Bill C-15 (Historical)
An Act to amend the Lobbyists Registration Act
This bill was last introduced in the 37th Parliament, 2nd Session, which ended in November 2003.
Allan Rock Liberal
This bill has received Royal Assent and is now law.
First Nations Fiscal and Statistical Management Act
November 6th, 2003 / 5:20 p.m.
Pauline Picard Drummond, QC
As if they were marionettes, as my hon. colleague from Jonquière says. These are people who have the right to be fully recognized. If we recognize them, we should give them their financial independence, gave them the means to develop and to improve their quality of life.
When the committee decided to visit particular communities in 1993, the focus was always on the health and well-being of aboriginal children. It is shocking to see children so poor. It is truly alarming. It moves you to tears.
If the children are poor, it is because their parents are poor. The parents are not neglecting their kids. They want to feed them and encourage them to go to school too. However, they have nothing, not even plumbing or toilets. They live in hovels. There is nothing, not even a school.
Nothing is being done about this and the first nations are told that their peoples have been recognized. The rest of the world says we treat our aboriginals well. In reality, this is not true. We have been studying these issues and promising all kinds of things for years.
In 1983, a special parliamentary committee on aboriginal self-government tabled a report. In 1988, with Bill C-15, another point of view took hold. There were other initiatives in 1991, 1992 and 1993.
In the meantime, the Standing Committee on Health, the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources and the Standing Committee on the Environment and Sustainable Development carried out studies. We bothered these people; we said, “Come see us, look how we are taking care of you, we need to hear from you”.
One or two years later, a bill gets passed by the House, then the report gets shelved. It gets covered in a good inch of dust, and then everything starts all over again.
October 28th, 2003 / 3 p.m.
Dan McTeague Pickering—Ajax—Uxbridge, ON
Mr. Speaker, the hon. member for Wild Rose ought to know that the member for Mississauga South had to conduct an interview this afternoon on yet another controversial issue, that being the issue of stem cells.
We are dealing with a number of very tough and substantive issues, issues which no doubt will be current not only today but certainly down the road.
I want to thank the opposition for bringing this motion forward. It is not very often we find that members on both sides of the House can agree to an initiative. The wording of the motion itself is not only commendable but indeed quite supportable.
While I say this, there have been some steps that have been taken by the government. Some would treat them as baby steps but nevertheless they are important steps on the issue of child pornography, which probably is the most serious issue confronting this nation today. We have been able to move ahead with Bill C-20 and Bill C-23 and pass Bill C-15, which among other things moved a step closer to ensuring that Internet service providers would have to retain data. Those are some of the measures that have been taken.
For the sake of the debate, I would like to point out that this is not a new issue. I applaud the member for bringing this motion forward and speaking to it very proudly. Not too long ago it was that member who led a committee of several members of Parliament to attend what was supposed to be a one hour session on the epidemic of child pornography and the scourge that exists not only around the world but also here in Canada.
The shocking pictures referred to a little earlier were the same pictures that I had seen when I had the opportunity of working with Detective Sergeant Paul Gillespie and Detective Sergeant Bob Matthews of the OPP. I know they are in very good hands with the work now of Detective Sergeant Bruce Smollett and Detective Sergeant Paul Gillespie.
A number of initiatives must come of this motion. It is clear that there is sufficient support for the motion. I would be very surprised that there would be any attempt to water down what is otherwise a motion that must serve as a constant reminder of the most serious problem that confronts our nation.
The hon. member for Wild Rose will remember that we put together an issues and options paper. In the few minutes that have been given to me, I want to go through several of the items that I think would be cause for where we go after the motion is passed. Hopefully there will be time left in our parliamentary agenda and calendar to fulfill those.
We said that the age of consent should be raised from 14 to 16, while maintaining the close in age exemption. This would amend section 150 to substitute 16 for 14. We would also retain the age of 18 as a consent for trust relationships.
We dealt with the issue of artistic merit. Section 163.1(6) as currently expressed by the Supreme Court of Canada in the Sharpe decision exempts child pornography clearly harmful to children as the subject of criminal prosecution.
Our solution at the time, and I believe we had support from all parties, was to eliminate the defence of artistic merit and that the definition of child pornography be included as part of the hate crimes section 319.
In my view, that would be the way in which we try to address this very serious issue.
I think where the government has certainly come a long way is to deal with section 163, to apply a community standards test similar to the Butler case. I will not get into the specifics of that.
Another issue, which would not be news to some colleagues, was the requirement that written child pornography be found to advocate or counsel illegal sexual activity with children permits the exclusion of child pornography that is harmful to children from being the subject of criminal prosecution.
It was felt that if we added “a prominent characteristic of which is the description of sexual activity between a person under the age of 18 and an adult, the primary purpose of which is for sexual gratification of an adult or which poses a risk of harm to a child”, that would serve the test.
We know that in the same decision on Sharpe, the Supreme Court of Canada permitted a number of exemptions. I believe that some of them are downright wrong and must be reviewed by Parliament.
The “private recordings of unlawful sexual activity privately held for personal use” invented by the Supreme Court of Canada permits subsequent exploitation of persons recorded who no longer consent to the use and, given the disparity of age permissible, permits ongoing exploitation of children under 18, or 16, by adults.
Our view on this is to restrict such exceptions to recordings between persons under 18, not engaged in explicit sexual activity involving disclosure, clearly indicating both knowledge and consent that the activity is being recorded, not kept in a manner where it is capable of distribution to others, and the possession is for the exclusive personal of the person in possession of it.
Another issue is one that we also tackled that evening--many of these things were by consent--the expressive material exemption, again an exemption to what is otherwise unlawfully expressed child pornography and invented again by the Supreme Court of Canada, is capable of being used to permit material harmful to children to be created and possessed, including animated, computer generated, morphed images, mixed and edited videos, and audio recordings mixed with the above. We felt that it was important to eliminate the personally possessed expressive material defence whenever that should pose a harm to children. I note that the government has done this in some of its legislation.
Perhaps the most controversial but nevertheless most important issue from a police resource perspective is the Stinchcombe decision. The Supreme Court of Canada some time ago imposed rules of disclosure that necessitate police providing copies of every image seized from an offender, frequently in the tens of thousands and more as a result of the Internet and the nature of sexual deviance, thus needlessly depleting resources, delaying prosecutions and potentially disseminating material harmful to children. It is our view that a simple way to achieve this would be similar to how it is done with drugs, and that is simply to get a sample and admit that as evidence, and that could be written in as opposed to going through every single issue.
Another issue is the whole area of lawful access, and I know that the only people who will buzz to that are obviously people in the police community and those in the justice department, who I hope will be listening to this. It is clear that Canada is losing the battle with evolving technologies. We simply do not have the ability when people are using various forms of encryption, new technologies and disposable telephones, you name it. The government needs to proceed with binding and effective legislation that allows police modern and up to date information.
Also, and I should point out that this is a critical point, if we want to beat the child pornographers and stop the 40% of people who see this material and go on to offend against and exploit children, as is currently the convention in this country, then the way in which we do that, I would submit very honestly, is to ensure that if an Internet service provider or, for this case, a company that is involved in the use of telephone lines, should provide the information to lawful and local authorities, it should be based on warrant. They should not be charged the going rates. This is not about making money. This is about protecting children. It is time that the telephone companies and those involved in communications get on board. We do need that.
I know that only a few minutes on this very important question will be provided to me. I do want to issue the challenge again to all colleagues to hear the voices of those who believe that we do need to amend the definition of primary designated offence and provide for the taking of DNA samples. This should, in my view, of course be retroactive. That may be impossible to do, but we must start that as soon as possible.
Sentences imposed for crimes involving child pornography are disproportionately low for the harm they cause and the risks posed to children. In my view, and indeed I think in the view of the majority in the House, we should create a mandatory minimum penalty for second or subsequent offences under section 163.1. That would of course allow as well the opportunity to create a mandatory consecutive penalty akin to section 82.1 for firearms, for conviction of an offence under section 163 or committed in conjunction with another sexual crime, or committed while on parole for sexual crime against a child under the same section.
