Debates of Feb. 18th, 2004
House of Commons Hansard #13 of the 37th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was public.
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Reg Alcock for the Minister of Justice and the Attorney General of Canada
That Bill C-12, in Clause 27, be amended by replacing lines 5 to 20 on page 24 with the following:
“27. If Bill C-7, introduced in the 3rd Session of the 37th Parliament and entitled the Public Safety Act, 2002 (the “other Act”), receives royal assent and section 10 of this Act comes into force before the coming into force of any provision of the definition “offence” in section 183 of the Criminal Code, as enacted by section 108 of the other Act, then, on the later of that assent and the coming into force of that section 10, paragraph (a) of the definition “offence” in section 183 of the Criminal Code, as enacted by that section 108, is amended by adding the following after subparagraph (xxvii):
(xxvii.1) section 162 (voyeurism),”
Libby Davies Vancouver East, BC
Madam Speaker, congratulations on your new position as Acting Deputy Speaker. It is always good to see women in the Chair. It is not an easy job to do. We are pleased to see you there.
I am pleased to rise in the House today to debate the amendment in Bill C-12 at report stage. The amendment we have put forward would delete clause 7. This clause removes the defence of artistic merit from existing child pornography legislation and replaces it with a public good defence. Our amendment would delete that section of public good defence.
Before I speak further, I want to recognize the work of my colleague, the member for Dartmouth, who has taken on this bill and many other issues in the House, as our arts and culture and communications critic. I think she has earned respect from all sides of the House for the tremendous job she has done in promoting Canadian arts and culture.
We have had to deal with some very difficult issues in the bill in terms of defending the rights of children and to ensure that child sexual abuse does not take place in our society. We also have had to deal with issues of artistic merit and protecting the legitimate areas for artists for true expression. This has not been an easy thing to do. I think we all have an admiration for the work the member has done, in working with the broader community, to ensure that the legislation can be supported. In fact the amendment before us today is as a result of the member for Dartmouth's work.
Protecting children and other vulnerable people is one of our highest duties, both as members of Parliament and as citizens and residents of Canada. It is one that we should not take lightly.
In this age of digital transmission and global communication, visual examples of child pornography have become something that I think we all find horrifying and that we abhor. I agree that any depiction of child abuse that glorifies those acts or is intended to incite people to commit them must be criminalized. For those of us in the New Democratic Party, this is something which we believe most strongly.
The sexual abuse of children is an atrocity, a despicable attack on the most vulnerable members of our society. It is an act of terror, an assault on our society's most basic values of honour, protection and dignity.
Although the NDP agrees with the general intent of Bill C-12 to protect children and other vulnerable persons from exploitation, we have a problem with the vague language of clause 7. We believe weakens the whole bill. Indeed, witnesses who appeared in front of the justice committee, for example from the Toronto Police Association, as well as groups such as the B.C. Civil Liberties Association and the Canadian Conference of the Arts, all indicated that they felt that clause 7 was problematic because the language used was vague and contradictory.
In fact, after the previous debate on this issue in November 2003, Pierre Plourde, an LLB candidate in the Faculty of Law at the University of New Brunswick, contacted members of the House. He believes that the amended clause 7 is still unconstitutional and that courts will have to treat the public good defence the same as the existing defence of artistic merit to avoid striking down the entire law. This is clearly problematic.
Many of our colleagues in the House have complained that the original child pornography law was sloppy. The problem we are faced with now is that that this new law will become another sloppy law. It is something we need to fix as quickly as we can. It will not help protect our children from abuse.
A problem that was noted in committee, through the witnesses, was that the bill as it stood would also increase the burden on police forces. I quote from Detective Sergeant Paul Gillespie of the Toronto Police Service, who appeared before the justice committee in October 2003. He said:
We've seen what happens when police are left to define what is or isn't artistic merit. We'll be fighting about this one for years. Police would simply appreciate laws that are very clear and that will allow us to make better-informed decisions at the time we are required to make them. Wording that is very open to speculation and suggestion and not quite clear makes it very difficult for officers to understand exactly what they're supposed to be doing.
We would agree and say that it is incumbent upon us to ensure that the law is clear.
It is not just artists who face a chill from this legislation. Researchers and health workers will also have to wonder if their work leaves them open to prosecution. For example, psychiatrists working with victims of sexual abuse may wonder what material they can actually publish. With a very vaguely worded public good defence, they could find themselves being accused of creating child porn by referencing events that happened to their patients.
We could have created strong legislation, one that would not be open to charter challenges. I am sure that is something no member of the House wants to see. Again, the amendment is important, and it is important that we try to fix the problem now.
For example, clause 7 leaves it up to the courts to decide if an act or material goes beyond what is considered as the public good. When we discuss measures that limit rights outlined in the charter, the decision should not be left to an unelected, unaccountable body in our court system. We believe that discussion should happen here in Parliament.
The second reason we have asked for this amendment is that this clause does not protect artists. This was a very critical point at the committee, and it is something that has been part of the debate through the passage of the bill. The new defence of public good is too vague and unproven.
We believe it will take years of jurisprudence for the courts to decide exactly how to apply this defence in relation to child pornography laws. Will museums, for example, be prosecuted for holding classic works of art that depict children in sexual acts? Will libraries, which protect the rights of Canadians to read any and all kinds of literature, have to clear their stacks of any books that might suggest teenagers had sex with adults?
