Key Highlights of Proposed Amendments to Protect Children and Other Vulnerable Persons

Existing laws protecting children

The amendments proposed today are part of the Government of Canada's ongoing commitment to protect children and other vulnerable persons. They build on recent criminal law reforms that provide increased protection against sexual exploitation, including through child pornography and the Internet.

In Canada it is already an offence to:

• make, print, publish or possess for the purpose of publication child pornography;
• transmit, make available, distribute, sell, import, export or possess child pornography for these purposes;
• possess child pornography;
• access child pornography; and
• use the Internet to communicate with a young person for the purpose of committing a sexual offence against that child.

Proposed Amendments

The legislation introduced in the House of Commons today proposes amendments to the Criminal Code and the Canada Evidence Act to provide further protection for children against abuse and sexual exploitation. Proposed amendments include the following:

Child Pornography Provisions:

• Broader Definition of child pornography: The legislation would broaden the definition of child pornography 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 done for a sexual purpose.
• Prohibition on Advertising: Proposed amendments would create a new prohibition against advertising child pornography.
• Increased Maximum Sentencing: The maximum penalty for child pornography would be increased from 6 to 18 months on summary conviction and the commission of a child pornography offence with intent to profit would become an aggravating factor for sentencing purposes.
• Legitimate Purpose Defence: The legislation would narrow and clarify the test for the child pornography defence. The new defence would only be available if (1) the act in question has a legitimate purpose related to the administration of justice, or to science, medicine, education or art, and if (2) the act does not pose an undue risk of harm to children. This single legitimate purpose 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: The legislation would create a new category of sexual exploitation that better protects young persons between 14 and 18 years of age. Under the proposed reform, 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. This new category focuses the court's determination on the conduct or behaviour of the accused, rather than on the consent of the young person to the sexual activity.

Increased Maximum Sentencing: In addition to increasing the maximum sentences for child pornography (noted above), the proposed amendments would increase the maximum sentences for other child-related offences, including sexual offences against children, failure to provide the necessities of life, and abandonment of a child. In cases involving the abuse of a child, courts would be directed to give primary consideration to denunciation and deterrence of such conduct when imposing a sentence. As well, the abuse of a child in the commission of any Criminal Code offence would have to be considered as an aggravating factor by the court and could result in a tougher sentence.

Facilitating Testimony

• Child Victims and Witnesses: The proposed amendments would facilitate testimony by child victims and witnesses by better enabling the use of testimonial aids (including screens, closed-circuit television and support persons) for all child victims and witnesses under the age of 18 years. The reforms would also allow children under 14 to give their evidence if they are able to understand and respond to questions. A competency hearing, which is currently mandatory, would no longer be required.
• Other Vulnerable Victims and Witnesses: Similar reforms are proposed to facilitate the testimony by other vulnerable victims and witnesses including victims of spousal abuse, criminal harassment and sexual assault. Victims of domestic violence would also be assisted by the proposal to facilitate the use of the criminal law to enforce civil restraining orders or protective orders granted in domestic violence cases.

New Voyeurism Offences: The voyeurism scheme will create two new offences in the Criminal Code. The main voyeurism offence will prohibit secret observation (by any means) or recording, in circumstances where there is a reasonable expectation of privacy, in these 3 cases:

• 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 second voyeurism offence involves intentional distribution of voyeuristic material and requires that the accused knew the material was created during one of the circumstances described above.