Bill C-12 (Historical)

An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act

Criminal Code

[Sue Barnes, Liberal, London West, ON]

Mr. Speaker, I am pleased to rise today to speak to Bill C-22. I am also very aware that all the justice critics need to be in committee for clause by clause of another justice bill right after this, so I am going to truncate my remarks to help get all the right people in the room who need to be there shortly after question period.

I will say at the outset that our party will support the bill. In doing so, we are following up on work that has gone on over a number of years. The Speech from the Throne of October 5, 2004 committed the government to cracking down on child pornography. Similarly, in the previous Speech from the Throne, the former Liberal government committed to reinstating former Bill C-20, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

The bill was reinstated on February 12, 2004 as Bill C-12. It was awaiting second reading in the Senate at the time of that Parliament's dissolution for a federal election. In June 2004 the then prime minister reiterated support for reintroduction of the package as the first legislative item in the new Parliament. I know that the former minister of justice, the hon. member for Mount Royal, introduced in the former Parliament Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act. It received third reading on June 9, 2005, royal assent on July 20, 2005, and came into force in its entirety less than a year ago, on January 2, 2006. Bill C-2, then, is built on reforms previously proposed in the former Bill C-12 and proposed reforms in five key areas.

I might reiterate, too, that former Bill C-12, by a procedural motion, a hoist motion, from the then opposition Conservative Party, was prevented from going forward a couple of years earlier.

Be that as it may, when I hear the Minister of Justice incorrectly saying that nothing was done, I have to put on the record that we did strengthen prohibitions against child pornography.

We broadened the definition of child pornography to include audio formats as well as written material “that has, as its predominant characteristic, the description of prohibited sexual activity” with children “where that description is provided for a sexual purpose“. We prohibited advertising child pornography, increasing the maximum sentences and making a number of offences have more bite.

We wanted to protect young persons against sexual exploitation. One of the things that I like in Bill C-22 is that the government has not disposed of that section that was so important, the section that talked about the exploitation of children. It had prohibited sexual activity with young persons between 14 and 18. Under Bill C-2, a court would be directed to “infer that a relationship is exploitative of the young person based on its nature and circumstances, including the age of the young person, any difference of age, the evolution of the relationship, and the degree of control or influence exercised over the young person”.

Consistent with the existing criminal law treatment of sexual assault, that bill focused on the offending conduct of the accused rather than just on the young person's consent to that conduct. That was always the concern, that it was not just an age number, because the age of 14 has been in the Criminal Code and utilized since the late 1800s. It was the “exploitative” nature, and I am pleased that the bill keeps this, because that helps in our being able to come forward with our consent today.

We did increase the penalties for offences against children.

We facilitated testimony not only for child victims and witnesses under 18 years but for other vulnerable victims and witnesses. This is procedural, to help stop re-victimization in the court process.

We created a new voyeurism offence. Today we have those cameras that take pictures; that is why we needed this.

In 2002 we also created the offence of Internet luring under section 172.1 of the Criminal Code. That prohibited the use of a computer system, including the Internet, to communicate with a young person for the purpose of committing a sexual assault against that person. It can and is being successfully charged, irrespective of whether a sexual assault actually took place. The fact of the offending conduct of trying to lure a child via a computer system is what we were getting at and it is there.

Also, just a few weeks back, a private member's bill on increasing sentences passed in the House.

Today's Bill C-22 is an improvement over former private members' bills, no matter how good the intention was. The fact is that now this bill has the five year close in age exception and that will go a long way, I think, in helping us to accept this bill and give our consent to it.

In fact, in our Liberal justice plan announced last week, this was one of the bills that we said would be put forward and given consent by our party, along with the other bills of conditional sentencing and imprisonment, as amended in committee, such as: Bill C-9; Bill C-18, an act to amend certain Acts in relation to DNA identification; Bill C-19, an act to amend the Criminal Code (street racing) and to make a consequential amendment to the Corrections and Conditional Release Act; Bill C-23, an act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments); and Bill C-26, an act to amend the Criminal Code (criminal interest rate), which was debated in the House last week under the topic of payday loans.

We on this side will add Bill C-22 to that list of bills. There are about 11 government justice bills. This one makes six that the Liberals are prepared to move forward in the Liberal justice plan, although we do not think that these bills are universally perfect. But we could find flaws with all pieces of legislation in the House. There are sections in this bill to do with unconstitutional areas of the Criminal Code, which we could have fixed. The justice minister has chosen not to do that, but at this stage I think the protection of children should be our utmost priority.

Listening in the chamber today was one of the good police officers who has to work in this area. He was kind enough to give some Liberal members a briefing. Unfortunately, his colleague from the federal police services was not allowed to do that, for reasons unknown.

On this side of the House, we as the official opposition are prepared to support this bill. I am prepared now to move on and give my time so that critics from the other parties can all be present in the justice committee for voting measures later this afternoon on another piece of legislation. There is unequivocal support here for Bill C-22.

[The Speaker]

I am sorry to interrupt the parliamentary secretary, but it being 5:29 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at the third reading stage of Bill C-12.

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

[Leon Benoit, Canadian Alliance, Lakeland, AB]

Mr. Speaker, I am pleased to rise to speak to Bill C-12 today. What the bill is intended to do, which is quite different from what it actually does, is to make amendments to the Criminal Code that are intended to safeguard children from sexual exploitation, abuse and neglect.

Clearly these are issues that should have been dealt with a long time ago. In fact, I have been in the House for over 10 years now, and when I first came here the government promised it would deal with these issues. Legislation has appeared on a couple of occasions before and it was supposed to deal with some very serious problems regarding child exploitation, abuse and neglect, yet nothing concrete has happened.

I can safely say that things are no better now when it comes to protecting our children than they were when I came here 10 years ago. In fact, if we take a careful look at the law and the way the courts interpret the law, I think it is safe to say that things are actually worse now and the law actually does a poorer job now of protecting children than it did 10 years ago.

Now we have Bill C-12, which is supposed to fix these flaws in the law, but clearly Bill C-12 will not do that. There are several clear gaps in this legislation, which really make it clear that it will not do the job that it is intended to do. Again, the stated purpose of the legislation is fine, but what the legislation delivers is not. Frankly, that is a common problem that I have seen over the past 10 years. We have seen legislation that states a noble goal but then once delivered really does not do it.

The government seems extremely weak when it comes to putting forth effective legislation and that is too bad, especially when we are talking about protecting our children. I am going to point out some of the specific areas where this legislation clearly fails.

First, this legislation does not eliminate all defences for the criminal possession of child pornography. That is what the Canadian public wanted. It wanted all defences for the possession of child pornography eliminated.

Second, it does not raise the age of consent for adult-child sex. Since I have been here, I have seen literally tens of thousands and hundreds of thousands, possibly millions--it probably is in the millions--of names presented on petitions from Canadians who have called on the government to raise the age of sexual consent from 14 to 16. What has the government done about these hundreds of thousands and probably millions of petitioners? It has ignored them, and that is really another serious flaw in this legislation. The government did not listen to the people who really understand what has to be done, but I will get to that later.

The third thing this legislation clearly fails to do is institute mandatory sentences for child sexual assault. What more important role has the law than to protect our children? To me the answer is clear: there is none. There is simply no more important role of the law than to protect children, yet this legislation clearly fails to do that.

The laws in the United Kingdom and the United States put in place mandatory sentences for sexual assault against children. Why is this so difficult or why is this government so unwilling to do that in Canada? Quite frankly, I do not have the answer.

I do not have the answer. It has been so frustrating. Several members of our party have taken on this issue with everything they have. We have all spoken to this issue. We have all encouraged the government to get serious about protecting our children. Yet what do we get? We get Bill C-12, which absolutely, certainly and clearly will not do that. Why? I will not try to answer for the motives of the government. I can say that this will not do it.

Because of this, Canada is becoming a global haven for child predators. That is not the kind of reputation I want for our country. One of the things we do not want Canada to be is a haven for sexual predators, yet because of our weak law that is exactly what we have become. It is shameful and it is embarrassing. More important, it is a failure of the Government of Canada to protect our children. It is such an important failure that it has to be corrected. The government has made several attempts to correct this over the years but it has clearly failed.

I want to go back to the issue of who the government listens to when it comes to making laws with regard to this issue. Does it listen to the Canadian public? No. As I have already said, we have had petitions presented in the House that have been signed by hundreds of thousands, possibly millions, of people. I would venture to guess that all of us in this party have presented petitions on this issue. Clearly the government has not been listening to the Canadian public.

This government tends to be elitist and wants to listen to a certain elite group of people that knows better than the general public; that seems to be the way it thinks. If that is what it wants to do, has it listened to front line police officers? That would make sense. Front line police officers know that child abuse takes place and they know how it takes place. They know where they fail in building a case that would stand up in court because of the law put in place by the government. Front line police officers know all these things. They also know the unbelievable damage this predation does to children and their families and their communities. Front line officers have told the government that, but does the government listen? It does not.

Until the government listens to child advocates, to front line officers and to the Canadian public, it will never fix this problem. I just want to say that a Conservative government will. We will. We have been speaking out on this issue and putting forth concrete recommendations for change. We have put amendments to legislation that the government has brought forward. Those amendments by and large have been ignored.

But when we form the government we will fix this issue, because to us the protection of our children is important. It is something we see as one of the most important things a government can do and clearly one of the things government is expected to do. We will do that.

Part of this problem has come about as a result of the artistic merit defence. How many people have called the offices of every single member of Parliament, including Liberal members, to say they were upset with the Sharpe decision? In that case, the Supreme Court interpreted artistic merit and said that in the law it should be interpreted in the broadest sense possible.

While members of Parliament on both sides of the House have heard about this again and again, the government has done nothing to fix the artistic merit problem in Bill C-12. It simply is not going to change in that regard, but this has to be fixed. That is a big part of the reason why this problem has been allowed to carry on for so long. It simply has to be fixed. I have very little faith that this will happen, but I hope it will before Parliament is dissolved. If the government does not fix it, we will.

Business of the House

[Jacques Saada, Liberal, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform]

Mr. Speaker, this afternoon we shall continue with the opposition day motion.

Tomorrow we shall debate the motion to refer to committee before second reading Bill C-34, the bill introduced earlier today respecting dumping of toxic waste by ships. We shall then return to third reading of Bill C-23, the first nations fiscal legislation, Bill C-12, the child protection, and Bill C-10, the cannabis legislation.

Next week, we will continue this business where it has been left on Friday. We will add to the list a motion to refer to committee before second reading a bill to be introduced tomorrow concerning the DNA data bank.

Tuesday and Thursday shall be allotted days.

Hopefully, by the end of the week, we will begin to have some of the legislation now in committee reported back, so that we can get a good start on finishing the work we have to do before the summer adjournment.

Criminal Code

[The Speaker]

The House will now proceed to the taking of the deferred recorded division on the amendment to the motion at third reading stage of Bill C-12. The question is on the amendment.

[Ken Epp, Canadian Alliance, Elk Island, AB]

Mr. Speaker, I notice that no one else is rising, so I will indeed take the opportunity to challenge the member.

She has failed to address my question. She gave a wonderful answer, that there are some nice things in the bill and some positive things. I agree. The bill is not totally bad. That is not why we are sending it back. It has several serious fatal flaws and we want those corrected in the bill so we actually protect our children.

I posed the problem to her twice. This is now the third time. Her inability or unwillingness to address it, I think is a tacit admission that the bill fails on the very point I mention. That point is, if a 15 year old smooth talks a 13 year old neighbour into doing things which are wrong, that child does not have any protection of the law. Yet the government has the gall to call Bill C-12, in brackets, protection of children. It does not do exactly what it says in the title of the bill that it purports to do.

How is a 13 year old protected in this scene that I have stated? The fact that she will not address the question and talks about everything else is warranting a press release that says that the Liberals do not care whether 15 year olds smooth talk neighbouring 13 year olds into having sexual activity together and things like that.

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, the amendment before us is as follows and I will quote it because it is important for the Canadian public to understand the amendment. The amendment put by the opposition party states:

Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, be not now read a third time but be referred back to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness for the purpose of reconsidering all of its clauses, with the view to eliminate loopholes identified by the nation's most notorious child pornographer, Robin Sharpe.

That is the official opposition's hoist motion.

I understand from this amendment that child pornographer Robin Sharpe claims to like Bill C-12, the protection of children and other vulnerable persons bill. Sharpe is said to like Bill C-12's proposed new sexual exploitation of children offence on the basis that he thinks it would provide an accused with the opportunity to cross-examine the young victim on their sexual relationship, and that this could in turn both educate and entertain the public about child-adult relationships.

It is incredibly important to restate again that the government finds absolutely nothing entertaining or educational about the sexual exploitation of children.

While Mr. Sharpe is entitled to his own personal opinion, as are all members of the House, we do not on this side of the House look to convicted child pornographers for legal advice. Bill C-12 would directly respond to the issues that the government and indeed Canadians have identified as demanding new legislative responses.

First, it would provide young persons with additional protection against sexual exploitation by creating a new offence. With the proposed new offence, a court could infer that a relationship is exploitive of the young person based on the nature and circumstances of the relationship, including the age of the young person, any difference of age, the evolution of the relationship, and the degree of control or influence exercised over the young person.

The primary focus of this review is not on the sexual activity, but rather on whether the accused exploited the young person. For example, it focuses on how young was the victim and how much older was the accused. Did the accused control or influence the young person by befriending, for example, a wayward or neglected young person, or by buying things for this young person?

In this way the focus is on the offending conduct of the accused, rather than the young person's consent to that conduct. This is consistent with the criminal law's treatment of sexual assault. The proposed new offence does not create the opportunity that Mr. Sharpe claims.

Second, Bill C-12 proposes amendments to prevent a self-represented accused from personally cross-examining the young victim and to permit the judge to appoint counsel to conduct the cross-examination in his or her place.

These amendments would prevent exactly the kind of abuse Mr. Sharpe claims is permitted. It is not what the other misperception of the bill says. Here we are actually dealing with the situation. We have the solution to the problem. Judges have an inherent jurisdiction to control proceedings in their court and some have appointed counsel for self-represented accused without relying on a specific code provision.

Judges would determine whether evidence was relevant and questioning was appropriate. They would not readily permit the type of questioning Mr. Sharpe advocates.

Moreover, the police would investigate and lay charges based on the facts. If the accused had sexually exploited the victim, determined by the conduct and the circumstances, the nature of the relationship, if any, and the age and age difference between the victim and the accused, the appropriate charges would be laid and prosecuted.

Bill C-12 was thoroughly reviewed by the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. The committee heard from a large number of witnesses who spoke to all issues addressed by the bill. The committee considered the evidence and considered the bill and, indeed, made amendments to the bill before reporting Bill C-12 back to the House.

We should not be looking to undermine the important work of the standing committee. It has done its job and now let us do ours and vote against this motion.

Robin Sharpe is entitled to his opinions. All people are entitled to opinion, as long as the opinion does not break any laws. He once thought that the prohibition against the possession of child pornography was unconstitutional and quite frankly the Supreme Court of Canada disagreed with him. This government disagrees with Robin Sharpe yet again.

I call on all hon. members to oppose this motion and to support instead the swift passage of Bill C-12 and, with that hopefully, we will be able to continue on to third reading after we have finished with this hoist motion.

Business of the House

[Jacques Saada, Liberal, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform]

Mr. Speaker, it is a great pleasure for me to reassure my colleague and Canadians that we are working on a number of bills.

We will proceed this afternoon with third reading of Bill C-9, an act to amend the Patent Act and the Food and Drugs Act (The Jean Chrétien Pledge to Africa). This bill, which we introduced and which is now at third reading, makes it possible for us to send pharmaceutical products to help countries in Africa.

This will be followed by third reading stage of Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

Then we will move on to report stage of Bill C-23, an act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other Acts.

This will be followed by the debates on the motions for referral to committee before second reading of Bill C-29 and Bill C-32. I would like to point out that it is as part of our democratic reform that we are now regularly referring bills to committees before second reading, to allow them to review the legislation.

Therefore, before second reading, we will refer Bill C-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts, and Bill C-32, an act to amend the Criminal Code (drugs and impaired driving) and to make related and consequential amendments to other Acts. We know that Canadians really want us to deal with the issue of impaired driving.

Of course, we will deal with third reading of Bill C-10, an act to amend the Contraventions Act and the Controlled Drugs and Substances Act.

This is for today. We may not have time to finish everything, because there is a lot to do. In any case, tomorrow we will deal with report stage and, if possible, with third reading of Bill C-30, an act to implement certain provisions of the budget tabled in Parliament on March 23, 2004.

Then, we will undertake our review of Bill C-28, an act to amend the Canada National Parks Act.

Of course, next week we will continue with any unfinished business.

Incidentally, Thursday of next week, May 6, will be an allotted day. I would suggest that hon. members get a good rest, because there is still a lot of work to do.

Criminal Code

[Paul MacKlin, Liberal, Northumberland, ON]

Mr. Speaker, I am pleased to take part in today's debate on Bill C-12, an act to amend the Criminal Code, the protection of children and other vulnerable persons, and to make changes to the Canada Evidence Act.

I will speak to a part of the bill that has not received a great deal of attention thus far but contains important provisions for children and other vulnerable witnesses.

Bill C-12 contains a range of reforms to the Criminal Code that would make it easier for a child or other vulnerable persons who are witnesses to provide their testimony at criminal trials. These provisions build on the current Criminal Code provisions that recognize that participating in the justice system as a victim or witness is not a pleasant experience. It is usually a very traumatic experience, particularly for children.

The proposed changes in Bill C-12 recognize that despite the progress that we have made in developing a justice system that is responsive and sensitive to the needs of children and all victims and witnesses, more still needs to be done.

Our law currently permits the judge to exclude members of the public from the courtroom in some circumstances. For example, this could be ordered where a child victim of sexual abuse is giving his or her evidence.

In addition, a publication ban may be imposed to protect the identity of young victims. A support person may accompany a young victim and some young victims may give their evidence from behind a screen or on closed-circuit TV. The law also protects a young victim or witnesses of a sexual or violent offence from having to face questioning from an accused who represents him or herself.

Videotaped interviews are also permitted to be used as evidence where the child adopts the videotape at the court proceeding.

The current provisions when they are used work well. However, due in part to the fact that some of these provisions have been amended over time rather than as one comprehensive package, we now have a different series of tests for the use of various testimonial aids, different offences to which they apply and different age categories of young persons who can benefit.

Obviously the bill goes a long way toward resolving some of these concerns and hopefully I will have a chance to explain it at another sitting of the House.

[The Speaker]

The House will now proceed to the taking of the deferred recorded division on the amendment of the member for Battlefords—Lloydminster to the amendment to the motion at third reading stage of Bill C-12.

The question is on the amendment to the amendment.

[Chuck Strahl, Canadian Alliance, Fraser Valley, BC]

Mr. Speaker, just before question period the member for Elk Island asked me a question dealing with child pornography that is dealt with in some ways in Bill C-12, an act to amend the Criminal Code. He was quoting from subsection 7(7). This is dealing with pornography. It says:

For the purposes of subsection (6), acts or material that serve the public good include acts or material that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.

The member asked what I thought about those categories. I agree with him that this material is necessary for science or medicine for treatment of people who have a disease of addiction to child pornography for example, or education where police officers have to be taught what it is they are looking for and so on.

The category we are wondering about is art, to have the idea of public good and use it in the category of art.

John Robin Sharpe is pleased with the bill. I think he is pleased in part because he sees this as a loophole. He will use it as he used the artistic merit argument in times past to try to get away with some of the filth that he thinks is worth having and sharing.

On the issue of art, I want to share a story that moved me years ago, if I can get through the story. It was a story related by Dr. James Dobson. James Dobson was the president of Focus on the Family, a well-respected psychologist who was appointed years ago to sit on the President's panel dealing with pornography in the United States. I heard him give a talk on this one time.

He told how he had to travel from town to town to do these investigations. Part of that involved looking at pornographic material in order to see just how bad it was. I cannot imagine doing that for weeks on end.

He said that the final blow came for him when there was a series of pictures that he was forced to look at. They started with a healthy, happy two year old child. The progression of pictures eventually ended with a picture of a two year old with a butcher knife through its chest.

He was at a meeting and I do not know in what city. He said he just gathered up his papers, went to the airport and took the first plane home. He said the pictures were so filthy and so incredibly evil that he just had to get home and hug his family.

I know there would be an argument that we cannot banish pornography because we have to have a way of judging it. There is a problem in the United States and here too, that when the picture, and they call it art, is reproduced, it is frequently seen as just that; it is just a picture, just a photograph.

A crime was committed but there is no crime in the circulation of the documents. There can be pictures of children being abused in the most heinous ways, graphic, awful and evil pictures, but the distribution of it, if it is considered artistic by somebody, in and of itself is not a crime. In the commission of the crime, if they could catch the guy perpetrating it, they would throw him in jail. But the circulation of it to people who somehow get their jollies from this should also be a crime.

I only relate that story. I do not want to go on a panel to look at this stuff for weeks on end. I do not want to look at any of it.

All I am urging is that the government consider that when there are loopholes, people will try to use them. My solution is to send the bill back to committee and come up with a better solution than the public good. I just do not think that this section, which leaves this as a loophole, is wise. It will be abused. Or if it is not abused, it will be seen as such a big loophole that law enforcement agencies will say that there is no use in prosecuting. We see that all the time with crime. Chief Fantino from Toronto would say, “What is the use of prosecuting?” If we bring forward something with a loophole, they get off almost every single time.

The police do not have the resources, the people and the perseverance to follow through. They have collected millions of photos. They have confiscated stuff. They try to ride herd on it, but the truth is that without tough and strict laws, they cannot really dig this evil out.

To answer my colleague from Elk Island, this clause is the worrisome one. That is why it should go back to committee. Most of this bill improves things for children and I am happy to support it. However, this part I am not convinced is the best way to address this particular evil. It is a bad and ugly evil that is pervasive in society. Police tell me that it is out of control.

I know the government takes this seriously but I would urge it to reconsider this and send it to committee. Let us get this fixed. Let us make the police happy, the courts happy and Parliament happy with the section that I think is crucial to the implementation of this bill.

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

Mr. Speaker, I appreciate the words of the member who just spoke. I know they come from his heart.

I also appreciate the Liberal members talking about the good parts of the bill, and I agree. There are certainly some good things in the bill that we would like to see moved forward. However, I still believe the Canadian society and even people in the government do not realize how serious child pornography is in Canada and how many cases have been heard. People are being arrested daily.

In the last three week I have done a some research. There are a whole raft of charges that are to be laid against people who are involved in child pornography, pornography that hurts our children and puts them in a really dangerous situation.

We are asking for the bill to be to sent back so the child pornography part of it can be addressed. What good is it to have a law on child pornography, if it is allowed to exist in this land. Under the bill it definitely would be allowed to exist in the hands of those, and it should not. They will continue to exploit our children and they will use the two words left in the bill, “public good”, as a defence. We do not want that to have happen, and I am sure our colleagues over there do not want that either, but it will.

I have results of a lot of the cases where charges have been laid. I would like to ask my friend what he thinks about a number of examples I have. All of them, with the exception of one, are engaged in child pornography, downloading it, sharing it with friends and enjoying it in their evil ways. Those charged have received house arrest or community service and no jail time.

The headlines read, “No Jail Time in Kiddie Porn Case,” or “RCMP Officer Guilty of Sex Offences Gets House Arrest”. It goes on and on, case after case. These are daily occurrences throughout the land, not rarities. It happens continually, and has it become a billion dollar industry. People are profiting from this garbage.

We want it stopped. We want it stamped out. However, the bill contains two words that anybody could use as a defence. They might not be successful, but we have learned through the Sharpe case that some people can be successful.

Why would John Sharpe and other pedophiles across the land praise the Bill C-12 legislation if this were the real tough measure the government claims it to be?

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased that this member chose to speak on a section of this particular bill that has not had a lot of discussion in this chamber and that is the concept of voyeurism.

Some of the questions that have been put to me, when people have talked about the bill have dealt with surreptitious observation. For instance, will the prohibition of surreptitious observation not prevent reporters from observing a person and reporting on it during an investigation, for example, a prostitution or child pornography ring?

It is really important that we understand that to commit the offence of voyeurism, journalists would have to meet all of the requirements of this particular offence. They would have to observe from a place where the persons observed cannot see them, or place a web cam in such a place. The persons observed would have to be in circumstances giving rise to a reasonable expectation of privacy, which means they must have reasons to believe that they are in a place where nobody can watch them, and journalists would have to observe at a place where we would expect persons to be nude or engaged in sexual activity, such as a bedroom or bathroom, or they would have to observe persons nude or engaged in sexual activity for the purpose of observing persons in that state.

So, if journalists are in plain view of the persons observed while the other conditions are met, the observation is not surreptitious, even though the persons do not know that they are journalists. On the other hand, if the defence were provided for voyeurism conducted in the context of investigative journalism, it would allow journalists to put cameras in the bedrooms and bathrooms of Canadians and there is a public good defence.

I am really pleased that the member noticed and talked about this public good defence that would be available to journalists to cover situations serious enough to justify using investigative techniques that constitute criminal voyeurism. It is really important that we do not blank it and say there are no defences.

The hon. member has mentioned the police. I would ask the member, why does Bill C-12 not include the specific journalistic defence for voyeurism and why is it covered by the public good?

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I welcome the opportunity to participate in today's debate on Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

As hon. members know, Bill C-12 proposes a number of criminal law reforms that seek: to better protect children against sexual exploitation, abuse and neglect; to facilitate testimony by child victims and witnesses and other vulnerable victims and witnesses in criminal justice proceedings; and to create a new offence of voyeurism. This last is an extremely important area. We have seen much of this in the media in recent years and I think every member in the House is concerned about this crime.

I believe that all of Bill C-12 is important and I support the whole of the bill. However, I will restrict my comments today to those provisions that respond to concerns relating to the age of consent to sexual activity.

The objectives of Bill C-12 on this issue are clearly articulated in the first paragraph of the preamble, which states:

Whereas 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--

The focus of Bill C-12's response to concerns about the age of consent to sexual activity is on the exploitive conduct of the wrongdoer and not on whether the young person or victim consented to that conduct. I want to repeat that, because I think it is an extremely important part of the bill. The focus of Bill C-12's response to concerns about the age of consent to sexual activity is on the exploitive conduct of the wrongdoer and not on whether the young person or victim consented to that conduct. This is, in my view, both the right focus and the right response.

Voyeurism is an element of the bill that has not yet received much attention, but is one which I believe is important for the protection of a fundamental value of Canadian society, that is, the right to privacy.

Technology has made wonderful progress in recent years. It has simplified our lives by giving us tools that our grandparents never even dreamed of. The technological process has been particularly spectacular in the miniaturization of objects.

While new technologies have given us many advantages, they also have the potential to be misused. I think many of us recognize as we adapt to more and more technological change how that great technology can be abused and used against people.

One instance of this is the use that is made of miniature cameras. These cameras are so small that they can be easily hidden in any place. They may also be hooked up to a computer to enable a person to observe what happens in a room when that person is not only in another room but in another building.

These cameras are so small they can be almost hidden in a pen. We have seen that in terms of some of the science fiction shows and some of the crime programs. At one time we did not believe this was possible, but today it is, and we see this technology being used and used especially for voyeurism. It is an abuse of an individual's rights and it is an infringement on privacy.

Bill C-12 deals with that issue. The proposed creation of a new offence of voyeurism directly responds to this new threat on our privacy, the privacy of individuals. Of course, voyeurism is not new. There have always been what we call peeping Toms, who have observed others through a bedroom window or a keyhole. This conduct was dealt with by charging the person with the offence of trespassing or the offence of mischief. But these offences do not apply to the new ways in which voyeurism is now committed, hence the need for a specific offence of voyeurism.

The offence of voyeurism would have three elements. First is the observation or recording of a person in a surreptitious manner, which means that the person cannot reasonably be expected to see the person or the means of observing or recording.

Second, the person observed is in circumstances giving rise to reasonable expectations of privacy.

Third, one of the three following cases must apply. First, the person observed or recorded is in a place where one can reasonably expect a person to be in a state of nudity or engaged in sexual activity. I would think that a bathroom, a bedroom or a fitting room would qualify as such a place.

Second, a person is in a state of nudity or engaged in a sexual activity and the purpose of the observation or recording is to observe or record a person in that state.

Third, the observation or recording is done for a sexual purpose.

Bill C-12 would also criminalize the distribution of material obtained through voyeurism when the distributor knows that the material was obtained in this manner.

This new offence will not interfere with legitimate purposes. It will be a defence to a charge of voyeurism or distribution of voyeuristic material if the facts that constitute the offence served the public good and did not exceed what served the public good.

The bill would further protect the privacy of Canadians by providing for the seizure and forfeiture of voyeuristic material and deletion of such online material. This is an important element of Bill C-12. It protects a right that Canadians value dearly: their right to privacy.

We in this House have an obligation to ensure that Canadians' right to privacy is indeed protected. This is one more reason for the House to support the bill, in addition to the protection it will bring for children and other vulnerable people.

I want to take another moment and talk about Bill C-12 in its creation of the new category of prohibited sexual exploitation of a young person who is over the age of consent, that is, who is 14 years of age or older and under 18 years.

Under the proposed reform, courts will be directed to infer that a relationship is exploitive by looking to the nature and circumstances of the relationship, including the age of the young person, any difference in age, and the degree of control or influence exerted over that young person.

