661 1961

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Amendment in this year: An Act to amend the Criminal Code, S.C. 1960-61, c. 43. Received Royal Assent 13th July, 1961.

1961
Criminal Code, S.C. 1953-54, c. 51.


INTERPRETATION.

[Definitions.]
2. In this Act,
    [...]
    ["Feeble-minded person."]
    (17) "feeble-minded person" means a person in whom there exists and has existed from birth or from an early age, mental defectiveness not amounting to imbecility, but so pronounced that he requires care, supervision and control for his protection or for the protection of others [...].


PART I.
GENERAL.

3. [...]
    [Sexual intercourse.]
    (6) For the purposes of this Act, sexual intercourse is complete upon penetration to even the slightest degree, notwithstanding that seed is not emitted.


PART IV.
SEXUAL OFFENCES, PUBLIC MORALS AND DISORDERLY CONDUCT.

INTERPRETATION.

130. In this Part,
    ["Guardian."]
    (a) "guardian" includes any person who has in law or in fact the custody or control of another person;
    ["Public place."]
    (b) "public place" includes any place to which the public have access as of right or by invitation, express or implied [...].


SPECIAL PROVISIONS.

[Corroboration.]
131. (1) No accused shall be convicted of an offence under section 140, 142, 143, 144, 145, 146 or 155 upon the evidence of only one witness unless the evidence of the witness is corroborated in a material particular by evidence that implicates the accused.
    [Marriage a defence.]
    (2) No accused shall be convicted of an offence under section 144, paragraph (b) of section 145 or section 146 where he proves that, subsequent to the time of the alleged offence, he married the person in respect of whom he is alleged to have committed the offence.
    [Burden of proof.]
    (3) In proceedings for an offence under subsection (2) of section 138 or section 143, 144 or paragraph (b) of section 145 the burden of proving that the female person in respect of whom the offence is alleged to have been committed was not of previously chaste character is upon the accused.
    [Previous sexual intercourse with accused.]
    (4) In proceedings for an offence under subsection (2) of section 138 or under section 143 or paragraph (b) of section 145, evidence that the accused had, prior to the time of the alleged offence, sexual intercourse with the female person in respect of whom the offence is alleged to have been committed shall be deemed not to be evidence that she was not of previously chaste character.

[Consent of child under fourteen no defence.]
132. Where an accused is charged with an offence under section 138, 141 or 148 in respect of a person under the age of fourteen years, the fact that the person consented to the commission of the offence is not a defence to the charge.

[Limitation.]
133. No proceedings for an offence under section 143, 144, paragraph (b) of section 145, or under section 155, 156 or 157 shall be commenced more than one year after the time when the offence is alleged to have been committed.

[Instruction to jury.]
134. Notwithstanding anything in this Act or any other Act of the Parliament of Canada, where an accused is charged with an offence under section 136, 137, subsection (1) or (2) of section 138 or subsection (1) of section 141, the judge shall, if the only evidence that implicates the accused is the evidence, given under oath, of the female person in respect of whom the offence is alleged to have been committed and that evidence is not corroborated in a material particular by evidence that implicates the accused, instruct the jury that it is not safe to find the accused guilty in the absence of such corroboration, but that they are entitled to find the accused guilty if they are satisfied beyond a reasonable doubt that her evidence is true.


SEXUAL OFFENCES.

[Rape.]
135. A male person commits rape when he has sexual intercourse with a female person who is not his wife,
    (a) without her consent, or
    (b) with her consent if the consent
        (i) is extorted by threats or fear of bodily harm
        (ii) is obtained by personating her husband, or
        (iii) is obtained by false and fraudulent representations as to the nature and quality of the act.

[Punishment for rape.]
136. Every one who commits rape is guilty of an indictable offence and is liable to imprisonment for life and to be whipped.

[Attempt to commit rape.]
137. Every one who attempts to commit rape is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.

