Bill C-20 (Historical)

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

Supply

[Marlene Jennings, Liberal, Parliamentary Secretary to the Solicitor General of Canada]

Mr. Speaker, I would like to thank my colleague from the official opposition for moving this motion in the House.

As already stated, the motion from the opposition proposes to eliminate all defences for the possession of child pornography which allows for the exploitation of children.

We on this side of the House believe that this is what we are proposing to do with Bill C-20, an act to amend the Criminal Code regarding the protection of children and other vulnerable persons, and the Canada Evidence Act which was introduced by the Minister of Justice on December 5, 2002.

I am pleased that the hon. member from the opposite side chose to raise this very important issue because it allows me an opportunity to inform Parliament and Canadians of the important work that the government is doing to protect our most vulnerable citizens, our children. We agree with the opposition that our children are our most vulnerable citizens and require the most protection.

I would like to build on a few of the remarks made by the hon. Minister of Justice relating to some of the efforts that the government has undertaken to combat the sexual exploitation of children, particularly on the Internet.

I realize the motion in question relates specifically to Bill C-20 and the public good defence, but now is a perfect opportunity for me to highlight the collective work that we are doing to address the troubling problem of child pornography.

I would like to take issue with statements made by the member for Provencher where he claimed that Canada is wild, open country for child pornographers and that the message going out internationally is that people can do business in child pornography here in Canada.

Most of the studies that I have read and most of the statements that I have either read or heard from law enforcement agencies is that the United States is the source of much more child pornography than Canada.

I am sure we are all aware that the sexual exploitation of children is sadly not a new crime. We have been working for many years on this issue. Canada has some of the toughest legislation and policies in place dealing with the sexual exploitation of children. We are challenged with keeping pace with the rapidly evolving technologies, including the Internet, that make it easier for people to sexually exploit our children.

We are all aware of the benefits of the Internet and the increased access to educational resources. However, the Internet also makes collecting, distributing, accessing and making child pornography easy to do. It is extremely difficult and complicated to investigate, according to our law enforcement experts.

Despite the complexities of these crimes, we have been active nationally and internationally on this issue. In fact, this year the Solicitor General of Canada and the Minister of Justice, along with their G-8 counterparts, endorsed the G-8 strategy to protect children from sexual exploitation on the Internet. This strategy has provided a framework for action by all member states. I am pleased to report that we are taking this initiative seriously and we are working to develop Canadian initiatives that meet the broader G-8 objectives.

On the law enforcement front, for example, the Solicitor General of Canada in the spring of this year asked the RCMP and the Ontario Provincial Police to create the national steering committee on Internet based child sexual exploitation. The committee has representation from law enforcement across Canada as well as representation from the federal departments of Solicitor General and Justice.

The steering committee is providing direction to law enforcement efforts to better address this problem and is working closely with many specialized units, and many other integrated teams in the provinces and municipalities.

Building on the work of the steering committee and the various provincial initiatives,--because there are provincial initiatives that are to be lauded in the area of prohibiting and investigating sexual exploitation of our children--I am happy to report that we have taken the first steps toward the creation of a national coordination centre at the RCMP.

While it is still in its infancy, this centre is currently in operation, and is coordinating national investigations and liaising with international partners. We are hoping to build the capacity of the centre so it can provide even greater national leadership in this area.

The Canadian government has also been active in the establishment of cybertip.ca, an online reporting centre for reports of Internet based child sexual exploitation. Run by Child Find Manitoba, this pilot project provides a valuable service to law enforcement by forwarding reports of child pornography and also providing educational materials to the public.

The Solicitor General of Canada had the pleasure of announcing $55,000 in funding from his department for the initiative in August of this year and along with other federal departments, including Justice and Industry, we are actively working to find ways to provide cybertip.ca with sustainable funding to build on the current pilot project to make cybertip.ca a national resource.

Children are our greatest asset and Canadians can be assured that we are doing everything in our power to better protect them. Canadians can be assured that law enforcement in Canada is working to complement our strong criminal law framework, which we are hoping to strengthen with Bill C-20. Canadians can also be assured that the government takes the protection of children seriously and is ensuring we keep pace with technological advances.

I would like to address some of the government initiatives to protect our children from sexual exploitation. If we look at Bill C-20, among the various provisions, it proposes to limit the existing defences for child pornography. It proposes to strengthen the Criminal Code by expanding the current definition of written child pornography. It also proposes to increase the maximum penalty for sexual exploitation of children from 5 years to 10.

It maintains Canada's status as having some of the toughest child pornography legislation in the world, but we have done other things. Members who are sitting in the House now may remember that on December 11, 2002, the government tabled Bill C-23, the sex offender information registration act. It is before the committee on justice. I am pleased that we dealt with it this morning and hopefully it will be reported back to the House either today or shortly.

Bill C-23 proposes to establish a national sex offender database. The database would contain information on convicted sex offenders and would assist police across the country who investigate crimes of a sexual nature by providing them with rapid access to vital current information of convicted sex offenders.

We have Bill C-15A, an act to amend the Criminal Code and to amend other acts, which received royal assent on June 4, 2002. What are some of its provisions? It created a new offence to target criminals who use the Internet to lure and exploit children for sexual purposes. It made it a crime to transmit, make available, export and intentionally access child pornography on the Internet. It also allowed judges to order the deletion of child pornography posted on computer systems in Canada.

This was a power or an authority that the judges did not have prior to the royal assent of Bill C-15A. It allowed judges to order forfeiture of materials or equipment used in the commission of a child pornography offence. Here again, this provided new authority to judges which they did not have before.

It also enhanced the ability of judges to keep known sex offenders away from children by making prohibition orders, long term offender designations and one year peace bonds available for offences relating to child pornography and the Internet.

Finally, another of the provisions amended the child sex tourism act, which had been enacted in 1997, to simplify the process of prosecuting Canadians who sexually assault children in other countries. I think that is testimony to the gravity and the seriousness with which the government takes its responsibility to protect our most vulnerable citizens, our children.

