Bill C-15: Criminal Law Amendment Act, 2001 (LS-404E)

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.

Prepared by:
David Goetz, Gérald Lafrenière
Law and Government Division
27 April 2001
Revised 12 October 2001

HOUSE OF COMMONS		SENATE
Bill Stage	Date	Bill Stage	Date
First Reading:	14 March 2001	First Reading:
Second Reading:	26 September 2001	Second Reading:
Committee Report:		Committee Report:
Report Stage:		Report Stage:
Third Reading:		Third Reading:

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.

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)

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).

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.

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.

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 court’s 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 court’s 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 person’s 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 court’s 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.

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.

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:

Clauses 10 and 91 of the bill amend sections 161 and 810.1, respectively, in order to:

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 department’s action was “mounting scientific evidence of a link between animal abuse and domestic violence and violence against people generally.”(3) The government’s 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:

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:

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 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).

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

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

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:

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:

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.

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.

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 accused’s 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 court’s 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 accused’s physical absence from the courtroom is authorized and the accused is represented by counsel. These situations would include:

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.

Clause 59(1) requires courts to satisfy themselves as to the following before accepting guilty pleas:

However, a court’s failure to fully inquire into these matters would not invalidate such a plea.

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.

Most criminal prosecutions in Canada are conducted by or on behalf of the provincial or federal Attorney General’s 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.

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.

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 judge’s own motion.

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 accused’s 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.).

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.

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 accused’s consent, the prosecution is precluded from producing into evidence a proposed expert witness’ report or opinion summary where the witness did not testify.

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 province’s lieutenant governor in council. Agents are already precluded from representing accused persons in indictable proceedings.(30)

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.

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:

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 applicant’s claims, based on new and significant information that was not available at trial.(36) If this threshold is met, the applicant’s 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:

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 Department’s 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 Department’s 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)

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 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 Minister’s decision) than the current provisions. Although clause 81 (new section 696.3(4)) provides that the Minister’s 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.

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:

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.

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:

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).

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.

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.

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)

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.

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.

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 Fi