Bill C-12 (Historical)

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

Criminal Code

[Susan Whelan, Liberal, Essex, ON]

Madam Speaker, today I rise to speak in favour of Bill C-12 and to oppose the motion to delete clause 7 of the bill.

Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, supports the government's commitment announced in the Speech from the Throne to better protect children against sexual exploitation.

I would like to quote the preamble of Bill C-12, which provides:

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

I am quite certain that this is a concern that all hon. members share, so I appreciate the opportunity to speak to the bill today. I would like to highlight criminal law reforms in Bill C-12. It proposes reforms in five key areas.

First, it proposes to strengthen the existing child pornography provisions by broadening the definition of written child pornography and narrowing the existing defences to one defence of public good and imposing a harms based test.

Second, it seeks to provide better protection for young persons against sexual exploitation.

Third, Bill C-12 proposes to increase penalties for offences against children.

Fourth, it seeks to facilitate testimony by child and other vulnerable victims and witnesses.

Last, it proposes the creation of a new offence or voyeurism to better protect Canadians against the surreptitious viewing or recording of a person in circumstances that give rise to a reasonable expectation of privacy.

The motion before us seeks to delete two child pornography reforms proposed by Bill C-12. In other words, the motion proposes to maintain our current child pornography laws, including how they have been interpreted and applied in the well known child pornography case involving Robin Sharpe.

In contrast, however, Bill C-12 seeks to change the laws as they were interpreted and applied in the Sharpe case. Bill C-12 proposes two child pornography amendments.

First, it proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the predominant characteristic of the material and it is done for a sexual purpose.

Second, Bill C-12 proposes to narrow the existing defences into one defence of public good, a term that is now specifically defined in the bill.

As I understand this proposed reform, it would mean that no accused would have a defence for any child pornography offence where the material or act in question does not serve the public good or where it exceeds or goes beyond what serves the public good.

To me, these are very important reforms. I welcome them because they reflect what most Canadians believe, namely that written stories that are primarily describing acts of sexual abuse of children and that are written for a sexual purpose are in fact child pornography and should be prohibited.

I also believe that Canadians understand that police officers and prosecutors, for example, need to be able to possess and share child pornography for purposes related to the criminal investigation and prosecution of a child pornography case. Canadians understand that doctors may need to possess child pornography to help treat offenders. Canadians also understand that a film that laments that sexual abuse of a child or a documentary that is an exposé of a child sex abuse ring can also serve the public good.

We understand this and we expect the law to protect them, and that is what Bill C-12 does.

What Canadians do not understand is any attempt to provide Canadian children with less protection against child pornography. Unfortunately, that is exactly what this motion before us proposes. It proposes to give more protection to child pornographers and less protection to our children. That is why I cannot support this motion.

[John Herron, Progressive Conservative, Fundy Royal, NB]

Madam Speaker, I would like to make a few remarks pertaining to this piece of legislation. I was unable to do it in its previous incarnation as Bill C-20. I am here to speak to different aspects of the legislation but one aspect in particular.

Shortly after being elected for the first time in 1997 a constituent of mine came to my office. She told me a story about her daughter and an incident which took place on Labour Day weekend in 1994. The woman on whose behalf I am speaking today is Julia Buote.

On Labour Day weekend in 1994 Mrs. Buote's daughter was taking a bath when she discovered a video camera hidden in a hole in the wall underneath the faucet. It was determined later on that the video camera had been put in place by the young woman's then stepfather, to spy on her in the bathtub, in a state of undress. After she noticed the camera, the RCMP was approached but the Crown could not press charges because secretly videotaping someone in a state of undress is not a crime in Canada.

Mrs. Buote has been on a crusade, not only on behalf of the injustice that occurred with respect to her own daughter, but to ensure that this invasion of privacy in a very personal way would never happen again.

Mrs. Buote was recently quoted in the Telegraph-Journal . She asked me where Bill C-20 was and where the issue of voyeurism was and what was happening with the law in Canada.

I wrote a letter to the newly minted Minister of Justice and said that regardless of whether there were flaws in the particular act, there was clearly some good. I encouraged the minister at that time to bring the bill back as early as possible.

I will share with members some of Mrs. Buote's comments. She said, “If it had happened to one of their family members,” meaning members of Parliament, “it would have been in place long ago. I am hoping that this will make them aware that this is something they have to act on and put through. If there was a way I could sue the government right now, I would, because I feel 10 years is too long for them to be dragging their heels on this. There have to be others; my daughter was not the only one”.

She went on to say that she knows that the law in fact would not be retroactive. However, she did say, “It would change the fact that it is acknowledged as being a crime, and that it is not something that was okay to happen. Right now, it is something that is acceptable, as far as the law is concerned. So it would just give the feeling that well, okay, this is something that is against the law. My daughter did the right thing coming to me, and I did do the right thing, and finally, there is hope there for other people it happens to”.

The remarks I am making with respect to the legislation, the cornerstone of the bill, most of the remarks that I heard throughout the debate, have been that we needed to tighten the artistic merit component that evolved from the Robin Sharpe case. For me, if child pornography exists, by its very nature it means that a child has been abused. Some individuals may challenge the artistic merit aspect of it to want to have exceptions in that regard. I applaud the government for using the common good approach with respect to trying to tighten the legislation to ensure that more children are not susceptible to harm.

I am the proud father of a three and a half year old and an 18 month old, and I am looking after my own children here as well. In speaking here today, I hope I am ponying up for all young children wherever they reside in this great nation.

I accept the consensus that has been expressed by most members of Parliament that this legislation does tighten up the heinous loophole that existed in the Sharpe case. The bill is an improvement in the toolkit that we have right now.

I acknowledge the efforts by the members of the Conservative Party who want to push this envelope. They may even have a difference of opinion, but that is the role of the opposition as well. It is to send the signal that we need the strongest piece of legislation possible in order to remedy this type of issue.

I am speaking on behalf of Julia Buote and her daughter. This piece of legislation must pass. To be quite frank, it is almost inconceivable that an incident such as that which occurred to Mrs. Buote's daughter was seen as just that, an incident. It was not seen as a crime.

We need this type of legislation even more so today than we did 10 years ago when Mrs. Buote started her crusade to protect young men and women. Because of the advances in technology, and that actually sounds counterintuitive, but in terms of the existing technologies in wiring and cameras, this type of voyeurism is ubiquitous. It is omnipresent. It is our duty to ensure that our legislation is modernized to keep up with those advances because sometimes those advances are used in a heinous and draconian way which harm individuals.

I will be supporting this revised piece of legislation, Bill C-12. I will acknowledge that some individuals say that this legislation needs to be stronger and I will share their concerns about the artistic merit aspect of it as well. However, I believe the consensus approach that the government has taken right now is an improvement to at least squeeze that loophole even more with respect to the Sharpe case. Perhaps more can be done, but we cannot kill this legislation. We cannot allow individuals to be subjected to the same types of crimes, such as that experienced by Mrs. Buote's daughter, that were called mere incidents.

[Andrew Telegdi, Liberal, Parliamentary Secretary to the Prime Minister (Aboriginal Affairs)]

Madam Speaker, I rise today to oppose the motion that seeks to delete clause 7 of Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

Bill C-12 proposes important criminal law reforms that seek to better protect children against sexual exploitation, abuse and neglect. It proposes reforms that would facilitate testimony by child victims and witnesses, and other vulnerable victims and witnesses, in criminal justice proceedings. It also proposes the creation of a new offence of voyeurism.

