Sex Offender Information Registration Act

An Act respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other Acts

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

Sponsor

Wayne Easter  Liberal

Status

Not active, as of Nov. 5, 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.

Criminal CodeGovernment Orders

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.

Sex Offender Information Registration ActGovernment Orders

November 5th, 2003 / 5:20 p.m.
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NDP

Peter Stoffer NDP Sackville—Musquodoboit Valley—Eastern Shore, NS

Mr. Speaker, I rise today in support of Bill C-23 on behalf of my federal NDP colleagues. I would like to mention the great work that my hon. colleague from Churchill, Manitoba has done on this. Also, the long serving member for Regina—Qu'Appelle has done yeoman's work on the proposed legislation. In fact his amendment will ensure that the registry will be reviewed in two years.

After the disaster of the gun registry, we want to ensure that this registry will work in the way it is intended.

I cannot see how anyone can object to this type of legislation when the essence of the bill is to protect children and protect the interests of their families.

Being a family man myself, with two young girls, I know the importance of doing everything we can to ensure that we, as legislators, invoke legislation that has stiff penalties and deterrents in place, but not only on a piece of paper. We have to ensure that our law enforcement officers have the resources, finances and manpower to do the job that we ask them to do.

The House may know that I have a private member's bill in the House of Commons dealing with child Internet pornography. This is a new medium that is luring unsuspecting children to various sites. In terms of Internet pornography, we need to do all that we can to ensure that the most dastardly of dastardly people, these pedophiles, are apprehended and put away so they cannot cause us any more concerns.

It is not just members of Parliament who support this proposed legislation. The great province and the Government of Manitoba, under Gary Doer, support it. In fact I am sure all provincial governments, including territorial representatives and probably aboriginal representatives as well would be very supportive of the bill.

We want the government have the teeth behind the law to ensure the registry does what it is supposed to do. It does no good for me to stand up in the House of Commons and say that these are the great things it will do and then have someone defeat it in a court of law or challenge it. We have to ensure that the law is ironclad. We have to ensure that all those people who have had various concerns with the bill have been heard. We also want to ensure that the bill does not end up on the dead list, as we say, through prorogation. We want to ensure that the Senate has the capability to deal with this and get it passed immediately.

I see the hon. House leader, a gentleman who I respect greatly, although we disagree on many things, nodding his head and telling me to get on with the speech, so I will.

I say quite clearly that we in the NDP support the bill. In two years we will be asking for a review of the legislation to ensure that it has done what it was intended to do, not like the gun registry, Bill C-68. We will not let the government forget that one.

However, we will ensure that this registry does what it is supposed to do, which is to protect children and their families from coast to coast to coast.

Sex Offender Information Registration ActGovernment Orders

November 5th, 2003 / 5:15 p.m.
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Canadian Alliance

Inky Mark Canadian Alliance Dauphin—Swan River, MB

Mr. Speaker, I am pleased to add my comments regarding the very important bill on the sex offender registry. The Progressive Conservative Party supports Bill C-23, but not because it came from the Liberal government. Like many other bills, it seems that we have had to wait forever.

In 1996 President Clinton signed Megan's law which requires notification of sex offenders in neighbourhoods. Following his signature on that law, all 50 states had the authority to implement their own registration requirements for such offenders.

Those whose families or friends have experienced a tragedy of this nature understand why it is important that we keep track of convicted pedophiles. Everyone agrees that our children are very precious to us.

The provinces have been pushing for a registry for a long time. In 1995 my own province of Manitoba created the community notification advisory committee to review cases of convicted sex offenders thought to be at high risk to reoffend. That was eight years ago and it has taken all this time for the federal government to put together a bill dealing with the issue.

There is no doubt that the province of Ontario took the lead in this matter. It set up its own sex offender registry three years ago under a bill dubbed Christopher's law. The bill was named after 11 year old Christopher Stephenson who was murdered by a convicted pedophile who was out on parole.

Statistics show that a vast majority of sex offenders commit their crimes within a two kilometre radius of where they live or work. Many abducted children are killed within 24 hours of being abducted.

Members of Parliament have a duty to ensure that the most vulnerable in our society and their families are protected. That is the biggest concern that has been raised by provincial governments. They want the legislation that comes from the House of Commons to have some teeth.

One of the criticisms about this legislation is the lack of retroactivity. Gord Mackintosh, the minister of justice of my own province, said:

The provinces agree the proposed registry, which is now before Parliament, will be useless for 10 to 20 years because it will be restricted to people who are not sentenced until after the registry becomes law.

He has a point. Are people who have already been convicted not considered a risk to the safety, health and welfare of our children? They certainly are.

