject to subsections 54(3), 85(4) and 91(1.1) and as determined by the judge under paragraph 46(1)(d), issue
(a) an order for seizure and sale in accordance with section 88,
(b) a payment order in accordance with section 89,
(c) a suspension order in accordance with section 90,
(d) a warrant of committal in accordance with section 91.
1990, c.18, s.48; 1991, c.29, s.14; 2005, c.15, s.3
Orders of seizure and sale
88(1)An order for seizure and sale in prescribed form shall be directed to a sheriff, setting out
(a) the identity of the defendant who is in default of payment of the fine, and
(b) the amount of the fine that is due and payable.
88(2)Except as otherwise provided by regulation, the sheriff shall execute the order for seizure and sale and shall deal with the proceeds of the execution in the same manner as a sheriff is authorized to execute and deal with the proceeds of an order for seizure and sale issued out of The Court of Queen’s Bench of New Brunswick.
1991, c.29, s.15
Payment order
89(1)For the purposes of this section
“third party” means a person from whom money is, or will become, due and payable to the defendant.
89(2)A payment order in prescribed form shall direct a third party to pay to the office of the court the amount of the fine at such times and in such amounts of money as are set out in the payment order.
89(3)A judge who issues a payment order shall cause it to be served on the third party.
89(4)A third party who, having been served with a payment order, fails without reasonable excuse to comply with the order, commits a category E offence.
89(5)An amount of money paid by a third party under a payment order discharges, to the extent of the payment,
(a) the fine that is due and payable by the defendant, and
(b) the debt owing from the third party to the defendant.
89(6)The third party upon whom a payment order is served or the defendant may apply to the judge for variation or cancellation of the payment order.
89(7)Any assignment of wages or of debt made by a defendant, and any other transaction entered into by a defendant, is void if the assignment or other transaction is made or entered into for the purpose of avoiding compliance with a payment order.
89(8)An employer shall not dismiss, suspend, lay off, penalize, discipline or discriminate against an employee for any reason that is in any way related to the issuing of a payment order.
89(9)An employer who violates subsection (8) commits a category E offence.
89(10)This section binds the Crown in right of the Province.
Suspension order
90(1)In this section
“licence” means any licence, permit, registration, privilege or similar authorization held, enjoyed, issued or granted to the defendant under an Act;
“licensing authority” means the person or body that granted or issued the licence.
90(2)A suspension order may be issued in respect of a licence that is specified by regulation as subject to suspension for default of payment of a fine imposed for a prescribed offence.
90(3)A suspension order in prescribed form shall state that if the defendant does not pay the fine to the court within thirty days after the date of the suspension order the licence specified in the order shall be suspended as soon as that period expires.
90(4)Where the fine is not paid within the period stated in subsection (3), the licence is suspended and shall remain suspended until the fine is paid or otherwise discharged.
90(5)The licensing authority shall be notified of the suspension of any licence and of the termination of the suspension of any licence under subsection (4).
1990, c.18, s.49
Warrant of committal
91(1)Subject to subsection (1.1), a warrant of committal in prescribed form may be issued in relation to a defendant
(a) if an order for seizure and sale has been issued in respect of a defendant who is not a corporation, when the sheriff returns the order for seizure and sale to the office of the court accompanied by a statement in prescribed form to the effect that the order cannot be executed or that the execution of the order has not resulted in full payment of the fine,
(b) if a payment order has been issued, when payment is not made to the office of the court in accordance with the terms of the order,
(c) if a suspension order has been issued, when thirty days have elapsed from the date of service of the order and the fine has not been paid, and
(d) in any other case, when a defendant who is not a corporation is in default of payment of a fine.
91(1.1)A warrant of committal shall not be issued under subsection (1) if the proceedings were commenced by the filing of a notice of prosecution.
91(2)A warrant of committal is sufficient authority
(a) for a peace officer or sheriff to arrest the defendant and convey the defendant to a correctional institution for the purpose of committal under the warrant, and
(b) for the reception and detention of the defendant by officers of a correctional institution in accordance with the terms of the warrant.
91(3)Imprisonment under a warrant issued under subsection (1) shall be for three days, plus one day for each fifty dollars or part of fifty dollars of the fine, subject to a maximum period of one hundred and eighty days.
1990, c.18, s.50; 1991, c.29, s.16; 1992, c.41, s.4; 2005, c.15, s.4; 2009, c.29, s.6
Effect of payments on term of imprisonment
92(1)Where a warrant of committal is issued as a result of default of payment of a fine, the term of imprisonment calculated under subsection 91(3) shall, upon any payment being made in respect of the fine to the person who has lawful custody of the defendant, be reduced by a number of days bearing as nearly as possible the same proportion to the number of days in the term as the payment made bears to the total fine.
92(2)No amount offered in part payment of a fine shall be accepted unless it is sufficient to secure reduction of the term of imprisonment by one day, or some multiple thereof.
92(3)The person who has lawful custody of the defendant shall, when the fine is discharged, either by payment of the fine or by serving the term of imprisonment or partly in the one way and partly in the other, forward to the office of the court a notice in prescribed form of discharge of fine, accompanied by any payment received in respect of the fine.
Injunctions
Injunctions
93(1)Where a person has been charged with or convicted of an offence, the Attorney General may, through an agent instructed for the purpose, apply by way of Notice of Application to a judge of The Court of Queen’s Bench of New Brunswick for an injunction restraining the person charged with or convicted of the offence from committing or continuing to commit that offence in the future.
93(2)Where the judge of The Court of Queen’s Bench of New Brunswick is satisfied
(a) that it is probable that the person will in the future commit or continue to commit the offence, and
(b) that it is appropriate in all the circumstances, having regard to the provisions of this Act and the Act that creates the offence, and to the powers of a judge under either Act, that the person be restrained by injunction from committing or continuing to commit that offence in the future,
the judge of The Court of Queen’s Bench of New Brunswick may grant the injunction, upon such terms and for such duration as the judge may order in the injunction.
93(3)An injunction granted under this section may be enforced in the same manner as an injunction granted to enjoin a civil wrong.
III
GENERAL PROVISIONS
Parties to an offence
94(1)Every person who is a party to an offence may be charged with, convicted of and sentenced for that offence.
