House of Commons Hansard #173 of the 37th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was mace.

Topics

The House resumed at 12 noon.

The House resumed from April 18 consideration of the motion in relation to the amendments made by the Senate to Bill C-15A, an act to amend the Criminal Code and to amend other acts.

Criminal Law Amendment Act, 2001
Government Orders

April 22nd, 2002 / 11:55 a.m.

Canadian Alliance

Gary Lunn Saanich—Gulf Islands, BC

Mr. Speaker I am very pleased to rise on this Senate amendment. I would like to say at this time, Mr. Speaker, that I will be splitting my time with the member for Prince George--Bulkley Valley?

I am opposed to the amendment. Basically it does two things. First, it deals people who innocently have computers systems which have been used for a criminal offence or for child pornography. They would not be convicted of an offence or be charged with an offence.

The problem with the Senate amendment is that while it tries to protect an innocent third party from prosecution if that person did have the criminal intent to commit the crime, it also creates some loopholes for those people who intentionally intend to use the Internet for child pornography. These people could slip through the cracks by having a defence and therefore might not be charged.

Some people have argued the other side. People using other forms of communication other than the Internet could also be innocent. I would argue that with charges related to child pornography, there has to be the mens rea element or intent to commit the offence. We do not need to write that into the statute. The danger of doing that is we could be creating loopholes for those people who intended to use the Internet for child pornography and could use this section in their defence.

Again, we in the Canadian Alliance are opposed to this for that reason. The sections under the criminal code already have the mens rea element, and this does not have to be put into statute.

The second aspect in the Senate amendment is where the accused is charged with an offence where the written material is alleged not to constitute child pornography. It all comes down to artistic merit. This area has huge problems as we have witnessed when the Supreme Court of Canada sent the Robin Sharpe case back to the B.C. supreme court. The court ruled that in certain areas when Robin Sharpe dealt with child pornography, he could not be prosecuted for his violent writings because they were found to have “artistic merit”.

I have a very difficult time with this. They are going down a very dangerous, slippery road. Robin Sharpe originally argued that this was a charter issue and a violation of his freedom of expression to use it for his own personal use. When it went back to the B.C. supreme court, it took one step further, and that was artistic merit.

This is an area where we have to put the rights of society against a possible right, and I do not even argue that it is a right, of an individual. Child pornography deals with the most innocent and vulnerable in our society, and that is our children. We have to use every bit of due diligence to ensure that we as parliamentarians have the correct legislation to protect our children.

In light of the recent B.C. supreme court decision which acquitted Mr. Sharpe in certain cases because of “artistic merit”, we as legislators should focus on that and say no, we will draw clear legislation that makes the use of child pornography a serious crime. The excuse, and I will call it an excuse, of artistic merit will not be tolerated in any way, shape or form.

We have a duty and an obligation as legislators to ensure we protect our children from sexual predators. As we have seen in the past, artistic merit can be interpreted broadly. The people put at risk because of these interpretations, our children, have no way to defend themselves.

I will say on the record that I hope the attorney general in British Columbia will appeal the recent decision of the B.C. supreme court which cited artistic merit as a reason for acquitting Mr. Sharpe. These are the areas we need to focus on.

The Senate has brought back a sub-amendment to ensure the legislation would protect innocent third parties. What it would really do is create loopholes for people who would find a way to use them. People could claim they were innocent third parties while using the Internet to exploit the most vulnerable in society.

For these reasons I will be voting against the Senate sub-amendments on Bill C-15A that are back before the House.

Criminal Law Amendment Act, 2001
Government Orders

12:05 p.m.

Canadian Alliance

Dick Harris Prince George—Bulkley Valley, BC

Mr. Speaker, I am pleased to rise this morning and speak to a group of Senate amendments to the child protection provisions contained in Bill C-15A.

The new legislation would create the offence of luring a child by mean of a computer system. It would define child using the same ages set out in the Criminal Code of Canada. Accordingly, it would be a crime with a maximum penalty of five years to use the Internet to lure persons under the age of 18 for prostitution, child pornography, sexual assault, incest or sexual touching where the accused is in a position of trust. The age would be 16 for abducting an unmarried child from his or her parents. The age would be 14 for sexual interference, invitation to sexual touching, bestiality in a person's presence, exposure or harbouring.

The bill would create the offences of transmitting, making available or exporting child pornography through a computer system, offences which would carry a maximum penalty of ten years. The new legislation would also prohibit persons from intentionally accessing child pornography on the Internet, an offence which would carry a maximum penalty of five years. The material would be liable to forfeiture if deemed by the court to be child pornography.

We in our party have a couple of problems with the Senate amendments. First, we have a problem regarding the Internet. As my hon. colleague from Saanich--Gulf Islands pointed out, the amendment is far too broad to effectively hit the target. Because of the amendment's broadness legal minds would be searching for loopholes in it. The amendment would be an open invitation for people intent on using a computer to export, access or sell child pornography. It would be an open invitation for them to go running to the legal minds of the country who want to deal with the issue and find loopholes to challenge the amendments in a court of law.

