An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act

This bill was last introduced in the 37th Parliament, 2nd Session, which ended in November 2003.

Sponsor

Martin Cauchon  Liberal

Status

Not active, as of Oct. 30, 2003
(This bill did not become 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.

Citizen's Arrest and Self-defence ActGovernment Orders

March 7th, 2011 / 3:40 p.m.
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Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Mr. Speaker, if I have the opportunity to ask another question, then I will gladly do so. In response to what the hon. member just said, I would say that there were nine bills before the Standing Committee on Justice and Human Rights that died on the order paper when Parliament was prorogued. In the end, three of these nine bills were reintroduced for consideration by the House. Moreover, one of the bills we considered here has to do with online pornography and online predators. I cannot recall the exact numbers because there are so many, but I think that it was Bill C-20 that was recently passed by the House and, in our opinion, should be passed by the Senate.

That being said, Bill C-60 deals with two issues, one of which is very problematic: the use of self-defence to protect one's property. This has always been a problematic issue. The hon. member was speaking about the proposed amendments to sections 34 to 42 of the Criminal Code, which pertain to self-defence. These sections are often subject to interpretation and the courts have rendered many different decisions in this regard. The protection of property, which is what interests me, is addressed in section 494 of the Criminal Code. Under section 494, we may arrest without warrant a person who is destroying our property or that of others. I will come back to this later.

Can the protection of property be distinguished from self-defence? If so, we could pass Bill C-60 to amend just one section of the Criminal Code, section 494. I would like to hear the hon. member's thoughts on this. Perhaps he could speak to us about his party's position, which unfortunately I have not yet heard.

March 22nd, 2007 / 9:25 a.m.
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Carrie Kohan Child Advocate, Founder of MMAP and Co-founder of Project Guardian, Mad Mothers Against Pedophiles

Hello. Bonjour. My name is Carrie Kohan. I am a child advocate who founded Mad Mothers Against Pedophiles and I am the co-founder of Project Guardian.

I've sat in front of this committee for many years now on various bills, and I'd like to thank the justice committee again for allowing me to speak to you on this matter today.

When looking at Bill C-22, age of consent, I feel like I'm having a déjà vu, because on October 7, 2003, four years ago, I sat in front of this justice committee on this very topic. It was Bill C-20, an Act to amend the Criminal Code and the Canada Evidence Act. It was an omnibus bill that tied in child Internet porn, artistic merit, and the support of vulnerable witnesses. Each one of these topics was a very serious issue and probably should have been addressed individually; however, they were lumped under one large bill.

In my address, I spoke of my concern that having a lower age of consent combined with such lenient sentences or non-existent sentences for convicted pedophiles would lead to Canada becoming a pedophile haven, which it since has.

According to the recent 178-page report compiled by EPCAT in December 2006, it states that Canada has indeed become a destination for child sex tourism because of its relatively lower age of consent. If that statement doesn't sound alarms in the whole of the justice committee, I don't know what else you'll need to hear to create change and understand the desperate situation our children are being put in as a result of our previous lawmakers and their apparent lack of concern for the safety of our children.

I also believe another contributing factor has resulted in our country being recognized as a pedophile haven, and that is our lack of sentencing for convicted pedophiles. In the hearings of October 2003, I shared with the then Liberal justice committee the 1997 stats that showed that in Canada, 60% of convicted pedophiles get jail time and 40% get conditional releases or house arrest. Of the 60% who get jail time, the average time served in prison was only six to eight months. This is because in Canada we can't enforce our maximum penalties. If we do, they are often appealed and reversed to a much more lenient sentence.

It is not that all Canadian judges don't want to give the maximum sentence; in Canada, they cannot. If a judge even tries to give a maximum sentence it is likely the convicted pedophile will successfully appeal his or her sentence and win, and the children of Canada and we as a society will lose. So the judge has no choice but to base his or her decision on precedent because our legal system is based on civil law.

Let's take a look at a recent conviction in the United States. According to the U.S. Department of Justice and the U.S. Attorney's Office, on November 3, 2006, a 54-year-old West Palm Beach man named James--or Jimmy--Oliver was convicted and sentenced to 130 years for just four counts of sexual exploitation and one count of possession of child pornography. The convicted man had traded child pornography online with another man and included a video of himself performing oral sex on a prepubescent child in his care. When a police seizure was made of Oliver's home, he was also found to possess images of child pornography on his computer.

On October 6, 2006, the West Palm Beach federal grand jury returned a 19-count second superseding indictment, charging Oliver with seven counts of distribution of child pornography and one count of receipt of child pornography, each of which carries a mandatory minimum term of imprisonment of five years, up to a maximum of 20 years.

Oliver was also charged with two counts of distribution of child pornography to a minor in order to induce or persuade that minor to engage in sexual activity with him. These convictions also carry a minimum of five to 20 years. Oliver was also charged with four counts of sexual exploitation of a minor for the purpose of creating child pornography, each of which carried a mandatory minimum term of 15 to 30 years.

Oliver was charged with four counts of permitting a minor in his custody or control to engage in sexually explicit conduct for the purpose of creating child pornography, again a mandatory minimum term of 15 to 30 years. Lastly, Oliver was charged with one count of possession of child pornography, carrying a statutory maximum term of 10 years. In total, Oliver got 130 years in prison.

The U.S. judge also imposed restitution in the amount of $11,142 to pay for the victim's psychological counselling and a special assessment to be paid of $500. The judge also stated that no prison term, no matter how lengthy, can undo the serious harm done to these children.

Obviously, the United States of America has a zero tolerance policy for this crime. Now compare this to Canada. Can you understand why we are considered one of the places now to come and rape children and create child pornography and distribute it from? In May 2006, a Montreal man, who must remain nameless because of our laws, assaulted his young daughter from age 24 months to 4 years of age. He posted the pictures of this crime on the Internet. He was also found to have roughly 5,000 pictures and 5,000 videos of child pornography on his computer, some of which featured very young children and infants.

By the way, this actually brings up something else that I'd like to talk about later--the police issue of sampling. That's something we have to address.

Anyway, this 32-year-old Canadian man was sentenced to a maximum sentence of 15 years in November 2005. However, he won his appeal in the Quebec Court of Appeal and had his sentence reduced from 15 years to nine years. But in Canada nine years doesn't mean nine years; it actually means anywhere from three to six years, not including time served.

When the appellate court reduced the sentence, Judge Côté cited the man's crimes were not amongst the worst sexual assaults ever committed. And they also cited his young age--not the young age of his victim, but his young age. The court also cited the fact that this man had only one other criminal conviction, for sexually assaulting another child when he was 17 years old.

Here we have two similar crimes. The convicted pedophile in Canada has a prior conviction and possesses over 1,000 pieces of child pornography and gets maybe five to six years in prison, a prison that Canadians have now nicknamed Club Fed. The other convicted pedophile, in the United States, gets 130 years for virtually the same crime, and he has no prior conviction. Where do you think pedophiles would rather commit their crime? In a country where they could potentially get 130 years in prison or a country where they can get a maximum three to six years served? And that's if they are even caught in the first place.

