Child Sex Tourism Fact Sheet

Canada is committed to protecting children's human rights, including protecting children from sexual exploitation both within Canada and abroad. This commitment is reflected in
Canada's ratification of the United Nations Convention on the Rights of the Child. Article 34 of the Convention requires countries to undertake measures to prevent all forms of
sexual exploitation of children. Canada is actively supporting the drafting of an Optional Protocol to the Convention on the Sale of Children, Child Prostitution and Child Pornography. In addition, together with 118 other states at the 1996 World Congress Against the Sexual Exploitation of Children, Canada reaffirmed its commitment to work with the international community to prevent the commercial sexual exploitation of children.

These commitments are reflected in Bills C-27 and C-15A – Acts to amend the Criminal Code (child prostitution, child sex tourism, child pornography, child pornography and the Internet, criminal harassment and female genital mutilation) – which came into force on May 26, 1997, and July 23, 2002, respectively. With these criminal law reforms, Canada has joined more than 20 other states in enacting extraterritorial legislation that will allow for the Canadian prosecution of Canadians who sexually exploit children while abroad.

Criminal Code Amendments

s. 7(4.1) Sexual offences against children

The 1997 Criminal Code amendments make possible the Canadian prosecution of Canadian citizens or permanent residents who sexually abuse children, including engaging in child prostitution, while outside Canada. It is important to note that the amendments allow for the prosecution not only of offences related to child sex tourism, such as child prostitution, but also of child sexual exploitation offences, such as sexual exploitation, indecent acts, child pornography and incest.

The assumption of Canadian jurisdiction to prosecute the commission of a child sexual exploitation offence by a Canadian while outside Canada (also known as "extraterritorial jurisdiction") is unusual for Canada. While Canada asserts extraterritorial jurisdiction for certain offences such as war crimes, crimes against humanity and various terrorist-related crimes, Canada had not previously assumed jurisdiction for child sexual exploitation offences. Since 1997, if a Canadian citizen or permanent resident engages in any of the sexual exploitation offences enumerated in s.7(4.1),* whether for consideration or not, that offence is deemed to have been committed in Canada, thereby enabling a Canadian prosecution.

*The offences listed in s.7(4.1) are:

s.151 sexual interference;
s.152 invitation to sexual touching;
s.153 sexual exploitation;
s.155 incest;
s.159 anal intercourse;
s.160(2) compelling the commission of bestiality;
s.160(3) bestiality in the presence of a child under 14 / inciting child under 14 to commit;
s.163.1 making, distributing, selling or possessing child pornography. Clauses 5(2) and (3) of C-15A amended s.163.1 to ensure that these criminal prohibitions extend to analogous conduct in an Internet context;
s.170 parent or guardian procuring sexual activity;
s.171 householder permitting sexual activity;
s.173 indecent acts / exposure;
s.212(4) (NEW) (as amended by Bill C-51) prostitution of a person under 18.
s.7(4.2 and 4.3) Removal of procedural condition for prosecution
Sections 7(4.2) and (4.3) have been repealed by Bill C-15A. Previously, those sections made prosecutions under s.7(4.1) conditional upon the receipt of a request from the government of the country where the offence occurred and the consent of the Attorney General of Canada. A new clause – s.7(4.3) – amends s.7(4.2) and (4.3) by eliminating the stipulation and simply requiring the consent of the Attorney General in all cases as a precondition of a prosecution under s.7(4.1).
s.7(4.3) Consent of the Attorney General
The new subsection reads:
Proceedings with respect to an act or omission deemed to have been committed in Canada under subsection (4.1) may only be instituted with the consent of the Attorney General.

Bill C-27 amended s.212(4) and added s.212(5). However, since the enactment of Bill C-27, s.212(4) has been further amended and s.212(5) has been repealed, by Bill C-51, An Act to amend the Criminal Code, the Controlled Drugs and Substances Act and the Corrections and Conditional Release Act. Bill C-51 also strengthened Bill C-27 through amendments to section 183 of the Criminal Code.

s.212(4) Person under 18 (as amended by Bill C-51)
Section 212(4) makes it an offence for a person to obtain for consideration, or
communicate with anyone for the purpose of obtaining for consideration, the sexual services of someone under the age of 18. This is an indictable offence and carries a maximum sentence of five years' imprisonment. [This section is excluded from the requirements set out in s.7(4.2) and s.7(4.3).]

s.212(5) Presumption (repealed by Bill C-51)
Bill C-51 has repealed this section. (It had created a rebuttable presumption regarding an accused person's belief as to the age of the person whose sexual services were obtained or attempted to be obtained.)

