Bill C-26

2nd Session, 41st Parliament,

62-63-64 Elizabeth II, 2013-2014-2015

house of commons of canada

BILL C-26

An Act to amend the Criminal Code, the Canada Evidence Act and the Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender Database Act and to make consequential amendments to other Acts

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 Tougher Penalties for Child Predators Act.

CRIMINAL CODE

2. Paragraphs 151(a) and (b) of the Criminal Code are replaced by the following:

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 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 impris-onment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

3. 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 14 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 impris-onment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

4. 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 14 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 impris-onment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

5. Paragraph 160(3)(a) of the Act is replaced by the following:

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

6. Paragraphs 161(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 four years; or

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

7. (1) Subsections 163.1(2) and (3) of the Act are replaced by the following:

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

(2) 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 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

(3) 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 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

8. Section 170 of the Act is replaced by the following:

170. Every parent or guardian of a person under the age of 18 years who procures the person for the purpose of engaging in any sexual activity prohibited by this Act with a person other than the parent or guardian is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

9. Section 171 of the Act is replaced by the following:

171. Every owner, occupier or manager of premises, or any other person who has control of premises or assists in the management or control of premises, who knowingly permits a person under the age of 18 years to resort to or to be in or on the premises for the purpose of engaging in any sexual activity prohibited by this Act is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

10. Paragraphs 171.1(2)(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 14 years and to a minimum punishment of imprisonment for a term of six months; or

(b) is guilty of an offence punishable on summary conviction and is liable to impris-onment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

11. Paragraphs 172.1(2)(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 14 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 impris-onment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

12. Paragraphs 172.2(2)(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 14 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 impris-onment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

13. Subsection 212(4) of the Act is replaced by the following:

(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of 18 years is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of

(a) in the case of a first offence, six months; and

(b) in the case of a second or subsequent offence, one year.

(5) For the purposes of subsection (4), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

14. Paragraphs 271(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 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

15. Paragraph 272(2)(a.2) of the Act is replaced by the following:

(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

16. Paragraph 718.2(a) of the Act is amended by striking out “or” at the end of subparagraph (iv), by adding “or” at the end of subparagraph (v) and by adding the following after subparagraph (v):

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

17. Subsection 718.3(4) of the Act is replaced by the following:

(4) The court that sentences an accused shall consider directing

(a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing; and

(b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when

(i) the offences do not arise out of the same event or series of events,

(ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or

(iii) one of the offences was committed while the accused was fleeing from a peace officer.

(5) For the purposes of subsection (4), a term of imprisonment includes imprisonment that results from the operation of subsection 734(4).

(6) For the purposes of subsection (4), a sentence of imprisonment includes

(a) a disposition made under paragraph 20(1)(k) or (k.1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985;

(b) a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act; and

(c) a sentence that results from the operation of subsection 743.5(1) or (2).

(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct

(a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and

(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1.

18. Paragraphs 733.1(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 four years; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months, or to a fine of not more than $5000, or to both.

19. Paragraphs 811(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 four years; or

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

CANADA EVIDENCE ACT

20. Subsection 4(2) of the Canada Evidence Act is amended by replacing “170” with “163.1, 170”.

SEX OFFENDER INFORMATION REGISTRATION ACT

21. Subsection 3(1) of the Sex Offender Information Registration Act is amended by adding the following in alphabetical order:

“sexual offence against a child” means

(a) a designated offence as defined in subsection 490.011(1) of the Criminal Code that is committed against a person who is under 18 years of age and as a result of which the offender is required to comply with this Act; or

(b) an offence that is committed outside Canada against a person who is under 18 years of age and as a result of which the offender is required to comply with this Act.

22. Subsection 4.1(1) of the Act is amended by striking out “and” at the end of paragraph (b) and by adding the following after that paragraph:

(b.1) within seven days after they receive a driver’s licence or, if they are required to report to a registration centre designated under the National Defence Act, within 15 days after they receive it;

(b.2) within seven days after they receive a passport or, if they are required to report to a registration centre designated under the National Defence Act, within 15 days after they receive it; and

23. Subsection 5(1) of the Act is amended by striking out “and” at the end of paragraph (g) and by adding the following after paragraph (h):

(i) the licence number and the name of the issuing jurisdiction of every driver’s licence that they hold; and

(j) the passport number and the name of the issuing jurisdiction of every passport that they hold.

