HomeCriminal Recommendations 2004 Criminal Section Recommendations

2004 Criminal Section Recommendations

Regina, Saskatchewan
August 22-26, 2004

CRIMINAL SECTION

Annex 2 of the Minutes of the Criminal Section

RESOLUTIONS

ALBERTA
Alberta - 01

Amend section 372 (false messages, indecent and harassing telephone calls) of the Criminal Code to include all forms of modem communication including electronic communications via the computer or other wireless communication. This includes, but is not limited to email, instant messaging and pagers.

Withdrawn (Note passage of New Brunswick resolution # NB2004-01)

Alberta - 02
A - That Justice Canada review the (3) three month initial detention period prescribed by s. 490 (detention of things seized) of the Criminal Code with a view to extending that initial detention period in complex cases and cases involving voluminous evidence.

Carried as amended: 24-0-4

B - That the Criminal Code be amended to direct the hearing of applications under ss. 490(8) (application- order of return - exception) or 490(9) (disposal of things seized) to the provincial court; and condition extensions of detention on a test balancing the nature of the property interest interfered with and the need for the property in any ongoing complex or voluminous investigation.

Carried as amended: 16-0-12

Alberta- 03
Amend the Criminal Code by increasing the maximum penalty on summary conviction for offences under sections 151 and 152 (sexual interference and invitation to sexual touching) to 18 months incarceration.

Carried: 20-5-2

Alberta - 04
Modify the Criminal Code to prescribe a mandatory prohibition order for offences under s. 249.1 (flight from police).

Carried as amended: 14-6-7 

Alberta - 05
Add subsection 249.1(3) - Flight causing bodily harm, or death to schedule 1 of the Corrections and Conditional Release Act.

Carried: 22-5-1

Alberta - 06
A - Subsection 249.1 (1) (flight from police) should be added as a secondary designated offence for the purposes of the DNA legislation in the Criminal Code.

Carried: 12-9-7

B - Subsection 249.1(3) (flight from police causing bodily harm or death) should be added as a secondary designated offence for the purposes of the DNA legislation in the Criminal Code.

Carried: 23-4-1

Alberta - 07
That the bail forfeiture procedures in sections 770 and 771 of the Criminal Code be streamlined and that the development of the details of those procedures be developed by referral of this resolution to the Federal-Provincial-Territorial Working Group on Criminal Procedure.

Carried as amended: 24-0-4

Alberta - 08
Recognizing that the imposition of a probation order is an important part of a sentence disposition and that the automatic nullification of that order when a sentence of imprisonment in excess of 2 years comes to exist, is contrary to the proper administration of justice, it is recommended that the Criminal Section of the Uniform Law Conference make proposals to Justice Canada on how best to rectify the problem.

Carried as amended: 22-1-3

Alberta - 09 
Section 733.1 (failure to comply with probation order) of the Criminal Code should be amended to set out a procedure allowing breaches to be proven using the supervisor's report and the signed reports of any other witnesses. Safeguards should be worked into the section to protect the accused's right to a fair trial.

Withdrawn (Following discussion)

Alberta - 10
Section 172.1 (luring a child) of the Criminal Code should be added immediately to the list of “primary designated offences” under section 487.04 (Forensic DNA analysis).

Withdrawn (Note passage of Nova Scotia resolution# NS2004-03 on the same issue)

BRITISH COLUMBIA
British Columbia - 01

That subsection 55(3) (restriction on use of information) of the Canada Elections Act be amended to permit the use of information contained in the Federal Register of Electors for the creation of jury source lists.

Carried: 18-0-12

British Columbia - 02
That an offence be created prohibiting production and possession of counterfeit mail box keys.

Withdrawn (Following discussion)

British Columbia - 03
That a provision be added to the Youth Criminal Justice Act permitting the Provincial Director to vary optional supervision in the community conditions previously set by the Provincial Director.

Carried: 18-0-11

British Columbia - 04
That the reference to paragraph (h) in subsection 119(6) (records of assessments) of the Youth Criminal Justice Act be amended to refer to paragraph (i) permitting the provincial director, or director of the provincial correction facility for adults or the penitentiary at which the young person is serving a sentence access to medical, psychological and psychiatric reports made under s. 34.

Carried: 21-3-5

British Columbia - 05
That subsection 99(4) (notice of hearing) of the Youth Criminal Justice Act be amended to permit a court to reduce the notice period to less than 5 clear days.

Withdrawn

British Colombia - 06
That s. 2 of the Identification of Criminals Act be amended to ensure that, in pre-charge screening jurisdictions, persons who are in lawful custody, but not yet charged with an indictable offence, can be fingerprinted and photographed where the police intend to seek charge approval.

Carried as amended: 22-3-4

British Colombia - 07
That s. 39(1)(b) of the Youth Criminal Justice Act be amended to permit the court to consider the violation of any sentence in deciding whether to impose a custody sentence.

