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

This bill was last introduced in the 38th Parliament, 1st Session, which ended in November 2005.

Sponsor

Irwin Cotler  Liberal

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code to

(a) amend the child pornography provisions with respect to the type of written and audio material that constitutes child pornography, and with respect to the child pornography offences, defences and penalties;

(b) add a new category to the offence of sexual exploitation of young persons and make additional amendments to further protect children from sexual exploitation;

(c) increase the maximum penalty for child sexual offences, for failing to provide the necessaries of life and for abandoning a child;

(d) make child abuse an aggravating factor for the purpose of sentencing and direct the courts to give primary consideration to the objectives of denunciation and deterrence in sentencing for offences involving abuse of a child;

(e) 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 certain witnesses; and

(f) create an offence of voyeurism and the distribution of voyeuristic material.

This enactment also amends the Canada Evidence Act to abolish the requirement for a competency hearing for children under 14 years of age.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Tougher Penalties for Child Predators Act
Government Orders

June 2nd, 2014 / 11:05 p.m.
See context

Liberal

David McGuinty Ottawa South, ON

Mr. Speaker, I am pleased to rise in the House tonight to speak to Bill C-26, the tougher penalties for child predators act.

It is often said that the test of a just society is how it treats the most vulnerable of its citizens. Among the most vulnerable are those who cannot always speak up for themselves, namely, our children. In that spirit, the Liberal Party remains steadfastly committed to supporting the protection of children and concrete measures aimed at the prevention of sexual offences against children, as well as appropriate punitive sanctions against those who commit such heinous acts.

Bill C-26 includes no direct measures aimed at preventing sexual offences against children, nor measures to ensure the treatment, rehabilitation, or reintegration of sex offenders. All too often in the debate on these important matters, the opposition is painted as “being soft on crime”. The reality is we need to be a lot smarter on crime. Unfortunately, Bill C-26 just is not a smart bill. In fact, by increasing mandatory minimums, the bill reduces judicial discretion and may result in charter challenges. As parliamentarians, we must ensure that the laws we pass will be effective in reducing the incidence of sexual violence against kids and not merely a symbolic expression likely to be overturned when first implemented.

The last Liberal government made child protection a priority and its first bill, Bill C-2, an act to amend the Criminal Code and the Canada Evidence Act, was assented to in 2005. That legislation proposed amendments to the Criminal Code and the Canada Evidence Act to provide further protection for children against abuse and sexual exploitation by broadening the definition of child pornography, prohibiting the advertising of child pornography, increasing maximum sentencing for certain offences related to child pornography, and creating new sexual exploitation offences.

Moreover, the Liberal legislation sought to facilitate testimony by child victims and witnesses by better enabling the use of testimonial aids, including screens, closed-circuit television, and support persons for all child victims and witnesses under the age of 18 years. The reforms also allowed children under 14 to give their evidence if they were able to understand and respond to questions. Such measures were far more concrete in securing the protection of the vulnerable than what we see in Bill C-26. The offences therein captured new behaviour unaddressed by the Criminal Code and also made improvements to the trial process. By contrast, Bill C-26, by and large, only increases penalties that were themselves recently increased, with no evidentiary basis to suggest that the current regime is not working, and without any effort of reducing the incidences of crimes against children.

Perhaps it is worth emphasizing this point another way. Penalties only come into play after an offence has occurred: a child has been victimized, his or her abuser has been apprehended, and the trial process has been completed, with a guilty verdict returned. By addressing only the penalty these criminals receive, we ignore all of the other elements at play. We fail to consider whether the police have adequate resources and tools to apprehend abusers. We fail to address issues at trial that might prevent important evidence from being adduced. In other words, by addressing the end of the process, we ignore the very beginning, which ought to be our goal: reducing incidents in the first place.

Perhaps the biggest concern with Bill C-26 is that the mandatory minimum penalties lack an evidentiary basis. If one goes back to the omnibus crime bill, Bill C-10, one will find that many of these offences had their minimum penalties increased just two short years ago. It begs the question: If these penalties needed to be increased to the lengths in Bill C-26, why did the Conservative government not do so two years ago? Herein lies the problem. With the law amended in 2012, someone imprisoned under the provisions would likely still be serving prison time less than two years later, particularly given the imposition of a mandatory minimum. Thus, we have no idea if Bill C-10's changes were sufficient.

We also have no indication that the changes in Bill C-26 will be beneficial in any way. If anything, we have evidence to the contrary given the constitutional problems of mandatory minimums. Liberals oppose mandatory minimum penalties as a matter of principle and policy. The evidence simply does not support them. Studies show that they are ineffective in deterring behaviour and, indeed, create more problems than they solve.

Indeed, the whole premise that increasing the sentence will somehow cause would-be offenders to change their minds is absurd. When one considers what that entails, it means we seriously think criminals are looking up the Criminal Code online and deciding, based on the number of years indicated in hard-to-read legal provisions, whether they should go forth and do something. This is just not how the world works, and the Conservatives need to wake up to this reality.

It is not only Liberals who oppose mandatory minimums. The former MP for Ottawa West, David Daubney, a Progressive Conservative MP who retired only recently as director of criminal law policy in the Department of Justice after a distinguished career there, was quoted as saying on the way out the door, “The policy is based on fear—fear of criminals and fear of people who are different. I do not think these harsh views are deeply held”. He went on to say at the same time, because he was subject to so much pressure inside the department, that “somebody has to take the risk of talking”.

By imposing mandatory minimums, the government ignores several decades' worth of overwhelming evidence from around the world that longer jail terms do not deter crime and in fact may have the opposite effect: in 1990, a study for the justice department found that:

The evidence shows that long periods served in prison increase the chance that the offender will offend again.

In 1999, research commissioned by the Solicitor General concluded that:

To argue for expanding the use of imprisonment in order to deter criminal behaviour is without any empirical support.

A Massachusetts report from 2004 called mandatory minimums:

...a recipe for recidivism rather than a recipe for effective risk reduction.

Making matters worse, mandatory minimums lead to prison overcrowding. One of the reasons mandatory minimums increase recidivism is that when more people are imprisoned for longer periods of time, prisons become overcrowded and less conducive to rehabilitation.

The Office of the Correctional Investigator has warned the government, documenting an increase in the number of inmates of nearly 7% between March 2010 and March 2012, predicting continued growth in the prison population as the full impact of Conservative policies are felt. The practice of double-bunking is used to accommodate this increase, housing two inmates in a cell designed for one. That practice has grown substantially. In 2004, 6.3% of inmates were double-bunked; by 2012, under the Conservatives, the number had grown to over 17%.

As studies demonstrate repeatedly, mandatory minimums discriminate against aboriginal Canadians and other minorities. The growth of the prison population includes a significant rise in the percentage of aboriginal inmates.

Indeed, mandatory minimums disproportionately impact vulnerable minorities, especially aboriginal Canadians, who have less access to legal counsel and are generally treated more severely by the justice system. For example, aboriginal defendants are often charged with a more serious offence than non-aboriginal defendants who commit the same act. Aboriginal people are already dramatically overrepresented in Canadian prisons, and mandatory minimum sentences exacerbate the problem.

Here is the point: the crime rate among aboriginal Canadians could be reduced much more effectively by education and poverty reduction than by increased incarceration.

Perhaps most importantly, these mandatory minimums are an unjustified attack on judicial discretion. One of the arguments in favour of mandatory minimums is that they remove discretion from judges who are supposedly “soft on crime”; however, there is no evidence, not a shred, to suggest that sentences imposed by judges are unjustifiably light. Serious offenders receive serious sentences already; mandatory minimums serve only to remove discretion from judges in exceptional cases where leniency might be appropriate.

Furthermore, these mandatory minimums do not truly eliminate discussion at all. Rather, they transfer it from judges, whose decisions are public and subject to appeal, to police officers and prosecutors. If a crown attorney feels that the mandatory minimum prescribed by the law would be too severe, he or she might decide to charge for a lesser offence. Such prosecutorial decisions are made behind closed doors, and no appeals process exists to challenge them.

In short, these mandatory minimums waste taxpayer dollars. They invite expensive constitutional challenges on the grounds that they violate section 7, the right to life, liberty and security of the person, or section 9, the right not to be arbitrarily detained or imprisoned, or section 12, the right not to be subjected to cruel and unusual treatment or punishment.

Already several of these sentences enacted by the Conservatives have been struck down. Other challenges are currently before the courts. They clog up the court system and require the government to spend millions of taxpayer dollars defending laws that were constitutionally suspect from the outset. This is in the face of the legal responsibility of the minister to ensure that legislation brought to the floor of this House is constitutional.

I will wrap up--

Tougher Penalties for Child Predators Act
Government Orders

June 2nd, 2014 / 11 p.m.
See context

Liberal

Sean Casey Charlottetown, PE

Mr. Speaker, I believe that my colleague would simply wish for me to repeat part of what I said in my speech, which is that Liberals have supported mandatory minimum sentences in the past. It is no longer a Liberal Party policy. They have been shown to be ineffective. The evidence indicates that they are not effective. We believe that mandatory minimum sentences should be the exception and not the rule. However, they have become the rule and not the exception. I thought perhaps that was clear enough in my speech. That is certainly where we stand.

