Bill C-2 (Historical)

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

This enactment amends the Criminal Code to
(a) amend the child pornography provisions with respect to the type of written and audio material that constitutes child pornography, and with respect to the child pornography offences, defences and penalties;
(b) add a new category to the offence of sexual exploitation of young persons and make additional amendments to further protect children from sexual exploitation;
(c) increase the maximum penalty for child sexual offences, for failing to provide the necessaries of life and for abandoning a child;
(d) make child abuse an aggravating factor for the purpose of sentencing and direct the courts to give primary consideration to the objectives of denunciation and deterrence in sentencing for offences involving abuse of a child;
(e) amend and clarify the applicable test and criteria that need to be met for the use of testimonial aids, for excluding the public, for imposing a publication ban, for using video-recorded evidence or for appointing counsel for self-represented accused to conduct a cross-examination of certain witnesses; and
(f) create an offence of voyeurism and the distribution of voyeuristic material.
This enactment also amends the Canada Evidence Act to abolish the requirement for a competency hearing for children under 14 years of age.

Criminal Code

[Shawn Murphy, Liberal, Parliamentary Secretary to the Minister of Fisheries and Oceans]

Madam Speaker, I rise today to speak to Bill C-2, an act to amend the Criminal Code and the Canada Evidence Act. In particular, Bill C-2 enhances the protection of children and other vulnerable persons, those most in need of strong, effective and efficient legal protection.

Bill C-2 supports the commitment made in the Speech from the Throne to crack down on child pornography. Its proposed criminal law reforms will strengthen child pornography and sentencing provisions in the Criminal Code, create a new category of sexual exploitation, facilitate testimony by children and other vulnerable victims and, finally, create new voyeurism offences.

In the area of anti-child pornography legislation Bill C-2 builds on the Criminal Code's existing comprehensive prohibitions against child pornography and proposes several new components. These include broadening the definition of child pornography in terms of written material, as well as including audio formats.

Bill C-2 introduces prohibitions on advertising child pornography and will increase the maximum penalty for all child pornography offences on summary conviction from 6 to 18 months. This sends a strong message that no child pornography offence is considered to be a minor offence. I believe that message has to be clear, it has to be consistent, and it has to be enforced.

Bill C-2 addresses the very contentious issue--and we have just heard the passionate remarks of the hon. member for Wild Rose--about the existing defences such as artistic merit, education, scientific or medical purpose and public good, with a two-pronged, harm based legitimate purpose defence which puts the interests of the children at the forefront where it should be.

This proposed child pornography defence provides a much narrower and much clearer test, and incorporates the harm based standard used by the Supreme Court of Canada in upholding the existing child pornography provisions in 2001.

Bill C-2 proposes the creation of a new prohibition to better protect youth against sexual exploitation. Under the new prohibition courts will be looking to the nature and circumstances of the relationship, including specific indicators of exploitation, such as the age of the young person, the age of the accused, and the degree of control or influence exercised over that young person. In this way Bill C-2 focuses on the wrongful behaviour of the accused rather than the so-called consent of the young person.

Bill C-2 proposes significant reforms to ensure that sentencing in cases involving the abuse and sexual exploitation of children better reflects the serious nature of such crimes. The message we want to send and the message we must send is that these sorts of depraved actions will not be tolerated by Canadian society.

It is my view that the other factors that are normally considered in a sentencing application, such as the rehabilitation of the offender and retribution, have to give way. They have to give way to protection of the public and the compulsion of society to send a very clear message that this behaviour will not be tolerated.

In order to best investigate these sorts of crimes, Bill C-2 proposes reforms that will facilitate the receipt of testimony by providing greater clarity and consistency for witnesses under the age of 18 years, victims in criminal harassment cases and other vulnerable witnesses. This, as many court cases have set out, is a very difficult and contentious issue.

It is my submission that the rules have to be very clear and standardized, and the use of technology must also be implemented, especially in camera hearings for younger children.

At all times the reforms are aimed at aiding and protecting those witnesses who are deemed vulnerable, for example, broadening publication bands to include new technology such as the Internet. This is an important step to protect the identify of all victims.

I do not want to stand here and suggest for a minute that the new legislation will be able to weather its challenges. Technology is moving at a tremendous pace. When we were dealing with child pornography not that many years ago, we were dealing mainly with printed material. Now we are dealing mainly with the Internet.

When we were dealing with the offence of voyeurism, we were mainly dealing with the person who was normally referred to as a peeping Tom. We now have all kinds of technology and gadgets, such as hidden cameras and cameras half the size of a pen. These are items with which police and investigative authorities have to deal. We can appreciate the challenges that enforcement officials have every day in dealing with this type of behaviour.

Compounded with that is the whole area of the Internet servers, which are not, as everyone who has investigated this type of offence, generally located within this jurisdiction. They are in other jurisdictions around the world which adds a whole area of complexity to investigation, enforcement, prosecution and sanctions.

For all witnesses, and the measures taken to protect their well-being and identity, it has to be left to the court just like every other case to determine the weight that is to be given the evidence at the end of the day.

The proposed creation of two new voyeurism offences is also noteworthy. By setting up prohibiting factors for the secret observation and recording of a person, the bill sets up protection against a voyeuristic exploitation for all Canadians.

I have covered rather broadly some of the main proposals of Bill C-2. It is clear that these reforms are not only valuable, they are necessary. The bill will be referred to a committee. It is a topic that a lot of people in the House and a lot of Canadians from coast to coast to coast feel very strongly about. I have no question that the bill will be improved in committee and come back before the House.

