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2020 Minutes of the Annual Meeting

UNIFORM LAW CONFERENCE OF CANADA

MINUTES OF THE CRIMINAL SECTION

[1]  Thirty nine (39) delegates from eleven provincial, territorial and federal jurisdictions participated in the deliberations of the Criminal Section. The Northwest Territories, Nunavut and Prince Edward Island were not represented at the annual meeting. Delegates included policy counsel, Crown prosecutors, defence counsel, academics, as well as representatives of the Canadian Bar Association, the Indigenous Bar Association, the Criminal Lawyers’ Association, and members of the judiciary. In addition, seven observers attended the Criminal Section’s annual meeting.

[2]  In light of public health recommendations to practice physical distancing to counter the spread of COVID-19, the Executive Committee of the ULCC (Marie Bordeleau, Executive Director of ULCC; Kathleen Cunningham (Civil Section Chair), Executive Director of the BC Law Institute; Clark Dalton, Q.C., ULCC Project Coordinator; Manon Dostie, Senior Counsel, Justice Canada; Lee Kirkpatrick (Past ULCC President), Prosecutions Coordinator, Yukon Government; Joanne Klineberg (Criminal Section Chair), General Counsel, Justice Canada; John Lee (ULCC President), Counsel, Ontario Ministry of the Attorney General; Peter Lown, Q.C., Chair of ULCC International Committee and ACPDM; Laura Pitcairn (ULCC Vice President), Senior Counsel, Public Prosecution Service of Canada; Caroline Quesnel (Criminal Section Secretary), Counsel, Justice Canada) determined that the annual meeting would, exceptionally, take place by video conference. Holding a virtual meeting limited the number of hours during which ULCC business could be conducted every day, given the different time zones across Canada. The meeting therefore took place over four week days between noon and 3:15 p.m. Eastern Time, in order to accommodate delegates from British Columbia to Newfoundland and Labrador.

[3]  The Criminal Section Steering Committee (Joanne Klineberg; Lucie Angers, General Counsel and Director of External Relations, Justice Canada; Chloé Rousselle, Counsel, Justice Canada; Stéphanie O’Connor, Counsel, Justice Canada; Matthew Hinshaw, Director, Policy Unit, Alberta Crown Prosecution Service; Samantha Hulme, Crown Counsel, British Columbia Prosecution Service; Caroline Quesnel and Benson Cowan, Chief Executive Officer of Nunavut Legal Aid) determined that a meeting held by video conference, over a limited number of hours, would not be conducive to effectively debate resolutions, which typically form the bulk of the work of the Criminal Section. The Criminal Section Steering Committee established an agenda that was narrower in scope than usual. It included reports from working groups, the report from the federal Jurisdictional Representative, and the Earl Fruchtman Memorial Seminar, which consisted of a discussion forum on the impacts of COVID-19 on the criminal justice system. 

OPENING

[4]  The Criminal Section convened to order on Tuesday, August 11, 2020 (following a plenary and joint session of both Civil and Criminal sections on Monday, August 10, 2020). Joanne Klineberg presided as Chair for the Criminal Section. Caroline Quesnel acted as Secretary.

[5]  The Chair explained that the planning of the 2020 annual meeting followed an unusual path. Initial plans were made to hold the meeting in Iqaluit, Nunavut. When it became apparent that many jurisdictions would be unable to attend because of the costs of traveling to Nunavut, planning shifted to explore the possibility of hosting the meeting in Ottawa, Ontario. Following the onset of the COVID-19 pandemic in March, it became apparent that the meeting would have to be held virtually—a first for the ULCC—and be held without a host jurisdiction. The Chair noted that the virtual setting presented important new challenges, but also had the benefit of allowing the participation of more individuals, including a number of observers. The Chair thanked those who made the meeting possible, including the Criminal Section Steering Committee, the Criminal Section Secretary, as well as the working group chairs and members.  

[6]  Each jurisdictional representative introduced the delegates of their jurisdiction. The agenda of the Criminal Section meeting was approved. The Chair provided instructions on how to use the virtual platform to participate in the discussions and vote on the resolutions that would be put forward for the working group reports. She also expressed gratitude for the technicians and interpreters supporting the meeting.  

[7]  Matthew Hinshaw, immediate past Chair of the Criminal Section and Chair of the Selection Committee, had previously established the Selection Committee in anticipation of the limited time for the 2020 annual meeting, and the inability of its members to confer in person. Mr. Hinshaw announced that the Committee, comprised of Samantha Hulme, Chloé Rousselle and Joanne Klineberg, selected Kevin Westell (Defence counsel, Partner at Pender Litigation in British Columbia) as incoming Chair of the Criminal Section for the 2022 annual meeting.

[8]  Tony Paisana, former chair of the joint working group on criminal records checks, provided an update on the implementation of the Uniform Police Record Checks Act (2018). The project was selected to be the object of promotion by the ULCC’s Implementation Committee, to encourage jurisdictions across Canada to enact the Uniform Police Record Checks Act. Russell Getz chairs the Committee, and Mr. Paisana will coordinate implementation efforts with the Canadian Bar Association. The goal is to create information packages for each individual jurisdiction. Mr. Paisana noted that police record checks are a very important issue for persons who have frequent interactions with the police.

PROCEEDINGS
Report of the Federal Jurisdictional Representative¹

[9]  On Tuesday, August 11, 2020, Lucie Angers (General Counsel and Director of External Relations, Justice Canada) presented the Report of the Federal Jurisdictional Representative. The Report presents an overview of the status of past ULCC resolutions in federal legislation and within federal-provincial-territorial forums such as the Coordinating Committee of Senior Officials (CCSO).  

Working Group Examining the Scope of the Mandate of the Criminal Section

[10]  Chloé Rousselle, Chair of the Working Group Examining the Scope of the Mandate of the Criminal Section (a sub-committee of the Steering Committee), presented the Working Group’s Status Report. The Working Group was created as a result of a discussion that was prompted at the 2019 annual meeting by four Canadian Bar Association resolutions that raised questions about the scope of the Criminal Section’s mandate (the resolutions related to prosecution policy in the provinces; the adoption of legislation and regulations on adjudication of prison discipline; remuneration for federal prisoners; and immigration consequences of certain criminal convictions). The ULCC Constitution, which had recently been amended in 2018, did not settle the question of whether the four resolutions were part of the Criminal Section’s mandate. The resolutions were withdrawn, and Joanne Klineberg, who was incoming Chair of the Criminal Section at that time, indicated that the Steering Committee could create a Working Group to study the issue.