I understand that there continue to be calls to raise the age of consent for sexual activity. Why is this? As I understand them, these calls seem to be motivated by a number of different reasons.

For example, one reason sometimes given in support of raising the age of consent is that raising the age of consent to 16 or 18 will prevent others from forcing young persons into the sex trade. In response to this, I note that it is already an offence under the Criminal Code to force anyone under the age of 18 into prostitution. This offence carries a mandatory minimum penalty of five years' imprisonment.

Another reason that is given seems to be related to different understandings of what is meant by sexual activity. Canadian prohibitions against sexual activity do not differentiate between sexual activity and sexual activity that involves sexual intercourse. I do not believe that Canadians think a 14 year old or 15 year old girl is not mature enough to freely make a decision to kiss her 17 year old boyfriend, nor do I believe that Canadians want to criminalize a 17 year old for kissing his 14 year old girlfriend. Whether we adults like it or not, the reality is that adolescents do engage in sexual activity.

Bill C-12 in whole is a bill that the House should support and support extensively. It creates new penalties and it creates new offences. At the end of the day, it would mean that we would more greatly protect the most vulnerable in our society. I encourage all members of the House to support Bill C-12.

[Paul MacKlin, Liberal, Northumberland, ON]

Madam Speaker, it is a pleasure to participate in the debate, although I see the time is somewhat limited this evening.

I was at least encouraged to hear the previous speaker advance the fact that now he is giving a selection of items that were clearly referred to as examples that would be included as serving the public good in Bill C-12. I think we are starting to make some progress. We are starting to see that in fact we cannot start off with a bill that has absolutely no means of allowing people to deal with that issue, and the phrase “public good” is an excellent way of expressing that. The hon. member has come a long way toward accepting that principle.

Today I find this a special opportunity to discuss and debate further the issues that are so important, as everyone has pointed out today. I believe this discussion, although it has gone on at some length, should go forward with the concept of trying all ways and means that are meaningful to protect our children while preserving all the rights that are within our charter. I say that of course because Bill C-12 does bring forward, not just child pornography reforms in terms of criminal law, but actually goes beyond that and brings forward other reforms which better protect those who are most near and dear to us, our children, and those people with disabilities.

Bill C-12 is much needed and welcome and I look forward to the reforms that it will introduce. Each of us wants to make sure that the criminal law meets the needs and concerns of Canadians, especially those who are most vulnerable, which includes those with disabilities and our children.

Although the previous speaker concentrated on one particular area of the bill, we must understand and appreciate that there are a number of areas that are being addressed. First, the bill deals with the concept of strengthening our existing child pornography provisions in two respects. One is to broaden the definition of written child pornography to include material that is created for a sexual purpose and predominantly describes prohibited sexual activity with children and the other would narrow the existing child pornography defences so that there would only be one defence of public good.

Within the scope of public good, the previous speaker's commentary about dealing with science, education, law enforcement, the administration and process, the medical issues that arise from this, and the entire study process, this is developing the idea of public good. I am very happy to see that there is some movement in my hon. friend who previously spoke to this concept, because up until this point there was a desire on the part of that party to simply say that there should be absolutely no defence.

I think those members are starting to get the idea. They are starting to develop the concept that there are legitimate uses that have to be there. There have to be opportunities to educate our people to deal with the medical realities and to go through and deal with the administration of justice.

I think it is very important that we are making progress in that area. In narrowing the defences to the one defence of public good, is something that will better serve the public interest, but I think there is a limitation on that.

As one would argue for public good as a concept, one would also have to put a cap on that because we cannot let it go beyond a certain point. The point that has been determined is that one has to weigh the entire public good against the risk of harm that it would pose. Therefore, when it outweighs the benefit, that is the public good defence, to society, then in fact it would be limited.

Second, the bill also proposes to create a new prohibited category of sexual exploitation of young persons. I think the examples that were given by the previous speaker speak to those points. What we are concerned about is the exploitation of children.

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

Mr. Speaker, I am pleased to address this topic on one more occasion.

I do not disagree with a lot of the philosophy behind the thinking that goes with the bill. I do not care to get into those kind of philosophical debates as to whether we should have a law indicating it is not a smart thing for a 40 year old, for example, to convince a 14 year old to have an activity at that age. There should be a stringent law to deter people from that possibility, but that is not a major part of my concern in regard to the bill.

Many in here know from the past where my concern comes lies, and that with the protection of children through the elimination and absolute ban of child pornography. We recently voted on a motion I put forward in the House of Commons. It asked for the creation of legislation that would eliminate all defences for people using child pornography for the purpose of exploiting children. That motion was unanimously accepted.

The problem I have with Bill C-12 is it does not do that, and therein lies the debate. Many Liberals will say the words “artistic merit” have been removed from the bill, but the words “public good” have been replaced them. Therein lies the topic of my debate, child pornography.

I would like to point out something for all members of the House and for the Canadian public at large. As a member of Parliament and the opposition critic, I have been working on child pornography. This is not a sporadic incident or something that comes up occasionally or seldom.

Before I came here today, I did some research. I have examples showing that this is not an occasional incident. Cases of child exploitation through the use of child pornography happen every day across Canada. They are not reported, or printed in big headlines in newspapers or not talked about on television. This is going on in a huge way, and we are unable to recognize that fact.

I have recent article from the last few days which appeared in the Calgary Sun . The headline reads, “No Jail Time in Kiddie Porn Case”. This is a small article not a big article like we read on the front pages. A guy was convicted of kiddie porn, but he was not put in jail. He was considered treatable, and he would stop this nasty business. He received no punishment except house arrest. Just recently a former Saskatchewan RCMP officer was found guilty of child sex offences, and he too received house arrest as punishment.

These cases illustrate to all Canadians, particularly members in the House, that individuals in Canada who are charged and arrested or being investigated for the offence of using child pornography come from all walks of life. People sometimes think only bums or whoever might be doing this, but that is not so. Bankers, teachers, preachers, officers of the law and others are being charged with this offence. It is widespread, and it is a huge industry.

I have another case in which a Alberta man ran a child porn ring, an international group distributing child pornography on the Internet. They were making huge profits. Lots of big, grown-up men are making money from absolutely evil pictures that come across the Internet. They are exploiting our young children across the nation. More than 1,000 images and 250 video clips were on the computers of this individual. That is astounding. There were videos of the most awful stuff one could imagine, children as young as two years old having sexual acts with adults. If that is not evil, I do not know what else one would call it.

A 78 year old man from the Waterloo region faces child pornography charges. Good grief, a 78 year old man. Then a London child porn offender, and I am talking just this week, got house arrest. A huge amount of material and images which he had brought back with him from a business trip to some other parts of the world were found on his computer. It is unbelievable. This guy is a successful businessman, making big bucks off the avails of child pornography, involving very young children.

Another headline states that an ex-Children's Aid Society worker was busted again. This was in Windsor. He is 27 years old. He is back in custody. He was busted once again because he had all this filth in his possession which exploited young children. Another headline says that porn charges were laid in Niagara Falls. He is to appear in court in St. Catherines next week.

I could go on and on. I have a whole pile of these. I could give example after example. Any police force or anybody engaged in trying to do something about this serious problem will tell us that these are everyday occurrences and they are running rampant. We only hear about the sensational cases. I do not know if it is fair to call them that. We do not hear about all of them because I guess it has become unimportant to the media. It does not talk much about it.

Governments are not responding very well. I look at the Toronto police department. It has only a handful of officers to deal with millions and millions of items that they have taken from people in the Toronto area who are under investigation for breaking the laws using child pornography. I know there are members sitting in the House right now who have seen some of the material that the Toronto police officers have confiscated. They are trying to illustrate to all of us how serious this is. There are images of babies in diapers all the way to young teenagers who are absolutely abused to no end. It is unbelievable that it is happening.

We also know that through the hard and dedicated efforts of five or six police officers in the Toronto region, a six year old girl from North Carolina was rescued. They were able to determine from the images who this child was, locate her and get her out of that situation. As far as I am concerned, these Toronto police officers are national heroes for having done that.

However, it saddens me when I read their reports. They can only estimate, but they tell me there could be up to 100,000 children being used to produce child pornography, which is being distributed and used throughout the world. Out of that, a few of those, a great many of those or several hundred of those could be here in Canada. They could be right next door to us, but we do not know where they are. However, through their hard effort, hours and hours of going through this material and doing the best they could with it, these people were absolutely successful in finding this one.

I really think we should listen to the police departments when they call for the government to provide them with some funding to help them set up a national strategy across the land and connecting with international agencies. Then they could really go after this in full force and defeat this evil enemy that is child pornography, the enemy of our children. Lord knows we would not have any trouble finding the funding when we look at where some of our funding goes.

Obviously, every member in the House agrees that needs to happen. They expressed that in the vote which I spoke about earlier. They said that they wanted to get rid of it. The only way we can do this is by first passing legislation that removes the possibility for anybody in this land to have possession of, distribute or make a fortune out of any child pornography that exploits the children.

We ran into a little problem recently. A fellow by the name of Sharpe ended up in court and some judge declared that some of the material he had in his possession had some artistic merit. Because of that decision, artistic merit was written into the law as a defence. There was an outcry from the public, and I was really pleased to be part of that, saying that we had to remove artistic merit. There is no defence for people exploiting children through child pornography. Everybody agrees on that. Then the government comes down with Bill C-12, and there is the problem. What has it done? It has replaced artistic merit with the words “public good”.

How long will it be before some child pornographer, who is brought to court and charged, pleads innocent under this law, Bill C-12, of public good? We do not even know what that public good might be. Will it be because a particular piece of stuff has some artistic value to it or some other value to it and the person will fight for the right to produce or use it for his or her own personal purpose, whatever they might be? We do not know what that public good definition will be, but one day we will know. Some judge, somewhere, in some court will have to define it because this legislation does not.

My suggestion to every member in the House is let us live up to the vote we recently had to eliminate all defences. Let us do that by protecting those individuals who may have a purpose for having this child pornography material in their possession.

I tried, to no avail, to convince a number of people from the governing party in this place, the Liberals, that all we need to do is cover all the possibilities we could think of and include them in the act if they happened to be missing. They have not done that. They continue to leave “public good” in place.

Therefore, I have a suggestion for this bill and this particular section. I have put together a private member's bill, which I have introduced. The clause in this private member's bill is going to say that when the accused is charged with an offence under the child pornography section-and I will not go into all the numbers--“the court shall find the accused not guilty if the [visual] representation or written material that is alleged to constitute child pornography has an educational, scientific, or medical purpose”. I want to add to that: “or if the acts that are alleged to constitute the offence were carried out for the purposes of law enforcement”.

What that does is protect bona fide doctors, psychiatrists and scientists who might be using this material for scientific, medical or educational purposes. Also, it protects the police who are investigating when they take this material into their possession. We need to protect those bona fide individuals who are working hard to stamp out child pornography. We can do that by including them in this clause.

Therefore, we could eliminate the items of “public good”. The undefined “public good” could be removed. Then we could send a message to the courts that they are to protect the bona fide doctors, scientists, psychologists, investigators, police forces or whatever agency it might be as long as it is for those medical, scientific, educational or law enforcement purposes. We do not want anybody who has a legitimate reason for having this in their possession to be arrested and charged.

However, more than anything else, I do not want to subject one more police officer in this country--and I am sure every member in here would agree with me--to having to sit in a chair day after day and hour after hour determining whether any of this filth that they have confiscated has any public good or artistic merit or any of that to it. We must not do that.

We must quit exposing our enforcers of the law to that, because it is driving them up the wall. And so it would if we had nothing else to do but go through all of these millions and millions of pieces of material that they have in the Toronto police department alone. It would have to drive someone around the deep bend. I know that there are members in here who know what I am talking about because they have seen those examples that were confiscated.

Let us put an end to it and get a strong message out to those who would perpetrate it upon our children. We are not going to look at this idea that the right to freedom of expression of a person who is going to exploit children through child pornography is going to override the rights of a child in this land to be safe from this kind of enemy.

We can do it. This government could do it. Bill C-12 does not do it because those two words, “public good”, are still in the bill. Let us get rid of it. Let us protect all those guys who are doing their work. Let us do the right thing. Let us all do what we as members of the House of Commons did when we unanimously agreed that we would eliminate all defences. Let us do it and do it now.

[Gar Knutson, Liberal, Minister of State (New and Emerging Markets)]

Mr. Speaker, it gives me great pleasure to rise again to speak to Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

As all hon. members know, Bill C-12 proposes a number of criminal law reforms that seek to better protect children against sexual exploitation, abuse and neglect, to facilitate testimony by child victims and witnesses, other vulnerable victims, and witnesses in criminal justice proceedings, as well as to create a new offence of voyeurism.

I believe that all of Bill C-12 is important and I support the whole of the bill. However, I will take the time that remains today to restrict my comments to those provisions that respond to the concerns relating to the age of consent to sexual activity.

Bill C-12's objective on the issue is clearly articulated in the first paragraph of the preamble:

Whereas 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;--

The focus of Bill C-12's response to concerns about the age of consent to sexual activity is on the exploitative conduct of the wrongdoer and not on whether the young person or victim consented to that conduct. This is, in my view, both the right focus and the right response.

More specifically, Bill C-12 proposes to create a new category of prohibitive sexual exploitation of a young person who is over the age of consent, that is, someone who is 14 years of age or older and under 18 years.

Under the proposed reform, courts would be directed to infer that a relationship is exploitive by looking to the nature and circumstances of that relationship, including the age of the young person, any difference in age and the degree of control or influence exerted over the young person.

I understand that there continue to be calls to raise the age of consent to sexual activity. Why is this? As I understand them, these calls seem to be motivated by a number of different reasons. For example, one reason sometimes given in support of raising the age of consent is that raising the age of consent to 16 or 18 would prevent others from forcing young persons into the sex trade.

In response to this, I note that it is already an offence under the Criminal Code to force anyone under the age of 18 years into prostitution and that this offence carries a mandatory minimum penalty of five years imprisonment. I would think it is also against criminal law to force anyone into prostitution.

Another reason given seems to be related to the differing understandings of what is meant by sexual activity. Canadian prohibitions against sexual activity do not differentiate between sexual activity that consists of kissing and sexual activity that involves sexual intercourse.

I do not believe that Canadians think that a 14 or 15 year old girl is not mature enough to freely make a decision to kiss her 17 year old boyfriend. Nor do I believe that Canadians want to criminalize a 17 year old for kissing a 14 year old girlfriend. Whether we as adults like it or not, the reality is that adolescents engage in sexual activity and the criminal law is not the place to deal with this type of activity.

I think other reasons sometimes given is that 14 or 15 year olds are too young and immature to fully appreciate the consequences of their decisions to engage in sexual activity. While it is true that a 14 or 15 year old does not typically possess the maturity of an 18 year old, as a society, nonetheless, we consider them mature enough to be treated as an adult under the new Youth Criminal Justice Act for the commission of serious violent offences.

Whatever the reason for advocating an increase in the age of consent, the common thread appears to be the prevention of sexual exploitation of young persons. This intent is to be applauded. On this I think that Bill C-12 delivers.

Unlike proposals to raise the age of consent to 16 years of age, Bill C-12 proposes to extend protection not only to 14 and 15 year olds, but also to 16 and 17 year olds. It would protect youth from exploitation at the hands of anyone.

Bill C-12 contains many welcomed reforms to the criminal law to protect our most vulnerable members of society. I hope that all hon. members will support Bill C-12 to better protect Canadian children against exploitation in all its forms.

Westbank First Nation Self-Government Act

[Jim Abbott, Canadian Alliance, Kootenay—Columbia, BC]

Mr. Speaker, I noted with some interest that the member said that she was asking for the support of the House. I think she would know that in the vote last evening indeed there was overwhelming support for this bill.

Therefore, could she help me understand if there is some kind of strategy that her government is presently undertaking with respect to this debate that perhaps she could enlighten us on? I do not know if it is correct or not, but I should mention that I believe we have some people even in this chamber who are watching us who are very interested in seeing this bill go ahead.

What we find perplexing is that in spite of the overwhelming support of the House for this bill, the fact that there is very limited opposition and indeed any of those issues have been fully vented in the course of this debate, that the government continues to filibuster its own bill. We are rather confused about that, particularly when I for one happen to agree with the member that we should be getting on with the business of the House.

Would it have anything to do with the fact that the Prime Minister and the government are not prepared to govern at this particular point? For example, let us look at the other bills that will immediately follow this bill should debate collapse. Bill C-10, the marijuana bill, is at third reading, which means that we could have a debate on that and get that through. Bill C-11, the Westbank bill, certainly is one that we could dispose of right now. Bill C-12, child protection, is a bill that is at third reading and could be disposed of fairly quickly. Bill C-15 concerns the transfer of offenders.

The House is trying to get these bills through. Indeed in ordinary procedure one would have the opposition trying to stop things, or the opposition trying to bring forward particular points of view, which is just fine. That is what the parliamentary process is about.

Considering that the Liberals' legislative cupboard is completely bare as a result of the Prime Minister having no idea of where he wants to take Canada, is that the reason, in the judgment of the member, she herself, unimaginably, would actually be part of the filibuster of this very important bill that the people of Westbank want to go ahead?

Business of the House

[Jacques Saada, Liberal, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform]

Mr. Speaker, this afternoon, tomorrow and Monday, we will continue with the business listed, namely third reading stage of Bill C-11, an act to give effect to the Westbank First Nation Self-Government Agreement, this reading of Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, third reading of Bill C-15, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences and third reading of Bill C-10, an act to amend the Contraventions Act and the Controlled Drugs and Substances Act.

We will also continue with the report stage of Bill C-23, an act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other acts, as well as debate on the motion to refer committee before second reading Bill C-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts.

Tuesday shall be an allotted day.

On Wednesday, we hope to be in a position to take up the final stages of Bill C-9, an act to amend the Patent Act and the Food and Drugs Act. I understand that there are some discussions under way that could make it possible to deal with this bill a bit earlier. The government would be prepared to cooperate with any such desire.

I hope that my colleague across the way, and all of his colleagues, are in excellent shape, because we have a lot on our plate.

Criminal Code

[Gar Knutson, Liberal, Minister of State (New and Emerging Markets)]

Mr. Speaker, and all members of the House, I am pleased to rise today to speak to Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

This is not among my normal course of work being a Minister of State for International Trade. I know I share the concern with all members of the House about the protection of children and vulnerable people.

Bill C-12 proposes a broad package of criminal law reforms that seek to strengthen the criminal justice system's protection and response to children and other vulnerable persons.

Although I will focus my comments on child pornography, I would also like to note that Bill C-12 contains other important reforms. It proposes to strengthen protection for young persons against sexual exploitation. It would increase the penalties for offences against children. It would facilitate testimony by child and other vulnerable victims and witnesses. It would create a new offence of voyeurism.

As I said, I would like to focus my comments on the amendments relating to child pornography.

The sexual exploitation of children, society's most vulnerable group in any form, including through child pornography, is to be condemned. I know there is no debate among civilized people on this point.

Bill C-12 recognizes this and proposes amendments to our existing child pornography provisions that I believe will serve to better protect children against this form of sexual exploitation. Canada's child pornography laws are already among the toughest in the world and as my colleague before me said, Bill C-12 would make them tougher still.

First, Bill C-12 proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where the description is the predominant characteristic of the material and it is done for a sexual purpose.

The proposed amendment reflects Canadians' belief that these types of written materials pose a real risk of harm to our children and society by portraying children as a class of objects for sexual exploitation. Bill C-12 clearly states that such materials are not acceptable.

Second, Bill C-12 proposes to narrow the existing defences into one defence, of public good, a term that is now specifically defined in the bill. Under the new law, no defence will be available where the material or act in question does not serve the public good or where it exceeds or goes beyond what serves the public good.

The public good defence recognizes that in some instances, such as with the possession of child pornography by police as part of an investigation, such possession serves the public good and should be protected. It also recognizes that art or material that has artistic value can serve the public good. However and unlike the current artistic merit defence, the proposed public good defence in Bill C-12 will not be available for such art where the risk of harm it imposes to society outweighs any potential benefits that it offers.

Canadians have been demanding that we respond in a direct and meaningful way to the issues that flowed from the March 2002 case involving Robin Sharpe, and this is exactly what Bill C-12 does. The adoption of Bill C-12's amendments will reaffirm Canada's leadership role in protecting children from sexual exploitation through child pornography.

I note from the clock that I am running out of time, so I just ask in closing that all hon. members support these amendments.

[Alan Tonks, Liberal, York South—Weston, ON]

Mr. Speaker, I am pleased to speak on Bill C-12, an act to amend the Criminal Code, which, as everyone knows, is the protection of children and other vulnerable persons, and the Canada Evidence Act.

Bill C-12 proposes a broad package of reforms which seeks to ensure that the criminal law meets the concerns and needs of all Canadians, especially those who are most vulnerable among us, our children.

The bill has five key components. I would like to go through them one by one and give illustrations of how the bill would be implemented.

The first one is strengthening the existing child pornography provisions by broadening the definition of written child pornography and narrowing the existing defences to one defence of public good.

What this means in reality is that the existing defences for child pornography would be reduced to the single concept of the public good. A person would be found guilty of a child pornography offence when the material or act in question does not serve the public good or where the risk of harm outweighs any public good it serves.

The bill now defines the public good as including--and I think this is important--“acts or materials that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art”.

The proposed reforms would also expand the existing definition of written child pornography to include material that is created for a sexual purpose and predominantly describes prohibited sexual activity with children. The current definition of child pornography applies only to material that advocates or counsels prohibited sexual activity with children, and this is strengthening the concept that at the end it is the ultimate public good that must be served.

The second component is the creation of a new prohibited category of sexual exploitation of young persons, as evidenced by the nature and circumstances of the relationship, including: the age of the young person, any difference in age between the young person and the other person, and the degree of control or influence exerted over that young person.

This provision would provide new protection to young persons between 14 and 18 years of age. Under the proposed reform, courts could infer that a relationship is exploitative based on its nature and circumstances, including the age of the young person, any difference of age, the evolution of the relationship, and the degree of control or influence exercised over the younger person. This new category would focus the court's determination on the conduct or behaviour of the accused rather than on the consent of the young person to sexual activity.

The third component is to increase the maximum penalties for offences against children and make the commission of an offence against any child an aggravating factor for sentencing purposes.

These tougher sentencing provisions include, under the government's reform proposals, penalties for offences that harm children. The maximum sentence for sexual exploitation would double from five years to ten. The maximum penalty for abandonment of a child or failure to provide the necessities of life to a child would more than double from two to five years. The abuse of a child in the commission of any Criminal Code offence would also have to be considered as an aggravating factor by the court and could result in a tougher sentence.

The fourth component is the facilitating of testimony by children and other vulnerable victims and witnesses by enhancing their ability to provide clear, complete and accurate accounts of events while at the same time ensuring that all of an accused person's rights are protected and respected.

These measures to protect children and other vulnerable persons as witnesses involve several reforms which will help ensure that participating in the criminal justice system is less traumatic for the victim or witness. Current Criminal Code provisions would be expanded to allow all witnesses under 18 to benefit from testimonial aids in any criminal proceeding, not only those involving sexual and other specified offences.

These aids include providing testimony from behind a screen or by closed circuit television or having a support person accompany the young witness. Current provisions generally require that the Crown establish the need for a testimonial aid. Given the potential trauma of the courtroom experience for young witnesses, the proposed reforms acknowledge the need for an aid.

For all testimonial aids, the judge retains the discretion to deny the aid or protection where its use would interfere with the proper administration of justice. In addition, the facilities to permit the use of a screen or closed TV circuit must be available in the courtroom before the judge can permit their use. Fundamental rights for the accused are fully respected under the proposed amendments.

These reforms also would allow children under 14 to give their evidence when they are able to understand and respond to questions. A competency hearing, which is currently mandatory, would no longer be required.

The fifth component is the creation of a new offence of voyeurism to criminalize the surreptitious observation or recording of a person in defined circumstances that give rise to a reasonable expectation of privacy.

This new offence of voyeurism is influenced through the rapid technological developments of recent years. They have brought many benefits to Canadian society, but they have also had implications for such basic matters as privacy. Web cameras, for example, which can transmit live images over the Internet, have raised concerns about the potential for abuse, notably where the secret viewing or recording of people involves a serious breach of privacy or is made for sexual purposes.

The proposed offences would make it a crime in three specific cases to deliberately and secretly observe or record another person in circumstances where a reasonable expectation of privacy exists: when the person observed or recorded is in a place where one is reasonably expected to be in a state of nudity or engaged in explicit sexual activity; when the person observed is in a state of nudity or engaged in explicit sexual activity and the purpose is to observe or record a person in such a state of activity; or when the observation or recording is done for a sexual purpose.

Distributing material knowing that it was produced through an offence of voyeurism would also be a crime. The maximum penalties for all voyeurism offences would be five years' imprisonment and the copies for sale or distribution of a recording obtained through the commission of a voyeurism offence would be subject to seizure and forfeiture. The courts could also order the deletion of voyeuristic material from a computer system.

I believe that Bill C-12's objectives are clearly stated and reflected in the preamble. Paragraph one states:

Whereas 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--

These words are an emphatic statement of purpose in Bill C-12.

Paragraph three of the preamble also notes as an objective that Bill C-12 seeks:

...to encourage the participation of witnesses in the criminal justice system through the use of protective measures that seek to facilitate the participation of children and other vulnerable witnesses while ensuring that the rights of accused persons are respected--

I believe we should all be readily able to recognize these objectives as not only important but fundamental to our collective efforts to provide better protection to our children and other vulnerable persons. I hope that all hon. members will support Bill C-12.

Much of the debate on Bill C-12 has focused on the proposed child pornography amendments. Canada's child pornography laws are among the toughest in the world. Bill C-12 will make them tougher still. I believe this bill's proposed expansion of the definition of written child pornography and the narrowing of the defences to one single defence of public good, now defined in Bill C-12, respond in a very direct and meaningful way to issues highlighted by the March 2002 case involving Robin Sharpe. I hope that all hon. members can support Bill C-12's child pornography amendments. I hope that all hon. members can support the bill.

[The Acting Speaker (Mr. Kilger)]

Hon. members will recall that, on Friday March 12, 2004, the hon. member for Surrey Central proposed an amendment to the amendment of the motion for third reading of Bill C-12. This called for the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to report back no later than April 5, 2004. The date in the amendment to the amendment having passed, I am obliged to declare that the amendment to the amendment out of date.

Resuming debate on the amendment standing under the name of the hon. member for Lethbridge.

Budget Implementation Act, 2004

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

Mr. Speaker, it is a pleasure to speak to the 2004 budget, a same as usual, nothing new, let us spend more money, let us not worry, let us all be happy type of budget. It is filled with many good things, many good promises, much the same as budgets have been filled with in the past since 1993.

I have seen several budgets now and they are all promises, promises, promises. In a big percentage of cases we are still back to square one. Many of the same things are being professed and many of the same things are being talked about.

I remember in 1993 we talked about the poverty in this country. The 1993 budget was going to address the fact that one million children were living in poverty in this country and that was a shame. We all agreed there was no doubt it was a problem that had to be addressed. Now in the year 2004 we are not addressing the problem regarding one million children living in poverty; it is now 1.5 million children living in poverty. That is some progress. We started with one million in 1993, and now we are up to 1.5 million. We still get the same kind of rhetoric and the same kind of messages in the budget that this is all going to be addressed and taken care of.

There was quite a bit of hype going on in the announcement just the other day regarding new helicopters and new equipment. That is great news for the people in the defence department. We all want to hear these things, but what I heard from most of the people in the military with whom I talked was that they will believe it when they see it. Those are good points. How many times have we heard these great announcements about all the new equipment and the new things that are going to happen that are going to help our military and our defence? These are all great things to say in a budget and pronounce, but they never seem to come to light.

Once again the Prime Minister with somebody else was out somewhere in the country making this big announcement that it is all going to take place. We are cheering it, that it is what we want to happen, but it does not seem to get there. I can understand why the people in the military sitting on the front lines in places like Afghanistan are saying, “We will believe it when we see it. When they get here, we will believe it”. In the meantime, it is all words, but it is in the budget.

As far as having a balanced budget, we cheer that. It is something that we said in 1993 had to happen. We pushed and pushed and finally at least the Liberals listened to us and they did get the budget balanced. Of course the taxes are higher than ever so it has been done on the backs of taxpayers, on the backs of provinces by cutting transfer payments, and on the back of the health care program which they reduced significantly in the early years to get the budget balanced.

It did not have to happen that way, but at least it is balanced. We are glad for that, but boy, it ought to be balanced. If they cannot balance a budget with the taxes that we pay in this country, then there is really something wrong.

When we look at what is taking place, we can understand why taxes have to be so high. After all, an election has not even been called and I have a list of what has happened just in the last two weeks. Is it not wonderful. The deputy leader of the government is giving $1 million for official languages in Sudbury. An ex-Conservative member who moved to the Liberals, who ran for the leadership, was glad to pass out a $50,000 cheque in his riding to buy bookshelves for a library. All kinds of grants have been given to different Liberal members throughout the land for renovations to old buildings or old schools, to upgrade them and make them look better.

The natural resources minister has been busy turning over thousands of dollars for archeological digs in Newfoundland. There is another $156,000 for a unique archeology website online to promote the digs and other features of that particular region.

