Bill 158 2016

An Act to enact the Human Trafficking Awareness Day Act, 2016 and the Child Sexual Exploitation and Human Trafficking Act, 2016 and to amend Christopher's Law (Sex Offender Registry), 2000

CONTENTS

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Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Contents of Act

   1.  This Act consists of this section, sections 2 and 3 and the Schedules to this Act.

Commencement

   2.  (1)  Subject to subsections (2) and (3), this Act comes into force on the day it receives Royal Assent.

Same, Schedules

   (2)  The Schedules to this Act come into force as provided in each Schedule.

Different dates for same Schedule

   (3)  If a Schedule to this Act provides that any of its provisions are to come into force on a day to be named by proclamation of the Lieutenant Governor, a proclamation may apply to one or more of those provisions, and proclamations may be issued at different times with respect to any of those provisions.

Short title

   3.  The short title of this Act is the Saving the Girl Next Door Act, 2016.

Schedule 1
Human Trafficking Awareness day Act, 2016

Preamble

On February 22, 2007, the House of Commons of Canada passed a motion condemning the trafficking of women and children across international borders for the purposes of sexual exploitation.

Proclaiming February 22 as Human Trafficking Awareness Day helps bring awareness to the magnitude of modern day slavery in Canada and abroad and will encourage us to take steps to combat human trafficking.

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Human Trafficking Awareness Day

   1.  February 22 in each year is proclaimed as Human Trafficking Awareness Day.

Commencement

   2.  The Act set out in this Schedule comes into force on the day the Saving the Girl Next Door Act, 2016 receives Royal Assent.

Short title

   3.  The short title of the Act set out in this Schedule is the Human Trafficking Awareness Day Act, 2016.

Schedule 2
Child sexual Exploitation and Human Trafficking Act, 2016

CONTENTS

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PART I
Interpretation

Definitions

   1.  (1)  In this Act,

"child" means a person under 19 years of age; ("enfant")

"Minister" means the member of the Executive Council to whom the administration of this Act may be assigned under the Executive Council Act. ("ministre")

References to courts

   (2)  A reference to a court in a provision of this Act is a reference to the court or courts as prescribed by the regulations for the purposes of that provision.

References to judges

   (3)  A reference to a judge in a provision of this Act is a reference to the judicial officer or judicial officers of a particular court as prescribed by the regulations for the purposes of that provision.

Elements of child sexual exploitation

   2.  A person engages in child sexual exploitation when,

  (a)  he or she uses force, the threat of force, intimidation or the abuse of power or a position of trust in order to cause or compel a child to engage in sexual conduct; or

  (b)  he or she provides a child with a controlled substance in exchange for sexual conduct by or with the child.

Elements of human trafficking

   3.  A person engages in human trafficking when,

  (a)  he or she,

           (i)  abducts, recruits, transports or harbours a person, or

          (ii)  exercises control, direction or influence over the movements of a person; and

  (b)  he or she uses force, the threat of force, fraud, deception, intimidation, the abuse of power or a position of trust or the repeated provision of a controlled substance, in order to cause, compel or induce that person,

           (i)  to become involved in prostitution or any other form of sexual exploitation,

          (ii)  to provide forced labour or services, or

         (iii)  to have an organ or tissue removed.

Part II
Protection Orders

Definitions

   4.  In this Part,

"applicant" means a person applying for a protection order; ("requérant")

"controlled substance" means,

  (a)  a controlled substance as defined in subsection 2 (1) of the Controlled Drugs and Substances Act (Canada),

  (b)  an intoxicating substance as defined in section 2 of The Minors Intoxicating Substances Control Act (Manitoba), or

   (c)  liquor as defined in subsection 1 (1) of the Liquor Licence Act; ("substance désignée")

"protection order" means an order made under section 9; ("ordonnance de protection")

"respondent" means a person against whom a protection order is sought; ("intimé")

"sexual conduct" means,

  (a)  sexual intercourse,

  (b)  touching the body of any person for a sexual purpose,

   (c)  exposing a person's sexual organs or anal region or exposing the breasts of a female person, or

