A History of Canadian Sexual Assault Legislation
1900-2000


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1989
Criminal Code, R.S.C. 1985, c. C-46.


PART V
SEXUAL OFFENCES, PUBLIC MORALS AND DISORDERLY CONDUCT

Interpretation

[Definitions]
150. In this Part,
"guardian" includes any person who has in law or in fact the custody or control of another person [...]. R.S., c. C-34, s. 138.


Sexual Offences

[Consent no defence]
150.1 (1) Where an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.
    [Exception]
    (2) Notwithstanding subsection (1), where an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is twelve years of age or more but under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge unless the accused
        (a) is twelve years of age or more but under the age of sixteen years;
        (b) is less than two years old than the complainant; and
        (c) is neither in a position of trust or authority towards the complainant nor is a person with whom the complainant is in a relationship of dependency.
    [Exemption for accused aged twelve or thirteen]
    (3) No person aged twelve or thirteen years shall be tried for an offence under section 151 or 152 or subsection 173(2) unless the person is in a position of trust or authority towards the complainant or is a person with whom the complainant is in a relationship of dependency.
    [Mistake of age]
    (4) It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the complainant was fourteen 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.
    [Idem]
    (5) It is not a defence to a charge under section 153, 159, 170, 171 or 172 or subsection 212(2) or (4) 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.

[Sexual interference]
151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years 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.

[Invitation to sexual touching]
152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of fourteen years, 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.

[Sexual exploitation]
153. (1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who
        (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or
        (b) for a sexual purpose, invites, counsels, or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.
    [Definition of "young person"]
    (2) In this section, "young person" means a person fourteen years of age or more but under the age of eighteen years.

Note: sections 151 to 153 (previously "Consent of child under fourteen no defence," "Limitation," and "Sexual intercourse with female under fourteen" respectively) were repealed and replaced with the above by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 1. Section 150.1 was added by the same statute. The heading preceding the old version of section 151 was amended and the heading preceding section 153 was repealed by the same statute.

154. [Repealed.]

Note: section 154, formerly "Age," was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 1.

[Incest]
155. (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 liable to imprisonment for a term not exceeding fourteen years.
    [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 on her.
    [Definition of "brother" and "sister"]
    (4) In this section, "brother" and "sister", respectively, include half-brother and half-sister. R.S., c. C-34, s. 150; 1972, c. 13, s. 10.

156. [Repealed.]

Note: section 156, previously "Seduction of female between sixteen and eighteen," was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 2.

157. [Repealed.]

Note: section 157, previously "Seduction under promise of marriage," was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 2.

158. [Repealed.]

Note: section 158, previously "Sexual intercourse with step-daughter, etc., or female employee," was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 2.

[Anal intercourse]
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.
    [Exception]
    (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.
    [Idem]
    (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.

Note: section 159, previously "Seduction of female passengers on vessels," was repealed and replaced with the above by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 3.

[Bestiality]
160. (1) Every person who commits bestiality 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.
    [Compelling the commission of bestiality]
    (2) Every person who compels another to commit bestiality 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.
    [Bestiality in presence of or by child]
    (3) Notwithstanding subsection (1), every person who, in the presence of a person under the age of fourteen years, commits bestiality or who incites a person under the age of fourteen years to commit bestiality 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.

Note: section 160 was amended by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 3.

161. [Repealed.]

Note: section 161, previously "Acts of gross indecency," was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 4.

162. [Repealed.]

Note: section 162, previously "Exception re acts in private between husband and wife or consenting adults," was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 4.


Offences Tending to Corrupt Morals

[Parent or guardian procuring sexual activity]
170. Every parent or guardian of a person under the age of eighteen years who procures that person for the purpose of engaging in any sexual activity prohibited by this Act with a person other than the parent or guardian is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, if the person procured for that purpose is under the age of fourteen years, or to imprisonment for a term not exceeding two years if the person so procured is fourteen years of age or more but under the age of eighteen years.

Note: section 170 was amended by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 5.

[Householder permitting sexual activity]
171. Every owner, occupier or manager of premises or other person who has control of premises or assists in the management or control of premises who knowingly permits a person under the age of eighteen years to resort to or to be in or on the premises for the purpose of engaging in any sexual activity prohibited by this Act is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, if the person in question is under the age of fourteen years, or to imprisonment for a term not exceeding two years if the person in question is fourteen years of age or more but under the age of eighteen years.

