Bill C-32: An Act related to the repeal of section 159 of the Criminal Code

Criminal Code Amendment to the Act Consequential Amendments to the Act Other Consequential Amendments Corrections and Conditional Release Act Youth Criminal Justice Act Explanatory Notes First Session, Forty-second Parliament, 64-65 Elizabeth II, 2015-2016 HOUSE OF COMMONS OF CANADA BILL C-32 An Act related to the repeal of section 159 of the Criminal Code FIRST READING, November 15, 2016 MINISTER OF JUSTICE 90820 SUMMARY This enactment amends the Criminal Code to repeal section 159 and to provide that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid. It also makes consequential amendments to that Act, the Corrections and Conditional Release Act and the Youth Criminal Justice Act. Available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca 1st Session, 42nd Parliament, 64-65 Elizabeth II, 2015-2016 HOUSE OF COMMONS OF CANADA BILL C-32 An Act related to the repeal of section 159 of the Criminal Code Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.‍S.‍, c. C-46 Criminal Code Amendment to the Act R.‍S.‍, c. 9 (3rd Supp.‍), s. 3 1 Section 159 of the Criminal Code is repealed. Consequential Amendments to the Act 2001, c. 27, s. 244; 2012, c. 1, s. 10; 2014, c. 25, s. 3 2 Subsection 7(4.‍1) of the Act is replaced by the following: Offence in relation to sexual offences against children (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 or 155, subsection 160(2) or (3), section 163.‍1, 170, 171, 171.‍1, 172.‍1, 172.‍2 or 173 or subsection 286.‍1(2) shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. R.‍S.‍, c. 19 (3rd Supp.‍), s. 1; 2014, c. 25, s. 4 3 Subsection 150.‍1(5) of the Act is replaced by the following: Idem (5) It is not a defence to a charge under section 153, 170, 171 or 172 or subsection 286.‍1(2), 286.‍2(2) or 286.‍3(2) that the accused believed that the complainant was eighteen years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant. 4 The Act is amended by adding the following after section 155: Historical offences 156 No person shall be convicted of any sexual offence under this Act as it read from time to time before January 4, 1983 unless the conduct alleged would be an offence under this Act if it occurred on the day on which the charge was laid. 2005, c. 32, s. 5(2); 2012, c. 1, s. 16(2); 2014, c. 25, s. 5(1) 5 Paragraph 161(1.‍1)‍(a) of the Act is replaced by the following: (a) an offence under section 151, 152 or 155, subsection 160(2) or (3), section 163.‍1, 170, 171, 171.‍1, 172.‍1 or 172.‍2, subsection 173(2), section 271, 272, 273 or 279.‍011, subsection 279.‍02(2) or 279.‍03(2), section 280 or 281 or subsection 286.‍1(2), 286.‍2(2) or 286.‍3(2); 1993, c. 45, s. 3 6 Paragraph 273.‍3(1)‍(c) of the Act is replaced by the following: (c) under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 155, subsection 160(2) or section 170, 171, 267, 268, 269, 271, 272 or 273 in respect of that person; or R.‍S.‍, c. 19 (3rd Supp.‍), s. 11; 2002, c. 13, s. 12; 2014, c. 25, s. 16 7 Sections 274 and 275 of the Act are replaced by the following: Corroboration not required 274 If an accused is charged with an offence under section 151, 152, 153, 153.‍1, 155, 160, 170, 171, 172, 173, 271, 272, 273, 286.‍1, 286.‍2 or 286.‍3, 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. 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 and 155, subsections 160(2) and (3) and sections 170, 171, 172, 173, 271, 272 and 273. 2002, c. 13, s. 13 8 The portion of subsection 276(1) of the Act before paragraph (a) is replaced by the following: Evidence of complainant’s sexual activity 276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.‍1 or 155, 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 2002, c. 13, s. 14 9 Section 277 of the Act is replaced by the following: Reputation evidence 277 In proceedings in respect of an offence under section 151, 152, 153, 153.‍1 or 155, 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. 1998, c. 9, s. 3; 2014, c. 25, s. 17(2) 10 Paragraph 278.‍2(1)‍(a) of the Act is replaced by the following: (a) an offence under section 151, 152, 153, 153.‍1, 155, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.‍01, 279.‍011, 279.‍02, 279.‍03, 286.‍1, 286.‍2 or 286.‍3; or 2010, c. 3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21 11 Subsection 486(3) of the Act is replaced by the following: Reasons to be stated (3) If an accused is charged with an offence under section 151, 152, 153, 153.‍1 or 155, subsection 160(2) or (3) or section 163.‍1, 170, 171, 171.‍1, 172, 172.‍1, 172.‍2, 173, 271, 272, 273, 279.‍01, 279.‍011, 279.‍02, 279.‍03, 286.‍1, 286.‍2 or 286.‍3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order. 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, s. 22(1) 12 Subparagraph 486.‍4(1)‍(a)‍(i) of the Act is replaced by the following: (i) an offence under section 151, 152, 153, 153.‍1, 155, 160, 162, 163.‍1, 170, 171, 171.‍1, 172, 172.‍1, 172.‍2, 173, 210, 211, 213, 271, 272, 273, 279.‍01, 279.‍011, 279.‍02, 279.‍03, 280, 281, 286.‍1, 286.‍2, 286.‍3, 346 or 347, or 2002, c. 13, s. 81(1); 2008, c. 6, par. 54(j); 2012, c. 1, s. 37(1); 2014, c. 25, s. 31 13 Subsection 810.‍1(1) of the Act is replaced by the following: Where fear of sexual offence 810.‍1 (1) Any person who fears on reasonable grounds that another person will commit an offence under section 151 or 152, subsection 153(1), section 155, subsection 160(2) or (3), section 163.