Clause 7 of Bill C-12 proposes two child pornography amendments that respond in a very direct and meaningful way to the issues highlighted by the Robin Sharpe case.

First, Bill C-12 proposes to broaden the definition of written child pornography. Currently, written child pornography is defined as written material that advocates or counsels sexual activity with a young person under the age of 18 years that would be an offence under the Criminal Code.

In its January 2001 decision in the Sharpe case, the Supreme Court of Canada interpreted the existing definition and its requirement that written material advocate or counsel as meaning material, when objectively viewed, that actively induces or encourages the commission of a sexual offence against a child.

Bill C-12 proposes to broaden this definition to also include written material that describes the sexual abuse of a child where the written description of that abuse is the dominant characteristic of the material and the written description is done for a sexual purpose.

This proposed amendment reflects Canadians' belief that these types of written materials pose a real risk of harm to our children and society by portraying children as a class as objects for sexual exploitation. This motion says that such materials are acceptable. Bill C-12 clearly says they are not.

Bill C-12 also proposes to amend the existing defences for child pornography. Currently, the Criminal Code provides a defence for material that has artistic merit or an educational, scientific or medical purpose. It also makes the public good defence available for all child pornography offences.

Bill C-12 proposes to merge these two defences into one defence of public good. By doing so, Bill C-12 introduces an important new second step in assessing the availability of a defence for all child pornography offences. Under Bill C-12, a court would be required to consider whether the act or material in question serves the public good and if it does serve the public good, then the court must also consider whether the act or material goes beyond what serves the public good.

Under the current defence of artistic merit, material which, objectively viewed, has artistic value, for example, it demonstrates artistic technique or style, has a complete defence. However, under Bill C-12 no defence would be available for such material where the risk of harm that it poses to society outweighs any potential benefit that it offers.

The motion says no to this additional harms based test. Canadians disagree, and I disagree, and that is why I oppose the motion.

[Norman E. Doyle, Progressive Conservative, St. John's East, NL]

Madam Speaker, I want to speak today to Bill C-12, an act to amend the Criminal Code, in the area of child exploitation and child pornography.

In the last session of the House I spoke to a motion on this issue and made particular reference to the Sharpe case. Mr. Sharpe was found guilty of possession of child pornography with respect to certain photographs in his possession but was found not guilty with regard to certain written material in his possession. The reason for him being found not guilty was what caused such a public uproar, as we all remember. The courts found first, that his written material did not openly advocate committing illegal acts with children and, second, that his written material had some artistic merit.

I am of the view that without exception all child pornography should be illegal. Child pornography does not lead to openly advocating a certain lifestyle to be harmful to children. It can induce and promote illicit behaviour by its very existence. It helps establish a permissive atmosphere in society that is conducive to the sexual exploitation of children.

In a similar vein, I cannot for the life of me understand how child pornography can be regarded as having artistic merit. This reason, in particular, caused outrage among the general public. In its guidelines on hearing this case, the court ruled that if the alleged material had even minimal artistic merit, then the person must be found not guilty. In other words, if an article is 90% pornography and 10% art, then art has to carry the day. The person must be found not guilty.

I do not have a legal background, but as anyone in this Chamber who has a legal background knows, courts rule on fine points of law but it is we in Parliament who give them the fine points to rule on or leave loopholes that allow for a fine-tuned argument to slip through.

In this context, I have trouble with the latest twist in the law that allows for a not guilty verdict if the alleged pornographic materials have some degree of public good. I have been told by people in the legal profession that, if anything, the words “public good” have a much broader concept than artistic merit.

Artistic merit could be claimed as for the public good in a piece of written material which could otherwise be simply viewed as child pornography. All it takes is a good lawyer and one could argue that there is public good in just about anything. Instead of plugging the legal loopholes of artistic merit, it can be argued that government has actually widened the loophole.

This points out a fundamental difference between our party and the governing Liberal Party. If I were to err, I would rather err on behalf of children and child protection. The government, however, is reluctant for some reason to slam the door on child pornography because it might somehow infringe upon the constitutional rights of the pornographer.

Forgive me, Madam Speaker, but I must confess that this is the very least of my worries. I would not want to go to my grave as having erred on behalf of the pornographer. When children are involved, they deserve the benefit of the doubt and the full protection of the law.

We need to have a sober second look at this business of public good versus artistic merit. It is not an improvement at all.

The bill would make it an offence for an adult to interfere sexually with a person under the age of 14. I feel that the age of consent is too low and that it should be raised to at least 16. Is the government not aware that recent polling has indicated that 80% of the general public favours an increase in the age of consent from 14 to 16. Most parents want to see the age of consent increase from 14 to 16 and some would argue, and rightly so, that even 16 is too low.

I am sure the government is aware that a couple of years ago provincial ministers from across Canada passed a resolution to have the age of consent raised to 16. It is beyond me why the government has not listened to the various provincial ministers who want the age of consent raised.

We do advocate criminalizing sex between adults and children under the age of consent. We also believe that the government should be in favour of raising the current age of consent from 14 to 16.

The bill would also make it an offence for someone to sexually exploit a young person between the ages of 14 and 18 under his or her care, influence or authority. That makes sense and it is something I am sure we can all agree with, but it is already against the law. Therefore I am unclear as to how a slightly different wording will improve things, but we would support it.

The bill would create a new offence for voyeurism, which is a positive step. The bill would strengthen maximum sentences for sexually exploiting children but judges would still have a lot of leeway in passing sentence. We feel that sex crimes involving children should have mandatory sentences with little or no room for flexibility. The message has to be made clear that if people sexually exploit children they can expect no mercy from the court system. This is the message that pedophiles should be receiving from the government.

However the bill fails to prohibit all sex between adults and children and so it leaves children vulnerable to exploitation by sexual predators. The bill does not increase the age of consent. It still treats 14 year old children as consenting adults as far as sexual activity is concerned.

On the issue of pornography, the bottom line is that if the government is to err then it is willing to err on the side of an adult possessing child pornography. We on this side of the House are only willing to err on the side of child protection.

A government under pressure to provide more protection for children tends to come up with an awful lot of complicated, cumbersome legalese. We want to see laws that outlaw all forms of pornography period. The law should be made very clear on that.

I support strong laws protecting children, laws with no loopholes or wiggle room. If we in Parliament set the tone, I am sure the courts will follow suit. However if we are wishy-washy on the issue and not strong in our defence of children, if we are not strong in the laws we write, we will have no one to blame but ourselves if the court allows people to slip through the loopholes that the House provides for it. I therefore cannot support the bill.

[Eleni Bakopanos, Liberal, Parliamentary Secretary to the Minister of Human Resources and Skills Development (Social Economy)]

Madam Speaker, I appreciate this opportunity to take part in the debate on private member's Bill C-471 introduced by my colleague, the hon. member for Crowfoot. As has been previously mentioned, the purpose of this bill is to protect children from repeat sex offenders. This protection is to be enhanced by amending the sentencing provisions in the Criminal Code.

Obviously, our government is just as concerned as the Canadian public about protecting our children from sexual predators. But as for the arguments that the courts of this country are too soft on these offenders, that their current sentences are not severe enough, that sex offenders ought to have their basic rights withdrawn, that these predators get released without any concerns about children's safety, I have been hearing them for years from the other side of this House. They may get great press coverage, but they do nothing for public safety, as I have already said.

