Criminal Law Amendment Act, 2001

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

This bill was last introduced in the 37th Parliament, 1st Session, which ended in September 2002.

Sponsor

Anne McLellan  Liberal

Status

This bill has received Royal Assent and is now law.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Protecting Children from Online Sexual Exploitation ActGovernment Orders

September 24th, 2010 / 10:15 a.m.
See context

NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, I am very pleased to continue debate on what is now Bill C-22. I think this may be my last speech for a while, so all members can relax.

This is also a very important bill. Once again, it has been five years plus that we have been waiting for this bill, now titled Bill C-22. It was called Bill C-58 before the government prorogued the House. It is the child protection act online sexual exploitation.

There are some important points here that the members should know about this bill even though it has been knocking around now for five years and many speeches have been made about it. It is one of these bills where there really is not a lot of disagreement on the subject.

I personally am not really sure how it is going to play out. The reality is once we send it to committee, which should be fairly soon, and once the committee hearings are proceeded with, I really do not foresee many amendments to this bill and I do not foresee a lot of controversy with this bill. If anything, we may find that this bill is, in some respects, already out of date because it has been five years since we started discussing about it.

It is an act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. Basically, an ISP is now going to be required to take action on this issue.

Bill C-58 was introduced in the House of Commons on November 24, 2009 by the Minister of Justice. Bill C-58, now Bill C-22, was intended to fight Internet child pornography by requiring ISPs, or Internet service providers, and other persons providing Internet services, for example, Facebook, Google, Hotmail, to report any incident of child pornography.

This requirement included several things, but one was that if a person providing Internet services was advised of an Internet address where child pornography may be available, the person must report that address to the organization designated by the regulations.

I know the member for Mississauga South is bound to ask me a question about the whole issue of the regulations. Once again, until the bill passes, the government sets up the regulations, and we actually will not know what the details will be of this particular part.

Also, if a person has reasonable grounds to believe that the Internet services operated by that person are being used to transmit child pornography, the person must notify the police, that is a logical thing, and also preserve the computer data.

In terms of provincial and international measures, in June 2008, my home province, the Manitoba Legislature passed a law requiring all persons to report to cybertip.ca, which seems to be a very successful longstanding website, any material that could constitute child pornography.

Ontario passed a similar law in December 2008.

Thank goodness Ontario and Manitoba moved ahead because if they waited for the federal government, they would have been waiting an awful long time to get the job done.

The United States and Australia adopted laws in 2002, eight years ago, and in 2005, Australia imposed this requirement on the ISPs.

In terms of the current legislation that affects this area, we have section 163.1 of the Criminal Code, which was passed under the Liberal government of Jean Chrétien back in 1993. This was actually a very good initiative in its day, prohibiting the production, the distribution, the sale, and the possession of child pornography.

The definition under the legislation is a visual representation of explicit sexual activity with a person who is or is depicted as being under the age of 18, the visual representation for sexual purposes of persons under the age 18, or any written material advocating or counselling sexual activity with a person under the age of 18.

Internet child pornography takes the form of images, sound recordings, videos, drawings of accounts of sexual assaults on persons under the age of 18. In 2002, Bill C-15A amended subsection 163.1 of the code, which prohibited the distribution of child pornography by introducing the term “transmits” and made available to prohibit the distribution of child pornography online. The bill also added subsections 163.1 and 163.1 (4.2) to the code making it an offence to deliberately access child pornography by visiting a website, as an example.

Bill C-15A also provided for a special warrant in relation to Internet child pornography under section 164.1 of the code. If there are reasonable grounds to believe that child pornography is accessible through an ISP computer system, the judge may order the ISP to provide the necessary information to identify and locate the person who posted it. In addition, the judge may order the ISP to remove the Internet child pornography in question.

With regard sentencing, child pornography offences are considered hybrid offences. The prosecutor may choose whether the accused should be charged with an indictable offence and be liable to a summary conviction. The offences of producing, distributing and selling of child pornography, if treated as indictable offences, are punishable by a maximum prison term of 10 years and a minimum of one year. On summary conviction, they are punishable by a maximum prison term of 18 months and a minimum term of 90 days.

The offences of possession and viewing of child pornography on the computer are punishable for indictable offences by a maximum prison term of five years and a minimum term of 45 days and on a summary conviction by a maximum term of 18 months and a minimum of 14 days.

In terms of statistics on this issue, according to Statistics Canada, which gathers all types of information on pornography and not just Internet child pornography alone, child pornography offences have increased significantly in Canada from 55 offences in 1998 to 1,600 in 2007. I have some statistics that indicate how serious the issue is in Canada, which I will get to in a couple of minutes.

It is currently estimated that there are over five million child sexual abuse images on the Internet. According to an analysis by cybertip.ca, from 2002 to 2009 54.7% of the images on Internet sites contained pornographic images of children under the age of 8, 24.7% were of children aged 8 to 12, and 83% were girls. Over 35% of the images analyzed showed severe sexual assault. Children under the age of eight most often subjected to sexual assault was at 37.2% and extreme sexual assault was at 68.5%. Older children were usually shown naked or in an obscene pose.