24. (1) The portion of subsection 6(1) of the Act before paragraph (c) is replaced by the following:

6. (1) Subject to subsection (1.1), a sex offender other than one who is referred to in subsection (1.01) shall notify a person who collects information at the registration centre referred to in section 7.1

(a) before the sex offender’s departure — of the dates of their departure and return and of every address or location at which they expect to stay in Canada or outside Canada — if they expect not to be at their main residence or any of their secondary residences for a period of seven or more consecutive days;

(b) within seven days after their departure — of the date of their return and of every address or location at which they are staying in Canada or outside Canada — if they decide, after departure, not to be at their main residence or any of their secondary residences for a period of seven or more consecutive days or if they have not given a notification required under paragraph (a); and

(2) Section 6 of the Act is amended by adding the following after subsection (1):

(1.01) Subject to subsection (1.1), a sex offender who is convicted of a sexual offence against a child shall notify a person who collects information at the registration centre referred to in section 7.1

(a) before the sex offender’s departure — of the dates of their departure and return and of every address or location at which they expect to stay in Canada — if they expect not to be at their main residence or any of their secondary residences for a period of seven or more consecutive days;

(b) before their departure, of the dates of their departure and return and of every address or location at which they expect to stay outside Canada;

(c) within seven days after their departure — of the date of their return and of every address or location at which they are staying in Canada — if they decide, after departure, not to be at their main residence or any of their secondary residences for a period of seven or more consecutive days or if they have not given a notification required under paragraph (a);

(d) without delay, after their departure — of the date of their return and of every address or location at which they are staying outside Canada — if they decide, after departure, to extend their stay beyond the date of return that they indicated in the notification they gave under paragraph (b) or if they have not given a notification under paragraph (b); and

(e) of a change in address, location or date, before their departure or

(i) if the change is made after their departure and they are staying in Canada, within seven days after the date on which the change is made, or

(ii) if the change is made after their departure and they are staying outside Canada, without delay after the date on which the change is made.

25. Section 8.1 of the Act is amended by adding the following after subsection (5):

(5.1) A person who registers information for the Commissioner of the Royal Canadian Mounted Police may register in the database the information disclosed to the Commissioner under subsection 15.2(2).

26. The heading before section 15.1 of the Act is replaced by the following:

AUTHORITY TO COLLECT OR DISCLOSE INFORMATION

27. The Act is amended by adding the following after section 15.1:

15.2 (1) The Canada Border Services Agency may assist a member or an employee of, or a person retained by, a police service in the prevention or investigation of a crime of a sexual nature or an offence under section 490.031 or 490.0311 of the Criminal Code or in the laying of a charge for such an offence by collecting the information disclosed to it under paragraph 16(4)(j.2) or (j.3) as well as the following information with respect to any sex offender who is the subject of a disclosure made under those paragraphs:

(a) the date of their departure from Canada;

(b) the date of their return to Canada; and

(c) every address or location at which they have stayed outside Canada.

(2) The Canada Border Services Agency may, in assisting the member or employee of, or person retained by, a police service referred to in subsection (1), disclose to the Commissioner of the Royal Canadian Mounted Police any information collected under paragraphs (1)(a) to (c).

28. (1) Subsection 16(3) of the Act is amended by striking out “or” at the end of paragraph (b) and by adding the following after paragraph (b):

(b.1) the information was collected under subsection 15.2(1) and they compare it with other information for the purpose of assisting a member or an employee of, or a person retained by, a police service in the prevention or investigation of a crime of a sexual nature or an offence under section 490.031 or 490.0311 of the Criminal Code or in the laying of a charge for such an offence; or

(2) Subsection 16(3.1) of the Act is amended by striking out “or” at the end of paragraph (a.2) and by adding the following after paragraph (a.2):

(a.3) the information was collected under subsection 15.2(1) and they combine it with information contained in a computer system of the Canada Border Services Agency for the purpose of assisting a member or an employee of, or a person retained by, a police service in the prevention or investigation of a crime of a sexual nature or an offence under section 490.031 or 490.0311 of the Criminal Code or in the laying of a charge for such an offence; or

(3) Subsection 16(4) of the Act is amended by striking out “or” at the end of paragraph (j.1) and by adding the following after that paragraph:

(j.2) unless the disclosure is to the Canada Border Services Agency, is limited to the information referred to in paragraphs 5(1)(a), (b), (i) and (j) and is necessary to assist a member or an employee of, or a person retained by, a police service in the prevention or investigation of a crime of a sexual nature or an offence under section 490.031 or 490.0311 of the Criminal Code or in the laying of a charge for such an offence;

(j.3) unless the disclosure is to the Canada Border Services Agency, relates to a sex offender who is convicted of a sexual offence against a child and who poses a high risk of committing a crime of a sexual nature, is limited to the information referred to in paragraphs 5(1)(a), (b), (i) and (j) and is made for the purpose of assisting a member or an employee of, or a person retained by, a police service in the prevention or investigation of a crime of a sexual nature or an offence under section 490.031 or 490.0311 of the Criminal Code or in the laying of a charge for such an offence; or

HIGH RISK CHILD SEX OFFENDER DATABASE ACT

29. The High Risk Child Sex Offender Database Act is enacted as follows:

An Act respecting the establishment of a publicly accessible database containing information with respect to persons who are found guilty of sexual offences against children and who pose a high risk of committing crimes of a sexual nature

SHORT TITLE

1. This Act may be cited as the High Risk Child Sex Offender Database Act.

INTERPRETATION

2. (1) The following definitions apply in this Act.

