6.4 Mandatory Minimum Penalties under the Criminal Code

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

1. Purpose

The purpose of this guideline is to provide direction to Crown counsel regarding the certain amendments to the Criminal Code (Code) in 2012 that add mandatory minimum penalties (MMPs) for particular offences involving the sexual exploitation of children. The amendments are contained in the Safe Streets and Communities Act (Act), formerly Bill C-10. These amendments apply only to offences committed after the coming into force date of these provisions.Footnote 1

The Act also creates two new hybrid offences (ss. 171.1 and 172.2 of the Code). Section 171.1 makes it an offence to provide sexually explicit material to a child. Section 172.2 creates an offence to agree or make arrangements with another person by means of telecommunications to commit a sexual offence against a child.

2. Impact on Prosecutions

Crown counsel are reminded that they are obliged to present all available provable facts to the court, in a firm but fair manner, in order to ensure the integrity of the prosecution throughout the litigation process.Footnote 2 Crown counsel must also conduct plea and sentence negotiations in a manner consistent with the policies set out in the PPSC Deskbook. In particular, the Deskbook states that an agreement to withhold from the court facts that are provable and relevant, and that aggravate the offence is not acceptable.Footnote 3

In keeping with the will of Parliament, it will generally be inappropriate to either agree to a plea to a lesser offence, or to stay or withdraw a charge, when it is done with the intent of avoiding the imposition of an MMP, where the evidence supports the original charge. Also, where there are two possible charges in a prosecution and one has an MMP and one does not, or both have an MMP but one is higher than the other, the one with the MMP or the one with the highest MMP should proceed.

If an offence with an MMP has a reasonable prospect of conviction, such an offence may be stayed or withdrawn under a plea agreement only with the consent of the Chief Federal Prosecutor (CFP) or his/her delegate. The consent of the CFP shall only be given where the basis for the plea is set out in a written memorandum that demonstrates, to the satisfaction of the CFP, how the proposed course of action is in the public interest.

If the reason for the stay, withdrawal or agreement to a plea to a lesser offence is due to the threshold for prosecution not being met (a reasonable prospect of conviction), such consent is not required. In such circumstances Crown counsel must provide a written memorandum to the CFP or his/her delegate that explains the decision and ensure that the memo is filed.

In exceptional circumstances, where it is not feasible to get consent, Crown counsel may stay, withdraw, or agree to a plea to a lesser offence on a charge with an MMP. In such circumstances Crown counsel must provide to the CFP, as soon as practicable after doing so, a written memorandum explaining the decision and why it was not feasible to get the consent.Footnote 4 Crown counsel must also ensure the memo is filed.

3. Conclusion

It is important for Crown counsel to refer to the tables in Appendices A and B below, in order to know whether an MMP attaches to offences involving the sexual exploitation of children.

Under the new MMP regime it will generally be inappropriate for Crown counsel to take a plea to a lesser offence, stay or withdraw a charge, when it is done with the intent of avoiding the imposition of an MMP, where the evidence supports the original charge. In exceptional circumstances deviating may be acceptable and must be done in accordance with the present guideline.

Appendix A

New Offences and New Mandatory Minimum Penalties for Sexual Exploitation of Children
Offence Criminal Code Section New mandatory minimum penalties
On Summary Conviction On Indictment
1. Incest, against a person under 16 years of age (indictable offence) 155 n/a 5 years
2. Bestiality 160 (3) 6 months 1 year
3. New: Providing sexually explicit material to a child (hybrid offence) 171.1 30 days 90 days
4. Internet luring (hybrid offence) 172.1 90 days 1 year
5. New: Agreeing/making arrangements with another person, via telecommunication, to commit sexual offence against a child (hybrid offence) 172.2 90 days 1 year
6. Exposure 173(2) 30 days 90 days
7. Sexual assault, against a young person under 16 years of age (hybrid offence) 271 90 days 1 year
8. Sexual assault with a weapon,1 against a young person under 16 years of age (indictable offence) 272 n/a 5 years
9. Aggravated sexual assault,2 against a young person under 16 years of age (indictable offence) 273 n/a 5 years

1 There is a mandatory minimum penalty for this offence if a restricted or prohibited firearm is used in connection with organized crime (5 years for first offence; 7 years for second or subsequent offence).

2 There is a mandatory minimum penalty for this offence if a firearm is used (4 years).

Appendix B

Increased Mandatory Minimum Penalties for Existing Sexual Exploitation of Children Offences
Offence Criminal Code Section On summary conviction On indictment
Increased Mandatory Minimum Penalty Increased Mandatory Minimum Penalty
1. Sexual interference (hybrid offence) 151 90 days 1 year
2. Sexual touching (hybrid offence) 152 90 days 1 year
3. Sexual exploitation (hybrid offence) 153 90 days 1 year
4. Bestiality in the presence of or by a child 160(3) 6 months 1 year
5. Making child pornography 163.1(2) 6 months (No change)
6. Distributing child pornography 163.1(3) 6 months (No change)
7. Possession of child pornography (hybrid offence) 163.1(4) 90 days 6 months
8. Accessing child pornography (hybrid offence) 163.1(4.1) 90 days 6 months
9. Parent/guardian procuring sexual activity where victim is under 16 (indictable offence) 170(a) n/a 1 year
  Parent/guardian procuring sexual activity where victim is 16–17 (indictable offence) 170(b) n/a 6 months
10. Householder permitting sexual activity where victim is 16–17 (indictable offence) 171(b) n/a 90 days

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