The Criminal Code states that the fundamental purpose of sentencing is “to contribute to respect for the law and the maintenance of a just, peaceful and safe society”. The objectives of sentencing in the Criminal Code include denouncing unlawful conduct, deterring those who would commit offences and promoting a sense of responsibility in offenders in acknowledging the harm they have done to victims and to the community. The most vulnerable victims in our society are our children, as has already been said.

Canada is totally opposed to the use of draconian measures like the death penalty or the various forms of “three strikes and you're out” legislation, which would call for life sentences with no chance for parole. Our legal system has always respected the discretionary power of judges to adapt their sentences to the severity of the offence, the offender's behaviour, and the risk that offender poses to society.

A judge who has taken into consideration all the facts and all the testimony on the circumstances of the offence and the situation of the offender is in a better position than the members of the opposition to bring down a sentence that is appropriate to each case.

The recent Speech from the Throne confirmed that the protection of children continues to be a key priority for the Government of Canada. As a part of this renewed commitment to protect children from sexual predators, the government has reinstated the former Bill C-20, now Bill C-12, regarding the protection of children and other vulnerable persons.

This legislation proposes criminal law reforms that would provide increased protection to be given to children against abuse, neglect and sexual exploitation. It would strengthen the child pornography provisions by broadening the definition of written child pornography and narrowing the existing defences to one defence of public good.

Bill C-12 would also create a new prohibited category of sexual exploitation of young persons resulting from the existence of such factors as the age of the young person, the difference in age and the degree of control or influence exerted over the young person.

Bill C-12 would increase the maximum penalties for offences against children and would make the commission of an offence against any child an aggravating factor for sentencing purposes. It would also facilitate testimony by a child and other vulnerable victims and witnesses.

These changes would build upon amendments that have been in force since July 2002 for protecting children from sexual exploitation through the use of new technologies. These amendments addressed the communication of child pornography through the Internet and created a new offence of luring that made it illegal to communicate with a child on the Internet for the purpose of facilitating the commission of a sexual offence against the child. The changes also simplified the procedure to prosecute Canadians who sexually exploit children in other countries.

Another example of our focus on the protection of Canadians from sexual predators is the reinstatement in the House of Commons of former Bill C-23, now Bill C-16, the sexual offender information registration act, as was mentioned by my hon. colleague who first presented it in the House. That proposal seeks to establish a national sex offender registry requiring sexual predators to report to police agencies on an annual basis, which will allow rapid police investigation through an address searchable database. Under the proposal, failure to register would be a Criminal Code offence with serious penal consequences.

The February 2 Speech from the Throne also indicated a new commitment by the government to do more to ensure the safety of children through a strategy to counter sexual exploitation of children on the Internet. Under the lead of the Minister of Public Safety and Emergency Preparedness, we are working with our federal, provincial and territorial, private sector and international partners in the development of a strategy to coordinate and enhance our efforts to counter child sexual exploitation on the Internet.

Certainly I would be remiss if I did not point out that in 1997, when I was the Parliamentary Secretary to the Minister of Justice, the dangerous offender provisions of the Criminal Code were amended to toughen up the provisions against the most violent sexual predators.

The private member's bill before us today seeks to amend these provisions to go after repeat sexual offenders against children. Really, that is exactly what the 1997 amendments did. Individuals who are declared dangerous offenders by the courts are now subject to a mandatory indeterminate sentence. The 1997 amendments also included a provision that permits judges to impose a long term offender designation resulting in up to 10 years of community supervision after serving a penitentiary term.

Moreover, in 1997, we also toughened up the conditions for recognizance under section 810, particularly by adding section 810.2, a new category dealing with serious personal injury offences. Section 810 has been very useful to the police in protecting vulnerable persons—even when there was no conviction, or even charges against a potential sexual predator likely to attack children.

I would also like to say a word about the 1993 Criminal Code amendments that created a potentially life-long order of prohibition, prohibiting convicted sexual offenders from frequenting daycare centres, schoolyards, playgrounds, public parks and swimming places where children are likely to be seen.

The order also prohibits these offenders from seeking or continuing any employment, whether remunerated or volunteer, in a capacity that involves being in a position of trust or authority. Another provision was added to permit an individual to obtain a peace bond—a protective order lasting up to a year—if he or she fears that another person will commit a sexual offence against a child.

In closing, I want to insist that all efforts have been made in order to protect Canada's children.

While recognizing the validity of the concerns of the hon. member for Crowfoot with respect to sexual predators on children, I simply do not believe that his proposal would improve the existing provisions.

Moreover, the latest reforms now before Parliament will translate into changes in our laws to give our children even better protection.

We also are doing everything we can for the safety of Canada's children. It is for the sake of our children that we have to stop scaring them with the worst, most heinous crimes cited in the House. In fact, sexual predators are not the majority of criminals but the minority, and thank God that is the case.

[Claude Bachand, Bloc, Saint-Jean, QC]

Mr. Speaker, I shall try to make a speech that will not result in us being taken for idiots. This afternoon, we clearly heard the President of the Treasury Board call the Bloc Quebecois members idiots. I thought it was important to begin my speech by saying that. That kind of thing is unacceptable. Perhaps it was not recorded, but we heard it clearly.

With respect to Bill C-12, it is important that we be able to say that, with the changes and evolution in technology today, many aspects of this technology should now be taken into account in a debate such as we are having on the subject of Bill C-12, on the controls needed to ensure that child pornography does not spread everywhere.

Recently, we have seen examples in Quebec that demonstrate to what an extent this has become a very touchy subject. People react very strongly when children are involved in child pornography situations.

As proof, for example, there was Operation Scorpion in Quebec City, where the police uncovered a whole system where certain sexual predators took advantage of what was happening with young people. That is not acceptable in a society, even if certain people want to convince us that it is a free and democratic society. A free and democratic society does not go so far as to sexually exploit children.

Overall, we agree with the bill before the House to amend various provisions of the Criminal Code. I want to give some examples. The maximum penalty for sex offences would increase. Obviously, if children are the victims, if society wants to side with the victims, convicted offenders must receive a harsh penalty. That is the intention of this amendment to the Criminal Code. The maximum penalty for sexual exploitation would increase.

The penalty for child abuse would also increase. Child abuse constitutes aggravating circumstances. For example, there are aggravating circumstances when a sexual predators are physically abusive. Obviously, we have no problem with this change.

A series of amendments to the Criminal Code are proposed to allow various means to facilitate testifying. We consider this extremely important. When children are required to testify before the prosecutors, judge and the entire court, with all the decorum of such courts, they feel intimidated and it makes it harder for them to testify.

There are things we fully agree with. It is important that all orders restricting publication be upheld. In the case of child abuse, when youth protection lawyers prosecute the parents or the child abuser, often, indeed almost always, the judges will invoke an order restricting publication. We agree with this.

We also agree with the ban on cross-examination by the accused. That is unacceptable, but it often occurs in adult court or rape cases. In the past, some accused have cross-examined the victims themselves, because they were defending themselves. It is very difficult to accept that this happens. If we allowed this, an accused could question a child he abused physically or sexually.

These are things that we want to see in this legislation. Video recordings are also good, as is allowing the child to testify behind a screen without having to face the court. These are all extremely important.