That is not all. Since 1993, we have introduced other changes designed to protect our children or to enhance the protections that we have for our children, such as, for instance, amending the Criminal Code to toughen the laws on child prostitution and child sex tourism, which I just mentioned. We strengthened it again under Bill C-15A. We amended the Criminal Code to ensure that peace bonds keep abusers away from women and children. We passed legislation to enable criminal records of pardoned sex offenders to be available for background checks. We passed legislation to change the parole and corrections systems so that sex offenders serve until the end of their sentence.

Those are just a couple of example of provisions, measures, steps and legislative changes that the government has taken to strengthen the protections that we have for our children in order to ensure that we do everything we can to eliminate sexual exploitation of our children, and that when we do uncover it and find it, it is properly addressed and those who commit it are properly punished.

It is so important for us to look at and deal seriously with this issue. I honestly believe that our government has done so. I have not listened to all the speeches or the participation in the debate of all members of the opposition and members on the government side who have participated; I have only been able to listen to that of the member for Provencher. I found some of the issues he raised to be very pertinent, but I disagree with him when he says that they are not addressed by Bill C-20. I believe they are addressed.

There is one issue that I think most if not all of the witnesses who came before the justice committee spoke to. I am a member of the justice committee and I have had the privilege of participating in these sessions where we have conducted consultations on Bill C-20. It is the issue of the public good defence. There has been some confusion on the part of some witnesses, but there has been clarity on the part of other witnesses. It is clear that the clarity brought forward by what I would say is a consensus of witnesses is that the government may do well to look again at the dispositions or the sections in Bill C-20 that talk about public good and bring more clarity to them to ensure that the bill does in fact ensure protection of our children from sexual exploitation. On that, I think the member for Provencher gave an accurate accounting of what we heard from a large majority of witnesses. I think the government would do well to look at that piece of it.

However, on the rest of Bill C-20, I think that the overall majority of the witnesses who came before us, if not all, said that this is needed legislation. They commended the government in going forward on the legislation. They were in agreement that the legislation is needed, that it is a positive measure and that they wanted to see Bill C-20 adopted. However, they wanted to see clarity brought to the public defence issue. On that issue, there was agreement among a lot of the witnesses.

I will conclude now. I still have five minutes but will not repeat what I have said as I think the statements and points I have made are very clear. I think that any member in the House who listened to what I had to say would understand very clearly where I am coming from and what issues I feel are important and are being addressed by Bill C-20. As well, they would understand the measures and the steps that the government has taken since 1993 to continually strengthen the protection of our most vulnerable citizens, our children, and to strengthen Criminal Code provisions to ensure that those who would sexually exploit our children are properly caught, properly charged, have a fair hearing before the proper courts and, when convicted, receive the proper sentencing.

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

Mr. Speaker, I constantly hear the minister talk about the leadership that Canada is taking on all these judicial issues and how his government is leading the rest of the world. I find that to be a strange comment as I understand Canada is the only country of all free democracies that has the age of consent at 14, when the rest have the age of consent at least at 16 or older. Is that leadership? We are the bottom of the heap.

I would like to ask the member, from his experience if this particular motion were to pass through the House and most members found it acceptable, how difficult would it be to immediately incorporate the motion into Bill C-20?

[Grant McNally, Canadian Alliance, Dewdney—Alouette, BC]

Mr. Speaker, my colleague speaks with a great deal of knowledge being the former attorney general of the province of Manitoba.

I want to ask the member a specific legal question with regard to what the Supreme Court said in the Sharpe case. The Supreme Court said with regard to the public good clause that while the public good defence might prevent troubling applications of the law in certain cases, it would not do so in all.

My colleague mentioned that in his speech. I would like him to elaborate on that. I was chagrined and dismayed when the justice minister earlier today seemed to say that the fact the Alliance has brought the motion forward was a bad thing. I say it is a good thing. We need to discuss the problems with the government and its Bill C-20.

I would appreciate my colleague's comments on the public good defence as referenced in the Supreme Court decision.

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

Mr. Speaker, I appreciated my colleague's speech. He was right on. He has done an excellent job on this particular issue of Bill C-20.

I will ask him a question that I know he probably cannot answer which is in regard to raising the age of consent. I heard the same message from the Liberals that it was not raised to the age of 16 because of certain cultural groups in our country who prefer to keep it at 14 yet no such group can be found.

Can the member possibly give me any reason why the Liberal government refuses to raise the age of consent from 14 to 16? Is there any possible reason that he could name?

[Vic Toews, Canadian Alliance, Provencher, MB]

Mr. Speaker, once again, as members of the Canadian Alliance, we find ourselves in a position where we have to defend the rights of the most vulnerable group of people in our society, our children, against a Liberal cabinet fixated on protecting the interests of dangerous sexual offenders.

Past experience should tell us that this need not be much of a challenge, given the fact that Liberals tend to govern by opinion polls, and the evidence is clear that Canadians overwhelmingly support giving children the most effective legal protection possible against sexual predators.

Nevertheless, to this point the legislation put forward by the minister continues to defend the interests of sexual predators rather than Canadian children.

However it appears that some of the concerns that have been consistently raised by the Canadian Alliance, members of child advocacy organizations and the police may finally be catching the attention of the government.

Recently we heard the Solicitor General admit that he may have erred in his opinion that including convicted sex offenders in a national registry would violate their charter rights. Perhaps it is not too late to hope that the Liberals will also eventually admit that there is no justification for the criminal possession of child pornography and amend the laws accordingly.

Over the course of parliamentary debate on this issue I have often been struck by the contrast between the fact that Canada's Criminal Code provides no defences against certain types of hate propaganda, yet the defences for the possession of child pornography are alive and well and broader than ever. There is zero tolerance for hate propaganda against vulnerable minorities, and rightly so, yet the most vulnerable minority of all, our children, are not similarly protected.

By now most Canadians are familiar with the case of the notorious child pornographer, John Robin Sharpe, and the material that originally sparked this debate on our child pornography laws. After being caught with material glorifying violent sexual acts between adults and children, Sharpe began a court challenge in the mid-1990s arguing that his charter rights were being violated by Canada's legal prohibition on child pornography. Eventually the Supreme Court of Canada upheld the law but said that artistic merit should be interpreted as broadly as possible. A British Columbia superior court judge later did just that and let Sharpe off the hook for two possession with intent to distribute charges on the basis that the material had artistic merit.

