2005 Criminal Recommendations
CRIMINAL SECTION August 21-25, 2005 St. John's, Newfoundland & Labrador
Annex 2 of the Minutes of the Criminal Section
ALBERTA
Alberta - 01
A working group of the Uniform Law Conference of Canada should be created to examine the feasibility of creating a distinct offence of strangulation as a general intent offence, and to assess whether existing provisions adequately address the seriousness and significance of this specific conduct. This form of assault is particularly prevalent in the context of domestic violence.
Carried as amended: 18-2-7
Alberta - 02
Section 507.1 (private prosecution) of the Criminal Code should be amended to enable a provincial court judge to preclude an individual from laying an information to initiate a hearing pursuant to section 507.1 without leave, where that individual has demonstrated a pattern of initiating repeated and persistent hearings without cause.
Defeated: 4-17-5
Alberta - 03
Amend subsection 145(3) (failure to comply with condition of undertaking or recognizance) of the Criminal Code to include as an offence breaches of orders made under subsection 516 (2) (non-communication orders).
Carried: 26-0-1
Alberta - 04
Paragraph 183 (a) (designated offences - interception of private communications) of the Criminal Code should be amended to include section 234 (manslaughter) in the list of designated offences pursuant to that section.
Carried: 22-0-5
Alberta - 05
The phrase "if the warrant has been endorsed by a justice under subsection 507(6)" should be deleted from subsection 499(1) (release from custody by officer in charge where arrest made with warrant) of the Criminal Code.
Withdrawn following discussion
(as a result of a similar resolution carried in 1999 - QC # 8)
BRITISH COLUMBIA
British Columbia - 01
That Justice Canada be urged to amend the financial institution provisions of the Canada Evidence Act to provide for the admissibility of records created and maintained through outsourcing.
Carried: 12-2-12
British Columbia - 02
That section 173 (indecent acts, exposure) of the Criminal Code be amended to add the offence for any person to commit an indecent act knowing that the act is open to public view or being reckless as to whether the act is open to public view.
Defeated as amended: 5-10-10
MANITOBA
Manitoba - 01
Section 259 of the Criminal Code should be amended to allow a judge to impose a driving prohibition where the offender is convicted of driving while prohibited.
Withdrawn
Manitoba - 02
Section 259 of the Criminal Code should be amended to require a sentencing judge to impose a driving prohibition where an offender is convicted of either impaired driving causing death or impaired driving causing bodily harm.
Carried: 22-0-4
New Brunswick
New Brunswick - 01
The Criminal Code should be amended to make section 173 (indecent acts, exposure) a hybrid offence, allowing for a greater range of sentence when dealing with repeat offenders.
Carried: 16-7-3
New Brunswick - 02
The Criminal Code should be amended to include section 173 (indecent acts, exposure) and not only subsection 173(2) (exposure) in subsection 172.1(1) (luring a child by means of a computer system).
Withdrawn following discussion
New Brunswick - 03
The Criminal Code should be amended to make subsection 210 (2) (common bawdy-house - offence) hybrid offence. Subsection 210 (3) (notice of conviction served on owner) should also be amended to allow the notification provision to apply to convictions pursuant to subsection 210 (2).
Withdrawn following discussion
New Brunswick - 04
The Criminal Code should be amended to include a provision for a non-communication order while an accused is serving any sentence.
Carried as amended: 26-0-2
New Brunswick - 05
Section 743.6 (power of court to delay parole) of the Criminal Code should be amended to replace all references to "full parole" to "any form of unescorted release".
Carried as amended: 16-6-6
Newfoundland and Labrador - 01
Amend paragraph 731(1)(b) of the Criminal Code and/or subsection 139(1) of the Corrections and Conditional Release Act so that the imposition of a subsequent period of imprisonment will not invalidate a prior valid probation order.
Withdrawn
(see 2005 Report of the ULCC - Criminal Section Working Group on Probation)
Floor resolution
Newfoundland and Labrador - 02
Amend section 536.4 (justice may order hearing) of the Criminal Code to clarify that in the absence of a statement of issues and witnesses or an agreement to limit the scope of the preliminary inquiry, the justice conducting the hearing may order that the preliminary inquiry proceed in accordance with the provisions of Part XVIII.
Defeated as amended: 5-10-11
Floor resolution
NOVA SCOTIA
Nova Scotia - 01
That subsection 4(2) of the Canada Evidence Act be amended to add section 163.1 (child pornography) of the Criminal Code as one of the offences for which a spouse is competent and compellable as a witness for the prosecution.