[11]  The Working Group was created in December 2019 and held four meetings. Members considered the text of the ULCC Constitution and reviewed resolutions considered by the Criminal Section between 1983 and 2019. Given the multiple factors that appeared relevant in determining whether a resolution is within the mandate of the Criminal Section, and the members’ diverse points of view about the mandate of the Criminal Section, the Working Group came to the conclusion that it could not, and indeed should not, define the mandate.  

[12]  The Working Group instead developed two options for a procedure to follow if a resolution is not clearly within the Criminal Section’s mandate, as well as a decision grid to assist in making this determination. In so doing, the Working Group sought to balance different objectives: allowing a case-by-case analysis, avoiding debates about the mandate during annual meetings where time is limited, using an existing structure within the ULCC instead of creating a new committee, creating a flexible approach that is centered on discussion and fairness, ensuring coherent decision-making from year to year, and giving the decision-making power to  a body that is representative of the Criminal Section.                                           

[13]  The Chair of the Working Group presented two options for the decision-making procedure: one in which the decision is made solely by a majority of the Criminal Section Steering Committee, and another in which a majority of the Jurisdictional Representatives (JRs) would determine whether a resolution can be considered if the Steering Committee had found that the resolution is not within the Criminal Section’s mandate. Since the Steering Committee would play a role in either option, the Chair of the Working Group conveyed the Working Group’s view that diversity of membership in the Steering Committee is important. The Chair of the Working Group also presented a decision-making grid, which sets out key elements to be weighed and considered when determining whether a resolution is within the scope of the Criminal Section’s mandate.

[14]  During discussion of the report, it was noted that the mandate of the Criminal Section evolved through the years: while the Criminal Section’s work was originally only concerned with criminal procedure, reforms of a substantive nature later became part of its work.

[15]  Members of the Criminal Section noted that both options for the decision-making procedure were valid, and identified advantages for each option: mainly, the process would be more streamlined and faster if the Steering Committee were the only decision maker, while involving the JRs gives a “second chance” to a resolution that would otherwise be deemed out of scope by the Steering Committee.

[16]  Criminal Section members underscored the importance of ensuring that the views of all members are represented in the decision-making process and discussed the various ways by which it could be achieved. For example, some suggested that the Working Group’s report could include a direction that the deciding body—whether the Steering Committee or the JRs— consult as appropriate before making a determination on a resolution.  

[17]  The Chair of the Working Group noted that next steps will include a review of the ULCC Constitution, By-Laws and Criminal Section Rules of Procedure, to have a clear understanding of the framework in which the new mandate procedure and decision-making grid would operate. The Working Group could also consider whether amendments would have to be made to these documents as a result of the Working Group’s recommendations.  
[18]  In relation to the decision-making grid, members noted that relevant questions should not be dismissed as outside the Criminal Section’s mandate solely because another forum, such as a federal-provincial-territorial forum, is available, as such a forum might lack the diverse perspectives of the ULCC. For this reason, it was suggested that the corollary factor on the decision making grid be nuanced.

[19]  Delegates also discussed the name of the Working Group, which did not study the mandate of the Criminal Section with a view to change it, but instead with a view to finding a way of determining whether resolutions fit into the mandate. Some delegates suggested renaming the group to the Working Group Examining the Scope of the Mandate of the Criminal Section. The Chair of the Working Group agreed that this change was appropriate.  

[20]  The status report of the Working Group on the Review of the Scope of the Criminal Section’s Mandate was accepted by unanimous vote (30-0-0). The Working Group Chair indicated that the Working Group should be in a position to present a final report at the 2021 annual meeting.  Final Report of the Working Group on Telewarrants.

[21]  The Chair of the Working Group on Telewarrants, Stéphanie O’Connor, and Working Group member Normand Wong, presented the Working Group’s final report and its 15 recommendations. The Working Group was created in 2016 to study the telewarrant regime with a view to developing recommendations to make it more efficient. The Working Group completed its work before the COVID-19 pandemic, which should be borne in mind when reading the report and its recommendations.  

[22]  The Working Group Chair provided an overview of the history of the telewarrant regime, which was enacted in 1985. The Working Group consulted law enforcement agencies across Canada through the Canadian Association of Chiefs of Police as well as some members of the judiciary for their input about their experiences with the in-person warrant application process and the telewarrant process (both oral and written).

[23]  The Working Group analyzed various challenges and issues in relation to the telewarrant regime: the impracticability to appear in person requirement, the unavailability of the telewarrant process for some investigative tools, and the fact that section 487.1 provides that telewarrants are only available in relation to indictable offences, limits the ability to issue search warrants by telecommunications to designated justices (instead of all judicial officers), and precludes applicants other than peace officers from obtaining a search warrant by telewarrant. The Report also examined the unavailability of telewarrants for out-of-province search warrants, the requirement to include certain statements in an information submitted by means of telecommunication, and several post-execution requirements that do not currently apply to the usual in-person process. The Working Group’s 15 recommendations relate to these challenges and issues.  

[24]  The Working Group Chair concluded the presentation of the report by noting that its recommendations are in the spirit of replacing the current telewarrants provision with provisions that set out a process for obtaining any search warrant or other investigative order by a means of telecommunication.  

[25]  The Criminal Section discussed the final report. There was agreement with the need to modernize the telewarrant regime, particularly from a practitioner point of view. Some were of the view that video conferencing should be encouraged in applying for search warrants, especially in light of the gained experience with such tools within the criminal justice system since the COVID-19 pandemic, as it would facilitate an exchange between the court and the applicant, and provide an opportunity to record the interaction, including for the benefit of those who are not privy to the application. The Working Group presenters noted that none of the recommendations were meant to preclude the use of video conferencing should the judicial officer need further information from the applicant, but also noted that currently, there is usually no hearing for in-person search warrant applications, which are dropped off and picked up at the courthouse after the warrant has been issued. As such, an increased use of video conference may not lead to efficiency gains.

