Criminal Section Minutes 2007

2006-2007 Government Legislative Initiatives

Since April 2006, the Government has tabled 13 criminal law reform bills. To date, six have passed and have received Royal Assent and the majority of those reforms are in force.

For example, amendments to address street racing, the criminal interest rate, camcording, and to permit implementation of the United Nations Convention against Corruption have received Royal Assent and have been proclaimed into force. Amendments to restrict conditional sentences have received Royal Assent and will come into force on December 1, 2007. Amendments regarding the use of DNA received Royal Assent and some provisions are now in force.

For ease of reference, the Government legislative initiatives are set out in chronological order beginning with the most recent bills introduced. The Private Members’ bills introduced in this Session and of interest to delegates are described in the next section.

Bill C-59 Unauthorized Recording of a Movie

Bill C-59, An Act to amend the Criminal Code (unauthorized recording of a movie) was introduced on June 1, 2007 and received Royal Assent on June 22, 2007 as S.C. 2007, c. 28.

Bill C-59 amends the Criminal Code to create two offences: the recording of a movie in a movie theatre without the consent of the theatre manager; and the recording of a movie in a movie theatre without the consent of the theatre manager for the purpose of selling, renting, or other commercial distribution of a copy of the recorded movie. It also authorizes the forfeiture of anything used in the commission of these offences.

Bill C-48 United Nations Convention Against Corruption

Bill C-48, An Act to amend the Criminal Code in order to implement the United Nations Convention against Corruption was introduced on March 22, 2007 and received Royal Assent on May 31, 2007 as S. C. 2007, c.13.

Bill C-48 enacted technical amendments to enable Canada to ratify and implement the UN Convention against Corruption including:

  • clarifying that corruption offences in the Criminal Code can be committed directly or indirectly, and apply whether the benefit is conferred on an official or another person for the benefit of the official;
  • providing for the forfeiture of instruments used in the commission of an offence of bribery of foreign public officials, under the Corruption of Foreign Public Officials Act; and
  • amending s. 118’s definition of "official" that applies to corruption offences to clarify that it includes a person "elected" to discharge a public duty and to codify the interpretation given to it by Canadian courts.

Bill C-35 Reverse Onus in Bail Hearings for Firearm-related Offences

Bill C-35, An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences) was introduced on November 23, 2006.

It proposes amendments relating to judicial interim release (bail) hearings for accused charged with serious offences involving firearms or other regulated weapons. Specifically, the Bill proposes to add a reverse onus for those charged with:

  • specific offences committed with a firearm: attempted murder, discharging a firearm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage-taking, robbery and extortion;
  • any indictable offence involving firearms or other regulated weapons if committed while the accused is under a weapon prohibition order; or
  • firearm trafficking, possession for the purpose of trafficking or firearm smuggling.

Bill C-35 also proposes to expand the "tertiary ground" factors that the courts must take into account in deciding whether or not a person should be released on bail. It will require the courts to consider the fact that a firearm was allegedly used in the commission of the offence, and whether the accused faces a minimum term of imprisonment of 3 years or more for a firearm-related offence.

Bill C-35 was passed by the House of Commons on June 5, 2007 and received First Reading in the Senate on June 5, 2007.

Note that if Parliament is prorogued, Bill C-35 will die on the Order Paper upon prorogation.

Bill C-32 Impaired Driving

C-32, An Act to amend the Criminal Code (impaired driving) and to make consequential amendments to other Acts was tabled in the House of Commons on November 21, 2006. As introduced, the Bill proposed reforms in three main areas:

Drug-impaired driving: police would be authorized to demand roadside physical sobriety tests and, where the officer has reasonable grounds to believe the person is impaired by a drug, to demand that the person perform further tests administered by a Drug Recognition Expert (DRE) and provide a sample of a bodily fluid to be analyzed for the presence of a drug;

Restricting “evidence to the contrary” to scientifically valid defences: absent evidence that the instrument used to measure blood alcohol concentration (BAC) malfunctioned or of operator error, a court could not accept testimony by the accused of low alcohol consumption (typically two beers) that would have given the person a BAC reading below 80, unless the pattern of consumption is consistent with a low BAC at the time of driving and with the BAC found at the time of testing; and

Procedural and sentencing changes: including creating new offences of being over 80 or refusing to provide a breath sample where the person’s operation of the vehicle has caused bodily harm or death; increasing minimum penalties particularly for repeat offenders; and reducing the time between breath tests from 15 to three minutes.

