Mr. Speaker, I am pleased to address Bill C-20, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.
As members may have noticed during my previous speeches in the House, I am very concerned by all the issues that relate closely or remotely to children. This is why I wanted to take part in today's debate. In fact, these issues are of concern to us all.
First, I want to point out that we support the principle of Bill C-20. As I said earlier, the idea is to tighten up several important aspects of the criminal law by introducing new provisions made necessary by the technology that surrounds us and keeps changing at an incredible pace.
However, we remain vigilant regarding certain aspects of the proposed changes, namely the wording of certain provisions relating to child pornography and to consent to sexual relations. We feel that it is appropriate to debate these issues and to hear many witnesses in committee.
An initial reluctance deals with the issue of consent to sexual relations. The Criminal Code currently contains provisions regarding consent to sexual relations. According to those provisions, the consent of a person under the age of fourteen is not a defence to a charge of a sexual nature, such as sexual assault, exhibitionism or fondling. We can, therefore, deduce that a person aged fourteen and older is capable of giving such consent.
We can also interpret this provision to mean that the consent of a complainant can be a defence if the latter is between twelve and fourteen years of age or if the accused is between twelve and sixteen years of age, if the accused is not more than two years older than the complainant or, finally, if the accused is not in a situation of trust or authority over the complainant.
We can also conclude that a person in a situation of trust or authority cannot sexually interfere with a person between the ages of fourteen and seventeen, even if the minor consents.
These provisions of the Criminal Code were strongly criticized, mainly by the Alliance, which wanted to raise the age of sexual consent to sixteen. The Alliance members concluded that unless the age of consent was raised, Canada was at risk of becoming a sex tourism destination since sexual relations with minors aged fourteen and older are not illegal here. It is important to note, however, that child prostitution is illegal in Canada.
We are still opposed to raising the age of consent. Sexual relations among youth aged fourteen and fifteen are now tolerated by society.
Furthermore, we believe that we must speak out against the inconsistencies in the Alliance's positions. In the debate on the bill to amend provisions regarding young offenders, members of the Canadian Alliance said that a child aged fourteen or fifteen is responsible enough to be tried in adult court, but when it comes to consenting to sexual activity, that same youth aged fourteen or fifteen is not responsible enough to give consent. It is impossible to know where one stands with the Alliance, given such inconsistencies.
Bill C-20, as proposed by the Minister of Justice, provides for amendments to the provisions on sexual consent, but they are not the amendments requested by the Alliance.
Instead, Bill C-20 creates a new concept of consent, namely exploitation. An adult cannot have a sexual relation with a minor if he is in a situation that is exploitative of the minor.
Subsection 153(1.2) lists factors to be considered in determining whether a person is in a relationship that is exploitative of the young person. The factors are the age difference between the person and the young person, the evolution of their relationship and the degree of control or influence by the person over the young person.
The Bloc Quebecois is reticent about the application of this new concept. At first glance, it creates legal uncertainty.
Based on the wording of the proposed provision, an adult who has sexual relations with a young person could never be certain whether he or she is committing a criminal offence, because sections of the Criminal Code leave it to the judge's interpretation, even though the young person consented.
These leads us to our second point. A parent who disapproves of his young child's choice of lover can always file a complaint with the police, even if the factors that led him to do so are not those provided for by the legislator. This adds to the legal uncertainty and the complexity of the interpretation, which once again rests completely with the judge.
We feel that we could define the objectives of these provisions in committee upon hearing witnesses.
One thing worries me, however. Although the purpose of the bill is to protect children and other vulnerable persons, it seems that, above all, the interests of the child must be taken into consideration. It would be preferable to be consistent in our objectives in terms of children and young persons.
The application of the Divorce Act used this same principle as a guideline for interpretation. I believe this principle must be taken into consideration here to give the appropriate direction to Bill C-20.
As for the rapid advances in communications and information technologies, we are aware that guidelines are needed in reaction to some sombre realities. I am thinking of voyeurism and child pornography.
For example, the potential abuse of netcams, which send images directly to the Internet, is a subject of considerable public concern. Some people have particular, and justifiable, concerns about the clandestine viewing or recording of certain acts or actions for sexual purposes, not to mention that such viewing or recording is also a blatant violation of privacy.
That is why we find Bill C-20 adding two new offences to the Criminal Code. The purpose of the first is to make it illegal to deliberately observe or record another person in circumstances where that person has a reasonable expectation of privacy, in three specific instances.
The first involves observation or recording for a sexual purpose. The second is observation or recording of a person in a place in which a person can reasonably be expected to be nude or to be engaged in sexual activity. The third is when the person observed is nude or engaged in sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such activity.
The second offence proposed in Bill C-20 addresses the distribution of material known to have been produced in the process of committing the offence of voyeurism. The maximum sentence for all voyeurism-related offences would be five years imprisonment.
Lastly, copies of recordings obtained in the process of committing the offence of voyeurism for the purpose of sale or distribution could be seized or confiscated. In such cases, the courts could order deletion of all such material from a computer system.
We believe that the legislative provisions relating to voyeurism were made necessary by the multiplication of surveillance cameras and of means of distributing images taken by such cameras rapidly, via the Internet for example. The Bloc Quebecois is in favour of these provisions right from the start and once again prepared to address this matter in committee.
The new provisions proposed in connection with child pornography address two different aspects.
At the present time, the definition of child pornography applies only to material that advocates or counsels illegal sexual activity with children. The reforms proposed in Bill C-20 would expand the existing definition of written child pornography to include any material created for a sexual purpose which predominantly describes prohibited sexual activity with children.