[Sexual intercourse with female under fourteen.]
138. (1) Every male person who has sexual intercourse with a female person who
        (a) is not his wife, and
        (b) is under the age of fourteen years,
whether or not he believes that she is fourteen years of age or more, is guilty of an indictable offence and is liable to imprisonment for life and to be whipped.
    [Sexual intercourse with female between fourteen and sixteen.]
    (2) Every male person who has sexual intercourse with a female person who
        (a) is not his wife,
        (b) is of previously chaste character, and
        (c) is fourteen years of age or more and is under the age of sixteen years,
whether or not he believes that she is sixteen years of age or more, is guilty of an indictable offence and is liable to imprisonment for five years.
    [Acquittal where accused not chiefly to blame.]
    (3) Where an accused is charged with an offence under subsection (2), the court may find the accused not guilty if it is of opinion that the evidence does not show that, as between the accused and the female person, the accused is wholly or chiefly to blame.

[Age.]
139. No male person shall be deemed to commit an offence under section 136, 137, 138 or 142 while he is under the age of fourteen years.

[Sexual intercourse with feeble-minded, etc.]
140. Every male person who, under circumstances that do not amount to rape, has sexual intercourse with a female person
    (a) who is not his wife, and
    (b) who is and who he knows or has good reason to believe is feeble-minded, insane, or is an idiot or imbecile,
is guilty of an indictable offence and is liable to imprisonment for five years.

[Indecent assault on female.]
141. (1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped.
    [Consent by false representations.]
    (2) An accused who is charged with an offence under subsection (1) may be convicted if the evidence establishes that the accused did anything to the female person with her consent that, but for her consent, would have been an indecent assault, if her consent was obtained by false and fraudulent representations as to the nature and quality of the act.

[Incest.]
142. (1) Every one commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person.
    [Punishment.]
    (2) Every one who commits incest is guilty of an indictable offence and is liable to imprisonment for fourteen years, and in the case of a male person is liable, in addition, to be whipped.
    [Compulsion of female.]
    (3) Where a female person is convicted of an offence under this section and the court is satisfied that she committed the offence by reason only that she was under restraint, duress or fear of the person with whom she had the sexual intercourse, the court is not required to impose any punishment upon her.
    ["Brother." "Sister."]
    (4) In this section, "brother" and "sister", respectively, include half-brother and half-sister.

[Seduction of female between sixteen and eighteen.]
143. Every male person who, being eighteen years of age or more, seduces a female person of previously chaste character who is sixteen years or more but less than eighteen years of age is guilty of an indictable offence and is liable to imprisonment for two years.

[Seduction under promise of marriage.]
144. Every male person, being twenty-one years of age or more, who, under promise of marriage, seduces an unmarried female person of previously chaste character who is less than twenty-one years of age is guilty of an indictable offence and is liable to imprisonment for two years.

[Sexual intercourse with step-daughter, etc.]
145. (1) Every male person who
        (a) has illicit sexual intercourse with his step-daughter, foster daughter or female ward; or
        [Sexual intercourse with female employee.]
        (b) has illicit sexual intercourse with a female person of previously chaste character and under the age of twenty-one years who
            (i) is in his employment,
            (ii) is in a common, but not necessarily similar, employment with him and is, in respect of her employment or work, under or in any way subject to his control or direction, or
            (iii) receives her wages or salary directly or indirectly from him,
is guilty of an indictable offence and is liable to imprisonment for two years.
    [Acquittal where accused not chiefly to blame.]
    (2) Where an accused is charged with an offence under paragraph (b) of subsection (1), the court may find the accused not guilty if it is of opinion that the evidence does not show that, as between the accused and the female person, the accused is wholly or chiefly the blame.

[Seduction of female passengers on vessels.]
146. Every male person who, being the owner or master of, or employed on board a vessel, engaged in the carriage of passengers for hire, seduces, or by threats or by the exercise of his authority, has illicit sexual intercourse on board the vessel with a female passenger is guilty of an indictable offence and is liable to imprisonment for two years.

[Buggery or bestiality.]
147. Every one who commits buggery or bestiality is guilty of an indictable offence and is liable to imprisonment for fourteen years.

[Indecent assault on male.]
148. Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.