We are dealing with people who possess, distribute and create child pornography. We are dealing with the lowest form of humanity: people who seek to draw children into a position to make and proliferate this type of material. If we are to target these people, and indeed we must because they are ruining the lives of countless thousands of people, we must have legislation that does not go out like a shotgun spatter and miss the target. We must set our sights on these people with legislation that is 99.9% loophole free.

I know how the law works in Canada. One can take almost any law and find a way around it if one has a devious mind. A lawyer who is able to make a silk purse out of a sow's ear in a court of law can set some sort of precedent through a loophole. The amendment dealing with the Internet is far too broad in its application and would create loopholes. We need a more targeted approach.

Second, we have a problem with artistic merit. I roll my eyes when I think about the Sharpe decision and the so-called artistic exhibits we have seen in the National Gallery. Since I have been in Ottawa I have seen exhibits with a sexual attachment to them that the vast majority of Canadians would find absolutely disgusting. Yet somehow the artists were able to convince whoever they needed to convince that the works had artistic merit. There are dozens of examples here in Ottawa and at the National Gallery.

As for the judges who argued Sharpe's material has artistic merit, a board of inquiry should look at their competency to sit on the bench. If they were politicians their competency to sit in the House of Commons would be questioned. The lawyers who found a way to create the so-called artistic merit defence are an absolute disgrace to the legal profession. That is my opinion but I believe it is shared by many Canadians.

I will finish because I have said enough about the issue. However I will move a motion. I move:

That the motion be amended by deleting all the words after the word that and substituting the following:

“the amendment numbered 2 made by the Senate to Bill C-15A, An act to amend the Criminal Code and to amend other acts, be now read a second time and concurred in; and

That a message be sent to the Senate to acquaint Their Honours that this House disagrees with the amendment numbered 1(b) because the amendment applies the artistic merit defence to the new offences introduced by this act which could impact negatively in child pornography cases and this House disagrees with the amendment numbered 1(a) made by the Senate to Bill C-15A, An act to amend the Criminal Code and to amend other acts, because the amendment could exempt offenders from criminal liability even in cases where they knowingly transmit or make available child pornography.”

Criminal Law Amendment Act, 2001
Government Orders

12:15 p.m.

The Acting Speaker (Mr. Bélair)

The Chair will take the motion into deliberation and the Speaker will make a decision later today.

Criminal Law Amendment Act, 2001
Government Orders

12:15 p.m.

Canadian Alliance

Dick Harris Prince George—Bulkley Valley, BC

Mr. Speaker, could you clarify what you mean by taking it into consideration? Are you saying you will determine whether the motion is appropriate?

Criminal Law Amendment Act, 2001
Government Orders

12:15 p.m.

The Acting Speaker (Mr. Bélair)

Yes.

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12:15 p.m.

NDP

Dick Proctor Palliser, SK

Mr. Speaker, we are debating amendments to an act to amend the criminal code, specifically Bill C-15A, and that the House support amendments numbered 1(b) and 2 that were made recently by the Senate, but the Minister of Justice has indicated that the government disagrees with Amendment No. 1(a) because;

the amendment could exempt offenders from criminal liability even in cases where they knowingly transmit or make available child pornography.

Amendment No. 1(a) is designed to ensure that Internet service providers are not found liable for illegal acts under the legislation. This would mean that account providers would not be responsible for illegal content posted on websites owned by their account holders and made possible by the Internet service provider's equipment as well as not being held liable for illegal content received in an e-mail address or accessed through an account which they have provided.

The amendment is unnecessary. There are currently protections in the legislation for Internet service providers in terms of intentionally spreading and accessing child pornography. Further, Internet service providers have not given any alternatives to the situation that currently exists. Harmful content on the Internet is a growing problem and there must be some way that Internet service providers can ensure that web pages provided by them are not used to distribute child pornography.

Child pornography is extremely and especially valuable to pedophiles. Testifying in the Sharpe case, Dr. Peter Collins defined pedophilia in these terms: “the erotic attraction or the sexual attraction to pre-pubescent children”. Similarly:

The widespread availability of computers and the Internet has resulted in new ways of creating images, and has facilitated the storage, reproduction and distribution of child pornography.

Detective Waters, who also testified in the case, “likened this increased distribution to a tidal wave”. As stated in the annual report of the Criminal Intelligence Service Canada on organized crime in Canada for the year 2000:

The distribution of child pornography is growing proportionately with the continuing expansion of Internet use. Chat rooms available throughout the Internet global community further facilitate and compound this problem. The use of the Internet has helped pornographers to present and promote their point of view.

The R v Sharpe report stated:

Criminalizing the possession of child pornography may reduce the market for child pornography and decrease the exploitative use of children in its production.