Defeated: 4-9-11
Nova Scotia - 02
Amend paragraph 31(5)(b) (issuing arrest warrant) of the Youth Criminal Justice Act to provide for the issuance of a warrant of committal for the young person directing peace officers to arrest the young person and deliver him or her to the keeper of a designated place of detention for young persons and to bring the young person before a youth justice court judge or justice as soon as practicable for the purposes of a judicial review of the detention.
Withdrawn following discussion
Nova Scotia - 03
Amend section 36 (guilty plea) of the Youth Criminal Justice Act to require that the justice conduct the finding of guilt hearing immediately upon the entering of a guilty plea by the young offender.
Defeated: 4-18-4
Nova Scotia - 04
A- That section 29 (detention as social measure prohibited) of the Youth Criminal Justice Act be amended to add a provision that notwithstanding subsection 29 (2) (detention presumed unnecessary) of the YCJA, where a young person is charged with an offence under subsections 145(2) - (5.1) (failure to appear, to comply with summons, undertaking, recognizance etc.) of the Criminal Code that is alleged to have been committed while he was at large after being released in respect of another offence, that the youth court justice may order the young person detained in custody prior to sentence.
Carried as amended: 13-3-9
B- That the Uniform Law Conference of Canada - Criminal Section recognize the need for review of the pre-sentence custody provisions in section 29 (detention as social measure prohibited) of the Youth Criminal Justice Act and request the Federal-Provincial-Territorial Coordinating Committee of Senior Officials - Youth Justice give priority to an immediate review of those provisions.
Carried as amended: 21-0-4
C- That the Uniform Law Conference of Canada - Criminal Section recognize the need for review of the preconditions for custody in section 39 (custody) of the Youth Criminal Justice Act and request the Federal-Provincial-Territorial Coordinating Committee of Senior Officials - Youth Justice give priority to an immediate review of those provisions.
Carried as amended: 20-0-5
Nova Scotia - 05
Amend subsection 39 (1) (custody) of the Youth Criminal Justice Act to add a provision authorizing custody for an offence where the circumstances of the offence constituted a danger to the safety of the public or member thereof and the court determines the young person to be a danger to the public or any member thereof.
Withdrawn
Nova Scotia - 06
Amend subsection 29(2) (detention presumed unnecessary) of the Youth Criminal Justice Act to delete the reference to paragraphs (a) - (c) so that all restrictions on custody under subsection 39 (1) can be considered in making a s. 515 (10) (b) (of the Criminal Code - pre-trial detention) determination.
Withdrawn
Nova Scotia - 07
Amend section 164.2 (forfeiture of things used for child pornography) of the Criminal Code to add section 172.1 (luring a child by means of a computer system) as an offence for which forfeiture may be ordered in relation to any thing used in the commission of the offence.
Carried: 25-0-0
Nova Scotia - 08
Amend sections 145 (being at large without lawful excuse, failure to appear, breach of summons, undertaking, recognizance etc.) and 733.1 (failure to comply with probation order) of the Criminal Code to add a provision that in prosecutions for breach of probation or breach of undertakings that certified copies of the respective orders may be tendered without notice thereof.
Carried: 20-2-3
Nova Scotia - 09
Add a new section to the DNA procedures which provides that the prosecutor may apply for a DNA sample under section 487.051 of the Criminal Code at any time in relation to an offence where the order was not made at the time of sentencing due to existence of a sample in the database and the existing sample has since been removed.
Withdrawn
Nova Scotia - 10
Amend s. 487.05 (information for warrant to take bodily substances for forensic DNA analysis) of the Criminal Code to add a section which provides that where the pre-conditions contained in section 487.05 are met, that a judge may authorize the use of an existing sample for the purposes of a forensic DNA analysis in that offence for which the pre-conditions are met.
Withdrawn following discussion
Nova Scotia - 11
Amend section 672.54 (dispositions that can be made regarding accused found not criminally responsible) of the Criminal Code to add a subsection providing that absolute discharges cannot be ranted to an accused found not criminally responsible in relation to a murder charge.
Withdrawn
Nova Scotia - 12
Amend section 145 (being at large without lawful excuse, failure to appear, breach of summons, undertaking, recognizance etc.) of the Criminal Code to add a provision that the existence of a given undertaking on a particular date can be established by certifying the document to the effect that it was in force and effect on the date in question.