[26]  A question was raised about the security of the information being transmitted by a means of telecommunication, and its storage after it has been received by a registrar (e.g., where information about a confidential informant is included). The Working Group presenters indicated that courts would be expected to adapt their systems depending on the type of information at issue; the Criminal Code is no prescriptive in this regard.  

[27]  The Final Report of the Working Group on Telewarrants was accepted and its recommendations approved (29 in favour; 2 opposed; 2 abstentions).

Status Report of the Working Group on Section 490 of the Criminal Code

[28]  The Chair of the Working Group on Section 490 of the Criminal Code, Manon Lapointe (General Counsel, Public Prosecution Service of Canada), presented a status report on the group’s work relating to the detention of seized property regime. She explained that the first phase of the project was to take stock of the issues related to the application of section 490. To that end, the Working Group collected input from various stakeholders (including the Canadian Association of Provincial Court Judges, national, provincial and municipal police services, the Canada Revenue Agency, and prosecutors). The application of section 490 presents various challenges, including for the accused (in accessing their property), courts (determining in a criminal context who is the owner of the property), investigators (timely processing of documents, accessing property and preserving the integrity of the investigation), and prosecutors (finding practical solutions to gaps in the regime). Ms. Lapointe indicated that some of these challenges could be addressed with relatively minor legislative amendments, while others raise fundamental issues with the regime. This inventory of issues was annexed to the Working Group’s first status report in 2018.  

[29]  The second phase of the work examined the criminal law policy behind the enactment of section 490. Research undertaken by Stéphanie O’Connor supported these discussions, and points to an objective of quick access to the seized property. The Working Group is currently tackling the third and most complex phase of the project: formulating recommendations to modify the section 490 regime. This work has been divided in three groups: 1) measures between the execution of the search warrant and the laying of charges; 2) measures applicable from the moment charges are laid until the trial, including the trial; and 3) measures applicable after the trial.

[30]  The Working Group expects to produce a fuller working document in 2021. The Working Group Chair invited interested delegates to join the Working Group, noting that since the Working Group was formed in 2017, it has seen some attrition and would benefit from new membership, particularly during this critical phase of crafting recommendations. Members of the defense bar in particular were invited to contact the Chair if interested in joining the Working Group.

[31]  The Status Report of the Working Group on Section 490 of the Criminal Code was accepted (29 in favour; 0 opposed; 1 abstention).  Status Report of the Working Group on Section 487 (Search Warrants) of the Criminal Code

[32]  The Chair of the Working Group on section 487 of the Criminal Code (search warrants), Normand Wong (Senior Counsel and Team Lead, Justice Canada) presented a status report. The section 487 Working Group was created in 2018 to assess how this investigative power should be modernized. The Working Group decided that the breadth of its review would be limited to “open” searches (i.e., to the knowledge of search subject) given the scope of the current section 487. At the 2019 annual meeting, the Working Group had completed a history of section 487 and prepared an outline for the rest of the report.  

[33]  The Working Group has since compiled a draft report with information from various sources. Next steps include streamlining the draft report, distributing it to the members of the Working Group for comment, and holding one or two more meetings before presenting in the summer of 2021. The Chair of the Working Group noted some attrition within the Working Group and asked that interested volunteers, in particular those of the defence bar, contact him.  

[34]  The Status Report of the section 487 Working Group was accepted by a unanimous vote (31-0-0).  Earl Fruchtman Memorial Seminar

[35]  On Thursday, August 13, 2020, delegates discussed the impact of the COVID-19 pandemic on the criminal justice system in the context of the Earl Fruchtman Memorial Seminar, which, in the absence of a host jurisdiction to lead the seminar, took the format of an open discussion forum. Prior to the Annual Meeting, jurisdictional representatives and members of their delegations were asked to identify issues for discussion.

[36]  The federal Jurisdictional Representative noted the work of the Action Committee on Court Operations in Response to COVID-19, co-chaired by the Chief Justice of Canada and the Minister of Justice and Attorney General of Canada. Information about the Action Committee and resources for courts and criminal justice system participants are available on the website of Office of the Commissioner for Federal Judicial Affairs (https://www.fja.gc.ca/COVID19/index-eng.html). The federal Jurisdictional Representative also noted that Justice Canada has been working with provincial and territorial partners to examine ways of addressing the impact of the COVID-19 pandemic on the criminal justice system.  

[37]  A representative of Justice Canada, Gillian Blackell (Senior Counsel and Team Lead) participated in the discussion and noted that Justice Canada is interested in hearing of any suggestions for legislative proposals that delegates consider necessary to assist the criminal courts in responding to the pandemic. She emphasized the value of the perspectives of those who are currently practising and witnessing first-hand the impact of the pandemic on the criminal justice system.  

[38]  The first topic discussed was the possibility of making virtual options the “default” for non-contested scheduling appearances in provincial court, of using teleconference and videoconference for certain aspects of judicial authorizations and trials, and more generally of increasing the use of technology for remote appearances. It was noted that former Bill C-75, which came into force in 2019, was timely as it expanded the availability of remote appearances in criminal proceedings prior to the COVID-19 pandemic.

[39]  In the view of many, matters such as scheduling, adjournments, procedural matters, as well as some bail and sentencing hearings could and should be done remotely (by video conference, tele-conference, or email depending on the context) when parties and the court agree. It was noted that remote appearances by counsel for routine non-contested matters result in efficiencies for the criminal justice system and cost savings for clients. Delegates noted that Criminal Code amendments may not be required to enable using technology to facilitate remote appearances in such circumstances; it may instead be a matter of changing culture and building capacity (both within institutions and communities). Delegates indicated that remote appearances are already taking place in their jurisdictions (e.g., bail hearings, sentencing and full trials).

[40]  Some delegates expressed reservations at the idea of trials being conducted remotely, and were of the view that in-person appearances are important for substantive events such as trials and some sentencing matters. However, others noted that it may nonetheless be useful in certain cases (e.g., judge-alone trials) to conduct such substantive matters remotely, if all parties agree. Delegates noted examples of such hearings occurring remotely already including for the presentation of witness evidence (s. 650(2)(b) has been interpreted to allow virtual trials on consent in the context of the pandemic, despite s. 650(1.1), e.g., R v Ali, Boparai, Khan & Malonga-Massamba, 2020 BCSC 996, R c Binette, 2020 QCCS 1520 and In Re: Court File No. 19/578, 2020 ONSC 3870).