Some concerns have been raised by attorneys general from across the country. One concern is about limiting conditional sentences in which offenders serve time at home instead of in jail. They are worried about that. They are worried about who is going to monitor those individuals. Some of them may already be convicted pedophiles. Another concern is about imposing automatic first degree murder charges on suspected child killers. That should take place. Tightening the terms for people to be released on bail is another concern which we have heard many times over. Tougher penalties are also needed for those who kill peace officers. The last concern is about ending preliminary inquiries in court proceedings.

Bill C-23 is a step in the right direction. The Progressive Conservative Party supports the legislation.

Sex Offender Information Registration ActGovernment Orders

November 5th, 2003 / 4:55 p.m.
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Bloc

Jocelyne Girard-Bujold Bloc Jonquière, QC

Madam Speaker, I am pleased to speak this afternoon on Bill C-23.

Before getting into the bill itself, I must congratulate my colleague, the hon. member for Châteauguay, for his excellent work throughout the entire study of Bill C-23. He is laid up at home today, but I want to tip my hat to him and thank him for defending this bill so vigorously on behalf of the Bloc Quebecois.

The Bloc Quebecois is in favour of this bill in principle, given our conviction that a sex offender registry is necessary. We feel it is important to facilitate police investigations into sex crimes, and this is the purpose of the registry.

Two years ago, I introduced a bill here in the House on sexual offences committed by pedophiles on children under the age of 14. At that time I was calling for changes to be made to the Criminal Code with respect to these offences. I introduced a bill again in February 2003 which called for the establishment of a national registry of sex offenders and amendments to the Criminal Code with respect to sex offences against children under the age of 14.

This bill responds in part to what mine was calling for, and I am very pleased to see that. I received a great deal of input from people in my riding whose children had been sexually abused by pedophiles. As well, I heard repeatedly from police officers calling for just such a registry.

We sometimes hear that opposition MPs cannot get any improvements put through on anything. Yet I see my bill has borne fruit, because here we are with Bill C-23.

We do wonder, however, whether this registry, as set out in this bill, is the best way to go about things. We are therefore committed to paying particular attention to the following points.

First, the data must be confidential so that they are sent to police services only for the purpose of investigating crimes of a sexual nature.

Second, we are disappointed by the fact that gravity of the offence and risk of recidivism were not retained as assessment criteria before making registration obligatory, as the Bloc Quebecois had suggested.

Also, we wonder about the cost assessment that was done with respect to implementing such a registry. We are going to monitor this carefully.

Finally, we are going to closely monitor the legal mechanisms used to guarantee the registration of offenders. We have many questions about this.

For the information of the listening public, I would like to say that this bill has 26 clauses. The primary objective of this bill is to help police services investigate crimes of a sexual nature. That is clause 2. This will be accomplished by the sex offender information registry.

According to clause 2 of the bill, the objective can only be attained by complying with certain principles. Information can only be collected for the purpose of investigating crimes of a sexual nature.

Three major principles must be respected and they are found in clauses 2( a ), 2( b ), and 2( c ). Information must be rapidly accessible and reliable, and its collection must strike a balance between the privacy interests of the sex offender and the public interest.

These principles must also take into account respect for the confidentiality of the information collected.

Under clause 2(2)( c )(i), the information may be collected only if there are reasonable grounds to suspect that the crimes are of a sexual nature.

Clause 2(2)( c )(ii) restricts access to the registry, and the use and disclosure of information.

The government has decided to amend its own bill to replace “reasonable grounds to believe” with “reasonable grounds to suspect”.

We are categorically opposed to this change, which gives unlimited powers by substantially lightening the burden of proof.

Clauses 4 and 7 of this bill deal with the obligations of sex offenders. Clause 4(2) states that they shall report by themselves within 15 days. These are rules that sex offenders will have to comply with; it is very important to set them out because this will have to be part of the registration process.

Under clause 4(2)( a ), offenders have to report within 15 days after the order is made, if they are convicted of the offence but are not given a custodial sentence.

Under clause 4(2)( b ), offenders have to report within 15 days after they receive an absolute or conditional discharge, if they are found not criminally responsible on account of mental disorder; under clause 4(2)( c ), after they are released from custody pending the determination of an appeal; and under clause 4(2)( d ), after they are released from custody.

Clause 4.1 provides for subsequent registration after a change in residence. That is normal practice. This way, if an offender moves to another part of Quebec or Canada, he or she can be located.

Officers have told me that, often, when there was a sex offender in a specific jurisdiction whom the police recognized, the offender moved out of their jurisdiction and they lost track of him because there was no registry.

