Safe Streets and Communities Act 개정

□ 추진 과정

캐나다 연방정부는 2011년 6월 캐나다 시민의 안전을 획기적으로 강화하기 위해 「Safe Streets and Communities Act」법안을 의회에 제출했는데, 이는 범죄 및 테러에 대처하기 위해 Comprehensive law-and -order legislation 을 도입하려는 것임.

이 법안은 지난 2012년 3월 7일 의회를 통과하였고, 3월 13일 총독의 재가(Royal Assent)를 받았음

□ 개정 이유

모든 캐나다인의 안전을 더욱 보장하고, 테러의 피해자 뿐만 아니라 아동과 청소년과 같은 취약한 사회 구성원에 대한 보호를 확대하며, 범죄자들에게 그들의 행동에 대한 책임을 더욱 강하게 지울 수 있도록 사법 체계를 개선하는 것임

□ 주요내용

1. 어린이를 대상으로 하는 성범죄를 유도하는 새로운 범죄, 2 가지 항목을 추가하고, 어린이에 대한 성범죄 처벌을 강화(The Protecting Children from Sexual Predators Act의 개정)

2. 범죄조직에 의한 마약범죄를 포함하여 불법적인 마약 생산과 밀매에 대한 처벌 강화(The Penalties for Organized Drug Crime Act 개정)

3. Sebastien's Law(세바스티엥의 법칙 : 난폭한 청소년 범죄자로부터 대중 보호)으로 폭력적이고 반복적인 청소년 범죄자(young offenders)로부터 시민 보호

4. 심각한 폭력 범죄에 대한 조건부 판결, 또는 가택 연금(House Arrest)제도를 삭제하여 처벌 강화(The Ending House Arrest for Property and Other Serious Crimes by Serious and Violent Offenders Act의 개정)

5. 피해자가 범죄자의 가석방 청문회에 참석하거나 범죄자의 책임 및 관리에 대해 얘기할 수 있는 피해자의 권리 강화(The Increasing Offender Accountability Act 개정)

6. 즉결재판 범죄(summary conviction offences)에 대해서는 5년, 그리고 기소가능 범죄(indictable offences)에 대해서는 10년으로 record suspension(or pardon)을 적용할 수 있는 기간을 연장(The Eliminating Pardons for Serious Crimes Act 개정)

7. 해외의 캐나다인 범죄자를 캐나다에서 판결을 받도록 송환을 허용할 것인지 여부를 결정할 때 공공안전부 장관( the Minister of Public Safety)로 하여금 추가 조건(Additional Criteria)을 고려하도록 함(The Keeping Canadians Safe international Transfer of Offenders Act 개정)

8. 테러 피해자가 세계 어느 곳에서 일어난 테러의 결과로 발생한 손실(loss)이나 손해(damage)에 대해 가해자(perpetrator)와 해당 국가를 포함한 테러 지지자를 대상으로 소송을 할 수 있도록 함(The Justice for Victims of Terrorism Act and related amendments to the State Immunity Act 개정)

9. 인신매매(human trafficking), 성적학대(sexual exploitation)를 포함한 모욕(humiliating), 굴욕적인 처우와 같은 위험이 있다고 판단되는 취약한 외국인(댄서, 인신매매 희생자 등)에게 출입국 심사관이 노동 허가를 거부할 수 있도록 하는 권한 부여(The Preventing the Trafficking Abuse and Exploitation of Vulnerable Immigrants Act 개정)

□ 세부 내용

Safe Streets &Communities Act 개정 내용

The Government has introduced the Safe Streets and Communities Act, fulfilling its June 2011 Speech from the Throne commitment to “move quickly to re-introduce comprehensive law-and-order legislation to combat crime and terrorism.”

The proposed amendments in this legislation would make communities safer by:

• extending greater protection to the most vulnerable members of society, as well as victims of terrorism;

• further enhancing the ability of our justice system to hold offenders accountable for their actions; and

• helping improve the safety and security of all Canadians.

The Safe Streets and Communities Act would:

• better protect children and youth from sexual predators;

• increase penalties for organized drug crime;

• end house arrest for serious crimes;

• protect the public from violent young offenders;

• eliminate pardons for serious crimes;

• enshrine in law a number of additional key factors in deciding whether an offender would be granted a transfer back to Canada;

• increase offender accountability and support victims of crime;

• support victims of terrorism; and

• protect vulnerable foreign nationals against abuse and exploitation.

Bill C-10, as introduced, allowed victims of terrorism to file an action against listed foreign states for the support they provided to a terrorist entity listed under the Criminal Code. Six amendments were made in the Senate to the Safe Streets and Communities Act in order to allow victims to sue listed foreign states, not only for their support of terrorism, but also for directly committing an act of terrorism. (See Supporting Victims of Terrorism below). These amendments send a strong message that those who commit acts of terrorism will be held accountable for their actions.

