Seizure of electronic data, sextortion among issues addressed at Uniform Law Conference meeting

At the Uniform Law Conference of Canada’s annual conference last week, the organization considered topics ranging from sextortion and electronic data seizures to uniform enforcement of Canadian judgments and defamation law in the internet age.

The ULCC provides independent analysis and recommendations for the harmonization of laws across Canadian jurisdictions and the proposed reform of criminal laws. It held its first meeting in 1918 and meets every August. Last week’s meeting in Edmonton was the ULCC’s 104th annual meeting, the organization’s first in-person gathering since 2019. ULCC committees and working groups also work throughout the year to “review, analyse and develop recommendations that are aimed at making the civil and criminal law more fair, clear, modern and effective,” said its website.

The ULCC splits its work into two sections: criminal and civil.

During this year’s conference, the civil section received interim reports on projects dealing with reforming general partnership law/joint ventures, charitable organizations, defamation law in the internet age, and the Uniform Enforcement of Canadian Judgments and Decrees Act. The civil section also approved in principle the Uniform Gratuitous Crowdfunding Act.

The ULCC is halfway through its work on the Uniform Enforcement of Canadian Judgments and Decrees Act, says Peter Lown, chair of the advisory committee on program development and management and a former director of the Alberta Law Reform Institute.

Clarifying the law around enforcing judgments across provincial and territorial borders will be a “huge saving to business” because they will not have to re-litigate matters to enforce judgments in other jurisdictions, says Lown, who is also Professor Emeritus at the University of Alberta Faculty of Law.

The civil section also received a preliminary report which looked at the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019) by common law jurisdictions and considered its possible future implementation.

It turns out that the Hague Convention closely resembles Canada’s Uniform Enforcement of Foreign Judgments Act, says Lown. If Canada accedes to the convention, the ULCC will create an implementing statute. The ULCC will also analyze the convention and determine what needs to be updated or clarified in the Uniform Enforcement of Foreign Judgments Act.

The criminal section considered 24 resolutions on criminal justice issues, including sextortion and the treatment of data seized during a criminal investigation and prosecution.

Sections 489 and 490 of the Criminal Code deal with police search and seizure and the rules around returning seized items to their lawful owners.

“There’s been some confusion,” says Kevin Westell, the ULCC’s outgoing criminal section chair and founding partner at Pender Litigation in Vancouver. “Essentially, like many aspects of the Criminal Code, these sections were designed many years ago, before the concept of electronic data really was on the radar of drafters in relation to criminal code offenses and criminal investigation.”

There is a question about how these sections apply when police seize cell phones, computers, and other devices. According to Westell, data can be the most important evidence in a case, especially for child pornography and extortion or threats committed over the internet.

“There was considerable discussion about how the evidence, seizure and retention regime of the Criminal Code should be amended to deal with data,” he says.

The ULCC also resolved to recognize the seriousness and increasing prevalence of sextortion, another issue related to how crime has evolved with technology. This offence involves threatening to distribute intimate images for extortion. The resolution addressed “the need to ensure that applicable procedural law is sufficiently flexible to enable prosecution services to proceed by summary conviction, as appropriate,” says Westell.

“It was recommended that Justice Canada study the creation of a hybrid offense of sextortion,” he says. “Right now, all they have to rely on is the indictable-only offence of extortion.”

The criminal section had various working groups delivering status reports. One working group examined “section 672.26 of the Criminal Code involving juries and the determination of fitness to stand trial,” while another looked at the “search warrant regime under section 487 of the Criminal Code, and the working group on technology in the courtroom,” said a ULCC press release.

The criminal section comprises prosecutors, defence lawyers, criminal law policy experts, judges, and academics, and the ULCC organizes it by jurisdictional delegations. This section works to identify legal and operational issues and makes recommendations for criminal law reform.

The civil section includes government lawyers, private practitioners, and law reformers. This section examines opportunities for harmonization of provincial and territorial laws. At the annual conference, it reviewed and debated its proposed uniform statutes. If the ULCC adopts the proposals, it will make recommendations to all relevant governments in Canada to enact them. 

The ULCC also holds a joint forum for issues of mixed civil and criminal law, which the ULCC deals with like civil section matters.

This year’s conference met from Aug. 15 to 19.