I believe that some of these bills and some of the ideas that we have talked about for some time would go a long way. I cannot think of a better opportunity we would have for all of us at some stage to understand that if we are to take seriously the protection and the safeguarding of this country's most precious constituency, the laws that we have in this country are of no force or effect or in fact of no meaning if we cannot protect those who eventually will assume the very burden of making this a greater nation.
Young people in the tens of thousands from around the world are only faces. We cannot put names to those faces. We understand the concerns that have been raised by those who say we need to have a balance, but the balance must not come at the expense of rewriting our charter. We have a Charter of Rights and Freedoms, but I ask the House, whose rights are we to protect and whose freedoms are we to safeguard? It is very clear to all in the House and to any ordinary individual that the benefit of the doubt must always inure to those who are the most vulnerable and least in a position to defend themselves.
The exploitation we are talking about is all the more important given the advancements in technology, the ability within a nanosecond to transmit a face around the world. The Internet, Interpol and a number of agencies have been involved with trying to make sure that a document about a certain activity and a behaviour that is occurring in Canada is not simply sent to the country or sent to a few agencies around our great nation, but that in fact those police forces and those agencies involved would have the resources to be able to understand, to disseminate and to make sure that we protect children.
That is the bottom line. I thank the House for the motion.
October 28th, 2003 / 12:50 p.m.
Marlene Jennings Parliamentary Secretary to the Solicitor General of Canada
Mr. Speaker, I would like to thank my colleague from the official opposition for moving this motion in the House.
As already stated, the motion from the opposition proposes to eliminate all defences for the possession of child pornography which allows for the exploitation of children.
We on this side of the House believe that this is what we are proposing to do with Bill C-20, an act to amend the Criminal Code regarding the protection of children and other vulnerable persons, and the Canada Evidence Act which was introduced by the Minister of Justice on December 5, 2002.
I am pleased that the hon. member from the opposite side chose to raise this very important issue because it allows me an opportunity to inform Parliament and Canadians of the important work that the government is doing to protect our most vulnerable citizens, our children. We agree with the opposition that our children are our most vulnerable citizens and require the most protection.
I would like to build on a few of the remarks made by the hon. Minister of Justice relating to some of the efforts that the government has undertaken to combat the sexual exploitation of children, particularly on the Internet.
I realize the motion in question relates specifically to Bill C-20 and the public good defence, but now is a perfect opportunity for me to highlight the collective work that we are doing to address the troubling problem of child pornography.
I would like to take issue with statements made by the member for Provencher where he claimed that Canada is wild, open country for child pornographers and that the message going out internationally is that people can do business in child pornography here in Canada.
Most of the studies that I have read and most of the statements that I have either read or heard from law enforcement agencies is that the United States is the source of much more child pornography than Canada.
I am sure we are all aware that the sexual exploitation of children is sadly not a new crime. We have been working for many years on this issue. Canada has some of the toughest legislation and policies in place dealing with the sexual exploitation of children. We are challenged with keeping pace with the rapidly evolving technologies, including the Internet, that make it easier for people to sexually exploit our children.
We are all aware of the benefits of the Internet and the increased access to educational resources. However, the Internet also makes collecting, distributing, accessing and making child pornography easy to do. It is extremely difficult and complicated to investigate, according to our law enforcement experts.
Despite the complexities of these crimes, we have been active nationally and internationally on this issue. In fact, this year the Solicitor General of Canada and the Minister of Justice, along with their G-8 counterparts, endorsed the G-8 strategy to protect children from sexual exploitation on the Internet. This strategy has provided a framework for action by all member states. I am pleased to report that we are taking this initiative seriously and we are working to develop Canadian initiatives that meet the broader G-8 objectives.
On the law enforcement front, for example, the Solicitor General of Canada in the spring of this year asked the RCMP and the Ontario Provincial Police to create the national steering committee on Internet based child sexual exploitation. The committee has representation from law enforcement across Canada as well as representation from the federal departments of Solicitor General and Justice.
The steering committee is providing direction to law enforcement efforts to better address this problem and is working closely with many specialized units, and many other integrated teams in the provinces and municipalities.
Building on the work of the steering committee and the various provincial initiatives,--because there are provincial initiatives that are to be lauded in the area of prohibiting and investigating sexual exploitation of our children--I am happy to report that we have taken the first steps toward the creation of a national coordination centre at the RCMP.
While it is still in its infancy, this centre is currently in operation, and is coordinating national investigations and liaising with international partners. We are hoping to build the capacity of the centre so it can provide even greater national leadership in this area.
The Canadian government has also been active in the establishment of cybertip.ca, an online reporting centre for reports of Internet based child sexual exploitation. Run by Child Find Manitoba, this pilot project provides a valuable service to law enforcement by forwarding reports of child pornography and also providing educational materials to the public.
The Solicitor General of Canada had the pleasure of announcing $55,000 in funding from his department for the initiative in August of this year and along with other federal departments, including Justice and Industry, we are actively working to find ways to provide cybertip.ca with sustainable funding to build on the current pilot project to make cybertip.ca a national resource.
Children are our greatest asset and Canadians can be assured that we are doing everything in our power to better protect them. Canadians can be assured that law enforcement in Canada is working to complement our strong criminal law framework, which we are hoping to strengthen with Bill C-20. Canadians can also be assured that the government takes the protection of children seriously and is ensuring we keep pace with technological advances.
I would like to address some of the government initiatives to protect our children from sexual exploitation. If we look at Bill C-20, among the various provisions, it proposes to limit the existing defences for child pornography. It proposes to strengthen the Criminal Code by expanding the current definition of written child pornography. It also proposes to increase the maximum penalty for sexual exploitation of children from 5 years to 10.
It maintains Canada's status as having some of the toughest child pornography legislation in the world, but we have done other things. Members who are sitting in the House now may remember that on December 11, 2002, the government tabled Bill C-23, the sex offender information registration act. It is before the committee on justice. I am pleased that we dealt with it this morning and hopefully it will be reported back to the House either today or shortly.
Bill C-23 proposes to establish a national sex offender database. The database would contain information on convicted sex offenders and would assist police across the country who investigate crimes of a sexual nature by providing them with rapid access to vital current information of convicted sex offenders.
We have Bill C-15A, an act to amend the Criminal Code and to amend other acts, which received royal assent on June 4, 2002. What are some of its provisions? It created a new offence to target criminals who use the Internet to lure and exploit children for sexual purposes. It made it a crime to transmit, make available, export and intentionally access child pornography on the Internet. It also allowed judges to order the deletion of child pornography posted on computer systems in Canada.
This was a power or an authority that the judges did not have prior to the royal assent of Bill C-15A. It allowed judges to order forfeiture of materials or equipment used in the commission of a child pornography offence. Here again, this provided new authority to judges which they did not have before.
It also enhanced the ability of judges to keep known sex offenders away from children by making prohibition orders, long term offender designations and one year peace bonds available for offences relating to child pornography and the Internet.
Finally, another of the provisions amended the child sex tourism act, which had been enacted in 1997, to simplify the process of prosecuting Canadians who sexually assault children in other countries. I think that is testimony to the gravity and the seriousness with which the government takes its responsibility to protect our most vulnerable citizens, our children.
That is not all. Since 1993, we have introduced other changes designed to protect our children or to enhance the protections that we have for our children, such as, for instance, amending the Criminal Code to toughen the laws on child prostitution and child sex tourism, which I just mentioned. We strengthened it again under Bill C-15A. We amended the Criminal Code to ensure that peace bonds keep abusers away from women and children. We passed legislation to enable criminal records of pardoned sex offenders to be available for background checks. We passed legislation to change the parole and corrections systems so that sex offenders serve until the end of their sentence.
Those are just a couple of example of provisions, measures, steps and legislative changes that the government has taken to strengthen the protections that we have for our children in order to ensure that we do everything we can to eliminate sexual exploitation of our children, and that when we do uncover it and find it, it is properly addressed and those who commit it are properly punished.
It is so important for us to look at and deal seriously with this issue. I honestly believe that our government has done so. I have not listened to all the speeches or the participation in the debate of all members of the opposition and members on the government side who have participated; I have only been able to listen to that of the member for Provencher. I found some of the issues he raised to be very pertinent, but I disagree with him when he says that they are not addressed by Bill C-20. I believe they are addressed.
