Bill C-270: An Act to amend the Criminal Code (pornographic material)

Short Title Short title 1 This Act may be cited as the Stopping Internet Sexual Exploitation Act . R.S., c. C-46 Criminal Code 2 The Criminal Code is amended by adding the following after section 172.1: Making and Distributing Pornographic Material Definitions 172.11 (1) The following definitions apply in this section and sections 172.12 and 172.13. consent  means the voluntary agreement, in writing, of the person whose image is depicted in the pornographic material to their image being so depicted. ( consentement ) pornographic material  means a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (a) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity; or (b) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person. ( matériel pornographique ) Offence — making pornographic material (2) Every person commits an offence who, for commercial purposes, makes pornographic material without having first ascertained that each person whose image is depicted in the material is 18 years of age or older and has given their express consent to their image being depicted. Offence — distributing pornographic material (3) Every person commits an offence who, for commercial purposes, distributes or advertises pornographic material without having first obtained from the maker of the material written confirmation that each person whose image is depicted in the material was 18 years of age or older at the time the material was made, that they gave their express consent to their image being depicted in the material and that they have not subsequently withdrawn that consent in writing. Punishment (4) Every person who commits an offence under subsection (2) or (3) is guilty of (a) an indictable offence and liable to a fine of not more than $500,000 or to a term of imprisonment of not more than two years, or to both; or (b) an offence punishable on summary conviction and liable to a fine of not more than $100,000. Evidentiary matter — commercial purpose (5) A corporation charged under subsection (2) or (3) who makes, distributes or advertises pornographic material is presumed to do so for commercial purposes unless the court is satisfied that there are reasonable grounds to believe the contrary. No defence — age verification (6) It is not a defence to a charge under subsection (2) that the accused believed that a person whose image is depicted in the pornographic material was 18 years of age or older unless the accused establishes that (a) they attempted to verify the person’s age by asking for and examining a piece of identification issued by a federal or provincial authority or a foreign government — or any other documentation prescribed by regulation — containing the person’s photograph, date of birth and signature; and (b) they believed on reasonable grounds that the documentation was authentic. Aggravating factors (7) If a person is convicted of an offence under subsection (2) or (3), the court that imposes the sentence shall consider as aggravating factors (a) the fact that the person whose image is depicted in the pornographic material was under 18 years of age at the time the material was made or did not consent to the sexual activity that is depicted in the material; and (b) the fact that the pornographic material is obscene within the meaning of subsection 163(8) or promotes hatred against an identifiable group as defined by subsection 318(4). Defence of public good (8) No person shall be convicted of an offence under subsection (2) or (3) if the act that is alleged to constitute the offence serves the public good and does not extend beyond what serves the public good. Question of fact and law, motives (9) For the purposes of subsection (8), (a) it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and (b) the motives of an accused are irrelevant. Order — maker or distributor of pornographic material 172.12 (1) When an offender is convicted, or is discharged under section 730 on the conditions prescribed in a probation order, of an offence referred to in subsection 172.11(2) or (3), the court that sentences or discharges the offender, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, may, subject to the conditions or exemptions that the court directs, make an order (a) prohibiting the offender from using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court; (b) requiring the offender to ensure that the pornographic material in relation to which the offence was committed is no longer stored on and made available through the offender’s computer system as defined in subsection 342.1(2); or (c) requiring the offender to remove or cause to be removed the material in relation to which the offence was committed from the Internet or other digital network. Duration (2) An order made under subsection (1) may be in force for any period that the court considers appropriate, including any period to which the offender is sentenced to imprisonment. Court may vary order (3) A court that makes an order under subsection (1) or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances. Offence (4) Every person who is bound by an order and who does not comply with the order is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than two years; or (b) an offence punishable on summary conviction. Regulations 172.13 The Governor in Council may, for the purposes of subsections 172.11(2) and (3), make regulations (a) prescribing the documentation that may be used to verify the age of a person and their consent to their image being depicted; and (b) respecting any records to be kept by makers of pornographic material, as well as by any person who distributes or advertises such material, and the period of time for which the records are to be kept.