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Report No. 35

Appendix XIV

Canadian Act of 1961

Canada-1961 Amendments

9-10 Elizabeth II, Chap. 44

An Act to amend the Criminal Code (Capital Murder)

(1953-54, c. 51; 1955, cc. 2, 45; 1956, c. 48; 1957-58, c. 28; 1958, c. 18; 1959, c. 41; 1960, c. 37)

(Assented to on 13th July, 1961)

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:-

1. The Criminal Code is amended by adding thereto, immediately after section 202 thereof, the following section:-

"202A. (1) Classification of murder.-Murder is capital murder or non-capital murder.

(2) Capital murder defined.-Murder is capital murder, in respect of any person, where-

(a) Deliberate.-It is planned and deliberate on the part of such person.

(b) Own Act.-It is within section 202 where such perso.-

(i) by his own act caused or assisted in causing the bodily harm from which the death ensued,

(ii) by his own act administered or assisted in administering the stupefying or overpowering thing from which the death ensued.

(iii) by his own act stopped or assisted in the stopping of the breath from which the death ensued,

(iv) himself used or had upon his person the weapon as a consequence of which the death ensued, or

(v) Counselled or procured another person to do any act mentioned in sub-paragraph (i), (ii) or (iii) or to use any weapon mentioned in sub¬paragraph (iv), or

(c) Victim being a public officer.-Such person by his own act caused or assisted in causing the death of

(i) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties, or

(ii) a warden, deputy warden, instructor, keeper, goaler, guard or other officer or permanent employee of a prison, acting in the course or his duties, or counselled or procured another person to do any act causing or assisting in causing the death.

(3) Non-capital murder.-All murder other than capital murder is "non-capital murder.".

2. Section 206 of the said Act is repealed and the following substituted therefor;

"206. Punishment for capital murder-Mandatory.-(1) Everyone who commits capital murder is guilty of an indictable offence and shall be sentenced to death.

(2) Punishment for non-capital murder.-Everyone who commits non-capital murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

(3) Exception for persons under age of eighteen years.-Notwithstanding sub-section (1), a person who appears to the court to have been under the age of eighteen years at the time he committed a capital murder shall not be sentenced to death upon conviction therefor but shall be sentenced to imprisonment for life.

(4) Minimum Punishment.-For the purposes of Part XX, the sentence of imprisonment for life prescribed by this section is a minimum punishment.".

3. The said Act is further amended by adding thereto, immediately after section 492 thereof, the following sections:-

"492A. Capital murder to be specifically charged.-No person shall be convicted of capital murder unless in the indictment charging the offence he is specifically charged with capital murder.".

4. Sub-sections (1) and (2) of section 515 of the said Act are repealed and the following substituted therefor;

"515. Pleas permitted-Plea of guilty.-(1) An accused who is not charged with an offence punishable by death and is called upon to plead may guilty or not guilty, or the special pleas authorized by this Part and no others.

(2) Refusal to plead.-Where an accused who is not charged with an offence punishable by death refuses to plead or does not answer directly, the court shall order the clerk of the court to enter a plea of not guilty.

"(2a) Pleas where offence punishable by death.-An accused who is charged with an offence punishable by death and is called upon to plead may plead not guilty, or the special pleas authorized by this part and no others.

(2b) Where no plea offered.-Where an accused who is charged with an offence punishable by death does not plead not guilty or one of the special pleas authorized by this part or does not answer directly, the court shall order the clerk of the court to enter a plea of not guilty.".

5. Sub-section (4) of section 516 of the said Act is repealed and the following substituted therefor:

"(4) Pleading over.-When the pleas referred to in sub-section (3) are disposed of against the accused, he may plead guilty or not guilty, unless he is charged with an offence punishable by death, in which case the court shall order the clerk of the court to enter a plea of not guilty.".