The fact of the matter is that this situation is just getting worse. We are seeing this whole problem snowballing and getting bigger on a day-by-day, month-by-month, year-by-year basis while we sit here and do not take action.

The cybertip.ca study showed that the Internet sites containing child pornography are hosted in close to 60 countries. We know which countries are hosting these sites. For example, in the United States 49% of the sites are hosted in the United States, in Russia 20%, in Canada 9%. When we consider that we have only 30 million people in the country and 9% of the sites are hosted in Canada, that is a very large percentage. In Japan it is 4.3% and in South Korea it is 3.6%.

These sites are very difficult to track down because all of the child pornography files hosted on a web page are not necessarily hosted in the same location. For instance, image A may be hosted in Canada while image B on the same web page may be hosted in the United States. The web page itself might be hosted in yet another country such as Japan.

Similarly, an illegal site can hide the host location through an anonymous proxy server or through server rerouting. There are a lot of technical terms here that the average individual may not be familiar with. Suffice to say that whatever laws exist, the criminal elements, and we are talking about criminal elements, try to be one step ahead. When there are tough laws in one country, they simply move to another country.

The Liberal Party critic for this area has spoken several times on this bill. He has pointed out countries that have simply blocked the sites rather than put money into fighting this problem. Maybe that is the answer.

I asked the minister at the time, who is no longer even a member of the Conservative caucus, why she was announcing that she was going to spend $42 million chasing these sites. I asked her whether this was new money or old money. That was a year ago. She was still a Conservative and a minister in those days.

In Hansard she tells me that she is going to get back to me on this issue. I have yet to hear from her or anybody else in the government as to whether the $42 million to track down these sites is actually new money or just the same old money being announced over and over again.

What I suggest is that rather than spend $42 million to chase these criminals, because that is who they are, we look at those countries that have simply blocked the sites. That is the problem solved right there, it seems to me. We would not have to keep throwing endless amounts of money at the problem.

Identical sites may also be simultaneously located on different URLs. In such cases, it can be very difficult to remove the child pornography. Even if the site is closed down, the offensive material may still be accessible on the Internet. Moreover, illegal sites regularly change location so that they can avoid being shut down.

I want to deal with the penalties under this act before I run out of time. The fact is that these penalties are not tough enough. For individuals, the penalties being proposed are perhaps accurate. However, when we start dealing with companies, and if one considers that criminal groups are running these sites, these fines are simply the cost of doing business. I think the fine for a third offence is approximately $100,000. I will get to that at the end if I have time.

As I indicated, illegal sites regularly change location to avoid being shut down. In a period of 48 hours, Cybertip.ca counted 212 IP addresses in 16 countries for a single website. A website can also change location in just a few minutes by utilizing a network of personal computers as zombies. These zombies relay the content of the website hosted on another server.

Cybertip.ca recommended that when zombies are detected, ISPs running the networks to which these computers are connected should be able to suspend service for those computers until the infected computers are restored.

Another reason this whole problem is snowballing day by day, week by week, month by month, year by year into a bigger and bigger problem is the fact that the computer hardware and software has gotten so much better.

I can recall, perhaps 10 years ago, when the Rolling Stones announced that they were going to do the very first concert on the web. Nobody had done it before. That was in the days when the cameras were operating at 15 frames per second. We all remember those images being choppy. It was certainly in its infancy. The Internet was very slow in those days. We did not have the gigabit ethernet pipes we have today.

What has happened is that today we have a much more technologically advanced system that is designed perfectly for these criminal elements to take advantage of. Taking advantage of it they are.

Governments are sitting around, basically proroguing Parliament every year. We are thrown a bill that is really non-controversial in the sense that just about everyone agrees with the bill.

We passed pardon legislation dealing with the Karla Homolka situation in June in literally a day and a half. If the government really wants to accomplish something here and get the bill through, it only has to sit down with the House leaders and make an arrangement to sit for perhaps a few hours extra in the evening, given that there is not a lot of disagreement about how important the bill is and how it should be passed and put into effect to deal with the issues.

Any person may inform an ISP or other person providing Internet services that a web page, host page, Facebook page, or e-mail appears to contain child pornography. The ISP or other person providing Internet services must then report the address of the site, page or e-mail in question as soon as possible to an organization designated by the federal government.

For example, under Manitoba law, the designated organization is the national reporting agency Cybertip.ca. I want to say that Cybertip.ca has played a very important role in this whole process so far.

After being notified by a member of the public or an agency that child pornography may appear through the Internet services it provides, the ISP or other person providing the Internet services may have reasonable grounds to believe that child pornography is being transmitted through its services. It may also reach this conclusion on its own. When this is the case, the ISP or person providing the Internet services must notify the police as soon as possible.

I am running out of time, but I want to deal with a couple of other issues. There is a provision in the bill that the police must keep the computer data related to the child pornography offence for 21 days. Several people have questioned whether 21 days is appropriate. It seems not only to me but to a number of other people that 21 days may be too short a period for that to properly happen.

I also dealt with the offences. In terms of individuals, the fine is $1,000 for the first offence, $5,000 for a second and a maximum of $10,000 or six months for a third.

For corporations, the criminals who are running these sites, it is only $10,000 for the first offence, $50,000 for a second and $100,000 for a third, which is no more than the cost of doing business.