I would like to join with my colleagues in the House who have spoken to voice my support for the reforms proposed by the bill. Children and other vulnerable persons are those who need the protection the most. Bill C-2 recognizes that and proposes solid legislation to provide the much needed protection.

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, I am pleased today to rise to speak to Bill C-2, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

Bill C-2 proposes a broad package of criminal law reforms that would significantly improve the criminal justice system's protection of children and other vulnerable persons.

The key elements of Bill C-2 are: strengthening the existing child pornography provisions; providing increased protection to young persons against sexual exploitation; increasing penalties for offences against children; facilitating the receipt of testimony by children and other vulnerable victims and witnesses; and creating new voyeurism offences.

This is positive legislation which can be supported by all parties and I urge all members to do so.

I would like to focus my comments on the proposed amendments relating to child pornography, an issue that is very much in the minds of hon. members, my constituents in the Niagara region, including the Catholic Women's League and their White Ribbon campaign, and indeed all Canadians.

Child pornography is an issue on which we find almost daily accounts of new charges and prosecutions in Canadian newspapers as well as those around the world. To my mind this demonstrates two very important factors. On the positive side, our existing child pornography prohibitions are working. On the negative side, we need to do more to combat the sexual exploitation of children through child pornography. This is exactly what Bill C-2 does.

Bill C-2 proposes to broaden the existing definition of child pornography to include audio format. Specifically, it would include audio recordings that advocate or counsel unlawful sexual activity with a child as well as such recordings that have, as their dominant characteristic, the description, presentation or representation, for a sexual purpose, of unlawful sexual activity with a child.

The existing definition of written child pornography would also be expanded 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.

Bill C-2 would also create a new prohibition against advertising and possession for the purpose of advertising child pornography. This new offence would be punishable on indictment by a maximum penalty of 10 years' imprisonment. This is a wake-up call for the predators that their criminal acts will be vigorously prosecuted and severe sentences imposed.

Bill C-2 also proposes significant reforms relating to sentencing in child pornography cases. First, it proposes that the maximum penalty for all child pornography offences, on summary conviction, be tripled from 6 to 18 months. Second, it would make the commission of any child pornography offence with intent to profit an aggravating factor for sentencing purposes. In other words, those who seek to profit by sexually exploiting children through child pornography will get a tougher sentence.

The intent and impact of these child pornography specific sentencing reforms are further underscored by the fact that Bill C-2 also proposes two amendments to the Criminal Code's sentencing principles.

In particular, in cases involving the abuse of a child, Bill C-2 directs courts to give primary consideration to denunciation and deterrence of such conduct in determining the appropriate sentence to be imposed. Bill C-2 also requires a court to consider the abuse of a child as an aggravating factor for sentencing purposes.

In addition, Bill C-2 proposes to replace the existing defences of artistic merit, education, scientific or medical purpose and public good with a two-part, harm-based legitimate purpose defence. This new defence narrows the existing defences and replaces what had previously been proposed as the public good defence in Bill C-12 in the last session of Parliament with a clear and more easily understood defence. This new defence incorporates the harm standard adopted by the Supreme Court of Canada when it upheld the constitutionality of the child pornography provisions in 2001.

Under Bill C-2, a defence for an act in relation to child pornography would only be available where the act in question has a legitimate purpose related to the administration of justice, science, medicine, education or art and does not pose an undue risk of harm to children.

Under this new defence, the availability of a defence does not change the child pornographic nature of the material. Material that has been found to constitute child pornography as defined by the existing Criminal Code provisions or as expanded by Bill C-2 would remain child pornography.

Instead, Bill C-2 would require the court to consider whether the use made of the material in each instance is protected by the defence. For example, possession of child pornographic photographs by police for purposes associated with the investigation of a child pornography case would benefit from the defence, because the act of possession of the photographs is for a legitimate purpose related to the administration of justice and does not pose an undue risk of harm to children. Possession of the same photographs by a child pornographer for his personal use would not be protected by this defence.

As I said at the outset, Canadians want us to do more to combat child pornography and I am pleased to see that this is what Bill C-2 delivers. In addition to the new reforms proposed by Bill C-2 in May 2004, the government launched a national strategy to protect children from sexual exploitation on the Internet.

This new national strategy is providing just over $42 million to expand the RCMP's national coordination centre against child sexual exploitation and provide law enforcement with enhanced resources to investigate Internet-based child sexual exploitation, including child pornography. Funding is also being used to enhance public education and to nationally expand Cybertip.ca, a 24/7 public tip line.

Together, Bill C-2 and the recently enhanced resources send a clear and strong message that we condemn the sexual exploitation, abuse and neglect of children and other vulnerable persons. It sends a message that we have declared war on child pornography. I call upon all members of the House to support the bill and I ask that it be given quick passage.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I am pleased to participate in the debate on Bill C-2, the subject matter of child pornography. I think every member in this place would agree that the existence of child pornography necessarily means that a child has been abused.

Bill C-2 contains amendments to the Criminal Code but nowhere do we have the full definition of what constitutes pornography. In the Criminal Code, child pornography means:

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity; or

(ii) the dominant characteristic of which is the depiction, for sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or

Part (b) is now replaced in part by adding audio recording. Part (b) will now read:

any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

The bill adds new paragraphs (c) and (d) referring to:

(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or

(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

Should Bill C-2 pass, that, in its totality, will be the definition in the Criminal Code of child pornography.

Bill C-2 does build on the constructive input of parliamentarians over the last couple of Parliaments. We have dealt with some very touchy subjects. Artistic merit was very problematic for the House. Another was public good. I am not sure many people at the time understood what public good meant. It is terminology that has tended to open up certain difficulties with members but with which I think we can still work.