Bill C-27 also created the offence of aggravated procuring. Section 212(2.1) sets out a mandatory minimum sentence of five years' imprisonment for persons who, for their own profit and while living on the avails of child prostitutes, use violence and assist in carrying out prostitution-related activities.

s.183 Electronic surveillance (as amended by Bill C-51)
Section 183 of the Criminal Code now includes several prostitution-related offences within the existing Criminal Code electronic surveillance powers. Electronic surveillance will be useful in investigating prostitution-related offences related to organized crime and cases where prostitution operations are being conducted by telephone.

Police are reminded that an accused can raise the defence of autrefois acquit, autrefois convict or pardon when the accused has already been tried and acquitted, convicted or pardoned in another country in relation to the same activities. The defences under s.7(6) will be factors in determining whether to lay charges.

Bill C-27 provides special protections for young complainants involved in prostitution who testify against their exploiters. These protections can include testifying from behind a screen or other less intimidating methods such as using videotape or closed-circuit television.

s.715.1 Videotaped evidence
In any proceeding related to an offence set out in s.7(4.1), videotaped evidence of a complainant or witness may be admissible where the complainant or witness was under the age of 18 at the time of the alleged offence. To be admissible, the videotape must be made within a reasonable time after the alleged offence and the complainant or witness must describe the acts complained of. The complainant or witness must, while testifying,
adopt or formally approve of the contents of the videotape.

s. 486(2.1) Testimony outside of the court room
A complainant or witness who is under the age of 18, or who may have difficulty communicating evidence because of a disability, may be allowed to testify outside of the court room or in some other fashion that would allow the person to testify without seeing the accused. The court must be of the opinion that testifying in such a fashion is necessary to obtain a full and candid account. This provision is intended to make the testimony of young or disabled complainants and witnesses easier by shielding them from their exploiters where the circumstances require special measures to ensure that disclosure.

s.486(3) Restrictions on publication
The court may make an order protecting the identity of a complainant or witness, or any information that could disclose their identity, where the accused is charged with any of the offences set out in this subsection.

s.163.1 Child pornography and the Internet
Section 163.1 prohibits the production, distribution and possession of child pornography. Clauses 5(2) and (3) of C-15A amended section 163.1 to ensure that these criminal prohibitions extend to analogous conduct in an Internet context.

Clause 5(2) added language to s.163.1(3) of the Code, which prohibits various acts of distribution of child pornography, to cover such things as “transmission” and “making available” in order to ensure that the offence extends to distribution of child pornography in electronic form on the Internet by such means as e-mail and posting items to Web sites.

s.172.1 Luring of children over the Internet
Clause 8 of C-15A added s.172.1 to the Code to specifically make it an offence to communicate via a computer system with a person under a certain age, or a person the accused believes to be under a certain age, for the purpose of facilitating the commission of certain sexual offences in relation to children or child abduction.

The investigation of offences that have occurred in a foreign country is more complicated and resource-intensive than investigating offences that are committed entirely within Canada. This is due to the fact that the victim(s), witnesses and most of the evidence are located within the foreign country where the offence was actually committed. Cooperation between law enforcement authorities in Canada and the foreign country is critical. This
assistance is often provided for in mutual assistance agreements between two countries. The National Central Bureau of Interpol for Canada also provides communications services to all Canadian law enforcement officials and can be contacted for assistance related to matters involving child sex tourism at (613) 990-9595, 24 hours a day. As well, the Criminal Code provides for the evidence of a witness outside Canada to be taken by rogatory commissions (i.e. evidence taken by a commission outside Canada). Additional reforms proposed by Bill C-40, An Act respecting extradition, to amend the Canada
Evidence Act, the Criminal Code, the Immigration Act and the Mutual Legal Assistance in Criminal Matters Act and to amend and repeal other Acts in consequence, will also allow for the use of video and audio-link technology to gather evidence and provide testimony from witnesses outside Canada.

Consular Services

Canadian government offices abroad
www.voyage.gc.ca/alt/canoffices.asp

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