2002 Criminal Section Recommendation
CRIMINAL SECTION AUGUST 18-22, 2002 YELLOWKNIFE, NORTHWEST TERRITORIES
ALBERTA
ITEM 1
Appeal Process
That the Criminal Code be amended to ensure a comprehensive and efficient appeal process in situations where a trial court has found the accused guilty of an offence but thereafter judicially stayed the proceedings as an abuse of process or as a Charter, section 24(1) remedy.
(Carried: 13-1-5)
ITEM 2
Appeals of Cost Orders, Summary Conviction Proceedings
At the present time there does not appear to be an appeal route for cost awards in relation to summary conviction offences. The Supreme Court of Canada ruling in 9746490 Ontario Inc, provides authority for provincial court judges to award costs for Charter violations on summary conviction matters. An amendment to the Criminal Code is required similar to the provision relating to indictable matters enacted as section 676.1
(Carried: 16-0-3)
ITEM 3
Mens Rea – Attempted Murder
That the Criminal Code be amended to add a section or amend an existing section to expressly provide that an accused is guilty of attempted murder where the Crown has proven beyond a reasonable doubt that the accused meant to cause the victim bodily harm that he knew was likely to cause the victim’s death, and was reckless whether death ensued or not.
(Carried: 17-2-1)
BRITISH COLUMBIA
ITEM 1
Delay of Sentencing for Treatment Programs
Part 1
It is recommended that section 720 of the Criminal Code be amended or a new subsection added to permit a court to adjourn the sentencing of an offender to permit the offender to participate in a treatment program where the court is satisfied that the adjournment would not interfere with the proper administration of justice.
(Amended)
(Defeated 7-10-5)
Part 2
It is recommended that section 720 of the Criminal Code be amended or a new subsection added to permit a court to adjourn the sentencing of an offender to permit the offender to participate in a treatment program where the court is satisfied that the adjournment would not interfere with the proper administration of justice and where a treatment program is authorized by an Order-in-Council or a consistent process (ie. authorized by the government).
(Carried 8-5-9)
Part 3
It is recommended that section 720 of the Criminal Code be amended or a new subsection added to permit a court to adjourn the sentencing of an offender to participate in a treatment program where the court is satisfied that the adjournment would not interfere with the proper administration of justice and where a treatment program is authorized by Order-in-Council or a consistent process and where there is consent of the Crown.
(Carried 16-5-1)
ITEM 2
Fees for Court Appointed Counsel
That a provision be added to the Criminal Code providing that in the absence of a direction by the court, fees and disbursements for court appointed counsel shall be determined in accordance with the Legal Aid tariff of the province.
(Withdrawn)
ITEM 3
Psychiatric Assessment on Parole Eligibility Hearings
That the Criminal Code be amended to permit a court to order a psychiatric or psychological assessment to assist the court in determining eligibility for parole.
(Carried 13-7-7)
ITEM 4
Long Term Offender Sentence Commencement Date
That section 746 of the Criminal Code be amended to apply to the calculation of the period of imprisonment served for the purposes of long term offender designations under section 753.1.
(Carried 16-4-2)
ITEM 5
Reverse Onus on Bail Hearing – Breach of Long Term Supervision Order
That sub section 515 (6) be amended to include a provision for a reverse onus on any bail application alleging breach of a long term offender supervision order.
(Carried 14-6-2)
MANITOBA
ITEM 1
Prohibited Weapons – Mace & Mace Like Weapons
That the Criminal Code be amended to add maces and mace like weapons to the list of prohibited weapons (in Part 3).
(Carried 15-0-7)
ITEM 2
Harmonizing Penalties for Driving Offences – Death or Bodily Harm
That the federal government undertake a review of the various driving offences with a view to harmonizing the penalties that apply when death or bodily harm result.
(Carried 15-0-7)
ITEM 3
Court Appointed Counsel
That the Criminal Code be amended to provide that in appropriate circumstances, the court should have authority to appoint counsel to conduct the cross examination of any witness in any case where the accused is self represented.
(Amended)
(Carried 21-0-2)
ITEM 4
Publication Ban – Appeal
That the Department of Justice consider whether and how the Criminal Code should be amended to provide for an appeal of a publication ban.
(Carried 21-0-2)
NOVA SCOTIA
ITEM 1
Prohibition Orders
That subsection 161 (1) of the Criminal Code be amended so that it will apply to offences committed under subsection 173 (2).
(Amended)
(Carried 17-3-4)
ITEM 2
Publication Bans on Proceedings for Breach of a Publication Ban
That paragraph 486(3)(a)(i) of the Criminal Code be amended to include an offence under subsection 486(5).
(Carried 8-3-13)
ONTARIO
ITEM 1
Pardons – Impaired Driving / Over 80
That the Criminal Records Act, subsection 7.2(a)(ii) be amended so the exemption currently provided for drinking and driving offences does not apply where the pardon is for a drinking and driving offence.
(Amended)
(Carried 20-0-4)
ITEM 2
Adding / Replacing Charges
That subsection 523(1.1) of the Criminal Code be amended to allow the section to apply to situations where another offence is laid as replacement or supplement to the original charge as long as it arises from the same transaction as the original charge.
(Amended)
(Carried 20-0-4)
ITEM 3
Break and Enter – Testimonial Assistance
That subsections 486(2.1) and (3) of the Criminal Code be amended to include reference to section 348 (break and enter) where the intent is to commit one of the offences listed in the subsection (ie. 486(2.1), (3), or where one of the offences listed in the subsection has been committed.
