PARLIAMENT of CANADA

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2nd Session, 35th Parliament,
45-46 Elizabeth II, 1996-97

The House of Commons of Canada

BILL C-27

An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation)

Preamble

WHEREAS the Parliament of Canada has grave concerns regarding violence against women and children and, in particular, child prostitution, criminal harassment and female genital mutilation;

WHEREAS children, by virtue of their lack of maturity, are more vulnerable than adults to danger, exploitation and abuse and are in greater need of protection;

WHEREAS the 9th United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Cairo, 1995) urged Member States to adopt measures to prevent, prohibit, eliminate and impose effective sanctions against practices harmful to women and children;

WHEREAS the United Nations Declaration on the Elimination of Violence against Women (General Assembly resolution 48/104, 20 December 1993) and the Platform for Action of the Fourth World Conference on Women (Beijing, 1995) recognize that violence against women both violates, and impairs or nullifies, the enjoyment by women of their human rights and fundamental freedoms;

WHEREAS the Parliament of Canada has grave concerns regarding the prostitution of children, whether in or outside Canada;

WHEREAS, by ratifying the United Nations Convention on the Rights of the Child, Canada has undertaken to protect children from all forms of sexual exploitation and sexual abuse, and to take measures to prevent the exploitative use of children in prostitution or other unlawful sexual practices;

WHEREAS a strong statement denouncing the exploitation of children involved in prostitution, in particular by their procurers, should be sent to the general public and, in particular, to persons involved in the administration of justice;

WHEREAS the Parliament of Canada wishes to strongly denounce criminal harassment in Canadian society by strengthening the criminal law in this area, thereby providing further protection to the life, liberty and security of women and other victims of criminal harassment;

WHEREAS the Parliament of Canada has grave concerns regarding the practice of female genital mutilation and in particular where that practice involves children;

AND WHEREAS the Parliament of Canada believes that a clear statement that the criminal law of Canada applies to the practice of female genital mutilation will facilitate ongoing educational efforts in this area;

R.S., c. C-46; R.S., cc. 2, 11, 27, 31, 47, 51, 52 (1st Supp.), cc. 1, 24, 27, 35 (2nd Supp.), cc. 10, 19, 30, 34 (3rd Supp.), cc. 1, 23, 29, 30, 31, 32, 40, 42, 50 (4th Supp.); 1989, c. 2; 1990, cc. 15, 16, 17, 44; 1991, cc. 1, 4, 28, 40, 43; 1992, cc. 1, 11, 20, 21, 22, 27, 38, 41, 47, 51; 1993, cc. 7, 25, 28, 34, 37, 40, 45, 46; 1994, cc. 12, 13, 38, 44; 1995, cc. 5, 19, 22, 27, 29, 32, 39, 42

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

1. Section 7 of the Criminal Code is amended by adding the following after subsection (4):

Offence in relation to sexual offences against children

(4.1) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171 or 173 or subsection 212(4) shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of the Immigration Act.

No proceedings

(4.2) Proceedings with respect to an act or omission that if committed in Canada would be an offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 163.1, 170, 171 or 173 shall be instituted in Canada only if a request to that effect to the Minister of Justice of Canada is made by

    (a) any consular officer or diplomatic agent accredited to Canada by the state where the offence has been committed; or

    (b) any minister of that state communicating with the Minister through the diplomatic representative of Canada accredited to that state.

Consent of Attorney General

(4.3) Proceedings referred to in subsection (4.2) may only be instituted with the consent of the Attorney General.

2. (1) Paragraphs 212(1)(b) and (c) of the Act are replaced by the following:

    (b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,

    (c) knowingly conceals a person in a common bawdy-house,

(2) Paragraph 212(1)(f) of the Act is replaced by the following:

    (f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,

(3) Section 212 of the Act is amended by adding the following after subsection (2):

Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years

(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who

    (a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and

    (b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.

R.S., c. 19 (3rd Supp.), s. 9

(4) Subsections 212(3) and (4) of the Act are replaced by the following:

Presumption

(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).

Offence in relation to prostitution of a person under the age of eighteen years

(4) Every person who, in any place, obtains or attempts to obtain, for consideration, the sexual services of a person who is under the age of eighteen years or who that person believes is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Presumption

(5) For the purposes of subsection (4), evidence that the person from whom the sexual services were obtained or attempted to be obtained was represented to the accused as being under the age of eighteen years is, in the absence of evidence to the contrary, proof that the accused believed, at the time the offence was alleged to have been committed, that the person was under the age of eighteen years.

3. Section 231 of the Act is amended by adding the following after subsection (5):

Criminal harassment

(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.

4. Section 264 of the Act is amended by adding the following after subsection (3):

Factors to be considered

(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened

    (a) the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810 or 810.1; or

    (b) the terms or conditions of any other order or recognizance made or entered into under the common law or a provision of this or any other Act of Parliament or of a province that is similar in effect to an order or recognizance referred to in paragraph (a).

Reasons

(5) Where the court is satisfied of the existence of an aggravating factor referred to in subsection (4), but decides not to give effect to it for sentencing purposes, the court shall give reasons for its decision.

5. Section 268 of the Act is amended by adding the following after subsection (2):

Excision

(3) For greater certainty, in this section, ``wounds'' or ``maims'' includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where

    (a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or

    (b) the person is at least eighteen years of age and there is no resulting bodily harm.

Consent

(4) For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).

1992, c. 21, s. 9

6. (1) Subsection 486(2.1) of the Act is replaced by the following:

Testimony outside court room

(2.1) Notwithstanding section 650, where an accused is charged with 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 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) Section 486 of the Act is amended by adding the following after subsection (2.1):

Same procedure for opinion

(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) 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.

R.S., c. 19 (3rd Supp.), s. 14(1)

(3) Subsection 486(2.2) of the Act is replaced by the following:

Condition of exclusion

(2.2) A complainant or witness shall not testify outside the court room pursuant to subsection (2.1) 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 other witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.

R.S., c. 23 (4th Supp.), s. 1

(4) Subsection 486(3) of the Act is replaced by the following:

Order restricting publication

(3) Subject to subsection (4), where an accused is charged with

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

    (b) 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

    (c) 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,

the presiding judge or justice may make an order directing that the identity of the complainant or of 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.

Limitation

(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.

R.S., c. 19 (3rd Supp.), s. 16

7. Section 715.1 of the Act is replaced by the following:

Evidence of complainant or witness

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.

Coming into force

8. This Act or any provision thereof, or any provision of the Criminal Code as amended or enacted by this Act, comes into force on a day or days to be fixed by order of the Governor in Council.

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