The new subsection 163.1(1) of the Criminal Code would read as follows:
(c) any written material the dominant characteristic of which is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
First, it should be pointed out that the possession of pornographic material is a crime punishable by a maximum of five years imprisonment.
I am wondering about this new clause. According to the wording of the new provision, any written material describing sexual activity with a person under the age of 18 years is child pornography.
This means that any sexual fantasy involving a minor is a criminal offence and is punishable by a maximum of five years imprisonment, because that fantasy was put in writing, even though the person who wrote this material has not shown it to anyone, and even though no child was involved in any way in the creation of such material.
I am concerned about the scope of that provision. The government now wants to criminalize people's thoughts.
Of course, the Department of Justice will argue that these provisions should be interpreted based on the ruling made by the Supreme Court in Sharpe.
Under that ruling, two categories of material should be excluded from the definition of child pornography. The first one includes any written material or visual representation created by the accused alone, and held by the accused alone exclusively for his or her own personal use. The second category includes any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.
So, the Department of Justice decided to go against the Supreme Court ruling by not specifically mentioning these exceptions in the Criminal Code.
Not mentioning these specific exceptions will create a legal vacuum that will result in uncertainty in the Criminal Code. This may in turn generate confusion when reading the code. Each person has his own definition, however imprecise, of what is meant by child pornography.
We will be able to see this confusion when witnesses appear before the committee. The members of that committee will have the opportunity to comment on the confusion and ambiguity that will result from letting everyone define child pornography.
While we in the BLoc Quebecois want to make it clear that we do not support in any way such twisted and deviant written material, we wish to point out that the lack of details and specifications in the new provisions of the Criminal Code, in light of the findings of the hon. justices of the Supreme Court, will result in even more confusion in the public.
Now I would like to add my own personal observations concerning the provisions on the defence for possession of child pornography.
At present, subsection 163.1(6) of the Criminal Code, dealing with the defence for possession of child pornography, states that “where the accused is charged with an offence under subsection (2), (3), (4) or (4.1), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose”.
However, in Sharpe, the Supreme Court interpreted the concept of artistic merit in a way that shocked many people. It gave it a very broad interpretation.
The court has concluded that the words artistic merit should be interpreted as including any expression that may reasonably be viewed as art.
The court added that any objectively established artistic merit, however small, suffices to support the defence and that, as long as artists produce art, they basically have no reason to fear prosecution under subsection 163.1(4).
Based on the provisions proposed in Bill C-20, the Department of Justice replaces this defence with another based on public good. Section 162(6) provides for this type of defence and reads as follows:
(6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence, or if the material related to those acts that is alleged to contain child pornography, serve the public good and do not extend beyond what serves the public good.
Currently, the possession of video cassettes depicting pornographic acts involving children would be considered a criminal offence. Under what is being proposed, it could be demonstrated that this new defence could be used in a case where a psychiatrist, specialized in treating pedophiles, would certainly be justified in possessing such cassettes for treatment purposes because his possessing them would serve the public good. In this case, the possession of cassettes is more useful than harmful. At first glance, this new defence seems reasonable.
Under the provisions and proposals in Bill C-20, the sentences imposed for offences causing injury to children would be increased. The maximum sentence for sexual exploitation would be doubled from five years to ten. The maximum sentence for child abandonment and failing to provide the necessities of life would increase from two years to five years imprisonment, which is more than double.
The court must also consider the mistreatment of a child during the commission of any offence under the Criminal Code as an aggravating circumstance that could result in a more severe sentence.
Accordingly, the Bloc Quebecois is in favour of the new provisions. It is here to protect children.
In terms of facilitating testimony by child witnesses and victims, the Department claims that the proposed reforms will ensure that participation in the criminal justice system will be less traumatic for the victim or the witness.
Current provisions of the Criminal Code would be expanded in order to allow all witnesses under the age of 18 to benefit from witness assistance in any criminal procedure. This provision would ensure that all witnesses receive this assistance, not only those who are affected by sexual offences, or other specific offences. This assistance includes testimony from behind a screen or through closed-circuit television, or with the assistance of a trusted person who would accompany the young witness.
Current provisions generally require that the Crown establish the need for witness assistance. Given the possibly traumatic experience for young witnesses in the courtroom, the reforms being proposed would recognize the need for assistance.
When it comes to all of the types of witness assistance, the judge retains full discretion to refuse assistance or protection, if it could impede the proper administration of justice. Furthermore, facilities that would allow for the use of screens or closed-circuit television would have to be available in court rooms in order for judges to allow them to be used.
The fundamental rights of the accused are therefore fully respected under the proposed amendments. The reforms would also allow children under the age of 14 to testify if they are able to understand the questions and answer them.
We support these amendments. However, in committee, we will ensure that none of these provisions threaten the rights of accused persons to a full and complete defence.
To conclude, I would like to repeat my support for the principle behind this bill, and for the principle alone. Amendments need to be made and specified. We need to hear from the experts and witnesses who will be invited to appear before committee. Once again, I would like to highlight the importance of the principle of the interests of children in any decision that affects them. This is a fundamental principle that must be safeguarded.
I, like all of my colleagues in the Bloc Quebecois, believe that our children deserve our immediate and full attention and consideration. Our children must not suffer and must never live in fear of vile abuse.
To close, as I mentioned at the outset of my speech, I am very concerned about all issues that affect children in any way. I believe that it is our duty not only to protect them, but also to give them what they need to succeed and live their lives to the fullest.