There is one issue that I think most if not all of the witnesses who came before the justice committee spoke to. I am a member of the justice committee and I have had the privilege of participating in these sessions where we have conducted consultations on Bill C-20. It is the issue of the public good defence. There has been some confusion on the part of some witnesses, but there has been clarity on the part of other witnesses. It is clear that the clarity brought forward by what I would say is a consensus of witnesses is that the government may do well to look again at the dispositions or the sections in Bill C-20 that talk about public good and bring more clarity to them to ensure that the bill does in fact ensure protection of our children from sexual exploitation. On that, I think the member for Provencher gave an accurate accounting of what we heard from a large majority of witnesses. I think the government would do well to look at that piece of it.
However, on the rest of Bill C-20, I think that the overall majority of the witnesses who came before us, if not all, said that this is needed legislation. They commended the government in going forward on the legislation. They were in agreement that the legislation is needed, that it is a positive measure and that they wanted to see Bill C-20 adopted. However, they wanted to see clarity brought to the public defence issue. On that issue, there was agreement among a lot of the witnesses.
I will conclude now. I still have five minutes but will not repeat what I have said as I think the statements and points I have made are very clear. I think that any member in the House who listened to what I had to say would understand very clearly where I am coming from and what issues I feel are important and are being addressed by Bill C-20. As well, they would understand the measures and the steps that the government has taken since 1993 to continually strengthen the protection of our most vulnerable citizens, our children, and to strengthen Criminal Code provisions to ensure that those who would sexually exploit our children are properly caught, properly charged, have a fair hearing before the proper courts and, when convicted, receive the proper sentencing.
October 28th, 2003 / 11:05 a.m.
Martin Cauchon Outremont, QC
It is true for this government and even though sometimes they make comments, I believe that members on the other side of the House have exactly the same aim and goal.
Look at what we have done as a country over the past few years. First, I said in my remarks that we have one of the best pieces of legislation in the world nationally speaking. We have to be proud of that.
Also, look at what took place in the United States. About a year ago they were discussing the question of virtual child pornography which was maybe or maybe not covered by existing legislation following a judgment of the U. S. supreme court. With the existing legislation that Canada has, virtual child pornography is strictly criminal. As I said, there is no place for such an offence in Canada or anywhere else in the world.
As well we have proceeded as a government with Bill C-15A which created the new offence of Internet luring. It has been used successfully in order to charge people using new technologies. Bill C-15A is quite a nice piece of legislation which ensures that those people committing such an offence will not be able to use new technology in order to exploit the children of our nation.
Look at what we did within the G-8. Canada is actually one of the leaders in trying to increase cooperation to create and develop new tools in order to make sure we deter people from getting involved in such a crime anywhere in the world. We have been working over the past few years and we are going to keep working hard.
Opposition members know very well that we have also established a pilot project with the government of Manitoba and my counterpart the justice minister, Gordon Mackintosh. We have been working together in order to establish Cybertip.ca, which is a tip line for people to get in touch with Cybertip. Let me say that when we look at the stats, it is amazing what they have been able to do working together, working with the population.
From September 2002 to July 2003, 324 reports were made to Cybertip.ca. Ninety per cent of these concerned child pornography on the Internet and 9% dealt with the question of the new offence of Internet luring. Of the total, 152, or 42%, were forwarded to law enforcement agencies for action and resulted in four arrests. Thirty-five other cases are under active investigation.
We on this side of the House, the Liberal government, are working hard in order to take concrete action, concrete measures. Now we are facing a new step which is Bill C-20, an answer to the Supreme Court of Canada in the Sharpe decision, making sure that we will increase the protection of our children, making sure that we will have better legislation as well.
Today I am asking as justice minister those people on the other side of the House to support Bill C-20. What I am asking is that they stand today and say that yes, they will support Bill C-20 because they believe in the future of this nation.
October 28th, 2003 / 10:45 a.m.
Martin Cauchon Minister of Justice and Attorney General of Canada
Mr. Speaker, I am pleased to speak today on a subject the government holds to be fundamental, that is, ensuring that we, as a society, can provide all the protection our young people deserve against people who commit the hideous crime of child pornography. It is a crime that has no place in Canadian society. And when I look at our relationships with the G-8 countries, I can say it is a crime that has no place in the world.
I am looking at the motion put forward by our colleagues in the Canadian Alliance. Essentially, this motion asks the government to eliminate all possible defences for possession of child pornography, which allow for the exploitation of children.
The basic motivation behind this motion is the desire to protect our children from all forms of sexual exploitation. I believe, when I look at all the parties and all the hon. members of this House, that each one of us has the same desire and that is that we want to take whatever action is possible to make sure that we can provide young Canadians with this kind of protection.
As I said before, this objective is at the heart of the government's ongoing commitment to protecting children from exploitation and all forms of mistreatment. This commitment was recently expressed in Bill C-20, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, which I introduced myself on December 5, 2002.
The preamble to Bill C-20 echoes the importance of the issues addressed by the motion. In particular, the preamble notes:
--the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect;
As hon. members know, there are five key components of Bill C-20: first, strengthening the child pornography provisions; second, providing better protection to young persons against sexual exploitation; third, strengthening sentencing provisions related to offences against children; fourth, facilitating testimony by child victims and witnesses and other vulnerable witnesses; and fifth, modernizing the criminal law by creating a new voyeurism offence.
I welcome this motion because I believe Bill C-20 delivers what is proposed by the motion.
Currently, the Criminal Code provides a defence for material that has artistic merit or serves an educational, scientific or medical purpose. It also makes the public good defence available for all child pornography offences.
Hon. members will recall that the constitutionality of the offence of possession of child pornography was considered by the Supreme Court of Canada in 2001 in the Sharpe case. In its decision, the Supreme Court of Canada affirmed Parliament's goal of protecting children from sexual exploitation through child pornography.
A key element in the Supreme Court's decision to uphold the constitutionality of the overall child pornography scheme was the existence of the current child pornography defences.
Bill C-20 is consistent with the Supreme Court decision. It is intended to simplify and reduce the number of defences that now exist, merging them into one defence based on the public good. In each case, the validity of this defence will be determined in two stages.
First, does the material or act in question serve the public good? If it does not, then there will be no defence. Second, even if it does serve the public good, does it go beyond what serves the public good? If it goes beyond, then there will be no defence. In other words, does the risk of harm posed by an act or material in question outweigh any potential benefit to society? If it does, no defence will be available. This is what today's motion proposes.
Let me explain what is meant by public good because this concept has been misunderstood by some.
In the recent Sharpe case, the Supreme Court of Canada considered a public good defence specifically in the context of child pornography, including the meaning of public good. The Supreme Court noted that the public good had been interpreted as including matters that were necessary or advantageous to the administration of justice, the pursuit of science, literature, art or other objects of general interest.
This interpretation is perhaps more clearly understood if one considers how it might operate at a practical level. For example, the administration of justice would include the possession of child pornography as part of a police investigation of a child pornography offence, the possession of child pornography by crown prosecutors for the purpose of prosecuting a child pornography offence and the possession of child pornography by police and prosecutors for the purpose of providing training to police and prosecutors on the conduct of child pornography investigations and prosecutions or even for the purpose of providing educational session to parliamentarians on the harms of child pornography.
All these purposes fall within the administration of justice and all of them necessarily require police and prosecutors to possess child pornography to do their job, a job which the government recognizes as serving the public good.
Bill C-20 recognizes that law enforcement officials must be able to track down child pornographers and protect victims. They are performing a difficult job which serves the public interest and, therefore, they should have the protection of the law.
Consider another example: a journalist who is doing an investigative news story on a child pornography ring. In the course of exposing the child porn ring, this journalist may come into contact with material that constitutes child porn. Again, this expose serves the public good and, as a society, we value this kind of work. Again I believe that this approach is consistent with today's motion.
The proposal in Bill C-20 of a single defence of public good also adds another criterion that is not currently provided for in the artistic merit defence.