[41]  Several delegates raised concerns about the lack of requisite technology to conduct proceedings remotely and to use electronic filings in some jurisdictions. Concerns about the possible illicit recordings of video appearances were also raised. Nonetheless, despite the challenges, some delegates noted increased collaboration between Crown counsel, defence counsel and the judiciary in their jurisdiction since the onset of the COVID-19 pandemic to facilitate remote appearances where appropriate.  

[42]  The second topic discussed was the possibility of a formal requirement for judicial pretrials to encourage early case resolution. Some delegates noted positive experiences with judicial pre-trials, leading to early resolution or a streamlining of the issues to be tried. Some were of the view that a requirement for judicial pre-trials should be legislated, while others took the opposite view because judicial pre-trials are not appropriate in all cases.  

[43]  Delegates also discussed the idea of removing the Attorney General consent requirement for the election of a judge-alone trial for homicide cases. Delegates noted that a 2018 CBA resolution was adopted by the Criminal Section of the ULCC, recommending that “the Criminal Code be amended to allow an accused to elect or re-elect as the case may be, to have a judgealone trial for section 469 offences and that section 568 of the Criminal Code be amended to apply to elections and re-elections of judge-alone trials for section 469 offences.” However, others noted that it would be unlikely that a Crown would contest the election or re-election to a judge-alone trial given the delays associated with jury trials, particularly during the pandemic.  

[44]  The third topic discussed concerned judicial referral hearings, introduced by former Bill C-75 to deal with “administration of justice” offences (including alleged breaches of bail), and the use of alternative measures generally. Some jurisdictions indicated having adopted judicial referral hearings, but noted a decrease in its use since the pandemic (with cases that would have been appropriate for judicial referral hearings being simply withdrawn by Crown). Many indicated their support of alternative measures, but noted that organizations that enable alternative measures to take place need funding, and that some have been unable to do their work because of the pandemic (e.g., those that facilitate community work). Some also noted that no legislative changes pertaining to alternative measures are required, since the Criminal Code already includes the necessary framework to permit their use. 

[45]  The final topic discussed was reform of mandatory minimum penalties (MMPs), which is of particular concern given the risks associated with the spread of COVID-19 in correctional institutions. Delegates noted that a ULCC working group examined the issue of statutory exemptions to MMPs in a 2013 report. Some delegates expressed the view that law reform in this area is urgent, and noted that MMPs generate a significant amount of litigation, both at the trial and appellate levels.  

Joint Session: Non-Disclosure of Intimate Images

[46]  Clark Dalton, QC, Peter Lown, QC, and Candace Whitney presented the report of the working group and the draft Uniform Non-consensual Disclosure of Intimate Images Act (2020) (UNCDIIA). The first report on this project was presented to the Civil Section at its annual meeting in 2018 and outlined the project’s proposed scope. In 2019, a Joint Session of the Criminal Section and the Civil Section received an interim report on this project which provided detailed policy recommendations. The Conference directed that a working group prepare uniform legislation and commentaries in accordance with its directions, and report back to the Conference at the 2020 meeting.

[47]  Mr. Lown outlined general policy goal in which the UNCDIIA fits: (1) removal of offending material quickly; (2) making the claimant whole; (3) protecting society from harmful conduct by sanctioning it and imposing penalties. He noted that the UNCDIIA addresses the first two goals as the third goal is addressed by the Criminal Code. The presenters then provided an overview of the UNCDIIA.  

[48]  On the definition of court, it was noted that enacting jurisdictions would have to decide which tribunal is best suited to provide the fast-track remedy under section 3 and the more traditional tort remedy under section 4. A delegate asked whether it is intended that the court or tribunal at section 3 would be different from the court or tribunal at section 4. Mr. Lown responded that which court or tribunal should have jurisdiction under section 3 and section 4 is to be determined by enacting jurisdictions. A jurisdiction that decides that the court or tribunal under sections 3 and 4 are different would have to adjust the Uniform Act.  

[49]  On the definition of “internet intermediary” Mr. Lown indicated that the important element is that it captures the general hosting role of a commercial body dealing with 3rd party generated content and recognizes the crucial role of internet intermediaries in the effectiveness of any take down remedy. He noted that the UNCDIIA respects that intermediaries do not want to be drawn into every piece of litigation as parties but are amenable to court orders to takedown intimate images. He referred to section 6 which ensures that intermediaries are responsive to the take down process. A delegate asked whether the definition of “internet intermediary” would cover companies whose servers are not in the court’s jurisdiction. Mr. Lown indicated that court orders are enforceable against these companies if they have a presence in the court’s jurisdiction or are doing business there. Another delegate asked whether the intention in the definition was to capture only commercial bodies engaged in commercial activities and wondered if it should also cover individuals who allow users to post on their personal websites. Mr. Lown indicated that the working group would examine whether the use of the word “commercial body” in the definition is unduly restrictive of individuals actually involved in distributing intimate images. A working group member recalled that the purpose of defining “internet intermediary” is to immunize them from being defendants in the underlying action but still be subject to resulting court orders. A narrow definition thus simply narrows the scope of immunity from litigation .

[50]  It was noted that the de finition of “intimate images” is similar to existing definitions and is based on the desire to have a similar interpretation as has been given under existing provincial legislation and the Criminal Code. It focuses on nudity or sexual activity and is broad enough to cover altered images, involuntary exposure, upskirting, toileting and cases where an individual is not identifiable. The word “engage” in the definition includes involuntary activities. The definition is more modern than that of the Criminal Code because it includes images altered by technology so called “deep fakes”. Lack of consent in the distribution is presumed when the elements in the definition are present. Ms. Witney indicated, in response to a comment from a criminal prosecutor, that the definition of “intimate images” is adjusted by including “is or is depicted as” after “individual” before subparagraph (a). Furthermore “appears to be” is removed from subparagraph (a) and the first “is” is removed from subparagraph (b). She explained that “is or is depicted as” is consistent with the wording in the Criminal Code and is broader and interpreted by courts as not necessarily what happened but the message that is being sent. In addition, she noted that “area” is replaced by “region” in subparagraph (b) as the latter is given a broader interpretation.