Artists need the freedom of an open democracy to create their work. Artists are concerned that the legislation contravenes a basic tenet of our judicial system: one is presumed innocent until proven guilty.
We believe this clause, if it were left as it is, would force an artist to prove that his or her work is for the public good and does not extend beyond it. In fact, Megan Williams, who is the National Director of the Canadian Conference of the Arts, told the committee how artists felt about being guinea pigs of bad legislation. Again, this has had extensive debate both within the arts community and in broader society. She said at committee:
I want to add also that artists do not want to be on the front lines of testing dubiously drafted legislation again.
During the committee hearings, many people brought up the silence around child abuse and how important it is to not return to a time when children and adult survivors of abuse could not talk about it. The chill that this proposed legislation will create cannot be under estimated.
There are other areas of Bill C-12 that we do support and, in fact, overall we support the bill. However, in this area we have a very strong concern.
The proposed bill extends protection for children and other vulnerable people. As we have said, this is clearly something that is very important. However, we cannot support treating all work that deals with children and sex as pornography. It is important that survivors can speak, write or draw about their experiences without facing persecution. It is important that artists can explore not just the virtuous part of our society but also its dark side.
We believe clause 7 should be removed, and thus we have put this amendment forward today, and allow the rest of the bill to go forward.
I hope that the debate today will be something that is respectful. I know this has been a very contentious issue. We put forward the amendment with very good intentions to help make the a bill that is clearer and is something that can be supported by all members of the House.
It was very important that we had the input from different sectors of society: police, artists and others. We believe that the amendment to delete this clause is something that will strengthen the bill.
Sue Barnes Parliamentary Secretary to the Minister of Justice and Attorney General of Canada
Madam Speaker, I also am glad to see another woman taking the position in the chair.
There are three motions on Bill C-12. I will briefly speak to the two government motions. Government Motion No. 1 is a grammatical correction amendment to clause 6. This is a technical motion that proposes to correct a grammatical mistake in the French version of an amendment made in committee. Clause 6 was amended in committee to add the offence of “advertising” a recording made through the commission of an offence of voyeurism to the listing of other prohibited acts regarding such voyeuristic recordings. The words added in the French version require an indirect object, but they are placed in a sentence where all of the other verbs require a direct object.
The amendment would replace the expression “faire de la publicité” with the verb “annoncer”, a verb which is of a similar nature to the other verbs or prohibitions used in the clause and which is also the same French verb used elsewhere in the Criminal Code for the English equivalent of “advertising”. This would make the French and the English versions consistent.
I will move now to government Motion No. 3, which is a coordinating amendment on clause 27. Again this is a technical motion to amend clause 27 of Bill C-12. It replaces Bill C-12's reference to the public safety bill that died on the Order Paper with the current reference to that same bill as reinstated on February 11.
Clause 10 of Bill C-12 proposes to amend section 183 of the Criminal Code to add the new voyeurism offences to the list of offences for which criminal investigations can intercept private communications and use video surveillance. Bill C-7, the Public Safety Act, 2002, formerly Bill C-17, also amends section 183 of the Criminal Code to add other offences to the list.
Clause 27 of Bill C-12 is a coordinating clause. It is needed to ensure that the amendments to section 183 proposed by both Bill C-12 and Bill C-7 can come into effect regardless of the order of enactment of these bills.
Accordingly this motion seeks to amend clause 27 of Bill C-12 so that it now refers to the new bill number for the Public Safety Act, Bill C-7, to thereby coordinate both bills' amendments to section 183 of the Criminal Code.
Now to the more substantive matter which the hon. member for Vancouver East has proposed in her motion. I rise today to oppose the motion of the member opposite. I do acknowledge the hard work that has been done by all on this committee.
In effect, this motion seeks to maintain the status quo on child pornography and this is something which neither Canadians nor this government accept. The government believes that the existing child pornography provisions do not go far enough to protect our children against this form of sexual exploitation.
They do not go far enough because they restrict the definition of written child pornography to only those materials that “advocate or counsel” unlawful sexual activity with children. The existing child pornography provisions do not go far enough because they provide two defences for all child pornography offences, including a defence for material that has artistic merit or an educational, scientific or medical purpose without any harms-based test.
Bill C-12 says no to the status quo while this motion says yes to it. Clause 7 of Bill C-12 proposes two reforms to the existing child pornography provisions. First, it proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the dominant characteristic of the material and it is done for a sexual purpose.
Second, Bill C-12 proposes to narrow the two existing defences into one defence of “public good”, a term that is now specifically defined in the bill. Under the new law, no defence would be available where the material or act in question does not serve the public good or where it exceeds or goes beyond what serves the public good. More simply stated, if the risk of harm that it poses outweighs the benefit that it offers to Canadian society, then no defence would be available.
Today's motion goes in the opposite direction of Bill C-12. It says that written materials that consist primarily of descriptions of unlawful sexual activity with children, which descriptions are done for a sexual purpose, are okay. It says that these materials are not child pornography and that they should not fall within the reach of the criminal law.
The Supreme Court of Canada interpreted “for a sexual purpose” in the Sharpe case, 2001, as that which can be reasonably perceived as intended to cause sexual stimulation.
With this interpretation in mind, I find it virtually impossible to comprehend the basis for any argument that seeks to support and protect materials that mostly describe the sexual abuse of children and where these descriptions can be reasonably perceived as intending to cause the reader to be sexually stimulated.