  (d)  any activity in relation to child pornography, as that term is defined in subsection 163.1 (1) of the Criminal Code (Canada); ("activité sexuelle")

"specified person" includes a person who is a member of a group of persons specified in a protection order; ("personne désignée")

"subject" means a person who it is alleged was or is the subject of child sexual exploitation or human trafficking in an application for a protection order; ("victime")

"telecommunication" includes the use of a telephone, email or the facsimile transmission of a document. ("télécommunication")

Authority

   5.  A judge may hear and determine applications for protection orders.

Application for protection order

   6.  (1)  An application for a protection order may be commenced,

  (a)  by the subject, if the subject is 18 years of age or over; or

  (b)  if the subject is under 18 years of age,

           (i)  by the subject's parent or guardian,

          (ii)  by a children's aid society or by any other prescribed person or body, if the subject is in the care of such a society under the Child and Family Services Act, or

         (iii)  by a person designated in writing by the Minister for this purpose.

Application without notice

   (2)  An application for a protection order may be made without notice to the respondent in the manner prescribed by regulation.

How an application may be submitted

   (3)  An application for a protection order may be submitted,

  (a)  in person, by the applicant; or

  (b)  in person or by telecommunication, by a lawyer, a peace officer or a person designated in writing by the Minister for this purpose, with the applicant's consent.

Evidence under oath

   (4)  Evidence adduced in support of an application for a protection order must be given under oath.

Telecommunication of documents

   7.  (1)  A person submitting an application for a protection order by telecommunication must,

  (a)  possess any document that is to be used in support of the application at the time the application is made;

  (b)  communicate the content of the document to the judge in a manner satisfactory to the judge; and

   (c)  transmit the document to the judge as soon as practicable in the manner prescribed by regulation.

Evidence received by telephone

   (2)  A judge may administer an oath to a person and receive the person's evidence by telephone if the oath and evidence are recorded verbatim.

Judge not to wait for transmission

   (3)  A judge who hears an application for a protection order need not wait for the transmission of a document under clause (1) (c) before deciding whether to make a protection order.

Effect of order based on telecommunication

   (4)  A protection order based on an application submitted by telecommunication has the same effect as a protection order based on an application submitted in person.

Considerations re exchange of controlled substance

   8.  When determining whether a controlled substance was provided in exchange for sexual conduct for the purpose of clause 2 (b), a judge must take into consideration the nature of the relationship between the respondent and the subject, including,

  (a)  the age of the subject;

  (b)  the age difference between the respondent and the subject;

   (c)  the circumstances in which the controlled substance was provided to the subject; and

  (d)  any particular vulnerabilities of the subject.

Protection order

   9.  A judge may make a protection order without notice to the respondent if the judge determines, on a balance of probabilities, that,

  (a)  the respondent engaged in child sexual exploitation or human trafficking of the subject;

  (b)  there are reasonable grounds to believe that the respondent will continue to engage in child sexual exploitation or human trafficking of the subject or will engage in child sexual exploitation or human trafficking of the subject in the future; and

   (c)  the subject is in need of immediate or imminent protection from the respondent.

Contents of protection order

   10.  (1)  A protection order may include any of the following provisions that the judge considers necessary or advisable for the protection of the subject:

    1.  A provision prohibiting the respondent from following the subject or a specified person from place to place.

    2.  A provision prohibiting the respondent from, directly or indirectly, communicating with or contacting the subject or a specified person.

    3.  A provision prohibiting the respondent from attending at or near, or entering, any place that the subject or a specified person attends regularly, which may include a school or a place where the subject or person resides, works or carries on business.

    4.  As an exception to a protection order under either paragraph 2 or 3, a provision that permits the respondent to attend, where the subject is present, any court proceeding in which the respondent is a party or an accused person.

    5.  A provision requiring the respondent to return specified personal effects or personal documents of the subject, such as a passport, driver's licence, health card or other forms of identification, in the manner specified in the order.

    6.  A provision prohibiting the respondent from transmitting, making available, selling, advertising or distributing any photographs, film, video, electronic image or other visual representation of the subject.