94(2)The following persons are parties to an offence:
(a) a person who commits an offence,
(b) a person who aids or abets another person in committing or otherwise being a party to an offence,
(c) a person at whose instigation another person commits or is otherwise a party to an offence,
(d) a person who participates in an agreement in consequence of which another person commits or is otherwise a party to an offence which was likely to result from the agreement,
(e) a person on whose behalf another person commits or is otherwise a party to an offence, unless
(i) the person first mentioned did not know that the offence was to be committed, or
(ii) the person first mentioned took reasonable steps to prevent the commission of the offence,
(f) a person who is the employer or principal of a person who, in the course of employment or agency, commits or is otherwise a party to an offence, unless the employer or principal establishes
(i) that the employer or principal did not know of or consent to the action or omission of the employee or agent, and
(ii) that the employer or principal exercised all due diligence to prevent the action or omission of the employee or agent,
(g) a person who, being an officer or director of a corporation that commits or is otherwise a party to an offence, directs, authorizes, assents to or acquiesces in the action or omission of the corporation, and
(h) a person who
(i) is the supervisor of some other person who, in the course of employment, commits or is otherwise party to an offence that the supervisor ought reasonably to have prevented from occurring, and
(ii) fails to exercise due diligence to prevent the action or omission of the person supervised.
94(3)For the purpose of establishing that a person is a party to an offence, it is not necessary that any person other than the person charged should have been specifically identified, charged or convicted as having committed or otherwise been a party to the offence, and it is sufficient to establish as a matter of evidence
(a) that an offence has been committed by some person, or
(b) that a person who cannot be convicted of an offence has done something which, if done by a person liable to conviction, would have constituted an offence.
1990, c.18, s.51
Limitation period
95Where an Act creates an offence but does not prescribe a limitation period within which proceedings may be commenced, proceedings shall be commenced within six months after the date on which the offence was, or is alleged to have been, committed.
Withdrawal of proceedings
96(1)A prosecutor may withdraw a charge at any time before the taking of evidence.
96(2)A withdrawal of a charge shall not be construed as a dismissal of the charge and shall not preclude the commencement of further proceedings in respect of the alleged offence within the applicable limitation period.
Stay of proceedings
97(1)The Attorney General or counsel instructed by the Attorney General for that purpose may, by direction to the court in which the proceedings are conducted, stay proceedings at any time before judgment.
97(2)When proceedings are stayed under subsection (1) any person who has entered into an undertaking or a recognizance in relation to the proceedings is released from the undertaking or recognizance.
97(3)The Attorney General may remove a stay by direction to the court in which the proceedings were stayed at any time within twelve months after the time the proceedings were stayed, and after the stay is removed the proceedings shall continue from the point they had reached when the stay was entered.
Jurisdiction to conduct proceedings and try defendant
98(1)Every judge has jurisdiction to conduct proceedings under this Act in relation to any offence committed anywhere within the Province.
98(2)Where the judge
(a) before whom the information was laid or with whom the notice of prosecution was filed, or
(b) by whom the plea of a defendant was taken,
has not begun to hear evidence, any judge may try the defendant.
Judge presiding at trial
99(1)Subject to subsection (2) and to section 22 of the Provincial Court Act, the judge presiding when evidence is first taken at a trial shall preside over the whole of the trial.
99(2)The judge may, on the request of the prosecutor or defendant or without a request, ask the chief judge to designate another judge to conduct the proceedings if it appears to the judge that it would be appropriate in the interests of justice to do so.
99(3)Subsection 22(2) of the Provincial Court Act applies to the judge designated by the chief judge under subsection (2) to conduct the proceedings.
Extension of time or limit
100Any period of time or limit prescribed by this Act or the regulations for doing anything other than commencing proceedings, removing a stay of proceedings under subsection 97(3) or resuming proceedings under subsection 110(8) may be extended by the judge before whom the proceedings are conducted, whether or not the prescribed time has expired.
Service of notices and documents
101(1)Except as otherwise provided by this Act or the regulations, any document served under this Act may be served personally or by mail.
101(1.1)Any document served under this Act may be served by serving
(a) the document itself, or
(b) a true copy of the document.
101(2)A document that is served personally may be delivered
(a) to the person personally or, if that person cannot conveniently be found, by leaving it at that person’s last known or usual place of residence with a person who appears to be an adult and who appears to reside there with the person to be served,
(b) in the case of a municipality, to the mayor, deputy mayor, chief administrative officer, clerk, assistant clerk or other chief officer of the municipality or to the solicitor for the municipality,
(b.1) in the case of a rural community, to the rural community mayor, rural community deputy mayor, chief administrative officer, rural community clerk, assistant clerk or other chief officer of the rural community or to the solicitor for the rural community, or
(c) in the case of any other corporation, to an officer, director, attorney for service or agent, or to the manager or a person who appears to be in control or management of any office or other place where the corporation carries on business in the Province.
101(3)Notwithstanding paragraph (2)(a), a ticket and an appearance notice may be served only by delivery to a person personally.
101(4)A notice or a document that is served by mail may be addressed
(a) where the person to be served is not a corporation, to that person’s last known or usual place of residence or business,
(b) where the person to be served is a corporation, to the corporation at its chief place of business or office or at any branch of the corporation or at the address of its attorney for service, or
(c) where the person to be served is the holder of a licence or permit issued under an Act administered by the Minister of Transportation and Infrastructure, to the address on record with the Registrar of Motor Vehicles.
101(5)Subject to subsection (6), where any document mailed in accordance with this section is received by the person to whom it was mailed, the date of receipt shall be deemed, in the absence of evidence to the contrary, to have been
(a) seven days after the date of mailing if the address to which it is mailed is within the Province, or
(b) ten days after the date of mailing if the address to which it is mailed is outside the Province.
101(6)Where a document is mailed by certified mail, a post office receipt bearing a signature which purports to be the signature of the person to whom the document was mailed is evidence
(a) that the document was served on that person, and
(b) that service was effected on the date indicated on the post office receipt.
101(7)Where a document is served on the counsel or agent of the defendant, the document shall be deemed, in the absence of evidence to the contrary, to have been served on the defendant.
