Backgrounder

HIGHLIGHTS OF BILL C-15A:  AN ACT TO AMEND THE CRIMINAL CODE AND TO AMEND OTHER ACTS

PROTECTING CHILDREN FROM SEXUAL EXPLOITATION

The new laws fulfil commitments made in the January 29, 2001 Speech from the Throne, in which the Government of Canada declared it would protect children from criminals on the Internet and ensure that children are protected from those who prey on their vulnerability.  The legislation also meets commitments undertaken by Federal, Provincial, and Territorial Ministers Responsible for Justice at their September 2000 meeting to create a new offence of Internet luring.

The following new Criminal Code amendments provide additional and improved tools to protect children from sexual exploitation:

Internet Luring:  Research shows that predators are using the Internet, masking their identity and pretending to be children or young adults, to lure children into situations where they could be sexually abused.  The new luring offence makes it illegal to communicate with a child for the purpose of committing a sexual offence against that child and carries a maximum penalty of five years imprisonment.     

While these amendments are an important step to better protect children, it is not the only answer to this growing problem.  Parents, teachers and Internet service providers also have an important role to play in being vigilant and protecting children from dangers on the Internet.

Child Pornography on the Internet: These new offences each have a maximum penalty of 10 years imprisonment and make it a crime to:

• "transmit" child pornography from one person to another; 
• "make available" child pornography.  This law applies when someone posts child pornography material on a web site or offers information on where to find it, for example, by providing a web site address;
• "export" child pornography.  This provision fulfils Canada's international obligations under the Optional Protocol to the United Nations Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography; and
• "possess child pornography for the purposes of" transmitting, making available or exporting.

Another new provision prohibits anyone from accessing child pornography on the Internet.  This offence is punishable by up to five years imprisonment. The accessing offence does not criminalize someone who inadvertently views child pornography on the Internet since the amendment requires the person to have knowledge that there is child pornography on the site and a specific intention to access this material.

Deleting Child Pornography from a Web Site:  Under the new law, courts can order a custodian of a computer system, such as an Internet Service Provider (ISP), to remove from its server any child pornography material, or a link to such material.  The person who posted the material would be given the opportunity to be heard by the court.  If the person cannot be located or identified or resides outside Canada, the court may proceed ex parte.  If, after the hearing, the court does not find the material to be child pornography, the material could be re-posted. If, however, the court found the material to be child pornography, it could order the deletion of the material.

Forfeiture:  The new provisions allow a judge to order the forfeiture of any materials or equipment used in the commission of a child pornography offence. This sanction could be imposed on any person convicted of a child pornography offence who is the owner of the materials or equipment, and would be in addition to any other punishment. A procedure is provided to allow innocent third parties to have their property interests recognized.

Strengthening Sentencing Provisions:  The Government of Canada is also building on existing preventative measures by creating new provisions to further limit opportunity for known or suspected child abusers to re-offend.

In 1993, the Criminal Code was amended to create a new prohibition order, lasting up to a lifetime, to ban convicted child sex offenders from frequenting day-care centres, school grounds, playgrounds, public parks or bathing areas where children are likely to be found.  The order also prohibits convicted child sex offenders from seeking or maintaining paid or volunteer positions of trust or authority over children. Another provision was created to allow a person to obtain a peace bond (a protective order lasting up to one year) if he or she fears that another person will commit a sexual offence against a child.

Today's amendments address the reality of new technologies by adding the use of the Internet to communicate with children for sexual purposes to the list of possible banned activities.  These amendments also include crimes related to child pornography and Internet luring as offences for which an offender would be subject to either a prohibition order that could last up to a lifetime or a one-year peace bond.  The changes also mean that child pornography and luring offences are added as triggering offences for bringing an application for a designation of "long-term offender."  An individual who is designated as a long-term offender can be made subject to community supervision lasting up to 10 years.

Child Sex Tourism:  In May 1997, Bill C-27 amended the Criminal Code to allow for the prosecution in Canada of Canadian citizens or permanent residents who sexually abuse children while abroad.  However, with respect to the pre-conditions for prosecution in Canada, the law distinguished between commercial sexual exploitation (e.g. child prostitution) and non-commercial sexual exploitation.  In instances where the allegations did not involve child prostitution, prosecutions could be initiated in Canada only at the request of the country where the crime reportedly happened.

The amendment removes this procedural requirement in non-commercial sexual exploitation cases. This means it is possible to prosecute in Canada, Canadian citizens and permanent residents who have committed sexual offences against children in a foreign country, without first obtaining a formal request from that country to prosecute. 