Note: section 171 was amended by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 5.

[Corrupting children]
172. (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 liable to imprisonment for a term not exceeding two years.
    [Limitation]
    (2) [Repealed.]
    [Definition of "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. R.S., c. C-34, s. 168.

Note: subsection 172(2) was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 6.



PART VII
DISORDERLY HOUSES, GAMING AND BETTING

Procuring

[Procuring]
212. (1) Every one who
        (a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
        (b) inveigles or entices a person who is not a 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 person in a common bawdy-house or house of assignation,
        (d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
        (e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
        (f) on the arrival of a person in Canada, directs or causes that person to be direct or takes or causes that person to be taken, to a common bawdy-house or house of assignation,
        (g) procures a 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 person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
        (i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to have illicit sexual intercourse with that person, or
        (j) lives wholly or in part on the avails of prostitution of another person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
    [Idem]
    (2) Notwithstanding paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
    [Presumption]
    (3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house or in a house of assignation is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsection (2).
    [Offence in relation to juvenile prostitution]
    (4) Every person who, in any place, obtains or attempts to obtain, for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Note: subsections 212(2) to (4) were amended by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 9.




PART VIII
OFFENCES AGAINST THE PERSON AND REPUTATION

Assaults

[Assault]
265. (1) A person commits an assault when
        (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
        (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
        (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
    [Application]
    (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
    [Consent]
    (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
        (a) the application of force to the complainant or to a person other than the complainant;
        (b) threats or fear of the application of force to the complainant or to a person other than the complainant;
        (c) fraud; or
        (d) the exercise of authority.
    [Accusedís belief as to consent]
    (4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accusedís belief, to consider the presence or absence of reasonable grounds for that belief. R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.

[Assault]
266. Every one who commits an assault is guilty of
    (a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
    (b) an offence punishable on summary conviction. R.S., c. C-34, s. 245; 1972, c. 13, s. 21; 1974-75-76, c. 93, s. 22; 1980-81-82-83, c. 125, s. 19.

[Assault with a weapon or causing bodily harm]
267. (1) Every one who, in committing an assault,
        (a) carries, uses or threatens to use a weapon or an imitation thereof, or
        (b) causes bodily harm to the complainant,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
    [Definition of "bodily harm"]
    (2) For the purposes of this section and sections 269 and 272, "bodily harm" means any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature. 1980-81-82-83, c. 125, s. 19.

[Aggravated assault]
268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
    [Punishment]
    (2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. 1980-81-82-83, c. 125, s. 19.

[Unlawfully causing bodily harm]
269. Every one who unlawfully causes bodily harm to any person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. 1980-81-82-83, c. 125, s. 19.

[Sexual assault]
271. (1) Every one who commits a sexual assault is guilty of
        (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
        (b) an offence punishable on summary conviction.
    [No defence]
    (2) [Repealed.]

Note: subsection 271(2) was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 10.

[Sexual assault with a weapon, threats to a third party or causing bodily harm]
272. Every one who, in committing a sexual assault,
    (a) carries, uses or threatens to use a weapon or an imitation thereof,
    (b) threatens to cause bodily harm to a person other than the complainant,
    (c) causes bodily harm to the complainant, or
    (d) is a party to the offence with any other person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. 1980-81-82-83, c. 125, s. 19.

[Aggravated sexual assault]
273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
    [Punishment]
    (2) Every one who commits an aggravated sexual assault is guilty of an indictable offence and liable to imprisonment for life. 1980-81-82-83, c. 125, s. 19.

[Corroboration not required]
274. Where an accused is charged with an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 212, 271, 272 or 273, 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.

Note: section 274 was amended by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 11.

[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, 155 and 159, subsections 160(2) and (3), and sections 170, 171, 172, 173, 271, 272 and 273.

Note: section 275 was amended by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 11.

