This
document was prepared by the staff of the Parliamentary Research Branch
to provide Canadian Parliamentarians with plain language background and
analysis of proposed government legislation. Legislative summaries are
not government documents. They have no official legal status and do not
constitute legal advice or opinion. Please note, the Legislative Summary
describes the bill as of the date shown at the beginning of the document.
For the latest published version of the bill, please consult the parliamentary
internet site at www.parl.gc.ca.
LS-404E
BILL C-15: CRIMINAL
LAW AMENDMENT ACT, 2001
Prepared by:
David Goetz, Gérald Lafrenière
Law and Government Division
27 April 2001
Revised 12 October 2001
LEGISLATIVE HISTORY OF BILL
C-15
HOUSE
OF COMMONS
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SENATE
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Bill
Stage |
Date |
Bill
Stage |
Date |
First
Reading: |
14 March
2001
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First
Reading: |
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Second
Reading: |
26 September
2001
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Second
Reading: |
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Committee
Report: |
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Committee
Report: |
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Report
Stage: |
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Report
Stage: |
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Third
Reading: |
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Third
Reading: |
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Royal Assent:
Statutes of Canada
N.B. Any substantive changes in this Legislative
Summary which have been made since the preceding issue are indicated
in bold print.
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TABLE
OF CONTENTS
BACKGROUND
DESCRIPTION
AND ANALYSIS
A.
Sexual Exploitation of Children
1.
Child Sex Tourism: Removal of Procedural Condition for Prosecution
2.
Child Pornography and the Internet
3.
Luring of Children over the Internet
4.
Court-Ordered Deletion of Child Pornography from Internet Sites
5.
Seizure and Forfeiture of Offensive Material and of Property Used in the
Commission
of Child Pornography Offences
6.
Preventative Orders
B.
Cruelty to Animals
C.
Criminal Harassment
D.
Disarming a Peace Officer
E.
Sexual Exploitation of Person with Disability
F.
Home Invasions
G.
Criminal Procedure
1.
Remote Appearances and Electronic Filing of Documents
a.
Overview
b.
Alternatives to Physical Appearance of Accused in Proceedings
c.
Electronic Documents
2.
Conditions for Accepting Guilty Pleas
3.
Case Management
4.
Private Prosecutions
5.
Preliminary Inquiries
a.
Introduction
b.
Preliminary Inquiries to be Optional and could be Limited by Agreement
c.
Conduct of Preliminary Inquiries
6.
Jury Selection
7.
Notice of Expert Testimony
8.
Restriction on Use of Agents
9.
Peace Bonds
H.
Miscarriages of Justice
1.
Overview
2.
Applications for Ministerial Review Under Section 690
3.
Recent Administrative Changes to the Section 690 Application Process
4.
Legislative Changes Proposed in Bill C-15 (Clause 81)
I.
Amendments to the Firearms Act and Related Provisions in the Criminal
Code
1.
Criminal Code Amendments
a.
Administrative
b.
Airguns
c.
Judicial Interim Release
d.
Technical Amendments
2.
Firearms Act Amendments
a.
Definitions
b.
Carriers
c.
Restricted Firearms Safety Course
d.
Employee Licensing
e.
Grandfathering
f.
Place where Prohibited or Restricted Firearm may be Possessed
g.
Authorizations to Transport
h.
Transfers
i.
Exportation and Importation
j.
Applications for and Issuance of Licences, Registration Certificates and
Authorizations
k.
Duration of Licences and Authorization
l.
Renewals
m.
Purpose for Possessing Restricted Firearms or Grandfathered Handguns
n.
Notices of Refusal or Revocation
o.
Commissioner of Firearms and Registrar
p.
Exemptions
q.
Delegation to a Firearms Officer
r.
Regulation-Making Power
s.
Technical Amendments
J.
National Capital Act Offences
K.
Military Justice System (Identification of Criminals)
COMMENTARY
A.
Sexual Exploitation of Children and the Internet
B.
Cruelty to Animals
C.
Disarming a Peace Officer
D.
Criminal Procedure Reform
E.
Wrongful Conviction Review
F.
Firearms
BILL C-15:
CRIMINAL LAW AMENDMENT ACT, 2001*
BACKGROUND
Bill C-15, An
Act to amend the Criminal Code and to amend other Acts (the Criminal Law
Amendment Act, 2001), was introduced in the House of Commons and given
first reading on 14 March 2001. Bill C-15 reintroduces measures
contained in Bill C-17 An Act to amend the Criminal Code
(cruelty to animals, disarming a peace officer and other amendments) and
the Firearms Act (technical amendments) and in Bill C-36
An Act to Amend the Criminal Code (Criminal Harassment, Home
Invasions, Applications for Ministerial Review Miscarriages of
Justice, and Criminal Procedure) and to Amend Other Acts
which were introduced in the previous Parliament but which died on the
Order Paper at dissolution. Bill C-15 also proposes
new Criminal Code provisions which seek to counter sexual exploitation
of children involving the Internet as well as further amendments to the
Firearms Act.
The House
of Commons passed a motion on 26 September 2001 directing the Standing
Committee on Justice and Human Rights to split Bill C-15, An Act to amend
the Criminal Code and to amend other Acts, into two separate bills.
The Standing Committee reported back to the House on 3 October 2001,
indicating that it had divided Bill C-15 into two bills: Bill C-15A,
An Act to amend the Criminal Code and to amend other Acts; and Bill C-15B,
An Act to amend the Criminal Code (cruelty to animals and firearms) and
the Firearms Act.(1)
The highlights
of the bill are:
-
amending
the provisions dealing with cruelty to animals, for example by providing
a definition of animal, creating a new part to the Criminal
Code for these offences, and increasing the maximum penalties
that are available;
DESCRIPTION
AND ANALYSIS
A. Sexual Exploitation
of Children
1. Child
Sex Tourism: Removal of Procedural Condition for Prosecution
In 1997, Parliament
amended the Criminal Code to extend criminal liability for certain
sexual offences to acts committed abroad by Canadian nationals:
section 7(4.1). Sections 7(4.2) and (4.3), which were also added
at this time, made prosecutions under section 7(4.1) conditional
upon the receipt of a request from the government of the country where
the offence occurred and the consent of the Attorney General of Canada,
except in the case of an offence of child prostitution contrary to section
212(4) of the Code.
Clause 3(2)
of the bill amends sections 7(4.2) and (4.3) of the Code in order to eliminate
this distinction and simply requires the consent of the Attorney General
in all cases as a precondition of a prosecution under section 7(4.1).
2. Child Pornography
and the Internet
Section 163.1
of the Code prohibits the production, distribution and possession of child
pornography. Clauses 11(2) and (3) of the bill amend section 163.1
to ensure that these criminal prohibitions extend to analogous conduct
in an Internet context.
Clause 11(2)
adds language to section 163.1(3) of the Code, which prohibits various
acts of distribution of child pornography, to cover such things as transmission
and making available in order to ensure that the offence extends
to distribution of child pornography in electronic form on the Internet
by such means as e-mail and posting items to websites.
Clause 11(3)
adds new sections 163.1(4.1) and (4.2) to deal with accessing child pornography.
New section 163.1(4.1) makes accessing child pornography an offence punishable
on summary conviction (maximum penalty: fine of up to $2,000 and/or
imprisonment for up to six months) or, on an indictment, by imprisonment
for up to five years. In contrast with the existing offence of possession
which, in the context of the Internet, at least arguably requires that
the accused download the material to a computer hard-drive, disk or printer,
the new accessing offence would cover those who merely view the material
through an Internet browser. New section 163.1(4.2) specifies, however,
that the accessing of child pornography must be intentional if it is to
be covered by section 163.1(4.1). In other words, the accused
must know before viewing the material in question, or causing its transmission
to himself or herself, that it contains child pornography.
Clause 86 amends
the provisions of the Code dealing with long-term offenders
(section 753.1) in order to add the child pornography offences of section
163.1, including the new accessing offence in section 163.1(4.1), to the
list of offences for which a long-term offender order may be made.
The long-term offender order is designed for offenders facing a sentence
of at least two years for certain sexual offences where the court is satisfied
that there is a substantial risk of reoffending. In such cases,
a sentencing court may order a lengthy period (up to ten years) of post-release
supervision in the community.
3. Luring of
Children over the Internet
Clause 14 of
the bill adds section 172.1 to the Code which would specifically make
it an offence to communicate via a computer system with a
person under a certain age, or a person whom the accused believes to be
under a certain age, for the purpose of facilitating the commission of
certain sexual offences in relation to children or child abduction.
Depending on the offence being facilitated, the requisite age or believed
age of the victim varies among the following ages: 18, 16 and 14.
As with other offences where the age or believed age of the victim
or intended victim is an ingredient of the offence, section 172.1 provides
that:
Internet luring
of children contrary to section 172.1 is punishable on summary conviction
(maximum penalty: fine of up to $2,000 and/or imprisonment for up
to six months) or, on an indictment, by imprisonment for up to five years.
Clause 86 amends
the provisions of the Code dealing with long-term offenders
(section 753.1) in order to add the new Internet child-luring offence
in section 172.1 to the list of offences for which a long-term offender
order may be made. The long-term offender order is designed for
offenders facing a sentence of at least two years for various sexual offences
where the court is satisfied that there is a substantial risk of reoffending.
In such cases, a sentencing court may order a lengthy period (up to ten
years) of post-release supervision in the community.
4. Court-Ordered
Deletion of Child Pornography from Internet Sites
Clause 13 of
the bill adds section 164.1 to the Criminal Code which would provide
for the court-ordered deletion of material found to constitute child pornography
from any computer system within the courts jurisdiction.
If, on the basis
of a sworn information, a judge is satisfied that there are reasonable
grounds to believe that such material is stored in or made available through
a computer system within the courts jurisdiction, the judge could
issue a warrant of seizure ordering the custodian of the computer system
(e.g., the Internet Service Provider, or ISP) to:
The court is
then required to give notice to the person who posted the material and
provide him/her with an opportunity to show cause why it should not be
deleted. If this person cannot be identified or located, or if he
or she resides outside of Canada, the judge can order the computer system
custodian to post the notice at the site where the impugned material was
posted. If the person who posted the material does not appear, the
hearing may proceed and the court may determine the matter in the persons
absence.
If it is satisfied
on a balance of probabilities (i.e., the civil standard of proof) that
the material in question is either child pornography or computer data
that make child pornography available, the court may order the computer
system custodian to delete the material. Otherwise, the court must
order the return of the electronic copy of the material to the computer
system custodian and terminate its order requiring the custodian to remove
the material from its system. The courts decision in such
a case may be appealed and the Code provisions governing appeals in indictable
cases generally apply. A deletion order does not take effect until
the expiration of the time for taking an appeal according to the Rules
of Court for that province or territory.