Additional provisions restricting respondent

   (2)  An order under paragraph 4 of subsection (1) must include a provision requiring the respondent to do the following while attending a court proceeding referred to in that paragraph:

    1.  Remain at least two metres away from the subject at all times.

    2.  Refrain from communicating with the subject, except in the presence and with the approval of the judge, master or other officer of the court in a court proceeding.

    3.  Not remain in any location where the respondent would be alone with the subject.

Order of judge

   (3)  Despite subsection (2), the presiding judge in a court proceeding where both the respondent and subject are present may make a different order restricting the respondent's conduct as the presiding judge considers appropriate.

Protection order expires in three years

   (4)  Subject to subsection (5), a protection order expires three years after the date it is made.

Exception

   (5)  A judge may make a protection order that applies for a period longer than three years if he or she is satisfied that a longer time period is necessary for the protection of the subject.

Expiry date in order

   (6)  The protection order must set out the date it expires.

Written copy of order

   11.  (1)  A judge who makes a protection order must immediately arrange for the preparation of a written copy of it.

Documents to nearest court

   (2)  The judge must immediately forward a copy of the protection order and each document submitted in support of the application for the protection order to the nearest court, in accordance with the requirements as may be prescribed by the regulations.

Enforcement of protection order filed in court

   (3)  The protection order and any document forwarded under subsection (2) must be filed in the court.

Service of protection order on respondent

   12.  (1)  A protection order must be served on the respondent in the manner prescribed by regulation.

Respondent bound when served

   (2)  A respondent is not bound by a protection order until he or she is served with the order.

Service on subject

   (3)  When the subject is under 18 years of age, the subject must be served with the order if he or she is at least 12 years of age.

Application to set aside order

   13.  (1)  A respondent against whom a protection order is made may apply to the court within 20 days after being served with the order, or such further time as the court may allow, to have the order set aside or varied.

Application does not stay order

   (2)  A protection order is not stayed by an application under this section.

Use of evidence from application for order

   (3)  The evidence that was before the judge in the application for a protection order is to be considered as evidence at the hearing, and the applicant may present additional evidence.

Onus on respondent

   (4)  At a hearing, the onus is on the respondent to demonstrate, on a balance of probabilities, that the protection order should be set aside or varied in the manner sought by the respondent.

Decision

   (5)  The judge hearing the application may confirm, vary or set aside the order.

Appeals

   14.  (1)  The respondent or the applicant may appeal a decision made under section 13 on a question of law or jurisdiction, within 30 days after the decision is made or within such further time as a judge of the court may allow.

Effect of appeal

   (2)  An appeal does not operate as a stay of proceedings, and the order under appeal may be enforced as though no appeal were pending unless a judge of the court otherwise orders.

Court may vary or revoke order

   15.  (1)  The court, on application at any time after a protection order is filed in the court may, if satisfied that it is fit and just to do so,

  (a)  delete or vary any term or condition in the order, or add terms and conditions; or

  (b)  revoke the order.

Adjournment to allow subject to obtain advice

   (2)  If the judge hearing the application is advised that there is an agreement that the protection order should be varied or revoked, but the judge is not satisfied that the agreement is free and voluntary, he or she may adjourn the hearing to allow legal or other advice to be obtained.

New protection order

   16.  (1)  An application for a new protection order may be made in accordance with section 6 when,

  (a)  a protection order has expired or will expire within the next three months; and

  (b)  a person believes that there is a continuing need for a protection order.

Compliance with protection order

   (2)  The respondent's compliance with a protection order does not by itself mean that there is not a continuing need for a protection order.

Ban on identification of party or witness

   17.  (1)  No person shall publish or broadcast the name of the subject, the respondent or a witness in a proceeding relating to an application for a protection order or any information likely to identify any of those persons, until,

  (a)  the application is dismissed;

  (b)  20 days after the respondent is served with the protection order, if no application to set aside the order is made under section 13 within that 20-day period; or

   (c)  if an application to set aside the protection order is made under section 13, on the latest of,

           (i)  the date the application is abandoned or dismissed for delay,

          (ii)  the deadline for commencing an appeal of the decision made on the application has expired, and

         (iii)  if an appeal of the decision made under section 13 is commenced, the date on which a final decision on the appeal is made or on which the appeal is abandoned or dismissed for delay.