“sexual offence against a child” means

(a) a designated offence as defined in subsection 490.011(1) of the Criminal Code that is committed against a person who is under 18 years of age, other than an offence referred to in paragraph (b) or (f) of the definition “designated offence” in that subsection if the prosecutor has not, for the purposes of subsection 490.012(2) of that Act, established beyond a reasonable doubt that the offender committed the offence with the intent to commit an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of that definition; or

(b) an offence that is committed outside Canada against a person who is under 18 years of age and as a result of which the offender is or was required to comply with the Sex Offender Information Registration Act.

“Commissioner” means the Commissioner of the Royal Canadian Mounted Police.

(2) For the purposes of this Act, a crime is of a sexual nature if it consists of one or more acts that

(a) are either sexual in nature or committed with the intent to commit an act or acts that are sexual in nature; and

(b) constitute an offence.

(3) For the purposes of this Act, a reference to a person who is found guilty of a sexual offence against a child does not include

(a) a young person as defined in subsection 2(1) of the Youth Criminal Justice Act who has been found guilty of a sexual offence against a child unless they are given an adult sentence as defined in that subsection for the offence; or

(b) a young person as defined in subsection 2(1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, who has been found guilty of a sexual offence against a child unless they are found guilty of the offence in ordinary court as defined in that subsection.

PURPOSE

3. The purpose of this Act is to enhance public safety by establishing a publicly accessible database that contains information with respect to persons who are found guilty of sexual offences against children and who pose a high risk of committing crimes of a sexual nature.

DATABASE

4. (1) The Commissioner must establish and administer a publicly accessible database that contains information with respect to persons who are found guilty of sexual offences against children and who pose a high risk of committing crimes of a sexual nature.

(2) The Commissioner’s duties under this Act may be performed on behalf of the Commissioner by any person who is authorized by the Commissioner to perform those duties.

5. The database must contain only information, with respect to any person referred to in subsection 4(1), that a police service or other public authority has previously made accessible to the public, including:

(a) their given name and surname, and any alias that they use;

(b) their date of birth;

(c) their gender;

(d) their physical description, including any physical distinguishing mark that they have;

(e) a photograph of them;

(f) a description of offences they have committed;

(g) any condition to which they are subject; and

(h) the name of the city, town, municipality or other organized district in which they reside.

6. The Commissioner must, before including the given name and surname of a person referred to in subsection 4(1) in the database, take reasonable steps to notify that person that information with respect to them is to be included in the database and allow that person to make representations concerning the matter.

7. (1) On the receipt of an application in writing by a person referred to in subsection 4(1), the Commissioner must decide whether there are reasonable grounds to remove information with respect to that person from the database.

(2) If the Commissioner does not make a decision on the application within the period prescribed by regulation, the Commissioner is deemed to have decided not to remove the information in question.

(3) The Commissioner must give notice without delay to the applicant of any decision made or deemed to have been made respecting the application.

(4) Within 60 days after receipt of the notice of the decision, the applicant may apply to the Federal Court for judicial review of the decision.

8. Within the period prescribed by regulation after the establishment of the database, and at prescribed intervals after that, the Commissioner must review the information in the database to determine whether the information should still be maintained in the database. The review does not affect the validity of the database.

9. Nothing in this Act affects any authority of the Royal Canadian Mounted Police under another Act of Parliament or an Act of a provincial legislature or at common law to disclose information.

10. No criminal or civil proceedings lie against the Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done or omitted to be done in good faith under this Act.

REGULATIONS

11. The Governor in Council may make regulations

(a) establishing the criteria for determining whether a person who is found guilty of a sexual offence against a child poses a high risk of committing a crime of a sexual nature; and

(b) prescribing anything that, by this Act, is to be prescribed.

CONSEQUENTIAL AMENDMENTS

Criminal Code

30. Subsection 490.031(3) of the Criminal Code is replaced by the following:

(3) In proceedings under subsection (1), a certificate of a person referred to in paragraph 16(2)(b) of the Sex Offender Information Registration Act stating that the sex offender failed to report under section 4, 4.1, 4.2 or 4.3 — or provide information under section 5 or notify a person under subsection 6(1) or (1.01) — of that Act is evidence of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.

31. The portion of section 490.0311 of the Act before paragraph (a) is replaced by the following:

490.0311 Every person who knowingly provides false or misleading information under subsection 5(1) or 6(1) or (1.01) of the Sex Offender Information Registration Act is guilty of an offence and liable

National Defence Act

32. Subsection 119.1(3) of the National Defence Act is replaced by the following:

(3) In proceedings under subsection (1), a certificate of a person referred to in paragraph 16(2)(b.1) of the Sex Offender Information Registration Act stating that the person named in the certificate failed to report under section 4, 4.1, 4.2 or 4.3 — or provide information under section 5 or notify a person under subsection 6(1) or (1.01) — of that Act is evidence of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.

COORDINATING AMENDMENTS

33. If Bill C-13, introduced in the 2nd session of the 41st Parliament and entitled the Protecting Canadians from Online Crime Act, receives royal assent, then, on the first day on which both section 3 of that Act and section 6 of this Act are in force, paragraphs 162.2(4)(a) and (b) of the Criminal Code are replaced by the following:

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

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

COMING INTO FORCE

34. The provisions of this Act, other than section 33, come into force on a day or days to be fixed by order of the Governor in Council.