[51]  Mr. Lown noted that sections, 2, 3 and 4 are a package. Section 2 creates a statutory tort of unlawful disclosure, which includes distribution and threatened distribution of intimate images, without proof of damages.

[52]  There is no need for a plaintiff to prove that they suffered injury or harm in order to establish either the fast track tort under section 3 or the more traditional tort under section 4. An individual can file a section 3 application as well as a section 4 action. 4 allow the plaintiff to obtain a declaratory order that the image both sections 3 and is unlawful and enable the plaintiff to seek removal of the image from online intermediaries, and/or an injunction against the defendant ordering the removal of the image. Whereas the applicant can be awarded nominal damages under section 3 such as out of pocket expenses incurred in bringing the application, the court can order a larger array of damages including general, special, aggravated and punitive damages to the claimant under section 4. A delegate wondered if this raised an issue of res judicata . The working group was of the view that the doctrine did not apply as sections 3 and 4 cover different torts. It was also noted that if a court found, pursuant to a section 3 application, that an image was not an “intimate image” or that it was not distributed, the defendant in a section 4 action with respect to the same image could raise an issue estoppel. A delegate asked if the fact that an individual can bring an application under section 3 and an action under section 4 could be made clearer and Mr. Lown indicated that the working group would examine this issue.  

[53]  Mr. Lown explained that section 5 on publication bans sets out a rule on automatic publication ban that is clear, provides the fairest resolution in the context and does not distract from the remedy that is sought. Section 5 does not provide a list of criteria to apply to the ban as it was thought that this would be a distraction and might prolong the court process. A delegate noted that the last sentence of the third paragraph of the commentary indicates that the ban may not be minimally impairing and indicated that it would be helpful for enacting jurisdictions if the commentary included an analysis with regard to this risk. Mr. Lown indicated that the sentence must be read with the following paragraph and that the working group did not believe that there is a risk that the ban is not minimally impairing. He indicated that the commentary could be reviewed to make this clear. The delegate emphasized the usefulness for enacting jurisdictions of a commentary that would provide a Charter analysis on the issue of minimal impairment. Mr. Lown indicated that the working group could consider including a short analysis but did not think that there would be any appetite for an in-depth analysis and that including such an analysis in a uniform Act would be unusual.  

[54]  Mr. Dalton provided an overview of sections 6, 7, 8, 9 and 10 and responded to questions from delegates in relation to these sections. The discussions on sections 6, 7, 8 and 10 did not result in the need to amend the UNCDIIA. On section 9, it was noted that the working group would have to look into the interaction between the section which refers to the possibility to revoke consent to distribution and the definition of “intimate images” which refers to a reasonable expectation of privacy at the time the recording was made or distributed.  

[55]  A delegate suggested that the report could make useful links and parallel references to the Criminal Code.  

            RESOLVED:

            THAT  the report of the working group be accepted;

            THAT   the definition of “intimate image” for the draft Uniform
                         Non-Consensual Disclosure of Intimate Images Act 
                         (2020) be amended as set out at the meeting;

             THAT  the Civil and Criminal Sections direct the Working Group to consider the
                         following:                         
             (a) references to Criminal Code provisions in the opening to the report;
             (b) whether the definition of “internet intermediary” is too restrictive;
             (c)  adding a legislative note on the definition of “court”;
             (d)  the provisions regarding revocation of consent;
             (e)  whether the Commentary to sections 3, 4 and 5 can be clarified;  
             (f)  suggestions for edits to the French language text with consequent adjustments to the English                                language version, as well as any modifications suggested to address Quebec law and generally to                          ensure that the French and English drafts are more compatible; and  
              (g)  any other matters that arise; 
             
             AND THAT the draft Uniform Non-consensual Disclosure of Intimate Images Act (2020)                                                                and commentaries be amended according to the decisions of the Working  Group
                                  and that it be circulated to the Jurisdictional Representatives of the Civil and Criminal                                              Sections. Unless two or more objections are received by the Projects Coordinator of the                                          Conference by November 30, 2020, the draft Act should be taken as adopted as a uniform                                      Act and recommended to the jurisdictions for enactment.

CLOSING

[56]  The Chair asked delegates for feedback about the virtual meeting. Some noted that while technology facilitated the meeting in exceptional circumstances, meeting in person is necessary because it allows the building of relationships that are needed to conduct the work of ULCC: some were of the view that this virtual meeting was successful because previous in-person meetings had allowed delegates to forge relationships. Others noted the limited number of meeting hours that a virtual meeting allows for, given the numerous time zones that must be accommodated, compared to an in-person meeting that allows for full day meetings. The ability to have informal discussions when meeting in person (e.g., during breaks, social events, or on the “sidelines” during the meeting itself) was also noted as a missing element of the virtual meeting. Both the limited time and the inability to have informal discussions were noted as factors that would make it difficult to debate resolutions should virtual meetings be held again in the future. The Chair indicated that a survey on the virtual meeting would be distributed to collect feedback, and encouraged all delegates to take the time to comment.


[57]  Several delegates spoke to note that this was the last meeting for Samantha Hulme, Jurisdictional Representative for British Columbia, and recognized her commitment and valuable input to ULCC. The Chair thanked all participants for their patience and flexibility, and for sharing their diverse perspectives. Delegates thanked the Chair for successfully leading this exceptional meeting.

[58]  The Criminal Section concluded its work on Thursday, August 13, 2020, with Chloé Rousselle, selected in 2019, becoming chair for the 2021 annual meeting of the Criminal Section.

REPORT OF THE FEDERAL JURISDICTIONAL REPRESENTATIVE  Uniform Law Conference of Canada Criminal Section  Virtual meeting, August 10-13, 2020  
 

Introduction  

Each year, judges, prosecutors, policy experts, defence lawyers, and academics examine resolutions and working group reports to advance reforms to Canada’s criminal law at the Criminal Section meeting of the Uniform Law Conference of Canada (ULCC). The Criminal Section of ULCC also provides a unique opportunity for the federal Department of Justice to consult criminal law experts from a broad spectrum of the criminal justice system from each province and territory.  