101(8)Where a document is left at a person’s last known or usual place of residence in accordance with paragraph (2)(a), the document shall be deemed, in the absence of evidence to the contrary, to have been served on that person.
101(9)For the purposes of this Act, a document may be served inside or outside the Province and the consequences and procedures that apply under this Act following service of a document apply wherever service is effected.
101(10)Service of any document, including a summons, may be proved
(a) by a certificate in prescribed form of the person purporting to have served the document,
(b) by any other means expressly authorized by this Act, or
(c) by an affidavit, witness statement or any other means satisfactory to the judge,
and in the absence of evidence to the contrary, the contents of any certificate under paragraph (a) shall be deemed true.
1990, c.18, s.52; 1991, c.29, s.17; 2005, c.7, s.64; 2010, c.31, s.110
Counsel or agent
102(1)A defendant may appear and act personally or by counsel or agent.
102(2)A defendant that is a corporation shall appear and act by counsel or agent or by an officer or director of the corporation.
102(3)The judge may bar from appearing as an agent a person who is not a barrister and solicitor entitled to practise in New Brunswick if the judge finds that, having regard to the issues involved, the person is not competent properly to represent or advise the defendant or does not understand or comply with the duties and responsibilities of an agent.
1990, c.18, s.53
Interpreters
103(1)A judge may authorize a person to act as an interpreter in proceedings under this Act.
103(2)A person authorized to act as an interpreter shall, before commencing interpretation in proceedings, take the oath or make the solemn affirmation prescribed by regulation.
1990, c.18, s.54
Exception, exemption, proviso, excuse or qualification
104The burden of proving that any exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor
(a) is not required to set out or negative in any document the exception, exemption, proviso, excuse or qualification, and
(b) is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant.
Defect in the proceedings
105(1)In this section
“defect in the proceedings” includes any failure of a judge to exercise jurisdiction or to appear at the time and place to which proceedings are adjourned and every other defect of procedure that, but for this section, might deprive the judge of jurisdiction.
105(2)No defect in the proceedings deprives a judge of jurisdiction.
1990, c.18, s.55
Defect in a document
106(1)In this section
“defect in a document” includes any error, omission or want of particularity in a document, any failure of a document to comply with the requirements of this Act, any discrepancy between the contents of a document and the evidence that is given at trial, and every defect that but for this section, might make a document invalid;
“document” includes a purported document.
106(2)No defect in a document makes that document invalid.
106(3)Where it appears to a judge, on objection by a defendant or otherwise, that a document contains a defect that is not a material defect, the judge shall permit the curing of the defect by
(a) the providing of further particulars or other necessary material, or
(b) the making of an amendment to the document.
106(4)Where it appears to a judge, on objection by a defendant or otherwise, that a document contains a defect that is a material defect, the judge shall, subject to subsection (5), permit the curing of the defect by
(a) the providing of further particulars or other necessary material, or
(b) the making of an amendment to the document.
106(5)No curing of a defect under subsection (4) shall be permitted if
(a) the defect was such as to mislead the defendant,
(b) substantial injustice would be caused to the defendant by curing the defect, and
(c) the injustice that would be caused to the defendant by curing the defect cannot be overcome by the granting of an adjournment.
106(6)Where a defect in a document is cured under this section, proceedings shall continue as though the document had originally
(a) contained the further particulars or other material provided, or
(b) been in the form to which it is amended.
106(7)Where a document contains a defect that cannot be cured under this section, the judge shall order the document to be withdrawn.
106(8)Subsection (7) does not prevent a further document from replacing the document withdrawn if that further document can be prepared in accordance with this Act.
106(9)Once the defendant’s plea has been taken, an objection to a document may only be made with the leave of the judge.
1990, c.18, s.56
Duplicitous count
107For the purposes of section 106,
(a) a count that is duplicitous contains a defect, and the question of whether or not the defect can be cured shall be determined in accordance with section 106,
(b) a count that, using the words of an Act to describe the offence with which the defendant is charged, states in disjunctive form things which appear in disjunctive form in the Act and that are ejusdem generis is not duplicitous and does not contain a defect, and for the purposes of a prosecution it is sufficient to establish that the defendant did any of the things so stated.
1990, c.18, s.57
Reference to provision made offence by separate provisions
107.1Where a violation of or a failure to comply with a provision of an Act is made an offence by separate provisions of that Act, any information or other document in which the offence is charged may refer to either or both of those provisions as the provision under which the offence was committed.
1990, c.61, s.1
Joining or separation of counts, informations and trials
108(1)Where it appears to the judge, before trial, on hearing the defendant and the prosecutor, that it would be appropriate in the interests of justice to do so, the judge may direct that separate counts or informations be tried together or, with the consent of the prosecutor, direct that persons who are charged separately be tried together.
108(2)Where it appears to the judge, before or during the trial, on hearing the defendant and the prosecutor, that it would be appropriate in the interests of justice to do so, the judge may direct that separate counts or informations be tried separately or that persons who are charged jointly or are being tried together be tried separately.
Adjournments
109(1)The judge may, from time to time, adjourn proceedings but, where the defendant is in custody, an adjournment shall not be for a period longer than eight days without the consent of the defendant.
109(2)Proceedings that are adjourned for a period may be resumed before the expiration of the period with the consent of the defendant and the prosecutor.
Capacity of defendant to conduct defence
110(1)Where the judge has reason to believe that the defendant is unable by reason of mental illness or incapacity to conduct a defence to a charge, the judge may adjourn the proceedings, without fixing a time for their resumption, and order the defendant to attend a psychiatric facility for examination.
110(2)Where it appears to the judge that the defendant may not attend, or has not attended, a psychiatric facility in accordance with an order under subsection (1), the judge may issue a warrant in prescribed form authorizing
(a) the arrest of the defendant,
(b) the conveyance of the defendant to a psychiatric facility, and
(c) the detention of the defendant in the psychiatric facility for the purposes of observation and examination for a period not exceeding seventy-two hours.
110(3)A judge shall not make an order under subsection (1) or issue a warrant under subsection (2) without first ascertaining that the services of a psychiatric facility are available to the defendant.
110(4)A written report shall be forwarded to the judge as to the results of the observation and examination within five days after the examination.