The previous justice committee of Canada, Solicitor General, justice minister, and prime ministers that I have met or sat before over the past eight years have effectively put Canadian children on the top hit list for pedophiles to target. The only way to correct the ineffective laws of our past governments is to create new laws that will mirror those of our neighbours, so that we will no longer be the desirable destination of choice by pedophiles.

We need to increase our age of consent to 16 years minimum. In fact, the majority of Canadians that I have spoken to, which have been many, have actually wanted the age of consent to be similar to that of the United States and other countries and be raised to the age of 18. We need to include a close-in-age clause, four to five years. We need to grandfather previous relationships of one year or more that are outside that five-year age difference--within reason, of course. We also need to be on par with other democratic countries and implement minimum sentences of five years, to a maximum of 20 years, for various child-predatory-related crimes. I would personally like to see Carrie's guardian angel law adopt a progressive timeline for this type of sentencing.

I hope this justice committee understands the urgency needed here, and I also hope that this bill and the safety of our children does not become a bargaining tool for other political parties. That would be a shameful act, demonstrating that the will of the party is not to protect the children of Canada but instead to use the bill for the party's own political benefit or gain. Whether it is within the legal means of the political party to use this bill as a tool or not, I would ask that all parties present and the members of this committee pass this bill as a selfless act and act as a united parliamentary union in support of the protection of the children of Canada from predators.

Please ask yourself how many children are being raped at this very moment across Canada because of our ridiculous laws to date and the apparent lack of protection for Canadian children. And how many pedophiles are walking away with house arrests for abusing defenceless children?

Take a look at the 178-page report. You will see that we are a national disgrace. Only you, this committee, can do something about it. Please raise the age of consent immediately--today--and unanimously bring forward new legislation to introduce minimum sentencing for pedophile-related and violent crimes, such as the four violent crimes we witnessed in Edmonton, Alberta, over this last year, against Shane Rolston, Josh Hunt, Dylan McGillis, and, most recently, 13-year-old Nina Courtepatte. We'll be hearing that sentencing tomorrow.

These were violent crimes. The murderers deserve more than bail and house arrest.

Thank you very much. Merci beaucoup.

Criminal CodeGovernment Orders

October 30th, 2006 / 1:40 p.m.
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Liberal

Sue Barnes Liberal London West, ON

Mr. Speaker, I am pleased to rise today to speak to Bill C-22. I am also very aware that all the justice critics need to be in committee for clause by clause of another justice bill right after this, so I am going to truncate my remarks to help get all the right people in the room who need to be there shortly after question period.

I will say at the outset that our party will support the bill. In doing so, we are following up on work that has gone on over a number of years. The Speech from the Throne of October 5, 2004 committed the government to cracking down on child pornography. Similarly, in the previous Speech from the Throne, the former Liberal government committed to reinstating former Bill C-20, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

The bill was reinstated on February 12, 2004 as Bill C-12. It was awaiting second reading in the Senate at the time of that Parliament's dissolution for a federal election. In June 2004 the then prime minister reiterated support for reintroduction of the package as the first legislative item in the new Parliament. I know that the former minister of justice, the hon. member for Mount Royal, introduced in the former Parliament Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act. It received third reading on June 9, 2005, royal assent on July 20, 2005, and came into force in its entirety less than a year ago, on January 2, 2006. Bill C-2, then, is built on reforms previously proposed in the former Bill C-12 and proposed reforms in five key areas.

I might reiterate, too, that former Bill C-12, by a procedural motion, a hoist motion, from the then opposition Conservative Party, was prevented from going forward a couple of years earlier.

Be that as it may, when I hear the Minister of Justice incorrectly saying that nothing was done, I have to put on the record that we did strengthen prohibitions against child pornography.

We broadened the definition of child pornography to include audio formats as well as written material “that has, as its predominant characteristic, the description of prohibited sexual activity” with children “where that description is provided for a sexual purpose“. We prohibited advertising child pornography, increasing the maximum sentences and making a number of offences have more bite.

We wanted to protect young persons against sexual exploitation. One of the things that I like in Bill C-22 is that the government has not disposed of that section that was so important, the section that talked about the exploitation of children. It had prohibited sexual activity with young persons between 14 and 18. Under Bill C-2, a court would be directed to “infer that a relationship is exploitative of the young person based on its nature and circumstances, including the age of the young person, any difference of age, the evolution of the relationship, and the degree of control or influence exercised over the young person”.

Consistent with the existing criminal law treatment of sexual assault, that bill focused on the offending conduct of the accused rather than just on the young person's consent to that conduct. That was always the concern, that it was not just an age number, because the age of 14 has been in the Criminal Code and utilized since the late 1800s. It was the “exploitative” nature, and I am pleased that the bill keeps this, because that helps in our being able to come forward with our consent today.

We did increase the penalties for offences against children.

We facilitated testimony not only for child victims and witnesses under 18 years but for other vulnerable victims and witnesses. This is procedural, to help stop re-victimization in the court process.

We created a new voyeurism offence. Today we have those cameras that take pictures; that is why we needed this.

In 2002 we also created the offence of Internet luring under section 172.1 of the Criminal Code. That prohibited the use of a computer system, including the Internet, to communicate with a young person for the purpose of committing a sexual assault against that person. It can and is being successfully charged, irrespective of whether a sexual assault actually took place. The fact of the offending conduct of trying to lure a child via a computer system is what we were getting at and it is there.

Also, just a few weeks back, a private member's bill on increasing sentences passed in the House.

Today's Bill C-22 is an improvement over former private members' bills, no matter how good the intention was. The fact is that now this bill has the five year close in age exception and that will go a long way, I think, in helping us to accept this bill and give our consent to it.

In fact, in our Liberal justice plan announced last week, this was one of the bills that we said would be put forward and given consent by our party, along with the other bills of conditional sentencing and imprisonment, as amended in committee, such as: Bill C-9; Bill C-18, an act to amend certain Acts in relation to DNA identification; Bill C-19, an act to amend the Criminal Code (street racing) and to make a consequential amendment to the Corrections and Conditional Release Act; Bill C-23, an act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments); and Bill C-26, an act to amend the Criminal Code (criminal interest rate), which was debated in the House last week under the topic of payday loans.

We on this side will add Bill C-22 to that list of bills. There are about 11 government justice bills. This one makes six that the Liberals are prepared to move forward in the Liberal justice plan, although we do not think that these bills are universally perfect. But we could find flaws with all pieces of legislation in the House. There are sections in this bill to do with unconstitutional areas of the Criminal Code, which we could have fixed. The justice minister has chosen not to do that, but at this stage I think the protection of children should be our utmost priority.

Listening in the chamber today was one of the good police officers who has to work in this area. He was kind enough to give some Liberal members a briefing. Unfortunately, his colleague from the federal police services was not allowed to do that, for reasons unknown.

On this side of the House, we as the official opposition are prepared to support this bill. I am prepared now to move on and give my time so that critics from the other parties can all be present in the justice committee for voting measures later this afternoon on another piece of legislation. There is unequivocal support here for Bill C-22.

The Patent ActGovernment Orders

November 7th, 2003 / 1:20 p.m.
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Progressive Conservative

André Bachand Progressive Conservative Richmond—Arthabaska, QC

Madam Speaker, I am pleased to rise today in what is probably the last day in the current session to speak to an extremely important bill.

