Criminal Section Minutes 2003

Annex 1

REPORT OF THE SENIOR FEDERAL DELEGATE

Criminal law reform and related initiatives benefit from the work of the Uniform Law Conference. The discussion papers and resolutions serve to identify emerging issues in the criminal law and more practical concerns regarding the application of particular provisions. The Uniform Law Conference also serves as a valuable consultation forum, given the expertise of the delegates.

In 2002, the ULCC passed a resolution submitted by Quebec calling on the Steering Committee of the Criminal Section to develop "suggestions to follow up expeditiously on resolutions passed …".

The Department of Justice has participated in the discussion of the Steering Committee and the Steering Committee will report back to ULC 2003.

The vast majority of resolutions call for specific amendments to the Criminal Code, for which the federal Minister of Justice is responsible.

As indicated above, the work of the Uniform Law Conference assists the Department and the Minister of Justice in identifying emerging issues and the need for specific reforms. The Minister of Justice is committed to broad consultation with stakeholders and, in addition, to consultation with Provincial and Territorial Attorneys General. The Minister of Justice, in bringing forward law reform proposals, must be confident that the proposals reflect the principles of the criminal law and the Charter and are supported by Cabinet.

This report will provide an update on initiatives that have been developed or implemented in 2002-2003 which have been informed or influenced by several specific resolutions passed by ULCC in recent years, in particular 2001 and 2002, and will provide additional information on criminal law reform and related initiatives which will be on interest to delegates to the Uniform Law Conference.

Part 1

In recent years a significant number of resolutions considered by the ULC have dealt with procedural aspects of the Criminal Code. For example, in 2001 and 2002, over 70 resolutions were considered, of which 30 related to criminal procedure. These resolutions have been carefully reviewed and considered and have been the subject of additional consultation through the Federal-Provincial-Territorial Working Group on Criminal Procedure and with other stakeholders, including the Canadian Bar Association.

With respect to many of the resolutions calling for criminal procedure reforms, the resolution and discussion have identified a problem or issue, however the specific solution or amendment proposed in the ULC resolution may not adequately address the issue or related issues or may require further consideration in light of more recent initiatives. However, over 20 criminal procedure proposals have been identified for further development and consultation, on the basis of draft legislation, all of which have been drawn from recent ULC proceedings. The Department of Justice hopes to be in a position to report to ULC 2004 on the status of these potential amendments. In addition, in collaboration with the FPT Working Group on Criminal Procedure, Justice Canada intends to continue the process of reviewing past ULC resolutions as a valuable source to identify the need for potential amendments for inclusion in future criminal procedure omnibus bills.

Several resolutions in 2001 and 2002 focussed on sentencing issues. For example, the notion of delay of sentencing to permit the offender to participate in a treatment program and the need for amendments to section 720 were discussed at ULC 2002 and have subsequently been the subject of extensive consultation and refinement of reform proposals by the FPT Working Group on Sentencing. The FPT WG has recommended an amendment to allow an offender to participate in a provincially / territorially approved program such as for addiction or counselling to prevent domestic violence, with consent by the Crown, accused and consideration of the interests of any victim. Also in 2002, two resolutions related to the date upon which sentence commences. One resolution called for this issue and the issue of credit for pre-trial custody to be referred to the FPT Working on Sentencing to review and to report back to the Uniform Law Conference in 2003. The FPT WG has examined this issue and is of the view that judicial discretion should be maintained in determining credit for time served but that the Code should be amended to require the judge to take into account the time served and record the amount of time credited on the record. Note also that the ULC will consider a paper prepared by Professor Allan Manson on this issue at the 2003 Conference.

The Uniform Law Conference Criminal Section proposed further consideration of this issue and contracted with Professor Alan Manson to prepare and submit a Discussion Paper to the Uniform Law Conference in August 2003.

Some sentencing related amendments were included in Bill C-32, described in more detail below. These include: an amendment to Form 46, probation order, to provide for the situation where the offender is serving a custodial sentence at the time of being placed on probation for a new offence and where probation follows a conditional sentence; clarifying the term "conditional sentence" and "conditional sentence order; and, permitting civil enforcement of restitution where it is a condition of probation.

Resolutions in 2001 and 2002 called for an appeal procedure for publication ban orders and more generally, the consideration of amendments to the Criminal Code to provide for the appeal of interlocutory orders. The Department of Justice commissioned the preparation of a Discussion Paper to analyze the need for an interlocutory appeal process and possible options. The paper was prepared by Professors Alan Manson and Gary Trotter, Queen's University, and was submitted to and discussed by ULC in 2002. Following the ULC discussion and the consideration of comments provided at an Experts' Roundtable hosted by the Department of Justice in June 2002, Professors Manson and Trotter revised the paper and developed a single option. The Department of Justice has examined the experience of other countries and the model proposed by Professors Trotter and Manson. A revised Discussion Paper on Interlocutory Appeals which includes specific questions for targeted consultations has been submitted to ULC 2003.

