Engagement de ne pas troubler l’ordre public (terrorisme)

Ang

Fr

Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois janvier 2020. (Rev. # 6036)

n.b.: Cette page est expérimentale. Si vous repérez une grammaire ou un texte anglais clairement incorrect, veuillez m'en informer à [email protected] et je le corrigerai dès que possible.

• < Procédure et pratique
• < Pre-Trial and Trial Matters
• < Engagement de ne pas troubler l’ordre public

Terrorist Activities Recognizance

Recognizance with Conditions

Attorney General’s consent

83.3 (1) The Attorney General’s consent is required before a peace officer may lay an information under subsection (2) .

Terrorist activity

(2) Subject to subsection (1) , a peace officer may lay an information before a provincial court judge if the peace officer

(a) believes on reasonable grounds that a terrorist activity may be carried out; and

(b) suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of the terrorist activity.

Appearance

(3) The judge who receives the information may cause the person to appear before any provincial court judge.

Arrest without warrant

(4) Despite subsections (2) and (3) , a peace officer may arrest a person without a warrant and cause the person to be detained in custody, in order to bring them before a provincial court judge in accordance with subsection (6) , if

(a) either

(i) the grounds for laying an information referred to in paragraphs (2)(a) and (b) exist but, by reason of exigent circumstances, it would be impracticable to lay an information under subsection (2), or

(ii) an information has been laid under subsection (2) and a summons has been issued; and

(b) the peace officer suspects on reasonable grounds that the detention of the person in custody is necessary to prevent a terrorist activity.

Duty of peace officer

(5) If a peace officer arrests a person without a warrant in the circumstance described in subparagraph (4)(a)(I) , the peace officer shall, within the time prescribed by paragraph (6)(a) or (b),

(a) lay an information in accordance with subsection (2) ; or

(b) release the person.

When person to be taken before judge

(6) Unless a peace officer is satisfied that a person should be released from custody without conditions before their appearance before a provincial court judge in accordance with the rules in paragraph (a) or (b), and so releases the person, the person detained in custody shall be taken before a provincial court judge in accordance with the following rules:

(a) if a provincial court judge is available within 24 hours after the person has been arrested, the person shall be taken before a provincial court judge without unreasonable delay and in any event within that period; and

(b) if a provincial court judge is not available within 24 hours after the person has been arrested, the person shall be taken before a provincial court judge as soon as feasible.

How person dealt with

(7) When a person is taken before a provincial court judge under subsection (6) ,

(a) if an information has not been laid under subsection (2) , the judge shall order that the person be released; or

(b) if an information has been laid under subsection (2) ,

(i) the judge shall order that the person be released unless the peace officer who laid the information shows cause why the person’s detention in custody is justified on one or more of the following grounds:

(A) the detention is necessary to ensure the person’s appearance before a provincial court judge in order to be dealt with in accordance with subsection (8) [mise en liberté judiciaire – audience devant un juge],

(B) the detention is necessary for the protection or safety of the public, including any witness, having regard to all the circumstances including

(I) the likelihood that, if the person is released from custody, a terrorist activity will be carried out, and

(II) any substantial likelihood that the person will, if released from custody, interfere with the administration of justice, and

(C) the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the peace officer’s grounds under subsection (2) , and the gravity of any terrorist activity that may be carried out, and

(ii) the judge may adjourn the matter for a hearing under subsection (8) [mise en liberté judiciaire – audience devant un juge] but, if the person is not released under subparagraph (i), the adjournment may not exceed 48 hours.

Adjournment under subparagraph (7)(b)(ii)

(7.1) If a judge has adjourned the matter under subparagraph (7)(b)(ii) and the person remains in custody at the end of the period of adjournment, the person shall be taken before a provincial court judge who

(a) shall order that the person be released unless a peace officer shows cause why the person’s detention in custody is justified on one or more of the grounds set out in clauses (7)(b)(i)(A) to (C) and satisfies the judge that the investigation in relation to which the person is detained is being conducted diligently and expeditiously; and

(b) may adjourn the matter for a hearing under subsection (8) [mise en liberté judiciaire – audience devant un juge] but, if the person is not released under paragraph (a), the adjournment may not exceed 48 hours.