5. Seizure
and Forfeiture of Offensive Material and of Property Used
in
the Commission of Child Pornography Offences
Clause 12 of
the bill amends section 164(4) of the Code to clarify that, for the purposes
of forfeiture, the court need only be satisfied to the civil standard
of proof (i.e., balance of probabilities) that the material in question
is obscene or constitutes child pornography. The amended section
164(4) would also make a forfeiture order discretionary on the part of
the court, rather than mandatory.
In new sections
164.2 and 164.3, clause 13 provides for the forfeiture of personal property
used in the commission of a child pornography offence under section 163.1.
Currently, forfeiture of such property is only available where the offence
is committed as part of the activities of a criminal organization (see
sections 490.1 through 490.9 of the Code).
The new provisions
on forfeiture and relief from forfeiture proposed in clause 13 are similar
to those found elsewhere in the Criminal Code and in other federal
statutes. Forfeiture to the Crown, of things used in the commission
of a child pornography offence, may be ordered on the application of Crown
counsel by a court which, having convicted the owner of the property of
a child pornography offence under section 163.1, is satisfied on a balance
of probabilities that the items in question were used in the commission
of the offence. Forfeiture of such property can also occur where
the owner is not convicted of such an offence, but where he or she acquired
it from such a person in circumstances which suggest that ownership was
transferred for the purpose of avoiding forfeiture. Innocent third
parties would have 30 days from the date of the forfeiture order to seek
an order from the court declaring that their interest in the property
is unaffected by the forfeiture.
Clauses 73 and
79 make consequential amendments providing for the application of Code
provisions governing appeals of orders.
6.
Preventative Orders
The Criminal
Code permits courts to make orders restricting the otherwise lawful
conduct of individuals in various circumstances, either as part of punishment
or in order to prevent the future commission of offences, or both.
Two such provisions are specifically aimed at protecting children from
sexual predators:
-
Section
810.1 permits a court to order a person to enter into a recognizance
binding him or her to abstain from various activities likely to bring
them into contact with persons under the age of 14. Unlike a
section 161 order, an order under section 810.1 does not require a
conviction for an offence or even the laying of a charge it
can be obtained by anyone who can establish a reasonable fear that
the person in question will commit one or more of the enumerated sexual
offences against a person under the age of 14. However,
a section 810.1 order can only be for a maximum period of 12 months.
Clauses 10 and
91 of the bill amend sections 161 and 810.1, respectively, in order to:
B. Cruelty
to Animals
A comprehensive
review of the current provisions in the Criminal Code relating
to cruelty to animals is probably long overdue.(2)
In response to the dissatisfaction with the provisions expressed by many
groups and individuals, the Department of Justice conducted a review in
1998. A consultation paper entitled Crimes Against Animals
was distributed to allow groups and individuals to suggest the modifications
that would be required to deal effectively with cruelty to animals.
One of the reasons for the departments action was mounting
scientific evidence of a link between animal abuse and domestic violence
and violence against people generally.(3)
The governments initiative drew hundreds of responses. The
proposed changes to the Criminal Code are the result of this consultation
process and are said to signify the seriousness of these acts that
are often warning signs of subsequent violent behaviour aimed at people.(4)
Although the proposed changes are similar to those found in Bill C-17,
there have been some modifications.
Clause 15 creates
a new Part V.1 of the Criminal Code entitled Cruelty to Animals.(5)
Thus, the bill proposes to move the current provisions relating
to cruelty to animals from Part XI, entitled Wilful and Forbidden Acts
in Respect of Certain Property, to the newly created Part V.1.
This modification is more than merely cosmetic because it would change
the way the Criminal Code regards animals in that the cruelty to
animals offences would no longer be treated, in large part, as property
crimes and animals would be regarded essentially as beings that feel pain.(6)
Protecting animals, even in part, by virtue of their status as property
has been criticized on the grounds this suggests that the law is
less concerned with protecting animals as beings capable of suffering
than with the protection of human proprietary interests, and does not
satisfactorily convey a moral obligation to avoid inflicting unnecessary
harm.(7) In addition, it
is argued that this approach fails to convey the seriousness of
the crimes to the various players in the criminal justice system, including
prosecutors and judges.(8)
Clause 15 consolidates
the current Criminal Code provisions relating to cruelty to animals
and adds certain new elements.
Proposed section
182.1 defines animal for the purposes of newly created Part V.1
as a vertebrate, other than a human being, and any other animal that has
the capacity to feel pain. This is another example of a proposed
change in how the Criminal Code views animals, so that they would
be seen less as property and more as beings with the capacity to feel
pain. In addition, all animals that satisfied the definition would
be protected. In some cases, the current provisions limit their
application to certain types of animals (for example, cattle and domesticated
animals).
Proposed section
182.2(1) sets out the activities in relation to animals that would attract
criminal liability if committed wilfully or recklessly:
-
causing
unnecessary pain, suffering or injury to an animal or,
in the case of an owner, permitting this to be done (section 182.2(1)(a));(9)
-
killing
an animal brutally or viciously, regardless of whether the animal
dies immediately or, in the case of an owner, permitting this
to be done (section 182.2(1)(b));
-
poisoning
an animal, placing poison so that it may be easily consumed by an
animal or administering an injurious drug or substance to an animal
or, in the case of an owner, permitting this to be done. The
offence would be applicable only if the person acted without lawful
excuse (section 182.2(1)(d));(11)
New section
182.2(2) sets out the penalties for the offences listed above. These
offences are hybrid offences with a maximum punishment of five years
imprisonment when the Crown proceeds by indictment or a maximum 18 months
imprisonment where the Crown proceeds by way of summary conviction.
New section
182.3 sets out the following series of offences relating to the failure
to provide adequate care:
-
abandoning
an animal or failing to provide suitable and adequate food, water,
air, shelter and care for the animal if they are the owner or the
person having custody or control of the animal (section 182.3(1)(b));(16)
and
-
negligently
injuring an animal while it is being conveyed (section 182.3(1)(c)).(17)
New section
182.3(3) sets out the penalties for the offences set out in section 182.3(1).
Once again these are hybrid offences with a maximum two years imprisonment
when the Crown proceeds by indictment. When the Crown proceeds by
way of summary conviction, the individual would be liable to six months
imprisonment and/or a fine of not more than $2,000.(18)
New section
182.3(2) defines the term negligently for the purposes of
sections 182.3(1)(a) and (c) as meaning departing markedly from the
standard of care that a reasonable person would use.
Two aspects
of the new provisions require discussion: the mental element of
the offence and the defences available to the accused. With respect
to the mental element, the current provisions often make reference to
the requirement that the act be done wilfully. This
indicates that the highest standard mens rea is required for these
offences. However, section 429(1), which applies to the cruelty
to animals offences, states that everyone who causes the occurrence
of an event by doing an act or by omitting to do an act that it is his
duty to do, knowing that the act or omission will probably cause the occurrence
of the event and being reckless whether the event occurs or not, shall
be deemed
wilfully to have caused the occurrence of the event.
Thus, this provision qualifies the term wilfully to require
only that the accused have knowledge that the act or omission will probably
cause the occurrence of the event and to show recklessness as to whether
it does so. Although Bill C-17 did not specify the required mental
element for the cruelty to animal offences, new Bill C-15 provides that
with respect to the offences listed in section 182.2, they must be committed
wilfully or recklessly. Therefore, this is similar to what is currently
provided. In addition, with respect to the offences listed in section
182.3, the term negligently is now defined.
With respect
to defences, the current provisions state that no person shall be convicted
of an offence where he proves that he acted with legal justification
or excuse and with colour of right.(19)
The new provisions, in certain cases, provide that it would be an offence
if the person acted without lawful excuse.(20)
The colour of right defence(21) generally
applies to property crimes; thus, its exclusion from the proposed provisions
is not surprising because these crimes are instead to be viewed in future
as crimes against animals. In addition, the defence of mistake of
fact would still be available in the appropriate circumstances.
The purpose of excluding justification appears less clear. One could
argue that the distinction between justification and excuse is only useful
as an interpretive tool to determine the scope of the defence and that,
therefore, the term excuse in the proposed provisions would
apply to both a lawful excuse and a lawful justification. There
does not appear to be a valid reason, however, why the provisions do not
make reference to the expression lawful justification or excuse.
In addition
to any other sentence set out above, a court is able, as under the current
provision, to make an order prohibiting the accused from owning an animal
or having custody or control of an animal. A new feature also allows
the court to prohibit the accused from residing in the same premises as
an animal. The maximum length of the prohibition is also changed
from its current maximum of two years to allow the court to make the prohibition
for any period it felt appropriate and, in the case of second and subsequent
offences, for a minimum of five years.(22)
New section
182.4(1)(b) adds a new feature to the provisions dealing with cruelty
to animals by authorizing a court to order, on application by the Attorney
General or on its own motion, that the accused pay reasonable costs incurred
to take care of the animal. Payment could be made to any individual
or organization that cared for the animal and would include such costs
as veterinarian bills and shelter costs if these were readily ascertainable.
Section 182.4(2)
provides that a person who contravenes a prohibition order made by the
court under section 182.4(1)(a) is guilty of an offence punishable on
summary conviction and be liable to six months imprisonment and/or
a fine of not more than $2,000.(23)
One of the purposes
of this bill is to increase the penalties relating to cruelty to animals
and to provide a broader range of criminal sanctions. Under the current
provisions, the offences are generally summary conviction offences.(24)
This means that accused are liable to a maximum of six months imprisonment
and/or a fine of not more than $2,000.(25)
Under the proposed legislation, the maximum length of imprisonment is
increased to five years and there is no set limit for fines for the more
serious offences.(26) With the creation
of hybrid offences, the option of proceeding by way of summary conviction
would still be available to the Crown for less serious offences but, in
more serious cases, the prosecutor would have the option of proceeding
by indictment, thus allowing for increased penalties. It is hoped
that this would deter people from abusing animals and generally lead to
crimes against animals being treated more seriously.
New section
182.4(3) makes general provisions relating to restitution orders applicable
to orders made under section 182.4(1)(b).
Clause 18 of
the bill makes a technical amendment to section 264.1(1)(c) of the Criminal
Code by deleting the reference to or bird.
Clause 24 repeals
the current provisions dealing with cruelty to animals.
C. Criminal
Harassment
Clause 17 of
the bill raises the maximum sentence for the offence of criminal harassment
from five years imprisonment to ten years. Criminal harassment
refers to such things as repeatedly following, watching or communicating
with someone in a manner which reasonably causes that person to fear for
their own safety or the safety of someone known to them. It was
first made a distinct criminal offence in 1993 (S.C. 1993, c. 45, s. 2).