The bill also creates an offence for voyeurism and for distribution of voyeuristic recordings. Previously, this was a grey area. I think identifying it and making an attempt to define it closely is a positive element in the bill.

There is also the matter of consent. We have to talk about it. We believe that in a free and democratic society, if a child aged 14 or over gives consent, society can accept it. Of course, if there is exploitation involved, that is another thing, and we cannot accept it. Also, I believe there is a provision in the bill that a child 14 and over may give consent, yes, but not with a person who is in a position of authority, such as a school principal or the like. Even if the child says he consents, I think it is unacceptable to allow it because of this relation of authority.

As far as the age issue is concerned, I do not share the opinion of my colleagues in the Conservative Party, the former Alliance. They are the ones who introduced the young offender legislation and voiced approval of jail sentences for youths aged 14 or 15. Now they are telling us it is unacceptable for young people to have consensual sexual relations under the age of 16. It seems to me that this represents a problem on their part. If, in one bill, they can say that offenders of that age can be imprisoned and tried in adult court, I do not see how consensual sex cannot be allowed at the age of 14, 15 or 16. I think the Alliance has a consistency problem here.

A number of factors in this bill convince us it should be adopted. We agree with this bill, particularly since we are of the opinion that the Criminal Code did not contain sufficient provisions for the defence of these young victims.

A number of measures are introduced for inclusion in the Criminal Code. We feel that victims will benefit from them. A clear signal will also be sent for society to side with young people who have been victims of this type of treatment and take a strong stand against abusers and sexual predators. The Bloc Quebecois will therefore be supporting this bill.

A motion to adjourn the House under Standing Order 38 deemed to have been moved.

[Deepak Obhrai, Canadian Alliance, Calgary East, AB]

Mr. Speaker, on February 28, 2003, I presented a petition to the House from my constituents. The petition was signed by 142 people from my riding of Calgary East. The petitioners called upon Parliament to protect our children by taking all necessary steps to ensure that all materials which promote or glorify pedophilia or other activities involving pedophilia are outlawed in Canada.

Other members of Parliament have presented similar petitions. This petition is the essence of what the feeling is out there. The feeling is unanimous out there that we need to protect our children. There is no other meaning. It is unanimous that the people of Canada are saying, “Let us protect our children”. We have to take that message very seriously.

Bill C-12 is an attempt to protect our children, but there are flaws in the bill that the Conservative Party cannot support. We believe the bill is not tough enough to protect our children. We get the message from our constituents, and again, that message is--let me repeat it--that we have to protect our children from sexual exploitation.

Bill C-12 does not do that on two bases. One is on the basis of what is called artistic merit. The definition of artistic merit as given by the court's decision can be interpreted as broadly as possible. That is not the message we are getting from the people of Canada. That message should be reflected in this bill: artistic merit should not be a defence for anyone who is abusing the children of Canada. Simple, point of fact, straightforward: the children of Canada need to be protected. They are children. We are their guardians. If we do not protect them, who will? We cannot have any loopholes that say there is a possibility under artistic merit or some other kind of loophole that this exploitation can take place.

I have not come into any kind of contact with child pornography, except once when the Toronto police force came to our caucus and did a presentation on child exploitation. I was stunned. One actually has to know. I commend these officers when they see this day and night. I take my hat off to them and wonder how they can sleep at night when they see all this exploitation taking place.

Those graphic pictures would have shocked anybody. It shocked me such that I got up from there with a clear cut, straightforward, simple resolve that there should be no defence whatsoever when it comes to protecting our children. They can come with any kind of defence or excuse, but it does not exist. When we look at the evidence that is gathered and when the police force show us this horrendous picture of what is happening--and it is happening--then we have to say no.

The other issue is about the age of consent. We in this country have an age of consent which, in anybody's mind, we would say is a form of sexual exploitation. How can we have 14 as an age of consent when everybody else has an age of consent ranging from 16 to 18? The age of consent should be over 16.

I do not understand why the government chose to ignore this specific issue when the former minister of justice, the member from Edmonton, stated quite clearly that she had talked to the provincial ministers and everybody agreed that the age of consent should rise.

I am sorry to say this, but when I read “exploitative” relationship, I see bureaucratic language. Exploitative relationship is bureaucratic wording. Why can we not make the bill simple and clear? We must be clear in this bill: “the age of consent should be this”. It should not say if somebody in an exploitative relationship and then go ahead and give arguments and try to define what the relationship is. All these loopholes come out of this.

Although the bill has come back from the committee, which made some recommendations for changes, the changes in this particular instance do not reflect the will of the people of Canada, which is very simple: stop completely, with no loopholes, the exploitation of the children of Canada.

My party and I will find it very difficult to support this bill.

[Paul MacKlin, Liberal, Northumberland, ON]

Mr. Speaker, it is a pleasure to have an opportunity to participate in the debate this afternoon regarding Bill C-12 and Motion No. 2 which would delete clause 7 of this particular bill.

With respect to the previous speaker, there is no question that we all share the concerns that the bill is intended to address. I do not think there is any doubt about that. We want to protect those most vulnerable within our society, and this is an excellent example of how we can do it.

The way in which the bill has been constructed and brought before the House is appropriate and there is no need for an amendment of the nature that is being brought forward.

Today, when I rise to speak to the bill, I do so in support of the bill itself and to oppose the motion to delete clause 7.

This bill is designed to deal with an amendment to the Criminal Code to protect our children and other vulnerable persons. It is a very broad bill. It also includes a provision to deal with the Canada Evidence Act and proposes a broad package of criminal law reforms that would seek to strengthen not only the criminal justice system in this particular instance, but in the broader instance as well.

The bill is not just a response to children and other vulnerable persons as defined in the limited discussion that has been going on here today. It will actually be broader than that and in particular with respect to bringing forward witnesses and those who would testify in trials.

One of the key elements of the bill is the strengthening of the existing child pornography provisions by broadening the definition of written child pornography and narrowing the existing defences to one defence of public good.

It is very important that when we examine this concept that we look at what is trying to be accomplished here. What we are trying to do is avoid the situation that was described by the previous hon. member when he talked about the Sharpe case. This is important and it does need to be addressed. We are going forward with the bill to narrow that defence to one defence of public good.

The second key element is strengthening protection for young persons against sexual exploitation. There is a great tendency to simply look at issues of this nature as if the child or the young person was in fact the person who ought to have more restrictions placed upon them. What we are really trying to do is broaden the offence to those who would exploit, those who would take advantage of young persons. This is why the definition of sexual exploitation has been put in the bill.

We are also looking at increasing penalties for offences against children. Many times we hear that the ultimate penalties received are not significant enough. However I think that if we were to increase the penalties, it would give the courts much more room to address the issue of sentencing so that one does not necessarily have to go to the maximum on a first offence, which in almost all cases does not occur, but rather it is a graduated process of trying to use the appropriate sentence that fits the crime.

By increasing the sentencing provisions and penalties within the act, we would be allowing greater latitude for the courts. We will be giving that flexibility so they can be most severe with those who deserve the most severe penalty.

Another area in the bill would facilitate testimony by children and other vulnerable victims and witnesses. This is extremely important because when a victim goes through the actual act that is when the victim is created.

It is extremely difficult, then, for that victim to in effect go through explaining before all parties this victimization in a court. Therefore, we need to put in place appropriate measures to minimize this process, which would once again lead to further victimization. So within the bill, there is a process whereby testimony can be given in many forms and various protections and assistance can be brought forward for victims and also for witnesses to these crimes.

