2003 Criminal Section Recommendations
August 10-14, 2003 Fredericton, NB
Annex 2 of the Minutes of the Criminal Section
ALBERTA
Alberta - 01
That subsection 351 (1) of the Criminal Code be amended to make possession of a break-in instrument a hybrid offence.
(Carried: 24-1-1)
Alberta - 02
It is recommended that the Federal-Provincial-Territorial Working Group on Criminal Procedure review those provisions of the Criminal Code requiring consent of the Attorney General, the Deputy Attorney General or an agent acting on his behalf, to clarify what level of consent is required for each provision.
(Carried as amended: 29-0-0)
Alberta - 03
That section 648 of the Criminal Code be amended to provide that there be a ban on publication of all portions of the trial at which the jury is not present, including any pre-trial applications under subsection 645(5) that deal with matters necessarily heard in the absence of the jury until the jury returns its verdict.
(Carried as amended: 17-2-9)
Alberta - 04
That the Criminal Code be amended to:
a) increase the maximum fines for summary conviction offences, and
b) adjust the terms of imprisonment on a graduated scale for hybrid offences where the Crown elects to proceed by summary conviction
(Carried as amended: 21-4-2)
Alberta - 05
To amend the sentencing provisions of the Criminal Code to allow the sentencing judge power to order an accused to have no contact with named persons while the accused is incarcerated.
(Carried: 24-0-4)
Alberta - 06
That the Criminal Code be amended to enable a sentencing judge to order a psychiatric or psychological assessment of the accused for the purpose of determining a fit and proper sentence.
(Withdrawn)
MANITOBA
Manitoba - 01
That the mens rea requirement for attempted murder should be broadened so it is consistent with the intent required for murder.
(Withdrawn)
(Note passage of 2002 resolution submitted by Alberta on this issue)
Manitoba - 02
That paragraph (b) of the definition of "serious personal injury offence" in section 752 of the Criminal Code be amended to include the offences of sexual interference, invitation to sexual touching and sexual exploitation
(Withdrawn)
Manitoba - 03
Where an offence of criminal harassment involves the use of a telephone, section 662 should provide that the offence of harassing telephone calls is an included offence in criminal harassment.
(Defeated: 1-9-19)
NEW BRUNSWICK
New Brunswick - 01
That section 657.1 of the Criminal Code be amended to include proof of damage to property and the absence of consent to the said damages.
(Carried as amended: 26-2-2)
New Brunswick - 02
That paragraphs 498(1)(c) and (d), and 499(1)(b) and (c) of the Criminal Code be amended to allow the release from custody on a recognizance not exceeding $5000 (five thousand dollars). Furthermore, that within the above noted sections, that any and all references to the amount of $500 (five hundred dollars) be amended and replaced with the amount of $5000 (five thousand dollars).
(Carried as amended: 17-6-6)
New Brunswick - 03
To amend subsection 254(2) to make it clear that it need not be the same officer who forms the suspicion, makes the demand, administers the screening test and forms the opinion, based on the "fail" that he/she has grounds for the breathalyser demand. This would be in line with the legal requirements in Breathalyser demands where reasonable grounds may be obtained in a variety of ways.
(Withdrawn)
New Brunswick - 04
That Parliament addresses the inconsistencies in the Criminal Code with respect to the various ages of consent to sexual activity.
(Carried as amended: 17-0-13)
NEWFOUNDLAND AND LABRADOR
Newfoundland - 01
That paragraph 731(1)(b) of the Criminal Code and/or subsection 139(1) of the Corrections and Conditional Release Act be amended so that the imposition of a subsequent period of imprisonment will not invalidate a prior valid probation order.
(Carried -floor resolution: 20-1-9)
NOVA SCOTIA
Nova Scotia - 01
That the Department of Justice, in consultation with the provinces and other interested stakeholders, review legislative means for resolving the issues relating to drug impaired drivers, and in the process, address the anomaly in section 256 of the Criminal Code, whereby a person who's capable of consenting to a blood sample cannot have a sample seized by a warrant, nor can a demand be made for a blood sample by a peace officer.