Under the current artistic merit defence, as interpreted by the Supreme Court, any objectively established artistic value provides a complete defence. From that perspective, there is no requirement to balance this merit, or good, against any potential harm to society.
Under Bill C-20, the courts must also take into account a second criterion, namely whether the “good” served by an act or any material related to an act offsets potential harm.
Just because there is only one defence, based on public good, does not mean that the legislator is suggesting that child pornography is acceptable. Clearly this is not the case. The government has taken very tangible steps, which denounce child pornography in no uncertain terms.
Bill C-20 proposes another reform with respect to child pornography. It proposes broadening the definition of written child pornography to include materials that advocate or counsel prohibited sexual activity with children, and also materials that describe prohibited sexual activity with children where the written descriptions of that activity are the dominant characteristic of the material and the material was written for a sexual purpose.
The bill includes this proposal because the government recognizes the harm this type of material can cause to children and to Canadian society by describing children as objects of sexual exploitation.
As well, I want to emphasize that the proposals in Bill C-20 seek better protection against sexual exploitation through child pornography in a manner that will withstand charter scrutiny.
The government takes very seriously its responsibility to protect children against all forms of sexual exploitation, including child pornography, as well as its responsibility to uphold the charter. I repeat that it is not a question of doing one or the other. Bill C-20 does both.
The purpose of Bill C-20 is to refine all the prohibitions already in place in Canada with respect to child pornography, prohibitions which are among the strictest in the world.
Since 1993, it has been an offence under the Criminal Code to make, print, publish or possess for the purpose of publication any child pornography, to import, distribute, sell or possess for the purpose of distribution or sale any child pornography, or to possess any child pornography.
Since July 2002, and as a result of Bill C-15A, it has also been an offence under the Criminal Code to transmit, make available or export child pornography or possess child pornography for the purpose of transmission, making available or exporting, as well as to access child pornography.
The same set of reforms also allowed the courts to order child pornography deleted from computer systems, including websites in Canada, and created the new offence of using a computer system in a way, such as through the Internet, to communicate with a child for the purpose of committing a sexual offence against that child.
In addition to these important legislative measures, the government continues to work with its G-8 partners in developing a common strategy to counter the exploitation of children via the Internet. This strategy is comprised of measures to improve international cooperation, prevention, public awareness and local actions in other countries.
There is one extremely important point to be made here. We in Canada have one of the toughest laws in the world, born of our desire to fight tenaciously against this crime, which is so fundamentally heinous and has no place whatsoever in our society, or indeed in any other.
We are well aware, however, that this crime is now taking on a new dimension, a new form because of the variety of means of communication now available, including the Internet. Because of these new technologies, crime is no longer limited by borders.
It goes without saying that perhaps what is required first and foremost to remedy this situation properly is good international cooperation. At the last G-8 meeting in Paris, we had an opportunity to discuss stepping up cooperation and to examine certain studies carried out, precisely with a view to determining solid bases for that cooperation.
We also had the opportunity at that time to hear the views of others involved in international investigations. Once again, they demonstrated the importance of working together internationally in order to ensure that we are able to seek and destroy these networks wherever they are established, even if they work out of countries that may be somewhat less vigilant as far as their legislation or police intervention is concerned.
As Minister of Justice it is my responsibility to ensure that our criminal laws, our policies and indeed the criminal justice system itself reflect evolving Canadian values and emerging justice issues.
The government recognizes the importance of ensuring a strong and effective criminal law response to child pornography. Our children represent our future. We will not allow the most vulnerable in our society to be victimized by pornography. That is what Canadians expect us to do.
The protection of children bill is currently before the Standing Committee on Justice and Human Rights. I call on hon. members to protect our children by supporting Bill C-20 and to ensure its swift passage. This will enable Canada to continue to be a world leader in the fight against child pornography and the protection of our children.
Private Members' Business
October 24th, 2003 / 1:30 p.m.
Chuck Cadman Surrey North, BC
moved that Bill C-338, an act to amend the Criminal Code (street racing), be read the second time and referred to a committee.
Mr. Speaker,I am pleased to rise today to debate the private member's bill I have brought forward on behalf of the citizens of Surrey North.
The bill proposes to amend the Criminal Code with respect to the activity commonly referred to as street racing. It was introduced because Canadians want the federal government to address the problem.
Street racing is killing or seriously injuring innocent people. The carnage caused by this reckless behaviour is on the rise in Vancouver, Edmonton, Winnipeg, Toronto and other cities.
Bill C-338 proposes to do something about it and today I ask the government to take action to stop street racing by supporting its passage.
Bill C-338 would amend the Criminal Code to provide that street racing is to be considered an aggravating circumstance for the purposes of sentencing a person convicted of an offence committed by means of a motor vehicle under section 220, criminal negligence causing death; or section 221, criminal negligence causing bodily harm; or subsection 249(3), dangerous operation causing bodily harm; or subsection 249(4) dangerous operation causing death.
The bill also provides for mandatory nationwide driving prohibitions to be served consecutively to any other sentence imposed.
On a first offence, a judge must suspend driving privileges for a period of one to three years; for a second offence, two to five years; and for subsequent offences, three years to life. Also, if death was caused on the first or second offence, a lifetime prohibition will be imposed on the second conviction.
Canadians want anyone who seriously injures or kills as a result of street racing to be prohibited from operating a motor vehicle for a significant period of time. They do not want individuals convicted of this carnage to serve a sentence and then be allowed to immediately get behind the wheel of a car. Neither do they want such individuals to simply move to another province to obtain a driver's licence.
Letters, phone calls and e-mails to my office from across Canada have expressed outrage over the carnage caused by street racing and lenient sentences being imposed, including conditional sentences. The victims do not support using house arrest for anyone convicted of being responsible for a street race crash that has either killed or seriously injured someone.
The British Columbia Automobile Association has advised me that its members are clearly in favour of swift and severe penalties for street racers. In its 2002 member opinion survey, its members expressed support for all penalties used to punish racers, including two year driver's licence suspensions, vehicle impoundment, fines and demerit points.
Last February 6 I received an e-mail from Margaret-Ann Blaney, minister of justice for New Brunswick. She has forwarded my bill and accompanying information to her officials in the justice department. She said that the suspension of driving privileges was of particular interest to her officials.
On February 4, Gord Mackintosh, minister of justice and attorney general of Manitoba, wrote me an e-mail concerning Bill C-338. He said the following:
Since the current Government of Manitoba was elected in 1999, it has introduced strong new measures to deal with dangerous drivers such as tougher driver's licence suspension provisions, including lifetime suspensions, and vehicle forfeiture for the most serious offenders. Amendments made to our Highway Traffic Act this past session have given our provincial street racing offence the highest maximum fine and the highest demerit point level available for provincial driving offences under that legislation.
I agree that it is important to ensure that there are appropriate measures to deter individuals from engaging in reckless driving behaviour that puts others at risk. I perceive that the challenge in pursuing Criminal Code changes is to weigh the effect of what may be inconsistencies in treatment between impaired driving and street racing offenders and to ensure that they are all workable.
You have raised an important issue.
In a January 21 letter to me, Robert Runciman, the then minister of public safety and security in Ontario, declared the following:
Street racing is a serious offence that puts all road users at risk and we must not tolerate it on our roadways. I am pleased that your proposed amendment to the Code would address the issue of street racing during the sentencing process. Mandatory driving prohibitions need to be served consecutively to any other sentence imposed by the courts. I hope your initiative will succeed.
Ontario responded to street racing by proposing legislation empowering police officers to immediately seize a vehicle and suspend a driver's licence for 48 hours. It also proposed to prohibit the use of equipment and substances, such as nitrous oxide, used to boost the performance of engines for the purpose of racing. Unfortunately, the legislation was not enacted due to the recent election. Hopefully the new Ontario minister of transport will reintroduce this legislation.
Jamie Muir, minister of justice for Nova Scotia, wrote to me on January 22 stating:
Although the police have not reported any particular problem enforcing the Provincial prohibition of street racing in this area, this appears to be an effective tool for helping to control the problem where it exists.
Dave Hancock, the minister of justice for Alberta, wrote on January 9 to say:
Street racing is a dangerous practice, which should be an aggravating factor for sentencing certain offenders.