Another Liberal put $35 million into his riding when he was the minister of the ACOA. He announced that there is another $348,000 for two wharves in his riding. On April 5 an MP unveiled a $361,000 cheque to restore a historic railway building. A couple of days later the Minister of Labour gave another $400,000 to renovate a theatre in her home town, and another $432,000 for an Acadian festival.

Out west the Minister of the Environment provided $150,000 for the Victoria Symphony Society. The present finance minister gave $25,000 to fund the magazine Prairie North in Saskatchewan.

The ex-fisheries minister managed to find $159,000 to refurbish the historic Sinclair Inn in his riding. One colleague from Ontario was able to announce $385,000 for job creation grants in his riding. That is fine; job creation is good.

An Edmonton MP announced $130,000 for the Council of Indian Societies. That is great stuff. There is nothing wrong with that.

A member of Parliament from Ontario got $64,000 for the Friends of the Macdonnell-Williamson House to hire three people and landed another $166,000 from human resources to hire people at a food bank.

In Vancouver the former cabinet minister who in her wildest dreams saw burning crosses on the lawns of the people who live in Prince George announced $734,000 for a youth job creation program. I would be the last to condemn anybody for these kinds of things, but I have a problem with an announcement of $734,000 for youth job creation when I have a letter from the City of Airdrie in my riding which says that presently human resources has stopped the funding of the youth employment service program that had served the country for 20 years. The program that put young people to work every summer has been discontinued.

The city of Airdrie, one of the prettiest cities, if not the prettiest in the entire country, had 163 students and 120 businesses last year that were registered in the program. This year there is nothing because it has been cut.

I do not understand how ministers who live in these various select ridings throughout the country can pass out millions and millions of dollars for these fine things in their ridings, yet in my riding out west a program that had been going on for 20 years has been cut. Is it that the government is giving the GST money back to the City of Airdrie and now it is going to cut some other things to balance the books again? Is that what it wants to do? Does it want to give here, but take there?

The government cut the GST from the municipalities, something that never should have been there in the first place. Kudos to the government, but then it turns around and takes away this program. What is the City of Airdrie going to do? It is such a valuable program, it has worked so well to help young people to get enough cash together over the summer to continue their education that the city will fund it itself, because it is worth doing. That means a lot more money from the municipalities. How many more small towns and cities across the country are not going to be able to benefit from a good program that was once established? Why does the budget not mention that?

I am sick and tired of hearing about what we are going to do for the Indians and the reserves. We have heard for 20 years that we have to do something about the poverty and the situation on the reserves. Absolutely. Grassroots natives across the country have been crying for that for years, and this is a big announcement now in the budget about the wonderful things we are going to do? As some of the people who live on the reserves in my riding have said to me that they will believe it when they see it. It is the same old story.

I only have one minute left and I am going to get this one in if it kills me. I did not see anything in the budget about fighting child pornography, a national strategy or something that would put the police forces in this land on a good footing to fight one of the most evil things in this land, and that is child pornography. There was not one mention of it. The House unanimously passed a motion to put forward some legislation that would take care of child pornography once and for all by eliminating all defences, yet the government insists on continuing to push Bill C-12, saying there must be room for public good.

Public good in child pornography is a bunch of nonsense. That is a no-brainer. That is something that should have been done years ago. I cannot understand why we sit here like a bunch of idiots and allow child pornography to continue to exploit our children all across the world. It is about the sickest thing that we can see that is not happening.

We could all stand up and be cheered if we would look after our kids in that fashion. We are not doing it and I am ashamed of every one of us, to stand here and say yes to it in one day and never see it happen.

Do not tell me that Bill C-12 is going to fix it because it will not. There is still a defence in there called public good and that is a broad term. It is about time the government got off its duff and did something about it.

Business of the House

[Jacques Saada, Liberal, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform]

Mr. Speaker, this afternoon, we shall continue debate on Bill C-30, an act to implement certain provisions of the budget tabled in Parliament on March 23, 2004. If this is completed, we will commence second reading of Bill C-28, an act to amend the Canada National Parks Act.

Tomorrow, we will debate a motion to refer to committee before second reading Bill C-25, an act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings, and hopefully deal with the Senate amendments to Bill C-8, an act to establish the Library and Archives of Canada, to amend the Copyright Act and to amend certain acts in consequence.

When the House returns on April 19, any of this business that is unfinished will be taken up, along with Bill C-11, an act to give effect to the Westbank First Nation Self-Government Agreement, Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, and Bill C-10, an act to amend the Contraventions Act and the Controlled Drugs and Substances Act, Bill C-15, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences, Bill C-28, an act to amend the Canada National Parks Act, Bill C-23, an act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other acts, and the bill introduced yesterday, Bill C-31, an act to give effect to a land claims and self-government agreement among the Tlicho, the Government of the Northwest Territories and the Government of Canada, to make related amendments to the Mackenzie Valley Resource Management Act and to make consequential amendments to other acts.

I should like to wish my colleagues a happy and pleasant holiday period and to express my hope that they return refreshed and ready for a full legislative agenda for the spring.

Supply

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Madam Speaker, I am very pleased to participate in this debate. I am not so sure that as a government member I am as sanguine and content with the subject of the motion, but as all opposition motions are, they attempt to hold the government to account, and we on this side of the House attempt to respond.

The opposition would like to have us believe that Canadians have lost confidence in the legislative agenda of the government. The fact is that the government has the full support of Canadians on a number of legislative items now before Parliament. Let us talk about these, particularly measures aimed at protecting the rights and security of Canadians.

Since the beginning of this session, a number of important bills have been debated in this House. I believe it would be worthwhile to examine them closely.

I will start with a bill that I believe is of huge importance in protecting our children: Bill C-12, an act to amend the Criminal Code in regard to the protection of children and other vulnerable persons. It is currently at third reading stage before the House. It proposes reforms in five key areas. It strengthens the provisions against child pornography. It protects youth against sexual exploitation. It increases the maximum penalties for specific offences committed against children. It facilitates the testimony of child victims and witnesses and other vulnerable persons. It modernizes the criminal law through the creation of the offence of voyeurism.

The bill has been crafted to bring to our children better protection against abuse, neglect and sexual exploitation. Canadians are well aware of the gravity of the issue of child pornography. Even though Canada currently has on the books some of the toughest legislation to combat child pornography, Bill C-12 proposes to go even further by directly responding to concerns flowing from the child pornography case involving the accused John Robin Sharpe.

This is a case wherein the courts convicted Mr. Sharpe of possession of child pornographic photographs. He was, however, acquitted on the one charge of possession of written materials for the purpose of distribution or sale. Even though the court found these stories morally repugnant, Mr. Sharpe was acquitted of this charge because they did not meet the existing definition of written child pornography, that is, they did not advocate or counsel unlawful sexual activity with children.

Bill C-12 directly responds to this concern and proposes several changes to the Criminal Code to broaden the existing definition of written child pornography. It proposes to prohibit written materials, such as those authored by Mr. Sharpe, that describe unlawful sexual activity with children where these written descriptions are the dominant characteristic of the material and are written for a sexual purpose.

To the concern expressed by some Canadians that some people could circumvent the law by demonstrating the artistic merit of pornographic material, the bill includes a different test that draws on the wisdom of the Supreme Court of Canada. It proposes only one defence, the defence of public good, which involves a two-step inquiry. Does the material or act serve the public good? If not, there would be no defence. If it does, then an additional second question is asked: Does it go beyond what serves the public good? In other words, if the risk of harm to society posed by such material outweighs the benefit that it offers to society, then no defence would be available even if it had artistic merit or educational, scientific, medical or other value.

The government has as well clarified the notion of public good defence, including its legal interpretation. As amended, Bill C-12 now defines the public good as including acts or material that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art. This new, inclusive definition closely models the language of the Supreme Court of Canada in the Sharpe case, thereby strengthening subsequent reliance upon this judgment to assist with the interpretation and application of the public good defence.

The government also recognizes that we must do better in protecting youth against sexual exploitation by those who would prey on their vulnerability in other ways. Therefore, Bill C-12 also amends the law in order to allow a court to infer that a sexual relationship is exploitive, having regard to the circumstances and nature of the relationship itself. Essentially, this provision would remove the right to consent of a person aged 14 to 17 years of age, allowing for the conviction of the exploiter even where the young person actually had given the consent.

An additional fourth factor has been added to the list of factors that are considered in law, namely, the actual age of the young person. This more clearly indicates that the court must consider this factor as well as the age differential between the two parties, the young person and the older person. Up to now it was assumed the court would take note of the actual age of the young person. It appears that the court simply accepted this age as a given and extrapolated from that to look at the age of the other person. Now the court must consider the age of the young person who is alleged to have been exploited.

Bill C-12 also proposes important reforms to facilitate the testimony of child witnesses and victims and other vulnerable persons. Although this part of the bill has received less attention, it has been largely well received and was developed in close consultation with the professional community that works with child victims.

Bill C-12 also proposes to create a new voyeurism offence to better protect privacy of Canadians. It would prohibit secret observation by any means or recording in specific situations where there was a reasonable expectation of privacy, for example, when the person observed or recorded is in a place where a person is expected to be in a state of nudity or engaged in sexual activity, as in a bedroom, a bathroom or a change room, or when the observation or recording is done for a sexual purpose.

Bill C-12 would also prohibit the publication or distribution of any recording made as a result of an act of voyeurism. It would also enable the seizure of copies of any such recordings to prevent them from being distributed or sold, as well as for the deletion of electronic copies of these recordings from computer systems, including the Internet.

Bill C-12 is an important bill, one that the opposition and all members of the House should support and bring into law as quickly as possible. One might ask, then, why is the opposition intentionally opposing its passage? Why is it now putting up roadblocks? Why has it introduced what we call a hoist amendment at third reading? Perhaps members opposite will have a comment on that at the end of my remarks. The bill is aimed at protecting vulnerable persons and is, I suggest, too important to be the object of political games here in the House. I call upon the opposition to stop its tactics and pass the bill.

A second important justice bill currently before the House is Bill C-10, which is the bill to amend the Contraventions Act and the Controlled Drugs and Substances Act. This is another important piece of legislation. Regrettably, however, it is another bill for which the opposition has introduced a hoist motion at third reading in an attempt to prevent the bill from becoming law.

Canadians do not agree with the opposition. I suppose it is fair to say there may be Canadians out there who do agree with the opposition, but I, sitting on this side of the House, believe that the vast majority of Canadians agree with the intent of the bill.

The government committed itself in 2003 in the Speech from the Throne to act on the results of parliamentary consultations with Canadians on options for changes to our drug laws, including adjusting the penalties for possession of small amounts of marijuana. On May 27, 2003, the government introduced a bill that delivers on that commitment. I know; I worked on the House committee that worked very hard for a number of months, indeed, over a year, on this issue.

Presently under the Controlled Drugs and Substances Act, the offence of possession of 30 grams or less of marijuana or one gram or less of cannabis resin is punishable by up to six months' imprisonment and/or a fine of $1,000. Very recently, two parliamentary committees--we have mentioned them here--examined the question of the use of drugs. The House of Commons Special Committee on Non-Medical Use of Drugs and the Special Senate Committee on Illegal Drugs conducted thorough research and held numerous public hearings on the legislative provisions dealing with all drugs. Both committees concluded that changes to the legal scheme regulating these drugs were necessary.

Astonishing data emanate from recent research. Just to give a round number, about 100,000 Canadians use cannabis on a daily basis. Approximately 23% of Canadians have used cannabis at least once in their lifetime in spite of the fact that it is a criminal offence to possess this substance. In the last five years, cannabis offences have increased by more than 50%.

Canadians would like to see a reduction in the negative social impact of a criminal conviction. The opposition does not see it that way. I believe the opposition is out of step and out of touch with Canadians on this.

Canadians have also expressed concern over the unfair and unequal application of the law across the country. Police and court activity in respect of the possession offence varies considerably from region to region across Canada. In large urban areas, offenders often receive no more than a verbal warning, and if charged and tried will likely receive either a conditional or absolute discharge. In other parts of Canada, however, for the same offence an offender is more likely to be charged and, if convicted, to receive a fine and possibly a more serious penalty.

Based on these facts, it has been the commitment of this government to reform our legislation dealing with cannabis. The government has a responsibility to Canadians to adapt and address these current concerns. With this proposed legislation, our drug law would be reformed so as to reflect the Canadian reality.

The objectives of the bill are: to discourage the use of cannabis; to reduce the discrepancy in the enforcement of the law concerning the possession of small amounts; to improve law enforcement by peace officers; to modernize the law so that it better reflects the views of Canadians on consuming cannabis; to reduce the adverse consequences of a conviction for this activity; to maintain the crime status of possession of cannabis; and to combat large commercial cannabis grow operations. The bill contains large increases in penalties upon conviction for being associated with promoting or using these cannabis grow operations.

I have to point out as well that cannabis is one of a large and even a huge number of drugs that have been and are being used in our communities. The drugs being used vary. They include prescription drugs. OxyContin is one that has often been named as a culprit. It is a drug that is abused, over-prescribed and diverted from prescription use into illegal street use. I believe I recall that in one Atlantic Canadian city the street drug of choice was not cocaine or heroin but OxyContin, which of course is available at drugstores.

We all know that we have a serious drug issue, not just in urban Canada but across the whole breadth of our Canadian society. We must continue to take steps to educate and to deal with this. Not only do we have diversion from prescription use, but we have the old standbys. I do not want to pretend that it is just another routine drug description, but we have heroin making its way up and down the marketplace. We have cocaine and crack cocaine and we have all the other drugs which people have heard about and read about in their papers.

Among all those drugs, alcohol appears to be the drug that causes the greatest harm to Canadians, followed in close order, I believe, by nicotine. Tobacco is a bad one and extremely costly. We then get into heroin and cocaine, and we work down the list of addictions, and the cost to society.

This is my own view but I look at the overall picture, I regard cannabis as a bit of piker in the list of drugs that harm Canadian society. It is still a drug and it is still abused but it is not a drug that has a huge swath of addiction nor the broken lives and deaths that are associated with other drugs. I include alcohol in the deaths, broken families and ruined lives. While cannabis and marijuana use is an issue, and I will even rank it as an important issue, it is not the killer or as addictive as are all these other drugs.

As a country I suggest we have to focus on where the real harms are first. We will include all the drugs, including cannabis, but we must focus on where the real harms lay.

In conclusion, even though the opposition members do not like all of the government's agenda, I call upon them to please stop delaying passage of the bills to which I have referred today. This is social justice legislation that is of real importance. I call upon the opposition members to join with those members of the House who will vote yea in passage of these two important bills.

Criminal Code

[Leon Benoit, Canadian Alliance, Lakeland, AB]

Mr. Speaker, I am pleased to rise to debate this issue. Many others have spoken on some of the specific issues. I will do a little bit of that too, but I would like to talk about this issue in a general fashion first.

I would like to raise the question, why, after 10 years that I have been here, are we still just talking about this issue? I was first elected in 1993 and very soon after I came down here we raised many of the issues we are still talking about today. We have asked questions of the government, in committee and in the House of Commons, as to why it is not acting more quickly on something as urgent and so critical as protecting our children from sexual predators. What question could be more fundamental for government to deal with than that?

It has been 10 years that I have been here. I have been asking questions and my colleagues have been asking questions. We stated our position on protecting children from sexual predators and nothing has happened. The legislation that we are debating today, Bill C-12, in practical terms when applied, will not change things. My question to the government is, why has it taken 10 years and why after 10 years has nothing been done on such a critical issue?

I do not expect that I will get an answer to my question today, but Canadians certainly deserve an answer to this question. It is a question that Canadians are still asking. Next to some of the hot button issues, it is one of the issues most often brought to my attention, especially the issue of raising the age of sexual consent. However, there are other aspects as well that deal with protecting our children from sexual predators.

If this issue is so important to my constituents, I would have a hard time not believing that it is also important to the constituents of all members opposite. In fact, they are hearing the same things that I am hearing because in various ways I have heard them say so. They are concerned about the age of consent. They are concerned about some of these other things like artistic merit that my colleagues and everyone in the House has been debating.

Therefore, if that concern is so widespread, including on the government side, why has appropriate action not been taken after 10 years? We will hear the government use the excuse that was used by the public works minister yesterday in question period when he said that it was not his government. He said that his government only started on December 12.

Really, that is what he said in response to a question. We were talking about how the government's reputation has been tarnished due to all the scandals, like the ad scam, the sponsorship program, and the military issue that my colleague from Prince George has brought up recently regarding how $160 million was somehow misspent. It is probably the worst type of corruption, yet the government did not pick up on it for years. These things come up, and we have been bringing them up on a regular basis.

What did the public works minister say yesterday? He said that his government has only been in place since December 12, trying to distance himself and the responsibility of the Prime Minister, the cabinet and all the members of Parliament on the government side. The Liberal members are trying to distance themselves from their responsibility; however, they were a part of the government over the past 10 years. I would be trying to distance myself from that too, quite frankly, if I were there.

However, corruption is one thing and we are not talking about corruption in this debate today. We are not talking about the sponsorship scandal or any of the other areas of corruption.

We are talking about something every bit as important though, and that is the protection of our children from sexual predators. If so many of these members of Parliament feel, as I know they do, that this is something they want to do, that they want their government to do, why have they been so ineffective in doing it? After all, they are part of the government, or at least they are supposed to influence the government in caucus and in other ways.

I do not think it is because they are not good people. I know that most members of Parliament, no matter which party they are from, do the best job they can to represent their constituents. They do that; we all do that. We work very hard at that. I believe Liberal members of Parliament are no different. I have talked with them enough to know that they want to represent their constituents.

Why then, on critical issues such as this, can they not do that? Why are they not allowed to do so? Why have they been so unsuccessful in dealing with this most urgent of issues, such as protecting our children?

The answer comes down to a lack of democratic process in the House of Commons, in the government, and in our political system. That is something that I have talked about an awful lot in the last 16 years since the Reform Party of Canada was founded.

One of the main issues that the Reform Party was founded on back in 1987 was the issue of democratic reform. It would put in place various democratic reforms so that each and every member of Parliament from every political party would have a real impact in this place. Members would be able to actually represent their constituents in this place.

Why after 16 years and why after more than 10 years of the government being in power has so little been done on that issue? It is because of Bill C-12, that we are dealing with today, and what happens with every other piece of legislation we deal with in the House that will depend on whether we have a democratic system or not?

Have we had a democratic system in place, one that was really working? The government has had 10 years to do that and it has actually made things worse rather than better. I honestly believe that things are less democratic in the House now than they were 10 years ago when I came here.

Had democratic changes been made, I believe the Liberal members of Parliament, who understand the importance of this issue, along with my colleagues and colleagues from other political parties, would have forced the government to pass legislation which would deal with these issues that we are talking about in Bill C-12.

It comes down to having a process in place that allows people from right across this country to appear to be represented and to in fact be represented by their member of Parliament. After all, their member of Parliament should answer to them and not to this cabinet and not to the Prime Minister. That is not the way our system should work.

Unfortunately, it is the way that it does work. That is a sad commentary on 10 years of Liberal government. We can go back farther than that. I am only looking at the 10 years that I have been here because I am very much familiar with those 10 years.

I know the fight that my colleagues and I, and some in other political parties too, including the governing party, have put up to bring democratic change. It would ensure that issues like the protection of children would be dealt with in the way that the general public wants it to be dealt with.

Every one of us is elected by the people in our constituency to work on their behalf, to represent their views. We learn about issues from polling and surveys, and many of us do that in our householders. We will take an issue such as the protection of children or the age of consent, and I have done that myself and many of my colleagues have done that. We have given information looking at both sides of the issue.

Sometimes we will invite someone who takes a contrary position to our own position to put information in our householders to our constituents. We will put our position in because part of being a representative is to be a local leader. Part of leadership is to try to persuade people to our point of view. We put our persuasive position in there. Then we allow our constituents to decide. We allow our constituents to make it clear, by actually voting, how they feel on these important issues.

Any survey that has been done backs up widespread public support to raise the sexual age of consent for children from 14. They should not be making decisions on whether to have sex with an adult. That is not something they should not have to think of at that age. Let them be children for awhile.

Every one of the official polls done on the issue shows an 80% support rate or higher for raising the age of sexual consent to at least 16.

It comes down to unfortunately the fact that we have, as the Prime Minister calls it, this democratic deficit. What has he done to fix it? Nothing. What has he done to deal with this issue when he must know about it, because I am sure many of his members of Parliament have made the point to him that they want these issues dealt with by the government. What has he done? He has done nothing about it.

This legislation, should it pass, quite frankly will not help solve the problem. I will quickly go through some of the specific issues in the legislation that have not been dealt with by the government. I will talk about issues that are conspicuous by their absence.

The first is the issue of artistic merit, and some of my colleagues have talked about it. The controversy on artistic merit has been going on for some time. It certainly came from the John Robin Sharpe case from British Columbia. I think we are all very much aware of that. He is a notorious child pornographer.

In the Supreme Court case, R. v Sharpe, it was determined that artistic merit should be interpreted as widely as possible. In the legislation the government has said that it will deal with it by taking away the artistic merit defence and put in place the public good defence. This was after a former justice minister, who was attempting to sell the bill to committee, admitted that the broader public good defence in fact would allow the artistic merit defence to be there. I want to read the quote from the former justice minister. He said:

Artistic merit still exists in the sense that a piece of art will have to essentially go through the new defence of public good and through the two stages. Of course, the first question is always this. Does it serve the public good?

He went on to say that artistic merit was a part of what was considered under whether it served the public good.

That issue has not been dealt with in the legislation in any kind of effective way. In practice, when it goes before the courts, it probably will not change a thing. It will probably be dealt with in exactly the same way and the artistic merit of what I call child pornography will still be a consideration and probably the results will be no different. The government has failed entirely in that regard.

The Conservative Party calls for the elimination of all defences that justify the criminal possession of child pornography. We are clear on that. Why is the government so unclear on that? What it is clear on is that it is not willing to take this issue and deal with it head on to ensure that our children are protected.

The second issue which has not been dealt with at all in the legislation is age of consent. I have already referred to that because it is an issue that so obviously should have been dealt with years ago. We all know that having 14 year olds decide whether they want to have sex with an adult is simply not acceptable, yet that is not in the legislation. In the general polling 80% of Canadians have said that they want it to be in there.

Canadians are clear on this and, as I said, many MPs have done their own surveys on this through their householders they send out to constituents. We have received results that in many cases are much higher than the 80%. Why has it not been dealt with?

Another former justice minister, although I cannot name her, said this on raising the age of consent. She indicated very clearly that it was something the government looked forward to doing. This was years ago. She said:

With regard to age of consent--from 14 to 16--we have our child as victim consultation paper. We discussed that at our federal-provincial justice ministers' meeting in September in Nova Scotia. Those consultations will be concluded and reported on by December 31 of this year, and I think we will see that a consensus is emerging that with certain safeguards we should probably be moving on the age of consent from 14 to 16.

This was in October 2001. What that former justice minister is saying is that she believes all provinces, and that is what we found too, want to go ahead with raising the age of sexual consent from 14 to 16. She acknowledged that was what Canadians wanted and it was certainly what the premiers wanted. Therefore, the federal government would not be improperly interfering in the areas of provincial jurisdiction, something that is so important to our Bloc colleagues as well as to us. We are very conscious of the federal government respecting provincial jurisdiction. That has been done. The provinces want to go with this and the federal government is ignoring that wish.

Again, Bill C-12 fails to raise the age of consent of sexual contact between children and adults. That is clear. The government claims that it has somehow effectively dealt with this issue of the age of consent. It has not. Though, as I have said before, probably a majority of its members of Parliament support that. Why do a majority of its members of Parliament support that, even in the governing party? Because their constituents have told them that.

The third issue, which I will refer to very briefly, is the issue of minimum sentences. In the bill the government raises the maximum sentence allowed under these various offences, but it puts in place no mandatory minimum sentence. Raising the maximum sentence probably will do nothing to help judges take these issues more seriously under the law. Putting in place mandatory minimum sentences for these offences on the other hand will mean judges will have no choice. Parliament will have dictated and minimum sentences will be put in place. It will give offenders at least the minimum sentence as required by law, but the government has refused to do that.

I want to close by saying that it is hard for me to understand why after 10 years this has not been changed and why the bill will not change it. It is a sad commentary. Let us move ahead. I can assure the House the next government will change that.

[Maurice Vellacott, Canadian Alliance, Saskatoon—Wanuskewin, SK]

My regrets, Mr. Speaker. I will just make reference to the former justice minister from Edmonton, Alberta, and I think people would have in mind of whom I am speaking.

She stated that raising the age of consent was something that the government should be moving forward on. She said back in October 2001 with regard to changing the age of consent from 14 to 16:

Those consultations will be concluded and reported on by December 31, 2001 and I think we will see that a consensus is emerging that with certain safeguards we should probably be moving on the age of consent from 14 to 16.

That was the case. The provinces unanimously want that to proceed. Then she went on, and this is the kind of way that she evaded, dodged and escaped from it. She said, in a very interesting way to kind of step around it:

But as with some of these things, they look simple on the surface, but they're not quite so simple. It requires a fair number of changes to the code; we're going to have to review all those sections where age is found. But it's certainly an issue very much on our agenda.

Well let us get it on the agenda. Let us put it forward. Let us do it instead of sidestepping in the manner she did. Where there is a will, there is a way. Yes, there are some complications but if there is really a heart and a spirit and a desire to move forward on this very vital thing, then we can do it. We can move it ahead. Where there is a will, there is a way to get it done, and very quickly.

One of the major objections we have to Bill C-12 is that it does not raise the age of consent for sexual contact between children and adults, those kinds of exploitive relationships. In fact there is a category that is aimed at protecting people between the ages of 14 and 18. In determining whether a person is in a relationship with a young person that is exploitive of that young person, a judge must consider the age difference between the accused and the young person, the evolution of the relationship, as well as the degree of control or influence by the accused over the young person.

Really it is something that allows just too much to slip through on this. It fails to create the kind of certainty of protection that children require. It fails to give that assurance and that kind of tool, if you will, to the good police across our country who need something. They need some more teeth in the law so that they can move forward in rapid fashion with these prosecutions instead of dragging on and on, with people slipping through with these kinds of defences that are allowed.

As it stands, this bill would not serve as a real deterrent and would simply result in longer trials and more litigation dragged out over time.

Prior to this bill, it was already against the law for a person in a position of trust or authority, with whom a young person between ages 14 and 18 was in a relationship of dependency, to be sexually involved with that young person. That already was in effect so there is nothing new in that respect in this law. It is unclear how adding people who are in a relationship with a young person which is exploitive of the young person does anything to add legal protection for young people. We are not convinced that there is any improvement by way of what is suggested in that little term exploitive relationship in Bill C-12.

In the Sharpe case there were two exemptions carved out for child pornography: materials such as diaries or drawings created privately and kept by that person for personal use; and visual recordings of a person, by that person, engaged in lawful sexual activity, kept by the person for personal use.

That latter exemption has the potential to expose children 14 to 18 years of age to further exploitation by child pornographers since they would be engaging in legal activity, but the government's failure to prohibit all adult-child sex continues to be an unacceptable risk. Only by raising that age of consent will young people be truly protected under the Criminal Code.

We are not advocating for the criminalizing of teenagers, as with other jurisdictions with a more reasonable age of consent, but in those jurisdictions, such as the U.K., Australia and most states in the United States, a close in age exemption would apply to ensure that those individuals, those teenagers, are not criminalized.

Bill C-12 would also increase maximum sentences for child related offences. They include sexual offences, failing to provide the necessities of life and abandoning a child. That is good so far as the statement exists, but it does no good if the courts do not impose the sentences.

We know by experience that when maximum sentences are raised, there is no corresponding pattern in the actual sentencing practices. This has been demonstrated across the land. The maximum penalty can be raised but if there is no minimum sentence, then it really does not do anything in the way of successful prosecutions and there is no change in the actual sentencing patterns. What is needed are mandatory sentences, truth in sentencing, eliminating statutory release, and that there be no conditional sentences for child predators.

As has been said by others here today, we are all experiencing the effects of modern technology. We are all part of the wave of technology and its advances, but that is also part of what is creating the difficulty here. The problem is it surpassed the legislative provisions. There is some archaism that governs the use of evidence in these cases. We really need to have that addressed. The bill fails to address those shortcomings. Amendments are required to deal with child pornography cases effectively and efficiently such that we make some serious impact to drive it back or push it off to the very edges of society or to eliminate it altogether, if possible.

The bill creates a new offence of voyeurism and the distribution of voyeuristic material. That is a positive step, and we will give credit where it is due. It makes it an offence to observe or make a visual recording of a person who shall have a reasonable expectation of privacy if the person is in a place in which the person can be expected to be nude or engaged in sexual activity.

There was a recent case in the city of Saskatoon at the exhibition grounds. I think that disciplinary action is being brought against the person, who is a law enforcement official himself. His excuse is that he was on certain medications and so on. He was using a camera in a voyeuristic manner in the washrooms at the exhibition in Saskatoon. We need laws in place because of the advancement of technology. Certainly that is to be commended and is a good thing.

The Conservative Party of Canada believes that the bill falls far short in terms of protecting Canada's children. Members of Parliament across the country have discovered this plain and clear especially as they have talked to those who work with youth, child advocacy groups. Conversations with the police make it very apparent that this is a flawed bill. It is inadequate and will not do the job, which is a very unfortunate, regrettable thing for the children of our country.

The bill will not give children the greater legal protection that they need and which we owe to them as citizens of this country. Children are the future of our country and should not be allowed to be at risk. We need to get the laws in place and we need to get it right . This bill simply will not do the job.