Last week, thanks to the member for Pickering--Ajax--Uxbridge, 37 members of parliament had an opportunity to hear from prosecutors and Dr. Collins on this very important topic. We heard that pedophiles can and do download thousands of erotic images; 25,000 to 30,000 images are not unusual in a case. As the House was told last week, there were 400,000 in one case.

The feeling of the prosecutors is that not all images should need to be presented at court, but only a representative sample, because now it is tying up police and prosecutions to deal with the cases, to deal with the hundreds and tens of thousands of images. As a result they are not able to arrest other known child pornographers because their resources are stretched too thin. We certainly agree with the government's rationale and we will not be supporting the Senate amendment there.

Very quickly, Amendment No. 1(c) deals with the issue of the wrongfully convicted. As the legislation is currently written, without the Senate amendment the Minister of Justice may delegate someone, anyone for that matter, to investigate a case in which an individual may have been wrongfully convicted. The Senate amendment states that the individual so delegated must have certain broad, legal qualifications. We support the amendment. It is a housekeeping amendment and the NDP caucus gives it the good housekeeping seal of approval.

I would like to turn, however, in the time I have left, to Amendment No. 1(b), which provides for an exclusion similar to that envisioned by the B.C. supreme court in dealing with the judgment in the case of Robin Sharpe. This would ensure that the possession of materials of artistic, scientific and educational merit would not be criminalized under this legislation. Though the idea of artistic merit can be problematic, as we have seen recently, this exclusion may be necessary to ensure the constitutionality of the legislation and that the offence of accessing child pornography over the Internet is congruent with other child pornography offences. The amendment would ensure that the legislation has that exclusion written in, that materials created or possessed for these purposes would not result in criminal sanctions.

The question of artistic merit has raised a good deal of concern and that is what the debate has focused on here. I would like to read into the record letters that I have received from constituents in Palliser.

Hazel Raine wrote on the Sharpe decision and stated:

The ruling by Justice Duncan Shaw...that the violent graphic stories of child sexual abuse produced by John Robin Sharpe have sufficient “artistic merit” for Canadian society is an insult to Canadians. Our children are precious and we want them protected by every means possible from pedophilic material. There should be an immediate appeal of this ruling.

She asks me as the representative here to “take whatever steps are necessary”.

In a similar letter with a similar tone, Sheryl Van Wert, also from Moose Jaw, stated:

This ruling implies that we value artistic expression over the protection of Canada's children--our future. As a Canadian citizen hoping to one day be a parent, I ask that you carefully consider your part of the decision to be made regarding this ruling. Please protect our future generations from those who would destroy their innocence and safety.

We do have two very clearly different points of view on this. There is a notion, as these letters indicate, that the defence of artistic merit makes it a simple walk in the park for pedophiles to hide behind a claim of legitimacy. That is a major concern. On the other hand, there is the concern, from people who do not have child pornography as a primary concern, that we would be limiting freedom of expression and freedom of speech.

I will read an excerpt from a play written some time ago by the poet laureate in the New Democratic Party caucus, the member for Dartmouth. The play is entitled All Fall Down . There is a soliloquy by one of the people in the play, Connors, who works with sexually abused children and in this excerpt contemplates the working of the human mind. Connors states:

How do you protect yourself from the images flying around out there. How do you protect yourself from the images in your own head. A man bounces his daughter on his lap, sits on the bed and watches his wife undress, thinks about winter tires, the teller with the big hooters at the bank, how he'd like to reach out and stroke them, his daughter's musical giggles, the bruise on his wife's leg, how soft the little girl's cheeks are. He wonders if she was fifteen years older and not his daughter--but that's gone in an instant and he remembers his own mother's scent, her shining hair, sitting on her lap, feeling like the only special one in the world, and suddenly, he despises his wife, wants to strangle her, but just for an instant, maybe wants to end his own life too, all those gaping nights, weeks, years ahead, all those dark unexplored holes behind, and then that's gone too. Thoughts fly by like hummingbirds. Some of them could land you in jail but if you keep them in your head, they're harmless there--

In the matter of the Sharpe case and the supreme court decision, Chief Justice McLachlin, writing for the majority, indicated that “any objectively established artistic value, however small, suffices to support the defence”. While the ruling added that “what may reasonably be viewed as art is admittedly a difficult question--one that philosophers have pondered through the ages”, it concluded that it is necessary to maintain a society in which “artists, so long as they are producing art, should not fear prosecution” under a child pornography law.

The supreme court's attempt to strike a balance between preserving freedom of expression and protecting children from dangerous pornography has drawn fire across the board. Rose Dyson, representing Canadians Concerned about Violence in Entertainment, stated that the “artistic merit defence” is in fact “a gaping loophole” that would make it easy for the most vile pedophile to hide behind claims that he is producing literature.

While civil libertarians applauded Mr. Sharpe's acquittal on all charges related to his fictional works, their main argument is that only photos or other material depicting “actual children” should ever be subject to prosecution. According to John Dixon, President of the B.C. Civil Liberties Association:

Writings ought to be freely distributable among adults no matter what fantastic or imagined content.