D. Disarming
a Peace Officer
Clause 19 of
the bill creates a new offence of disarming a peace officer. This
offence is essentially the same as the one in Bill C-17 and is intended
to recognize the grave risk that police officers face in the line
of duty.(27) Proposed
section 270.1(1) makes it an offence to take or attempt to take a weapon
in the possession of a peace officer without his or her consent when the
peace officer was engaged in the execution of his or her duty.
New section
270.1(2) defines weapon for the purposes of subsection (1)
as any thing that is designed to be used to cause injury or death
to, or to temporarily incapacitate, a person. This would include
not only firearms but also pepper spray and other items designed to be
used to cause injury or death to, or to temporarily incapacitate, a person.
New section
270.1(3) sets out the penalty for this hybrid offence, which would have
a maximum penalty of five years imprisonment when the Crown proceeded
by indictment or a maximum of 18 months imprisonment where the Crown
proceeded by way of summary conviction.
The proposed
offence of disarming or attempting to disarm a police officer is the result
of a process initiated by the Canadian Police Association. A resolution
from their 1999 annual general meeting in Regina reads as follows:
WHEREAS
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The
disarming of police officers of firearms and the interference
by offenders with the equipment issued to peace officers is
a matter of serious concern which is worthy of note by a separate
and distinct recorded criminal offence.
|
BE
IT RESOLVED THAT
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The
Criminal Code of Canada is amended so as to create the
indictable offence of disarming a police officer or interfering
with equipment issued to a peace officer and that section 553
of the Criminal Code of Canada be amended to include
this offence in those offences over which the provincial court
has absolute jurisdiction.
|
Their suggested
offence, similar but not identical to what is proposed in Bill C-15, states:
ASSAULTING
A PEACE OFFICER
270.1 (1)
Everyone commits an offence who,
(a) disarms
or attempts to disarm a peace officer in the execution of his duty
(b) interferes
with equipment issued to a peace officer.
270 (3)
Everyone who commits an offence under section 270.1 is guilty of an
indictable offence and liable to imprisonment for a term not exceeding
five years.
E. Sexual Exploitation
of Person with Disability
Clauses 20,
21, 22 and 29 add the offence in section 153.1 of the Criminal Code
(sexual exploitation of person with disability) to the list of other sexual
offences for which there are special evidentiary rules. These amendments
were also found in Bill C-17. Thus, a person with a disability who
is the victim of sexual exploitation receives the same evidentiary protection
as is afforded to other victims of sexual offences. The following
are the affected provisions of the Criminal Code:
-
Section
276 provides that, in the case of the listed offences, evidence that
the complainant has engaged in sexual activity is not admissible to
support an inference that the complainant is likely to have consented
to the sexual activity or is less worthy of belief. The section
also sets out the test that must be satisfied before evidence that
the complainant has engaged in sexual activity can be adduced by or
on behalf of the accused.
-
Section
486(2.1) provides that a court may, in certain circumstances, order
a complainant or witness under the age of 18 years to testify outside
the courtroom or behind a screen or other device that would prevent
the complainant or witness from seeing the accused.
F. Home Invasions
Clause 23 of
the bill is intended to make home invasion an aggravating
factor in sentencing for certain offences, rather than a distinct offence.
A court sentencing a person for unlawful confinement, robbery, extortion,
or break and enter, would have to consider it an aggravating circumstance
that the offence was committed in an occupied dwelling where the offender
was either aware that it was occupied or was reckless in this regard,
and where he or she used violence or threats of violence against a person
or property. In other words, the presence of these factors would
militate in favour of a harsher sentence.
G. Criminal
Procedure
1. Remote Appearances
and Electronic Filing of Documents
a. Overview
A key thrust
of the bill is to reduce inefficiencies in the criminal justice system
by providing for the use and filing of electronic documents with courts
and by eliminating unnecessary court appearances by accused persons, particularly
those in custody.
As a general
matter, clause 2 of the bill ensures the legality and immediate effectiveness
of judicial acts from the moment they are done, whether or not they are
reduced to writing. This provision ensures the validity of judicial
acts made in a number of circumstances where hard-copy documentary proof
of the act is not immediately generated. Such situations could include
judicial decisions in the form of orders or warrants which may be issued
electronically or orally by telephone or some other form of audio or audio-visual
communications link.
b.
Alternatives to Physical Appearance of Accused in Proceedings
Clause 37 permits
an accused to make an election or re-election as to mode of trial through
a documentary submission, without personally appearing in court.
Clause 59(2)
permits an accused to enter his or her plea to a charge via closed-circuit
television or some other means which allow the accused and the court to
engage in simultaneous visual and oral communication from a remote location.
Such a remote appearance has to be ordered by the court and agreed to
by the accused.
Clauses 70 and
71 permit an accused to appear through counsel designated by the accused
during any proceedings under the Code, except: where oral evidence
is being taken; during jury selection; or during the hearing of an application
for a writ of habeas corpus (i.e., where the accused is challenging
the validity of his or her detention).(28)
However, the court retains the discretion to order the accuseds
presence during any part of the proceedings, and the accused has to be
present to enter a plea of guilty and for sentencing, unless the court
ordered otherwise.
Clause 71 also
enables the designated defence counsel or the prosecutor to appear before
the court by any technological means satisfactory to the court which permits
the court and counsel to communicate simultaneously.
Clauses 77 and
78 provide for the remote appearance of accused persons at appeal proceedings
in indictable cases. At such proceedings involving the receiving
of evidence, clause 77 permits the court of appeal to order that
any party could appear by any technological means satisfactory to the
court that permitted the court and the parties to communicate simultaneously.
Similar provision could be made at the actual hearing of an appeal for
an accused who was in custody and was entitled to be present. At
an application for leave to appeal or at other proceedings which are preliminary
or incidental to an appeal, such an accused may appear by means of any
suitable telecommunications device, including telephone.
Clause 94 (new
section 848) provides that, in any proceedings involving an incarcerated
accused who did not have access to legal advice during proceedings, before
permitting such an accused to appear by means of audio-visual link, the
court would have to be satisfied that the accused could understand the
proceedings and that any decisions made by the accused during the proceedings
would be voluntary.
Clause 28 addresses
potential legal problems of a technical nature which may arise from the
use of alternatives to physical appearance of accused persons in certain
situations. In order for a court to deal with a criminal charge,
it must have jurisdiction over the offence and over the accused.
Historically, in Anglo-Canadian criminal procedure, a courts jurisdiction
over an accused could be lost where the accused was physically absent
from the proceedings. Currently, section 485(1.1) of the Code provides
that jurisdiction over an accused is not lost by the failure of the accused
to appear personally in certain circumstances. Clause 28 expands
the scope of this curative provision to cover additional situations where
an accuseds physical absence from the courtroom is authorized and
the accused is represented by counsel. These situations would include:
c.
Electronic Documents
Clause 94 (new
sections 841 to 847) of the bill facilitates the use of electronic documents
in the criminal court process. The proposed new provisions deem
Criminal Code references to documentary and document-filing requirements
to include electronic documents and to electronic filing of documents,
provided that such use and filing of electronic documents was in accordance
with applicable statutory provisions or rules of court.
2.
Conditions for Accepting Guilty Pleas
Clause 59(1)
requires courts to satisfy themselves as to the following before accepting
guilty pleas:
a.
that the plea is an admission of guilt of the essential elements of
the offence,
b. the nature
and consequences of the plea, and
c . that
the court is not bound by any agreement between the accused and the
prosecutor (i.e., as to sentencing).
However, a courts
failure to fully inquire into these matters would not invalidate such
a plea.
3. Case Management
Clause 27 of
the bill provides for the application of case management to criminal cases.
Case management refers to a system of managing litigation cases through
the application of strict timetables for the hearing of cases, depending
on the nature and complexity of a case. Such systems currently apply
to civil cases in various jurisdictions. Clause 27 provides for
the promulgation of court rules dealing with case management for criminal
cases in the various provinces and territories.
4. Private
Prosecutions
Most criminal
prosecutions in Canada are conducted by or on behalf of the provincial
or federal Attorney Generals office. However, prosecutions
can also be launched and conducted by or on behalf of private individuals.
Although peace officers and Crown attorneys have special responsibilities
and powers in the criminal justice system, the Crown does not have a monopoly
on enforcing the law (although for some offences, the consent of either
the provincial or federal Attorney General is required for a prosecution).
Section 504 of the Criminal Code states that any one
who has reasonable grounds to do so may lay an information before a justice
of the peace alleging the commission of a criminal offence by another
person. However, the Attorney General has the power to intervene
in any such prosecution and may direct a stay of proceedings with the
option of recommencing the case as a public prosecution (see Criminal
Code sections 579 and 579.1).
Clauses 30 and
31 of the bill make some changes to the process for initiating and conducting
private prosecutions, which is currently the same as for public prosecutions.
First, a privately laid information has to be referred to a provincial
court judge or a specially designated justice of the peace. Second,
the provincial or federal Attorney General has to be given notice and
an opportunity to be heard before the judge or designated justice of the
peace can accept the information and issue a summons or arrest warrant.
Finally, if the judge or designated justice of the peace declined to act
on an information, the accuser, in order to pursue the matter, has to
challenge the legality of that decision in a higher court or offer new
evidence in support of the allegation. The accuser, or any other
potential complainant in the matter, is precluded from simply bringing
an information before a different judge or designated justice with the
same evidence.
Clause 57 gives
the Attorney General the option of intervening in a private prosecution
to the extent of being entitled to call witnesses, examine and
cross-examine witnesses, present evidence, and make submissions
but without being deemed to have taken over the prosecution.
5.
Preliminary Inquiries
a.
Introduction
Preliminary
inquiries are pre-trial hearings at which the prosecution must show that
there is evidence to justify putting the accused on trial. Preliminary
inquiries are only conducted in cases where the prosecution is proceeding
by indictment.
As a way of
reducing the time it takes to bring criminal cases to trial, and as a
way of minimizing the extent to which complainants (particularly those
in sexual assault cases) are subject to examination and cross-examination,
federal and provincial governments have considered ways to reduce the
number and duration of preliminary inquiries, including abolishing them
altogether. However, it appears for the time being that the federal
government prefers to narrow the scope of preliminary inquiries and reduce
their number. The proposals contained in Bill C-15 are part of this
approach. Other elements of this legislative strategy include increasing
the maximum punishment for offences prosecuted summarily, and the reclassification
of a large number of indictable offences as hybrid offences (where the
Crown has the option of proceeding summarily and thus precluding a preliminary
inquiry). However, these are not addressed in the bill.
b.
Preliminary Inquiries to be Optional and could be Limited by Agreement
Clauses 34 through
36 make the holding of a preliminary inquiry in criminal cases dependent
on an express request by the defence or the prosecution. A number
of other provisions of the bill are largely incidental to this proposed
change, including clauses 43 through 56, 69, 147 and 148.
