Backgrounder

Highlights of Bill C-2 Amendments to Protect Children and Other Vulnerable Persons

Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons ) and the Canada Evidence Act realizes the commitment made by the Government of Canada in the October 2004 Speech from the Throne Commitment to “crackdown on child pornography.” It also supports the Government’s on-going commitment to better protect children and other vulnerable persons against exploitation and abuse.

Bill C-2 makes the following amendments to the Criminal Code and the Canada Evidence Act:

Child Pornography Provisions:

• Broader Definition of Child Pornography: The definition of child pornography is broadened to include audio formats as well as written material that describes prohibited sexual activity with children where that description is the predominant characteristic of the work and it is provided for a sexual purpose.
• Prohibition on Advertising: It creates a new prohibition against advertising child pornography punishable by a maximum penalty of 10 years imprisonment.
• Increased Penalties: The maximum penalty for all child pornography offences is increased from 6 to 18 months on summary conviction, and the commission of a child pornography offence with intent to profit must be considered as an aggravating factor for sentencing purposes. As well, all child pornography offences are now subject to a mandatory minimum sentence of imprisonment and, as such, are no longer eligible for a conditional or “house arrest” sentence.
• Legitimate Purpose Defence: A defence is only available where an act in relation to child pornography satisfies a two-step harms-based test: (1) the act in question has a legitimate purpose related to the administration of justice, or to science, medicine, education or art; and, (2) the act does not pose an undue risk of harm to children. This defence incorporates the harm-based standard used by the Supreme Court of Canada in upholding the existing child pornography provisions in 2001.

New Sexual Exploitation Offences: A new offence of sexual exploitation is created that will better protect young persons between 14 and 18 years of age against those who would prey on their vulnerability. Under this new prohibition, courts may infer that a relationship is exploitative of the young person based on its nature and circumstances, including the age of the young person, any difference of age, the evolution of the relationship, and the degree of control or influence exercised over the young person. These factors reflect the reality that there are different indicators of exploitation of a young person. While the chronological age of the young person is one such indicator there are others including a difference in age between the young person and the other person, as well as how the relationship developed (e.g., secretly over the Internet). This new offence focuses on the wrongful conduct of the exploiter rather than on the consent of the young person to that conduct.

Increased Maximum Penalties: In addition to increasing the maximum sentences for child pornography (noted above), maximum sentences have been increased for other child-related offences including sexual offences against children, failure to provide the necessities of life, and abandonment of a child. As well, child-specific sexual offences, including procuring-related offences involving children, are now subject to a mandatory minimum sentence of imprisonment. Furthermore, all cases involving the abuse of a child, sentencing courts must give primary consideration to denunciation and deterrence of such conduct when imposing a sentence and the abuse of a child shall be considered as an aggravating factor by the court and could result in a tougher sentence.

Facilitating Testimony

• Child Victims and Witnesses: Testimony by child victims and witnesses will be facilitated by providing a clearer and consistent test to enable the use of testimonial aids (including screens, closed-circuit television, support persons and the appointment of counsel for a self-represented accused who seeks to personally cross-examine the victim or witness). Under this new test, testimonial aids will be available for all child victims and witnesses under the age of 18 years, on application, unless it would interfere with the proper administration of justice.
  
• Victims of Criminal Harassment: In criminal harassment cases where the accused is self-represented, the Crown can apply for an order appointing counsel to conduct the cross-examination of the victim. This reform reflects the serious nature of criminal harassment including its impact on the safety and well-being of victims by preventing the victim from having to endure further harassment by a self-represented accused. In these cases, counsel must be appointed unless doing so would interfere with the proper administration of justice.
  
• Other Vulnerable Victims and Witnesses: Testimonial aids will also be available to facilitate the testimony by other vulnerable victims and witnesses such as victims of spousal abuse and sexual assault. For these victims and witnesses, the aids will be available, on application, where it can be demonstrated that because of the surrounding circumstances (including the nature of the offence and any relationship between the victim/witness and the accused), they would be unable to provide a full and candid account without the testimonial aid. In addition, testimonial aids (screens, closed-circuit television and support persons) will be available to witnesses with a disability on application unless it would interfere with the proper administration of justice.

As well, the offence of disobeying a court order is now a dual-procedure offence ,which will help victims of domestic violence to use the criminal law to enforce civil restraining orders or protective orders.

• Canada Evidence Act : Children under 14 will now be able to give their evidence if they are able to understand and respond to questions and promise to tell the truth. This new test eliminates the previous mandatory competency hearing and the distinction between sworn and unsworn testimony for children.

New Voyeurism Offences: New voyeurism offences have been created. The main voyeurism offence prohibits the secret observation (by any means) or recording of any person, in circumstances where there is a reasonable expectation of privacy, in one of three situations:

• when the person observed or recorded is in a place where a person is expected to be in a state of nudity, or engaged in sexual activity (such as bedroom, bathroom or changing room); or
• when the person is in a state of nudity or engaged in sexual activity and the purpose is to observe or record the person in such a state or activity; or
• when the observation or recording is done for a sexual purpose.

The intentional distribution of voyeuristic material is also prohibited.

A defence of public good is provided for the voyeurism offences.

Existing Federal Measures Protecting Children
These reforms build upon existing criminal law prohibitions that protect children against sexual exploitation, including through child pornography and the Internet. Existing child pornography offences prohibit:

• making, printing, publishing or possessing for the purpose of publication, child pornography;
• transmitting, making available, distributing, selling, importing, exporting or possessing child pornography for these purposes;
• possessing child pornography;
• accessing child pornography; and
• using the Internet to communicate with a young person for the purpose of committing a sexual offence against that child.

These reforms also build upon other federal measures combating child sexual exploitation including the National Strategy to Protect Children from Sexual Exploitation on the Internet. The National Strategy was launched in May 2004 by Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness Anne McLellan. With funding of $42 million over five years, the Strategy will help to: expand the RCMP’s national child exploitation coordination centre and provide law enforcement with better tools and resources to investigate Internet-based child sexual exploitation; enhance public education and awareness about child sexual exploitation on the Internet through Industry Canada’s SchoolNet program; and support the national launch of “Cybertip.ca” as a 24/7 public national tip line.

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Department of Justice
July 2005