[Acts of gross indecency.]
149. Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years.


OFFENCES TENDING TO CORRUPT MORALS

[Parent or guardian procuring defilement.]
155. Every one who, being the parent or guardian of a female person,
    (a) procures her to have illicit sexual intercourse with a person other than the procurer, or
    (b) orders, is party to, permits or knowingly receives the avails of, the defilement, seduction or prostitution of the female person,
is guilty of an indictable offence and is liable to
    (c) imprisonment for fourteen years, if the female person is under the age of fourteen years, or
    (d) imprisonment for five years, if the female person is fourteen years of age or more.

[Householder permitting defilement.]
156. Every one who
    (a) being the owner, occupier or manager of the premises, or
    (b) having control of premises or assisting in the management or control of premises,
knowingly permits a female person under the age of eighteen years to resort to or to be in or upon the premises for the purpose of having illicit sexual intercourse with a particular male person or with male persons generally is guilty of an indictable offence and is liable to imprisonment for five years.

[Corrupting children.]
157. (1) Every one who, in the home of a child, participates in adultery or sexual immorality or indulges in habitual drunkenness or any other form of vice, and thereby endangers the morals of the child or renders the home an unfit place for the child to be in, is guilty of an indictable offence and is liable to imprisonment for two years.
    [Limitation.]
    (2) No proceedings for an offence under this section shall be commenced more than one year after the time when the offence was committed.
    ["Child."]
    (3) For the purposes of this section, "child" means a person who is or appears to be under the age of eighteen years.
    [Who may institute prosecutions.]
    (4) No proceedings shall be commenced under subsection (1) without the consent of the Attorney General, unless they are instituted by or at the instance of a recognized society for the protection of children or by an officer of a juvenile court.


DISORDERLY CONDUCT.

[Indecent acts.]
158. Every one who wilfully does an indecent act
    (a) in a public place in the presence of one or more persons, or
    (b) in any place, with intent thereby to insult or offend any person,
is guilty of an offence punishable on summary conviction.


PART V.
DISORDERLY HOUSES, GAMING AND BETTING

PROCURING

[Procuring.]
184. (1) Every one who
        (a) procures, attempts to procure or solicits a female person to have illicit sexual intercourse with another person, whether in or out of Canada
        (b) inveigles or entices a female person who is not a common prostitute or a person of known immoral character to a common bawdy-house or house of assignation for the purpose of illicit sexual intercourse or prostitution,
        (c) knowingly conceals a female person in a common bawdy-house or house of assignation,
        (d) procures or attempts to procure a female person to become, whether in or out of Canada, a common prostitute,
        (e) procures or attempts to procure a female person to leave her usual place of abode in Canada, if that place is not a common bawdy-house, with intent that she may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
        (f) on the arrival of a female person in Canada, directs or causes her to be directed, or takes or causes her to be taken, to a common bawdy-house or house of assignation,
        (g) procures a female person to enter or leave Canada, for the purpose of prostitution,
        (h) for the purposes of gain, exercises control, direction or influence over the movements of a female person in such manner as to show that he is aiding, abetting or compelling her to engage in or carry on prostitution with any person or generally,
        (i) applies or administers to a female person or causes her to take any drug, intoxicating liquor, matter, or thing with intent to stupefy or overpower her in order thereby to enable any person to have illicit sexual intercourse with her,
        (j) being a male person, lives wholly or in part on the avails of prostitution, or
        (k) being a female person, lives wholly or in part on the avails of prostitution of another female person,
is guilty of an indictable offence and is liable to imprisonment for ten years.
    [Presumption.]
    (2) Evidence that a male person lives with or is habitually in the company of prostitutes, or lives in a common bawdy-house or house of assignation is prima facie evidence that he lives on the avails of prostitution.
    [Corroboration.]
    (3) No person shall be convicted of an offence under subsection (1), other than an offence under paragraph (j) of that subsection, upon the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.
    [Limitation.]
    (4) No proceedings for an offence under this section shall be commenced more than one year after the time when the offence is alleged to have been committed.