In 2001, several (11) resolutions were passed regarding the DNA provisions of the Criminal Code including resolutions related to including additional offences in the retroactive category and expanding the list of designated primary offences. The resolutions called on the Federal Government, in consultation with provinces, territories and other stakeholders to consider several specific amendments.

The Department of Justice (and Ministry of the Solicitor General) have conducted such consultations. In August 2002, the Minister of Justice launched consultations on the DNA data bank legislation and released the DNA Data Bank Legislation Discussion Paper (http://www.canada.justice.gc.ca/en/cons/dna_and). The discussion paper seeks views on several specific issues including the issues raised in the ULC resolutions. The results of the consultation process are currently being analyzed.

Bill C-20, An Act to Amend the Criminal Code (Protection of Children and other Vulnerable Persons) and the Canada Evidence Act was tabled December 5, 2002. It should be noted that Bill C-20 includes several amendments which reflect specific resolutions passed by ULC, in addition to the discussion paper on Voyeurism (1999) and the more general discussion in 2003 regarding the need to develop a more consistent framework for the provisions governing facilitating the testimony of young victims and witnesses (currently in section 486).

The key elements of Bill C-20 include stronger child pornography provisions; protecting young persons up to 18 from sexual exploitation of children; increasing sentences for sexual exploitation of children, abandoning a child and failing to provide the necessities of life and making the abuse of any child an aggravating factor in sentencing, measures to facilitate the participation of young witnesses and other vulnerable witnesses, and creating an offence of voyeurism.

With respect to voyeurism, the proposed offences would make it a crime, in three specific cases, to deliberately and secretly observe or record another person in circumstances where a reasonable expectation of privacy exists:

when the observation or recording is done for a sexual purpose;

when the person observed or recorded is in a place where one is reasonably expected to be in a state of nudity or engaged in sexual activity; or

when the person observed is in a state of nudity or engaged in sexual activity, and the purpose is to observe or record a person in such a state or activity.

These reforms reflect the resolutions passed in 1999 and 2000.

With respect to the measures to better protect children and other vulnerable persons as witnesses, the proposed reforms streamline the existing provisions and provide greater clarity and consistency - the need for which was noted at the ULC discussion regarding specific related resolutions in 2003. The proposed reforms to the current section 486 will re draft 26 subsections into separate sections to focus on the particular protection or testimonial assistance available. In addition, as a general principle, testimonial assistance will be available for children who are victims or witnesses in proceedings for any offence upon request, without requiring the Crown or witness to establish the need for the provision. However, the judge will have the discretion to deny the aid or protection where its use would interfere with the proper administration of justice.

Adult witnesses may also benefit from these provisions (e.g. use of screen or closed circuit TV, support persons) but will be required to establish that the order is necessary in order for them to provide a full and candid account of the acts complained of.

Bill C-20 includes provisions to permit the court to appoint counsel for a self-represented accused to conduct the cross-examination of a victim or witness up to 18 years of age or a criminal harassment victim, unless the proper administration of justice requires the accused to personally conduct the cross-examination.

In addition, adult victims or witnesses will be able to apply for an order that counsel be appointed for the self-represented accused to conduct their cross-examination and the court may make the order where the victim or witness establishes that the order is necessary in order for them to give a full and candid account of the acts complained of.

These proposals respond to the resolution passed in 2000 focusing on criminal harassment victims and in 2002 calling for amendments to give courts in "appropriate circumstances … authority to appoint counsel to conduct the cross-examination of any witness in any case where the accused is self-represented, " and to the discussion paper included in the 2002 material.

Other resolutions (2001, 2002) which have been addressed in Bill C-20 include:

that subsection 161(1) (prohibition orders) of the Criminal Code be amended to include reference to offences committed under subsection 173(2) (exposure of genitals to person under 14) see clause 5(2).

that publication bans apply to proceedings for breach of a publication ban (see clause 15, section 486.6).

that the Department of Justice review the protections provided in subsection 486(2.1) (use of screens and closed circuit TV) and section 715.1 (videotaped evidence) to determine whether other offences should be included (see clause 15, sections 486.1, 486.2, and 715.1)

that sections 715.1 and 715.2 (videotaped evidence) of the Criminal Code be amended to substitute "video record" for the word "videotape" or that other appropriate wording be used (See clause 15; the term "video recording" has been employed).

that relevant provisions in the Criminal Code stating that the information shall not be "published in any newspaper or broadcast" include the Internet. (See clause, 15, section 486.4 and clauses 16-22, where all references to "publish" or "broadcast" have been amended to add "transmit".)