The offender could then commit offences and not be located quickly. This clause will avoid that. It will also give the police faster tools to better protect the public and those who have been sexually assaulted, be they young people or adults. I think that clause 4(1) raises a very important point.

Clause 5 sets out the information to be provided by sex offenders: their given name and surname, date of birth and gender, address of residence and work, as well as telephone, cell phone or pager number.

The sex offender must also provide the person collecting information with a description of any identifying physical characteristics; if he has a mole somewhere, it must be recorded. He must disclose the facts. If he has a physical handicap, that too must be recorded. The more details that are provided, the more quickly the police will be able to arrest him if need be.

Clause 6 covers notice to the authorities if the sex offender leaves the area in which his main residence is located, and how that notice is to be given.

The duties of the person who collects and registers information are described in clauses 8 to 12 of Bill C-23.

The person will enter the sex offender's information into the database without delay, while ensuring confidentiality of the data.

That is very important. The offender has the right to obtain a copy of the information about him in the registry. This will all be quite transparent. That is only right because, after all, the offender is making disclosures, and one is normally entitled to a copy of the information one discloses.

Thus, he has the right to obtain a copy of the information about him in the registry free of charge, or to be sent a copy in the mail, in accordance with clause 12(1).

In addition, the person who receives information must make appropriate corrections. As I was saying, if the offender moves to a different area, region or province, he must inform the registry office to have the appropriate changes made.

I would have liked to provide our listeners with more information. However, I shall simply sum up the Bloc's position.

As I said at the beginning, the Bloc Quebecois is in favour of this bill in principle.

We are convinced of the importance of establishing a registry of sex offenders. Still, there are points we shall be watching very closely when this bill becomes law. I want to emphasize this, in order to ensure that this registry meets the need for which it was created.

Also, there are costs. We know what happened with the firearms registry. It was supposed to cost several million and now it is up to nearly a billion dollars.

The Bloc Quebecois will be watching the enforcement and cost very closely. In addition, the Bloc Quebecois wants to ensure that confidentiality is respected, and that the Charter of Rights and Freedoms is respected.

Sex Offender Information Registration ActGovernment Orders

November 5th, 2003 / 4:40 p.m.
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Notre-Dame-de-Grâce—Lachine Québec

Liberal

Marlene Jennings LiberalParliamentary Secretary to the Solicitor General of Canada

Madam Speaker, it is an honour for me to rise in the House to take part in the debate on Bill C-23.

I am pleased to rise at third reading to speak in support of the government's Bill C-23. The bill would create a new act of Parliament, the sex offender information registration act, and would make important amendments to the Criminal Code of Canada.

Together, these provisions would bring into place a national sex offender registry for use by all our provincial and territorial partners. As many of my colleagues in the House will know, provincial premiers have unanimously called upon the federal government to assist them in creating a seamless registration system. A system that includes every jurisdiction would ensure a consistent approach across the country. This is so important.

The national sex offender registry that I am referring to would have three key separate components, the first one being the legislation that I speak about today. It properly should emanate from the Parliament of Canada so that the system will be a truly national system in scope and consistent from place to place across the country.

The second component is a national database that will be operated by the RCMP on behalf of all police agencies for their use.

The third component will be the administration and enforcement of the registration system by law enforcement agencies everywhere across Canada.

These elements combine to create an important new tool to assist police in the investigation of sexual offences committed by unknown persons. It would allow police to quickly consult the registry, to search its contents using established criteria and to develop possible suspects in the vicinity of the crime, or to eliminate potential suspects.

I say “quickly” quite purposefully because this is the essence of the system. Police have always recognized that when children are abducted, usually for a sexual purpose, and then murdered, that tragic ending usually happens within the first hours of the abduction.

Unfortunately, all is lost even when the crime is eventually solved, unless police can move quickly. The sex offender information registration act would allow our police to move rapidly to determine whether convicted sex offenders reside in the vicinity of the offence, to determine who they are, where they reside and to quickly decide if further investigation is warranted or if those individuals can be eliminated as suspects.

In brief, here is how the system would work. Following conviction and sentencing for one of the designated offences listed in the Criminal Code amendments, such as sexual assault, child pornography or sexual exploitation, the crown would be able apply to the court for a registration order. Registration would occur for sexual offences. For other offences where there is clearly a sexual component, registration would occur when the crown proves beyond a reasonable doubt that the act was committed with the intent to commit one of the designated sexual offences. The offender would have the right to appeal the order.

