BACKGROUNDER

Highlights of the Omnibus Bill

The measures introduced today respond to the seriousness of crimes against children and other vulnerable members of society and provide additional safeguards to the law enforcement community. The three main components of the bill are:

• protecting children from sexual exploitation;
• reintroduction of Bills C-17 and C-36 from the last Parliament; and
• administrative amendments to the Firearms Act.

PROTECTING CHILDREN FROM SEXUAL EXPLOITATION

The proposed legislation fulfils a commitment made in the January 29, 2001 Speech from the Throne, in which the Government of Canada declared it will protect children from criminals on the Internet and ensure that children are protected from those who prey on their vulnerability. The proposed legislation also meets a commitment 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 provisions will 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 a situation where they could be sexually abused. The new luring offence will, for example, make it illegal to communicate with a child for the purpose of committing a sexual offence against that child. It will carry a maximum penalty of five years imprisonment.

While the proposed legislation is 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 in being vigilant so that children remain protected from dangers on the Internet.

Child Pornography on the Internet. This bill will create other new offences, each with a maximum penalty of 10 years imprisonment. Under the new legislation, it will be a crime to:

• "transmit" child pornography. This will make distribution of child pornography from one person to another illegal;
• "make available" child pornography. This 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 will prohibit anyone from intentionally accessing child pornography on the Internet. This offence will be punishable by up to five years imprisonment. Accessing offence does not criminalize someone who inadvertently views child pornography on the Internet. The proposed amendment will require 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 proposed legislation, courts can order a custodian of a computer system, for example an Internet Service Provider (ISP), to remove from its server any material that could reasonably be found to be child pornography, 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 will 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 was 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 is also building on existing preventative measures by creating new measures 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 sexual 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 sexual offenders from seeking or maintaining paid or volunteer positions of trust or authority over children. Additionally, 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 amendment will also include crimes related to child pornography and Internet luring as offences for which an offender could be subject to either a prohibition order that could last up to a lifetime or a one-year peace bond. Proposed changes will also mean that child pornography and luring offences will be added as triggering offences for bringing an application for a designation of "long-term offender". An individual who is designated as 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.

Today's proposed amendment will remove this procedural requirement in non-commercial sexual exploitation cases. This means it will be possible to prosecute in Canada Canadian citizens and permanent residents who commit sexual offences against children in a foreign country without first obtaining a formal request from that country.

REINTRODUCED AMENDMENTS (Bills C-17 and C-36)

Amendments that were originally introduced in Bill C-17 on December 1, 1999 and C-36 on June 8, 2000, were reintroduced as part of this omnibus package. The proposed changes are aimed at better protecting Canadians and strengthening the justice system.

Criminal Harassment. The criminal harassment amendment supports a commitment made by Minister McLellan to the provinces and territories to ensure that the maximum sentence adequately reflects the serious nature and impact of this crime.

The proposed amendment will double the maximum sentence for criminal harassment from five to ten 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 will 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 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 proposed amendment will specifically identify home invasion as an aggravating circumstance that the judge must take into consideration at the time of sentencing. The proposed amendment will make 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 proposed amendment 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 will be five years.

Cruelty to Animals. Consultations with Canadians and interested groups in 1998 have clearly demonstrated that Canadians expect the criminal justice system to treat abuse and neglect of animals seriously. Studies also confirm that a significant percentage of individuals who are violent towards animals later perpetrate violence against people. The correlation is noted in particular, in the case of aggressors in domestic violence situations and in serial murders.

The Criminal Code complements provincial legislation allowing animal welfare organizations to take action on behalf of animals that are suffering. These amendments do not target or modify normal and acceptable animal care practices (e.g. animal husbandry, responsible use of animals in research, or other practices governed by more specific legislation). These changes confirm the existing standard of animal cruelty, and improve the law in the following ways:

• consolidate and re-organize provisions related to cruelty to animals and no longer treat these offences as property crimes;
• make it illegal to brutally or viciously kill animals;
• raise the maximum penalty for intentional cruelty to five years' imprisonment with no set limit for fines;
• give judges the authority to prohibit anyone convicted of animal cruelty from owning an animal for life, or for any lesser period of time considered appropriate; and
• give judges the authority to order anyone found guilty of animal cruelty to pay restitution to the animal welfare organization that cared for the animal.