These materials are not okay, as this motion would have us believe. The Criminal Code provides a comprehensive set of prohibitions against the sexual abuse and exploitation of children. The type of written materials that Bill C-12 wants to include in these protections, but which this motion seeks to exclude and to protect, are those that portray or purport to portray children as a class as objects for sexual exploitation. The government recognizes the very real risk of harm that such portrayal and objectification of children pose to our children and to society at large. That is why Bill C-12 proposes to include these types of materials within our definition of child pornography.
The second thing that this motion seeks to do is to maintain the current test for when child pornographic materials should be protected by the defence of artistic merit. Under the current test for artistic merit, the defence is automatically available for material that, objectively viewed, demonstrates some artistic merit, no matter how small and no matter what the risk of harm it may pose.
For example, if the material in question is a written story, the test for the current defence is, objectively viewed, does the story reflect some accepted or recognized literary techniques or styles? If so, the defence is available, irrespective of whether the risk of harm that story poses to children in society outweighs any benefit that it offers.
The government does not agree with this and does not support the existing test for artistic merit and neither do Canadians. The Standing Committee on Justice and Human Rights amended Bill C-12 to define the public good as including acts or materials that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.
This definition is modelled on the Supreme Court of Canada's interpretation of the public good in Sharpe. This will help to ensure that the subsequent interpretation of Bill C-12 is guided by the Supreme Court's decision in this case.
The justice committee's amendment of Bill C-12 to include a definition of the public good directly responds to concerns expressed by the arts community and other witnesses who appeared before the committee. They wanted greater clarity in the bill as to what constituted the public good. The justice committee amendment to define the public good responds to this concern.
However, as to the balance of the concerns raised by the arts community witnesses, a number of observations should be made. In a child pornography case, the first question to be considered and answered is whether the work in question meets the Criminal Code's definition of child pornography.
Examples of written works that were described by these witnesses to the justice committee would not meet the existing definition of written child pornography, that is, they could not be said to advocate or counsel unlawful sexual activity with children. Neither would they meet Bill C-12's proposed new definition. That is, they could not be said to be works that, one, were comprised primarily of descriptions of unlawful sexual activity with children and, two, that such descriptions were written for a sexual purpose.
If the material in question meets the definition of child pornography, then the second question to be considered--and it is a question that falls to the courts to determine--is this: Is this material protected by a defence? Under Bill C-12 there would be only one defence and the test for the single defence would be the same for all material. It would be a two-step inquiry that indicates and includes a harms-based test and it would be possible for art to meet such two-step inquiry.
The motion to delete clause 7 of Bill C-12 is not consistent with the objectives of the bill as set out in the preamble, which states:
Whereas the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect--
It is for these reasons that I urge all hon. members to support Canada's children and support Bill C-12 as passed by the justice committee and not to support this motion from the hon. member of the opposition.
Vic Toews Provencher, MB
Mr. Speaker, I would like to add my comments to this particular debate. I think it is a very important debate.
I am very concerned about the whole issue of the public good defence, as I am concerned about the artistic merit defence. I support the NDP amendment that was brought by the member for Vancouver East only because the government proposal to replace the artistic merit defence is worse than the actual artistic merit defence itself.
We heard in committee that the public good defence in fact increases the ability of pornographers and child predators to take advantage of our children. There was not one witness, other than the minister himself at that time, who supported this amendment. Whether it was civil libertarians on the one side or child advocacy groups and police forces on the other, none of them supported the public good defence because, in the words of David Matas, for example, a very prominent lawyer from Winnipeg, also known as a civil libertarian, this increased the ability of pornographers to take advantage of our children.
I am supporting the motion by the member for Vancouver East to delete the public good defence, but I say that I cannot support the bill, which would then include the artistic merit defence. This bill needs to be taken back to the drawing board and a real defence put in place that prohibits the criminal exploitation of children the way the artistic merit defence has allowed pornographers and child predators to take advantage of our children and, indeed, the way this new defence would.
I will state something very interesting that was stated by another NDP member, the member for Palliser. He seemed to indicate that some child pornography is not really dangerous, that it is not really bad. In his defence of the creation of some types of child pornography, the member for Palliser stated in Hansard on January 27, 2003:
Mr. Speaker, in response to the member's specific questions, the position that I take, and I believe would be shared by a majority if not all of my caucus colleagues--
He is speaking about his NDP caucus colleagues:
--is that if it has not specifically hurt a minor in the production of it, if it is created by people's visual imaginations and if the main purpose of it is not simply about pornography and sexual exploitation, then under the laws people do have a right to their own imaginations and thoughts, however perverse the member and I might think they are.
That was what the member for Palliser said: that some types of child pornography are acceptable to him and the members of his caucus.
I would suggest that this NDP member and the members of that caucus who share his view spend some time talking to police forces across Canada that investigate child pornography. Even in those cases where an actual child has not been harmed--for example, in the case of virtual children, who are indistinguishable from a real child but where no real child has actually been used--that kind of pornography is extremely harmful because it is used for predators to groom children and to make children think that kind of conduct and behaviour is all right. I think that is just deplorable.
So now I am very suspicious when an NDP member stands up and says we should get rid of this defence. I want to make it very clear where I stand on this issue. I oppose the public good defence that the Liberal government has brought in and that every credible witness discredited and I oppose the artistic merit defence that allowed child predators like John Robin Sharpe to take advantage of our children in this country.
