INTRODUCTION AND BRIEF DESCRIPTION
Section 490.011(1) of the Criminal Code of Canada defines the various terms used in sections 490.012 to 490.322, including the definition of designated offence which encompasses a wide range of criminal offenses, including sexual offenses, abduction, assault, and more.
SECTION WORDING
490.011 (1) The following definitions apply in this section and in sections 490.012 to 490.032. crime of a sexual nature means a crime referred to in subsection 3(2) of the Sex Offender Information Registration Act. (crimes de nature sexuelle) database has the same meaning as in subsection 3(1) of the Sex Offender Information Registration Act. (banque de données) designated offence means (a) an offence under any of the following provisions: (i) subsection 7(4.1) (offence in relation to sexual offences against children), (ii) section 151 (sexual interference), (iii) section 152 (invitation to sexual touching), (iv) section 153 (sexual exploitation), (v) section 153.1 (sexual exploitation of person with disability), (vi) section 155 (incest), (vi.01) subsection 160(1) (bestiality), (vi.1) subsection 160(2) (compelling the commission of bestiality), (vii) subsection 160(3) (bestiality in presence of or by a child), (viii) section 163.1 (child pornography), (ix) section 170 (parent or guardian procuring sexual activity), (ix.1) section 171.1 (making sexually explicit material available to child), (x) section 172.1 (luring a child), (x.1) section 172.2 (agreement or arrangement — sexual offence against child), (xi) subsection 173(2) (exposure), (xii) to (xv) [Repealed, 2014, c. 25, s. 25] (xvi) section 271 (sexual assault), (xvii) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), (xviii) paragraph 273(2)(a) (aggravated sexual assault — use of a restricted firearm or prohibited firearm or any firearm in connection with criminal organization), (xviii.1) paragraph 273(2)(a.1) (aggravated sexual assault — use of a firearm), (xix) paragraph 273(2)(b) (aggravated sexual assault), (xx) subsection 273.3(2) (removal of a child from Canada), (xxi) section 279.011 (trafficking — person under 18 years), (xxii) subsection 279.02(2) (material benefit — trafficking of person under 18 years), (xxiii) subsection 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), (xxiv) subsection 286.1(2) (obtaining sexual services for consideration from person under 18 years), (xxv) subsection 286.2(2) (material benefit from sexual services provided by person under 18 years), and (xxvi) subsection 286.3(2) (procuring — person under 18 years); (b) an offence under any of the following provisions: (i) section 162 (voyeurism), (i.1) subsection 173(1) (indecent acts), (ii) section 177 (trespassing at night), (iii) [Repealed, 2019, c. 25, s. 202] (iii.1) section 231 (murder), (iv) section 234 (manslaughter), (v) paragraph 246(b) (overcoming resistance to commission of offence), (vi) section 264 (criminal harassment), (vii) section 279 (kidnapping), (vii.1) section 279.01 (trafficking in persons), (vii.11) subsection 279.02(1) (material benefit — trafficking), (vii.12) subsection 279.03(1) (withholding or destroying documents — trafficking), (viii) section 280 (abduction of a person under age of sixteen), (ix) section 281 (abduction of a person under age of fourteen), (ix.1) subsection 286.1(1) (obtaining sexual services for consideration), (ix.2) subsection 286.2(1) (material benefit from sexual services), (ix.3) subsection 286.3(1) (procuring), (x) paragraph 348(1)(d) (breaking and entering a dwelling house with intent to commit an indictable offence), (xi) paragraph 348(1)(d) (breaking and entering a dwelling house and committing an indictable offence), (xii) paragraph 348(1)(e) (breaking and entering a place other than a dwelling house with intent to commit an indictable offence), and (xiii) paragraph 348(1)(e) (breaking and entering a place other than a dwelling house and committing an indictable offence); (c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983: (i) section 144 (rape), (ii) section 145 (attempt to commit rape), (iii) section 149 (indecent assault on female), (iv) section 156 (indecent assault on male), and (v) subsection 246(1) (assault with intent) if the intent is to commit an offence referred to in any of subparagraphs (i) to (iv); (c.1) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as enacted by section 19 of An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, chapter 125 of the Statutes of Canada, 1980-81-82-83: (i) section 246.1 (sexual assault), (ii) section 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm), and (iii) section 246.3 (aggravated sexual assault); (d) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988: (i) subsection 146(1) (sexual intercourse with a female under age of fourteen), (ii) subsection 146(2) (sexual intercourse with a female between ages of fourteen and sixteen), (iii) section 153 (sexual intercourse with step-daughter), (iv) section 157 (gross indecency), (v) section 166 (parent or guardian procuring defilement), and (vi) section 167 (householder permitting defilement); (d.1) an offence under any of the following provisions of this Act, as they read from time to time before the day on which this paragraph comes into force: (i) paragraph 212(1)(i) (stupefying or overpowering for the purpose of sexual intercourse), (ii) subsection 212(2) (living on the avails of prostitution of person under 18 years), (iii) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years), and (iv) subsection 212(4) (prostitution of person under 18 years); (e) an attempt or conspiracy to commit an offence referred to in any of paragraphs (a), (c), (c.1), (d) and (d.1); or (f) an attempt or conspiracy to commit an offence referred to in paragraph (b). (infraction désignée)