(Carried as amended: 21-1-4)
Nova Scotia - 02
That Clause 15 of Bill C-20 be revised so that with respect to the proposed s.486.3, subsections 2 and 3 are deleted and subsection 4 is expanded to apply not only to criminal harassment cases but to sexual offences and serious personal injury offences as well. Moreover, instead of placing what appears to be an unmeetable onus on the accused, the provision should require the applicant who is seeking to prevent the accused from personally cross-examining the victim of the alleged offence to bear the onus of establishing that personal cross-examination by the accused would expose the victim to further emotional trauma, suffering, or harassment. The following redrafting of the proposed section 486.3(4) is suggested:
In any proceeding in respect of sections 153.1, 155, 239, 244, 244.1, 245, 264.1, 267, 268, 269, 269.1, 271, 272, 273 or 279, if on application by the prosecutor or by a victim of the alleged offence, the presiding judge or justice is of the opinion that there are reasonable grounds to believe that to permit the accused to cross-examine a victim of the alleged offence personally or through an agent would expose a victim of the alleged offence to further emotional trauma, suffering, intimidation or harassment, the presiding judge or justice shall appoint counsel for the purpose of conducting the cross-examination. Such an application may be made at any time in the proceeding and a victim of the alleged offence shall not be a compellable witness on the hearing of the application.
(Withdrawn)
(Note that Bill C-20 is currently before Parliament)
Nova Scotia - 03
That the Department of Justice in consultation with the provinces and other stakeholders review legislative means for resolving the issues relating to lengthy trials, including the risk of mistrials due to discharge of jurors
(Carried as amended: 27-0-2)
ONTARIO
Ontario - 01
That subsection 145(3) of the Criminal Code be amended to include violation of an order made under subsection 516(2).
(Withdrawn)
(Note 2001 resolution carried dealing with the same issue)
Ontario - 02
That the federal Department of Justice establish a regulation on an expeditious basis pursuant to subsection 467.1(4) containing a list of offences to be included in the definition of "serious offence" in that section, and that it develop the offences to be included in that regulation in collaboration with the provinces and territories.
(Carried 23-4-3)
Ontario - 03
That the presumption of care or control contained in paragraph 258(1)(a) be made applicable to the offence of refusal or failure to provide a sample under subsection 254(5).
(Carried 5-3-23)
Ontario - 04
To ask the Department of Justice to review the scope of the Attorney General consent requirement in subsection 164(7) and its application in subsection 164.1(8).
(Carried as amended: 18-0-12)
Ontario - 05
To amend section 487.055 so that a retroactive application can be brought before warrant expiry in the case of an offender who has been convicted of more that one sexual offence and who is now serving one or more sentences, including one for an eligible sexual offence, where the offender was sentenced to 2 years or more for that sexual offence, even through at the time of the application the offender may not be serving the particular sentence for that offence.
(Carried as amended: 16-7-4)
Ontario - 06
That subsection 524(12) be amended to include reference to section 516 in order that proceedings under section 524 may be adjourned.
(Carried as amended: 22-1-7)
Ontario - 07
To amend section 150 of the Criminal Code to include a definition of "night" for the purpose of Part V. The definition of "night" should provide greater flexibility than the definition of "night" in section 2 of the Code and, in particular, should take into account different seasons involving different hours of sunset.
(Defeated as amended: 10-11-9)
ONTARIO CRIMINAL LAWYERS ASSOCIATION
Ontario Criminal Lawyers Association - 01
That given recent amendments tabled in the House of Commons in May, 2003 in Bill C-38 with respect to the simple possession of marijuana offences, it is requested that the Departments of Justice and Solicitor General explore the possible alternatives and procedures for providing pardons for those who have in the past been convicted or found guilty of simple possession of marijuana.
(Carried - floor resolution: 12-0-18)
QUEBEC
Quebec - 01
Part 1
That the offence of taking part in a riot, as contemplated in section 65 of the Criminal Code, become a dual procedure offence.
(Carried as amended: 25-3-2)
Part 2
That the sentences for this offence (section 65) be set at a maximum term of imprisonment of five (5) years in the case of an indictable offence and eighteen (18) months for a summary conviction offence.
(Defeated as amended: 9-12-9)
Quebec - 02
To include the offences contemplated in sections 467.11, 467.12 and 467.13 of the Criminal Code in subsection 109 (1).