With those regretful comments at the end, I conclude my remarks. Bill C-12 is in serious need of amendment. The Conservative Party of Canada hopes that maybe at some point we could have that done.

[Maurice Vellacott, Canadian Alliance, Saskatoon—Wanuskewin, SK]

Mr. Speaker, I appreciate the remarks of my esteemed colleague who just spoke. He has been attorney general in his province and has worked in the law field for some time, so he has had a lot of discussion and dialogue with the authorities, with justice officials under his purview and his watch in the province of Manitoba, and he serves our Conservative Party very well as our lead critic in these matters.

The bill we have before us, Bill C-12, is one about which different people have wanted to speak out. People are outraged that we do not have it right in respect of the piece of legislation that we have here today. This whole controversy about the artistic merit defence actually began some time ago in reaction to the court case of John Robin Sharpe, a notorious child pornographer.

The bill purports to make amendments to the Criminal Code to safeguard children from sexual exploitation, abuse and neglect. We think the bill has not done this in the appropriate way and to the extent that it should. Therefore, as Conservative Party members, we have objections with respect to the Liberal government bill before us today.

The Supreme Court of Canada said in the Sharpe case that artistic merit should be interpreted as broadly as possible. That very much concerns us. We do not have any other direction from Parliament, the highest court in the land, if we will, so therefore we have a broad latitude in the statement from the Supreme Court on the John Robin Sharpe case. That statement helped shape the decision that allowed John Robin Sharpe to be acquitted for two counts of possession of child pornography with the intent to distribute.

That material, containing some very violent writings targeting vulnerable children, was considered by judges to have artistic merit. Since that time, this side of the House, particularly the Conservatives, has called on the federal government to eliminate that particular artistic merit defence.

Under this now slightly changed bill, Bill C-12, the existing defences of child pornography, that is, artistic merit, educational, scientific or medical purposes, are reduced to a single defence of public good, but this still has not solved the problem because of how wide and a little bit vague this term is.

Despite the attempts of the former justice minister, the member for Outremont, to sell us the bill and convince us on that basis that the artistic merit defence was eliminated--and technically speaking that would be true--he admitted in the justice committee that it is still included under the broader public good defence. Therein lies the difficulty. As he said in the justice committee, artistic merit still exists in the sense that a piece of art essentially will have to go through this new defence of public good and go through the two stages, and of course there is always the first question: does it serve the public good? That is in the committee records of September 25, 2003.

In the Sharpe case, the Supreme Court of Canada also briefly--

[Vic Toews, Canadian Alliance, Provencher, MB]

Mr. Speaker, it is a privilege to speak to Bill C-12, a bill that has been recycled by the federal justice minister, a bill that would do nothing to help give children the legal protection they need.

We heard a lot of evidence in committee regarding the bill. We heard from frontline police officers and from child advocacy groups, including groups like Beyond Borders. The government has simply ignored the mounds of evidence from these child advocate groups and frontline police officers who have indicated time and again that the Bill C-12 would not be effective in protecting children.

By reviving what has been referred to as pedophile-friendly legislation without a thought to the real needs of children, the Prime Minister has simply carried out the previous prime minister's legacy of indifference.

The bill does not address the fundamental problems relating to the protection of children that our criminal justice system should address. It does not eliminate all defences for the criminal possession of child pornography. It does not raise the age of consent for adult-child sexual contact from 14 years of age, one of the lowest ages of consent in the western world.

One of the provisions in the Criminal Code allows an adult to have sex with a child as young as 12 years old if that adult thought the child was in fact 14 years of age. While that may seem preposterous, that is exactly what happened in a recent case in Saskatchewan where a judge acquitted two adult males in their twenties who had sexual relations with a young aboriginal girl who had run away from home. They were acquitted because they thought she was 14 years of age.

The bill fails to introduce mandatory sentences for child sexual assault, as has been done in other jurisdictions, specifically the United Kingdom and the United States.

The bill also fails to streamline the laws of evidence governing convictions for sex offenders.

Canada is becoming a global haven for child predators because of these glaring Liberal policy failures. In fact, the entire bill is filled with vague provisions that fail to create the certainty of protection that children require. No doubt prompting therefore the applause from a notorious child predator like John Robin Sharpe, who supports the bill, because he believes it would bring understanding to the adult-child sexual relationship. Praise from a child predator is evident, but all the frontline police officers and child care agencies, indeed, every witness who went before the justice committee, condemned the bill, other than the minister himself.

Let me deal specifically with some of the concerns that have been raised.

The first concern that needs to be raised, which I know some of my colleagues have addressed, centres around the controversy regarding the artistic merit defence. That controversy began in reaction to the court case of the previously mentioned child predator John Robin Sharpe.

The Supreme Court of Canada in R. v Sharpe said that artistic merit should be interpreted as broadly as possible. That really opened the door to mischief in terms of trying to enforce this particular law. It basically meant that one could bring forward any witness to say that there was at least some artistic merit to these degrading writings and that would be sufficient for a judge to consider an acquittal.

That interpretation of the law by the Supreme Court of Canada helped shape the decision that allowed Mr. Sharpe to be acquitted for two counts of possession of child pornography with the intent to distribute, as the material, containing violent writing targeting vulnerable children, was considered by the judge to have artistic merit.

It is truly remarkable that we would never accept the defence of artistic merit with respect to women in our society and with respect to the exploitation of racial minorities, and yet with respect to the most vulnerable minority of them all, our children, the courts are more than quick to protect artistic merit rights and destroy the protection that children deserve. It is very evident that that defence needs to be eliminated. It is simply not necessary.

We have called on the federal government, as the Conservative Party, to eliminate that defence. The government responded but the response has been a pitiful response in terms of protecting children.

The defence in the old bill has now been reduced into a single defence of public good. Despite the former justice minister's attempt to sell this bill on the basis that the artistic merit defence has been eliminated, he admitted in the justice committee hearings that the artistic merit defence is still included under the broader public good defence.

Again, that is typical of the kind of approach that the prior justice minister took and now apparently the new justice minister takes. If people are sufficiently outraged they make changes, not changes that substantively address the concerns raised, but rather changes that simply disguise their original intent and in fact carry out that original intent.

What did the former justice minister state in describing what this new public good defence includes? He admitted, and I want to quote from his comments. He stated:

Artistic merit still exists in the sense that a piece of art will have to essentially go through the new defence of public good and through the two stages. Of course, the first question is always this. Does it serve the public good?

Clearly, within there is still the defence of artistic merit.

In the Sharpe decision, when it was heard by the Supreme Court of Canada, the court also addressed that particular statement. It briefly considered the defence of public good. The court found that public good has been interpreted as “necessary or advantageous to...the pursuit of science, literature, or art, or other objects of general interest”. That was the Supreme Court of Canada's interpretation of public good.

The court went on to say:

It might be argued that the public good is served by possession of materials that promote expressive or psychological well-being or enhance one's sexual identity in ways that do not involve harm to others. In some cases this might eliminate some of the more problematic applications of s. 163.1(4). For example, it might in certain cases foreclose the law's application to visual works created and privately held by one person alone....

That statement by the Supreme Court of Canada has been the subject of a lot of controversy. One of the things that the court apparently did not understand was that this type of written child pornography is used to groom children into thinking that these types of sexual relationships with adults are all right. It is very difficult then to suppress this particular information or this type of child pornography. The excuse being offered by these pornographers is that they were only writing it for themselves.

I heard an interesting story with respect to some of Mr. John Robin Sharpe's material that it was in fact found with a notation on it, “This material may be illegal in Canada”. That is a curious thing to put on one's own writings required for one's own personal use. If Mr. Sharpe thought it would be illegal, that is one thing, but why would he have to put that on the face of the material itself? The inference is clear. He distributes this material in order to assist other child predators in their activities.

In trying to create these kinds of exceptions, ostensibly to protect free speech, what the court does is it opens the door to the abuse of children.

The Conservative Party calls for the elimination of all defences that justify the criminal possession of child pornography. Members opposite say that then means we have to make it illegal in every context. That is not correct. That is being mischievous. Obviously, for the purposes of prosecution, for example, it would not be illegal for the police or prosecutors to possess that or for researchers who are studying the effects of exposure to child pornography.

However there needs to be some limitation and clear delineation of what is acceptable and what is not.

We were met with a problem similar to this some years ago when it appeared that police officers were conducting certain illegal activity to further another criminal investigation.

The Supreme Court of Canada said there was no justification for police officers to engage in that illegal activity, no protection in common law, statute or otherwise. The House addressed that issue by passing legislation that set out exactly when police officers could break the law to investigate another charge. It was clearly delineated and set out in statute.

When members opposite say that the exclusion of all child pornography and categorizing it as criminal possession would never work because it would exclude the legitimate handling of pornography by police or prosecutors for a prosecution, is simply a lot of nonsense.

This bill needs to go back to the drawing board to address what I consider a fundamental flaw in that legislation, but yet a flaw that can be remedied by good statutory language. I might note in this context as well that civil libertarians have also indicated that they have a concern with the defence of public good and that it is simply too vague and too broad. So those who are interested in protecting children are concerned about this and civil libertarians who are concerned about certain artistic endeavours are also concerned that this phrase establishes no standard at all.

I want to talk about the age of consent. This bill, frankly, does not deal with that issue in an effective manner. Instead of prohibiting all child exploitation by adults where that child is, for example as in other countries, under the age of 16, this legislation requires a court to examine on a case by case basis if a child has been harmed. This kind of tiptoeing around criminal behaviour is reprehensible. The Conservative Party will not support this kind of vague legislation.

Again, comments by the notorious child predator John Robin Sharpe praising this pedophile friendly piece of legislation further validate the opposition's concern about this bill. Instead of raising the age to simply and clearly state that there shall be no adult-child sexual contact, the Liberals import this vague standard.

At the same time, I recognize that it is not the role of Parliament to get involved in certain social policy issues, for example, sexual relationships between children. The concern of the Conservative Party is not to regulate the sexual conduct of children between each other, that is, children under the age of 16. What we are concerned about is the exploitation of children by adults. We recognize that there needs to be a close in age exemption that ensures we do not criminalize consenting activity, but we do want to stop the kind of activity that John Robin Sharpe was just recently convicted of.

On the age of consent, 80% of Canadians polled said they want to raise the age of consent to at least age 16. The response of this government has been that there are certain cultural considerations in Canada which prevent it from doing that. We have asked time and again what culture in this country agrees with the sexual exploitation of children by adults. The Liberals have been silent. The government has tried to rely on some kind of cultural camouflage, which has only insulted Canadians of every culture. If there is evidence that cultures in Canada accept the exploitation of children by adults, why does the government not bring it forward instead of casting aspersions on every culture in Canada?

The approach of the Liberals in this bill to create this category of exploitative relationships is simply cumbersome and is in fact very difficult to prove in terms of trying to bring forward a prosecution. We already have a provision that makes it against the law for someone in a position of trust to exploit a young person between the ages of 14 and 18. Here, they are simply trying to recast this. Those are my brief comments at this time. I appreciate the opportunity to speak.

Justice

[Rick Casson, Canadian Alliance, Lethbridge, AB]

Mr. Speaker, the tired Liberal government is recycling a Jean Chrétien piece of legislation and touting it as legislation to protect children.

Bill C-12 does no such thing. Even Canada's most notorious pedophile thinks it is great. Why will the government not put teeth into the legislation so it will truly protect our children? Why will it not remove the loophole allowing for defence based on public good? There must be no defence for child molesters and pornographers.

Why will it not raise the age of consent from 14 to 16 years of age and catch up to the rest of the western world? Why will it not increase mandatory minimum sentences for those convicted of preying on our children? Harsher maximum sentences that are rarely levied are not a deterrent.

Child molesters, pedophiles and the creeps who prey on our children support the legislation. It is obvious to me that it will take a Conservative government to put legislation in place that will send a clear message--do not mess with our kids.

Criminal Code

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, it is a pleasure for me to rise in this House to take part in this very important debate on Bill C-12.

The bill is one which capsulates, and very much is intended to address, an extremely important issue, that being the proliferation and possession of child pornography in this country. I am very sad to say that the overwhelming feeling that I and many others, including the previous speaker, have been left with is that a huge missed opportunity is occurring within the pages of Bill C-12.

While the bill attempts to address these critical matters of protecting children in the country, it falls far short. In its final analysis, it is described as a complex and cumbersome bill that will not make it easier to prosecute sex offenders and those who, in many cases, are sexual predators in our community who perpetrate the worst kind of violence on children: sexual abuse, which is tantamount in many situations to a life sentence of turmoil, of complex physical damage, of the type of impact on a person's life from which they never recover.

The responsibility, obligation, upon members of Parliament, those in a position to address the situation, cannot be understated. Here we had a golden opportunity to do something about this egregious situation that is occurring on the streets, in small villages and towns and residences across the country.

The controversy arising in one area of child pornography that came out of the now infamous John Robin Sharpe case, which went all the way up to our Supreme Court of Canada, and the difficulty that remains surrounding the definition of an artistic merit interpretation that was left by the courts allows for a dangerous and broad interpretation of a type of child pornography of which a person might be in possession. This statement not only has allowed but has left open the door for further proliferation of child pornography by individuals like John Robin Sharpe,

There is an important distinction to be made between the types of defences that rely on an exception, if you will, to possession of certain types of materials. I want to be clear in defining that. The courts spoke of essentially three exceptions, artistic merit being one of them, which I personally and many members of the Conservative Party oppose. It also made way for educational, scientific or medical purposes. What we are talking about clearly is anatomy charts, instructional videos for educational purposes that depict a child in a certain fashion.

All of those defences lumped in with artistic merit were, in essence, boiled down by the courts to a single defence of public good. That broad interpretation is what is so dangerous. The former justice minister in the wake of this decision came before the justice committee and essentially admitted that the broader definition of public good defence was still very much one which would leave open the possibility of a person possessing child pornography. He said, and I am quoting from his testimony at the justice committee:

Artistic merit still exists in the sense that a piece of art will have to essentially go through the new defence of public good and through the two stages. Of course, the first question is always this. Does it serve the public good?

That might be the first test, but that second broad category of artistic merit leaves open the possibility that an individual can possess or perpetrate or proliferate child pornography. A zero tolerance definition is needed. No one in any way, shape or form in this country should be encouraged or permitted to possess child pornography, full stop. Yet the bill leaves open that very real possibility. That is the Liberal answer to the John Robin Sharpe case.

I am fearful that any backing away or watering down of a definition such as this will leave that danger out there for young people in this country. There is no excuse for not completely eradicating the flexibility that was left open by the Supreme Court.

That is not to say there are no other elements of the bill that do at least attempt to go further in securing the lives and the safety of children, and I will touch on that in a moment. The fundamental question in this debate must centre around the harm that could be caused to those who are most vulnerable, mainly children.

Underlying this theme, we must give thought to the role of the court in the context of judicial policy making as it pertains to the supremacy of Parliament. We must show how this new legislation would eradicate child pornography in Canada within the context of the artistic merit defence. Bill C-12 comes up short. The legislation does not go far enough. It does not subject the country to the type of ironclad protections that should be available when it comes to protecting children.

One of the often used defences when we see cases like this is that if we were to bring forward amendments in legislation to shut down any further interpretation there could be a constitutional challenge. Well, as sure as night follows day, in a matter like this there will be a constitutional challenge. If we get caught up in the constitutional constipation that we see constantly from the government, we will leave a lot of people vulnerable. On an issue as fundamental as the protection of children that is unacceptable.

The government is letting down the country when it comes to leaving open interpretations such as artistic merit for child pornography. There is an inherent danger in society as a whole when we fail to recognize the detrimental effects of child pornography at a very basic level.

The Charter of Rights and Freedoms does provide sufficient protection for freedom of thought and expression, and surely a common sense interpretation has to follow, but what constitutes a reasonable limit is central to the debate, the so-called Oakes test that applies when it comes to a clash of constitutional rights protected by the charter.

The existing defences of child pornography are outlined in Bill C-12. Artistic merit is grouped in with educational, scientific or medical purposes. That is misleading and unacceptable. They are reduced to the public good definition. I have already referred to the justice minister's admission that the public good is still a wide open interpretation.

In the R. v Sharpe case, the Supreme Court also briefly considered the defence of public good. The court found that the public good has been interpreted as “necessary or advantageous...the pursuit of science, literature, or art, or other objects of general interest”.

What on God's green Earth does that mean? What are the general interests of somebody so sick as to go out and depict children in a sexual fashion?

The court went on to say:

It might be argued that the public good is served by possession of materials that promote expressive or psychological well-being or enhance one's sexual identity in ways that do not involve harm to others.

Explicitly, child pornography harms children. The making of it, the depiction of children in a sexual fashion, harms children, harms society and tears the social fabric.

The court went on to say:

In some cases this might eliminate some of the more problematic applications of s. 163.1(4). For example, it might in certain cases foreclose the law's application to visual works created and privately held by one person alone, or to private recordings by adolescents of their lawful sexual activity. Nevertheless, the public good defence might not answer all concerns as to the law's breadth. Absent evidence of public good in the particular case, a person might still be convicted for possession of material that directly engages the value of self-fulfilment and presents little or no risk of harm to children. Thus, while the public good defence might prevent troubling applications of the law in certain cases, it would not do so in all.

That admission by the court underlines the problem of leaving the door even slightly open.

We must speak with clarity and strength on the issue. We must call for the elimination of all defences that would justify the criminal possession of child pornography and call for legislation that would criminalize possession of child pornography. Of course the criminal possession of that material would not apply to those in the justice system who have it for the purpose associated with prosecution, for research or for studying the effects of exposure to child pornography, which is consistent with the court's definition of educational and scientific material.

However I would underline again, for emphasis, the fact that through the bill the minister has left the matter open to interpretation by the courts, strikes at the very heart of what we are tasked with in this place.

The intent of the bill should be, first and foremost, to protect children from all forms of exploitation, all forms of child pornography and all forms of sexual exploitation that, in many cases, documented, scientific, anecdotal and otherwise, lead to further abuse. That is something that we should be moving with quickness and with clarity to eradicate.

Definitions of public good that are as vague as the resulting case law, in this case entrenched by the bill, would not leave courts with the sufficient objectivity to decide what is and what is not pornographic.

I would argue strenuously, having appeared in numerous courts, that common sense would prevail and that the judges, given the opportunity to judge on its merits what constitutes child pornography, would find in every case, having run the gamut, that child pornography can be easily identified, and the purpose for which it is being used is the only defence. Allowing that definition of artistic merit to remain in the bill would open a very dangerous element to that interpretation.

I ask rhetorically why the minister would want to leave that interpretation there. Why did the minister and the government wait so long to act? Why did we have to wait, in this instance, for the court to make that ruling?

I know there will be a legion of lawyers lining up to use this defence and I know it will make its way through the courts again. If this bill becomes law, as a result of the flawed drafting that I see, it will very likely wind up back before this place again, so why would we not do it right the first time? Is that not really the goal here, to be efficient, to streamline legislation, to do it right in the first instance?

As my colleague from Lakeland has indicated, that does not appear to be the way the government operates. It is always about waiting to see what the courts will do, or waiting to see what the polls crystallize around, and somehow keeping the political angle first and foremost in its mind. That is not the way a government should operate, particularly on an issue as fundamental as protecting children.

This is an occasion where the government should act with strength, with leadership and with vision on something so fundamental that goes to the very bedrock of our society, protecting our most vulnerable citizens, the children of Canada.

We are left with flawed legislation that could be fixed easily by removing this artistic merit loophole. My colleague from Surrey Central gave a very comprehensive and fact based speech in the House of Commons this morning. He spoke of the need to put resources into policing, the need to help some of the social services that are there, not only to help with the aftermath of violence and sexual exploitation, but to help prevent it. In the cases of policing, he spoke of the shocking figures that exist in some communities where they do not have enough resources for their police.

It is also a telling comment to know that the police do not support this bill. The police forces in Canada have found the bill wanting for some of the same reasons outlined by myself and my colleague from Surrey. They clearly recognize, as do others, the shortcomings.

Similarly, child advocacy groups have found the bill wanting. They recognize that the bill would give no greater legal protection, nor would it assist in the prosecution of these cases.

The bill should be about accountability and about taking steps to hold people to account when these atrocities occur, but further than that, it should also be about deterrence, about setting an example and about holding a person to account. Putting in place mandatory maximum sentences or raising the maximum sentence does not do that because there is no commensurate requirement for judges to follow that sentencing scheme.

It sounds very impressive when we say that the maximum sentence will be jacked up, but there is no requirement in the bill for a judge to follow that recommendation. Mandatory minimums, on the other hand, would. They put in place a minimum sentence.

I would suggest that when it comes to child sexual exploitation there is need for incarceration and for deterrents. Public protection should be first and foremost in the bill.

On the issue of protecting children, I think we could get unanimity in this place if we were to recognize our responsibility to address anything that allows us to further protect society. I am therefore absolutely astounded that this legislation has left open this artistic loophole.

If we were to step outside this bubble, this political world in which we live, and if we were talk to average Canadians, I think we would find that they too are stunned to find that we have missed an opportunity to protect our children. Why has the Liberal government failed to protect all children? Why did it not bring in a more strident and efficient bill? I cannot answer that question and it is a question that I find extremely troubling.

The interpretation of what constitutes child pornography is something with which the courts are wrestling. Works of a nature that exploit children go against the very fabric of what is acceptable and what is moral in a just society. There can be no denial that there is a direct correlation between the machinations and fascinations of some demented individuals that would harm children and what is actually carried out or perpetrated. Why risk the potential danger when the collective will of the people would see any sort of material that would fall into that definition stricken from existence?

In handing down the Sharpe decision in the first instance, Justice Shaw effectively broadened the interpretation that was there for the current exemption of that defence. Although the Supreme Court wrestled with it, it did not sufficiently close that definition.

While it seems that the minister's lawyers have weighted the rights of the individual and the rights of the child, which is a clash I would say that should be certainly decided in favour of the child, we are once again left with a very mediocre attempt to correct what the Canadian public clearly recognizes is a serious problem. Yet the government is unprepared to step up to that challenge.

By being unwilling to protect the rights of children, and by extension their families, I suggest the government might at the very least have taken the opportunity to present in the upcoming budget steps that would allow for the support of families, the support of policing units and the support of social services, and by that I mean certainly elevating the transfer payments that are there and fixing the fiscal imbalance.

The Conservative Party has been very supportive of past and present laws that protect children, the law enforcement community, victims groups and child advocacy groups that are constantly tasked and struggling with a lack of resources and the overwhelming and, sadly, the increasing numbers of cases that involve children.

This is a sad day when we have legislation as fundamental, as critical as this and the opportunity seems to be slipping through our fingers. I ask rhetorically, why would the government present a flawed legislation on something as fundamental as this? Why do we not just do it right in the first instance? Let us fix the bill because we cannot support it in this flawed state.

[Gurmant Grewal, Canadian Alliance, Surrey Central, BC]

Mr. Speaker, it is absolutely true that such heinous crimes have been increasing in our communities.

In the city of Surrey, many children have been kidnapped. There are some famous cases where the kids have been even murdered. I do not want to name those children to respect the privacy of the families. It is certainly very painful to see that happen.

The city of Surrey is considered, unfortunately, the auto theft capital of North America. Break and enters, gang violence, drug related violence and organized crime related violence have been escalating.

One root cause is the government has not been giving enough resources to the law enforcement agencies. Today there are 4,200 fewer RCMP officers on our streets and highways than there were when the Liberals came to power in 1993. Moreover, last year the Canadian Police Association said that the RCMP needs an immediate infusion of $250 million into the system.

The Canadian per capita average indicates that British Columbia would need 691 more police officers. In Surrey there is one police officer per 893 residents. In Vancouver there is one police officer per 400 people. On a per capita basis, we have just half the police officers.

There are 75 vacancies in the RCMP in the city of Surrey alone. Those positions have been vacant for a very long time. Why? One underlying reason is that the Liberal government is not giving our law enforcement agencies enough resources.

In addition to having fewer police officers, they have the highest number of files per police officer. In Surrey, RCMP officers each handle on average 126 files. We know what the result is from starving the RCMP of resources, officers and vehicles to patrol the streets. Naturally the response time after 911 calls is longer. Naturally there is a shortage of police officers on the street. Therefore crime is on the rise.

We need to take action. I have been calling upon the weak and arrogant Liberal government time and again to do something about it. The Liberals have not done anything. With Bill C-12, the Liberals had another opportunity to make the legislation tougher to protect our children and they have failed.

[Gurmant Grewal, Canadian Alliance, Surrey Central, BC]

Mr. Speaker, I am pleased to rise this morning on behalf of the constituents of Surrey Central to participate in the debate on Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

Contrary to yesterday's assertion by the justice minister, the official opposition cares about protecting children from sexual predators. That is why we are firmly opposed to Bill C-12. We want legislation that makes the perverts who prey upon our innocent children fearful.

Unfortunately, Bill C-12 fails in that regard. This bill has been endorsed by none other than Mr. John Robin Sharpe, the very man who was found guilty of possession of as many as 400 images of children whom prosecutors contended were being exploited sexually.

In March 2002 Sharpe's conviction concerning the images was upheld by the Supreme Court. However, he was ultimately acquitted of related charges that had been filed against him in connection with the stories he had written, specifically because those writings were deemed to have artistic merit. Mr. Sharpe feels that this bill is so poorly crafted that even he could use it to his advantage in the courts.

To quote the nation's most notorious child pornographer, “The interesting thing about the child sex laws is that they may offer some unintended opportunities for the defence”. Mr. Sharpe asserts that the federal proposal is a panic reaction to his two successes in challenging the current legislation in court. He further writes, “I am fairly confident that given good legal counsel, and a by-the-book judge who bases his decisions on the wording of the law...I and my stories would again be acquitted under the proposed measures”.

The problem with this bill lies in the proposed public good defence. Mr. Sharpe is not alone when he claims that the proposal is too vague to survive court challenges. Many legal experts agree with him. Judges who interpret and apply the law do not consider the many fine speeches delivered in this chamber. They simply look at the words of the laws that we pass in this place.

What does public good really mean? The government has failed to make that clear. What if, as Mr. Sharpe suggests, a judge finds it in the public good to allow possession of child pornography if it prevents convicted child molesters from reoffending again? That certainly is within the realm of possibility.

If Parliament passes this bill, a person would be found guilty of a child pornography offence when the material or act in question does not serve the public good or where the risk of harm outweighs any public benefit. Since the Sharpe case, Conservatives have called again and again on the federal government to eliminate the artistic merit defence, but replacing it with a public good defence is not the solution. We must eliminate all defences that justify the criminal possession of child pornography.

The Liberals need to get their priorities straight. They have brought forward many pieces of legislation, but none of them protect children against child pornography. For years I have been demanding a stop to the sexual exploitation of children, but the Liberals clearly lack the political will to fix that problem for our society.

In fact, during the Liberal government's tenure, family values have been continually eroded. We can talk about any single issue that relates to family values. Those family values have been eroding under the Liberals, whether it is the definition of marriage, protecting children from child pornography, raising the age of consent, taxation laws with respect to single parent families, or giving law enforcement agencies enough resources and laws with teeth.

On every single front, the Liberal government has let families down. It always forgets that the stronger the family, the stronger the community and the stronger our great nation would be. The foundation of this great country is the family, not the social welfare system. We have to strengthen our families. We have to protect children and other vulnerable people.

Canadians want laws with teeth. That is one thing we can do in this chamber. At least we could make laws with teeth and not have just a slap on the wrist or a revolving door criminal justice system. We cannot do that anymore. Why can the Liberals not see that we want deterrents in place, not some sort of motivation for criminal behaviour?

Bill C-12, which we are debating today, will increase maximum sentences or maximum penalties for offences that harm children. I agree, but that is not good enough. How many times has government introduced legislation that increases maximum sentences? What is the good of increasing maximum sentences if the courts will not apply the full force of the laws we already have in place? Increasing penalties is meaningless if the courts do not impose the sentences.

We know from experience that when maximum sentences are raised there is no corresponding pattern in the actual sentencing practices. What is needed? Mandatory minimum sentences. We need truth in sentencing. We need no conditional sentences for child predators. We need minimum mandatory sentences instead of the maximum sentences so that the judges can implement them.

Bill C-12 creates a new category of sexual exploitation that protects people aged 14 to 18. Courts would focus not on consent but on whether the relationship is exploitative based on age difference, control exerted and other circumstances. Again, that is not good enough. It is already against the law for a person in a position of trust or authority, or with whom a young person is in a relation of dependency, to be sexually involved with that young person. It is already in the law. It is unclear how adding such people will add legal protection for young children.

What the Liberals should have done instead was increase the age of consent for any sexual activity. A major shortcoming of the bill is that it fails to raise the age of consent for sexual activity between children and adults. I fail to see the rationale for permitting adults to engage in any sexual activity with children. The government should raise the age of consent, currently set out in section 150.1 of the Criminal Code, from 14 to 16 at least, if not 18.

In Surrey, we are all too familiar with the problem of prostitution. Studies have found that 70% to 80% of Canadian prostitutes enter the trade as children. In particular at that age, the recruitment process for the sex trade in Canada preys on young girls and boys and specifically targets those who are at the current age of consent, that is, 14. According to the Children of the Street Society, the majority of parents who call asking for help from the police have children who are 14 years old and are being recruited into the sex trade by the pimps.

