Backgrounder: Safe Streets and Communities Act:
Better Protecting Children and Youth from Sexual Predators

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As part of its commitment to help ensure the safety and security of Canadians, the Government has introduced comprehensive legislation which includes proposed reforms to the Criminal Code designed to protect children from sexual predators. Recognizing that children are particularly vulnerable to sexual abuse and exploitation, the Government made a commitment to protect children from sex offenders in the June 2011 Speech from the Throne.

The proposed Safe Streets and Communities Act supports this commitment in two ways:

  • by ensuring that the penalties imposed for sexual offences against children are consistent and better reflect the heinous nature of these acts; and

  • by creating two new offences that take aim at conduct that could facilitate the sexual abuse of a child.

This legislation would amend the Criminal Code to:

1) Establish New Mandatory Minimum Penalties (see TABLE A)

New mandatory minimum penalties would be provided for seven existing offences related to child sexual exploitation and abuse:

  • sexual assault where the victim is under 16 years of age (section 271);
  • sexual assault with a weapon etc., where the victim is under 16 years of age (section 272);
  • aggravated sexual assault where the victim is under 16 years of age (section 273);
  • incest where the victim is under 16 years of age (section 155);
  • luring a child through the use of a computer (section 172.1);
  • bestiality in the presence of or involving a child under the age of 16 years (subsection 160(3)); and
  • exposure to a victim under the age of 16 years (subsection 173(2)).

The addition of mandatory minimum penalties to these offences would also have the effect of eliminating the use of conditional sentences, or house arrest, for any of these crimes.

2) Increase Existing Mandatory Minimum Penalties (see TABLE B)

The mandatory minimum penalty for nine existing offences would be increased to better reflect the serious nature of these offences, as well as to bring greater consistency in sentencing in these cases, specifically:

  • the existing mandatory minimum penalties for three child-specific offences – sexual interference (section 151), sexual touching (section 152) and sexual exploitation (section153), which carry a maximum penalty of 10 years imprisonment when proceeded on indictment, would be raised from 45 days to one year;
  • the existing mandatory minimum penalties for making and distributing child pornography (subsections 163.1(2) and (3)), which currently carry a maximum penalty of 18 months when proceeded on summary conviction (and that will be raised, see (3) below), would be raised from 90 days to 6 months;
  • the existing mandatory minimum penalties for possessing and accessing child pornography (subsections 163.1(4) and (4.1), which carry a maximum penalty of 5 years imprisonment when proceeded on indictment, would be raised from 45 days to six months; and,
  • the existing mandatory minimum penalties for the indictable offence of a parent or guardian procuring their child for illegal sexual activity (section 170), which carries a maximum penalty of 5 years where the victim is under the age of 16 years and a maximum penalty of 2 years where the victim is aged 16 or 17 years (both of which will also be raised, see (3) below), would be increased from 6 months to 1 year and from 45 days to 6 months, respectively; and,
  • the existing mandatory minimum penalties for the indictable offence of a householder permitting illegal sexual activity with a 16 or 17-year-old (paragraph 171(b)), which carries a maximum penalty of 2 years imprisonment, would be doubled from to 45 to 90 days.

3) Increase Existing Maximum Penalties (see TABLE B)

The maximum penalties for four existing child sexual exploitation offences would be increased to better reflect the particularly heinous nature of these offences:

  • the maximum penalty on summary conviction for bestiality in the presence of or by a child, would increase from 6 months to 2 years less a day (subsection 160(3));
  • the maximum penalty on summary conviction for making child pornography would increase from 18 months to 2 years less a day (subsection 163.1(2));
  • the maximum penalty on summary conviction for distributing child pornography would increase from 18 months to 2 years less a day (subsection 163.1(3)); and
  • the maximum penalty for a parent or guardian procuring their children for illegal sexual activity (indictable offence) would double from 5 to 10 years where the victim is under 16 years of age and would increase from 2 to 5 years where the victim is aged 16 or 17 years (paragraphs 170(a) and (b)).

4) Create Two New Offences (see TABLE A)

These new offences would target conduct that could facilitate or enable the commission of a sexual offence against a child. These offences would:

  • prohibit anyone from providing sexually explicit material to a child for the purpose of facilitating the commission of a sexual offence against that child. This hybrid offence would carry a mandatory minimum penalty of 30 days imprisonment and a maximum penalty of 6 months when proceeded on summary conviction, and a mandatory minimum penalty of 90 days imprisonment and a maximum penalty of 2 years when proceeded on indictment; and
  • prohibit anyone from using any means of telecommunications, including the Internet, to agree or make arrangements with another person for the purpose of committing a sexual offence against a child. This proposed hybrid offence would carry a mandatory minimum penalty of 90 days and a maximum penalty of 18 months on summary conviction, and a mandatory minimum penalty of 1 year and a maximum of 10 years when proceeded on indictment.