A 1999 paper written by the Canadian Civil Liberties Association stated:

Artistic taste is largely in the eye of the beholder. How could a blunt instrument like the criminal law define the distinction between serious efforts and those which are not? What possible justification is there to criminalize any fictionalized depictions?

The CCLA warned that the “overbreadth” of the law “appears capable of imperiling legitimate art” while striving to stamp out the pornographic fantasies of a few “disordered souls”.

On the other hand, Carleton University journalism Professor Klaus Pohle, who has criticized similar legislation in which hate propaganda and obscenity are left open to broad interpretation by the courts, said that building a law on a “fuzzy” definition is a recipe for disaster. He stated:

Anybody can stand up and say there is artistic merit in anything. What you're doing here is putting on trial the definition of artistic merit.

In fact, English Professor Paul Delaney of Simon Fraser University testified at trial that Mr. Sharpe's writing skills were negligible and insisted that even if some of his work showed a shred of artistic merit:

...we do not allow speeding drivers to avoid punishment by appeal to the 'esthetics' of an intense, thrill-seeking experience.

Mr. Justice Duncan Shaw sided with those who indeed viewed Mr. Sharpe's work as literature. Judge Shaw stated:

Mr. Sharpe's portrayals of people, events, scenes and ideas are reasonably well written. He uses parody and allegory, not expertly, but he does use them...His plots show some imagination and are sometimes fairly complex.

On the other hand, in the 6 to 3 verdict at the supreme court, those in the minority, Justices L'Heureux-Dubé, Gonthier and Bastarache, saw this case very differently. I would like to quote from their observations in their dissenting minority report. They stated:

Child pornography, as defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society...Child pornography is harmful whether it involves real children in its production or whether it is a product of the imagination. Section 163.1 was enacted to protect children, one of the most vulnerable groups in society. It is based on clear evidence of direct harm caused by child pornography, as well as Parliament's reasoned apprehension that child pornography also causes attitudinal harm.

In their report, those three justices went on to state that:

The inclusion of written material in the offence of possession of child pornography does not amount to thought control. The legislation seeks to prohibit material that Parliament believed was harmful. The inclusion of written material which advocates and counsels the commission of offences against children is consistent with this aim, since, by its very nature, it is harmful, regardless of its authorship. Evidence suggests that the cognitive distortions of paedophiles are reinforced by such material and that written pornography fuels the sexual fantasies of paedophiles and could incite them to offend.

...the benefits of the legislation far outweigh any deleterious effects on the right to freedom of expression and the interests of privacy...[it] helps to prevent the harm to children which results from the production of child pornography; deters the use of child pornography in the grooming of children; curbs the collection of child pornography by paedophiles; and helps to ensure that an effective law enforcement scheme can be implemented.

In sum, the legislation benefits society as a whole as it sends a clear message that deters the development of antisocial attitudes. The law does not trench significantly on speech possessing social value since there is a very tenuous connection between the possession of child pornography and the right to free expression. At most, the law has a detrimental cost to those who find base fulfilment in the possession of child pornography.The privacy of those who possess child pornography is protected by the right against unreasonable search and seizure as guaranteed by s. 8 of the Charter. The law intrudes into the private sphere because doing so is necessary to achieve its salutary objectives. The privacy interest restricted by the law is closely related to the specific harmful effects of child pornography. Moreover, the provision's beneficial effects in protecting the privacy interests of children are proportional to the detrimental effects on the privacy of those who possess child pornography.

They end the section this way:

It goes without saying that child pornography which sexually exploits children in its production is harmful. Moreover, we have seen that the harms of child pornography extend far beyond direct, physical exploitation. It is harmful whether it involves real children in its production or whether it is a product of the imagination.

The dissenting supreme court justices wrote:

In either case, child pornography fosters and communicates the same harmful, dehumanizing and degrading message.

At the meeting of MPs last week we heard from police and prosecutors who stated that the dehumanizing and degrading message extends to the written text where short stories apparently give vivid examples of every imaginable sexual act, including rape and bondage. It was pointed out that if someone advocates genocide or promotes hatred in Canada, artistic merit is not a defence. We then have to ask why artistic merit should be a legal defence when it comes to child pornography.

There is no artistic merit defence inherently required for child pornography as, for example, no artistic merit defence applies to uttering threats to cause death or falsely yelling fire in a theatre or a host of other offences. In those circumstances, parliament has rightly concluded that the risk of public harm inherent in the expression outweighs any attendant public benefit derived from the artistic merit of the expression itself.

This is an extremely important issue. Very good arguments can be made on both sides but I think it is critically important that we have a rapid re-examination of the question of artistic merit, either by parliament itself and if not by parliament then certainly by the Standing Committee on Justice and Human Rights. The committee should be looking at this very carefully so we can have legislation that can and will create a more comprehensive and thoughtful legislation dealing with child pornography. The failure to act will continue to place children at substantial risk.