(Withdrawn)
(Without discussion - due to time constraints)
Quebec - 03
Part 1
To provide that the consent that is contemplated in subsection 119(2) of the Criminal Code may also be obtained from the Attorney General of the province where the offence is alleged to have been committed.
(Carried as amended: 20-4-7)
Part 2
To refer to the FPT Working Group on Criminal Procedure the issue of whether the consent required in subsection 119(2) should be given in writing.
(Carried as amended: 26-3-2)
Quebec - 04
- Make the offence of personating a peace officer contemplated in section 130 of the Criminal Code a dual-procedure offence.
- Increase the maximum term of imprisonment for summary conviction offences to eighteen (18) months, and make this term five (5) years in prosecutions for indictable offences.
(Withdrawn)
(Without discussion due to time constraints)
Quebec - 05
That the maximum term of imprisonment for the offence contemplated in section 153.1 of the Criminal Code be increased to ten (10) years in cases where the accused is guilty of an indictable offence.
(Withdrawn)
(Without discussion due to time constraints)
Quebec - 06
- Include in subsection 153.1(1) of the Criminal Code the word "invites" before the phrase "counsels or incites."
- Include, in paragraph 153(1)(b) and subsection 153.1 of the Criminal Code, the words "directly or indirectly" before the phrase "invites, counsels or incites."
(Withdrawn)
(Without discussion due to time constraints)
Quebec - 07
That, in paragraph 259(2)(a) of the Criminal Code, after the words "during any period that the court considers proper" to add wording to ensure that the prohibition on driving applies during any period that the offender is out of prison.
(Carried as amended: 26-0-3)
Quebec - 08
That a section 366.1 be introduced into the Criminal Code, to read as follows:
"366.1 Any person who, without just cause or a legitimate excuse, as the case may be,
(a) fabricates or repairs,
(b) buys or sells,
(c) exports from Canada or imports to Canada, or
(d) has in their possession
an instrument, apparatus, material or thing that reasonably leads to the conclusion, in the circumstances, that the person knows it can be used to falsify one or more documents or make forgeries of documents, or that the person knows has been designed, modified or intended for that purpose, is guilty of an indictable offence and is liable to a maximum term of imprisonment of ten (10) years, or is guilty of an offence punishable by summary conviction."
(Withdrawn)
(Without discussion due to time constraints)
Quebec - 09
To amend subsections 462.33(10) and 490.8(8) of the Criminal Code to provide that the restraint order and the conditions stipulated in it:
- remain in force notwithstanding the fact that there is an application for restitution of the property or an appeal of the confiscation, unless the authorities before whom such remedies are brought made an order to the contrary; and
- shall be reviewed if the time allowed for the appeal is extended.
(Carried: 25-0-5)
Quebec - 10
Give the judge who made an order under paragraph 462.34(4)(c) of the Criminal Code the power to review this order at the request of the Attorney General where new facts occur or facts are newly revealed.
(Withdrawn)
(Without discussion due to time constraints)
Quebec - 11
Provide, in sections 462.42 and 490.5 of the Criminal Code, that unless the circumstances are exceptional, the application shall be submitted to the judge who made the confiscation order.
(Without discussion due to time constraints)
(Withdrawn)
Quebec - 12
That justices of the peace have jurisdiction to make any orders under the scheme of section 490 of the Criminal Code.
(Withdrawn)
(Without discussion due to time constraints)
Quebec - 13
Allow covert entry for the purposes of installing a tracking device pursuant to section 492.1 of the Criminal Code.
(Withdrawn)
(Without discussion due to time constraints)
Quebec - 14
Amend paragraph 495(1)(b) C.C. so that a peace officer may arrest, without a warrant, an individual who has committed a criminal offence, even if the officer does not personally see the individual committing the offence.
(Withdrawn)
(Without discussion due to time constraints)
Quebec - 15
To increase to $1000 (one thousand dollars) the maximum amount that may be required under paragraphs 498 (1)(d) and 499(1)(c) of the Criminal Code.
