DESCRIPTION OF PROPOSALS TO MODERNIZE THE CRIMINAL CODE

Like the proposals proclaimed law in Bill C-42 in February, these proposals call for improvements throughout the Criminal Code and related statutes. Most of them deal with procedural matters. Some have to do with evidentiary provisions. Others are concerned with specific schemes within the Criminal Code such as impaired driving, mental disorder, interception of communications, and proceeds of crime. Among the procedural changes are matters relating to police and other law enforcement officials, and they concern pre-trial release search and seizure and associated matters. Others relate to trial procedures or dispositions and sentences. This bill also enhances the ability of law enforcement officials to respond to fraudulent behaviour involving credit cards, computers and obtaining services. A final group consists of a variety of miscellaneous provisions such as repealing certain provisions found to be obsolete or not in conformity with the Charter. A number of the proposals could fall within more than one category.

Proceeds of Crime

There are several proposals related to proceeds of crime. One would extend the existing money laundering offences to cover property held out to be proceeds of crime. This would clarify the ability of the police to engage in undercover operations and use legitimate property as bait for suspected money launderers. Another proposal would make it possible for accused persons to have access to seized property, where this property may be subject to forfeiture as proceeds of crime, for the purpose of reasonable, living, business and legal expenses even if the property was seized under non proceeds of crime related authority.

"Joy-riding", credit card fraud

Several proposals relate to Criminal Code offences. At the urging of the Canadian police community and the Insurance Bureau of Canada, an offence aimed at passengers in stolen vehicles would be added to the existing joy-riding offence which presently only covers drivers. The Canadian Bankers Association, supported strongly by the police community, especially the RCMP, have urged a number of changes to offences dealing with credit card fraud and computer-assisted crimes. Another proposal would enlarge the fraud offence to include frauds used to obtain services and not, as is presently the case, solely property.

Impaired Driving

Two proposals are aimed at making adjustments to the Criminal Code following Court decisions. In one case, the Supreme Court of Canada held that evidence that a person who drank alcohol after being arrested for impaired driving but before the two breathalysers were administered, constituted evidence to the contrary rebutting the presumption that the test results were proof of the alcohol level at the time of driving. The proposal would require contrary evidence sufficient to suggest that the alcohol level at the time of driving was less than the legal permissible limit. The other proposal is intended to clarify the law as a result of conflicting Court decisions that suggested that test results of a blood sample could not be used if the accused failed to apply for access to a second sample within three months. The proposal would ensure that the accused could not defeat the use of the test results simply by refraining from asking for access to the sample during the three month period.

Pre-Trial Release

A number of proposals would allow police to impose further pre-trial release conditions. In Bill C-42, proposals permitting the police to release an arrested person who was prepared to abide by certain conditions restricting liberty were enacted, instead of the accused person having to wait for an appearance before a judge. The government is now proposing additional release conditions. They relate to firearms possession, alcohol and drug use and reporting periodically to police. There would be an offence established for breach of these conditions. There are other proposals aimed at permitting easier variations of pre-trial release orders whether at the request of the prosecutor or the accused. Another proposal would make it easier to conduct bail hearings using video-conferencing. Finally, a proposal would permit a judge to postpone the execution of a bench warrant in order to permit the voluntary appearance of a defaulting accused person.

Warrants

Other proposals would adjust the Criminal Code provisions applicable to the property seized under a warrant or other authority. These are aimed at reducing the administrative burden on law enforcement authorities and persons from whom property has been seized. These proposals clarify that warrants for searches of computer systems can be obtained. These changes also provide authority for justices to require persons to assist in the execution of search warrants where that assistance is reasonably necessary. Another proposal would make it possible to obtain warrants using "fax" or telephone communications. There are also proposals codifying the circumstances under which police and others performing statutory duties can search and seize without a warrant, for example where exigent circumstances clearly exist. Evidence of criminal activity in plain view of police carrying out their lawful functions would also be subject to seizure.

Procedural Proposals

There are proposals which would range from permitting police to serve, and provide proof of service, in a more expeditious fashion, to proposals reducing the number of automatic rights of appeal to the Supreme Court of Canada. The former proposals would permit police to serve summons, subpoenas and other documents by mail, if permitted by provincial law in relation to provincial offences. The latter changes would require leave to be given by the Court, after an oral hearing, in respect of appeals where an acquittal has been set aside, without a dissenting judgment, and a new trial has been ordered. Appeals as of right would be maintained where there has been a dissent or where a conviction has been entered. An appeal to the Supreme Court from a refusal to issue a writ of habeas corpus would also require prior leave to appeal. Other changes would permit greater use of the telephone, video technology and "fax" for certain procedural matters. Pre-trial conferences and hearings would be more readily available. Other changes would allow Courts of appeal to more conveniently deal with incidental matters like staying sentences pending appeal or arranging bail. There would also be more flexibility for appeal courts to deal with combined summary and indictable offences.

Evidentiary Proposals

Several proposals are directed at making improvements in the way in which some evidence issues are handled. There is a proposal which would permit experts to present their reports by affidavit thereby avoiding the need to appear in person to testify, unless the judge orders otherwise. A similar proposal would permit the use of a conviction for theft (or another offence) to prove this fact when it is relevant to a charge of possessing stolen property (or being an accessory after the fact to another offence). There is also a proposal which would permit previously taken evidence which had been recorded or video-taped to be introduced in subsequent proceedings, where the existing conditions are satisfied, by being "played in" rather than "read in". Evidence of statements captured on video or audio tape would thereby be made more conveniently admissible. Finally, a change to the Canada Evidence Act would permit designated non-Canadian staff at foreign posts to take affidavits, relieving the burden on Canadian staff.

Interception of Private Communications

There is one proposal which would make it possible to obtain authorizations for the interception of private communications in respect of a number of additional offences including: abduction of persons under sixteen, abduction of persons under fourteen, abduction in contravention of custody orders and abduction by parent or guardian; possession of devices to obtain telecommunication services; and, attacks on premises of internationally protected persons. There would be other changes permitting designations of agents to apply for intercept authorizations to be made not only by the Solicitor General or a provincial Attorney General, but by their deputies.

Miscellaneous

Several proposals would repeal spent or obsolete provisions; make minor adjustments to conform to judicial decisions in relation to the Charter (making the issuance of a warrant under s. 164 of the Criminal Code permissive and not obligatory); or correct typographical errors, minor mistakes or differences in the language versions. Other proposals would reclassify several offences so that more cases could be kept within the provincial court system (forgery, uttering a forged document and breach of a recognizance). Other proposals would give the provinces more flexibility in relation to the scheme controlling automobile master keys and the ability to establish fees for the provision of certain procedural services in relation to summary conviction matters.

Communications and Executive Services Branch
Department of Justice

December, 1995