Criminal Section Minutes 2000

Aug. 2000 Victoria BC

Criminal Section Minutes

ATTENDANCE

Thirty-nine delegates representing all jurisdictions, except Nunavut and NWT, attended the Criminal Section proceedings. (All jurisdictions were, however, represented at the Conference.) Jurisdictional delegations included Crown Attorneys, defence counsel, academics, government officials and judges.

OPENING

Lee Kirkpatrick presided as Chair and Catherine Kane acted as Secretary for the meetings of the Criminal Section. The Section convened to order on Sunday, August 13.

The Heads of each delegation introduced the members of their delegations.

PROCEEDINGS – RESOLUTIONS

Fifty-three resolutions were submitted by jurisdictions for consideration including two floor resolutions. Of the 53 resolutions considered, 38 were carried as proposed or amended, 7 were withdrawn after discussion, 1 was withdrawn before any discussion, and 8 were defeated. (Note – one resolution was in two parts, one part carried, one part defeated.) In several instances, the total number of votes varies, due to the absence of some delegates for part of the proceedings.

REPORT OF THE CHAIR

The following discussion papers were tabled:

Regulating Charter Applications – Final Report of the Working Group

A subcommittee of the Uniform Law Conference, Criminal Section was established in 1997, in response to a resolution, to study the issue of the regulation of Charter applications and develop rules to govern such applications and to make such other rules as deemed appropriate in consultation with the bar and judiciary.

The Working Group provided progress reports in 1998 and submitted an Interim Report in 1999. At the 1999 Conference, it was agreed that the Working Group should pursue the recommended option of creating a model set of rules of court to regulate Charter applications.

The final report submitted to the 2000 Uniform Law Conference, Criminal Section sets out such rules with a detailed rationale for the overall approach and for each rule.

Following discussion of the Report and Rules, the following recommendations of the Working Group were supported:

1. The Working Group recommends that the Uniform Law Conference ratify and endorse the Rules of Court Governing the Conduct of Applications in Constitutional Matters, as a model set of rules.

2. The Working Group recommends that a copy of this Report be forwarded to the Chief Judges and Chief Justices of each Criminal Court in Canada, and to federal and provincial Judicial Councils, for their consideration as a means of promoting the orderly litigation of Charter applications.

3. The Working Group recommends that a copy of the Report be forwarded to the Attorney General of Canada and the Attorney General and/or Minister of Justice of each province and territory for their consideration on the question of whether a wide ranging consultation with interested groups (including members of the bar) should be conducted with a view to enacting National Rules of Court Governing the Conduct of Applications in Constitutional Matters.

By way of resolution, the Uniform Law Conference of Canada voted to approve the recommendations, 29-0-1.

Corbett Applications, A Background Research Paper

In response to a 1999 resolution calling on the Uniform Law Conference of Canada to establish a subcommittee to examine a range of issues arising from Corbett applications, regarding limitations on cross-examination of an accused on their previous convictions, and to investigate the relevant law in other common law jurisdictions, and develop guidelines and/or make recommendations, the Uniform Law Conference of Canada commissioned a background research paper. The paper was prepared by Professor David Paciocco, University of Ottawa, and submitted to the 2000 Conference.

Delegates praised the comprehensive review of the law and procedure governing Corbett applications and the analysis of related provisions, including the issue similar fact evidence and the bad character rule.

Some of the debate focussed on the proposed shift of the onus to the Crown to establish why the criminal record should be introduced, and the lack of a rationale to support such a significant change. Discussion also focussed on whether or not codification is necessary.

Professor Paciocco’s paper includes several proposed amendments to s. 12 of the Canada Evidence Act. Delegates noted that the proposals would require more careful analysis and discussion.

Following preliminary discussion of the paper, the Canadian Council of Criminal Defence Lawyers proposed an amendment to their resolution, originally submitted to call for a review of s. 666 of the Criminal Code and s. 12 of the Canada Evidence Act.

The resolution, as amended, and as carried, calls for a subcommittee of the Uniform Law Conference of Canada to be established (including Crown, defence bar, government officials and others interested) to review the proposals in detail and make recommendations to the 2001 Uniform Law Conference. Professor Paciocco’s paper provides the groundwork for the discussion of the subcommittee.

Law Enforcement and Criminal Liability – White Paper, June 2000

The Government White Paper, tabled in the Senate, June 22, 2000, along with draft legislative proposals was discussed by delegates. Although the consultation process seeks comments by September 15, 2000, delegates were advised to carefully consider the issues and their comments would be received up to October 15, 2000. Delegates representing the defence bar (CBA, Criminal Justice Section, CCCDL and Criminal Lawyers Association) noted concerns about the general principle of sanctioning any criminal offences and the scope of the proposed immunity. The debate centered around the need to balance the risk to public safety with risks of increasing police powers. A majority of delegates noted that despite the complexity of the issue, legislation was essential.