(Withdrawn)
(Note passage of New Brunswick resolution # 2)
Quebec - 16
1. That the following conditions be added to the conditions that a peace officer may require of a person whom the officer releases under the terms of subsections 499(2) and 503.2(2) of the Criminal Code:
- prohibition on driving a motor vehicle
- prohibition on entering a certain area
- prohibition on possessing or using a pager or cell phone
- obligation to observe a curfew.
2.That these conditions may be waived for the purposes of engaging in legitimate paid employment or with the authorization of a police officer.
(Carried: 17-2-9)
Quebec - 17
That section 634 of the Criminal Code be amended in order to grant the defence and the prosecution an equal number of additional peremptory challenges where a replacement must be found for a juror who is excused before the evidence is heard.
(Withdrawn)
(Without discussion due to time constraints)
Quebec - 18
To give the judge who makes an order for the mental assessment of an accused under sections 672.11 and 672.16 of the Criminal Code the power to prevent the accused from contacting certain designated persons.
(Carried: 23-0-6)
Quebec - 19
To amend subsection 683(3) of the Criminal Code to confer expressly on the Court of Appeal, or on one of its judges - in addition to all the non-incompatible powers that the court may exercise in connection with an appeal in a civil case - the power to make orders to facilitate the proper conduct of the appeal, and to preserve the outcome of the appeal.
(Carried: 17-1-10)
Quebec - 20
To amend subsection 686(8) of the Criminal Code to make the exercise of complementary powers applicable to all cases where the court of appeal disposes of an appeal before it.
(Carried: 23-0-7)
SASKATCHEWAN
Saskatchewan - 01
That the Criminal Code and its Forms be amended to remove any requirement for Production Orders for accused persons who have been denied bail, for their own scheduled court appearances
(Carried: 22-0-7)
Saskatchewan - 02
That the Federal-Provincial-Territorial Working Group on Sentencing consider whether section 732.1 of the Criminal Code should be amended to add a personal service order as one of the optional conditions which may be included in an adult probation order so long as the victim consents.
(Carried as amended: 28-0-1)
Saskatchewan - 03
That section 254 of the Criminal Code be amended to permit a peace officer to make an approved screening demand on a person who the officer has reasonable and probable grounds to believe operated or had the care or control of a motor vehicle that was involved in an accident if the officer reasonably suspects that person had alcohol in his body, as soon as is reasonably practicable and, in any event, within 3 hours of the accident.
(Carried as amended: 20-5-5)
CANADA
CANADIAN BAR ASSOCATION
Canadian Bar Association - 01
That the Criminal Code be amended to provide a route of appeal for a finding under subsection 742.6(9) regarding breach of a conditional sentence.
(Carried as amended: 9-8-13)
Canadian Bar Association - 02
Part 1
That the definition of "unfit to stand trial" in section 2 of the Criminal Code be amended to include the words "or sentence imposed" after the words "verdict is rendered" in the definition itself. And, that complementary amendments be made to permit an assessment to determine fitness to be sentenced.
(Defeated as amended: 1-14-15)
Part 2
That the Federal/Provincial/Territorial Working Group on Sentencing and Mental Disorder move expeditiously to consider the dispositional implications of amendments to the definition of "unfit to stand trial" in section 2 of the Criminal Code.
(Carried as amended: 24-0-6)
Canadian Bar Association - 03
That section 718.2 be amended by adding, at the end of paragraph (a)
…. aggravating circumstances; and
(vi) a history of social disadvantage in relation to the offender shall be considered a mitigating factor
(Withdrawn)
Canadian Bar Association - 04
That section 726 be amended to provide that a failure to comply with section 726 shall not affect the validity of the sentence so long as the failure was not intentional and so long as the offender is represented by counsel who had an opportunity to make submissions on behalf of the offender.
(Defeated as amended: 6-12-12)
Canadian Bar Association - 05
Section 9(a) of the Criminal Code should be expanded to state:
(a) … of an offence of common law, including an offence pertaining to a failure to comply with a common law duty, …
(Defeated: 2-22-6)
CANADIAN COUNCIL OF CRIMINAL DEFENCE LAWYERS
Canadian Council of Criminal Defence Lawyers - 01
That paragraph 686(1)(b)(iv) be amended to explicitly include Crown appeals from acquittal.
(Defeated: 1-21-7)