EXTRA Vol. 149, No. 3
OTTAWA, FRIDAY, JULY 17, 2015
SI/2015-68 July 17, 2015
TOUGHER PENALTIES FOR CHILD PREDATORS ACT
Order Fixing the Day on which this Order is registered as the Day on which Certain Sections of the Act Come into Force
P.C. 2015-1074 July 16, 2015
His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 34 of the Tougher Penalties for Child Predators Act, chapter 23 of the Statutes of Canada, 2015, fixes the day on which this Order is registered as the day on which sections 2 to 19 of that Act come into force.
(This note is not part of the Order.)
This Order stipulates that the amendments to the Criminal Code made by the Tougher Penalties for Child Predators Act, assented to on June 18, 2015, will come into force upon registration.
The Tougher Penalties for Child Predators Act (the Act), formerly Bill C-26, contains amendments to the Criminal Code, the Canada Evidence Act, and the Sex Offender Information Registration Act, and enacts the High Risk Child Sex Offender Database Act.
More specifically, the Act amends the Criminal Code to
- increase mandatory minimum penalties and maximum penalties for certain sexual offences against children;
- increase maximum penalties for violations of prohibition orders, probation orders and peace bonds;
- clarify and codify the rules regarding the imposition of consecutive and concurrent sentences;
- require courts to impose, in certain cases, consecutive sentences on offenders who commit sexual offences against children; and
- ensure that evidence that the offence in question was committed while the offender was subject to a conditional sentence order or released on parole, statutory release or unescorted temporary absence will be considered an aggravating factor for sentencing purposes.
Under the Canada Evidence Act and the common law, the spouse of a person accused of most offences cannot testify for the prosecution. Statutory exceptions to these rules exist in the Canada Evidence Act and permit spousal testimony for most child sexual offences and offences of violence against young persons, but not for child pornography offences. The Act amends the Canada Evidence Act to ensure that spouses of the accused are competent and compellable witnesses for the prosecution in child pornography cases.
The following parts of the Bill, which fall under the responsibility of Public Safety Canada, are expected to come into force at a later date and are not the subject of this Order.
- Amendments to the Sex Offender Information Registration Act to require registered sex offenders to provide more information regarding their travel abroad to enhance accountability of sex offenders who travel outside Canada and facilitate information sharing with police in foreign jurisdictions, where appropriate. The amendments also permit information sharing on registered sex offenders between officials responsible for the National Sex Offender Registry and the Canada Border Services Agency to ensure that they are alerted to travelling high-risk child sex offenders upon their return to Canada, and enable police to verify compliance with reporting obligations and take any required follow-up action.
- The creation of the High Risk Child Sex Offender Database Act, which would authorize the Royal Canadian Mounted Police to establish and administer a publicly accessible database of high-risk child sex offenders.
The objective of the amendments to the Criminal Code is to ensure that penalties for child sexual offences better reflect the serious nature of these offences and hold all child sex offenders fully accountable for all acts of child sexual exploitation and abuse.
The 2011 Speech from the Throne committed the Government to end sentence discounts for multiple child sexual offences and child pornography offences. On February 4, 2013, the Minister of Justice announced that the Government would bring forward legislation to further toughen penalties for child sexual offences. This was reiterated in the 2013 Speech from the Throne. The protection of children against sexual exploitation has been a key component of the Government’s commitment to tackle violent crime, and thereby enhance community safety for all Canadians.
The Act, formerly Bill C-26, received royal assent on June 18, 2015. The Act fulfils the Government’s commitment to better protect children against sexual exploitation and hold child sexual offenders accountable.
The increase in mandatory minimum penalties and maximum penalties for certain sexual offences against children builds on reforms contained in the Safe Streets and Communities Act by ensuring that child sexual offenders receive the penalties they deserve. Sentences in child sexual abuse cases must reflect society’s abhorrence of sexual violence. In such cases, longer periods of incarceration are appropriate for various reasons, including to protect the public from further violence, to send a clear message of general and specific deterrence, and to allow offenders more opportunities for rehabilitation.
Supervision orders allow judges to impose conditions on child sexual offenders or suspected child sexual offenders, for example, by prohibiting any unsupervised contact with children. Any breach of such conditions is an indicator of risk to children; therefore, holding offenders to account for such breaches would assist in protecting children from those who prey upon their vulnerability. In order to achieve this purpose, the Act increases the maximum penalty for breach of prohibition orders, probation orders and peace bonds and ensures that the commission of an offence while the offender was subject to a conditional sentence order or released on parole, statutory release or unescorted temporary absence is considered in all cases an aggravating factor for sentencing purposes.
The Act also clarifies the wording contained in the Criminal Code relating to consecutive sentences (sentences served one after the other) and concurrent sentences (sentences served at the same time) and codifies the approach of courts in situations where one of the offences was committed either while on judicial interim release or while the accused was fleeing from a peace officer.
Moreover, the Act recognizes the increasing tendency of courts to direct that a sentence for possession or making of child pornography be served consecutively to a sentence for a contact child sexual offence, in recognition of the heinous nature of sexual offending against children, especially where the child pornography material is distributed via the Internet. Furthermore, requiring child sexual offenders to serve sentences imposed for offences committed against different victims consecutively addresses the Government commitment to end “volume discounts” given to child sexual offenders sentenced at the same time for multiple child sexual offences.
The amendment in the Act to add child pornography (section 163.1) to the list of exceptions [in subsection 4(2) of the Canada Evidence Act] is no longer required given that the comprehensive spousal testimony reforms contained in former Bill C-32, the Victims Bill of Rights Act, which received royal assent on April 23, 2015, will make spouses competent and compellable to testify in all cases, not just in child pornography cases. These reforms will come into force on July 23, 2015.
The amendments to the Sex Offender Information Registration Act aim at curtailing child sex tourism, and the High Risk Child Sex Offender Database Act establishes a new publicly accessible database of high-risk child sex offenders who have been the subject of a public notification in a provincial/territorial jurisdiction.
Once the legislation is in force, maximum and minimum penalties for certain child sexual offences will be increased, as well as the maximum penalties for breaches of prohibition orders, probation orders and peace bonds.
Courts will be required to impose consecutive sentences when offenders are sentenced at the same time for a child pornography offence and a contact child sexual offence; or when offenders are sentenced at the same time for contact child sexual offences committed against multiple victims.
Although there were no specific consultations with respect to this Act, it is expected that the provinces and territories will welcome the strengthening of penalties for child sexual offences through mandatory consecutive sentences and increased maximum and mandatory minimum penalties. As has recently been the case with similar legislation, some may express concern about the cost implications for correctional institutions.
These reforms will be complemented by non-legislative measures. For instance, the Government will continue to support efforts by the Canadian Centre for Child Protection to deliver its education awareness initiative for school-aged children and parents on child sexual abuse and exploitation across the country.
Public Safety Canada will seek to have the amendments to the Sex Offender Information Registration Act and the creation of the High Risk Child Sex Offender Database Act come into force on a day or days to be fixed at a later date by order of the Governor in Council.
In developing various aspects of the legislation, consultations were held at the federal level with partners such as the Department of Public Safety, the Department of Foreign Affairs, Trade and Development, and the Canada Border Services Agency.
Discussions were held over the past several years with the provinces and territories on the issue of penalties for child sexual offences and child pornography.
Criminal Law Policy Section
Department of Justice Canada
Acting Senior Counsel
Criminal Law Policy Section
Department of Justice Canada