Adjournment under paragraph (7.1)(b)

(7.2) If a judge has adjourned the matter under paragraph (7.1)(b) [après le 1er ajournement – ajournement ultérieur] and the person remains in custody at the end of the period of adjournment, the person shall be taken before a provincial court judge who

(a) shall order that the person be released unless a peace officer shows cause why the person’s detention in custody is justified on one or more of the grounds set out in clauses (7)(b)(i)(A) to (C) and satisfies the judge that the investigation in relation to which the person is detained is being conducted diligently and expeditiously; and

(b) may adjourn the matter for a hearing under subsection (8) [mise en liberté judiciaire – audience devant un juge] but, if the person is not released under paragraph (a), the adjournment may not exceed 48 hours.

Hearing before judge

(8) The judge before whom the person appears in accordance with subsection (3)

(a) may, if the judge is satisfied by the evidence adduced that the peace officer has reasonable grounds for the suspicion, order that the person enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for a period of not more than 12 months and to comply with any other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (10), (11.1) and (11.2), that the judge considers desirable for preventing the carrying out of a terrorist activity; and

(b) if the person was not released under subparagraph (7)(b)(i) or paragraph (7.1)(a) or (7.2)(a), shall order that the person be released, subject to the recognizance, if any, ordered under paragraph (a).

Duration extended

(8.1) However, if the judge is also satisfied that the person was convicted previously of a terrorism offence, the judge may order that the person enter into the recognizance for a period of not more than two years.

Refusal to enter into recognizance

(9) The judge may commit the person to prison for a term not exceeding 12 months if the person fails or refuses to enter into the recognizance.

Conditions — firearms

(10) Before making an order under paragraph (8)(a) [mise en liberté judiciaire – audience devant un juge – ordonnance d'engagement], the judge shall consider whether it is desirable, in the interests of the safety of the person or of any other person, to include as a condition of the recognizance that the person be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things, for any period specified in the recognizance, and if the judge decides that it is so desirable, they shall add the condition to the recognizance.

Surrender, etc.

(11) If the judge adds the condition described in subsection (10) [libération judiciaire – conditions relatives aux armes à feu] to a recognizance, they shall specify in it the manner and method by which

(a) the things referred to in that subsection that are in the person’s possession shall be surrendered, disposed of, detained, stored or dealt with; and

(b) the authorizations, licences and registration certificates that are held by the person shall be surrendered.

Condition — passport

(11.1) The judge shall consider whether it is desirable, to prevent the carrying out of a terrorist activity, to include in the recognizance a condition that the person deposit, in the specified manner, any passport or other travel document issued in their name that is in their possession or control. If the judge decides that it is desirable, the judge shall add the condition to the recognizance and specify the period during which it applies.

Condition — specified geographic area

(11.2) The judge shall consider whether it is desirable, to prevent the carrying out of a terrorist activity, to include in the recognizance a condition that the person remain within a specified geographic area unless written permission to leave that area is obtained from the judge or any individual designated by the judge. If the judge decides that it is desirable, the judge shall add the condition to the recognizance and specify the period during which it applies.

Reasons

(12) If the judge does not add a condition described in subsection (10) [libération judiciaire – conditions relatives aux armes à feu], (11.1) [libération judiciaire – condition relative au passeport ] or (11.2) [mise en liberté judiciaire – condition relative à la zone géographique] to a recognizance, the judge shall include in the record a statement of the reasons for not adding it.

Variance of conditions

(13) The judge, or any other judge of the same court, may, on application of the peace officer, the Attorney General or the person, vary the conditions fixed in the recognizance.

Other provisions to apply

(14) Subsections 810(4) [power to vary conditions of peace bond] and (5) [Part XXVII procedure applies] apply, with any necessary modifications, to proceedings under this section.

