Bill C-15 (Historical)

Criminal Law Amendment Act, 2001

An Act to amend the Criminal Code and to amend other Acts

Supply

[Rick Casson, Canadian Alliance, Lethbridge, AB]

Mr. Speaker, I am pleased to be given the chance to speak to this motion today. However discussion of things such as child pornography and the age of sexual consent brings no joy to me at all. What I personally bring to the House today is a deep, serious concern about the peril of our children, the peril they are in from sexual predators who would destroy their innocence and in essence their very lives, and the alarming lack of support that the government provides our crime fighters and our courts to deal with sexual exploitation of children.

As far as my constituents are concerned, there is no other issue that gets as much attention as our country's lack of comprehensive child pornography laws and our embarrassingly low age of sexual consent. Petition after petition, letter after letter, the message is clear: things need to change and they need to change now.

Two things are very clear to the vast majority of Canadians. Adults having sex with children, whatever the medium it is documented by or on, has no artistic merit. Fourteen year olds do not have the confidence nor emotional maturity to consent to having sex with people possibly twice or three times their age. Those two things are so self-evident that many are flabbergasted by the lax laws our country has on these issues. If we as a nation of compassionate, intelligent people cannot protect the most vulnerable members of our society, then what are we doing? We need to protect our children or we have indeed failed in the creation and maintenance of a just and safe society.

The message the government sends to Canadians about our children is they have no rights as people, they are property to be used and abused as any adult sees fit and it hopes they make it through life, but as a government, it does not bother ensuring their safety. That is wrong and that needs to be changed.

This is not about the morality of the right or the liberalism of the left. This is vital and intrinsic to a functioning healthy society and crosses over every party line. Children cannot be allowed to be sexually abused and used and be expected to grow up into balanced and well-adjusted adults. It is foolish and irresponsible to assume otherwise and do nothing.

A couple of years ago the member from Pickering--Ajax--Uxbridge brought together some crime fighters on Parliament Hill. He did the same thing a week ago. However, two years ago when we got together, Detective Matthews from the OPP pornography unit brought an issue to my attention that needed addressing in the criminal code. I brought forward a private member's bill to amend the criminal code to allow for the forfeiture of equipment used in the production and distribution of child pornography. I am proud to say that it is in Bill C-15A and is part of the bill that will hopefully be law soon.

When the member brought these same people back together last week, I was able to attend. What we heard and saw was truly distressing. We heard from the woefully understaffed police agencies on child pornography, from police officers to lawyers to intelligence officers, and the message was loud and clear: Canada provides very little protection for its most helpless citizens.

The Toronto sex crimes police unit showed the round table about 40 seconds the 400,000 images it seized from one arrest in the city. Some of the children were as young as six months old. They were real children. They were being raped, tied up and tortured. It was the most revolting 40 seconds of my life and it is something I never want to have to see again. However it would have been selfish not to have witnessed, to know exactly what was going on and to try to help. It is my duty as an adult, as a father, as a grandfather and as an elected representative to help change things for the better and to ensure that this filth is not permitted to be produced, traded or possessed within our borders.

The John Robin Sharpe case will forever be linked to child pornography. I suppose that is understandable. What we cannot allow is for him to be lauded as a freedom fighter. He is for organizations, such as NAMBLA, that aggressively advocate sex with children claiming to truly understand that children are sexual creatures. Sharpe's writings are not the documents we should be waving around as examples of freedom of thought and expression.

Last month Sharpe was found guilty of possessing boxes of child pornography. However he was found not guilty for the stories he had written and obtained from other pedophiles. Justice Duncan Shaw's reasoning was that however vile they were they had artistic merit.

The guidelines for granting this exception are foggy at best and the laws concerning this area must be specifically and carefully rewritten so as to allow for things like Shakespeare's Romeo and Juliet to be studied in schools but to allow the banning of the diatribes filled with the rape and torture of children and luring stories read to children by pedophiles to normalize sex. One thing pointed out to us by these crime fighters was that these writings and pictures were used to brainwash children so they would eventually think it was a normal action. To say that there is any artistic merit in this type of filth is simply unjustified. In a tactic to recruit and groom, as was mentioned earlier, there is one lever that we must take away from child pornographers and pedophiles.

Since Sharpe's textual child pornography had an introduction, a body and a conclusion, while being somewhat grammatically correct, it was considered to have artistic merit. We have to make amendments to ensure that this does not happen again. One psychiatrist who testified at the trial said it was one of the most violent things he had ever read. Yet someone says there is artistic merit.

People promoting hatred through writings are not permitted to use artistic merit as a defence but child pornographers are. If writings and comics that depict children being stalked, kidnapped, tortured, raped, sodomized, murdered and cannibalized are not hate literature, then what is? If a 14 year old is permitted to consent to being videotaped while having sex with a 40 year old man, how can we as a nation say with a straight face that we care about our youth?

There have been a number of meetings on the Hill with people who fight this vile stuff everyday. They have told us that there needs to be a national task force specifically dedicated to fighting child pornography and the spread of this stuff. They do not have the resources. As was pointed out earlier, there is one case in Toronto that has a whole unit tied up. They have to catalogue every one of the 400,000 images seized in this one case and present them in court. This ties up their entire force. Another 400 cases have been reported but they cannot get to them.

In the cases of drug seizures, a sample is good enough as proof in court. They do not have to bring in the two tonnes of marijuana or whatever. A sample is sufficient. I think simple changes in the law such as that would take a tool away from these people when they came to court to fight these things.

If we want to get into the debate about the technicalities of some laws existing and some not, let us forget about this. This is about parliamentarians, parents and grandparents doing something to protect our children. If we cannot put aside some of these party specific issues and come together as a parliament to do something, then something is drastically wrong.

I want to read some quotes by witnesses that the committee heard a week ago today.

Detective Sergeant Gary Ellis in Toronto stated “Police exist to protect the weak from the strong and right now we cannot do that properly”. I thought that was a little misleading but after thinking about it for awhile, I decided he was right. We have the weak when we speak of our children and they are the most vulnerable people in our society. There is an aspect of that quote and I understand what he was getting at.

Detective Bob Matthews spoke about studies and all of this posturing with no concrete action. He stated “We've educated ourselves stupid on this issue”. I agree with him. We have talked and talked and this issue is still in front of us. Let us bloody well do something to change it.

The Toronto chief of police stated “If we can't protect our children, then we should, as a society, fly the white flag or surrender because all is lost”. I agree with that entirely. If we as parliamentarians cannot do what is right for our children, then we have no business being part of this parliament.

A corporal in Interpol stated “It's an explosion. And these are horrible images. There are kids that have been abused to produce those”. In one instance children were as young as six months old. One person who saw some stuff provided by Interpol said that a baby who still had the umbilical cord attached was being sexually abused. When we think about the degree of heinousness this takes to perpetuate, then we have to do everything in our power to provide protection.

Detective Matthews stated “Canadians produce as much or more child pornography, per capita, as any other developed country”. Our lawmakers are saying this to us and it is up to us to do something to help them.

[Dan McTeague, Liberal, Pickering—Ajax—Uxbridge, ON]

Mr. Speaker, I want to thank the hon. member for today's motion. I think that the motion itself speaks very eloquently to an opportunity to bring all sides of the House together, to avoid the contentious issue of having the effect of dropping section 153, consent and age of trust, down to 16 years of age, which I am sure was not the intent of those who drafted the motion. It is nevertheless a very glaring problem with the motion.

As the hon. member knows, as do you, Mr. Speaker, this issue is not new to me. In fact, we had an opportunity to raise the profile of this issue rather significantly last week, with a number of experts as well as our debate on Bill C-15A. I will not bore the House with the details, but I do have a question for the hon. member.

In terms of the motion being debated here today and given issues and options letters we have sent to various attorneys general across Canada, does the member indeed believe that there may have been an error in law committed by Justice Shaw, upon reflection of the supreme court decision of last January, which might provide grounds for an appeal? If I am not mistaken, we still have two or three days to try to encourage the attorney general in the province of British Columbia to enact that as a means of demonstrating that at least on the court side the fundamental flaws in the Shaw decision with respect to Sharpe are being recognized.

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

Mr. Speaker, I am so pleased to have the opportunity to speak on this very important motion, this very important issue with which parliamentarians and Canadians have been seized for a number of years and which has been brought sharply into focus, pardon the pun, by the Sharpe decision which has come down from the British Columbia court. This decision, I think, has caused many Canadians to question loopholes and some of the lax criminal justice response we have when dealing with the issue of child pornography.

I will be splitting my time with the hon. member for St. John's East. As a very fine member of the Progressive Conservative caucus, he is one who for many years has been advocating a stronger position from government in relation to this serious issue of pornography and its distribution.

The motion is a motion which I take to read as taking these steps “including but not limited to”; I see the motion as a gateway to a more activist and more interventionist approach on the part of government when dealing with this issue. Our Progressive Conservative Party wholeheartedly supports any legislation which will help to address and to eventually eradicate child pornography.