‍1, 170, 171, 171.‍1, 172.‍1 or 172.‍2, subsection 173(2), section 271, 272, 273 or 279.‍011, subsection 279.‍02(2) or 279.‍03(2), section 280 or 281 or subsection 286.‍1(2), 286.‍2(2) or 286.‍3(2), in respect of one or more persons who are under the age of 16 years, may lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named. Other Consequential Amendments 1992, c. 20 Corrections and Conditional Release Act 1995, c. 42, s. 44(7) 14 Subparagraph (b)‍(ii) of the definition sexual offence involving a child in subsection 129(9) of the Corrections and Conditional Release Act is repealed. 15 Paragraph 1(i) of Schedule I to the Act is repealed. 2002, c. 1 Youth Criminal Justice Act 16 Paragraph 1(g) of the schedule to the Youth Criminal Justice Act is repealed. Published under authority of the Speaker of the House of Commons EXPLANATORY NOTES Criminal Code Clause 1: Existing text of section 159: 159 (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction. (2) Subsection (1) does not apply to any act engaged in, in private, between (a) husband and wife, or (b) any two persons, each of whom is eighteen years of age or more, both of whom consent to the act. (3) For the purposes of subsection (2), (a) an act shall be deemed not to have been engaged in in private if it is engaged in in a public place or if more than two persons take part or are present; and (b) a person shall be deemed not to consent to an act (i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations respecting the nature and quality of the act, or (ii) if the court is satisfied beyond a reasonable doubt that the person could not have consented to the act by reason of mental disability. Clause 2: Existing text of subsection 7(4.‍1): (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 163.‍1, 170, 171, 171.‍1, 172.‍1, 172.‍2 or 173 or subsection 286.‍1(2) shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. Clause 3: Existing text of subsection 150.‍1(5): (5) It is not a defence to a charge under section 153, 159, 170, 171 or 172 or subsection 286.‍1(2), 286.‍2(2) or 286.‍3(2) that the accused believed that the complainant was eighteen years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant. Clause 4: New. Clause 5: Relevant portion of subsection 161(1.‍1): (1.‍1) The offences for the purpose of subsection (1) are (a) an offence under section 151, 152, 155 or 159, subsection 160(2) or (3), section 163.‍1, 170, 171, 171.‍1, 172.‍1 or 172.‍2, subsection 173(2), section 271, 272, 273 or 279.‍011, subsection 279.‍02(2) or 279.‍03(2), section 280 or 281 or subsection 286.‍1(2), 286.‍2(2) or 286.‍3(2); Clause 6: Relevant portion of subsection 273.‍3(1): 273.‍3 (1) No person shall do anything for the purpose of removing from Canada a person who is ordinarily resident in Canada and who is .‍.‍.  (c) under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 155 or 159, subsection 160(2) or section 170, 171, 267, 268, 269, 271, 272 or 273 in respect of that person; or Clause 7: Existing text of sections 274 and 275: 274 If an accused is charged with an offence under section 151, 152, 153, 153.‍1, 155, 159, 160, 170, 171, 172, 173, 271, 272, 273, 286.‍1, 286.‍2 or 286.‍3, 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. 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. Clause 8: Relevant portion of subsection 276(1): 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 Clause 9: Existing text of section 277: 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. Clause 10: Relevant portion of subsection 278.‍2(1): 278.‍2 (1) Except in accordance with sections 278.‍3 to 278.‍91, no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: (a) an offence under section 151, 152, 153, 153.‍1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.‍01, 279.‍011, 279.‍02, 279.‍03, 286.‍1, 286.‍2 or 286.‍3; or Clause 11: Existing text of subsection 486(3): (3) If an accused is charged with an offence under section 151, 152, 153, 153.‍1, 155 or 159, subsection 160(2) or (3) or section 163.‍1, 170, 171, 171.‍1, 172, 172.‍1, 172.‍2, 173, 271, 272, 273, 279.‍01, 279.‍011, 279.‍02, 279.‍03, 286.‍1, 286.‍2 or 286.‍3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order. Clause 12: Relevant portion of subsection 486.‍4(1): 486.‍4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.‍1, 155, 159, 160, 162, 163.‍1, 170, 171, 171.‍1, 172, 172.‍1, 172.‍2, 173, 210, 211, 213, 271, 272, 273, 279.‍01, 279.‍011, 279.‍02, 279.‍03, 280, 281, 286.‍1, 286.‍2, 286.‍3, 346 or 347, or Clause 13: Existing text of subsection 810.‍1(1): 810.‍1 (1) Any person who fears on reasonable grounds that another person will commit an offence under section 151 or 152, subsection 153(1), section 155 or 159, subsection 160(2) or (3), section 163.‍1, 170, 171, 171.‍1, 172.‍1 or 172.‍2, subsection 173(2), section 271, 272, 273 or 279.‍011, subsection 279.‍02(2) or 279.‍03(2), section 280 or 281 or subsection 286.‍1(2), 286.‍2(2) or 286.‍3(2), in respect of one or more persons who are under the age of 16 years, may lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named. Corrections and Conditional Release Act Clause 14: Relevant portion of the definition: sexual offence involving a child means .‍.‍.  (b) an offence under any of the following provisions of the Criminal Code involving a person under the age of eighteen years that was prosecuted by way of indictment, namely, .‍.‍.  (ii) section 159 (anal intercourse),