BILL C 27. (An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation)

Transcription

1 BILL C-27 Carol Snell, Q.C. Director of Special Projects Public Prosecution Branch Saskatchewan Justice 3rdFloor, 1874 Scarth St. Regina, Sask. S4P3V7 Ph: ( Fax: (

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3 BILL C 27 1 (An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation PREAMBLE WHEREAS: the Parliament ofcanada has grave concerns regarding violence against women and children and, in particular, child prostitution, criminal harassment and female genital mutilation children, by virtue oftheir lack ofmaturity, are more vulnerable than adults to danger, exploitation andabuse andare in greater need of protection the 9th U.N. Congress on the Prevention ofcrime andthe Treatment ofoffenders (Cairo, 1995 urged Member States to adopt measures to prevent, prohibit, eliminate andimpose effective sanctions against practices harmful to women andchildren the U. N. Declaration on the Elimination of Violence against Women (General Assembly resolution 48/104, 20 December 1993 and the Platform for Action ofthe Fourth World Conference on Women (Beijing, 1995 recognize that violence against women both violates, and impairs or nullifies, the enjoyment by women oftheir human rights and fundamental freedoms the Parliament ofcanada has grave concerns regarding the prostitution ofchildren, whether in oroutside Canada

4 by ratifying the U.N. Convention on the Rights of the Child, Canada has undertaken to protect children from all forms ofsexual exploitation andsexual abuse, and to take measures to prevent the exploitative use of children in prostitution or other unlawful sexual practices 2 a strong statement denouncing the exploitation ofchildren involved in prostitution, in particular by their procurers, should be sent to the general public and, in particular, to persons involved in the administration ofjustice 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 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 Commentary: This Preamble is almost as long as the substantive provisions of the Bill. The reference to those involved in the administration of justice not appreciating the seriousness of child prostitution is presumably directed at the police and the Crowns although it may be an attempt to nudge judges into giving more significant peonalties in these cases as well. The reference to the educative effect of the criminal law with respect to the enactment of the offence regarding female genital mutilation is unusual. Presumably this was inserted because the advice the federal government received about whether or not they should enact an offence relating to the practice of female genital mutilation was that it wasn't necessary as it is already a criminal offence.

5 \ tj 3 CHILD SEX TOURISM s. 7(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 , 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 ora permanent resident within the meaning of the Immigration Act. (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 , 170, 171, or 173 shall be instituted in Canada only ifa request to that effect to the Minister ofjustice Canada is made by : (a any consular officer or diplomatic agent accredited to Canda by the state where the offence has been committed; or (b any minister of that state communicating with the Minster through the diplomatic representative of Canada accredited to that state (4.3 Proceedings referred to in subsection (4.2 may only be instituted with the consentof the Attorney General. Commentary: This creates territorial jurisdiction for Canada to prosecute for child prostitution offences committed outside Canada. This is what they call the "sex tourism" part of the Bill. Section 214(4 is the offence of attempting to obtain, or obtaining the sexual services, for consideration, of a person under 18. Originally this was the only offence covered in this provision. However, the Standing Committee on Justice and Legal Affairs reported to the House with an amendment to this provision to make it applicable to all child sexual abuse offences. Since the list of offences in subsection (4.2 includes all the offences 1ther than s. 212(4, for offences other than sex tourism it must be at 'he request of the jurisdiction where the offence occurred, and with the

6 4 consent of the Attorney General. While the feders'l officials are of the view that this means the provincial Attorney General based on the definition of Attorney General in s. 2, this may not be entirely clear. PROSTITUTION s. 212(1(b and (c and (f are amended to provide: (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 (f on the arrival ofa 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 Commentary: The amendments here are to remove the words "or a person of known immoral character" after "prostitute" in (b and the words "or house of assignation" after "bawdy-house" in (b,(c and (f. CHILD PROSTITUTION s. 212 (2.1 Notwithstanding paragraph (1(j and subsection (2, every person who lives wholly or in part on the avails ofprostitution ofanother person under the age of eighteen years, and who (a for the purposes ofprofit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with anyperson orgenerally, and (b uses, threatens to use orattempts to use violence, intimidation or coercion in relation to the person under that age,

7 ~ is guilty ofan indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years. 5 Commentary: Subsection 212(2 creates the offence of living off the avails of an under eighteen year old prostitute as a purely indictable offence carrying a maximum penalty of fourteen years. This creates an aggravated offence of living off the avails of a juvenile prostitute where the accused, for profit, aids, abets, counsels or compels the young person to engage in prostitution, and. uses or threatens violence or uses intimidation or coercion in relation to the young person. This offence carries a minimum penalty of five years, with a maximum of fourteen years. s.212(3 Evidence that a person lives with or is habitually in the company ofa 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 ofparagraph (1(j and subsections (2 ami. (2.1. Commentary: The amendment here is simply to add the underlined words so that the presumption applies to charges under the new aggravated living off th~ avails of child prostitution offence. s.212(4 Every person who, in anyplace, obtains or attempts to obtain, for consideration, the sexual services ofa person who is under the age of eighteen years or who that person believes ;s under the age of eighteen years is guilty ofan indictable offence and liable to imprisonment for a term not exceeding five years. Commentary: This section is amended by adding the underlined words. The intent is to facilitate "sting" operations where the police can use undercover officers. Presently, as the officers will all be over ighteen, undercover operations targeting the customers of child

