Mr. Speaker, at the outset I would like to congratulate the hon. member from Wild Rose for bringing in Bill C-215, to abolish the year and a day rule from the Criminal Code, and forward for discussion to the House.
I fully agree with him that it is opportune for this rule to be the subject of law reform. This issue has been of great interest to the Minister of Justice in Manitoba, his immediate predecessor and Canadians such as Mark Ward, whose brother Marvin was the unfortunate victim of a vicious assault in 1995 which put him in a coma and ultimately resulted in his death, but outside the year and a day time limit. They too have been arguing for reform.
Section 227 of the Criminal Code provides that no person commits culpable homicide or the offence of causing the death of a person by criminal negligence or by means of the commission of an offence under subsection 249(4) or subsection 255(3) unless the death occurs within one year and one day from the time of the occurrence of the last event by means of which the person caused or contributed to the cause of death.
Bill C-215 seeks to remove the time limit from section 227. In seeking to do so, it proposes to put in place a new section 227 in the Criminal Code.
The historic origins of the year and a day rule go all the way back to the Middle Ages in England. In those days, two distinct prosecutions could be brought with respect to a homicide: a private prosecution and a public one.
For the purpose of simplifying private prosecutions, the Statute of Gloucester, passed in 1278, provided clearly that prosecution for a serious act causing death could stand, if members of the family began proceedings at the latest a year and a day after the act suspected of having caused the death.
This simple statement of fact was subsequently interpreted, however, as limiting the right to prosecute.
Over time, prosecution for death was repealed and the year and a day rule became an irrefutable requirement in cases of homicide; if the Crown could not prove that death had taken place during this period, there could not be culpable homicide.
This ancient rule, an accident of history, survived the years, and was codified in Canada's first Criminal Code in 1892.
Over the years three arguments have been offered in support of the rule. One, a person should not remain almost indefinitely at risk of prosecution for murder or for another fatal offence. Two, if a person lives for a long time after the injury was sustained then it is more difficult to say that the injury caused the death. Three, even when the rule applies, the accused can usually be convicted of a serious offence.
There appears to be little current support for the continued existence of the year and a day rule, however. The following criticisms can and have been made. There is no statute of limitations for homicide in Canada and therefore a person can be subject to prosecution years after a killing has taken place.
Second, this is an arbitrary rule which prevents justice from being done in certain cases. Death may occur just outside the time limit and a causal link may be proven, yet in such a case there would be no culpable homicide.
Third, it can also prevent justice from being done in cases involving long term causes of death. Another argument is that with modern life supporting technology, persons can be kept alive longer, yet this ancient rule continues to operate. Modern science can also assist in the determination of the cause of death, even after the passage of a number of years, so the causation argument is not strong.
Experiences in jurisdictions which do not have this rule seem to indicate that criminal justice systems can operate fairly and effectively without the rule. Last but not least, juries can and do have to consider complex evidence as to the cause of death, and if the crown does not prove beyond a reasonable doubt that the accused caused the victim's death then the prosecution will fail.
In June 1987, in a document entitled Recodifying Criminal Law , the Law Reform Commission of Canada recommended that a new rule of causation be added to the Criminal Code to replace the specific provisions on causal link with respect to homicide, including the year and a day rule. In its working paper on homicide, the LRC took the following position:
Section 210—now section 227—which provides that no person commits culpable homicide unless the death occurs within a period of a year and a day seems highly anachronistic.
The purpose of this rule was undoubtedly to spare a jury from having to rule on cases where the link between the reprehensible act and the victim's death was difficult to establish.
Nowadays, however, its usefulness is highly disputable, in so far as this matter can be satisfactorily resolved through existing medical and scientific knowledge.
In June 1991 the federal-provincial working group on homicide recommended a rule of causation to replace sections 224 and 227 of the Criminal Code to read:
Everyone causes death, when their conduct significantly contributes to death, notwithstanding that there may be other significant contributing factors and that such conduct may not alone have caused death.
As well, the Department of Justice consulted on a possible general rule of causation for the Criminal Code as part of the consultations on the general part in 1994 and 1995, but to date a reform effort to codify a general rule of causation has not proceeded. In other jurisdictions change has already taken place.
In July 1994, the law commission of England published a consultation paper on the year and a day rule with respect to murder and other related offences.
The paper outlines six options: one, maintain the rule; two, make it a rebuttable presumption; three, amend the rule and extend the limitation; four, abolish the rule with respect to certain offences, but keep it for others; five, abolish the rule and replace it with a limitation regarding the prosecution of homicide offences; and six, abolish the rule.
The Law Reform (Year and a Day Rule) Act passed by the U.K. in 1996 abolishes the year and a day rule, except in cases of acts or omissions that had taken place before the legislation took effect. The act provides that it is necessary to obtain the consent of the attorney general before instituting proceedings in respect of an offence when it is alleged that the injuries that caused death were sustained more than three years before death, or in cases where the accused has already been found guilty of an offence related to the death.
In June 1997 the Law Reform Commission of Hong Kong issued its report on the year and a day rule in homicide. The commission concluded that the rule is no longer necessary or appropriate, having regard to the present state of modern medical knowledge and the availability of life support machines.
The commission recommended that the rule ought to be abolished in relation to all offences involving death and suicide. It considered whether there ought to be safeguards to protect against unfair or late prosecutions but ultimately decided that it was unnecessary.
In summary, while there can be little doubt that change ought to occur, it may be premature to support this bill at this time. I think we should look to see if there is any need for safeguards to be put in place, as has been done in England, for example.
Bill C-215 provides an excellent legislative prototype for what it is we ought to achieve and will be extremely useful for the government in its examination of this important issue.
The Minister of Justice is committed to bringing reform to this area of the law and the work of the hon. member for Wild Rose and other members of this House who will be supporting Bill C-215 has been important in achieving this objective.