During our life as parliamentarians, we often make mountains out of mole hills even though there are no mole hills in this dignified House. But here we are dealing with an extremely important bill in the dying days of a session.

Regrettably Bill C-56 was put forward at the very last minute. It could already have been reviewed in committee and disposed of, sent to the other place where it could have been reviewed, amended if necessary, and passed.

A political agenda has taken over a humanitarian agenda. This is what is going on here. For the past few days, even weeks, various opposition parties, several government members and some ministers also, I hope, various stakeholders in Bill C-56, including brand name drug companies and generic name drug companies, as well as humanitarian and community groups involved in this issue have been urging the government to go ahead.

As a matter of fact, the office of the Minister of Industry had invited members to a briefing session on the bill, but it was postponed and was only held this week. It makes one wonder.

This week, the Prime Minister answered a planted question on Bill C-57, reading a prepared text saying that it was a priority. We might stop sitting very soon. Yesterday, the government House leader, before leaving for a warmer climate as a result of an appointment, said good bye to parliamentarians although Bill C-56 has not passed yet. Once again, the partisan agenda has taken over the humanitarian agenda.

For several weeks now the government has tried to blame the drug industry as well as the opposition parties, including the Progressive Conservative Party, the sponsor of the Drug Patent Act, accusing them of delaying matters. The holdup is not with us; it is with the government.

I will not talk about the benefits of Bill C-56, as everybody is in agreement on that. However, as my Bloc Quebecois colleague said, now that Bill C-56 can be discussed, as we are doing now, we see that there are people on both sides who have reservations, be they the brand name drug companies or the generic drug companies, humanitarian groups or non-governmental organizations.

We are ready to take a few hours or a few days to study the bill in committee, very quickly. We will not be the ones holding the process up. The problem is that every time there is a delay, there are more deaths in these countries, every day.

Let us imagine the possible and probably scenario of an adjournment and a prorogation in the next few weeks. We should be called back sometime in February. However, if there is a prorogation, all the bills will die on the Order Paper, unless there is an agreement among the parliamentary leaders of all the parties represented in the House. This could represent a delay of three or four months.

I would not want to hit a nerve here, but how many hundreds of thousands of people will contract these diseases, tuberculosis, malaria or AIDS, in that period? How many hundreds or thousands of people will die? It could be interesting to air the Liberal convention in Africa next week to make sure people realize that, because of a leadership convention, everything is being put on hold while people are dying.

We all agree with the bill. Yes, we support the pharmaceutical companies, and we also support the Patent Act since we introduced it. As one of my colleagues was saying earlier, what is interesting in all this is that we can be compassionate while doing business.

We can do it. The big bad World Trade Organization was able to arrive at a compromise, to strike a delicate and complex balance. It can be done.

That being said, we are stuck in a situation that we cannot control. The four opposition parties are in agreement about speeding up the process, but not at any cost. Our party does not have on its agenda a leadership convention that will be broadcast on all major Canadian networks on November 14 and 15.

We are lawmakers. We are here to finish any job that we start. Certain bills are frivolous. In fact, they exist just to make a minister or a government look good.

Bill C-56 is a very important bill. The Minister of Industry has made a number of blunders when he was justice minister and when he was health minister. We all remember the blunders he made on the hepatitis issue. At least here, with the credibility given to this file by the Minister for International Trade, he had a chance to speed up the process. But no. We are getting a new prime minister.

People dying in Africa are not a priority after all. Surely something can be done. We, in the Progressive Conservative Party, are in contact with our colleagues and our leader in the Senate. He and the PC team in the other place are ready to do the job quickly, but properly.

Will we have time to finish the job? While reading a letter, the current Prime Minister was boasting about the fact that we are the first country to legislate on the WTO decision, but the legislation may not be passed because of the partisan agenda of this government.

Yes, maybe it is time we had a new leader. Yes, maybe it is time we had a new prime minister. I agree with that, but surely there can be better planning. It is so important. Surely it would be possible to give the House, the committee and the other place the opportunity to look at this issue.

House leaders on this side met and they had discussions with the government House leader, or at least the person who will be in that position probably for another few hours. Rumour has it that he is going to Brazil. They can send him wherever they want. The fact remains that he always was a good soldier for the Liberal Party.

However, what are we going to do now? We will be back in our ridings next week. In my riding, I have organizations lobbying to have this bill passed. In Quebec there are organizations lobbying to have it passed. They are going to ask us what we are doing. And we will have to answer that we are currently on break. Their next question will be, “So will you be able to deal with it next week?”

We do not know whether or not we will come back. Regardless of the fact that the Order Paper is calling us back on November 17, we do not know if that is what is going to happen. We are ready. I am ready, as a member of the Standing Committee on Industry, Science and Technology, to come back next week to review the bill, to bring in people concerned with Bill C-56 and speed up the process.

We can do it. However, in some respects, we wonder if we should lend credibility to the Liberal partisan agenda. Should we do it? They tried to put the blame on us, “We know full well that the Conservatives favour the big drug companies. In the 1990s you introduced the Patent Protection Act and so on and so forth. You are against it. You are the bad guys in this Parliament.”

We are not the bad guys in Parliament. The bad guys are those who are unable to get their priorities straight with regard to their own legislative agenda. That is the problem.

With better planning and cooperation when they introduced Bill C-56, it could have passed today. Today, we are realizing that the big mean drug companies are not the only ones to have reservations. The generic drug companies also have reservations regarding the implementation of the bill. As I said earlier, without sounding like I am repeating myself and rambling on, organizations have reservations regarding Bill C-56. We would like to hear from them in committee. I can guarantee we will speed up the work, but we will do it.

If it were only pharmaceutical companies that had reservations, I would not be making this speech today. But stakeholders on both sides have reservations about the application and the applicability of this legislation.

Members of the Standing Committee on Industry, Science and Technology discussed this issue, and we would like to see the regulations. A bill is often 3, 4 or 5 pages long, whereas regulations are often 3, 4 or 5 inches thick. We would like to see what would be in there.

We must protect tens of thousands of jobs in Canada. In fact, we must protect the delicate balance between Canada and the United States with regard to pharmaceutical research and the distribution of pharmaceutical products.

Therefore, this bill must go to committee quickly. I am sure that, on this side of the House, we would agree to do this right now. Members on this side of the House, or at least members of the Progressive Conservative Party, are ready to sit down in committee and do a good and credible job.

Today, we can help those who are suffering, those who have had enough and those who will contract these diseases. We can tell them that Canada's commitment is more than a statement made by a Prime Minister at the end of his reign. Parliament will take its responsibilities.

At the same time, if the government has not done a good job in terms of legislative planning, that is its problem. It is not the opposition that is the big bad wolf here, but the government.

Bill C-56 is one of those bills that gives goose bumps. Yesterday, we were watching the Prime Minister who was boasting about Bill C-20. It gave me goose bumps, but not for the same reason. It gave me a negative feeling, whereas Bill C-56 gives me a positive feeling. If everybody agrees, we could look at this as early as next week, unless the partisan agenda prevails again over the humanitarian agenda, unless the government is willing to wait three or four months and have a few thousand more sick or dead people on its conscience. We are ready to move quickly to do a credible job.

