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Selected Uniform Statutes in alphabetical order
This document in Word Perfect -coming soon
Table of Contents
Definitions
1. (1) In this Act,
"convicted" includes a verdict
that the accused committed the act or made the omission that formed the basis
of the offence with which the accused was charged but was not criminally
responsible on account of mental disorder and a finding of guilt on the part
of a person under the Young Offenders Act (Canada);
"recollection of a violent
crime" includes a recollection of circumstances relating to the crime, an
expression of thoughts or feelings about the crime and a re-enactment of
the crime;
"victim", subject to the
regulations, means a person who suffers any harm from a crime, whether or
not the harm is direct or indirect or physical, mental or economic;
"violent crime" means,
(a) an
offence under the Criminal Code (Canada) that was an indictable offence for
which the offender might have been sentenced to imprisonment for five years
or more and that involved,
(i) the
use or attempted use of violence against another person, or
(ii) conduct
that endangered or was likely to endanger the life or safety of another person
or inflicted or was likely to inflict severe psychological damage upon another
person, (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party
or causing bodily harm), or 273 (aggravated sexual assault) of the Criminal
Code (Canada),
(c) an
offence in a jurisdiction other than Canada that corresponds to an offence
described in clause (a) or (b).
(2) For the purposes of this Act, a person is convicted
of a crime even if he or she has received an absolute or conditional discharge
or a conditional pardon but not if he or she has received a free pardon.
Comment: Section 1 contains the definitions for the Act.
These definitions restrict the application of the Act in two principal ways,
both of which are designed to reduce the chances that the legislation will
be struck down as being contrary to the Charter. First, the legislation does
not apply to people who have only been accused of a crime, but only those
who a court has concluded have committed the act or made the omission that
formed the basis of the offence. Second, the Act does not apply to all criminal
offences, or to any provincial offences, but only those offences that are
serious enough that their recollection will outrage people.
2. This Act does not apply with respect to consideration
given for a law enforcement purpose by a law enforcement agency, the federal
government or the government of a province, territory or municipality.
Comment: This section ensures that law enforcement agencies
still have the ability to pay criminals for their recollections so long as
the payment is for law enforcement purposes.
3. (1) No person shall give consideration in exchange
for the recollection of a violent crime to a person who has been convicted
of the crime or his or her agent.
(2) A person who has an obligation to give consideration
that would contravene subsection (1) shall, without delay, give the consideration
to the (Agency) instead of to the person to whom it would otherwise be
owed.
(3) The situations to which this section applies
include situations in which consideration is given outside the province if
the consideration is given by a resident of the province.
(4) This section does not apply with respect to
consideration that is given to an official or agency in another jurisdiction
that is prescribed in the regulations as the (Agency)'s counterpart in that
jurisdiction.
Comment: Section 3 establishes that it is the earning of
a profit as a result of the recollection of a crime, rather than the recollection
itself, about which the legislation is concerned. This section also requires
all such profits to be given to a government appointed agency, rather than
to the criminal, and sets out a method to co-ordinate the different regimes
in the different provinces.
4. (1) No person who has been convicted of a violent
crime or agent of such a person shall accept consideration in exchange for
the recollection of the crime.
(2) A person who has a right to receive consideration
that would contravene subsection (1) shall, without delay, direct the person
from whom they have a right to receive the consideration to give the
consideration to the (Agency).
(3) The situations to which this section applies
include situations in which consideration is accepted outside the province
if the consideration is accepted by a resident of the province.
(4) Subsection (2) does not apply if the person who
has a right to receive consideration directs the person from whom they have
a right to receive the consideration to give it to an official or agency
in another jurisdiction that is prescribed in the regulations as the (Agency)'s
counterpart in that jurisdiction.
Comment: This section ensures that the obligation to direct
money earned through the financial exploitation of crime not only applies
to those paying the criminal but also applies directly to the criminal. The
section also ensures that the criminal cannot avoid the legislation by receiving
profits outside of the province and accordingly also deals with the circumstance
of payment in another jurisdiction.
5. (1) For the purposes of sections 3 and 4, the
following persons shall be deemed to be agents of the person convicted of
the crime:
1. A
person who has been assigned rights of the person convicted of the crime
to receive consideration in exchange for the recollection of the crime.
2. A
corporation if the person convicted of the crime has a substantial interest
in or connection to, the corporation as defined in the regulations.
(2) For the purposes of sections 3 and 4, a relative
of the person who has been convicted of the crime shall be deemed, in the
absence of evidence to the contrary, to be an agent of the person.