The House of Commons Standing Committee on Justice and Human Rights completed its review of Bill C-32 on June 19 and reported the Bill back to the House of Commons, with amendments, on June 20, 2007. One significant amendment made at Committee is the removal of the proposal with respect to reducing the time between breath tests from 15 to three minutes.

Note that if Parliament is prorogued, Bill C-32 will die on the Order Paper upon prorogation.

Bill C-27 Dangerous Offenders and Recognizance to Keep the Peace

C-27 An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace) was introduced in the House of Commons on October 17, 2006.

Bill C-27 amends the dangerous offender (DO) and long-term offender (LTO) provisions, including:

  • imposing a rebuttable presumption of dangerousness upon a third designated conviction;
  • requiring a Crown declaration of intent to bring a DO application upon a third designated conviction;
  • codifying that the burden of proof is not on the Crown to prove the issue of fitness of sentence (codification of the 2003 SCC decision in Johnson); and
  • amending the s. 810.1 and 810.2 peace bond provisions to extend their duration from one to two years, while clarifying that a broad scope of conditions may be imposed.

Bill C-27 was referred to a Legislative Committee for review on May 8, 2007, following Second Reading in the House of Commons.

Note that if Parliament is prorogued, Bill C-27 will die on the Order Paper upon prorogation.

Bill C-26 Criminal Interest Rate

C-26, An Act to amend the Criminal Code (criminal interest rate) was introduced in the House of Commons on October 6, 2006 and passed by the House of Commons on February 6, 2007. Bill C-26 received Royal Assent on May 3, 2007 as S.C. 2007, c. 9.

Section 347 of the Criminal Code makes it an offence to enter into an agreement or arrangement to receive interest at a criminal rate (defined as exceeding 60 % per annum), or to receive a payment of interest at a criminal rate. Bill C-26 amends the Criminal Code to create a new provision (section 347.1) which exempts certain payday lenders from the application of s. 347 when:

(a) the jurisdiction has consumer protection legislation applicable to payday lending;

(b) the legislation includes a limit on the total cost of payday borrowing;

(c) the payday lender is licensed or otherwise authorized by the jurisdiction to provide payday loans; and

(d) the jurisdiction has been designated by the federal government for the purpose of the exemption.

Bill C-23 Criminal Procedure, Language of the Accused, Sentencing and Other Amendments

Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments) received First Reading in the House of Commons on June 22, 2006. Bill C-23 reflects many ULCC resolutions passed between 1996 and 2005 as detailed in the 2006 Report of the Senior Federal Delegate. This Bill proposes amendments in three main categories: criminal procedure, sentencing and language of the accused. Bill C-23 also includes other amendments to various Criminal Code provisions.

Of particular interest to Criminal Section delegates is an amendment made to C-23 in the House of Commons. As introduced, Bill C-23 included an increase in the maximum fine that can be imposed for summary conviction offences from $ 2,000 to $ 10,000. As a result of an amendment passed by the Standing Committee on Justice and Human Rights and as passed by the House of Commons, the maximum fine is now set at $ 5,000.

Bill C-23 reached Second Reading debate in the Senate on June 18, 2007. However, if Parliament is prorogued, Bill C-23 will die on the Order Paper upon prorogation.

Bill C-22 Age of Protection

Bill C-22, An Act to amend the Criminal Code (age of protection) and to make consequential amendments to the Criminal Records Act received First Reading in the House of Commons on June 22, 2006. As introduced, this Bill proposed to amend the Criminal Code to raise the age, from 14 to 16 years, at which a person can consent to non-exploitative sexual activity.

It creates an exception in respect of an accused who engages in sexual activity with a 14 or 15 year old youth and who is less than five years older than the youth. It also creates an exception for transitional purposes in respect of an accused who engages in sexual activity with a 14 or 15 year old youth and who is five or more years older than the youth if, on the day on which this Act comes into force, the accused is married to the youth. The exception also applies to the accused if, on the day on which this Act comes into force, he or she is the common-law partner of the youth or has been cohabiting with the youth in a conjugal relationship for less than one year and they have had or are expecting to have a child as a result of the relationship, and the sexual activity was not otherwise prohibited before that day. Below this age, all sexual activity with a young person, ranging from sexual touching to sexual intercourse, is prohibited. This exception would apply to 14 and 15 year old youths who engage in non-exploitative sexual activity with a partner who is less than five years older.

