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Bill C-20

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SUMMARY

This enactment amends the Criminal Code to

    (a) amend the child pornography provisions with respect to the type of written material that constitutes child pornography, and with respect to the child pornography defences;

    (b) add a new category to the offence of sexual exploitation of young persons and make additional amendments to further protect children from sexual exploitation;

    (c) increase the maximum penalty for child sexual offences, for failing to provide the necessaries of life and for abandoning a child;

    (d) make child abuse an aggravating factor for the purpose of sentencing;

    (e) amend and clarify the applicable test and criteria that need to be met for the use of testimonial aids, for excluding the public, for imposing a publication ban, for using video-recorded evidence or for appointing counsel for self-represented accused to conduct a cross-examination of certain witnesses; and

    (f) create an offence of voyeurism and the distribution of voyeuristic material.

This enactment also amends the Canada Evidence Act to abolish the requirement for a competency hearing for children under 14 years of age.

EXPLANATORY NOTES

Criminal Code

Clause 1: Subsection 127(1) reads as follows:

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 an indictable offence and liable to imprisonment for a term not exceeding two years.

Clause 2: (1) The relevant portion of subsection 150.1(2) reads as follows:

(2) Notwithstanding subsection (1), where an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is twelve years of age or more but under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge unless the accused

    . . .

    (c) is neither in a position of trust or authority towards the complainant nor is a person with whom the complainant is in a relationship of dependency.

(2) Subsection 150.1(3) reads as follows:

(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 or is a person with whom the complainant is in a relationship of dependency.

Clause 3: Sections 151 and 152 read as follows:

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 is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

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, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

Clause 4: (1) and (2) Subsection 153(1.2) is new. Subsection 153(1) reads as follows:

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

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.

Clause 5: (1) The relevant portion of subsection 161(1) reads as follows:

161. (1) Where 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

(2) New.

Clause 6: New.

Clause 7: (1) New. The relevant portion of subsection 163.1(1) reads as follows:

163.1 (1) In this section, ``child pornography'' means

(2) Subsections 163.1(6) and (7) read as follows:

(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.

(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).

Clause 8: (1) and (2) Paragraph 164(1)(c) is new. The relevant portion of subsection 164(1) reads as follows:

164. (1) A judge who is satisfied by information on oath that there are reasonable grounds for believing that

    . . .

may issue a warrant authorizing seizure of the copies.

(3) Subsections 164(3) to (5) read as follows:

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

(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.

(5) If the court is not satisfied that the publication, representation or written material referred to in subsection (1) is obscene, a crime comic or child pornography, it shall order that the matter be restored to the person from whom it was seized forthwith after the time for final appeal has expired.

(4) Subsection 164(7) reads as follows:

(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, representation or written material, no proceedings shall be instituted or continued in that province under section 163 or 163.1 with respect to those or other copies of the same publication, representation or written material without the consent of the Attorney General.

(5) New.

Clause 9: (1) The relevant portion of subsection 164.1(1) reads as follows:

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

(2) Subsection 164.1(5) reads as follows:

(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.

(3) Subsection 164.1(7) reads as follows:

(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).

Clause 10: New. The relevant portion of the definition ``offence'' in section 183 reads as follows:

``offence'' means an offence contrary to, any conspiracy or attempt to commit or being an accessory after the fact in relation to an offence contrary to, or any counselling in relation to an offence contrary to

      (a) any of the following provisions of this Act, namely,

Clause 11: Subsection 215(3) reads as follows:

(3) Every one who commits an offence under subsection (2) is guilty of

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

    (b) an offence punishable on summary conviction.

Clause 12: Section 218 reads as follows:

218. Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Clause 13: Subsection 276.3(1) reads as follows:

276.3 (1) No person shall publish in a newspaper, as defined in section 297, or in a broadcast, any of the following:

    (a) the contents of an application made under section 276.1;

    (b) any evidence taken, the information given and the representations made at an application under section 276.1 or at a hearing under section 276.2;

    (c) the decision of a judge, provincial court judge or justice under subsection 276.1(4), unless the judge, provincial court judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the decision may be published; and

    (d) the determination made and the reasons provided under section 276.2, unless

      (i) that determination is that evidence is admissible, or

      (ii) the judge, provincial court judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the determination and reasons may be published.

Clause 14: The relevant portion of subsection 278.9(1) reads as follows:

278.9 (1) No person shall publish in a newspaper, as defined in section 297, or in a broadcast, any of the following:

Clause 15: Section 486 reads as follows:

486. (1) Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice, or that it is necessary to prevent injury to international relations or national defence or national security, to exclude all or any members of the public from the court room for all or part of the proceedings, he or she may so order.