I oppose both of those defences and I am asking the government to listen to the evidence it heard in committee. Let us go back to the drawing board and do it right this time in order to protect our children. Let us make it clear, not like the NDP, that all child pornography that exploits children should be banned.
Specifically, when the minister at the time came before committee, he admitted that the artistic merit defence was still included in the broader public good defence. He stated:
Artistic merit still exists in the sense that a piece of art will have to essentially go through the new defence of public good and through the two stages. Of course, the first question is always this. Does it serve the public good?
The point is then that buried in this new defence is the old defence of artistic good and the same law that allowed a judge to acquit John Robin Sharpe of two counts is still there. Why are we going through this exercise, this kind of Liberal feel good exercise that we are doing something about changing the law when in fact we are doing nothing of the sort? Substantively, the test will be the same.
The Conservative Party calls for the elimination of all defences that justify the criminal possession of child pornography. Of course, the criminal possession of child pornography does not apply to those in the justice system associated with prosecution, or researchers studying the effects of exposure to child pornography. We know that there are a number of defences that are still available to child pornographers.
The entire Liberal approach to the protection of children as demonstrated by the bill is shameful. The disguising of the artistic merit defence under this broader defence of the public good is only one particular problem.
Another serious problem is that in Canada the age of consent between adults and children for sexual activity is age 14. In special circumstances, where an accused thinks that the child was in fact 14, the sexual contact of an adult with a 12 year old child can be justified. There was a recent case where a 12 year old native girl was raped by three individuals and two of them were acquitted on the basis that they thought that the girl was 14 years of age.
It is shameful that even in Canada we could advance that kind of argument, that adults--these boys as the judge referred to them--who were over 20 years old or 24 years old could rape this young girl and be acquitted because they thought she was 14 years of age. It is disgraceful.
The government continues that kind of disgrace and tries to create a new category of exploitive relationships. To prove that relationship will be cumbersome and complex. It will frustrate police and prosecutors. Most civilized western democracies, and others indeed, have at least a minimum age of 16. Why is the government so scared to protect children under the age of 16 from the exploitation of adults?
Karen Redman Kitchener Centre, ON
Mr. Speaker, discussions have taken place between all parties concerning today's debate on the report stage of Bill C-12. I believe you would find unanimous consent that if recorded divisions are requested today on the motions at report stage of Bill C-12, they be deferred until the end of government orders on Tuesday, February 24, 2004.
The Acting Speaker (Mr. Bélair)
Is it agreed?
Some hon. members
James Lunney Nanaimo—Alberni, BC
Mr. Speaker, our party appreciates the efforts of the member for Provencher who just spoke on this issue. He has been our point man on this issue. He has been active on this file and has been keeping us informed. As the former attorney general of the province of Manitoba, he is well versed in the legal implications of these matters.
I would also like to mention the hon. member for Wild Rose, who has been a campaigner in our caucus and in the House for as long as I can remember on the issue of child pornography. I know his heart, like many of the members on this side, is greatly shaken. He is outraged, as are many of the constituents in my riding, about what is going on with child pornography in our midst today and by the inaction by the House, led by the Liberal government, in dealing with these atrocities that go on as we speak.
There are so many issues to which the government responds with an illusion instead of with substance and with a smokescreen of taking action that is not the action required to change the problem. It is an illusion.
We see it in other instances, for example, in dealing with crime. Instead of dealing harshly with criminals who misuse firearms, the government comes up with a strategy to register the weapons of duck hunters and farmers and wastes a billion dollars of taxpayers' money. It is an illusion that does not address the underlying issue.
We see it in other areas, but nowhere is it more demonstrated than in criminal justice matters such as child pornography and the age of sexual consent.
It was not long ago that members of the Toronto Police Force came to the House to help us understand what was going on. Sadly, most members of the House and many members of the public do not understand the depth of depravity that is going on today in the underworld of pornography, particularly as it relates to children.
There is a proliferation of very graphic sexual and violent images of abuse of children that are abundantly available today. They are putting our children at high risk and continue to undermine the very values of our society. We are concerned.
Many members could not sit through the entire presentation because they were so distraught at the images that the officers put forth. They warned us that it would be graphic, that it would not be easy, and that in fact it would be tough. Some members frankly were not able to continue. Some of the seasoned police officers themselves have not been able to carry on with investigations because of the volume of the very graphic and destructive material that they are required to view in terms of prosecution.
In our area of Vancouver Island, British Columbia we are not proud to lay claim to the fact that the John Robin Sharpe case comes from British Columbia. This case infuriated the people in British Columbia when this man, with his vile images of abuse of children, was exonerated. He tied up the courts because they refused to deal with the issue of the defence of artistic merit. Cases were not even being prosecuted for a period of time. It tied the hands of the police in dealing with these matters.
That brings us to where Bill C-12, as we call it today, is going. The hon. member for Provencher has already outlined where we are going with the artistic merit defence. It so outraged Canadians that somehow we could find artistic merit in the abuse of our children, or that anyone could. It is just an outrageous concept.
It brings us to the understanding that the government has again created an illusion. The Liberals hope to campaign on the bill, saying that they have got tough on child pornography and have acted to protect our children.