My colleague would know as well that the Liberal government of Paul Martin, in 2005, as their first piece of legislation, introduced Bill C-2 on Criminal Code amendments to protect the vulnerable, including strengthening child pornography laws, creating new offences against the sexual exploitation of youth, increasing penalties for child-specific offences, facilitating the testimony of child victims, and other measures.

There is no question that the Liberal Party has been consistent in its stand with respect to the measures necessary to protect the most vulnerable. With respect to mandatory minimums, it is well past time they became the exception and not the rule.

Safer Internet Day
Statements By Members

February 10th, 2009 / 2:15 p.m.
See context

Conservative

Phil McColeman Brant, ON

Mr. Speaker, today the Government of Canada recognizes Safer Internet Day in announcing the renewal of the national strategy for the protection of children from sexual exploitation on the Internet. Today's announcement signals our government's ongoing commitment to help keep our children safe.

On February 28, 2008, Parliament passed Bill C-2, which increased the age of consent for sexual activity from 14 to 16 years of age to better protect youth against adult sexual predators. Our government also invested $6 million per year, provided through budget 2007, to strengthen existing initiatives to combat exploitation and trafficking of children.

We will continue to work with the Canadian Centre for Child Protection and the RCMP's National Child Exploitation Coordination Centre to eliminate online child exploitation. This government is committed to raising awareness about the abuse of children and to the investigation and pursuit of those who engage in exploitation--

Criminal Code
Government Orders

May 3rd, 2007 / 3:50 p.m.
See context

NDP

Bill Siksay Burnaby—Douglas, BC

Mr. Speaker, I am glad to have an opportunity to again address the issue of Bill C-22, the age of protection, age of consent legislation. It is the second time I have been able to speak in this debate. I believe this is very important legislation. It is important to many people in my community of Burnaby—Douglas and across the country.

There are many different positions on this. There seems to be some unanimity in this place. There is an emerging consensus that the legislation will pass. However, I believe there are important opinions and understandings of sexual expression, the age of consent, what is appropriate sexual expression and relational models, that need to be part of this debate.

I am one person who does not support the legislation because of some of the serious flaws I see in it. At the same time, recognizing there are other opinions, I believe people have taken this issue seriously and we have had a serious debate on this matter, both here in this chamber and in committee. I have read most of the transcripts of the presentations at the committee.

The NDP caucus has also had the opportunity to discuss the legislation as well. Even in this caucus there is a diversity of opinion on this legislation. However, I do not think anyone wants to diminish the importance of it.

It is important that we take all possible precautions to ensure there is not exploitation, particularly of young people in our society. We all want to ensure that we have the best and most appropriate tools at our disposal to ensure young people are not exploited. How we do that, I think there can be some discussion and debate about. I want to take the opportunity today to talk about this attempt to do that.

For many of us this is a very personal issue and we come to it with various personal experiences. Some of us may come to the debate because of a concern we had of a young person who was involved in a relationship with someone much older. Others come from other kinds of experience to this debate.

As a gay man, I have a particular experience of a time when in Canada my sexual expression was criminal. It was illegal to engage in homosexual activity, to engage in a gay or lesbian relationship. I grew up in that period in the 1960s when it was criminally sanctioned. That was not an easy time for me as a young person coming to terms with my own sexuality. It was not an easy time to go through all that learning about what it meant to be a full human person, what it meant to experience one's sexual self at a time where any expression of my understanding of my sexuality could have resulted in criminal sanction. That is totally outside the issue of the age of consent. It was just plain illegal to do that.

That was a very difficult time, not to mention the social sanctions that were also present around being gay or lesbian at that time, or the ordinary difficulties that any young person might have in expressing their concerns, or their experiences or their questions about sexuality. It is difficult enough as it is. As young people, it is hard to have those kinds of discussions with people who care about us and with people who we look to for information. That is hugely difficult and remains through most of our society. However, on top of all of that, it was illegal. It was a crime to engage in that activity.

It was very difficult to come to terms with who I was as a person and who I was as a sexual person when there were those social and criminal sanctions. I do not really want to wish that on anyone else. I do not want to wish that circumstance of a criminal sanction around the time when we are learning about our sexual expression and learning about what it means to be a sexual person. Criminal sanction is a huge burden to place on anyone going through that period of time.

There are still social sanctions around relationships where there is an age difference. There are still difficulties for young people to raise their questions about expressing their sexuality, the meaning of their sexuality, dealing with health issues or problems in any relationship, let alone one where there might be an age difference. We are complicating that even further by adding a new criminal sanction around expression of sexuality for our youth.

I say this recognizing that we have very good legislation on the books now. We have a good law on the age of consent in Canada that essentially had sections of it amended in 1987 under a previous Conservative government and minister of justice, who went on to become the governor general, Ramon Hnatyshyn. The law very clearly stated that between the ages of 14 and 18 any circumstance of exploitation, the misuse of trust, dependency and authority was a sanction that protected a young person in that age group. The legislation was very clear.

I was working on the Hill at the time. I remember there was widespread support for the legislation. People saw that this was an important way to elucidate the places where harm could come to someone, the ways in which a relationship, particularly a sexual one, could be exploited. That law went a considerable way to outline that.

At the time I worked for a member of Parliament, who defended the issue. Because of his outspokenness, it generated lots of phone calls to the office where I worked. I had conversations with many people about the law. I think people understood that the law went out of its way to protect young people from exploitation and did so in many ways.

What is more, in the previous Parliament improvements were made with Bill C-2. It was made more explicit. Issues of prostitution, pornography and luring on the Internet were explicitly dealt with in the amendments to the age of consent legislation, which were debated and passed in the 38th Parliament. Those amendments went some way to making it very clear. It took something that was already good and made it crystal clear in some very key areas, which many people have justified and serious concerns about in the ways in which young people are exploited.

It is very clear about a pimp who is pimping a person of that age group. It already was, but it made it explicitly clear. Similarly, it is very clear with regard to using a young person to produce pornography. On the whole exercise of luring someone on the Internet, the law is very clear now.

The only effect of this legislation is to criminalize consensual sexual relationships of 15 and 16 year olds outside of a certain five year age gap parameter, and that is my concern.

We have very clear legislation that outlines the problem areas in relationships with young people, as I have just explained. The current legislation goes out of its way to be very clear about how a young person can be exploited in that kind of relationship. All we are dealing with are relationships that are consensual, where a young person gives consent to be in that relationship.

We may not like the fact that 14 or 15 year olds are in relationships with who is 6 or 10 years older, or perhaps even older than that, and we may have reasons to be concerned about it. However, I put it to members of the House. I do not completely understand how criminalizing those relationships is going to add to the ability to solve whatever problems may exist in those relationships or how dragging the people involved in those relationships before the courts is necessarily going to address any of the current concerns we might have.

Why should young people involved in those kinds of relationship have to see their partners dragged before the court because of a relationship they consider to be consensual, but we consider detrimental, even though we can not prove it with the existing laws? How does that solve the problem. I think it creates more problems for the people in that relationship, particularly the young people. That is one concern I have about the legislation.

I have other concerns too. When we criminalize sexual activity, we will drive people underground. We will make it more difficult for young people to raise questions with somebody who may have advice to offer them about the course of their relationship when they have a problem, particularly if the people they are involved with are older than the five year limit.

We will make it more difficult for a young person involved in that kind of relationship to seek treatment for a sexually transmitted disease, for instance. This is a very serious issue that many sexual health educators across the country have raised. They have said that this is a serious problem with the kind of legislation we have before us.

I am very concerned that this kind of change in the legislation will drive behaviour underground. It will make it more difficult to assist people who are in these relationships, particularly young people where there might be exploitation or other problems that need to be addressed. That is another key reason why I cannot support the legislation.

There has been a lot of discussion about this legislation. The NDP debated this at our convention last September. The party referred it to its federal council. The federal council did approve a party position on it. I want to read the resolution that was passed. It says:

WHEREAS the Conservative government plans to increase the basic age of consent for sexual activity to sixteen (6) years of age; and

WHEREAS Bill C-2, passed into law in 2005, already prohibits any exploitative sexual relationship with a person under 18; and

WHEREAS there is no evidence to indicate that the proposed legislation will protect young people from predators; and

WHEREAS youth are significantly less likely to seek sexual health information or advice if their activities fall outside of the law; and

WHEREAS an increase in the age of consent is opposed by the Canadian AIDS Society, EGALE Canada, The Canadian Federation for Sexual Health, The Coalition for Lesbian and Gay Rights in Ontario and others,

THEREFORE BE IT RESOLVED that Convention direct Caucus not to vote for the Conservative legislation to increase the basic age of consent for sexual activity to sixteen years of age; and

BE IT FURTHER RESOLVED that the NDP Federal Caucus work to ensure that the Age of Consent for anal sex be consistent with that for all other types of sexual activities.

We have a very clear party position about this kind of legislation, after considerable debate within the NDP. It is important to point out that it was a very careful debate within our party and we heard from a lot of people.

We also heard very clearly from the youth wing of the NDP that it was were opposed to the legislation. Young people took a very active part in that debate, calling for our opposition as New Democrats to this legislation. That is an important consideration.

As well, we have court decisions saying that the anal intercourse provisions of the Criminal Code violate the charter because they are unconstitutional. While we have those kinds of decisions, the government failed to integrate them into the legislation when it brought it in. That also indicates one of the important flaws with the bill.