I suggest that in this bill we have a new concept called legitimate purpose. I think we could use better language and maybe the committee will help us to understand what better language there might be. The important thing is that we have to communicate with Canadians about the essence of the bill and the essence of the government's approach to addressing this most serious issue of child pornography.

I would suggest, as an example, that legitimate use might be replaced by authorized possession. That would mean that police officers who seize material in their role would be authorized to possess that material. A medical officer doing testing relating to a particular case would be an authorized possessor of child pornography. A scientist looking at some of the impacts, et cetera, could be one. Another, for educational purposes, could be for those who are training others to deal with the terrible situation of what happens to children when they are the victims of abuse relating to child pornography.

I want to comment on the fact that Bill C-2 contains the add on item of for art, which has been raised by other members in the House. The Robin Sharpe case really raised this. Sharpe had four charges laid against him. Two charges were clearly related to possession of pornography as defined under the Criminal Code and two were related to the possession of materials which Mr. Sharpe created himself, arguably, as he stated, for his own use. The Supreme Court ruled that the possession of these materials, written or pictures, did not constitute possession of child pornography.

I began to wonder whether this whole issue of art was in fact related to what the Supreme Court said about the possession of something that was created by oneself. Then I thought, and I am not a lawyer and I am not sure whether my case would ever hold up, but it would seem to me that the question would probably be moot. If I created something which clearly was for my own use, I would be the author and no other person would know about it. I would not show it to any other person. If I were to show it to someone then I would be distributing which would be contrary to the existing Criminal Code.

Therefore, if materials exist, which I have produced for my own purposes, and no evidence exists that they have gone beyond my own use, why would I need the protection of those who produce things for art? It really gets down to the fact that if it is for my own use then no one knows, and if someone does know then someone else must have it and therefore all of a sudden we have production and distribution of pornographic materials.

I think we will be dealing again with a matter that this place has dealt with so many times before and that is the whole issue of court made law. The Supreme Court of Canada often, it has been suggested, has had to take the initiative because Parliament has not.

I believe this is the time for us to take the initiative to make absolutely sure the legislation reflects the values of Canadians. I know we will get into these arguments about whether the rights of one party contradict the rights of others.

Let me review section 1 of the charter as interpreted by the Supreme Court with regard to the values underlying a free and democratic society. The Supreme Court describes it as follows:

--respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

It is a complicated statement but in my opinion this particular statement basically includes all, every belief, every practice, every action. I do not understand how we could possibly have laws that could be charter proof when in fact the Supreme Court of Canada basically said that we had to protect everyone for all things at all times.

There has to be a point at which we say that the rights of children should be put first, ahead of the rights of others who may meander into areas which border on the abuse of children.

I think this is the fundamental essence. I think it is extremely important that Parliament will be sending the bill to committee after first reading, not at second. It means that substantive changes to the legislation are possible. It means that having witnesses on matters of concern can be brought forward. If the bill had been referred to committee after second reading it would not be possible. I think this is an important change in the way in which the House will be addressing legislation.

I am very hopeful that the members of the justice committee will seek to clarify the whole concept of court made law, particularly with regard to the interpretations related to the protection of individuals. The statement that the Supreme Court made with regard to how it interprets section 1 of the charter, quite frankly, is too broad. We have to understand this better.

Parliamentarians will do a better job when they know what they are up against but, quite frankly, unless we take the onus and the initiative to lay it out clearly for Canadians, then we will not be successful.

I am pleased to have participated in this brief debate on Bill C-2. I believe many in the House have indicated that if there were any issue on which they would want the notwithstanding clause to be invoked it would be with regard to the issue of child protection and child pornography.

I hope all parliamentarians will seize the day.

[Carol Skelton, Conservative, Saskatoon—Rosetown—Biggar, SK]

Mr. Speaker, while I am pleased to have this opportunity to speak to Bill C-2, I draw no pleasure from speaking to the child exploitation issue yet again. The Liberal government has failed to protect Canada's children in the past and the proposed legislation does little to correct that injustice.

Going door to door during the election, I was struck by the amount of people who raised the issue. The concern was broad. Parents, grandparents, teachers, police officers, neighbours and even teenagers brought the issue to my attention. All were unanimous in urging me to demand the toughest protections possible.

Recently, I sent out a community publication on the issue and the comments I got were revealing.

Dwight of Saskatoon was unequivocal when he stated, “All forms of child pornography are unacceptable”. Brian, also of Saskatoon, said “I think people having child pornography material should be prosecuted and face severe consequences”. Saskatoon resident Natasha said, “Child pornography should not be tolerated in any way, shape or form. These children are our future--this is not to be taken lightly. Child pornography made her “sick, sick, sick”. I could not agree more.

Perhaps Tina identified the real problem. She said, “The time may come when an MP or government official's child is exploited, that will change people's minds”. I sincerely hope that is not what it takes, and I do not understand why the government fails to send a better message to Canadians. The Liberal inaction and indifference to the protection of our children is inexcusable.

In a survey of my constituents the results were clear. When asked if they thought all types of child pornography were unacceptable, 92% said, yes. When asked if child pornography could be produced without causing harm to a child, 97% said, no. If 97% of the people say that pornography harms a child, why has the government done nothing to stop it? When asked if they wanted the laws of Canada to ban all types of child pornography, 98% said, yes. When asked if those caught with child pornography should be included in the national sex offenders registry, 96% said, yes.

This is significant because it shows how much Canadians believe that child pornography has a direct correlation to sex offences. My constituents believe that this issue hits close to home because when they were asked if they thought child prostitution was a problem in their neighbourhoods, 83% said, yes.