Child PornographyOral Question Period

November 7th, 2003 / 11:50 a.m.
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Outremont Québec

Liberal

Martin Cauchon LiberalMinister of Justice and Attorney General of Canada

Mr. Speaker, the hon. member knows very well what the government has been doing over the past few years.

In light of the Sharpe decision of the Supreme Court, we have decided to proceed with Bill C-20 in order to increase the protection of our children in Canada. We have been working hard in order to pass that bill.

He knows that we did not really have the full cooperation of his party and he should be ashamed. Working together, we would have been able to pass Bill C-20.

Organized CrimeOral Question Period

November 7th, 2003 / 11:50 a.m.
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Outremont Québec

Liberal

Martin Cauchon LiberalMinister of Justice and Attorney General of Canada

Mr. Speaker, with regard to such a crime, which is indeed an awful crime, I would like to draw the attention of the hon. member to what we are doing as a country at the international level.

For example, lately we had a meeting in Paris among G-8 colleagues and talked about the question of child pornography and protection of our children, not only in Canada but anywhere in the world.

We have Bill C-20 as well, which is before the House. At the international level we know that people are using more technology and we need more international cooperation. It works well and--

Liberal Government PoliciesStatements By Members

November 7th, 2003 / 11 a.m.
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Canadian Alliance

Dave Chatters Canadian Alliance Athabasca, AB

Mr. Speaker, the Liberal government's attempts to deceive Canadians have no limits. At every opportunity the Liberals pay lip service to Canadians by saying one thing but doing something quite the opposite.

In 1999 the government voted to support the definition of marriage as the union of a man and a woman to the exclusion of all others. Within the past few months we have seen it not only reverse this position but to actively campaign against it.

Last week the Liberal government supported our motion unanimously to protect children against child pornography. Bill C-20 is the government's answer to protect children. The bill takes out the outrageous defence of “artistic merit” and replaces it with “the public good” which, given recent court rulings, could mean anything.

The government promised Canadians a sex offender registry but continues to avoid giving us an effective registry.

Is it any wonder that Canadians are losing confidence in government. Canadians deserve better.

Child PornographyStatements By Members

November 6th, 2003 / 2 p.m.
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Canadian Alliance

Myron Thompson Canadian Alliance Wild Rose, AB

Mr. Speaker, on the eve of the Prime Minister's retirement I would like to suggest a wonderful legacy that he could leave to the Canadian people. They would never forget him and eternally thank him.

The Prime Minister could require that Bill C-20 be amended to reflect the will and concern of the people. He could eliminate all defences for the possession of child pornography that allow for the exploitation of children. He could raise the age of sexual consent to 16 instead of 14.

Children are the world's most valuable asset. We in the first world are not doing very well in our pathetic efforts to take care of them. They are being tortured, raped, assaulted, murdered and made to perform despicable acts for the gratification of perverted minds.

As a wealthy nation we have the money and the technology to protect our children, yet we are taking a backseat to the rest of the G-8 countries in fighting this horrific crime.

I ask the Prime Minister to please find the courage to step forward and erase all the legal loopholes in Bill C-20.

Criminal CodeGovernment Orders

November 6th, 2003 / 12:10 p.m.
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NDP

Wendy Lill NDP Dartmouth, NS

Mr. Speaker, I rise today to speak to the amendment to Bill C-20, put forward by my party to delete section 7, which would remove the defence of artistic merit from the child pornography legislation, draft Bill C-20 before the House.

I start by saying the New Democrats and certainly myself are extremely concerned about child pornography and want to see it eradicated from the face of the earth. As parents, as artists, as parliamentarians, we all believe that we need to find many new mechanisms to ensure that child pornography cannot exist and that it gets no sustenance in this society. We believe there is a lot of good in Bill C-20 and some real progress is being made here.

I want to make that point because it is important to make it right off the bat. We are trying to change a bill which is ostensibly about protecting children. To oppose parts of it does not mean we do not want to protect children. Of course we want to protect children.

We want to talk about the fact that clause 7 weakens the whole bill. It weakens the ability to work against child pornographers. We heard witness after witness who came before the committee, from the Toronto Police Association to the B.C. Civil Liberties Association, to the Canadian Conference of the Arts to the Canadian Bar Association, indicate that clause 7 was problematic because the language that was used was vague and contradictory.

We do not want that kind of statement or those concerns when we talk about legislation which judges then have to interpret and which police on the street have to interpret and make snap decisions about whether they can take something to court and win. We want to make clear that the defence of public good at this point in time is not clear enough to be of any good in the fight against child pornography.

There are three reasons why clause 7 should be removed from the bill. One is that it does not, in our estimation, in any way further protect children from child pornographers. The law as it stands already criminalizes possessing and distributing child pornography. During the justice committee hearings on Bill C-20, many people brought up the silence around child abuse and how important it was not to return to the time when children and adult survivors of abuse could not talk about it. I want to read a letter from Ian Murray of Current Projects. He said:

The desire to punish those who would bring the abuse of minors to the public view while ignoring the actual victimization of children is a pattern I saw often growing up in the Catholic Church in Nova Scotia, working with abused youth in the Arctic and working as an artist and teacher.

Censorship, like abuse of minors, is an abuse of human rights. It is part of the same power relationship. You are following the pattern of the abuser who says “telling is a sin” while using the silence to continue the abuse.

It would be far more helpful to the protection of children to concentrate on the prosecution of people who abuse minors and those who silence the victims rather than suppressing information about abuse, which is what this law does.

I note that a number of institutions that are currently being sued for or found guilty of aiding and abetting criminal sexual abuse of children, including many churches, schools and the Government of Canada, support this law. Those who have exposed the sexual abuse of children through stories, pictures, plays, film, video, comedy, television programs and songs oppose this law. That should tell us what side the silencers are on. The vicious abuse of children at Mount Cashel is a perfect example of the power of the state and the church working together to silence victims.

As a society we need to deal with the power relations that lead to sexual abuse of minors. We need to talk about it and expose those images and confront the abusers. This law, at the present time with this section in it, makes this illegal.

I would like to move to a second reason why we think it is important that we make an amendment to Bill C-20 and remove section 7, and that is for the protection of artists.

The new defence of public good is too vague and unproven. It would take years of jurisprudence from the courts to decide exactly how to apply this defence in relation to child porn laws. It would literally take years to try to puzzle through it. Will museums be prosecuted for holding classic works of art that depict children in sexual acts? Will libraries, which protect the rights of Canadians to read any and all kinds of literature, have to clear the stacks of any books that might suggest teenagers had sex with adults? This is a slippery slope. Judges and courts should not decide what is for the public good, just as they should not be deciding what has artistic merit.

The third reason why we cannot support this clause in the bill is that it is too vague and leaves both the courts and the police wondering exactly how to prosecute someone and who they can protect.