Once a court has ordered registration, notice would be provided to the offender requiring him or her to register in person at a designated registration centre with 15 days after the order is made or release from custody. The registration period would begin on the day the order was made and re-registration would be required once per year, as well as within 15 days of a change of name or residence. If the offender were absent from his home address for more than 15 continuous days, the registration centre would have to be notified.

Sex offenders would be required to remain registered for one of three periods. These periods would be geared to the maximum penalty available for the offence for which they were convicted: 10 years registration for summary conviction offences and offences with two and five year maximums; 20 years registration for offences carrying a 10 or 14 year maximum sentence; and finally, lifetime registration for offences with a maximum life sentence or when there is a prior conviction for a sex offence.

If the offender were to receive more than one registration order, the most recent order would determine the reporting date and would override previous orders. However the review period eligibility would be calculated from the date of the first order if it is still active.

Offenders would be required to provide local police and to keep current certain information, such as addresses, telephone numbers, date of birth, given name, surname, alias or aliases, and identifying marks and tattoos. And on subsequent occasions, when they attend at the registration centre, they would be obligated to update any of the information about themselves that is contained on the registry.

Under the proposed legislation, persons authorized to register information must collect only the information pertaining to the offence and resulting order. Information should be registered in the sex offender database without delay and treated confidentially. The sex offender would be able to request correction of information in the case of an error or omission.

Sex offender information would remain on the database indefinitely, except for final acquittal on appeal or free pardon under the Royal Prerogative of Mercy or the Criminal Code. In these cases, information is permanently removed.

The government is aware that this new police tool could be life saving but it is also an extreme intrusion into the lives of those who would be subject to the registration. Most will remain registered long after they have completed the sentence of the court and most, in fact 65% after 30 years, will not again be convicted of a similar offence. For those who are making a sincere effort to lead a law-abiding life, their efforts should not be cancelled out by the stigma of registration. Consequently, there is no provision in the legislation for public access to the registry.

Access to registry data, except by authorized persons for sanctioned purposes, would be prohibited and criminal penalties are provided for misuse of the data. Public protection, which is the central purpose of the registration scheme, would be provided by police through their strategic use of the information. In other jurisdictions, particularly to the south of us, public access has often led to misuse and misunderstanding that mistakenly alarms the public, sometimes even resulting in acts of vigilantism.

In those states south of the border that allow public access to sex offender registry information, more than 20 have been ordered by the courts to either cease operation or to introduce elaborate safeguards to prevent abuse. In a number of cases south of the border, boards or tribunals have been ordered established by the courts by which each case must be individually assessed to justify inclusion on the registry.

Here in Canada, we do things differently. We have a Charter of Rights and Freedoms and when we put in place national schemes we attempt to ensure that those schemes are based on those rights and that those rights are protected.

We and our provincial and territorial partners unanimously agreed to avoid such disruption by providing a judicial process and procedural safeguards, and by strictly limiting those persons and the purposes for which access to registry information would be allowed under the legislation.

The safeguards that are provided in Bill C-23 have been carefully crafted in collaboration with our provincial and territorial governments. They provide for a fair and equitable system, while at the same time, an effective and efficient system. They will help prevent a successful court challenge that would reduce or eliminate the scheme due to its undue impact on the rights and liberties of these registrants without compromising the registry's effectiveness.

Persons whose convictions would normally lead to registration would have an opportunity to defend themselves against this presumption in court. Upon application by a crown attorney, the individual would be able to argue that placing his or her information on a registry would be “grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature”. Moreover, these same persons would be given further opportunities to make out this defence after 5, 10 or 20 years of registration have elapsed. They would also have the entitlement to apply for a termination order after receiving a pardon under the Criminal Records Act.

These safeguards would not only protect the rights of these persons against unreasonable inclusion in the registry, they would prevent the Canadian Charter of Rights and Freedoms from being used as a device to have the whole scheme set aside by the courts.

The important thing about this legislation is that it would set into place a national registration scheme that all the provincial and territorial governments agreed to in the fall of 2002. However there was not consensus as to those individuals who should be included on the sex offender registry. Therefore, at the time that the government originally tabled the bill in the House in December 2002, it would have only included those sex offenders who were convicted after royal assent and proclamation of the legislation.

However the federal government committed to continue to work with its provincial and territorial partners to determine if a consensus and a scheme could be built to bring retroactivity. In June the government announced that it had found consensus to include the Ontario sex offender registry information, which was partial retroactivity.

The government's commitment was such that it continued discussions with the provincial and territorial governments through their ministers, and happily, early this fall there was unanimous agreement to include any sex offenders who were still serving a sentence, whether in penitentiaries or prisons or in the larger community. If their warrants have not expired when this bill comes into force, they will be included. I am really pleased about that. I think many Canadians will be pleased with that and I think my colleague across the way are pleased with that.