For many years, this has been called in this place. In fact, back in 1987, I believe an all party committee of the House wrote a report called “Equality for All”. One of the recommendations of that report was that there be a uniform age of consent for sexual activity, no matter what that sexual activity. That has been a long-standing recommendation that came from an all party committee of this place, and it is still to be implemented here.

It belies the bias of the government. It could indicate that there is an anti-sex bias in this kind of legislation. The failure to deal with an important constitutional issue and the whole question of uniformity of the age of consent legislation is a very serious problem with the bill. It is another reason why I will not support it.

I am glad that my colleague, the member for Windsor—Tecumseh, has tabled private member's legislation to deal with that particular aspect of the bill. However, I think if this had been a serious attempt to deal with the problems of the age of consent legislation in Canada, that provision would have been part of this legislation, or at least the amendments that were proposed at committee by the member for Windsor—Tecumseh and others to add that provision to the legislation would have been accepted and we would have that before us today, but sadly, we do not.

I am also concerned that the legislation is becoming increasingly complex. The existing legislation that is in force now in Canada can be explained effectively. I actually wish that that legislation were taught in our schools. I wish there would be some attempt to inform young people. It probably should be taught in other places so that people come to an understanding of what the requirements are for an appropriate relationship, of what it means to be in a position of trust or authority in a relationship, what it means to be exploited sexually in a relationship, so that we could have frank discussions on that. The existing legislation is an excellent tool.

Back in 1987 when the law was changed to what we have today, the Department of Justice produced an excellent resource about the age of consent legislation. I personally, through the constituency office that I worked in, gave away probably thousands of copies of that booklet. It was such a helpful resource for people trying to understand the issue of the age of consent laws, trying to understand the importance of relationships, what they meant and how a relationship could be conducted appropriately. I am sad that that resource is long out of print because I think it did go some way to helping people understand what it would be to have an appropriate relationship.

I want to point to testimony that was offered by the B.C. Civil Liberties Association and the president, Mr. Jason Gratl, at the committee that was looking at the legislation. It is important to note the issues that that group raised. They saw the legislation before us today, Bill C-22, as a fundamental shift from the way Canada has chosen to deal with issues of harm to young people and of social policy.

I just want to quote from what Mr. Gratl said to the committee looking at the legislation. He said:

I'll begin with a general comment expressing our concern that Bill C-22 represents a fundamental shift of policy and attitude towards sexuality. In 1992, the Supreme Court of Canada, in the Butler decision dealing with the definition of obscenity, signalled a fundamental shift from the legislation of morality to the legislation of harm. From that point forward, the legislature and the courts were to look for specific types of harm, not necessarily scientifically measurable types of harm, but analytically discoverable harm, such as attitudinal harm--changes in people's attitudes toward each other that are fundamentally anti-social, psychological harm to individuals.

The idea was to rationally connect appreciable types of harm to the type of legislative endeavour underway. To our mind, that commitment to legislating against harm rather than legislating morality is endangered or imperiled by the approach this committee currently seems to be taking.

The existing protections for young people are adequate, in our submission. Sexual predators who exist in the world need to be taken account of, and much has already been done to ensure that those sexual predators are controlled, punished, deterred, and so forth, by the existing criminal law. The committee is well familiar with the crime of exploitation, as well as the restraints placed on persons in positions of trust, power, and authority to refrain from sexual contact with minors. Those go a long way to ensuring that young people are protected.

The B.C. Civil Liberties Association raises an important point about how this legislation departs, from a recent tradition at least, of legislating against specific harms rather than against morality in general. The direction of this legislation in that broad sense is also one that I find difficult.

Other organizations such as the Canadian Federation for Sexual Health, formerly known as Planned Parenthood, that do a lot of sexuality education across the country, have said that we need to be putting more resources into educating people and young people about sexuality. They said that we need to put more resources into sexuality and relationship education and that would go some way toward dealing with those kinds of problems. They do not support the current legislation. They see the difficulties it causes for health education and for ensuring that young people are able to make mature and responsible decisions about sexual expression. This legislation would complicate that.

We need to get on with promoting the excellent legislation that is currently on the books, with teaching the law that we have currently on the books. I believe that would help all of us make better decisions about relationships, make better decisions about our sexual relationships. I will not be able to support the legislation as it currently stands.

Criminal Code
Government Orders

May 3rd, 2007 / 3:30 p.m.
See context

Liberal

John Maloney Welland, ON

Mr. Speaker, I am pleased to join in the debate on Bill C-22, an act to amend the Criminal Code of Canada regarding the age of protection.

This issue has been the subject of many private members' bills and proposed government legislation over many years and many studies by the Department of Justice.

It has also been the subject of much community interest, many white ribbon campaigns in strong support for raising the age of consent to 16 years of age while others have even advocated raising the age to 18.

Over the years the subject has generated numerous constituent letters, as well as press and editorial commentary in my riding of Welland. These representations have been heard and will be reflected in my support of the bill.

Bill C-22, an act to amend the Criminal Code regarding age of protection, amends the Criminal Code to raise the age from 14 to 16 years at which time a person can consent to non-exploitive sexual activity. The existing age of consent of 18 years for exploitive sexual activity will be maintained. This applies to sexual activity involving prostitution, pornography or where there is a relationship of trust, authority, dependency or any other situation that is otherwise exploitive of a young person.

Bill C-22 creates an exception with respect to an accused who engages in sexual activity with a 14 or 15 year old and who is less than five years older than the youth. It also creates an exception for transitional purposes for an accused who is married to a youth or who is the common law partner of a youth and is expecting a child with the youth and the sexual activity was not otherwise prohibited before the act comes into force. The bill maintains an existing close in age exception that exists for 12 or 13 year olds who engage in sexual activity with a peer who is less than two years older, provided the relationship is not exploitative.

The history of the age of consent has evolved considerably in the past century in that the existing Criminal Code prohibitions against sexual conduct with young people bears little resemblance to those that were in place as recently as 20 years ago.

Historically in Canada, the age of consent was 12 until 1890 when it was raised to 14. At no time has it ever been set higher than 14 in Canada. At one time Canadian criminal law did provide very qualified protection from sexual exploitation for females over 14. Between 1886 and 1988 there were several incarnations of a provision banning intercourse with a girl over 12 and under 16 who was of “previously chaste character”. This qualified protection for girls, not boys, applied only to intercourse and no other form of sexual contact.

In 1988 the qualified protection was revoked in favour of new offences called “sexual interference” and “invitation to sexual touching” that prohibit adults from engaging in virtually any kind of sexual contact with other boys or girls under the age of 14, irrespective of consent.

Introduced at the same time the offence of sexual exploitation also made it an offence for an adult to have any such contact with boys and girls over 14 but under 18 where a relationship of trust or authority exists between the adult and the child. This also means that child pornography includes any youth under the age of 18 regardless of consent.

The 1988 changes implemented more equitable, broad-sweeping protection for all young people regardless of gender, type of offence or the complainant's sexual history.

As time and further reflection have passed, an additional protection for youth has been advanced. In a previous Parliament, the Government of Canada tabled Bill C-2, the child protection act. As I do support raising the age of consent from 14 to 16, I was disappointed that Bill C-2 at that time did not do this, although I understand there was no consensus or agreement from the provinces which is required for this issue to move forward.

In its place the government proposed a new category of sexual exploitation that did not consider whether or not the young person, covering youth between 14 and 18 years of age, consented to sexual activity, but examined the relationship and motives of the accused.

The argument was that this provision should effectively prohibit any exploitive sexual activity between an adult and youth under the age of 18. I do think that this was a good provision and strikes at the heart of the intention of people who want to raise the age to 18. The call to increase the age of consent to 18 was all about protecting young people between the ages of 14 and 18 from exploitation and the new provision says that regardless of whether or not consent was given by the young person. I feel this is key. The nature of the power of dynamic in the relationship would be scrutinized by the court.

The current bill is not without its critics. One criticism of the bill that has been raised by those who generally support it is that the five year age exemption is too large. Rather than allowing a five year age gap, three years should be more than enough.

Some other supporters of the bill have proposed that the age of consent be set at 18. This would eliminate the anomaly of 16 year olds who can legally consent to have sex yet be unable to vote, serve in the military, smoke or drink. Many have argued that most teenagers do not have the maturity to handle the responsibilities that come with sex, such as practising safe sex and using reliable birth control. A more appropriate age of consent, they argue, would be 18, when one legally becomes an adult.

It is interesting to note that the most common age of consent in the United States seems to be either 16 or 18. Sixteen is the age of consent in Australia, Belgium, Hong Kong, Finland, The Netherlands, New Zealand, Norway, Russia, Singapore, the Ukraine and the U.K. Canada is now coming in line with these other countries.

Bill C-22 also addresses Criminal Code provisions regarding luring a child. Section 172.1 of the Criminal Code creates the offence of using a computer system to lure children for the purpose of committing certain sexual offences. The section lists various sexual offences, which depend upon the age of the child. The offence is committed if the child is under the particular age specified or if the accused believes the child to be under that age.

Subsection 172.1(3) sets up a rebuttable presumption that the accused believed the child was under the relevant age if there is evidence the child was represented to the accused as being under that age. There is no defence that the accused believed the child was over the relevant age unless the accused took reasonable steps to ascertain the age of the child.

New paragraph 172.1(1)(b) will make 16 the relevant age for the offence of facilitating the commission of an offence under section 151, which is sexual interference, section 152, which is invitation to sexual touching, subsection 160(3), which is bestiality in the presence of a young person, or subsection 173(2), which is exposure to a young person. These offences are being added to a list that previously consisted only of section 280, which is abduction of a person under the age of 14.