Lastly, the bill also deals with the concept of voyeurism. This criminal offence is an offence that is extremely important. Today it seemingly is more important with the advent of more and more electronic devices. In particular, we note that the latest cellphones have cameras attached to them and are able of course to take photographs and then transmit these particular photographs on the Internet. This form of voyeurism and the access it provides because of the very nature of the device is something that we must take very stringent action upon, and in this particular case it is part of the bill.

Child pornography is an issue that is regrettably not a new concern for all hon. members in the House. The sexual exploitation of children--again, society's most vulnerable group--in any form, including through child pornography, is to be condemned.

Bill C-12 recognizes this and proposes amendments to our existing child pornography provisions that will, I believe, serve to better protect children against this form of sexual exploitation. This motion seeks to delete two child pornography reforms proposed by Bill C-12. Bill C-12 proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the predominant characteristic of the material and it is done for a sexual purpose.

Second, Bill C-12 proposes to narrow the existing defences into one defence of public good, a term that is now specifically defined in the bill. I know that my hon. friend who spoke before me talked about this issue of public good, but clearly we have to be able to define in certain limited circumstances where in fact it is beneficial to society to have this defence, so that in fact in its simplest form it allows for the proper investigation and prosecution of those who would be participants in this business of pornography.

To say that in fact there should be absolutely no defence is simply not looking at this in a pragmatic way. Under the new law, no defence will be available where the material or act in question does not serve the public good or where it exceeds or goes beyond that which does serve the public good.

The public good defence recognizes that in some instances, such as with the possession of child pornography by police as part of an investigation, as I was just mentioning, such possession serves the public good and should be protected. It also recognizes that art or material that has artistic value can serve the public good but, and unlike the artistic merit defence, Bill C-12's proposed public good defence would not be available for such art where the risk of harm that it poses to society outweighs any potential benefit that it offers.

Canadians want more and better protection for our children against sexual exploitation through child pornography, not the same as or less than what we already have today. Given our ever growing understanding and knowledge of the nature and scope of the problem of child pornography in Canada and around the world, we must hold firm in our resolve, which resolve was unanimously reaffirmed as recently as last week, to take concrete and effective measures to better protect children against sexual exploitation through child pornography.

Accordingly, I do not support the motion and I urge all hon. members to support Bill C-12 as it was passed by the justice committee.

[Gurmant Grewal, Canadian Alliance, Surrey Central, BC]

Mr. Speaker, I am pleased to rise on behalf of the constituents of Surrey Central to participate in the debate on Bill C-12, an act to amend the Criminal Code, protection of children and other vulnerable persons, and the Canada Evidence Act.

Yesterday I participated in a debate about encouraging our youth to vote and to get involved in politics. Youth are our future. The most vulnerable groups in our society are children, women and seniors. All the laws we see coming from the government side over a period of time are not protecting any of these groups.

Some time ago there was an incident in my constituency of Surrey Central. A senior citizen, a second world war veteran who was deaf and mute, was beaten to death. Another time there was an incident in the Cloverdale area of Surrey Central. A young girl was abducted, badly treated, and I do not want to go there, and she was murdered.

We constantly see that our streets are not safe. These two vulnerable groups of citizens are not being protected in our society. The government is not doing enough. The law enforcement agencies do not have laws with teeth. We have ended up in a revolving door with legislation after legislation which is ineffective and is not working and is not giving adequate resources to the law enforcement agencies.

The bill before us today was first introduced in 2002. The Prime Minister tries to continue the charade that he leads a new government, yet here he has put an old, flawed bill before us. Admittedly, there are some good things in the bill, but with the good things there are some bad things as well. I have outlined them in the chamber many times before. However, the Prime Minister has not bothered to incorporate any proposed changes. He has not even seen the need to introduce any amendments of his own. How committed can the Prime Minister be to democratic reform? How new is his government or his ideas when we see legislation recycled time and again in this chamber and it does not reach anywhere?

The Department of Justice proposed Bill C-12 to expand the offence of sexual exploitation and the definition of pornography, and to eliminate the defence of artistic merit in child pornography proceedings.

The bill also increases maximum sentences for people convicted of these crimes. If passed, the bill would also increase penalties for failing to provide the necessities of life and abandoning a child.

Bill C-12 is a reaction to the 1995 case of John Robin Sharpe in British Columbia. Sharpe was found guilty of possession of as many as 400 images of children who prosecutors contended were being exploited sexually.

In March 2002 Sharpe's conviction concerning the images was upheld by the Supreme Court. However, he was ultimately acquitted of related charges that had been filed against him in connection with stories he had written, specifically because those writings were deemed to have artistic merit.

Bill C-12 purports to close the loophole that allows people to create child pornography using artistic merit as a defence and establishes a standard of public good.

If Parliament passes the bill, a person will be found guilty of a child pornography offence when the material or act in question does not serve the public good or where the risk of harm outweighs any public benefit.

Since the Sharpe case, Conservatives, and our predecessors, have called on the federal government to eliminate the artistic merit defence, but replacing it with a public good defence is not the solution to the problem. We must eliminate all defences that justify the criminal possession of child pornography.

The bill would also increase penalties for offences that harm children. The maximum penalty for sexual exploitation would double, from five years to ten years, and the maximum penalty for the abandonment of a child or the failure to provide the necessities of life to a child would more than double, from two years to five years.

These increases in penalties are meaningless, however, if the courts do not impose the sentences. 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 minimum sentences. Maximum sentences do not help. When a judge sentences someone for life, which is 25 years, it is never 25 years. Similarly, tougher penalties would probably be a better deterrent to committing a crime. What we need are minimum sentences, truth in sentencing and no conditional sentences for child predators.

Bill C-12 would also create a new category of sexual exploitation that would protect people aged 14 to 18. Courts would focus, not on consent but on whether the relationship is exploitative based on the age difference, or control exerted, and other circumstances. This is not good enough.

It is already against the law for a person in a position of trust or authority or with whom a young person is 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.

What the Liberals should have done was increase the age of sexual consent, which is what we have been asking for a very long time.

A major shortcoming of the bill is that it fails to raise the age of consent for sexual activity between children and adults, and, shamefully, Canada's is the lowest among all the developed countries.

I fail to see the rationale for permitting adults to engage in any sexual activity with children. The government should raise the age of consent, which is currently set out in section 150.1 of the Criminal Code, from 14 years to 16 years, if not 18 years. Just imagine a grade 9 student giving consent to have sex with a 60 year old person or a 50 year old person.

This is not the Canada I migrated to. We need to do much more to protect our children.

In British Columbia's lower mainland we are all too familiar with the problem of prostitution. Studies have found that 70% to 80% of Canadian prostitutes entered the trade as children. There are literally hundreds of prostitutes under 17 years of age currently working on Vancouver streets. It is very shameful.

The recruitment process for the sex trade in Canada preys on young girls and young boys, specifically targeting those who are at the current age of consent, which is 14.

According to the Children of the Street Society, the majority of parents who call asking for help have children who are 14 years old and are being recruited into the trade. They argue that if the police had the ability to pick up the girls or boys, regardless of their consent, and return them to their families or to take them to a safe house, then many youth would be saved from entering the sex trade.

It is of no use looking at the age of consent from the perspective of the advantaged, critically thinking, well protected 14 year olds. The government has to enact laws that will protect our children.