I ask the Liberals, do they think that 50 year old men should be able to target 14 year old runaways for sex, give them a sexually transmitted disease and get them pregnant? What response will Liberals give at the doorstep during the upcoming campaign? I would be very interested to hear from the government members who lack the political will to protect our children from these sex predators.

The results of dozens of studies show the effect of adult sexual contact with children. There is a huge risk of clinical depression, suicide, post-traumatic stress disorder, and extreme promiscuity and involvement in prostitution. It is vitally important that we do not confuse physical maturation with psychological maturation. The “age of majority” is a term used by lawyers to protect the offender and to describe the time in life after which a person is legally no longer considered a child. In essence, it is an arbitrary time when a child becomes an adult in the eyes of the law.

Why is it that we as a society feel that children are ill-prepared to drive, to drink, even to vote or marry or drop out of school or even watch violent movies, but we feel they are totally ready to decide for themselves with whom they should have sex? It is a pity to have this societal social evil. This makes absolutely no sense.

Raising the age of sexual consent would definitely put us more in line with other western nations. We know that in Denmark, France and Sweden the age of consent for sexual activity is 15. In Australia, Finland, Germany, Holland, Israel, New Zealand, Norway and even the United Kingdom, the age of consent for sexual activity is 16. In Canada, we still have that age of 14. It is time for the Liberals to prohibit adults from having sex with children under the age of 16. This age of 14 is not a good thing for society.

The need to protect innocent and vulnerable children from pimps and other sexual predators is a matter of highest priority. It should not be on the back burner of the government's priorities. How many Canadians are aware that a 14 year old can move into a conjugal relationship with a 50 year old? There is nothing the parents can do, at least legally, to put a stop to such an exploitative relationship. Persons at 14 and 15 years of age lack the mental and emotional maturity to cope with the psychological effects of engaging in sexual activity with older persons.

A survey last summer found that 80% of Canadians, eight out of ten people, believe the age of sexual consent should be raised to 16. So why does the age of consent remain at 14?

I know that the Liberal government is governing the country with polls. It has been looking at the polls for the definition of marriage and now is looking at the polls for when to call the election, but why does it not see this same poll, in which 80% of Canadians demand from this weak and arrogant Liberal government that the age for sexual activity be raised from 14 to at least 16? Why are we depriving parents of the ability to protect their children from sexual exploitation? It is a very important issue. It cannot be ignored.

I talked about minimum mandatory sentences. They are a root cause of the criminal justice system not being effective. Let us take marijuana cultivation as an example. According to a British Columbia police study, on average it takes seven convictions before a person will serve jail time for cultivation of cannabis. In neighbouring Washington State, first time offenders get an automatic three month sentence. Needless to say, we have considerably more grow ops in British Columbia, particularly in my constituency, than they do south of the border.

But what does the government do? It introduces legislation that would increase maximum sentences for larger grow operations. What about the minimum sentences? Minimum sentences are what Canadians need. They send a message to the criminal element in society that we are serious about preventing crime, whether it is child pornography, drugs or any other violent crime.

It is very important that we look into these issues seriously. I talked about Surrey. We know that last year a massive RCMP probe, code-named Project Snowball, tracked more than 2,000 Canadians, including over 406 in British Columbia, suspected of possessing and distributing sexually explicit pictures of children. Out of those 406 identified in British Columbia, 23 were from Surrey.

A quick survey of local Surrey newspapers reveals many cases of adults sexually exploiting children. For instance, there is 32 year old Stephen Smith, who was charged with two counts of sexual assault and two counts of sexual exploitation involving two underage boys he had met on the Internet. Dale Nault, a 34 year old, also from Surrey, was charged with three counts of sexual assault involving a 14 year old boy he met over the Internet and with one count of possession of child pornography.

In all these cases, the government failed to protect the children. I know that my time is almost up, but I would like to say that if the Liberals were serious about protecting our children and making our streets safe for all Canadians, they would strengthen our laws by introducing maximum sentences and ensuring that sentences handed out are actually served. They would give law enforcement agencies the resources they need to fight crime instead of wasting money on a useless gun registry.

Rather than registering sex offenders, the government has been wasting billions of dollars registering guns of law-abiding citizens. We need a comprehensive sex offender registry, tougher sentences for pedophiles, elimination of all legal loopholes for child pornography, a streamlining of the administrative process for convicting sex offenders and the prohibition of all adult-child sexual contact.

In closing, I move:

That the amendment be amended by adding: “and that the committee report back no later than April 5, 2004.”

Justice

[Irwin Cotler, Liberal, Minister of Justice and Attorney General of Canada]

Mr. Speaker, if Bill C-12 passes, we will have one of the strongest pieces of child protection legislation of any democracy in the world, which includes stronger child pornography provisions, a special category to protect against sexual exploitation, tougher sentencing provisions and measures to protect children.

I want to ask the opposition--

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, known pedophile Robin Sharpe has stated publicly that Bill C-12 would actually be of benefit to him.

Now the opposition in response is intentionally putting up roadblocks to the passage of Bill C-12.

Would the Minister of Justice tell the House whether Sharpe is right? Would Bill C-12 benefit him?

Criminal Code

[Art Hanger, Canadian Alliance, Calgary Northeast, AB]

Madam Speaker, I find it very positive to rise today to speak about this issue, an issue that I have followed since I came to Parliament 10 years ago. It is also an issue that I had a lot to do with when I was a police officer on the streets of Calgary.

In regard to the exploitation of children, I have experienced the pain of parents who have had children exploited in one form or another. When we talk about pornographic images, let us get down to where the rubber hits the road, that is, every time a child's pornographic picture is shown as an image it is again victimizing that child, time and time again. I think that many in the House forget this fact.

Where is the line drawn when it comes to collecting pornography? That is another issue that we have not defined very clearly in the House.

Let us get to the point. We have a new government on the other side, or that is what they keep telling us anyway. One would think that at least the new government would use this Parliament to make some legitimate changes in legislation over and above this bill, because it was actually developed by the old government. What is the difference between the old and the new? I think it is obvious to all that there is no difference.

I had hoped that a new government would put some teeth into the bill and would put the protection of children ahead of the so-called public good argument or artistic merit argument of pedophiles. It did not. I guess I was only dreaming. It turns out that this is the same bill with the same faults, which will lead to the same problems for police, for judges and ultimately for Canada's children as well as those who most want to protect children, that is, parents.

The government made a reference to the protection of children in the throne speech. I think we can all remember that. Obviously all that reference merits is this ineffective bill. In fact, the bill is a distraction so that Canadians will not think about the failure of the government to protect children from sexual abuse and exploitation.

Over the past three years, the government has had an opportunity to respond to the threats to our children. John Robin Sharpe was found in possession of pornographic photos of children. He challenged his charges. In 2001, a B.C. court dropped a bomb on parents, police and concerned citizens across the country when it said that in some cases even violent child pornography was legal, citing artistic merit at that time. Since that time, this has been thrown into this public good argument.

Organizations like the Canadian Justice Foundation and Mad Mothers Against Pedophiles, with our party, waited for the government to invoke the notwithstanding clause if necessary. It was called on. We demanded not only the protection of children from sexual predators, but it would trump kiddie porn. We had a glimmer of hope when the government announced the new bill in the last session. When the so-called new government, which is really a warmed over old government, put the protection of children in the throne speech, there was a possible breath of fresh air in the thinking that something would change.

As it turns out, our hopes were false hopes. The bill does not protect children. The bill will at best maintain the status quo and at worst it will mean that child porn and sex with minors are issues that will become fixtures in the Canadian agenda.

The bill was designed by someone who either does not understand the courts and does not understand law enforcement or who does understand both and does not intend to protect our children at all.

For years now we have been calling on the government to raise the age of sexual consent. In fact, today in the House I reintroduced my private member's bill, which seeks to raise the age of sexual consent from 14 to 16. Every time the issue comes up, the government uses the lame excuse that if it raises the age of consent that might criminalize the sexual activity of young people close in age. Everyone knows this is nonsense.

As my colleague from Provencher has argued in the House, all the government needs to do is establish a peer exemption for sexually active younger teens. In fact, that is precedent in our courts today: peer exemption. The government chose instead to create a category of sexual exploitation aimed at protecting children between the ages of 14 and 18.

That is an interesting category. Our party's senior justice critic has comments about that. I have a lot of respect for our senior justice critic, unlike those in the NDP, because this man sat in the courtrooms of our country handling cases like this time and again. He knows and understands where things go in the courts. He has watched those who have been victimized. He has seen the broken families as a result of the issues we are speaking of that are in our courts today.

This is what our senior justice critic has recorded:

Bill C-12 fails to raise the age of consent for sexual contact between children and adults. Instead, the bill creates the category of “exploitative relationships” aimed at protecting people between the ages of 14 and 18. In determining whether a person is in a relationship with a young person that is exploitative of the young person, a judge must consider--

Here again he is drawing on his knowledge of the court.

--the age difference between the accused and the young person, the evolution of the relationship, and the degree of control or influence by the person over the young person.

That is what the court has to decide. That is what the prosecutor has to argue. That is what the defence and the accused will be about in the courts of the land.

I will continue the quote:

This category is a vague provision that fails to create the certainty of protection that children require. It will not serve as a real deterrent and will simply result in longer trials and more litigation.

As a former police officer, I fully agree with our senior justice critic in understanding the courts, the defence and the arguments that will be presented. In other words, our courts are going to become a platform for the abuser, the accused, to get his message out. He has a doctrine that he wants to put out to the people of this country and now he will have the courts to argue his case. The relationship of the abuser or so-called abuser and the victimized child will be placed in the public domain. I think that is criminal in itself.

It will be up to the court to determine whether or not a relationship is exploitive. Clearly, in making a determination, a judge must take into consideration the age difference between the accused and the young person, the evolution of the relationship, and the degree of control or influence exercised over the young person. This will ultimately tie up our courts, and regrettably, will not guarantee our children the protection they desperately need.

I am talking about our present court system. It is already against the law for someone in a position of trust or authority, or in a relationship of dependency, to be sexually involved with a young person between the ages of 14 and 18. I do not see how this provision is going to help a lot, apart from providing more opportunities, because it would be in the legislation, for the accused and the defence to argue more about the relationship. I find that absolutely unacceptable.

The bill could have dealt with the age of sexual consent, but rather than simply raising the age of consent from 14 to 16, the bill would allow adults to have sex with 14 and 15 year olds unless the adult was in a position of authority. That is the intent of the government.

Parents of 14 year olds, whom I spoke to, shook their heads over that particular clause. Police forces across Canada shudder at what it means. They are already having a difficult time processing what they have under the present legislation.

Child pornography has skyrocketed. It has exploded since the use of the Internet has been employed by pedophiles and pornographers. Police departments across the nation are developing specialized units that just handle this kind of an offence.

In fact, they cannot keep up because the Internet knows no boundaries and no particular country. It is broadly global and these images float about everywhere. It does not matter in what part of the world one is in, one can tap in to them.

The strategies, even for police to sit down and analyze the issue of child pornography, and that is what we are talking about here, are becoming difficult for enforcement agencies worldwide. They need resources to do it.

There is so much in the proposed legislation and the court precedents over pornography that it is difficult for enforcement agencies to wade through it all to prepare a case for court. The present legislation just convolutes the matter even more. It makes it even more difficult.

I have not heard from the Parliamentary Secretary to the Minister of Justice that the government has a plan regarding resources, or is developing a program or initiative that would deal with the issue of pornography.

Everybody has the opportunity to just go out and do it, do what they see through their own eyes as the way they want to portray pornography. At the same time, enforcement agencies are crying for assistance. That is where we are at.

This clause is not only of no use to the police but will have the perverse effect of dissuading police from even investigating cases of sex with 14 year olds or following up on pornographic images of such. Why? Because proving a position of power is vague, almost meaningless and requires all kinds of legal interpretation. It is totally open to challenge, not to mention that it is senseless.

The fact is that some 40 year old can exploit a 14 year old. Images can be taken of that and distributed under what basis? Artistic thought and merit or public good. The argument will go on and on. It will go on in our courtrooms and those will be the platforms from which the pornographers will operate. They will make their gains in the courts because they would be given that opportunity through the legislation that is offered here.

Instead of going to the public, the moms and dads and the grandmas and grandpas out there, this matter has been turned over, unfortunately, to the lawyers and the courts. The same courts that ruled that John Robin Sharpe was an artist. Under this law, an old man will have every right to have sex with a 14 year old he finds on the street. The images can be collected and distributed on the Internet. The courts will have a tough time trying to track that down in order to deal with it.

Believe me, just like John Robin Sharpe, all the pornographers and perverts will study the law. I sat in on a court case in British Columbia watching another notorious exploiter of children, Mr. Toft. He sat by his lawyer, and between the two of them they argued the case in court like they were both coming from the legal side of things to have his charges worked through the court. He was not in the docket as an accused but sat right beside his lawyer. Go figure.

This law would actually create an enormous opportunity for child pornographers. It would allow an exception to the ban on child porn where pornographers could demonstrate some public good. As we have seen with John Robin Sharpe and his buddies at the Civil Liberties Association, there is no shortage of people to challenge the law. It will be a heyday for them.

Today we should be prepared that challenges will thrust the most hateful child porn out into the public arena and make celebrities of its authors. That is what is on the road here. We are not talking about artistic views held by the member for Palliser, but the manipulators in our society who will go after our children. There are lots of them out there.

The Liberals could have used the notwithstanding clause to send John Robin Sharpe to prison and be done with it. Instead, they made him a poster boy for legalized pedophilia. This law is all shaped around what he has stated in public. The Liberals had a choice.

It is up to concerned Canadian parents and parliamentarians in the House to guard our children more carefully than ever. We cannot depend on the government across the way because this legislation is, in its viewpoint, its offer to help protect our children. Unfortunately, it has failed miserably.

[Dick Proctor, NDP, Palliser, SK]

Mr. Speaker, I am pleased to take part in this debate. I am tempted to say here we go again on what used to be known as Bill C-20 and now is known as Bill C-12.

The bill proposes to amend the Criminal Code to help safeguard children and other vulnerable persons from sexual exploitation, abuse and neglect and also to enhance the protection of victims and witnesses in criminal justice proceedings.

The bill was introduced and read the first time in December 2002. It was debated at second reading in January and February last year before heading off to the justice committee from whence it has now returned.

The bill has five major components that I would like to review. First, it proposes to strengthen the child pornography provisions by expanding the scope of some existing sentences; the maximum available penalty would be increased from 5 to 10 years imprisonment.

Second, it proposes to increase the protection of young people against sexual exploitation.

Third, it proposes the creation of new offences relating to voyeurism and the viewing or recording of others in situations where there is reasonable expectation of privacy against electronic peeping Toms who resort to tiny cameras and other high tech tools for their and others' sordid gratification.

Fourth, it proposes to increase penalties following conviction for offences committed against children under the age of 16 years, as well as abuse and neglect, which includes failing to respond to the necessities of life and abandonment. I am pleased to see that the maximum penalty has been increased from two to five years.

Fifth, it proposes to facilitate testimony by child victims as witnesses and other vulnerable persons and would ensure that the child witnesses are indeed competent.

Let me say loudly and clearly that I support fully the sections that I have just referred to that deal with sexual exploitation of our young people. It is crucial, as others have noted in this debate, that our society has proper mechanisms to protect children from sexual exploitation, especially by those in positions of trust.

The stronger penalties, for example, against voyeurism, are important because the Criminal Code will be updated to nab these electronic peeping Toms and prosecute them to the full extent of the law.

The New Democratic Party supports the sections that help children to be witnesses. This section makes it easier and less traumatic for children to testify at criminal trials, and I strongly support doubling the sentences for offences against children.

I believe to the core of my being that it is the role of Parliament and our criminal justice system to protect all children from all forms of sexual exploitation.

Like my colleague, the MP for Dartmouth, who is so well respected on all sides of the House and who has taken the lead on this bill, I have two children and I would see any form of sexual assault against either of them to be horrific as are all cases of sexual abuse and exploitation against all minors.

However the member of Parliament for Dartmouth, besides being a first rate mother and a first rate parliamentarian, is also a first rate playwright. She has stated, and I concur, that a growing number of Canadians and other organizations have a real concern with the exclusion of part 7 of the proposed bill because it drops the artistic merit defence as well as deleting the defence of an educational, scientific or medical purpose.

By doing so, it leaves only the defence of the public good. At face value, some people may think, and we have heard it in the House this afternoon, that defence of the public good would also include the two deleted defences. The public good is defined in the bill as something that is necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art. A story or drawing that passes muster under that public good definition is, however, still not home free because the court must then decide whether the harm to society outweighs the benefits.

This, as the Globe and Mail pointed out in an editorial last month, is treacherous territory. Any work of fiction involving the portrayal of a child in illegal sexual activity could be deemed pornographic.

These concerns were all raised when the bill was at committee, but the government is obviously not prepared to budge. The concern that I and other members of our caucus have is that the government has caved into the politics of fear.

Let me be absolutely clear, and I say this directly to the justice critic for the Conservative Party. I support, fully and completely, longer sentences for anyone in this country who creates sado-masochistic pornography that depicts children as sexual objects. Individuals who are involved in these criminal activities will, as a result of these changes, now go to prison for longer periods of time. I approve and applaud wholeheartedly these stiffer sentences.

The difficulty for me and others is that under this proposed revision, any work of fiction involving the portrayal of a child in illegal sexual activity could well be deemed to be pornographic. For example, The Tin Drum , a highly moral work by Gunter Grass, might run afoul of this new legislation, as could Vladimir Nabokov Lolita , a classic literary work, be in danger.

In the past, the Supreme Court has included artistic merit as a plausible defence but the fear is that the law, as it is presently drafted without the artistic merit clause, could criminalize the imagination and I have difficulty with that.

This is not some esoteric argument by the member for Dartmouth or myself. Besides the Globe and Mail , it has elicited the attention of the Ottawa Citizen, civil liberty groups, writers and the artistic community.

Yesterday in Toronto the Canadian Conference of the Arts and the Writers' Union of Canada held a public forum on their concerns about Bill C-12. They did not stand alone. Joining them were: Canadian Museums' Association; Canadian Artists' Representation; Union des écrivaines et des écrivains québécois; Canadian Civil Liberties Association; B.C. Civil Liberties Association; Union des artistes; PEN Canada; Canadian Library Association; Literary Translators' Association of Canada; Corporation des bibliothécaires professionnels du Québec; Association des auteures et auteurs de l'Ontario français; Ligue des droits et libertés; Regroupement des artistes en arts visuels du Québec; Société Civile des Auteurs Multimédia; Société des Auteurs de Radio, Télévision et Cinéma; Conseil des livres et des périodiques; and Société des auteurs et compositeurs dramatiques.

The following were their specific concerns on this bill. First, artists from all disciplines who create works with themes involving persons under 18 and sexuality, risk having their expressions criminalized.

Second, artists whose work contains such themes would be deemed to be guilty until they can prove themselves innocent of the charge; in other words, reverse onus.

Third, the concept of public good would replace artistic merit. This is a subjective concept that, according to the Supreme Court, has not been clearly defined.

Fourth, under the proposed new law, artists would have to prove objectively in court that (a) they produce their work for the purpose of public good, and (b) their work does not exceed the limit of what constitutes public good.

Fifth and final, an expansive interpretation of sexual purpose and voyeurism will infringe on new and existing artistic works, including literature, visual and media art film and theatre.

The CCA concluded that the bill was poorly crafted and proposed reframing the legislation to protect children while allowing bona fide artists the freedom to create. It argues that retaining the defence of artistic merit in the Criminal Code will serve all the people of Canada, both youth and elders.

It is saying that the elimination of the artistic merit defence will not have any effect on the government's purpose of eradicating sexual abuse of minors, nor will it prevent child pornography. It will serve only to create confusion and punish artists whose work, created in good faith, could be deemed in contravention of the new legislation.

Nor does the CCA believe the term “public good” used in the legislation has been defined adequately and therefore it believes the defence under the public good is an unacceptable substitute for the defence of artistic merit.

Let me come back to the reverse onus clause. This will require an artist to prove that his or her work is not pornographic instead of requiring the Crown to prove otherwise. Clearly this is totally contrary to our judicial system that holds every citizen as presumed innocent until proven guilty. Under this legislation, under the reverse onus clause, someone who is innocent would have to prove it first.

The House needs to be reminded that we are debating this legislation largely because of one individual, John Robin Sharpe. In the court decision regarding Mr. Sharpe, he was convicted of possession of photographs of boys engaged in sexual acts and poses, but he was acquitted on possession of child pornography stories that he had written because two out of three literary experts concluded that his stories had artistic merit.

What does Mr. Sharpe think of the proposed legislation? Just like the writers, artists, editorial writers and New Democrats, he says that the bill is poorly crafted, but he goes on to say that it is so poorly crafted, he could probably use it to his advantage in court. He said:

I am fairly confident that given good legal counsel, and a conservative, by-the-book judge who bases his decisions on the wording of the law...that I and my stories would again be acquitted under the proposed measures.

Legal experts tend to agree with Robin Sharpe, saying that the public good defence is too vague to survive court challenges. The Supreme Court upheld the federal legislation in the Sharpe case, but stressed there had to be generous leeway for artistic merit, and he was acquitted on some counts, not merely because of artistic merit but because the court concluded that his stories did not advocate or counsel pedophilia. In short, the court ruled on the side of free expression.

It is difficult, and it ought to be difficult, to criminalize expression. Of course Parliament has a duty. Children have to be protected, and that we are very clear about. However, at the same time we cannot be seen to be encroaching on freedom of speech or the right to know with some precision what is allowable and what is forbidden.

The Ottawa Citizen , in a recent editorial entitled “Making matters worse”, stated that Bill C-12 would violate both of these principles. It went on to say that no matter how well intentioned the law was, it should not pass. The editorial stated:

The government has not produced solid, empirical evidence that viewing or reading works of the imagination prompts pedophiles to molest real children. Without that evidence, there's no reason to believe this law will make children any safer.

Paul Rapoport from the School of Arts at McMaster University writes that when it comes to visual media especially, “all nudity is sex, all sex is porn, and if minors are involved, find somebody to lock up and throw away the key”.

That description certainly encompasses some members of the Conservative Party who have spoken on this bill in debate in spite of the fact that the most common child in art, according to Mr. Rapoport, is named Jesus.

I was in debate on the artistic merit defence last year, and in responding to another MP, I said this:

--if it has not specifically hurt a minor in the production of it, if it is created by people's visual imaginations and if the main purpose of it is not simply about pornography and sexual exploitation, then under the laws people do have a right to their own imaginations and thoughts, however perverse the member and I might think they are.

This quote made it into a lot of Canadian Alliance householders. We killed a lot of trees over this one, as I guess they tried to portray me as being soft on child pornography. I am not soft on child pornography. However, I must say that I am also encouraged by the editorial boards of major newspapers, civil libertarian groups, writers and artists who have expressed similar concerns about where we are headed with this bill. Specifically, hear the conclusion of the Ottawa Citizen editorial:

The only solution is a law that criminalizes pornography involving real children, but excludes all works of the imagination. This would protect children just as well as the law now before Parliament. But it would also respect free speech and provide a bright, clear line between what is illegal and what is not.

Of course there is a circular argument in all of this that deserves to be named as well. We have the Conservative Party, and especially its justice critic, railing constantly against judicial activism. However, by arguing for a narrower and narrower interpretation of child pornography and one that excludes both artistic merit and defence of the public good, the courts and judges will have no choice but to say that it is so narrow that it violates the Charter of Rights.

The judges and courts will strike this down and the justice critic for the Conservative Party will mount his pet hobby horse about judicial activism. In fact I am convinced that the other place, when it looks at this bill, will find it a deficient piece of legislation and demand that changes be made here before it passes.

The list of people and organizations who see flaws in the bill is long and it is getting longer. As I indicated, it legitimate artists, writers, the Canadian Conference of the Arts, some police, civil libertarians, the Canadian Bar Association and major newspapers.

Sergeant Gillespie of the Toronto police said:

Police would simply appreciate laws that are very clear and that will allow us to make better informed decisions at the time we are required to make them.

The Canadian Bar Association said, “While we appreciate the intent”, referring to the defence of public good, “the amendment may not achieve its goal”.

Alan Borovoy of the Canadian Civil Liberties Association recommends that the law be narrowed so that it applies only to material, the making of which is held out to involve the lawful abuse of a real child; not an imaginary child, a real child.

Strengthening the provisions of child pornography, doubling penalties and increasing protections of youth against sexual predators and sexual exploitation is important, and I support it fully. This must be done while protecting free speech and imagination.

I was raised in a time when the words to a pop song of the day went, “Brother, you can't go to jail for what you're thinking”. These words should be as true today and tomorrow as they were yesterday. Without reinstating the artistic merit in this bill, I will reluctantly and sadly find myself voting against Bill C-12.

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

Mr. Speaker, the bill before the House is extremely important, which is why the work done by the Bloc Quebecois was particularly thorough. It is common knowledge in this House and outside these walls that we are used to being diligent, strict and very serious about our parliamentary work. This was especially true for Bill C-12.

This is a bill that could have been even better in my view. It could have been improved, but the government unfortunately refused many of the amendments proposed by the Bloc Quebecois. We proposed seven amendments at committee and only one was accepted. That is unfortunate because this bill could have been even more effective legislation in the cases we want to handle with Bill C-12. That said, the Bloc Quebecois will nonetheless support Bill C-12.

Bill C-12 amends the Criminal Code to add a new category to the offence of the sexual exploitation of young persons. It makes additional amendments to further protect children from sexual exploitation; to increase the maximum penalty for child sexual offences, for failing to provide the necessaries of life and for abandoning a child; to make child abuse an aggravating factor for the purpose of sentencing; to amend and clarify the applicable test and criteria that need to be met for the use of testimonial aids, for excluding the public, for imposing a publication ban, for using video recorded evidence or for appointing counsel for self-represented accused to conduct a cross-examination of witnesses; to create an offence for voyeurism and the distribution of voyeuristic material; and to amend the child pornography provisions with respect to the type of written material that constitutes child pornography, and with respect to the child pornography defences.

As members know, this enactment also amends the Canada Evidence Act to abolish the requirement for a competency hearing for children under 14 years of age.

This bill addresses the issue of consent to sexual relations, and this is where I will start.

Currently, in Canada, rules regarding sexual consent in the Criminal Code can be summarized in four points. First, the consent of a person under the age of fourteen is not a defence to a charge of a sexual nature. We can, therefore, deduce that a person 14 years or older is capable of giving such consent.

Second, there is an exception to this rule. The consent of a complainant can be a defence if the latter is between 12 and 14 years of age or if the accused is between 12 and 16 years of age, if the accused is not more than two years older than the complainant or, finally, if the accused is not in a situation of trust or authority over the complainant.

Third, a person in a situation of trust or authority cannot sexually interfere with a person between the ages of 14 and 17, even if the minor consents.

Finally, it is important to note that, naturally, child prostitution is illegal in Canada.

These provisions of the Criminal Code were strongly criticized, mainly by the party that preceded the Conservative Party of Canada, the Canadian Alliance, which wanted to raise the age of sexual consent to 16. One of the arguments in favour of raising the age of consent was that Canada was at risk of becoming a sex tourism destination since sexual relations with minors 14 years and older are not illegal here.

The Bloc Quebecois has always opposed any increase in the age of consent. In our opinion, while it may not be desirable for young people 14 and 15 years old to have sexual relations, the provisions referring to this age reflect what society is prepared to tolerate.

We have also spoken out more than once about the double talk of the reform-alliance-conservative members. In the debate on young offenders, they argued that adolescents 14 or 15 years of age were mature enough to be held criminally responsible for their actions, but in this debate on the age of sexual consent, they are arguing that the same 14 or 15 year olds are not mature enough to consent. Go figure that one out.

With Bill C-12, the Minister of Justice is proposing amendments to the provisions relating to consent to sexual relations. In fact, the Minister of Justice is creating a new provision relating to exploitation. From now on, an adult cannot have sexual relations with a minor if exploitation is involved.

The criteria used to determine the existence of an exploitative relationship are the age difference between the accused and the young person, the evolution of the relationship, and the degree of control or influence by the person over the young person.

This was amended after consideration in committee. The adolescent's age was added to the criteria for determining exploitation. This new criterion in no way changes the position we held at first reading. We still have certain reservations about this new mechanism.

First of all, we feel it creates legal uncertainty. An adult involved in sexual relations with a minor will never be able to be absolutely certain that he or she is not committing a criminal offence, because the Criminal Code provisions leave a very wide latitude for the presiding judge's interpretation of the law.

Furthermore, a parent who disapproves of a minor child's choices in terms of love will still be able to lodge a complaint with the police, even if the reasons behind such a complaint are not those provided for by the legislator. This could add to judicial uncertainty.

The second point addressed by the bill is voyeurism. As you know, Mr. Speaker, since you are technologically up to date, technological progress in recent years has made it necessary to amend legislation in order to face these new realities. For example, digital cameras that transmit live images through the Internet have raised the issue of possible abuse, such as the clandestine observation and recording of people for sexual purposes, or when such an observation or recording is a flagrant violation of privacy.

Therefore, the bill proposes adding two new offences to the Criminal Code and provides for a maximum of five years in prison for all acts of voyeurism. Three specific instances will be criminal offences, all having to do with deliberately observing or recording another person in circumstances in which there is a reasonable expectation of privacy.