Comment: This section encompasses two goals. First, there
has to be a mechanism to ensure that a criminal is not allowed to avoid the
operation of the legislation merely by assigning his or her rights to receive
consideration to another person. Since relatives are the most likely person
to whom a criminal can assign rights, relatives are deemed to be included
in this prohibition. However, since the Act would only apply to persons convicted
of a crime, which does not by itself extend the legislation to relatives
of criminals, those people have the right, on proper proof, to show that
they are not assignees from the criminal but recalling the circumstances
of the crime in their own right.
6. (1) The (Agency) shall distribute the consideration
it receives in respect of the recollection of a violent crime for which a
person was convicted to the victims, of whom the (Agency) has notice, of
that crime and other crimes for which the person was convicted
(2) The consideration shall be distributed to the
victims in proportion to the harm they have suffered as a result of the
crimes.
(3) The proportion of harm suffered by the victims
shall be determined by the (Agency) in accordance with the regulations.
(4) The (Agency) may deduct its reasonable costs
from consideration it receives.
Comment: This section is the essence of the Administrative
Model, and distinguishes this model from the approach taken in the United
States. Rather than requiring victims to sue, to prove their damages, and
to take only their damages out of the money that is to be paid to the criminal
for his or her recollection, this section allows the government appointed
agency to distribute all money available to it to the victims in proportion
to the harm suffered. Because it can deduct costs from consideration it receives,
the agency can be cost neutral.
7. (1) Upon the expiry of the three year period following
the first receipt of consideration for distribution to the victims of the
crimes for which a person was convicted, the (Agency) shall distribute all
such consideration it received in that three year period.
(2) The (Agency) shall distribute consideration for
victims received after the three year period at the times prescribed in the
regulations.
Comment: This section dictates when the government appointed
agency is entitled to first begin paying out money to victims. A three year
period allows some funds to build up in the government appointed agency to
allow for a distribution, and to allow the criminal to make an application
under s. 10.
Interim distributions
(2) An interim distribution may be made only if,
in the opinion of the (Agency), the interim distribution will not prejudice
any person to whom consideration would otherwise be distributed upon the
expiry of the three year period.
(3) If interim distributions have been made, the
distribution upon the expiry of the three year period shall be made so that
the total amount distributed on an interim or final basis to each victim
is what they would have received had the interim distributions not been
made.
Comment: This section counterbalances the rigidity of the
previous section, and thus allows the government appointed agency to pay
out some or all of the money that it has received in the three year period.
To assist victims who have not yet been identified are not adversely affected
by this payout, the government appointed agency is allowed to adjust future
payments.
9. If the (Agency), at the time it would otherwise
distribute consideration it receives, does not have notice of any such victims,
the (Agency) shall pay the consideration into the consolidated revenue fund
[fund for legal aid, fund for victims].
Comment: This section ensures that criminals are not allowed
to financially exploit their crimes even if there are no victims to benefit
from that exploitation.
10. (1) A person may, upon at least 30 days notice
to the (Agency), apply to the (name of court) for an order directing the
(Agency) to give consideration it has received, or any part of it, to the
person to whom the consideration would have been given had it not been given
to the (Agency).
(2) The court may add, as a party to the proceeding,
a victim to whom any part of the consideration would be distributed in the
absence of an order under this section.
(3) The court shall make an order under this section
only if, after taking into account the importance to society of not having
persons financially exploit crimes they have committed and of having victims
of crime compensated for harm they have suffered, the court is of the opinion
that the retention of the consideration would infringe the freedom of expression
and that infringement would be unjustified.
(4) In determining whether to make an order under
this section in relation to consideration for the recollection of a crime,
the court shall consider the following:
1. The
details of the crime.
2. The
purpose of the recollection.
3. Whether,
and to what degree, victims of the crime may suffer further harm from the
recollection.
4. The
value of the recollection to society.
(5) If the court directs the (Agency) to give
consideration it has received, or any part of it, to the person to whom the
consideration would have been given had it not been given to the (Agency),
the court may also allow consideration that may be given in the future or
any part of such consideration, to be given to that person instead of to
the (Agency).
(6) Sections 3 and 4 do not apply with respect to
consideration that the court allows to be given under subsection (5) or under
the corresponding provision in the legislation of another jurisdiction.
(7) An order under this section may not be made in
relation to consideration that, at the time the (Agency) received notice
of the application, had already been distributed either as final or interim
distributions.
application of the legislation. In making this determination, the court must
balance the criminal's section 2(b) rights with the purposes of the legislation
and must consider certain items specified in the legislation. In the course
of determining whether the criminal is subject to the legislation or not,
the Court has the option to decide to take all of the criminal's profits
for re-distribution or only to take part of those profits. The section also
deals with the effect of an order made under this section on the obligations
under sections 3 and 4 and on money already distributed to victims in the
event that the criminal is allowed to keep some of profits.
11. The (Agency) and its employees and agents are
not liable for any act done in good faith in the performance or intended
performance of any duty or power under this Act, or for any neglect or default
in the performance or intended performance in good faith of such duty or
power.
