3rd Session, 37th Parliament,
52-53 Elizabeth II, 2004

House of Commons of Canada

BILL C-12

An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act

Preamble

WHEREAS the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect;

WHEREAS Canada, by ratifying the United Nations Convention on the Rights of the Child, has undertaken to protect children from all forms of sexual exploitation and sexual abuse, and has obligations as a signatory to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography;

WHEREAS the Parliament of Canada wishes to encourage the participation of witnesses in the criminal justice system through the use of protective measures that seek to facilitate the participation of children and other vulnerable witnesses while ensuring that the rights of accused persons are respected;

AND WHEREAS the continuing advancements in the development of new technologies, while having social and economic benefits, facilitate sexual exploitation and breaches of privacy;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., C-46

CRIMINAL CODE

1. Subsection 127(1) of the Criminal Code is replaced by the following:

Disobeying order of court

127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

    (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or

    (b) an offence punishable on summary conviction.

R.S., c. 19 (3rd Supp.), s. 1

2. (1) Paragraph 150.1(2)(c) of the Act is replaced by the following:

    (c) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

R.S., c. 19 (3rd Supp.), s. 1

(2) Subsection 150.1(3) of the Act is replaced by the following:

Exemption for accused aged twelve or thirteen

(3) No person aged twelve or thirteen years shall be tried for an offence under section 151 or 152 or subsection 173(2) unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.

R.S., c. 19 (3rd Supp.), s. 1

3. Sections 151 and 152 of the Act are replaced by the following:

Sexual interference

151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years

    (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

    (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Invitation to sexual touching

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of fourteen years,

    (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

    (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

R.S., c. 19 (3rd Supp.), s. 1

4. (1) Subsection 153(1) of the Act is replaced by the following:

Sexual exploitation

153. (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who

    (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or

    (b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.

(2) Section 153 of the Act is amended by adding the following after subsection (1):

Punishment

(1.1) Every person who commits an offence under subsection (1)

    (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

    (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Inference of sexual exploitation

(1.2) A judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including

    (a) the age of the young person ;

    (b ) the age difference between the person and the young person;

    (c ) the evolution of the relationship; and

    (d ) the degree of control or influence by the person over the young person.

2002, c. 13, s. 4(1)

5. (1) The portion of subsection 161(1) of the Act before paragraph (a) is replaced by the following:

Order of prohibition

161. (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1), 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

(2) Section 161 of the Act is amended by adding the following after subsection (1):

Offences

(1.1) The offences for the purpose of subsection (1) are

    (a) an offence under section 151, 152, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171 or 172.1, subsection 173(2) or section 271, 272, 273 or 281;

    (b) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983; or

    (c) an offence under subsection 146(1) (sexual intercourse with a female under 14) or section 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988.

6. The Act is amended by adding the following after section 161:

Voyeurism

162. (1) Every one commits an offence who, surreptitiously, observes - including by mechanical or electronic means - or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

    (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

    (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such activity; or

    (c) the observation or recording is done for a sexual purpose.

Interpreta-
tion

(2) In this section, ``visual recording'' includes a photographic, film or video recording made by any means.

Exemption

(3) Paragraphs (1)(a) and (b) do not apply to a peace officer who, under the authority of a warrant issued under section 487.01, is carrying out any activity referred to in those paragraphs.

Printing, publication, etc., of voyeuristic recordings

(4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, publishing, distributing, circulating, selling or advertising it or making it available.

Punishment

(5) Every one who commits an offence under subsection (1) or (4)

    (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

    (b) is guilty of an offence punishable on summary conviction.

Defence

(6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and if the acts alleged do not extend beyond what serves the public good.

Question of law, motives

(7) For the purposes of subsection (6) ,

    (a) it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and

    (b) the motives of an accused are irrelevant.

7. (1) Subsection 163.1(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):

    (c) any written material the dominant characteristic of which is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

2002, c. 13, s. 5(4)

(2) Subsections 163.1(6) and (7) of the Act are replaced by the following:

Defence

(6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence, or if the material related to those acts that is alleged to contain child pornography, serve the public good and do not extend beyond what serves the public good.

Interpreta-
tion

(7) For the purposes of subsection (6), acts or material that serve the public good include acts or material that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.

Question of law, motives

(8) For the purposes of this section, it is a question of law whether any written material or visual representation advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

Question of law, motives

(9) For the purposes of subsection (6) ,

    (a ) it is a question of law whether an act or any material related to an act serves the public good and whether there is evidence that the act alleged or the material goes beyond what serves the public good, but it is a question of fact whether the act or the material does or does not extend beyond what serves the public good; and

    (b ) the motives of the accused are irrelevant.

1993, c. 46, s. 3(1); 1997, c. 18, s. 5

8. (1) The portion of subsection 164(1) of the French version of the Act before paragraph (a) is replaced by the following:

Mandat de saisie

164. (1) Le juge peut décerner, sous son seing, un mandat autorisant la saisie des exemplaires d'une publication ou des copies d'une représentation, d'un écrit ou d'un enregistrement s'il est convaincu, par une dénonciation sous serment, qu'il existe des motifs raisonnables de croire :

(2) Subsection 164(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):

    (c) any recording, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is a voyeuristic recording,

1993, c. 46, s. 3(2); 2002, c. 13, s. 6

(3) Subsections 164(3) to (5) of the Act are replaced by the following:

Owner and maker may appear

(3) The owner and the maker of the matter seized under subsection (1), and alleged to be obscene, a crime comic, child pornography or a voyeuristic recording, may appear and be represented in the proceedings in order to oppose the making of an order for the forfeiture of the matter.

Order of forfeiture

(4) If the court is satisfied, on a balance of probabilities, that the publication, representation, written material or recording referred to in subsection (1) is obscene, a crime comic, child pornography or a voyeuristic recording, 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.

Disposal of matter

(5) If the court is not satisfied that the publication, representation, written material or recording referred to in subsection (1) is obscene, a crime comic, child pornography or a voyeuristic recording, it shall order that the matter be restored to the person from whom it was seized without delay after the time for final appeal has expired.

1993, c. 46, s. 3(3)

(4) Subsection 164(7) of Act is replaced by the following:

Consent

(7) Where an order has been made under this section by a judge in a province with respect to one or more copies of a publication, a representation, written material or a recording, no proceedings shall be instituted or continued in that province under section 162, 163 or 163.1 with respect to those or other copies of the same publication, representation, written material or recording without the consent of the Attorney General.

(5) Subsection 164(8) of the Act is amended by adding the following in alphabetical order:

``voyeuristic recording''
« enregistreme nt voyeuriste »

``voyeuristic recording'' means a visual recording within the meaning assigned by subsection 162(2) that is made as described in subsection 162(1).

2002, c. 13, s. 7

9. (1) The portion of subsection 164.1(1) of the Act before paragraph (a) is replaced by the following:

Warrant of seizure

164.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds for believing that there is material - namely material that is child pornography within the meaning of section 163.1, that is a voyeuristic recording within the meaning assigned by subsection 164(8) or that is data within the meaning of subsection 342.1(2) that makes child pornography or the voyeuristic recording 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

2002, c. 13, s. 7

(2) Subsection 164.1(5) of the Act is replaced by the following:

Order

(5) If the court is satisfied, on a balance of probabilities, that the material is child pornography within the meaning of section 163.1, is a voyeuristic recording within the meaning assigned by subsection 164(8) or is data within the meaning of subsection 342.1(2) that makes child pornography or the voyeuristic recording available, it may order the custodian of the computer system to delete the material.