Let us be clear about what kind of material we are talking about, the kind of material that allowed this judge to apply artistic merit to acquit Mr. Sharpe of those charges. We are not talking about literature, art or anything that could reasonably be described as such. Seventeen stories that Sharpe had written were given as evidence. Detective Noreen Waters of the Vancouver police department characterized those stories as follows:

They're extremely violent stories, the majority of them, with sexual acts involving very young children, in most cases, under the age of 10 engaged in sado-masochistic and violent sex acts.... And the theme is often that the child enjoys the beatings and the sexual violence....

John Robin Sharpe was acquitted of those charges. Clearly, after the Sharpe cases, there was a legislative gap that required immediate attention. Canadians were outraged but it took some time and considerable pressure to convince the justice minister to bring forward legislation.

Last December, when Bill C-20 was finally tabled, the minister was proud to declare that the existing defences for child pornography had been narrowed, implying that the artistic merit defence was no longer there. No one was fooled. In fact, instead of eliminating all legal loopholes that justify the criminal possession of child pornography in Bill C-20, the minister simply combined these defences and hid them in the broadly interpreted defence of public good.

However, despite the minister's attempt to sell Bill C-20 on the basis that the artistic merit defence no longer applies, he admitted on September 25 in the justice committee that it was still included under the now broader public good defence.

The Supreme Court briefly commented on the public good defence in the Sharpe decision stating:

It might be argued that the public good is served by possession of materials that promote expressive or psychological well-being or enhance one's sexual identity in ways that do not involve harm to others.

If this commentary is any indication of how the public good defence will apply in the courts, it clearly will not fulfil the aim of protecting our children.

The Supreme Court of Canada does not make comments like that idly. It is signalling what it may well do in the future. It is too big a risk for Parliament to leave that particular phrase as open as it now is in the bill. It has become clear that the public good defence has not been precisely defined and will be subject to broad interpretations by the courts.

Mr. David Matas, a well-known lawyer and a member of the board of directors of the child advocacy group, Beyond Borders, said the following during committee hearings on October 7 in reference to the public good defence:

The practical problems of putting a very vague defence into the law is this:

He was referring to this public good defence. The quote continues:

It doesn't serve as a deterrent. If you read what child abusers say, they think what they're doing is in the public good. They promote sexual activity of children. It also is going to lead to a lot of not-guilty pleas. We're going to get the courts clogged up with defendants saying that they're not guilty because they think there's a defence of public good. The defence, of course, will be defined over time, but differently in different provinces until it gets to the Supreme Court of Canada. So we'll have many years of uncertainty about the law.

Given what the Supreme Court of Canada has said, I think know where this court is going to take this particular definition.

The same day, detective sergeant Paul Gillespie of the Toronto police also said:

--trying to, as a front-line officer, determine what the public good is will prove to be impossible.

We are putting evidentiary burdens on the police in addition to those they already have that they simply will not be able to meet.

The representative from the Canadian Bar Association also expressed doubt that the public good defence would be effective stating:

The issue is one of how the courts are going to interpret for public good. This is not an easy concept and it is one that does incorporate the community standard that the court rejected in their interpretation of artistic merit in Sharpe, but there's a real issue of whether or not it's indeed going to solve the problem.

That is exactly what I have said on earlier occasions. The Supreme Court of Canada has already emasculated this particular defence. Why does it think that by resurrecting it in this new bill it will do any better?

From the side of the spectrum that tends to favour freedom of speech over all other social objectives, Mr. Alan Borovoy of the Canadian Civil Liberties Association also expressed serious misgivings about the public good defence. He said:

Then they talk about the defence of public good, Bora Laskin described it as anomalous, the Supreme Court of Canada has expressed misgivings and the same court has also held that the comparable term “public interest” is constitutionally vague. That's what we would be left with if those amendments were enacted.

What we essentially have is almost every witness, other than the justice minister, coming before the committee and telling us that the law will not work, it will not be effective and, more important, it will not accomplish its objective of effectively prosecuting child pornographers.

In a further complication of the child pornography defences, the Supreme Court carved out two exemptions to the child pornography law in the Sharpe case: that materials, such as diaries and 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, again kept by the person for personal use.

Although at first blush those types of defences for personal use appear to be reasonable, the latter exemption has the potential to expose children age 14 to 18 to further exploitation by child pornographers since they would be engaging in a legal activity.

What that means is that a 40, 50 or 60 year old man can have sex with a 14 year old girl as long as she consents to the activity, and that man can legally make a visual recording of that activity. Of course it still remains illegal to distribute it but then there is a permanent record of that child that no doubt will eventually be put out into the public domain.

Our age of consent laws also enable child sexual predators to legally use the Internet to lure children over 14 who are online.

One of the more dubious objections to raising the age of consent from 14 was provided by the Parliamentary Secretary to the Minister of Justice, the member for Northumberland, who stated in the House of Commons on November 5, 2002 that there were “many social and cultural differences that have to be reflected in the law”.

That certainly was news to many Canadians. Many members of Canadian ethnic groups were offended and angry that the government was trying to hide behind so-called social or cultural considerations on the age of consent issue, and never have the members opposite ever asked which cultural group consented to the exploitation of their children. No such cultural group exists in Canada, and that activity should clearly be against the law.

As Liberal ministers keep making weak excuses for not moving to raise the age of consent, they will continue to be discredited by Canadians who have common sense ideas and are committed to the protection of their children even if this government is not.

Under our current laws, children and teenagers easily become targets of pornographers, Internet sex scams, pedophiles and sexual abuse, and parents have no legal recourse with which to shield their children from these dangers.

So far the committee has heard strong recommendations from several witnesses to ignore any excuse from the government in its refusal to raise the age of consent; particularly from police representatives Detective Sergeant Gillespie from the sex crimes unit of the Toronto police service, who has done such a fine job trying to make the children of this country safer, and Mr. Tony Cannavino of the Canadian Professional Police Association. They continue to come to Parliament to remind us that we are failing our children and that Bill C-20 certainly fails our children.