Ban on identifying minors

   (2)  When the subject, the respondent or a witness in a proceeding relating to an application for a protection order is under 18 years of age, no person shall publish or broadcast the name of that person, or any information likely to identify that person.

Certain information to be kept confidential

   18.  No person shall disclose to another person any information in a court document or record relating to an application for a protection order that identifies or is liable to identify the home or business address of a subject, unless the disclosure is for a purpose related to enforcement of the order.

Court may ban publication of information

   19.  On the request of a party to a proceeding relating to a protection order or a witness, the court may make an order prohibiting the publication or broadcast of the name of a party, the subject or a witness, or any information likely to identify any of those persons, if the court is satisfied that the publication or broadcast could endanger the safety or well-being of the person in question.

Offences and penalties

Order made under s. 9

   20.  (1)  A person who contravenes an order made under section 9 is guilty of an offence and is liable on conviction to a fine of not more than $50,000 or imprisonment for a term of not more than two years, or both.

Same, ss. 17, 18 and orders made under s. 19

   (2)  A person who contravenes section 17 or 18 or an order made under section 19 is guilty of an offence and is liable on conviction,

  (a)  in the case of an individual, to a fine of not more than $5,000 or imprisonment for a term of not more than two years, or both; and

  (b)  in the case of a corporation, to a fine of not more than $50,000.

Corporate officers and directors

   (3)  An officer, director, employee or agent of a corporation who directs, authorizes, assents to, permits or participates or acquiesces in the contravention of section 17 or 18 or an order made under section 19 may be convicted of the offence, whether or not the corporation has been prosecuted or convicted.

PART III
TORT OF HUMAN TRAFFICKING

Tort of human trafficking

   21.  A person who engages in human trafficking of a person commits a tort against that person.

Action without proof of damage

   22.  (1)  An action for human trafficking may be brought without proof of damage.

Consent no defence

   (2)  In an action for human trafficking, it is no defence that the plaintiff consented to any of the conduct in question.

Remedies

   23.  (1)  In an action for human trafficking, the court may,

  (a)  award damages to the plaintiff, including general, special, aggravated and punitive damages;

  (b)  order the defendant to account to the plaintiff for any profits that have accrued to the defendant as the result of the human trafficking of the plaintiff;

   (c)  issue an injunction on such terms and with such conditions as the court determines appropriate in the circumstances; and

  (d)  make any other order that the court considers just and reasonable in the circumstances.

Considerations

   (2)  In awarding damages in an action for human trafficking, the court must have regard to all of the circumstances of the case, including,

  (a)  any particular vulnerabilities of the plaintiff;

  (b)  all aspects of the conduct of the defendant; and

   (c)  the nature of any existing relationship between the plaintiff and the defendant.

Accounting not considered in awarding damages

   (3)  In awarding damages in an action for human trafficking, the court must not have regard to any order made under clause (1) (b).

No double compensation

   (4)  When assessing damages or compensation in an action for human trafficking that is the subject of another action or proceeding, the court must have regard to any damages or compensation awarded in the other action or proceeding in respect of the same behaviour.

PART IV
MISCELLANEOUS

Other rights not affected

   24.  A right of action or a remedy under this Act is in addition to, and does not affect, any other right of action or remedy available to a person under another Act.

Regulations

   25.  The Lieutenant Governor in Council may make regulations,

  (a)  prescribing anything required to be or referred to in this Act as being prescribed by the regulations;

  (b)  respecting the procedures to be followed for making application and for hearing applications for protection orders, including the transmission of applications for protection orders;

   (c)  respecting forms, including information to be contained on the form of protection orders;

  (d)  respecting the forwarding of protection orders and other documents to the court by a judge;

  (e)  for the purpose of section 13, respecting the procedures to be followed for making application to set aside protection orders and for hearing those applications;

   (f)  respecting the form and manner of serving notices and other documents required to be served or given under this Act, including substitutional service and a rebuttable presumption of service;

  (g)  defining a word or expression used and not defined in this Act;

  (h)  enlarging or restricting the meaning of a word or expression used in this Act;

    (i)  respecting any matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this Act.