Carried: 15-6-8

British Columbia - 08
That section 130 (personating a peace officer) of the Criminal Code be hybridized to permit proceeding by indictment or summary conviction.

Withdrawn

British Columbia - 09
That s. 119 (persons having access to records) of the Youth Criminal .Justice Act be amended to permit use of a court transcript from a previous YCJA proceeding in any other court proceeding at any time for the purpose of refreshing the memory of a witness, meeting a disclosure obligation or cross-examining a witness.

Withdrawn

British Columbia - 10
That Justice Canada be urged to resist the use of incorporation by reference in legislative drafting.

Withdrawn (Chair notes that this item could be considered by the Drafting Section of ULC and that it will be brought to their attention.)

MANITOBA
Manitoba - 01

Justice Canada should carefully re-examine the objective of section 172 (corrupting children) of the Criminal Code in the context of other existing offences and provincial child protection statutes and determine whether it should be either amended or repealed.

Carried as amended: 26-0-0

Manitoba - 02
Notwithstanding the provisions that give provincial courts jurisdiction to try absolute jurisdiction offences, section 468 of the Criminal Code should be amended to give the superior court jurisdiction to try any offence that arises from the same transaction as an indictable offence, with the indictable procedure to then apply.

Carried as amended: 17-0-4

Manitoba - 03
That a working group of ULC - Criminal Section be formed to consider whether section 565(2) of the Criminal Code should be amended to provide that where a direct indictment is preferred, the accused is deemed not to have requested a preliminary hearing but may elect to be tried either by a court composed of a judge alone, a court composed of a judge and jury or, in the case of an offence not covered by s. 469, a provincial judge; and whether other necessary amendments are needed; and that the working group report back to ULC 2005. 

Carried as amended: 21-0-5

Manitoba - 04
Section 759 (appeal- dangerous offender) of the Criminal Code should be amended to include an express power to allow the court of appeal to remit a case to the sentencing judge, with directions where necessary, as an additional remedy in cases where a full re-hearing may not be necessary in the interests of justice.

Carried: 11-5-12

NEW BRUNSWICK
New Brunswick - 01

Section 372 of the Criminal Code should be amended to include any means of electronic communications, specifically where subsections 372(2) (indecent telephone calls) and 372(3) (harassing telephone calls) are concerned 

Carried as amended: 26-2-1

New Brunswick - 02
That section 462.48 (re: disclosure of income tax information) of the Criminal Code be amended, by removing designated substance offence and replacing it with designated offence, to remain consistent with the other amendments made to the proceeds of crime sections of the Criminal Code.

Carried: 13-7-5

New Brunswick - 03
The Criminal Code should be amended to include a mechanism to allow the Crown to apply for a stay of sentence pending the resolution of an appeal. The same type of undertaking prescribed in section 679 could be utilized should there be concerns for the public interest.

Withdrawn (Following discussion)

NOVA SCOTIA 
Nova Scotia - 01

That the Federal-Provincial-Territorial Working Group on Mental Disorder consider whether, and how, firearm prohibition orders could be imposed on persons found not criminally responsible on account of mental disorder.

Carried as amended: 23-4-2

Nova Scotia - 02
That the Criminal Code and its Forms be amended to add the inclusion of section 172.1 (luring a child) as a designated offence for Part VI wiretap applications (section 183).

Carried: 25-0-3

Nova Scotia - 03
That the Criminal Code and its Forms be amended as follows: Section 172.1 (luring a child) be added immediately to the list of “primary designated offences” under section 487.04 (forensic DNA analysis).

Carried: 25-1-3

Nova Scotia - 04
That the Criminal Code and its Forms be amended to address electronic communication (s. 372 of the Criminal Code).

Withdrawn (Note passage of New Brunswick resolution# NB2004-01 on the same issue)

Nova Scotia - 05
Amend ss. 487.051 and 487.052 of the Criminal Code to provide for an order authorizing the taking of bodily samples for DNA analysis in respect of a person found not criminally responsible in relation to a designated offence on account of mental disorder under s. 672.34.

Carried: 24-4-4

Nova Scotia - 06 
Amend sections 487.1 (telewarrants) and 529.5 (telewarrant) of the Criminal Code to delete the phrase “...and that it would be impracticable...with section 256 or 487” (s. 256 re: warrants to obtain blood samples; s. 487 re: information for search warrant).

Withdrawn (Note passage of Quebec resolution #QC2004-01 on same issue)

Nova Scotia - 07
To amend s. 738 (restitution) of the Criminal Code so that an offender must give a sworn statement with respect to property, income and expenses if he is contesting a Restitution Order based on impecuniosity.

