Justice Committee on Feb. 5th, 2007

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

Right, that was the difficulty of actually successfully prosecuting Internet luring for sexual purposes or sexual exploitation under the then and still existing provisions. That's why the previous government brought forth section 172.1, etc. What you're telling us is that under the new provision it's been used quite successfully, if I understand correctly.

My question, then, is this. Given an invitation to sexual touching under section 152, which does not require that there was actual sexual touching, but means that there were actions and words that were carried out to attempt to invite a young person to engage in sexual touching, if the summary conviction there is a maximum of 18 months and the indictable is a maximum of 10 years, when we brought in the new offence of luring via the Internet, why did the government at that time not harmonize the actual sentencing provisions?

[Carole Morency]

I will draw your attention to one point of clarification. When the luring offence was brought in, the difficulty was in trying to have enough evidence before the actual contact offence was committed. That was the difficulty with arguing section 152 as an attempt, because you had to show more than mere preparation. That was one of the things the new offence tried to get at.

In terms of harmonization, what section 172.1 did when it was enacted was set a maximum penalty of five years on indictment. It was basically seen as half of the substantive offences, seen as an attempt. If it's more akin to an attempt of an offence, an attempt typically attracts a penalty that's half of the maximum of the actual offence, so that was the rationale behind it at the time.

If you looked at the listed offences, sections 151 and 152 had a maximum on indictment of 10 years. Section 153 had a maximum of five years. It was only increased to 10 in the last Parliament. The abduction offence, section 280, has a maximum of five years on indictment.

You can see there was a bit of a range there, but as I say, the parliamentary record would show that the comparison was really to an attempt provision. It was to enable the system to deal with that front-end part of the process before the actual contact offence.

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

Then my understanding would be that the argument would still exist, because you're still talking about the pre-preparation or preparation before you actually get to an attempt, and the attempt would be under section 152.

[Carole Morency]

Yes and no. On the one hand, yes, because some of the offences are still going to have a maximum of five years, but the sexual exploitation in section 153 has now been increased to 10 years on indictment.

I think as well that case law has evolved. Our experience and understanding of the types of risks that young people face as a result of this have improved. We have a better understanding, so if the concern is that you want the criminal justice system to send a strong message to deter and denounce that type of conduct, a 10-year maximum will do that more effectively than a five-year. Reforms enacted in the previous Parliament increased the maximum penalties on summary conviction for all of those enumerated child sexual offences and for section 153. Again, it's consistent with Parliament's action to this point to support stronger measures in denouncing this kind of conduct.

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

If I may just complete my sentence, I'm asking the question because we are trying to find out why there was this difference. You're explaining that since the creation of this new offence of luring, there has been an increase in maximum sentencing to the other provisions that are in the same section. Therefore, to increase the maximum here would not be out of line with what has taken place subsequent to the creation of this particular offence.

[Carole Morency]

That's correct.

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

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Jennings.

Mr. Bagnell is next. Upon the conclusion of Mr. Bagnell's questions, we'll move to further discussion on the amendment and then to clause-by-clause study.

Go ahead, Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I have two questions. One is the one I asked before, but you didn't get a chance to answer it.

My interest is broader than just this bill. There are perpetual offenders, and there are people like Clifford Olson. I'm not a lawyer; I just want to understand the ability we have in the criminal justice system to keep people in longer than their sentence--people about whom a 100% probability of recidivism has been suggested, or people who will continue to be a danger to society.

[Carole Morency]

This is not my area of expertise, but I can try to help you a bit in terms of the sentencing options.

Basically, the committee will know that Bill C-27 proposes some reforms to the dangerous offender provisions. That's one provision, or regime or framework, that exists within the Criminal Code right now to deal with serious violent repeat offenders, and there is, as well, a long-term offender regime. So an offender may not quite meet the dangerous offender designation, but may still be found by the court to pose a serious risk of reoffending to the community and can be found a long-term offender and can be subject to a community supervision order, and conditions that go with that, up to 10 years.

The courts also have an option under sentencing. At the time of sentencing an accused who's been found guilty of committing one of the child sexual offences that are enumerated in section 161 of the Criminal Code, the court can impose a prohibition against that accused that can last up to a lifetime to stay away from designated areas where children are known to be found, and not to seek or obtain paid or volunteer employment where children will be. So there's that other component to try to prevent a known sex offender from having an opportunity to reoffend.

In addition to that, there is also recognizance in the Criminal Code, section 810.1, dealing with persons about whom it's feared they may commit a sexual offence against a child—they haven't committed an offence yet, but there's that fear. There's a process to bring it before the court and have, basically, a restraining order that can last up to a year. Bill C-27 would deal with that and increase it for up to two years.

Those are the main ones that I can bring to the committee's attention. If you have an interest in much more specifics, I would volunteer one of my colleagues.

[Larry Bagnell, Liberal, Yukon, YT]

I'm very supportive of this bill, but my second question is just following up on what Mr. Lee was asking you about, and that's 16-year-olds. I want to make sure we don't have this regime wrong, where young people could be caught inappropriately. For instance, if two 15-year-olds fell in love and ran off, would one therefore be eligible to be charged for abduction, taking away from the parents without their permission, and, if it was done on the Internet, then be eligible to be prosecuted under this crime?

[Carole Morency]

I think you have to look at how the luring offence works in terms of what's legal for young people to engage in with other peers. The age of consent to sexual activity is currently 14. Peers can engage in sexual activity, and they could engage in a similar kind of consensual type of dialogue, but in the luring case that's not the type of conduct we're dealing with. So if you had a young person who met the criteria of the offence and was engaging in those communications for the purpose of basically sexually assaulting the other person, then yes, that person could be charged as a young offender.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Thank you very much, Ms. Morency. We appreciate that in-depth information.

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

Could I make one more? It's just to clarify. It's a 10-second question.

[The Chair, Conservative, Art Hanger]

Yes, go ahead, Mr. Lee.

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

If two persons, both being minors, were communicating, and one was under 14—let's say you have a 15-year-old and a 13-year-old—it would, by definition, be criminal to induce the 13-year-old into a sexual act. So the communicating or invitation to sexual touching would trigger a criminal offence under the Young Offenders Act by the 15-year-old just because the person who was receiving the invitation was incapable of giving consent.

[Carole Morency]

No. Again, the luring offence not only piggybacks on the sentences that are provided in the enumerated offences, but it also is superimposed on the existing age of consent regime. So in your example that you give me, a 12- or 13-year-old can consent to engage in sexual activity with a peer, and it's a lawful situation, provided that the other person is less than two years older, there's no relationship of trust, authority, dependency, and it's not otherwise exploitive of the young person. So currently again, if it's a consensual thing and they fall within that regime, then it should fall outside of the luring offence.

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

Thank you, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

Now, committee members, let's go back to the discussion on the amendment. I think we have enough time to briefly go over some points that might clarify my previous comment.

Yes, Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I think there's a consensus that will move to override your finding that it's out of order. I am assuming there's going to be unanimous consent.

[Réal Ménard, Bloc, Hochelaga, QC]

No.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

No? I spoke too soon.

[Réal Ménard, Bloc, Hochelaga, QC]

That's not so, Mr. Chairman, for the following reason. We will support this provision of the bill which is before us, but as far as procedure is concerned, you are making a literal interpretation. You are right in this case, and we will maintain our decision. We will support the bill as it was worded by the sponsor, but we are clearly aware of the fact that you cannot amend a provision which is not contained in the bill. We do not want to start playing with the rules of procedure.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Chair, I did have the floor before I was interrupted.