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Current state of the Criminal Code
Related provisions of the Criminal Code of Canada are noted below, with brief
descriptions. This information comes from Martin's Annual Criminal Code, 1997
(Canada Law Book Inc., Aurora, Ontario, 1996; annotations by Edward Greenspan, Q.C.
and Justice Marc Rosenberg, Court of Appeals of Ontario). Links provided lead to online
versions of the full text of each section, available via a website at McMaster University,
(Main address of McMaster site:
Penalties for conviction under these sections are shown. Note the distinction between "indictable" and less serious "summary" offences. Maximum penalty on summary conviction is six months imprisonment or a $2,000 fine. Indictable offences, usually tried by jury, carry a range of sentences. Many sections allow Crown prosecutors to choose either summary proceedings or indictment; exceptions are noted.
Part V / Sexual Offences, Public Morals and Disorderly Conduct
150: Definitions. Defines "guardian", "theatre", and "public place" -- the
last as including "any place to which the public have access as of right or by invitation,
expressed or implied."
- Section 150.1: Consent no defence. Defines "laddered" age of consent. Lists
offences for which consent is not a defence if the complainant is under 14: sections 151,
152, 153 (1), 160 (3), 173 (2) 271, 272, and 273 (see all below). Exception made for
some offences if complainant is 12 to 14 years old and: a) accused is 12 to 16 years old; b)
is less than two years older that the complainant; and c) is not in a position of trust or
authority, and if complainant is not in a relationship of dependence with the accused. Belief
that complainant was 14 or older (or 18 or older for some offences listed above) not a
defence unless accused took "all reasonable steps" to ascertain age.
- Section 151: Sexual interference. Defines touching anyone under 14, directly
or indirectly, "for a sexual purpose" as an offence punishable on summary conviction or, as an indictable offence, by up to 10 years in prison.
- Section 152: Invitation to sexual touching. Anyone who, "for a sexual
purpose, invites counsels or incites" a person under 14 to touch him- or herself or anyone
else, directly or indirectly, is committing an offence. Penalties the same as for s. 151.
- Section 153: Sexual exploitation. Extends prohibitions in s. 152 to anyone in
position of trust or authority over a young person, or with whom a young person is in a
relationship of dependence -- and defines "young person" as anyone 14 to 18 years old. Maximum sentence: five years' imprisonment.
- Section 159: Anal intercourse. Defines anal intercourse as an offence --
except if done in private between husband and wife, or by any two consenting
persons 18 or older. "In private" is defined to exclude acts in a "public place" (defined
above) or if more than two persons take part or are present. "Consent" is nullified if it is
extorted (by various means outlined in the section), or if a court deems a person unable to
consent due to mental disability. Maximum sentence: 10 years.
This section replaced the offences of "buggery" and "gross indecency" -- both repealed --
and the exceptions to those offences enacted in Aug 1969. Annotation in Martin's Annual
Criminal Code, 1997 notes court ruling "that this section discriminates on the basis of
age contrary to s. 15 of the Charter" and says it is "therefore of no force and effect." See 17 Mar, 9 Jun & 29 Sep 95 in Criminal Code reform.
- Section 160: Bestiality. Still on the books. Subsection 3 makes incitement of anyone under 14 to commit bestiality also a crime, with a maximum sentence of 10 years.
- Section 161: Order of prohibition. Allows court to order anyone convicted of,
or discharged on probation for, any offence listed in s. 151.1 (above) with a person under
14 from "attending" places where those under 14 "can reasonably be expected to be
present," or from employment or volunteer work with people under 14. The prohibition
can be for life.
Offences Tending to Corrupt Morals
- Section 163: Corrupting morals. Prohibits creation, distribution or exposure
to public view (or possession for those purposes) of obscene material -- any item of
various listed media "or other thing whatsoever" -- and of crime comics. Includes
prohibitions on exhibition of "indecent show" or "disgusting object" (the latter ruled
"unconstitutionally vague" in 1986, and struck down). Prevents advertising of items
represented to cause abortion or miscarriage, restore virility, or cure venereal disease.
Allows limited exemption for acts that "served the public good" -- though motives are
deemed irrelevant. Maximum sentence (set out in s. 169): two years' imprisonment.
Subsection 8 defines as obscene "any publication a dominant characteristic of which is the
undue exploitation of sex, or of sex and any one or more of the following subjects,
namely, crime, horror, cruelty and violence."
Extensive annotation in Martin's Annual Criminal Code, 1997 covers interpretation of this
subsection by the Supreme Court of Canada in the Butler decision, 1992. Notes court's
creation of category of material depicting "explicit sex without violence but which subjects
people to treatment that is degrading or dehumanizing," and obligation of courts to
determine community standards of tolerance of such material "on the basis of the degree of
harm that may flow from such exposure. Harm in this context means that it predisposes
persons to act in an anti-social manner as, for example, the physical or mental mistreatment
of women by men or possibly the reverse."
- Section 163.1: Definition of "child pornography". Includes material that
"shows a person who is or is depicted as being under the age of eighteen years"
(emphasis added), or that "advocates or counsels sexual activity with a person under the
age of eighteen years that would be an offence under this Act." Creation or publication of child pornography punishable by up to 10 years in prison. Maximum sentence for simple possession (i.e., not for purpose of distribution): five years.