The House has a responsibility for more than smoke and mirrors. We have a responsibility to deliver goods to the people that actually accomplish the objective. Smoke and mirrors are not good enough. Repackaging artistic merit as public good is simply not good enough. It will allow the same kind of defences to go on, and the same kind of abuse to continue. It will allow lawyers to argue in the defence of their clients that there is some public good in these atrocities.
Recently I was visited in my riding office by two groups of citizens who are concerned about the age of consent and about sexual abuse of our young people. Marie Poirier from my riding, as well as Joan Sauve, Gloria Ash, Viola Cyr and Helen Metz came to see me. They were part of a white ribbon against pornography campaign and they had hundreds of signatures written on these white ribbons. They were concerned about the abuse of our young people who were being victimized by people who thought that it was all right for adults to engage in sex with young girls and victimize them.
I was not able to present these petitions in the House because they did not fit the appropriate format, but on their behalf I want to say how outraged parents and families are because they know of people in our neighbourhoods and communities who have been abused. The example that the member for Provencher mentioned a moment ago dealt with two men who were acquitted of sexually abusing a girl as young as 12 because they thought she was 14.
This was not about consenting sexual acts among young people, as much as we might disagree with that. It was not about consenting young people. It was about adults abusing young people. Sadly, this kind of activity continues in our society. It continues to hurt and damage young people, leaving them scarred, many times for life.
Thank God that through counselling, and the help and assistance of the many volunteers who try to help these people, and with the support of families, some of them will overcome it, but many of them will carry this abuse into future relationships and will be damaged perhaps for life.
We see some serious problems with this legislation. We see more smoke and mirrors. We see a government that wants to say that it has taken action to deal with this when in reality what it has done is simply change the language that will allow it to continue.
The Conservative Party of Canada would like real answers. We would like to see this moved ahead. We are really concerned about this and the implications for society. We would like to see real action taken to protect our citizens.
There is another issue that deals with raising the maximum penalties. This is an old trick. We know that maximum penalties are hardly ever imposed by the courts, but people have a hard time understanding that. When they hear language that we have gotten tough on child pornography and we have raised the maximum penalties, it gives people the impression that something is being done to protect our citizens when in fact it is meaningless. If we were to get tough, we would increase the minimum penalties and we would have mandatory prison sentences for people who are convicted of these crimes. It is time to get tough to protect our youngest and most vulnerable members of society.
I have spoken on this issue before. I can only express again on behalf of my constituents the umbrage and disgust that they have with this ongoing abuse of our young people. I can only ask that all members of the House will understand the seriousness of this issue and make the appropriate amendments to put real teeth in the law to ensure that our young people are protected and that they have a chance to take their places in society as wholesome adults. We are looking for that kind of action from the House.
Richard Marceau Charlesbourg—Jacques-Cartier, QC
Mr. Speaker, I am very pleased to rise in this House to address this important legislation, namely Bill C-12, which was formerly Bill C-20.
As most hon. members have pointed out, if there is one issue on which all the members of this House agree, it is the importance of protecting the most vulnerable people in our society, who also happen to be the most precious ones, namely our children.
Quebeckers and Canadians expect us to rise above partisanship and not use this issue to score political points. They expect the perverts the sick and the maniacs, those who want to sexually exploit our children to be properly punished and to pay for the despicable and horrendous crimes that they commit by going after our children.
It is with this in mind that, when we debated this legislation, the Bloc Quebecois was very proactive and open, and also made a number of proposals. We listened very carefully to what those who came to testify told us. Based on the very eloquent testimony we heard, we proposed a number of amendments.
Motion No. 1, which is before us today, is an amendment that was originally proposed by the Bloc Quebecois. It is an amendment that I myself proposed. I am pleased to see it included in the bill. There was a minor problem with the French and English versions. That was corrected with this amendment. As for Motion No. 3, it deals with a mere technicality.
Two issues were the subject of rather heated discussions in committee, and I want to draw your attention to them. The first one has to do with the definition of “public good”. The witnesses who came to testify before the committee told us that a defence based on the notion of public good is currently too broad, not acceptable and could lead to abuse. Among others, police officers, who are on the front line, told us that they do not have the time to get into philosophical discussions on the meaning of “public good”.
That is why I put forward an amendment in committee to define the meaning of public good. The essence of this amendment is found in clause 7(2) of the current bill, Bill C-12. I absolutely do not understand why the New Democratic Party is against this clause, especially since the NDP critic said at the very beginning that public good was not defined. Perhaps she was referring to the first version of the bill, but the work done in committee resolved this problem by clarifying the definition of public good.
I was very disappointed by the Liberals' unwillingness, if you will, to insert a clause that would provide minimum sentences for the sexual exploitation of our children. In the general public, particularly in the Quebec City area, following the events of which we are all aware, there has been heightened sensitivity and awareness of the danger of sexual exploitation of children.
Having been previously alerted to the general problem, I thought it would have been a good idea for the government to agree to include minimum sentences and mandatory minimum sentences.
Unfortunately, the government, with its majority, refused. Nonetheless, to give credit where credit is due, some members of the ministerial team voted with me and the Canadian Alliance at the time, to have such sentences.
It is unfortunate that the government did not agree. I guarantee, and I will make the promise right now, that I will not drop this and I will make sure that these people, these perverts, these criminals, are severely, yet humanely, punished. They prey on those who are dearest to us and also most vulnerable.