I want to quote what Detective Sergeant Paul Gillespie of the Toronto Police Service said when he came before the justice committee meeting on October 7. He said:

We've seen what happens when police are left to define what is or isn't artistic merit. We'll be fighting about this one for years. Police would simply appreciate laws that are very clear and that will allow us to make better informed decisions at the time we are required to make them. Wording that is very open to speculation and suggestion and not quite clear makes it very difficult for officers to understand exactly what they're supposed to be doing. I can tell you from experience that when officers aren't quite sure of the wording, they don't do anything.

The Canadian Bar Association, representing over 38,000 lawyers in Canada, also found section 7 vague and contradictory. As written, it says the intentions of an accused are both relevant and irrelevant. Its brief to the committee warned this inconsistency may actually attract constitutional scrutiny and should be redressed.

I want to just say something about what I think is a question on everybody's mind or sits beneath all of this debate. That question is: what is the difference between art and pornography? With respect, I believe that one can tell the difference. I do not believe it is quite as murky as some might believe.

I believe pornography sensationalizes and glorifies. It seeks to deny the truth of what it purports to represent in favour of fantasy or fabrication. Art, on the other hand, seeks truth. Even when art is not a literal depiction of everyday reality, even when it employs fantastical imagery or ideas, it aims to hold up a mirror in which people can see their everyday lives, their emotions and their aspirations reflected. Any legislation in this area should reflect that critical essence of what art is.

Members from the Alliance have already complained about the courts deciding legislation around same sex marriages. Clause 7 would make law the responsibility of the courts to decide how far a bill extends. That is not the role of our judiciary; it is our role as legislators.

In conclusion, we in the New Democratic Party feel section 7 of Bill C-20 is too vague and contradictory and it clearly does not serve the people who are on the streets trying to fight child pornography. It does not serve children. It does not serve the artists and people in the country who have a deep need to express the damage done to them through sexual abuse and violence at the hands of adults.

There are many areas of Bill C-20 that we want to support. It does extend protection for children and other vulnerable people. However, we cannot support treating all work that deals with children and sex as pornography.

It is important that survivors can speak or draw about their experiences without facing prosecution. It is important that artists can explore, not just the virtuous part of society but also its evil side.

The NDP hopes that the rest of the House will agree that section 7 needs more debate and fine tuning and that it should be removed from Bill C-20.

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November 6th, 2003 / noon
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Bloc

Réal Ménard Bloc Hochelaga—Maisonneuve, QC

Mr. Speaker, it is my pleasure to address Bill C-20, in a perspective slightly different from that of the previous speaker of course, but it is the role of Parliament to offer different perspectives.

I would like to start by thanking the members of the Standing Committee on Justice, particularly the hon. member for Charlesbourg—Jacques-Cartier, in the beautiful area of Quebec City, Quebec's national capital, who has worked very hard with all the parliamentarians on the committee to report an improved bill.

We must remember that this bill was in response to court decisions attempting to determine what constituted child pornography offences and what constituted the right to freedom of expression. Any attempt to oversimplify this issue should make us suspicious.

The basic premise of the bill is a real and perfectly defensible one and I think it is a bit of an exaggeration to say that we are opposed to it. We must not change or allow the law to be changed in such a way that children under the age of 14 could have sexual relations with adults and vice versa.

There is a bias in this bill reflecting this reality. Representations were made by a number of groups, and parliamentarians as well. Also, I had the pleasure of exchanging ideas with a member of the other place—I do not think our standing orders allow me to name her—who has been looking into this whole issue of sexual exploitation for a decade. She testified before the subcommittee on solicitation laws.

Our colleague from the NDP proposed a motion to the committee on which I represent the Bloc Quebecois with our colleague, the critic for justice. The senator made us realize that, of the problems we are facing, human trafficking is the biggest. Bigger than property trafficking, and bigger than drug trafficking. The danger exists that children will be used and exploited for sexual purposes.

The Bloc Quebecois supports this bill because it creates a new criminal offence in Canada that did not exist before. It amends section 153 by adding subsection (1.2), which stipulates that, in order to determine that a person--meaning a adult--is ina relationship with a young person that isexploitative of the young person, a judge may take into account thenature and circumstances of the relationship.

Under the Criminal Code, it is already an offence to have sexual relations with anyone under 14 years of age, and that is understandable. There should be something beautiful, egalitarian, and noble about sexuality that contributes to personal growth, which is not the case for 11-, 12- or 13-year-old children who do not have the maturity or experience to engage in, enjoy and benefit from a sexual relationship.

That is how the Criminal Code used to deal with this. For decades now, courts have been convicting individuals who have sexual relations with children under 14 years of age. This bill makes it clear not only that a adult in a relationship with a young person that is exploitative of that young person—note the use of the word exploitative—cannot have sexual relations with the young person, but that the nature of the relationship will be taken into consideration. Originally, the bill set out a number of criteria to be used to determine if a relationship was exploitative.

The first of those criteria was, of course, the age difference between the adult and the young person. The second one was the evolution of the relationship, and the third one was the influence the adult had over the young person.

The Standing Committee on Justice, as I understand--the parliamentary secretary may nod if I am right--added a fourth criterion, namely the age of the teenager.

That goes to the heart of the bill. We believe all those things are relevant. The biggest traffic in the history of mankind, no longer of goods only, but of human beings, is a problem compounded by Internet and new communications technologies. It is now possible to get a lot of information and have access to sites showing teenagers.

This is why a new offence has been added to the Criminal Code; it is aimed at those individuals who have sex with children under 14.

The issue is not as straightforward as it may appear, because of the right to freedom of expression. Of course, no one would claim that freedom of expression justifies having sex with a person under 14. The Supreme Court handed down a decision. What did it say about child pornography? I would like to quote the following:

I conclude that “artistic merit” should be interpreted as including any expression that may reasonably be viewed as art. Any objectively established artistic value, however small, suffices to support defence.

What the Supreme Court said is that we should never interfere with an artist's creative process. As law makers, we are certainly concerned by the Supreme Court's very broad interpretation of freedom of expression and creative process. This is why we had to set limits.

Bill C-20 says that if the depiction of sexual acts with teenagers goes too far, under Bill C-20, it will not be accepted even if it is part of a creative process. That is indeed setting limits.

The definition that would be found in the bill, if passed, would include some safeguards. Thus, we would talk about material that might objectively consist of child pornography, and I quote:

c) any written material the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual activity with a person under the age of eighteen years.

This would be an offence under the current legislation. We understand there should be a balance. We agree that there might be painters or other artists who will, in their creative process, reproduce scenes of nudity that might involve children. What we do not agree with is written material the explicit and dominant characteristic of which is the depiction of an activity for a sexual purpose and involving people under the age of 18. I think the difference is extremely important.

I was a little sad about the comment from our Canadian Alliance colleague. He suggested that some parliamentarians, because they support Bill C-20, might agree with the fact that there are sexual activities without consent with children. I think we must recognize and say that this is not the objective of the bill.

In substance, the bill would create a new offence, the exploitation of children with the intent of having sexual activities. It would include safeguards in this definition.

When this offence is brought before a court of law, we believe there would be enough safeguards to ensure there is no abuse.

The time that was allowed to me to make my point on this issue has expired.

