Criminal Law Amendment Act, 2001 (S.C. 2002, c. 13)
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Assented to 2002-06-04
Criminal Law Amendment Act, 2001
S.C. 2002, c. 13
Assented to 2002-06-04
An Act to amend the Criminal Code and to amend other Acts
SUMMARY
This enactment amends the Criminal Code by
(a) adding offences and other measures that provide additional protection to children from sexual exploitation, including sexual exploitation involving use of the Internet;
(b) increasing the maximum penalty for criminal harassment;
(c) making home invasions an aggravating circumstance for sentencing purposes;
(d) creating an offence of disarming, or attempting to disarm, a peace officer;
(e) codifying and clarifying the review process for applications to the Minister of Justice with respect to allegations of miscarriage of justice; and
(f) reforming and modernizing criminal procedure with respect to
(i) procedural aspects of preliminary inquiries,
(ii) the disclosure of expert evidence,
(iii) rules of court in relation to case management and preliminary inquiries,
(iv) electronic documents and remote appearances,
(v) a plea comprehension inquiry scheme,
(vi) private prosecutions,
(vii) the selection of alternate jurors, and
(viii) restriction on the use of agents.
This enactment also amends the following Acts:
(a) the National Capital Act, by increasing the maximum fine available; and
(b) the National Defence Act, by providing for fingerprinting.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Criminal Law Amendment Act, 2001.
R.S., c. C-46CRIMINAL CODE
2. The Criminal Code is amended by adding the following before section 4:
Marginal note:Effect of judicial acts
3.1 Unless otherwise provided or ordered, anything done by a court, justice or judge is effective from the moment it is done, whether or not it is reduced to writing.
Marginal note:1999, c. 35, s. 11
3. (1) Paragraph 7(2.31)(b) of the English version of the Act is replaced by the following:
(b) is committed on or in relation to, or damages, a flight element provided by Canada.
Marginal note:1997, c. 16, s. 1
(2) Subsections 7(4.2) and (4.3) of the Act are replaced by the following:
Marginal note:Consent of Attorney General
(4.3) Proceedings with respect to an act or omission deemed to have been committed in Canada under subsection (4.1) may only be instituted with the consent of the Attorney General.
Marginal note:1999, c. 31, s. 67
4. (1) The portion of subsection 161(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Order of prohibition
161. (1) If 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) Subsection 161(1) of the Act is amended by striking out the word “or” at the end of paragraph (a), by adding the word “or” at the end of paragraph (b) and by adding the following after paragraph (b):
(c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of fourteen years.
Marginal note:1993, c. 46, s. 2
5. (1) The portion of paragraph 163.1(1)(a) of the French version of the Act before subparagraph (i) is replaced by the following:
a) de toute représentation photographique, filmée, vidéo ou autre, réalisée ou non par des moyens mécaniques ou électroniques :
Marginal note:1993, c. 46, s. 2
(2) The portion of subsection 163.1(3) of the Act before paragraph (a) is replaced by the following:
Marginal note:Distribution, etc. of child pornography
(3) Every person who transmits, makes available, distributes, sells, imports, exports or possesses for the purpose of transmission, making available, distribution, sale or exportation any child pornography is guilty of
(3) Section 163.1 of the Act is amended by adding the following after subsection (4):
Marginal note:Accessing child pornography
(4.1) Every person who accesses any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
Marginal note:Interpretation
(4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.
Marginal note:1993, c. 46, s. 2
(4) Subsections 163.1(6) and (7) of the Act are replaced by the following:
Marginal note:Defences
(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.
Marginal note:Other provisions to apply
(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).
Marginal note:1993, s. 46, s. 3(2)
6. Subsection 164(4) of the Act is replaced by the following:
Marginal note:Order of forfeiture
(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.
7. The Act is amended by adding the following after section 164:
Marginal note:Warrant of seizure
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
(a) give an electronic copy of the material to the court;
(b) ensure that the material is no longer stored on and made available through the computer system; and
(c) provide the information necessary to identify and locate the person who posted the material.
Marginal note:Notice to person who posted the material
(2) Within a reasonable time after receiving the information referred to in paragraph (1)(c), the judge shall cause notice to be given to the person who posted the material, giving that person the opportunity to appear and be represented before the court, and show cause why the material should not be deleted. If the person cannot be identified or located or does not reside in Canada, the judge may order the custodian of the computer system to post the text of the notice at the location where the material was previously stored and made available, until the time set for the appearance.
Marginal note:Person who posted the material may appear
(3) The person who posted the material may appear and be represented in the proceedings in order to oppose the making of an order under subsection (5).
Marginal note:Non-appearance
(4) If the person who posted the material does not appear for the proceedings, the court may proceed ex parte to hear and determine the proceedings in the absence of the person as fully and effectually as if the person had appeared.
Marginal note:Order
(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.
Marginal note:Destruction of copy
(6) When the court makes the order for the deletion of the material, it may order the destruction of the electronic copy in the court’s possession.