PART VI.
OFFENCES AGAINST THE PERSON AND REPUTATION.

INTERPRETATION.

185. In this Part,
    [...]
    ["Guardian."]
    (d) "guardian" includes a person who has in law or in fact the custody or control of a child.


KIDNAPPING AND ABDUCTION.

[Abduction of female.]
234. Every who takes away or detains a female person, against her will, with intent
    (a) to marry her or to have illicit sexual intercourse with her, or
    (b) to cause her to marry or to have illicit sexual intercourse with a male person,
is guilty of an indictable offence and is liable to imprisonment for ten years.

[Abduction of female under sixteen.]
235. (1) Every one who, without lawful authority, takes or causes to be taken an unmarried female person under the age of sixteen years out of the possession of and against the will of her parent or guardian or of any other person who has lawful care or charge of her is guilty of an indictable offence and is liable to imprisonment for five years.
    (2) For the purpose of proceedings under this section it is not material whether
        [Consent immaterial.]
        (a) the female person is taken with her own consent or at her own suggestion, or
        [Belief as to age immaterial.]
        (b) the accused believes that the female person is sixteen years of age or more.


VENEREAL DISEASES.

[Venereal disease.]
239. (1) Every one who, having venereal disease in a communicable form, communicates it to another person is guilty of an offence punishable on summary conviction.
    [Defence.]
    (2) No person shall be convicted of an offence under this section where he proves that he had reasonable grounds to believe and did believe that he did not have venereal disease in a communicable form at the time the offence is alleged to have been committed.
    [Corroboration.]
    (3) No person shall be convicted of an offence under this section upon the evidence of only one witness, unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.
    ["Venereal disease."]
    (4) For the purposes of this section, "venereal disease" means syphilis, gonorrhea or soft chancre.


PART XIII.
SPECIAL PROCEDURE AND POWERS.

GENERAL POWERS OF CERTAIN OFFICIALS.

[Exclusion of public in certain cases.]
428. The trial of an accused that is a corporation or who is or appears to be sixteen years of age or more shall be held in open court, but where the court, judge, justice or magistrate, as the case may be, is of opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the court room, he may so order.


PART XVII.
PROCEDURE BY INDICTMENT.

CORROBORATION.

[Unsworn evidence of child.]
566. No person shall be convicted of an offence upon the unsworn evidence of a child unless the evidence of the child is corroborated in a material particular by evidence that implicates the accused.


PART XX.
PUNISHMENTS, FINES, FORFEITURES, COSTS AND RESTITUTION OF PROPERTY.

WHIPPING.

[Execution of sentence by whipping.]
641. (1) Where a person is liable to be sentenced to be whipped, the court may sentence him to be whipped on one, two or three occasions within the limits of the prison in which he is confined.
    [Number of strokes to be specified.]
    (2) A sentence of whipping shall specify the number of strokes to be administered on each occasion.
    [Supervision.]
    (3) A sentence of whipping shall be executed under the supervision of the prison doctor or, if he is unable to be present, it shall be executed under the supervision of a duly qualified medical practitioner to be named by the Attorney General of Canada, where the sentence is executed in a prison administered by the Government of Canada, or, where the sentence is executed in a prison administered by the government of a province, to be named by the Attorney General of that province.
    [Instrument to be used.]
    (4) The instrument to be used in the execution of a sentence of whipping shall be a cat-o-nine tails, unless some other instrument is specified in the sentence.
    [When to be used.]
    (5) A sentence of whipping shall be executed at a time to be fixed by the keeper of the prison in which it is to be executed, but, whenever practicable, a sentence of whipping shall be executed not less than ten days before the expiration of any term of imprisonment to which the convicted person has been sentenced.
    [Female not to be whipped.]
    (6) No female person shall be whipped.


PART XXI.
PREVENTIVE DETENTION.

INTERPRETATION.