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November 6th, 2003 / 11:50 a.m.
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Canadian Alliance

Myron Thompson Canadian Alliance Wild Rose, AB

Mr. Speaker, I am pleased to address the amendment and talk about this issue one more time.

I am at a point of true frustration when it comes to this particular issue, which I consider to be an absolute no brainer.

We have in the country people who own, possess, manufacture, sell and profit from the exploitation of our children through child pornography. It is a big industry. It is creating a great amount of risk for our kids throughout the country.

We continually sit back and debate the legalities of this or that, or one thing or another. We are fearful that we might step on someone's toes and harm some individual who has some artistic talent or is a great writer of some sort. That is the most frustrating part about this whole episode.

Are we truly taking the steps necessary to protect the children of our country? Are we? We are debating legal parts of a particular bill. By the way, all the expert witnesses before the justice committee indicated that this was not the way to go, that it was a bad bill and would not achieve its goal. All the expert witnesses said that in the committee. Yet the committee has brought the bill forward with no changes.

While the justice minister stands on his feet with his parliamentary secretary and others insisting that this will be the great thing that will protect our children forever and ever, the legislation is still allowing a defence of public good which no one can define because it is too broad.

Therefore, I applaud the NDP for bringing forward a motion that would delete clause 7 of Bill C-20. The bill needs to go back to the minister's office, back to the justice department, and it needs to reflect the will of Canadians.

What is the will of Canadians? We had a vote in the House of Commons. All members who were present stated loud and clear that, on behalf of their constituents, they were casting a vote in favour of eliminating all defences that exploit children when it comes to child pornography. That is not some defences; that is not one or two defences. That is all defences.

There is no debate about what certain experts are doing with this material in trying to fight it, for example, police have possession of it because they confiscate it and they want to get to the bottom of it so they can clean it up. However, what stops them from doing their job properly? It is weak legislation like Bill C-20. They have to examine this material because it might have some public good.

I fail to understand what kind of possible public good could come out of something that exploits our children in the manner that we have all witnessed through different methods.

I too received a letter from John Sharpe. It was a wonderful letter. It is not very often that an MP can brag about getting a letter from a pornographer. The member from the Bloc said he received a letter. I think several of us received this letter from this ingenuous artist who has artistic merit in his writings, who even dared to put a quote in about how some people were saying that a sexual relationship between an adult and a child was healthy and it should be blossomed and encouraged. It stated that teachers in schools should have sexual relations with their students because it was good. What are we coming to when we allow that to go on?

It takes real courage and determination to say no, we are not going to allow it, it is utter nonsense that we even entertain these kinds of things, and we are going to end it.

Bill C-20 will not end it.

Clause 7 of the bill allows “public good”. It is a broad statement and nobody knows what it really means. Sure, I support the motion to get rid of that clause, and far better yet, I say, we should get rid of the bill, go back to the drawing board, start over and say that we are going implement something that has some real teeth in it, something such that judges will clearly understand that the people of Canada, through their elected representatives, want child pornography wiped off the face of the earth. Let us say that we are going to put all our ammunition toward fighting this war and get the job done.

Instead, we debate and debate. I am so disgusted with the media across the land, with the news items and all of that which they keep flourishing while they do very little on this extremely dangerous thing that is affecting our children. I wish the media would get off their rear ends and start telling the truth about what child pornography is all about and how it is harming this nation. When we start harming our kids, we harm our families and we harm the nation. As my colleague said a few moments ago in his speech, a nation that allows this to carry on is a nation that is doomed.

Let us talk about democracy. We had a vote in the House of Commons. You know what the vote was, Mr. Speaker. Everyone said yes, let us have legislation that will eliminate the defences for child pornography. Let us eliminate them, everybody said.

On that side of the House, they all know that Bill C-20 does not do that. How can they, with good conscience, stand in the House of Commons and declare on one day that this is what must happen and be proud of it--and I was proud of them for doing so--and then turn around and defeat a motion on this amendment because they want to keep Bill C-20, which does not accomplish the job. And they know it.

The justice minister needs to give his head a serious shake if he thinks for a moment that Bill C-20 is the answer to defeating child pornography in this country. He needs to listen loud and clear to those who appeared as witnesses at committee and said how ineffective this particular bill is in accomplishing a very important mission for the sake of our kids, our grandkids and our future grandchildren.

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November 6th, 2003 / 11:40 a.m.
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Canadian Alliance

Inky Mark Canadian Alliance Dauphin—Swan River, MB

Mr. Speaker, I am pleased to be involved in today's debate at report stage of Bill C-20, an act to amend the Criminal Code regarding the protection of children and other vulnerable persons.

The reason I read the title of the bill is because we pass a lot of legislation in the House with great intent, but when it comes to the actual effectiveness of the legislation, it becomes very questionable.

I would like to congratulate my NDP colleague from Vancouver East for her success in having one of her amendments accepted. That in itself is a success because most times it is not easy to have amendments accepted in any legislation. I have been successful in the past with some amendments I have put forward on bills. The problem is that when amendments come to the House for debate and a vote, most times they end up being defeated.

The PC Party of Canada supports the amendment regarding the deletion of clause 7. Clause 7 probably took up half the time for public hearings on the debate over artistic merit and exactly what public good meant. Both sides of the argument were heard. There was no agreement as to how effective this clause would be if left in the bill. Even opponents were not sure of its affect and how it would relate in court. The artistic community felt it was unnecessary. Some individuals felt the clause was too broad. The PC Party does support the amendment in that it will delete clause 7 of the act.

We need to come back to the focus and intent of Bill C-20. The bill is about the protection of children in this country. A large majority of members in the House are parents themselves and have raised children. Perhaps many are grandparents. We all know that children are our most vulnerable and precious gifts. Whatever we can do to protect them from harm is laudable and that should be our prime focus.

Unfortunately, when we get into legislation, we tend to lose touch with its intent. We are so busy trying to make everybody happy that we lose focus of its intent, which is the protection of children and other vulnerable persons.

Canadians have great expectations of members in the House of Commons. On this very subject, Canadians want the House to remove all loophole wording in Bill C-20. The deletion of clause 7 is a good step.

Canadians want the age of consent for teens having sex with adults raised from 14 to 16. The greater public expects the House to add tough minimum mandatory sentences to all laws regarding adults having sex with underage teens or children.

Canadians have great expectations of members of the House of Commons. Unfortunately, we will probably fail them again like we did yesterday during debate on the sex offender registry, Bill C-23. The greatest shortcoming in that bill was the lack of retroactivity. In other words, what about all those convicted pedophiles of the last 10 years? We will not know where they are. We know that for repeat offenders the probability is quite large, especially for those who have been convicted of pedophilia.

Let me go back to clause 7. Under Bill C-20, the existing defence of child pornography, which is artistic merit, educational, scientific or medical purpose, is reduced to a single defence of public good. This leaves in the hands of judges the determination of what constitutes public good.

In fact, I am surprised and disappointed that the parliamentary secretary said this morning that the government will be opposed to this amendment. Furthermore, despite the minister's attempt to sell Bill C-20 on the basis that the artistic merit defence had been eliminated, he admitted recently in the justice committee that it is still included under the broader public good defence.