Where preliminary
inquiries were requested, clauses 37, 38(1) and 40 permit their scope
to be limited in accordance with agreements between the defence and the
prosecution. However, this narrowing of preliminary inquiries appears
to be optional. Although the party which requested an inquiry (which
would almost always be the defence) is required to identify the issues
on which it wished evidence to be given, and the witnesses that it would
like to hear, nothing in the bill forces the requesting party to do so
in a manner which actually limits the scope of the inquiry from what it
would otherwise be. However, in order to encourage such agreement,
a pre-inquiry hearing before the preliminary inquiry judge can be held,
on the application of either side or on the judges own motion.
c. Conduct
of Preliminary Inquiries
Clause 38(2)
gives the preliminary inquiry judge the authority to permit the accused
to be absent from all or any part of the inquiry on the accuseds
request. Clause 38(3) requires the preliminary inquiry judge to
order the immediate cessation of any part of the examination or cross-examination
of a witness that the judge considered to be abusive, excessively repetitive,
or otherwise inappropriate.
Clause 39 permits
a preliminary inquiry judge to receive otherwise inadmissible evidence
which the judge considered to be credible or trustworthy, including a
recorded statement of a witness, provided that the party offering the
evidence gave reasonable notice to the other parties or the judge ordered
otherwise. In such a case, however, a party is able to apply to
the judge to have the source of such evidence appear for examination or
cross-examination. Pursuant to clause 82, evidence admitted under
clause 39 (except, presumably, where cross-examination was allowed) cannot
be admitted into evidence at trial under section 715 which, in certain
circumstances, allows for the admission at trial of evidence taken at
the preliminary inquiry (e.g., where a witness refuses to be sworn or
to give evidence, or becomes unavailable to testify by reason of death,
insanity, absence from Canada, etc.).
6. Jury Selection
Where the presiding
judge considered it advisable, clauses 62 and 67 permit the calling of
two alternate jurors to be available until the commencement of trial.
Once the trial itself was about to begin, the alternate jurors would either
be excused from the proceedings or substituted for jurors who were no
longer available to serve on the jury.
Clause 61 permits
a different judge to preside over a trial from the one who presided over
the jury selection process.
7. Notice of
Expert Testimony
Clause 72 of
the bill requires parties to give advance notice of any expert testimony
being offered at trial. This provision is essentially aimed at the
defence, because the prosecution is already required by the Canadian
Charter of Rights and Freedoms to disclose its case and generally
any information which might reasonably be useful to the accused in his
or her defence.(29)
Notice of expert
testimony has to be given at least 30 days before the beginning of trial
or within such other period fixed by the court. The notice has to
include the name of the proposed expert witness, a description of the
witness area of expertise, and a statement of the witness
qualifications. In addition, a copy of any report prepared by the
witness or, if no report has been prepared, a summary of the opinion to
be given by the witness has to be provided in advance to the other side.
Certain restrictions apply to the use of information disclosed
pursuant to this provision: such information cannot be used in other
proceedings, unless a court so ordered; and, absent the accuseds
consent, the prosecution is precluded from producing into evidence a proposed
expert witness report or opinion summary where the witness did not
testify.
8.
Restriction on Use of Agents
Clause 89 restricts
the ability of non-lawyers (i.e., agents) to represent accused persons
in summary conviction proceedings. In such cases, where an accused
would be liable on conviction to a possible sentence of imprisonment for
more than six months, an agent could act for the accused only where the
accused was a corporation or where the agent was so authorized under a
program approved by the provinces lieutenant governor in council.
Agents are already precluded from representing accused persons in indictable
proceedings.(30)
9.
Peace Bonds
Clauses 90(1),
90(2), 91(1), 91(2), 92(1) and 92(2) make technical amendments to the
Criminal Code to provide that certain provisions refer to a
provincial court judge rather than the provincial court judge.
This relates to informations laid before provincial court judges with
respect to persons who fear that another person will commit a criminal
organization offence,(31) a listed
sexual offence,(32) or a serious personal
injury offence.(33) As a result
of the amendments, a provincial court judge who received such informations
could cause the parties to appear before a different provincial court
judge. In addition, a provincial court judge (rather
than the provincial court judge who had set them) could
vary the conditions of a recognizance relating to these provisions.
H.
Miscarriages of Justice
1. Overview
Clause 81 of
the bill adds a new Part XXI.1 (new sections 696.1 to 696.6) to the Criminal
Code, entitled Applications for Ministerial Review Miscarriages
of Justice. The new provisions replace section 690 of the
Code which deals with applications to the federal Minister of Justice
regarding alleged wrongful convictions. Under this section, if the
Minister of Justice chooses to intervene in a case, he or she may take
the following steps:
2.
Applications for Ministerial Review Under Section 690
It is estimated
that the Minister of Justice receives about 50 to 70 applications for
ministerial review each year.(34)
Generally, the Department of Justice requests the following material in
support of an application: a description of the reasons behind the
claim of a miscarriage of justice, and any new information to support
the claim; the trial transcripts; a copy of all court judgements in the
case; and the factums filed on appeal.(35)
Once these materials are provided, Justice Department counsel conduct
a preliminary assessment of the file to determine whether there is an
air of reality to the applicants claims, based on new
and significant information that was not available at trial.(36)
If this threshold is met, the applicants claims will be investigated
and then a recommendation will be made to the Minister.(37)
Prior to 1994,
the Department of Justice took a more or less ad hoc approach to
section 690 applications. There was no set procedure or designated
personnel to deal with them. Applications were assigned to counsel
within the Department on an ad hoc basis as an extra responsibility.
As a result, the process became the subject of some criticism on the following
grounds:
3.
Recent Administrative Changes to the Section 690 Application Process
In 1994, the
Department of Justice instituted a number of measures to address complaints
about the section 690 application process.
Additional lawyers
were hired, and the Criminal Conviction Review Group (CCRG) was formed
within the Department to deal exclusively with section 690 reviews.(40)
Also, to provide further independence from the Departments prosecution
function, the CCRG was set up in the Policy Sector of the Department.(41)
The Department also began to make greater use of outside counsel,(42)
which is particularly important in those cases which were prosecuted by
the Department itself (i.e., all criminal prosecutions in the three territories
and all non-Criminal Code federal offence prosecutions throughout
Canada).
The Department
published a handbook, available on the Departments website, which
outlines the documentary requirements, guidelines and process for a section
690 review.(43)
Finally, the
CCRG adopted the practice of disclosing to the applicant the investigative
summary, which indicates all the information gathered during the review
which will be disclosed to the Minister, before the Minister makes a final
decision.(44) The applicant then
has the opportunity to comment on the investigative summary and make final
submissions to the Minister.(45)
4.
Legislative Changes Proposed in Bill C-15 (Clause 81)
Clause 81 preserves
the basic elements of the current system for ministerial review provided
for in section 690. Ministerial review of convictions continues
to be an extraordinary and discretionary remedy available only after the
ordinary appeal and review mechanisms have been exhausted. In dealing
with such applications, the Minister continues to have the same options
available, i.e.:
However, clause
81 makes some changes aimed at enhancing the effectiveness and transparency
of the process.
Clause 81 extends
ministerial review applications based on an alleged miscarriage of justice
to all federal offences. Currently, section 690 applies only
to offences prosecuted by indictment.
Regulations
to be made by the Governor in Council prescribe the form and content of
applications for ministerial review, the necessary accompanying documentation,
and the review process generally.
The Minister
is:
-
given the
powers of a commissioner under the Inquiries Act, i.e., the
power to take evidence, issue subpoenas, compel the attendance and
testimony of witnesses and the production of documents and other materials;
and
The Minister
is given statutory criteria on which to base his or her decisions on such
applications. To grant one of the remedies available to the applicant,
the Minister has to be satisfied that there is a reasonable basis
to conclude that a miscarriage of justice likely occurred
(clause 81, new section 696.3(3)). In making such a determination,
the Minister has to be guided by the following considerations:
These principles
are consistent with those enunciated by the then Minister of Justice,
Allan Rock, in his April 1994 reasons for decision in the section 690
application of W. Colin Thatcher.(46)
Although the
foregoing criteria and considerations are not particularly precise, they
do provide more guidance to the Minister (and also a greater basis for
judicial review of the Ministers decision) than the current provisions.
Although clause 81 (new section 696.3(4)) provides that the Ministers
decision on an application is final and not subject to appeal, this language
does not appear to preclude judicial review in such matters.
Finally, clause
81 (new section 696.5) requires the Minister of Justice to submit an annual
report to Parliament on the handling of applications for ministerial review.
Consistent with
the conclusions of a 1991 report of a federal-provincial-territorial working
group on the issue, the government has rejected calls by some including
a provincial public inquiry(47)
to transfer the job of reviewing alleged miscarriages of justice to an
independent commission, as has been done in the United Kingdom with the
Criminal Cases Review Commission. Among other things, it is argued
that the federal Minister of Justice does not have the same conflict-of-interest
problem as did the UK Home Secretary (who formerly dealt with such applications
there) because, in Canada, the vast majority of criminal prosecutions
are conducted by the provinces. Despite this, the Department of
Justice has indicated that it intends to appoint a Special Advisor from
outside the Department to oversee the review process;(48)
however, there is nothing in clause 81 or in the bill which would commit
the government to this course of action.
I.
Amendments to the Firearms Act and Related Provisions in the Criminal
Code
The changes
to the firearms legislation are administrative in nature (there being
no changes to the basic policy and goals of the legislation) and, in part,
are intended to respond to concerns raised by gun owners. Here are
three examples:
In addition,
the bill makes it easier for Canadians to comply with the requirements
of the Firearms Act by streamlining the administrative processes,
for example, by allowing electronic applications and electronic issuances
of documents.
The Bill also
makes a series of administrative amendments (that are being made to allow
for the better administration of the firearms legislation) such as:
1. Criminal
Code Amendments
a.
Administrative
Clause 4(1)
adds the term Commissioner of Firearms to the definitions
in Part III (Firearms and other Weapons) of the Criminal Code.
This refers to the new position of Commissioner of Firearms that is to
be created under section 81.1 of the Firearms Act and is discussed
in more detail below.(49)
Clause 9 adds
the Commissioner of Firearms, the Registrar and a person designated by
the Registrar under section 100 of the Firearms Act as people who
are public officers for the purposes of section 117.07 (exempted
persons) of the Criminal Code.
b. Airguns
Clause 4(2)
modifies section 84(3) of the Criminal Code which sets out regulated
items that are excluded from requirements of the Firearms Act,
and certain listed Criminal Code provisions in Part III.(50)
Pursuant to current section 84(3)(d), a weapon is deemed not to be a firearm
(for the above listed purposes) if it is not designed or adapted to discharge:
(i) a shot,
bullet or other projectile at a muzzle velocity exceeding 152.4 m
per second; or
(ii) a shot,
bullet or other projectile that is designed or adapted to attain a
velocity exceeding 152.4 m per second.