The proposed reforms maintain an existing close-in-age exception that exists for 12 or 13 year olds who engage in sexual activity with a peer who is less than 2 years older, provided the relationship is not exploitative. The legislation also maintains the existing age of protection of 18 years old for exploitative sexual activity.

As passed by the House of Commons, on May 4, 2007, the exception in respect of an accused who engages in sexual activity with a 14 or 15 year old youth and who is five or more years older than the youth if, on the day on which this Act comes into force, the accused is married to the youth, is now a permanent exception.

Bill C-22 was referred to the Senate Standing Committee on Legal and Constitutional Affairs on June 20, 2007. Note that if Parliament is prorogued, Bill C-22 will die on the Order Paper upon prorogation.

Bill C-21 Non-Registration of Firearms

Bill C-21, An Act to amend the Criminal Code and the Firearms Act (non-registration of firearms that are neither prohibited nor restricted) received First Reading in the House of Commons on June 19, 2006.

This Bill proposes to amend the Criminal Code and the Firearms Act to repeal the requirement to obtain a registration certificate for firearms that are neither prohibited firearms nor restricted firearms (long-guns), as well as associated offences. Bill C-21 requires current owners to notify the Chief Firearms Officer prior to the transfer of a long-gun (e.g. selling or giving of a long-gun). This notice will invoke the Chief Firearms Officer’s obligations to verify the transferee’s licence status, licence eligibility and whether the transferee can possess that type of firearm, as well as authorize the transfer if it is determined that it is not contrary to the interests of the safety of the public. Finally, businesses transferring long-guns to another business will not be required to contact either the Chief Firearms Officer or the Registrar (as previously done) prior to a transfer. However, conditions that those businesses must meet with respect to such transfers to further the public safety objectives of the legislation will be prescribed in regulations. As such, this Bill amends the Firearms Act to provide that the Governor in Council may make regulations regulating the keeping and destruction of records by businesses in relation to long-guns.

Bill C-21 received Second Reading in the House of Commons on June 19, 2007. However, if Parliament is prorogued, Bill C-21 will die on the Order Paper upon prorogation.

Bill C-19 Street Racing

Bill C-19, An Act to amend the Criminal Code (street racing) and to make a consequential amendment to the Corrections and Conditional Release Act received First Reading on June 15, 2006 and was passed by the House of Commons on November 1, 2006. Bill C-19 received Royal Assent on December 14, 2006 as S.C. 2006, c. 14.

Bill C-19 amends the Criminal Code to create new offences to specifically combat street racing. These new offences build upon existing offences, including dangerous driving and criminal negligence, and provide enhanced maximum penalties of incarceration for the most serious street racing offences. Bill C-19 also creates mandatory minimum periods of driving prohibition for those convicted of street racing.

The length of the driving prohibitions will increase for repeat offenders. In the most serious cases involving repeat street racing offenders, a mandatory lifetime driving prohibition applies. This would occur when an offender has at least two convictions of street racing causing bodily harm or death and at least one of those convictions involves street racing causing death.

Bill C-18 DNA

Bill C-18, An Act to amend certain Acts in relation to DNA identification received First Reading in the House of Commons on June 8th, 2006 and was passed by the House of Commons on March 28, 2007. Bill C-18 received Royal Assent on June 22, 2007 as S.C. 2007, c. 22. The following provisions come into force on a day to be proclaimed: section 7, subsection 8(1), section 10, subsections 11(2) to (4), section 12, subsection 13(2), sections 14 to 17, subsection 20(4), sections 22, 24, 26, 29, 30, 34 and 35, subsection 37(2), sections 38 to 41, subsection 43(4) and sections 45 and 46. All other provisions came into force on Royal Assent. The Parliament of Canada website (http://www.parl.gc.ca) should be consulted for more information and the text of these provisions.

