Mr. Speaker, the bill before the House this morning is, in my opinion, of special importance. The initiative of the Minister of Justice to restrict access to child pornography is an important measure and I want to assure the House that the Bloc Quebecois will work very seriously on this issue.
Protecting children is a fundamental principle in a society. Children are our greatest asset and they deserve all our attention and protection. They are the most vulnerable group in our society.
We could have a long debate on pornography in the broad sense of the term. However, in my opinion, child pornography is something that must be completely and fundamentally banned and prohibited, something that we must fight actively and strongly to prevent its spreading.
Not only is child pornography associated with a degrading sexual deviance, it also reflects a sick and degrading state of mind, for consumers, but especially for children.
It is not without a degree of emotion that I rise to address Bill C-20, because I am the father of two young children. I thought about my speech this morning for a long time, and I have been haunted by a terrible thought: what if my two sons fell into the hands of sexual predators or were sexually exploited by such depraved minds? This is why I am taking a particular interest in today's debate.
The Bloc Quebecois supports the principle of Bill C-20, because we feel that the minister's initiative deals with several important aspects of criminal law. It includes new provisions that have become necessary, given the particular nature of today's new technologies.
However, some clauses of Bill C-20 raise important questions, including those dealing with the issue of consent regarding sexual relations.
The Bloc Quebecois hopes to have some witnesses appear to discuss this issue and to examine all its aspects. Of course, we reserve the right and the privilege to move some amendments later on.
Bill C-20 makes fundamental changes two acts, the Criminal Code and the Canada Evidence Act. The government hopes to make a number of amendments to the Criminal Code, particularly to:
(a) amend the child pornography provisions with respect to the type of written material that constitutes child pornography, and with respect to the child pornography defences;
The bill will also:
(b) add a new category to the offence of sexual exploitation of young persons and make additional amendments to further protect children from sexual exploitation;
(c) increase the maximum penalty for child sexual offences—
(d) make child abuse an aggravating factor for the purpose of sentencing;
In the same vein, it is important, under the circumstances, to:
(e) amend and clarify the applicable test and criteria that need to be met for the use of testimonial aids, for excluding the public, for imposing a publication ban, for using video-recorded evidence or for appointing counsel for self-represented accused to conduct a cross-examination of certain witnesses;
And finally, it is important, in terms of the Criminal Code, to
(f) create an offence of voyeurism and the distribution of voyeuristic material.
Bill C-20 “also amends the Canada Evidence Act to abolish the requirement for a competency hearing for children under 14 years of age”.
In order to make the most of the bill's objectives, it is important to carefully assess the law as it current exists. One of the significant concerns that we have deals with consent to sexual relations.
Currently, under the Criminal Code provisions concerning consent to sexual activity, the consent of a person under the age of fourteen is not a defence against charges of a sexual nature, such as sexual abuse, exhibitionism or fondling. This means that persons aged fourteen and older can give their consent.
This provision, as you know, is subject to an exception. The consent of a complainant can be a defence if the latter is between twelve and fourteen years of age, if the accused is more than twelve but under sixteen years of age, if the accused is less than two years older than the complainant and if the accused is not in a position of trust or authority towards the complainant.
Furthermore, a person in a position of trust or authority cannot sexually interfere with a person between the ages of fourteen and seventeen years, even if the minor consents. It is also important to remember that, obviously, child prostitution is illegal in Canada.
These provisions in the Criminal Code have been strongly criticized, namely by the Canadian Alliance, which wanted to change the age of sexual consent to sixteen. Among the arguments advanced in favour of raising the age of consent was that Canada might become a sex tourism destination simply because sexual relations with minors aged fourteen and up are not illegal here.
However, with such stakes, it is essential, urgent and necessary to think clearly. To this end, the Bloc has always been opposed to raising the age of consent to sexual relations. We believe, and let us be clear, that although it is preferable that children aged fourteen and fifteen do not have sex, this is the age that society in general seems willing to tolerate.
Furthermore, you will recall, this is what I said during the debate at second reading on Bill C-215 introduced by the member for Calgary Northeast last November 4.
I also drew attention to the doublespeak by the Canadian Alliance on this issue—and it is important that this be done. In fact, let us remember that during the debate on the Young Offenders Act, Alliance members thought a 14 or 15 year old child was responsible enough to be tried in adult court, but not responsible enough to consent to sexual activity. They were prepared to put this child in prison, because according to them he was criminally responsible, but he was not responsible enough to consent to sexual relations. What doublespeak.
In a different vein, in his proposal, the Minister of Justice creates a new concept of exploitation. Now, an adult will not be able to have sexual relations with a minor if the latter is placed in a position of exploitation with regard to the adult.