Marginal note:Return of material
(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).
Marginal note:Other provisions to apply
(8) Subsections 164(6) to (8) apply, with any modifications that the circumstances require, to this section.
Marginal note:When order takes effect
(9) No order made under subsections (5) to (7) takes effect until the time for final appeal has expired.
Marginal note:Forfeiture of things used for child pornography
164.2 (1) On application of the Attorney General, a court that convicts a person of an offence under section 163.1, in addition to any other punishment that it may impose, may order that any thing — 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
(a) was used in the commission of the offence; and
(b) is the property of
(i) the convicted person or another person who was a party to the offence, or
(ii) a person who acquired the thing from a person referred to in subparagraph (i) under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture.
Marginal note:Third party rights
(2) Before making an order under subsection (1), the court shall cause notice to be given to, and may hear, any person whom it considers to have an interest in the thing, and may declare the nature and extent of the person’s interest in it.
Marginal note:Right of appeal — third party
(3) A person who was heard in response to a notice given under subsection (2) may appeal to the court of appeal against an order made under subsection (1).
Marginal note:Right of appeal — Attorney General
(4) The Attorney General may appeal to the court of appeal against the refusal of a court to make an order under subsection (1).
Marginal note:Application of Part XXI
(5) Part XXI applies, with any modifications that the circumstances require, with respect to the procedure for an appeal under subsections (3) and (4).
Marginal note:Relief from forfeiture
164.3 (1) Within thirty days after an order under subsection 164.2(1) is made, a person who claims an interest in the thing forfeited may apply in writing to a judge for an order under subsection (4).
Marginal note:Hearing of application
(2) The judge shall fix a day — not less than thirty days after the application is made — for its hearing.
Marginal note:Notice to Attorney General
(3) At least fifteen days before the hearing, the applicant shall cause notice of the application and of the hearing day to be served on the Attorney General.
Marginal note:Order
(4) The judge may make an order declaring that the applicant’s interest in the thing is not affected by the forfeiture and declaring the nature and extent of the interest if the judge is satisfied that the applicant
(a) was not a party to the offence; and
(b) did not acquire the thing from a person who was a party to the offence under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture.
Marginal note:Appeal to court of appeal
(5) A person referred to in subsection (4) or the Attorney General may appeal to the court of appeal against an order made under that subsection. Part XXI applies, with any modifications that the circumstances require, with respect to the procedure for an appeal under this subsection.
Marginal note:Powers of Attorney General
(6) On application by a person who obtained an order under subsection (4), made after the expiration of the time allowed for an appeal against the order and, if an appeal is taken, after it has been finally disposed of, the Attorney General shall direct that
(a) the thing be returned to the person; or
(b) an amount equal to the value of the extent of the person’s interest, as declared in the order, be paid to the person.
8. The Act is amended by adding the following after section 172:
Marginal note:Luring a child
172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with
(a) a person who is, or who the accused believes is, under the age of eighteen years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155 or 163.1, subsection 212(1) or (4) or section 271, 272 or 273 with respect to that person;
(b) a person who is, or who the accused believes is, under the age of sixteen years, for the purpose of facilitating the commission of an offence under section 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of fourteen years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 281 with respect to that person.
Marginal note:Punishment
(2) Every person who commits an offence under subsection (1) is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.
Marginal note:Presumption re age
(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 eighteen years, sixteen years or fourteen 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.
Marginal note:No defence
(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 eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
9. The definition “child” in section 214 of the Act is repealed.
Marginal note:1993, c. 45, s. 2
10. Paragraph 264(3)(a) of the Act is replaced by the following:
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
11. The Act is amended by adding the following after section 270:
Marginal note:Disarming a peace officer
270.1 (1) Every one commits an offence who, without the consent of a peace officer, takes or attempts to take a weapon that is in the possession of the peace officer when the peace officer is engaged in the execution of his or her duty.
Definition of “weapon”
(2) For the purpose of subsection (1), “weapon” means any thing that is designed to be used to cause injury or death to, or to temporarily incapacitate, a person.
Marginal note:Punishment
(3) Every one who commits an offence under subsection (1) is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term of not more than eighteen months.
Marginal note:R.S., c. 19 (3rd Supp.), s. 11
12. Sections 274 and 275 of the Act are replaced by the following:
Marginal note:Corroboration not required
274. If an accused is charged with an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 212, 271, 272 or 273, no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.
Marginal note:Rules respecting recent complaint abrogated
275. The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under sections 151, 152, 153, 153.1, 155 and 159, subsections 160(2) and (3) and sections 170, 171, 172, 173, 271, 272 and 273.
Marginal note:1992, c. 38, s. 2
13. The portion of subsection 276(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Evidence of complainant’s sexual activity
276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
Marginal note:R.S., c. 19 (3rd Supp.), s. 13
14. Section 277 of the Act is replaced by the following:
Marginal note:Reputation evidence
277. In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.
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