The myriad of problems surrounding this issue, including the hamstrung ability of the police to investigate in many instances, as well as the increased use of technology and the proliferation of this type of disgusting material becoming ever more readily available through the Internet, poses serious challenges for the law enforcement community. Investigation on the part of the government into all aspects of what we should do is very timely and extremely important. In fact, it is so important that I can think of no issue that the Department of Justice could be more actively engaged in at this time.

There are positives and negatives that we must look at when considering this issue of age of consent. We look forward to the government clearly putting on the record its position and what active role it might play in assessing the complications of this controversial issue. In fact, I believe we are going to hear divergent opinions on this issue. One of the perverse elements of the way in which the motion currently is worded is that it actually could have a negative impact on some criminal code sections by lowering the current age of 18 to 16. This is what we have to keep in mind. It is not simply a matter of a paintbrush sweeping across the code and stamping the age of 16 as being the appropriate one. There is a danger here.

With respect to this issue, Bill C-15, passed in 1989, addressed the question of age of consent, replacing the prior unsuitable legislation. That bill prohibited adults from engaging in virtually any kind of sexual contact with boys or girls under the age of 14. That bill also made it illegal for adults in positions of trust or authority to have sexual contact with minors between, and here are the key words, the ages of 14 to 18. Therefore, by simply stamping 16 in its place there is a danger that a very naive, unworldly youth of the age of 17 might fall outside the parameters. We have heard the sad tales of people in positions of trust, those involved in the church, those in the school system, foster parents and sadly even parents, who take advantage of youth who are under the age of 18, not 16. We want to be careful not to narrow further the ability of the prosecution to proceed with charges when positions of trust are involved.

I note with interest that in 1981 the current Prime Minister, then the justice minister, proposed Bill C-53, which would have retained a broader version of the prohibition against sexual activity with a young person between those ages of 14 and 18. That bill was not adopted.

Raising the age of consent to 16 would have to be accompanied by an exemption permitting sexual contact with someone between the ages of 14 and 16 if there are only a few years difference between the actual partners. We are into an area of morality and we are into an area of practicality, one in which we would have to proceed with some caution.

The overall effect of the Sharpe decision by Mr. Justice Shaw has many in society recoiling with dismay that a learned judge would in fact open the door to potential pedophiles and those who take advantage of youth, who denigrate images and engage in writings that have a very corrosive effect on societal norms.

Mr. Speaker, as you would be aware, Mr. Justice Shaw in handing down the Sharpe decision in my view broadened the interpretation of the current exemption or defence of artistic merit. Not only did he acquit Mr. Sharpe on some of the charges dealing with the material and whether he was in fact advocating or counselling illegal sexual activity, there was language in the obiter, that is, language in part of his decision, which in my view can be interpreted as, or one could glean that, it is expanding the artistic merit definition. I will quote from page 40 of the decision:

Any objectively established artistic value, however small, suffices to support the defence.

Justice Sharpe went on to state that the “community standards” considered in determining obscenity do not apply, and further, the creator need only point to objective fact to support the defence and then the crown must disprove it.

There are real problems with that. When one looks at the definition of a story, if you will, that would fall into the category of having some artistic merit, it appears that the base level is that the story have a beginning, a plot and a conclusion. The material, however offensive and disgusting, is somehow to be gleaned as having artistic merit if it meets this very base level. I would suggest that we are mandated, obligated, to respond with legislation to close this legislative loophole.

The Progressive Conservative Party has been supportive in the past of the law enforcement community, victims' groups and child advocates who are constantly tasked and constantly struggling with the lack of resources available to them to undertake this monumental task. As I have said before, what could be a more fundamental issue? We know that the lasting impact on victims of sexual abuse is sometimes a life sentence. Very often the mental anguish, the detrimental effect on the development of young people, is everlasting. It is certainly incumbent upon parliament to take every available opportunity to make for a safer and kinder society.

We have heard from victims as recently as today at the justice committee. There was a very telling comment that I think warrants repeating. It dealt with the need for victims to have more support, a stronger voice, an ability to be heard in a substantive way by the triers of fact, by the individuals who ultimately will decide whether a person will be incarcerated and, after the fact, whether the person will be released. It talks directly to the issue of respect for and dignity of victims, whereas victims very often are unwittingly and irreversibly brought into a cold and foreign forum in which they have no control and of which they have no prior knowledge.

It is clear that there has to be an equitable approach taken by the government. This is why we need a victims' ombudsman's office.

We have a budget specifically set aside for the commissioner of corrections to deal with the concerns, some legitimate, of federal inmates. There is a federal budget allocated to ensure that inmates, some of whom are serving time for absolutely heinous crimes and have victimized numerous citizens, have an office where they can go if their steaks are burned, if they are not getting access to the Movie Channel or they do not have the ability to log on.

Yet victims very often are completely ignored. They have no outlet, no central office in the country, where they can go to find out about important things like parole hearings or information pertaining to response to treatment.

In conclusion, we very much support the motion before us, but I would like to seek unanimous consent, if I may, to move an amendment to the motion. I move:

That, after the words “that the government immediately introduce legislation to”, the substitution be made of the words “eliminate the legal loophole of artistic merit and other measures to enhance the protection of children from pedophiles and child pornographers in light of recent court decisions”.

I anxiously await the positive response to my amendment from members present.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Mr. Speaker, this morning's debate is very important and addresses a very serious matter.

I believe that the Canadian Alliance member who introduced the motion before us has not taken the right approach when it comes to the debate he wants to initiate. If it is true that his objective is to protect young people, he has gone about it the wrong way by wording the motion as he has.

No one can be opposed to the creation of a committee or to the possibility of improving Canadian legislation in order to increase the protection of our children. I would be among the supporters of such a thing, but this is not what we have before us at this time.

If that is what he had in mind, he has gone about it in the wrong way. We could address the entire issue of television violence and the possibility of providing our children with more information in the schools. We could also look at the possibility of holding sensible and balanced discussions on sexuality and young people.

We could also address poverty, the question of extortion in the schools, and the drug issue. Something very close to sexual exploitation can occur when a young person needs money for drugs or something else. We have to look at what is going on in our schools to realize that we can do something about it.

However, this is not how the hon. member has gone about it. Let us not be taken in. In reading today's motion, we can see that it addresses two specific points which come up periodically with the Alliance and before that with the Reform Party.

The first part deals with the age of consent, that is raising the legal age of consent from 14 years to 16. A private member's bill was introduced by the Reform Party during the 36th parliament, and we heard all the speeches then. It did not get through. I will come back to this in more detail later on.

The second part of the motion is in response to the Sharpe judgment. Incidentally, yesterday I listened to speeches in the debate on Bill C-15 that made the hair on my arms stand on end. Whether one agrees or not with the court's ruling is one thing. However, dragging the name of a judge through the mud, as they did, a judge who rendered a decision in the Supreme Court of British Columbia based on the statutes that exist in Canada, that is quite another story.

Justice Shaw rendered a decision. One might argue that is was not the best decision, but then the law must be changed. His decision was based on the law as it currently exists, based on the Canadian Charter of Rights and Freedoms, obviously, but also based on the criminal code.

There is good reason that we do not yet know if this judgment will be appealed or not. That is because there has been no decision yet. It might be wise to give the authorities, the crown attorneys and the government, a chance to decide whether or not they will appeal, but this has yet to happen. However, I challenge the Canadian Alliance to find where the judge made an error in law in this ruling.

Before dragging the judiciary through the mud, as the Alliance did yesterday, which discredits to some extent the position it is taking, I would like them to do some thinking.

I myself have been doing some thinking on the motion we are debating today. Certainly, if I wanted to play petty politics, like the Alliance is doing, I would applaud the motion and say, “Yes, this is terrible. All of these guys who are taking advantage of our young people and abusing them, and so on, they should be thrown in jail, regardless of the legislation and the age”. However, that would not be responsible. We are hear to act responsibly.

Let us compare the past and the present situation. Is there room for improvement? The age of consent of 14 has been around for quite some time. If we look at the criminal code, and even before the criminal code was adopted in 1892, we see that for women—because women accept a great deal—the age of consent has been set at 14 since 1890.

With the introduction of the criminal code, in 1892, this was included, again to protect women. But even then some distinctions had to be made. There were exceptions, because in those days, people were getting married at a very young age, even under 14. All this to say that if we look at the evolution of the legislation, we realize that, since 1892, there was never a full ban on sexual relationships with young girls over the age of 14.

Earlier, a Canadian Alliance member said “I speak as a father”. It just so happens that I too am a father. I have a 12 year old daughter and a nine year old son. They are much more mature than I was when I was their age. Do we have to go backwards? I do not think so. I believe that someone who is not handicapped, who does not have psychological problems, can give consent by age 14. This is not ideal and I do not wish this to anyone, but I think that, in its current wording, and considering the whole related jurisprudence, the criminal code provides good protection. A balance is struck and this is what we must seek.

To engage in petty politics as they want to is one thing, but they should be a little more logical in the process. The political party that is bringing forward this motion to raise the age of consent from 14 to 16 is the same party that is largely responsible for the amendments to the Young Offenders Act to lower the age of criminal responsibility from 16 for 14 for serious offences.