Instead of raising the age of consent, the bill creates the category of “exploitive relationships” aimed at protecting people between the age of 14 and 18. Overwhelmingly, child advocates have urged committee members to reject the provisions of Bill C-20. This new category is a vague provision that fails to create the certainty of protection that children require. It will not serve as a real deterrent. It will simply result in longer trials and more litigation by putting unnecessary, undue prosecutorial burdens and evidentiary burdens on our crown attorneys and our police.

Mr. Normand Boudreau, also a member of the board of directors for Beyond Borders, urged members to reject excuses against raising the age of consent. He reminded us of the story of the little aboriginal girl in Saskatchewan. This case occurred in Melfort, Saskatchewan.

A 12 year old aboriginal girl was preyed upon sexually after being made drunk by three adult males. A 26 year old man sexually assaulted the 12 year old girl with his two friends outside his truck on a gravel road. The 26 year old man received a conditional sentence. The other two, however, were found not guilty. In the case of those two, the jury found that the accused took all reasonable steps to ascertain that the girl was at least 14 years of age. In effect, in this particular case, the age of consent was 12 years old. These individuals were acquitted because they took all reasonable steps to satisfy themselves that the individual may in fact be 14 years old. That is shameful and disgusting.

A side issue on this particular debate that is nevertheless an important one is what is to be done with sex offenders once they are convicted. Currently, Canada's methods serve as little more than a weak reprimand. The list of dangerous sexual offenders who receive no jail time is long. I can quote a number of cases where serious sexual offenders won. For example, the Toronto Sun reported that a Mr. Oswold, who had a record of sexual assault, sexual interference and had attempted to obtain the services of a 10 year old boy, received a conditional sentence for breach of a probation order.

These are the kinds of laws the government has passed. They are not only weak laws in terms of sentencing, but to add final insult to the injury is to try to pass a law such as Bill C-20. The list goes on.

Those who suggest that mandatory prison sentences do not deter crime are mistaken. We know that as long as they are secure behind bars, they will not reoffend.

One witness, I believe it was the Civil Liberties Association, said “What do you expect child pornographers to do, collect stamps?” I say they can collect stamps if they want to as long as they are doing it behind prison bars. They should not be released to be able to exploit our children on the Internet or otherwise.

Only a Liberal would suggest that society should take a chance with its children by releasing those individuals into society without first requiring a period of incarceration. A strong message from Parliament to the courts and from the courts to the offenders that the abuse of children will not be tolerated will have the appropriate effect. Unfortunately, Bill C-20 and the Liberal government fail to send that message.

The lack of funding also continues to be a vital problem for those who are tasked with enforcing the laws. In March 2003 Chief Julian Fantino of the Toronto Police Service said that he was:

--deeply disappointed by the recent comments by [the] Solicitor General that police are adequately resourced in the area of child pornography. The Toronto Police Service has received no funding or resources from the federal government in this area. We have, however, managed to move forward thanks to a $2 million grant from the provincial government.

It was the former conservative government in Ontario that showed concern when the federal Liberal government did not.

That will conclude my comments. I would be prepared to answer questions.

[Deborah Grey, Canadian Alliance, Edmonton North, AB]

Mr. Speaker, I thank the hon. member for his remarks and his contribution in the justice committee as well. He has been here many years and has seen legislation seemingly take forever. If we look at the street level, some of these horrifying things are still happening year after year, decade after decade.

I would like to ask him a question with regard to his comments that he just made about the court system. Who in the world can determine such a subjective thing as artistic merit and what is in the public good? I have a difficult time doing this because of course it is a sliding scale. Everybody has his or her own definition of what that might be.

It seems to me that where young children are being forced into nudity and sexual acts with adults, there is no way on God's green earth I would ever be convinced nor surely would anyone else in this chamber nor anyone in the Supreme Court of Canada nor any of the legal people that this somehow falls under artistic merit. If we look at the devastating ramifications and implications this has on children as they grow up to be adults, I think we are seeing something rampant here that in the next generation we will only know the devastation it has caused.

What is the member's feeling and what are his thoughts on the justice minister coming here this morning and ranting about how Bill C-20 will actually solve everything? In fact a press conference is going on right now in the press room with police and law enforcers saying that this is not going to cut it.

What does he think we could do to convince the justice minister that it is not just us on a political basis here saying we do not think that Bill C-20 will be the answer to all the ills, but the police themselves are saying it just will not hold up? What could we do about that?

[Lorne Nystrom, NDP, Regina—Qu'Appelle, SK]

Mr. Speaker, I too want to say a few words on the opposition motion tabled by the member for Wild Rose.

The whole issue of child pornography is an extremely important issue. First, I want to begin by thanking the justice committee. A few minutes ago in the justice committee, members dealt with Bill C-23, the national sex registry. The committee agreed to an amendment I made to have a review of the registry in two years.

I am pleased that the chairman of the justice committee broke the tie. There were opposition members and some government members in support of the amendment and some opposed. The amendment as passed will provide for a review of the national sex registry in two years time. That is a good thing to do. It will make the role of parliamentarians more meaningful in terms of our political system.

The debate before the House today is one that is very important. We are dealing with Bill C-20 in our justice committee. The minister and his officials have been before the committee. We are trying to find an effective way to ensure that we are tough with people who are involved in child pornography and the abuse of children.

I have absolutely no sympathy whatsoever for people who abuse children in the way that they do. I know the minister feels exactly the same way.

We saw some very moving video from the RCMP on some of the most horrific child pornography and the abuse of children that could possibly be imagined. It is the kind of abuse that brings tears to people's eyes. There is no doubt whatsoever that we have to deal with this in the toughest and most effective way possible.

The problem we have with the legislation before the House, and one which people are wrestling with, is clause 7, the public good, the definition of the public good and the whole question of freedom of expression, artistic merit, what a museum can display, what researchers can research and so on. There is a differing legal opinion, as the minister knows, as to clause 7 and the public good.

I want to begin by saying that there is a serious difference of opinion. The Canadian Bar Association, for example, believes that the public good test is too vague and too broad to give this legislation any real effect.