659. In this Part,
    ["Court."]
    (a) "court" means
        (i) a superior court of criminal jurisdiction, or
        (ii) a court of criminal jurisdiction;
    ["Dangerous sexual offender."]
    (b) "dangerous sexual offender" means a person who, by his conduct in any sexual matter, has shown a failure to control his sexual impulses, and who is likely to cause injury, pain or other evil to any person, through failure in the future to control his sexual impulses or is likely to commit a further sexual offence, and
    ["Preventive detention."]
    (c) "preventive detention" means detention in a penitentiary for an indeterminate period.

Note: paragraph 659(b) was repealed and replaced with the above by An Act to amend the Criminal Code, S.C. 1960-61, c. 43, s. 32.


HABITUAL CRIMINALS.

[Application for preventive detention.]
660. (1) Where an accused has been convicted of an indictable offence the court may, upon application, impose a sentence of preventive detention in lieu of any other sentence that might be imposed for the offence of which he was convicted or that was imposed for such offence, or in addition to any sentence that was imposed for such offence if the sentence has expired, if
        (a) the accused is found to be an habitual criminal, and
        (b) the court is of the opinion that because the accused is an habitual criminal, it is expedient for the protection of the public to sentence him to preventive detention.
    [Who is habitual criminal.]
    (2) For the purposes of subsection (1), an accused is an habitual criminal if
        (a) he has previously, since attaining the age of eighteen years, on at least three separate and independent occasions been convicted of an indictable offence for which he was liable to imprisonment for five years or more and is leading persistently a criminal life, or
        (b) he has been previously sentenced to preventive detention.
    [Presence of accused.]
    (3) At the hearing of an application under subsection (1), the accused is entitled to be present.

Note: the portion of subsection 660(1) preceding paragraph (a) was repealed and replaced with the above by An Act to amend the Criminal Code, S.C. 1960-61, c. 43, s. 33(1). Subsection 660(3) was added by An Act to amend the Criminal Code, S.C. 1960-61, c. 43, s. 33(2).


DANGEROUS SEXUAL OFFENDERS.

[Evidence.]
661. (1) Where an accused has been convicted of
        (a) an offence under
            [Rape.]
            (i) section 136,
            [Carnal knowledge.]
            (ii) section 138,
            [Indecent assault on female.]
            (iii) section 141,
            [Buggery or bestiality.]
            (iv) section 147,
            [Indecent assault on male.]
            (v) section 148, or
            [Gross indecency.]
            (vi) section 149; or
        (b) an attempt to commit an offence under a provision mentioned in paragraph (a),
the court shall, upon application, hear evidence as to whether the accused is a dangerous sexual offender.
    [Evidence of psychiatrists.]
    (2) On the hearing of an application under subsection (1) the court shall hear any relevant evidence, and shall hear the evidence of at least two psychiatrists, one of whom shall be nominated by the Attorney General.
    [Sentence of preventive detention.]
    (3) Where the court finds that the accused is a dangerous sexual offender it shall, notwithstanding anything in this Act or any other Act of the Parliament of Canada, impose upon the accused a sentence of preventive detention in lieu of any other sentence that might be imposed for the offence of which he was convicted or that was imposed for such offence, or in addition to any sentence that was imposed for such offence if the sentence has expired.
    [Presence of accused.]
    (4) At the hearing of an application under subsection (1), the accused is entitled to be present.

Note: the heading preceding section 661, and section 661 itself, were both repealed and substituted with the above by An Act to amend the Criminal Code, S.C. 1960-61, c. 43, s. 34.


GENERAL.