110(5)The written report forwarded to the judge under subsection (4) shall form part of the record of the proceedings.
110(6)The judge shall consider the report and shall resume the proceedings if the judge is satisfied that the defendant is capable of conducting a defence.
110(7)The prosecutor or the defendant may apply to the judge to resume proceedings adjourned under subsection (1), and where the proceedings are resumed the judge may again take action under this section if it appears to the judge that the defendant is unable by reason of mental illness or incapacity to conduct a defence.
110(8)No application by the prosecutor to resume proceedings adjourned under this section shall be made more than six months after the date of the first adjournment under subsection (1).
110(9)This section does not limit the authority of a person acting under the Mental Health Act to make an application to have the defendant admitted to a psychiatric facility.
1990, c.18, s.58
Exceptions to proceedings held in open court
111(1)All proceedings under this Act that a defendant is required to attend shall be held in open court.
111(2)Notwithstanding subsection (1), where a judge is of the opinion that it would be in the interests of public morals, the maintenance of order, the proper administration of justice or the protection of the reputation of a minor, the judge may
(a) order the exclusion of the public or any member of the public from the court room for all or part of the proceedings, or
(b) order the removal of a person whose influence might affect the testimony of a witness.
111(3)Where a judge considers it necessary to do so to protect the reputation of a minor, the judge may make an order prohibiting the publication or broadcast by any means or medium of
(a) the identity of the minor, or
(b) the evidence or any part of the evidence taken during the proceedings in which the name of the minor or any information serving to identify the minor is disclosed.
111(4)Nothing in this section limits the powers of a judge under section 21 of the Provincial Court Act.
1990, c.18, s.59
Warrants
112(1)A warrant issued by a judge under this Act, except a search warrant and a warrant endorsed under section 113, remains in full force until executed unless earlier cancelled or revoked by a judge, and may be executed at any place within the Province.
112(2)A judge who cancels or revokes a warrant shall take reasonable steps to recover the warrant.
Warrant issued in reciprocating province or territory
113(1)In this section
“reciprocating province or territory” means a province or territory of Canada designated by regulation as a province or territory in which legislation substantially similar to this section exits.
113(2)Where a warrant for the arrest of a person as a defendant has been issued by a court of competent jurisdiction in a reciprocating province or territory and it is believed that the person to whom the warrant relates is in New Brunswick, the warrant may be presented to a judge for endorsement and the judge may endorse the warrant in accordance with the regulations.
113(3)A warrant endorsed under subsection (2) is sufficient authority
(a) for a peace officer to arrest the person to whom the warrant relates,
(b) for a peace officer to deliver that person to a person authorized to execute the warrant in the reciprocating province or territory, and
(c) for the person authorized to execute the warrant in the reciprocating province or territory to remove the person arrested from the Province.
113(4)A judge who endorses a warrant under subsection (1) shall specify in the warrant the date and time by which the person to whom the warrant relates is to be arrested.
1990, c.18, s.60
Certificates of acquittal and conviction
114(1)An authorized person shall, on request by any person, issue a certificate of conviction or a certificate of acquittal in prescribed form relating to a defendant.
114(2)A certificate of conviction or a certificate of acquittal purporting to be signed by an authorized person is, without proof of the authorized person’s appointment, authority or signature, admissible in evidence and is prima facie proof
(a) that the person named in the certificate was acquitted or convicted, as the case may be, of the offence referred to in the certificate, and
(b) of any other facts stated in the certificate.
114(3)A copy of a record of disposition that is certified by an authorized person to be an accurate copy of a record of disposition may be used in place of a certificate of conviction or a certificate of acquittal, and with the same legal effect.
1990, c.18, s.61
Administrative fees, fines and fixed penalties
115(1)All administrative fees payable under subsection 46(1.1) that are received under this Act and all fines received under this Act shall be forwarded to the Minister of Finance.
115(2)Subject to subsections (3), (4) and (5), all fixed penalties received under this Act shall be forwarded to the Minister of Finance.
115(3)Where payment of a fixed penalty recovered for the breach of a by-law of a municipality or rural community is accepted under this Act by the municipality or rural community, the municipality or rural community shall retain the fixed penalty.
115(4)Where payment of a fixed penalty is accepted under this Act by Service New Brunswick, Service New Brunswick shall retain that portion of the fixed penalty representing the administrative fee referred to in paragraph 14(5)(d) and shall
(a) in the case of a fixed penalty recovered for the breach of a by-law of a municipality or rural community, forward the remainder of the fixed penalty to the municipality or rural community, and
(b) in any other case, forward the remainder of the fixed penalty to the Minister of Finance.
115(5)Where payment of a fixed penalty recovered for the breach of a by-law of a municipality or rural community is accepted under this Act by a person other than Service New Brunswick or the municipality or rural community,
(a) the fixed penalty shall be forwarded to the Minister of Finance, who shall retain that portion of the fixed penalty representing the administrative fee referred to in paragraph 14(5)(d) and pay the remainder of the fixed penalty to the municipality or rural community, or
(b) the portion of the fixed penalty representing the administrative fee referred to in paragraph 14(5)(d) shall be forwarded to the Minister of Finance and the remainder of the fixed penalty shall be forwarded to the municipality or rural community directly.
1990, c.18, s.62; 2005, c.7, s.64; 2007, c.33, s.6; 2008, c.29, s.8
IV
APPEALS AND SETTING ASIDE
1990, c.18, s.63
Appeals
116(1)For the purposes of an appeal under this Act, sections 812 to 839, except sections 814, 826 and 827 and subsections 830(4), 839(3) and 839(5) of the Criminal Code apply, with the necessary modifications.
116(2)Where, on an appeal under subsection (1), any matter concerning the interpretation of the Canadian Charter of Rights and Freedoms is in issue, the appellant or the respondent may, with leave of the appellate court, introduce evidence related to that issue notwithstanding that the evidence was not introduced at the trial.
116(3)Notwithstanding subsection (1), the defendant, the prosecutor or the Attorney General may, with leave of the Court of Appeal or a judge of that Court, appeal directly to the Court of Appeal against a conviction, acquittal, dismissal, order or determination by a judge on a ground of appeal that involves a question of law alone.