In other words, the Canadian Bar Association is saying that it is not really sure what the public good test really is. It could be too broad or it could be too narrow. It could be too narrow in terms of dealing with child pornography and those who abuse children. It could be too broad and catch in the sweeping definition in the courts genuine artists and researchers, museums or medical research in the country. We do not know what will happen. The jurisprudence will evolve through the courts. In effect what Parliament is doing here is giving the authority to the courts to define what is the public good.

I wish the member for Wild Rose was here. I wonder if he would agree that what we should is remove clause 7 from Bill C-20, with instructions that Parliament define what is the public good. Then the intent of parliamentarians would be clearly signalled to the courts. If we do not do that, the courts will make the definition of public good.

I am one who is very much in favour of the Charter of Rights and Freedoms and our Constitution. However, I am also one who has been a bit nervous about the evolution of more and more power to the courts, where the courts and not legislatures make more and more decisions in our country about public policy.

I respect the courts and judges. However, they are not elected. It should be us as parliamentarians and provincial legislatures that determine policy in terms of what direction our society wants to go.

This is really the whole debate that we are now having in the justice committee. The debate is what is freedom of expression. I see the member for Dauphin—Swan River who is a decent parliamentarian and human being. He believes in freedom of expression. If he went to a movie theatre tonight at nine o'clock and there was a very popular movie on, if he jumped on the stage half way through the movie to make a big long speech about how wonderful such and such was, he would be in contempt because freedom of expression has certain limitations. He could not do that because it would be a limitation on freedom of expression.

Section 1 of the charter is the limitation clause. It shows there are limitations, but it has to be demonstrated that these are in the public good or the common good. It has to be demonstrated. The whole debate in the justice committee is what is artistic merit, what is the public good?

We want to make sure we have tough child pornography laws that deal in a very tough way with people who abuse children in this country. Some of this stuff is horrendously offensive and is almost beyond imagination. We have to deal with it in an extremely tough way. However, in the sweep of the law we have to make sure that genuine artistic merit and expression does not become a criminal offence. That is a concern many have.

The Canadian Bar Association is about as credible an organization as possible in terms of expressing an opinion on a certain law before the House. Its concern, as I said before, is that the use of the public good test is much too vague and broad to give the legislation any real effect.

We should be instructing the government, instructing the justice committee, instructing Parliament, to make sure that we say what is the public good and what we mean in terms of the law and how it will be carried out.

I see in the House the member from Edmonton, the former Alliance House leader. I am sure she would agree that we often leave too much power with the courts, with unelected judges, when parliamentarians should make the decisions.

The scope of the public good, as I said, is too broad according to some lawyers, and too narrow according to other lawyers. We should clarify what we mean. The police will do a better job and make more sound decisions in their investigations of suspected child pornographers to protect children if there is a very clear definition of what we mean in terms of how we want to protect the children. On the other side, if we have a clear definition of what the public good means, then artists, museums, researchers and others will not be prosecuted for legitimate artistic expression or legitimate research in their field of endeavour.

One of my colleagues on the government side, who is on the justice committee has just walked in. He knows the debate that has been raging in the committee as to what those fine lines are.

We need clarity in what we mean by the definition of the public good. We have to give some guidance to the courts as to what we mean as a parliament by the public good. We have to stop delegating that power to an unelected judiciary. We parliamentarians should write the law and clearly signal to the courts what we mean when we tighten the law against those who commit pornography and abuse children, what we mean by the freedom of expression, what we mean by artistic merit and the right of museums to display certain pieces of art, what the fine line is and what the message is that we want to send to the court.

The bill before the justice committee, which I understand will be dealt with again tomorrow afternoon, is simply too vague on too many fronts on that particular point. We have seen that by the clash of interpretation among different witnesses and the clash of interpretation among different lawyers.

My main reason for intervening today is to say that it is extremely important that we are not derelict in our responsibilities. We as parliamentarians must make sure that we take clause 7 out of the bill as it stands.

We would be better off getting rid of the clause altogether than to have a vague clause which no one can guarantee what it means in the end and leave that power to the unelected courts. Once the jurisprudence and the precedents are built up by our legal system, we may have a very good law. On the other hand, we may have a law that one way or the other does not have the intent of what Parliament means. It is incumbent upon us as parliamentarians to make sure that is done. I think this is an issue on which Parliament can unite, that it should be us and not the courts who define what we mean by the public good.

Artists should have the freedom to express what they want to express and not be fearful of being charged under the Criminal Code in terms of legitimate artistic expression. People should be able to do legitimate research and museums should be able to exhibit legitimately without fear of being prosecuted and convicted under the Criminal Code. At the same time the Criminal Code must have more power to prosecute and put away those people who abuse children or those people who are involved in child pornography that is so offensive to any kind of civilized society.

I hope we can come to that consensus, that it should be Parliament and not the courts that makes that determination. We can debate what the fine lines are and signal clearly to the courts what the House means.

[Greg Thompson, Progressive Conservative, New Brunswick Southwest, NB]

He has been simply handcuffed by his own people.

We have a government that is moribund. In fact, we will be voting on the principle of lack of leadership or the lack of government, or the duality of government that exists on that side of the House.

This House will rise in about a week or so and will not be back until the new king is crowned. That is pathetic. It means that this bill will die on the Order Paper.

In the meantime, what toll will that take on our young Canadians? The government is in a position to do something, but is doing nothing with guys like Mr. Sharpe, the serial pedophile. It is doing nothing with a bill that could eliminate those people from doing those horrible deeds against our children. We could do something in the House. That bill could pass very quickly if there is a willingness on the part of government to do something.

The faint hope clause could be eliminated, so when these people go before the courts, they could be sentenced appropriately and they would not be given the ability to do it again. They would be locked up behind bars, where they deserve to be.

We have to tighten up those loopholes in the Criminal Code. We can do that with Bill C-20. That is something the justice minister has been very reluctant to do.

If the members remember, one of the defences in the Sharpe case was the idea of artistic merit, believe it or not, because the pornography he was displaying or the personal pornography he had was for his own enjoyment. That is a pretty weak defence when a guy can go loose or be on the streets simply because of artistic merit.