The last two questions of the survey lead me to my next part of the debate involving child pornography and the Internet. My constituents were asked if they had accidentally encountered offensive pornography on the Internet and over half of them said, yes. This is important when we consider the final question they were asked. They were asked if Internet pornography increased the risk of child sexual exploitation and 89% of my constituents said, yes.

My constituents have been clear. They believe child pornography in all forms should be banned and also that its presence on the Internet is harmful.

In the last Parliament I introduced a private member's bill calling for mandatory installation of software on all public computers accessible by minors which would block offensive and dangerous material. Unfortunately, an early election call put an end to that important initiative.

A judge in my riding explained to me that this was a growing problem, as he witnessed on a recent visit to a local library. Crowded around a public access computer was a group of young children viewing pornographic websites.

If it is happening in such a public place, one can only imagine what is happening upstairs when a parent is busy making dinner. Even when children are supervised, the most unexpected things can happen at the worst possible moment.

A grade one teacher was excited to get Internet access in her classroom as it would allow her to enhance the learning experience for the children. As a fun exercise she suggested they name off a bunch of animals to research. Once she had the list on the board she asked the class to pick by vote. We must remember that this was a grade one class and, without any malicious intent, they picked the beaver.

One can imagine having to be a teacher and explaining to the children why they could not research such an animal. While the situation is funny to some, it is but one example of a growing problem of youth and an open Internet. They are being exposed to graphic and violent material by accident and without proper explanation or guidance.

One can only imagine the warped view of sexuality many children will develop long before their parents get a chance to discuss the issue with them. This legislation does nothing to prevent these problems, and for the problems it intends to fix it does not.

I have a big problem with the artistic merit defence. A number of people in the arts community say that it is just art, that it has no negative effects and that it does not inspire anyone.

Well, when one goes to the computer and goes to Google and searches the term “art inspires”, 250,000 references are found. Artists often speak of their desire to see their art inspire people for one reason or another. I am sorry but we cannot have it both ways. Either art has impact and influence or it does not. I suggest the arts community in Canada step forward and prevent a minority of perverts from using them as an excuse for their fetishes.

The hon. member for Wild Rose brought in a Toronto police officer to meet with MPs and he showed us child pornography images. They were sick and disgusting and they left a long lasting impression. It does not please me to say that I can still recall many of those images in detail. My heart goes out to our law enforcement officers who must work through this smut all day just to go home and interact with their young children. It must have a stressful impact on many of these young mothers and fathers.

The Liberal government knows the legislation is not the toughest it can put forward. It knows its legislation has too much room for interpretation and grey area. It knows it has not fulfilled its promise to Canadians. It knows too that raising the age of consent from 14 to 16 years of age would provide our police with an important new tool.

Our law enforcement officers are often powerless to prevent the exploitation of children, especially our street kids. As long as adults can get sexual access to children through weak laws, they will. We do not want Canada to become a sex trade tourism location any more than it already is.

On city streets we often see prostitutes barely past puberty selling their bodies to support one addiction or another. We see police forced to sit by and watch as they do not have the proper tools to target child hunting Johns. If we as a government do not provide them with the tools to fight this kind of crime, we cannot blame them when things go wrong.

In Toronto last year a child was abducted on her walk home and killed. Her killer says that his access to and viewing of child pornography was the main reason he committed this horrible crime against this innocent child. Police were blamed for the high amount of sex offenders in the community. They were blamed for the delay in finding the killer. They were blamed for not preventing access to child pornography in the first place.

Well I say shame on the Liberal government. The Liberals must be the ones to shoulder the blame for not providing the police with the legal tools and necessary funding to prevent and fight such crime. Now they have the opportunity and we see them skirting their responsibility.

I have some questions for every government member. When their young child or grandchild grows up will they be able to say that they did their absolute best? Will they be able to tell them honestly that this was the best they could do? Are they proud of this flawed legislation? We need to fulfill our obligations to our electorate.

I sincerely hope the government plans to amend its legislation to reflect the wishes of the majority of the House and the majority of Canadians. Our children are counting on us even if they do not yet know it.

[Larry Bagnell, Liberal, Parliamentary Secretary to the Minister of Natural Resources]

Mr. Speaker, I am pleased to speak to Bill C-2, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

I share the view of the Minister of Justice that the bill would provide a comprehensive child protection regime to protect the most vulnerable members of our society. It would increase the criminal law's protection against child pornography, create a new sexual exploitation offence to protect children between 14 and 18 years of age, increase the maximum sentences for child related offences, facilitate the testimony of child victims and witnesses, protect the other vulnerable victims and witnesses and create new offences of voyeurism.

It is the latter offences that I would like to address more particularly today.

The creation of new offences of voyeurism is an example of how the criminal law can be made to keep abreast of new developments. Voyeurism has probably existed since humankind started living in society. However, the means used in conducting voyeurism have evolved drastically in recent years. For centuries, the only way of observing a person without the knowledge of the person was to hide behind a curtain, look through a window in the dark or look through a hole in the wall. In those days a person who wanted to spy on another person had to get involved personally. One would have thought the risk of being found out would have been a deterrent.

This was still the case up until a few years ago. It was certainly the case when the Criminal Code was first enacted in 1892. Until recently, Canadians were sufficiently protected by prohibiting trespassing at night or mischief. Things have changed since then. The major changes were brought by the advent of the Internet and the miniaturization of cameras and recording devices. Nowadays a camera smaller than a pen can be hidden in a room and allow a person to view what happens in the room while sitting at a computer in another building.