8 6 prostitutes cannot be used. s.212(5 For the purposes ofsubsection (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 ofeighteen 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. Commentary: This is a new provision and is intended to work with the amendment to (4 above to enable a successful prosecution on the basis of the belief of the accused that the prostitute was under eighteen if the undercover operator represents him/herself as being under eighteen. MURDER s. 231(6.Irrespective of whether a murder is plannedand deliberate on the part ofany 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 ofthe person murdered or the safety ofanyone known to the person murdered. Commentary: An intentional killing will now be classified as first degree if the person who caused the death was committing or attempting to commit the offence of criminal harassment, but the accused must also have intended to cause the victim to fear for their own safety or the safety of someone known to them. You will recall that the offence of criminal harassment only requires knowledge that the behaviour causes harassment, or recklessness as to whether a person is harassed and that the victim is caused to reasonably fear for their safety or the safety of someone known to them. In order for this section to apply to raise a second degree murder to first degree, the harassment must be proved to have been done witb...lb.e..in that the /

9 victim fear for their safety or the safety of someone known to them. That is, it cannot only have been done recklessly or simply to annoy the victim. 7 SENTENCING ON CRIMINAL HARASSMENT CONVICTIONS s. 264(4 Where a person is convicted ofan 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 ofan order made pursuant to section 161 ora recognizance entered into pursuant to section 810 or ; or (b the terms or conditions ofany other order or recognizance made or entered into under the common law ora provision of this or any otheract of Parliament ora province that is similar in effect to an order or recognizance referred to in paragraph (a.. I (5 Where the court is satisfied of the existence ofan 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. Commentary: This provision requires the sentencing court to consider. it an aggravating factor that the criminal harassment occurred in the face of a court order such as a non-attendance order made under s. 161 or a peace bond under either s. 810 or (sexual offences. Paragraph (b is intended to include common law peace bonds which are used in other provinces as well as any orders of a similar nature. In particular, in Saskatchewan, an order under the Victims ofdomestic Violence Actwould be one source of an order that would qualify to create the aggravating factor. If the court determines that it will not increase the sentence despite the aggravating factor, it must provide its reasons for that determination. As with all aggravating factors, the Crown will have the onus of establishing that factor beyond a Jasonable doubt.

10 8 FEMALE GENITAL MUTILATION s.268(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 ofa person, except where a surgical procedure is performed, by a person duly qualified by (a 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 orfunction, or (b the person is at least eighteen years ofage and there is no resulting bodily harm (4 For the purposes ofthis 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 ofa person is valid, except in the cases described in paragraphs (3(a and (b. Commentary: The amendment here adds to the definition of aggravated assault, the practice of female genital mutilation. A specific exception is created for bona fide medical procedures for the physical benefit of the patient or for adults who suffer no resulting bodily harm. Since the practice, when it occurs, is usually with the consent of the child who accepts the practices of the culture which requires the procedure, or who is coerced and therefore does not truly consent, subsection (4 makes consent invalid except in the two exceptions set out. Thus the practice is absolutely prohibited for any person under eighteen years of age.

11 PROTECTION FOR WITNESSES. 1. Testifying Behind a Screen or Outside the Courtroom 9 s. 486(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, Z , 272 or273 and the complainant oranv witness, at the time of the trial orpreliminary inquiry, is under the age ofeighteen years or is able to communicate evidence but may have difficulty doing so by reason ofa mental orphysical disability, the presiding judge orjustice, as the case may be, may order that the complainant or witness testify outside the court room or behinda screen or other device that would allow the complainant!1l witness not to see the accused, if the judge orjustice is of the opinion that the exclusion is necessary to obtain a full and candid account ofthe acts complained offrom the complainant or witness. Commentary: This section is amended to add the added words, the effect of which is to include in the offences covered child pornography and the prostitution and assault offences. Also, the amendments extend the protection of the section to witnesses who are under the age of eighteen iluhe time of testifying. os. 486(2.11 Where the judge orjustice 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 orjustice shall order that the complainant or witness testify pursuant to that subsection. Commentary: This is a new provision to cover the hearing which the judge holds to determine if the complainant or witness will be permitted to testify behind the screen or outside the courtroom. This states that during such a hearing the complainant or witness must be liven that protection if required to give evidence. Without this, the protection that the section attempts to give is lost by virtue of the

12 10 complainant or witness having to testify without the protection at the hearing to determine if the protection is necessary.. s. 486(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 orjustice and the jury to watch the testimony ofthe complainant or other witness by means ofclosed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony. Commentary: This amendment simply adds the underlined words and is a housekeeping amendment given the addition of witnesses to the protectio.n given in ss. (2.1 and ( Non-publication of Identity s.486(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, 21:i 271, 272, 273, 346 or 347. (b an offeace under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statues of Canada, 1970., as it read immediately before January 4, 1983, or (c an offence under section 146, 151, 153, 155, 157, 166 or 167of the Criminal Code, chapter C-34 of the Revised Statues of Canada 1970., as it read immediately before January 1, 1988,. the presiding judge orjustice may make an order directing that the identity of the complainant or ofa witness andany information that could disclose the identity of the complainant or witness shall notbe published in any document or broadcast in any way. (3.1 An order made under subsection (3 does not apply in respect of. the disclosure of information in the course of the administration ofiustice "'-

13 ' where it is not the purpose of the disclosure to make the information known in the communitv. 11 Commentary: The publication restriction provision is expanded to include the prostitution offences, and old sexual offences. The new limitation in (3.1 is to ensure that disclosure in the course of the administration of justice and not to make the information known in the community is not prohibited. 3. Use of Videotaped Statements as Evidence s Ln any proceedings 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, , 213, 266, 26l268, 271, 272, or273, in which the complainant or other witness was under the age ofeighteen years at the time the offence was 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 ifthe complainant or witness, while testifying, adopts the contents ofthe videotape. Commentary: The amendments, underlined, add the offences of child pornography, prostitution and assaults and makes the provision applicable to witnesses under eighteen at the time tbe...affence was committecl

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