Since the original introduction of these amendments, several important improvements have been made to the text to clarify the intent of the law in response to concerns expressed by individuals involved in agriculture, hunting and scientific research.

Conviction Review (section 690). Currently, section 690 of the Criminal Code allows people who believe 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 bill will create a new part of the Criminal Code containing new sections (696.1-696.6) that will:

• clearly state when a person is eligible for a review;
• specify the criteria under which a remedy may be granted;
• explain in regulations the process of review and how one applies for a review;
• 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 be produced.

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.

These proposed reforms follow extensive consultation with the provinces, territories, legal community and the general public, and included the release of a consultation paper in October 1998.

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. Proposed amendments to the Criminal Code 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 will, among other things:

• 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 will help to 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 will reduce the risk of delay or mistrials due to an insufficient number of jury members to start the trial.

Other amendments to the Criminal Code. Other proposed changes to the Criminal Code would modernize the law and streamline the criminal justice process. Changes will:

• remove the negative and unnecessary reference to "illegitimate child" in the Criminal Code; and
• ensure that a person with a disability who is the victim of sexual exploitation receives the evidentiary protections afforded to other victims of sexual offences. These provisions relate to: lack of requirement for corroboration of a complainant's testimony; protection from attack based on evidence of recent complaint; inappropriate use of evidence about the complainant's sexual past; inadmissibility of evidence of sexual reputation for certain purposes; and, the giving of testimony outside the courtroom or behind a screen by a complainant or witness who is under the age of 18 years.

Amendments to the National Defence Act. The National Defence Act will be 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. This proposed amendment will more closely align military justice with current civilian criminal law enforcement processes in a way that will enhance public safety and confidence in the justice system.

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 will increase from $500 to $2000. The types of offences that this amendment would target are serious offences such as poaching of large game and illegal dumping of waste.

ADMINISTRATIVE AMENDMENTS TO THE FIREARMS ACT

Amendments to the Firearms Act respond to concerns by gun owners and other Canadians about the administration of the Canadian Firearms Program (CFP).

The changes are administrative in nature. There will be no changes to the basic policy and goals of the CFP which include public safety, universal licensing of owners and registration of firearms, and control of import and export of firearms. The administrative amendments will not affect the legal responsibilities of gun owners under the Firearms Act. The legislation will continue to emphasize safe and informed use of firearms and safe storage. The changes will also improve the day-to-day administration of the program by consolidating statutory authority of all operations under a Canadian Firearms Commissioner who will report to the Minister of Justice.

The changes will make it easier for Canadians to comply with the requirements of the Firearms Act and increase efficiency by:

• improving public access to program services and information. The registration process will be redesigned to make it more user-friendly, and the information required will be reduced to only that which is necessary to identify and classify firearms;
• providing police forces with faster and wider access to data bases. Restructuring the program conforms to police concerns that the program is currently too complex to administer and enforce. Technological enhancement will also meet the needs of police for more timely information from a greater variety of sources.
• shifting the focus from the responsible majority of gun owners to the minority who pose a risk. Restructuring will centralize the accountability for the program so that administration can focus on effectively managing risk.
• introducing better technology to support security and confidentiality. Improved information technology is expected to significantly reduce annual operating costs.

Additionally, proposed changes to the import-export provisions of the Firearms Act will allow Canada to meet its international obligations under the United Nations Firearms Protocol, finalized in March 2001, and the Organization of American States Firearms Convention which Canada signed in 1997. These agreements will enable Canada to help curb the illegal international trafficking in firearms.

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Department of Justice
March, 2001