2018 Criminal Section Recommendations
UNIFORM LAW CONFERENCE OF CANADA
CRIMINAL SECTION
AUGUST 2018
ALBERTA
Alberta – 01
That Justice Canada examine whether height and weight should be included as “other measurements” approved by order of the Governor in Council, pursuant to section 2 of the Identification of Criminals Act.
Carried: 19-0-10
Alberta – 02
That section 57 of the Youth Criminal Justice Act be amended to include conditional discharges as sentences that may be transferred between territorial divisions.
Carried: 25-0-3
Alberta – 03
That the Youth Criminal Justice Act be amended to prevent a young person from receiving credit toward a custodial sentence for any period of time during which they are unlawfully at large.
Carried: 27-0-2
Alberta – 04
That the Youth Criminal Justice Act be amended to allow for a youth justice court judge to review a release order made by a justice who is not a youth justice court judge for the purpose of varying the release order.
Carried as amended: 29-0-0
Alberta – 05
The Criminal Section of the Uniform Law Conference of Canada expresses support for clause 167(2) of Bill C-59, tabled in the first session of the 42nd Parliament, creating a records access period in the Youth Criminal Justice Act for recognizances entered into under sections 83.3, 810, 810.01, 810.011, 810.02 and 810.2 of the Criminal Code.
Carried as amended: 27-0-0
BRITISH COLUMBIA
British Columbia – 01
That the Department of Justice, in consultation with the provinces and territories, review section 672.11 of the Criminal Code with a view to amending the provision to include a ban similar to the ban contained in section 517 of the Criminal Code (i.e. a publication ban on the evidence taken, the information given, or the representations made during an application for an assessment order under section 672.11 of the Criminal Code as well as the reasons, if any, given or to be given by the justice).
Carried as amended: 27-0-1
British Columbia – 02
That Justice Canada review section 4.1 of the Controlled Drugs and Substances Act (CDSA) and section 8.1 of the Cannabis Act to clarify the circumstances in which people who are present at the time of a 911 response to an overdose, are to be exempt from liability for breaches other than breaches of a pretrial release, probation order, conditional sentence or parole stemming from a subsection 4(1) CDSA or 8(1) Cannabis Act offence.
Carried as amended: 29-0-0
British Columbia – 03
That section 488.01 of the Criminal Code be amended to exempt from the special process described in that section, applications where the information which formed the basis of the application was provided by a journalist and where there is no journalistic source to protect.
Carried as amended: 27-0-1
British Columbia – 04
That subsection 753.3(1) of the Criminal Code be added to subsection 515(6) in order to place the onus on the accused to show cause as to why their detention in custody is not justified.
Carried: 10-7-12
British Columbia – 05
That section 487.051 of the Criminal Code be amended to provide that: where an order made under subsection (4) remains unexecuted, the judge who made the order, or another judge of the same or equivalent court, may issue a summons to appear to allow samples of bodily substances to be taken.
Carried as amended: 19-0-9
MANITOBA
Manitoba – 01
To amend Part XXIII of the Criminal Code to allow for the court to make stand-alone restitution orders when offences are dealt with by way of Alternative Measures under section 717.
Withdrawn following discussion
NEW BRUNSWICK
New Brunswick – 01
Amend section 531 of the Criminal Code to remove the reference to the Province of New Brunswick.
Carried: 25-0-0
ONTARIO
Ontario – 01
That the Criminal Section of the Uniform Law Conference of Canada express support for clause 166 of Bill C-59, tabled in the 1st session of the 42nd Parliament, amending paragraphs 67(1)(c) and 67(3)(c) of the Youth Criminal Justice Act so as to provide a young person charged with murder, who was between the ages of 14 and 17 at the time of the offence, with an election as to mode of trial regardless of whether the Attorney General is seeking an adult sentence against the young person.
Carried as amended: 28-0-0
Ontario – 02
That Justice Canada, in consultation with the provinces and territories, examine options for amending the Youth Criminal Justice Act to reform the procedure applicable in situations where two or more young persons are jointly charged and the Attorney General is seeking an adult sentence against at least one but not all of them. The examination should consider, amongst other things, the negative consequences of a multiplicity of proceedings and the interests of the young persons.
Carried as amended: 26-0-1
Ontario – 03
That Justice Canada and Public Safety Canada, in consultation with the provinces and territories, review the definition of “antique firearm” in subsection 84(1) of the Criminal Code, as well as the Regulations Prescribing Antique Firearms (SOR 98-464), in the context of a broader review of the regulation of firearms exempted from the firearms offence regime in Part III of the Criminal Code, with a view to improving public safety.
Carried as amended: 27-0-1
Ontario – 04
That section 110 [Discretionary Prohibition Order] of the Criminal Code be amended to enable a court to make a firearms prohibition order in respect of a person who has been found guilty of an offence in the commission of which violence against an animal or bird was used, threatened or attempted.
Carried: 23-0-6
Ontario – 05
The Criminal Section of the ULCC strongly recommends that in the broader context of sentencing reform, priority be given to the review of mandatory minimum penalties to promote greater judicial discretion in sentencing. This is particularly important in the context of Aboriginal offenders.