I ask and I hope all my colleagues in the House will support Bill C-23, the sex offender information registration act, when votes are called.

Business of the HouseOral Question Period

October 30th, 2003 / 3 p.m.
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Glengarry—Prescott—Russell Ontario

Liberal

Don Boudria LiberalMinister of State and Leader of the Government in the House of Commons

Mr. Speaker, this afternoon we will return to consideration of Bill C-32, the Criminal Code amendments, followed by Bill C-54. If we get through this, we will proceed to consideration of Bills C-19 and C-6, two bills on first nations. If we have time, we will also look at Bill C-51.

If that is a bit too ambitious, the first item for consideration tomorrow will be Bill C-6, the specific claims legislation. After oral question period, we will come back to Bill C-54, which we debated this morning, concerning fiscal arrangements. If there is time, this will be followed by Bill C-46, the market fraud bill, and Bills C-19, on first nations, and S-13, concerning the Statistics Act.

Next week, we will continue to consider bills that have not been completed, beginning on Monday with Bill C-46, on financial institutions. We will add to that list Bill C-23, the sexual offenders legislation.

By mid-week, we hope to be in a position to consider Bill C-52, the radio communications bill, and Bill C-20, the child protection legislation, as mentioned by the Minister of Justice during oral question period.

Committees of the HouseRoutine Proceedings

October 29th, 2003 / 3:15 p.m.
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Liberal

Andy Scott Liberal Fredericton, NB

Mr. Speaker, I have the honour to present, in both official languages, the sixth report of the Standing Committee on Justice and Human Rights.

Pursuant to its order of reference of Tuesday, April 8, 2003, your committee has considered Bill C-23, an act respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other Acts, and agreed to report it with amendment.

I also have the honour to present, in both official languages, the seventh report of the Standing Committee on Justice and Human Rights.

Pursuant to its order of reference of Wednesday, October 8, 2003, your committee has considered Bill C-46, an act to amend the Criminal Code (capital markets fraud and evidence-gathering), and has agreed to report it without amendment.

SupplyGovernment Orders

October 28th, 2003 / 3:35 p.m.
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Canadian Alliance

Kevin Sorenson Canadian Alliance Crowfoot, AB

Mr. Speaker, I rise today to partake in this debate sponsored by the Canadian Alliance regarding the elimination of all defences for the possession of child pornography.

I am confident that members on all sides of the House and all parties would agree that there is probably nothing more important in their lives than their children or grandchildren. Therefore, the debate today is very important. It is urgent, given that the House, as rumoured, may recess fairly soon and motions such as this will no longer be able to be debated or discussed.

The period of time available to the House to pass necessary pieces of legislation such as Bill C-20 or Bill C-23, the national sex offender registry, is rapidly running out.

We have less than two weeks to ensure that important bills, bills aimed at protecting our children, are enacted before the business of this country is put on hold because we have one Prime Minister who is on his way out to make room for another Prime Minister who is on his way in. Basically, the House will recess early because of the turmoil and disarray in which the government finds itself in the middle of this shuffle.

Bill C-20 has yet to be reported on by the committee. It falls far short of the official opposition's expectations. It fails to adequately protect our children from sexual exploitation, abuse, neglect, and falling victim to child pornography or pornographers. In fact, it falls short of almost everyone's expectations, including those who are on the opposite side of the issue dealing with Bill C-20.

In a submission to the justice committee, the Canadian Bar Association stated that the wording was vague and could be challenged on constitutional grounds. The Canadian Bar Association suggested that Bill C-20 be sent back to the drawing board.

Bill C-20 deals with child pornography, voyeurism and exploitation. It deals with all those issues that we are debating here today.

Meanwhile, those of us on the other side of the issue are concerned about the justice minister's failure to eliminate all legal loopholes that wrongfully justify the criminal possession of child pornography.

Instead, the Minister of Justice has devised a catch-all defence. The Liberal minister has effectively combined a number of defences, including artistic merit in the broadly interpreted defence of public good. This was in direct response to the Supreme Court's consideration of public good in the decision of Regina v. Sharpe.

If Bill C-20 passes, anyone arrested for the possession of child pornography may use what the government considers a narrower defence: the defence within the public good. This replaces the defence of the possessing of child pornography for reasons of artistic merit, educational, scientific or medical reasons and the public good. It has taken that and shrunk it down, but in reality it has become much more broader.

In Regina v. Sharpe, the Supreme Court of Canada found that public good could be interpreted to be necessary or advantageous to the pursuit of science, literature, or art, or other objects of general interest. Here, the court was saying that there is a place for it in literature or in art.