That would be the case when the observation or recording is for sexual purposes, when the person being observed or recorded is in a place in which a person can reasonably be expected to be nude or to be engaged in sexual activity, in a bedroom, for example, and when the person being observed or recorded is nude and engaged in sexual activity and the purpose is to observe or record a person in such a situation or engaging in such an activity.

The second offence concerns the distribution of material that one knows has been produced through an act of voyeurism. This offence is described in clause 6 of the bill in the following way:

Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, publishes, distributes, circulates, sells, ...or makes available the recording, or has the recording in his or her possession for the purpose of printing, publishing, distributing, circulating, selling or... making it available.

During the committee's study of this offence, I proposed an amendment that the committee accepted, forbidding the use of such recordings in advertising. This amendment would make clause 6 of the bill more complete and more effective.

Finally, copies of a recording obtained by the offence of voyeurism for the purpose of sale or distribution could be seized or confiscated. The courts could also order deletion of any voyeuristic material from a computer.

We feel that the legislative provisions relating to voyeurism were made necessary by the proliferation of surveillance cameras and the rapidity of distributing images taken by such cameras, via the Internet for instance.

Consequently, we are in favour of these provisions, especially since they were improved through the amendment proposed by the Bloc Quebecois.

The third issue addressed in this bill is child pornography. It is, of course, the most talked about.

If there is one thing on which we have to agree, it is the fact that nothing is more precious in our society than the safety and security of our children.

Knowing that the end does not justify the means, we have to be careful in what we choose to do to protect our children. Nevertheless, it is all about striking the right balance, and we must keep in mind that the ultimate goal is to protect our children, who are the most vulnerable people in our society.

The new provisions on child pornography proposed in Bill C-12 address two different aspects. First, there is the definition of child pornography. The present definition of child pornography applies only to material that advocates or counsels sexual activity with a child. Bill C-12 would expand that definition to include any material that describes prohibited sexual activity with a child where the written description of the activity is the dominant characteristic of the material and is done for a sexual purpose.

This new provision reads as follows:

—any written material the dominantcharacteristic of which is the description,for a sexual purpose—

This is important.

—of sexual activity witha person under the age of eighteen years thatwould be an offence under this Act.

I know that many artists raised certain fears about this new provision. In my opinion, it specifically states that it must be done for a sexual purpose in order to be considered child pornography. This should alleviate their fears, which are legitimate, especially as the public good defence—I will come back to this in a moment—also provides artists with very good means of defence. These are legitimate.

We believe that this new provision is cause for concern. First, it is important to specify that possessing child pornography is already a crime carrying a five year jail term. However, this new provision states that written material describing sexual activity with the person under 18 years of age for a sexual purpose is child pornography.

Consequently, this would mean that anyone who, in their private diary, describes their sexual fantasies—some twisted, no doubt—is committing a criminal offence and can be sentenced to five years in prison, even if they do not show what they have written to anyone and even if no child has been involved in any way whatsoever in the creation of the written material.

At first, these provisions struck us as too broad and tantamount in a way to making thoughts a crime. It was pointed out to us that these provisions must be interpreted in light of the ruling of the Supreme Court of Canada in Sharpe. Under that ruling, two types of material must be excluded from the definition of child pornography: first, documents or representations that the accused alone created and retains solely for personal use and, second, visual recordings created by the accused or in which he is represented, which do not depict any illegal sexual activity and which the accused retains solely for personal use.

We find it hard to understand and we have said so many times in previous speeches and in committee why the Minister of Justice did not incorporate these exceptions into the Criminal Code. In fact, their absence will have the effect of creating legal uncertainty, because the Criminal Code will provide, even for an informed reader, a very imprecise definition of child pornography.

Through Bill C-12, the Department of Justice is also creating a public good defence. On the face of it, this new mechanism seemed reasonable, but needed to be specified further. That is why we put forward an amendment in committee to clarify the concept of public good. This was done following repeated requests by the Bloc and many witnesses who appeared before the committee calling for the concept of public good to be specified.

Two clauses were added after clause 6. They read as follows:

For the purposes of subsection (6), acts or material that serve the public good include acts or material that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.

For the purposes of this section, it is a question of law whether any written material or visual representation advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

This provides artists with a public good defence. It provides a defence to those who had concerns. Some scientists were also concerned. We have specified that, for the pursuit of medicine or research, this was an appropriate defence for possession of child pornography.

Although these amendments are not totally the same as what the Bloc Quebecois had brought forward, we are nevertheless pleased with the amendments the government came up with, because their very substance is in keeping with what we proposed in committee.

The fourth change proposed in Bill C-12 is to increase the maximum sentences for offences committed against children. Under the government's reform proposals, the penalties for offences that harm children would be increased. The maximal penalty for sexual exploitation would double from five years to ten. The maximum penalty for abandonment of a child or failure to provide the necessities of life to a child would more than double from two to five years. The abuse of a child in the commission of any Criminal Code offence would also have to be considered as an aggravating factor by the court and could result in a tougher sentence.

We are in favour in these new provisions. That being said, the Bloc moved a number of amendments in committee to create a minimal sentence for child abuse. Unfortunately, none of these amendments were passed, although they were supported by members of the Conservative Party, at the time the Canadian Alliance, and even members of the Liberal Party.

I think it is high time for members of this House to look into minimal sentences for those who abuse our children, the most vulnerable members of our society. I hope we will have an opportunity to act soon.

Last, the fifth issue has to do with facilitating child witness and victim testimony. Here is how the department explains the reforms proposed to facilitate the testimony of children who are vulnerable witnesses or victims:

Several reforms will help ensure that participating in the criminal justice system is less traumatic for the victim or witness. Current Criminal Code provisions would be expanded to allow all witnesses under 18 to benefit from testimonial aids in any criminal proceeding (not only those involving sexual and other specified offences). These aids include providing testimony from behind a screen or by closed-circuit television or having a support person accompany the young witness. Current provisions generally require the Crown to establish the need for a testimonial aid. Given the potential trauma of the courtroom experience for young witnesses, the proposed reforms acknowledge the need for the aid.

For all testimonial aids, the judge retains the discretion to deny the aid or protection where its use would interfere with the proper administration of justice. In addition, the facilities to permit the use of a screen or closed circuit TV must be available in the courtroom before the judge can permit their use. Fundamental rights for the accused are fully respected under the proposed amendments.

The reforms would also allow children under 14 to give their evidence when they are able to understand and respond to questions.

We in the Bloc Quebecois support these provisions.

In conclusion, we support Bill C-12. We would have liked to have seen more openness on the part of the government to the amendments we proposed, including those relating to minimal sentencing for people sexually exploiting our children, doing harm to these beloved and so vulnerable beings who deserve the attention and protection of the members of this House.

I wish to announce that I will continue to work to get this House to address the issue more thoroughly. I trust that at that time I shall have the support of all members of this House so that the pedophiles who are victimizing our children will be punished severely. Often child victims are marked for life.

[Rick Casson, Canadian Alliance, Lethbridge, AB]

Mr. Speaker, it is good to speak to this subject today. We have done it numerous times in the past. I certainly want to add our comments and those of my constituents to the debate.

I have to disagree with some of the comments we have just heard from across the floor. I do not think this is a great day for the protection of children in Canada. Until we have legislation in place that sends a clear message that anybody who fools around with our children will face the full consequence of the law, we have failed to do our jobs here. I do not think the bill does that and I will point out a number of reasons why I think that.

The member across the way referred to a motion that was brought to the House by my colleague from Wild Rose. I want to mention him in my comments today because, as we all know, he has made the issue of preying on our children one of his top priorities as he goes through his political and personal life. I support his endeavours. The motion that he brought forward in the House back on October 28 read:

That, in the opinion of this House, the government should protect our children from further sexual exploitation by immediately eliminating from child pornography laws all defences for possession of child pornography which allow for the exploitation of children.

The motion was supported at that time, but there are still defences in this law for the possession of child pornography. That is one of the flaws we find in it.

The Conservative Party of Canada has problems with four main areas of the bill. The first one is it does not eliminate all defences for the criminal possession of child pornography. The second one is it does not raise the age of consent for adult-child sexual contact from 14 up to 16, and even some would suggest, 18. It is the lowest in the western world and that is not something I believe Canadians are proud of. It fails to institute mandatory sentences for child sexual assault, as has been done in the U.K.

There is a lot of debate and discussion here on raising the maximum sentences. However, raising maximum sentences that are never given is not a deterrent to the people who prey on our children. We should be raising minimum sentences and making sure that anybody who is convicted of exploiting our children is dealt with in a very severe manner.

The other one is the one dealing with evidence. I am working on a private member's bill that would change the way evidence could be presented in these cases. I have been doing some research on that. It is a very complex issue. It is not only in the Criminal Code but it also expands into other areas.

That is something that needs to be looked at. The people who fight child pornography in this country are bogged down by the amount of material they have to catalogue and bring to court. Certainly the accused has a right to know what the prosecution has in its possession and what it will be bringing forward. We have to be reasonable in the kind of cataloguing and evidence that has to be brought in these cases. That is something we really need to look at.

One of the real issues is that one of the most notorious pedophiles in Canada likes this bill. That should send a darn clear message that the government is on the wrong track in bringing the bill forward. He thinks that some of the provisions in the bill on giving evidence would be good for pedophiles. They would be able to bring forward young people to testify and they would enjoy that type of thing when it came to the court.

When somebody who enjoys this type of material sees merit in the bill because it will add to whatever they do to get enjoyment out of this type of material, and when he publicly states on his website that he thinks this is a good bill, then we really need to have a hard look at what we are doing. We need to make sure that we eliminate anything that pedophiles think will be to their advantage when they get to court on some of these issues.

There is controversy regarding the artistic merit defence. Changing it to the public good defence would leave a giant loophole in the law. I believe that some of the pedophiles in this country will see that as an advantageous tool that they will be able to use in their defence.

We have to eliminate any defence for people convicted of possession of child pornography. What possible public good could there be in images of children being abused? I cannot see what the government had in mind when it included a public good clause in the legislation. Images depicting children being abused in any way should not be allowed as art or for any other reason, such as research. Every time somebody looks at one of those images, the child goes through the whole process of abuse one more time.

That is a loophole in Bill C-12 and it needs to be taken out of the legislation. It should be changed before the bill is put into law. There is no reason to go forward with this and then come back years later and change it then. We feel very strongly about that. We need to make sure that aspect of the legislation is changed before it is put into law.

A poll was done a year or so ago and 80% of Canadians supported raising the age of consent for sexual activity. With 80% of Canadians onside, one would think the government would have paid heed to that but it did not.

A person as young as 14 years can be sexually exploited by an adult legally. There is a lot of talk about the issue of whether the sex is consensual, but we are talking about child-adult sex. If the age of consent could be raised to at least 16, that would protect thousands more children from people who choose to prey on them. That is an issue that needs to be dealt with. When that many Canadians are in support of it, any government should pay attention.

People have said that we cannot stop sex between teenagers, but that is not the issue; that is not what we are talking about. We are talking about child-adult sex. That is what we need to focus on. When these conditions, or what I call loopholes, that for some reason this should be allowed, are put into law, it is the same issue as artistic merit or public good being left in the bill. There is no reason to do it.

We are talking about children. We are talking about the most vulnerable people in our society. If we as legislators cannot come up with laws that will protect them to the ultimate degree because they cannot protect themselves, then we have not done our jobs. We need to have the strongest possible legislation in place.

Why would we as a nation be lagging behind the rest of the western world when it comes to these issues? It just does not make any sense. It makes us want to step back and wonder exactly what the minister was thinking when he developed the bill and why the government is pushing it through in its present state. Why can we as Canadians not be leaders instead of followers? Why can we not have the strongest legislation in place to protect children?

Canada has become known as a haven for pedophiles. The availability of the Internet to those types of people, the way they can dispense information rapidly and in such high volume requires us to have systems in place to stop it. Every time a market is created or there is a need for something like this, then another child has been abused. We have to stop the end use of it so it filters back and stops the creation of it.

The member who spoke previously made a lot of comments and put a lot of credence in the fact that maximum sentences were being increased. That does not do the job. Minimum sentences have to be increased so that the message is clear and unavoidable. People who prey on our children or hurt a child in Canada will pay the ultimate price. They will pay it upfront and a deterrent will be put in place to stop them from doing it again. If it is a maximum sentence that is never imposed by the courts, then what is the point of doing it?

There is the issue of support for our police departments. Many of us have met with police forces across the country. Some of the stories they tell us are horrific and they are things that stay in your mind. We cannot possibly understand how someone could do to children some of the things that are done.

We have to give the police the resources they need to protect children in Canada. To say that this is a great day for children, I completely disagree with that for many reasons. The fact that our police forces are so overworked and under-resourced in this area is one of them.

Every time another task force is created, there is a lot of hoopla in the media about it, but there are no more police officers given. It is just another task force that has to be shared by the present forces. We must increase the numbers of policemen on the ground and increase their ability to pursue these people and stop them from trading in this vile information.

There were some policemen on Parliament Hill a year or two ago. I witnessed what they had to say. While they were speaking to us, they hooked up a computer and went online. I am not sure how chat rooms work, but before the meeting was over, they had put up something that indicated there was an underage person being manipulated by an adult and those who wanted to take part could tune in. Before the meeting was over, the police had two or three hits from people from who knows where that were interested. That is how fast and how effective the Internet is for those people who promote that type of thing. It was quite a lesson to many of us as to how easily these things can happen.

The Toronto police force indicated that it had 2,300 names of suspected pedophiles in Canada and only 5% of them had been addressed. This in itself is a damning statistic, that we have actual names of people and we do not have the resources to go out and hold them to task or enough manpower to investigate what is going on and put a stop to it. The cases are many. The issues are huge.

I want to get back to the John Robin Sharpe case. I firmly believe that when people such as Mr. Sharpe come forward and indicate that they support the bill and they feel that there are aspects in it that they would find appealing and would convince society to become more tolerant of pedophiles, then we are really on the wrong track. We must make sure that any bill that is put forward does not fall into the hands of pedophiles, allowing them to ply their trade and prey on our children.

There a couple of other points I would like to make along these lines. There is the aspect of Canadians that have been involved. Thousands of Canadians have petitioned Parliament to take away all the defences for child pornography and to increase the resources that are available to the police to fight this issue. We have to listen to these people. They are going to a lot of effort. They are very involved and very knowledgeable on what is going on. They know the numbers of children that have been preyed upon. They have a huge concern.

When we see that many Canadians engaged in an issue, then the government should pay attention. The government should look at what they are suggesting and try to implement it into law. We have not seen that here. The loopholes that have been left are many and they need to be addressed.

Before I close I would like to move an amendment. I move:

That the motion be amended by deleting all the words after the word “That” and substituting the following therefore:

“Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, be not now read a third time but referred back to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness for the purpose of reconsidering all of its clauses with the view to eliminate loopholes identified by 'the nation's most notorious child pornographer', Robin Sharpe.

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased to rise today for the third reading of Bill C-12, an act to amend the Criminal Code, the protection of children and other vulnerable persons, and the Canada Evidence Act.

Today is an important day for a couple of reasons. First and foremost, it is an important day for Canada's children. Support on this day for Bill C-12 will bring us one step closer to realizing an objective that I believe is shared by all hon. members, namely, better protection of our children against all forms of abuse, neglect and sexual exploitation.

Today is also an important day for another reason. Today is the day when I hope that all hon. members will unite to say to Canadians, with one voice that is both strong and clear, that our children are the priority. We can do something today to move this priority even better and give effect to just that voice. This is the day that we do move from talk to action. This is what Canadians demand and this is what Canada's children deserve.

Bill C-12 proposes reforms in five key areas: first, strengthening the provisions against child pornography; second, protecting youth against sexual exploitation; third, increasing the maximum penalties for specific offences committed against children; fourth, facilitating the testimony of child victims and witnesses and other vulnerable persons; and finally, modernizing the criminal law through the creation of the offence of voyeurism.

Regrettably, child pornography is an issue that is well-known to members and to all Canadians. Although Canada's criminal laws against child pornography are already among the toughest anywhere, Bill C-12 proposes to further strengthen these laws by directly responding to concerns flowing from the child pornography case involving John Robin Sharpe.

How does Bill C-12 respond to these concerns? Hon. members will recall that Mr. Sharpe was convicted of possession of child pornographic photographs. He was, however, acquitted on the charge of possession of written materials for the purpose of distribution or sale. Even though the court found that these written materials consisted primarily of descriptions of adult male-boy sexual acts of abuse and torture and described them as “morally repugnant”, Mr. Sharpe was acquitted of this charge because these stories did not meet the existing definition of written child pornography, that is, they did not advocate or counsel unlawful sexual activity with children.

Why then do we need to have this bill? I would like hon. members to consider this. Bill C-12 directly responds to the concerns of this case and proposes to broaden the existing definition of written child pornography. It proposes to prohibit written materials, such as those offered by Mr. Sharpe, that describe unlawful sexual activity with children where these written descriptions are the dominant characteristics of the material and they are written for a sexual purpose.

The government, in Bill C-12, clearly recognizes the very real risk of harm that these materials pose to our children and our society. We must not allow our children to be portrayed as a class of objects for sexual exploitation. I urge all hon. members to join with me in condemning such materials.

The alternative basis for Mr. Sharpe's acquittal on the written materials was that the materials would have been protected by the defence of artistic merit. The existing defence of artistic merit is easily satisfied by answering one, and one question alone: Does the work in question, objectively viewed, have some artistic merit? For example, does a written story show some accepted literary techniques or style? If it does, that is the end of the inquiry and the defence of artistic merit is available to the accused.

Canadians have clearly said no to this one step test. Again, the government has listened and Bill C-12 proposes a different test that draws from the wisdom of the Supreme Court of Canada. Bill C-12 proposes only one defence: the defence of public good, which involves a two step inquiry.

Does the material or act serve the public good? If not, there would be no defence. If it does, then an additional second question must be asked. Does it go beyond what serves the public good? In other words, if the risk of harm to society posed by such material or act outweighs the benefit that it offers to society, no defence would be available even if it had artistic, educational, scientific, medical or other value.

I appreciate that although the public good defence is one that is known to our courts, it may not be well understood by some, potentially including some in this chamber. Again, the government has heard and has responded further to these concerns.

The Standing Committee on Justice and Human Rights amended Bill C-12 to accept the government's clarification of the public good defence, including its legal interpretation. As amended, Bill C-12 now defines the public good as including acts or material that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.

This new, inclusive definition closely models the language of the Supreme Court of Canada in the Sharpe case, thereby strengthening subsequent reliance upon this judgment to assist with the interpretation and application of the public good defence.

On October 28, 2003, the House unanimously passed a motion calling on the government to eliminate all child pornography defences for “possession of child pornography which allow[s] for the exploitation of children”. Bill C-12 delivers this and more.

During the course of that important debate, there was, I believe, a general acceptance that the law needs to protect certain persons who are working to catch child pornographers. For example, police and crown prosecutors who possess child pornography or provide it to other law enforcement officers for purposes related to the investigation and prosecution of child pornography cases should be provided with a defence for such possession and dissemination. Possession of child pornography by psychiatrists for educational or treatment related purposes was also recognized as something that should be protected.

This is exactly what Bill C-12 does. It recognizes that such acts clearly serve the public good and that the benefit they offer Canadian society clearly outweighs any risk of harm. Such acts do not exploit children.

The Canadian Professional Police Association, which is the national voice for 54,000 police serving across Canada, told the justice committee that they “welcome” the child pornography changes proposed by Bill C-12. They have also said that, from a practical perspective, the public good defence proposed by Bill C-12 will not impede police investigation of child pornography. This is because for most cases there is never any debate about the images. The graphic and explicit depictions of sexual abuse of young children by adults are clearly child pornography.

It is also important to note that while it is the job of the police to assess whether material constitutes child pornography as defined by the Criminal Code, it is not the police who determine whether an accused can avail himself or herself of a defence. That is a matter determined in a courtroom by those present on that day. Again, the public good defence does not impede police investigation of child pornography cases.

I urge all members to give effect to these important changes and to support these proposed child pornography reforms today, as have the police.

The government also recognizes that we must do more to better protect youth against sexual exploitation by those who would prey on their vulnerability in other ways.

Canada's criminal laws already prohibit all sexual activity with any young person below the age of consent, ranging from sexual touching, such as a kiss, to sexual intercourse. The age of consent is 18 where the relationship is exploitative, such as where it involves prostitution or child pornography or where there is a relationship of trust, authority or dependency.

Where none of these circumstances exist, the age of consent is 14, but--and it is important to be clear about this--any non-consensual sexual activity, regardless of age, is a sexual assault.

I understand that some persons believe that the best way to protect young persons against sexual exploitation is to raise the age of consent to 16 or 18 years. The government believes, however, that the real issue is about how to protect young persons from the exploitative conduct of others and is not about their consent to such conduct. There is a difference here.

One reason that is often given in support of raising the age of consent is that young persons, especially those who are 14 or 15 years old, are not mature enough to fully understand the consequences of consenting to engage in sexual activity. For some, young persons are too immature to be able to consent to any sexual activity, even with persons close in age. Others believe that young persons are too immature to consent to sexual activity with someone who is four, five or more years older.

Consider how the existing criminal law treats and recognizes the developing maturity and capacity of young persons. We have to go back. The age of criminal responsibility is 12 years. The age at which a young person may be subject to an adult sentence for committing a serious violent offence is 14 years. The age of consent to sexual activity is 14 years. The age of consent to sexual activity that is exploitative of the young person is 18 years.

While it is true that society uses other non-criminal measures to regulate other aspects of young persons' conduct, it would be completely inapt to compare, for example, the regulation of when a young person is allowed to drive to the criminalization of a young person's engagement in consensual, non-exploitative sexual activity. The government does not accept that normal, consensual teenaged sexual activity should be criminalized.

There is no consensus on this issue, whether among the public, at the level of federal, provincial or territorial ministers responsible for justice, or even among the witnesses who appeared before the justice committee on Bill C-12. Nonetheless, there is consensus on the need to better protect youth against sexual exploitation. Bill C-12 proposes this and more. It proposes better protection not only for 14 year olds and 15 year olds, but also for 16 year olds and 17 year olds, and it protects these young persons against sexual exploitation by others who are considerably older than they are, as well as against sexual exploitation by peers. It is the relationship, not just the age.

Some concerns were expressed by witnesses appearing before the justice committee that Bill C-12 as initially introduced did not adequately address a specific type of exploitative sexual relationship involving, for example, a 14 year old or 15 year old young person and a 40 year old or 50 year old adult.

The justice committee amended Bill C-12 to accept the government's amendment to more clearly describe the intention of Bill C-12 in this regard. It now states that the court may infer that a sexual relationship is exploitative, having regard to the nature and circumstances of that particular relationship. An additional fourth factor has also been added to the list of factors to be considered, namely, the age of the young person. This more clearly indicates that the court should consider this factor as well as the age differential between the young person and the older person.

Concerns have been expressed by some that existing sentencing provisions for offences against children do not adequately reflect the serious nature of committing any offence against a child.

Again, Bill C-12 responds to these concerns. It proposes to make the abuse of any child an aggravating factor for sentencing purposes. It also proposes to increase the maximum penalties for child specific sexual offences. The maximum penalty on summary conviction for sexual touching, invitation to sexual touching, and sexual exploitation would be tripled from 6 months to 18 months, reforms that have been welcomed by the Canadian Bar Association among others.

Bill C-12 would also double the maximum penalty for sexual exploitation of a young person from five to ten years when proceeded by indictment. The maximum penalties for failure to provide the necessaries of life and for abandonment of a child would also be increased to 18 months on a summary conviction and from two to five years on indictment for both offences.

Bill C-12 also proposes important reforms to facilitate the testimony of child victims or witnesses and other vulnerable witnesses. Although this part of the bill has received less attention than other parts, it largely has been well received. I know that in my own riding this is the part of the bill that is stressed to me the most, because we have those on the ground workers seeing the need for better protection for those who have been victims once and do not need to be re-victimized in a courtroom.

Most witnesses find the courtroom to be unfamiliar and unfriendly territory. For child witnesses it can be quite traumatizing. The criminal justice system has undergone numerous reforms since the late 1980s to make it more sensitive and responsive to the needs of these victims and witnesses.

These earlier reforms included making available such testimonial aids as a screen, a support person, closed circuit television, the exclusion of the public from the courtroom, publication bans, the use of videotaped evidence of the victim, and the appointment of counsel to conduct the cross-examination of a young victim or witness on behalf of a self-represented accused.

Bill C-12 proposes reforms that will clarify and apply a uniform test for the use of testimonial aids in three distinct categories of cases: first, cases involving a child victim or witness under the age of 18 years or a victim or witness with a disability; second, cases involving victims of criminal harassment; and third, cases involving other vulnerable adult victims and witnesses.

Bill C-12 would make testimonial aids available on application for all child witnesses and witnesses with a disability, unless they interfere with the proper administration of justice. For victims of criminal harassment and where the accused is self-represented, Bill C-12 would enable the Crown to apply for the appointment of counsel to conduct the cross-examination of the victim. The court would be required to order it unless doing so would interfere with the proper administration of justice.

This proposed amendment recognizes that a victim of criminal harassment or stalking, as it is sometimes called, should not have to endure further harassment by a self-represented accused person.

In cases involving any other adult victim or witness, the Crown can apply for the use of any testimonial aid or the appointment of counsel to conduct the cross-examination of the witness for the self-represented accused. In these cases, the court would order the use of the testimonial aid only if, having regard to the surrounding circumstances, including the nature of the offence and any relationship between the victim and the accused, the victim would not be able to provide a full and candid account without the testimonial aid.

Bill C-12 also proposes to modernize the publication ban provisions that can be imposed to protect the identity of the victim or witness or to ensure trial fairness. Bill C-12 would be amended to prohibit publication, broadcast or dissemination in any manner, including by the Internet.

In addition, Bill C-12 proposes amendments to the Canada Evidence Act that would eliminate the current requirement to conduct an inquiry into the ability of a child under the age of 14 years to understand the concept of an oath or affirmation and to provide testimony. In practice, the inconsistent and often rigorous conduct of these inquiries can result in increased trauma to the child witnesses as well as the loss of valuable testimony from child witnesses for reasons unrelated to the ability of a child to provide reliable testimony.

I have much more to say, but I understand that I am running out of time. I understand that it is easy to do politics around all legislation in the House, and I would just ask the hon. members to consider the real benefit of the aids that are in the bill and that we need now, not years down the road, in our courtrooms. The bill is so very important.

[Anne McLellan, Liberal, for the Minister of Justice and Attorney General of Canada]

moved that Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, be read the third time and passed.

Justice

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am happy to reply to this because this has nothing to do with what the opposite member is putting on the floor here. In fact, we have allowed, through our Bill C-12, the former Bill C-20, to go and add more power to the defence and the prosecution of these very damaging assaults on children through exploitation.

I hope the members opposite join the government in adding to the protection so cases like this can be properly judged in our courtrooms to protect children.

[Art Hanger, Canadian Alliance, Calgary Northeast, AB]

Mr. Speaker, this child protection bill is another Liberal nightmare. Our laws pertaining to the protection of children need to be certain, not ambiguous, not mushy like Bill C-12. If the government were truly interested in protecting children, it would remove the loopholes that allow the likes of John Robin Sharpe to tie up our courts with frivolous and degrading arguments.

Why does the minister not go back to the drawing board, scrap the public good loophole and raise the age of sexual consent to end it all?

Business of the House

[Jacques Saada, Liberal, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform]

Mr. Speaker, I will begin at the end, to be completely logical.

These are Senate matters. They do not concern the House in any concrete way. I would need to know what the Senate was going to decide before I could answer the question.

Also, regarding new bills, I am assuming that a bill that is good for the people is a bill that is good for the people, whether or not it existed previously. That is what we are working on. I hope to have the cooperation of our colleagues across the way to continue this process.

As to the plans for the coming week, as you know, this afternoon, we will continue debate on the opposition motion. Tomorrow, we will begin debate at third reading of Bill C-18, an act respecting equalization and authorizing the Minister of Finance to make certain payments related to health, including transfer payments of $2 billion to the provinces. Then, we will consider Bill C-10, an act to amend the Contraventions Act and the Controlled Drugs and Substances Act, followed by Bill C-15, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences, and finally Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

On Tuesday, March 9, at 10 a.m., the Secretary General of the United Nations will address both houses of Parliament in the House of Commons. As you know, all parties have agreed that the Wednesday schedule will apply that Tuesday, in order to leave the morning free in honour of the Secretary General.

Finally, Thursday, March 11 will also be an allotted day.

Criminal Code

[The Speaker]

The House will now proceed to the taking of the deferred recorded divisions on the motions at report stage of Bill C-12. The question is on Motion No. 2.

[Susan Whelan, Liberal, Essex, ON]

Madam Speaker, today I rise to speak in favour of Bill C-12 and to oppose the motion to delete clause 7 of the bill.

Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, supports the government's commitment announced in the Speech from the Throne to better protect children against sexual exploitation.

I would like to quote the preamble of Bill C-12, which provides:

WHEREAS 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;

I am quite certain that this is a concern that all hon. members share, so I appreciate the opportunity to speak to the bill today. I would like to highlight criminal law reforms in Bill C-12. It proposes reforms in five key areas.

First, it proposes to strengthen the existing child pornography provisions by broadening the definition of written child pornography and narrowing the existing defences to one defence of public good and imposing a harms based test.

Second, it seeks to provide better protection for young persons against sexual exploitation.