116(4)Every person who is granted leave to appeal under subsection (3) shall be taken to have abandoned all rights of appeal under subsection (1).
1990, c.18, s.64
Setting aside of conviction
117(1)Where the judge, acting under subsection 16(1), paragraph 28(1)(a) or (b) or subsection 29(1) or (1.1), convicts the defendant in the defendant’s absence, the judge may
(a) on application by the defendant not later than forty-five days after the conviction, and
(b) if satisfied that the defendant’s failure to appear occurred through no fault of the defendant,
set aside the conviction, accept a plea from the defendant and fix a time and place for trial.
117(1.1)If a judge convicts a defendant, in the defendant’s absence, of an offence charged in a ticket, the judge may set aside the conviction if the notice of prosecution was filed with the judge after payment of the fixed penalty set out in the ticket.
117(1.2)For greater certainty, subsection (1.1) does not apply to a conviction under subsection 14(8) resulting from the payment of a fixed penalty.
117(2)Where a conviction is set aside under subsection (1) or (1.1), the judge shall, on request, give the defendant a certificate in prescribed form stating that fact, and the judge shall revoke any warrant or order that has been issued under this Act relating to that conviction.
117(3)A conviction shall not be set aside under subsection (1) unless the prosecutor has been given an opportunity to oppose the application.
1990, c.18, s.65; 2009, c.29, s.7; 2011, c.16, s.14
V
ARREST, BAIL AND SEARCH AND
SEIZURE
Arrest
Arrest under a warrant and bringing defendant before judge
118(1)A peace officer who has possession of a warrant issued under this Act for the arrest of a defendant may arrest the defendant.
118(2)A peace officer may arrest any defendant for whose arrest the peace officer believes, on reasonable and probable grounds, a warrant has been issued under this Act notwithstanding that the peace officer does not have possession of the warrant.
118(3)A defendant who is arrested under subsection (1) or (2) shall be brought before a judge within twenty-four hours of the arrest or as soon after that period of time as is practicable.
1990, c.18, s.66
Arrest without a warrant
119(1)A peace officer who has reasonable and probable grounds to believe that a person is committing or has committed an offence may arrest that person without warrant if the peace officer has reasonable and probable grounds to believe that the arrest of the person is necessary in the public interest.
119(2)The peace officer, when considering whether it is necessary in the public interest to arrest a person, shall consider all of the circumstances, including the need to
(a) establish the identity of the person,
(b) secure or preserve evidence of or relating to the offence,
(c) prevent the continuation or repetition of the offence or the commission of another offence, or
(d) prevent the person from evading, by leaving the Province or otherwise, the jurisdiction of the court, whether in relation to the prosecution of the offence or the enforcement of sentence.
1990, c.18, s.67
Assistance to a peace officer
120(1)Any person who sees a person who is escaping from and freshly pursued by a peace officer may provide such assistance as will enable the peace officer to apprehend that person for the purpose of arrest.
120(2)A person may provide assistance under subsection (1) notwithstanding that the peace officer did not call upon the person for assistance.
120(3)A person acting under subsection (1) shall be deemed for the purposes of this section to be an officer of the law under the Protection of Persons Acting Under Statute Act, whether or not that person is a peace officer.
Use of force or other powers of arrest
121(1)Every person acting under section 118, 119 and 120 and every person upon whom a peace officer calls for assistance may use as much force as is reasonably necessary to do what is required or authorized by law to be done.
121(2)The powers of arrest of a peace officer under this Act do not limit any power of arrest of a peace officer existing apart from this Act.
Notice to person arrested
122A peace officer who arrests a person shall promptly inform that person of the reason for the arrest and of the right to retain and instruct counsel without delay.
Release after arrest by peace officer
123(1)Where a person is arrested without warrant, the peace officer shall, as soon as practicable, release that person unless the peace officer has reasonable and probable grounds to believe that it is necessary in the public interest, having regard to all of the circumstances including those circumstances referred to in paragraphs 119(2)(a), (b), (c) and (d), for the defendant to be detained.
123(2)A peace officer who releases a person under subsection (1) may serve that person with a ticket or an appearance notice.
Release after arrest by officer in charge or peace officer
124(1)In this section
“officer in charge” means the peace officer who is in charge of the lock-up or other place to which a person arrested is taken after arrest.
124(2)Where a person arrested is not released under section 123, the peace officer shall deliver that person to the officer in charge.
124(3)Where the officer in charge is in a position of authority over the peace officer who made the arrest and is of the opinion that it is no longer necessary in the public interest, having regard to all of the circumstances including those circumstances referred to in paragraphs 119(2)(a), (b), (c) and (d), to detain the person arrested, the officer in charge shall release the person and may serve the person with an appearance notice or a ticket.
124(4)Where the officer in charge is not in a position of authority over the peace officer who made the arrest and is of the opinion that it is no longer in the public interest to detain the person arrested, the officer in charge shall notify the peace officer who made the arrest so that the peace officer may determine whether the person arrested should be released in accordance with section 123.
124(5)Where a person is detained for the reason only that it is believed that the person may otherwise evade the jurisdiction of the court, the officer in charge or, in a case where subsection (4) applies, the peace officer who made the arrest, may release that person on serving an appearance notice or a ticket if the person deposits with the officer in charge or the peace officer
(a) a sum of money in an amount equal to the minimum fine set for the offence or, where no minimum fine is set for the offence, a sum of money in an amount not exceeding two hundred and fifty dollars, or
(b) some other satisfactory security.
1990, c.18, s.68
Defendant brought before judge
125A defendant who is not released under section 123 or 124 shall be brought before a judge within twenty-four hours of the arrest or as soon after that period of time as is practicable.
1990, c.18, s.69
Bail
Commencement of proceedings
126(1)Where a defendant is brought before a judge under section 125 and
(a) an information has not been laid, and
(b) a ticket has not been served,
an information shall be laid before the judge proceeds under section 17.
126(2)Where a defendant is brought before a judge under section 125, and a ticket has been served on the defendant but the notice of prosecution has not been filed, the notice of prosecution shall be filed before the judge proceeds under section 17.
Use of interpreter
127(1)Where a defendant is brought before a judge under section 118 or 125, the judge may, notwithstanding section 20, with the consent of the defendant, use an interpreter to take the defendant’s plea and to proceed under section 128.