The relevant age for all four of the added offences will be raised from 14 to 16. Thus, the use of a computer system to facilitate the commission of these offences when the complainant is less than 16 is being made an offence.

Since 16 will now be the relevant age, paragraph 172.1(1)(c) is amended to remove reference to the age of 14 for offences under sections 151 and 152 and subsections 160(3) and 173(2). Henceforth, luring someone under the age of 14 by means of a computer system will be an offence only if it is done to facilitate the commission of an offence under section 280(1), which is, again, the abduction of a person under 16.

Members of our police forces welcome Bill C-22 for the very message it sends. They see a fair number of people between the ages of 14 and 16 being manipulated by older predators. Any new tools the police can use to stop predators are most welcome.

The bill will also change the way police investigate child pornography, underage prostitution and Internet luring. There will be a new group of kids being protected and a new group of pedophiles being charged.

Protecting our children, however, goes beyond a simple and arbitrary increase of the age of consent to sexual activity. It means addressing the broader issues of the safety and well-being of our children. Our objective is to develop and maintain effective, comprehensive measures to support provincial and territorial measures to improve public safety for children and to protect children from serious injury and even death at the hands of adults.

The achievement of this objective rests in a collaborative effort by the provinces, the territories and the Government of Canada. While the provision of services to children who are in need of protection is the responsibility of the provinces and territories, the assurance that appropriate offences and penalties are available for serious harm done to children remains the responsibility of the Government of Canada. By targeting extreme forms of harm through the Criminal Code, the Government of Canada will provide strong support for provincial and territorial initiatives to protect children.

Criminal Code
Government Orders

May 3rd, 2007 / 11:25 a.m.
See context

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, I rise today to speak to Bill C-22, which has as its principal design to increase the age of consent for sexual relations from age 14 to age 16.

The critics of the bill have characterized it in a number of ways: social engineering run amok; the attempt on the part of the legislature and on the part of the state to enter into the bedrooms of the nation, once again; to discriminate against our youth; and an attempt to impose morality, which is the one that we hear most often, by those individuals in our society who believe youth of ages 14 and 15 should not engage in sexual relations.

If we study the history of the legislation and, in particular, a number of the private members' bills, there is some validity to that last charge with regard to those prior bills. It is not valid with regard to this legislation.

Because it is to some degree an issue of conscience, we as a party will treat the bill as one that will not be whipped, that individual members of our party will vote according to their values and their conscience.

I will be voting in favour of the legislation. If we go to the essence of the legislation, it is says that at this time in our history as a country, as a society, it is appropriate in order to protect our youth of the ages of 14 and 15 from being exploited by predators. The best mechanism for doing that is this legislation.

It has two significant components. We are raising the age from 14 to 16 in terms of consent to sexual activity. We are also putting in what is known in legal terminology as a near age defence, and this is absolutely crucial.

The near age defence will allow individuals, couples, to have sexual relations where the age gap between the two persons is no more than five years. That will not constitute criminal activity. If it is beyond five years, then it will be criminal activity and will call for the sanctions that are provided for in the statute and in the Criminal Code more generally.

To give a quick history, the age of consent originally in Canada until the early 1900s was 12. I know this comes as a shock to a lot of people. We got that age from England, as we took its statutes and as our jurisprudence broadened itself, and we drew the age 12 into Canada. It stayed there until the early 1900s when it was raised to age 14.

There was more tinkering with the legislation and then fairly substantial was work done on the age of consent through the late seventies, into the eighties and early nineties.

The approach at that time was to look at the relationship and to pass legislation that said in effect that this relationship, because it is inherently exploitive, would be illegal. As an example, if the relationship was one of authority to one of subservience, that was exploitive by its very nature and therefore illegal. Therefore, a number of sections were passed during that period of time.

Interestingly, in the legislation we dealt with in the last Parliament, Bill C-2, which was really the child pornography legislation, we took a fair amount of evidence on the age of consent.

What came out from the prosecutors and police who had to pursue the exploitive type of crimes was that the sections were grossly ineffective in dealing with that type of exploitation and in particular with the 14 year olds and 15 year olds. The charges are rarely laid any more because we simply cannot get convictions. That was the word we got from the prosecutors and it is backed up by strong statistics in that regard.

There is a bit more history in terms of legislative attempts. The Reform, the Alliance, even the Conservative members of Parliament primarily but not exclusively have brought forward legislation over the last 10 to 15 years to increase the age of consent. Without exception they did not put in any near age defence. We have to appreciate what we are talking about in terms of numbers.

In the last few years there are roughly 815,000 youth in that 14 year old and 15 year old category. The estimate is that approximately 125,000 of them are engaging in various forms of sexual relations. They would be caught by this legislation. Roughly 2,500 to 3,000 are or have been in relationships where the age gap was greater than five years, moving on from six and above. Those are the numbers.

The legislation that we saw coming before the House in private members' bills would have had the effect of criminalizing some of our youth. We have to appreciate in the legislation that simply raising the age from 14 to 16, would have had the effect of criminalizing 125,000 of our youth. Both parties to the relationship would have been engaged in criminal activity because one of the parties was having sexual relations with somebody who was under 16. That was a real problem and one that I have to say those parties in their various positions did not appreciate.

I finally convinced the former justice minister from Manitoba, who is now the President of the Treasury Board, to move an amendment to Bill C-2. We did it jointly. The amendment would have had the effect of raising the age with the five year near age defence. It took some convincing. I think his staff was fairly instrumental in convincing him but that is a bit of an aside.

I am making this point because I want to take a shot at the Liberals. When the amendment came before the justice committee in the last Parliament, the Liberals and the Bloc both voted against it and the amendment went down. It never got to the House. When I heard the Liberal member from Montreal ranting about delay, the reality is this particular piece of legislation could have been incorporated into Bill C-2. The attempt was made and it would have been in effect now for the better part of two years.

If there is any delay, it certainly lies in the lap of the Liberals and the Bloc for not supporting the amendment at that time. Interestingly, two years later, I think because of a great deal of political pressure, they finally have come on side.

There are still some problems with this legislation. We have heard that today. I am going to quickly go through it. I moved amendments on each one of these in committee, two of which were ruled out of order, one of which the Liberals had also moved. That dealt with the section that is clearly discriminatory, so found by a number of our courts including two courts of appeal, in Ontario and Quebec.

With regard to the discriminatory nature of section 159, which prohibits anal intercourse under the age of 18, male or female, that has been struck down repeatedly. Neither the Liberal Party in the 13 years when it was in power nor the Conservative government currently has seen fit to move to amend the code and take that section out. By the way, I introduced a private member's bill yesterday on this. In any case, it was ruled out of order in terms of amending Bill C-22.

There is another amendment that I moved. We heard a good deal of evidence about the concern of the legislation deterring young people in the age category of 14 years and 15 years from coming forward to get health care if they suspect they have a sexually transmitted disease because their partner may be five or more years older than they are. What I was trying to do in that amendment was to provide a protection within the Canada Evidence Act.

An example is if an individual came forward and said that he or she had a disease and needed treatment. Because provincial legislation requires the doctor or counsellor who is treating the individual to report that the other individual, the older person, has that disease, the younger person may decide that he or she is not going to give out that information and therefore will not get treatment or counselling.

The legislative amendment I proposed to the Canada Evidence Act was to provide people with the privilege that if they gave that kind of information, it could not be used against them or their partner in any subsequent criminal prosecution. Again, that was ruled out of order. I have prepared the amendment by way of a private member's bill, which I will be tabling in the House probably next week.

The final amendment I made was with respect to what I saw as a jurisdictional conflict between the federal government and the provincial government having to do with marriage where the age gap is greater than five years. There are jurisdictions that allow judges, along with parents and guardians, and/or ministers, usually attorneys general, to allow an individual who is younger than the stated age in the legislation, which generally is 16 to 18 across the country, to marry, usually when the couple is expecting a child.

If a judge allowed the marriage to go ahead even though the age gap was greater, the police and the prosecutors could bring that couple back, and the senior person in the relationship could end up being charged with a criminal offence. The judge would have to decide whether to convict that person. There is that anomaly.

I moved an amendment which was accepted by the committee. If a couple has the authority to get married even though the age gap is greater than five years, there is that kind of authority from the provincial government so that it would not be an infringement of this section of the Criminal Code.

In conclusion, this piece of legislation is not based on the imposition of a particular set of morals. It is about protecting our children.

Around the globe roughly 60% of the population lives in jurisdictions where the age of sexual consent is 16 or older. There is no clear pattern. We cannot say that some countries are more liberal or that others are more conservative; it does not seem to follow any pattern.

My analysis of it from some of the countries I have looked at is that we simply base it on facts, not on morality, and we say that at this time in our society we require this type of protection for our youth. That is what we have done here. It is appropriate that we have done so. As I have said earlier, I will be supporting this bill when it comes to its final vote.

Broadcasting Act
Private Members' Business

April 20th, 2007 / 1:30 p.m.
See context

Liberal

Lui Temelkovski Oak Ridges—Markham, ON

Mr. Speaker, it is a pleasure to again speak to Bill C-327, an act to amend the Broadcasting Act (reduction of violence in television broadcasts).