Third, Bill C-12 proposes to increase penalties for offences against children.

Fourth, it seeks to facilitate testimony by child and other vulnerable victims and witnesses.

Last, it proposes the creation of a new offence or voyeurism to better protect Canadians against the surreptitious viewing or recording of a person in circumstances that give rise to a reasonable expectation of privacy.

The motion before us seeks to delete two child pornography reforms proposed by Bill C-12. In other words, the motion proposes to maintain our current child pornography laws, including how they have been interpreted and applied in the well known child pornography case involving Robin Sharpe.

In contrast, however, Bill C-12 seeks to change the laws as they were interpreted and applied in the Sharpe case. Bill C-12 proposes two child pornography amendments.

First, it proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the predominant characteristic of the material and it is done for a sexual purpose.

Second, Bill C-12 proposes to narrow the existing defences into one defence of public good, a term that is now specifically defined in the bill.

As I understand this proposed reform, it would mean that no accused would have a defence for any child pornography offence where the material or act in question does not serve the public good or where it exceeds or goes beyond what serves the public good.

To me, these are very important reforms. I welcome them because they reflect what most Canadians believe, namely that written stories that are primarily describing acts of sexual abuse of children and that are written for a sexual purpose are in fact child pornography and should be prohibited.

I also believe that Canadians understand that police officers and prosecutors, for example, need to be able to possess and share child pornography for purposes related to the criminal investigation and prosecution of a child pornography case. Canadians understand that doctors may need to possess child pornography to help treat offenders. Canadians also understand that a film that laments that sexual abuse of a child or a documentary that is an exposé of a child sex abuse ring can also serve the public good.

We understand this and we expect the law to protect them, and that is what Bill C-12 does.

What Canadians do not understand is any attempt to provide Canadian children with less protection against child pornography. Unfortunately, that is exactly what this motion before us proposes. It proposes to give more protection to child pornographers and less protection to our children. That is why I cannot support this motion.

[John Herron, Progressive Conservative, Fundy Royal, NB]

Madam Speaker, I would like to make a few remarks pertaining to this piece of legislation. I was unable to do it in its previous incarnation as Bill C-20. I am here to speak to different aspects of the legislation but one aspect in particular.

Shortly after being elected for the first time in 1997 a constituent of mine came to my office. She told me a story about her daughter and an incident which took place on Labour Day weekend in 1994. The woman on whose behalf I am speaking today is Julia Buote.

On Labour Day weekend in 1994 Mrs. Buote's daughter was taking a bath when she discovered a video camera hidden in a hole in the wall underneath the faucet. It was determined later on that the video camera had been put in place by the young woman's then stepfather, to spy on her in the bathtub, in a state of undress. After she noticed the camera, the RCMP was approached but the Crown could not press charges because secretly videotaping someone in a state of undress is not a crime in Canada.

Mrs. Buote has been on a crusade, not only on behalf of the injustice that occurred with respect to her own daughter, but to ensure that this invasion of privacy in a very personal way would never happen again.

Mrs. Buote was recently quoted in the Telegraph-Journal . She asked me where Bill C-20 was and where the issue of voyeurism was and what was happening with the law in Canada.

I wrote a letter to the newly minted Minister of Justice and said that regardless of whether there were flaws in the particular act, there was clearly some good. I encouraged the minister at that time to bring the bill back as early as possible.

I will share with members some of Mrs. Buote's comments. She said, “If it had happened to one of their family members,” meaning members of Parliament, “it would have been in place long ago. I am hoping that this will make them aware that this is something they have to act on and put through. If there was a way I could sue the government right now, I would, because I feel 10 years is too long for them to be dragging their heels on this. There have to be others; my daughter was not the only one”.

She went on to say that she knows that the law in fact would not be retroactive. However, she did say, “It would change the fact that it is acknowledged as being a crime, and that it is not something that was okay to happen. Right now, it is something that is acceptable, as far as the law is concerned. So it would just give the feeling that well, okay, this is something that is against the law. My daughter did the right thing coming to me, and I did do the right thing, and finally, there is hope there for other people it happens to”.

The remarks I am making with respect to the legislation, the cornerstone of the bill, most of the remarks that I heard throughout the debate, have been that we needed to tighten the artistic merit component that evolved from the Robin Sharpe case. For me, if child pornography exists, by its very nature it means that a child has been abused. Some individuals may challenge the artistic merit aspect of it to want to have exceptions in that regard. I applaud the government for using the common good approach with respect to trying to tighten the legislation to ensure that more children are not susceptible to harm.

I am the proud father of a three and a half year old and an 18 month old, and I am looking after my own children here as well. In speaking here today, I hope I am ponying up for all young children wherever they reside in this great nation.

I accept the consensus that has been expressed by most members of Parliament that this legislation does tighten up the heinous loophole that existed in the Sharpe case. The bill is an improvement in the toolkit that we have right now.

I acknowledge the efforts by the members of the Conservative Party who want to push this envelope. They may even have a difference of opinion, but that is the role of the opposition as well. It is to send the signal that we need the strongest piece of legislation possible in order to remedy this type of issue.

I am speaking on behalf of Julia Buote and her daughter. This piece of legislation must pass. To be quite frank, it is almost inconceivable that an incident such as that which occurred to Mrs. Buote's daughter was seen as just that, an incident. It was not seen as a crime.

We need this type of legislation even more so today than we did 10 years ago when Mrs. Buote started her crusade to protect young men and women. Because of the advances in technology, and that actually sounds counterintuitive, but in terms of the existing technologies in wiring and cameras, this type of voyeurism is ubiquitous. It is omnipresent. It is our duty to ensure that our legislation is modernized to keep up with those advances because sometimes those advances are used in a heinous and draconian way which harm individuals.

I will be supporting this revised piece of legislation, Bill C-12. I will acknowledge that some individuals say that this legislation needs to be stronger and I will share their concerns about the artistic merit aspect of it as well. However, I believe the consensus approach that the government has taken right now is an improvement to at least squeeze that loophole even more with respect to the Sharpe case. Perhaps more can be done, but we cannot kill this legislation. We cannot allow individuals to be subjected to the same types of crimes, such as that experienced by Mrs. Buote's daughter, that were called mere incidents.

[Andrew Telegdi, Liberal, Parliamentary Secretary to the Prime Minister (Aboriginal Affairs)]

Madam Speaker, I rise today to oppose the motion that seeks to delete clause 7 of Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

Bill C-12 proposes important criminal law reforms that seek to better protect children against sexual exploitation, abuse and neglect. It proposes reforms that would facilitate testimony by child victims and witnesses, and other vulnerable victims and witnesses, in criminal justice proceedings. It also proposes the creation of a new offence of voyeurism.

Clause 7 of Bill C-12 proposes two child pornography amendments that respond in a very direct and meaningful way to the issues highlighted by the Robin Sharpe case.

First, Bill C-12 proposes to broaden the definition of written child pornography. Currently, written child pornography is defined as written material that advocates or counsels sexual activity with a young person under the age of 18 years that would be an offence under the Criminal Code.

In its January 2001 decision in the Sharpe case, the Supreme Court of Canada interpreted the existing definition and its requirement that written material advocate or counsel as meaning material, when objectively viewed, that actively induces or encourages the commission of a sexual offence against a child.

Bill C-12 proposes to broaden this definition to also include written material that describes the sexual abuse of a child where the written description of that abuse is the dominant characteristic of the material and the written description is done for a sexual purpose.

This proposed amendment reflects Canadians' belief that these types of written materials pose a real risk of harm to our children and society by portraying children as a class as objects for sexual exploitation. This motion says that such materials are acceptable. Bill C-12 clearly says they are not.

Bill C-12 also proposes to amend the existing defences for child pornography. Currently, the Criminal Code provides a defence for material that has artistic merit or an educational, scientific or medical purpose. It also makes the public good defence available for all child pornography offences.

Bill C-12 proposes to merge these two defences into one defence of public good. By doing so, Bill C-12 introduces an important new second step in assessing the availability of a defence for all child pornography offences. Under Bill C-12, a court would be required to consider whether the act or material in question serves the public good and if it does serve the public good, then the court must also consider whether the act or material goes beyond what serves the public good.

Under the current defence of artistic merit, material which, objectively viewed, has artistic value, for example, it demonstrates artistic technique or style, has a complete defence. However, under Bill C-12 no defence would be available for such material where the risk of harm that it poses to society outweighs any potential benefit that it offers.

The motion says no to this additional harms based test. Canadians disagree, and I disagree, and that is why I oppose the motion.

[Norman E. Doyle, Progressive Conservative, St. John's East, NL]

Madam Speaker, I want to speak today to Bill C-12, an act to amend the Criminal Code, in the area of child exploitation and child pornography.

In the last session of the House I spoke to a motion on this issue and made particular reference to the Sharpe case. Mr. Sharpe was found guilty of possession of child pornography with respect to certain photographs in his possession but was found not guilty with regard to certain written material in his possession. The reason for him being found not guilty was what caused such a public uproar, as we all remember. The courts found first, that his written material did not openly advocate committing illegal acts with children and, second, that his written material had some artistic merit.

I am of the view that without exception all child pornography should be illegal. Child pornography does not lead to openly advocating a certain lifestyle to be harmful to children. It can induce and promote illicit behaviour by its very existence. It helps establish a permissive atmosphere in society that is conducive to the sexual exploitation of children.

In a similar vein, I cannot for the life of me understand how child pornography can be regarded as having artistic merit. This reason, in particular, caused outrage among the general public. In its guidelines on hearing this case, the court ruled that if the alleged material had even minimal artistic merit, then the person must be found not guilty. In other words, if an article is 90% pornography and 10% art, then art has to carry the day. The person must be found not guilty.

I do not have a legal background, but as anyone in this Chamber who has a legal background knows, courts rule on fine points of law but it is we in Parliament who give them the fine points to rule on or leave loopholes that allow for a fine-tuned argument to slip through.

In this context, I have trouble with the latest twist in the law that allows for a not guilty verdict if the alleged pornographic materials have some degree of public good. I have been told by people in the legal profession that, if anything, the words “public good” have a much broader concept than artistic merit.

Artistic merit could be claimed as for the public good in a piece of written material which could otherwise be simply viewed as child pornography. All it takes is a good lawyer and one could argue that there is public good in just about anything. Instead of plugging the legal loopholes of artistic merit, it can be argued that government has actually widened the loophole.

This points out a fundamental difference between our party and the governing Liberal Party. If I were to err, I would rather err on behalf of children and child protection. The government, however, is reluctant for some reason to slam the door on child pornography because it might somehow infringe upon the constitutional rights of the pornographer.

Forgive me, Madam Speaker, but I must confess that this is the very least of my worries. I would not want to go to my grave as having erred on behalf of the pornographer. When children are involved, they deserve the benefit of the doubt and the full protection of the law.

We need to have a sober second look at this business of public good versus artistic merit. It is not an improvement at all.

The bill would make it an offence for an adult to interfere sexually with a person under the age of 14. I feel that the age of consent is too low and that it should be raised to at least 16. Is the government not aware that recent polling has indicated that 80% of the general public favours an increase in the age of consent from 14 to 16. Most parents want to see the age of consent increase from 14 to 16 and some would argue, and rightly so, that even 16 is too low.

I am sure the government is aware that a couple of years ago provincial ministers from across Canada passed a resolution to have the age of consent raised to 16. It is beyond me why the government has not listened to the various provincial ministers who want the age of consent raised.

We do advocate criminalizing sex between adults and children under the age of consent. We also believe that the government should be in favour of raising the current age of consent from 14 to 16.

The bill would also make it an offence for someone to sexually exploit a young person between the ages of 14 and 18 under his or her care, influence or authority. That makes sense and it is something I am sure we can all agree with, but it is already against the law. Therefore I am unclear as to how a slightly different wording will improve things, but we would support it.

The bill would create a new offence for voyeurism, which is a positive step. The bill would strengthen maximum sentences for sexually exploiting children but judges would still have a lot of leeway in passing sentence. We feel that sex crimes involving children should have mandatory sentences with little or no room for flexibility. The message has to be made clear that if people sexually exploit children they can expect no mercy from the court system. This is the message that pedophiles should be receiving from the government.

However the bill fails to prohibit all sex between adults and children and so it leaves children vulnerable to exploitation by sexual predators. The bill does not increase the age of consent. It still treats 14 year old children as consenting adults as far as sexual activity is concerned.

On the issue of pornography, the bottom line is that if the government is to err then it is willing to err on the side of an adult possessing child pornography. We on this side of the House are only willing to err on the side of child protection.

A government under pressure to provide more protection for children tends to come up with an awful lot of complicated, cumbersome legalese. We want to see laws that outlaw all forms of pornography period. The law should be made very clear on that.

I support strong laws protecting children, laws with no loopholes or wiggle room. If we in Parliament set the tone, I am sure the courts will follow suit. However if we are wishy-washy on the issue and not strong in our defence of children, if we are not strong in the laws we write, we will have no one to blame but ourselves if the court allows people to slip through the loopholes that the House provides for it. I therefore cannot support the bill.

[Eleni Bakopanos, Liberal, Parliamentary Secretary to the Minister of Human Resources and Skills Development (Social Economy)]

Madam Speaker, I appreciate this opportunity to take part in the debate on private member's Bill C-471 introduced by my colleague, the hon. member for Crowfoot. As has been previously mentioned, the purpose of this bill is to protect children from repeat sex offenders. This protection is to be enhanced by amending the sentencing provisions in the Criminal Code.

Obviously, our government is just as concerned as the Canadian public about protecting our children from sexual predators. But as for the arguments that the courts of this country are too soft on these offenders, that their current sentences are not severe enough, that sex offenders ought to have their basic rights withdrawn, that these predators get released without any concerns about children's safety, I have been hearing them for years from the other side of this House. They may get great press coverage, but they do nothing for public safety, as I have already said.

The Criminal Code states that the fundamental purpose of sentencing is “to contribute to respect for the law and the maintenance of a just, peaceful and safe society”. The objectives of sentencing in the Criminal Code include denouncing unlawful conduct, deterring those who would commit offences and promoting a sense of responsibility in offenders in acknowledging the harm they have done to victims and to the community. The most vulnerable victims in our society are our children, as has already been said.

Canada is totally opposed to the use of draconian measures like the death penalty or the various forms of “three strikes and you're out” legislation, which would call for life sentences with no chance for parole. Our legal system has always respected the discretionary power of judges to adapt their sentences to the severity of the offence, the offender's behaviour, and the risk that offender poses to society.

A judge who has taken into consideration all the facts and all the testimony on the circumstances of the offence and the situation of the offender is in a better position than the members of the opposition to bring down a sentence that is appropriate to each case.

The recent Speech from the Throne confirmed that the protection of children continues to be a key priority for the Government of Canada. As a part of this renewed commitment to protect children from sexual predators, the government has reinstated the former Bill C-20, now Bill C-12, regarding the protection of children and other vulnerable persons.

This legislation proposes criminal law reforms that would provide increased protection to be given to children against abuse, neglect and sexual exploitation. It would strengthen the child pornography provisions by broadening the definition of written child pornography and narrowing the existing defences to one defence of public good.

Bill C-12 would also create a new prohibited category of sexual exploitation of young persons resulting from the existence of such factors as the age of the young person, the difference in age and the degree of control or influence exerted over the young person.

Bill C-12 would increase the maximum penalties for offences against children and would make the commission of an offence against any child an aggravating factor for sentencing purposes. It would also facilitate testimony by a child and other vulnerable victims and witnesses.

These changes would build upon amendments that have been in force since July 2002 for protecting children from sexual exploitation through the use of new technologies. These amendments addressed the communication of child pornography through the Internet and created a new offence of luring that made it illegal to communicate with a child on the Internet for the purpose of facilitating the commission of a sexual offence against the child. The changes also simplified the procedure to prosecute Canadians who sexually exploit children in other countries.

Another example of our focus on the protection of Canadians from sexual predators is the reinstatement in the House of Commons of former Bill C-23, now Bill C-16, the sexual offender information registration act, as was mentioned by my hon. colleague who first presented it in the House. That proposal seeks to establish a national sex offender registry requiring sexual predators to report to police agencies on an annual basis, which will allow rapid police investigation through an address searchable database. Under the proposal, failure to register would be a Criminal Code offence with serious penal consequences.

The February 2 Speech from the Throne also indicated a new commitment by the government to do more to ensure the safety of children through a strategy to counter sexual exploitation of children on the Internet. Under the lead of the Minister of Public Safety and Emergency Preparedness, we are working with our federal, provincial and territorial, private sector and international partners in the development of a strategy to coordinate and enhance our efforts to counter child sexual exploitation on the Internet.

Certainly I would be remiss if I did not point out that in 1997, when I was the Parliamentary Secretary to the Minister of Justice, the dangerous offender provisions of the Criminal Code were amended to toughen up the provisions against the most violent sexual predators.

The private member's bill before us today seeks to amend these provisions to go after repeat sexual offenders against children. Really, that is exactly what the 1997 amendments did. Individuals who are declared dangerous offenders by the courts are now subject to a mandatory indeterminate sentence. The 1997 amendments also included a provision that permits judges to impose a long term offender designation resulting in up to 10 years of community supervision after serving a penitentiary term.

Moreover, in 1997, we also toughened up the conditions for recognizance under section 810, particularly by adding section 810.2, a new category dealing with serious personal injury offences. Section 810 has been very useful to the police in protecting vulnerable persons—even when there was no conviction, or even charges against a potential sexual predator likely to attack children.

I would also like to say a word about the 1993 Criminal Code amendments that created a potentially life-long order of prohibition, prohibiting convicted sexual offenders from frequenting daycare centres, schoolyards, playgrounds, public parks and swimming places where children are likely to be seen.

The order also prohibits these offenders from seeking or continuing any employment, whether remunerated or volunteer, in a capacity that involves being in a position of trust or authority. Another provision was added to permit an individual to obtain a peace bond—a protective order lasting up to a year—if he or she fears that another person will commit a sexual offence against a child.

In closing, I want to insist that all efforts have been made in order to protect Canada's children.

While recognizing the validity of the concerns of the hon. member for Crowfoot with respect to sexual predators on children, I simply do not believe that his proposal would improve the existing provisions.

Moreover, the latest reforms now before Parliament will translate into changes in our laws to give our children even better protection.

We also are doing everything we can for the safety of Canada's children. It is for the sake of our children that we have to stop scaring them with the worst, most heinous crimes cited in the House. In fact, sexual predators are not the majority of criminals but the minority, and thank God that is the case.

[Claude Bachand, Bloc, Saint-Jean, QC]

Mr. Speaker, I shall try to make a speech that will not result in us being taken for idiots. This afternoon, we clearly heard the President of the Treasury Board call the Bloc Quebecois members idiots. I thought it was important to begin my speech by saying that. That kind of thing is unacceptable. Perhaps it was not recorded, but we heard it clearly.

With respect to Bill C-12, it is important that we be able to say that, with the changes and evolution in technology today, many aspects of this technology should now be taken into account in a debate such as we are having on the subject of Bill C-12, on the controls needed to ensure that child pornography does not spread everywhere.

Recently, we have seen examples in Quebec that demonstrate to what an extent this has become a very touchy subject. People react very strongly when children are involved in child pornography situations.

As proof, for example, there was Operation Scorpion in Quebec City, where the police uncovered a whole system where certain sexual predators took advantage of what was happening with young people. That is not acceptable in a society, even if certain people want to convince us that it is a free and democratic society. A free and democratic society does not go so far as to sexually exploit children.

Overall, we agree with the bill before the House to amend various provisions of the Criminal Code. I want to give some examples. The maximum penalty for sex offences would increase. Obviously, if children are the victims, if society wants to side with the victims, convicted offenders must receive a harsh penalty. That is the intention of this amendment to the Criminal Code. The maximum penalty for sexual exploitation would increase.

The penalty for child abuse would also increase. Child abuse constitutes aggravating circumstances. For example, there are aggravating circumstances when a sexual predators are physically abusive. Obviously, we have no problem with this change.

A series of amendments to the Criminal Code are proposed to allow various means to facilitate testifying. We consider this extremely important. When children are required to testify before the prosecutors, judge and the entire court, with all the decorum of such courts, they feel intimidated and it makes it harder for them to testify.

There are things we fully agree with. It is important that all orders restricting publication be upheld. In the case of child abuse, when youth protection lawyers prosecute the parents or the child abuser, often, indeed almost always, the judges will invoke an order restricting publication. We agree with this.

We also agree with the ban on cross-examination by the accused. That is unacceptable, but it often occurs in adult court or rape cases. In the past, some accused have cross-examined the victims themselves, because they were defending themselves. It is very difficult to accept that this happens. If we allowed this, an accused could question a child he abused physically or sexually.

These are things that we want to see in this legislation. Video recordings are also good, as is allowing the child to testify behind a screen without having to face the court. These are all extremely important.

The bill also creates an offence for voyeurism and for distribution of voyeuristic recordings. Previously, this was a grey area. I think identifying it and making an attempt to define it closely is a positive element in the bill.

There is also the matter of consent. We have to talk about it. We believe that in a free and democratic society, if a child aged 14 or over gives consent, society can accept it. Of course, if there is exploitation involved, that is another thing, and we cannot accept it. Also, I believe there is a provision in the bill that a child 14 and over may give consent, yes, but not with a person who is in a position of authority, such as a school principal or the like. Even if the child says he consents, I think it is unacceptable to allow it because of this relation of authority.

As far as the age issue is concerned, I do not share the opinion of my colleagues in the Conservative Party, the former Alliance. They are the ones who introduced the young offender legislation and voiced approval of jail sentences for youths aged 14 or 15. Now they are telling us it is unacceptable for young people to have consensual sexual relations under the age of 16. It seems to me that this represents a problem on their part. If, in one bill, they can say that offenders of that age can be imprisoned and tried in adult court, I do not see how consensual sex cannot be allowed at the age of 14, 15 or 16. I think the Alliance has a consistency problem here.

A number of factors in this bill convince us it should be adopted. We agree with this bill, particularly since we are of the opinion that the Criminal Code did not contain sufficient provisions for the defence of these young victims.

A number of measures are introduced for inclusion in the Criminal Code. We feel that victims will benefit from them. A clear signal will also be sent for society to side with young people who have been victims of this type of treatment and take a strong stand against abusers and sexual predators. The Bloc Quebecois will therefore be supporting this bill.

A motion to adjourn the House under Standing Order 38 deemed to have been moved.

[Deepak Obhrai, Canadian Alliance, Calgary East, AB]

Mr. Speaker, on February 28, 2003, I presented a petition to the House from my constituents. The petition was signed by 142 people from my riding of Calgary East. The petitioners called upon Parliament to protect our children by taking all necessary steps to ensure that all materials which promote or glorify pedophilia or other activities involving pedophilia are outlawed in Canada.

Other members of Parliament have presented similar petitions. This petition is the essence of what the feeling is out there. The feeling is unanimous out there that we need to protect our children. There is no other meaning. It is unanimous that the people of Canada are saying, “Let us protect our children”. We have to take that message very seriously.

Bill C-12 is an attempt to protect our children, but there are flaws in the bill that the Conservative Party cannot support. We believe the bill is not tough enough to protect our children. We get the message from our constituents, and again, that message is--let me repeat it--that we have to protect our children from sexual exploitation.

Bill C-12 does not do that on two bases. One is on the basis of what is called artistic merit. The definition of artistic merit as given by the court's decision can be interpreted as broadly as possible. That is not the message we are getting from the people of Canada. That message should be reflected in this bill: artistic merit should not be a defence for anyone who is abusing the children of Canada. Simple, point of fact, straightforward: the children of Canada need to be protected. They are children. We are their guardians. If we do not protect them, who will? We cannot have any loopholes that say there is a possibility under artistic merit or some other kind of loophole that this exploitation can take place.

I have not come into any kind of contact with child pornography, except once when the Toronto police force came to our caucus and did a presentation on child exploitation. I was stunned. One actually has to know. I commend these officers when they see this day and night. I take my hat off to them and wonder how they can sleep at night when they see all this exploitation taking place.

Those graphic pictures would have shocked anybody. It shocked me such that I got up from there with a clear cut, straightforward, simple resolve that there should be no defence whatsoever when it comes to protecting our children. They can come with any kind of defence or excuse, but it does not exist. When we look at the evidence that is gathered and when the police force show us this horrendous picture of what is happening--and it is happening--then we have to say no.

The other issue is about the age of consent. We in this country have an age of consent which, in anybody's mind, we would say is a form of sexual exploitation. How can we have 14 as an age of consent when everybody else has an age of consent ranging from 16 to 18? The age of consent should be over 16.

I do not understand why the government chose to ignore this specific issue when the former minister of justice, the member from Edmonton, stated quite clearly that she had talked to the provincial ministers and everybody agreed that the age of consent should rise.

I am sorry to say this, but when I read “exploitative” relationship, I see bureaucratic language. Exploitative relationship is bureaucratic wording. Why can we not make the bill simple and clear? We must be clear in this bill: “the age of consent should be this”. It should not say if somebody in an exploitative relationship and then go ahead and give arguments and try to define what the relationship is. All these loopholes come out of this.

Although the bill has come back from the committee, which made some recommendations for changes, the changes in this particular instance do not reflect the will of the people of Canada, which is very simple: stop completely, with no loopholes, the exploitation of the children of Canada.

My party and I will find it very difficult to support this bill.

[Paul MacKlin, Liberal, Northumberland, ON]

Mr. Speaker, it is a pleasure to have an opportunity to participate in the debate this afternoon regarding Bill C-12 and Motion No. 2 which would delete clause 7 of this particular bill.

With respect to the previous speaker, there is no question that we all share the concerns that the bill is intended to address. I do not think there is any doubt about that. We want to protect those most vulnerable within our society, and this is an excellent example of how we can do it.

The way in which the bill has been constructed and brought before the House is appropriate and there is no need for an amendment of the nature that is being brought forward.

Today, when I rise to speak to the bill, I do so in support of the bill itself and to oppose the motion to delete clause 7.

This bill is designed to deal with an amendment to the Criminal Code to protect our children and other vulnerable persons. It is a very broad bill. It also includes a provision to deal with the Canada Evidence Act and proposes a broad package of criminal law reforms that would seek to strengthen not only the criminal justice system in this particular instance, but in the broader instance as well.

The bill is not just a response to children and other vulnerable persons as defined in the limited discussion that has been going on here today. It will actually be broader than that and in particular with respect to bringing forward witnesses and those who would testify in trials.

One of the key elements of the bill is the strengthening of the existing child pornography provisions by broadening the definition of written child pornography and narrowing the existing defences to one defence of public good.

It is very important that when we examine this concept that we look at what is trying to be accomplished here. What we are trying to do is avoid the situation that was described by the previous hon. member when he talked about the Sharpe case. This is important and it does need to be addressed. We are going forward with the bill to narrow that defence to one defence of public good.

The second key element is strengthening protection for young persons against sexual exploitation. There is a great tendency to simply look at issues of this nature as if the child or the young person was in fact the person who ought to have more restrictions placed upon them. What we are really trying to do is broaden the offence to those who would exploit, those who would take advantage of young persons. This is why the definition of sexual exploitation has been put in the bill.

We are also looking at increasing penalties for offences against children. Many times we hear that the ultimate penalties received are not significant enough. However I think that if we were to increase the penalties, it would give the courts much more room to address the issue of sentencing so that one does not necessarily have to go to the maximum on a first offence, which in almost all cases does not occur, but rather it is a graduated process of trying to use the appropriate sentence that fits the crime.

By increasing the sentencing provisions and penalties within the act, we would be allowing greater latitude for the courts. We will be giving that flexibility so they can be most severe with those who deserve the most severe penalty.

Another area in the bill would facilitate testimony by children and other vulnerable victims and witnesses. This is extremely important because when a victim goes through the actual act that is when the victim is created.

It is extremely difficult, then, for that victim to in effect go through explaining before all parties this victimization in a court. Therefore, we need to put in place appropriate measures to minimize this process, which would once again lead to further victimization. So within the bill, there is a process whereby testimony can be given in many forms and various protections and assistance can be brought forward for victims and also for witnesses to these crimes.

Lastly, the bill also deals with the concept of voyeurism. This criminal offence is an offence that is extremely important. Today it seemingly is more important with the advent of more and more electronic devices. In particular, we note that the latest cellphones have cameras attached to them and are able of course to take photographs and then transmit these particular photographs on the Internet. This form of voyeurism and the access it provides because of the very nature of the device is something that we must take very stringent action upon, and in this particular case it is part of the bill.

Child pornography is an issue that is regrettably not a new concern for all hon. members in the House. The sexual exploitation of children--again, society's most vulnerable group--in any form, including through child pornography, is to be condemned.

Bill C-12 recognizes this and proposes amendments to our existing child pornography provisions that will, I believe, serve to better protect children against this form of sexual exploitation. This motion seeks to delete two child pornography reforms proposed by Bill C-12. Bill C-12 proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the predominant characteristic of the material and it is done for a sexual purpose.

Second, Bill C-12 proposes to narrow the existing defences into one defence of public good, a term that is now specifically defined in the bill. I know that my hon. friend who spoke before me talked about this issue of public good, but clearly we have to be able to define in certain limited circumstances where in fact it is beneficial to society to have this defence, so that in fact in its simplest form it allows for the proper investigation and prosecution of those who would be participants in this business of pornography.