(Carried 12-3-9)
ITEM 4
Testimonial Aids for Victims and Witnesses
That the Department of Justice undertake a review of the protections provided in subsection 486(2.1) and section 715.1 in order to determine whether other offences or situations should be included and to amend these sections on a priority basis in accordance with the results of this review.
(Amended)
(Carried 17-0-4)
ITEM 5
Prohibition Order to Protect Children
That the Criminal Code be amended to add a reference to subsection 173(2) to the list of offences included in section 161 so that the order is available where a person is convicted under subsection 173(2).
Withdrawn due to passage of Nova Scotia # 1 on the same issue.
ITEM 6
Appeal Routes For Order to Return Seized Property
That the Criminal Code be amended to clarify the appeal route set out in subsection 490(17) so that an appeal from a superior court order does not go before a summary conviction appeal court (i.e. a superior court).
(Carried 23-0-0)
ITEM 7
Psychiatric Report – DO, LTO
That subsection 752.1(2) of the Criminal Code be amended to lengthen the period of time for which the assessment report can be filed with the court to 30 days, or as soon thereafter as practicable during any period that the court, upon application, allows.
(Carried 23-0-0)
ITEM 8
Abandoning A Child
That the Criminal Code be amended to clarify that the offence in section 218 does not require the prosecution to establish that the accused intended to endanger the life or health of the child being exposed or abandoned.
(Withdrawn)
ONTARIO
CRIMINAL LAWYERS ASSOCIATION
ITEM 1
Presentence Custody – Commencement of Sentence
That the issue of commencement of sentences and the issue of pre trial custody be referred to the FPT Working Group on sentencing for review and to report back to ULC in 2003.
(Amended)
(Carried 17-0-5)
QUEBEC
ITEM 1
Omnibus Bill to Give Effect to the Proposals Adopted at ULC
That the Steering Committee of the Criminal Section of the ULC be mandated to bring forward suggestions to follow up expeditiously on resolutions passed and that the Committee report back to the Criminal Section in 2003.
(Amended)
(Carried 16-0-3)
ITEM 2
Obtaining an Endorsement or a Warrant
That sections 487 and 487.03 of the Criminal Code be amended, based on the model in section 528 of the Criminal Code, to provide for the procedure for obtaining the endorsement and the use of or means of telecommunication that produces a writing.
(Carried 21-0-3)
ITEM 3
Period of Detention of Things Seized
That section 490 of the Criminal Code be amended to allow the ex parte application for the extension of the period for the detention of things seized and allow the sealing of information given for that purpose when acting otherwise would be harmful to the administration of justice.
If the judge is not convinced that the conditions of section 487.03 have been met he will order the appellant to give three days notice as set out in section 490(2). If the application is allowed in an application hearing, an order clarifying the access to, and disclosure of, any information relating to the application under section 487.3 will be made.
(Carried 16-0-6)
ITEM 4
Being Unlawfully in a Dwelling House
That sections 348 and 349 of the Criminal Code be amended to also penalize the unlawful entry into a dwelling house where the person is reckless as to whether their presence would cause the occupants to reasonably fear for their safety.
(Withdrawn after discussion)
SASKATCHEWAN
ITEM 1
Prohibition Orders
That section 161 of the Criminal Code be amended to allow an order under that section to be made in the event of a conviction under subsection 173(2).
Withdrawn because of passage of Nova Scotia #1 on the same issue
ITEM 2
Release on Bail with Consent
(Note this is a resolution of the CAPCJ)
A. That the Criminal Code be amended to provide for release of a detained person upon an Undertaking or Recognizance entered into before a clerk of the court or registrar of the court without a judicial interim release hearing, where the Crown prosecutor and counsel for the accused have endorsed a form confirming their agreement that the accused be released and as to any terms of such release. The Undertaking or Recognizance thereby entered into should be enforced in the same manner as are Undertakings and Recognizance’s presently provided to police officers and justices under sections 503, 499 and 515.
B. That the above noted resolution be referred to the FPT Working Group on Criminal Procedure.
(Carried 14-1-9)
ITEM 3
Elimination of Value of Loss as Element of All Property Offences
That sections 334, 355, 362, 380 and 430 of the Criminal Code be amended to eliminate the value of loss as an essential element of the offence to be proven, and to make those offences Crown option offences with the maximum imprisonment period of 18 months on a summary conviction proceeding.
(Carried 15-7-2)
ITEM 4
Terminology re “Videotape”
That sections 715.1 and 715.2 of the Criminal Code be amended to substitute “video record” for the word “videotape” or that other appropriate wording be employed.
(Carried 23-0-0)
CANADA
Canadian Council of Criminal Defence Lawyers
ITEM 1
Victim Impact Statements - Removal of Inappropriate Material
That section 722.1 of the Criminal Code be amended to provide a mechanism which would allow a defendant/accused to apply to a judge, other than the trial judge, to remove inappropriate material from any victim impact statement which is to be considered by the court at the time of sentencing of the offender.
(Withdrawn after discussion)
ITEM 2
Appeal for Interlocutory Orders
That the ULC Criminal Section refer to the Department of Justice the issue of whether appropriate amendments should be made to the Criminal Code to allow for applications for leave to appeal to Provincial or Territorial appellate courts from procedural or interlocutory decisions of a lower court, which are final in their effect.
(Amended)
(Carried 22-0-1)