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1997 Legislative Session: 2nd Session, 36th Parliament

THIRD READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

Certified correct as passed Third Reading on the 10th day of July, 1997

Ian D. Izard, Law Clerk

HONOURABLE UJJAL DOSANJH

ATTORNEY GENERAL AND

MINISTER RESPONSIBLE

FOR MULTICULTURALISM,

HUMAN RIGHTS AND

IMMIGRATION

BILL 27 – 1997

OFFENCE AMENDMENT ACT (No. 2), 1997

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province

of British Columbia, enacts as follows:

Section 15 of the Offence Act, R.S.B.C. 1996, c. 338, is amended

(

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

(6) If a copy of the violation ticket is referred to the Provincial Court under

subsection (5),

(

a) a notice of hearing, or

(

b) a notice of appearance

must be sent to the person disputing the allegation or fine at the address set out in

the notice of dispute. , and

(

b) by repealing subsections (9) to (11) and substituting the following:

(9) If a person appears before the Provincial Court at the hearing or appearance on

the date set by a notice under subsection (6),

section 58 does not apply with

respect to the person and the court has jurisdiction to hear the dispute without

(

a) examining the notice of dispute, the notice of hearing or the notice of

appearance, or

(

b) inquiring into the service of the ticket on the person.

(9.1) If a person fails to appear before the Provincial Court at the hearing or appearance

on the date set by a notice under subsection (6), the person may, within 30 days

after that date, appear before a justice for a determination of whether or not the

failure to appear was the person's fault.

(10) If a person appears before a justice under subsection (9.1) and the justice is

satisfied by affidavit in the prescribed form that the failure to appear was not the

person's fault, the justice must

(

a) cause a new date to be set for the hearing or appearance, and

(

b) order the Insurance Corporation of British Columbia or the superintendent

to cancel or cease any administrative action that has been taken or

commenced by the corporation or the superintendent, as the case may be, as

a consequence of the person's failure to appear.

(11) If a person fails to appear before the Provincial Court at the hearing or appearance

(

a) on the date set by a notice under subsection (6), or

(

b) on any other date set by a justice for a hearing or an appearance in relation

to the violation ticket,

the allegation or fine is deemed not to be disputed and

section 16 (1) applies.

Section 21 is amended

(

a) in subsection (1) by striking out ", and to seize and carry it before the justice who

issued the warrant or another justice for the same territorial division, to be dealt with

by him or her according to law." and substituting ", and to seize the thing and to bring

it or a report of it before the justice who issued the warrant or another justice for the

same territorial division, to be dealt with under

section 24." , and

(

b) by adding the following subsection:

(6) If a thing is seized under this section, as soon as reasonably possible after the

seizure, the person who executed the warrant must bring the thing, or a report of

the thing, before a justice to be dealt with under

section 24.

Section 22 (10) is repealed and the following substituted:

(10) As soon as reasonably possible, the clerk of the court with whom a written report

is filed under subsection (9) must cause the report, together with the information

on oath and the warrant to which it pertains, to be brought before a justice to be

dealt with under

section 24.

4 Sections 23 and 24 are repealed and the following substituted:

Seizure of things not specified

(1) A person who executes a warrant under

section 21 or 22 may seize, in addition to

the things mentioned in the warrant, anything that on reasonable grounds the

person believes has been obtained by, or has been used in, the commission of an

offence.

(2) If a thing is seized under subsection (1), as soon as reasonably possible after the

seizure, the person who executed the warrant must bring the thing, or a report of

the thing, before a justice to be dealt with under

section 24.

(3) For the purposes of subsection (2), the thing or report must be brought,

(

a) in the case of a warrant under

section 21, before the justice who issued the

warrant or another justice for the same territorial division, and

(

b) in the case of a warrant under

section 22, before the justice before whom the

report is brought under

section 22 (10).

(4) If a thing is seized from a person by a peace officer in the execution of his or her

duties otherwise than under

section 21 or 22 or subsection (1) of this section, as

soon as reasonably possible after the seizure, the peace officer must

(

a) return it to the person from whom it was seized, if the peace officer is

satisfied that continued detention of the thing is no longer required and that

there is no dispute that the person from whom it was seized is lawfully

entitled to possession, or

(

b) bring the thing, or a report of the thing, before a justice to be dealt with

under

section 24.

Detention of things seized

(1) In this

section and sections 24.1 and 24.2:

"relevant proceedings" means a trial, inquiry or other proceeding in which the thing

seized may be required;

"responsible official" means the prosecutor or the peace officer or other person

having custody of the thing seized;

"thing" means anything that has been seized and is brought before a justice as

referred to in subsection (2).

(2) If a thing or report is brought before a justice under

section 21, 22 or 23, the

justice must proceed as follows:

(

a) unless the prosecutor otherwise agrees, the justice must order its detention;

(

b) if paragraph (

a) does not apply and the person lawfully entitled to

possession is known, the justice must order its return to that person;

(

c) if neither paragraph (

a) nor (

b) applies, the justice must order that it be held

until dealt with under

section 24.2.

(3) A thing may not be detained under subsection (2) (

a) for longer than 3 months

from the day of seizure unless

(

a) relevant proceedings are instituted before the end of that period, or

(

b) an order authorizing the continued detention is made on an application

under subsection (5).

(4) More than one application under subsection (5) may be made in relation to a

thing, but the application must be made

(

a) to a Provincial Court judge, if the total period of detention is to be longer

than one year from the day of seizure if the order is made, and

(

b) to a justice in any other case.