Based on the logic of the Canadian Alliance, a 14 year old who commits a criminal act is fully responsible for his actions and should be tried as an adult. Under the recent legislative changes made, provinces such as Manitoba, Alberta or British Columbia will be allowed to try 14 year olds as adults when they commit certain acts. I can assure the House right now that, in Quebec, we will use a ministerial decree to exclude 14 and 15 year olds from these provisions. This will not be the case in the provinces that are represented by the Canadian Alliance, where right wingers are very influent. They will treat 14 year olds like adults when it comes to criminal offences, but these same young persons would not be old enough to give their consent to sexual relations.

Once again, I urge them to be logical. There is an obvious contradiction here. Just now, I heard them say 10 years old. They even want to lower the age at which the Young Offenders Act would apply to ten. I certainly hope that someone, somewhere, will finally draw the line.

It was largely because of them that the legislation was amended. Fourteen and fifteen year olds will be treated like adult criminals, but the age of consent must be raised to sixteen. This makes absolutely no sense. Even in the criminal code, consent per se is not easily established. There are rules, specific criteria for arguing such consent. It is very complex. Even the supreme court has ruled on this more than once; the criteria are very clear.

Since I am an MP from Quebec, I look at what is being done in Quebec. Under the Quebec civil code, a 14 year old is deemed to be of full age for all acts pertaining to his employment or to the practice of his profession. He is also considered to be old enough to enter into contracts alone to meet his ordinary and usual needs. Under the Quebec civil code, a young person is recognized has having the power of discernment of an adult.

That having been said, at some point, it becomes necessary to amend the legislative provisions if it is felt that they do not reflect what society is prepared to tolerate. In Quebec, as far as the civil code is concerned, 14 year olds may act as adults. They can also be emancipated and take responsibility for some of their actions, although they are not adults. We need to be clear about this. As they mature, they are able to make certain distinctions. Fourteen seems to be a good age as far as the provisions of the criminal code go.

So much for the first part. I have taken the time to speak to this at length because it troubles me. This is not the first time the Canadian Alliance has acted in this way. I would like to see this party be logical in its approach to young people. I too want to protect them, but I also do not want to see their rights endangered.

The second part of the opposition motion consists, as I have said, in opposing the finding in the Sharpe case. As we know, the Sharpe case got to the Supreme Court of Canada, and then was brought back before the courts and retried. Justice Shaw of the British Columbia Supreme Court also brought down a verdict.

The second part opposes all of this. Even in connection with the Supreme Court of Canada's judgment in Sharpe, this set some guidelines and directed the debate properly in a free and democratic society such as ours. I therefore cannot understand the tenacity of the Canadian Alliance on this matter, unless it is for political gain and visibility.

As far as the Sharpe decision is concerned, I shall read a brief excerpt from it:

Accordingly, s. 163.1(4) should be upheld on the basis that the definition of “child pornography” in s. 163.1 should be read as though it contained an exception for: (1) 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.

Thus, this entire aspect was excluded in a way. Once again, this problem is not going to be solved by lowering the age from 16 to 14. People who have problems are going to continue to have them even if the age of consent in the criminal code is raised to 16 years.

The second part of the judgment reads as follows:

(2) 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—

This is understandable. The man in question may be unbalanced. I am not familiar with his specific situation. As far as the legal and criminal aspect is concerned, however, as well as application of the criminal code or the charter of rights and freedoms, at some point guidelines have to be set, as I have said. And we are within them.

If we do what the Canadian Alliance wants us to do—I do not know if they have thought about it—which is to go against the ruling made by the Supreme Court of Canada, to try to do in the legislative branch what the courts did not do in the judiciary branch, because they applied the Canadian Charter of Rights and Freedoms, this means that it would even be prepared to promote the use of the notwithstanding clause.

Did the Canadian Alliance say that it was prepared to use the notwithstanding clause to sort of validate the approach that it is proposing in its motion this morning?

I clearly remember that the Canadian Alliance was opposed to using the notwithstanding clause in the fight against organized crime, even though organized crime is a scourge that may be even more serious. I am not saying that pornography is not important. That is not the point. But in terms of the impact, of the monitoring problems, organized crime remains an even broader issue.

I think the Canadian Alliance is failing, both as regards raising the age of consent from 14 to 16 and blocking the decision in Sharpe. Therefore, going ahead with this motion would not make any sense.

If we look at the decision made by Justice Shaw, we realize that even the evidence adduced by the crown was insufficient to demonstrate beyond any reasonable doubt that the writings were advocating or encouraging sexual activity with a person under the age of 18.

Also, let us not forget that the individual was found guilty regarding the pictures, the use of films, etc. There is a whole part to which the criminal code could be applied, and properly so, when the evidence was adduced.

As for the other part, B.C. Supreme Court Justice Shaw even said that he did not have proof beyond any reasonable doubt that this individual, through his book, was advocating or encouraging sexual activity with a person under the age of 18.

Again, the Canadian Alliance is going about this the wrong way if it really wants to solve this problem, because the motion that it is moving would do nothing to solve this aspect, given that the judge had no proof. This is why I am saying that the Alliance had no reason to drag the judge's name through the mud because of this decision, because it was well founded when it comes to the issue of proof. This motion will do nothing to solve the problem.

I shall end my remarks here. Obviously, when it comes to the principle, the Bloc Quebecois will always fight to protect young people more. There is no problem when it comes to this.

We have introduced a number of private bills specifically to protect young people, whether it be from violence on television, drugs, or taxing. We have always been ready to intervene, and especially to improve legislation to protect youth. When the issue is clear, we support it. When it is vague, as is the case with the motion before the House, when it is not clear and says just about anything, that is a different story.

Yesterday, during question period, following a question from a member of the Canadian Alliance, I saw that the Liberals are interpreting it quite differently, very broadly. This proves that we do not even understand the motion in the same way. Based on the speeches made this morning, it is clear where the Canadian Alliance is heading with this, without spelling it out in the motion.

For all of these reasons, we do not support the motion, and I personally will be voting against it.

[Bill Blaikie, NDP, Winnipeg—Transcona, MB]

Mr. Speaker, on behalf of the NDP I would like to begin by saying how unsatisfactory this is. We are trying to deal with an issue as difficult as the issue the Alliance motion has put before us in the context of a one day debate on a motion which we either have to vote up or down. This is a difficult situation for the House to be put in, for parties to be put in and for individual members to be put in.

Perhaps it is unavoidable in some ways but it seems to me it was avoidable at one point. We had an opportunity to look at these issues in greater depth than we are now able to at least today, but we passed it up. Again it is partly because of the politics that attends this kind of issue.

People want to do a good job writing laws that deal with the issue of child pornography. Very often they are prevented from doing so by being in the position of either passing bad laws or bad motions because there is a willingness on the part of others in our political universe to charge them with not caring enough about child pornography if they do not hurry and pass the motion or the legislation.

In terms of amendments that came back to us from the Senate on Bill C-15A and in terms of this motion, we are now dealing with a situation that would have been preventable in part if we had been able to take the time to do Bill C-15A properly, or that part of Bill C-15 which was carved out of the original Bill C-15. However, because it dealt with child pornography and a number of other issues, and I am as guilty as anyone else in this, we said, no, let us just pass it and get it through.

Eventually the government buckled to the pressure. Instead of having that bill go through committee and having that part dealing with child pornography being considered properly, there was this sense that anyone responsible for any delay on that was somehow an accomplice of child pornography and therefore the bill had to be rushed through. In some sense now we are dealing with the consequences of not being able to look at that bill as thoroughly as we should have. Today we are debating an opposition day motion and we are basically in a similar position.

We are being asked to vote for something which, depending on one's point of view, one could not quarrel with the principle that the government immediately introduce legislation to protect children from sexual predators. Who could be against that? Yet the motion goes on to include thus, thus and thus. It is not well worded in some respects and does not really reflect some of the concerns people genuinely have, in that if we are to implement some of the measures that are included in the “including” part of the motion, there are things that need to be taken into account that are not.

If we were to go back far enough we could fault the government for not bringing in a piece of legislation having to do with child pornography alone. Then we could just deal with that. Instead original Bill C-15 before it was split into Bill C-15A and Bill C-15B, had child pornography and various other amendments to the criminal code having to do with police officers, et cetera. There were a whole bunch of things. Some were quite simple and one could just be for them and pass them. Others, as we have come to know more probably than we would like to through various court decisions, were complicated, such as this child pornography issue.

If the government had introduced that part of Bill C-15 which dealt with child pornography alone and allowed the committee to do a proper job, and if opposition parties had not taken the view that it had to be rushed through, there might have been a better job done. Then we would not be in the position we are in today.

We are of two minds, frankly. One is whether to vote for the general intent of the motion, which is to say that the government should introduce legislation to protect children from sexual predators. But we realize that the House really is not of one mind as to what that legislation might look like. It is a political dilemma in some respects because it goes beyond the principle in the motion to talk about, for instance, raising the legal age of consent to at least 16 years.

I know that members of the Alliance have said it is not their intention in any way to criminalize sexual relations between teenagers. I am glad to hear that, but the motion does not say that. In fact some would argue that the age of consent is 14 years in one respect but 18 years in another respect. What is it that is intended by the legal age of consent being raised to 16 years? What is the intent with respect to the 18 year old threshold that we also find in the law?