In closing, I will read what Dr. Peter Collins said last week to the 37 members of parliament who gathered in the reading room for a discussion. Quoting from the Talmud, Dr. Collins said:

If you save one life, it is as if you've saved the world.

Criminal Law Amendment Act, 2001
Government Orders

12:35 p.m.

The Deputy Speaker

Before resuming debate, I am prepared to share with the House a ruling on an earlier amendment made by the member for Prince George--Bulkley Valley. Resuming debate on the amendment.

Criminal Law Amendment Act, 2001
Government Orders

12:35 p.m.

Progressive Conservative

Peter MacKay Pictou—Antigonish—Guysborough, NS

Mr. Speaker, on behalf of the Progressive Conservative Party I am pleased to take part in this important debate. I want to commend my friend from Palliser for his remarks, which I think were very apt and timely.

The debate deals with an issue that has plagued Canadians particularly in recent days and months in the aftermath of what is now known as the Sharpe decision coming out of the British Columbia court of appeal, which in essence creates an exemption for types of child pornography on the basis that they might in some fashion have artistic merit.

I think that on its merits that decision has left Canadians with a great sense of ill ease and abhorrence for child pornography, which is so detrimental to the development of a child and exploits children in a way that has long term and lasting effects on their development.

This decision, if nothing else, has exposed some of the shortcomings in our criminal justice in the way in which we deal with child pornography. Bill C-15A and the amendments which form the subject of this debate touch directly on some of these issues. Yet one could argue that the wording of the amendment that is before us dealing with artistic merit reinforces the Sharpe decision, which is the very reason that we have seen such passionate speeches against the use of the words artistic merit in describing anything that deals with child pornography and has such a detrimental effect.

I can indicate at the outset that the amendment, which proliferates or continues this use of artistic merit to describe either written, photographic or computer generated images giving them some value as artistic merit, must be brought back, as referred to by my friend from Manitoba, to either the justice committee or the House itself. The justice department should make a very indepth effort into defining, within strict parameters, what artistic merit might encompass, perhaps excluding anything to do with child pornography.

Not unlike other pieces of legislation that we have seen come before the House, there were flaws in this bill. Bill C-15A in its origin was an omnibus package that required splitting. It required taking portions of it out and putting it in another bill. There have been ongoing changes and attempts to reconfigure the legislation as it now appears before us.

The government has agreed with a number of the recommended changes from the other Chamber and yet has not agreed with the one which deals with the elimination of the threat of prosecution for Internet service providers and cable companies. That amendment to the legislation is one which is somewhat difficult for many to understand. What it says in essence is that we cannot hold culpable or criminally responsible the Internet provider for the mere transmission of what would be deemed offensive pornographic material.

It follows previous precedent cases involving telephone companies or even the postal service. A supreme court ruling in The Electric Dispatch Company of Toronto v The Bell Telephone Company of Canada, which goes back over 100 years, found that the notion of transmission encompassing the person sending the message and the person receiving it but not the intermediary providing the technical wherewithal for the communication. This was referenced by Pierre Claude Nolin in the other place. One could say that this same argument would apply to the Internet service providers.

If all that companies do that are only acting as intermediaries between two or more persons is provide the means for storing or transmitting digital data for a third party, they might be innocently caught up in the transmission of smut or any offensive material. In this context one would expect there would be the recognition on the part of a trier of fact that the person who transmitted the child pornography without knowledge would not be held liable. However, where the issue is so serious and detrimental to the development of a child and to the spinoff effect there has to again be ironclad wording, very precise and clear language used in reference to that.

An amendment has been moved that essentially would negate the amendment brought forward by the Senate and would send it back for further study, which is perhaps what should happen. It appears that the issue, in the first instance, did not receive the attention it needed.

As we have seen with other bills, the Senate in its wisdom did good work but, because of the broad implications of this, we should take the time to ensure we have it right. For that reason, we in the Progressive Conservative Party feel that we cannot support the Senate amendment with the new and expanding forms of communication over the Internet. It is absolutely pivotal and critical that the legislation be precise and clear. It is meant to update the old sections which were aimed at the same sort of nefarious activity: the spreading of pornographic material that exploits children.

A number of Internet service providers that testified before the justice committee, providers such as AOL Canada, strongly supported the government's effort to limit the existence of child pornography and the proliferation online, and to capture the wrongdoers.

I think it is fair to say that within the industry there is a clear recognition and an acknowledgment that they must co-operate and do everything they can to monitor the service they provide and co-operate with law enforcement in preserving and, in many cases, turning over evidence to the police and to the law enforcement community.

I do not feel the bill captures the necessary tightness to ensure that both Internet service providers and this omnipresent, ever valuable effort to protect children is properly balanced. The possibility of liability attached to the stakeholders who participate in the blocking or the removal of material is still in the current wording and yet by virtue of this amendment we feel there is still some jeopardy that could exist for children.

