Bill C-291: An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material)

R.S., c. C- 46 Criminal Code 1 (1) The portion of subsection 163.1(1) of the Criminal Code before paragraph (a) is replaced by the following: Definition of child sexual abuse and exploitation material 163.1 (1) In this section, child sexual abuse and exploitation material means (2) Subsections 163.1(2) and (3) of the Act are replaced by the following: Making child sexual abuse and exploitation material (2) Every person who makes, prints, publishes or possesses for the purpose of publication any child sexual abuse and exploitation material is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year. Distribution, etc. of child sexual abuse and exploitation material (3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child sexual abuse and exploitation material is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year. (3) The portion of subsection 163.1(4) of the Act before paragraph (a) is replaced by the following: Possession of child sexual abuse and exploitation material (4) Every person who possesses any child sexual abuse and exploitation material is guilty of (4) The portion of subsection 163.1(4.1) of the Act before paragraph (a) is replaced by the following: Accessing child sexual abuse and exploitation material (4.1) Every person who accesses any child sexual abuse and exploitation material is guilty of (5) Subsection 163.1(4.2) of the Act is replaced by the following: Interpretation (4.2) For the purposes of subsection (4.1), a person accesses child sexual abuse and exploitation material who knowingly causes child sexual abuse and exploitation material to be viewed by, or transmitted to, himself or herself. (6) Subsection 163.1(5) of the Act is replaced by the following: Defence (5) It is not a defence to a charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child sexual abuse and exploitation material was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years. 2 (1) Paragraph 164(1)(d) of the Act is replaced by the following: (d) the representation, written material or recording, copies of which are kept in premises within the jurisdiction of the court, is child sexual abuse and exploitation material as defined in section 163.1; (2) Subsections 164(3) to (5) of the Act are replaced by the following: Owner and maker may appear (3) The owner and the maker of the matter seized under subsection (1), and alleged to be obscene, child sexual abuse and exploitation material, a voyeuristic recording, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy, may appear and be represented in the proceedings to oppose the making of an order for the forfeiture of the matter. Order of forfeiture (4) If the court is satisfied, on a balance of probabilities, that the publication, representation, written material or recording referred to in subsection (1) is obscene, child sexual abuse and exploitation material, a voyeuristic recording, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy, it may make an order declaring the matter forfeited to His Majesty in right of the province in which the proceedings take place, for disposal as the Attorney General may direct. Disposal of matter (5) If the court is not satisfied that the publication, representation, written material or recording referred to in subsection (1) is obscene, child sexual abuse and exploitation material, a voyeuristic recording, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy, it shall order that the matter be restored to the person from whom it was seized without delay after the time for final appeal has expired. 3 (1) The portion of subsection 164.1(1) of the Act before paragraph (a) is replaced by the following: Warrant of seizure 164.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds to believe that there is material — namely, child sexual abuse and exploitation material as defined in section 163.1, a voyeuristic recording, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy, or computer data as defined in subsection 342.1(2) that makes child sexual abuse and exploitation material, a voyeuristic recording, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy available — that is stored on and made available through a computer system as defined in subsection 342.1(2) that is within the jurisdiction of the court, the judge may order the custodian of the computer system to (2) Subsection 164.1(5) of the Act is replaced by the following: Order (5) If the court is satisfied, on a balance of probabilities, that the material is child sexual abuse and exploitation material as defined in section 163.1, a voyeuristic recording, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy, or computer data as defined in subsection 342.1(2) that makes child sexual abuse and exploitation material, the voyeuristic recording, the intimate image, the advertisement of sexual services or the advertisement for conversion therapy available, it may order the custodian of the computer system to delete the material. (3) Subsection 164.1(7) of the Act is replaced by the following: Return of material (7) If the court is not satisfied that the material is child sexual abuse and exploitation material as defined in section 163.1, a voyeuristic recording, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy, or computer data as defined in subsection 342.1(2) that makes child sexual abuse and exploitation material, the voyeuristic recording, the intimate image, the advertisement of sexual services or the advertisement for conversion therapy available, the court shall order that the electronic copy be returned to the custodian of the computer system and terminate the order under paragraph (1)(b). 4 The portion of subsection 171.1(5) of the Act before paragraph (a) is replaced by the following: Definition of sexually explicit material (5) In subsection (1), sexually explicit material means material that is not child sexual abuse and exploitation material , as defined in subsection 163.1(1), and that is 5 Subparagraph (a)(xxix) of the definition offence in section 183 of the Act is replaced by the following: (xxix) section 163.1 (child sexual abuse and exploitation material), 6 Subsection 486.4(3) of the Act is replaced by the following: Child sexual abuse and exploitation material (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child sexual abuse and exploitation material within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. 7 Subparagraph (a)(i.8) of the definition primary designated offence in section 487.04 of the Act is replaced by the following: (i.8) section 163.1 (child sexual abuse and exploitation material), 8 Subparagraph (a)(viii) of the definition designated offence in subsection 490.011(1) of the Act is replaced by the following: (viii) section 163.1 (child sexual abuse and exploitation material), 9 Subsection 672.501(2) of the Act is replaced by the following: Order restricting publication — child sexual abuse and exploitation material (2) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in section 163.1, a Review Board shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child sexual abuse and exploitation material within the meaning of section 163.1, shall not be published in any document or broadcast or transmitted in any way. 10 Subparagraph (b)(vi) of the definition designated offence in section 752 of the Act is replaced by the following: (vi) section 163.1 (child sexual abuse and exploitation material), 11 Paragraph 753.1(2)(a) of the Act is replaced by the following: (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child sexual abuse and exploitation material), 163.1(3) (distribution, etc., of child sexual abuse and exploitation material), 163.1(4) (possession of child sexual abuse and exploitation material) or 163.1(4.1) (accessing child sexual abuse and exploitation material), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon), 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and Consequential Amendments Replacement of “child pornography” 12 Every reference to “child pornography” is replaced by a reference to “child sexual abuse and exploitation material” in the following provisions: (a) in An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service , (i) the title of the Act, (ii) sections 1 to 3, (iii) section 6, and (iv) section 9; (b) in the Corrections and Conditional Release Act , (i) subparagraph (a)(iv.1) of the definition sexual offence involving a child in subsection 129(9), and (ii) paragraph 1(j.1) of Schedule I; (c) subparagraph 1(a)(v) of Schedule 1 to the Criminal Records Act ; (d) subsection 183.5(5) of the National Defence Act , as enacted by section 28 of An Act to amend the National Defence Act and to make related and consequential amendments to other Acts , chapter 15 of the Statutes of Canada, 2019. Transitional Provision Proceedings not invalid 13 The amendments made by this Act do not affect the validity of any proceedings, brought under the Criminal Code or any other Act of Parliament, that are related to section 163.1 of the Criminal Code and are ongoing on the day on which this Act comes into force. The amendments do not affect the validity of any document related to those proceedings and any reference to “child pornography” in such a document is to be read as a reference to “child sexual abuse and exploitation material”. Coming into Force First anniversary 14 This Act comes into force on the first anniversary of the day on which it receives royal assent.