I will conclude by saying that this is not my last speech on this topic in this House or elsewhere. As parliamentarians, we have the political obligation, but especially the moral obligation, to ensure that those who attack our children are severely punished; as severely as possible. This is about the future of our society.
Gurmant Grewal Surrey Central, BC
Mr. Speaker, I am pleased to rise on behalf of the constituents of Surrey Central to participate in the debate on Bill C-12, an act to amend the Criminal Code, protection of children and other vulnerable persons, and the Canada Evidence Act.
Yesterday I participated in a debate about encouraging our youth to vote and to get involved in politics. Youth are our future. The most vulnerable groups in our society are children, women and seniors. All the laws we see coming from the government side over a period of time are not protecting any of these groups.
Some time ago there was an incident in my constituency of Surrey Central. A senior citizen, a second world war veteran who was deaf and mute, was beaten to death. Another time there was an incident in the Cloverdale area of Surrey Central. A young girl was abducted, badly treated, and I do not want to go there, and she was murdered.
We constantly see that our streets are not safe. These two vulnerable groups of citizens are not being protected in our society. The government is not doing enough. The law enforcement agencies do not have laws with teeth. We have ended up in a revolving door with legislation after legislation which is ineffective and is not working and is not giving adequate resources to the law enforcement agencies.
The bill before us today was first introduced in 2002. The Prime Minister tries to continue the charade that he leads a new government, yet here he has put an old, flawed bill before us. Admittedly, there are some good things in the bill, but with the good things there are some bad things as well. I have outlined them in the chamber many times before. However, the Prime Minister has not bothered to incorporate any proposed changes. He has not even seen the need to introduce any amendments of his own. How committed can the Prime Minister be to democratic reform? How new is his government or his ideas when we see legislation recycled time and again in this chamber and it does not reach anywhere?
The Department of Justice proposed Bill C-12 to expand the offence of sexual exploitation and the definition of pornography, and to eliminate the defence of artistic merit in child pornography proceedings.
The bill also increases maximum sentences for people convicted of these crimes. If passed, the bill would also increase penalties for failing to provide the necessities of life and abandoning a child.
Bill C-12 is a reaction to the 1995 case of John Robin Sharpe in British Columbia. Sharpe was found guilty of possession of as many as 400 images of children who prosecutors contended were being exploited sexually.
In March 2002 Sharpe's conviction concerning the images was upheld by the Supreme Court. However, he was ultimately acquitted of related charges that had been filed against him in connection with stories he had written, specifically because those writings were deemed to have artistic merit.
Bill C-12 purports to close the loophole that allows people to create child pornography using artistic merit as a defence and establishes a standard of public good.
If Parliament passes the bill, a person will be found guilty of a child pornography offence when the material or act in question does not serve the public good or where the risk of harm outweighs any public benefit.
Since the Sharpe case, Conservatives, and our predecessors, have called on the federal government to eliminate the artistic merit defence, but replacing it with a public good defence is not the solution to the problem. We must eliminate all defences that justify the criminal possession of child pornography.
The bill would also increase penalties for offences that harm children. The maximum penalty for sexual exploitation would double, from five years to ten years, and the maximum penalty for the abandonment of a child or the failure to provide the necessities of life to a child would more than double, from two years to five years.
These increases in penalties are meaningless, however, if the courts do not impose the sentences. We know by experience that when maximum sentences are raised, there is no corresponding pattern in the actual sentencing practices. What is needed are mandatory minimum sentences. Maximum sentences do not help. When a judge sentences someone for life, which is 25 years, it is never 25 years. Similarly, tougher penalties would probably be a better deterrent to committing a crime. What we need are minimum sentences, truth in sentencing and no conditional sentences for child predators.
Bill C-12 would also create a new category of sexual exploitation that would protect people aged 14 to 18. Courts would focus, not on consent but on whether the relationship is exploitative based on the age difference, or control exerted, and other circumstances. This is not good enough.
It is already against the law for a person in a position of trust or authority or with whom a young person is in a relationship of dependency to be sexually involved with that young person. It is unclear how adding people who are in a relationship with a young person that is exploitative of the young person would add legal protection for young people.
What the Liberals should have done was increase the age of sexual consent, which is what we have been asking for a very long time.
A major shortcoming of the bill is that it fails to raise the age of consent for sexual activity between children and adults, and, shamefully, Canada's is the lowest among all the developed countries.
I fail to see the rationale for permitting adults to engage in any sexual activity with children. The government should raise the age of consent, which is currently set out in section 150.1 of the Criminal Code, from 14 years to 16 years, if not 18 years. Just imagine a grade 9 student giving consent to have sex with a 60 year old person or a 50 year old person.
This is not the Canada I migrated to. We need to do much more to protect our children.
In British Columbia's lower mainland we are all too familiar with the problem of prostitution. Studies have found that 70% to 80% of Canadian prostitutes entered the trade as children. There are literally hundreds of prostitutes under 17 years of age currently working on Vancouver streets. It is very shameful.
The recruitment process for the sex trade in Canada preys on young girls and young boys, specifically targeting those who are at the current age of consent, which is 14.
According to the Children of the Street Society, the majority of parents who call asking for help have children who are 14 years old and are being recruited into the trade. They argue that if the police had the ability to pick up the girls or boys, regardless of their consent, and return them to their families or to take them to a safe house, then many youth would be saved from entering the sex trade.
It is of no use looking at the age of consent from the perspective of the advantaged, critically thinking, well protected 14 year olds. The government has to enact laws that will protect our children.