I would suggest that most Internet service providers are being extremely diligent in their efforts to self-police their systems yet there is concern that by virtue of the wording of the legislation they could get caught in the net or the crackdown on individuals who bring pornography online.

Let us be clear, there is no property in good ideas and no political hay to be made on this issue. There is a very real intent and a very real spirit of co-operation on all sides of the House to ensure that we get this right for the protection of our most vulnerable, our most valued citizens, our children.

The Progressive Conservative Party of Canada, in that vein, acknowledges the spirit and intent of the legislation. My colleague made reference of Rose Dyson, a very distinguished Canadian who has taken upon herself the role of championing the protection of children and Canadians generally from images and acts of sexual violence and violence.

In our last election platform my party brought forward a national strategy to combat child pornography and child abuse. The package included references to Internet safety education for children as well as measures to ensure adequate training for police involved in the tracking of pornography. Extraordinary efforts are underway today throughout the land on behalf of municipalities, provinces and the RCMP to address this ever expanding and very harmful issue that takes place within many communities.

The legislation today deals with a number of elements for protecting society. It also has references to protecting and expanding the sentence range for those who stalk individuals or disarm a police officer.

There is also a very important amendment which touches upon the subject matter of the wrongfully convicted and those who have an opportunity then to bring forward their case when new evidence comes to light or when there has been a miscarriage of justice.

On a number of occasions we have seen instances where new science, such as the use of DNA particularly, has exonerated individuals who were convicted. There is one case that I would suggest has long been a festering sore on the Canadian justice system. That is the case involving Steven Truscott. A book has been written quite recently by a very renowned author, Julian Sher, entitled Until You are Dead , which references the sentence which was handed down to Mr. Truscott as a 14 year old upon being convicted of a murder.

There is a 690 application that has been brought forward on his behalf by a well-known lawyer and defender of the wrongfully accused, James Lockyer. This is before the justice minister as it currently stands. However this new legislation will not impact on that. We implore the justice minister to act with haste, with prudence and with diligence to ensure that the miscarriage of justice is corrected in the very near future.

The way this legislation currently reads, there are concerns particularly given the creation of this loophole that comes from the Sharpe decision that many members have already enunciated. There are a number of ways in which we can improve the child protection measures within the criminal code but many of those efforts and amendments will be in vain if police are not given the support and the necessary tools and resources to address the issue.

There is very much a fiduciary duty on not only the law enforcement community but also on members of parliament, members of the defence bar and members of children's aid to do everything within their means to respond to the issues of child pornography and images and to the written word being used to disparage and degrade children within communities.

The legislation is a step and a move in the right direction. It is very much aimed at expanding the current efforts that are available and the current elements of the criminal code which reference child pornography. Yet the act itself is something that is not directly addressed in such a way that would allow for the eradication of such and allow for police officers to go to the lengths needed to direct all of their attention and resources to the issue itself.

Much of this issue is one of common sense. In terms of clarifying, the amendment of the legislation itself should put greater emphasis on the protection of children. The bill, as it is brought forward, groups a number of criminal code amendments in one and this suggests to me that the proper emphasis is not there. This legislation aimed at child pornography should be standalone, particularly underscored by the decision in Sharpe. I would suggest that there is now an opportunity on the part of the Minister of Justice and the legion of lawyers that he has in his department to pick up this issue and come back with legislation that defines narrowly and strictly when artistic merit might be brought into play as a defence for using and proliferating child pornography.

There is also an important timeline to keep in mind. The clock is running with respect to the appeal itself in British Columbia. That time period expires this week. We are yet to hear a public commitment from the Minister of Justice to put pressure on the attorney general of British Columbia to clearly state that not only will the Government of Canada be pushing for this appeal to be taken but will also join in that appeal as an intervener. As has happened in the past, this should clearly happen and should happen immediately. It is surprising and disheartening I think for most Canadians to know that the government has responded in a very lackadaisical way.

Individuals who are convicted of the heinous crime of pornography against children should be punished and should definitely receive the full extent of the law. There has to be a higher element of deterrent and public example of those who engage in this sort of activity.

The other day there was a private member's bill which looked directly at increasing the sentence for those convicted under sections 152, 153 and 151 of the criminal code. The Progressive Conservative Party certainly agrees and supports the intent of those bills, but recognizes, as most Canadians would recognize, the need for very clear definitions when dealing with the law.

Amendments that are put forward at any time are meant to strip away some of the confusion. My grandfather used to speak about how confusing the law could be. He said “If you are putting a new roof on your house, you do not put the shingles on top. You have to strip some of the old shingles away”. That metaphor is very true of how we draft and craft law in this place.

It seems that far too often we are piling legislation on top of legislation, instead of in some instances removing some of the provisions that simply muddy the waters. Particularly when it deals with issues so fundamental, so clear I think in the minds of Canadians, we certainly should draft legislation that mirrors that and reflects the same clarity of thought and clarity of purpose.