[Notice of application.]
662. (1) The following provisions apply with respect to applications under this Part, namely,
        (a) an application under subsection (1) of section 660 shall not be heard unless
            (i) the Attorney General of the province in which the accused is to be tried consents,
            (ii) seven clear days' notice has been given to the accused by the prosecutor, either before or after conviction or sentence but within three months after the passing of sentence and before the sentence has expired, specifying the previous convictions and the other circumstances, if any, upon which it is intended to found the application, and
            (iii) a copy of the notice has been filed with the clerk of the court or the magistrate, as the case may be; and
        (b) an application under subsection (1) of section 661 shall not be heard unless seven clear days' notice thereof has been given to the accused by the prosecutor either before or after conviction or sentence but within three months after the passing of sentence and before the sentence has expired, and a copy of the notice has been filed with the clerk of the court or with the magistrate, where the magistrate is acting under Part XVI.
    [Hearing of application.]
    (2) An application under this Part shall be heard and determined by the court without a jury.
    [When proof unnecessary.]
    (3) For the purposes of section 660, where the accused admits the allegations contained in the notice referred to in paragraph (b) of subsection (1), no proof of those allegations is required.
    [Where application not heard before sentence.]
    (4) Where an application under subsection (1) of section 660 or subsection (1) of section 661 has not been heard before the accused is sentenced for the offence for which he has been convicted, the application shall not be heard by the judge or magistrate who sentenced the accused but may be heard by any other judge or magistrate who might have held or sat in the same court.
    [Prima facie evidence.]
    (5) The production of a document purporting to contain any nomination or consent that may be made or given by the Attorney General under this Part and to be signed by the Attorney General is prima facie evidence of such nomination or consent.

Note: subsections 662(1) and (2) were repealed and substituted with the above by An Act to amend the Criminal Code, S.C. 1960-61, c. 43, s. 35(1). Subsections 662(4) and (5) were added by An Act to amend the Criminal Code, S.C. 1960-61, c. 43, s. 35(2).

[Evidence of character and repute.]
663. Without prejudice to the right of the accused to tender evidence as to his character and repute, evidence of character and repute may, where the court thinks fit, be admitted on the question whether the accused is or is not persistently leading a criminal life or is or is not a dangerous sexual offender, as the case may be.

Note: section 663 was repealed and replaced with the above by An Act to amend the Criminal Code, S.C. 1960-61, c. 43, s. 36.

664. [Repealed.]

Note: section 664, previously "Commencement of sentence" and "Commutation," was repealed by An Act to amend the Criminal Code, S.C. 1960-61, c. 43, s. 37.

665.(1) [Repealed.]
    [Prison set apart.]
    (2) An accused who is sentenced to preventive detention may be confined in a penitentiary or part of a penitentiary set apart for that purpose and shall be subject to such disciplinary and reformative treatment as may be prescribed by law.

Note: subsection 665(1), previously "Where to be served," was repealed by An Act to amend the Criminal Code, S.C. 1960-61, c. 43, s. 38.

[Review by Minister of Justice.]
666. Where a person is in custody under a sentence of preventive detention, the Minister of Justice shall, at least once in every year, review the condition, history and circumstances of that person for the purpose of determining whether he should be permitted to be at large on licence, and if so, on what conditions.

Note: section 666 was repealed and replaced with the above by An Act to amend the Criminal Code, S.C. 1960-61, c. 43, s. 39.

[Appeal.]
667. (1) A person who is sentenced to preventive detention under this Part may appeal to the court of appeal against that sentence on any ground of law or fact or mixed law and fact.
    [Appeal by Attorney General.]
    (2) The Attorney General may appeal to the court of appeal against the dismissal of an application for an order under this Part on any ground of law.
    [Court of appeal may consider.]
    (2a) On an appeal against a sentence of preventive detention the court of appeal may
        (a) quash such sentence and impose any sentence that might have been imposed in respect of the offence for which the appellant was convicted, or
        (b) dismiss the appeal.
    [Idem.]
    (2b) On an appeal against the dismissal of an application for an order under this Part the court of appeal may
        (a) allow the appeal, set aside any sentence imposed in respect of the offence for which the respondent was convicted and impose a sentence of preventive detention, or
        (b) dismiss the appeal.
    [Effect of judgment.]
    (2c) A judgment of the court of appeal imposing a sentence pursuant to this section has the same force and effect as if it were a sentence passed by the trial court.
    [Part XVIII applies re appeals.]
    (3) The provisions of Part XVIII with respect to procedure on appeals apply, mutatis mutandis, to appeals under this section.

Note: Subsections 667(1) and (2) were repealed and replaced with subsections 667(1), (2), (2a), (2b), and (2c) by An Act to amend the Criminal Code, S.C. 1960-61, c. 43, s. 40.

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