C-18 makes technical amendments to strengthen DNA data bank legislation (Criminal Code, the DNA Identification Act and the National Defence Act) including:

  • Adding attempted murder and conspiracy to commit murder to the offences covered by the retroactive provisions (which apply to offenders convicted of a single murder, sexual offence or manslaughter prior to June 30, 2000, when the legislation that enabled the creation of the National DNA Data Bank came into force);
  • Permitting a retroactive hearing where the person is still under sentence for one of the defined offences rather than requiring that the person is serving a sentence of two years for that offence;
  • Making it an offence to fail to appear for DNA sampling – similar to the existing offence for failing to show up for fingerprinting;
  • Allowing a court to set a date for a hearing to determine whether a DNA order should be made within 90 days after sentence is pronounced (the actual hearing could, however, be beyond the 90 days;
  • Clarifying that a warrant for the arrest of a person who failed to show for DNA sampling can be executed and the bodily substances taken by any Canadian police force that arrests the person; and
  • Allowing the law enforcement agency authorized to take a DNA sample to authorize another law enforcement agency to do it on its behalf when the offender has moved to or been incarcerated outside its jurisdiction.

Bill C-10 Minimum Penalties for Firearm Offences

Bill C-10, An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act was introduced in the House of Commons on May 4, 2006.

As introduced, Bill C-10 proposed three different escalating minimum penalty schemes, based on the nature and level of seriousness of the offences as detailed in the 2006 Senior Federal Delegate’s Report.

However, as a result of amendments made by the Standing Committee on Justice and Human Rights and further amendments made at Report stage in the House of Commons and as passed by the House of Commons, C-10 now proposes to increase the minimum penalties (5 years on a first offence and 7 years on a second or subsequent offence) for 8 serious offences committed with a firearm (attempted murder, discharging a firearm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage taking, robbery and extortion).

The higher minimum penalties would apply to those who use a restricted or prohibited firearm in the commission of an offence or who commit an offence in connection with a criminal organization, which includes a gang. For offences that do not involve the actual use of firearms in the commission of an offence (e.g., firearm trafficking or smuggling and the illegal possession of a restricted or prohibited firearm with ammunition), C-10 proposes a minimum penalty of 3 years imprisonment for a first offence and 5 years for a second or subsequent offence. The Bill also proposes the creation of two new offences: breaking and entering to steal a firearm and robbery to steal a firearm, both of which would be punishable by a maximum penalty of life imprisonment.

Bill C-10 was passed by the House of Commons on May 29, 2007 and received First Reading in the Senate on May 31, 2007. Note that if Parliament is prorogued, Bill C-10 will die on the Order Paper upon prorogation.

Bill C-9 Conditional Sentence of Imprisonment

Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment) received First Reading in the House of Commons on May 4th, 2006. Bill C-9 was passed by the House of Commons on November 3, 2006. It received Royal Assent on May 31, 2007 as S.C. 2007, c. 12. The reforms will come into force on December 1, 2007.

As introduced, Bill C-9 amended section 742.1 of the Criminal Code to provide that a person convicted of any offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more is not eligible for a conditional sentence.

However, as a result of amendments made by the House of Commons Standing Committee on Justice and Human Rights and as passed, Bill C-9 amends section 742.1 by eliminating the availability of a conditional sentence for serious personal violence offences, terrorism offences and organized crime offences prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more.

Bill C-2 Federal Accountability Act

Bill C-2, An act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability (federal accountability act) received First Reading in the House of Commons on April 11, 2006 and was passed by the House of Commons on June 26, 2006. Bill C-2 received Royal Assent on December 12, 2006 as S.C. 2006, c. 9.

Bill C-2 includes amendments to a number of federal statutes as well as enacting new Acts. In particular, Part 3 enacts the Director of Public Prosecutions Act, which provides for the appointment of the Director of Public Prosecutions (DPP). That Act gives the Director the authority to initiate and conduct prosecutions on behalf of the Crown that are under the jurisdiction of the Attorney General of Canada, unless the Attorney General of Canada directs otherwise. In such cases, the directives must be in writing and published in the Canada Gazette. In addition to the other powers and duties mentioned in the Act, the Director also intervenes in matters that raise questions of public interest that may affect the conduct of prosecutions or related investigations except in proceedings in which the Attorney General has decided to intervene. The Director holds office for a non-renewable term of seven years during good behaviour and is the Deputy Attorney General of Canada for the purposes of carrying out the work of the office.

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