I am not suggesting that we become paranoid, but it is something of which we should be aware. We believe the law should be made to cover the offences committed with new technologies. With Bill C-2, we are called upon to enact such an adaptation of the law to address the misuse of new technologies.

The bill would create new offences to address modern acts of voyeurism, acts committed through small hidden cameras that are hard to detect and acts that, when committed now, do not fall under the criminal law and leave the victims with no other remedy than trying on their own to obtain compensation in civil courts.

The offence of voyeurism has four elements. First, it requires an act of observation or recording. Second, the observation or recording must be conducted in a surreptitious manner, which means that the person observed cannot reasonably be expected to see the person or the means used for observing or recording. Third, the person must be in circumstances giving rise to a reasonable expectation of privacy. Fourth, the elements of one of these specific cases must exist.

The first is a case when the person observed or recorded is in a place where one can reasonably expect a person to be in a state of nudity or engaged in sexual activity. I would think a bathroom, bedroom or fitting room would qualify as such a place. The second case is when a person is in a state of nudity or engaged in sexual activity and the purpose of the observation or recording is to observe or record a person in that state. The third case is when the observation or recording is done for a sexual purpose.

Bill C-2 would also prohibit the distribution of material obtained by the commission of an offence of voyeurism. Canadians value their privacy. In some situations there is a clear and reasonable expectation of privacy. This legislation has been designed with a view to protect this expectation of privacy.

Some may argue that the legislation will prevent the legitimate gathering of information when these techniques become prohibited. For cases where such techniques must be used to serve the public good, the legislation provides a public good defence to an offence of voyeurism. Outside of these extraordinary circumstances the message is clear: using these techniques is unacceptable behaviour now and it will become criminal behaviour when Bill C-2 becomes law.

[Richard Marceau, Bloc, Charlesbourg, QC]

Mr. Speaker, it is a pleasure for me to rise in this debate on Bill C-2. First I want to offer my congratulations on your important position in this minority government Parliament.

This House will not see many bills as important as Bill C-2. There are a number of aspects to it, including the battle against child pornography. I believe, and this belief is shared by all members of the Bloc Quebecois, that few of an MP's responsibilities are more important than protecting the most vulnerable people in our society, in this case, the children. All members will agree that children are our most important resource. They are our future. They deserve all our attention and more importantly, all our protection.

We could spend a long time debating this issue, but I believe you will find, beyond the partisan rhetoric in this House, that all members of Parliament want to fight sexual deviance--the attraction to minors. That is the attitude the Bloc Quebecois will take in this debate. Since the beginning, we have maintained a responsible and rigorous attitude. This was our attitude in the previous legislature when we debated this bill in its previous form. Our attitude will be the same this time for Bill C-2.

There are three main elements to Bill C-2: fighting the sexual exploitation of minors; fighting voyeurism, particularly at a time of Internet accessibility and of cameras and technology that make it possible to miniaturize nearly everything; and fighting child pornography. Since I have only 10 minutes, I would like to proceed in reverse order and begin with the problem of child pornography.

When we examine a bill, especially one that amends the Criminal Code, it is important to look carefully at the words in the legislation and the definitions in it. Bill C-2 defines child pornography as follows, and I quote:

“child pornography” means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or

(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would bean offence under this Act; or

(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would bean offence under this Act.

For an individual to be found guilty of child pornography, their actions must fit within the definition I have just read.

A means of defence is created. This is a fairly basic difference between the Bloc Quebecois and the Conservative Party.

The bill creates a single means of defence: that of legitimate purpose, unlike the previous bill. Thanks to our committee work, we were able to make a rather significant change, since the old defence was the public good.

That was a very nebulous concept. A number of people faulted it for that reason. It had been defined in the previous legislation. The definition of legitimate purpose in Bill C-2 repeats the one we had added in committee in place of public good. According to the definition, the legitimate purpose could be related to theadministration of justice or to science,medicine or education.

Certain individuals would therefore not be found guilty of child pornography, when their aim was in fact to fight it. They could be, for example, a psychiatrist treating sexual deviants who are child pornographers, a police officer investigating child pornography cases, or a university teaching future psychiatrists about child pornography.

The amendments to Bill C-2, the new definition of the means of defence, have tightened it up. The list of activities I have given is, moreover, all-inclusive, and will thus limit the means of defence.

Thus, for a person to be found guilty of child pornography, there are two tests. The first is to determine whether what the person did falls within the rather narrow definition of child pornography. If so, the second test is to determine—and this is a defence—whether the act alleged serves a legitimate purpose or not.

Several concerns were raised in committee, in particular about artists who might write a book in which they describe their first sexual experience. The first question is whether the book is written material whose dominant characteristic is the description of sexual activity for a sexual purpose.

Thus, the bar is already fairly high. Many legitimate artists would not have to worry about failing the first test. Indeed, in most cases, their written material does not fall within the definition. If by some misfortune it is considered child pornography, the defence would still be available.

Bill C-2 strikes a fair balance, allowing a fairly serious crackdown—a position the Bloc Quebecois agrees with when it comes to child pornography—but leaving a degree of latitude for doctors, police, and some artists. For example, a nude painting or statue by Michelangelo will not be considered child pornography.

I would simply like to express my disappointment. I think the parliamentary secretary is aware of the fact that there is no minimum sentence for anyone found guilty of child pornography. What the minister wants to do—what members of his team have told me—is to send a strong message that we want to fight child pornography by increasing maximum sentences.

I think the argument can be made that a minimum sentence is also essential in ensuring that a person found guilty of child pornography gets a taste of penitentiary life.