Quite obviously, for all intents and purposes, the defence of public good can and will be interpreted to still include the defence of artistic merit. Therefore, nothing really changes in this bill. Nothing really changes from the current status, except that our courts now will become even further inundated with trials and cases.

These cases will only serve to add to the backlog that is currently clogging our courts, while defence lawyers argue about what does and what does not constitute public good or artistic merit or any of the above.

The Ontario Office for Victims of Crime pointed out the following in its brief to the justice committee only a couple of weeks ago:

Clearly, in order to prevent the expanded legality of possession of child porn, Parliament must craft precise legislation supported by an explicit description of its rationale for doing so in the preamble of the bill. The legislation should attempt to respond to all of the potential “defences” generated by the Supreme Court of Canada or Canadians can look forward to an ever-increasing legalization of child porn possession and use. As expert evidence accepted by the Supreme Court makes clear, that translates directly to increased threat to children.

Bill C-20 is coming forward. There are different groups. One group is in favour of maintaining artistic merit. Many groups, civil liberties and those types of groups, say that the bill would open the door and it is not what they want because it is vague.

We have those who deal specifically with victims who stand back and say that Bill C-20 would not help combat child pornography. The threat would increase and the use and the legalization of child porn would increase.

I implore the government to listen to the victims groups. I implore the government to do everything within its power to stop the proliferation of child pornography, especially as we have seen it unfold over the Internet.

As a member of the Standing Committee on Justice and Human Rights, I have been privy to the debates, presentations, opinions, testimonies and to the witnesses on both sides of the issue. Regrettably, I have also been privy to police files that contained literally thousands and sometimes tens of thousands of absolutely degrading and sickening pictures of child pornography.

Pictures were shown by Sergeant Detective Paul Gillespie to a group of members of Parliament but also by the RCMP. Paul Gillespie gave a presentation about the need to help solve the epidemic problem of child pornography. He is with the Toronto sex crime unit. These pictures were unimaginable. They were so horrible and so revolting that a number of members of Parliament left the room. Others looked away not wanting to be privy to seeing the pictures that were put on the screen.

I felt absolutely nauseated thinking about the innocent and vulnerable children all across this country who were being criminally exploited by society's most perverse and sadistic criminals who, under Bill C-20, will not be subjected to sentences that fit the crime because the legislation does not seek to increase maximum sentences for child related offences, nor does it impose any minimum sentences.

When was the last time we saw a judge impose the maximum sentence on any type of criminal offence dealing with pornography? We do not see it. To increase maximum sentences is not the answer to anything. When we are dealing with child pornography, Bill C-20 does not impose minimum sentences.

It effectively means that pedophiles can and will continue to receive fines and conditional sentences, and no jail time. Sadistic types of pornography are being passed on the Internet and the perpetrators get a slap on the wrist. They are told not to do it again and to stay home. It is unacceptable.

Nothing within Bill C-20 would prevent judges from handing out conditional sentences or fines to offenders convicted of possessing or distributing child pornography.

In my opinion, those who possess and seek to possess child pornography are every bit as guilty of committing a crime against a child as those who take the pictures. Therefore, they should be sentenced to minimum terms in prison for committing the offence of aiding and abetting the abuse, torture or sexual exploitation. This opinion is shared by police officers throughout the country.

It was my pleasure today to stand with Staff Inspector Bruce Smollet, the officer in charge of Toronto's sex crime unit, during today's press conference commending him and the entire Toronto police force for their outstanding work and their commitment to public protection.

Under the excellent leadership of Police Chief Julian Fantino, the entire Toronto police force has done an exemplary job of fighting a crime that is becoming much more prevalent in this nation. It is not only in urban areas but in rural areas as well because it can be ushered straight into homes via the Internet.

SupplyGovernment Orders

October 28th, 2003 / 3 p.m.
See context

Liberal

Dan McTeague Liberal Pickering—Ajax—Uxbridge, ON

Mr. Speaker, the hon. member for Wild Rose ought to know that the member for Mississauga South had to conduct an interview this afternoon on yet another controversial issue, that being the issue of stem cells.

We are dealing with a number of very tough and substantive issues, issues which no doubt will be current not only today but certainly down the road.

I want to thank the opposition for bringing this motion forward. It is not very often we find that members on both sides of the House can agree to an initiative. The wording of the motion itself is not only commendable but indeed quite supportable.

While I say this, there have been some steps that have been taken by the government. Some would treat them as baby steps but nevertheless they are important steps on the issue of child pornography, which probably is the most serious issue confronting this nation today. We have been able to move ahead with Bill C-20 and Bill C-23 and pass Bill C-15, which among other things moved a step closer to ensuring that Internet service providers would have to retain data. Those are some of the measures that have been taken.