127(2)Where the defendant does not consent to the use of an interpreter under subsection (1), the judge shall order the defendant detained in custody and adjourn the proceeding in accordance with section 20 to a working day not later than the third working day after the date of the adjournment.
1990, c.18, s.70
Orders to ensure attendance of defendant
128(1)Where the defendant is brought before the judge under section 118 or section 125 and the judge considers that the defendant should be required to answer to the charge, the judge shall, unless a plea of guilty is taken and subject to subsections (2), (3), (8) and 127(2), release the defendant on the defendant’s entering into an undertaking, in prescribed form, to appear at such times and places as may be set by the judge.
128(2)Where the prosecutor, having been given an opportunity to do so, satisfies the judge that it is necessary in the public interest that the defendant be detained in custody, the judge shall order the defendant to be detained in custody to be dealt with according to law.
128(3)Where the judge is not satisfied in accordance with subsection (2) but is satisfied that the taking of a recognizance or a deposit is required in order to ensure the attendance of the defendant in court, the judge may require the defendant, in addition to entering into the undertaking referred to in subsection (1)
(a) to enter into a recognizance, in prescribed form, with or without sureties, in such amount and with such conditions, if any, as are in the opinion of the judge appropriate to ensure the attendance of the defendant in court, or
(b) to deposit with the judge
(i) a sum of money in an amount not exceeding the maximum fine set for the offence and not less than the minimum fine, if any, set for the offence, or
(ii) some other satisfactory security.
128(4)Where any other Act requires or permits a defendant to deposit with a judge or elsewhere anything that may be forfeited if the defendant does not appear in court, the judge may take that Act and anything that may be or has been done under that Act into consideration in determining what action to take under this section.
128(5)The judge shall record the reasons for the decision made under this section.
128(6)In proceedings under this section, the judge may receive and rely on such information as the judge considers credible or trustworthy in the circumstances of each case.
128(7)A judge may, before or at any time during the course of proceedings under this section, on application by the prosecutor or defendant, adjourn the proceedings, and any such adjournment shall be to a working day not later than the fourth working day after the date of the adjournment.
128(8)The defendant shall be detained in custody during any adjournment made under subsection (7).
1990, c.18, s.71
Trial date when defendant in custody
129Where a defendant is not released from custody under section 128, the judge shall fix as the date for the defendant’s trial a day not later than eight days from the date of the order made under subsection 128(2).
Application for review
130A defendant or a prosecutor may apply for a review of an order or a refusal to make an order under section 128, and sections 520 and 521 of the Criminal Code apply, with the necessary modifications.
1990, c.18, s.72
Enforcement of recognizance
131For the purposes of enforcement of a recognizance under this Act, sections 762 to 773 of the Criminal Code apply, with the necessary modifications.
1990, c.18, s.73
Forfeiture of deposit
132(1)Where the defendant does not appear in response to a ticket, appearance notice or undertaking, any sum of money or other satisfactory security deposited with the officer in charge or a peace officer under subsection 124(5) or with a judge under subsection 128(3) is forfeited to the Crown, in right of the Province, and shall be forwarded to the Minister of Finance.
132(2)Where a forfeiture under subsection (1) has occurred, the judge may order the proceedings against the defendant stayed.
1990, c.18, s.74
Search and Seizure
Search of a person
133(1)A peace officer may search a person who consents to the search.
133(2)A peace officer may search a person as an incident of arrest.
1990, c.18, s.75
Search of a place, container or vehicle
134(1)A peace officer may search any place, container or vehicle with the consent of a person who is present and apparently has authority to consent to the search.
134(2)A peace officer may search any place, container or vehicle when authorized to do so by a search warrant.
Search of a vehicle or container without warrant
135(1)A peace officer may search, without warrant, any vehicle or container if the peace officer believes, on reasonable and probable grounds, that there is in or upon the vehicle or container an item of evidence and that it is impracticable in the circumstances to obtain a search warrant.
135(2)Where the vehicle referred to in subsection (1) is moving, the peace officer may stop it.
135(3)An operator of a vehicle who fails or refuses to comply with a signal to stop made by a peace officer for the purposes of this section commits a category F offence.
Seizures
136(1)A peace officer may seize
(a) any item of evidence the peace officer finds during a lawful search,
(b) any item of evidence found in plain view in a place where the peace officer lawfully is, and
(c) any weapon or any implement that could be used to effect an escape that the peace officer finds during a search under subsection 133(2).
136(2)Where a person who is a peace officer by virtue of paragraph (b) of the definition “peace officer” finds
(a) during a lawful search, or
(b) in plain view in a place where that person lawfully is,
an item of evidence in respect of an offence under an Act that the peace officer is not authorized to enforce, the peace officer may seize it.
Limitations on powers to search
137A peace officer has no power to search any person, place, vehicle or container for an item of evidence except
(a) the powers given under this Act,
(b) the powers given by any other Act which authorizes a search to be carried out in accordance with this Act, and
(c) the powers given under
(i) section 56.4 of the Crown Lands and Forests Act,
(ii) sections 21.2 and 21.3 of the Fish and Wildlife Act,
(ii.1) subsection 25(2) of the Protected Natural Areas Act,
(iii) section 33 of the Quarriable Substances Act, and
(iv) sections 46 and 47 of the Species at Risk Act,
(d) any powers given by common law or statute in relation to persons lawfully detained or held in lawful custody.
1991, c.Q-1.1, s.42; 2003, c.P-19.01, s.40; 2004, c.12, s.54; 2012, c.6, s.82
Application for search warrant
138(1)A peace officer who has reasonable and probable grounds to believe that there is an item of evidence in or upon any place, container or vehicle may apply to a judge for a search warrant.
138(2)An application for a search warrant shall be made, on oath or solemn affirmation,
(a) in person, or
(b) by telephone or other means of telecommunication, to a judge designated by the chief judge, where the application is made in relation to a prescribed offence and it is impracticable for the peace officer to appear before a judge in person.
138(3)Where an application is made under paragraph (2)(b), the judge may administer the oath or solemn affirmation by telephone or other means of telecommunication.