He reminded me that Alberta has significantly increased the penalty for the provincial offence of street racing in the traffic safety act.
The Alberta justice minister went on to suggest that Bill C-338 could be amended to include impaired driving cases. I would have no problem considering amending Bill C-338 to apply to anyone convicted of impaired driving causing death or bodily harm where it can be established that street racing was a factor.
In my home province of British Columbia, Surrey-Green Timbers MLA, Brenda Locke, called on the federal government to crack down on street racers in a motion she introduced in the B.C. legislature.
With the passage of her motion on April 7 of this year, B.C. sent a strong message. Locke's motion calls on Ottawa to remove conditional sentencing for street racers who kill or maim innocent victims. An amendment was introduced to encompass all criminals convicted of a serious violent crime. Both the amendment and the motion passed in the B.C. legislature.
The motion was brought forward in honour of the lives of innocent victims of street racing: Jerry Kithithee, Constable Jimmy Ng and Irene Thorpe. Those three individuals were brutally killed by young men whose reckless, selfish, irresponsible and deliberate actions stole their lives and broke many hearts. There have been more since.
The motion was an important step in urging the federal government to make the necessary changes to the Criminal Code to make our roads safer. It was a de facto endorsement of Bill C-338, which I introduced in this place months earlier. Bill C-338 proposes the Criminal Code changes that B.C. seeks.
Street racing is the height of recklessness and a deliberate endangerment to communities. British Columbians understand the magnitude and the consequences of this activity and question why the courts treat it so lightly and ineffectively.
British Columbians seek justice for street racers and their victims. There have been numerous incidents where victims simply do not see justice.
A number of support groups in British Columbia support a crackdown on street racing. They include Family Survivors Against Street Racers, Our Angels in Heaven and Mothers Against Drunk Drivers.
B.C.'s solicitor general and minister of public safety, Rich Coleman, confirms that 60 vehicles involved in street racing have been seized and 180 driver's licences were suspended since amendments were made to provincial legislation in 2002.
Mr. Coleman stated the following:
This government has for some time been telling the federal government that in cases of offences involving violence, death and sexual assault, we don't believe there should be the opportunity for conditional sentences within the law. We have taken that to the table of the federal justice ministers.
Geoff Plant, the attorney general of British Columbia, says that conditional sentences have no role to play in street racing offences. He states:
The Criminal Code needs to be tightened up in the area of conditional sentencing so that conditional sentences are rarely, if ever, available for a crime of this nature.
MLA Locke concluded her remarks on the passage of her motion by saying:
It has been my privilege to work alongside Nina and her family as well as the Member of Parliament for Surrey North and other volunteers. I want to thank the Member of Parliament for Surrey North for aggressively raising this issue in the Parliament of Canada.
I should point out that the Nina referred to in this case is Nina Rivet who is a sister of Irene Thorpe, the woman who was run down by a street racer while out for a walk one evening.
What is the position of the Liberal government?
In response to a letter from me late last year, the Minister of Justice does not appear to be interested in helping to stop street racing. He says that mandatory minimum criminal penalties “do not work from the point of view of general deterrence and recidivism”.
There is no empirical evidence linking deterrence and recidivism as they relate to street racing. In fact, in a recent B.C. case, the driver who was eventually convicted for the street racing crash that caused the death of Irene Thorpe was arrested for speeding while he was out on bail, even though his licence was suspended as a condition of that bail. This counters the minister's contention because it shows clearly that there is a need for legal deterrence. There is a recidivism problem.
The minister also says that driving prohibitions should remain discretionary. He says that sometimes they may not be necessary because of long terms of punishment handed down to street racers who kill or seriously injure. The problem with the minister's contention is that no one has ever received any of these long prison terms for convictions resulting from street racing.
House arrest is being used for street racers who kill or injure people. This is inappropriate from the standpoint of the victims or their survivors and the protection and safety of communities that have a serious street racing problem.
The government also maintains that there are only a few minimum sentences provided for in the Criminal Code and that it is not willing to add more, such as the mandatory drivers' licence suspensions called for in this bill, but there are many areas in the Criminal Code that provide minimum sentences. I counted 26 offences in the 2004 Martin's Annual Criminal Code that carry a minimum sentence upon conviction. And many Canadians agree that there should be more minimum sentences for many more offences in the Criminal Code. Our criminal justice system needs more teeth.
The government also believes that taking account of aggravating circumstances for the purposes of sentencing is a very rare tool provided for in the Criminal Code. The justice minister suggested that aggravating circumstances for sentencing are virtually limited to hate motivated crimes, abuse of position of trust and authority, spousal and child abuse, criminal organization and terrorism.
In fact, there are other examples. Bill C-15A, passed in June 2002, made home invasion an aggravating factor in sentencing for certain offences. A judge sentencing a person for unlawful confinement, robbery, extortion or break and enter must consider it an aggravating circumstance if the offence was committed in an occupied dwelling where the offender was either aware that it was occupied or was reckless in this regard, and where he or she used violence or threats of violence against a person or property.
I point out that when I presented a motion to that effect at the justice committee a year or more earlier, government members called me silly, and yet they enacted it themselves a year later.
Bill C-46, currently before the justice committee, in clause 3 sets out four aggravating factors for sentencing purposes with respect to fraudulent manipulation of the public markets.
The minister's lame excuses betray a lack of serious consideration being given to this issue by this government. There is no requirement to equate street racing with other crimes in order to allow it to be considered as an aggravating circumstance.
I expect that the government will hang its argument against my bill on its refusal to consider minimum sentences and the use of aggravating circumstances when sentencing. Those are not good enough grounds for the government to fail to address the problem of street racing.
Sanctions should reflect the fact that street racing is an activity that goes beyond the regular criminal activities involving motor vehicles that are covered by the Criminal Code. Driving prohibitions must be nationwide to prevent anyone convicted of causing death or serious injury while street racing from simply moving to another province and continuing to drive.
As street racing incidents causing death and serious injury continue to occur in our major cities, passage of Bill C-338 would serve as a deterrent. This is a proactive legislative measure that would provide one step in the fight to stop street racing.
Today the government has the opportunity to support Bill C-338. It has an opportunity to stand up for the victims and to hold the perpetrators properly accountable.
An Act to Amend the Criminal Code (Cruelty to Animals)
September 29th, 2003 / 3:10 p.m.
Robert Lanctôt Châteauguay, QC
Mr. Speaker, once again, here we are speaking to Bill C-10B. Of course, the first speech I made on Bill C-15B established that we had proposed a number of amendments, unfortunately rejected at the Standing Committee on Justice and Human Rights.
Fortunately, however—and it is rare for those of us this side to be able to say this—the Senate accepted the Bloc Quebecois amendments. As a result, it has been made possible at last to include the definitions of subsection 429(2) of the Criminal Code in this bill.
At last, all industries involved with animals, whether research, hunting or any other, now have a legitimate excuse to do what they have always done, while being totally secure about their dealings with animals.
This, as hon. members are aware, was necessary. In this connection, we congratulate the government for the progress made, despite the length of this process, to achieve the goal of animal protection. There will now be a new section in the Criminal Code. Animals will be struck off one section in which they were considered things. At last there is a section specifically on animals: 5.1.
It is not enough simply to look at what kind of a case an attorney might make. The definition of cruelty to animals was spelled out in a section. But now, there are legitimate means and especially means of defence under section 8 that are common law defences. It is in fact an explicit defence that is set out in the current legislation for anything regarding means of defence provided in section 429(2).
I commend the committee. Unfortunately, I could not attend all the committee meetings. At first, the Liberal members of the Standing Committee on Justice and Human Rights agreed with us on the amendments and the concept of having explicit defences.
As I said earlier, I do not understand why this was rejected. Unfortunately, I was not at the committee. What made the committee members change their minds on including these explicit defences? Was it the evidence they had already heard or the evidence from animal industry people who appeared before the Senate committee and are probably the same people who expressed their concerns at the House committee?
It was simple. If the Bloc amendments and my amendments had been accepted, Bill C-15B would already be passed. All this is a waste of time. Fortunately, the bill will be passed as desired.