This exemption
generally applies to many airguns and other similar types of weapons that
are found in Canada. There has been concern lately with respect
to lightweight pellets which can be discharged by certain airguns at a
speed exceeding the maximum set out in the exemption. Some people
were concerned that these airguns would no longer be exempt from the licensing
and registration provisions. The goal of the amendment is to clarify
the exemption by adding a muzzle energy standard to the existing muzzle
velocity standard.
Under new section
84(3)(d)(i), a weapon not designed or adapted to discharge a shot, bullet
or other projectile at a muzzle velocity exceeding 152.4 m per
second or at a muzzle energy exceeding 5.7 Joules is deemed
not to be a firearm (for the listed purposes). The intention
was to exempt a weapon if it satisfies one of the two standards.
Thus, even if the weapon discharges lightweight pellets at a speed exceeding
the maximum set out in the exemption, it may still be exempted if it does
not exceed the new muzzle energy standard. There has been some debate
regarding whether the new provision does what it intended. Some
argue that both standards will have to be satisfied for the weapon to
be exempt. Because of the use of a double negative, the section
seems to contradict itself when it is turned into a positive. As
written, it appears that the weapon only needs to satisfy one of the two
standards to be exempted. The new muzzle energy standard is also
added to section 84(3)(d)(ii).
c. Judicial
Interim Release
Clause 7 modifies
section 115 of the Criminal Code so that the forfeiture of everything
the possession of which is prohibited by a prohibition order and that
is in the possession of the person against whom the prohibition order
is made does not apply for an order made under section 515 (Judicial Interim
Release).
In addition,
clause 8 modifies section 116 of the Criminal Code dealing with
authorizations, licences and registration certificates that are revoked
or amended pursuant to a prohibition order. In the case of an order
under section 515 (Judicial Interim Release), the authorizations, licences
and registration certificates are only revoked or amended for the period
during which the order is in force.
The purpose
of the amendments is to ensure that firearms will not automatically be
forfeited to the Crown when a person is charged with an offence and an
order is made under section 515. A clarification is also made with
respect to firearms documents that are revoked or amended (when a person
is charged with an offence) by an order made under section 515.
This will allow a person to regain possession of his or her firearms if
the person is not found guilty of an offence.
d. Technical
Amendments
Clause 5 clarifies
section 85(1)(a) of the Criminal Code so that it refers only to
the offence of kidnapping (section 279(1)) and not also to the offence
of forcible confinement (section 279(2)).
Clause 6 clarifies
section 109(1)(c) of the Criminal Code so that it refers to the
appropriate offence provisions of the Controlled Drugs and Substances
Act.
2. Firearms
Act Amendments
a.
Definitions
Clause 97 modifies
the definition of authorization to export so that it includes
a permit to export goods that is issued under the Export and Import
Permits Act and that is deemed by regulations to be an authorization
to export. In addition, the term carrier no longer refers
to a person who carries on a transportation business that includes the
transportation of ammunition. Finally, the term Commissioner
is added to the definitions. This refers to the new position of
Commissioner of Firearms that is to be created under section 81.1.(51)
b. Carriers
Pursuant to
clause 97(3), decisions regarding the licensing of carriers will now be
made exclusively by the Registrar. There will be only one set of
carriers who will be allowed to do business intraprovincially and extraprovincially.
Corresponding changes are made by clauses 101, 127 and 134.
c.
Restricted Firearms Safety Course
Clause 99 provides
that for a person to be eligible to possess a prohibited firearm, the
person must satisfy the requirements of the restricted firearms safety
course.
d. Employee
Licensing
Bill C-15 changes
the licensing requirements for employees of businesses who deal with regulated
items. The legislation currently states that, in order for the business
to be eligible for a business licence, every employee who, in the course
of duties of employment, handles or would handle firearms, prohibited
weapons, restricted weapons, prohibited devices or prohibited ammunition,
must be the holder of a licence authorizing the acquisition of restricted
firearms.(52)
Clause 100 sets
out different licensing requirements depending on the items that the employee
handles and the items that the business possesses. Under new section
9(3.2), a business is eligible for a licence authorizing the possession
of prohibited weapons, restricted weapons, prohibited devices or prohibited
ammunition if every employee who handles these items in the course of
duties of employment is eligible to hold a licence under sections 5 and
6 of the Firearms Act. The items mentioned do not include
firearms. Thus, these employees (who do not deal with firearms)
would continue to be screened to determine whether they posed a risk to
public safety (they would have to pass the background checks) but they
would not be required to take a firearms safety course.
Under new section
9(3), a business is eligible for a licence authorizing the possession
of non-restricted firearms if every employee who handles such items in
the course of duties of employment is the holder of a licence that authorized
the acquisition of firearms that are neither prohibited nor restricted.
These employees would be screened to determine if they posed a risk to
public safety and they would also be required to complete and pass the
Canadian Firearms Safety Course (or otherwise satisfy the safety course
requirement pursuant to section 7(1) of the Firearms Act).
Thus, employees of businesses that dealt only in non-restricted
firearms (firearms that are neither restricted nor prohibited), no longer
need to hold a licence authorizing the acquisition of restricted firearms
and therefore would not be required to complete and pass an additional
restricted firearms safety course. This is subject to new section 9(3.1).
Under new section
9(3.1), businesses wishing to be eligible for a licence authorizing the
possession of restricted or prohibited firearms would continue to have
to meet the requirements in the current legislation. Their employees
who handle firearms in the course of their duties of employment would
not only be screened to determine if they posed a risk to public safety
but would also have to hold a licence authorizing the acquisition of restricted
firearms, i.e., they would have to complete and pass both the basic and
the restricted firearms safety courses. This requirement would apply
to all employees of such a business who handled firearms, whether or not
they were restricted or prohibited.
e.
Grandfathering
Clause 102 deals
with handguns that became prohibited on 1 December 1998 on the coming
into force of legislation passed by Parliament in 1995 (i.e., 25- and
32-calibre handguns and handguns with a barrel equal to or shorter than
105 mm).
The current
amnesty for individuals who acquired such a handgun after 14 February
1995 and before 1 December 1998 and businesses in possession of such handguns
has recently been extended to 30 June 2001. For individuals, different
rules apply regarding what a person may do with these firearms depending
on whether a registration certificate was issued for the handgun under
the former legislation. For businesses, different rules apply regarding
what they may do with these firearms depending on whether the handgun
was acquired on or before 14 February 1995 or after this date.
The 14 February
1995 date was chosen because this was the date on which Bill C-68
received first reading in the House of Commons. Thus, the class
of grandfathered individuals and the class of grandfathered handguns were
set on that date. People were not able to grandfather themselves
between the date the legislation was introduced and the date it came into
force. They could, however, still legally acquire these firearms
until they became prohibited. The prohibition of such firearms should
not have come as a surprise because the government had announced its legislative
intentions in a document released in November 1994 entitled The Governments
Action Plan on Firearms Control.
In addition
to the amnesty, the current legislation allows these prohibited handguns
to be possessed by individuals in the grandfathered class (people who
had registered or had applied to register one of these prohibited firearms
by 14 February 1995).(53) This
exemption applies only to prohibited handguns for which a registration
certificate under the former legislation had been issued to or applied
for by that or another individual who was in possession of the firearm
on 14 February 1995. Thus, the existing legislation creates a class
of grandfathered individuals who may possess such firearms and a class
of grandfathered firearms that may be possessed; both the firearm and
the individual in possession of it must be grandfathered to satisfy the
requirements of the exemption.
Because the
current grandfathering provisions apply only to prohibited handguns for
which, on 14 February 1995, a registration certificate under the former
legislation had been issued to or applied for, only firearms possessed
by individuals on that date can be in the grandfathered class. Dealer
inventories and firearms in the possession of other businesses or public
agencies did not have registration certificates; such firearms were recorded
with the former restricted weapons registration system but not registered.
Thus, at present, firearms that were in dealer inventories are
not grandfathered and cannot be sold to grandfathered individuals.
Clause 102 replaces
section 12(6) of the Firearms Act with new sections (6) and (6.1).
Although the firearm and the individual in possession of it must still
both be grandfathered to satisfy the requirements of the exemption, new
rules apply regarding the class of grandfathered individuals and grandfathered
handguns.
Regarding class
of individuals who are grandfathered, new section 12(6) provides that
the grandfathering date is now 1 December 1998 rather than 14 February
1995. Thus, a person who acquired a firearm between the date the
legislation was introduced and the date it came into force is now also
grandfathered (if the individual had registered or had applied to register
one of these prohibited firearms by 1 December 1998 and, after this
date, was continuously the holder of a registration certificate for that
kind of handgun).
In addition,
pursuant to new section 12(6.1), the class of grandfathered handguns is
widened by changing the grandfathering date to 1 December 1998 and
by grandfathering the inventories of prohibited handguns held by businesses.
The amendment allows dealers to retain these prohibited handguns and sell
them to grandfathered individuals (see above).
As stated above,
the grandfathered class is at present limited to prohibited handguns for
which, on 14 February 1995, a registration certificate under the former
legislation had been issued to, or applied for, by the individual now
in possession or another individual. In addition to changing the
grandfathering date, the amendment clarifies that for these firearms to
be in the grandfathered class, a registration certificate would not only
have to have been applied for but also subsequently issued.
f. Place where
Prohibited or Restricted Firearm may be Possessed
Clause 103 modifies
where a prohibited or restricted firearm may be possessed. Section
17 of the Firearms Act will now refer to the dwelling-house of
the individual as recorded in the Canadian Firearms Registry rather
than the dwelling-house as indicated on the registration certificate.
This change is required because the registration certificate does not
indicate a location.
g.
Authorizations to Transport
The Firearms
Act and its regulations currently provide different rules regarding
the transportation and usage of prohibited firearms and restricted firearms.
For example, prohibited firearms can only be transported and used for
the specific purposes set out in section 18. In addition, the
transportation of prohibited firearms is allowed under the Special Authority
to Possess Regulations for limited purposes. Thus, with the
exception of recently prohibited handguns, the transportation of prohibited
firearms is fairly restrictive. In fact, a special permit is required
under the regulations for prohibited firearms, with the exemption of recently
prohibited handguns. Meanwhile, section 19 provides that restricted
firearms may be transported between two specified places for any good
and sufficient reason and then goes on to set out a non-exhaustive list
of purposes.
