Bill C-54

3rd Session, 40th Parliament,

59-60 Elizabeth II, 2010-2011

house of commons of canada

BILL C-54

An Act to amend the Criminal Code (sexual offences against children)

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

SHORT TITLE

1. This Act may be cited as the Protecting Children from Sexual Predators Act.

CRIMINAL CODE

2. Subsection 7(4.1) of the Criminal Code is amended by replacing “171” with “171, 171.1, 172.1, 172.2”.

3. Paragraphs 151(a) and (b) of the Act are replaced by the following:

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to impris­onment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

4. Paragraphs 152(a) and (b) of the Act are replaced by the following:

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to impris­onment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

5. Paragraphs 153(1.1)(a) and (b) of the Act are replaced by the following:

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to impris­onment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

6. Subsection 155(2) of the Act is replaced by the following:

(2) Everyone who commits incest is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and, if the other person is under the age of 16 years, to a minimum punishment of imprisonment for a term of five years.

7. Subsection 160(3) of the Act is replaced by the following:

(3) Despite subsection (1), every person who commits bestiality in the presence of a person under the age of 16 years, or who incites a person under the age of 16 years to commit bestiality,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to impris­onment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.

8. (1) Subsection 161(1) of the Act is amended by striking out “or” at the end of paragraph (b) and by replacing paragraph (c) with the following:

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or

(d) using the Internet or other digital network, unless the offender does so in accord­ance with conditions set by the court.

(2) Paragraph 161(1.1)(a) of the Act is amended by replacing

(a) “171 or 172.1” with “171, 171.1, 172.1 or 172.2”;

(b) “173(2)” with “173(2) or 212(1), (2), (2.1) or (4)”; and

(c) “273 or 281” with “273, 280 or 281”.

9. (1) Paragraphs 163.1(4)(a) and (b) of the Act are replaced by the following:

(a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

(2) Paragraphs 163.1(4.1)(a) and (b) of the Act are replaced by the following:

(a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

10. The portion of subsection 164.2(1) of the Act before paragraph (a) is replaced by the following:

164.2 (1) On application of the Attorney General, a court that convicts a person of an offence under section 163.1, 172.1 or 172.2, in addition to any other punishment that it may impose, may order that anything — 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

11. Paragraph 170(b) of the Act is replaced by the following:

(b) to imprisonment for a term not exceeding two years and to a minimum punishment of imprisonment for a term of 90 days if the person procured is 16 years of age or more but under the age of 18 years.

12. Paragraph 171(b) of the Act is replaced by the following:

(b) to imprisonment for a term not exceeding two years and to a minimum punishment of imprisonment for a term of 90 days if the person is 16 years of age or more but under the age of 18 years.

13. The Act is amended by adding the following after section 171:

171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to that person;

(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or

(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.

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

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or

(b) is guilty of an offence punishable on summary conviction and is liable to impris­onment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.

(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 18, 16 or 14 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.

(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 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

(5) In subsection (1), “sexually explicit material” means material that is not child pornography, as defined in subsection 163.1(1), and that is

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts;

(b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or

(c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.

14. (1) The portion of subsection 172.1(1) of the Act before paragraph (c) is replaced by the following:

172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to that person;

(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or

(2) Paragraphs (a) and (b) of subsection 172.1(2) of the Act are replaced by the following:

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to impris­onment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

(3) Subsection 172.1(3) of the French version of the Act is replaced by the following:

15. Section 173 of the Act is replaced by the following:

172.2 (1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence

(a) under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to another person who is, or who the accused believes is, under the age of 18 years;

(b) under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to another person who is, or who the accused believes is, under the age of 16 years; or

(c) under section 281 with respect to another person who is, or who the accused believes is, under the age of 14 years.

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

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to impris­onment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

(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 18, 16 or 14 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.

(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 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

(5) It is not a defence to a charge under paragraph (1)(a), (b) or (c)

(a) that the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer; or

(b) that, if the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer, the person referred to in paragraph (1)(a), (b) or (c) did not exist.

173. (1) Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years; or

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

(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or

(b) is guilty of an offence punishable on summary conviction and is liable to impris­onment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.

16. Paragraph (a) of the definition “offence” in section 183 of the Act is amended by adding the following after subparagraph (xxix):

(xxix.1) section 170 (parent or guardian procuring sexual activity),

(xxix.2) section 171 (householder permitting sexual activity),

(xxix.3) section 171.1 (making sexually explicit material available to child),

(xxix.4) section 172.1 (luring a child),

(xxix.5) section 172.2 (agreement or arrangement — sexual offence against child),

17. Section 271 of the Act is replaced by the following:

271. Everyone who commits a sexual assault

(a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to impris­onment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of impris­onment for a term of 90 days.

18. Subsection 272(2) of the Act is amended by striking out “and” at the end of paragraph (a.1) and by adding the following after that paragraph:

(a.2) if the complainant is under the age of 16 years, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of five years; and

19. Subsection 273(2) of the Act is amended by striking out “and” at the end of paragraph (a.1) and by adding the following after that paragraph:

(a.2) if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years; and

20. Subsection 486(3) of the Act is amended by replacing “171, 172, 172.1” with “170, 171, 171.1, 172, 172.1, 172.2”.

21. Subparagraph 486.4(1)(a)(i) of the Act is amended by replacing

(a) “171, 172, 172.1” with “171, 171.1, 172, 172.1, 172.2”; and

(b) “279.03” with “279.03, 280, 281”.