Having said that, I myself as the NDP justice critic asked the then minister of justice, now the Minister of Health, when she was before the committee I believe on Bill C-15 whether or not the government was intending to act with respect to the legal age of consent. I do not want to speak for other governments but I believe provincial ministers of justice have raised this with the federal ministry of justice. There is a feeling that something needs to be done about the age of consent. I am not unsupportive of that as the NDP justice critic. However it is a matter of some detail as to how one goes about doing that in the criminal code and the motion does not reflect that.

With respect to the child pornography aspect of the bill, many people are concerned. The member for Palliser stated it well on our behalf yesterday when he read letters from his constituents. People are concerned about the so-called Sharpe decision and the fact that artistic merit was used as a defence against charges of possessing what I believe were stories, which by anyone's judgment except perhaps Mr. Sharpe's and a few others, are offensive. If one takes a certain point of view with respect to child pornography stories, they may well actually contribute to sexual crimes by virtue of their existence and the relationship between their existence and the effect of their existence on the person who has them in their possession.

What we need to debate in the House is the appropriateness of the artistic merit defence when it comes to child pornography. I would bet there would be divisions between individuals within parties on this issue as it is not a question of one party versus another necessarily. There is nothing written in the evidence so to speak which says that child pornography should have this particular defence available to it, even in the very limited form that the supreme court has made it available.

For instance, we do not permit artistic merit to be a defence when it comes to hate. We have carved that out and said that artistic merit does not cut it as a defence when it comes to hate literature. We should look seriously at whether or not we should have a similar, but obviously not identical, carve out, when it comes to child pornography. Just what that would look like would be a matter of some deliberation.

As I have said in the past, the artistic merit defence is something that should be referred to the Standing Committee on Justice and Human Rights. The member for Palliser said that yesterday on our behalf in the debate on the amendments to Bill C-15A. We need to look at these decisions. We need to hear from people who are making very strong arguments that this is not a defence that should be available.

Of course, we need to hear from people who say that eliminating this defence would in some way or another endanger freedom of expression in other areas of expression. I would hope that even those who are strongly supportive of the artistic merit defence are not doing it on the basis of their attachment to or out of any defence of child pornography. They are doing it presumably because they are concerned about the effect that rejecting such a defence might have in other areas. It seems to me that is the moot point of the issue before us.

I say once again how much I regret that as a House we are not able to deal with this in a satisfactory manner in terms of process. We get rushed when we should not be rushed. Parliament has been rushed a number of times in my experience. A couple of times, certainly in retrospect, people have judged that we have passed bad law or law that would not stand up in the courts, et cetera. Although this is not a piece of legislation, we should consider whether or not we are doing the same thing again today.

[Larry Spencer, Canadian Alliance, Regina—Lumsden—Lake Centre, SK]

Mr. Speaker, I appreciate the concern of the hon. secretary of state for children and youth. It is a big issue.

I remind all members that our motion is not a statement of law. It is not an omnibus bill. It suggests there are a number of other issues the government needs to look at besides those addressed in Bill C-15A. As the hon. secretary of state mentioned, the law already says one cannot exploit a person under the age of 18 for sexual purposes. Now the government is writing a law in Bill C-15A that says one cannot lure a person under the age of 18 for the purpose of sex.

I have two questions for the hon. minister. First, does she believe a 40 year old man living in the United States could communicate with a 14 year old girl in Canada, come to Canada, invite the 14 year old girl to his hotel room, have sex and not be exploitative or have lured?

Second, does the minister believe pornographic material such as that in the case of John Robin Sharpe would be kept private and used only by the creator? Does the minister believe that nonsense?

[Paul MacKlin, Liberal, Northumberland, ON]

Mr. Speaker, the hon. member raises questions that obviously make us reflect on where we are in our society and how we try to cope with the problems that society generates through its advances.

When we look at the issues of artistic merit, we also have to look at the areas of trying to balance the freedoms that are set out within our charter of rights and freedoms with the interests of society. One of the interests of society of course is to figure out ways to protect our children. It is very important that we continue to work with and develop ways and means of protecting our children over the course of time as the situation changes.

There is no question that the government believes that we are making advances in the area of child pornography and that we are diminishing its ability to flourish within this country. Through the transnational nature of the entities that are created, we are concerned that if we do not get Bill C-15A passed with the section dealing with Internet luring and the international transport and export of pornography we will fall behind.

We have been a leader and we wish to continue to be a leader in fighting pornography. I wish to encourage members of the opposition to make certain that they support Bill C-15A so that we can minimize any future transactions that may occur in the international scene of the Internet. We must take those steps now.

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

Mr. Speaker, I will be splitting my time with the Secretary of State for Children and Youth.

I am pleased to participate in this important debate. I welcome the opportunity to have this discussion to confirm the government's commitment to taking the necessary measures to safeguard our children. The government remains committed to strengthening the criminal law's protection of children from sexual exploitation and all forms of victimization.

Canadians agree that child pornography is one of the most horrible forms of child sexual exploitation. Parliament has ensured that Canada's laws against child pornography are among the toughest in the world. Our law is very clear in prohibiting the creation of child pornography. The criminal code prohibits the making, printing, publishing or possessing for the purpose of publication any child pornography. Our laws strike at the heart of the trade in child pornography. The criminal code prohibits the importing, distributing, selling or possessing for the purpose of distribution any child pornography.

Let us be clear: our criminal code prohibits the possession of child pornography. The supreme court upheld criminalizing possession. One of the reasons parliament criminalized is that we must reduce the market for child pornography and consequently reduce the abuse of children that child pornography often entails.

Our law defines child pornography quite broadly. It is defined as a photographic, film, video or other visual representation that shows a person who is or is depicted as being under the age of 18 years and is engaged in or is depicted as engaged in explicit sexual activity. It does not matter whether or not it was made by electronic or mechanical means. Child pornography can be a photograph, a movie or a computer file. Our law ensures that it is all illegal.

Our law is not restricted to defining child pornography as depicting explicit sexual activity, as is proposed in the motion before us today. The law prohibits any visual representation, the dominant characteristic of which is the depiction for a sexual purpose of a sexual organ or the anal region of a person under the age of 18 years. In addition, the criminal code states that child pornography includes any written or visual representation that advocates or counsels sexual activity with a person under the age of 18 years. That would be an offence under the criminal code.

Our laws against child pornography are among the toughest in the world. The government is committed to being vigilant, both domestically and internationally. The nature of the computer networks and the child pornography rings through which this illicit material is traded crosses borders and requires international co-operation.

The G-8, for example, has consistently acknowledged the economic and social benefits arising from new technologies, but has also recognized that it must combat the use of such technologies for criminal purposes. Canada, along with its G-8 partners, has been active in countering the sexual exploitation of children on the Internet. Perhaps the most far-reaching international legislative initiative in this regard is the Council of Europe's cybercrime convention, which Canada signed in November 2001. The convention has now been signed by 33 countries, including all the members of the G-8 except Russia.

The cybercrime convention, which targets a broad range of computer related crime, addresses child pornography specifically in connection with computer systems and contains provisions to criminalize various aspects of the electronic production, possession and distribution of child pornography. The convention harmonizes laws to help shut down the international production and exchange of child pornography. We have not yet ratified the convention, but we can be proud that our existing law is already consistent with the child pornography provisions in the Council of Europe's cybercrime convention.

Our laws against child pornography are tough and have been upheld by the highest court in the land. The offence of possessing child pornography was challenged last year as being contrary to the freedom of expression and security of a person guaranteed by the charter.

On January 26 last year the Supreme Court of Canada upheld the constitutionality of the prohibition of the possession of child pornography. However the court decided that the guarantees protected by our constitution required the recognition of two exceptions where the prohibition's intrusion into free expression and privacy was most pronounced and its benefits most attenuated.

The first exception of excluded material consists of written materials or visual representations made and possessed by the accused for personal use. This exception refers to so-called works of imagination. We must keep in mind two things. First, there are no children involved in the production of these works. Second, although such works of the imagination can be possessed, they cannot be distributed, given away or traded in any manner.

The second exception consists of any visual recording made by the accused or in which the accused is shown provided that: the sexual activity is not unlawful; all parties consent to the making of the representation; and the representation is made exclusively for the person who made it or the person shown in it.

We must understand what this means as well. A person cannot have lawful sexual activity with children, so a person cannot create and possess images depicting such behaviour. The supreme court further stipulated that with respect to the narrow range of lawful sexual activity between 14 and 17 years of age, the individuals involved must consent to the visual recording and the resulting representations are excluded for their use. Although the individuals involved can possess the representations, they cannot give them away, trade them or distribute them.

The highest court in the land found a balance that was consistent with our charter of rights and freedoms. The supreme court upheld the law that parliament enacted. It is possible to amend the law but any changes have to be very carefully crafted to ensure that we prevent harm to children and also retain the constitutional protections that ensure we are free and democratic society.

The government has proposed amendments in Bill C-15A that succeed on both these fronts. Protecting children is a priority in Canada. We continue to fine tune our law to counter the new ways criminals exploit communications technologies to facilitate pedophile activities.