To say that in fact there should be absolutely no defence is simply not looking at this in a pragmatic way. Under the new law, no defence will be available where the material or act in question does not serve the public good or where it exceeds or goes beyond that which does serve the public good.

The public good defence recognizes that in some instances, such as with the possession of child pornography by police as part of an investigation, as I was just mentioning, such possession serves the public good and should be protected. It also recognizes that art or material that has artistic value can serve the public good but, and unlike the artistic merit defence, Bill C-12's proposed public good defence would not be available for such art where the risk of harm that it poses to society outweighs any potential benefit that it offers.

Canadians want more and better protection for our children against sexual exploitation through child pornography, not the same as or less than what we already have today. Given our ever growing understanding and knowledge of the nature and scope of the problem of child pornography in Canada and around the world, we must hold firm in our resolve, which resolve was unanimously reaffirmed as recently as last week, to take concrete and effective measures to better protect children against sexual exploitation through child pornography.

Accordingly, I do not support the motion and I urge all hon. members to support Bill C-12 as it was passed by the justice committee.

[Gurmant Grewal, Canadian Alliance, Surrey Central, BC]

Mr. Speaker, I am pleased to rise on behalf of the constituents of Surrey Central to participate in the debate on Bill C-12, an act to amend the Criminal Code, protection of children and other vulnerable persons, and the Canada Evidence Act.

Yesterday I participated in a debate about encouraging our youth to vote and to get involved in politics. Youth are our future. The most vulnerable groups in our society are children, women and seniors. All the laws we see coming from the government side over a period of time are not protecting any of these groups.

Some time ago there was an incident in my constituency of Surrey Central. A senior citizen, a second world war veteran who was deaf and mute, was beaten to death. Another time there was an incident in the Cloverdale area of Surrey Central. A young girl was abducted, badly treated, and I do not want to go there, and she was murdered.

We constantly see that our streets are not safe. These two vulnerable groups of citizens are not being protected in our society. The government is not doing enough. The law enforcement agencies do not have laws with teeth. We have ended up in a revolving door with legislation after legislation which is ineffective and is not working and is not giving adequate resources to the law enforcement agencies.

The bill before us today was first introduced in 2002. The Prime Minister tries to continue the charade that he leads a new government, yet here he has put an old, flawed bill before us. Admittedly, there are some good things in the bill, but with the good things there are some bad things as well. I have outlined them in the chamber many times before. However, the Prime Minister has not bothered to incorporate any proposed changes. He has not even seen the need to introduce any amendments of his own. How committed can the Prime Minister be to democratic reform? How new is his government or his ideas when we see legislation recycled time and again in this chamber and it does not reach anywhere?

The Department of Justice proposed Bill C-12 to expand the offence of sexual exploitation and the definition of pornography, and to eliminate the defence of artistic merit in child pornography proceedings.

The bill also increases maximum sentences for people convicted of these crimes. If passed, the bill would also increase penalties for failing to provide the necessities of life and abandoning a child.

Bill C-12 is a reaction to the 1995 case of John Robin Sharpe in British Columbia. Sharpe was found guilty of possession of as many as 400 images of children who prosecutors contended were being exploited sexually.

In March 2002 Sharpe's conviction concerning the images was upheld by the Supreme Court. However, he was ultimately acquitted of related charges that had been filed against him in connection with stories he had written, specifically because those writings were deemed to have artistic merit.

Bill C-12 purports to close the loophole that allows people to create child pornography using artistic merit as a defence and establishes a standard of public good.

If Parliament passes the bill, a person will be found guilty of a child pornography offence when the material or act in question does not serve the public good or where the risk of harm outweighs any public benefit.

Since the Sharpe case, Conservatives, and our predecessors, have called on the federal government to eliminate the artistic merit defence, but replacing it with a public good defence is not the solution to the problem. We must eliminate all defences that justify the criminal possession of child pornography.

The bill would also increase penalties for offences that harm children. The maximum penalty for sexual exploitation would double, from five years to ten years, and the maximum penalty for the abandonment of a child or the failure to provide the necessities of life to a child would more than double, from two years to five years.

These increases in penalties are meaningless, however, if the courts do not impose the sentences. We know by experience that when maximum sentences are raised, there is no corresponding pattern in the actual sentencing practices. What is needed are mandatory minimum sentences. Maximum sentences do not help. When a judge sentences someone for life, which is 25 years, it is never 25 years. Similarly, tougher penalties would probably be a better deterrent to committing a crime. What we need are minimum sentences, truth in sentencing and no conditional sentences for child predators.

Bill C-12 would also create a new category of sexual exploitation that would protect people aged 14 to 18. Courts would focus, not on consent but on whether the relationship is exploitative based on the age difference, or control exerted, and other circumstances. This is not good enough.

It is already against the law for a person in a position of trust or authority or with whom a young person is in a relationship of dependency to be sexually involved with that young person. It is unclear how adding people who are in a relationship with a young person that is exploitative of the young person would add legal protection for young people.

What the Liberals should have done was increase the age of sexual consent, which is what we have been asking for a very long time.

A major shortcoming of the bill is that it fails to raise the age of consent for sexual activity between children and adults, and, shamefully, Canada's is the lowest among all the developed countries.

I fail to see the rationale for permitting adults to engage in any sexual activity with children. The government should raise the age of consent, which is currently set out in section 150.1 of the Criminal Code, from 14 years to 16 years, if not 18 years. Just imagine a grade 9 student giving consent to have sex with a 60 year old person or a 50 year old person.

This is not the Canada I migrated to. We need to do much more to protect our children.

In British Columbia's lower mainland we are all too familiar with the problem of prostitution. Studies have found that 70% to 80% of Canadian prostitutes entered the trade as children. There are literally hundreds of prostitutes under 17 years of age currently working on Vancouver streets. It is very shameful.

The recruitment process for the sex trade in Canada preys on young girls and young boys, specifically targeting those who are at the current age of consent, which is 14.

According to the Children of the Street Society, the majority of parents who call asking for help have children who are 14 years old and are being recruited into the trade. They argue that if the police had the ability to pick up the girls or boys, regardless of their consent, and return them to their families or to take them to a safe house, then many youth would be saved from entering the sex trade.

It is of no use looking at the age of consent from the perspective of the advantaged, critically thinking, well protected 14 year olds. The government has to enact laws that will protect our children.

During my tenure in the House I have watched as family values have been continuously eroded in Parliament. Every time the government introduces any legislation we see family values being eroded, whether it is the definition of marriage, the age of consent or the protection of our children from predators. When will the government listen to Canadians, for the sake of our children and the most vulnerable, and enact laws with teeth?

Bill C-12 is very complex, with cumbersome provisions and it would not make it easier to prosecute sexual predators. The government lacks political will. The Prime Minister should be ashamed for doing so little so late to protect our children and other vulnerable groups.

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

Mr. Speaker, I am very pleased to rise in this House to address this important legislation, namely Bill C-12, which was formerly Bill C-20.

As most hon. members have pointed out, if there is one issue on which all the members of this House agree, it is the importance of protecting the most vulnerable people in our society, who also happen to be the most precious ones, namely our children.

Quebeckers and Canadians expect us to rise above partisanship and not use this issue to score political points. They expect the perverts the sick and the maniacs, those who want to sexually exploit our children to be properly punished and to pay for the despicable and horrendous crimes that they commit by going after our children.

It is with this in mind that, when we debated this legislation, the Bloc Quebecois was very proactive and open, and also made a number of proposals. We listened very carefully to what those who came to testify told us. Based on the very eloquent testimony we heard, we proposed a number of amendments.

Motion No. 1, which is before us today, is an amendment that was originally proposed by the Bloc Quebecois. It is an amendment that I myself proposed. I am pleased to see it included in the bill. There was a minor problem with the French and English versions. That was corrected with this amendment. As for Motion No. 3, it deals with a mere technicality.

Two issues were the subject of rather heated discussions in committee, and I want to draw your attention to them. The first one has to do with the definition of “public good”. The witnesses who came to testify before the committee told us that a defence based on the notion of public good is currently too broad, not acceptable and could lead to abuse. Among others, police officers, who are on the front line, told us that they do not have the time to get into philosophical discussions on the meaning of “public good”.

That is why I put forward an amendment in committee to define the meaning of public good. The essence of this amendment is found in clause 7(2) of the current bill, Bill C-12. I absolutely do not understand why the New Democratic Party is against this clause, especially since the NDP critic said at the very beginning that public good was not defined. Perhaps she was referring to the first version of the bill, but the work done in committee resolved this problem by clarifying the definition of public good.

I was very disappointed by the Liberals' unwillingness, if you will, to insert a clause that would provide minimum sentences for the sexual exploitation of our children. In the general public, particularly in the Quebec City area, following the events of which we are all aware, there has been heightened sensitivity and awareness of the danger of sexual exploitation of children.

Having been previously alerted to the general problem, I thought it would have been a good idea for the government to agree to include minimum sentences and mandatory minimum sentences.

Unfortunately, the government, with its majority, refused. Nonetheless, to give credit where credit is due, some members of the ministerial team voted with me and the Canadian Alliance at the time, to have such sentences.

It is unfortunate that the government did not agree. I guarantee, and I will make the promise right now, that I will not drop this and I will make sure that these people, these perverts, these criminals, are severely, yet humanely, punished. They prey on those who are dearest to us and also most vulnerable.

I will conclude by saying that this is not my last speech on this topic in this House or elsewhere. As parliamentarians, we have the political obligation, but especially the moral obligation, to ensure that those who attack our children are severely punished; as severely as possible. This is about the future of our society.

[James Lunney, Canadian Alliance, Nanaimo—Alberni, BC]

Mr. Speaker, our party appreciates the efforts of the member for Provencher who just spoke on this issue. He has been our point man on this issue. He has been active on this file and has been keeping us informed. As the former attorney general of the province of Manitoba, he is well versed in the legal implications of these matters.

I would also like to mention the hon. member for Wild Rose, who has been a campaigner in our caucus and in the House for as long as I can remember on the issue of child pornography. I know his heart, like many of the members on this side, is greatly shaken. He is outraged, as are many of the constituents in my riding, about what is going on with child pornography in our midst today and by the inaction by the House, led by the Liberal government, in dealing with these atrocities that go on as we speak.

There are so many issues to which the government responds with an illusion instead of with substance and with a smokescreen of taking action that is not the action required to change the problem. It is an illusion.

We see it in other instances, for example, in dealing with crime. Instead of dealing harshly with criminals who misuse firearms, the government comes up with a strategy to register the weapons of duck hunters and farmers and wastes a billion dollars of taxpayers' money. It is an illusion that does not address the underlying issue.

We see it in other areas, but nowhere is it more demonstrated than in criminal justice matters such as child pornography and the age of sexual consent.

It was not long ago that members of the Toronto Police Force came to the House to help us understand what was going on. Sadly, most members of the House and many members of the public do not understand the depth of depravity that is going on today in the underworld of pornography, particularly as it relates to children.

There is a proliferation of very graphic sexual and violent images of abuse of children that are abundantly available today. They are putting our children at high risk and continue to undermine the very values of our society. We are concerned.

Many members could not sit through the entire presentation because they were so distraught at the images that the officers put forth. They warned us that it would be graphic, that it would not be easy, and that in fact it would be tough. Some members frankly were not able to continue. Some of the seasoned police officers themselves have not been able to carry on with investigations because of the volume of the very graphic and destructive material that they are required to view in terms of prosecution.

In our area of Vancouver Island, British Columbia we are not proud to lay claim to the fact that the John Robin Sharpe case comes from British Columbia. This case infuriated the people in British Columbia when this man, with his vile images of abuse of children, was exonerated. He tied up the courts because they refused to deal with the issue of the defence of artistic merit. Cases were not even being prosecuted for a period of time. It tied the hands of the police in dealing with these matters.

That brings us to where Bill C-12, as we call it today, is going. The hon. member for Provencher has already outlined where we are going with the artistic merit defence. It so outraged Canadians that somehow we could find artistic merit in the abuse of our children, or that anyone could. It is just an outrageous concept.

It brings us to the understanding that the government has again created an illusion. The Liberals hope to campaign on the bill, saying that they have got tough on child pornography and have acted to protect our children.

The House has a responsibility for more than smoke and mirrors. We have a responsibility to deliver goods to the people that actually accomplish the objective. Smoke and mirrors are not good enough. Repackaging artistic merit as public good is simply not good enough. It will allow the same kind of defences to go on, and the same kind of abuse to continue. It will allow lawyers to argue in the defence of their clients that there is some public good in these atrocities.

Recently I was visited in my riding office by two groups of citizens who are concerned about the age of consent and about sexual abuse of our young people. Marie Poirier from my riding, as well as Joan Sauve, Gloria Ash, Viola Cyr and Helen Metz came to see me. They were part of a white ribbon against pornography campaign and they had hundreds of signatures written on these white ribbons. They were concerned about the abuse of our young people who were being victimized by people who thought that it was all right for adults to engage in sex with young girls and victimize them.

I was not able to present these petitions in the House because they did not fit the appropriate format, but on their behalf I want to say how outraged parents and families are because they know of people in our neighbourhoods and communities who have been abused. The example that the member for Provencher mentioned a moment ago dealt with two men who were acquitted of sexually abusing a girl as young as 12 because they thought she was 14.

This was not about consenting sexual acts among young people, as much as we might disagree with that. It was not about consenting young people. It was about adults abusing young people. Sadly, this kind of activity continues in our society. It continues to hurt and damage young people, leaving them scarred, many times for life.

Thank God that through counselling, and the help and assistance of the many volunteers who try to help these people, and with the support of families, some of them will overcome it, but many of them will carry this abuse into future relationships and will be damaged perhaps for life.

We see some serious problems with this legislation. We see more smoke and mirrors. We see a government that wants to say that it has taken action to deal with this when in reality what it has done is simply change the language that will allow it to continue.

The Conservative Party of Canada would like real answers. We would like to see this moved ahead. We are really concerned about this and the implications for society. We would like to see real action taken to protect our citizens.

There is another issue that deals with raising the maximum penalties. This is an old trick. We know that maximum penalties are hardly ever imposed by the courts, but people have a hard time understanding that. When they hear language that we have gotten tough on child pornography and we have raised the maximum penalties, it gives people the impression that something is being done to protect our citizens when in fact it is meaningless. If we were to get tough, we would increase the minimum penalties and we would have mandatory prison sentences for people who are convicted of these crimes. It is time to get tough to protect our youngest and most vulnerable members of society.

I have spoken on this issue before. I can only express again on behalf of my constituents the umbrage and disgust that they have with this ongoing abuse of our young people. I can only ask that all members of the House will understand the seriousness of this issue and make the appropriate amendments to put real teeth in the law to ensure that our young people are protected and that they have a chance to take their places in society as wholesome adults. We are looking for that kind of action from the House.

[Karen Redman, Liberal, Kitchener Centre, ON]

Mr. Speaker, discussions have taken place between all parties concerning today's debate on the report stage of Bill C-12. I believe you would find unanimous consent that if recorded divisions are requested today on the motions at report stage of Bill C-12, they be deferred until the end of government orders on Tuesday, February 24, 2004.

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I also am glad to see another woman taking the position in the chair.

There are three motions on Bill C-12. I will briefly speak to the two government motions. Government Motion No. 1 is a grammatical correction amendment to clause 6. This is a technical motion that proposes to correct a grammatical mistake in the French version of an amendment made in committee. Clause 6 was amended in committee to add the offence of “advertising” a recording made through the commission of an offence of voyeurism to the listing of other prohibited acts regarding such voyeuristic recordings. The words added in the French version require an indirect object, but they are placed in a sentence where all of the other verbs require a direct object.

The amendment would replace the expression “faire de la publicité” with the verb “annoncer”, a verb which is of a similar nature to the other verbs or prohibitions used in the clause and which is also the same French verb used elsewhere in the Criminal Code for the English equivalent of “advertising”. This would make the French and the English versions consistent.

I will move now to government Motion No. 3, which is a coordinating amendment on clause 27. Again this is a technical motion to amend clause 27 of Bill C-12. It replaces Bill C-12's reference to the public safety bill that died on the Order Paper with the current reference to that same bill as reinstated on February 11.

Clause 10 of Bill C-12 proposes to amend section 183 of the Criminal Code to add the new voyeurism offences to the list of offences for which criminal investigations can intercept private communications and use video surveillance. Bill C-7, the Public Safety Act, 2002, formerly Bill C-17, also amends section 183 of the Criminal Code to add other offences to the list.

Clause 27 of Bill C-12 is a coordinating clause. It is needed to ensure that the amendments to section 183 proposed by both Bill C-12 and Bill C-7 can come into effect regardless of the order of enactment of these bills.

Accordingly this motion seeks to amend clause 27 of Bill C-12 so that it now refers to the new bill number for the Public Safety Act, Bill C-7, to thereby coordinate both bills' amendments to section 183 of the Criminal Code.

Now to the more substantive matter which the hon. member for Vancouver East has proposed in her motion. I rise today to oppose the motion of the member opposite. I do acknowledge the hard work that has been done by all on this committee.

In effect, this motion seeks to maintain the status quo on child pornography and this is something which neither Canadians nor this government accept. The government believes that the existing child pornography provisions do not go far enough to protect our children against this form of sexual exploitation.

They do not go far enough because they restrict the definition of written child pornography to only those materials that “advocate or counsel” unlawful sexual activity with children. The existing child pornography provisions do not go far enough because they provide two defences for all child pornography offences, including a defence for material that has artistic merit or an educational, scientific or medical purpose without any harms-based test.

Bill C-12 says no to the status quo while this motion says yes to it. Clause 7 of Bill C-12 proposes two reforms to the existing child pornography provisions. First, it proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the dominant characteristic of the material and it is done for a sexual purpose.

Second, Bill C-12 proposes to narrow the two existing defences into one defence of “public good”, a term that is now specifically defined in the bill. Under the new law, no defence would be available where the material or act in question does not serve the public good or where it exceeds or goes beyond what serves the public good. More simply stated, if the risk of harm that it poses outweighs the benefit that it offers to Canadian society, then no defence would be available.

Today's motion goes in the opposite direction of Bill C-12. It says that written materials that consist primarily of descriptions of unlawful sexual activity with children, which descriptions are done for a sexual purpose, are okay. It says that these materials are not child pornography and that they should not fall within the reach of the criminal law.

The Supreme Court of Canada interpreted “for a sexual purpose” in the Sharpe case, 2001, as that which can be reasonably perceived as intended to cause sexual stimulation.

With this interpretation in mind, I find it virtually impossible to comprehend the basis for any argument that seeks to support and protect materials that mostly describe the sexual abuse of children and where these descriptions can be reasonably perceived as intending to cause the reader to be sexually stimulated.

These materials are not okay, as this motion would have us believe. The Criminal Code provides a comprehensive set of prohibitions against the sexual abuse and exploitation of children. The type of written materials that Bill C-12 wants to include in these protections, but which this motion seeks to exclude and to protect, are those that portray or purport to portray children as a class as objects for sexual exploitation. The government recognizes the very real risk of harm that such portrayal and objectification of children pose to our children and to society at large. That is why Bill C-12 proposes to include these types of materials within our definition of child pornography.

The second thing that this motion seeks to do is to maintain the current test for when child pornographic materials should be protected by the defence of artistic merit. Under the current test for artistic merit, the defence is automatically available for material that, objectively viewed, demonstrates some artistic merit, no matter how small and no matter what the risk of harm it may pose.

For example, if the material in question is a written story, the test for the current defence is, objectively viewed, does the story reflect some accepted or recognized literary techniques or styles? If so, the defence is available, irrespective of whether the risk of harm that story poses to children in society outweighs any benefit that it offers.

The government does not agree with this and does not support the existing test for artistic merit and neither do Canadians. The Standing Committee on Justice and Human Rights amended Bill C-12 to define the public good as including acts or materials that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.

This definition is modelled on the Supreme Court of Canada's interpretation of the public good in Sharpe. This will help to ensure that the subsequent interpretation of Bill C-12 is guided by the Supreme Court's decision in this case.

The justice committee's amendment of Bill C-12 to include a definition of the public good directly responds to concerns expressed by the arts community and other witnesses who appeared before the committee. They wanted greater clarity in the bill as to what constituted the public good. The justice committee amendment to define the public good responds to this concern.

However, as to the balance of the concerns raised by the arts community witnesses, a number of observations should be made. In a child pornography case, the first question to be considered and answered is whether the work in question meets the Criminal Code's definition of child pornography.

Examples of written works that were described by these witnesses to the justice committee would not meet the existing definition of written child pornography, that is, they could not be said to advocate or counsel unlawful sexual activity with children. Neither would they meet Bill C-12's proposed new definition. That is, they could not be said to be works that, one, were comprised primarily of descriptions of unlawful sexual activity with children and, two, that such descriptions were written for a sexual purpose.

If the material in question meets the definition of child pornography, then the second question to be considered--and it is a question that falls to the courts to determine--is this: Is this material protected by a defence? Under Bill C-12 there would be only one defence and the test for the single defence would be the same for all material. It would be a two-step inquiry that indicates and includes a harms-based test and it would be possible for art to meet such two-step inquiry.

The motion to delete clause 7 of Bill C-12 is not consistent with the objectives of the bill as set out in the preamble, which states:

Whereas 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--

It is for these reasons that I urge all hon. members to support Canada's children and support Bill C-12 as passed by the justice committee and not to support this motion from the hon. member of the opposition.

[Libby Davies, NDP, Vancouver East, BC]

Madam Speaker, congratulations on your new position as Acting Deputy Speaker. It is always good to see women in the Chair. It is not an easy job to do. We are pleased to see you there.

I am pleased to rise in the House today to debate the amendment in Bill C-12 at report stage. The amendment we have put forward would delete clause 7. This clause removes the defence of artistic merit from existing child pornography legislation and replaces it with a public good defence. Our amendment would delete that section of public good defence.

Before I speak further, I want to recognize the work of my colleague, the member for Dartmouth, who has taken on this bill and many other issues in the House, as our arts and culture and communications critic. I think she has earned respect from all sides of the House for the tremendous job she has done in promoting Canadian arts and culture.

We have had to deal with some very difficult issues in the bill in terms of defending the rights of children and to ensure that child sexual abuse does not take place in our society. We also have had to deal with issues of artistic merit and protecting the legitimate areas for artists for true expression. This has not been an easy thing to do. I think we all have an admiration for the work the member has done, in working with the broader community, to ensure that the legislation can be supported. In fact the amendment before us today is as a result of the member for Dartmouth's work.

Protecting children and other vulnerable people is one of our highest duties, both as members of Parliament and as citizens and residents of Canada. It is one that we should not take lightly.

In this age of digital transmission and global communication, visual examples of child pornography have become something that I think we all find horrifying and that we abhor. I agree that any depiction of child abuse that glorifies those acts or is intended to incite people to commit them must be criminalized. For those of us in the New Democratic Party, this is something which we believe most strongly.

The sexual abuse of children is an atrocity, a despicable attack on the most vulnerable members of our society. It is an act of terror, an assault on our society's most basic values of honour, protection and dignity.

Although the NDP agrees with the general intent of Bill C-12 to protect children and other vulnerable persons from exploitation, we have a problem with the vague language of clause 7. We believe weakens the whole bill. Indeed, witnesses who appeared in front of the justice committee, for example from the Toronto Police Association, as well as groups such as the B.C. Civil Liberties Association and the Canadian Conference of the Arts, all indicated that they felt that clause 7 was problematic because the language used was vague and contradictory.

In fact, after the previous debate on this issue in November 2003, Pierre Plourde, an LLB candidate in the Faculty of Law at the University of New Brunswick, contacted members of the House. He believes that the amended clause 7 is still unconstitutional and that courts will have to treat the public good defence the same as the existing defence of artistic merit to avoid striking down the entire law. This is clearly problematic.

Many of our colleagues in the House have complained that the original child pornography law was sloppy. The problem we are faced with now is that that this new law will become another sloppy law. It is something we need to fix as quickly as we can. It will not help protect our children from abuse.

A problem that was noted in committee, through the witnesses, was that the bill as it stood would also increase the burden on police forces. I quote from Detective Sergeant Paul Gillespie of the Toronto Police Service, who appeared before the justice committee in October 2003. He said:

We've seen what happens when police are left to define what is or isn't artistic merit. We'll be fighting about this one for years. Police would simply appreciate laws that are very clear and that will allow us to make better-informed decisions at the time we are required to make them. Wording that is very open to speculation and suggestion and not quite clear makes it very difficult for officers to understand exactly what they're supposed to be doing.

We would agree and say that it is incumbent upon us to ensure that the law is clear.

It is not just artists who face a chill from this legislation. Researchers and health workers will also have to wonder if their work leaves them open to prosecution. For example, psychiatrists working with victims of sexual abuse may wonder what material they can actually publish. With a very vaguely worded public good defence, they could find themselves being accused of creating child porn by referencing events that happened to their patients.

We could have created strong legislation, one that would not be open to charter challenges. I am sure that is something no member of the House wants to see. Again, the amendment is important, and it is important that we try to fix the problem now.

For example, clause 7 leaves it up to the courts to decide if an act or material goes beyond what is considered as the public good. When we discuss measures that limit rights outlined in the charter, the decision should not be left to an unelected, unaccountable body in our court system. We believe that discussion should happen here in Parliament.

The second reason we have asked for this amendment is that this clause does not protect artists. This was a very critical point at the committee, and it is something that has been part of the debate through the passage of the bill. The new defence of public good is too vague and unproven.

We believe it will take years of jurisprudence for the courts to decide exactly how to apply this defence in relation to child pornography laws. Will museums, for example, be prosecuted for holding classic works of art that depict children in sexual acts? Will libraries, which protect the rights of Canadians to read any and all kinds of literature, have to clear their stacks of any books that might suggest teenagers had sex with adults?

Artists need the freedom of an open democracy to create their work. Artists are concerned that the legislation contravenes a basic tenet of our judicial system: one is presumed innocent until proven guilty.

We believe this clause, if it were left as it is, would force an artist to prove that his or her work is for the public good and does not extend beyond it. In fact, Megan Williams, who is the National Director of the Canadian Conference of the Arts, told the committee how artists felt about being guinea pigs of bad legislation. Again, this has had extensive debate both within the arts community and in broader society. She said at committee:

I want to add also that artists do not want to be on the front lines of testing dubiously drafted legislation again.

During the committee hearings, many people brought up the silence around child abuse and how important it is to not return to a time when children and adult survivors of abuse could not talk about it. The chill that this proposed legislation will create cannot be under estimated.

There are other areas of Bill C-12 that we do support and, in fact, overall we support the bill. However, in this area we have a very strong concern.

The proposed bill extends protection for children and other vulnerable people. As we have said, this is clearly something that is very important. However, we cannot support treating all work that deals with children and sex as pornography. It is important that survivors can speak, write or draw about their experiences without facing persecution. It is important that artists can explore not just the virtuous part of our society but also its dark side.

We believe clause 7 should be removed, and thus we have put this amendment forward today, and allow the rest of the bill to go forward.

I hope that the debate today will be something that is respectful. I know this has been a very contentious issue. We put forward the amendment with very good intentions to help make the a bill that is clearer and is something that can be supported by all members of the House.

It was very important that we had the input from different sectors of society: police, artists and others. We believe that the amendment to delete this clause is something that will strengthen the bill.

[Reg Alcock, Liberal, for the Minister of Justice and the Attorney General of Canada]

moved:

That Bill C-12, in Clause 27, be amended by replacing lines 5 to 20 on page 24 with the following:

“27. If Bill C-7, introduced in the 3rd Session of the 37th Parliament and entitled the Public Safety Act, 2002 (the “other Act”), receives royal assent and section 10 of this Act comes into force before the coming into force of any provision of the definition “offence” in section 183 of the Criminal Code, as enacted by section 108 of the other Act, then, on the later of that assent and the coming into force of that section 10, paragraph (a) of the definition “offence” in section 183 of the Criminal Code, as enacted by that section 108, is amended by adding the following after subparagraph (xxvii):

(xxvii.1) section 162 (voyeurism),”

[Libby Davies, NDP, Vancouver East, BC]

moved:

That Bill C-12 be amended by deleting Clause 7.

[Reg Alcock, Liberal, for the Minister of Justice and Attorney General of Canada]

moved:

That Bill C-12, in Clause 6, be amended:

(a) by replacing, in the French version, line 45 on page 5 with the following:

“vend, annonce, rend accessible ou a”

(b) by replacing, in the French version, line 1 on page 6 with the following:

“de vendre, d'annoncer ou de rendre”

[The Acting Speaker (Mrs. Hinton)]

There are three motions in amendment standing on the Notice Paper for the report stage of Bill C-12. Motions Nos. 1 to 3 will be grouped for debate and voted upon according to the voting pattern available at the table.

I shall now propose Motions Nos. 1 to 3 to the House.

Business of the House

[Mauril Bélanger, Liberal, Deputy Leader of the Government in the House of Commons]

Mr. Speaker, Discussions have taken place among all parties and I believe you will find there is unanimous consent that the recorded division on the motion for second reading of Bill C-12 scheduled for Wednesday, February 18, 2004, be taken today at 5:30 p.m.

Criminal Code

[Irwin Cotler, Liberal, Minister of Justice and Attorney General of Canada]

moved for leave to introduce Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

Mr. Speaker, pursuant to special order made earlier, I wish to inform you that this bill is in the same form as Bill C-20 at the time of prorogation of the previous session.

(Motions deemed adopted, bill read the first time and printed)