Mr. Speaker, I am pleased to have the opportunity to speak on the issue of child pornography.
A recent case decision in my home province of British Columbia has attracted considerable attention. It has also produced predictable outrage from Canadians from every part of the country.
For the record, I wrote to the Minister of Justice on January 21, mere days after the ruling, suggesting that she not wait for the appellate court but to get amending legislation before parliament as quickly as possible.
Some speakers to today's official opposition supply day motion may not have had time to review the specific case which has caused such a concern. I will take a couple of moments to briefly outline the situation.
The case is still before the courts. The accused was facing four charges relating to child pornography: two charges of being in possession for the purpose of distribution or sale and two charges for being in simple possession.
The Supreme Court of British Columbia only dismissed the two charges of simple possession. As such that is essentially the only issue under appeal. The accused still faces his remaining charges and they are scheduled for this month. On the issue of the two charges of simple possession, I will briefly highlight the essential elements of this debate.
As has often been stated, tough cases make tough law. Others might state that bad cases make bad law. In the case at issue the crown conceded that section 163.1(4), possession of child pornography, violated the guarantee of freedom of expression set out in section 2(b) of the Canadian Charter of Rights and Freedoms.
The only real argument before the Supreme Court of British Columbia was whether the violation of section 2(b) was saved by section 1 of the charter, that is, that the infringement is a reasonable limit prescribed by law which is demonstrably justified in a free and democratic society.
Of course the reason for all the hullabaloo over this case and the cause of why today we are debating this issue is that the justice of the B.C. supreme court decided that the possession of child pornography law was not a reasonable violation of the right to freedom of expression in that instance.
With the greatest of respect to the particular justice of the B.C. supreme court, I would have to disagree with his position, but that is beside the point. The problem has been presented and we have to address it.
The Minister of Justice has taken the position that she will just join the province in the appeal. That is not good enough. The Minister of Justice has a second title. She is the Minister of Justice and the Attorney General of Canada. She has already made public statements indicating her preparedness to act within her role as Attorney General of Canada. She plans to join the attempt to uphold the constitutionality of section 163.1(4) and this is as it should be.
As the attorney general she is responsible for safeguarding the interests of the crown within existing laws. Part of that duty is the protection of our laws. In all fairness the minister is doing that.
Her other role is to consider and address the legality of government legislation, and I would suggest that in that area she is abdicating her responsibility.
I have great difficulty with the decision of the Supreme Court of British Columbia justice, but it really does not matter how anyone interprets or views that case. The issue is that now we are confronted with a serious problem. What can be done to ensure that the laws against the possession of child pornography are able to withstand a charter challenge based on the rights to privacy and freedom of expression?
With respect, I belief the basic definition of child pornography within the Criminal Code is too broad. A number of comments from the legal profession have also raised this interpretation.
An example of this is the definition which appears at section 163.1(1)(b) of the Criminal Code, which states:
Any written material or visual representation that advocates or counsels sexual activity with a person under the age of 18 years that would be an offence under this act...
There are a number of questions concerning that part of the definition. Why does it say any written material? What advocates or counsels? Why a person under the age of 18? Does the inclusion of 17 year olds detract from our attempts to protect children? How does the written material have to correlate with the sexual activity of a child?
By allowing a child to read Lady Chatterley's Lover by D. H. Lawrence, does that meet this definition if that child is encouraged by the writing to end up having sexual activity with an adult who provided the writing?
These are all difficulties to be reviewed and analyzed in interpreting our present law.
With respect, even if we are able to overturn the B.C. supreme court case at some court of appeal level, these problems can still resurface to once again shake the system.
That is why on January 21 I wrote to the minister to encourage her to immediately bring amending legislation for the sake of the safety of our children. We must protect our next generation from these predators; from the degradation, the pain and suffering they endure from being objectified and used to provide adult sexual gratification or fantasy.
I understand that on January 26 approximately 70 members of the Liberal backbench also urged her to introduce strong child pornography legislation and I appreciate the Liberal support for my proposal. I understand that the member for Port Moody—Coquitlam—Port Coquitlam was among them. I am sure the folks back home will be watching at 5.30 this evening.
Obviously, so far the minister appears to only pay attention to the cabinet or the Prime Minister. When this case first gained attention the minister stated that she would wait until the case was appealed to the Supreme Court of Canada before she would become involved. It was only when the public outrage spread to her ministerial colleagues that she was forced to change her mind and join in the appeal before the B.C. court of appeal.
Perhaps after today she can be persuaded to change her mind again and decide to introduce the necessary legislation. I would hope so.
Another reason for the minister to show leadership in this matter is the state of flux within our justice system until the matter is resolved in months or, more realistically, in years by our courts. The minister is well aware that there are approximately 40 possession cases before the courts of British Columbia that are in limbo. She is also aware that the courts are already dismissing charges as a result of the present ruling. I cited one such case from my own constituency in my letter to her. She is likely aware that other provinces will have a number of similar situations.
Pedophile websites on the Internet are alive with suggestions that their clientele target British Columbia.
I also note the comments from various police agencies and customs offices. They have admitted to confusion. They are looking for help, but there has been no guidance from the minister. I can just imagine the hesitation of our enforcement personnel to investigate or proceed with charges due to the almost certain likelihood that they will eventually be thrown out of court. I can also imagine our crown prosecutors being most hesitant to proceed with possession charges.
I just read this morning that the crown is seeking to postpone one case in Delta, B.C. I am sure that as we speak many defence lawyers are boning up on their Askov arguments, should these cases ever eventually proceed through our courts. For those unfamiliar with Askov, it is the supreme court ruling that deals with the length of time to trial. We already have a child molester who walked free in British Columbia because it took 17 months to get him to court.
Unfortunately we do not see a lot of leadership here. The government merely chooses to react. The Liberal mantra of “Don't worry; be happy” resonates through this Chamber again.
To summarize, we have a court case stating that an individual's right to personal privacy and enjoyment of freedom to personally express private interest in the possession of child pornography must be protected. The judge stated at paragraph 50 of his decision:
In my opinion, the detrimental effects substantially outweigh the salutary effects. The intrusion into freedom of expression and the right to privacy is so profound that it is not outweighed by the limited beneficial effects of the prohibition.
Privacy is one thing, but reasonable intrusions or exceptions to absolute privacy is another.
I will refer to some comments made by law professor Kathleen Mahoney who is an expert in child pornography cases. She refers to the psychological and physical trauma to the victims as being profound. She states:
The nature of a good portion of child pornography requires the rape of a child, ranging from six months of age to 15 or 16 years of age. These children are shown drugged, in pain often, and there have been babies submitted to sexual acts with adults. The damage does not end when the filming stops. Every time (the pornography) is shown, that child is injured in its dignity, its reputation, its identity. The harm is multiplied several times. The child is offended against time and time again.
It is our duty as parliamentarians to help and protect these victims, the most vulnerable members of our society. As parents, grandparents, aunts and uncles, this is not a time for politics. It is a time for doing what is right for Canada's children.