[No evidence concerning sexual activity]
276. (1) In proceedings in respect of an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 170, 171, 172, 173, 271, 272 or 273, no evidence shall be adduced by or on behalf of the accused concerning the sexual activity of the complainant with any person other than the accused unless
        (a) it is evidence that rebuts evidence of the complainantís sexual activity or absence thereof that was previously adduced by the prosecution;
        (b) it is evidence of specific instances of the complainantís sexual activity tending to establish the identity of the person who had sexual contact with the complainant on the occasion set out in the charge; or
        (c) it is evidence of sexual activity that took place on the same occasion as the sexual activity that forms the subject-matter of the charge, where that evidence relates to the consent that the accused alleges he believed was given by the complainant.
    [Notice]
    (2) No evidence is admissible under paragraph (1)(c) unless
        (a) reasonable notice in writing has been given to the prosecutor by or on behalf of the accused of his intention to adduce the evidence together with particulars of the evidence sought to be adduced; and
        (b) a copy of the notice has been filed with the clerk of the court.
    [Hearing]
    (3) No evidence is admissible under subsection (1) unless the judge, magistrate or justice, after holding a hearing in which the jury and the members of the public are excluded and in which the complainant is not a compellable witness, is satisfied that the requirements of this section are met.
    [Publication prohibited]
    (4) The notice given under subsection (2) and the evidence taken, the information given or the representations made at a hearing referred to in subsection (3) shall not be published in any newspaper or broadcast.
    [Offence]
    (5) Every one who, without lawful excuse the proof of which lies on him, contravenes subsection (4) is guilty of an offence punishable on summary conviction.
    [Definition of "newspaper"]
    (6) In this section, "newspaper" has the same meaning as in section 297. 1980-81-82-83, c. 125, s. 19.

Note: the portion of subsection 276(1) preceding paragraph (a) was amended by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 12.

[Reputation evidence]
277. In proceedings in respect of an offence under section 151, 152, 153, 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.

Note: section 277 was amended by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 13.

[Spouse may be charged]
278. A husband or wife may be charged with an offence under section 271, 272 or 273 in respect of his or her spouse, whether or not the spouses were living together at the time the activity that forms the subject-matter of the charge occurred. 1980-81-82-83, c. 125, s. 19.


Kidnapping and Abduction

[Abduction of person under sixteen]
280. (1) Every one who, without lawful authority, takes or causes to be taken an unmarried person under the age of sixteen yeas out of the possession of and against the will of the parent or guardian of that person or of any other person who has the lawful care or charge of that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
    [Definition of "guardian"]
    (2) In this section and sections 281 to 283, "guardian" includes any person who has in law or in fact the custody or control of another person. R.S., c. C-34, s. 249; 1980-81-82-83, c. 125, s. 20.

[Defence]
285. No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm. 1980-81-82-83, c. 125, s. 20.

[No defence]
286. In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused. 1980-81-82-83, c. 125, s. 20.


289. [Repealed.]

Note: section 289, previously "Venereal disease," was repealed by the Criminal Law Amendment Act, 1985, R.S.C. 1985 (1st Supp.), c. 27, s. 41.


Defamatory Libel

[Definition of "newspaper"]
297. In sections 303, 304 and 308, "newspaper" means any paper, magazine or periodical containing public news, intelligence or reports of events, or any remarks or observations thereon, printed for sale and published periodically or in parts or numbers, at intervals not exceeding thirty-one days between the publication of any two such papers, parts or numbers, and any paper, magazine or periodical printed in order to be dispersed and made public, weekly or more often, or at intervals not exceeding thirty-one days, that contains advertisements, exclusively or principally. R.S., c. C-34, s. 261.




PART XV
SPECIAL PROCEDURE AND POWERS

General Powers of Certain Officials

[Exclusion of public in certain cases]
486. (1) Any proceedings against an accused shall be held in open court, but where the presiding judge, magistrate or justice, as the case may be, is of the 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 for all or part of the proceedings, he may so order.
    [Reasons to be stated]
    (2) Where an accused is charged with an offence mentioned in section 274 and the prosecutor or the accused makes an application for an order under subsection (1), the presiding judge, magistrate or justice, as the case may be, shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.
    [Testimony outside court room]
    (2.1) Notwithstanding section 650, where an accused is charged with an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 170, 171, 172, 173, 271, 272 or 273 and the complainant is, at the time of the trial or preliminary inquiry, under the age of eighteen years, the presiding judge or justice, as the case may be, may order that the complainant testify outside the court room or behind a screen or other device that would allow the complainant not to see the accused, if the judge or justice is of the opinion that the exclusion is necessary to obtain a full and candid account of the acts complained of from the complainant.
    [Condition of exclusion]
    (2.2) A complainant shall not testify outside the court room pursuant to subsection (2.1) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the complainant by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
    [Order restricting publication]
    (3) Where an accused is charged with an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 170, 171, 172, 173, 271, 272 or 273, the presiding judge or justice may, on his or her own motion, or shall, on application made by the complainant, by the prosecutor or by a witness under the age of eighteen years, make an order directing that the identity of the complainant or the witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
    [Rights]
    (4) The presiding judge or justice shall, at the first reasonable opportunity, inform every witness under the age of eighteen years and the complainant of the right to make an application for an order under subsection (3).
    [Failure to comply with order]
    (5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.
    [Definition of "newspaper"]
    (6) [Repealed.]