(1.1) For the purposes of subsections (1) and (2.3) and for greater certainty, the ``proper administration of justice'' includes ensuring that the interests of witnesses under the age of eighteen years are safeguarded in proceedings in which the accused is charged with a sexual offence, an offence against any of sections 271, 272 and 273 or an offence in which violence against the person is alleged to have been used, threatened or attempted.

(1.2) In proceedings referred to in subsection (1.1), the presiding judge, provincial court judge or justice may, on application of the prosecutor or a witness who, at the time of the trial or preliminary hearing, is under the age of fourteen years or who has a mental or physical disability, order that a support person of the witness' choice be permitted to be present and to be close to the witness while testifying.

(1.3) The presiding judge, provincial court judge or justice shall not permit a witness in the proceedings referred to in subsection (1.1) to be a support person unless the presiding judge, provincial court judge or justice is of the opinion that the proper administration of justice so requires.

(1.4) The presiding judge, provincial court judge or justice may order that the support person and the witness not communicate with each other during the testimony of the witness.

(1.5) For the purposes of subsection (1) and for greater certainty, the ``proper administration of justice'' includes ensuring the protection of justice system participants who are involved in the proceedings.

(2) Where an accused is charged with an offence mentioned in section 274 and the prosecutor or the accused makes an application for an order under subsection (1), the presiding judge, provincial court judge or justice, as the case may be, shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(2.1) Notwithstanding section 650, where an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3), or section 163.1, 170, 171, 172, 173, 210, 211, 212, 213, 266, 267, 268, 271, 272 or 273 and the complainant or any witness, at the time of the trial or preliminary inquiry, is under the age of eighteen years or is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, the presiding judge or justice, as the case may be, may order that the complainant or witness testify outside the court room or behind a screen or other device that would allow the complainant or witness not to see the accused, if the judge or justice is of the opinion that the exclusion is necessary to obtain a full and candid account of the acts complained of from the complainant or witness.

(2.101) Notwithstanding section 650, where an accused is charged with an offence referred to in subsection (2.102), the presiding judge or justice, as the case may be, may order that any witness testify

    (a) outside the court room, if the judge or justice is of the opinion that the order is necessary to protect the safety of the witness; and

    (b) outside the court room or behind a screen or other device that would allow the witness not to see the accused, if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness.

(2.102) The offences for the purposes of subsection (2.101) are

    (a) an offence under section 423.1, 467.11, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

    (b) a terrorism offence;

    (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; and

    (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(2.11) Where the judge or justice is of the opinion that it is necessary for the complainant or witness to testify in order to determine whether an order under subsection (2.1) or (2.101) should be made in respect of that complainant or witness, the judge or justice shall order that the complainant or witness testify pursuant to that subsection.

(2.2) A complainant or witness shall not testify outside the court room pursuant to subsection (2.1), (2.101) or (2.11) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the complainant or witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.

(2.3) In proceedings referred to in subsection (1.1), the accused shall not personally cross-examine a witness who at the time of the proceedings is under the age of eighteen years, unless the presiding judge, provincial court judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination and, if the accused is not personally conducting the cross-examination, the presiding judge, provincial court judge or justice shall appoint counsel for the purpose of conducting the cross-examination.

(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

    (a) any of the following offences:

      (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

      (ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

      (iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

    (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(3.1) An order made under subsection (3) does not apply in respect of the disclosure of information in the course of the administration of justice where it is not the purpose of the disclosure to make the information known in the community.

(4) The presiding judge or justice shall

    (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant to proceedings in respect of an offence mentioned in subsection (3) of the right to make an application for an order under subsection (3); and

    (b) on application made by the complainant, the prosecutor or any such witness, make an order under that subsection.

(4.1) A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or witness - or, in the case of an offence referred to in subsection (4.11), the identity of a justice system participant who is involved in the proceedings - or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(4.11) The offences for the purposes of subsection (4.1) are

    (a) an offence under section 423.1 or a criminal organization offence;

    (b) a terrorism offence;

    (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; and

    (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(4.2) An order made under subsection (4.1) does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4.3) An order under subsection (4.1) may be made on the application of the prosecutor, a victim or a witness. The application must be made to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place.

(4.4) The application must be in writing and set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(4.5) The applicant shall provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(4.6) The judge or justice may hold a hearing to determine whether an order under subsection (4.1) should be made, and the hearing may be in private.

(4.7) In determining whether to make an order under subsection (4.1), the judge or justice shall consider

    (a) the right to a fair and public hearing;

    (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

    (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

    (d) society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

    (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

    (f) the salutary and deleterious effects of the proposed order;

    (g) the impact of the proposed order on the freedom of expression of those affected by it; and

    (h) any other factor that the judge or justice considers relevant.

