Criminal Section Minutes 2003

Fredericton, New Brunswick

August 10-14, 2003


CRIMINAL SECTION - MINUTES

ATTENDANCE

Thirty nine (39) delegates representing all jurisdictions except Yukon attended the criminal Section. All jurisdictions were represented at the Conference as a whole. Delegates included Crown, defence counsel, academic, government officials and members of the judiciary.

OPENING

Daniel Grégoire presided as Chair of the Criminal Section. Catherine Kane acted as Secretary, assisted by Stéphanie O'Connor. The Section convened to order on Sunday, August 10, 2003.

The Heads of each delegation introduced their delegation.

PROCEEDINGS - RESOLUTIONS

Fifty two (52) resolutions were originally submitted by jurisdictions for consideration. Several resolutions were amended during the proceedings. Three resolutions were amended as two part resolutions. Eleven (11) resolutions were withdrawn without discussion due to lack of time. Two resolutions were proposed as floor resolutions. As a result, forty six (46) resolutions were considered. Of the forty six resolutions, seven (7) were defeated, eight (8) were withdrawn and thirty one (31) were carried (several as amended).

(In several instances the total number of votes varies due to the absence of some delegates for some part of the proceedings).

DISCUSSION PAPERS

Pre-Sentence Custody and the Determination of Sentence

Professor Alan Manson was retained by the Uniform Law Conference to prepare and present the above noted paper. At ULC 2002, several resolutions were considered that required a more detailed analysis of the issue of the related issues of when a sentence commences and how pre-sentence custody should be acknowledged and the implications of possible reform proposals, including, eligibility for conditional sentences, statutory minimum sentences, statutory release, parole, and custodial placement.

Professor Manson presented the paper beginning with the historical overview of the issue of pre-sentence custody, followed by a review of the jurisprudence. The paper also highlighted how pre-sentence custody is accounted for in other commonwealth jurisdictions. Professor Manson identified four potential models to explore to address pre-sentence custody; judicial reduction of sentence (discretionary or mandatory), judicial antedating of sentence, statutory antedating of sentence and administrative reduction of sentence. The potential models were considered with reference to several factors including the importance of communicating to the public the clear terms of the sentence and the reasons, the importance of communicating and recording accurate information for the purpose of the penal system and the applicability of the provisions regarding conditional sentences and long term offender designations.

Professor Manson's paper concluded with a model for statutory reform to be considered.

Delegates noted that Professor Manson's paper had identified the full range of issues that require consideration in developing a reform option. Of the four options set out in the paper, there was no consensus on a preferred option. It was agreed that the paper would inform further consultations and discussion on this issue.

Interlocutory and Third Party Appeals

The ULC Criminal Section considered a Discussion Paper prepared by Professors Alan Manson and Gary Trotter at ULC 2002.

Following the discussion in 2002, it was agreed that Professors Trotter and Manson would make final revisions to that paper and include a model for statutory reform. The final paper with the model was submitted to ULC 2003 together with an Introduction and Questions for consideration prepared by the Department of Justice Canada. The Questions for Consideration are intended to guide further consultation and refinement of the reform options.

In addition to the issues raised for discussion, delegates noted the need to give careful consideration to the issue of standing (i.e. who has standing to seek leave to appeal particular orders).

Delegates were asked to provide additional comments, if any, to the Department of Justice. The Department of Justice will be consulting on reform options with key stakeholders.

Resolutions Discussed In The Joint Session

The joint session of ULC dealt with two discussion papers and resolutions were passed regarding both.

Extra-Territorial Jurisdiction of the Police

The ULC considered the Report of the Working Group on the Extra Jurisdictional Authority of Provincially Appointed Police Officers and the draft legislation with commentaries. Glen Reid (Manitoba) provided an overview of the model legislation and a thorough discussion followed.

It was noted that RCMP officers would not be governed by this scheme since their status under federal legislation applies across the country. The RCMP have advised, however, that they support the ULC consultation process and the model that has been developed. However, concerns of the RCMP were conveyed with respect to the supervision of the visiting officer as well as with respect to the advisability of requiring mandatory review of a request for an extra-jurisdictional appointment with affected local police forces. The disciplinary model set out under the scheme was discussed and several comments noted. It was noted that the Working Group had discussed the issue of governance and recognized that professional conduct rules and penalties will differ between provinces. Although adjustments to the scheme may need to be made in each jurisdiction before it is adopted as legislation, the proposed scheme was recommended for approval by the ULC. With respect to the types of police activity covered by the scheme, it was noted that the intent of the scheme was to cover a broad range of conduct including such diverse matters as abduction investigations and transferring prisoners from one jurisdiction to another.

Following the discussion, the following resolution was carried:

Be it resolved;

1 That the Report of the Working Group on Extra-Jurisdictional Authority of Provincially Appointed Police Officers be received.

2 That the Report appear in the 2003 Conference proceedings.

3 That the draft Cross Border Policing Act as modified by the discussions be adopted as a Uniform Act and recommended to the jurisdictions for enactment.

Communicable Disease Exposure and Privacy Limitations

Professor Wayne Renke presented the paper, Communicable Disease Exposure and Privacy Limitations, and a discussion followed. The Paper focuses on the constitutional viability of mandatory testing and disclosure obligations. Professor Renke noted that the paper does not deal with the current Criminal Code offences which may be applicable in some situations or with options for criminal law reform. Schedule B of the paper identifies some criminal law issues for further consideration.

Professor Renke noted that provincial legislation is the preferred option in any event - although a Criminal Code offence may also be appropriate in specific cases. The provincial legislation would be designed to compel medical testing of the source individual and provide for the sharing of information. It would not serve to deter source individuals rather to manage post transmission conduct.

Members of the ULC Working Group commented that the paper thoroughly canvassed the issues but the perspective of medical experts may be necessary.

Following discussion, the following resolution was carried:

Be it resolved

1) That the paper prepared by Professor Wayne Renke be received.

2) That the paper, Communicable Disease Exposure and Privacy Limitations, appear in the proceedings.

3) That guidelines for a constitutionally permissible legislative scheme for mandatory testing and disclosure, as modified by the discussion at the 2003 meeting be referred to the Working Group for the preparation of a draft Uniform Act and commentaries for consideration by ULC 2004.

4) That issues in respect of communicable disease and the criminal law and warrant authority identified by Professor Renke in Schedules A and B of the Issues Paper be referred to the Criminal Section of ULC for further consideration and discussion.

Report of the Senior Federal Delegate

The Report of the Senior Federal Delegate was tabled and presented by Mr. Donald Piragoff, Senior General Counsel, Criminal Law Policy Section, Department of Justice.

CLOSING

The Chair thanked the delegates for their attention and thoughtful discussion. The delegates thanked Daniel Grégoire for his excellent chairmanship throughout the year and thanked the host, New Brunswick for the success of the 2003 Conference. The Nominating Committee recommended that Catherine Kane be elected as Chair of the Criminal Section for 2003-2004 and it is recommended that Bart Rosborough, be nominated to be the next Chair of ULC 2004-2005.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018