Bill 28 - An Act to Amend the Provincial Offences Procedure Act

BILL 28

An Act to Amend the Provincial Offences Procedure Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 The Provincial Offences Procedure Act, chapter P-22.1 of the Acts of New Brunswick, 1987, is amended by adding after section 26 the following:

Idem

26.1 If 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.

2 Section 29 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

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.

(b) by adding after subsection (1) the following:

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

3 Section 43 of the Act is amended

(a) in subsection (1) of the French version by striking out “témoignage pertinent” and “ou toutes les choses” and substituting “témoignage substantiel” and “ou toutes les pièces” respectively;

(b) by adding after subsection (1) the following:

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.

(d) in subsection (3) by striking out “A person who is served with a summons to witness shall” and substituting “A person who is served with a summons to witness, other than a summons to witness issued under subsection (1.1), shall”;

(e) in subsection (4) by striking out “required under this section to attend or” and substituting “required under this section to attend at a time and place stated in a summons to witness or to”;

(f) by repealing subsection (5) and substituting the following:

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.

4 The Act is amended by adding after section 43 the following:

Witness outside the Province

43.1 When 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.

5 Subsection 44(1) of the French version of the Act is amended in the portion preceding paragraph a) by striking out “témoignage pertinent” and substituting “témoignage substantiel”.

6 Subsection 46(3) of the Act is amended by striking out “subsection 16(1)” and substituting “subsection 16(1) or paragraph 29(1.1)(a)”.

7 Subsection 48(1) of the Act is amended by striking out “subsection 29(1)” and substituting “subsection 29(1) or (1.1)”.

8 Section 56 of the Act is amended

(a) in subsection (1) by striking out “one hundred and forty dollars” and substituting “$140”;

(b) in subsection (2) by striking out “not less than one hundred and forty dollars and not more than three hundred and twenty dollars” and substituting “not less than $140 and not more than $640”;

(c) in subsection (3) by striking out “not less than one hundred and forty dollars and not more than five hundred and seventy dollars” and substituting “not less than $140 and not more than $1,100”;

(d) in subsection (4) by striking out “not less than one hundred and forty dollars and not more than one thousand and seventy dollars” and substituting “not less than $140 and not more than $2,100”;

(e) in subsection (5) by striking out “not less than two hundred and forty dollars and not more than two thousand six hundred and twenty dollars” and substituting “not less than $240 and not more than $5,200”;

(f) in subsection (6) by striking out “not less than two hundred and forty dollars and not more than five thousand one hundred and twenty dollars” and substituting “not less than $240 and not more than $10,200”;

(g) in subsection (7) by striking out “not less than two hundred and forty dollars and not more than seven thousand six hundred and twenty dollars” and substituting “not less than $240 and not more than $15,200”;

(h) in subsection (8) by striking out “not less than five hundred dollars and not more than ten thousand two hundred and fifty dollars” and substituting “not less than $500 and not more than $20,500”;

(i) in subsection (9) by striking out “not less than five hundred dollars and not more than twenty-five thousand two hundred and fifty dollars” and substituting “not less than $500 and not more than $50,000”;

(j) in subsection (10) by striking out “not less than five hundred dollars and not more than one hundred thousand two hundred and fifty dollars” and substituting “not less than $500 and not more than $200,000”.

9 Section 57 of the Act is amended

(a) in paragraph (a) by striking out “one hundred and seventy dollars” and substituting “$350”;

(b) in paragraph (b) by striking out “five hundred and seventy dollars” and substituting “$1,100”;

(d) in paragraph (d) by striking out “two thousand five hundred and seventy dollars” and substituting “$5,200”;

(e) in paragraph (e) by striking out “five thousand one hundred and twenty dollars” and substituting “$10,200”;

(f) in paragraph (f) by striking out “seven thousand six hundred and twenty dollars” and substituting “$15,000”;

(g) in paragraph (g) by striking out “ten thousand one hundred and twenty dollars” and substituting “$20,200”;

(h) in paragraph (h) by striking out “twenty-five thousand two hundred and fifty dollars” and substituting “$50,000”;

(i) in paragraph (i) by striking out “one hundred thousand two hundred and fifty dollars” and substituting “$200,000”;

(j) in paragraph (j) by striking out “two hundred and fifty thousand two hundred and fifty dollars” and substituting “$500,000”.

10 Subsection 62(3) of the Act is amended by striking out “paragraph 28(1)(a) or (b) or subsection 29(1)” and substituting “paragraph 28(1)(a) or (b), subsection 29(1) or paragraph 29(1.1)(b)”.

11 Section 73 of the Act is amended

(a) in subsection (4) in the portion preceding paragraph (a) by striking out “paragraph 28(1)(a) or (b) or subsection 29(1)” and substituting “paragraph 28(1)(a) or (b), subsection 29(1) or paragraph 29(1.1)(b)”;

(b) in subsection (5) by striking out “section 16” and substituting “section 16 or paragraph 29(1.1)(a)”.

12 Section 83 of the Act is repealed and the following is substituted:

Part payment

83 Part 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.

13 Section 85 of the Act is amended

(a) by adding before subsection (1) the following:

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)

(b) by repealing subsection (1) and substituting the following:

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.

(d) in subsection (2.1) by striking out “probation officer” and substituting “designated person”;

(e) by repealing subsection (2.2) and substituting the following:

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.

(f) by repealing subsection (3) and substituting the following:

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.

(g) by repealing subsection (4) and substituting the following:

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.

(h) by repealing subsection (5) and substituting the following:

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.

(i) by repealing subsection (6) and substituting the following:

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.

(j) in subsection (7) by striking out “notice of discharge of fine” and substituting “notice of discharge of the outstanding balance of a fine”;

(k) by adding after subsection (7) the following:

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.

14 Subsection 117(1) of the Act is amended in the portion preceding paragraph (a) by striking out “subsection 29(1)” and substituting “subsection 29(1) or (1.1)”.

CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

Provincial Offences Procedure for Young Persons Act

15 Section 15 of the Provincial Offences Procedure for Young Persons Act, chapter P-22.2 of the Acts of New Brunswick, 1987, is amended by adding after subsection (3) the following:

15(4) A young person is not required to pay the portion of the fine representing a surcharge imposed under the Victims Services Act to be eligible for admission into a fine-option program referred to in section 85 of the Provincial Offences Procedure Act and subsection (8) of that section does not apply in relation to a young person.

Victims Services Act

16 Subsection 18(4) of the Victims Services Act, chapter V-2.1 of the Acts of New Brunswick, 1987, is amended by striking out “subsection 16(1) of the Provincial Offences Procedure Act” and substituting “subsection 16(1) or paragraph 29(1.1)(a) of the Provincial Offences Procedure Act”.

Commencement

17 Sections 1, 3, 4, 5, 12, 13 and 15 of this Act or any provision of them come into force on a day or days to be fixed by proclamation.