The minister does not even address that loophole in the bill. In fact in some of the testimony provided by the minister himself at the committee hearings, he basically admitted that it would not close that loophole. In fact that loophole of artistic merit will still exist in the bill as presently written.

The question is, why would the minister not address that point? Why would he allow a bill like this to go forward if it does not close those loopholes? Why does he fail to stand up for the families that deserve to have their children protected? That is as simple as the argument can get and as basic as the argument has to get. Why would he not do that? He is victimizing our children.

When the justice minister, the one person in Canada who can make a difference, just simply sits there and does not address the needs of Canadians and the protection of young Canadians why should he be there? He is there because he will coast to office I guess on the Martinite train and that is the only reason.

The ministers are not simply there because of their ability to get the job done. They are simply coasting through office. It is time that Canadians take them to task for this and I believe they will in the next election.

Maybe it is time for the limousine Liberals to be derailed. Maybe it is time for Canadians to examine their record very carefully in terms of social justice over the last 10 years. What have they accomplished? We know they have coasted on the economy but they cannot coast forever. This legislation deserves to be passed and should be passed. However some of the recommendations that we have suggested should be in the bill.

At that, I rest my case and look forward to questions and comments from my colleagues.

[Greg Thompson, Progressive Conservative, New Brunswick Southwest, NB]

Mr. Speaker, I wish to thank the two justice critics in the House for the work they did on the bill. Our own justice critic, who is the leader of the PC Party, the member for Pictou—Antigonish—Guysborough and the Canadian Alliance member for Provencher did a tremendous job on the bill to improve it.

The fundamental question in terms of protecting our children goes right back to the inability of the government to do anything. It is a habit it has developed over the 10 years it has been in power. There is no question that because of some of the things that previous governments did--and I was a member and sat on the government side on some of the big initiatives that we took to get the economic house in order--the current government has coasted on those over the years. I am talking about such things as free trade and the GST. In fact, it did have money to do things but did not have to pay any attention to detail.

Assuming and accepting that argument, we would expect that. It is what most governments do when the economy is sorrowfully chugging along and going fairly nicely without any major initiatives, in other words, when it is not taking up a lot of its time. I challenge any member on that side of the House to get up and tell me any big economic initiative, trade or taxation policy that the government had to bring in to deal with fiscal difficulties it was facing. The fact of the matter is that it had to do nothing, just keep house and allow the machinery of government to run. And run it did.

The fact is the government had time to pay attention to social and justice issues and it has not done that. In fact, Bill C-20 has practically no support anywhere on this side of the House and very little support on that side of the House. Bill C-20 will never be passed in the life of this Parliament.

When the new leader comes in, the Martinites will take over. I hate to use the term Martinites. I would like to call them termites because they have secretly eroded the foundation of government for the last year and a half to two years.

Now we have a government that is moribund. It does not know how to do anything and there are many examples of that. It is not just Bill C-20. We can look at the fiasco that is taking place with the $700 million announced for rail service on the trade corridor between Windsor and Montreal. There is no clear indication that it will ever happen because the termites, the Martinites, are secretly undermining the government. In fact, we have a justice minister who has been caught up in that as well.

How would you like to have a record like his coming to the House, Mr. Speaker? He is sitting on a bill that could do something, but will do absolutely nothing. He will be sitting there for a long time before that bill is passed in this House simply because there is no will on the part of the government to pass it. In the meantime our children will suffer.

We saw last night the police chief of the City of Toronto, and the pain and hurt that police officers see every day of their lives. How the Government of Canada could miss that message is beyond my belief.

[Inky Mark, Canadian Alliance, Dauphin—Swan River, MB]

Mr. Speaker, it is a pleasure to rise this morning in the House to take part in this very important debate on the supply motion of the official opposition. I will be dividing my time with the member for New Brunswick Southwest. Let me begin by reiterating the motion:

That, in the opinion of this House, the government should protect our children from further sexual exploitation by immediately eliminating from child pornography laws all defences for possession of child pornography which allow for the exploitation of children.

They key element of the supply motion is about protecting our children. I am sure that Canadians have been waiting intensely for years for the government to put in legislation that in fact will protect our children.

I have just come from the justice committee where we were doing amendments this morning, clause by clause, for Bill C-23, on the sex offender registry. Already we find that there is one weak point. There is no retroactivity element in the bill. In other words, if the bill passes it will be applicable only to those who are in the process of judicial activity, but there will be no retroactivity. In other words, convicted sex offenders in this country will not have to register anywhere in this country unless they reoffend.

I also want to take my time to give some balance in terms of the debate. Again, I have been fortunate to take part in a lot of the hearings with Bill C-20, which is about child pornography. We have heard from many witnesses. We need to get a balanced presentation on this debate today. I would like to begin by quoting from some of the documents. One witness from the Evangelical Fellowship of Canada submitted a presentation that stated:

In conclusion, we are pleased that this legislation [Bill C-20] takes steps to improve the protection of children in Canada and to reduce exploitation of them. We support the amendments that strengthen the child pornography provisions by adding a new broader definition of written pornography and a more narrow defence of public good.

The presentation goes on to state that the increase in maximum sentences for child-related offences is commendable, although the fellowship believes that minimum sentences “would be more effective”. It concludes by saying:

Any reasonable initiative that will make courtroom experiences less traumatic for child victims and witnesses is commendable, as well. We support this provision of Bill C-20.

The presentation then states:

However, we note that Bill C-20's new category of sexual exploitation necessarily places child victims in a courtroom experience and requires them to provide details of their intimate relationships in order to ascertain whether exploitation has taken place. We are concerned that this provision will either further victimize exploited children or be ineffective. A far more effective way to protect young Canadians from sexual exploitation would be to raise the age of consent to sexual activity to 18 years of age.

That is from the Evangelical Fellowship of Canada.