Department of Justice officials invited the CBA, CLA, CCCDL and Barreau de Québec to participate in focussed face-to-face consultations, in addition to encouraging written submissions.

Group Assault; “Swarming”

An issues paper on group assault, commonly referred to as “swarming” was discussed briefly and further comments (in writing) by delegates were invited by the Department of Justice.

The paper reviewed the type of conduct referred to as “swarming”, the offences and applicable punishment available to address this conduct.

Delegates noted that the existing offences are adequate to address the behaviour, however proof of the offence (e.g., assault causing bodily harm, homicide) is often problematic since more than the mere presence of a person (participant) at the scene must be proved. It was also noted that the behaviour which results in swarming often requires a non-legal approach; i.e. preventative measures and other interventions to ensure that youth, in particular, are not drawn to violent “gang” type behaviour.

REPORT OF THE SENIOR FEDERAL DELEGATE

The following Report of the Senior Federal Delegate, Richard G. Mosley, Assistant Deputy Minister, Criminal Law Policy and Community Justice Branch was tabled.

Several initiatives over the last year (1999-2000) have been influenced by the work of the Criminal Section and/or would be of interest to Criminal Section delegates. These initiatives include:

Law Enforcement and Criminal Liability: White Paper - The White Paper was tabled by the Minister of Justice in the Senate on June 22, 2000. It includes draft legislation to respond to the Supreme Court of Canada’s ruling in John Campbell and Salvatore Shirose v. The Queen.

A copy of the paper was distributed to U.L.C. delegates.

Bill C-36, An Act to amend the Criminal Code (criminal harassment, home invasions, applications for Ministerial review – miscarriages of justice, and criminal procedure) and to amend other Acts, was tabled in the House of Commons by the Minister of Justice on June 8, 2000.

This enactment amends the Criminal Code by

(a) codifying and clarifying the review process for applications to the Minister of Justice with respect to allegations of miscarriage of justice;

(b) increasing the maximum penalty for criminal harassment;

(c) reforming and modernizing criminal procedure with respect to

  • procedural aspects of preliminary inquiries,
  • the disclosure of expert evidence,
  • rules of court in relation to case management and preliminary inquiries,
  • electronic documents and remote appearances,
  • a plea comprehension inquiry scheme,
  • private prosecutions,
  • the selection of alternate jurors, and
  • restriction on the use of agents.

This enactment also amends the National Capital Act by increasing the maximum fine available and the National Defence Act by providing for fingerprinting.

Bill C-17, An Act to amend the Criminal Code (cruelty to animals, disarming a peace officer and other amendments) and the Firearms Act (technical amendments), was tabled in the House of Commons by the Minister of Justice on December 1, 1999.

Bill C-18, An Act to amend the Criminal Code (impaired driving causing death and other matters) was introduced on December 1, 1999 and was passed by the House of Commons and Senate in June and received Royal Assent on June 30, 2000. The amendments will be proclaimed into force September 1, 2000.

These amendments

  • increase the maximum penalty for impaired driving causing death from 14 years to life imprisonment;
  • allow police to seek a warrant for a blood sample from a driver suspected to be drug impaired, following a collision involving injury or death when a driver cannot consent; and
  • amend the definition in the French version of motor vehicle (reflecting the 1999 U.L.C. resolution).

Note that Private Member’s Bill C-202 (Dan McTeague), An Act to amend the Criminal Code (flight) was passed by the House of Commons and Senate and came into force on March 30, 2000. The amendment created new offences.

  • failing to stop a motor vehicle with intent to evade a peace officer (5 year maximum
  • dangerous driving causing bodily harm during such flight from police (14 year maximum)
  • dangerous driving causing death during such a flight (life, maximum)

The issue of police chases was discussed at the 1999 U.L.C.

Bill C-23, The Modernizing Benefits and Obligations Act, was tabled on February 11, 2000 and received Royal Assent June 30, 2000. The Omnibus Bill amends sixty-eight federal statutes including the Criminal Code to ensure that same sex and common law relationships are equally recognized in our law. The amendments to the Criminal Code include:

  • a definition of common law partner (s. 2)
  • repeal of s. 23(2) (husband or wife not accessories after the fact)
  • s. 215(1)(b) amended to refer to spouse or common law partner (re providing necessaries of life)
  • repeal of s. 215(4)(a) (presumptions of marriage)
  • amendment of s. 215(4)(c) regarding presumption of failure to provide necessaries of life for a child
  • repeal of s. 329 (theft between husband and wife)
  • replacement of the word “spouse” with “spouse or common law partner” in the following sections
  • s. 215(4)(d)
  • s. 423(1)(a)
  • s. 718.2(a)(ii)
  • s. 722(4)(b)
  • s. 738(1)(c)
  • s. 810(1)
  • s. 810(3.2)

Bill C-19, An Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts, relates to the implementation of Canada’s obligations under the Rome Statute of the International Criminal Court. The legislation makes it an offence to commit genocide, a crime against humanity or a war crime. Consequential changes are also made to Canada’s extradition and mutual legal assistance legislation to enable Canada to comply with its obligations to the ICC. The enactment also affirms that any immunities otherwise existing under Canadian law will not bar extradition to the ICC or to any international criminal tribunal established by resolution of the Security Council of the United Nations.