2001, c. 41, s. 4; 2013, c. 9, s. 10; 2015, c. 20, s. 17; 2019, c. 13, s. 146; 2019, c. 25, s. 24.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

---

Annual Report

83.31 (1) [Repealed, 2019, c. 13, s. 147]

(1.1) [Repealed, 2019, c. 13, s. 147]

Annual report (section 83.3)

(2) The Attorney General of Canada shall prepare and cause to be laid before Parliament and the Attorney General of every province shall publish or otherwise make available to the public an annual report for the previous year on the operation of section 83.3 that includes

(a) the number of consents to lay an information that were sought, and the number that were obtained, by virtue of subsections 83.3(1) and (2);

(b) the number of cases in which a summons or a warrant of arrest was issued for the purposes of subsection 83.3(3);

(c) the number of cases in which a person was not released under subsection 83.3(7), (7.1) or (7.2) pending a hearing;

(d) the number of cases in which an order to enter into a recognizance was made under paragraph 83.3(8)(a), and the types of conditions that were imposed;

(e) the number of times that a person failed or refused to enter into a recognizance, and the term of imprisonment imposed under subsection 83.3(9) [libération judiciaire – emprisonnement en cas de refus] in each case; and

(f) the number of cases in which the conditions fixed in a recognizance were varied under subsection 83.3(13).

Annual report (section 83.3)

(3) The Minister of Public Safety and Emergency Preparedness shall prepare and cause to be laid before Parliament and the Minister responsible for policing in every province shall publish or otherwise make available to the public an annual report for the previous year on the operation of section 83.3 that includes

(a) the number of arrests without warrant that were made under subsection 83.3(4) and the period of the arrested person’s detention in custody in each case; and

(b) the number of cases in which a person was arrested without warrant under subsection 83.3(4) and was released

(i) by a peace officer under paragraph 83.3(5)(b), or

(ii) by a judge under paragraph 83.3(7)(a), (7.1)(a) or (7.2)(a).

Opinions

(3.1) The Attorney General of Canada and the Minister of Public Safety and Emergency Preparedness shall include in their annual reports under subsections (2) and (3), respectively, their opinion, supported by reasons, on whether the operation of section 83.3 should be extended.

Limitation

(4) The annual report shall not contain any information the disclosure of which would

(a) compromise or hinder an ongoing investigation of an offence under an Act of Parliament;

(b) endanger the life or safety of any person;

(c) prejudice a legal proceeding; or

(d) otherwise be contrary to the public interest.

2001, c. 41, s. 4; 2005, c. 10, s. 34; 2013, c. 9, s. 11; 2015, c. 20, s. 18; 2019, c. 13, s. 147.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

---

Sunset provision

83.32 (1) Section 83.3 ceases to have effect at the end of the fifth anniversary of the day on which the National Security Act, 2017 receives royal assent unless, before the end of that fifth anniversary, the operation of that section is extended by resolution — whose text is established under subsection (2) — passed by both Houses of Parliament in accordance with the rules set out in subsection (3).

Review

(1.1) A comprehensive review of section 83.3 and its operation shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.

Report

(1.2) The committee shall, no later than one year before the fifth anniversary referred to subsection (1), submit a report on the review to the appropriate House of Parliament, or to both Houses, as the case may be, including its recommendation with respect to extending the operation of section 83.3.

Order in council

(2) The Governor in Council may, by order, establish the text of a resolution that provides for the extension of the operation of section 83.3 and that specifies the period of the extension, which may not exceed five years from the first day on which the resolution has been passed by both Houses of Parliament.

Rules

(3) A motion for the adoption of the resolution may be debated in both Houses of Parliament but may not be amended. At the conclusion of the debate, the Speaker of the House of Parliament shall immediately put every question necessary to determine whether or not the motion is concurred in.