I have a lot more respect for the members of the Standing Committee on Justice and Human Rights, because they openly said they were concerned the bill would not be explicit. It was based on a manner of saying that implicitly, there are defences. But it was clear in the section that explicit defences were being provided.
The legislator does not talk needlessly. If something is included in this section and was not consistent with section 8 of the common law, then the legislator was not talking needlessly. I have a hard time understanding why my colleagues voted against these amendments in the end. They said that section 8 of the common law applied implicitly. That is true, but why were defences included that are specific to section 429?
I tried to get explanations through the questions I was able to put to witnesses, who shared my concern. Fortunately, today, while the result is not ideal—the Senate did not include all the amendments put forward by the Bloc Quebecois—but the cornerstone, the most important aspect, that is the defence under section 429, was taken into account.
I must add that the Bloc Quebecois has supported from the start the creation of a new section 5.1 to protect animals and prohibit cruelty against animals.
I want to come back to committee work. Early on, we heard between 20 and 30 witnesses, who told us various things. They said they too wanted tougher penalties for cruelty in order to protect the animals. But what the husbandry industry wants most of all is the assurance that all they have been doing all those years will continue to be considered as defences. Naturally, these defences may be common law defences under section 8, but also be defences under subsection 429(2).
Witnesses answered our questions. A concern was expressed. If implicitly there were protected, why have wasted all these months before finally understanding? The government finally understood that, with respect to the rights explicitly provided for in the Criminal Code, no amendment was put forward to take them away, but to include them. We must realize that if the provisions concerning animals are moved to a new and separate section 5.1, I think it is clear and obvious that they have to be included.
I would be curious to know whether this was achieved through lobbying or if someone finally realized that implicitly and explicitly is not the same thing.
If today it is explicitly provided for under section 429, the credit goes to the Bloc Quebecois and myself, as the member for Châteauguay. I fought long and hard in committee to put that point across. Clause by clause, I took the time to explain that these amendments were necessary. Why were they rejected? That is incredible.
Today we are obliged to revisit this important bill, now amended, as it might have been earlier. That is why I mentioned the work of the committee. That work is interesting while one is doing it. When it comes to the clause by clause study, all the effort by the witnesses who came to make things clear and explicit is swept aside.
Some of the hon. members only attend for the votes and do not even listen to the witnesses. Why is that? Because they come to vote unanimously along the party line. But in this case, the party line was faulty. We can see that today.
By way of the Senate, this House is now ready to accept my amendments, including the very cornerstone.
How is it possible that these same hon. members, who are sitting today on the same committee, have gone back in time to when the bill was introduced, and now they have changed their minds? All the explanations have been given once or twice. During clause by clause study, these amendments were presented as well.
There was some logic. I recall the Minister of Justice of whom I asked questions on several occasions. He would rise and say, “To the hon. member for Châteauguay, I say it is implicit; the animal industry, the hunters, researchers, all the people concerned will be able to continue in the same way”. That was the minister's response.
But I prefer the response the minister is giving me now, because now it is clear. We will not be obliged to use section 8, the common law provision. It can be done using specific defences and it is sometimes necessary to use this article; that is obvious.
Still, in other specific cases, section 8 would not have made it possible to arrive at the same result. Luckily, section 429 will finally be included in the new section. Why is it important to include it explicitly?
First, it will ensure the support of the Bloc Quebecois, because this is a very important bill. We must protect these animals. We have all seen films of puppy and kitten mills, and the harm that can be done to animals. Unfortunately, we were in an uncomfortable situation. We supported the principle of amending the Criminal Code in order to provide for harsher penalties and to include a new section.
However, due to the government's stubbornness, we were forced to vote against it. Then, we were forced to tell our constituents exactly why we had done so.
During the speeches, people said, “Yes, you support the amendment and animal protection and the imposition of stiffer penalties. But why did you vote against the bill at that time?”
When we met people, we realized that even lobbyists for animal rights groups understood the amendments we wanted to make. The government wanted to do even more than people were asking it to do. The goal was to stop such cruelty. People came to my office and told me, “Sir, we agree with your amendments. People must realize that the entire House could vote in favour of such important legislation”.
I never understood why, but there was an underhanded attempt to hurt the animal industry. I am pleased that lobby groups got involved, not just those wanting to protect animals from such cruelty. The entire animal industry, including producers and breeders, also wants to protect the animals.
They came to give evidence and said, “Of course we want people who are cruel to animals to be punished”. People who are cruel to animals do not need protection. People sometimes know of a cruel neighbour but, because of this neighbour, the entire industry is perceived as being cruel to animals. Sometimes, the animals are raised, taken to slaughter and killed for food.
They were put in a situation where a group of individuals or a slightly zealous crown attorney could have brought charges against the animal industry, because the new legislation was flawed. There were no provisions to protect that industry.
It was simply and implicitly told, “You have the right to these means of defence”. In Canada and Quebec, what would happen to researchers using rats and mice. There is a need, however, for this, and standards were established to ensure that animals do not suffer. This industry has strict standards and it respects them.
These people could end up facing prosecution. Why? Because of a poorly drafted piece of legislation which was missing a crucial element, namely providing specifically for these rights of defence.
I am very pleased to have the opportunity today to speak to these issues again, even though it should have been done earlier. I want to say a word about the power of those people who come to testify before a committee. This shows how important it is to come and meet the members to make them aware of various specific aspects. Those who came before our committee know a lot more about animals than the 301 members do. There are perhaps some members in the House who work with animals, but they are not the majority. I am not one of them since I am a lawyer. I do not know a lot about animals, but I do want to protect them.
We obviously need a solid piece of legislation. Now, with more specific provisions regarding the rights of defence, attorneys will have more forceful arguments when they go to court because the rights of defence are specified. Prosecutions will then focus on those people who really are cruel to animals. This important bill has more teeth. It provides for stiff fines and possible imprisonment. It also provides for follow-up.
This raises awareness, especially if such a bill has the unanimous support of the House.
I heard my colleagues from the Canadian Alliance say that they were against this bill, just as I did when it was not clear enough. I want to remind my Alliance and Bloc colleagues of the work that was done to vote against this bill when it was poorly drafted. However, I supported this particular aspect because it was important for the animal industry throughout Canada and throughout Quebec. I now hope that government members understand that.
On such a technical issue, that was the way to go. It was up to the members of the committee not only to talk to the justice minister but to make their colleagues understand how crucial this was. Surely there are members who represent rural regions where animal industries can be found or urban areas where research companies, pharmaceuticals companies and other companies using animals for research purposes or simply for providing food are doing business. Hunters should not be forgotten either. These people have rights, and not only vested rights. We should avoid referring only to “vested rights”. In a society like ours, in 2003 and soon 2004, we have to be able to say that cruelty to animals is now prohibited.
Why should this bill now be agreed to by everyone? Why should it be unanimously passed in the House? Because the implicit defences are now explicitly recognized. The time has come to send a clear message to everyone. I know that the animal industry will now support this bill, just like the Bloc Quebecois and hopefully the Canadian Alliance and the Progressive Conservative Party.
The House should overwhelmingly support this bill in order to send a clear message to the public. Cruelty to animals is over. I hope that the penalties will be tough enough and that we will have the money to fully prosecute lawbreakers.
An Act to Amend the Criminal Code (Cruelty to Animals)
September 25th, 2003 / 5:05 p.m.
Paul MacKlin Parliamentary Secretary to the Minister of Justice and Attorney General of Canada
Madam Speaker, I am pleased to rise today to introduce the debate on the message from the other place insisting on further amendments to Bill C-10B, an act to amend the Criminal Code (cruelty to animals).
Let me remind the House that we have been on a long journey with this bill. Animal cruelty amendments were originally introduced in 1999 in Bill C-7, a small omnibus criminal law amendment bill.
Bill C-17 died on the Order Paper when Parliament prorogued in 2000 without having completed second reading.
