Criminal Section Minutes 2007

Discussion Papers

The papers presented at this year’s Conference addressed issues that consisted of both civil and criminal law components. The Papers were presented during two joint sessions of the Criminal and Civil sections.

In preparation of the joint session, Criminal Section delegates discussed the papers on Identity Theft, Collateral Use of Crown Brief Disclosure and Malicious Prosecution to narrow the specific criminal law issues and allow for a more focused discussion during the session.

The Paper regarding section 347 of the Criminal Code (criminal interest rate) was presented at a joint session following the opening plenary session and proposed a resolution for debate and vote by Criminal section delegates.

A summary of each Paper can be found under the heading Joint Session of the Criminal and Civil Sections.

Report of the Working Group on Collateral Use of Crown Brief Disclosure

Nancy Irving, Senior Counsel, Public Prosecution Service of Canada, provided an overview of the Report to Criminal section delegates. Delegates were joined by Denise Dwyer, Deputy Director, Crown Law Office – Civil, Ministry of the Attorney General of Ontario and David Marriott, Appellate Counsel, Alberta Justice. Delegates commended the author and the Working Group for preparing a high-quality paper that presented complex interrelated matters. The discussions raised several issues and questions for consideration. The views expressed on this topic during the Criminal section proceedings were reported to joint session delegates. A summary of the Report as well as the views expressed during the Criminal Section proceedings can be found under the heading Joint Session of the Civil and Criminal sections.

Report of the Joint Criminal/Civil Section Working Group on Identity Theft: A Discussion Paper

A summary of the Report on Identity Theft was presented by Josh Hawkes, Appellate Counsel, Criminal Justice Division, Alberta Justice. Delegates noted that the Working Group produced an excellent paper.

While the paper emphasized the importance of preventive measures as an important component to address identity theft, it was highlighted that a number of organizations are currently considering various aspects of this issue including prevention. The Working Group was careful not to duplicate the work of others in this area and focused on examining certain remedial measures. To assist the Working Group and determine the need to further explore ways to address identity theft, delegates were invited to report on existing mechanisms available to aid victims of identity theft where criminal records or other official documents have erroneously been created in their name.

Report of the Joint Criminal/Civil Section Working Group on Malicious Prosecution

Dean Sinclair, Senior Crown Prosecutor, Public Prosecutions, Saskatchewan Justice, highlighted the issues raised in the paper to Criminal Section delegates.

Following the presentation, delegates discussed the implications of a perceived erosion of the legal test to be met in a malicious prosecution lawsuit as enunciated by the Supreme Court of Canada decision in Nelles vs. Ontario [1989] 2 S.C.R. 170, and as evidenced by subsequent decisions that have concluded that malice can be inferred from the absence of reasonable and probable cause that an offence has been committed. Several delegates reported experiences in their own jurisdictions with respect to the implications for Crown prosecutors who are sued for malicious prosecution.

During the discussion, it was submitted that the fact that the outcome of the case has an impact personally on the Crown prosecutor undermines the prosecutor’s role since the prosecutor is expected to assess whether there is a reasonable prospect of conviction throughout the criminal process while being faced with the possibility that a lawsuit for malicious prosecution may be commenced if the trial does not result in a conviction.

It was observed that the policy implications of this trend in law are sufficiently important to warrant consideration of a legislative response to reaffirm the criteria required to bring forward a lawsuit for malicious prosecution and develop measures that would allow prompt dismissal of frivolous malicious prosecution lawsuits. It was also suggested that consideration should be given to defining the meaning of the term “improper purpose” when examining legislative reform. As leave to appeal to the Supreme Court of Canada has been filed in the case of Miazga v. Kvello Estate [2007] S.J. No. 247 (Sask. C.A.), it was noted that the Supreme Court’s decision could inform the work of the Working Group in developing legislative proposals.

Section 347 of the Criminal Code of Canada: Business Law Problems Remain

Criminal Section delegates discussed the possibility of creating a working group to examine the issues highlighted in the paper entitled Section 347 of the Criminal Code of Canada: Business Law Problems Remain. Some delegates expressed the view that section 347 of the Criminal Code should be examined to consider its continued usefulness noting, in particular, that there would be value in studying the issue to determine whether criminal law in this area has had an impact despite the fact that there are few reported decisions on s. 347 in the criminal law context. It was further noted that the principal issue to be considered is whether this provision needs to be adjusted in view of standard commercial transactions currently violating s. 347. It was suggested that the point of view of financial institutions, including the ones that have a state responsibility, would be important in the determination of the usefulness of s. 347.

After discussion, the following resolution was presented:

That the Criminal Section of the Uniform Law Conference of Canada consider examining the issue of the usefulness for criminal law purposes of section 347 of the Criminal Code, and the range of options for possible reform of this offence.

Carried as amended: 13-0-7

Next Annual Meeting

2020 Annual Meeting

Place to be Announced

August 9 – 13, 2020