Bill C-208 (Historical)

An Act to amend the Criminal Code (sexual offences)

Criminal Code

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, I congratulate the member for Jonquière; I fully support her initiative. I think this bill is very important.

The principle being brought forward in the bill is of undeniable importance.

I share with an overwhelming majority of Canadians the moral outrage expressed by the previous speaker. As a parliament, we must address some of these very important issues. Some of these issues however have gone to the courts rather than being dealt with here in the Parliament of Canada. We all have to take responsibility for that but it is the government that drives the agenda. As much sparseness and paucity as there is with that agenda, it is the government's responsibility to bring the priorities of the nation forward.

I would say that is exactly what my colleague from the Bloc is doing in her efforts to bring attention through Bill C-208 to the issue of sexual interference and sexual assault on children. One of the most horrific things a child can experience in his or her young life is abuse, and very often the abuse is committed by a person in a position of trust because of the access that person might have to a child in a vulnerable position.

Through Bill C-208, the Bloc is attempting to deal with specific criminal code amendments that would in essence limit the discretion exercised by those within the justice system. I must say with great regret that I have some difficulty with the way in which the bill is presented. However I completely embrace the intent, the spirit and logic behind it and I completely support what the member has set before the House.

I listened intently to the member's remarks and the emotion and sincerity that she brings to the issue is undeniable. However, and I say this with some reluctance, I associate myself with the remarks of the parliamentary secretary in this regard because of the difficulties in limiting the options available to those currently working in the justice system. I say that with the greatest respect and as somebody who has worked in the justice system.

The difficulty with removing the ability of charging under the criminal code under a hybrid section, that is to say taking away the discretion of the crown to proceed by way of summary or indictment, severely limits one of the dirty little secrets about the justice system, which is that a great deal of plea bargaining goes on. That is the reality of how our system functions on a day to day basis. It is one of the practical and necessary evils of what takes place in our justice system.

I do not want to cloud the issue with lawyer talk and mumbo-jumbo and be accused of somehow supporting any effort whatsoever to shield from justice those who perpetrate horrific crimes against children or to suggest in any way that we should water down sentences. That is not what I am putting forward.

Sadly, taking away the ability to charge somebody with a summary offence under a sexual assault provision of the criminal code, in particular section 151 which deals with sexual interference, and making mandatory minimums, does away with one of the fundamental, practical blunt instruments of our justice system and that is the ability of the crown and the defence to sit down and discuss in a practical way how to mete out justice, how to proceed in the best interests of protecting society but, most important, I would suggest in these instances, of protecting an innocent child, a young person who has been victimized. That often entails not going to trial and working out, in some fashion, a guilty plea.

To say, by virtue of the change that will be enacted through the passage of the bill, that one can no longer do that and has to go for a mandatory minimum of two years or, in an indictable offence, five years, would tie the hands of crown attorneys to enter into those discussions in good faith. They would no longer be able to say that in the best interest of the child counselling may be needed.

To her credit, the member for Jonquière has included something which I completely and wholeheartedly embrace. She has included the mandatory supervision and counselling elements in the legislation. However, in removing summary conviction from the wording, it would make sexual interference with anyone under the age of 14 an indictable offence and puts in place mandatory minimum sentences.

There are cases where a mandatory minimum would be fitting and appropriate. However, and I am speaking bluntly from a perspective of having worked in the justice system, there is in everyday parlance a scale of seriousness for sexual assault. The hon. member mentioned rape. Rape has a horrible impact on a young person's or anyone's life. At the far end of the scale is touching for sexual purposes, something that is inappropriate and offensive in many ways. Depending on the sensibilities of the victim it may have a psychological impact almost equal to rape. Yet on the scale of seriousness it must be deemed to be on a different level than rape.

By curtailing the power of crown attorneys, judges and police officers to lay charges I have great concerns that the way the bill would be implemented would cause problems and practical interference with the administration of justice as opposed to addressing the issue the hon. member wants it to address.

The charge demonstrates the spirit of public sentiment as does the bill, but it would have the opposite of the desired effect. By requiring proof of intent including proof of sexual purpose it would raise the ante. It would increase the ability of the crown to decide how to proceed with an offence, whether by trial or in another way.

Currently in cases that are considered borderline or where there is circumstantial evidence a judge or jury can recommend a lesser punishment. If the sentence were always a minimum of two years, defence counsels would go to trial in each and every case. Some Canadians and hon. members may consider this to be backing away from the need for our justice system to respond in a strong way and mete out deterrence not only for individuals but for the public. There is a need to show our revulsion and denunciate any type of offence involving sexual assaults on children.