Withdrawn (Following discussion)

ONTARIO
Ontario - 01

Amend the Criminal Code to clarify that, where an indictment is preferred under s. 577 (direct indictments), the accused's status on judicial interim release continues in the new proceedings subject to variance by the superior court judge.

Carried as amended: 24-1-4

Ontario - 02
Amend s. 107 (false statement) of the Criminal Code to clarify that the commission of the offence is not restricted to situations where the false report or statement is knowingly made in the presence of a peace officer or chief firearms officer, but includes situations where a false report or statement is knowingly made by an individual and provided to that officer.

Carried: 28-0-0

Ontario - 03
Amend the Criminal Code provisions relating to counterfeiting in order to establish a more sensitive scheme that differentiates between various activities relating to counterfeiting, or level of these activities, resulting in a set of offences with differing maximum penalties, some of which will be hybrid offences.

Carried: 25-1-3 

Ontario - 04
Make section 351 (possession of break-in instruments) of the Criminal Code a hybrid offence.

Withdrawn (Note passage of Alberta resolution # AB2003-01 on the same issue)

Ontario - 05
Create a criminal offence that, subject to a reasonable excuse or other defence, would prohibit interference with legitimate or lawful efforts to contact an emergency service, or call 911.

Carried: 20-5-4

ONTARIO CRIMINAL LAWYERS ASSOCIATION
Ontario Criminal Lawyers Association - 01

That the Federal Government consider an amendment to s. 802.1 (limitation on the use of agents) of the Criminal Code to allow for provincial regulation of all agents in all summary conviction matters.

Carried as amended: 21-0-8 (Floor resolution)

QUEBEC
Quebec - 01

A - That the Criminal Code be amended to make it possible to obtain any warrant by a means of telecommunication.

Carried: 22-0-4

B - That the Criminal Code be amended to provide that to obtain a warrant by a means of telecommunication, that it no longer be necessary to show that it is impracticable to appear personally before a justice.

Carried: 23-0-5

Quebec- 02 
A - Include in subsection 153.1(1) (sexual exploitation of persons with disability) of the Criminal Code the word “invites” before the phrase “counsels or incites.”

B - Include, in paragraph 153(1) (b) (sexual exploitation- young persons) and in subsection 153.1 (1) of the Criminal Code, the words “directly or indirectly” before the phrase “invites, counsels or incites.”

Withdrawn (Following discussion)

Quebec - 03
Include the offences referred to in sections 467.11 (participation in activities of criminal organization), 467.12 (commission of offence for criminal organization) and 467.13 (instructing commission of offence for criminal organization) of the Criminal Code in subsection 109 (1) (mandatory prohibition order - possession of weapons) or subsection 110(1) (discretionary prohibition order - possession of weapons).

Carried as amended: 23-0-4

Quebec - 04
Amend paragraph 495(1) (b) of the Criminal Code 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.

Carried: 12-7-7

Quebec- 05
That the maximum term of imprisonment for the offence contemplated in section 153.1 (sexual exploitation of person with disability) of the Criminal Code be increased to ten (10) years in cases where the accused is guilty of an indictable offence.

Carried: 20-4-3

Quebec - 06
A - Make the offence of personating a peace officer contemplated in section 130 of the Criminal Code a dual-procedure offence.

Carried: 23-3-4 

B - 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

Quebec - 07
That the activity of possession of things or data under circumstances that give rise to a reasonable inference of use for the purpose of forgery be addressed by the Department of Justice Canada which is considering relevant legislative amendments in a broader context of identity theft.

Carried as amended: 18-2-1

Quebec - 08
Give the judge who made an order under paragraph 462.34(4)(c) (re: order for revocation, variation of property seized) 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 - 09
Allow covert entry for the purposes of installing a tracking device pursuant to section 492.1 (information for tracking warrant) of the Criminal Code.

Carried: 19-0-2

Quebec - 10
That justices of the peace have jurisdiction to make any orders under the scheme of section 490 (detention of things seized) of the Criminal Code.

Withdrawn (Without discussion due to time constraints)

Quebec - 11
Provide, in sections 462.42 (application- claim interest for relief from forfeiture) and 490.5 (application- offence related property forfeited) of the Criminal Code, that unless the circumstances are exceptional, the application shall be submitted to the judge who made the confiscation order.

Withdrawn (Without discussion due to time constraints)

Quebec - 12
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)

SASKATCHEWAN
Saskatchewan - 01

That the Criminal Code be amended to provide that demonstrable risk of danger is not an essential element of the offence of impaired care or control of a motor vehicle.

Carried: 19-5-4

CANADA
CANADIAN BAR ASSOCATION
Can-CBA-01

Section 606(4) (plea to an included or other offence) of the Criminal Code should be amended to explicitly allow for pleas of not guilty to the offence as charged, but guilty to any other offence arising out of the same transaction, whether or not it is an offence arising out of any other Provincial or Federal statute.

Withdrawn (Following discussion)