- Section 170: Parent or guardian procuring sexual activity. Prohibits procuring
of anyone under 18 for any sexual activity, with a third party, prohibited by the Criminal Code. Indictable offence (no summary option); maximum sentence five years if person procured is under 14, two years if 14 to 17.
- Section 171: Householder permitting sexual activity. Makes it a crime for
anyone "who has control of premises or assists in the management or control of premises" to permit their use by anyone under 18 "for the purpose of engaging in any sexual act
prohibited by this Act." Again, higher penalties (same as in s. 170) for allowing those under 14 "to resort to or be in or on" the premises for such purpose.
- Section 172: Corrupting children. Prohibits various forms of "immoral"
behaviour or "vice" endangering the morals of a child -- defined as "a person who is or
appears to be under the age of eighteen years" (emphasis added). Indictable offence punishable by up to two years in prison.
- Section 173: Indecent acts. Prohibits (but does not define) "an indecent act" in
a public place, or in any place with "intent to insult or offend". Subsection 2 makes exposure of genitals for a sexual purpose to anyone under 14 an offence. Not indictable.
- Section 179: Vagrancy.Subsection 179.1 (b) provides for conviction on vagrancy if a person "found loitering in or near a school ground, playground, public park or bathing area" has previously been convicted of any sexual offence listed in s. 150.1 (above), or under "serious personal injury" provisions as they existed before 1983 (see "Dangerous Offenders" below). Not indictable.
Part VII / Disorderly Houses, Gaming and Reputation
Many sections in this Part relate to prostitution -- which, in itself, is not illegal in Canada. But, in efforts to restrict and regulate it, almost everything surrounding prostitution -- including many aspects of the everyday, non- working lives of prostitutes -- have been criminalized. The only sections shown below are those relevant to particular Criminal Code reforms noted above.
In addition: s. 212 (1) prohibits a long list of acts defined as "procuring", as well as living "wholly or in part on the avails of prostitution of another person"; s. 212 (2) imposes stiffer penalties for living on the avails of a prostitute under 18; and s 212 (3) imposes reverse onus: anyone who "lives with or is habitually in the company of a prostitute or lives in a common bawdy- house" has to prove that he or she is not living on the avails of prostitution. Section 213 defines and prohibits the offence of "communicating" in a public place "for the purpose of engaging in prostitution". Various other sections not noted here -- as well as municipal bylaws -- are often used against prostitutes.
- Section 197: Definitions. Defines "common bawdy-house" (still) as "a place
that is kept or occupied, or resorted to by one or more persons for the purpose of
prostitution or the practice of acts of indecency." Bawdy-house offences are defined in s.
210 (not listed here).
- Section 212 (4) (subsection under "Procuring"): Prohibits obtaining, or attempting to obtain, the sexual services of a person under 18 "for consideration" (e.g., gifts, food, shelter, support, etc.). Indictable offence only; maximum sentence: five years.
Part VIII / Offences Against the Person and Reputation
Part XXIV / Dangerous Offenders
- Section 271: Sexual Assault. This and the following sections replaced offence
of "rape" in Criminal Code revision of Aug 1982. "Sexual assault" undefined; maximum
penalty 10 years' imprisonment.
- Section 272: Sexual Assault with a Weapon, Threats to a Third Party or Causing
Bodily Harm. Just as said; maximum penalty 14 years in prison.
- Section 273: Aggravated Sexual Assault. Defined as an attack in which
accused "wounds, maims, disfigures or endangers the life of the complainant." Maximum
sentence: imprisonment for life.
- Section 752: Definitions. Defines "serious personal injury offence" (criterion
for Dangerous Offender status) as: (a) an indictable offence, other than treason or murder,
involving "use or attempted use of violence against another person", or "conduct
endangering or likely to endanger the life or safety of another person or inflicting or likely
to inflict severe psychological damage upon another person" -- or (b) "an offence or attempt
to commit an offence" mentioned in section 271, 272, or 273 (see above).
Annotation in Martin's Annual Criminal Code, 1997 notes that, before amendment effective 4 Jan 1983, provision (b) above read: "an offence mentioned in section 144 (rape) or 145 (attempted rape) or an offence or an attempt to commit an offence mentioned in section 146 (sexual intercourse with a female under fourteen or between fourteen and sixteen), 149 (indecent assault on a female), 156 (indecent assault on a male) or 157 (gross indecency)." A charge of vagrancy could still be laid against anyone convicted of these offences before 4 Jan 1983.
It also notes court rulings that "The removal in December 1985 of gross indecency ... as an offence which could lead to a dangerous- offender finding, did not affect the validity of the
accused's continued detention on an order made under this Part prior to the 1985
amendment. Further his continued detention did not violate ss 9 and 12 of the Charter of
Rights." These rulings, made in 1987, were based on the case of George Milne; see
May 81 and May 82 in Criminal Code reform.
- Section 753: Application for finding. Sets out in detail the process by which a "dangerous offender" finding can be made. Criteria include "a pattern of repetitive behaviour by the offender" and "a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses."
Annotation notes court decisions in which "other evil" was deemed to extend beyond pain, injury, violence, or permanent harm, and to include "damage caused by the accused to the morals of children which could lead them to male prostitution".
Application can be made only with the consent of the provincial Attorney General, and is heard by the court without a jury. Evidence must be presented by at least two psychiatrists, one of whom may be chosen by the offender. A "dangerous offender" finding can now be appealed. Persons serving indeterminate sentences may be considered for parole after three years from date of arrest and every two years thereafter.
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