However the ability of judges, crown attorneys, defence lawyers or police officers to proceed by way of summary conviction is an option that keeps the wheels of justice turning in many cases. We have huge backlogs in the courts today. That is a whole other issue but it is a practical consideration.

My hon. friend spoke of the Sharpe decision which we in the Progressive Conservative Party absolutely denounce. However in many instances judge made law is backfilling shortcomings in our law for which the government must take responsibility. We often hear the government pointing the finger at the opposition or at an administration of 10 years ago. Well, it is the present government that is in office. It must take responsibility for its decisions today. That responsibility to be lacking and the Canadian people will find it to be so.

The amendment would completely remove flexibility from our justice system. It could have the opposite effect. It could keep first time offenders from being released because of the crown's decision to proceed by way of indictment and higher sentences in every instance.

The Conservative Party maintains that there is a clear and undeniable need to protect those who are most vulnerable in society. We need to focus on that in every avenue and at every opportunity. Sexual assault in all its forms is an issue of power and control. The effects on the victims, particularly children, are incalculable in both the long and short term. As studies have shown, recidivism is most serious in cases involving sexual assault.

I applaud and support the hon. member in her intent to bring the bill forward. I support her in every way to have the issue addressed further. I will continue to do so in every fashion.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I would like to respond to Bill C-208 introduced by the hon. member for Jonquière. Bill C-208 proposes amendments to the criminal code as a means of protecting child victims of sexual offences.

The first of these amendments is a reclassification of certain sexual offences from hybrid offences, which may be prosecuted either summarily or by indictment, to indictable offences. The bill also seeks to impose graduated mandatory minimum sentences for the offences of sexual interference and invitation to sexual touching of a person under the age of 14. Finally, offenders convicted of any of the sexual offences listed in the bill, including sexual assault against adult or child victims, must undergo mandatory treatment.

I would like to indicate at the outset that the government is committed to work to safeguard Canadian children and to protect them from all forms of sexual exploitation. However, we do not believe that the proposed amendments to the criminal code are the appropriate means of achieving those goals.

First, the reclassification of these offences from hybrid to indictable is problematic as they are intended to cover a broad array of fact situations which range from minor offences to more serious matters. It would be inappropriate to mandate that the less serious offences which are covered by these criminal code provisions be prosecuted as indictable offences.

In addition, proceeding by indictment is a more lengthy and formal procedure which places additional burdens on child victims who may be required to testify at both a preliminary inquiry and at the trial.

With respect to the use of mandatory minimum sentences for sexual offenders, we must be mindful that their use in Canada is limited. Only 29 offences in the criminal code carry mandatory minimum penalties. A recent evaluation of the research in this area in the Department of Justice provides little support for any initiatives to expand the use of mandatory minimum penalties in Canadian law.

The evidence indicates that mandatory penalties in general are not effective in deterring crime and have many unintended harmful consequences in the criminal justice system, such as dramatically increased costs due to more and longer trials, fewer guilty pleas, and increased numbers in remand custody. In short, it is not clear that mandating such penalties would meet the goal of Bill C-208, which is to protect children from sexual offenders.

The use of mandatory treatment programs for all offenders convicted of one of the sexual offences listed in Bill C-208 raises issues of capacity and costs.

The House will note that the offence of sexual assault is included in Bill C-208. This is an offence which covers a broad range of behaviour and which applies to both adult and child victims. Consequently, the offenders prosecuted under this and other listed offences would present a diversity of treatment needs so that a variety of programs would have to be developed.

Additionally, the bill is inconsistent in its approach as it only proscribes treatment for offenders convicted of certain sexual offences while omitting others, including more serious sexual assaults.

Any reforms concerning the protection of children from sexual offences are best addressed in the context of an ongoing comprehensive review of the criminal law dealing with child victims, which is currently under way in the Department of Justice.

In November 1999 the department launched a consultation and review of the criminal law to assess the need for reforms addressing child specific offences, sentencing to prevent reoffending against children, facilitating child victim/witness testimony, and the age of consent to sexual activity.

The project is examining whether criminal code reforms are required to ensure that the serious nature of any offence against children is reflected adequately in general sentencing principles, aggravating mitigating factors, sentencing options, and how to better protect children from known sex offenders. The results of the consultation were recently presented to the Minister of Justice and to his federal, provincial and territorial counterparts at their meeting in February. They have directed federal, provincial and territorial senior officials to develop follow-up options for their consideration.