The bill as it stands currently, which deals with the numerous issues I have talked about including the miscarriage of justice, is still in my view somewhat unclear. The one amendment which we support wholeheartedly deals with the miscarriages of justice and calls upon the minister to put certain criteria in place for those who would be involved in the panel and the review of those miscarriages. They have some basic understanding of the criminal justice system and the system itself, be they retired judges, lawyers, defence or crown lawyers in good standing with their provincial bar, or they have had some experience that would lend credibility and a greater understanding to the hearing process. This we see as a very good step toward ensuring that there is no further miscarriage of justice when that panel undertakes its review of the evidence itself.

Again I very much associate myself with the remarks made by previous members that legislation which is clear and which responds to this gaping hole left by the Sharpe decision is necessary. There were old sections in place that dealt with this nefarious activity, but because of changes in technology, changes in the way in which we can communicate images and the written word, this is a modernization attempt. It is an attempt by legislators, by parliament, to respond. Certainly the spreading of pornographic material of children, exploiting children, is perhaps that issue which is most offensive and which most binds Canadians together against some common enemy or some purpose in which we can all agree that there has to be more.

What on earth could be more fundamental than that issue and more fundamental to the role of parliamentarians to respond? Certainly heightened awareness itself is not enough. Families recognize that their children have to be protected. They recognize that the world has changed, that there are in fact greater dangers afoot around every corner. This type of legislation with which we have been charged, to improve and examine, gives us that opportunity.

Two of the three amendments come up short in terms of reaching that standard of clarity and standard of purpose. The average Canadian would expect more and we cannot shy away from it. We should take every opportunity to get it right on an issue such as this.

The transmitting and the making available of this type of material, whether it be to sell or exploit, should be a criminal offence. There should be an effort made to ensure that no person is wrongfully convicted. There is some irony that we find elements of the wrongfully convicted in this very same bill. It is certainly something that undermines the justice system further when a person is wrongfully convicted.

I will close on that note. The Progressive Conservative Party will be supporting the legislation generally, but not the amendments which we feel work contrary to the express purpose of this legislation.

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12:55 p.m.

Canadian Alliance

Roy H. Bailey Souris—Moose Mountain, SK

Mr. Speaker, I expect everyone knows the reason why today the flags on Parliament Hill and across Canada are flying at half mast. It is a very sobering thought that young men gave their lives and spilt their blood on foreign soil.

May I suggest that because of the inaction of the government two or three years ago, lives of precious young children have been lost in every province of Canada. Parliament did not use the notwithstanding clause to strike down the original decision in British Columbia.

How many thousands of children have been brought into a life of abuse and many of them are now 10, 12 and 15 years old. They will never live a normal life. Because of the protection given under artistic merit, we are quite prepared to let this crime go on.

The hon. member for Palliser quoted from some of the letters he received. The most touching was listening to the phone calls and the callers describe the abuse, which was enough to bring tears to anyone's eyes, all because of some judgment that under freedom of expression and artistic merit allowed this evil to continue in our society.

I was engaged in education. I was in administration long before we had support staff. I know what it is like to counsel someone who has been abused by a pedophile. I know what it is like to have to deal with people who have been subjected to incest. Yet we, as parliamentarians, are afraid to do what is right to protect these people in case we might infringe on somebody's civil liberties.

This action of pornography has no defence. Abraham Lincoln said that many people defended alcohol and liquor, but it had no defence.

I want the House to think of a particular act in the history of this country that has brought more disgust from Canadians from coast to coast than allowing the sexual exploitation to go on. There has been none. If we could take a quick poll, we would be well into the nineties about the decision that came down.

The House of Commons is a supreme court. The House of Commons should act. The House of Commons is more important than any other act or any other court. We should never have allowed this to get rolling in the first place. We should never have allowed Canada to be called the pornography capital of the world, but it happened.

I am pleased by the remarks of the member for Palliser and the House leader for the Conservatives. I see from where they are coming. Hopefully we and those on the other side of the House will have the courage to say that not only are we going to cut down on pornography but we are also going to eradicate pornography. What is wrong with that? Nothing at all.

If people put Xs beside members' names, although we have those who do not even bother to vote any more, then members should show them the worth of parliament. We should show them we have the intestinal fortitude and the morality to do something about this, and now.

What has happened is the biggest insult that was ever hurled at Canadians. Can we think of any other time in our history when Canadians of all ages got a slap in the face, an insult like they did with this decision? Talk about demoralizing, this did it. Talk about degrading, this was it. Talk about pure unadulterated filth, and somebody says there is some artistic merit to it.

I have eight grandchildren, four of whom are at university. At one time my daughters were little girls. If anything would have been perpetrated upon them and that insidious filth had been put before them, and a government and a court upheld that action would have been inhuman and not becoming to Canadians.

Let us get with it on both sides of the House. Let us tell Canadians that nothing of any good can come out of this unless we as parliament act. We can no longer leave it to the courts. We will have to take this decision ourselves. Let us stand up as Canadians and say we are not going to feed this kind of crap any more.