During my tenure in the House I have watched as family values have been continuously eroded in Parliament. Every time the government introduces any legislation we see family values being eroded, whether it is the definition of marriage, the age of consent or the protection of our children from predators. When will the government listen to Canadians, for the sake of our children and the most vulnerable, and enact laws with teeth?
Bill C-12 is very complex, with cumbersome provisions and it would not make it easier to prosecute sexual predators. The government lacks political will. The Prime Minister should be ashamed for doing so little so late to protect our children and other vulnerable groups.
Paul MacKlin Northumberland, ON
Mr. Speaker, it is a pleasure to have an opportunity to participate in the debate this afternoon regarding Bill C-12 and Motion No. 2 which would delete clause 7 of this particular bill.
With respect to the previous speaker, there is no question that we all share the concerns that the bill is intended to address. I do not think there is any doubt about that. We want to protect those most vulnerable within our society, and this is an excellent example of how we can do it.
The way in which the bill has been constructed and brought before the House is appropriate and there is no need for an amendment of the nature that is being brought forward.
Today, when I rise to speak to the bill, I do so in support of the bill itself and to oppose the motion to delete clause 7.
This bill is designed to deal with an amendment to the Criminal Code to protect our children and other vulnerable persons. It is a very broad bill. It also includes a provision to deal with the Canada Evidence Act and proposes a broad package of criminal law reforms that would seek to strengthen not only the criminal justice system in this particular instance, but in the broader instance as well.
The bill is not just a response to children and other vulnerable persons as defined in the limited discussion that has been going on here today. It will actually be broader than that and in particular with respect to bringing forward witnesses and those who would testify in trials.
One of the key elements of the bill is the strengthening of the existing child pornography provisions by broadening the definition of written child pornography and narrowing the existing defences to one defence of public good.
It is very important that when we examine this concept that we look at what is trying to be accomplished here. What we are trying to do is avoid the situation that was described by the previous hon. member when he talked about the Sharpe case. This is important and it does need to be addressed. We are going forward with the bill to narrow that defence to one defence of public good.
The second key element is strengthening protection for young persons against sexual exploitation. There is a great tendency to simply look at issues of this nature as if the child or the young person was in fact the person who ought to have more restrictions placed upon them. What we are really trying to do is broaden the offence to those who would exploit, those who would take advantage of young persons. This is why the definition of sexual exploitation has been put in the bill.
We are also looking at increasing penalties for offences against children. Many times we hear that the ultimate penalties received are not significant enough. However I think that if we were to increase the penalties, it would give the courts much more room to address the issue of sentencing so that one does not necessarily have to go to the maximum on a first offence, which in almost all cases does not occur, but rather it is a graduated process of trying to use the appropriate sentence that fits the crime.
By increasing the sentencing provisions and penalties within the act, we would be allowing greater latitude for the courts. We will be giving that flexibility so they can be most severe with those who deserve the most severe penalty.
Another area in the bill would facilitate testimony by children and other vulnerable victims and witnesses. This is extremely important because when a victim goes through the actual act that is when the victim is created.
It is extremely difficult, then, for that victim to in effect go through explaining before all parties this victimization in a court. Therefore, we need to put in place appropriate measures to minimize this process, which would once again lead to further victimization. So within the bill, there is a process whereby testimony can be given in many forms and various protections and assistance can be brought forward for victims and also for witnesses to these crimes.
Lastly, the bill also deals with the concept of voyeurism. This criminal offence is an offence that is extremely important. Today it seemingly is more important with the advent of more and more electronic devices. In particular, we note that the latest cellphones have cameras attached to them and are able of course to take photographs and then transmit these particular photographs on the Internet. This form of voyeurism and the access it provides because of the very nature of the device is something that we must take very stringent action upon, and in this particular case it is part of the bill.
Child pornography is an issue that is regrettably not a new concern for all hon. members in the House. The sexual exploitation of children--again, society's most vulnerable group--in any form, including through child pornography, is to be condemned.
Bill C-12 recognizes this and proposes amendments to our existing child pornography provisions that will, I believe, serve to better protect children against this form of sexual exploitation. This motion seeks to delete two child pornography reforms proposed by Bill C-12. Bill C-12 proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the predominant characteristic of the material and it is done for a sexual purpose.
Second, Bill C-12 proposes to narrow the existing defences into one defence of public good, a term that is now specifically defined in the bill. I know that my hon. friend who spoke before me talked about this issue of public good, but clearly we have to be able to define in certain limited circumstances where in fact it is beneficial to society to have this defence, so that in fact in its simplest form it allows for the proper investigation and prosecution of those who would be participants in this business of pornography.
To say that in fact there should be absolutely no defence is simply not looking at this in a pragmatic way. Under the new law, no defence will be available where the material or act in question does not serve the public good or where it exceeds or goes beyond that which does serve the public good.
The public good defence recognizes that in some instances, such as with the possession of child pornography by police as part of an investigation, as I was just mentioning, such possession serves the public good and should be protected. It also recognizes that art or material that has artistic value can serve the public good but, and unlike the artistic merit defence, Bill C-12's proposed public good defence would not be available for such art where the risk of harm that it poses to society outweighs any potential benefit that it offers.