Before concluding I would like to remind the House that the government has taken and continues to take many other important steps to better protect children from sexual exploitation. For example, on November 10 last year, Canada signed the United Nations optional protocol to the convention on the rights of the child, on the sale of children, child prostitution and child pornography. This step exemplifies Canada's strong commitment to better protect children against sexual exploitation in the international context.

As well, on March 14 last year the Minister of Justice introduced Bill C-15, which proposed criminal code amendments that would better protect children from sexual exploitation. The bill included the creation of the following offences: using the Internet to lure and exploit children for sexual purposes; and transmitting, making available, exporting and intentionally accessing child pornography on the Internet. The bill also simplified the process for the prosecution of Canadians who sexually assault children while abroad.

These reforms are now in Bill C-15A. I am pleased to note that the bill has now passed third reading in the Senate with three amendments. It is now returning to the House for final consideration of those three amendments.

While we cannot support the member's bill for the reasons I have outlined in my remarks, let me state that the government, like the hon. member for Jonquière, is very concerned, as are all Canadians, about sexual offences against children. This is why the government will spare no effort in order to protect Canadian children from such offences.

[Jocelyne Girard-Bujold, Bloc, Jonquière, QC]

moved that Bill C-208, an act to amend the Criminal Code (sexual offences), be read the second time and referred to a committee.

Mr. Speaker, it is with mixed feelings that I rise today to debate Bill C-208, an act to amend the Criminal Code with regard to sexual offences. For over four years now, I have been single-handedly promoting the idea of amending the criminal code to provide for stricter prison sentences for pedophiles .

A petition signed by over 40,000 people was tabled in the House by myself and the member for Laval Centre on behalf of the former member for Jonquière, André Caron, who initially proposed this idea.

During the last election campaign, I made two promises with respect to legislation. I promised to put forward a bill that would provide tax deductions for those who use public transit in Canada. This bill received second reading last fall, and consideration in committee should begin in a few weeks.

I also promised to put forward a bill that would cover all the points listed in the petition on pedophilia. However, I was extremely unhappy to hear that some members of the Sub-Committee on Private Members' Business did not see fit to make Bill C-208, before us today, a votable item. And this in spite of the fact that over 40,000 people officially support this extremely important bill, since it is aimed at providing greater security for our children who are the victims of acts of pedophilia.

Bill C-208 is designed to correct a number of flaws in the criminal code. If I may, I will describe them.

First, my bill provides for a minimum two year prison sentence for any individual convicted of sexual assault on young people under the age of 14, and a five year minimum sentence for repeat offenders.

Second, under the bill, any person who is convicted of such an offence would have to undergo treatment as the court directs. The governor in council may make regulationssetting out the situations in which the convictedperson should undergo treatment. It is important to note that this type of treatment should in no case interfere with thebodily integrity of the convicted person. It should be a psychological treatment only, because physicians agree that the predisposition to pedophilia, which is a sexual attraction to children under 10, is first and foremost a psychiatric problem.

In my bill, I do not in any way advocate chemical castration of pedophiles, because that would go against their rights and freedoms, and it would not solve the problem, which is psychological in nature.

After child molestation has occurred, there is no assistance for children or their parents. This is a serious problem, because the victims and their families do not get any help, and they are left with feelings of guilt and shame, and they turn in on themselves. That is why Bill C-208 provides for a psychological follow-up for the victims.

Imagine one of your children has been molested. How could you help him or her? This is a very serious situation, and the child should get some help. This is our moral obligation. Unfortunately, some members of the subcommittee on private members' business have prevented us from helping these children and their parents.

The inner pain of a mother in such a situation is beyond words. The public wants meaningful action. Today, we are discussing a bill, but, at the end of the day, it will not be voted on. We will be prevented from making a decision that could better protect the basic rights of our children, the adults of tomorrow.

I wonder why we have to amend the criminal code today through Bill C-208. At present, sexual offences are considered as hybrid offences by the courts. This means that the crown has the discretion to proceed by summary conviction, which allows the court to sentence an accused to a fine not exceeding $2,000 or to a maximum of six months imprisonment.

The subject-matter here is rape of minors. Who could possibly think that a $2,000 fine is a fair penalty? People who commit such offences against minors deprive their victims of their childhood, their sense of dignity and their freedom, and scar them for life.