Bill C-15A will amend the criminal code to prohibit transmitting, making available, exporting and accessing child pornography. It will also prohibit possessing child pornography for the purpose of transmission, making available or exportation. These provisions will be particularly helpful in combating child pornography on computer systems, whether it is transmitted by e-mail or accessed through the Internet.

The passage of Bill C-15A should not be delayed any further. A commitment was made to speed the passage of these provisions when Bill C-15 was split. It is now time to honour that commitment. Bill C-15A will provide new ways to strangle the trade in child pornography. It will make our law better so that parliament can fulfill its commitment to protect children.

Clearly this government is dedicated to protecting children. We will take and make every effort to find the ways and means to deal with those who would take electronic technologies and attempt to advance them in a way that is inconsistent with our belief in the way our children should be protected.

An act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act

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

Madam Speaker, a number of statements have been made by hon. members during the last week of debate. I am pleased to have an opportunity to come forward today and give clarification to the issues.

First, I will talk about the status of animals as property. One of the members indicated that animals are treated as property under the criminal code. The hon. member said moving the cruelty provisions out of the property section of the criminal code would confer elevated status or even rights on animals.

As a matter of constitutional law the provinces rather than the federal government are responsible for property and civil rights. There is nothing in Bill C-15B which would in any way affect legislation or common law rules regarding property, many of which have been developed by the provinces.

The ability of humans to own animals is well entrenched in our common law. There is nothing in Bill C-15B which would change the property status of animals. Moving the provisions from one part of the code and putting them in another would not change the status of animals. It is completely misleading to suggest the status of animals would be elevated.

It is extremely important to emphasize that the law states that society has an interest in protecting all animals, whether owned or not, from the infliction of unnecessary pain, suffering, injury or criminal neglect. This is not new. It has been in the criminal code since 1953. Cruelty provisions in one form or another have been in the code since 1892.

The important changes in Bill C-15B regarding animal cruelty are twofold. They would increase penalties. They would also reorganize the provisions to allow for both the mental and physical aspects of offences regarding intentional cruelty and criminal neglect.

Second, I will discuss the notion that Bill C-15B would hamper pest control and industry in general. There has been a great deal of discussion in the House today about this. It has been said that Bill C-15B would prevent farmers from poisoning or killing pests. The tests for liability under Bill C-15B would not be changed even though the provisions would be reorganized and updated. The provisions with regard to killing or poisoning animals without lawful excuse would remain. Lawful excuse would be retained because the killing of animals for food, pest control and so forth has long been recognized by common law and continues to be recognized by case law, statute, regulations, codes of conduct and so forth.

It is equally inaccurate to state that farmers would not be able to kill injured animals to end their suffering. The tests for liability under Bill C-15B would not be changed. Bill C-15B would not make illegal any practice which currently meets the requirements of the law against unnecessary pain, suffering or criminal neglect.

Third, I will talk about the test for negligence. One member has stated that under Bill C-15B the test would be for civil negligence. This is not true. Subclause 182.3(2) specifically defines negligence as a standard of criminal negligence. It says the behaviour of the accused must constitute a marked departure from the standard of care of a reasonable person in similar circumstances. The Supreme Court of Canada has expressly stated that in any situation where the possibility of imprisonment exists a standard of criminal as opposed to civil negligence is a constitutional requirement.

Fourth, I will talk about people's alleged vulnerability to vexatious prosecutions. A number of members have complained that Bill C-15B would make industry more vulnerable to vexatious prosecutions by animal rights activists. At the same time they have complained that the proposed screening mechanism of Bill C-15A would expose those accused to the costs of hiring a lawyer.

We cannot have it both ways. The criminal code currently has a number of safety mechanisms which allow the prosecutor to intervene and if necessary, stay a prosecution which is commenced by a person other than a peace officer or a public officer.

Bill C-15A extends this protection to a much earlier stage in the process to a point in time before the potential accused is even charged. The process is not a preliminary hearing. It is a screening process where a judge or a designated justice must be satisfied that there is sufficient reason to proceed before the accused is even required to attend court.

This process forces the prosecutor to assess the strength of the case at the first opportunity and to recommend to the judge or justice that the matter proceed if and only if there is sufficient reason to do so. One important consideration that the prosecutor will consider in making his or her recommendation to the court is whether or not it is in the public interest to proceed, a very important point.

Next I would like to deal with the argument that has been brought forward concerning section 429 and its absence. The argument that the reason subsection 429(2) defences have not been argued in cruelty cases is that their very existence precludes the crown from prosecuting.

The Canadian Criminal Lawyers Association in its testimony before the committee confirmed that removing the cruelty provision from part XI of the criminal code would not diminish any defences available to accused persons. All defences in subsection 429(2) which could possibly be relevant to animal cruelty cases and available under subsection 429(2) are equally available under subsection 8(3) of the criminal code.

It is simply wrong to indicate that the existence of defences acts as a bar to prosecution . Case law has clearly confirmed that there is no onus on the crown to disprove all relevant defences as part of its case. Once the crown has proven all elements of the offence beyond a reasonable doubt, the accused bears an evidentiary burden to raise a doubt about one of the elements of the offence. If the accused does so, then the crown must disprove the defence beyond a reasonable doubt. That is very important.

The last issue I would like to deal with is the definition of animal. Under the current cruelty provisions, animal is not defined. At the present time the courts are free to interpret the word animal in accordance with its everyday meaning, resulting in an interpretation broad enough to include most, if not all, members of the animal kingdom and certainly including many invertebrates. A definition is included in this legislation for the sake of clarity.

From a scientific perspective, vertebrates are generally viewed as having sufficiently developed nervous systems to allow for sense and pain perception. They are therefore as a group all given the protection of the law. But some invertebrates have a developed nervous system and therefore also may have the capacity to feel pain.

It would be arbitrary to permanently and absolutely deny protection to some animals because they happen to be classified as invertebrates. Bill C-15B creates a mechanism that allows the crown to proceed in appropriate cases. The burden of proof which must be met by the crown is proof beyond a reasonable doubt.

There are three jurisdictions in Canada which have a definition of animal in their respective statutes which is broader than the definition found in Bill C-15B. To date there is no indication that the definition of animal used in these jurisdictions has resulted in inappropriate use of the legislation.

I am very pleased to have had this opportunity to correct some of the information that has been brought forward during the debate.

[Dick Proctor, NDP, Palliser, SK]

Madam Speaker, I intend to make a few brief remarks regarding the subamendment put forward by the hon. member for Selkirk--Interlake that says that the committee should report back to the House not later than June 21.

Bill C-15B has passed committee. The New Democratic Party caucus voted in favour of the legislation. We were supportive of government measures to modify sections of the criminal code dealing with cruelty to animals and sections of the Firearms Act making administration of the act and the gun registry system more responsive and easier to access.

Bill C-15B's cruelty to animals provisions would remove offences dealing with animal cruelty from the property crimes section of the criminal code and create a separate section. This is a conceptual shift our caucus has supported throughout the process. Rather than treating crimes against animals as crimes against property the bill would give animals their own status as creatures that can and do feel pain.

Concerns about the potential impact of Bill C-15B on rural and northern constituents were largely put to rest in going through the legislation. Amendments introduced by the former justice minister and supported by the NDP caucus addressed the concerns of farmers, fishers, hunters and trappers about being subject to frivolous prosecution or harassment. Under Bill C-15B they would have available to them many of the defences they possess under the existing code.

A number of animal welfare groups are concerned about the wording dealing with abandonment of animals. The government's recent amendments included the words wilful and reckless. According to the Society for the Prevention of Cruelty to Animals this would make abandonment charges difficult to prosecute.

Bill C-15B would impact neither normal industry practices nor the legitimate use of animal products in society. Under the bill police forces and societies for the prevention of cruelty to animals would be able to prosecute animal cruelty offences in a stronger fashion.

The gun control and registration portion of the bill deals with modifications to the Canadian gun registration system. The changes were introduced to make the system more accessible and responsive to the demands of users. There was significant opposition from various gun lobby groups on the grounds that there should be no gun registration system at all. However the User Group on Firearms, a consultative body of gun users formed by the government, seemed satisfied with the modifications and the improvements they would make to the system. On the other side, the Coalition for Gun Control did not oppose the amendments.

When the agriculture committee was in New Brunswick last month we had the opportunity to tour the gun registration centre in Miramichi. We were all very pleased to see the image of the hon. member for Selkirk--Interlake come up on the screen. We were pleased his application had been accepted and his permit had been mailed to him the day before. I am sure he is proudly showing it to all his friends in Selkirk--Interlake.

I will close by referring to a sad and disturbing matter adjudicated last week in a Toronto courtroom. Two young men drew what seemed like, as the Globe and Mail editorial reported, “extraordinarily light sentences for killing and mutilating a cat and videotaping the spectacle in the name of 'art'”. Animal activists were outraged that one culprit received a 90-day jail term to be served on weekends and the other walked free in lieu of time already served. It was felt the sentencing judge could have been tougher. The two people convicted knew exactly what they were doing when they stole a healthy pet cat and inflicted unspeakable suffering by skinning it alive, dissecting it and gouging out one of its eyes.