During my tenure in the House I have watched as family values have been continuously eroded in Parliament. Every time the government introduces any legislation we see family values being eroded, whether it is the definition of marriage, the age of consent or the protection of our children from predators. When will the government listen to Canadians, for the sake of our children and the most vulnerable, and enact laws with teeth?

Bill C-12 is very complex, with cumbersome provisions and it would not make it easier to prosecute sexual predators. The government lacks political will. The Prime Minister should be ashamed for doing so little so late to protect our children and other vulnerable groups.

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

Mr. Speaker, I am very pleased to rise in this House to address this important legislation, namely Bill C-12, which was formerly Bill C-20.

As most hon. members have pointed out, if there is one issue on which all the members of this House agree, it is the importance of protecting the most vulnerable people in our society, who also happen to be the most precious ones, namely our children.

Quebeckers and Canadians expect us to rise above partisanship and not use this issue to score political points. They expect the perverts the sick and the maniacs, those who want to sexually exploit our children to be properly punished and to pay for the despicable and horrendous crimes that they commit by going after our children.

It is with this in mind that, when we debated this legislation, the Bloc Quebecois was very proactive and open, and also made a number of proposals. We listened very carefully to what those who came to testify told us. Based on the very eloquent testimony we heard, we proposed a number of amendments.

Motion No. 1, which is before us today, is an amendment that was originally proposed by the Bloc Quebecois. It is an amendment that I myself proposed. I am pleased to see it included in the bill. There was a minor problem with the French and English versions. That was corrected with this amendment. As for Motion No. 3, it deals with a mere technicality.

Two issues were the subject of rather heated discussions in committee, and I want to draw your attention to them. The first one has to do with the definition of “public good”. The witnesses who came to testify before the committee told us that a defence based on the notion of public good is currently too broad, not acceptable and could lead to abuse. Among others, police officers, who are on the front line, told us that they do not have the time to get into philosophical discussions on the meaning of “public good”.

That is why I put forward an amendment in committee to define the meaning of public good. The essence of this amendment is found in clause 7(2) of the current bill, Bill C-12. I absolutely do not understand why the New Democratic Party is against this clause, especially since the NDP critic said at the very beginning that public good was not defined. Perhaps she was referring to the first version of the bill, but the work done in committee resolved this problem by clarifying the definition of public good.

I was very disappointed by the Liberals' unwillingness, if you will, to insert a clause that would provide minimum sentences for the sexual exploitation of our children. In the general public, particularly in the Quebec City area, following the events of which we are all aware, there has been heightened sensitivity and awareness of the danger of sexual exploitation of children.

Having been previously alerted to the general problem, I thought it would have been a good idea for the government to agree to include minimum sentences and mandatory minimum sentences.

Unfortunately, the government, with its majority, refused. Nonetheless, to give credit where credit is due, some members of the ministerial team voted with me and the Canadian Alliance at the time, to have such sentences.

It is unfortunate that the government did not agree. I guarantee, and I will make the promise right now, that I will not drop this and I will make sure that these people, these perverts, these criminals, are severely, yet humanely, punished. They prey on those who are dearest to us and also most vulnerable.

I will conclude by saying that this is not my last speech on this topic in this House or elsewhere. As parliamentarians, we have the political obligation, but especially the moral obligation, to ensure that those who attack our children are severely punished; as severely as possible. This is about the future of our society.

[James Lunney, Canadian Alliance, Nanaimo—Alberni, BC]

Mr. Speaker, our party appreciates the efforts of the member for Provencher who just spoke on this issue. He has been our point man on this issue. He has been active on this file and has been keeping us informed. As the former attorney general of the province of Manitoba, he is well versed in the legal implications of these matters.

I would also like to mention the hon. member for Wild Rose, who has been a campaigner in our caucus and in the House for as long as I can remember on the issue of child pornography. I know his heart, like many of the members on this side, is greatly shaken. He is outraged, as are many of the constituents in my riding, about what is going on with child pornography in our midst today and by the inaction by the House, led by the Liberal government, in dealing with these atrocities that go on as we speak.

There are so many issues to which the government responds with an illusion instead of with substance and with a smokescreen of taking action that is not the action required to change the problem. It is an illusion.

We see it in other instances, for example, in dealing with crime. Instead of dealing harshly with criminals who misuse firearms, the government comes up with a strategy to register the weapons of duck hunters and farmers and wastes a billion dollars of taxpayers' money. It is an illusion that does not address the underlying issue.

We see it in other areas, but nowhere is it more demonstrated than in criminal justice matters such as child pornography and the age of sexual consent.

It was not long ago that members of the Toronto Police Force came to the House to help us understand what was going on. Sadly, most members of the House and many members of the public do not understand the depth of depravity that is going on today in the underworld of pornography, particularly as it relates to children.

There is a proliferation of very graphic sexual and violent images of abuse of children that are abundantly available today. They are putting our children at high risk and continue to undermine the very values of our society. We are concerned.

Many members could not sit through the entire presentation because they were so distraught at the images that the officers put forth. They warned us that it would be graphic, that it would not be easy, and that in fact it would be tough. Some members frankly were not able to continue. Some of the seasoned police officers themselves have not been able to carry on with investigations because of the volume of the very graphic and destructive material that they are required to view in terms of prosecution.

In our area of Vancouver Island, British Columbia we are not proud to lay claim to the fact that the John Robin Sharpe case comes from British Columbia. This case infuriated the people in British Columbia when this man, with his vile images of abuse of children, was exonerated. He tied up the courts because they refused to deal with the issue of the defence of artistic merit. Cases were not even being prosecuted for a period of time. It tied the hands of the police in dealing with these matters.

That brings us to where Bill C-12, as we call it today, is going. The hon. member for Provencher has already outlined where we are going with the artistic merit defence. It so outraged Canadians that somehow we could find artistic merit in the abuse of our children, or that anyone could. It is just an outrageous concept.

It brings us to the understanding that the government has again created an illusion. The Liberals hope to campaign on the bill, saying that they have got tough on child pornography and have acted to protect our children.

The House has a responsibility for more than smoke and mirrors. We have a responsibility to deliver goods to the people that actually accomplish the objective. Smoke and mirrors are not good enough. Repackaging artistic merit as public good is simply not good enough. It will allow the same kind of defences to go on, and the same kind of abuse to continue. It will allow lawyers to argue in the defence of their clients that there is some public good in these atrocities.

Recently I was visited in my riding office by two groups of citizens who are concerned about the age of consent and about sexual abuse of our young people. Marie Poirier from my riding, as well as Joan Sauve, Gloria Ash, Viola Cyr and Helen Metz came to see me. They were part of a white ribbon against pornography campaign and they had hundreds of signatures written on these white ribbons. They were concerned about the abuse of our young people who were being victimized by people who thought that it was all right for adults to engage in sex with young girls and victimize them.

I was not able to present these petitions in the House because they did not fit the appropriate format, but on their behalf I want to say how outraged parents and families are because they know of people in our neighbourhoods and communities who have been abused. The example that the member for Provencher mentioned a moment ago dealt with two men who were acquitted of sexually abusing a girl as young as 12 because they thought she was 14.

This was not about consenting sexual acts among young people, as much as we might disagree with that. It was not about consenting young people. It was about adults abusing young people. Sadly, this kind of activity continues in our society. It continues to hurt and damage young people, leaving them scarred, many times for life.