Commencement

   26.  The Act set out in this Schedule comes into force on the first anniversary of the day the Saving the Girl Next Door Act, 2016 receives Royal Assent.

Short title

   27.  The short title of the Act set out in this Schedule is the Child Sexual Exploitation and Human Trafficking Act, 2016.

Schedule 3
Christopher's Law (Sex Offender Registry), 2000

   1.  (1)  The definition of "sex offence" in subsection 1 (1) of Christopher's Law (Sex Offender Registry), 2000 is amended by adding the following clause:

(a.1) an offence under section 279.011 (trafficking of a person under the age of eighteen years), subsection 279.02 (2) (material benefit  -  trafficking of person under 18 years), subsection 279.03 (2) (withholding or destroying documents  -  trafficking of person under 18 years), subsection 286.1 (2) (obtaining sexual services for consideration from person under 18 years), subsection 286.2 (2) (material benefit from sexual services provided by person under 18 years), subsection 286.3 (2) (procuring - person under 18) and section 286.4 (advertising sexual services) of the Criminal Code (Canada),

   (2)  Clause (b) of the definition of "sexual offence" in subsection 1 (1) of the Act is amended by striking out "clause (a)" at the end and substituting "clause (a) or (a.1)".

Commencement

   2.  This Schedule comes into force on the first anniversary of the day the Saving the Girl Next Door Act, 2016 receives Royal Assent.

 

EXPLANATORY NOTE

The Bill enacts the Human Trafficking Awareness Day Act, 2016 and the Child Sexual Exploitation and Human Trafficking Act, 2016 and amends Christopher's Law (Sex Offender Registry), 2000.  For convenience, those Acts are set out in separate Schedules.

Schedule 1
Human Trafficking Awareness DAy Act, 2016

The Schedule proclaims February 22 in each year as Human Trafficking Awareness Day.

Schedule 2
Child Sexual Exploitation and Human Trafficking Act, 2016

The Schedule enacts the Child Sexual Exploitation and Human Trafficking Act, 2016. Here are some highlights:

A judge may make a protection order if he or she has determined that a person has engaged in child sexual exploitation or human trafficking. A protection order may, among other things, prevent that person from contacting or approaching his or her victim.

A protection order expires three years after the date it is made, however a judge may make a protection order that applies for a longer period.

A respondent against whom a protection order is made is permitted to apply to the court to set aside or vary the order.  The court's decision may be appealed.

The court, on application, may delete, vary or add terms and conditions in a protection order or may revoke an order.

An application may be made for a new protection order if there is a continuing need for the order and the protection order has expired or will expire within three months.

The Act prohibits the publication and disclosure of certain information, such as the names of those involved in a protection order proceeding.  The court may, on request, make an order prohibiting the publication of the names of persons involved in a proceeding.

The Act makes it an offence to contravene a protection order. A person convicted of that offence is liable to a penalty of not more than $50,000 or a term of imprisonment for two years, or both.  It is also an offence to contravene a prohibition or an order regarding the publication of information.  If convicted of one of those offences, an individual is liable to a penalty of not more than $5,000 or a term of imprisonment for two years, or both, and a corporation is liable to a fine of not more than $50,000.

The Act also creates a new tort of human trafficking.  This will allow a victim of human trafficking to sue the trafficker.  The Act provides that an action may be brought without proof of damage and that it is no defence that the plaintiff consented to any of the conduct in question.  Rules are provided concerning the remedies that a court may impose.

Schedule 3
Christopher's Law (Sex Offender Registry), 2000

The definition of "sex offence" in Christopher's Law (Sex Offender Registry), 2000 is expanded to include certain offences, including offences relating to the trafficking of persons under 18 years of age.