Better Protecting Children and Youth from Sexual Predators(former Bill C-54)

The Safe Streets and Communities Act proposes amendments to the Criminal Code that would:

• establish new mandatory minimum penalties for seven existing offences related to child exploitation. The addition of mandatory minimum penalties to these offences would also have the effect of eliminating the use of conditional sentences or house arrest for any of these cases;

• increase the mandatory minimum penalties for nine existing offences to better reflect the serious nature of these offences, as well as to bring greater consistency in sentencing in these cases;

• increase the maximum prison sentences for four existing child sexual exploitation offences to better reflect the particularly heinous nature of these offences;

• create two new offences to prohibit anyone from providing sexually explicit material to a child for the purpose of facilitating the commission of a sexual offence against that child, and to prohibit anyone from using any means of telecommunications, including the Internet, to agree or make arrangements with another person for the purpose of committing a sexual offence against a child; and

• require judges to consider prohibiting suspected or convicted child sex offenders from having any unsupervised contact with a young person under the age of 16 years or having any unsupervised use of the Internet or other digital network.

A detailed backgrounder on Better Protecting Children from Sexual Predators can be found on the Department of Justice Canada’s Web site.

Increasing Penalties for Serious Drug Crime(former Bill S-10)

The Safe Streets and CommunitiesAct proposes amendments to the Controlled Drugs and Substances Act that would:

• provide mandatory minimum penalties for serious drug offences, when such offences are carried out for organized crime purposes or if they involve targeting youth. Generally, the minimum penalty would apply where there is an aggravating factor, including where the production of the drug constituted a potential security, health or safety hazard.These serious drug offences would include:

• production;

• trafficking;

• possession for the purpose of trafficking;

• importing and exporting; and

• possession for the purpose of exporting.

•

• increase the maximum penalty for the production of drugs listed in Schedule II of the Controlled Drugs and Substances Act, e.g. marijuana, from 7 to 14 years.The aggravating factors involve offences committed:

• for the benefit of organized crime;

• involving use or threat of violence;

• involving use or threat of use of weapons;

• by someone who has been previously convicted (in the past 10 years) of a serious drug offence;

• in a prison;

• by abusing a position of authority or access to restricted areas;

• in or near a school, in or near an area normally frequented by youth or in the presence of youth;

• through involving a youth in the commission of the offence; and

• in relation to a youth (e.g. selling to a youth).

The security, health and safety factors are:

• the accused used real property that belongs to a third party to commit the offence;

• the production constituted a potential security, health or safety hazard to children who were in the location where the offence was committed or in the immediate area;

• the production constituted a potential public safety hazard in a residential area; and

• the accused placed or set a trap.

• move GHB and flunitrazepam, most commonly known as date-rape drugs, and amphetamine drugs from Schedule III to Schedule I, which would result in higher maximum penalties for illegal activities involving these drugs.

• make exemptions for drug treatment programs by allowing a court to suspend a sentence while the addicted offender takes a treatment program approved by the province under the supervision of the court as outlined in section 720(2) of the Criminal Code or a Drug Treatment Court approved program. If the offender successfully completes the treatment program, the court could impose a suspended or reduced sentence.

A detailed backgrounder on Increased Penalties for Serious Drug Crime can be found on the Department of Justice Canada’s Web site.

Protecting Society from Violent and Repeat Young Offenders(former Bill C-4)

The Safe Streets and Communities Act proposes amendments to the Youth Criminal Justice Actthat would:

• highlight the protection of society as a fundamental principle of the Youth Criminal Justice Act;

• simplify pre-trial detention rules to help ensure that, when necessary, violent and repeat young offenders are kept off the streets while awaiting trial;

• strengthen sentencing provisions and reduce barriers to custody where appropriate for violent and repeat young offenders. Specifically, the legislation would be amended to:

• add “specific deterrence and denunciation” to the principles of sentencing to discourage a particular offender from committing further offences;

• expand the definition of “violent offence” to include behaviour that endangers the life or safety of others; and

• allow custodial sentences to be imposed, where appropriate, on youth who have a pattern of findings of guilt or extrajudicial sanctions.

• require the Crown to consider seeking adult sentences for youth convicted of the most serious violent crimes (murder, attempted murder, manslaughter and aggravated sexual assault). Provinces and territories would maintain the discretion to set the age at which this requirement would apply;

• require the courts to consider lifting the publication ban on the names of young offenders convicted of “violent offences,” when youth sentences are given;

• require police to keep records when informal measures are used in order to make it easier to identify patterns of re-offending; and

• ensure that all young offenders under 18 who are given a custodial sentence will serve it in a youth facility.

A detailed backgrounder on Protecting Society from Violent and Repeat Young Offenders can be found on the Department of Justice Canada’s Web site.

Ending House Arrest for Property and Other Serious Crimes(former Bill C-16)

The Safe Streets and Communities Act proposes amendments to the Criminal Code that would restrict the use of conditional sentences. A conditional sentence is a sentence of imprisonment of less than two years that may be served in the community – for example, under house arrest – provided certain conditions are met.

Currently, in order for the courts to impose a conditional sentence:

• the offence must not be punishable by a mandatory minimum penalty;

• the court must impose a sentence of imprisonment of less than two years;

• the court must be satisfied that service of the sentence in the community will not endanger the safety of the community;

• the court must be satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing; and

• the offence must not be one that is:

• a serious personal injury offence (as defined in section 752),

• a terrorism offence, or

• a criminal organization offence,

punishable by a maximum of 10 years imprisonment or more and prosecuted by indictment.