Equally evident in court was that the two were in no way inhibited by the law as it currently stands. The law as it currently stands dates back 110 years. The maximum penalty for animal cruelty under the 110 year old act is six months.

Today's Globe and Mail editorial states:

Bill C-15B, which has received second reading by the House of Commons, would raise that maximum to five years. The new legislation would also permit a lifetime ban on pet ownership and increase the ceiling on fines to $10,000.

These useful changes, long overdue, reflect a sea change in public attitudes toward animals over the past century. As well, there is ample evidence that cruelty to animals is not only commonplace but also a threshold to other, more serious aberrant behaviour.

But you would not know that from the resistance the bill has generated among some Canadian Alliance and Tory MPs. For them, the new legislation is a sinister assault on the rights of farmers, ranchers, hunters and other law-abiding folk who work with animals.

Wrong. Under the changes, animal cruelty will have its own section in the Criminal Code. And in case those critics have forgotten, for a crime to occur there has to be intent.

[Robert Lanctôt, Bloc, Châteauguay, QC]

Madam Speaker, I rise today to provide the Bloc Quebecois' position as regards the amendment to the amendment.

We believe that it is high time to take action on the matter of cruelty to animals, but this does not mean that we should act in haste.

It is true that cruelty to animals is a serious problem that deserves our attention. We are on the record as saying that these are horrible acts of violence committed wilfully, while animals cannot defend themselves, nor assert their rights.

The Bloc Quebecois is opposed to Bill C-15B for two main reasons: because of the lack of protection for legitimate activities with animals, and also because it takes important powers away from the chief firearms officer.

That being said, we do support the amendment to the amendment to establish a deadline for an indepth study into the provisions of Bill C-15B regarding means of defence. While we support the notion of a new section that would introduce an innovative concept by changing the notion of animals as property, we are opposed to the significant and negative impact this could have for all those who work legitimately as breeders, hunters and researchers.

The amendment is an important one, but it should not be made to the detriment of others. It is true that we no longer view animals in the same way that we used to. However, I would not want this innovation to change the lives of those who have worked for years in the livestock, scientific research or sport sectors.

So the amendment to the amendment sets a deadline by which the Standing Committee on Justice and Human Rights must report to the House further to its detailed consideration of clause 8 of Bill C-15B.

The Bloc Quebecois is in favour of the amendment to the amendment because it means that there is a reasonable possibility that clause 8 of Bill C-15B will be reviewed in a careful and detailed manner. This clause defines the benchmarks for the protection of legitimate activities in the animal industry.

Bill C-15B raises strong controversy. One of the areas of controversy is the flagrant lack of protection for these legitimate activities in the animal industry. As we have already said, we cannot support Bill C-15B as now worded.

The specific defences provided for in section 429 of the criminal code, which now explicitly protect those who raise livestock, hunters, the animal industry and researchers, are not included in new part V.1 of the criminal code.

The primary purpose of this bill should have been to increase penalties for any reprehensible and violent activity. Furthermore, the term “cruelty” is clear to this effect. The penalty for a cruel offence should be serious enough to deter anyone contemplating it. But this is not the case with Bill C-15B, because it lumps all violent actions together, whether or not cruelty is involved. This is unacceptable.

In committee, we were told that it was not the government's intention to deny the legitimate activities of livestock raising, hunting and research the protection to which they are entitled. But protection is expressly provided for in section 429 of the criminal code, whereas it is not in clause 8 of the bill.

I therefore wonder why these protections in section 429 of the criminal code are not included in new part V.1 of the criminal code. It is simply not logical.

On numerous occasions in committee, we put forward many amendments to this effect. They were all rejected. It is therefore time to go back and take a specific look at the defences provided for, which should be provided for in clause 8.

We could ask ourselves what is really motivating the government right now. Why not include provisions which have been around for a long time?

The Bloc Quebecois has introduced amendments to that effect, but they have all been rejected, as I have said. In our opinion, it is essential to protect animals, and this is a matter of some urgency. It is, however, important to take steps that are both appropriate and prudent if all stakeholders are to be satisfied. This is both possible and attainable.

As I have said, we favour the creation of a new part in the criminal code, to address the protection of animals. It would give them a new definition and a new legal value. We cannot, however, accept this being done without respecting the currently applicable mechanisms of protection, the means of defence listed in section 429.

To do so is tantamount to disrespecting the men and women who have been working in this field for many years. Not including a defence that is currently available is cause for concern.

Does this mean we can no longer count on our legislation? Does this mean that normal activities will soon become illegal? From what we can see, this will indeed be the case.

I wonder about the vision the government has chosen. If this means that our legitimate activities are going to be in a precarious position in future, I am concerned. I am both concerned and disappointed. It seems to me that today we possess all the tools necessary to create an approach that would punish true offenders while protecting farmers, hunters and researchers. From what I see, this approach is far from being as complete and all-encompassing as it could be.

I have already said, and I repeat, the fact that the defences found in subsection 429(2) of the criminal code are not included in the new part V.1 will have the effect of depriving those who legally kill or cause pain to animals of the protection they are currently afforded.

Section 429 of the criminal code sets out that legal justification or excuse and colour of right constitute specific protection to whomever takes part in a legitimate and legal activity. I believe that it is important to include these specific safeguards in part V.1 of the criminal code.

According to the former Minister of Justice, subsection 8(3) of the criminal code will be applied. This type of statement demonstrates incomplete and clearly inadequate intentions. According to officials from the Department of Justice, defences of legal justification or excuse are implied in section 8. This defies logic. It is impossible to shift from specific and explicit provisions to an implicit application without any problems.

For this reason, the Bloc Quebecois insists that these specific defences, currently set out in the criminal code, absolutely must be repeated in the new part V.1 of the criminal code. Furthermore, we believe that sending this aspect of the bill back for study in committee is a good sign.

This review is long overdue. So why rush ahead without thinking now. All the ins and outs of the new provisions must be examined in order to ensure that the scope of Bill C-15B is logical. Care must also be taken to ensure that Bill C-15B really meets the needs of all parties.

We are therefore in favour of increased protection for animals, as well as the explicit inclusion of protection for legitimate animal industry, sport and research activities.

It is obvious to us that Bill C-15B, as now worded, will cause serious difficulties for hunters, medical and scientific researchers, and the entire animal industry. There must therefore be a completely democratic approach in committee, so that all aspects of cruelty to animals can be taken into consideration.

The facts associated with this phenomenon of intolerable violence should be re-evaluated. We must ensure that there can be no possible conflicting interpretations of the new provisions.

This is what is required of us in our role as parliamentarians. Asking the committee to report before the summer shows that we are being diligent as parliamentarians, because we feel that this scourge requires our serious and urgent attention.

I call on the government, on the Minister of Justice, and on his parliamentary secretary, to have a look at this motion and approve it so that we give serious consideration to the defences which I feel should be explicitly included, which take nothing away from the bill and which will protect all stakeholders in the animal industry.

Privilege

[John Reynolds, Canadian Alliance, West Vancouver—Sunshine Coast, BC]

Mr. Speaker, I guess the Liberals get so many fairy tales at caucus it is a little tough to listen to them here.

As I was saying, the fire consumed 50 of the backbenchers and sent the rest scurrying back into the castle. When King Jean was told of the terrible tragedy he resolved to investigate it himself. To help he took along two of his most trusted knights: Lady Marlene, the keeper of the royal whip; and Lord Goodriavere who had just risen to high rank through faithful service to King Jean.

As they surveyed the scene of the tragedy and saw 50 fried backbenchers they observed three things. First, they said it was too bad. Second, they saw the dragon lying dead from overexertion. Third, they noticed the dragon's fire had ignited a seam of coal in the cave from which smoke continued to billow.

Lady Marlene who is a straightforward woman said the obvious: “The dragon is dead. This is good news. Let us go and tell it to the backbenchers”. However Lord Goodriavere said not so fast. Turning to King Jean he said “I see an opportunity here to maintain and increase our control over the peasants. Let us imply, indirectly of course, that the fiery dragon still lives. We can point to the smoke belching from the cave as evidence of this. Let us tell the backbenchers that henceforth they can only go out of the castle with royal permission and under the supervision of myself and Lady Marlene, for the safety and protection of themselves and the castle of course”.

King Jean thought this was a splendid idea. Thus the myth of the fiery dragon was established to coerce and control the backbenchers of the kingdom.

Like the dragon in the story, it is a myth that a government must resign if a government bill or motion is defeated or if an opposition motion or amendment is passed. The myth is used to coerce government members, especially backbenchers, to vote for government bills and motions with which they and their constituents disagree and vote against opposition motions and amendments with which they substantially agree.

We saw this when Liberal members were forced to vote down compensation for hepatitis C victims. We saw it when they were forced to vote down their own policy to scrap the GST. We saw it when they appointed an ethics counsellor who reports directly to parliament. We saw it last Wednesday when the Liberals forced the withdrawal of a private member's bill instead of giving the House an opportunity to vote on it.