Let me proceed to make some statements about what the CBC had to say. Again, members of the artistic community are concerned as well how legislation on pornography will affect them. The recommendation of the CBC is that both specific journalistic defence and in defence of the public interest be included as defences for the offence of voyeurism. It suggests the following wording:

No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good, are in the public interest or the acts were those of a person engaged in journalistic activities for

(i) any newspaper or other paper containing public news, or

(ii) for a broadcaster or internet web news provider licensed by the Canadian Radio-television and Telecommunications Commission to carry on a broadcasting transmitting undertaking or benefiting from an exemption order of the Canadian Radio-television and Telecommunications Commission.

Most people in Ontario have heard of Project Guardian. Carrie Kohan appeared before the committee and she had many interesting things to share as she has firsthand experience with sexual predators. In her presentation to the standing committee, she said:

Because we all share in this plight, it is our societal responsibility to put children's rights first. It is our duty to focus our efforts not only on the protection of the child, but also to provide, at the very least, the same level of rehabilitation as that provided today to the child rapist while incarcerated.

She went on to say that:

It is our conclusion that our legislation needs to become tough on this crime. Yes, removing the rights to freedom of the convicted pedophile may seem harsh to the vocal minority, but to the emerging majority it is a logical and necessary step. We need penalties worthy of second thought in Canada, or more specifically we need penalties that will cause pedophiles to have second thoughts about child abuse in Canada, because child rape is a most heinous crime and is deserving of the most severe penalties.

She concluded by saying that if a child victim who had experienced this crime had the opportunity to sit before the committee today, she was sure that he or she would agree with her as well.

The Canadian Conference of the Arts also submitted a brief to the standing committee. Its concern was in relation to the elimination of the artistic merit defence and that it would create confusion and punish artists. It stated in its presentation:

The CCA opposes the elimination of the artistic merit defence in s.163.1. Eight years after s.163.1 was inserted in the Criminal Code, the Supreme Court in Sharpe gave an extensive definition of the artistic merit defence. The CCA was greatly relieved by this development because the definition is broad enough to ensure that young artists or artists working with novel or transgressive subject matter would not suffer the ignominy of being prosecuted in the criminal courts. Although the Court also went on to carve out two exceptions to the offences of possessing or making child pornography, it did so in order to avoid having to strike down the entire law on the ground that it was an overbroad infringement of the freedom of expression. As a result, the child pornography law has largely been “saved” and is wide enough to capture virtually all situations in which expressive material could lead to harm to children.

Let me close by quoting the Writers' Union of Canada. It had great concerns about defences for child pornography. Its summary stated:

We believe that the proposed changes to the child pornography provisions of the Criminal Code set out in Bill C-20 are overbroad and infringe the Canadian Charter of Rights and Freedoms. They will greatly increase the likelihood of the arbitrary exercise of prosecutorial discretion to lay charges against creators of written and visual material falling within a broadened definition of child pornography, particularly without the existing defence of artistic merit. Our greatest concern is that the sole remaining defence of the public good will not be interpreted by courts to encompass a defence of artistic merit or purpose because Parliament has deliberately chosen to remove this defence from the existing legislation. We submit that the proposed changes to the law will lead to increased self-censorship by writers and other artists and cast a chill on expression of ideas.

In closing, Canadians look forward to legislation that will certainly protect the children of this country.

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

Mr. Speaker, you will have some idea how odd it is for me to be asked a question on the intentions of the minister of justice. I am not one of his confidants, far from it.

The best way to respond is to invite members of the Standing Committee on Justice and Human Rights, and then the members of this House, to be constructive in their criticism. Some of the criticism of the bill has been justified. I said that again today in committee. I believe that, with good will, we can complete consideration of a bill in the House before November 7, since we are probably going to stop sitting on November 7.

Instead of saying that this is no good, must be scrapped, set aside, I think we have a duty to bring in amendments, in committee or here in the House, that will allow it to achieve its purpose. I would like the Alliance members—the hon. member for Wild Rose in particular, who has been working on this issue for years—the members of the Bloc Quebecois, the Progressive Conservatives and the NDP, as well as the Liberals, who also have some questions and reservations on Bill C-20, to work together on this.

The Standing Committee on Justice and Human Rights is working very hard on this already. We are sitting endlessly. Let us improve this bill along with the justice minister, whom I invite, beg even, to be open to any amendments we might suggest. Let us ensure that, after November 7, thanks to this bill from this House, our children will be better protected than before. That is my goal.

I will not come to the defence of my colleague, the justice minister. If, however, he accepts the amendments the Bloc Quebecois proposes, the bill will be more solid, will be a better bill, and will protect our children better. That is the objective of all members of this House.

[Grant McNally, Canadian Alliance, Dewdney—Alouette, BC]

Mr. Speaker, contrary to what the justice minister claims, Bill C-20 simply will not provide adequate provisions to protect our children against those who would exploit our children through the use of child pornography.

Why does the Minister of Justice refuse to listen and remove the artistic merit defence under the public good clause of Bill C-20?

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

Mr. Speaker, I appreciate the speech given by the hon. member from the Bloc. I know where he is coming from in terms of the motivation behind the support for the motion.

I believe it is this member who has twin boys who are about five years of age. I can understand why he is so adamant about making sure that whatever we do in the House we get it right. I think that is the message he tried to deliver in his speech: whatever we do, let us get it right. I certainly thank him for his support on this motion, because I think that is what we all want to do. I think that is what you want to see, Mr. Speaker, and I know that is what I want to see accomplished. I think even the justice minister wants to see it and is attempting to do it through Bill C-20.

However, the word is out fairly strongly from the experts. I have not listened to the witnesses at the committee, but I have talked to the same individuals in person when doing my research. They simply say that Bill C-20 needs a powerful lot of improvement and is ineffective in its present form.

Would the member comment on what needs to happen to Bill C-20 to make it effective such that it would have the same intent that I have with this motion?

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

Mr. Speaker, I am pleased to speak on behalf of the Bloc Quebecois on this final allotted day on the business of supply. It is worth noting that last year the final opposition day was in early December. This indicates the government's firm intention to avoid the embarrassing situation that would arise if the member for LaSalle—Émard were to return to the House after his coronation on November 14 as de facto head of the federal government.

The Canadian Alliance motion reads as follows:

That, in the opinion of this House, the government should protect our children from further sexual exploitation by immediately eliminating from child pornography laws all defences for possession of child pornography which allow for the exploitation of children.