Note: subsections 486(2.1) and (2.2) were added by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 14(1). Subsections 486(3) and (4) were amended by the same statute. Subsection 486(6) was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 14(2).


PART XX
PROCEDURE BY INDICTMENT

Corroboration

659. [Repealed.]

Note: section 659, previously "Unsworn evidence of child," was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 15.


PART XXII
PROCURING ATTENDANCE OF WITNESSES

Videotaped Evidence

[Evidence of complainant]
715.1 In any proceeding relating to an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 170, 171, 172, 173, 271, 272 or 273, in which the complainant was under the age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence, in which the complainant describes the acts complained of, is admissible in evidence if the complainant, while testifying, adopts the contents of the videotape.

Note: section 715.1 and the heading preceding section 715.1 were added by An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 16.


PART XXIV
DANGEROUS OFFENDERS

[Definitions]
752. In this Part,
    ["court"]
    "court" means the court by which an offender in relation to whom an application under this Part is made was convicted, or a superior court of criminal jurisdiction;
    ["serious personal injury offence"]
    "serious personal injury offence" means
        (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
            (i) the use or attempted use of violence against another person, or
            (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
        and for which the offender may be sentenced to imprisonment for ten years or more, or
        (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). R.S., c. C-34, s. 687; 1976-77, c. 53, s. 14; 1980-81-82-83, c. 125, s. 26.


Dangerous Offenders

[Application for finding]
753. Where, on an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court
    (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
        (i) a pattern of repetitive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of his causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour,
        (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour, or
        (iii) any behaviour by the offender, associated with the offence for which he has been convicted, that is of such a brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint, or
    (b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses,
the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted. R.S., c. C-34, s. 688; 1976-77, c. 53, s. 14.

[Hearing of application]
754. (1) Where an application under this Part has been made, the court shall hear and determine the application except that no such application shall be heard unless
        (a) the Attorney General of the province in which the offender was tried has, either before or after the making of the application, consented to the application;
        (b) at least seven days notice has been given to the offender by the prosecutor, following the making of the application, outlining the basis on which it is intended to found the application; and
        (c) a copy of the notice has been filed with the clerk of the court or the magistrate, as the case may be.
    [By court alone]
    (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 an application under this Part, where an offender admits any allegations contained in the notice referred to in paragraph (1)(b), no proof of those allegations is required.
    [Proof of consent]
    (4) 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 purporting to be signed by the Attorney General is, in the absence of any evidence to the contrary, proof that nomination or consent without proof of the signature or the official character of the person appearing to have signed the document. R.S., c. C-34, s. 689; 1976-77, c. 53, s. 14.

[Evidence of dangerous offender status]
755. (1) On the hearing of an application under this Part, the court shall hear the evidence of at least two psychiatrists and all other evidence that, in its opinion, is relevant, including the evidence of any psychologist or criminologist called as a witness by the prosecution or the offender.
    [Nomination of psychiatrists]
    (2) One of the psychiatrists referred to in subsection (1) shall be nominated by the prosecution and one shall be nominated by the offender.
    [Nomination by court]
    (3) If the offender fails or refuses to nominate a psychiatrist pursuant to this section, the court shall nominate a psychiatrist on behalf of the offender.
    [Saving]
    (4) Nothing in this section shall be construed to enlarge the number of expert witnesses that may be called without the leave of the court or judge under section 7 of the Canada Evidence Act. R.S., c. C-34, s. 690; 1976-77, c. 53, s. 14.