Subsequent extensions

(4) The operation of section 83.3 may be further extended in accordance with this section, but

(a) the reference to “at the end of the fifth anniversary of the day on which the National Security Act, 2017 receives royal assent unless, before the end of that fifth anniversary” in subsection (1) is to be read as a reference to “on the expiry of the most recent extension under this section unless, before that extension expires”; and

(b) the reference to “the fifth anniversary referred to subsection (1)” in subsection (1.2) is to be read as a reference to “the expiry of the most recent extension under this section”.

(5) [Repealed, 2019, c. 13, s. 148]

2001, c. 41, s. 4; 2013, c. 9, s. 12; 2019, c. 13, s. 148.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

---

83.33 (1) [Repealed, 2019, c. 13, s. 149]

Transitional provision — section 83.3

(2) In the event that section 83.3 ceases to have effect in accordance with section 83.32, a person detained in custody under section 83.3 shall be released when that section ceases to have effect, except that subsections 83.3(7) to (14) continue to apply to a person who was taken before a judge under subsection 83.3(6) before section 83.3 ceased to have effect.

2001, c. 41, s. 4; 2013, c. 9, s. 13; 2019, c. 13, s. 149.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

---

Terrorism Peace Bond

Fear of terrorism offence

810.011 (1) A person who fears on reasonable grounds that another person may commit a terrorism offence may, with the Attorney General’s consent, lay an information before a provincial court judge.

Appearances

(2) The provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge.

Adjudication

(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for a period of not more than 12 months.

Duration extended

(4) However, if the provincial court judge is also satisfied that the defendant was convicted previously of a terrorism offence, the judge may order that the defendant enter into the recognizance for a period of not more than five years.

Refusal to enter into recognizance

(5) The provincial court judge may commit the defendant to prison for a term of not more than 12 months if the defendant fails or refuses to enter into the recognizance.

Conditions in recognizance

(6) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that require the defendant

(a) to participate in a treatment program;

(b) to wear an electronic monitoring device, if the Attorney General makes that request;

(c) to return to and remain at their place of residence at specified times;

(d) to abstain from the consumption of drugs, except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;

(e) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2)(a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or

(f) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2)(b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance.

Conditions — firearms

(7) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which it applies.

Surrender, etc.

(8) If the provincial court judge adds a condition described in subsection (7) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession shall be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant shall be surrendered.

Condition — passport

(9) The provincial court judge shall consider whether it is desirable, to secure the good conduct of the defendant, to include in the recognizance a condition that the defendant deposit, in the specified manner, any passport or other travel document issued in their name that is in their possession or control. If the judge decides that it is desirable, the judge shall add the condition to the recognizance and specify the period during which it applies.

Condition — specified geographic area

(10) The provincial court judge shall consider whether it is desirable, to secure the good conduct of the defendant, to include in the recognizance a condition that the defendant remain within a specified geographic area unless written permission to leave that area is obtained from the judge or any individual designated by the judge. If the judge decides that it is desirable, the judge shall add the condition to the recognizance and specify the period during which it applies.

Reasons

(11) If the provincial court judge does not add a condition described in subsection (7), (9) or (10) to a recognizance, the judge shall include in the record a statement of the reasons for not adding it.

Variance of conditions

(12) A provincial court judge may, on application of the informant, the Attorney General or the defendant, vary the conditions fixed in the recognizance.

Other provisions to apply

(13) Subsections 810(4) and (5) apply, with any modifications that the circumstances require, to recognizances made under this section.

Definition of Attorney General

(14) With respect to proceedings under this section, Attorney General means either the Attorney General of Canada or the Attorney General of the province in which those proceedings are taken and includes the lawful deputy of any of them.

Annual report

(15) Each year, the Attorney General of Canada shall prepare and cause to be laid before each House of Parliament a report setting out the number of recognizances entered into under this section in the previous year.

2015, c. 20, s. 25; 2019, c. 13, s. 153

– CCC (CanLII), (Jus.)

---

Given the restrictions on liberty and the lifelong stigma that attaches with this order, it should not be granted lightly.