Part 2

Several other law reform initiatives may be of interest to the ULC delegates.

In July 2002, the Minister of Justice launched a broad public consultation of the DNA Data Bank legislation. The Consultation Paper was widely distributed and posted on the Department of Justice website (http://www.canada.justice.gc.ca/en/cons/dna_adn).

The Consultation Paper notes that the jurisprudence has raised issues of legislative interpretation which could be clarified in the law and Provincial Attorneys General have identified issues related to the scope and operation of the legislation. Similar issues have been raised in resolutions brought to the Uniform Law Conference as described earlier in this report. The Consultation Paper poses several specific questions, including whether the list of designated offences in section 487.04 should be amended (for example, to include historic sexual offences), whether DNA samples should be taken from an accused found not criminally responsible on account of mental disorder and for which offences, and whether the retroactive provisions should be expanded to include other offences or types of offenders.

The results of the consultation are currently being analyzed and will be provided to the Minister of Justice.

In August 2002, the Minister of Justice, together with the Minister of Industry and the Solicitor General of Canada announced a review of lawful access laws - the lawful interception of communications and the search and seizure of information by law enforcement and national security agencies. Broad consultations have been conducted and continue. A consultation paper was released to facilitate the consultation process and is available at http://www.canada.justice.gc.ca/en/con/la_al.

In November, 2002, the Minister of Justice tabled the Government's Response to the 15th Report of the Standing Committee of Justice and Human Rights, Corporate Liability and Workplace Safety. The Governments' Response indicated their intention to draft new legislation to modernize corporate criminal liability, to impose on every person who employs or directs another person to perform work a legal duty to take reasonable care to avoid foreseeable harm to the person or the public. In addition the Response noted that the Government proposes to expand the standard of fault for corporate liability which would apply to all offences including workplace safety. On June 12, 2003, the Government tabled Bill C-45, An Act to Amend the Criminal Code (criminal liability of organisations) to update the law on corporate liability.

In November 2002, the Minister of Justice tabled the Government's Response the 14th Report of the Standing Committee on Justice and Human Rights, Review of the Mental Disorder Provisions of the Criminal Code. The Government stated its intention to introduce legislation to address the key recommendations of the Committee and to pursue further consultation and non-legislative initiatives to address other recommendations. The Criminal Code amendments proposed include clarification of the powers of Review Boards and additional powers to assist Review Boards in making dispositions in accordance with the criteria set out in the Criminal Code, repeal of unproclaimed provisions, clarification of inter-provincial transfers and provisions to address the role of victims at Review Boards hearings.

In December 2002, the Minister of Justice tabled Bill C-20, An Act to amend the Criminal Code (Protection of Children and other vulnerable persons). Bill C-20 addresses child pornography, sexual exploitation of children under 18 years of age, sentencing for specific and related offences (i.e. sexual exploitation, child abandonment and failing to provide the necessities of life) and provides that abuse of a child in the commission of any Criminal Code offence is an aggravating factor for sentencing, the participation and testimony of young victims and witnesses and vulnerable adult witnesses, and voyeurism. As noted earlier in the report, many of the Bill C-20 amendments address specific issues discussed by the Uniform Law Conference. For example, the creation of an offence of voyeurism was the subject of a Discussion Paper considered by ULC in 2000 and specific resolutions were submitted and passed in 1999 and 2000. In addition, the need for a more rational and consistent approach to the provisions governing the facilitation of young victims and witness (currently in section 486) was discussed in 2002.

Bill C-20 has received second reading in the House of Commons and has been referred to the Standing Committee on Justice and Human Rights.

On April 1, 2003, the Youth Criminal Justice Act was proclaimed into force, replacing the Young Offenders Act. The Act applies to young people between 12 and 17 years of age.

On April 11, 2003, the Minister of Justice introduced Bill C-32, An Act to Amend the Criminal Code and Other Acts. The Bill, among other amendments, proposes to restructure the offence of setting deadly traps, including the creation of a new offence of setting a deadly trap in a place that is kept or used to commit another indictable offence. Bill C-32 also includes amendments to the Financial Administration Act and to the Criminal Code to permit information technology managers in government and in the private sector to use Intrusion Detection Systems (IDS) to protect their computer systems from electronic communications, such as viruses or worm attacks, that could destroy important data, cripple vital networks or protect against intrusion by hackers which could result in the theft of private or classified information.