We are talking about those dearest to us, about very fragile beings: our children. Anyone who touches our children in a sexual manner deserves a mandatory prison sentence to make sure he does not reoffend.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Speaker, I am pleased to speak today to Bill C-2, an act to amend the Criminal Code and the Canada Evidence Act.

In general, Bill C-2 supports a strong commitment in the Speech from the Throne to crackdown on child pornography. It would broaden the definition of child pornography and increase the maximum penalty for all child pornography offences. It would prohibit the sexual exploitation of youth and double the maximum penalty for the offence from 5 to 10 years.

The bill would also create two new voyeurism offences that would prohibit the distribution of voyeuristic material and enable police to seize pornographic material obtained in such a manner.

In particular, Bill C-2 contains a number of important reforms to our court system that I would like to bring to the attention of the House. The reforms proposed in Bill C-2 would change and improve the way in which a witness offers testimony in court. These improvements would effect three broad categories of witnesses: child victims or witnesses under the age of 18; victims of criminal harassment, commonly known as stalking; and witnesses with a disability that makes it difficult for them to communicate.

The courtroom can be a scary and intimidating place for anyone serving as a witness to crime. For victims who are providing their own testimony, the experience of appearing in court can be especially traumatic since they must essentially relive details of the crimes committed against them and most often they are required to do so in the presence of the accused.

For the victims of sexual abuses and other serious crimes, this process can cause extreme emotional upheaval and make it very difficult for a witness to provide a full and candid account. This is especially true for victims of child sexual abuse or those vulnerable with a disability since they are the least familiar with the justice system and may not fully understand or comprehend the court process.

While our current criminal law goes a long way in addressing the needs of young victims and witnesses in the courtroom, we need to do more to reduce the revictimization of all the vulnerable witnesses. At present, there are a number of tools available in the courtroom, known as testimonial aids, which include the following: the use of closed circuit television to prevent face to face encounters of the young victim with the accused; the setting up of a screen in the courtroom to avoid visual contact between the victim and the accused; the adoption of videotaped evidence; the exclusion of the public from the courtroom; publication bans; and the appointment of counsel to conduct cross-examination if the accused chooses to represent himself in court.

However the current laws require the crown or young witnesses to actually prove the need for such aids in court. This is problematic for two reasons: it requires child victims to provide additional court testimony and thereby increase their trauma; and crown attorneys are often discouraged by the extra court time it takes to process the application.

Bill C-2, therefore, would clarify the situation by making testimonial aids available upon request, rather than requiring young victims and witnesses to prove that such aids are necessary.

In addition, the reforms in Bill C-2 would make testimonial aids available to vulnerable adult victims and witnesses where they can demonstrate a need.

Perhaps most important, the bill addresses the situation where a child victim is exposed to hours and sometimes days of face to face cross-examination by the accused if the accused has chosen to represent himself or herself in court. By deliberately choosing to represent himself or herself in court, the accused is able to succeed in further intimidating the victim by cross-examination.

Bill C-2 would prevent the accused from using personal intimidation in the courtroom by the appointment, at the specific request of the victim, of a counsel to conduct any cross-examination. These reforms would also be made available to adult victims provided they can demonstrate the need for testimonial aids.

Victims of domestic and sexual assault, for example, are also at great risk of being revictimized through personal cross-examination by the accused.

I am sure many Canadians will recall the notorious Robin Sharpe case in which he chose to represent himself in court on charges of gross indecency. Mr. Sharpe was permitted to personally cross-examine his victim causing that person to experience tremendous emotional trauma and, in effect, revictimizing the witness.

Bill C-2 would prevent these types of situations from happening again in the future.

Victims of criminal harassment, commonly known as stalking, would also be able to request that a counsel be appointed to conduct cross-examination if the accused has elected to represent himself or herself in court. The court would be required to grant the order unless it interferes with the proper administration of justice.

Bill C-2 also includes amendments to publication ban provisions in the Criminal Code in order to ensure that those provisions remain effective as new communication technology emerges.

These reforms will be of interest to all members of the House who advocate for rights of victims of crime. I trust that all members will support them in order to further our collective goal of improving the experience of crime victims.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Mr. Speaker, I am pleased to rise today on behalf of the constituents of Fleetwood—Port Kells to participate in the debate on Bill C-2, the child protection bill. This bill is almost identical to previous legislation, Bill C-12 and Bill C-20. They were primarily intended to address concerns regarding Canada's child pornography laws.

Canadian children deserve nothing less than total protection from child pornography. This legislation, however, is little more than smoke and mirrors. As lawmakers, we have the tough task of weighing the protection of children from sexual exploitation against the protection of free speech and free thought protected in the Charter of Rights and Freedoms.

On this question, I agree wholeheartedly with Cheryl Tobias, a lawyer from the Department of Justice, who said, when appearing before the Supreme Court during the John Robin Sharpe case that if pedophiles have a constitutional right to free expression, “it is dwarfed by the interests of children in our society...We ought not sacrifice children on the altar of the Charter”.

What we need are laws with teeth. Toothless laws will only hamper police and crown attorneys as they try to catch producers of child pornography.

Children should not be sexually exploited, but it continues to happen thousands of times a day. There does not seem to be the political will to stop it by the weak and arrogant Liberal government.

The Department of Justice proposed Bill C-2 and its predecessors to expand the offence of sexual exploitation and the definition of pornography, and to eliminate the defence of artistic merit in child pornography proceedings.

As well, the bill would increase maximum sentences for people convicted of these crimes. If passed, the bill would create a new offence of voyeurism and the distribution of voyeuristic material.