The PC Party calls for the elimination of all defences that justify the criminal possession of child pornography. Of course, the criminal possession of child pornography does not apply to those in the justice system for purposes associated with prosecution, or by researchers studying the effects of exposure to child pornography.

Another shortcoming I alluded to, was the age of consent. Bill C-20 fails to raise the age of consent for sexual contact between children and adults. Instead, the bill would create a category of exploitative relationships aimed at protecting people between the ages of 14 and 18. In determining whether a person is in a relationship with a young person that is exploitative of the young person, a judge must consider: the age difference between the accused and the young person, the evolution of the relationship, and the degree of control or influence by the person over the young person. This category is a vague provision that fails to create the certainty of protection that children require. It would not serve as a real deterrent and would simply result in longer trials and more litigation.

It was already against the law for a person in a position of trust or authority, or with whom a young person, someone between 14 and 18, was in a relationship of dependency to be sexually involved with that young person. It is unclear how adding people who are in a relationship with a young person that is exploitative of the young person would add legal protection for young people.

As well, Regina v. Sharpe carved out two exemptions to the child pornography law: material such as diaries or drawings created privately and kept by that person for personal use, and visual recordings of a person by that person engaged in lawful sexual activity, kept by the person for personal use. The latter exemption would have the potential to expose children aged 14 to 18 to further exploitation by child pornographers since they would be engaging in legal activity.

By the government's failure to prohibit all adult-child sex, children continue to be at an unacceptable risk. Only by raising the age of consent would children be truly protected under the Criminal Code. We are not advocating criminalizing teenagers. As with other jurisdictions with a more reasonable age of consent, such as the U.K., Australia and most U.S. states, a close-in-age exemption would apply to ensure that teenagers were not criminalized.

Another aspect where Canadians expect change is in the sentencing of those convicted. Bill C-20 would increase maximum sentences for child related offences. These offences include sexual offences, failing to provide the necessities of life, and abandoning a child. This is meaningless if the courts do not impose the sentences, and we know by experience that when maximum sentences are raised there is no corresponding pattern in the actual sentencing practices. What is needed are mandatory sentences, truth in sentencing by eliminating statutory release, and no conditional sentences for child predators.

It is high time that the House, in passing legislation, protects the intent of the legislation, in this case Bill C-20, in regard to our children and other vulnerable persons.

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November 6th, 2003 / 11:30 a.m.
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Bloc

Richard Marceau Bloc Charlesbourg—Jacques-Cartier, QC

Mr. Speaker, it is a pleasure for me to speak today on Bill C-20, now at report stage.

Last week, the House unanimously adopted a motion that made quite clear how distasteful we all find those who exploit or hurt the most precious members of our society, our children. They are also the most vulnerable members of our society. Our children need all the protection society can provide. If society cannot protect those we hold most dear, it has failed to do its most fundamental duty.

Members are sometimes taken by surprise. Sometimes that is good; other times it is not. This week, I was extremely surprised to receive an e-mail message from Mr. Sharpe himself. I think that the parliamentary secretary also got one. For this pornographer—because that is what he is—to write to the members of the Standing Committee on Justice and Human Rights as a legislative analyst and legal commentator of our work is very perplexing, to say the least.

From the outset, the Bloc Quebecois has been trying to protect our children from individuals like Mr. Sharpe. We are trying to ensure that our children cannot be hurt or exploited by perverts with rather warped notions about human relationships.

During committee meetings, there were numerous debates, including one on the defence of serving the public good. Initially, the defence of serving the public good was not defined or set out in Bill C-20 and so was quite broad. One after the other, numerous witnesses and experts appeared before the committee to tell members that the concept of public good had to be defined. In committee, the Bloc Quebecois moved an amendment in this regard, which served as the inspiration for the final definition found in Bill C-20. As a result, this bill was improved in committee.

One of the Bloc Quebecois' amendments concerns minimum sentences, and I wish the government had been open to this. The public feels—and I understand this—that sentences for sexual predators and child pornographers are not tough enough.

It was in response to this concern that we proposed an amendment prescribing a minimum sentence. For example, for a maximum sentence of ten years, I proposed a minimum sentence of one year. It is a rather short sentence, but it is enough to send an important message to the effect that the elected members of this House and the general public want to ensure that the sentences imposed upon these perverse and twisted individuals are harsh enough.

I was hoping that the government would seize this opportunity to have a debate of a much more general nature on minimum sentences.

I had the support of both Alliance members and Progressive Conservative Party members, as well as some government members. Unfortunately, I did not have time to convince a sufficient number of them.

I think that it is our duty as members of Parliament, elected by the people, to address this serious issue and to decide collectively to send a clear message to the judiciary. This message would say, “We, parliamentarians, believe that, because our children are so precious, so vulnerable and so dear to us, those who commit these types of offences cannot get away without a mandatory jail term”.

All this to say that the Bloc Quebecois is against the amendment brought forward by the New Democratic Party. I am still not clear what its purpose was. The Bloc Quebecois is asking members of this House to oppose this amendment. It is also asking them to support Bill C-25. We will come back to that at the third reading stage.

We are also asking the House to explore the possibility of imposing minimum sentences. This would ensure that those who prey on our children get the clear message that harsh punishment awaits those who commit these repugnant acts.

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November 6th, 2003 / 11:20 a.m.
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Canadian Alliance

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

Mr. Speaker, I rise today to speak to this motion, which the Canadian Alliance will support not because we support artistic merit but because we do not support the broad definition of public good.

In the John Robin Sharpe case the judge considered some of those vile, ugly drawings to have some sort of artistic merit. That has been a problem with us and, I think, the nation. Even the hon. member across the way who spoke would agree that those drawings should not have been considered to have artistic merit.

Under Bill C-20 the existing defences of child pornography, that is, artistic merit or educational, scientific or medical purposes, are reduced to the single defence of “for the public good”. This leaves in the hands of the judges the determination of what is for the public good.

Furthermore, despite the justice minister's attempt to sell Bill C-20 to Parliament and to the nation on the basis that the artistic merit defence has been eliminated, he admitted recently in the justice committee that it is still included under the broader defence of “for the public good”. Here is what the minister said at the justice committee:

Artistic merit still exists in the sense that a piece of art will have to essentially go through the new defence of public good and through the two stages. Of course, the first question is always this. Does it serve the public good?

We on this side of the House object to that and I think Parliament objected to it last week. My memory is sometimes not very accurate and not very clear, but I do remember that last week the House passed a private member's bill in the name of my hon. colleague from Wild Rose. That bill calls upon Parliament to bring forward legislation against child pornography that would remove all defences and would in effect stamp out child pornography, all defences for child pornography that would exploit children and all defences against criminal possession of child pornography.

There is a difference obviously of using some material for certain purposes. We understand that because some of us in the House had the opportunity to be briefed by the crime unit from Toronto some months ago on the nature of child pornography and how awful and terrible it is. We understand that use as being a legitimate one. It was not criminal possession and it did not have to be judged by any kind of law to find out if it was for the public good or not. We understand that it was very helpful in that particular case. We would not think that the law should remove the opportunity for our law makers to view this sort of thing to see what the problem is for our law enforcement officials to use it.