6. Section 519 of the said Act is amended by adding thereto, immediately after sub-section (2) thereof, the following sub-section:

"(2a) Effect of previous charge of capital murder or non-capital murder.-A conviction or acquittal on an indictment for capital murder bars a subsequent indictment for the same homicide charging it as non-capital murder, and a conviction or acquittal on an indictment for non-capital murder bars a subsequent indictment for the same homicide charging it as capital murder."

7. Section 569 of the said Act is amended by adding thereto, immediately after sub-section (1) thereof, the following sub-section:

"(1) (a) Where capital murder charged and part only proved.-For greater certainty and without limiting the generality of sub-section (1), where a court charges capital murder and the-evidence does not prove capital murder, but proves non-capital murder, or an attempt to commit non-capital murder, the jury may find the accused not guilty of capital murder but guilty of non-capital murder or an attempt to commit non-capital murder, as the case may be.".

8. The said Act is further amended by adding thereto, immediately after section 583 thereof, the following section:-

"583A. (1) Right of appeal of person sentenced to death.-Notwithstanding any other provision of this Act a person who has been sentenced to death may appeal to the court of appeal.

(a) against his conviction on any ground of appeal that involves a question of law or fact or mixed law and fact; and

(b) against his sentence unless that sentence is one fixed by law.

(2) Notice deemed to have been given.-A person who has been sentenced to death shall, notwithstanding he has not given notice pursuant to section 586, be deemed to "have given such notice and to have appealed against his conviction and against his sentence unless that sentence is one fixed by law.

(3) Court of appeal may consider.-The court of appeal, on an appeal pursuant to this section, shall-

(a) consider any ground of appeal alleged in the notice of appeal, if any notice has been given, and

(b) consider the record to ascertain whether there are present any other grounds upon which the conviction ought to be set aside or the sentence varied, as the case may be.".

[See also section 597A below as to second appeal]

9. Section 586 of the said Act is amended by adding thereto the following sub-section:-

"(5) Suspension of execution of sentence of death.-Where pursuant to a conviction, a sentence of death has been imposed, the execution of the sentence shall be suspended until after determination of the appeal pursuant to section 583A whether or not the production of a certificate mentioned in sub-section (4) has been made, and where, as a result of such suspension, a new time is required to be fixed for the execution of the sentence it may be fixed by the judge who imposed the sentence or any judge who might have held or sat in the same court.".

10. (1) Sub-section (2) of section 588 of the said Act is repealed and the following substituted therefor:-

"(2) Transcript of evidence.-A copy or transcript of-

(a) the evidence taken at the trial,

(b) the charge to the jury, if any,

(c) the reason for judgment, if any, and

(d) the addresses of the prosecutor and the accused or counsel for the accused by way of summing up, if

(i) a ground for the, appeal is based upon either of the addresses, or

(ii) the appeal is pursuant to section 583A, shall be furnished to the court of appeal, except in so far as it is dispensed with by order of a judge of that court".

(2) Sub-section (4) of section 588 of the said Act is repealed and the following substitution therefore-

"(4) Copies to interested parties.-A party to the appeal is entitled to receive.

(a) without charge, if the appeal is against a conviction in respect of which a sentence of death has been imposed or against such sentence, or

(b) upon payment of any charges that are fixed by rules of court in any other case, a copy or transcript of any material that is prepared under sub-sections (2) and (3).".

11. The said Act is further amended by adding, thereto, immediately after section 597 thereof, the following section:-

"597A. Appeal on law or fact or mixed law and fact-Second Appeal.- Notwithstanding any other provision of this Act, a person.

(a) who has been sentenced to death and whose conviction is affirmed by the court of appeal, or

(b) who is acquitted of an offence punishable by death and whose acquittal is set aside by the court of appeal, may appeal to the Supreme Court of Canada on any ground of law or fact or mixed law and fact.".