Thank God that through counselling, and the help and assistance of the many volunteers who try to help these people, and with the support of families, some of them will overcome it, but many of them will carry this abuse into future relationships and will be damaged perhaps for life.

We see some serious problems with this legislation. We see more smoke and mirrors. We see a government that wants to say that it has taken action to deal with this when in reality what it has done is simply change the language that will allow it to continue.

The Conservative Party of Canada would like real answers. We would like to see this moved ahead. We are really concerned about this and the implications for society. We would like to see real action taken to protect our citizens.

There is another issue that deals with raising the maximum penalties. This is an old trick. We know that maximum penalties are hardly ever imposed by the courts, but people have a hard time understanding that. When they hear language that we have gotten tough on child pornography and we have raised the maximum penalties, it gives people the impression that something is being done to protect our citizens when in fact it is meaningless. If we were to get tough, we would increase the minimum penalties and we would have mandatory prison sentences for people who are convicted of these crimes. It is time to get tough to protect our youngest and most vulnerable members of society.

I have spoken on this issue before. I can only express again on behalf of my constituents the umbrage and disgust that they have with this ongoing abuse of our young people. I can only ask that all members of the House will understand the seriousness of this issue and make the appropriate amendments to put real teeth in the law to ensure that our young people are protected and that they have a chance to take their places in society as wholesome adults. We are looking for that kind of action from the House.

[Karen Redman, Liberal, Kitchener Centre, ON]

Mr. Speaker, discussions have taken place between all parties concerning today's debate on the report stage of Bill C-12. I believe you would find unanimous consent that if recorded divisions are requested today on the motions at report stage of Bill C-12, they be deferred until the end of government orders on Tuesday, February 24, 2004.

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I also am glad to see another woman taking the position in the chair.

There are three motions on Bill C-12. I will briefly speak to the two government motions. Government Motion No. 1 is a grammatical correction amendment to clause 6. This is a technical motion that proposes to correct a grammatical mistake in the French version of an amendment made in committee. Clause 6 was amended in committee to add the offence of “advertising” a recording made through the commission of an offence of voyeurism to the listing of other prohibited acts regarding such voyeuristic recordings. The words added in the French version require an indirect object, but they are placed in a sentence where all of the other verbs require a direct object.

The amendment would replace the expression “faire de la publicité” with the verb “annoncer”, a verb which is of a similar nature to the other verbs or prohibitions used in the clause and which is also the same French verb used elsewhere in the Criminal Code for the English equivalent of “advertising”. This would make the French and the English versions consistent.

I will move now to government Motion No. 3, which is a coordinating amendment on clause 27. Again this is a technical motion to amend clause 27 of Bill C-12. It replaces Bill C-12's reference to the public safety bill that died on the Order Paper with the current reference to that same bill as reinstated on February 11.

Clause 10 of Bill C-12 proposes to amend section 183 of the Criminal Code to add the new voyeurism offences to the list of offences for which criminal investigations can intercept private communications and use video surveillance. Bill C-7, the Public Safety Act, 2002, formerly Bill C-17, also amends section 183 of the Criminal Code to add other offences to the list.

Clause 27 of Bill C-12 is a coordinating clause. It is needed to ensure that the amendments to section 183 proposed by both Bill C-12 and Bill C-7 can come into effect regardless of the order of enactment of these bills.

Accordingly this motion seeks to amend clause 27 of Bill C-12 so that it now refers to the new bill number for the Public Safety Act, Bill C-7, to thereby coordinate both bills' amendments to section 183 of the Criminal Code.

Now to the more substantive matter which the hon. member for Vancouver East has proposed in her motion. I rise today to oppose the motion of the member opposite. I do acknowledge the hard work that has been done by all on this committee.

In effect, this motion seeks to maintain the status quo on child pornography and this is something which neither Canadians nor this government accept. The government believes that the existing child pornography provisions do not go far enough to protect our children against this form of sexual exploitation.

They do not go far enough because they restrict the definition of written child pornography to only those materials that “advocate or counsel” unlawful sexual activity with children. The existing child pornography provisions do not go far enough because they provide two defences for all child pornography offences, including a defence for material that has artistic merit or an educational, scientific or medical purpose without any harms-based test.

Bill C-12 says no to the status quo while this motion says yes to it. Clause 7 of Bill C-12 proposes two reforms to the existing child pornography provisions. First, it proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the dominant characteristic of the material and it is done for a sexual purpose.

Second, Bill C-12 proposes to narrow the two existing defences into one defence of “public good”, a term that is now specifically defined in the bill. Under the new law, no defence would be available where the material or act in question does not serve the public good or where it exceeds or goes beyond what serves the public good. More simply stated, if the risk of harm that it poses outweighs the benefit that it offers to Canadian society, then no defence would be available.

Today's motion goes in the opposite direction of Bill C-12. It says that written materials that consist primarily of descriptions of unlawful sexual activity with children, which descriptions are done for a sexual purpose, are okay. It says that these materials are not child pornography and that they should not fall within the reach of the criminal law.

The Supreme Court of Canada interpreted “for a sexual purpose” in the Sharpe case, 2001, as that which can be reasonably perceived as intended to cause sexual stimulation.

With this interpretation in mind, I find it virtually impossible to comprehend the basis for any argument that seeks to support and protect materials that mostly describe the sexual abuse of children and where these descriptions can be reasonably perceived as intending to cause the reader to be sexually stimulated.

These materials are not okay, as this motion would have us believe. The Criminal Code provides a comprehensive set of prohibitions against the sexual abuse and exploitation of children. The type of written materials that Bill C-12 wants to include in these protections, but which this motion seeks to exclude and to protect, are those that portray or purport to portray children as a class as objects for sexual exploitation. The government recognizes the very real risk of harm that such portrayal and objectification of children pose to our children and to society at large. That is why Bill C-12 proposes to include these types of materials within our definition of child pornography.

The second thing that this motion seeks to do is to maintain the current test for when child pornographic materials should be protected by the defence of artistic merit. Under the current test for artistic merit, the defence is automatically available for material that, objectively viewed, demonstrates some artistic merit, no matter how small and no matter what the risk of harm it may pose.

For example, if the material in question is a written story, the test for the current defence is, objectively viewed, does the story reflect some accepted or recognized literary techniques or styles? If so, the defence is available, irrespective of whether the risk of harm that story poses to children in society outweighs any benefit that it offers.

The government does not agree with this and does not support the existing test for artistic merit and neither do Canadians. The Standing Committee on Justice and Human Rights amended Bill C-12 to define the public good as including acts or materials that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.

This definition is modelled on the Supreme Court of Canada's interpretation of the public good in Sharpe. This will help to ensure that the subsequent interpretation of Bill C-12 is guided by the Supreme Court's decision in this case.

The justice committee's amendment of Bill C-12 to include a definition of the public good directly responds to concerns expressed by the arts community and other witnesses who appeared before the committee. They wanted greater clarity in the bill as to what constituted the public good. The justice committee amendment to define the public good responds to this concern.

However, as to the balance of the concerns raised by the arts community witnesses, a number of observations should be made. In a child pornography case, the first question to be considered and answered is whether the work in question meets the Criminal Code's definition of child pornography.