The amendments would maintain these conditions, but would also provide an expanded and clear list of offences for which conditional sentences are not available.

List of Offences for which Conditional Sentences Would Not Be Available

• All offences for which the law prescribes a maximum sentence of 14 years or life including: manslaughter, aggravated assault, arson and fraud over $5,000.

• Offences prosecuted by indictment and for which the law prescribes a maximum sentence of imprisonment of 10 years that:

• result in bodily harm

• involve the import/export, trafficking and production of drugs

• involve the use of weapons.

• The following offences for which the law prescribes a maximum penalty of 10 years when prosecuted by indictment:

• prison breach

• motor vehicle theft

• criminal harassment

• sexual assault

• kidnapping, forcible confinement

• trafficking in persons – material benefit

• abduction of a person under 14 (i.e., by a stranger)

• theft over $5,000

• breaking and entering with intent

• being unlawfully in a dwelling-house

• arson for fraudulent purpose.

A detailed backgrounder on Ending House Arrest for Property and Other Serious Crimes can be found on the Department of Justice Canada’s Web site.

Increasing Offender Accountability(former Bill C-39)

The Safe Streets and Communities Act proposes amendments to the Corrections and Conditional Release Act that would:

• enshrine victim participation in conditional release board hearings, and keep victims better informed about the behaviour and handling of offenders;

• increase offender accountability by modernizing disciplinary sanctions and adding a requirement in law to complete a correctional plan for each offender that sets out behavioral expectations, objectives for program participation, and the meeting of court-ordered obligations such as victim restitution or child support;

• authorize police to arrest an offender who appears to be breaking their release conditions, without the need for a warrant; and

• emphasize the importance of considering the seriousness of an offence in Parole Board of Canada decision-making.

A detailed backgrounder on Increasing Offender Accountability can be found on Public Safety Canada’s Web site.

Eliminating Pardons for Serious Crimes(former Bill C-23B)

The Safe Streets and Communities Act proposes amendments to the Criminal Records Act that would:

• replace the term “pardon” with the term “record suspension”;

• require the Parole Board of Canada to submit an annual report that includes statistics on the number of applications for record suspensions and the number of those ordered;

• extend the ineligibility periods for applications for a record suspension to five years for summary conviction offences and to ten years for indictable offences; and

• make certain people ineligible to apply for a record suspension, including those convicted of a sexual offence in relation to a minor, or those convicted of more than three offences – each of which was prosecuted by indictment or is a service offence that is subject to a maximum punishment of imprisonment for life, and for each of which the person was sentenced to imprisonment for two years or more.

A detailed backgrounder on Eliminating Pardons for Serious Crimes can be found on Public Safety Canada’s Web site.

Adding Criteria for the International Transfer of Canadian Offenders Back to Canada(former Bill C-5)

The Safe Streets and Communities Act proposes amendments to the International Transfer of Offenders Act that would enshrine in law a number of additional key factors in deciding whether an offender would be granted a transfer back to Canada. These factors would include whether, in the opinion of the Minister, an offender would upon return to Canada:

• endanger public safety;

• continue to engage in criminal activities following his or her transfer; and

• endanger the safety of any child, particularly in cases of offenders who have been convicted of sexual abuse.

A detailed backgrounder on Adding Criteria for the International Transfer of Offenders Back to Canada can be found on Public Safety Canada’s Web site.

Supporting Victims of Terrorism(former Bill S-7)

The Safe Streets and Communities Act proposes enactment of the Justice for Victims of Terrorism Act and amendments to the State Immunity Act. These changes would:

• support the Government of Canada’s fight against terrorism and hold perpetrators and supporters of terrorism accountable for their actions;

• deter terrorism and demonstrate Canada’s leadership against supporters of terrorism around the world; and

• permit victims to seek redress for loss and damage that occurred as a result of a terrorist act. Victims would be able to launch a lawsuit in a Canadian court against an individual or organization that carried out a terrorist attack, or against supporters of terrorism. Bill C-10, as amended by the Senate, would permit such lawsuits against foreign states -- that the Government has listed -- for directly committing terrorist activity or for supporting terrorism.

A detailed backgrounder on Supporting Victims of Terrorism can be found on Public Safety Canada’s Web site.

Protecting Vulnerable Foreign Nationals against Trafficking, Abuse and Exploitation (former Bill C-56)

The Safe Streets and Communities Act proposes reforms to the Immigration and Refugee Protection Act that would:

• make it possible to deny work permits to applicants who are vulnerable to abuse or exploitation; and,

• ensure any decision by an immigration officer to refuse a work permit in Canada would require approval by a second officer.

Some of those who could be vulnerable to humiliating and degrading treatment or sexual exploitation include:

• exotic dancers;

• low-skilled labourers; and

• potential victims of human trafficking.

A detailed backgrounder on Protecting Vulnerable Foreign Nationals against Trafficking, Abuse and Exploitation can be found on Citizenship and Immigration Canada’s Web site.