This would amend the Broadcasting Act to grant the CRTC the power to make regulations respecting the broadcasting of violent scenes. I commend my colleague, the member for Rosemont—La Petite-Patrie, for raising this issue.

I do not plan on supporting the legislation but it certainly concerns a serious matter and it can only benefit Canadian society that violence be examined and debated here in the House of Commons.

As the father of four children, I certainly share my colleague's concerns about the levels of violence broadcast on television to young children. My children are older now, but violence on television is certainly an issue I had to deal with while they were growing up.

However, I am not sure the legislation is now necessary. The objective of Bill C-327 is consistent with the current regulatory practice of the CRTC and self-governing standards from both public and private sector broadcasters.

The CRTC already sets out policy and rules that govern violence on television and, more important, are a mandatory condition of a licence for all broadcasters. Moreover, there is an established and enforced requirement that does not allow violent television programming to air before 9 p.m. eastern time.

Viewer advisories referencing unsuitable programming for children are communicated through voice and print before programs. This is encouraging news but we must not be complacent and must be ever vigilant to ensure that images our children are exposed to are healthy.

On the subject of violence, the government has so far done very little to counter my constituents' concerns about violence in our midst and criminal justice issues in particular. My position on criminal justice is that an effective and comprehensive approach to crime is one that deals with every aspect of fighting crime, preventing crime, catching criminals, convicting criminals through competent and quick administration, and rehabilitating criminals.

I am committed to appointing more judges, putting more police officers on the street and more prosecutors in the courts, protecting the most vulnerable, including children and seniors, and giving our youth more opportunities to succeed.

This is where the Liberal justice plan comes into play. The Liberal offer was originally made last October as an attempt to get effective criminal justice legislation passed through Parliament as quickly as possible with the goal to protect Canadian communities.

Unfortunately, the Conservative government has again rejected Liberal efforts to fast-track a number of its own justice bills. This is a bizarre and puzzling decision on the part of the government.

The Liberal opposition has tried three times in the last six months to expedite a number of government bills dealing with justice issues and the Conservatives have failed to collaborate with us. My question is simple: Why does the Conservative government not cooperate with Liberals to get its own criminal justice legislation passed? After all, I recognize the importance of effective criminal justice legislation.

As a member from the GTA, I know all too well the number of firearm offences that have occurred in my area. Thankfully, gun-related deaths have subsided and I applaud the efforts that have been made by stakeholders in the city, at all levels, in reducing the number of gun crimes.

The work is not yet done and the government could certainly help by collaborating with the opposition to pass important and effective criminal justice legislation.

While I am speaking to these issues, it is important to note that the present Liberal justice plan is in addition to the important justice initiatives that were taken while the Liberals were in power. This is something that the Conservatives do not seem to want to recognize but they should give credit where it is due.

First, Canada's first comprehensive national security policy, a strategic framework and action plan designed to ensure that the government can prepare for and respond to security threats while still maintaining Canadian values of openness, diversity and respect for fundamental rights and freedoms.

Second, the creation of a national sex offender registry to protect Canadians from violent sex offenders.

Third, further protection of our children through Bill C-2 from the 38th Parliament. This bill would have strengthened prohibitions against child pornography by broadening the definition of child pornography to include audio formats as well as written material. It would have also increased the maximum penalty for child sexual offences.

Still on the subject of violence, there is another matter the government should start taking seriously. I am amazed that the government has not introduced animal cruelty legislation to the House. The only animal cruelty legislation we have seen is from Liberal parliamentarians.

I commend my Liberal colleagues for introducing private member's bills on this subject. It seems that only the opposition is concerned about this very serious issue. We have seen a whole array of justice bills introduced by the government. Why has animal cruelty not been one of them?

Different governments have attempted over the years to pass this kind of legislation but the Conservative government has not taken it seriously. The government owes an explanation to Canadians as to why it has not introduced legislation to better protect our animals, over which we have an important responsibility.

Those are the issues my constituents are concerned about and they expect to see action from the government. Instead, they see criminal justice legislation stalled and, in the case of animal cruelty, ignored by the government.

I commend my colleague from Rosemont—La Petite-Patrie for bringing forth legislation dealing with violence. The bill is not necessary as I am satisfied that there are already sufficient safeguards to protect our children.

The real onus lies with the government. There are a number of things that it can do to immediately make our communities safer. I have been pleased to outline some of these thing today, and they include working with the opposition to get effective criminal justice legislation passed, as well as immediately introducing an animal cruelty bill as a piece of government legislation. I look forward to continuing to follow these debates.

March 29th, 2007 / 9:30 a.m.
See context

Steve Sullivan President, Canadian Resource Centre for Victims of Crime

Thank you, Mr. Chair.

It's a pleasure to be before the committee on this bill. It's one that, Mr. Chair, you and I have discussed in the past in your own attempts to pass similar legislation, which we supported. We supported as well the measures in Bill C-2, which this committee dealt with a couple of years ago and which I think provided added protection for children up to the age of 18, with more discretion, obviously, than this bill.

I won't say very much. It's rare that we come to a committee when everyone seems to agree, at least on the principles of the bill. There's not a whole lot for us to say.

I think I'll echo what Mr. Gillespie said about the issue of the Internet and the discussions that go on within those chat rooms between people who would seek to exploit children.

About the lower age of consent, I was at a conference recently with investigators and crown prosecutors who deal with these kinds of situations, and this was a topic of discussion. One of the investigators gave us a demonstration. He went into a chat room, posing as a girl who was 13. We could tell the number of men who wanted to initiate a discussion with that officer by the pings. It was just ping, ping, ping—one ping after another. It was quite disturbing to see. This was one o'clock in the afternoon, and to see that many people out there, many of whom would, I think, seek to exploit that child—

The officer talked as well about how, when they initiate discussions, some of these individuals will try to keep the discussion going with that child until they reach the age of 14. That was a concern as well. I think this bill will add a tool to the repertoire of law enforcement and will better protect children. It's important to keep the focus on the motivations of the adult and not on the consent of the young person. This is focusing on individuals who seek to exploit children for their own purposes.

I'll just briefly mention one other issue. We've recently testified before some your colleagues on the access to information committee, which is reviewing PIPEDA, the privacy legislation. We're trying to get the debate about privacy—in that case the privacy of Internet subscribers—expanded to include the need to protect the privacy of these children, whose images are being traded on the Internet like baseball cards. We have to begin to deal with the realization that we have young people who have access to Webcams, who are being manipulated by older individuals to share their photos. We need to begin to protect those privacy rights as well.

Thank you, Mr. Chairman.

March 27th, 2007 / 9:40 a.m.
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Nichole Downer Programs Consultant, Canadian AIDS Society

Thank you very much for this opportunity to present to you today.

We recognize that a lot of our points have been presented. Being the last group, we would like to take the opportunity to reinforce several themes that are evident in the presentations today.

The Canadian AIDS Society is a national coalition of over 125 community-based AIDS service organizations across Canada. We are dedicated to strengthening the response to HIV/AIDS across all sectors of society and to enriching the lives of people in communities living with HIV/AIDS.

As an organization dedicated to decreasing HIV/AIDS infection rates, we are concerned about the pending legislation to increase the age of consent for sexual activity from 14 to 16 years of age. Furthermore, the proposed amendments do not address an existing law prohibiting anal intercourse for individuals under the age of 18.

The Canadian AIDS Society believes the law should not discriminate by type of sexual activity. First, there are already protections in place under Bill C-2, protection of children and other vulnerable persons. Passed by Parliament in July 2005, Bill C-2 created new protections for youths under 18 years of age against exploitative sexual activity. The Canadian AIDS Society supports this bill. Bill C-2 takes into account the nature and circumstance of the relationship, including the age of the young person, the difference in age between the youth and the other person, how the relationship evolves, and the degree of control or influence exercised over a youth under 18.

Second, increasing the age of consent could result in youths being more secretive. The Canadian AIDS Society is concerned that increasing the age of consent could result in youths being more secretive about their sexual practices and in youths not seeking out the information they need. This will place youths at an increased risk of contracting HIV and other sexually transmitted infections.

Almost one-quarter of students in grade 9 feel embarrassed about seeing a physician or a nurse if they suspect they may have an STI. Raising the age of consent could have the negative impact of further decreasing the number of youths accessing the information from health providers if they are under the age of 16. This is problematic, as research in Canada has shown that the average age of first sexual intercourse is 14.1 for boys and 14.5 for girls.

A study in Britain showed that youths are unlikely to seek information about contraception and sex if they are under the age of consent, because of worries about law and confidentiality. The studies show that youths under the legal age of consent in Britain were six times more likely than those over the legal age of consent to give the fear of being too young as the reason they did not seek out sexual health information.

Regardless of the age of consent, youths will continue to have sex, and we need to make sure they have the information they need. As we know the average age of first sexual intercourse is under 16 in Canada, raising the age of consent could result in many youths engaging in their first sexual intercourse while being fearful of accessing the information they need.

Not enough research has been done in this area to alleviate the fears that raising the age of consent could have detrimental effects on the sexual health practices of youth. Therefore, it would be irresponsible to raise the age of consent without knowing the full effects of this action. The Canadian AIDS Society supports more research being done in this area.

Third, the close-in-age exemption is not a solution. The close-in-age exemption has been used as a solution to fears that Bill C-22 will criminalize youth sexual behaviour. We do not believe this is an adequate solution.