Bill C-2 is a reaction to the case of John Robin Sharpe, a child pornographer charged with possession of child pornography. Sharpe was initially found guilty of possession of child pornography, but on appeal, two lower courts acquitted Sharpe citing the Charter of Rights and Freedoms.

Sharpe had as many as 400 images of boys younger than 14 engaged in sex and a collection of his own stories entitled “Kiddie Kink Classics”. 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.

This ruling resulted in the current legal status of child pornography in Canada which is too permissive and threatens the safety of children. Earlier forms of Bill C-2 sought to close the loophole that allows people to create child pornography using artistic merit as a defence by establishing a standard of public good.

The Liberals have now been forced by public outrage to drop the term public good as a defence for the possession of child pornography. They have replaced public good with a new defence of legitimate purpose. Legitimate purpose is defined to include, among other things, art.

The Conservative Party wants the elimination of all defences that justify the criminal possession of child pornography. There is nothing artistic about child pornography. It is wrong and has been shown to lead to the sexual abuse of children.

Police and prosecutors still do not have the tools to deal with child pornography cases effectively or efficiently. In the first three years that members of the Toronto child exploitation unit spent tracking child pornography, they made 27 arrests and seized 84 computers with millions of images, but the police have been frustrated in their attempts to get jail time for these offenders. Most get conditional sentences or house arrest. The police frequently spend more time investigating the cases than offenders will spend in jail. This is the case for other crimes as well.

In my riding of Fleetwood—Port Kells marijuana grow operations are a significant concern. The RCMP recently announced that there are 4,500 marijuana grow ops in the City of Surrey. That represents about 6% of the city's households.

There will be 2,000 to 3,000 grow ops raided and shut down this year in the Fraser Valley. Across the border in Whatcom County there will be less than 10. The difference can be explained by the tougher sentences handed out in Washington State. There, operators of a grow op with more than 100 plants face an automatic five years in jail. For the first offence it is three months in jail and seizure of assets. In B.C. a person can be charged seven or eight times and still not be incarcerated.

The judiciary must hand out tougher sentences that better reflect community values. The higher maximum sentences contained in Bill C-2 for child pornography and predation will not be effective unless the courts enforce them.

Increased maximum sentences are 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, and no conditional sentences for child predators.

Conditional sentences which allowed child sex offenders, murderers, rapists and impaired drivers the opportunity to serve their sentences at home rather than in prison must be eliminated for serious offenders.

In 1999, 66,000 pornography images were found in the home of convicted pedophile Tony Marr. Police spent a year preparing the case against him, but Marr ended up with a conditional sentence and probation. One of the conditions of his probation was that he not use the Internet and computers except for medical purposes or work. Recent surveillance video showed him apparently working around a computer and exchanging CDs. This shows the absurdity of conditional sentences.

It is estimated that there are more than 100,000 child porn Web sites on the World Wide Web. A research group at the University of Cork in Ireland that studies child pornography is seeing an average of three to four new faces of abused children each month. About 40% of the girls and 55% of the boys are between the ages of 9 and 12. The rest are even younger. The group estimates that there are 50,000 new child abuse images being posted to newsgroups every month. Various studies have shown that about 35% to 50% of child porn collectors have a history of abusing children.

In the past three years 44% of the people arrested in Toronto for possessing child pornography have also been charged with or convicted with sexually abusing children.

The landslide child porn bust in the United States provided Canadian authorities with 2,329 Canadian leads, but almost 2,000 have never been looked at by police. That is because most communities simply do not have the will or resources or the officers who are trained to do the job.

Child killer Michael Briere admitted that he had been aroused by watching child porn on his computer just before he kidnapped, sexually molested and killed Holly Jones.

At present, the age of consent for sexual activity is set in the Criminal Code at 14 years of age. There have been recent reports that cross-border pedophiles are luring vulnerable children by way of the Internet. This cross-border pedophile activity into Canada has been enhanced by two factors: first, Canada's age of consent for sex is set at only 14 years, being one of the lowest of all western nations; and, second, Canada is one of the world's most wired countries; there are more than 10 million Internet users in this country.

According to a study by Microsoft, 80% of children in Canada have computers in their homes and 25% of them had already been invited to meet strangers that they had chatted with on-line.

The Internet has become a massive vehicle for criminals to lure and abuse Canadian children and to distribute illegal material. Research shows that pedophiles will often manipulate young children by showing them pictures on the Internet making them believe that sex with adults is acceptable.

Amendments were made to the Criminal Code in 2002 to make the luring of children through the Internet an offence. Although that was an important step to protect children--

[Bryon Wilfert, Liberal, Parliamentary Secretary to the Minister of the Environment]

Mr. Speaker, as a former educator it saddens and disturbs me to know that there are individuals in our society who exploit and take advantage of children. Therefore, Bill C-2 is important in terms of addressing issues that I think are of concern to all of us in the House, that is, issues involving the welfare of children.

Bill C-2, and in particular the part dealing with the protection of children and other vulnerable persons under the Evidence Act, is important legislation. It is also important that we move on this legislation as quickly as possible.

I believe that this legislation also reflects the importance of the issue for Canadians in general, because it is something that I think all of us can agree on. No one can tolerate or condone the exploitation of young children. Bill C-2 has a number of key elements that I believe do address that issue.

One is the strengthening of existing child pornography provisions. It would broaden the definition to include audio recordings as well as written material describing prohibited sexual activity with children where the description is the predominant characteristic of the material and pornography.