1990, c.18, s.76
Warrants and telewarrants
139(1)Where the judge is satisfied that there are reasonable and probable grounds to believe that there is in or upon any place, container or vehicle an item of evidence, the judge may issue a search warrant in prescribed form.
139(2)The judge shall designate in the warrant a named court as the court at which a report under subsection 142(1) or (3) is to be filed.
139(3)The court designated as the named court under subsection (1) shall be
(a) in the case of an application under paragraph 138(2)(a), the court of the judge who issues the warrant, or
(b) in the case of an application under paragraph 138(2)(b), the court the judge considers appropriate.
139(4)Where an application is made under paragraph 138(2)(b), the judge shall, before issuing the search warrant, be satisfied that it is reasonable in the circumstances to dispense with the personal appearance of a peace officer, and where such a search warrant is issued, the judge shall
(a) direct the peace officer to complete a facsimile of the search warrant in the manner directed by the judge, and
(b) send or cause to be sent to the named court a copy of the search warrant issued under subsection (1), together with a record of the application in prescribed form.
139(5)A facsimile completed by a peace officer under paragraph (2)(a) shall be deemed to be a search warrant for the purposes of this Act.
1990, c.18, s.77
Expiration and execution of search warrant
140(1)Every search warrant shall specify the dates and times during which it may be executed.
140(2)Every search warrant shall describe in general or specific terms the items of evidence for which it authorizes a search to be made.
140(3)A search warrant may be executed on any day, including a holiday, unless the judge by the search warrant specifies otherwise.
140(4)A peace officer executing a search warrant shall,
(a) before making the search or as soon after as practicable, give a copy of the search warrant to a person who is present and ostensibly in control of the place, container or vehicle being searched, or
(b) if no one is present and ostensibly in control of the place, container or vehicle searched, leave a copy of the search warrant in a prominent position on, in or near the place, container or vehicle searched.
140(5)Any peace officer may execute a search warrant and if the judge so authorizes may be accompanied and assisted by a person who has special knowledge or expertise which is relevant to the purposes of the search.
1990, c.18, s.78
Procedure when things seized
141Where any thing is seized in the execution of a search warrant issued under this Act, the peace officer shall
(a) where the Act under which the offence is believed to have been committed provides a procedure for dealing with things that have been seized, deal with the thing seized in accordance with that Act, or
(b) where no such procedure is provided, detain the things or deliver them to the named court pending the judge’s order under section 143.
1990, c.18, s.79
Filing of copy of search warrant and written report
142(1)A peace officer who has executed a search warrant shall, as soon as practicable, file with the named court a copy of the warrant and a written report in prescribed form.
142(2)The report referred to in subsection (1) shall contain details of the results of the search and seizure including
(a) a statement of the time and date the search warrant was executed,
(b) a statement of the things, if any, that were seized under the search warrant,
(c) a statement of the things, if any, that were seized under this Act in addition to the things described in the search warrant, together with a statement of the peace officer’s grounds for believing that those additional things are items of evidence or things to which paragraph 136(1)(c) or subsection 136(2) applies, and
(d) a statement of the procedure by which the things are being dealt with under paragraph 141(a) if that paragraph applies or if paragraph 141(b) applies and the things seized have not been delivered to the named court, a statement of the location where they are being detained.
142(3)A peace officer who is unable to execute a search warrant shall file with the named court a report stating the reason why the search warrant was not executed.
1990, c.18, s.80
Seizure without warrant
142.1Where any thing is seized under this Act otherwise than in the execution of a search warrant, section 141 and subsection 142(1) apply with the following modifications:
(a) the things seized, if they are delivered to a court, may be delivered to any court,
(b) a report of the seizure, in prescribed form, shall be delivered to the same court.
1990, c.18, s.81
Disposition of things seized
143(1)Subject to paragraph 141(a), where any thing is seized under this Act, the judge shall by order in writing
(a) detain it or give directions in relation to its detention, or
(b) if the judge is satisfied that it is not required for the purposes of proceedings, direct that it be returned to a person lawfully entitled to it.
143(2)On the application of the defendant, the prosecutor or a person having an interest in a thing detained under subsection (1), or without an application, a judge may make an order for the examination, testing, inspection or reproduction, upon such conditions as the judge may direct, of any thing detained.
143(3)Nothing shall be detained under an order made under subsection (1) for a period of more than three months after the time of seizure unless
(a) on application, a judge is satisfied that, having regard to the nature of the investigation, the further detention of the thing seized for a specified period is appropriate and the judge so orders, or
(b) before the expiration of that period, proceedings are commenced in which the thing detained may be required.
143(4)On the application of a person having an interest in a thing detained under subsection (1), and on notice to the defendant, the person from whom the thing was seized, the person to whom the search warrant was issued and any other person who has an apparent interest in the thing detained, a judge may make an order for the release of any thing detained to the person from whom the thing was seized where it appears that the thing detained is no longer necessary for the purpose of an investigation or proceedings and that the release of that thing to that person would not produce an unlawful situation or be otherwise contrary to public policy.
143(5)Where an order under subsection (4) for the release of a thing detained would produce an unlawful situation or be otherwise contrary to public policy, the judge may order the release of the thing detained to the person who made the application under subsection (4) if the order would not produce an unlawful situation or be otherwise contrary to public policy.
143(6)Where an order under subsection (4) or (5) for the release of a thing detained would produce an unlawful situation or be otherwise contrary to public policy or where any thing detained has not been released or returned under this section before the expiration of six months after its detention and the thing detained is no longer required for the purposes of the proceedings, the judge may order the thing to be disposed of and cause the proceeds of the disposal, if any, to be forwarded to the Minister of Finance.
143(7)An appeal lies from an order or refusal to make an order under this section in the same manner as an appeal from a conviction or acquittal under this Act.
1990, c.18, s.82
Solicitor-client privilege
144Where a person conducting a lawful search is about to examine or seize a document that is in the possession of a lawyer and a solicitor-client privilege is claimed on behalf of a named client in respect of the document, section 488.1 of the Criminal Code applies, with the necessary modifications.