Bill C-19 was reported (with amendments) to the House of Commons on June 7, 2000 from the Standing Committee on Foreign Affairs and International Trade. The Bill received Royal Assent on June 29, 2000.

Bill C-244, An Act to provide for the taking of samples of blood for the benefit of persons administering and enforcing the law and good Samaritans and to amend the Criminal Code, was introduced in the House of Commons by the Honourable Member for Fraser Valley (Mr. Chuck Strahl) on October 18, 1999. The Bill passed Second Reading and is now being examined by the Standing Committee on Justice and Human Rights. The Committee has heard witnesses, including officials of the Department of Justice, Health Canada, the Canadian Police Association, the Canadian HIV/AIDS Legal Network and representatives of non-governmental organizations.

Bill C-244 would create legislation that would establish a mechanism for obtaining and executing a search warrant on the human body. This means that a designated person (a fire-fighter, a doctor, a person whose profession is to care for sick people, a peace officer, a security officer or a person assisting a peace officer), could ask a justice of the peace to issue a warrant authorizing a peace officer to require a medical practitioner or a qualified technician to take samples of blood. These samples would be taken from a person who has received assistance from the designated person, where there has been contact of bodily fluids and where the person who received help could be suspected of being infected with some diseases, more specifically hepatitis B, hepatitis C or HIV.

The amendments, if passed would apply where there has been an exchange of bodily fluids; there is no requirement than an offence is alleged to have been committed.

[Recall that a 1998 Uniform Law Conference resolution called for an amendment to authorize a warrant for a blood sample to determine the seriousness of the offence or prove the commission of the offence where there are reasonable grounds to believe that the person named in the warrant: suffers from an infectious disease that could endanger the security or life of another person; that the person transmitted the infectious disease to another person, while committing an offence against the security or life of that person; and that reasonable grounds exist to believe the person was aware of their infectious disease.]

Bill C-22, the Proceeds of Crime (money laundering) Act (PCMLA) replaces the current Proceeds of Crime (money laundering) Act. Bill C-22 received Royal Assent on June 29, 2000 and the sections of the new Act dealing with the establishment of the new financial intelligence centre were proclaimed into force on July 5, 2000.

This new Act continues the existing financial transaction record keeping requirements. It also requires persons to whom the Act applies to report suspicious financial transactions. These persons include banks and other deposit-taking institutions, life insurance companies, casinos, securities dealers, foreign exchange dealers and persons engaged in a business, profession, or activity where cash is received for payment or transfer to a third party (e.g. lawyers, accountants). The new regime creates an obligation for these persons or their employees to file a report with the Financial Transactions Reporting and Analysis Centre (FTRAC) when certain indicators are present in the transaction or when there are reasonable grounds to suspect that the transaction is related to the commission of a money laundering offence. Failure to comply with the obligation to report is an offence and is punishable by imprisonment and/or fines or both penalties.

In addition, a Cross-Border Currency Reporting regime is included in the Act. This regime creates an obligation on all persons entering into, or leaving, the country to declare to Revenue Canada Customs currency and other monetary instruments over a specified threshold amount. Customs will forward this information to CFTRAC.

Last year the issue of corporate criminal liability was discussed at a joint session of the Civil and Criminal Branches of U.L.C.; Professor Anne-Marie Boisvert’s paper was the focal point for the discussion. While there was no formal resolution on the table, it was agreed that Justice Canada would continue to study and consult on the matter. Since then, the House of Commons has given greater attention to the criminal law’s approach to corporate liability in view of the Westray Inquiry Report and a subsequent Private Member’s Motion and Bill requesting that the Department of Justice develop appropriate amendments. The House of Commons Standing Committee on Justice and Human Rights submitted a Report to the House on June 7, 2000, requesting that the Minister of Justice undertake such a study; the Government has 150 days to respond. The Department of Justice is currently developing a consultation paper outlining issues and options. This document will be widely distributed and will be posted on the Department’s Website. It is also noteworthy that the United Kingdom issued a package of law reform proposals in May, 2000, Reforming the Law on Involuntary Manslaughter: The Government’s Proposals, which proposes a codification of British law.

To follow up on the 1999 resolution that a joint study be conducted on the standards for the electronic disclosure of evidence by the CBA and CACP in consultation with relevant federal, provincial and territorial government departments and other interested professional associations, the Department of Justice hosted an initial meeting in Ottawa in April 2000. Representatives of the Canadian Bar Association and Ontario Criminal Lawyers Association attended, along with several government officials. A follow up meeting will be held in the fall 2000.

Next Annual Meeting

2017 Conference

Hotel Saskatchewan

Regina, SK

August 13 - 17, 2017
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