The Uniform Law Conference of Canada was founded in 1918 to harmonize the laws of the provinces and territories of Canada, and where appropriate the federal laws as well. The ULCC also makes recommendations for changes to federal criminal legislation based on identified deficiencies, defects or gaps in the existing law, or based on problems created by judicial interpretation of existing law.
The Criminal Section unites lawyers from federal, provincial and territorial governments with defence counsel and judges to consider proposals to amend criminal laws, which are mainly under federal authority in Canada. The administration of criminal justice is however largely provincial and territorial. The meetings of the Section give the provinces and territories a chance to ask the federal government to make the system better reflect the challenges they face in performing that administration.
This year’s conference ran from August 13 to 17, 2017 in Regina, Saskatchewan. Tony Paisana and I appeared as the CBA’s representatives on the Federal Delegation.
Tony is also heading up the ULCC’s ongoing Working Group on Criminal Record Checks and presented his report at a joint session of the Civil and Criminal sections.
Resolutions
Tony presented resolution CBA - 02 and I represented the Canadian Bar Association. CBA – 02 resolved that:
- “Subsection 515(1) (Order of release) of the Criminal Code be amended to add a subsection recognizing mental health of the accused as a relevant factor for determining when “detention is necessary” under Part XVI (Compelling appearance of accused before a Justice and interim release) of the Criminal Code.
- Paragraph 718.2(e) (Other sentencing principles) of the Criminal Code be amended to add the words, ‘and offenders who suffer from mental illness, which contributed to their offending’.”
Presentation of the resolution was successful in driving discussion and debate on the lack of recognition of mental illness within the criminal justice system. Unfortunately the resolution was withdrawn for lack of support.
I presented resolutions CBA – 01 and CBA – 03. Both resolutions were watered down to some degree after considerable debate.
CBA – 01 resolved “THAT Justice Canada review the eligibility criteria of conditional sentences of imprisonment with a view to expanding the number of offences for which a conditional sentence may be granted.” The resolution was carried in this form.
The original form of the resolution requested that Justice Canada present a more circumscribed list of ineligible offences to Parliament, with the goal of promoting and maintaining the confidence of Canadians in the justice system concerning the use of CSOs (e.g. sexual offences proceeded by way of indictment).
CBA – 03 resolved “THAT Justice Canada, as part of its ongoing review of the bail system in Canada, consider amending Part XVI (Compelling appearance of accused before a Justice and interim release) and section 679 (Release pending determination of appeal) of the Criminal Code to promote greater efficiency and access to justice for individuals seeking to vary the terms of their judicial interim release.” The resolution was carried in this form.
The resolution in its original form advocated for the creation of a procedural mechanism so an accused can apply to a justice of the provincial court to vary the conditions. This would simplify and streamline contested bail variations while ensuring an opportunity for the prosecutor to respond and make submissions. It would also enhance access to justice as more unrepresented accused could take advantage of this mechanism.
Overall, the conference was a rewarding experience for Tony and me. Tony’s work heading up the Working Group on Criminal Record Checks is ongoing and he is scheduled to present a final report at next year’s conference in Quebec City. I am a member of the conference’s Working Group on the Reform of the Adverse Witness Sections of the Canada Evidence Act. That project is ongoing as well.
Kevin Westell is a partner at Pender Litigation in Vancouver