In determining the guilt of the hon. member for Esquimalt--Juan de Fuca it is important to compare his actions to other inappropriate acts. In other words, does his behaviour live up to the standards we have established and does he deserve the punishment mentioned in the government's motion?

Let us look back at the election that first brought the government to power. No motion was tabled criticizing the members who told the public they would scrap the GST and then decided to keep it. No one on that side of the House tabled a motion to admonish the Prime Minister for flip-flopping on free trade. Nothing was done about the broken promise to restore faith in good government.

That is why today in the papers we see a poll that says 71% of Canadians think government is corrupt. Ministers caught in a jam about the truth refused to resign and were never pressured by the Prime Minister to do so. How about ministers or so-called leadership candidates accepting payments from undisclosed interests to finance their undeclared leadership races? How about my favourite issue: closure and time allocation? It has been implemented 75 times. That is a higher number than under any other government in the history of this great nation. It leads to frustration.

Mr. Speaker, you had strong words to describe the abuse of time allocation and closure when you were in opposition. On February 19, 1993 you said:

What we have here is an absolute scandal in terms of the government's unwillingness to listen to the representatives of the people in the House. Never before have we had a government so reluctant to engage in public discussion on the bills brought before this House...I suggest that the government's approach to legislating is frankly a disgrace. It cuts back the time the House is available to sit and then it applies closure to cut off the debate.

If I did not know it I would have thought the Chair was talking about the present government. He would have to work a lot harder because the list of the present government is long compared to the Tory government of the past.

Mr. Speaker, I have one more quote from you. It is a good example of how closure frustrated even a patient man such as yourself. On April 23, 1993 you said of the use of closure:

I suggest this is not the way to run Parliament. This is an abuse of the process of the House.

Mr. Speaker, I agree with you. When a government abuses the process as it did with the private member's bill for the hon. member for Esquimalt--Juan de Fuca it results in frustration. It is no way to run a parliament.

I will go over a couple more examples. As hon. members will recall, there was to be an independent judicial inquiry into the Somalia affair. The minister of defence shut it down. Then the Prime Minister decided it would be best if he did not testify before the APEC inquiry. There was also a certain phone call to the president of the Business Development Bank of Canada. I am sure the Chair would agree these actions are better suited for a motion of contempt than the actions of the hon. member for Esquimalt--Juan de Fuca.

My party has raised many questions of privilege of the House on important matters that attacked the authority and dignity of the House but no action was taken. Not one Liberal stood to support this institution. I will cite a few examples.

Do hon. members remember when the Minister for International Trade sent out a press release on March 30, 1998 entitled “Marchi Meets with Chinese Leaders in Beijing and Announces Canada-China Interparliamentary Group?” At the time there was no Canada-China interparliamentary group. The minister gave the impression the association existed when parliament had not approved it. That is a fine example of the respect the Liberal government gives to parliament.

Let us not forget the naming of the head of the Canada Millennium Scholarship Foundation by the government before there was legislation to set up the foundation. Did the government think this dismissive view of the legislative process was an affront to parliament? No, it defended its actions.

I could supply the House with many more examples. However I will now turn to cases that involved the conduct of hon. members and cases found to be prima facie. In this parliament alone we have had three questions of privilege involving ministers. The Chair found all three to be prima facie. As a result they were referred to the Standing Committee on Procedure and House Affairs.

Let us examine the three cases. First, the present Minister of Health when she was minister of justice leaked the contents of Bill C-15 to the media before it was tabled in the House. She was found to be in contempt by the Standing Committee on Procedure and House Affairs but the committee declined to recommend a punishment. It instead gave her a warning. The committee suggested if it ever happened again it would not be so generous. Let us compare this to the current case. They are both affronts to parliament but the Liberal minister received no punishment. She was told not to do it again. She received a mere slap on the wrist.

Second, the same minister was up on the same charge for leaking the contents of Bill C-36. The committee concluded she could not be responsible because it could not find the guilty party who leaked the bill. That is so much for ministerial responsibility. The minister got away twice without punishment.

Third, the minister of defence made misleading statements in the House. This is normally considered a grave matter. What was the outcome of the question of privilege? The Standing Committee on Procedure and House Affairs essentially whitewashed the whole affair. The minister got off without having to receive any punishment whatsoever.

Let us go back to the 35th parliament. We had a case where a Bloc member, Mr. Jacob, wrote a letter to Quebecers in the military suggesting they defect and join a separate Quebec army in the event the referendum result turned out to be a yes. Do hon. members remember that? A Reform member, Mr. Hart, rose in the House and charged Mr. Jacob with sedition. The Standing Committee on Procedure and House Affairs considered the matter. The Liberal majority, afraid to upset anyone in a post-referendum atmosphere, concluded that contempt had not occurred and no punishment was deserved.

Let us imagine that. In the U.S. the member would have been sent to prison and put on death row. In Canada we get more upset over someone grabbing the Mace. At least the hon. member for Esquimalt--Juan de Fuca has apologized. Mr. Jacob never apologized to the House for his conduct.

Let us look an identical case which occurred in the 34th parliament. In a similar moment of frustration Ian Waddell grabbed the Mace as the Sergeant-at-Arms was carrying it out of the House. The next day the government House leader moved a motion requiring Mr. Waddell to appear before the bar of the House to be admonished by the Chair. If that was the punishment for touching the Mace in the 34th parliament why is the government House leader in this parliament recommending a more severe punishment?

Criminal Code

[Vic Toews, Canadian Alliance, Provencher, MB]

Mr. Speaker, it is my honour to speak on the subamendment brought forward by the member for Selkirk--Interlake and seconded by the member for Medicine Hat. I think the amendment is realistic. It is a good amendment. There are substantial issues that need to be discussed in the course of bringing this back to the committee, but I think in fairness there needs to be some time limit on this issue.

Every day new issues arise in respect of the bill which warrant the committee looking at this offence. One of the matters that was just raised with me, and I think it is a very significant issue, is the issue of rights of private citizens in respect of initiating prosecutions. As we know, through Bill C-15A there will be a new system. This new system will set up a screening mechanism before a judge. A judge will determine whether the offence in fact should be brought forward to the court.

It has been said by members opposite that the whole nature of the hearing that takes place is that it will be just a summary hearing. It will be a complainant going before a judge to show the evidence. As members know, that kind of arrangement would violate not only our charter of rights but even our basic rules governing natural and fundamental justice. We cannot go into a hearing and say to a judge that we believe there is sufficient evidence in order for this matter to go to hearing. It is the same way that a preliminary hearing used to take place or still does. An information is sworn. The matter is brought before a judge. A judge, on hearing from both the prosecutor and the defence, if the defence wants to submit evidence although there is no requirement for it to do so, will make that determination.

What we have now is a brand new preliminary hearing process that will complicate this proceeding. Those who say that this proceeding will now act as an effective screen to prevent people from having to go to court do not understand the nature of this process, nor do they understand the determination of radical animal rights groups to prosecute individuals.

We must remember, with all respect, that these groups do not have to worry about whether or not there is a conviction. A farmer in my riding, a hunter and a fisherman and others involved in these businesses are under a lot of stress. I think is simply unfair for them to have to face a criminal prosecution.

The other interesting point that now has been drawn to my attention is that we want to make sure that criminal cruelty is treated very severely in respect of animals. I think everyone agrees with that. The Canadian Alliance does not, nor do any of the other opposition parties, I believe, have an objection to the increase in penalties. What we saw the other day in Toronto was quite a surprising decision. I do not know if anyone has had an opportunity to review that decision, but we had a judge commenting on the skinning and otherwise mutilating of a cat over a period of time. He indicated that this was not the worst way in which a cat could die. I am just wondering if that judge could tell the House, in further written reasons perhaps, what he thinks is the worst way a cat could die. I think this shows part of the problem. The problem is not that we do not want stiffer penalties for genuine acts of cruelty, but that the courts today are not imposing the sentences that are already available. In this case the court could have imposed a sentence of two and a half years. Essentially it was time served, and I believe it was house arrest.

What we are going through here is an exercise in futility if the courts themselves do not recognize the seriousness of this offence. If the government wants to get serious about penalties and genuine cruelty penalties, it must put in minimum sentences. However, all that is happening here is that this is just a political statement designed to placate the animal rights organizations, to say, look, we are increasing the penalties, we are taking this more seriously. Everyone involved in the courts knows that is simply a fiction. It will not happen. We have seen it in the case of impaired driving. We have seen it over and over again. Unless there are minimum sentences imposed, the courts do not respond to increases in penalties. It is as simple as that.

The more troubling thing, even more troubling than this decision that came out of Toronto from the judge who felt that being skinned was not the worst way for a cat to die, is what happens now when we create not just a summary conviction offence but a hybrid offence. Is this in fact an indictable offence, then, such that now a private citizen perhaps can arrest a person for walking a dog wearing a choke collar? Can the private citizen saying that this looks like cruel and unusual punishment for the dog, that there is no legal justification for using a choke collar? If the person is placed under arrest, what are the consequences?

I see that my time has almost expired. I will leave it at that for now.

[Gerald Keddy, Progressive Conservative, South Shore, NS]

Mr. Speaker, it is with some regret and trepidation that I rise to speak to Bill C-15B, the cruelty to animals legislation. I am sure all members agree that this legislation is seriously needed.