Examples of written works that were described by these witnesses to the justice committee would not meet the existing definition of written child pornography, that is, they could not be said to advocate or counsel unlawful sexual activity with children. Neither would they meet Bill C-12's proposed new definition. That is, they could not be said to be works that, one, were comprised primarily of descriptions of unlawful sexual activity with children and, two, that such descriptions were written for a sexual purpose.

If the material in question meets the definition of child pornography, then the second question to be considered--and it is a question that falls to the courts to determine--is this: Is this material protected by a defence? Under Bill C-12 there would be only one defence and the test for the single defence would be the same for all material. It would be a two-step inquiry that indicates and includes a harms-based test and it would be possible for art to meet such two-step inquiry.

The motion to delete clause 7 of Bill C-12 is not consistent with the objectives of the bill as set out in the preamble, which states:

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

It is for these reasons that I urge all hon. members to support Canada's children and support Bill C-12 as passed by the justice committee and not to support this motion from the hon. member of the opposition.

[Libby Davies, NDP, Vancouver East, BC]

Madam Speaker, congratulations on your new position as Acting Deputy Speaker. It is always good to see women in the Chair. It is not an easy job to do. We are pleased to see you there.

I am pleased to rise in the House today to debate the amendment in Bill C-12 at report stage. The amendment we have put forward would delete clause 7. This clause removes the defence of artistic merit from existing child pornography legislation and replaces it with a public good defence. Our amendment would delete that section of public good defence.

Before I speak further, I want to recognize the work of my colleague, the member for Dartmouth, who has taken on this bill and many other issues in the House, as our arts and culture and communications critic. I think she has earned respect from all sides of the House for the tremendous job she has done in promoting Canadian arts and culture.

We have had to deal with some very difficult issues in the bill in terms of defending the rights of children and to ensure that child sexual abuse does not take place in our society. We also have had to deal with issues of artistic merit and protecting the legitimate areas for artists for true expression. This has not been an easy thing to do. I think we all have an admiration for the work the member has done, in working with the broader community, to ensure that the legislation can be supported. In fact the amendment before us today is as a result of the member for Dartmouth's work.

Protecting children and other vulnerable people is one of our highest duties, both as members of Parliament and as citizens and residents of Canada. It is one that we should not take lightly.

In this age of digital transmission and global communication, visual examples of child pornography have become something that I think we all find horrifying and that we abhor. I agree that any depiction of child abuse that glorifies those acts or is intended to incite people to commit them must be criminalized. For those of us in the New Democratic Party, this is something which we believe most strongly.

The sexual abuse of children is an atrocity, a despicable attack on the most vulnerable members of our society. It is an act of terror, an assault on our society's most basic values of honour, protection and dignity.

Although the NDP agrees with the general intent of Bill C-12 to protect children and other vulnerable persons from exploitation, we have a problem with the vague language of clause 7. We believe weakens the whole bill. Indeed, witnesses who appeared in front of the justice committee, for example from the Toronto Police Association, as well as groups such as the B.C. Civil Liberties Association and the Canadian Conference of the Arts, all indicated that they felt that clause 7 was problematic because the language used was vague and contradictory.

In fact, after the previous debate on this issue in November 2003, Pierre Plourde, an LLB candidate in the Faculty of Law at the University of New Brunswick, contacted members of the House. He believes that the amended clause 7 is still unconstitutional and that courts will have to treat the public good defence the same as the existing defence of artistic merit to avoid striking down the entire law. This is clearly problematic.

Many of our colleagues in the House have complained that the original child pornography law was sloppy. The problem we are faced with now is that that this new law will become another sloppy law. It is something we need to fix as quickly as we can. It will not help protect our children from abuse.

A problem that was noted in committee, through the witnesses, was that the bill as it stood would also increase the burden on police forces. I quote from Detective Sergeant Paul Gillespie of the Toronto Police Service, who appeared before the justice committee in October 2003. He said:

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

We would agree and say that it is incumbent upon us to ensure that the law is clear.

It is not just artists who face a chill from this legislation. Researchers and health workers will also have to wonder if their work leaves them open to prosecution. For example, psychiatrists working with victims of sexual abuse may wonder what material they can actually publish. With a very vaguely worded public good defence, they could find themselves being accused of creating child porn by referencing events that happened to their patients.

We could have created strong legislation, one that would not be open to charter challenges. I am sure that is something no member of the House wants to see. Again, the amendment is important, and it is important that we try to fix the problem now.

For example, clause 7 leaves it up to the courts to decide if an act or material goes beyond what is considered as the public good. When we discuss measures that limit rights outlined in the charter, the decision should not be left to an unelected, unaccountable body in our court system. We believe that discussion should happen here in Parliament.

The second reason we have asked for this amendment is that this clause does not protect artists. This was a very critical point at the committee, and it is something that has been part of the debate through the passage of the bill. The new defence of public good is too vague and unproven.

We believe it will take years of jurisprudence for the courts to decide exactly how to apply this defence in relation to child pornography laws. Will museums, for example, be prosecuted for holding classic works of art that depict children in sexual acts? Will libraries, which protect the rights of Canadians to read any and all kinds of literature, have to clear their stacks of any books that might suggest teenagers had sex with adults?

Artists need the freedom of an open democracy to create their work. Artists are concerned that the legislation contravenes a basic tenet of our judicial system: one is presumed innocent until proven guilty.

We believe this clause, if it were left as it is, would force an artist to prove that his or her work is for the public good and does not extend beyond it. In fact, Megan Williams, who is the National Director of the Canadian Conference of the Arts, told the committee how artists felt about being guinea pigs of bad legislation. Again, this has had extensive debate both within the arts community and in broader society. She said at committee:

I want to add also that artists do not want to be on the front lines of testing dubiously drafted legislation again.

During the committee hearings, many people brought up the silence around child abuse and how important it is to not return to a time when children and adult survivors of abuse could not talk about it. The chill that this proposed legislation will create cannot be under estimated.

There are other areas of Bill C-12 that we do support and, in fact, overall we support the bill. However, in this area we have a very strong concern.

The proposed bill extends protection for children and other vulnerable people. As we have said, this is clearly something that is very important. However, we cannot support treating all work that deals with children and sex as pornography. It is important that survivors can speak, write or draw about their experiences without facing persecution. It is important that artists can explore not just the virtuous part of our society but also its dark side.

We believe clause 7 should be removed, and thus we have put this amendment forward today, and allow the rest of the bill to go forward.

I hope that the debate today will be something that is respectful. I know this has been a very contentious issue. We put forward the amendment with very good intentions to help make the a bill that is clearer and is something that can be supported by all members of the House.

It was very important that we had the input from different sectors of society: police, artists and others. We believe that the amendment to delete this clause is something that will strengthen the bill.

[Reg Alcock, Liberal, for the Minister of Justice and the Attorney General of Canada]

moved:

That Bill C-12, in Clause 27, be amended by replacing lines 5 to 20 on page 24 with the following:

“27. If Bill C-7, introduced in the 3rd Session of the 37th Parliament and entitled the Public Safety Act, 2002 (the “other Act”), receives royal assent and section 10 of this Act comes into force before the coming into force of any provision of the definition “offence” in section 183 of the Criminal Code, as enacted by section 108 of the other Act, then, on the later of that assent and the coming into force of that section 10, paragraph (a) of the definition “offence” in section 183 of the Criminal Code, as enacted by that section 108, is amended by adding the following after subparagraph (xxvii):

(xxvii.1) section 162 (voyeurism),”