Bill C-15 deletes
section 18 and provides that rules regarding authorizations to transport
will be the same for prohibited and restricted firearms, although special
rules will continue to apply for automatic firearms.(54)
This means that authorizations to transport will be available for most
prohibited firearms for the same reasons as for restricted firearms.
In addition, a new purpose is added to the list of non-exhaustive purposes
for which a prohibited or restricted firearm may be transported.
The new purpose is to provide instructions in the use of firearms as part
of a restricted firearms safety course. A corresponding change is
made to section 65(3).(55)
h. Transfers
Bill C-15 amends
the process that must be followed in order to transfer a firearm.
Clause 105 provides that while the transferee must still hold a licence
authorizing the transferee to acquire and possess that kind of firearm
and that the transferor must have no reason to believe that the transferee
is not authorized to do so, the transferee is no longer required to produce
to the transferor a firearms licence. In addition, with the exception
of an individual transferring a restricted or prohibited firearm, the
person is only required to inform the Registrar of the transfer
rather than the current requirements of informing a chief firearms officer
and obtaining his or her authorization for the transfer. The current
requirements continue to apply in the case of an individual transferring
a prohibited or restricted firearm. If the Registrar is informed
of a proposed transfer but refuses to issue a registration certificate,
he or she is to inform a chief firearms officer of that decision.
Thus, the Registrar replaces the chief firearms officer in the process
of approving a transfer of non-restricted firearms between individuals;
additional checks that may have been conducted by the chief firearms officer
at the time of a transfer of a non-restricted firearm will no longer be
conducted. A chief firearms officer, however, can still revoke a
persons licence at any time if he or she has reason to believe that
the person poses a safety risk.
A similar change
is made by clause 106 to the transfer of a prohibited weapon, prohibited
device, ammunition or prohibited ammunition to a business. The business
is no longer required to produce a licence to the transferor, and the
transferor is no longer required to inform a chief firearms officer of
the transfer and obtain his or her authorization.
Pursuant to
clause 107, a person will be able to transfer a firearm and other regulated
items to a municipality in addition to Her Majesty in right or
Canada, a province or a police force. The person is required to
follow the procedures set out in section 26 of the Firearms Act.
Clause 111 makes a corresponding amendment to section 31(2) of the Firearms
Act. Pursuant to clause 113, a person will also be able to lend
a firearm and other regulated items to a municipality.
Pursuant to
clause 112, in the case of mail-order transfer of firearms, the firearms
will no longer have to be delivered by a person designated by a chief
firearms officer.
i.
Exportation and Importation
Bill C-15 makes
several changes to the exportation and importation provisions of the Firearms
Act (most of which are not yet in force). Pursuant to clause
114, in addition to the current requirements that are imposed on non-residents
who do not have a licence and wish to import firearms, a non-resident
who declares a firearm has to produce to a customs officer a report that
he or she has applied for and obtained before the importation from the
Registrar. In addition, the non-resident is required to provide
the Registrar with prescribed information regarding himself or herself
and the firearm. A non-resident declaring a firearm will not have
to produce the report if he or she satisfies the customs officer that
the person has previously declared the firearm to a customs officer, that
the declaration was confirmed by a customs officer, and that the duration
of the declaration as provided in subsection 36(1) of the Firearms Act
has not expired. In the case of non-compliance with subsection 35(1)
of the Firearms Act, the customs officer will be able to specify
a reasonable time during which the non-resident may attempt to comply.
The current legislation only provides that the non-resident has a reasonable
time to comply to the requirements without allowing the customs officer
to specify what is a reasonable time. The requirement for the report
will allow a non-resident to have the paperwork and investigations completed
in advance and should reduce delays at the border.
Pursuant to
section 36 of the Firearms Act, a confirmed declaration under section 35
has the same effect as a licence and a registration certificate.
Clause 116 modifies section 36 of the Firearms Act to provide
that the confirmed declaration has the same effect as a licence authorizing
the non-resident to possess the kind of firearm being imported
(rather than permitting the possession of only the firearm being imported).
Thus, such a non-resident would be able to borrow a firearm of the same
class while in Canada with a confirmed declaration. In addition,
the confirmed declaration could be valid for up to one year (rather than
the current 60 days). A new provision allows a chief firearms
officer or the Registrar to declare that subsection 36(1) (temporary licence
and registration certificate) ceases to apply for a particular non-resident
or a particular firearm for any good and sufficient reason. This
will generally happen when there is a safety concern.
Clause 115 adds
new provisions dealing with importation by non-residents with a licence
(in the case where a non-resident has obtained a licence in Canada).
Although different conditions apply depending on whether a registration
certificate has been issued for the firearm, the non-resident is always
required to: declare the firearm to a customs officer in the prescribed
manner; produce a licence; and, in the case of a restricted firearm, produce
an authorization to transport. The provision also sets out what
happens in the case of non-compliance. A confirmed declaration has
the same effect as a registration certificate.
Clause 117 deals
with the exportation of firearms. A non-resident may export a firearm
that he or she has imported in accordance with section 35 or 35.1 of the
Firearms Act (as discussed above) if the non-resident complies
with the regulations relating to the exportation of firearms and holds,
in the case of a restricted firearm, an authorization to transport.
The provision sets out what happens in the case of non-compliance.
The current legislation provides different rules depending on whether
the non-resident has a licence.
Pursuant to
modified section 38, an individual may export a firearm if he or she has
the proper documentation for the firearm and complies with the regulations
relating to the exportation of firearms. Once again, the provision
sets out what happens in the case of non-compliance.
Clause 118 deals
with the importation of firearms by an individual who holds a licence.
There are different rules depending on whether the firearm was exported
as discussed above or whether this is a newly imported firearm for which
there is no registration certificate. Clause 119 deals with the
duties of the Registrar on being informed of a newly imported firearm
(a firearm for which there is no registration certificate). The
chief firearms officer was previously responsible for these duties.
The Registrar must verify whether the individual holds a licence to acquire
and possess that kind of firearm, verify the purpose for which the individual
wishes to acquire a restricted firearm, decide whether to approve the
importation, and take the prescribed measures. The provision also
sets out the permitted purposes for acquiring a restricted firearm.
With regard
to importation by businesses, clause 121 provides that where an authorization
to import is not confirmed by a customs officer, a person has 90 days
rather than the current 10 days to export the described goods before they
are forfeited to the Crown.
In addition,
with regard to exportation by businesses, clause 122 adds a new subsection
to section 49 dealing with the exportation of goods authorized by permit
issued under the Export and Import Permits Act. Such a permit
may be deemed to be an authorization to export which means that an authorization
to export under the Firearms Act would not be required.
Clause 123 modifies
section 50 to limit what needs to be reported by a customs officer to
the Registrar. In addition, section 51 is modified so that the Minister
responsible for the Export and Import Permits Act will inform the
Registrar of every application under that Act for a permit to export in
relation to a firearm. This will allow the Registrar to know what
is being exported.
Clauses 120
and 125 add new sections to the Firearms Act dealing with the report
a non-resident must produce to a customs officer as discussed above.
Under new section 42.1, the Registrar must inform the Canada Customs and
Revenue Agency of the reports that he or she makes. In addition,
new section 55.1 allows the Registrar to request further information from
the applicant and to conduct investigations that he or she considers necessary.
j. Applications for and Issuance of Licences, Registration Certificates
and Authorizations
Clause 124 provides
that applications for a licence, registration certificate or authorization
must be made in the prescribed form, which may be in writing or electronic,
or in the prescribed manner. In the current legislation, the application
must be in the prescribed form, without specifying the type of form.
Clause 126 modifies
section 61 to set out how licences and registration certificates must
be issued. These documents must be issued in the prescribed form,
which may be in writing or electronic, or in the prescribed manner and
also include prescribed information, including any conditions. A
similar change is made with regard to authorizations to carry, authorizations
to transport, and authorizations to export or import. Currently,
the legislation only specifies that the document must be in the prescribed
form and include the prescribed information, including any conditions.
The purpose
of these amendments is to allow greater flexibility in the application
for, and the issuance of, firearms-related documents. It will allow
the Canadian firearms program to use new avenues (such as electronic means)
for applications for, and the issuance of, firearms-related documents.
k. Duration
of Licences and Authorizations
Clause 128(1)
provides that the duration of licences issued before 30 June 2001 may
be extended by up to an additional four years. A chief firearms
officer may do this until 1 January 2005. The purpose of this
clause is to allow licences to expire in different years rather than most
of the licences expiring at the same time. This should remove strain
on the system.
In addition,
pursuant to clause 128(2), business licences may now be issued for up
to three years (rather than the current one year for most businesses).
Also, a business that sells only ammunition may have a licence of a duration
of up to five years. Bill C-15 also allows a chief firearms officer
to stagger these licences by extending their term. The Chief Firearms
Officer is required to give notice to the holder of a licence (either
an individual or a business) of an extension.
The legislation
currently provides different rules regarding the duration of authorizations
to transport depending on whether the authorization took the form of a
condition attached to a licence. This distinction is eliminated
in Bill C-15 and the duration of the authorization is the period for which
it is issued, to a maximum of five years (rather than the current three
years), or the expiration of the licence, whichever is earlier.(56)
This will allow authorizations to transport to expire at the same time
as a firearms licence.
l. Renewals
Clause 130 provides
that a chief firearms officer may renew a licence, authorizations to carry,
or authorization to transport in the prescribed manner (rather than in
the same manner and in the same circumstances in which these documents
may be issued). The purpose of this amendment is to allow for a
streamlining of the renewal process. Because information will already
be on file, it is believed that a simplified process is more appropriate
at the time of renewal.
m. Purpose
for Possessing Restricted Firearms or Grandfathered Handguns
Pursuant to
the current legislation, a chief firearms officer on renewing a
licence for restricted firearms or grandfathered handguns must
decide whether any of those firearms or handguns are being used for the
purpose for which the individual acquired the restricted firearms or handguns
or, in the case of restricted firearms or grandfathered handguns possessed
on commencement day, the purpose specified by the individual in the application.
Section 28 of the Firearms Act sets out the purposes for which
these firearms may be possessed (i.e., to protect life or for use in connection
with an occupation; for use in target practice or target shooting competition;
or to form part of a gun collection). Clause 130 would allow a person
to modify the purpose for which the firearm is being possessed as long
as it is still an authorized purpose under section 28. Corresponding
changes are being made by clauses 132 and 135.
n. Notices
of Refusal or Revocation
Clause 133 deals
with notices of refusal or revocation. It provides that a notice
of refusal to issue a licence, authorization to transport, a registration
certificate, authorization to export or to import, or the revocation of
such a document is no longer needed if the holder has requested that the
document be revoked or the revocation is incidental to the issuance of
a new licence, registration certificate or authorization.
o.