EXPLANATION
Section 490.011(1) of the Criminal Code of Canada provides definitions for the terms used in sections 490.012 to 490.032. One of the key definitions is the "designated offence," which covers a wide range of serious criminal offenses. These include sexual offenses against children such as sexual interference, invitation to sexual touching, sexual exploitation, incest, child pornography, and luring a child. It also includes offenses related to sexual services provided by a person under 18 years of age, such as obtaining sexual services for consideration, procuring, and material benefit from sexual services. Other designated offenses covered in this section include aggravated sexual assault, trafficking in persons under 18 years, murder, manslaughter, and kidnapping. The section also clarifies that an attempt or conspiracy to commit any of these designated offenses is also considered a designated offense. This designation is important because it affects the sentencing, parole, and rehabilitation of individuals convicted of these offenses. For instance, individuals found guilty of a designated offense are automatically registered on the sex offender registry. This designation also has consequences for the admissibility of evidence in court and the requirements for a pardon or record suspension. Overall, this section plays an essential role in providing a legal framework for prosecuting and punishing individuals who commit serious sexual and violent offenses.
COMMENTARY
Section 490.011(1) of the Criminal Code of Canada provides definitions for certain terms used in sections 490.012 to 490.032. The section sets out a list of designated offences, which are serious criminal offences, including crimes of a sexual nature, that result in significant harm to victims and are particularly damaging to society as a whole. The designated offences listed under subsection (a) include sexual offences such as sexual interference, sexual exploitation, incest, and sexual assault. These offences involve the abuse of power and the violation of personal boundaries, resulting in severe harm to the victim's physical and emotional wellbeing. The inclusion of bestiality, child pornography, and luring a child demonstrate the Canadian criminal justice system's commitment to protecting the most vulnerable members of society. The severity of the listed offences is also reflected in their potential penalties, which can include long-term sentences of imprisonment. Subsection (b) of Section 490.011(1) lists a range of other types of serious offences, including murder, manslaughter, criminal harassment, and kidnapping. These offences also result in significant harm to victims and can have long-lasting impacts on their physical and emotional wellbeing. It should be noted that subsection (c) of this section lists offences under the Criminal Code that were in force prior to January 4, 1983. These offences are no longer in force, and their inclusion in this section serves to demonstrate that the criminal justice system has recognized the seriousness of sexual offences for some time, including well before the current iteration of the Criminal Code of Canada came into force. In conclusion, Section 490.011(1) of the Criminal Code of Canada is an important provision that provides clear definitions of key terms in the context of the designated offences. The listed offences are all serious in nature and result in significant harm to victims. The section is an essential component of the Canadian criminal justice system's approach to addressing harm, deterring criminal behaviour, and protecting vulnerable individuals.
STRATEGY
Section 490.011(1) of the Criminal Code of Canada defines designated offences, which are serious and often sexual crimes. When dealing with this section, there are several strategic considerations to keep in mind. Firstly, it is important to understand the scope and severity of designated offences. These offences carry lengthy prison sentences and can have significant implications for an individual's future, including employment and housing prospects. Therefore, individuals facing charges for a designated offence should consider obtaining legal representation from a criminal defense lawyer with experience in defending these types of cases. Secondly, it is important to be familiar with the specific provisions of the Criminal Code that define designated offences. A lawyer representing an accused individual should be able to determine if the charges are valid and whether there are any potential avenues for defense. Thirdly, defendants and their legal representatives may consider plea bargaining. Given the severity of the charges and potential consequences, it may be beneficial to negotiate a plea deal with the prosecution. This could potentially result in a lesser sentence or reduced charges. Fourthly, defendants and their legal representatives should also consider the potential impact of the Sex Offender Information Registration Act (SOIRA), which requires individuals convicted of certain designated offences to register with law enforcement and be included in a public registry. The SOIRA imposes stringent reporting and other obligations on registered individuals, which can have a significant impact on their lives. In conclusion, dealing with designated offences requires careful consideration and skilled legal representation. Strategies such as understanding the scope of designated offences, the specific provisions of the Criminal Code, plea bargaining, and managing the impact of the SOIRA can help ensure a successful defense.