Withdrawn following discussion
ONTARIO
Ontario - 01
Amend s. 117.11 (firearms and other weapons - onus on the accused) of the Criminal Code to include s. 95 (possession of prohibited or restricted firearm with ammunition).
Withdrawn
(See SA2005-01 on similar issue)
Ontario - 02
Amend subsection 715 (1) (evidence at preliminary inquiry may be read at trial in certain cases) of the Criminal Codeso that, where an accused is not present at the preliminary inquiry because the accused has requested the absence, any evidence taken can still be admissible at the trial.
Carried: 24-0-0
Ontario - 03
Amend s. 715.1 (videotaped evidence of complainant or witness) of the Criminal Code to clarify that reference to other offences in the circumstances described in the videotape, where those offences have been charged and are part of the same proceedings as the listed offences in the section do not require removal or editing from the tape in order for the tape to be admissible in evidence.
Withdrawn
Due to the passing of Bill C-2, An Act to amend the Criminal Code
(Protection of children and other vulnerable persons) on July 20, 2005
Ontario - 04
Amend s. 487.0911 (review of possible defective DNA order by Attorney General) of the Criminal Code to require that, where the Attorney General agrees that the order was taken for a non-designated offence, the Attorney General confirms this in writing to the Commissioner of the National Databank who would then be authorized to destroy the sample.
Carried: 15-3-6
QUEBEC
Quebec - 01
That section 7 of the Criminal Code be amended to extend the jurisdiction of Canadian courts over every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against subsections 282 (1) (abduction in contravention of custody order) or 283 (1) (abduction) of the Criminal Code as though that act or omission had been committed in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
Carried as amended: 23-0-3
Quebec - 02
That section 259 of the Criminal Code be amended to require the court to specify, at the hearing, the total duration of the prohibition to drive, and to state that it takes effect immediately, and to require this information to be recorded in the minutes of the hearing.
Withdrawn
Quebec -03
Amend subsection 259 (1.1) of the Criminal Code to provide that unless otherwise stated by the judge, the accused is authorized to register in the alcohol ignition interlock device program.
Carried as amended: 23-1-3
Quebec - 04
Provide, in sections 462.42 (application by person claiming interest for relief from forfeiture - proceeds of crime) and 490.5 (forfeiture of offence-related property - application by person claiming interest) of the Criminal Code, that unless the circumstances are exceptional, the application shall be submitted to the judge who made the confiscation order.
Withdrawn following discussion
Quebec - 05
That the Department of Justice Canada undertake a review of the regime of the detention of things seized pursuant to section 490 of the Criminal Code
Carried as amended: 26-0-1
Quebec - 06
That 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.
Carried as amended: 28-0-0
Quebec - 07
Amend the English and French versions of subsection 676 (1.1) of the Criminal Code to indicate that the prosecutor's appeal is of the verdict of acquittal, not a conviction.
Carried: 27-0-0
SASKATCHEWAN
Saskatchewan - 01
A- Amend s. 117.11 (firearms and other weapons - onus on the accused) of the Criminal Code so that it also applies to prosecutions under sections 92 (possession of firearm or other weapon knowing possession is unauthorized) and 95 (possession of prohibited or restricted firearm with ammunition) of the Criminal Code.
Carried: 15-3-4
B- Amend s. 117.11 (firearms and other weapons - onus on the accused) of the Criminal Code so that it also applies to prosecutions under section 94 (unauthorized possession of firearm or other weapon in motor vehicle) of the Criminal Code.
Carried: 11-8-3
Saskatchewan - Canadian Association of Provincial Court Judges - 01
That Justice Canada initiate or resume work on re-codification of the General Part of the Criminal Code.
Carried: 18-1-6
Saskatchewan - Canadian Association of Provincial Court Judges - 02
A- That the Criminal Code be amended to permit a sentence of time served, of a certain number of stated days.
Carried: 8-5-11
B- That the Criminal Code be amended to require that sentences state the actual time spent on remand that has been considered in arriving at the sentence imposed.
Carried as amended 17-0-8
C- That the Criminal Code be amended to require that sentences state the actual time spent on remand, plus the time credited for remand which has been given in arriving at the sentence imposed.
Carried as amended 24-0-1
CANADA
Canadian Bar Association
Can-CBA - 01
That section 718.2 of the Criminal Code be amended to include a non-exhaustive list of examples of mitigating circumstances that shall be considered by a court in imposing sentence, to parallel the current non-exhaustive list of aggravating circumstances found in section 718.2(a)(i)-(v).
Defeated: 5-14-5