(4.8) An order made under subsection (4.1) may be subject to any conditions that the judge or justice thinks fit.

(4.9) Unless the presiding judge or justice refuses to make an order under subsection (4.1), no person shall publish in any document or broadcast in any way

    (a) the contents of an application referred to in subsection (4.3);

    (b) any evidence taken, information given, or submissions made at a hearing under subsection (4.6); or

    (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction.

Clause 16: (1) Subsection 487.2(1) reads as follows:

487.2 (1) Where a search warrant is issued under section 487 or 487.1 or a search is made under such a warrant, every one who publishes in any newspaper or broadcasts any information with respect to

    (a) the location of the place searched or to be searched, or

    (b) the identity of any person who is or appears to occupy or be in possession or control of that place or who is suspected of being involved in any offence in relation to which the warrant was issued,

without the consent of every person referred to in paragraph (b) is, unless a charge has been laid in respect of any offence in relation to which the warrant was issued, guilty of an offence punishable on summary conviction.

(2) Subsection 487.2(2) reads as follows:

(2) In this section, ``newspaper'' has the same meaning as in section 297.

Clause 17: (1) The relevant portion of subsection 517(1) reads as follows:

517. (1) Where the prosecutor or the accused intends to show cause under section 515, he shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any newspaper or broadcast before such time as

(2) Subsection 517(3) reads as follows:

(3) In this section, ``newspaper'' has the same meaning as in section 297.

Clause 18: (1) The relevant portion of subsection 539(1) reads as follows:

539. (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

    . . .

make an order directing that the evidence taken at the inquiry shall not be published in any newspaper or broadcast before such time as, in respect of each of the accused,

    (c) he is discharged, or

    (d) if he is ordered to stand trial, the trial is ended.

(2) Subsection 539(4) reads as follows:

(4) In this section, ``newspaper'' has the same meaning as in section 297.

Clause 19: (1) The relevant portion of subsection 542(2) reads as follows:

(2) Every one who publishes in any newspaper, or broadcasts, a report that any admission or confession was tendered in evidence at a preliminary inquiry or a report of the nature of such admission or confession so tendered in evidence unless

    . . .

is guilty of an offence punishable on summary conviction.

(2) Subsection 542(3) reads as follows:

(3) In this section, ``newspaper'' has the same meaning as in section 297.

Clause 20: Subsection 631(6) reads as follows:

(6) On application by the prosecutor or on its own motion, the court or judge before which a jury trial is to be held may, if an order under subsection (3.1) has been made, make an order directing that the identity of a juror or any information that could disclose their identity shall not be published in any document or broadcast in any way, if the court or judge is satisfied that such an order is necessary for the proper administration of justice.

Clause 21: (1) Subsection 648(1) reads as follows:

648. (1) Where permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published, after the permission is granted, in any newspaper or broadcast before the jury retires to consider its verdict.

(2) Subsection 648(3) reads as follows:

(3) In this section, ``newspaper'' has the same meaning as in section 297.

Clause 22: The relevant portion of subsection 672.51(11) reads as follows:

(11) No person shall publish in any newspaper within the meaning of section 297 or broadcast

Clause 23: The heading before section 715.1 and sections 715.1 and 715.2 read as follows:

Videotaped Evidence

715.1 In any proceeding relating to an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 163.1, 170, 171, 172, 173, 210, 211, 212, 213, 266, 267, 268, 271, 272 or 273, in which the complainant or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence, in which the complainant or witness describes the acts complained of, is admissible in evidence if the complainant or witness, while testifying, adopts the contents of the videotape.

715.2 (1) In any proceeding relating to an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 170, 171, 172, 173, 210, 211, 212, 213, 266, 267, 268, 271, 272 or 273 in which the complainant or other witness is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, a videotape, made within a reasonable time after the alleged offence, in which the complainant or witness describes the acts complained of is admissible in evidence if the complainant or witness adopts the contents of the videotape while testifying.

(2) The presiding judge may prohibit any other use of a videotape referred to in subsection (1).

Clause 24: Subparagraph 718.2(a)(ii.1) is new. The relevant portion of section 718.2 reads as follows:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

    (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

      . . .

      (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner or child,

      . . .

    shall be deemed to be aggravating circumstances;

Canada Evidence Act

Clause 25: The relevant portion of subsection 16(1) reads as follows:

16. (1) Where a proposed witness is a person under fourteen years of age or a person whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

Clause 26: New.

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