What possible good can come out of this recent decision? The answer is absolutely nothing. While our flags are at half mast, we as parliament must act now to cut the feet right out from under these people in our society who are sick. We owe everything to our children and our families. That is my function here on earth. My function is not to destroy the minds of young people. My function is not to degrade my society. My function is to uphold society.

I want to end my speech with a poem:

We are all blind until we see That in the human plan; Nothing is worth the making That does not build the man.

Why build these cities glorious If man unbuilded goes. In vain we build the world Unless the builder also grows.

Let us move together and eradicate this disease in Canada. Let us do it now.

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1:05 p.m.

Progressive Conservative

Peter MacKay Pictou—Antigonish—Guysborough, NS

Mr. Speaker, I want to commend my friend and colleague from Souris--Moose Mountain for a very passionate and I believe heartfelt expression of how many Canadians feel. It is certainly empowering and invigorating for members of parliament to see such a straight from the heart expression of the abhorrence Canadians feel for this issue.

I took from within his remarks the desire of the member to see more done. I would ask him whether he would support, and I am sure he would, a national child protection strategy. It would look specifically at expanding other areas of the criminal code to put our efforts toward protecting children, to give the police and the judiciary greater ability to respond in a firm fashion.

I am talking about in some instances giving the judges the ability to bar or destroy certain evidence that was used and introduced in the courts. We could allow judges to have mandatory minimum sentences apply in some instances where child pornography was present. We could allow for the taking of DNA samples, as we have in certain instances in the criminal code that deal with issues, I would suggest, far less damaging and far less detrimental than the issue of child pornography. We could allow for the rules of disclosure to be amended. This would empower the police in some instances to produce a sample of the offensive material rather than the reams and reams of documents and thousands of pages of information.

As we have seen in other instances, we could allow the courts to put creative sentences in place that would bar these offenders, pedophiles and those who engage in this activity, from any contact with children. Sadly, many of these offences that occur are perpetrated by individuals known to the children, in fact, individuals who are in a position of trust. Current provisions in the criminal code bar individuals from attending schoolyards or swimming pools, but nothing bars their interaction with children in a dwelling house, which is where most of these offences take place.

Surely there is more we could do, a national strategy that touches on just a few of those issues and others that time restricts me from mentioning. Would the hon. member certainly like to see that effort undertaken by this place to gain greater relevance and greater importance in parliamentarians' efforts to eradicate child pornography?

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1:10 p.m.

Canadian Alliance

Roy H. Bailey Souris—Moose Mountain, SK

Mr. Speaker, while my hon. colleague was outline some of the events and things we could do, I was thinking of the wartime speech of Sir Winston Churchill who said “give us the tools and we will finish the job”. My hon. colleague listed a number of tools that are at our disposal. We can expand on them and we can finish the job. What is lacking is the will to do it.

We must go out to our schools and work through our churches and social services. It must become a priority across Canada. My hon. colleague mentioned the DA, disclosures and other things. Those are the tools. Let us get them into the act and let us go to work. We can and will with determination outlaw and ban totally this evil of evils, pornography.

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1:10 p.m.

Canadian Alliance

Dick Harris Prince George—Bulkley Valley, BC

Mr. Speaker, as my colleague from Souris--Moose Mountain pointed out, Canada appears to have acquired the title of the most lenient country in the free world when it comes to the possession, transmission and sale of child pornography. The numbers are astounding. When we look at the numbers we see a remarkable increase over the last five years. During that last five years, and since 1993, the Liberal government has been in power, unfortunately.

My friend said that if we are going to fight this effectively we must have the will to fight it. The question to ask of the government is whether it has the will to go up against the judiciary and some of its insidious decisions and against the legal community. Some lawyers appear to take great delight in finding loopholes in the law or within the criminal code with regard to something as horrible as child pornography.

Does the government have the right to target, and target effectively, people who are doing whatever they can to allow it to go on rather than, as I spoke of earlier in my presentation, just taking a shotgun approach to it? There are targets within the people who are trying to proliferate child pornography.

Does my colleague really think that the government has the will to go after some of the court decisions and some of the people who are involved in this?

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1:10 p.m.

Canadian Alliance

Roy H. Bailey Souris—Moose Mountain, SK

Mr. Speaker, I do not know the will of everyone on that side of the House but I do have many friends on that side and I do know they have the same desire and the same will that I have.

I remember one time in the provincial legislature being reminded by the premier that we were the highest court in the province and that we would overrule and we would make those decisions. That applies here as well. This House is the highest court in the land. With the use of the notwithstanding clause we become the highest court.

We do not want any more wishy-washy lukewarm procedures on that side of the House. We want to come out fighting and to stay fighting.

Do not worry about affecting anyone else but the young people. Do not worry about ruining anyone's lives except those of the young people. Do not worry about making people suffer except the young people. Let us think about that. Everything else will take a back seat and second place. Let us get the show on the road. We can do it if we want to.