In March 2001 the government introduced Bill C-15, a new and larger omnibus criminal law bill containing the animal cruelty amendments. Some revisions had been made to the amendments to clarify the scope and the intent of the measures. Subsequently, the House split Bill C-15 in 2001 and the animal cruelty amendments and other amendments became known as Bill C-15B. The House passed Bill C-15B in June 2002. It died again when Parliament prorogued that summer.
In October 2002 the bill was reintroduced as Bill C-10 and referred directly to the other place. In November the other place referred Bill C-10 to the committee on legal and constitutional affairs with an instruction to split the bill into two portions. The animal cruelty amendments became known as Bill C-10B.
Committee hearings in the other place commenced in early December 2002 and concluded on May 15, 2003. Bill C-10B then received third reading and was passed in the other place on May 29, with five amendments.
The House debated the amendments on June 6, 2003. The House accepted the amendment to the definition of animal and a small technical amendment to the French version of the bill.
It also accepted the spirit of the amendment that made express reference to the defences of legal justification, excuse and colour of right, with a modification that removed an unconstitutional reverse onus and cross-referenced the currently applicable subsection 429(2) instead of reproducing the defences because this more clearly would indicate to the courts that existing case law should continue to apply to this new regime.
However, the House rejected the other two amendments that came from the other place. One of these was an amendment that would have replaced the offence of killing an animal without lawful excuse with the offence of causing unnecessary death to an animal. The other amendment was one that would have provided an express defence for aboriginal practices that do not cause more pain than is necessary. Both amendments were rejected on the grounds that, first, they were legally unnecessary; second, they were confusing; and third, had unclear legal effect.
The House urged the other place to pass the bill in the form in which the House approved it. A message was sent to the other place to acquaint them with the position of the House.
The other place considered that message and we are now in receipt of its response. The other place is insisting on the two amendments that the House rejected, with a small revision to the aboriginal defence amendment, and would further modify the legal justification, excuse and colour of right amendment adopted by the House.
The government's motion before us today makes clear that the government does not support the amendments that the other place is insisting upon. The House rejected two of them in June and continues to oppose them. As for the proposed change to the colour of right amendment, the government opposes that as well.
These animal cruelty amendments have been before Parliament in one form or another for nearly four years. A lot of hard work and discussions have taken place over that time between the government, and various individuals and groups concerned with the legislation.
In an effort to clarify the law as much as possible, even if the clarification was not required as a matter of law, the legislation has been amended three times already since it was first introduced in 1999.
In the view of the government, the form of the bill passed by the House in June satisfies the remaining concern of the stakeholders that have followed the progress of the legislation. It constitutes a compromise that strikes the correct balance between clarifying the law as it applies to animal industries without diluting the purpose and effect of the legislation.
With the participation of the other place, this hard work and compromise has brought the bill to a form that animal welfare groups on the one side and animal industry groups on the other side can all support.
In short, it seems that no one is asking for these additional changes that the other place is insisting on. The other place may think they are crucial, but this House does not, nor do any of the organizations that represent the people who work with animals.
Let me address each of the amendments in turn. The first amendment would replace the offence of killing an animal without a lawful excuse with the new offence of causing unnecessary death to an animal.
The government is of the view that the defence of lawful excuse is a well developed and well understood defence. The courts have interpreted on many occasions that it is a flexible, broad defence that is commonly employed in the Criminal Code of Canada. It is fairly and consistently applied by courts.
More importantly, since 1953, this defence has been applicable to the offence of killing animals that are kept for lawful purpose. It has a history in the context of animal cruelty offences.
The government is convinced and satisfied that the defence of lawful excuse offers adequate and unambiguous protection for lawful purposes for killing animals. No witnesses who testified at the committee of this House or of the other place testified that this defence was unclear or unsatisfactory.
For all of these reasons the government remains convinced that maintaining the defence of lawful excuse in relation to offences for killing animals continues to be the best and most appropriate manner of safeguarding the legality of purposes for which animals are commonly killed.
Further, the government does not believe that the proposal of the other place would improve the law. In fact, it is likely that the proposal would actually give rise to confusion and uncertainty. The proposal would use the term “unnecessary” to apply to killings, but the term “unnecessary” as it has been judicially interpreted does not logically apply to the act of killing. “Unnecessary” is currently only applicable to the acts of causing pain, suffering or injury. It has two main elements: first, a lawful purpose for interacting with an animal; and second, a requirement to use reasonable and proportionate means when accomplishing this objective.
It is clear that in terms of the act of killing only the first part of the test for “unnecessary” is relevant and logically applicable. The question is, was there a lawful purpose? To ask the question about reasonable means makes no sense. It is not a qualitative assessment but rather a yes or no question about whether there was a good reason for the killing. This is why the defence of lawful excuse works and the concept of “unnecessary” does not.
It is currently an offence to kill an animal without a lawful excuse. It is also an offence to kill an animal with a lawful excuse but in a manner that causes it unnecessary pain. These are currently two distinct and separate offences.
The proposal would fold the elements of these two different offences into each other. This could lead to a reinterpretation of the well developed test of “unnecessary”. In short, this will add confusion rather than clarity to the law. For these reasons the government does not accept this amendment.
With respect to the second amendment, the amendment which would create a defence for traditional aboriginal practices, the government does recognize that a small change was made that removed an element that was overly broad. The amendment would create a defence for traditional aboriginal practices that cause no more pain than is reasonably necessary. The government agrees that this should indeed be the case and in fact already is the case. Therefore, the amendment is not necessary.
By virtue of the way the offence is defined, it is already the law that aboriginal practices, that cause no more pain than is reasonably necessary, are not currently offences. If we cause no more pain than is reasonably necessary, we are not causing unnecessary pain, which is what the offence requires. If we are not committing an offence, we do not need a defence. Nothing in Bill C-10B will change this.
The government believes that the existing law and the bill, without the new and special defence, already achieve the objective sought by the other place.
There is no need to mention aboriginal practices specifically. The law is already flexible enough to consider all situations and contexts. In addition, by adding a new and special defence for aboriginal practices when one is not necessary, this proposal could unintentionally create mischief.
It is confusing to create a defence for actions that are not a crime. The government does not believe that the law would be improved by creating a defence that is legally unnecessary and has the potential to confuse rather than clarify the interpretation of the offences.
The final proposed amendment in the message from the other place relates to the defences of legal justification, excuse and colour of right set out in subsection 429(2). The proposal would remove the phrase “to the extent that they are relevant” from the amendment that was passed by this House in June. The government believes that these words are helpful and should remain.
The defences in subsection 429(2) of the Criminal Code apply to a variety of different offences, including animal cruelty. The inclusion of the phrase “to the extent that they are relevant” is intended to signal to the courts that the existing manner of applying those defences to animal cruelty offences should not change. It makes clear that the intention is to maintain the status quo, not to alter it.
The words are clear and not capable of being misunderstood. The defences are available in any and all cases where they are relevant. The relevance of a defence to a particular case depends on the specific circumstances and the facts of that case. The phrase guarantees an accused access to these defences when they are relevant. It does not limit or otherwise take away a defence that could be raised.
There can be no possible unfairness to an accused person to be denied a defence that is not relevant. That is just common sense. For these reasons, the government does not agree with the amended amendment proposed by the other place.
The government would once again like to thank the other place for giving Bill C-10B such thorough consideration and attention, but the government believes that the time has come to pass Bill C-10B in the form this House approved in June.
This bill already safeguards humane and reasonable practices involving animals and has the support of groups representing hunters, farmers, fishers, animal researchers, and those representing the welfare of animals. There is a tremendous degree of consensus now and a strong desire on the part of these organizations and hundreds of thousands of Canadians to see the bill become law.
I urge all members of the House to vote in favour of the government's message which rejects any further amendments and requests that the other place pass Bill C-10B as quickly as possible.
June 11th, 2003 / 3:30 p.m.
John Maloney Erie—Lincoln, ON
Mr. Speaker, pursuant to Standing Order 36, I am pleased to present a petition on behalf of my constituents of Erie--Lincoln.
The petition deals with former Bill C-15, now Bill C-250. The petitioners feel that passage of this legislation will lead to violations of freedom of speech and religious freedom in our nation. They call upon the House to strongly oppose the passage of Bill C-250 and not to allow it in any form to be passed into federal law.