These two new offences would also be added to Schedule 1 of the Criminal Records Act. This would ensure that persons convicted of these new offences would be ineligible to apply for a record suspension (currently known as a pardon) for the same period of time that applies to other child sexual offences.

5) Create New Restrictions for Offenders

These reforms would also require judges to consider prohibiting suspected or convicted child sex offenders from having any unsupervised contact with a young person under the age of 16 years or from having any unsupervised use of the Internet or other digital network.

This bill also proposes coordinating amendments for the Protecting Victims from Sex Offenders Act, which came into force on April 15, 2011 (S.C. 2010, c.7).

Table A

PROPOSED NEW OFFENCES AND NEW MANDATORY MINIMUM AND MAXIMUM PENALTIES FOR SEXUAL EXPLOITATION OF CHILDREN OFFENCES
Current Maximum Penalty New proposed mandatory minimum penalties
  Offence Criminal Code Section On Summary Conviction On Indictment On Summary Conviction On Indictment
1. Incest, against a person under 16 years of age (indictable offence) 155 n/a 14 years n/a 5 years
2. New: Providing sexually explicit material to a child (hybrid offence) 171.1 n/a
(proposed:
18 months)
n/a
(proposed:
2 years)
30 days 90 days
3. Internet luring (hybrid offence) 172.1 18 months 10 years 90 days 1 year
4. New: Agreeing/making arrangements with another person, via telecommunication, to commit sexual offence against a child (hybrid offence) 172.2 n/a
(proposed:
18 months)
n/a
(proposed:
10 years)
90 days 1 year
5. Exposure 173(2) 6 months 2 years 30 days 90 days
6. Sexual assault, against a young person under 16 years of age (hybrid offence) 271 18 months 10 years 90 days 1 year
7. Sexual assault with a weapon,1 against a young person under 16 years of age (indictable offence) 272 n/a 14 years n/a 5 years
8. Aggravated sexual assault,1 against a young person under 16 years of age (indictable offence) 273 n/a life imprisonment n/a 5 years

1 There is a mandatory minimum penalty for this offence if a firearm is used (4 years) or if a restricted or prohibited firearm is used in connection with organized crime (5 years for first offence; 7 years for second or subsequent offence).

Table B

PROPOSED HIGHER MANDATORY MINIMUM AND MAXIMUM PENALTIES FOR EXISTING SEXUAL EXPLOITATION OF CHILDREN OFFENCES
  Offence Criminal Code Section On summary conviction On indictment
Current Penalty Proposed Increased Mandatory Minimum Penalty Current Penalty Proposed Increased Mandatory Minimum Penalty
1. Sexual interference (hybrid offence) 151 MMP 14 days and max. 18 months MMP 90 days MMP 45 days and max. 10 years MMP 1 year
2. Sexual touching (hybrid offence) 152 MMP 14 days and max. 18 months MMP 90 days MMP 45 days and max. 10 years MMP 1 year
3. Sexual exploitation (hybrid offence) 153 MMP 14 days and max. 18 months MMP 90 days MMP 45 days and max. 10 years MMP 1 year
4. Bestiality in the presence of or by a child 160(3) No MMP and max. 6 months MMP 6 months and max. 2 years less a day No MMP and max. 10 years MMP 1 year
5. Making child pornography 163.1(2) MMP 90 days and max. 18 months MMP 6 months and max. 2 years less a day MMP 1 year and max. 10 years (No change)
6. Distributing child pornography 163.1(3) MMP 90 days and max. 18 months MMP 6 months and max. 2 years less a day MMP 1 year and max. 10 years (No change)
7. Possession of child pornography (hybrid offence) 163.1(4) MMP 14 days and max. 18 months MMP 90 days MMP 45 days and max. 5 years MMP 6 months
8. Accessing child pornography (hybrid offence) 163.1(4.1) MMP 14 days and max. 18 months MMP 90 days MMP 45 days and max. 5 years MMP 6 months
9. Parent/guardian procuring sexual activity where victim is under 16 (indictable offence) 170(a) n/a MMP 6 months and max. 5 years MMP 1 year and max. 10 years
10. Parent/guardian procuring sexual activity where victim is 16-17 (indictable offence) 170(b) n/a MMP 45 days and max. 2 years MMP 6 months and max. 5 years
11. Householder permitting sexual activity where victim is 16-17 (indictable offence) 171(b) n/a MMP 45 days and max. 2 years MMP 90 days

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Department of Justice Canada
September 2011