OTHER REFORMS TO THE CRIMINAL CODE

The reforms also focus on several other offences under the Criminal Code:

Criminal Harassment:  The proposed amendment ensures that the maximum sentence adequately reflects the serious nature and impact of this crime by doubling the maximum sentence for criminal harassment from five to 10 years imprisonment.  The Government of Canada, with provincial and territorial partners, has released A Handbook for Police and Crown Prosecutors on Criminal Harassment to provide practical guidelines to police, prosecutors and other criminal justice personnel who deal with criminal harassment cases. The amendment and handbook strengthen the criminal justice system's response to this serious offence. The handbook is available on-line at the Department of Justice web site: http://canada.justice.gc.ca.

Home Invasions:  The term "home invasion" describes a robbery or break and enter of a private residence when the perpetrators force their way in while the occupants are at home and use or threaten to use violence against the occupants.  The Criminal Code offences most commonly used to address home invasions are robbery and break and enter of a dwelling house, both of which carry a maximum penalty of life imprisonment.  

The new law specifically identifies home invasion as an aggravating circumstance that the judge must take into consideration at the time of sentencing.  It makes it clear that the Government of Canada views home invasion as a serious crime that should be met with significant penalties.

Disarming a Police Officer:  The Government of Canada recognizes the grave risk that police officers face in the line of duty. An attempt by a suspect to take an officer's weapon suddenly and dramatically raises the level of risk in these situations. The new law responds to concerns expressed by the Canadian Police Association and others to make disarming or attempting to disarm a police officer a distinct offence in the Criminal Code.  The maximum sentence for disarming or attempting to disarm a police officer is five years, by indictment.

Conviction Review (section 690):  Previously, section 690 of the Criminal Code allowed people who believed they were wrongly convicted of an indictable offence, or sentenced to preventive detention under the dangerous and long-term offender part of the Code, to apply for a review of their conviction by the Minister of Justice.  The new law has created another part of the Criminal Code containing new sections (696.1-696.6) that:

• clearly state when a person is eligible for a review;
• specify the criteria under which a remedy may be granted;
• provide a power to make regulations to explain the review process and how one applies;
• expand the Minister's powers to include the review of summary convictions; and
• provide those investigating cases on behalf of the Minister with powers to compel witnesses to provide information and documents.

To make the conviction review process more open and accountable, the Minister of Justice will also provide an annual report to Parliament and a web site will be created to give applicants information on the process.

A senior person from outside of the Department of Justice will be appointed to advise the Minister directly and oversee the review of applications.  This will improve timeliness and openness of the review process, and provide greater independence from the Department.

Criminal Procedure Reform: Criminal Code amendments to modernize the criminal justice system and manage resources more efficiently and effectively were developed in partnership with the provinces and territories and in consultation with the legal community generally.  These amendments:

• help focus preliminary inquiries and limit the potentially negative impact on victims and witnesses while retaining the right of the accused to a preliminary inquiry.  A preliminary inquiry would only be held if one is requested by the accused or by the prosecutor;
• facilitate the use of electronic forms, statements and other documents. These amendments help modernize the justice system so that it can benefit from technological advances that help address costs, delay and public needs; and
• allow two jury alternates to be selected and available up to the start of trial.  This reduces the risk of delay or mistrials due to an insufficient number of jury members to start the trial.

Other amendments to the Criminal Code:  These changes to the Criminal Code modernize the law and streamline the criminal justice process by:

• removing the negative and unnecessary reference to "illegitimate child" in the Criminal Code; and
• ensuring that persons with disabilities who are in a situation of dependency with respect to offenders who have sexually exploited them have access to evidentiary protections, such as the giving of testimony outside the courtroom or behind a screen.

Amendments  to the National Defence Act:  The National Defence Act has been amended to allow fingerprinting of persons charged with or convicted by court martial of designated service offences and for this information to be retained in the Canadian Police Information Centre (CPIC) system managed by the RCMP.  The amendment more closely aligns military justice with current civilian criminal law enforcement processes in a way that enhances public safety and confidence in the justice system. The amendment will enhance public safety and confidence in the military justice system while at the same time ensuring the system reflects current civilian criminal law enforcement processes.

Amendments to the National Capital Act:  To make it consistent with other federal legislation and regulations, the maximum fine available for breaches of regulations made under the National Capital Act has increased from $500 to $2,000.  The types of offences that this amendment targets are serious offences such as poaching of large game and illegal dumping of waste.

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Department of Justice
June 10, 2002