Justice Committee on Feb. 2nd, 2011

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I would have liked to say something before you made a ruling.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I talked about this bill.

[The Chair, Conservative, Ed Fast]

All right, Monsieur Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I would have liked to have said something before you made your ruling.

I think he is perfectly right. If you stopped using the titles as propaganda tools, we would support the bill. However, these titles are simply and systematically propaganda tools.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go back to Mr. Dechert.

You have the floor.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Chair, if I can beg the indulgence of my colleagues opposite, they'll hear directly how it's relevant to the legislation we're reviewing today.

When we last met, Minister, we examined a number of witnesses who represented victims, and in one case an actual victim herself who told us her brave story and told us why this legislation is so important. I asked her about the timing of this bill.

We've been going through, during the last several months or weeks in this country, endless speculation about the possibility of a spring election triggered by certainly not the government but other parties in the House of Commons, and there seems to be a concern on the other side that perhaps there should be an election soon. That election, if it were to happen.... And I can tell you that people in Mississauga are telling me please, don't have an election, stick to the work; stay focused on the economy and protecting our families and our communities. So I asked them what they think about the possibility of a spring election derailing this bill and what comment they have on the timing.

Ms. Campbell, who was herself a victim and represents victims of child sex abuse, said:

I agree, and just while we've been sitting here talking today, how many children have been tortured, raped? High, high. So it's urgent. I really encourage you to hopefully.... Please use us any way we can support you to get the public awareness out. We would do that.

Both she and Mr. Rushfeldt implored us to move quickly.

I wonder if you could just tell us what you think of how we should deal with this legislation and the threat of derailing it with any kind of an unwanted election.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much for that, Mr. Dechert. Thank you for your contribution to the criminal justice agenda of this country. It's certainly very much appreciated.

Obviously, anything that derails any of these bills or slows them down doesn't have my support. I was candid with people. There were people, for instance, over the Christmas break asking me why the bill getting rid of the faint hope clause wasn't finally the law of this country. I had to tell them. I said, among the other things that Liberals didn't like, they didn't like the title, if you can imagine. But I said this is what we're dealing with.

I think most people who follow this understand the challenges we have. I guess my point on this, on all of these pieces of legislation to better protect children, is that it is a worthwhile objective of everybody, regardless of whether this is a minority Parliament. I know, people have said to me, this is a minority Parliament. Again, I always say that's no excuse not to stand up for victims or law-abiding Canadians of this country.

So I'm asking your committee to do everything you can to expedite these things.

This is better for Canada; Canada is a better country when we have laws on the books that better protect the children of this country. The two new offences that I'm talking about, in which you get two adults talking about setting up a child.... Canada is a better place if there are laws on the books against this kind of activity.

This bill stands on its own, as the others have. They're reasonable. Victims want this type of legislation. So thank you. Anything you can do within this committee to get this thing through and get it into the House and not have it derailed for any reason certainly would have my support and, I think, the support of the people of this country.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you.

When we last met, Minister, we talked as well to the same representatives of victims groups about the mandatory minimum penalties that are in the bill. Specifically, we're often criticized by the opposition and others about the high costs of mandatory minimum penalties: there will be more people in prison. Some of these sexual predators will be off the street; they're going to spend more time behind bars. That's going to cost more money. We need more jail cells perhaps, more prison guards to keep them there off the streets, to keep them away from our children.

I asked them whether they thought, if that were true—assuming it were true that the costs of incarcerating people would go up—that it was money well spent. I can tell you that both Mr. Rushfeldt of the Canada Family Action organization and Ms. Ellen Campbell representing victims of child abuse said yes, it would be money very well spent, in their opinion.

Could you talk about that and about what you think the value of it is to the people of Canada, especially with respect to mandatory minimum penalties in this legislation, keeping child sex predators away from our children?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, again, there are so many different aspects to this. First and foremost, of course, is removing some individual who is in a position to sexually abuse and exploit young people. That's the first benefit, quite frankly, of sentencing an individual and getting them out of the milieu in which they are exploiting other people.

It also sends the right message out, in my opinion. One of the amendments we are making is to make sure, among other things, that house arrest, or conditional sentencing—you heard me refer to that in my opening remarks—is not available, because it actually hurts people's confidence in the criminal justice system. People who are in the business of sexually abusing children or assaulting people, if they get a conditional sentence.... Nobody, I think, wants that kind of message to be sent out there.

The bill covers a wide range of sexual offences, and there's a consistency with it. I'm sure that in your examination of this, not just with me but with the departmental officials and the other witnesses, that will come through loud and clear. This sends out a consistent message that this type of behaviour will not be tolerated.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Mr. Lee for five minutes.