(5) On application by the responsible official made on at least 3 days' notice to the

person from whom the thing was seized, the judge or justice may make an order

authorizing continued detention as follows:

(

a) in the case of an application to a justice made before the period for detention

has expired, the justice may order the continued detention for a specified

period if satisfied that this continued detention is warranted having regard

to the nature of the investigation;

(

b) in the case of an application to a judge made before the period for detention

has expired, the judge may order the continued detention for a specified

period, subject to any conditions the judge considers just, if satisfied that

this continued detention is warranted having regard to the nature of the

investigation;

(

c) in the case of an application made after the period for detention has expired,

the judge or justice may order the continued detention for a specified period,

subject to any conditions the judge or justice considers just, if satisfied that

(

i) the continued detention might reasonably be required for the purpose

of an investigation or relevant proceedings, and

(ii) it is in the interests of justice to make the order.

(6) As an exception to subsection (3) or an order under subsection (5), if an

application under subsection (5) has been made but is not yet decided, the period

authorized for detention of the thing extends until the application is decided.

Access to thing seized

24.1

(1) On at least 3 days' notice to the Attorney General, a person who has an interest

in a thing detained under

section 24 may apply to a Provincial Court judge for an

order under subsection (2) that the person be permitted to examine the thing.

(2) The judge may make an order that the applicant or a representative of the

applicant be permitted to examine the thing, but must make the order on terms

that the judge considers necessary or desirable to ensure that the thing to be

examined is safeguarded and preserved for any purpose for which it may subsequently be required.

(3) In the case of a thing seized that is a record, at any time while it is detained the

Attorney General or responsible official may have a copy of the record made and

may retain that copy even after the original is no longer detained.

(4) A copy under subsection (3) that is certified to be a true copy by

(

a) the Attorney General,

(

b) the person who made the copy, or

(

c) the person in whose presence the copy was made

is admissible in evidence and, in the absence of evidence to the contrary, has the

same probative force as the original document would have had if it had been

proved in the ordinary way.

Order for disposition of thing seized

24.2

(1) Unless otherwise provided by another enactment, an order for the disposition of

a thing seized may be made by application under this

section

(

a) to a Provincial Court judge, in the case of a thing ordered detained by a

judge of that court, or

(

b) to a justice in any other case.

(2) An application under this

section may be made as follows:

(

a) by the person from whom the thing was seized, on at least 3 days' notice to

the Attorney General, if

(

i) the total period for detention under

section 24 has expired, or

(ii) the judge or justice is satisfied that hardship will result unless the

application is allowed to be heard earlier;

(

b) by another person claiming to be lawfully entitled to possession of the thing,

at any time on at least 3 days' notice to the Attorney General and to the

person from whom the thing was seized;

(

c) by a responsible official as required under subsection (3), on at least 3 days'

notice to the person from whom the thing was seized.

(3) Unless an application is made under

section 24 (5) (c), the responsible official

must make an application under this

section if

(

a) the responsible official determines that the continued detention of a thing

seized is no longer required, or

(

b) the period for detention has expired and no proceedings have been instituted

in which the thing seized may be required.

(4) Subject to subsection (5), on an application under this section, the judge or justice

(

a) must order the thing returned to the person from whom it was seized, if that

person is lawfully entitled to its possession,

(

b) must order the thing returned to another person lawfully entitled to it, if this

person is known and the person from whom the thing was seized is not

lawfully entitled to its possession,

(

c) if an order cannot be made under paragraph (

a) or (

b) because the thing has

already been forfeited and sold or otherwise dealt with under paragraph (

d) such that it cannot be returned to the applicant, must order that unless

otherwise provided by law the applicant be paid the proceeds of sale or the

value of the thing seized, and

(

d) if an order is not made under paragraph (

a) or (b), may order that the thing

is forfeited to the government, to be disposed of as the Attorney General

directs or otherwise dealt with in accordance with the law.

(5) An order may be made under subsection (4) only if the judge or justice is satisfied

that

(

a) the total period for detention under

section 24 has expired and relevant

proceedings have not been instituted, or

(

b) the total period for detention has not expired but the continued detention of

the thing seized will not be required for the purpose of an investigation or

relevant proceedings.

(6) A person aggrieved by an order under this

section may appeal the order to the

Supreme Court and, for the purposes of the appeal, sections 103 to 114 apply.

(7) Despite anything in this section, a thing must not be returned, forfeited or

disposed of under this

section until the later of the following:

(a) 30 days after an order under subsection (4);

(

b) if the order under subsection (4) is appealed, 30 days after the decision on

the appeal has been given.

5 Form 3 of the

Schedule is amended by striking out "to bring them" and substituting "to

bring them or a report of them" .

Transitional provisions

(1) Section 15 of the Offence Act , as

amended by this Act, applies in relation to violation tickets issued after or

before that

section is amended by this Act.

(2) Subject to subsection (3) of this section, sections

23 to 24.2 of the Offence Act , as enacted by this Act, apply in

relation to

(

a) things seized after those sections come into force, and

(

b) things seized before those sections come into force, if the things were

detained at the time those sections come into force.

(3) In relation to a thing seized as referred to in

section

23 (4) of the Offence Act , as enacted by this Act, before that provision

comes into force,

(a) sections 23 (4) and 24 (3) of the Offence Act ,

as enacted by this Act, do not apply in relation to the thing, and

(

b) within 60 days after

section 23 (4) of the Offence

Act , as enacted by this Act, comes into force, the peace officer must either

(

i) return the thing to the person from whom it was seized

as provided in

section 23 (4) (

a) of the Offence Act , as enacted by this

Act, or

(ii) bring the thing, or a report of the thing, before

a justice to be dealt with under

section 24 or 24.2 of the Offence Act ,

as enacted by this Act.

Commencement

7 This Act comes into force by regulation of the Lieutenant Governor in Council.

Copyright © 1997: Queen's Printer, Victoria, British Columbia, Canada