Bill C-32 also includes a small number of clarification amendments to the Criminal Code and related statutes. Examples of these include amendments to: clarify that the use of reasonable force is authorized to prevent criminal activity on board an aircraft in flight that could endanger the safety of the aircraft or any person or property on board; clarify the provision dealing with warrants to search for and seize weapons, ammunition and explosives based on public safety concerns to reflect the issues raised by the Ontario Court of Appeal in R. v Hurrell; provide for the civil enforcement of restitution ordered as a condition of probation or conditional sentence order, and; correct other inadvertent omissions and linguistic discrepancies that are necessary from time to time to maintain the quality and clarity of the law to ensure efficiency and effectiveness.

Bill C-32 received Second Reading on April 28, 2003. The Standing Committee on Justice and Human Rights heard witnesses and approved the bill, referring it back to the House of Commons to Report Stage and Third Reading.

Bill C-15B, An Act to Amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act, which passed in the House of Commons in May 2002 and received first reading in the Senate before the summer recess, was reintroduced in the Senate in October 2002 as Bill C-10. On November 20th 2002, the Senate Chamber referred Bill C-10 to the Senate Committee on Legal and Constitutional Affairs, with an instruction that the Committee split the Bill into two portions, Bill C-10A (firearms) and Bill C-10B (cruelty). Bill C-10A received Royal Assent on May 13, 2003.

The animal cruelty amendments have two primary objectives; (1) to consolidate, modernize and simplify the existing regime of animal cruelty offences, and (2) to increase existing penalties and provide new sentencing tools to enhance the effectiveness of the offence provisions.

Hearings on Bill C-10B (animal cruelty) commenced in early December 2002 and concluded on May 15, 2003. On May 29, 2003, the Senate made five amendments to the Bill. The House of Commons debated the Senate amendments on June 6, 2003. The House of Commons accepted some amendments, modified others and rejected two specific amendments on the grounds that they were legally unnecessary, confusing and had unclear legal effect.

The Senate considered the decision of the House of Commons during the week of June 9 and ultimately decided to insist on their two rejected amendments, and to further modify the "legal justification, excuse and colour of right" amendment adopted by the House. The Senate has sent a message back to the House with its position, and further movement will await the return of Parliament in September.

In May 2003, the Minister of Justice and Solicitor General of Canada tabled in Parliament the annual reports on the Anti-Terrorism Act protections, covering the period December 24, 2001 to December 24, 2002. The Attorney General of Canada is required to report annually on the use of the recognizance with conditions and investigative hearings provisions. The Solicitor General is required to report annually on the number of arrests without warrant in relation to the recognizance provision. Neither provision was used during the reporting period. Both annual reports are available on the Department of Justice website.

On May 27, 2003, the Minister of Health, Minister of Justice and Attorney General of Canada and the Solicitor General of Canada announced a renewed Drug Strategy; the strategy addresses prevention, health promotion, treatment and rehabilitation, enforcement, public education to address substance abuse, and funding for research.

The Minister of Justice tabled Bill C-38, An Act to Amend the Contraventions Act and Controlled Drugs and Substances Act to reform the criminal law with respect to the possession and production of cannabis. The Bill includes measures to: replace the current process and criminal penalties for possession of 15 grams or less or marijuana or one gram or less of cannabis resin with alternative penalties (fines) and processes under the Contraventions Act; provide law enforcement officers with the discretion to give a ticket or issue a summons to appear in court for possession of amounts exceeding 15 grams but less than 30 grams; to provide greater alternative penalties where aggravated factors exist, such as possession while committing an indictable offence; and to create new offences and greater penalties for illegal growers.

On June 12, 2003, the Minister of Justice tabled Bill C-45, An Act to Amend the Criminal Code (criminal liability of organizations), to protect workplace safety and modernize corporate liability. The Bill reflects the commitments made in the Government's Response to the 15th Report of the Standing Committee on Justice and Human Rights.

On June 12, 2003, the Minister of Justice Solicitor General of Canada and Minister of Finance, jointly announced measures to strengthen enforcement and legislation against serious capital market frauds. The Minister of Justice tabled Bill C-46, An Act to Amend the Criminal Code (capital markets fraud and evidence gathering) to, among other things, create new offences of improper insider trading and retaliation against employees who assist law enforcement in investigating offences, raise maximum sentences for existing fraud offences and specify aggravating factors for fraud offences that focus on harm caused by large scale frauds. The Bill will also enhance evidence-gathering tools available to police by adding production orders for obtaining documents from third parties. These orders, which will be available for all offences, will be particularly useful for capital markets fraud cases. The Bill will also provide for concurrent federal prosecutorial jurisdiction for a narrow range of cases dealing with market related misconduct. Protocols will be established with the provinces in order to ensure a co-ordinated and effective approach to prosecutions.

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