The wording of this motion could give rise to a number of questions. I will start by addressing its intent, and will move on to the wording later on. It is rather a rare occurrence for the Bloc Quebecois to be so strongly in agreement with the Canadian Alliance, whose repressive and regressive approach generally does not correspond with the vision of Quebec.

Nevertheless, no one could oppose the highly sensitive subject we are addressing today, for the simple reason that it is a basic matter of protecting those who are fundamental to the continuation of our society: our future, that is our children.

In my opinion, the sexual exploitation of children is the most vile and perverse form of pornography. Parliamentarians have a moral duty to protect the must vulnerable members of our society, our children, who also constitute our greatest treasure. In my opinion, of all deviant behaviours, sexually deviant behaviours that is, the exploitation of children is the one that is evidence of the most vile and profound psychological disturbance.

It may be astounding to some of us that certain individuals entertain sexual fantasies involving children, the same sort of angry shock we feel when cases of pedophilia and child pornography are made public. Unfortunately, this is the sad reality, and the advent of new communications technologies has made possible a dramatic increase in this phenomenon, in the more anonymous, as it were, setting of the Internet.

There is no doubt whatsoever in the minds of any of us who have had the misfortune to see just what horrors, what disgusting material, can be found on the Internet, that action must be taken, action that must be as firm and immediate as possible.

Bound children, tortured children, exploited children, wounded children who will remain damaged all their lives, that is what we can find much too easily today, on the Internet and elsewhere. As parliamentarians it is our duty to say, “Enough. Stop it now,” and to put into place all the necessary legislative measures to protect our children and provide the police with the tools they need to fight this plague.

Pornographers and pedophiles often succeed in infiltrating what are called “e-circles”, clandestine, transient, electronic networks, which grow up and die off quickly, making it more difficult for the police to infiltrate them.

Of course, some perverted people will inevitably make a mistake that gives away their identity, but too often, many more get away.

According to Cpl. François Doré of the Sûreté du Québec, the Ottawa Interpol office dealt with more than 500 cases of juvenile pornography on the Web during 2001, which was double the previous year's total.

In an article on January 21, 2002 in La Presse , the same Cpl. Doré quite rightly observed:

That is not just an increase; it is an explosion.

He calls upon us to act. That is one more reason why governments, with all the means at their disposal, must fight to eliminate this plague that attacks the most vulnerable and most fragile among us, our children.

Internet chat rooms are also favourite places for sexual predators, who often lure young people into virtual conversations, or chats. In these virtual forums it is all too easy for a 50-year-old to pass for a 13 year-old boy and strike up erotic or sexual conversations with girls or boys the same age.

The purpose of the Canadian Alliance motion is to eliminate all possible forms and means of defence in the legislation on child pornography, for anyone possessing the material targeted by the law. Here we must be very careful.

As we know, the House is considering Bill C-20, which deals specifically with amendments to the Criminal Code. This legislation has been debated and studied for some time in the Standing Committee on Justice and Human Rights.

The Bloc Quebecois has developed the best approach to the issue, in my view, because we have taken into account specific situations that could prevent the spread of this scourge. We also listened carefully to all the experts, particularly the police experts, who appeared before the committee and shared their point of view.

As we have said, we are in favour of Bill C-20 because we feel that this bill touches on several important aspects of criminal law and introduces new provisions that have become necessary because of the technology around us.

However, obviously some of the provisions raise questions, doubts and reservations in our minds, particularly with respect to the sensitive issue of possession of child pornography.

I cannot emphasis strongly enough the profound perversion associated with child pornography. However, it is important for parliamentarians to question the need, for a therapist for instance, to possess a certain amount of this material for the purpose of clinically treating sexual deviances.

To encompass some possible defences, the government introduced the concept of public good. We have not expressed any reservations with respect to the concept of public good in Bill C-20, but we will have many reservations if the concept is not defined better. We are going to present many amendments in committee in order to establish a clear definition of public good, if it is to stay in the bill.

I have examples of clarifications to be made to the concept of public good. We all agree that the possession of pornographic videos involving children would be considered a criminal offence. However, a psychiatrist specializing in the treatment of pedophiles could justify having such videos in his possession for treatment purposes because his possessing such tapes serves the public good. In this case, the possession of videos is more helpful than harmful.

Another example which I find justified or justifiable concerns the law enforcement agencies specialized in cracking down on child pornography. It seems normal to me that these agencies should have access to a certain amount of material in order to track sexual predators on the web, or Internet, and convict them.

The next example concerns medical research or teaching, police officers for instance, those called on to fight this scourge, what child pornography is all about and how it can be detected, or teaching future psychiatrists and psychologists in university possible treatments for the sexual deviances or perversions affecting child pornographers.

Without going as far as proposing an amendment to the motion of our colleagues from the Canadian Alliance, I would encourage all hon. members to give some thought to what I have said as they reflect on the motion. I encourage them to consider in an open yet in-depth manner this bill, which the justice minister himself described as subject to improvement.

In addition, I encourage the government to be open to constructive amendments from all sides of the House, because we must all work hand in hand, as parliamentarians, in order to eradicate this scourge in our society.

Finally, while the wording may not be the most appropriate, I urge my hon. colleagues to support the motion anyway, because its basic intent is clearly to protect our children. This intent of protecting our children could be acted on by improving the bill brought before us through constructive amendments to ensure that our children, the most precious and vulnerable members of our society, are protected as much as possible, because they represent our future.

[Martin Cauchon, Liberal, Outremont, QC]

Please let me finish.

People are hearing from witnesses. People will have their say as well and the chance to propose some amendments. We do not pretend that the bill is perfect. As I said, we believe it is a fantastic piece of legislation. If we can improve it, we will. I would be more than pleased to have very positive proposals.

However, what I cannot accept and I will never accept is an opposition party that says “no” to passing an important bill such as Bill C-20, when a minister of the crown has asked for it to be passed. Today the opposition members will have to stand up and tell Canadians that they will support Bill C-20. They will do their jobs at the justice committee and if they do not, they will have to explain to Canadians why they have refused to offer the best protection possible for them.