Comment: This section seeks to protect that agency and
its employees and agents from liability so long as their action or inaction
was in good faith.
12. (1) A person who contravenes subsection 3 (1)
or 3 (2) is guilty of an offence and on conviction is liable to a fine not
exceeding the greater of $5,000 and the amount of the consideration that
the person gave in contravention of subsection 3 (1) or failed to give as
required under subsection 3 (2).
(2) A person who contravenes subsection 4 (1) or
4 (2) is guilty of an offence and on conviction is liable to a fine not exceeding
the greater of $5,000 and the amount of the consideration accepted in
contravention of subsection 4 (1) or with respect to which the person failed
to make a direction as required under subsection 4 (2).
(3) The payment of a fine under subsection (1) or
(2) does not affect any liability a person may have to the (Agency) arising
from their failure to give consideration to the (Agency) or to direct that
consideration be given to the (Agency).
(4) A fine under subsection (1) or (2) shall, upon
being collected, be paid to the (Agency) and shall be deemed to be consideration
received in respect of the recollection of the violent crime to which the
offence related.
(5) A person who fails to give the (Agency) information
as required under a regulation made under clause 13 (e) is guilty of an offence
and on conviction is liable to a fine not exceeding $5,000.
Comment: This section ensures that the obligations under
section 3 and 4, to direct the profits the criminal has earned as a result
of the recollection of a crime, and the obligation arising under ss. 13(e),
are going to be complied with. It also ensures that fines are characterized
as consideration so that they can either be distributed like consideration
or they can be used by the agency as a source to recover their costs.
13. The Lieutenant Governor in Council may make
regulations,
(a) modifying
the definition of victim in subsection 1 (1);
(b) prescribing
an official or agency in another jurisdiction as the (Agency)'s counterpart
in that jurisdiction;
(c) permitting
the (Agency) to give consideration it receives to the (Agency)'s counterpart
in another jurisdiction;
(d) governing
the application of this Act with respect to consideration described in clause
(c) and with respect to consideration received by the (Agency) from the
(Agency)'s counterpart in another jurisdiction;
(e) requiring
the following persons to give the (Agency) information described in the
regulations at the times and in the manner set out in the regulations,
(i) persons
who are required under subsection 3 (2) to give consideration to the
(Agency),
(ii) persons
who are required under subsection 4 (2) to direct that consideration be given
to the (Agency);
(f) defining
a substantial interest in or connection to a corporation for the purposes
of paragraph 2 of subsection 5 (1);
(g) governing
the determination of the proportion of harm suffered by the victims under
subsection 6 (3);
(h) prescribing
the times at which the (Agency) shall distribute consideration for victims
under subsection 7 (2);
(i) governing
the final distribution of consideration in circumstances in which interim
distributions have been made and there is not enough consideration remaining
to comply with subsection 8 (3);
(j) requiring
interest to be credited by the (Agency) to consideration received by the
(Agency) and governing the determination of such interest;
(k) requiring
interest that would have been credited had interim distributions not been
made to be taken into account in the final distribution of the consideration
and governing how such interest shall be taken into account;
(l) authorizing
the (Agency) to convert non-monetary consideration into money or to accept
money instead of non-monetary consideration and governing such conversion
or acceptance. Comment: This section has three purposes. First, it allows each province to create the fine details that the legislation requires in order to operate properly. Second, it allows for slight differences in the application of the legislation in each province. Third, it allows each agency to interact with agencies in other provinces. Commentary
This
draft does not attempt to deal with issues relating to protection of privacy
legislation which may differ from jurisdiction to jurisdiction.
Footnote: 1 Committee on the Financial Exploitation of Crime, 'Committee Report on the Financial Exploitation of Crime' (Uniform Law Conference of Canada, Calgary: 1984), p. 7. Footnote: 2 Surprisingly, it appears that the provinces were to get their 30% despite the fact that many of the criminals who seek to profit from their crimes would have been incarcerated in federal penitentiaries. Footnote: 3 Since the Attorneys General had last been approached, two changes had taken place. First, the rules of the Conference had been changed, so that it was no longer necessary to approach the Attorneys General before projects were undertaken. Second, Ontario had proceeded with its plans to enact legislation preventing the exploitation of crimes by criminals. Because of this latter fact and the fact that the provinces had shown more concern through legislative initiatives for the better treatment of victims, there was confidence that the provinces would be interested if the Conference proceeded with this project. Footnote: 4 Joint Session of Uniform Law Section and Criminal Law Section, 'Financial Exploitation of Crime' (Uniform Law Conference of Canada, Quebec: 1995). Footnote: 5 This paper can be found at http://www.ulcc.ca/en/poam/index.cfm?sec=5&sub=5b (moved)
February 1998
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