Over the past year, important criminal law developments came from several changes Parliament made to Canada’s Criminal Code.
The law is always changing. So, it is challenging to list the most significant developments over the last 12 months. Others might have different choices, but what follows is my take on the most important changes in Canadian criminal law in 2022.
Some years are marked by significant court decisions (usually from the Supreme Court of Canada), which bring about noteworthy and lasting change in the process or substance of criminal law. This year, however, almost all the changes I count as the most important have come from Parliamentary action: changes to the Criminal Code.
In early 2022, amendments to the Criminal Code that Parliament passed in 2021 became effective. Several new offences came into force to respond to various situations and needs that arose over the last few years.
Ban on conversion therapy
In support of its efforts to promote general equality and tolerance among all sectors of society, the government proposed (and Parliament adopted) the criminalization of “conversion therapy”. Conversion therapy is the idea that gender identities and sexual orientations can and should be changed by way of “therapies” favoured by other persons. While individuals can freely pursue any form of therapy or treatment for themselves, to cause another person to undergo conversion therapy is now a criminal offence punishable by up to five years in jail. Promoting, advertising or making money off conversion therapy are also now against the law and carry maximum sentences of up to two years in jail.
Intimidating healthcare professionals or obstructing access to health facilities
New criminal offences also respond to some of the most unpleasant and outrageous public reactions to emergency measures during the COVID-19 pandemic. A shameful side effect of the pandemic was some people harassing and intimidating doctors and nurses – the same healthcare professionals upon whom we all rely – simply because they were carrying out their duties to their patients. Some chose to picket and block hospitals, swear at and insult (and in some cases, threaten) healthcare professionals, and prevent patients from going into healthcare facilities.
In response, Parliament created new offences of intimidating healthcare professionals or obstructing access to healthcare services. Peaceful protest is allowed. But, anyone who intends to cause healthcare professionals or their patients to be fearful, or who obstructs access to a health facility, may spend up to ten years in jail if convicted.
Defence of extreme intoxication
In June 2022, Parliament achieved rare party unanimity in its response to a Supreme Court of Canada decision to strike down a Criminal Code section banning the defence of “extreme intoxication”.
In 1994, the Supreme Court of Canada considered where an accused drinks alcohol and/or uses drugs to the extent they become so intoxicated they are almost in a psychotic state. The Court ruled these individuals may be acquitted of criminal charges based on them not knowing what they were doing and having no control over their conduct. The basic constitutional requirements of criminal law say no person can be convicted of an offence for conduct that is not voluntary. In these rare cases, an accused might defend the charges against them by saying they were not acting voluntary and so should be found ‘not guilty’.
Shortly after the 1994 decision, Parliament enacted section 33.1 of the Criminal Code. It banned the use of this defence, reasoning that the individual voluntarily consumed an intoxicating substance and put themselves into the state of extreme intoxication. In May 2022, the Supreme Court of Canada decided this provision is unconstitutional. A majority of the Court held that because section 33.1 would apply in any case where an accused person had voluntarily consumed intoxicants, it improperly allowed conviction where even the most basic guilty state of mind was lacking. Someone who took an intoxicant without knowing or expecting the extreme results of their conduct while under the influence could be convicted and punished for the criminal offences they committed during that period. This goes against basic principles underlying our criminal justice system, notably that the Criminal Code only punishes voluntary actions intended to break the law.
In response to the Court’s decision, all parties in Parliament agreed to move quickly to enact a new provision. On June 23, 2022, the new section 33.1 came into force. The law now requires all persons who consume intoxicants to follow “the standard of care expected of a reasonable person in the circumstances”. In deciding whether an individual has departed from this standard of care, the court must consider the objective foreseeability that consuming the substances might cause extreme intoxication and lead the person to harm another. Where an accused has acted contrary to this standard of care, they cannot defend a charge by saying they were unaware of, or unable to control, their own conduct and behaviour.
Mandatory minimum sentences
Late in 2022, another set of changes to the Criminal Code as well as our drug laws (the Controlled Drugs and Substances Act) came into effect. Most importantly, these changes removed several mandatory minimum sentences (all requiring judges to impose long jail terms). Sentencing judges once again have the power to order a sentence that responds to the specific situation. In deciding the punishment, judges will focus on the characteristics of the offender and the circumstances of the offence they committed.
House arrest orders
The laws about Conditional Sentence Orders (commonly referred to as “house arrest orders”) were changed to remove restrictions imposed by earlier Parliaments. In more cases than was possible before, a judge can order the convicted person to serve a sentence of imprisonment at home under strict conditions as long as public safety is not an issue and the punishment achieves the usual goals of sentencing (denunciation, deterrence, rehabilitation and reintegration into society).
Minor drug offences
Other changes signal a shift in how Canada addresses some minor forms of drug offences. In at least some cases, drug use is to be seen as a health and social issue not necessarily requiring a criminal response. Instead of charging an individual with illegal possession of drugs, a police officer can warn the person about drug use and refer them to a program or agency that offers help with addictions. Prosecutions for “simple possession” offences (different from trafficking or “possession for the purposes of trafficking” offences) will now only take place where a prosecutor has reviewed the matter and concluded taking the file to court is necessary and appropriate.
His Majesty the King
A final change in criminal law is minor yet nominally affects every criminal proceeding before the courts. Criminal prosecutions are conducted in the name of the Sovereign, often referred to as “the Crown”. Until September 2022, prosecutions were always entitled as being between “Her Majesty the Queen” (or in Latin, as “Regina”) and the accused person.
With the death of Queen Elizabeth II on September 8, we no longer have a Queen. Immediately, all prosecutions (current or future) began referring instead to “His Majesty the King” or “Rex” in Latin. This does not affect substantive or procedural criminal law, but nonetheless is a change across the board to the titles of all criminal proceedings anywhere in Canada.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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