[See also section 583A]

12. All that portion of sub-section (1) of section 598 of the said Act preceding paragraph (a) thereof is repealed and the following substituted therefor:-

"598. (1) Appeal by Attorney General.-Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 583 or 583A or dismisses an appeal taken pursuant to paragraph (a) or sub-section (1) of section 584, the Attorney General may appeal to the Supreme Court of Canada."

13. The said Act is further amended by adding thereto, immediately after section 642 thereof, the following section:-

642A. (1) Recommendation by jury.-Where a jury finds an accused guilty of an offence punishable by death, the judge who presides at the trial shall, before discharging the jury, put to them the following question:

Recommendation for mercy.-You have found the accused guilty and the law requires that I now pronounce sentence of death against him (or "the law provides that he may be sentenced to death", as the case may be). Do you wish to make any recommendation as to whether or not he should be granted clemency. You are not required to make any recommendation but if you do make a recommendation either in favour of clemency or against it, your recommendation will be included in the report that I am required to make of this case to the Minister of Justice and will be given due consideration.

(2) If the jury reports to the judge that it is unable to agree upon a recommendation, either in favour of clemency or against it, and the judge is satisfied that further retention of the jury would not lead to agreement he shall ascertain the number of jurors who are in favour of making for recommendation for clemency and the number of jurors who are against making such a recommendation and shall include such information.in the report required by sub-section (1) of section 643.".

14. Sub-section (2) of the section 643 of the said Act is repealed and the following substituted therefor:-

"(2) When Judge may reprieve.-Where a judge who sentences a person to death or any judge who might have held Dr sat in the same court considers:-

(a) Mercy recommendation.-that the person should be recommended for the royal mercy, or

(b) Reprieve by Court.-that, for any reason, it is necessary to delay the execution of the sentence, the judge may, at any time, reprieve the person for any period that is necessary for the purpose.".

15. Section 656 of the said Act is amended by adding thereto the following sub-section:-

"(3) Approval by Governor in Council of release after commutation of sentence.-If the Governor in Council so directs in the instrument of commutation, a person in respect of whom a sentence of death is commuted to imprisonment for life or a term of imprisonment, shall, notwithstanding any other law or authority, not be released during his life or such term, as the case may be, without the prior approval of the Governor in Council.".

16. Coming into force.-This Act shall come into force on a day to be fixed by proclamation of the Governor in Council.

17. (1) Transitional pending proceedings.-Where proceedings in respect of an offence that, under the provisions of the Criminal Code as it was before being amended by this Act, was punishable by death were commenced before the coming into force of this Act, the following rules apply, namely.-

(a) subject to paragraph (b), the offence shall be dealt with, inquired into, tried and determined, and any punishment in respect of that offence shall be imposed, as if this Act had not come into force;

(b) where upon conviction for the offence a person is sentenced to death after the coming into force of this Act, the provisions of the Criminal Code, as amended by this Act, relating to appeals apply in respect of such conviction and sentence as if the offence had been committed after the coming into force of this Act; and

(c) where a new trial of a person for the offence has been ordered by the court of appeal of the Supreme Court of Canada and the new trial is commenced after the coming into force of this Act, the new trial shall be commenced by the preferring of a new indictment before the court before which the accused is to be tried, and determined, and any punishment in respect of the offence shall be imposed, as if it had been committed after the coming into force of this Act.

(2) Where proceedings in respect of an offence that would, if it had been committed before the coming into force of this Act, have been punishable by death are commenced after the coming into force of this Act, the offence shall be dealt with inquired into, tried and determined, and any punishment in respect of the offence shall be imposed, as if it had been committed after the coming into force of this Act irrespective of when it was actually committed.

(3) When proceedings deemed commenced.-For the purposes of this section, proceedings in respect of an offence shall be deemed to have commenced-

(a) upon the preferring of a bill of indictment before the grand jury of the court, in the case of a court constituted with a grand jury, and

(b) upon the preferring of an indictment before the court, in any other case.



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