This diversity and inclusiveness provide critical insights that help to shape criminal law policy development and to inform our legal and policy advice to the Minister of Justice and Attorney General of Canada. While the passage of resolutions calling for Criminal Code and other related criminal law amendments may not result in immediate legislative reform, the work of the ULCC Criminal Section is integral to this process. Officials at the federal Department of Justice turn regularly to past ULCC deliberations to inform the policy development process leading to amendments to the Criminal Code and related criminal statutes. The critical analysis and unique perspective from the delegates of the Criminal Section help to ensure that criminal legislation meet the highest standards of fairness, justice and respect for the rule of law and in turn that the Canadian criminal justice system retains the confidence and trust of the Canadian public.  

This Annual Report highlights federal-provincial-territorial (FPT) developments of interest to ULCC (Part I) and legislative initiatives with respect to the Criminal Law (Part III). Part II provides a status update of ULCC resolutions.  

Part I - FPT DEVELOPMENTS OF INTEREST TO ULCC 2019-2020  

FPT Ministers Responsible for Justice and Public Safety  
FPT Attorneys General and Ministers Responsible for Justice and Public Safety (Ministers) usually meet at least once a year to discuss key justice and public safety issues and give direction to government officials from the various jurisdictions on new and ongoing collaborative work being conducted over the year. Many of the issues discussed at these meetings are related to the issues raised by delegates to the ULCC.    

At their January 22, 2020 meeting in Victoria, Ministers outlined key priorities of their different jurisdictions, such as Indigenous justice issues, restorative justice, medical assistance in dying, conversion therapy, rural crime, firearms, money laundering, cannabis enforcement, human trafficking, and online child sexual exploitation. 

Ministers acknowledged the Calls for Justice contained in the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Ministers will continue their collaboration to reduce violence against, and victimization of, Indigenous women, girls, and LGBTQ2S persons. Ministers also recognized that, in partnership with Indigenous Peoples, all governments have a responsibility to address overrepresentation of Indigenous peoples in the justice system as both victims and offenders.

Ministers reiterated their commitment to building safer and healthier communities through the expanded use of restorative justice in the criminal justice system-an approach that seeks to repair harm and provide accountability-where and as appropriate. In 2018, ministers underscored the importance of restorative justice in addressing repeat offences and over representation of Indigenous and vulnerable populations in the criminal justice system. At the time, they also committed to a goal of a 5% increase in the use o f restorative justice, where possible, by 2021. With this in mind, ministers agreed to release a summary report identifying our country’s existing restorative justice programs and agencies, referrals made, and concrete steps jurisdictions have taken to inc rease the use of restorative justice.

In light of the recent Québec Superior Court ruling on medical assistance in dying, ministers discussed the challenges of, and possible responses to, this difficult, personal, and complex issue. Ministers also affirme d their commitment to high quality hospice or palliative care. Following an update on its ongoing consultations with Canadians, the federal government reiterated its commitment to amend its medical assistance in dying legislation. Ministers affirmed their commitment to protecting vulnerable individuals and the equality rights of all Canadians.

Ministers discussed the dangerous and harmful practice of conversion therapy and support was expressed for legislative and other measures to ban this practice, including the federal government’s intention to introduce amendments to the Criminal Code .

Ministers underscored the impact of rural crime and ways to reduce it, including criminal law reform and enhanced police response, so all Canadians, no matter where they live, feel safe, secure, and protected in their communities. Ministers agreed to examine the problem closely and revisit it at the next FPT meeting later this year.

Ministers were also provided with an update on federal measures to reduce gun and gang related violence across Canada, and discussed related issues such as drug trafficking, illegal gun sales and smuggling, and border security. As part of this conversation, they acknowledged the importance of treating law-abiding firearm owners fairly and with respect.

Ministers discussed money laundering, which is a crime that can affect all Canadians by undermining the integrity of Canada’s financial institutions and facilitating organized crime, gang activity, and gun smuggling. Ministers reiterated their support for a coordinated approach to better address this problem.

Ministers shared their views on the impact of the legalization of cannabis and enforcement issues, including the need for resources and tools to continue meeting the shared goals of protecting youth, eliminating illicit sales, combatting organized crime, and addressing drug impaired driving.

Ministers discussed human trafficking, which disproportionately affects women and girls, particularly Indigenous women and girls. Ministers supported further work to strengthen the response to this serious problem. Following a presentation by the Canadian Centre for Child Protection, ministers affirmed their commitment to combatting online child sexual exploitation and assisting victims. 

Prior to the FPT meeting, Hereditary Chief and Songhees Elder, Elmer Seniemten George, welcomed ministers. Ministers had a conversation with representatives from the Assembly of First Nations and the Métis Nation. Participants discussed the federal government’s commitment to introduce legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples. Ministers also received a presentation on B.C.’s Indigenous-led, co-developed Indigenous Justice Strategies.

CCSO was initiated in 1986. It has responsibility for analysis and recommendations on criminal justice policy issues that are of joint concern to the FPT governments. It serves as a key forum for discussion and analysis of these issues in a manner that incorporates the interests and responsibilities of the different jurisdictions and for producing recommendations and analysis that reflect these varying interests and responsibilities. CCSO has established a broad set of working groups to handle the work that is set before it. A number of issues that were the subject of ULCC Criminal Section resolutions in recent years are currently being considered by CCSO.

At their November 7-8, 2019, meeting in Banff and at their spring 2020 virtual meetings, all CCSO working groups were again reminded to follow-up on ULCC resolutions in order to report back on their follow-up by CCSO.

Following deliberations, delegates of the Criminal Section vote on resolutions presented by the Canada, provincial and territorial delegations. Resolutions are adopted by majority vote by a show of hands and may also be amended, withdrawn or defeated. A chart containing all the resolutions adopted by the Criminal Section since 1983 can be found on the Uniform Law Conference of Canada website.   During the past five years (2015-2019), the Criminal Section considered 129 resolutions. Of these, 15 were withdrawn, and one was defeated. Furthermore, in 2016, the ULCC adopted one special resolution to mark the untimely passing of Earl Fruchtman, the longstanding Jurisdictional Representative (JR) for Ontario. Adopted unanimously by a delegation vote, this resolution renamed the Open Forum, the Earl Fruchtman Memorial Seminar, which is a regular feature of the Criminal Section annual Conference intended to highlight areas of interest in the criminal justice system of the host jurisdiction.  