An Act to amend the Criminal Code (cruelty to animals)
June 6th, 2003 / 1 p.m.
Peter MacKay Pictou—Antigonish—Guysborough, NS
Madam Speaker, I am pleased to take part in this debate.
The bill has followed a rather long and circuitous route to this point. Clearly there is a need, given the duration since legislation of this sort has been before the House of Commons. It is somewhere in the range of 100 years since we have updated this particular section of the Criminal Code that deals specifically with the issue of cruelty to animals. This is something concerns all Canadians and something that invokes a very emotional response from most.
It is my view and the view of the Progressive Conservative Party that this is the type of legislation because of its broad ramifications that we have to be extremely careful with.
The Senate has played an important role in what I would describe as refining and improving this bill. The bill deals in great detail with the need to protect animals, balanced of course with the livelihood of Canadians whose virtual well-being and existence are derived from their interaction with animals. I am speaking of course of the traditional farmers, hunters and trappers just to name a few.
The need to hold those accountable and punish individuals who would intentionally injure or kill animals is without a doubt a priority. Further to that point there is clear evidence now coming from various sources and psychological studies that link individuals, youth, who show aggression and have abusive tendencies toward animals with a tendency to do the same to fellow humans. That underscores again the importance of the Government of Canada reacting to this and bringing forward legislation which sends the proper message of accountability, denunciation and deterrence for individuals who would be prone to abuse animals.
The cases of cruelty toward animals that have come forward and the cases that I myself have been involved in prosecuting are totally disturbing and would shock the sensibilities of most Canadians.
I am supportive of many aspects of this legislation. I believe that the consultation on this bill was extensive. We heard from all sectors of those affected and groups that have taken on the specific task of protecting animals. Their input was comprehensive and very helpful in drafting the bill.
The decision to remove the current Criminal Code provisions which deal with animal cruelty from the property section of the Criminal Code is one which has invoked a very strong, and I would suggest, negative response. The proprietary aspects of animal use have always been extremely important to animal cruelty laws, but also important to those individuals who derive their livelihood from working with animals.
Moving animal cruelty out of part 11 of the Criminal Code removes the protection that animal users had by virtue of section 429(2). This important section currently permits acts to be done with legal justification or excuse or with colour of right, therefore providing a built-in exemption for activities in particular that involve hunting, trapping and farming where there would be an unwitting or unjust finding that an individual has contravened the law in the pursuit of their livelihood. That built-in protection was removed when we took these animal cruelty sections out of the property sections and put them in a stand-alone scenario.
I do, however, share the concerns of many Canadians that the definition of animal cruelty involving any animal that has the capacity to feel pain was in need of amendment and of further clarification. Through such a definition I believe we have found the proper balance.
Concerns were expressed early on in our deliberations at the justice committee that there might be some stretch that would involve prosecutions for things such as baiting a hook or boiling a lobster. These types of activities are obviously a stretch to suggest that they would have resulted in prosecution. Nevertheless, when we are dealing with something as important as this, it is important to give clarity to those affected.
Therefore our party has been unequivocal in its support for improving and enhancing the Criminal Code provisions dealing with animals and cruelty to animals.
There were a number of changes made by the Senate which highlighted the usefulness of the Senate to examine something like this. In a calmer light certain provisions were enhanced and were changed. The aboriginal exemption was one which was highly contentious, one which is I believe welcome and has again struck the balance needed.
The former minister, when dealing with this issue of carelessness over the drafting of Bill C-17, the original bill, used words such as “wilful”, “cruelty” and “unnecessary pain” in the drafting of this bill, Bill C-15B. However I hearken back to the decision to take it out of property and put it into a stand alone section. That in my view was a mistake. It would have been much simpler to make these amendments and leave it in the property section. The argument against that was that it would inhibit the ability to prosecute those cases. I think that was a false argument and a false premise.
Enhancing this law is the purpose. I believe that has occurred. The protections that were built in by leaving it in the property section would in no way inhibit the accountability aspects. The elevated fines and the elevated potential jail time would still be there and would still be available to the crown to pursue through prosecution.
The aspects of the legislation which touch upon the need to prevent any sort of needless pain or suffering of course are also embraced and quickly supported by our party. There are many examples, as I referred to earlier, where cases that proceeded through the courts resulted in inadequate fines and inadequate results that did not send the proper message to society.
The laws to protect animals must be very clear and unequivocal in sending the message to individuals who are prone to this type of activity.
I took the step of introducing to the House of Commons a bill specifically aimed at identifying prosecution in the area of puppy mills. This is something that came to public attention in recent years where animals, not just dogs, were being raised for mass sale commercially and where animals were treated to the most abysmal conditions. This is still a problem and perhaps is in need of a specific reference in the Criminal Code to address anyone so inclined.
The traditional practices were under examination throughout this process of drafting the bill. Hunting, fishing, farming and many other legitimate activities do not fit the description of mean spirited, violence or intentional cruelty toward animals.
Therefore it is imperative that we throughout these discussions underline that animal cruelty legislation must be clearly targeted against individuals who engage in brutal activities against animals, not the legitimate type of activities that we are all aware occur.
When one considers the need for this type of progressive legislation, there were a number of discussions that already took place here with respect to the need to have a fulsome discussion that engaged Canadians and allowed them to come and reflect upon these potential changes. I believe this process has been one of the most comprehensive and one of the most useful in which I have personally partaken.
I support the provisions of the bill which provide the crown with the ability to prosecute an offence for individuals who wilfully or recklessly or without regard for the consequences do so. That type of language leaves no doubt as to the malice aforethought, as it is often referred to, of an act, that there was an intention to cause the harm.
The sections go on to list the type of activity that would fit that description. This is clearly an area where judges, prosecutors and defence, those involved in the prosecution of the case, will have an opportunity to put forward what I would suggest are common sense arguments based on the evidence.
Where it sometimes does become blurred is where individuals who are the owners of property and premises where animals are kept and the line can then become grey.
My colleague from South Shore referred to an animal that might accidentally have its head caught in a fence and therefore choke itself. There is a high threshold expected if every farmer is required to ensure in every instance that the fences will not cause this unintended result. I suggest that the common sense doctrine will have to be applied in any situation where that would occur.
I agree as well that everyone commits an offence when they fail to provide reasonable care to animals. Thus we are talking about the aspect of neglect, acts of omission, where premises are left in a dangerous condition or animals are left in such condition that their well-being is in question. This again is something that would be viewed objectively based on evidence that would be adduced.
I support the sections of the bill which allow courts to prohibit individuals convicted of cruelty from owning an animal in the future. That is a very important consequence. Where a person, who has been convicted under these sections, has demonstrated this recklessness and has met that threshold before a court of law, that should be the consequence. They should not be permitted to be in possession of animals, having caused that type of harm and distress to an animal.
Presently the sections I believe did not adequately reflect the seriousness of this type of offence. I hope this will raise the benchmark that judges have applied to individuals convicted under the current sections of the Criminal Code.
I have the greatest respect for those individuals in particular who have come forward and who have participated in this process to ensure that not only their personal interests, but the interests of all Canadians who work with animals are protected.
The legislation, coupled with the Senate amendments, is a great improvement upon the original bill. I do not intend to get into a long recitation on what happened with the legislation, but clearly we have seen the bill divided and subdivided on a number of occasions. The legislation was before Parliament in a previous session. It did not pass. It went back to committee. It has been back and forth between the House of Commons and committee, and the Senate as it now appears.
We have seen, although the process itself can sometimes be elongated, that it can work. Some of the necessary changes that did not occur in our House were dealt with very effectively in the other place. I commend our senators for having taken such an interest and picked up the cudgel on this to improve the legislation as we now see it.
Having said that, this bill is long overdue. It is one that has been extremely contentious. I am satisfied, having spoken to those who will be most directly affected and those who have taken such a passionate interest in the protection of animals, that we now have a bill with which I think people can live.
There is always room for improvement. I suggest any bill that is churned out of this place will be subject to examination by the courts. The process itself, as I referred to, is not always pretty. It is a bit like, and I hesitate to use this example, sausage-making. People do not want to see how it is made but it is the result that counts.