My belief here today is very simple. Parliament just last week said that we should remove all defences for criminal possession of child pornography that exploits children. We do not have to work too hard at figuring out the exploitation of children by that kind of material.

As we look around the House of Commons this week it is probably in its most floral stage. There are more flowers in here than perhaps those outside decorating for Christmas. We remember the veterans who fought in the wars that gave us the freedoms that we enjoy in this nation. None of us would want to deny the fact that these freedoms have been hard fought for, they have been won at the cost of the lives of many of our finest, over the years of the history of this nation.

However, they did not die so that such garbage could be pushed upon society. They did not die so that such garbage could be used to penetrate and bring about harm in the lives of our children. They did not die so that our children could be preyed upon by adult sexual predators in this nation or in any nation.

They did not die for that reason. I believe they died because they wanted a nation that had freedom for families and parents raising children, a nation where parents could raise children in the safety of a free nation, the safety of a nation where the children were free.

Can members imagine that? Can members imagine the children of this nation being set free to play on the playgrounds of this country, to play on the playgrounds of the schools, to walk safely home on the sidewalks of our cities and not be in fear of being grabbed or used or taken by sexual predators who run free in this land?

I think we need to remember why these people died, why they gave their lives, and I think we need to remember the kind of freedom they wanted us to have.

I know that many people will not agree with what I am going to say, but let me tell them that I believe there is no such thing as artistic merit in child pornography. There is no such thing as artistic merit. That kind of garbage is not art and it does not need protection.

That kind of garbage is not put there for educational purposes. Not only is it put there to pervert the mind of the one who is producing that kind of garbage, but it is put there to pervert the minds of others. It is there to pervert the minds of other adults and to allow those minds to feed upon this kind of garbage and imagine in their own minds the kinds of things that they might want to do with the children of this land. That has to stop. There is no sense in protecting that kind of thing.

Yes, we want to have freedom in this land, but as we all know, our freedoms are all guided by certain limits. When we drive down the highway, we assert the freedom to drive and to have a driver's licence and an automobile, but as we drive we are restrained by white lines and yellow lines, stop signs and stoplights and all the laws we have. Everything we do is somehow defined and constrained by certain laws.

I do not think we should have absolute unhindered freedom to produce the kind of garbage that places our children in danger in this country.

A Parliament, a nation, a people and a society that cannot place our children truly in a priority position of safety and protection is not a good society. It is a weak society. It is a crumbling society. If it cannot protect its own young people and its own children, it is a society that is on its way to destruction.

We need to remove all kinds of pretended defences for things that place our young people at risk. It is absurd to think that some artist should have the right to depict these kinds of things when it puts our children at risk and when that very depiction is there only for the promotion of evil, for the promotion of predatory thoughts and actions.

We believe that this government needs to go back to square one with this legislation. This will put it back to square one. It needs to start over and put in something here that will be in keeping with the motion this House passed just last week.

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November 6th, 2003 / 11:10 a.m.
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Northumberland Ontario

Liberal

Paul MacKlin LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, the motion put forward today proposes to delete clause 7 of Bill C-20, which is an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

In essence the motion seeks to maintain the status quo on child pornography. Simply stated, the government does not accept the status quo and neither do Canadians.

Clause 7 of Bill C-20 proposes two reforms to the existing child pornography provisions. First, it proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the dominant characteristic of the material and it is done for a sexual purpose.

Second, Bill C-20 proposes to narrow the two existing defences into one defence of public good, a term that is now specifically defined in the bill. Under the new law no defence would be available where the material or act in question does not serve the public good or where it exceeds or goes beyond what serves the public good. More simply stated, if the risk of harm that it poses outweighs the benefit that it offers to society, then no defence would be available.

The motion to delete clause 7 does more than just seek to maintain the status quo; in fact it says the opposite of what Bill C-20 proposes. It says that written materials that consist primarily of descriptions of unlawful sexual activity with children which descriptions are done for a sexual purpose are not child pornography and that they should not fall within the reach of the criminal law.

In the 2001 Sharpe case, the Supreme Court of Canada interpreted “for a sexual purpose” as being that which can be reasonably perceived as intended to cause sexual stimulation. With this interpretation in mind, it is difficult if not impossible to comprehend the basis for any argument that seeks to support and protect materials that mostly describe the sexual abuse of children and where these descriptions can be reasonably perceived as intended or intending to cause the reader to be sexually stimulated.

It is quite significant that our existing criminal law already clearly prohibits the sexual exploitation of children. The types of written material that this motion seeks to protect are those that portray or purport to portray children as a class of objects for sexual exploitation.

The government recognizes the very real risk of harm that such portrayal and objectification of children poses to our children and to society at large. That is why Bill C-20 proposes to include these types of materials within our definition of child pornography.

The second thing the motion seeks to do is to maintain the current test for when child pornographic materials should be protected by the defence of artistic merit.

Under the current test for artistic merit, the defence is automatically available for material that, objectively viewed, demonstrates some artistic merit no matter how small. For example, if the material in question is a written story, the question becomes, objectively viewed does the story reflect some accepted or recognized literary techniques or styles? If so, the defence is available irrespective of whether the risk of harm that the story poses to children and society outweighs any benefit that it offers.

The government does not agree with and does not support the existing test for artistic merit and neither do Canadians. The Standing Committee on Justice and Human Rights amended Bill C-20 accepting the government's amendment to define the public good as including acts or material that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.

This definition closely models the language of the Supreme Court of Canada when it interpreted public good in the Sharpe case. Accordingly, the interpretation of Bill C-20 will be guided by the Supreme Court's judgment in this case.

A number of witnesses representing the arts community appeared before the justice committee on Bill C-20 to express concerns that their work or that of fellow artists would be criminalized by Bill C-20. I believe that their concerns are at the heart of this motion.

The justice committee's amendment of Bill C-20 to include a definition of the public good directly responds to those concerns expressed not only by the arts community but also to those expressed by child advocates appearing before the committee. They wanted greater clarity in the bill as to what constituted the public good. However, as to the balance of the concerns raised by the arts community witnesses, a number of observations or points in reply should be made.

The first question to be considered and answered in any potential child pornography case is the following: Does the work in question meet the Criminal Code's definition of child pornography? The written works that were described by these witnesses to the justice committee would not meet the existing definition of written child pornography, that is, they could not be said to advocate or counsel unlawful sexual activity with children. Neither would they meet Bill C-20's proposed new definition. That is, they could not be said to be works that one, were comprised primarily of descriptions of unlawful sexual activity with children and two, that such descriptions were written for a sexual purpose.

The second level of inquiry, and one which falls to the courts to determine, is if the material meets the definition of child pornography, is it protected by a defence? Under Bill C-20, as I have already outlined, there would only be one defence and its test would be a two step inquiry and yes, it is possible for art to meet such a two step inquiry.

Bill C-20 in its preamble clearly identifies the bill's objective. It states:

Whereas the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect;

The motion to delete clause 7 of Bill C-20 and to maintain the status quo for child pornography is not only incompatible with Bill C-20's objectives, it is antithetical.

I urge all hon. members to support Canada's children and to support Bill C-20 as passed by the justice committee and not to support this motion.