Of the remaining resolutions that were adopted during this five-year period, a number have been addressed in the context of legislative amendments to the Criminal Code and other Acts, such as the Canada Evidence Act.  Justice Canada continues to actively pursue policy development options in a number of resolutions. Several resolutions are also presently under study and consultation at CCSO. As this status update illustrates, the work of the ULCC Criminal Section is integral to policy development and criminal law reform in Canada.

Resolutions that have been addressed in statute

More than seventeen ULCC resolutions dealing with bail (QC2001-06, Can-CBA-2012-01, BC2010-03, Can-CBA2015-02, BC2016-04, SK2016-01), juries (Can-CBA2011-03), reclassification of offences, intimate partner violence, remote appearances (NB2017-01), judicial signatures (BC2007-04), re-election of the mode of trial (CCCDL2008-02, AB2011-01, CanCBA1997-03), out-of-province warrants (see the recommendations made in the August 2016 report of the ULCC Working Group on “Endorsement of Search Warrants, Orders and Authorizations in the Criminal Code and the Controlled Drugs and Substances Act”), and youth justice (BC2016-02 and MB2013-01) were taken into account in the development of  former Bill C-75, which received Royal Assent on June 21, 2019. The Bill addressed a number of issues including: modernizing and clarifying bail provisions; providing an enhanced approach to administration of justice offences, including for youth; abolishing peremptory challenges of jurors and modify the process of challenging a juror for cause and of judicial stand-by; restricting the availability of preliminary inquiries; streamlining the classification of offences; expanding judicial case management powers; and, enhancing measures to better respond to intimate partner violence.

Former Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, which received Royal Assent on December 13, 2018, also contains a number of past resolutions made by ULCC, including ON2003-01, AB2005-03 and QC2001-05 that called for subsection 145(3) of the Criminal Code to be amended to include violation of an order made under subsection 516(2). Former Bill C-84, An Act to amend the Criminal Code (bestiality and animal fighting), which came into force on June 21, 2019, followed up on resolution MB2017-01 that requested Justice Canada, in consultation with the provinces and territories, to review the Supreme Court of Canada’s decision of R v DLW, 2016 SCC 22 and examine whether the Criminal Code should be amended to criminalize any direct or indirect contact with an animal for a sexual purpose. It also took into account BC2017-03 that requested that section 160 (Bestiality) of the Criminal Code be amended to include a definition for bestiality, this being that “bestiality” includes any direct or indirect contact with an animal for a sexual purpose.

With respect to resolution SK2014-02 (election of adult sentence), Part 8 of An Act Respecting National Security Matters, which received Royal Assent on June 21, 2019, amends paragraphs 67(1)(c) and 67(3)(c) of the Youth Criminal Justice Act by replacing the current text in those paragraphs with “the young person is charged with first or second degree murder within the meaning of section 231 of the Criminal Code”. 

The Criminal Code was amended in line with ULCC Resolution AB2014-03, pursuant to An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts, S.C., c. 13, s. 16. This resolution called for Justice Canada to amend subsection 486.3(4.1) (Application) of the Criminal Code so as to allow any judge of the Court with jurisdiction over the offence to hear an application under section 486.3 (Accused not to cross-examine witness under 18) of the  Criminal Code prohibiting the personal cross-examination of witnesses in specified circumstances. The Act also took into account NS2003-02 as it amended subsections 486.3 (1) to (4.1) regarding when an accused cannot cross-examine a witness when he is self-represented.  Finally, the Anti-Terrorism Act 2015, S.C. 2015, c. 20, addressed the issue raised in resolution MB2014-01 A) which recommended that the Criminal Code be amended to allow the interjurisdictional transfer and enforcement of orders under sections 810, 810.01, 810.1, and 810.2 (sureties to keep the peace).

As mentioned earlier, the passage of resolutions calling for Criminal Code and other related criminal law amendments may not result in immediate legislative reform as developing criminal law policy and considering whether legislative proposals may move forward involves a number of steps. Moreover, all Government legislative reform proposals require approval of the federal Cabinet. Several legislative initiatives are of interest to the federal Minister of Justice. However, the Cabinet and legislative agenda include initiatives from all Ministers. While criminal law reform remains a government priority, it is not possible to forecast whether or when a particular ULCC proposal will result in legislative reform. While work of the ULCC may not result in prompt criminal law reform, its work remains important and has been reflected in past criminal reform legislation as outlined in the previous paragraphs.

As also indicated earlier, part of the policy development process conducted by Justice Canada takes place at the CCSO. To that end and given that the issues covered in ULCC resolutions fall within the CCSO areas of expertise, more than half of the resolutions adopted during the past five years have been referred to and further studied by CCSO and its working groups, including the Working Group on Criminal Procedure, the Working Group on High-Risk Offenders, the Working Group on Sentencing, the Working Group on Cybercrime, the Working Group on Mental Disorder, as well as the Coordinating Committee of Senior Officials on Youth Justice.  

Three (3) Justice-led Government bills are before Parliament. One bill of interest to Justice but lead by another Minister received Royal Assent.  During the same period, the Minister of Justice was leading the Government’s response to Private members’ business: three (3) Private Members’ Bills and four (4) Senate Public Bills.  

Further detail of these legislative initiatives are provided in the passages that follow.    

This enactment amends the Judges Act to restrict eligibility for judicial appointment to persons who undertake to participate in continuing education on matters related to sexual assault law and social context. It also amends the Judges Act to require that the Canadian Judicial Council report on seminars offered for the continuing education of judges on matters related to sexual assault law. Finally, it amends the Criminal Code to require that judges provide reasons for decisions in sexual assault proceedings.  

The Bill was introduced on February 4, 2020 and is currently being studied by the Standing Committee on Justice and Human Rights (March 10, 2020).  

