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An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act (S.C. 2005, c. 32)

Assented to 2005-07-20

An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act

S.C. 2005, c. 32

Assented to 2005-07-20

An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act

SUMMARY

This enactment amends the Criminal Code to

  • (a) amend the child pornography provisions with respect to the type of written and audio material that constitutes child pornography, and with respect to the child pornography offences, defences and penalties;

  • (b) add a new category to the offence of sexual exploitation of young persons and make additional amendments to further protect children from sexual exploitation;

  • (c) increase the maximum penalty for child sexual offences, for failing to provide the necessaries of life and for abandoning a child;

  • (d) make child abuse an aggravating factor for the purpose of sentencing and direct the courts to give primary consideration to the objectives of denunciation and deterrence in sentencing for offences involving abuse of a child;

  • (e) amend and clarify the applicable test and criteria that need to be met for the use of testimonial aids, for excluding the public, for imposing a publication ban, for using video-recorded evidence or for appointing counsel for self-represented accused to conduct a cross-examination of certain witnesses; and

  • (f) create an offence of voyeurism and the distribution of voyeuristic material.

This enactment also amends the Canada Evidence Act to abolish the requirement for a competency hearing for children under 14 years of age.

Preamble

WHEREAS the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect;

WHEREAS Canada, by ratifying the United Nations Convention on the Rights of the Child, has undertaken to protect children from all forms of sexual exploitation and sexual abuse, and has obligations as a signatory to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography;

WHEREAS the Parliament of Canada wishes to encourage the participation of witnesses in the criminal justice system through the use of protective measures that seek to facilitate the participation of children and other vulnerable witnesses while ensuring that the rights of accused persons are respected;

AND WHEREAS the continuing advancements in the development of new technologies, while having social and economic benefits, facilitate sexual exploitation and breaches of privacy;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. C-46CRIMINAL CODE

 Subsection 127(1) of the Criminal Code is replaced by the following:

Marginal note:Disobeying order of court
  • 127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

    • (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or

    • (b) an offence punishable on summary conviction.

Marginal note:R.S., c. 19 (3rd Supp.), s. 1
  •  (1) Paragraph 150.1(2)(c) of the Act is replaced by the following:

    • (c) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

  • Marginal note:R.S., c. 19 (3rd Supp.), s. 1

    (2) Subsection 150.1(3) of the Act is replaced by the following:

    • Marginal note:Exemption for accused aged twelve or thirteen

      (3) No person aged twelve or thirteen years shall be tried for an offence under section 151 or 152 or subsection 173(2) unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.

Marginal note:R.S., c. 19 (3rd Supp.), s. 1

 Sections 151 and 152 of the Act are replaced by the following:

Marginal note:Sexual interference

151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years

  • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days; or

  • (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.

Marginal note:Invitation to sexual touching

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of fourteen years,

  • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days; or

  • (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.

Marginal note:R.S., c. 19 (3rd Supp.), s. 1
  •  (1) Subsection 153(1) of the Act is replaced by the following:

    Marginal note:Sexual exploitation
    • 153. (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who

      • (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or

      • (b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.

  • (2) Section 153 of the Act is amended by adding the following after subsection (1):

    • Marginal note:Punishment

      (1.1) Every person who commits an offence under subsection (1)

      • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days; or

      • (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.

    • Marginal note:Inference of sexual exploitation

      (1.2) A judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including

      • (a) the age of the young person;

      • (b) the age difference between the person and the young person;

      • (c) the evolution of the relationship; and

      • (d) the degree of control or influence by the person over the young person.

Marginal note:2002, c. 13, s. 4(1)
  •  (1) The portion of subsection 161(1) of the Act before paragraph (a) is replaced by the following:

    Marginal note:Order of prohibition
    • 161. (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of fourteen years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

  • (2) Section 161 of the Act is amended by adding the following after subsection (1):

    • Marginal note:Offences

      (1.1) The offences for the purpose of subsection (1) are

      • (a) an offence under section 151, 152, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171 or 172.1, subsection 173(2) or section 271, 272, 273 or 281;

      • (b) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983; or

      • (c) an offence under subsection 146(1) (sexual intercourse with a female under 14) or section 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988.

 The Act is amended by adding the following after section 161:

Marginal note:Voyeurism
  • 162. (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

    • (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

    • (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

    • (c) the observation or recording is done for a sexual purpose.

  • Definition of “visual recording”

    (2) In this section, “visual recording” includes a photographic, film or video recording made by any means.

  • Marginal note:Exemption

    (3) Paragraphs (1)(a) and (b) do not apply to a peace officer who, under the authority of a warrant issued under section 487.01, is carrying out any activity referred to in those paragraphs.

  • Marginal note:Printing, publication, etc., of voyeuristic recordings

    (4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.

  • Marginal note:Punishment

    (5) Every one who commits an offence under subsection (1) or (4)

    • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

    • (b) is guilty of an offence punishable on summary conviction.

  • Marginal note:Defence

    (6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good.

  • Marginal note:Question of law, motives

    (7) For the purposes of subsection (6),

    • (a) it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and

    • (b) the motives of an accused are irrelevant.

Marginal note:1993, c. 46, s. 2
  •  (1) Subsection 163.1(1) of the Act is amended by striking out the word “or” at the end of paragraph (a) and by replacing paragraph (b) with the following:

    • (b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;

    • (c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or

    • (d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

  • Marginal note:1993, c. 46, s. 2

    (2) Paragraphs 163.1(2)(a) and (b) of the Act are replaced by the following:

    • (a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or

    • (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of ninety days.

  • Marginal note:1993, c. 46, s. 2; 2002, c. 13, s. 5(2)

    (3) Subsection 163.1(3) of the Act is replaced by the following:

    • Marginal note:Distribution, etc. of child pornography

      (3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of

      • (a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or

      • (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of ninety days.

  • Marginal note:1993, c. 46, s. 2

    (4) Paragraphs 163.1(4)(a) and (b) of the Act are replaced by the following:

    • (a) an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of forty-five days; or

    • (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.

  • Marginal note:2002, c. 13, s. 5(3)

    (5) Paragraphs 163.1(4.1)(a) and (b) of the Act are replaced by the following:

    • (a) an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of forty-five days; or

    • (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.

  • (6) Section 163.1 of the Act is amended by adding the following after subsection (4.2):

    • Marginal note:Aggravating factor

      (4.3) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that the person committed the offence with intent to make a profit.

  • Marginal note:2002, c. 13, s. 5(4)

    (7) Subsections 163.1(6) and (7) of the Act are replaced by the following:

    • Marginal note:Defence

      (6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence

      • (a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and

      • (b) does not pose an undue risk of harm to persons under the age of eighteen years.

    • Marginal note:Question of law

      (7) For greater certainty, for the purposes of this section, it is a question of law whether any written material, visual representation or audio recording advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

 
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