While we understand the rationale behind the creation of a close-in-age exemption and that this exemption would be increased to five years under Bill C-22, the bill places unnecessary restrictions on youth, while not addressing the reality of sexual abuse. Given that all exploitative activity is currently illegal involving people under 18, this law makes the situation for youths unnecessarily complex.

Most youths, and even adults, do not have the legal expertise to know about the criteria and exemption, or to be able to determine if their relationship meets them. It is very likely that this exemption will be misunderstood or forgotten, and the age of consent will generally be understood to be 16 years of age. Many young people would assume their relationships are illegal and not seek the information and help they need.

Using age as a factor to determine sexual exploitation does not address the reality of sexual abuse. In cases of sexual coercion, a person is no less abused if the perpetrator falls within a five-year peer group. This legislation is focusing on the wrong group of people. Criminalizing the sexual behaviour of youths will do nothing to stop exploitative activity. As all exploitation of persons under the age of 18 is currently illegal under Bill C-2, more resources need to be devoted to pursuing cases involving sexual exploitation and abuse.

Fourth, the focus should be on comprehensive HIV/AIDS and sexual health education. School was reported as the main source of information about HIV/AIDS by 67% of males and 58% of females in grade 11. However, 27% of grade 7 and 14% of grade 9 and grade 11 students had not received any instructions on HIV/AIDS education over the past two years.

The Canadian AIDS Society is concerned that if the age of consent is raised from 14 to 16 years of age, prevention and education in schools will not be available for youths under the age of 16, decreasing further the amount of information provided to them. Research evidence has shown that in the long term, prevention messages are more effective when they're delivered early, and they are effective at reducing risky sexual behaviour. We also know there were 212,000 high school dropouts in Canada in 2004-05. The legal minimum school leaving age is 16 in most provinces in Canada. Therefore, not delivering sexual health education in schools before the age of 16 would mean that many youths are not receiving critical prevention messages.

The Canadian AIDS Society believes the government should be focusing its efforts on promoting consistent, comprehensive HIV/AIDS and sexual health education across Canada. The best way to protect and support youths is to ensure that educational services are available to inform them about their rights and options, and about the risks and benefits of engaging in sexual activity. Educating youths to make informed choices that are right for them is better addressed through parental guidance and comprehensive sexual health education than it is by using the Criminal Code.

Fifth, the age of consent should be universal and not discriminate by type of sexual activity. According to the Criminal Code, the age of consent for anal sex is 18, while the age of consent for vaginal intercourse is currently 14. Section 159 of Canada's Criminal Code states that people who engage in anal intercourse are guilty of either an indictable offence, risking being given a prison term of ten years or being found guilty of a summary offence.

The unequal treatment of anal sex has been found unconstitutional in the Court of Appeal for Ontario, the Court of Appeal of Quebec, the B.C. Court of Appeal, the Alberta Court of Queen's Bench, and the Federal Court of Canada, yet the federal government refuses to recognize its unequal treatment and change the law. The Court of Appeal for Ontario recognized the potential for harm when the age of consent is higher by striking down the age of consent of 18 for anal intercourse.

In the ruling, the judge stated:

Health risks ought to be dealt with by the health care system. Ironically, one of the bizarre effects of a provision criminalizing consensual anal intercourse for adolescents is that the health education they should be receiving to protect them from avoidable harm may be curtailed, since it may be interpreted as counselling young people about a form of sexual conduct the law prohibits them from participating in. Hence, the Criminal Code provision ostensibly crafted to prevent adolescents from harm may itself, by inhibiting education about health risks associated with that behaviour, contribute to the harm it seeks to reduce.

The Canadian AIDS Society hopes you will reconsider increasing the age of consent based on the issues raised above. The solution to protecting youths from sexual exploitation is not found by placing restrictions on them. Bill C-22 has the potential to affect the health and well-being of youths. It is irresponsible to enact Bill C-22 without solid evidence to the contrary.

Therefore, our recommendations are that more resources be devoted to pursuing cases of sexual exploitation and abuse; that more research be conducted into the impact the age of consent has on providing sexual health education and youth confidence in accessing health professionals; that section 159 of the Criminal Code be removed and the law regarding anal sex be made consistent with the law on vaginal intercourse. Should Bill C-22 be passed, plain-language information on the new law and what it means needs to be communicated to youths, particularly around the close-in-age exemption.

Thank you.

Criminal Code
Government Orders

February 13th, 2007 / 1:50 p.m.
See context

Conservative

Myron Thompson Wild Rose, AB

Mr. Speaker, I could not resist getting up because the member went on for quite a while about how well the Criminal Code works in this country's justice system. He knows very well that there are tens of thousands of victims who would not necessarily agree with that and of course thousands of supporters of these victims who certainly would not agree.

The member is a lawyer. I bring that up to him every once in a while in committee because he likes to talk in legal tongues quite often, and it makes it a little difficult for those of us who are not lawyers to understand quite what he is saying. I almost gathered from his speech that he was saying the Conservatives are going back to good Liberal law with Bill C-35, and I thought it was rather strange that a lawyer would suddenly want to be a comedian.

Going back to good Liberal law? I have been here 13 years. I have seen good Liberal law in action. I have seen Liberals bring forward omnibus bills, which he said should be brought forward, in order to deal with all the legislation, omnibus bills, for example, like Bill C-2, which was an act to protect children. That was the purpose of it.

Yet in regard to that omnibus bill, although there are many aspects of it I wanted to support, I could not, because the Liberals kept insisting that child pornography might have something like a public good or a useful purpose. It was in the legislation. How can we go from an omnibus bill that would address such an evil thing as child pornography to that kind of terminology when the bill contained some things that were pretty good?

It makes absolutely no sense to me whatsoever that the Liberals would dare bring forward an omnibus bill that would allow child pornography. What has happened in 13 years is that child pornography has now become a $1 billion industry. There are great arrests going on now, but this should have been prevented 13 years ago when that Liberal government had a chance.

I do not need any lectures from that member or anybody on that side because I have seen them in action for 13 years. They do not take their justice system seriously. They do not take protecting society seriously or they would not have come up with some of the garbage I saw throughout those years. I think the member would humble himself a wee bit instead of talking about going back to good Liberal law. He should think about it.

February 13th, 2007 / 9 a.m.
See context

Steve Sullivan President, Canadian Resource Centre for Victims of Crime

Thank you, Mr. Chair, committee, for allowing us to come today to talk about issues related to your review of PIPEDA. I don't think we'll be very long in our opening remarks. Our issues are pretty specific. We just really want to raise those for you, and we'll be happy to try to answer any questions.

Very briefly, the Canadian Resource Centre for Victims of Crime is a national non-profit advocacy group for victims. We work with victims from across the country in providing direct advocacy services. We also try to raise issues with all levels of government, advocate on behalf of victims to promote their rights and their interests, and promote laws to better protect them. It's that latter role that I'm here in today, to try to promote some amendments and raise some awareness on issues that we think require some attention to better protect children, in this case, from Internet child sexual exploitation.

I should mention that we are funded by the Canadian Police Association. We have been sponsored by the police association since 1993, so we have had a lot of interaction with various law enforcement officers across the country. Some of those are investigators who work directly with these issues.

Contrary to a lot of public opinion, I think what law enforcement unfortunately faces on a day-to-day basis in dealing with these issues is not children frolicking on beaches or pictures of kids running around in their underwear; it is the rape and torture of children, sometimes babies, by men, and often their fathers or uncles. Those images are kept and put on the Internet for anyone and everyone to see. They are traded like baseball cards. There are thousands of images of children all around the world. Last week, we saw a huge bust resulting from Australia that has had impacts in many countries, Canada included.

One of the issues we want to speak to today is what the impact of PIPEDA is on law enforcement's efforts to try to address these issues. In our interaction with the members of the Canadian Police Association that we deal with from time to time, and also in following media reports, it seems there is some confusion with regard to the PIPEDA legislation and whether or not Internet service providers can or should provide information to law enforcement regarding subscriber information, like people's names and addresses. It's our position, very succinctly, that ISPs should frankly not have discretion to share that information with law enforcement efforts. At the very least, with this legislation, we need to make it clear that ISPs can and should share information.

We have provided a brief. I apologize for not getting it to you sooner so that it could be translated, but we have left copies with the clerk.

The issue of child pornography has been raised in various committees over the last couple of years. We sent a brief to all members of Parliament six or seven years ago about child pornography, along with some recommendations that we had made at that time. Some of them have been implemented, like the creation of a luring offence and the creation of a national tip line, which is now in operation and had I think 6,000 tips in the first year of operations alone.

Various other committees have heard from experts who have far more expertise in this area than us. I just want to read a very quick quote from OPP Detective Inspector Angie Howe, who spoke to a Senate committee in 2005 on Bill C-2, which had a variety of different measures, some of them regarding child pornography. What she said then was:

The images are getting more violent and the children in the photos are getting younger. As recently as one year ago, we did not often see pictures with babies, where now it is normal to see babies in many collections that we find. There is even a highly sought-after series on the Internet of a newborn baby being violated. She still has her umbilical cord attached; she is that young.

I say that not to shock you or disgust you—although I suspect you are disgusted—but just to really get the message across of what it is law enforcement is fighting.

In our efforts to raise these issues, we have heard of the notion of Big Brother and that law enforcement wants access to all this information. What they're doing every single day is sitting in front of a computer, sifting through tens of thousand of images. One accused person could have 10,000 images of children being raped and tortured. That's what law enforcement is dealing with, and those are the children we come here today to try to speak for.