How can such an action be erased by a $2,000 fine? The young person will bear a deep scar for the rest of his life and will remain forever affected in the deepest intimate sense. I would like to quote what a young girl who was victim of sexual abuse said in issue 272, May-June 1998, of the magazine Recto Verso . The words she used are very much to the point:

I never enjoyed that. It was the worst thing that happened to me in my whole life, and I do not wish to go through it again. I feel very sad; I have had nightmares and I cannot even take a bath alone. I am no longer able to play with boys. I cannot even stay close to my father or play with him as I used to.

An adult court survey showed that 25% to 30% of sexual offenders are sentenced on summary conviction, which means a $2,000 fine and/or a six month imprisonment sentence. According to a study, 90% of imprisonment sentences for sexual assault were less than two years. It is therefore easy to understand why the public no longer believes in the criminal justice system; it is therefore our duty, as parliamentarians, to change this system in order to restore public confidence.

The 40,000 petitioners, a majority of which are from the Saguenay-Lac-Saint-Jean area, convey this message, as do 84% of Canadians and 91% of Quebecers, who believe that the judicial system does not punish severely enough those who commit rape and other sexual offences. Moreover, 83% of Canadians and 90% of Quebecers believe that the criminal justice system does not come down hard enough on convicted pedophiles.

Allow me to give the example of a man found guilty of acts of pedophilia, to demonstrate how absurd the current situation is.

Twice convicted for such acts in the mid 1990s, Raymond Boulianne served a sentence of 12 days for sexual assault before being set free in 1995. As soon as he was out of prison, he reoffended with girls aged nine and ten years. Found guilty again in 1996, he was sentenced to nine months in jail and was required to undergo therapy for 25 weeks. However, he never demonstrated any willingness to follow the treatment, and he was freed a few weeks later.

In a letter about this problem to the then Minister of Justice, who is now the Minister of Health, she responded, and I quote:

—in the case of most other serious offences or violent offences, our system of justice has always advocated for a case by case approach when it comes to sentencing, based on the maximum sentences contained in the law.

This is the logic used by the court in the case of Raymond Boulianne. Based on his individual case, this repeat offender only deserved 12 days in prison.

As for treatment to be undergone by criminals, the Minister of Justice at the time said, and I quote:

—in some cases, they may be required to meet certain conditions which may include the requirement to undergo treatment for sexual disorders—

The court had stipulated that Mr. Boulianne must undergo therapy. He managed to get around doing so, and the court took no action. This is serious.

These two points: the personalized approach and the supposed obligation to undergo treatment are not working and seriously undermine the credibility of our criminal law system. In the case of Raymond Boulianne, clearly the system did not work.

The purpose of my bill, then, is to change this state of affairs and to ensure that our children are better protected. The provision relating to mandatory treatment for all convicted pedophiles would represent an investment which could result in a considerable reduction in human and social costs in future.

According to André McKibben, a criminologist and therapist at Montreal's Pinel institute, a criminal who has been cured of sexual deviancy will not reoffend, which represents an average saving—and we must talk in numbers as this is the approach that has to be taken with this government—of $125,000 per individual. The results obtained at Pinel seem conclusive on this point: tests have been able to make a 50% reduction in repeat offences by repeat offenders. All that would be required for general application of these good results would be an organized and concerted approach.

Unfortunately as I said earlier on, I am speaking today with mixed feelings. This bill not having been selected as votable, we will be debating it for one hour. I imagine the Parliamentary Secretary to the Minister of Justice will also speak for 10 minutes objecting to my bill, and the four other opposition parties will then set out their positions on it. What, however, will this change in the long run? Will the victims of sexual offences be better served by the criminal court system? Will convicted sex offenders be given heavier sentences? WIll they receive psychological treatment? Will our children who have been the victims of pedophiles have a better future? To all these questions, my answer is no.

I find it unfortunate that we must put so much effort to no avail. This bill deserves at the very least particular attention in a parliamentary committee. Victims have a right to be heard, and to defend their point of view. For this reason, and for the protection of our children, I am seeking the unanimous consent of this House to have Bill C-208 declared votable.

[Jocelyne Girard-Bujold, Bloc, Jonquière, QC]

moved for leave to introduce Bill C-208, an act to amend the Criminal Code (sexual offences).

Mr. Speaker, as you know, following the tabling by the previous member for Jonquière of a petition signed by more than 100,000 persons, I committed to introduce a bill regarding this matter.

The purpose of this bill is to amend the criminal code to modify offences for sexual interference with a person under the age of fourteen years and for invitations to sexual touching involving such a person, to change the punishment for offences committed by persons in a position of authority and for sexual assault, and to require persons convicted of any of these offences to undergo treatment.

(Motions deemed adopted, bill read the first time and printed)