This enactment amends the Criminal Code to, among other things, 

             (a)  repeal the provision that requires a person’s natural death be reasonably                                                                    foreseeable in order for them to be eligible for medical assistance in dying;  

             (b)  specify that persons whose sole underlying medical condition is a mental illness are not eligible                            for medical assistance in dying;  
     
             (c)  create two sets of safeguards that must be respected before medical assistance in dying may be                           provided to a person, the application of which depends on whether the person’s natural death is                         reasonably foreseeable;  

             (d)  permit medical assistance in dying to be provided to a person who has been found eligible to                                receive it, whose natural death is reasonably foreseeable and who has lost the capacity to consent                      before medical assistance in dying is provided, on the basis of a prior agreement they entered into                      with the medical practitioner or nurse practitioner; and  

             (e)  permit medical assistance in dying to be provided to a person who has lost the capacity to consent                      to it as a result of the self-administration of a substance that was provided to them under the                                provisions governing medical assistance in dying in order to cause their own death.  The bill was                          introduced on February 24, 2020 and was debated at second reading February 26 and 27, 2020. 

The bill was introduced on February 24, 2020 and was debated at second reading February 26 and 27, 2020.

This enactment amends the Criminal Code to, among other things, create the following offences:

              (a)  causing a person to undergo conversion therapy against the person’s will;  

              (b)  causing a child to undergo conversion therapy;  

              (c)  doing anything for the purpose of removing a child from Canada with the intention that the child                          undergo conversion therapy outside Canada;  

              (d)  advertising an offer to provide conversion therapy; and,  (e) receiving a financial or other material                         benefit from the provision of conversion therapy.  

It also amends the Criminal Code to authorize courts to order that advertisements for conversion therapy be disposed of or deleted.  

The Bill was introduced on March 9, 2020.

Under the lead of the Deputy Prime Minister and Minister of Intergovernmental Affairs, this enactment implements the Agreement between Canada, the United States of America and the United Mexican States, done at Buenos Aires on November 30, 2018, as amended by the Protocol of Amendment to that Agreement, done at Mexico City on December 10, 2019.  

The general provisions of the enactment set out rules of interpretation and specify that no recourse is to be taken on the basis of sections 9 to 20 or any order made under those sections, or on the basis of the provisions of the Agreement, without the consent of the Attorney General of Canada.  

Part 1 approves the Agreement, provides for the payment by Canada of its share of the expenditures associated with the operation of the institutional and administrative aspects of the Agreement and gives the Governor in Council the power to make orders in accordance with the Agreement. Part 2 amends certain Acts to bring them into conformity with Canada’s obligations under the Agreement. Part 3 contains the coming into force provisions.  

The Bill was introduced on January 29, 2020, and received Royal Assent on March 13, 2020. The majority of the provisions in Bill C-4 came into force on July 1, 2020, including clauses 3538, which create two new trade secrets offences in the Criminal Code.

This enactment repeals paragraph 207(4)(b) of the Criminal Code to make it lawful for the government of a province, or a person or entity licensed by the Lieutenant Governor in Council of that province, to conduct and manage a lottery scheme in the province that involves betting on a race or fight or on a single sport event or athletic contest.  

The Bill was introduced and received First Reading on February 25, 2020.  

This enactment amends the Controlled Drugs and Substances Act to require peace officers to consider measures other than judicial proceedings to deal with individuals alleged to have been in possession of certain substances. It also sets out principles to be taken into account in the determination of the most appropriate measures to take.  

The Bill was introduced on February 26, 2020 and was placed on the Order of Precedence on March 10, 2020.

This enactment amends the Criminal Code to provide that a person who is charged with an offence in respect of the possession of a firearm that is alleged to have been unlawfully imported into Canada is required to demonstrate that their pre-trial detention is not justified. It also increases the mandatory minimum penalty for the possession of such weapons.  

The Bill was introduced and received First Reading on February 27, 2020.  

This enactment amends the Criminal Code to make it an offence to advertise conversion therapy services for consideration and to obtain a financial or other material benefit for the provision of conversion therapy to a person under the age of eighteen.  

The Bill was introduced on December 10, 2019 and is currently at Second Reading (December 12, 2019).

This enactment amends the Criminal Code to create new offences in relation to trafficking in human organs. It also amends the Immigration and Refugee Protection Act to provide that a permanent resident or foreign national is inadmissible to Canada if the Minister of Citizenship and Immigration is of the opinion that they have engaged in any activities relating to trafficking in human organs.  

The Bill was introduced and received First Reading on December 10, 2019.  

This enactment amends the Criminal Code to provide that the prohibition against the disclosure of information relating to jury proceedings does not, in certain circumstances, apply in respect of disclosure by jurors to health care professionals.  

The Bill was introduced on December 12, 2019 and is currently at Second Reading debate (February 2 and 25, 2020).  

This enactment amends the Criminal Code to give a court the discretion to vary the punishment to be imposed in respect of an offence for which the punishment or different degrees or kinds of punishment is prescribed in an enactment.  

It allows a court to decide to not make a mandatory prohibition order provided for under a provision of that Act, or to add conditions or vary any of the conditions set out in that provision, if the court considers it just and reasonable to do so. It requires the court to provide its reasons for making such a decision.  

It requires a court to consider all available options prior to imposing a minimum punishment of imprisonment or period of parole ineligibility under a provision of that Act, and to provide written reasons for imposing a minimum punishment of imprisonment or period of parole ineligibility.  

It gives a court discretion in the treatment or counselling program that a person who has been found guilty of an offence may attend and removes the requirement for the Attorney General to give his or her consent in order to delay sentencing under subsection 720(2) of that Act.  

It provides that a judge is to take into consideration the recommendation of the jury in setting the period of parole ineligibility of a person who has been found guilty of first or second degree murder.  

The Bill was introduced on February 2, 2020 and is currently at Second Reading Debate (February 6, 18, 19, 25 and March 10, 2020). 

Justice Canada will maintain its close working relationship with ULCC and consult with the Criminal Section as it undertakes consultations in keeping with the mandate letter to the Minster of Justice and Attorney General of Canada and other related criminal law legislative proposals. Delegates are encouraged to follow the progress of these and other consulting the Parliament of Canada website, LEGISinfo at: criminal law reforms by http://www.parl.ca