[39] Bill 37 Royal Assent (PDF)
Bill 37 2008
An Act to amend the Child and Family Services Act to protect Ontario's children
Note: This Act amends the Child and Family Services Act. For the legislative history of the Act, see the Table of Consolidated Public Statutes – Detailed Legislative History on www.e-Laws.gov.on.ca.
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
1. Subsection 3 (1) of the Child and Family Services Act is amended by adding the following definition:
"child pornography" means,
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a child engaged in, or depicted as engaged in, explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ of a child or the anal region of a child,
(b) any written material or visual representation that advocates or counsels sexual activity with a child that would be an offence under the Criminal Code (Canada),
(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a child that would be an offence under the Criminal Code (Canada), or
(d) any audio recording that has as its dominant characteristic, the description, presentation or representation, for a sexual purpose, of sexual activity with a child that would be an offence under the Criminal Code (Canada); ("pornographie juvénile")
2. Clause 37 (2) (c) of the Act is repealed and the following substituted:
(c) the child has been sexually molested or sexually exploited, including by child pornography, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child;
3. (1) Paragraph 3 of subsection 72 (1) of the Act is repealed and the following substituted:
3. The child has been sexually molested or sexually exploited, including by child pornography, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child.
(2) Section 72 of the Act is amended by adding the following subsections:
Reporting child pornography
(1.1) In addition to the duty to report under subsection (1), any person who reasonably believes that a representation or material is, or might be, child pornography shall promptly report the information to an organization, agency or person designated by a regulation made under clause 216 (c.3).
Seeking out child pornography not required or authorized
(1.2) Nothing in this section requires or authorizes a person to seek out child pornography.
Protection of informant
(1.3) No action lies against a person for providing information in good faith in compliance with subsection (1.1).
Identity of informant
(1.4) Except as required or permitted in the course of a judicial proceeding, in the context of the provision of child welfare services, otherwise by law or with the written consent of an informant, no person shall disclose,
(a) the identity of an informant under subsection (1) or (1.1),
(i) to the family of the child reported to be in need of protection, or
(ii) to the person who is believed to have caused the child to be in need of protection; or
(b) the identity of an informant under subsection (1.1) to the person who possessed or accessed the representation or material that is or might be child pornography.
Retaliation against informant prohibited
(1.5) No person shall dismiss, suspend, demote, discipline, harass, interfere with or otherwise disadvantage an informant under this section.
(3) Subsections 72 (2) and (3) of the Act are repealed and the following substituted:
Ongoing duty to report
(2) A person who has additional reasonable grounds to suspect one of the matters set out in subsection (1) or to believe that a representation or material is, or might be, child pornography under subsection (1.1) shall make a further report under subsection (1) or (1.1) even if he or she has made previous reports with respect to the same child.
Person to report directly
(3) A person who has a duty to report under subsection (1) or (2) shall make the report directly to the society, a person who has a duty to report under subsection (1.1) shall make the report directly to any organization, agency or person designated by regulation to receive such reports, and such persons shall not rely on any other person to report on their behalf.
(4) Section 72 of the Act is amended by adding the following subsections:
Same
(4.1) A person is guilty of an offence if the person fails to report information as required under subsection (1.1).
Same
(4.2) A person is guilty of an offence if the person,
(a) discloses the identity of an informant in contravention of subsection (1.4); or
(b) dismisses, suspends, demotes, disciplines, harasses, interferes with or otherwise disadvantages an informant in contravention of subsection (1.5).
(5) Subsection 72 (6.1) of the Act is repealed and the following substituted:
Same
(6.1) A director, officer or employee of a corporation who authorizes, permits or concurs in a contravention of an offence under subsection (4) or (4.1) by an employee of the corporation is guilty of an offence.
(6) Subsection 72 (6.2) of the Act is repealed and the following substituted:
Penalty
(6.2) A person convicted of an offence under subsection (4), (4.1), (4.2) or (6.1) is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both.
4. The Act is amended by adding the following section:
Action by organization receiving report of child pornography
72.0.1 (1) An organization, agency or person that obtains information on child pornography under subsection 72 (1.1) shall review the report and, if it reasonably believes that the representation or material is or might be child pornography, it shall report the matter to a society or a law enforcement agency, or to both as necessary.
Annual report
(2) The organization, agency or person shall prepare and submit to the Minister an annual report with respect to its activities and actions relating to information it obtains on child pornography, and the Minister shall submit the report to the Lieutenant Governor in Council and then table the report in the Assembly if it is in session or, if not, at the next session.
5. Section 216 of the Act is amended by adding the following clause:
(c.3) designating one or more organizations, agencies or persons for the purpose of receiving reports of child pornography under subsection 72 (1.1);
Commencement
6. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
7. The short title of this Act is the Child Pornography Reporting Act, 2008.
EXPLANATORY NOTE
This Explanatory Note was written as a reader's aid to Bill 37 and does not form part of the law. Bill 37 has been enacted as Chapter 21 of the Statutes of Ontario, 2008.
The following are the main points of the Bill:
1. A definition of "child pornography" is added to parallel the Criminal Code (Canada) definition.
2. There are parallel amendments to clause 37 (2) (c) and subsection 72 (1) to make it clear that sexual exploitation includes by child pornography.
3. Any person who reasonably believes that a representation or material is, or might be, child pornography shall promptly report the information to an organization, agency or person designated by regulation.
4. No person is required to seek out child pornography.
5. It is an offence to fail to report information on child pornography, to provide information on the identity of a person who reports suspicions under subsection 72 (1) of the Act or who reports child pornography and to retaliate against persons who make reports. A person convicted of such an offence is liable to a maximum fine of $50,000 or to imprisonment of not more than two years, or to both.
6. Organizations, agencies or persons designated by regulation to receive information on child pornography shall inform a society or law enforcement agency if they believe, on the basis of the report, that a representation or other material is, or might be, child pornography.
7. Reporting organizations shall submit an annual report on their activities with respect to information regarding child pornography to the Minister.