Commissioner of Firearms and Registrar
Clause 136 creates
the new position of Commissioner of Firearms who is to be responsible
for overseeing the firearms program. This person is to be appointed
by the Governor in Council and may exercise the powers that are delegated
by the federal Minister. The only powers that may not be delegated
are the power to delegate as set out in the section creating the new position
and the power to exempt individuals from the application of the firearms
legislation as provided in section 97 of the Firearms Act.
In the case of absence, incapacity or vacancy, the federal Minister may
appoint someone to perform the duties of the Commissioner but no person
may be so appointed for a term of more than 60 days without approval of
the Governor in Council. The Commissioner is deemed to be a person
employed in the Public Service for the purposes of the Public Service
Superannuation Act and for the purposes of the Government Employees
Compensation Act.
The position
of Registrar is also to change. Under the current legislation, the
Registrar is appointed by the Commissioner of the RCMP after consultation
with the federal Minister and the Solicitor General. Under Bill
C-15, the Registrar shall be appointed or deployed in accordance with
the Public Service Employment Act. In addition, in the case
of absence, incapacity or vacancy, the Commissioner of Firearms may perform
the duties of the Registrar. A transitional provision provides that
the current Registrar will remain in this position until another person
is appointed or deployed.
Clause 138 provides
that it is the Commissioner of Firearms (rather than the Registrar) who
is required to report to the federal Minister; this report is to be laid
in each House of Parliament. The former Registrar, who was appointed
by the Commissioner of the RCMP, reported to the Solicitor General.
p.
Exemptions
Section 97 of
the Firearms Act currently allows a provincial minister to exempt,
for any period not exceeding one year, employees of specified businesses
from the application of the firearms legislation for anything done by
them in the course of or for the purpose of their employment. Such
exemptions are not permitted if there are public safety concerns, and
the provincial minister may attach conditions to the exemption.
Bill C-15 adds
new exemption powers to the Firearms Act. Pursuant to clause 139,
the Governor in Council can exempt any class of non-residents from
the applications of the Firearms Act and specified provisions of
Part III of the Criminal Code. Such an exemption can be for
any period. In addition, the federal Minister may exempt any
non-resident for any period not exceeding one year. These exemptions
are subject to public safety concerns, and conditions may be attached
to the exemption. These new exemption powers are very broad because
there are no restrictions on the purposes for which these exemptions may
be granted. The only limitation is the one related to public safety
concerns. It appears that these exemptions may be used to exempt
people on ships coming temporarily to Canada and to exempt U.S. police
officers who must travel through Canada to get to their place of employment.
These people would not otherwise be able to comply with Canadian legislation.
For example, the law does not allow non-residents to import prohibited
firearms which are used by the police.
q.
Delegation to a Firearms Officer
Clause 140 modifies
section 99 of the Firearms Act so that a firearms officer may perform
any of the duties and functions of a chief firearms officer that are specified
in his or her designation as a firearms officer. Under the current
legislation, certain acts (such as the issuance of an authorization to
carry and the issuance of a licence to a business authorizing the acquisition
of prohibited firearms, prohibited weapons, prohibited devices or prohibited
ammunition) can only be done by a chief firearms officer personally.
r.
Regulation-Making Power
Clause 142 adds
new elements to the regulation-making power that correspond to the changes
being made in the legislation. For example, the Governor in Council
is able to make regulations deeming permits to export goods or classes
of permits to export goods (issued under the Export and Import Permits
Act) to be authorizations to export for the purposes of the Firearms
Act.
In addition,
the Governor in Council will be able to make regulations dealing with
other new matters, for example, those regarding:
s. Technical
Amendments
The Bill also
makes a series of corresponding and technical changes.(57)
J. National
Capital Act Offences
Clause 145 would
amend the National Capital Act, R.S.C. 1985, c. N-4, to effectively
raise the maximum fine for violation of regulations made under that Act
from $500 to $2,000.
K. Military
Justice System (Identification of Criminals)
Clause 146 of
the bill amends the National Defence Act, R.S.C. 1985, c. N-5,
in order to provide for the taking of fingerprints, photographs and other
authorized measurements from persons charged with or convicted of serious
offences under the Code of Service Discipline. Clause 146 essentially
adds provisions to that Act which are analogous to the Identification
of Criminals Act, R.S.C. 1985, c. I-1, which applies to persons
charged with or convicted of indictable offences under the Criminal
Code.
COMMENTARY
A.
Sexual Exploitation of Children and the Internet
Although the
Internet child-luring provisions of Bill C-15 (clause 14) have won praise
from some individuals involved in law enforcement and in searching for
missing children,(58) the new
offence of accessing child pornography (clause 11(3)) has drawn criticism
from some criminal defence lawyers and civil libertarians; concerns have
also been expressed in newspaper editorials.(59)
The child-luring provisions and the provisions dealing with court-ordered
deletion of child pornography on the Internet (clause 13) have met with
approval from the Canadian Association of Internet Providers who, in particular,
support the idea of judges deciding on which material should be deleted,
rather than leaving it up to private Internet Service Providers.(60)
B.
Cruelty to Animals
Opinion is divided
with regard to the cruelty to animals provisions of Bill C-15.
The response
of groups and individuals seeking increased protection for animals has
been generally positive. For example, the provisions are supported
by the Canadian Federation of Humane Societies.(61)
In addition, Liz White of the Animal Alliance of Canada stated the following:
What this piece of legislation does is elevate the issue in the
courts mind. It signals to judges that this is an issue that
should be taken seriously. Whether it filters down to the courts
depends largely on the people who take prosecutions to court. But
its an excellent first step.(62)
However, certain
groups including farmers and hunters are troubled
about certain of the new aspects of cruelty to animals provisions.
For example, they are concerned about removing the cruelty provisions
from the property sections of the Criminal Code and creating a
new Part for these provisions. David Borth, general manager of the
B.C. Cattlemans Association, stated the following: Its
moving from property rights to almost human rights and added that
we do have some concern about what this is indicating.(63)
Other concerns raised deal with matters such as the broad definition
of animal and the defences that are available.
When Bill C-17
was before the House of Commons, some people were concerned about the
possible applications of the law. For example, hunters, trappers,
farmers and bio-medical researchers feared criminal prosecution for certain
acts (e.g., branding). Some of these groups had requested that
the language in the legislation be clarified.(64)
For example, they were concerned about the possible interpretation that
might be given to the phrases causing unnecessary pain, suffering
or injury and brutally or viciously killing an animal.
Clearly, both Bill C-17 and C-15 were drafted to allow some causing of
pain and suffering to animals by including the word unnecessary.
If the pain and suffering is necessary for some lawful purpose,
it does not appear to be covered by the proposed provisions. It
will be interesting to see if these same concerns will be raised with
respect to Bill C-15.
It is possible
that the concerns of these groups could be alleviated if the legislation
set out, as exceptions, certain acts that would not be considered criminal.
For example, the Law Reform Commission of Canada in its report
on recodifying criminal law set out the following exceptions to
its proposed cruelty to animals offence:
20(2) Exceptions:
Necessary Measures. For the purpose of clause 20(1), no
injury or serious physical pain is caused unnecessarily if it is a
reasonably necessary means of achieving any of the following purposes:
(a)
identification, medical treatment, spaying or neutering;
(b) provision
of food or other animal products;
(c)
hunting, trapping, fishing, and other sporting activities conducted
in accordance with the lawful rules relating to them;
(d) pest,
predator or disease control;
(e)
protection of persons or property;
(f) scientific
research unless the risk of injury or serious physical pain is disproportionate
to the benefit expected from the research; and
(g)
disciplining or training of an animal.(65)
The addition
of similar exceptions in the proposed legislation might limit the fears
of those groups concerned with its application.
C. Disarming
a Peace Officer
The new offence
of disarming a peace officer should not raise much controversy.
David Griffin, Executive Officer of the Canadian Police Association (CPA),
the organization that initiated the process leading to the proposed offence,
stated that the CPA is very much in support of this provision.(66)
D. Criminal
Procedure Reform
The Ontario-based
Criminal Lawyers Association (CLA) supports certain initiatives
in the bill such as facilitation of electronic filing of documents
and remote court appearances, establishing a guilty plea inquiry procedure,
and enabling Attorneys General more flexibility in intervening in private
prosecutions and does not take issue with the notion of requiring
advance notice of expert testimony.(67)
However, both the CLA and the Association in Defence of the Wrongfully
Convicted (AIDWYC) oppose any new restrictions on the availability of
preliminary inquiries.(68) These
groups believe that, in addition to its principal function of screening
out or reducing charges which the evidence does not support, the preliminary
inquiry continues to perform a useful role in permitting the accused to
obtain further information, assess the strength of witnesses, and generally
test the strength of the prosecutions case before trial.(69)
In fact, the CLA advocates enhancing the screening role of the preliminary
inquiry by raising the standard for committing an accused for trial and
enabling the inquiry judge to weigh evidence and exclude evidence which
would not be admissible at trial.(70)
E. Wrongful
Conviction Review
With regard
to the proposed changes to the section 690 conviction review process,
groups involved with the wrongfully convicted, such as the Association
in Defence of the Wrongfully Convicted (AIDWYC), have been critical that
they do not go far enough in establishing an independent review process.
AIDWYC in particular has expressed its support for the British model of
an independent commission taking over this function from the Minister
of Justice and contends that the amendments proposed in the bill do not
represent any substantial change from the existing process.(71)
F. Firearms
Any changes
to the firearms legislation are sure to create interest. Although
some of the changes are administrative in nature and should not be highly
controversial, other changes will be criticized.
Groups that
originally supported Bill C-68 generally approve the changes that are
being made. For example, according to Wendy Cukier, president of
the Coalition for Gun Control:
There are
some minor concessions to firearms owners, which, for the most part
seem to be aimed at reducing unintended consequences for dealers and
owners of prohibited weapons and making it easier for restricted weapons
owners to change the purposes for which they own their firearm.
We do not strongly object to these concessions
(72)
Firearms groups,
which are still steadfastly against the principles of Bill C-68, are concerned
with many aspects of Bill C-15, particularly the drafting of the firearms
provisions. For example, Jim Hinter, president of the National Firearms
Association, stated that Bill C-15 was another example of failure
in drafting a bill.(73)
One of the concerns is with respect to firearms that are exempted from
the licensing and registration provisions. As stated above, Bill C-15
adds a new energy standard to the current velocity standard. The
intention was that a barrelled weapon would only have to satisfy one of
the two standards to be exempt (either fall below the specified energy
or fall below the specified velocity). Firearms groups are concerned
that the way the provision has been drafted, a barrelled weapon will have
to satisfy both standards to be exempt. If this were true, many
firearms that are currently exempt would become subject to licensing and
registration. Much of the confusion comes from the use of a double
negative in the provision. In addition, certain firearms groups
have stated that the energy standard is too low and will not exempt firearms
that were intended to be exempted.