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

I just have to respond to Mr. Dechert, who seemed to suggest that opposition parties call elections. He seems confused about it. As I understand it, one hundred percent of the time it's the Prime Minister who goes down to Rideau Hall and asks for the dissolution of the House for purposes of an election. There must a be a new constitution out there.

Anyway, Minister, thanks for being here today. I would have thought with all of your words about the importance of this and other legislation you would have been able to give us more than an hour, but I've got my five minutes, and I know you have to hustle back to your office to work on some more bills' short titles.

I'm going to ask you about one aspect of this. It is rather technical. It has to do with the potential for entrapment. It has nothing to do with the core purposes of the bill, which I'm sure all the members agree with.

In clause 15 of the bill, and that's really proposed new section 172.2 of the Criminal Code, there are some new provisions that do three things. They add a presumption dealing with what the accused believed about the age of the underage person, a presumption. Then proposed subsection (4) removes a component of the mens rea defence when it says it doesn't matter what you thought you knew unless you took reasonable steps. It doesn't matter what you knew.

Then the next proposed subsection of the bill takes away a further defence to say it doesn't matter whether there really wasn't a victim at all and it doesn't even matter whether there was a real person at all. In other words, there could be a totally artificially constructed scenario for purposes of entrapment.

I have no illusions. The police will be going after some bad guy, in all likelihood. They don't waste time on innocent guys. But let's say there is a bad policeman out there, and he decides he's going to entrap somebody. Let's just say. We all know there aren't very many bad policemen out there, but let's say there was one, and he or she decided to entrap. This sequence of proposed subsections sets up, by statute, an entrapment. It's not like you use an entrapment to investigate a real offence. It is actually setting up statutorily an entrapment scenario removing defence, imposing a presumption, and then saying it doesn't matter whether it was a fake person or a real person. Whether or not there was a real person, you're still guilty, not of committing an actual criminal offence, but facilitating, setting up, inviting.

To me, we are setting up in our Criminal Code an artificially constructed entrapment mechanism, where the person accused may have statutorily removed from him or her certain defences.

Now, the court can say it still can't accept this person as guilty as charged, but I don't like the look of this.

Have you walked through this? Have your officials walked through this? I understand why we want to get tough laws, but the procedures have to be constitutionally fair, and I'm nervous about this one.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, I can give you assurances that it is constitutional, Mr. Lee. I mean, one of the things—

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

Your previous assurances to me in the House have not always been one hundred percent. You don't have—

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think we've made some pretty good arguments, sir.

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

You don't have a one thousand batting average here, but that's okay. You're responding in good faith.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, we're completely confident that all the provisions of this bill are constitutional.

You said we're setting up a situation where people are discussing the potential or the possible sexual exploitation of a child. Part of what we want to do is to prevent this kind of activity to begin with. That's what we're trying to do. I say that specifically with respect to the new offences we have in here. We want to stop these individuals beforehand. And I know the point you're going to make is that if the person commits the offence, then the elements are there. We're trying to back this up.

Now, with respect to your concerns about entrapment, the entrapment provisions of the Criminal Code will continue to apply, and they will apply to all the provisions of this act. So you would know perhaps the elements of an entrapment where the police go beyond just the discussion, and those provisions would continue to provide a defence for someone. But for those individuals who are in the business of agreeing to exploit a child, we're going to stop them in their tracks right there. If that's what they're agreeing to do, that will be an offence in this country.

Now, for that individual who says “I was entrapped” or “I was fooled” or “I was induced”, those sorts of arguments can be made, because the entrapment section will still apply. But for those individuals who are agreeing to set up some child, just because it's a police officer that they're in that discussion with, they will not be able to claim a defence against that. The entrapment will be there, but we're making it a crime to agree to start the exploitation of a child.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Lemay, you have five minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chairman.

Mr. Minister, I did some quick math. Do you know how many justice bills died on the order paper when you decided to prorogue the House of Commons? Do you know that number?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, Mr. Lemay. I'm sure that some of the Liberals won't like your discussing bills—

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

No, no.

[Rob Nicholson, Conservative, Niagara Falls, ON]

—other than this one, but you're quite correct. I was very frustrated, particularly with what was happening in the Senate. I mentioned the bill protecting 14- and 15-year-olds. I'm sure the Liberals will tell you about their caucus members who were fighting us even on that one.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

There is no problem.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, it was very difficult, and I was one of the ones who applauded over a year ago—

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Fine, all right.

[Rob Nicholson, Conservative, Niagara Falls, ON]

—when we appointed those new senators. And I'll tell you what: things are working much better in the Senate these days.