Canadians want more and better protection for our children against sexual exploitation through child pornography, not the same as or less than what we already have today. Given our ever growing understanding and knowledge of the nature and scope of the problem of child pornography in Canada and around the world, we must hold firm in our resolve, which resolve was unanimously reaffirmed as recently as last week, to take concrete and effective measures to better protect children against sexual exploitation through child pornography.
Accordingly, I do not support the motion and I urge all hon. members to support Bill C-12 as it was passed by the justice committee.
Deepak Obhrai Calgary East, AB
Mr. Speaker, on February 28, 2003, I presented a petition to the House from my constituents. The petition was signed by 142 people from my riding of Calgary East. The petitioners called upon Parliament to protect our children by taking all necessary steps to ensure that all materials which promote or glorify pedophilia or other activities involving pedophilia are outlawed in Canada.
Other members of Parliament have presented similar petitions. This petition is the essence of what the feeling is out there. The feeling is unanimous out there that we need to protect our children. There is no other meaning. It is unanimous that the people of Canada are saying, “Let us protect our children”. We have to take that message very seriously.
Bill C-12 is an attempt to protect our children, but there are flaws in the bill that the Conservative Party cannot support. We believe the bill is not tough enough to protect our children. We get the message from our constituents, and again, that message is--let me repeat it--that we have to protect our children from sexual exploitation.
Bill C-12 does not do that on two bases. One is on the basis of what is called artistic merit. The definition of artistic merit as given by the court's decision can be interpreted as broadly as possible. That is not the message we are getting from the people of Canada. That message should be reflected in this bill: artistic merit should not be a defence for anyone who is abusing the children of Canada. Simple, point of fact, straightforward: the children of Canada need to be protected. They are children. We are their guardians. If we do not protect them, who will? We cannot have any loopholes that say there is a possibility under artistic merit or some other kind of loophole that this exploitation can take place.
I have not come into any kind of contact with child pornography, except once when the Toronto police force came to our caucus and did a presentation on child exploitation. I was stunned. One actually has to know. I commend these officers when they see this day and night. I take my hat off to them and wonder how they can sleep at night when they see all this exploitation taking place.
Those graphic pictures would have shocked anybody. It shocked me such that I got up from there with a clear cut, straightforward, simple resolve that there should be no defence whatsoever when it comes to protecting our children. They can come with any kind of defence or excuse, but it does not exist. When we look at the evidence that is gathered and when the police force show us this horrendous picture of what is happening--and it is happening--then we have to say no.
The other issue is about the age of consent. We in this country have an age of consent which, in anybody's mind, we would say is a form of sexual exploitation. How can we have 14 as an age of consent when everybody else has an age of consent ranging from 16 to 18? The age of consent should be over 16.
I do not understand why the government chose to ignore this specific issue when the former minister of justice, the member from Edmonton, stated quite clearly that she had talked to the provincial ministers and everybody agreed that the age of consent should rise.
I am sorry to say this, but when I read “exploitative” relationship, I see bureaucratic language. Exploitative relationship is bureaucratic wording. Why can we not make the bill simple and clear? We must be clear in this bill: “the age of consent should be this”. It should not say if somebody in an exploitative relationship and then go ahead and give arguments and try to define what the relationship is. All these loopholes come out of this.
Although the bill has come back from the committee, which made some recommendations for changes, the changes in this particular instance do not reflect the will of the people of Canada, which is very simple: stop completely, with no loopholes, the exploitation of the children of Canada.
My party and I will find it very difficult to support this bill.
I believe the hon. President of the Treasury Board is rising on a question of privilege.
February 18th, 2004 / 6:05 p.m.
Reg Alcock President of the Treasury Board and Minister responsible for the Canadian Wheat Board
Mr. Speaker, I am indeed rising on a question of privilege on a matter that arises out of matters that occurred earlier today in the House, and I am prepared, upon you making a finding of a prima facie case of privilege, to move the appropriate motion.
Today in question period, the member for Pictou—Antigonish—Guysborough stood up and raised questions with the Prime Minister about actions that he was, as the opposition has been for a while, trying to twist the facts in a manner that allowed people to feel that there was a problem.
He asked a question that he based on a memo. The implication in the question, because the Prime Minister had indicated that certain companies should be added to a list of companies who were able to bid, was that somehow he had fraudulent knowledge because he had done that.
The Prime Minister stood up in response and said that he was quite content to have the whole document tabled in the House and that would be self-explanatory.
The member stood up after question period and said that earlier in question period he had asked the Prime Minister about a document, an internal memo that came from his office in 1994, that pertained to retail debt strategy. He said that the Prime Minister indicated at that time he had no difficulty with that document being tabled. He said that he had a copy of that and he would like to table it in the House today, and he did so.
Upon receiving that document, we had a look at it to verify that it was indeed the document the member tabled, and it was recorded that he had tabled a two page document.
I have a copy of the original document, which I am prepared to table today, which is in fact five pages long. It contains the very explanation the Prime Minister gave, that this was a general document trying to expand the range of companies, not narrow it as was suggested.
However, there is a more serious issue here, and it does not have to do with the political debate. It has to do with the duty of members to come forward forthrightly and honestly to this chamber.
You, Mr. Speaker, would not allow me to question the integrity or the veracity of other members. That would be against our rules, and we do that because we have a duty as members. We are seen as hon. members here and believe to be coming forth honourably.
Unfortunately, when the member puts forward an altered document in some attempt to bolster his case, what the member has done I believe is--