Another concern
is the frequent use of the term as prescribed in the firearms
provisions of Bill C-15. Because many of the rules will be prescribed
by regulations at a later date, there is no way of knowing precisely what
they will be.
*
Notice: For clarity of exposition, the legislative proposals set
out in the Bill described in this Legislative Summary are stated as if
they had already been adopted or were in force. It is important
to note, however, that bills may be amended during their consideration
by the House of Commons and Senate, and have no force or effect unless
and until they are passed by both Houses of Parliament, receive Royal
Assent, and come into force.
(1)
See the Library of Parliaments Legislative Summary on Bill C-15A,
An Act to amend the Criminal Code and to amend other Acts (LS-410E),
and Bill C-15B, An Act to amend the Criminal Code (cruelty to animals
and firearms) and the Firearms Act (LS-412E).
(2)
Criminal Code, R.S.C. 1985 c. C-46, ss. 444 to 447. Despite
a series of amendments throughout the years, the offences relating to
cruelty to animals have not changed significantly since 1892.
(3)
Covering letter to Crimes Against Animals, A Consultation Paper,
Department of Justice, September 1998.
(4)
Department of Justice, News Release, Justice Minister Introduces
Measures to Better Protect Canadians and Safeguard Children from Cyber
Criminals, 14 March 2001, p. 2.
(5)
Bill C-17 would have placed the cruelty to animal provisions in Part V
of the Criminal Code and would have amended the heading of Part
V by adding the words cruelty to animals.
(6)
Not all of the current provisions have as a purpose the protection of
proprietary interests. For example, section 446(1)(a) provides protection
to all animals, even though there is no property relationship with a person.
(7)
Department of Justice, Crimes Against Animals, A Consultation Paper,
Part Three: Reconsidering the Criminal Law, September
1998.
(8)
Ibid.
(9)
The current provision is similar and also requires that the person commit
the act wilfully. See Criminal Code s. 446(1)(a).
Section 446(3) states that evidence that a person failed to exercise
reasonable care or supervision of an animal or a bird thereby causing
it pain, suffering, damage or injury is, in the absence of any evidence
to the contrary, proof that the pain, suffering, damage or injury was
caused or was permitted to be caused wilfully... In addition,
section 429(1) states that everyone who causes the occurrence of
an event by doing an act or by omitting to do an act that it is his duty
to do, knowing that the act or omission will probably cause the occurrence
of the event and being reckless whether the event occurs or not, shall
be deemed
wilfully to have caused the occurrence of the event.
(10)
Currently, it is an offence to wilfully kill, maim, wound or injure
cattle or to wilfully and without lawful excuse kill, maim, wound or injure
domestic animals; see Criminal Code sections 444 and 445.
Section 429(2) states that no one shall be convicted of an
offence under sections 430 to 446 where he proves that he acted with legal
justification or excuse and with colour of right. The proposed
provision mentions excuse but does not mention justification or with colour
of right.
(11)
The current provisions are similar and apply when the person does these
acts wilfully. See Criminal Code sections 444(a) and (b) (cattle),
445(a) and (b) (other animals domesticated) and 446(e) (domestic
animals). The proposed provision would apply to all animals and
would not be limited to cattle and domestic animals as is now the case.
In addition, section 429(1) states that everyone who causes the
occurrence of an event by doing an act or by omitting to do an act that
it is his duty to do, knowing that the act or omission will probably cause
the occurrence of the event and being reckless whether the event occurs
or not, shall be deemed
wilfully to have caused the occurrence of
the event.
(12)
This is similar to the current provision. See Criminal Code
section 446(1)(d), which states encourages, aids or assists at the
fighting or baiting of animals or birds.
(13)
This is similar to the current provision but adds the terms any
other arena for the fighting of animals. See Criminal Code section 447(1).
(14)
This is similar to the current provision but is expanded to cover all
animals and not only captive birds. See Criminal Code section
446(1)(f).
(15)
This is similar to the current provision but the current provision is
limited to the activity referred to in paragraph (g). See Criminal
Code section 446(1)(g).
(16)
This is similar to the current provision which is limited to domesticated
animals or birds or an animal or bird that is in captivity. See
Criminal Code section 446(1)(c).
(17)
This is similar to the current offence which applied when done by
wilful neglect. See Criminal Code section 446(1)(b).
Section 446(3) states that evidence that a person failed to exercise
reasonable care or supervision of an animal or a bird thereby causing
it pain, suffering, damage or injury is, in the absence of any evidence
to the contrary, proof that the pain, suffering, damage or injury was
caused or was permitted to be caused
by wilful neglect...
(18)
These penalties are prescribed by Criminal Code section 787.
(19)
Criminal Code section 429(2).
(20)
See proposed section 182.2 (1)(c) and (d).
(21)
This defence applies when the accused can show an honest belief in a state
of facts which, if they existed, would constitute a legal justification
or excuse.
(22)
See section 182.4(1)(a) of the bill and Criminal Code section 446(5).
(23)
These penalties are prescribed by Criminal Code section 787.
(24)
An exception being Criminal Code section 444, dealing with injuring
and endangering cattle.
(25) See
Criminal Code section 787.
(26)
There would still be a maximum fine of $2,000 when section 787 of
the Criminal Code applied.
(27)
Department of Justice, Backgrounder, Highlights of the Omnibus Bill,
March 2001, p. 4.
(28)
See also clause 87 which would make it clear that a person who was the
subject of a writ of habeas corpus would have to appear personally
in court, notwithstanding any other provision of the Code.
(29) R.
v. Stinchcombe, [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1; and R.
v. Dixon, [1998] 1 S.C.R. 244, 122 C.C.C. (3d) 1.
(30)
Although sections 800(2) and 802(2) of the Code, dealing with summary
conviction proceedings, provide that an accused may appear and examine
and cross-examine witnesses personally, by counsel, or by agent, section
650(3), dealing with indictable proceedings, provides that an accused
is entitled to make full answer and defence to the prosecutions
case either personally or by counsel (i.e., no reference to agents).
(31)
Criminal Code section 810.01.
(32)
Ibid., section 810.1.
(33)
Ibid., section 810.2.
(34)
Department of Justice, Addressing Miscarriages of Justice:
Reform Possibilities for Section 690 of the Criminal Code Consultation
Paper, Ottawa, October 1998.
(35)
Ibid.
(36)
Ibid.
(37)
Ibid.
(38)
See, for example, Carl Karp and Cecil Rosner, When Justice Fails, The
David Milgaard Story, Toronto: McClelland & Stewart, 1991,
chapters 17-22.
(39)
Ibid., chapter 18.
(40)
Addressing Miscarriages of Justice, supra,
note 33.
(41)
Ibid.
(42)
Ibid.
(43)
Ibid.
(44)
Ibid.
(45)
Ibid.
(46)
See Department of Justice, Addressing Miscarriages of Justice:
Reform Possibilities for Section 690 of the Criminal Code, Consultation
Paper, Ottawa, October 1998.
(47)
Royal Commission on the Donald Marshall, Jr., Prosecution, Commissioners
Report, Halifax, December 1989, Vol. 1, pp. 143-146 (recommendations
1 and 2). Another provincial inquiry into a case of wrongful conviction
recommended that the creation of such a body should at least be studied
by the federal government: Hon. Fred Kaufman, The Commission
on Proceedings Involving Guy Paul Morin: Report, Toronto, March
1998, Vol. 2, pp. 1237-1241 (recommendation 117).
(48)
Department of Justice, Press Release, Criminal Code Changes Will
Strengthen Justice System, Ottawa, 8 June 2000.
(49)
See clause 136 of Bill C-15.
(50)
For example, the licensing and registration offences do not apply to exempted
items although it is an offence to use such an item in the commission
of an offence.
(51)
See clause 136 of Bill C-15.
(52)
Firearms Act, S.C. 1995, c. 39, section 9(3).
(53)
Firearms Act, section 12(6).
(54)
See clause 104.
(55)
See clause 129.
(56)
See clause 129.
(57)
See clauses 98, 108, 109, 110, 131, 141, 143 and 144.
(58)
Tonda MacCharles, Child porn viewers on Net may be charged,
Toronto Star, 15 March 2001, p. A1; Tonda MacCharles, Child
porn targeted in new law; Will be offence to display on computer,
The Hamilton Spectator, 15 March 2001, p. B3; and Paul Samyn,
Grits aim to tame Net; Ottawas massive crime bill targets
cyberstalkers, child porn on Web, Winnipeg Free Press, 15
March 2001, p. A1.
(59)
MacCharles, Child porn viewers on Net may be charged, supra,
note 57; MacCharles, Child porn targeted in new law, supra,
note 57; Tim Naumetz, New laws target Internet child
porn: Criminal Code changes aim to curb rising cyber-sex trade,
The Calgary Herald, 15 March 2001, p. A1; and Too much
for one bill, The Gazette (Montreal), 16 March 2001, p. B2.
(60)
MacCharles, Child porn viewers on Net may be charged,
supra, note 57; MacCharles, Child porn targeted in new law,
supra, note 57; Samyn, Grits aim to tame Net, supra,
note 57; and Mark MacKinnon, Web cleanup law targets child porn,
The Globe and Mail, 15 March 2001, p. A1.
(61)
Canadian Federation of Humane Societies, Press Release, Animal
Cruelty Bill Back on the Table, 15 March 2001. This
document can be found at
(62)
Animal Rights Activists Applaud Tougher Laws, Ottawa
Citizen, 14 March 2001, p. A6.
(63)
Cruelty to Animals will bring Tougher Sentences and Heftier Fines,
Vancouver Sun, 14 March 2001,p. A4.
(64)
For an example of concerns that were raised about the application of this
legislation, see Animal Cruelty Law Opens Legal Can of Worms,
Ottawa Citizen, 24 March 2000, p. A6.
(65)
Law Reform Commission of Canada, Report 31, Recodifying Criminal
Law, 1987, p. 98.
(66)
Telephone conversation with the author on 24 April 2001.
(67)
Criminal Lawyers Association, Submissions on Behalf of
the Criminal Lawyers Association Regarding Criminal Procedural Reforms,
paragraphs 1-6 (available on the CLA
website).
(68)
Ibid., paragraphs12-26.
(69)
Ibid., paragraphs 15-23.
(70)
Ibid., paragraph 26.
(71)
Kaufman, Vol. 2, p. 1237; and Lynne Cohen, Courage of Convictions,
Canadian Lawyer, Vol. 24, No. 11 (November/December 2000),
p. 47.
(72)
Coalition for Gun Control, Press Release, Public Safety Groups support
efforts to streamline firearms legislation, 15 March 2001.
(73)
Telephone conversation with the author on 24 April 2001.
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