It has been 100 years since the legislation was updated. It is an issue of great importance to the country and an issue that needs to be dealt with by the Parliament of Canada. As I said, I rise with some regret and trepidation because as a member of parliament, a farmer and hunter, I cannot support the legislation. It needs to be improved and modernized.

What we have before us is the complete dereliction of duty by members of the Liberal government. This is a complete denial on their part of grappling with a difficult issue and coming out with an evenhanded and balanced approach to complex problems. This is not what has happened here.

I have no idea how rural members of the Liberal government, the agriculture critics, and the committee members will vote. Actually I have an idea how they will vote, but I do not know where they stand on this issue. I do not know why we have not heard more from the government side on this issue.

Bill C-15B is a bad piece of legislation. Anyone who has taken a moment's time to read it, who has a rudimentary understanding of rural issues, animal husbandry and cruelty toward animals legislation, and anyone who has the barest opinion on this subject cannot support the legislation. There is no way I can envision support for the legislation.

I received a letter from Doug Bacon, president of the Nova Scotia Federation of Agriculture. He writes:

The Nova Scotia Federation of Agriculture and its members have been following the progress of the cruelty to animals section of Bill C-15B with close attention. Since a key component of the agricultural industry relies on animals, this proposed legislation has the potential to seriously impact our livelihoods.

We are supportive of many aspects of the legislation, including tougher penalties for animal abuse, and while the previous Minister of Justice was very compelling and her amendments helpful, we are not convinced...

This is from people the legislation is directed toward. The legislation is not directed toward some university student who throws a cat out a window albeit that would be a horrific offence. The legislation is not directed toward pet owners who neglect, abuse and torture pets every day in Canada. The legislation is directed toward people who are legitimate animal owners.

I do not know what category animals would be included once the bill is passed. However I do know in what category they would not be included. They would not be put in the property section of the legislation. What are they then? The government thinks they are kids. They are not kids and are not about to be kids. It is time for the government to wake up and smell the roses. It is time for the government to look at the legislation for what it is.

The letter continues:

Bill C-15B must be amended to ensure legitimate animal practices will not be frivolously targeted. We need your support to ensure:

1. Animal cruelty provisions are put back in Part XI of the Criminal Code. Animals are property and such classification does not impede or prevent appropriate animal care practices;

2. If animal cruelty provisions stay in Part V.1, it must be amended to read, Cruelty to Animals: Private and Public Property.

If pet owners want to think that their animals are somehow public property or somehow different than agricultural or domestic animals, so be it. A provision should be put into the bill to accommodate those people. I happen to disagree with that, but animals should not be put under the provision of being property for farmers because that is a huge mistake which will do nothing but generate millions of dollars worth of lawsuits that are just waiting to happen.

The last amendment reads:

1. The definition of animal be amended as per the testimony of the Criminal Lawyers Association before the Standing Committee.

Mr. Bacon goes on to say:

These changes will not weaken the law but will serve to clearly establish in law the intention to protect the rights of animal users--an intention that has already been communicated by the minister. We are not asking for special treatment under the law, we are only asking for a law that will respect standard animal practices.

The bill was originally introduced in the House of Commons on December 1, 1999, as Bill C-17 and died on the order paper with the call of the election in October 2000. It is currently before parliament as Bill C-15B. It was studied by the justice committee and received testimony from numerous legal experts and representatives from both animal rights groups and organizations representing hunters, anglers, trappers, farmers and other stakeholders.

When re-introducing the bill, the Minister of Justice heeded the concerns of the opposition parties and stakeholders and made amendments from the previous Bill C-17 to provide clarification to the cruelty to animal provisions, encompassing those who willfully, recklessly or without regard to the consequence of their acts, cause unnecessary pain, suffering or injury to an animal. Despite these improvements further amendments were needed before the Progressive Conservative Party could support these provisions dealing with crimes against animals.

It is not because this is not an important issue. It is not because this issue needs to be dealt with. It is because this is a bad piece of legislation. Certainly it is not the job of parliamentarians to leave the decision on what constitutes cruelty up to the courts. If we were to leave every decision that needs to be made in this country up to the courts, we would live to rue that day. We would regret it, it is quite simple. We cannot, as representatives of Canadians and protectors of animal rights, take farm animals out from under the property act. That would be a huge mistake.

It is a mistake that this parliament and other parliaments and Canadians would pay for. It would be impossible to guarantee the safekeeping of every animal owned, and I say owned because they are property, by every farmer in Canada. Without question, the bill needs to come before parliament but it desperately needs to be amended. It needs to be improved upon. We need to put it back in the realm of a bill that when we leave the House after it is passed, because the government will pass it, we can say it is a good piece of legislation and we did the right thing.

I expect there will be many Liberal members of parliament who, if they vote for the bill, will hang their heads in shame after they have done it.

[Dick Harris, Canadian Alliance, Prince George—Bulkley Valley, BC]

Mr. Speaker, in speaking to Bill C-15B I will focus primarily on the issue of farmers in Canada and how they could be affected by the application of the bill in its present form.

The bill's implications for farmers are quite significant. As we all know, farmers constantly face challenges in trying to carve their living out of a land filled with both domestic and wild animals. Farmers are influenced daily by weather, commodity prices, transportation costs and mismanagement of federal agricultural policies. Most farmers would add certain animal rights groups to the adversaries they face on a daily basis.

Some groups target livestock producers whom they label as cruel, inhumane and even barbaric. People for the Ethical Treatment of Animals, PETA, has launched an anti-dairy campaign targeting schoolchildren. It tell children dairy farmers are evil because of the so-called cruelty they inflict on their cows. This animal rights wacko group essentially tells kids if they drink milk they are playing a part in the torture of dairy cattle. That is the most outlandish line of thinking I could possibly imagine, yet it is only one of the things PETA advocates.

Bill C-15B which we are debating would change the way the criminal code deals with animal abuse. We in our party agree with the vast majority of Canadians who say we need harsher penalties for those who deliberately abuse and are cruel toward animals. Unfortunately, because of the way Bill C-15B is currently worded many ranchers, farmers, hunters and medical researchers may be subject to harassment, prosecutions and convictions for abuse even though they are properly caring for their animals.

The wording of Bill C-15B would give groups like PETA free licence to bring court proceedings against farmers, hunters and medical researchers who are not treating animals in a cruel or abusive nature. However because members of PETA believe they are, the wording of the bill may encourage them to bring charges. They could do so not because there was substance to the charges but because this is the way such animal cruelty groups think about things. PETA is the same group that tells school kids if they drink milk they are contributing to the torture of dairy cows because dairy farmers are cruel to their cows. We can see the connection between absurdity and the possible harassment some people in our society may go through because of this group.

Animal welfare groups such as the International Fund for Animal Welfare and the Ontario Society for the Prevention of Cruelty to Animals claim they have no intention of using Bill C-15B to harass farmers and researchers. However because of the past actions of groups such as PETA and the Animal Alliance of Canada we have a hard time believing their partners in the animal rights movement would follow that position.

I will read a statement by Liz White, a lawyer for the Animal Alliance of Canada, who foretold what might come if Bill C-15B passes in its current form. She gave a veiled hint of the group's intentions by stating:

My worry is that people think this is the means to the end, but this is just the beginning. It doesn’t matter what the legislation says if no one uses it, if no one takes it to court, if nobody tests it. The onus is on humane societies and other groups on the front lines to push this legislation to the limit, to test the parameters of this law and have the courage and the conviction to lay charges.

The intent to use Bill C-15B as a tool to restrict the use of animals in research and agriculture seems clear. Animal rights groups would jump all over farmers, medical researchers, hunters and anyone else whom they felt pet an animal the wrong way.

The Canadian Alliance is demanding two major changes to Bill C-15B to prevent frivolous and downright stupid charges from being laid. First, the bill's definition of animal must be amended. The current definition reads “a vertebrate, other than a human being, and any other animal that has the capacity to feel pain”. The definition is too broad. It could easily interfere with the ability of farmers to eliminate pests and the ability of researchers to find cures for diseases. This could get pretty serious in light of what some animal rights groups are saying.

Second, the Canadian Alliance is calling for Bill C-15B to protect people who legitimately use animals from costly and frivolous prosecutions. The criminal code currently provides protection from harassing prosecutions. However because Bill C-15B would move animal cruelty out of the property offences of the criminal code the current protection would be effectively removed.

The justice minister has the ability to introduce legislation to strengthen and modernize the current cruelty to animal provisions of the criminal code without threatening people who legitimately use animals. However he has rejected that. It seems he has fallen for the line of the animal rights groups. He has refused to be explicit in Bill C-15B and ensure the courts would not be able to interpret it in a way parliament did not intend.

We are concerned. The Liberals are counting on Bill C-15 to reach much further than they publicly state. There may be a hidden agenda behind the bill. The government has refused to protect farmers who legitimately use animals for the production of dairy and other agricultural products and researchers who legitimately use animals in trying to find cures for diseases. The wording of Bill C-15B would leave such people wide open to harassment by animal rights groups.