Backgrounder - Safe Streets and Communities Act: Better Protection for Children and Youth from Sexual Predators

As part of its commitment to help ensure the safety and security of Canadians, the Government has implemented reforms to the Criminal Code designed to better protect children from sexual predators. Recognizing that children are particularly vulnerable to sexual abuse and exploitation, the Government committed to take action to better protect children from sexual offenders in the June 2011 Speech from the Throne.

The 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.

Children are particularly vulnerable to sexual abuse and exploitation. They represented 59 percent of all police-reported sexual assault victims in 2008. [Source: Statistics Canada, Canadian Centre for Justice Statistics, Uniform Crime Reporting (UCR2) Survey].

In 2008, 80 percent of child sexual offences were charged under the general sexual assault offence, which, prior to the enactment of Bill C-10, did not impose a mandatory minimum penalty. [Source: Statistics Canada, Canadian Centre for Justice Statistics, Uniform Crime Reporting (UCR2) Survey].

The rate of police-reported sexual offences against children rose by 3 percent between 2010 and 2011. In addition, there was a 40-percent increase in the rate of police-reported child pornography incidents, the largest increase of any Criminal Code offence in 2011. It should be noted that fluctuations in the rate of child pornography are most likely reflective of police-based programs and initiatives targeting this particular offence. [Source: Statistics Canada, Police-reported crime statistics in Canada, 2011].

This legislation amends the Criminal Code to:

1. Establish New Mandatory Minimum Penalties (see Table A)

New mandatory minimum penalties are 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 16 years of age (subsection 160(3)); and
• exposure to a victim under 16 years of age (subsection 173(2)).

The addition of mandatory minimum penalties to these offences will 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 is 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), invitation to sexual touching (section 152) and sexual exploitation (section 153), which carry a maximum penalty of 10 years imprisonment when proceeded on indictment, are 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 previously carried a maximum penalty of 18 months when proceeded on summary conviction (and that maximum is raised, see point 3 below), are raised from 90 days to six 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 five years imprisonment when proceeded on indictment, are raised from 45 days to six months;
• 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 five years where the victim is under the age of 16 years and a maximum penalty of two years where the victim is aged 16 or 17 years (both of which are  also raised, see point 3 below), is increased from six months to one year and from 45 days to six months, respectively; and
• the existing mandatory minimum penalties for the indictable offence of a householder permitting illegal sexual activity with a victim aged 16 or 17 years (paragraph 171(b)), which carries a maximum penalty of two years imprisonment, is doubled from 45 to 90 days.

3. Increase Existing Maximum Penalties (see Table B)

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

• the maximum penalty on summary conviction for bestiality in the presence of, or involving, a child increases from six months to two years less a day (subsection 160(3));
• the maximum penalty on summary conviction for making child pornography increases from 18 months to two years less a day (subsection 163.1(2));
• the maximum penalty on summary conviction for distributing child pornography increases from 18 months to two 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) doubles from five to 10 years where the victim is under 16 years of age and is increased from two to five 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 target conduct that could facilitate or enable the commission of a sexual offence against a child. These offences:

• 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 carries a mandatory minimum penalty of 30 days imprisonment and a maximum penalty of six months when proceeded on summary conviction, and a mandatory minimum penalty of 90 days imprisonment and a maximum penalty of two years when proceeded on indictment.
• 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 hybrid offence carries a mandatory minimum penalty of 90 days and a maximum penalty of 18 months on summary conviction, and a mandatory minimum penalty of one year and a maximum penalty of 10 years when proceeded on indictment.

These two new offences are also added to Schedule 1 of the Criminal Records Act. This will ensure that persons convicted of these new offences are ineligible to apply for a record suspension (previously 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 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.

Department of Justice Canada
August 2012

Table A

New Offences and New Mandatory Minimum Penalties for Sexual Exploitation of Children Offences

	Offence	Criminal Code Section	Maximum Penalty		New mandatory minimum penalties
			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	6 months	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 a sexual offence against a child (hybrid offence)	172.2	18 months	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 weapon¹ against a young person under 16 years of age (indictable offence)	272	n/a	14 years	n/a	5 years
8.	Aggravated sexual assault¹ 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

Higher Mandatory Minimum and Maximum Penalties for Existing Sexual Exploitation of Children Offences

	Offence	Criminal Code Section	On summary conviction		On indictment
			Previous Penalty	New Increased Mandatory Minimum and Maximum Penalties	Previous Penalty	New Increased Mandatory Minimum and Maximum Penalties
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.	Inivtation to 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 involving 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