[Direction or remand for observation]
756. (1) A court to which an application is made under this Part may, by order in writing,
        (a) direct the offender in relation to whom the application is made to attend, at a place or before a person specified in the order and within a time specified therein, for observation, or
        (b) remand the offender in such custody as the court directs, for a period not exceeding thirty days, for observation,
where, in its opinion, supported by the evidence of, or where the prosecutor and the offender consent, supported by the report in writing of, at least one duly qualified medical practitioner, there is reason to believe that evidence might be obtained as a result of the observation that would be relevant to the application.
    [Idem]
    (2) Notwithstanding subsection (1), a court to which an application is made under this Part may remand the offender to which that application relates in accordance with that subsection
        (a) for a period not exceeding thirty days without having heard the evidence or considered the report of a duly qualified medical practitioner where compelling circumstances exist for so doing and where a medical practitioner is not readily available to examine the offender and give evidence or submit a report; and
        (b) for a period of more than thirty but not more than sixty days where it is satisfied that observation for that period is required in all the circumstances of the case and its opinion is supported by the evidence of, or where the prosecutor and the offender consent, by the report in writing of, at least one duly qualified medical practitioner. R.S., c. C-34, s. 691; 1976-77, c. 53, s. 14.

[Evidence of character]
757. Without prejudice to the right of the offender to tender evidence respecting his character and repute, evidence of character and repute may, if the court thinks fit, be admitted on the question whether the offender is or is not a dangerous offender. R.S., c. C-34, s. 692; 1976-77, c. 53, s. 14.

[Presence of accused at hearing of application]
758. (1) The offender shall be present at the hearing of the application under this Part and if at the time the application is to be heard
        (a) he is confined in a prison, the court may order, in writing, the person having the custody of the accused to bring him before the court; or
        (b) he is not confined in a prison, the court shall issue a summons or a warrant to compel the accused to attend before the court and the provisions of Part XVI relating to summons and warrant are applicable with such modifications as the circumstances require.
    [Exception]
    (2) Notwithstanding subsection (1), the court may
        (a) cause the offender to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible; or
        (b) permit the offender to be out of court during the whole or any part of the hearing on such conditions as the court considers proper. R.S., c. C-34, s. 693; 1976-77, c. 53, s. 14.

[Appeal]
759. (1) A person who is sentenced to detention in a penitentiary for an indeterminate period 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.
    [Disposition of appeal]
    (3) On an appeal against a sentence of detention in a penitentiary for an indeterminate period, the court of appeal may
        (a) quash the sentence and impose any sentence that might have been imposed in respect of the offence for which the appellant was convicted, or order a new hearing; or
        (b) dismiss the appeal.
    [Idem]
    (4) 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 detention in a penitentiary for an indeterminate period, or order a new hearing; or
        (b) dismiss the appeal.
    [Effect of judgment]
    (5) 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.
    [Commencement of sentence]
    (6) Notwithstanding subsection 721(1), a sentence imposed on an offender by the court of appeal pursuant to this section shall be deemed to have commenced when the offender was sentenced by the court by which he was convicted.
    [Part XXI applies re appeals]
    (7) The provisions of Part XXI with respect to procedure on appeals apply, with such modifications as the circumstances require, to appeals under this section. R.S., c. C-34, s. 694; 1976-77, c. 53, s. 14.

[Disclosure to Solicitor General]
760. Where a court, pursuant to section 753, finds an offender to be a dangerous offender and imposes a sentence of detention in a penitentiary for an indeterminate period, the court shall order that a copy of all reports or testimony given by psychiatrists, psychologists or criminologists and any observations of the court with respect to the reasons for the sentence, together with a transcript of the trial of the dangerous offender, be forwarded to the Solicitor General of Canada for his information. R.S., c. C-34, s. 695; 1976-77, c. 53, s. 14.

[Review for parole]
761. (1) Subject to subsection (2), where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the National Parole Board shall, forthwith after the expiration of three years from the day on which that person was taken into custody and not later than every two years thereafter, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under the Parole Act and, if so, on what conditions.
    [Idem]
    (2) Where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period that was imposed before October 15, 1977, the National Parole Board 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 granted parole under the Parole Act and, if so, on what conditions. 1976-77, c. 53, s. 14.


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