For the sake of the debate, I would like to point out that this is not a new issue. I applaud the member for bringing this motion forward and speaking to it very proudly. Not too long ago it was that member who led a committee of several members of Parliament to attend what was supposed to be a one hour session on the epidemic of child pornography and the scourge that exists not only around the world but also here in Canada.

The shocking pictures referred to a little earlier were the same pictures that I had seen when I had the opportunity of working with Detective Sergeant Paul Gillespie and Detective Sergeant Bob Matthews of the OPP. I know they are in very good hands with the work now of Detective Sergeant Bruce Smollett and Detective Sergeant Paul Gillespie.

A number of initiatives must come of this motion. It is clear that there is sufficient support for the motion. I would be very surprised that there would be any attempt to water down what is otherwise a motion that must serve as a constant reminder of the most serious problem that confronts our nation.

The hon. member for Wild Rose will remember that we put together an issues and options paper. In the few minutes that have been given to me, I want to go through several of the items that I think would be cause for where we go after the motion is passed. Hopefully there will be time left in our parliamentary agenda and calendar to fulfill those.

We said that the age of consent should be raised from 14 to 16, while maintaining the close in age exemption. This would amend section 150 to substitute 16 for 14. We would also retain the age of 18 as a consent for trust relationships.

We dealt with the issue of artistic merit. Section 163.1(6) as currently expressed by the Supreme Court of Canada in the Sharpe decision exempts child pornography clearly harmful to children as the subject of criminal prosecution.

Our solution at the time, and I believe we had support from all parties, was to eliminate the defence of artistic merit and that the definition of child pornography be included as part of the hate crimes section 319.

In my view, that would be the way in which we try to address this very serious issue.

I think where the government has certainly come a long way is to deal with section 163, to apply a community standards test similar to the Butler case. I will not get into the specifics of that.

Another issue, which would not be news to some colleagues, was the requirement that written child pornography be found to advocate or counsel illegal sexual activity with children permits the exclusion of child pornography that is harmful to children from being the subject of criminal prosecution.

It was felt that if we added “a prominent characteristic of which is the description of sexual activity between a person under the age of 18 and an adult, the primary purpose of which is for sexual gratification of an adult or which poses a risk of harm to a child”, that would serve the test.

We know that in the same decision on Sharpe, the Supreme Court of Canada permitted a number of exemptions. I believe that some of them are downright wrong and must be reviewed by Parliament.

The “private recordings of unlawful sexual activity privately held for personal use” invented by the Supreme Court of Canada permits subsequent exploitation of persons recorded who no longer consent to the use and, given the disparity of age permissible, permits ongoing exploitation of children under 18, or 16, by adults.

Our view on this is to restrict such exceptions to recordings between persons under 18, not engaged in explicit sexual activity involving disclosure, clearly indicating both knowledge and consent that the activity is being recorded, not kept in a manner where it is capable of distribution to others, and the possession is for the exclusive personal of the person in possession of it.

Another issue is one that we also tackled that evening--many of these things were by consent--the expressive material exemption, again an exemption to what is otherwise unlawfully expressed child pornography and invented again by the Supreme Court of Canada, is capable of being used to permit material harmful to children to be created and possessed, including animated, computer generated, morphed images, mixed and edited videos, and audio recordings mixed with the above. We felt that it was important to eliminate the personally possessed expressive material defence whenever that should pose a harm to children. I note that the government has done this in some of its legislation.

Perhaps the most controversial but nevertheless most important issue from a police resource perspective is the Stinchcombe decision. The Supreme Court of Canada some time ago imposed rules of disclosure that necessitate police providing copies of every image seized from an offender, frequently in the tens of thousands and more as a result of the Internet and the nature of sexual deviance, thus needlessly depleting resources, delaying prosecutions and potentially disseminating material harmful to children. It is our view that a simple way to achieve this would be similar to how it is done with drugs, and that is simply to get a sample and admit that as evidence, and that could be written in as opposed to going through every single issue.

Another issue is the whole area of lawful access, and I know that the only people who will buzz to that are obviously people in the police community and those in the justice department, who I hope will be listening to this. It is clear that Canada is losing the battle with evolving technologies. We simply do not have the ability when people are using various forms of encryption, new technologies and disposable telephones, you name it. The government needs to proceed with binding and effective legislation that allows police modern and up to date information.