The criteria that will be used to determine whether there is exploitation in the relationship are the following: first, the age difference between the person and the young person; second, the evolution of the relationship; and third, the degree of control or influence by the person over the young person.
This may seem complicated. To simplify things, let us look at a specific example. Geneviève is 15 and in a relationship with Gilbert, age 45, whom she met in a bar. Geneviève is not dependant on Gilbert in any way. However, from the beginning of the relationship, Gilbert has showered Geneviève with gifts that are very expensive for a young girl her age. Very soon, Geneviève consents to sexual relations with Gilbert.
In this situation, based on current law, Gilbert is not guilty of any crime. Under the provisions proposed by the minister, Gilbert could be found guilty of an offence under section 153 of the Criminal Code and liable to imprisonment not exceeding ten years. In fact, their age difference is 30 years and the relationship is very recent.
It is important to point out that we have some reservations about these new provisions. First, they create uncertainty regarding the law, and this is never a good thing. A person of full age who has sexual relations with a minor will never be sure whether he or she is committing a criminal offence, since these provisions of the Criminal Code leave a great deal to the interpretation judges will make of the clauses that are proposed today.
This leads us to a second point. A parent who disapproves the sentimental choice of his or her minor child will always have the option of filing a complaint with the police, even though their reasons for doing so are not those anticipated by the legislator. This could add to the legal uncertainty.
Consequently, I reiterate the fact that the Bloc Quebecois is interested in hearing witnesses in committee on this issue. We are prepared to move amendments if necessary.
As I mentioned earlier, the rapid technological changes that have occurred in recent years have made it necessary to make some legislative changes, in order to deal with the new reality.
For example, the electronic cameras that transmit live images on the Internet have raised concerns about possible abuse, including the illegal observation or recording of persons for sexual purposes, or when such observation or recording is a blatant violation of privacy.
This is why the bill proposes to add two new offences to the Criminal Code. The first one would make it a criminal offence, in three specific cases, to deliberately and surreptitiously observe or record another person in circumstances that give rise to a reasonable expectation of privacy. The first case would be when the observation or recording is done for a sexual purpose. The second case would be when the person observed or recorded is in a place in which a person can reasonably be expected to be nude or to be engaged in sexual activity. Finally, the third case would be when the person is nude or is engaged in sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such activity.
So, we are not talking about surveillance cameras in a shopping mall or in a parking lot, but in a place where a person can reasonably expect a minimum of privacy.
The second offence relates to distribution of material when aware that such material has been obtained by commission of the offence of voyeurism. This would also constitute a crime. The maximum sentence for all voyeurism-related offences would be five years imprisonment.
Finally, copies of a recording obtained by the offence of voyeurism for the purpose of sale or distribution could be seized or confiscated. The courts could also order deletion of any voyeuristic material from a computer.
The Bloc Quebecois feels that the legislative provisions relating to voyeurism were made necessary by the proliferation of surveillance cameras and the rapidity of distributing images taken by such cameras, via the Internet for instance.
Consequently, we are in favour of the provisions relating to voyeurism.
Now, let us move on to child pornography. Primarily, the new provisions on child pornography address two different aspects.
On the one hand, the present definition of child pornography applies only to material that advocates or counsels sexual activity with a child. Bill C-20 would expand that definition to include any material that describes prohibited sexual activity with a child where the written description of the activity is the dominant characteristic of the material and is done for a sexual purpose.
These new provisions raise a number of questions. First of all, it must be made clear that possession of child pornography is a crime punishable by five years imprisonment.
The new provision calls for any written material describing sexual activity with a person under the age of 18 to be considered a form of child pornography. Consequently, this would mean that someone who recorded in his personal diary fantasies, sick and twisted as they might be, of sexual relations of this nature would be committing a criminal offence and be liable to five years in prison, even if he or she did not show this document to anyone and no child was in any way involved in creating the document.
First of all, this provision strikes us as a broad one, and tantamount in a way to making thoughts a crime. The Minister of Justice counters that objection, however, by saying that we must interpret these provisions in light of the Supreme Court of Canada judgment in the Sharpe case.
In Sharpe, it is indicated that there are two types of material that must be excluded from the definition of child pornography: first, documents or representations that the accused alone created and retains solely for personal use, for example a diary, and second, visual recordings created by the accused or in which he is represented, which do not depict any illegal sexual activity and which the accused retains solely for personal use.
We find it hard to understand why the Minister of Justice did not integrate these exceptions into the Criminal Code. In fact, their absence will have the effect of creating legal uncertainty, because the Criminal Code will provide, even for an informed reader, a very imprecise definition of child pornography.
We plan to use the hearings of the Standing Committee on Justice and Human Rights to hear witnesses on this issue. Of course, we will move amendments if we believe they are necessary.