Carried as amended: 25-3-1
QUEBEC
Quebec – 01
Repeal section 151 of the Youth Criminal Justice Act [Evidence of a child or young person] to eliminate the disparity of treatment of youth witnesses that results from the dual regime of section 16.1 of the Canada Evidence Act and section 151 of the Youth Criminal Justice Act.
Carried: 20-1-8
Quebec – 02
Amend the French version of subsection 486.2(2) of the Criminal Code [Other witnesses] to spell out the procedure for conducting the hearing under subsection 486.2(4) to ensure that the witness can testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, in accordance with the English version.
Carried as amended: 27-0-0
Quebec – 03
Amend section 487.11 [Where warrant not necessary] of the Criminal Code to add a reference to subsection 492.1(2) of the Criminal Code.
Withdrawn because of similar resolution Can-PPSC2018-02
Quebec – 04
Amend paragraph 518(1)(d.1) [Inquiries to be made by justice and evidence] of the Criminal Code such that the justice may receive evidence obtained by the use of a video camera or other similar electronic device, without requiring the notice in subsection 189(5) [Notice of intention to produce evidence], in the same manner as an intercepted private communication under Part VI.
Carried as amended: 23-0-5
Quebec – 05
Amend section 669.2 of the Criminal Code [continuation of proceedings] so that a judge, provincial court judge, justice or other person who is a summary conviction court and who recommences a trial under subsection 669(3) of the Criminal Code [continuation of proceedings – if no adjudication made] may admit into evidence a transcript and/or audio recording of any testimony already given unless a party (the accused or the prosecutor) demonstrates that it would be contrary to the interest of justice.
Carried as amended: 20-1-6
Quebec – 06
Amend subsection 732(2) of the Criminal Code [Application to vary intermittent sentence] so that a court that has imposed an intermittent sentence can change the times when the sentence must be served by adding a mechanism similar to that provided for in paragraph 732.2(3)(a) of the Criminal Code [Changes to probation order].
Carried: 29-0-0
CANADA
Canadian Bar Association (CBA)
CBA – 01
That the Criminal Code be amended to allow an accused to elect or re-elect as the case may be, to have a judge-alone 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.
Carried as amended: 17-4-6
CBA – 02
That Public Safety Canada review the Corrections and Conditional Release Regulations and its related directives to determine whether the vulnerability arising from the mental illness of offenders is being appropriately assessed in classifying inmates.
Carried as amended: 26-0-1
CBA – 03
That paragraph 487(1)(a) of the Criminal Code be reworded to clearly reflect the “reasonable grounds to believe” standard.
Carried: 24-2-2
CBA – 04
That Part XXIII of the Criminal Code be amended to introduce a principle of restraint in sentencing that recognizes the overrepresentation of vulnerable populations in addition to Indigenous people in the criminal justice system.
Withdrawn after discussion
CBA – 05
(Floor resolution)
A working group should be formed to review section 487 of the Criminal Code (information for search warrant) and examine how this investigative power should be modernized, taking into account new technologies, the Canadian Charter of Rights and Freedoms and relevant national and international developments. At the direction of the working group, it will report back to the Section with either an interim or final report at the next conference.
Carried: 28-0-1
Public Prosecution Service of Canada (PPSC)
PPSC – 01
That the Criminal Code be amended to allow a peace officer to remove a person serving a sentence of imprisonment or detained in pre-trial custody for the purpose of executing an arrest and carrying out the powers found in Part XVI of the Criminal Code.
Carried as amended: 19-4-4
PPSC – 02
That section 487.11 of the Criminal Code be amended to include subsection 492.1(2) (warrant for tracking device – individuals) and section 492.2 (transmission data recorder warrant), allowing the exercise of the powers described therein without a warrant under exigent circumstances.
Carried as amended: 24-0-4
REPORTS
Criminal Section Working Group Reports
Working Group on Telewarrants
BE IT RESOLVED THAT:
1. the status report of the telewarrant working group be accepted; and
2. the working group continue its work and report back to the Criminal Section at the 2019 meeting.
Carried: 29-0-0
Working Group on Section 490 of the Criminal Code
BE IT RESOLVED THAT:
1. the status report of the working group on section 490 of the Criminal Code be accepted; and
2. the working group continue its work and report back to the Criminal Section at the 2019 meeting.
Carried: 27-0-0
Working Group on Witness Confrontation and Section 9 of the Canada Evidence Act
THAT the report of the Working Group be accepted;
THAT the recommendations in the Report be approved;
THAT the Report be shared with the Civil Section of the Conference.
Carried: 27-0-1
Joint Working Group Reports
Working Group on Criminal Record Checks
THAT the report of the working group be accepted; and
THAT the Uniform Police Records Checks Act and commentaries be adopted and recommended to the jurisdictions for enactment, subject to the direction of the Conference.
Carried: 6 abstentions
Annex 2 to the 2018 Criminal Section Minutes