22. (1) Paragraph (a.1) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (iv.5):

(iv.6) section 172.2 (agreement or arrangement — sexual offence against child),

(2) Paragraph (c) of the definition “secondary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (ii):

(ii.1) section 171.1 (making sexually explicit material available to child),

23. Subparagraph (a)(x) of the definition “designated offence” in subsection 490.011(1) of the Act is replaced by the following:

(ix.1) section 171.1 (making sexually explicit material available to child),

(x) section 172.1 (luring a child),

(x.1) section 172.2 (agreement or arrangement — sexual offence against child),

24. Subparagraph (b)(x) of the definition “designated offence” in section 752 of the Act is replaced by the following:

(ix.1) section 172.2 (agreement or arrangement — sexual offence against child),

(x) subsection 212(1) (procuring),

(x.1) subsection 212(2) (living on avails of prostitution of person under eighteen),

25. Paragraph 753.1(2)(a) of the Act is replaced by the following:

(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure), 212(2) (living on the avails of prostitution of person under eighteen), 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years) or 212(4) (offence — prostitution of person under eighteen), section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

26. (1) Subsection 810.1(1) of the Act is amended by replacing

(a) “151, 152, 155” with “151 or 152, subsection 153(1), section 155”;

(b) “171 or 172.1” with “171, 171.1, 172.1 or 172.2”;

(c) “173(2)” with “173(2) or 212(1), (2), (2.1) or (4)”; and

(d) “272 or 273” with “272, 273, 280 or 281”.

(2) Paragraph 810.1(3.02)(a) of the Act is replaced by the following:

(a) prohibit the defendant from having any contact — including communicating by any means — with a person under the age of 16 years, unless the defendant does so under the supervision of a person whom the judge considers appropriate;

(a.1) prohibit the defendant from using the Internet or other digital network, unless the defendant does so in accordance with conditions set by the judge;

27. Subparagraph (b)(iii) of Form 5.04 in Part XXVIII of the Act is replaced by the following:

[ ]       (iii) an offence under any of sections 145 to 148, subsection 160(3), sections 170, 171.1, 173, 252, 264, 264.1, 266 and 270, paragraph 348(1)(e) and sections 349 and 423 of the Criminal Code,

COORDINATING AMENDMENTS

28. (1) Subsections (2) to (9) apply if Bill S-2, introduced in the 3rd session of the 40th Parliament and entitled the Protecting Victims From Sex Offenders Act (in this section referred to as the “other Act”), receives royal assent.

(2) If section 15 of this Act comes into force before section 2 of the other Act, then that section 2 is repealed.

(3) If section 2 of the other Act comes into force on the same day as section 15 of this Act, then that section 2 is deemed to have come into force before that section 15.

(4) If subsection 3(1) of the other Act comes into force before subsection 22(1) of this Act, then that subsection 22(1) is replaced by the following:

22. (1) Subparagraph (a)(i.91) of the definition “primary designated offence” in section 487.04 of the Act is replaced by the following:

(i.91) section 172.1 (luring a child),

(i.911) section 172.2 (agreement or arrangement — sexual offence against child),

(5) If subsection 22(1) of this Act comes into force before subsection 3(1) of the other Act, then, on the day on which that subsection 3(1) comes into force, subparagraph (a)(i.91) of the definition “primary designated offence” in section 487.04 of the Criminal Code is replaced by the following:

(i.91) section 172.1 (luring a child),

(i.911) section 172.2 (agreement or arrangement — sexual offence against child),

(6) If subsection 3(1) of the other Act comes into force on the same day as subsection 22(1) of this Act, then that subsection 3(1) is deemed to have come into force before that subsection 22(1) and subsection (4) applies as a consequence.

(7) If subsection 3(1) of the other Act comes into force before subsection 22(2) of this Act, then that subsection 22(2) is replaced by the following:

(2) Paragraph (a) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (i.9):

(i.901) section 171.1 (making sexually explicit material available to child),

(8) If subsection 22(2) of this Act comes into force before subsection 3(1) of the other Act, then, on the day on which that subsection 3(1) comes into force, paragraph (a) of the definition “primary designated offence” in section 487.04 of the Criminal Code is amended by adding the following after subparagraph (i.9):

(i.901) section 171.1 (making sexually explicit material available to child),

(9) If subsection 3(1) of the other Act comes into force on the same day as subsection 22(2) of this Act, then that subsection 3(1) is deemed to have come into force before that subsection 22(2) and subsection (7) applies as a consequence.

29. If Bill C-16, introduced in the 3rd session of the 40th Parliament and entitled the Ending House Arrest for Property and Other Serious Crimes by Serious and Violent Offenders Act, receives royal assent, then, on the first day on which both section 2 of that Act and subsection 14(2) of this Act are in force, subparagraph 742.1(f)(ii) of the Criminal Code is repealed.

COMING INTO FORCE

30. The provisions of this Act, other than sections 28 and 29, come into force on a day or days to be fixed by order of the Governor in Council.