You're dealing with PIPEDA, which is an act relating to privacy. Can you imagine any greater violation of your privacy than having the most awful images of you captured for anyone and everyone to see? Unfortunately, no one is speaking for those children. No one is talking about their privacy rights.

We have a Privacy Commissioner who I'm sure does an absolutely fabulous job on a variety of issues, but as far as I know, she has not once spoken for those children. Later, I'll refer to a letter she wrote to us about the PIPEDA legislation and what the discretion really is for ISPs.

In the letter, she says that ISPs may look at this on a case-by-case basis—frankly, a case-by-case basis is not good enough for us anyway—but nowhere did she talk about what her office is doing to raise the interests of those children. No one is speaking for them, and that's one of the reasons why we came here today. We're here to try to lend a voice to their concerns and their issues. What's being been done to protect their privacy rights? We have to balance that with the privacy rights of Internet users, but part of the equation has to be the privacy interests of those children.

The issue for us has been raised in the media by law enforcement and in a couple of court cases. It's with respect to subsection 7(3) of the legislation, which sets out the provisions where an organization may disclose personal information. The first condition, as you will see, is with a warrant. Obviously, if police go get a warrant, then the ISP has to comply.

There is, unfortunately, some confusion with the second stipulation, which refers to a response to a request by a government institution that has lawful authority to obtain the personal information for the purpose of enforcing a law, carrying out an investigation, or gathering intelligence. It's that issue of “lawful authority” I think that has led to some confusion, and our basic suggestion to you is to clarify that.

There was a case in Ontario in which Toronto police were investigating someone. They sent a letter of request for information, pursuant to a child exploitation investigation, to Bell Canada. Bell Canada cooperated with that and provided information to the police, but this was challenged in court. At that time, the court said that the section I referred to does not establish what “lawful authority” is. The court went on to say that really, in that court's mind, a warrant was needed. Fortunately, that decision was overturned by a higher court. And just for your information, the search led to the discovery of a large child pornography collection.

But that's the issue that this committee should task itself with. What is lawful authority? If law enforcement were here to speak to this—and I would encourage you to actually have some of the investigators come to talk about their experiences with PIPEDA—I think what you will find is that a lot of the larger ISPs tend to cooperate with law enforcement even if they don't get warrants but just have letters of authorization. Not all of them do, though. For some ISPs, use of PIPEDA is left to their interpretation. We're asking for your committee to clarify that or recommend that it be clarified.

People ask why police don't just get warrants. One of your previous witnesses, I think from the industry department, referred to the speed with which these things sometimes happen. At the time, I think the chair actually asked a question about a case from St. Thomas, where there was live abuse going on with a child. Sometimes there just isn't time to go get a warrant.

The other thing, from our perspective, is that police don't need a warrant. What we're talking about is someone's name and address, which they can get off a licence plate. They don't need a warrant to get your name and address if they see you speeding away from the scene of a crime or failing to stop. Are we really going to give better protection or more enforcement for people who fail to stop than we are for those who might be abusing children?

In some jurisdictions, some pawn shops are required to have information about customers who come in and sell merchandise. That information can be used to track back stolen property. Is stolen property really more important than our children?

That's the basic thrust of our testimony here today. Again, we're not experts in law enforcement, but these are the concerns that law enforcement have expressed both publicly and to us, if you look at some of the media reports. Just last week, over this bust, you'll note that the head of the National Child Exploitation Coordination Centre, from the RCMP here in Ottawa, said we have to rely on ISPs to help us. Frankly, we don't think there should be any discretion for ISPs to help law enforcement, certainly in these cases. At the minimum, though, we would ask this committee to clarify subsection 7(3).

We would also ask that some consideration be given to perhaps amending the statement of principles of the legislation, to make it clear that the legislation was never intended to negate or interfere with the moral and ethical duties of companies. Companies will often complain about the costs of these things, about what it costs them to cooperate with law enforcement. It's our argument that we all have a duty to cooperate with law enforcement. We're seeing now, in British Columbia, twelve citizens potentially giving a year of their life to jury duty. We all have to do that. There are consequences and there are costs for us to do that.

We work with women who are abused by partners, who testify in court and put themselves sometimes at great risk to assist with the enforcement of the law. We're all part of the solution here, and I think it's incumbent upon ISPs to step up and do their part.

I can speak a little more to the cost issue if that's something you want me to speak to.

The last issue I would raise is whether this committee could use its influence to encourage the Privacy Commissioner to take a more active role in protecting the privacy interests of children.

Thank you, Mr. Chair.

February 5th, 2007 / 12:20 p.m.
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Senior Counsel, Criminal Law Policy Section, Department of Justice

Carole Morency

That is post the enactment of Bill C-2.

February 5th, 2007 / 12:20 p.m.
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Senior Counsel, Criminal Law Policy Section, Department of Justice

Carole Morency

No, and in particular following the reforms that were enacted as part of the former Bill C-2, raising the sexual exploitation offence from five to ten years at the maximum, it is consistent.

November 23rd, 2006 / 3:55 p.m.
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Program Director, Aboriginal Legal Services of Toronto

Jonathan Rudin

Thank you.

Again, I apologize for my lateness. I also apologize on behalf of Marisha Roman, our vice-president, who was with me last month in Ottawa. She very much wanted to be here today as well, but she came down with the flu this morning, had to leave work, and was not able to make it.

We are very pleased to be appearing here again before the Standing Committee on Justice and Human Rights. Since our last appearance before you was just a month ago, we'll dispense with the background information on our organization, as we trust it's relatively fresh in your mind. We first want to thank the members of the committee for its consideration of our submissions regarding Bill C-9.

We're here today to discuss Bill C-10, a bill that amends the Criminal Code. Prior to commenting specifically on these amendments, we feel it's important to address what is, for us, the disturbing trend of the increasing reliance on minimum sentences in the Criminal Code.

This trend did not begin with the current government. Bill C-2, passed in the last Parliament, added minimum sentences to 11 sexual offences. In some cases, the minimum sentences were as low as 14 days. It appears that often the only explanation for the imposition of a minimum sentence is to prevent judges from considering a conditional sentence. Minimum sentences of 14 to 90 days cannot seriously be justified for their ability to deter crime or to lead to a change in behaviour of offenders while incarcerated.

In our discussion before the justice committee last month, we spoke about the ability that judges have to craft conditional sentences that can address the root causes of offending behaviour without sacrificing community safety. In fact, a well-crafted conditional sentence will lead to increased community safety. Unfortunately, increased reliance on minimum sentences means there is less room for conditional sentences.

We would like to raise four specific concerns with respect to Bill C-10 and make one suggested amendment. Our concerns are: one, we believe the manner in which the bill deals with hybrid offences is unconstitutional; two, too many minimum sentences start with penitentiary terms; three, there is no reason to believe that minimum sentences deter crime; and four, the bill will increase aboriginal overrepresentation in prison. Our suggested amendment is that the bill allow for a judge to avoid the imposition of a minimum sentence in exceptional circumstances.

We will start with our concerns.

At our last appearance before the committee, we noted that one of the problems with Bill C-9 was that it gave the Crown the ability to decide whether an offender could receive a conditional sentence, based on whether the Crown proceeded summarily or by indictment. This problem is even more acute in Bill C-10. A number of offences in Bill C-10 are hybrid offences. There are no minimums if the Crown proceeds summarily. There are minimums if the Crown proceeds by indictment. In some cases, these minimums start at three years' imprisonment.

For example, a first-time offender charged with unauthorized possession of a prohibited or restricted weapon that is loaded or near ammunition will, if the Crown proceeds summarily, have all sentencing options available. On the other hand, if the Crown, in its sole discretion, chooses to prosecute by indictment, the minimum sentence is three years' imprisonment.

Such an arrangement places a great deal of unchecked power in the hands of the Crown. It also raises very serious concerns that the section violates the protection against cruel and unusual punishment found in the Charter of Rights and Freedoms. We will participate in any constitutional challenge against these provisions of Bill C-10.

Secondly, we are concerned by the increased number of minimum sentences that start at three years' imprisonment. While there are some individuals who, for public safety, must be sentenced to penitentiary time, this bill casts the net too wide. Members of this committee should be under no illusion that a three-year sentence will lead to positive change in the lives of offenders. Information we have received from Correctional Service Canada in Ontario indicates that individuals sentenced to two- to three-year sentences will receive no substantive programming at all in penitentiary prior to their release.

This bill will result in some individuals with little or no prior involvement with the criminal justice system going directly to the penitentiary. Being incarcerated with the most dangerous offenders in Canada will give these people the opportunity to learn new skills, but not, unfortunately, the skills we would want them to learn.

We have to be realistic about what happens to people when they go to penitentiary. In most cases, they come out worse than when they went in.

Third, at the heart of this bill is the belief that minimum sentences deter people from crime. Since much of this bill is concerned with increasing the minimum sentences for offences where minimum sentences already exist, the assumption must be that higher minimum sentences deter people even more. The fundamental problem with this theory is that there is no evidence to support it. Studies by the eminent British criminologists Andrew Ashworth and Andrew von Hirsch both concluded that deterrence in the criminal justice system comes from the probability of detection rather than consideration of potential punishment.