Also, and I should point out that this is a critical point, if we want to beat the child pornographers and stop the 40% of people who see this material and go on to offend against and exploit children, as is currently the convention in this country, then the way in which we do that, I would submit very honestly, is to ensure that if an Internet service provider or, for this case, a company that is involved in the use of telephone lines, should provide the information to lawful and local authorities, it should be based on warrant. They should not be charged the going rates. This is not about making money. This is about protecting children. It is time that the telephone companies and those involved in communications get on board. We do need that.

I know that only a few minutes on this very important question will be provided to me. I do want to issue the challenge again to all colleagues to hear the voices of those who believe that we do need to amend the definition of primary designated offence and provide for the taking of DNA samples. This should, in my view, of course be retroactive. That may be impossible to do, but we must start that as soon as possible.

Sentences imposed for crimes involving child pornography are disproportionately low for the harm they cause and the risks posed to children. In my view, and indeed I think in the view of the majority in the House, we should create a mandatory minimum penalty for second or subsequent offences under section 163.1. That would of course allow as well the opportunity to create a mandatory consecutive penalty akin to section 82.1 for firearms, for conviction of an offence under section 163 or committed in conjunction with another sexual crime, or committed while on parole for sexual crime against a child under the same section.

I believe that some of these bills and some of the ideas that we have talked about for some time would go a long way. I cannot think of a better opportunity we would have for all of us at some stage to understand that if we are to take seriously the protection and the safeguarding of this country's most precious constituency, the laws that we have in this country are of no force or effect or in fact of no meaning if we cannot protect those who eventually will assume the very burden of making this a greater nation.

Young people in the tens of thousands from around the world are only faces. We cannot put names to those faces. We understand the concerns that have been raised by those who say we need to have a balance, but the balance must not come at the expense of rewriting our charter. We have a Charter of Rights and Freedoms, but I ask the House, whose rights are we to protect and whose freedoms are we to safeguard? It is very clear to all in the House and to any ordinary individual that the benefit of the doubt must always inure to those who are the most vulnerable and least in a position to defend themselves.

The exploitation we are talking about is all the more important given the advancements in technology, the ability within a nanosecond to transmit a face around the world. The Internet, Interpol and a number of agencies have been involved with trying to make sure that a document about a certain activity and a behaviour that is occurring in Canada is not simply sent to the country or sent to a few agencies around our great nation, but that in fact those police forces and those agencies involved would have the resources to be able to understand, to disseminate and to make sure that we protect children.

That is the bottom line. I thank the House for the motion.

SupplyGovernment Orders

October 28th, 2003 / 12:50 p.m.
See context

Notre-Dame-de-Grâce—Lachine Québec

Liberal

Marlene Jennings LiberalParliamentary 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.

SupplyGovernment Orders

October 28th, 2003 / noon
See context

NDP

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.

SupplyGovernment Orders

October 28th, 2003 / 11:30 a.m.
See context

Canadian Alliance

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.

Sex Offender RegistryOral Question Period

September 30th, 2003 / 2:35 p.m.
See context

Notre-Dame-de-Grâce—Lachine Québec

Liberal

Marlene Jennings LiberalParliamentary Secretary to the Solicitor General of Canada

Mr. Speaker, in the interest of fact, the member should recall that in Calgary on November 6, 2002, the federal, provincial and territorial ministers approved the registration scheme as set out in Bill C-23.

The bill was then tabled in the House on December 11, 2002. When the hon. member says there was no consensus, he is not stating the facts. The fact is there was a consensus.

Sex Offender RegistryOral Question Period

September 30th, 2003 / 2:35 p.m.
See context

Notre-Dame-de-Grâce—Lachine Québec

Liberal

Marlene Jennings LiberalParliamentary Secretary to the Solicitor General of Canada

Mr. Speaker, the hon. member on the other side knows very well that Bill C-23, the sex offender registry, was based on a consensus of all federal, provincial and territorial ministers.

They are meeting this week and should all the jurisdictions come to a conclusion that there should be retroactivity, the Solicitor General is more than open to discussing it, but all jurisdictions will have to agree.

PetitionsRoutine Proceedings

September 19th, 2003 / 12:10 p.m.
See context

Canadian Alliance

Jay Hill Canadian Alliance Prince George—Peace River, BC

Mr. Speaker, my second petition is from rural constituents in the communities of Buick and Cecil Lake.

These petitioners note that an effective national sex offender registry would be an invaluable resource that would assist police agencies with the investigation of sex crimes.

The petitioners note that provisions contained in the current government Bill C-23 are insufficient because they are neither compulsory nor retroactive.

Therefore, the petitioners call upon Parliament to pass legislation that would create an effective sex offender registry that would automatically include the names of all sex offenders in Canada.