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49-50-51 ELIZABETH II |
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CHAPTER 13 |
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An Act to amend the Criminal Code and to
amend other Acts
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[Assented to 4th June, 2002]
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SHORT TITLE |
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| Short title
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1. This Act may be cited as the Criminal
Law Amendment Act, 2001.
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| R.S., c. C-46
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CRIMINAL CODE |
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2. The Criminal Code is amended by
adding the following before section 4:
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| Effect of
judicial acts
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3.1 Unless otherwise provided or ordered,
anything done by a court, justice or judge is
effective from the moment it is done, whether
or not it is reduced to writing.
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| 1999, c. 35,
s. 11
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3. (1) Paragraph 7(2.31)(b) of the English
version of the Act is replaced by the
following:
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| 1997, c. 16,
s. 1
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(2) Subsections 7(4.2) and (4.3) of the Act
are replaced by the following:
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| Consent of
Attorney
General
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(4.3) 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.
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| 1999, c. 31,
s. 67
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4. (1) The portion of subsection 161(1) of
the Act before paragraph (a) is replaced by
the following:
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| Order of
prohibition
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161. (1) If an offender is convicted, or is
discharged on the conditions prescribed in a
probation order under section 730, of an
offence under section 151, 152, 155 or 159,
subsection 160(2) or (3) or section 163.1, 170,
171, 172.1, 271, 272, 273 or 281, in respect of
a person who is under the age of fourteen
years, the court that sentences the offender or
directs that the accused be discharged, as the
case may be, in addition to any other
punishment that may be imposed for that
offence or any other condition prescribed in
the order of discharge, shall consider making
and may make, subject to the conditions or
exemptions that the court directs, an order
prohibiting the offender from
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(2) Subsection 161(1) of the Act is
amended by striking out the word ``or'' at
the end of paragraph (a), by adding the
word ``or'' at the end of paragraph (b) and
by adding the following after paragraph
(b):
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| 1993, c. 46,
s. 2
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5. (1) The portion of paragraph
163.1(1)(a) of the French version of the Act
before subparagraph (i) is replaced by the
following:
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| 1993, c. 46,
s. 2
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(2) The portion of subsection 163.1(3) of
the Act before paragraph (a) is replaced by
the following:
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| Distribution,
etc. of child
pornography
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(3) Every person who transmits, makes
available, distributes, sells, imports, exports
or possesses for the purpose of transmission,
making available, distribution, sale or
exportation any child pornography is guilty of
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(3) Section 163.1 of the Act is amended by
adding the following after subsection (4):
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| Accessing
child
pornography
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(4.1) Every person who accesses any child
pornography is guilty of
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| Interpreta- tion
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(4.2) For the purposes of subsection (4.1), a
person accesses child pornography who
knowingly causes child pornography to be
viewed by, or transmitted to, himself or
herself.
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| 1993, c. 46,
s. 2
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(4) Subsections 163.1(6) and (7) of the Act
are replaced by the following:
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| Defences
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(6) Where the accused is charged with an
offence under subsection (2), (3), (4) or (4.1),
the court shall find the accused not guilty if the
representation or written material that is
alleged to constitute child pornography has
artistic merit or an educational, scientific or
medical purpose.
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| Other
provisions to
apply
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(7) Subsections 163(3) to (5) apply, with
such modifications as the circumstances
require, with respect to an offence under
subsection (2), (3), (4) or (4.1).
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| 1993, s. 46, s.
3(2)
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6. Subsection 164(4) of the Act is replaced
by the following:
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| Order of
forfeiture
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(4) If the court is satisfied, on a balance of
probabilities, that the publication,
representation or written material referred to
in subsection (1) is obscene, a crime comic or
child pornography, it may make an order
declaring the matter forfeited to Her Majesty
in right of the province in which the
proceedings take place, for disposal as the
Attorney General may direct.
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7. The Act is amended by adding the
following after section 164:
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| Warrant of
seizure
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164.1 (1) If a judge is satisfied by
information on oath that there are reasonable
grounds for believing that there is material,
namely child pornography within the meaning
of section 163.1 or data within the meaning of
subsection 342.1(2) that makes child
pornography available, that is stored on and
made available through a computer system
within the meaning of subsection 342.1(2)
that is within the jurisdiction of the court, the
judge may order the custodian of the computer
system to
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| Notice to
person who
posted the
material
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(2) Within a reasonable time after receiving
the information referred to in paragraph
(1)(c), the judge shall cause notice to be given
to the person who posted the material, giving
that person the opportunity to appear and be
represented before the court, and show cause
why the material should not be deleted. If the
person cannot be identified or located or does
not reside in Canada, the judge may order the
custodian of the computer system to post the
text of the notice at the location where the
material was previously stored and made
available, until the time set for the
appearance.
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| Person who
posted the
material may
appear
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(3) The person who posted the material may
appear and be represented in the proceedings
in order to oppose the making of an order
under subsection (5).
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| Non-appearan
ce
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(4) If the person who posted the material
does not appear for the proceedings, the court
may proceed ex parte to hear and determine
the proceedings in the absence of the person as
fully and effectually as if the person had
appeared.
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| Order
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(5) If the court is satisfied, on a balance of
probabilities, that the material is child
pornography within the meaning of section
163.1 or data within the meaning of subsection
342.1(2) that makes child pornography
available, it may order the custodian of the
computer system to delete the material.