The penalty for first degree murder is life imprisonment without parole for 25 years, yet despite this most severe mandatory minimum sentence, gun violence and gun death were quite prominent last year. If a 25-year mandatory minimum did not deter the most serious of gun crimes, why should we expect that shorter minimums would accomplish the task?

Our final concern with the bill relates to aboriginal overrepresentation. It must always be kept in mind that reliance on deterrence as a theory for punishment has a significant impact on aboriginal people. As we noted last month, despite making up only 3% of the Canadian population, aboriginal people comprise 22% of those in Canadian prisons. Aboriginal people know better than anyone else that doing the crime means doing the time, yet rates of aboriginal over-incarceration continue to rise. In large part, this is because much of aboriginal offending is not calculated organized crime, but rather an unthinking response to immediate pressures. Addictions, interpersonal violence, a sense of hopelessness, and the legacy of government practices such as residential school and mass adoptions all play a large role in explaining why aboriginal people commit crime. This does not excuse the behaviour, but we need to understand that the threat of minimum sentences will do nothing to address the root causes of aboriginal offending. It will merely lead to more aboriginal people being sent to jail for longer and longer periods of time.

Why should Canadians care that our jails are becoming increasingly the preserve of aboriginal people? After all, if aboriginal people commit crimes, why should they be exempt from jail, the most serious sanction the criminal justice system provides?

To answer these questions it's helpful to return again to the decision of the Supreme Court of Canada in Gladue. When discussing aboriginal overrepresentation, the court said:

These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.

Aboriginal overrepresentation speaks to the failure of the criminal justice system to address the root causes of aboriginal offending. The result of paragraph 718.2(e) and the Gladue decision has not been that aboriginal people have stopped going to jail.

Both paragraph 718.2(e) and Gladue speak of the need for restraint in the use of incarceration for everyone. In fact, it has been non-aboriginal people who have been the primary beneficiaries of these initiatives. A study by Julian Roberts and Ron Melchers showed that from 1997 to 2001 the rate of aboriginal incarceration rose by 3% while the rate of non-aboriginal incarceration decreased by 27%. Similar results have been found in examining the impact of sentencing changes in the Youth Criminal Justice Act. Despite specific admonitions in legislation, the judges need to look for alternatives for aboriginal offenders. It is non-aboriginal people who are seeing the greatest decline in incarceration rates.

Please rest assured that we are not urging that more non-aboriginal people be jailed, but it is vital that you be aware that the impact of moves to make the criminal justice system more punitive will fall disproportionately on aboriginal people.

Jail has proven itself to be singularly incapable of resolving the social problems that are at the root of aboriginal offending. More jail will be similarly ineffective.

These concerns lead to our proposed amendments to the legislation. We suggest that the bill give judges an option to not impose a minimum sentence in exceptional circumstances. Such a provision will go a long way to meeting objections that the law is unconstitutional and would allow judges to consider other sentencing provisions, such as contained in paragraph 718.2(e) of the code, in situations where to impose a minimum sentence would be clearly unjust in the circumstances.

For almost 20 years, royal commissions, judicial inquiries, parliamentary committees, and decisions at all levels of courts in Canada have urged that the problems of aboriginal overrepresentation be addressed. For every small step forward, we confront great obstacles pushing us back. Sadly, Bill C-10 is another example of a serious step back.

We urge this committee to move away from increasing reliance on minimum sentences. If we are serious about wanting to make our communities safer, we need to do more than lock people up. We need to ensure that there are programs in place in the community to address the root causes of criminal behaviour. We need to have programs in place in correctional facilities to do the same.

Thank you very much.

November 23rd, 2006 / noon
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Director, Public Safety, Canadian Centre for Abuse Awareness

John Muise

The Supreme Court of Canada ruled in favour of the current mandatory minimum of four years for a conviction involving a firearm and commented specifically on the wanton and reckless disregard displayed as a result of the use of a firearm by the offender.

In addition, it is important to note that for those offences where the mandatory minimum sentences increased on the second, third, and subsequent offences, in terms of this bill it is only in relation to the specific offences included in the proposed legislation. So this government bill does not include any other crimes. It is about a continuation of the unlawful possession and use of firearms. In other words, it is about those offenders, particularly repeat offenders, who make the choice to possess, acquire, and use firearms illegally.

If indeed our culture here in Canada is about the proper licensing, storage, and possession of firearms, surely the same strict standards should be brought to bear on those who choose to brandish firearms for a criminal purpose. If you want to safeguard Canadians, we would suggest that you can't have one without the other.

Although we suspect that commentators on the other side of this debate feel otherwise, we would go so far as to say that, if crafted appropriately—and we think this bill is—mandatory minimum sentences of imprisonment are generally consistent with the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Sections 718 and 718.1 of the Criminal Code—you talked about them earlier—set out the principles of sentencing that must be followed by the court. The court is allowed significant latitude when deciding how to balance what are often very disparate principles. Although many judges know intuitively what the balance is, over the years Parliament, from time to time, has weighed in with a variety of sentencing, parole, and post-sentence order amendments in response to concerns expressed by the community about public safety and justice in particular.

It is entirely appropriate for Parliament to provide specific statutory direction ultimately to the court. Most recently, it has done so with respect to mandatory minimum sentences for certain offences committed against children, in Bill C-2, and previously for certain serious firearm offences. The community expresses its revulsion to certain kinds of crimes, usually violent ones, and if parliamentarians are listening, they respond in an appropriate way. We think this enhancement of the current mandatory minimum sentence provisions is precisely that.

What about the impact of mandatory minimum sentences on crime? As the legislative summary from the Library of Parliament that was made available makes clear, the studies to date have mixed results in terms of the impact of mandatory minimum sentences and increased rates of incarceration and the deterrent effect and impact on recidivism rates. Lies, damn lies, and statistics, as they say.

Rather than focus on whether these proposed amendments have a deterrent effect or not—and I would echo Chief Blair and Attorney General Bryant's comments on the deterrent impact—it is our position that targeting the most violent repeat offenders, and that's what people are who use firearms or possess firearms for an unlawful purpose, and locking them up for sustained periods of time will have a direct effect on the crime rate. It is an undeniable reality that a disproportionately small number of offenders are responsible for a disproportionately large number of offences. This axiom applies to repeat offenders who use firearms in the commission of their crimes.

Although they didn't get it entirely correct south of the border—California's “three strikes and you're out” law for felonies, including pizza theft, comes to mind—a precipitous drop greater than the drop in Canada over the same time period in the violent crime rate south of the 49th parallel went hand in hand with a crackdown on violent crime. A variety of studies done by American criminologists, including Marvell and Moody, and Kovandzic, confirm a reduction in homicides and violent crime rates.

It's about incapacitation. How many robberies with a firearm can you do when you are behind bars? If the right offenders are targeted, which we believe this bill does, it works.

Is violent crime on the rise in Canada? When it comes to statistics about the rates of crime, there's no denying that a whole lot of cherry-picking goes on, and it happens on both sides. Even the criminologists, lawyers, law professors, and other academics who are quick to remind you about sticking to the facts and getting it right are sometimes guilty of relying on short-term or year-to-year increases or decreases to make their cases. This is both misleading and inappropriate; some would call it downright dishonest.

I believe the committee clerk has given you a page from Juristat. In the middle column, check the violent crime rate. As you all know, it's calculated on the basis of 100,000 population. Dating back to 1962, it shows an increase from 221 per 100,000 in 1962, to 1,084 in 1992, levelling off since then to slightly under 1,000 for the past nine years. I would suggest to you that this is an extraordinary increase by any measure, and the levelling off that has taken place over the last dozen years still has us light years away from those good old days in the sixties.

Although the CCA did not have access to corresponding long-term tables for firearm offences, we are confident that they would mirror or exceed the general violent crime rate. We encourage the committee to obtain the same long-term table from the justice ministry for firearm-related offences. In addition, violent crime as a proportion of the overall crime rate is up over that same time period.

On gun play in Toronto over the past 30 years--I know Chief Blair spoke about much of this--my experience is anecdotal, but I want to share it with you. We suspect the same things that occur in Toronto are occurring in other urban jurisdictions across the country. I had a very unique perspective as a law enforcement officer on the Toronto Police Service, starting in 1976 until I retired this year. In those early years it was exceedingly rare, even in the busiest downtown divisions, that offenders arrested were in possession of illegal handguns or semi-automatic weapons. Even the most organized narcotics and drug traffickers did not carry or possess these kinds of firearms. I know because I worked in the drug squad, made hundreds of buys, and kicked in hundreds of doors from 1982 to 1986. We rarely seized a handgun. Uniformed, plain-clothes, and undercover officers rarely confronted these kinds of weapons.

That changed in the late eighties and coincided with the crack trade--free-based cocaine--and continued into the early 1990s and onwards with the proliferation of American-style street gangs, usually arranged along ethnic lines, that now commit crimes in support of territory and profit. The results are in full view in our housing projects and on our crowded downtown streets. There are drive-by shootings and shots fired because of perceived disrespect--something that, as Chief Blair indicated, was usually handled in the past with a punch in the nose. There are brutal and often random home invasions. No self-respecting crack dealer will leave home without his trusty Glock pistol or 9 mm handgun, and whole communities are marginalized and living in fear.

We have a new vocabulary of violent and brutal crime, and the violent crime statistic that I provided from Juristat reflects that reality. It's not Andy of Mayberry and it's not Leave it to Beaver any more.

What about the amendments? I think this is the important work the committee is doing.