1990, c.18, s.83
Publication or broadcasting of information relating to a search warrant
145(1)Subject to subsection (2), where a search warrant is issued under this Act or a search is made under a warrant issued under this Act, every person who publishes or broadcasts in any way any information with respect to
(a) the location of the place searched or to be searched, or
(b) the identity of any person who is or appears to be in occupation, possession or control of that place or who is suspected of being involved in any offence in relation to which the warrant was issued,
without the consent of every person referred to in paragraph (b), commits a category F offence, unless a charge has been laid in respect of any offence in relation to which the warrant was issued.
145(2)A judge may, by order, allow a person to publish or broadcast any information referred to in subsection (1) where, in the opinion of the judge, there is a compelling public interest in doing so.
VI
REGULATIONS
Regulations
146(1)The Lieutenant-Governor in Council may, on the recommendation of the Attorney General, make regulations
(a) authorizing persons to perform specified functions under this Act;
(b) specifying offences to be prescribed offences;
(c) prescribing the form of any document that is required by this Act to be in prescribed form;
(d) prescribing the form of other documents for use under this Act;
(e) prescribing for the purposes of paragraph 10(2)(a) the wording which may be used in a ticket and notice of prosecution to describe the offence with which a defendant is charged;
(e.1) prescribing an administrative fee for the purposes of paragraph 14(5)(d) or subsection 46(1.1);
(f) prescribing the wording of statements to be read to the defendant under section 18;
(g) respecting the time, place and manner of payment of a fixed penalty;
(h) respecting the practice and procedure in connection with the appointment of commissioners under section 38, the taking of evidence by commissioners, the certifying and the return of the evidence and the use of the evidence in proceedings under this Act;
(i) respecting conditions included in a probation order under paragraph 74(3)(a);
(j) Repealed: 1990, c.18, s.84
(k) establishing a fine-option program and specifying the part or parts of the Province in which it is in force;
(l) respecting admission into a fine-option program;
(m) respecting classes of work in a fine-option program and the conditions under which the work is to be performed;
(n) prescribing a system of credits to discharge payment of a fine under a fine-option program;
(o) prescribing the rate at which credits are earned under the fine-option program;
(p) specifying licences that are subject to suspension for default of payment of a fine and prescribing for each licence the offences in respect of which a suspension of the licence may be ordered;
(q) respecting the manner of executing and dealing with the proceeds of orders for seizure and sale;
(r) designating a province or territory as a reciprocating province or territory;
(r.1) prescribing the wording to be used for the endorsement of a warrant under section 113;
(s) prescribing the oath or the solemn affirmation to be taken or made by an interpreter;
(t) prescribing a table of attendance money for witnesses;
(u) respecting returns to be made by a judge under this Act;
(v) respecting the records to be kept under this Act and the persons by whom they are to be kept;
(w) generally, for the administration of this Act.
146(2)Regulations made under paragraph (1)(a) may authorize persons by name or by class or description, and may make those persons authorized persons for the purposes of all or any of the provisions of this Act, as stated in the regulations.
146(3)Regulations made under paragraph (1)(b) shall specify the provisions of this Act for which an offence is a prescribed offence and may
(a) specify offences by class or description to be prescribed offences, and
(b) specify that all offences created by an identified Act are prescribed offences.
146(4)Regulations made under paragraph 1(c) or (d) may prescribe different forms of a document to be used in different circumstances or in relation to different offences.
146(5)Regulations made under paragraph 1(c) or (d) may combine documents in a single form, and may include in a document additional material beyond what this Act requires the document to contain.
146(6)Where regulations made under paragraph (1)(d) prescribe the form of a document for use under this Act, the prescribed form of the document shall be used.
146(6.1)A prescribed form document may be used with modifications if circumstances require.
146(7)Where this Act requires a document in prescribed form to contain certain material, the document may comply with that requirement in whole or in part by referring to, and attaching a copy of, some other document in prescribed form which contains that material.
1990, c.18, s.84; 1991, c.29, s.18; 2007, c.33, s.7
Rules
147The Lieutenant-Governor in Council, on the recommendation of the Attorney General, may make rules
(a) respecting appeals from convictions, acquittal or sentence;
(b) respecting forms required for an appeal;
(c) respecting the custody and detention of exhibits filed with a judge that may be required for the purposes of an appeal.
VII
COMMENCEMENT AND TRANSITION
Repeal of Summary Convictions Act
148(1)The Summary Convictions Act, chapter S-15 of the Revised Statutes, 1973, is repealed.
Transition
148(2)Notwithstanding subsection (1), any proceedings commenced under the Summary Convictions Act before the commencement of this Act shall be disposed of as though the Summary Convictions Act had not been repealed.
148(3)Notwithstanding subsection (1), where the summons part of a traffic ticket has been served under the Motor Vehicle Act but the information part of the traffic ticket has not been filed with a judge before the commencement of this section, proceedings in respect of the offence shall be deemed to have been commenced by the service of the summons part of the traffic ticket and the information part of the traffic ticket may be filed with a judge and the proceedings shall be disposed of as though the Summary Convictions Act had not been repealed.
1990, c.18, s.85; 1991, c.29, s.19
Transition
149(1)Where, after the commencement of this Act, any Act, regulation or by-law refers to the Summary Convictions Act, that reference shall be deemed to be a reference to this Act.
149(2)Where, after the commencement of this Act, any Act, regulation or by-law refers to a summary conviction, that Act, regulation or by-law shall be deemed to refer to a conviction under this Act.
149(3)Where, after the commencement of this Act, any Act, regulation or by-law provides that a person who is in default of payment of a fine is liable to imprisonment in accordance with subsection 31(3) of the Summary Convictions Act, that Act, regulation or by-law shall be deemed to provide that a person who is in default of payment of a fine is liable to the procedures laid down in this Act in the event of default of payment of a fine.
149(4)Where, after the commencement of this Act, any Act, regulation or by-law provides that a person who is in default of payment of a fine is liable to distress and sale in accordance with the Summary Convictions Act, that Act, regulation or by-law shall be deemed to provide that a person who is in default of payment of a fine is liable to the procedures laid down in this Act in the event of default of payment of a fine.
1990, c.18, s.86
Commencement
150This Act or any provision of it comes into force on a day or days to be fixed by proclamation.
N.B. This Act was proclaimed and came into force May 1, 1991.
N.B. This Act is consolidated to October 1, 2013.