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| Destruction of
copy
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(6) When the court makes the order for the
deletion of the material, it may order the
destruction of the electronic copy in the
court's possession.
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| Return of
material
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(7) If the court is not satisfied that the
material is child pornography within the
meaning of section 163.1 or data within the
meaning of subsection 342.1(2) that makes
child pornography available, the court shall
order that the electronic copy be returned to
the custodian and terminate the order under
paragraph (1)(b).
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| Other
provisions to
apply
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(8) Subsections 164(6) to (8) apply, with
any modifications that the circumstances
require, to this section.
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| When order
takes effect
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(9) No order made under subsections (5) to
(7) takes effect until the time for final appeal
has expired.
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| Forfeiture of
things used
for child
pornography
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164.2 (1) On application of the Attorney
General, a court that convicts a person of an
offence under section 163.1, in addition to any
other punishment that it may impose, may
order that any thing - other than real
property - be forfeited to Her Majesty and
disposed of as the Attorney General directs if
it is satisfied, on a balance of probabilities,
that the thing
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| Third party
rights
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(2) Before making an order under
subsection (1), the court shall cause notice to
be given to, and may hear, any person whom
it considers to have an interest in the thing, and
may declare the nature and extent of the
person's interest in it.
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| Right of
appeal -
third party
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(3) A person who was heard in response to
a notice given under subsection (2) may
appeal to the court of appeal against an order
made under subsection (1).
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| Right of
appeal -
Attorney
General
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(4) The Attorney General may appeal to the
court of appeal against the refusal of a court to
make an order under subsection (1).
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| Application of
Part XXI
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(5) Part XXI applies, with any
modifications that the circumstances require,
with respect to the procedure for an appeal
under subsections (3) and (4).
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| Relief from
forfeiture
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164.3 (1) Within thirty days after an order
under subsection 164.2(1) is made, a person
who claims an interest in the thing forfeited
may apply in writing to a judge for an order
under subsection (4).
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| Hearing of
application
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(2) The judge shall fix a day - not less than
thirty days after the application is made - for
its hearing.
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| Notice to
Attorney
General
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(3) At least fifteen days before the hearing,
the applicant shall cause notice of the
application and of the hearing day to be served
on the Attorney General.
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| Order
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(4) The judge may make an order declaring
that the applicant's interest in the thing is not
affected by the forfeiture and declaring the
nature and extent of the interest if the judge is
satisfied that the applicant
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| Appeal to
court of
appeal
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(5) A person referred to in subsection (4) or
the Attorney General may appeal to the court
of appeal against an order made under that
subsection. Part XXI applies, with any
modifications that the circumstances require,
with respect to the procedure for an appeal
under this subsection.
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| Powers of
Attorney
General
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(6) On application by a person who
obtained an order under subsection (4), made
after the expiration of the time allowed for an
appeal against the order and, if an appeal is
taken, after it has been finally disposed of, the
Attorney General shall direct that
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8. The Act is amended by adding the
following after section 172:
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| Luring a child
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172.1 (1) Every person commits an offence
who, by means of a computer system within
the meaning of subsection 342.1(2),
communicates with
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| Punishment
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(2) Every person who commits an offence
under subsection (1) is guilty of
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| Presumption
re age
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(3) Evidence that the person referred to in
paragraph (1)(a), (b) or (c) was represented to
the accused as being under the age of eighteen
years, sixteen years or fourteen years, as the
case may be, is, in the absence of evidence to
the contrary, proof that the accused believed
that the person was under that age.
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| No defence
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(4) It is not a defence to a charge under
paragraph (1)(a), (b) or (c) that the accused
believed that the person referred to in that
paragraph was at least eighteen years of age,
sixteen years or fourteen years of age, as the
case may be, unless the accused took
reasonable steps to ascertain the age of the
person.
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9. The definition ``child'' in section 214 of
the Act is repealed.
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| 1993, c. 45,
s. 2
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10. Paragraph 264(3)(a) of the Act is
replaced by the following:
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11. The Act is amended by adding the
following after section 270:
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| Disarming a
peace officer
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270.1 (1) Every one commits an offence
who, without the consent of a peace officer,
takes or attempts to take a weapon that is in the
possession of the peace officer when the peace
officer is engaged in the execution of his or her
duty.
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| Definition of
``weapon''
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(2) For the purpose of subsection (1),
``weapon'' means any thing that is designed to
be used to cause injury or death to, or to
temporarily incapacitate, a person.
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| Punishment
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(3) Every one who commits an offence
under subsection (1) is guilty of
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| R.S., c. 19
(3rd Supp.),
s. 11
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12. Sections 274 and 275 of the Act are
replaced by the following:
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| Corroboration
not required
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274. If an accused is charged with an
offence under section 151, 152, 153, 153.1,
155, 159, 160, 170, 171, 172, 173, 212, 271,
272 or 273, no corroboration is required for a
conviction and the judge shall not instruct the
jury that it is unsafe to find the accused guilty
in the absence of corroboration.
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| Rules
respecting
recent
complaint
abrogated
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275. The rules relating to evidence of recent
complaint are hereby abrogated with respect
to offences under sections 151, 152, 153,
153.1, 155 and 159, subsections 160(2) and (3)
and sections 170, 171, 172, 173, 271, 272 and
273.
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