The legislation would create a new prohibition against advertising child pornography, which carries a maximum penalty of 10 years' imprisonment on indictment and would increase the maximum penalty for all child pornography offences, on summary conviction, from six to 18 months. As well, Bill C-2 would replace existing child pornography defences with a narrower, two-pronged legitimate purpose defence that incorporates a harm-based standard.

Bill C-2 would strengthen the protection for young persons against sexual exploitation. It would increase the penalties for offences against children. The legislation would also facilitate testimony by children and other vulnerable victims and witnesses. It also would create new voyeurism offences.

I want to clearly indicate my support for Bill C-2. The reforms that it proposes are all welcome indeed. However, I would like to focus the remainder of my remarks on the bill's proposals to better protect youth against sexual exploitation.

Bill C-2 proposes to create a new category of prohibited sexual exploitation of a young person who is over the age of consent for sexual activity, that is, who is 14 years of age or older and under 18. Under this offence, the courts would be directed to infer that a relationship with a young person is exploitive of that young person by looking to the nature and circumstances of that relationship.

The bill directs the court to consider specific indicators of exploitation. They include: the age of the young person; any difference in age between the young person and the other person; the evolution of the relationship; and the degree of control or influence exerted over the young person. Bill C-2 provides a clear definition to the courts to infer the relationship is exploitive of a young person after examining the nature and the circumstances of the relationship.

In my view, this direction recognizes that all young persons are vulnerable to sexual exploitation. It also recognizes that the particular circumstances of some youth might put them at a greater risk of being exploited. As a result, the bill directs the courts to consider the nature and circumstances of each relationship and includes a list of factors that I think reasonable people will readily acknowledge are typical indicators of exploitation.

We often hear concerns about youth being approached over the Internet by persons who would prey on their vulnerability. Let us take, for example, a case where the young person secretly and quickly enters into a relationship over the Internet. Bill C-2 tells the courts to take this into account as a possible indicator of exploitation.

Another example that we often hear concerns about is the one where a young person is in a relationship with another person who is significantly older than the young person. Bill C-2 tells the courts very clearly to take this into account.

Bill C-2 would recognize that a young person can be sexually exploited not only by someone who is much older, but also by someone who is a peer and again close in age. Bill C-2 would apply to both situations because the government recognizes that both situations are wrong and should be prohibited.

I appreciate that there is a diversity of opinion as to whether and when young people should engage in a form of sexual activity. The reality is, though, that adolescents do engage in sexual activity. It is also a fact that the prohibitions against sexual activity with persons below the age of consent are very broad. They do not differentiate between sexual activity that consists of kissing and sexual activity that involves sexual intercourse. I do not think Canadians want to criminalize a 17 year old for kissing a 15 year old, but Bill C-2 would not do that.

I agree with the focus of Bill C-2. It focuses on the wrongful conduct of the offender and not on the consent of the young person. That is in fact the way the criminal law responds to sexual assault in general, namely, by focusing on the wrongdoing of the offender and not the victim. In my view, the focus of Bill C-2 on the exploitive conduct of the offender is both the right focus and the right response.

I would also note that Bill C-2 proposes to double the maximum penalty for sexual exploitation of a young person, including for this new proposed offence, from 5 to 10 years when preceded by indictment. Together, the creation of this new offence and the doubling of the maximum penalty underscore the seriousness of the form of sexual exploitation.

In addition, Bill C-2 would increase the maximum penalty on summary conviction for child specific sexual offences of sexual touching, invitation to sexual touching, and sexual exploitation from 6 to 18 months. These reforms were previously welcomed by the Canadian Bar Association as part of former Bill C-12 from the last session of Parliament.

Bill C-2 would require sentencing courts in cases involving the abuse of a child to give primary consideration to the objectives of denunciation and different proposals to consider such conduct an aggravating factor for sentencing purposes.

Bill C-2 is important because of the initiatives in it. There are welcomed reforms to the criminal law to protect the most vulnerable members of our society. The time has come to deal with this issue effectively. I believe that the minister, in proposing this legislation, is addressing the concerns that we have heard both in the last session of Parliament and in this one. The time for action has come.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, allow me to begin by congratulating you on your appointment as Deputy Speaker of this House. I know you have always shown great concern for parliamentary freedom and the quality of debate in this House and will protect that freedom.

My congratulations as well to all the new MPs, my new Bloc Quebecois colleagues in particular of course. We are well aware of the extremely clear and strong mandate with which we, and our new colleagues over the way, have been entrusted by our fellow citizens.

Bill C-2 to amend the Criminal Code is an extremely important bill. Important, first of all because it is vital to follow up on the Supreme Court decision relating to child pornography in the Sharpe case, and second because child pornography is such a sensitive issue.

This is an extremely sensitive subject, and of course all members of Parliament are sensitive to anything that might possibly involve the exploitation of children. We do, however, also not want to put a system in that might inhibit artistic freedom, for example. A balance must be struck between the two, and we feel that the initial version of Bill C-2 does this successfully.

To begin at the beginning, the definition of child pornography is quite clear. There have, of course, been provisions in the Criminal Code for a very long time relating to child pornography. What makes this up to date and new is the variety of forms such pornography can now take, through new technologies like the Internet in particular.

For the purpose of this debate, then, we need to keep in mind the definition of child pornography. Clause 7 of the bill is intended as an amendment to section 163.1(1) of the Criminal Code which reads as follows:

163.1(1)(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means:

Electronic here being an innovation. Continuing:

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity

The first component of the definition of child pornography involves the depiction of a child under the age of 18 engaged in sexual activity. The expression “sexual activity” is key here.

The second component of the definition is as follows:

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

This definition is important since it must ensure that when judges—a judge in an ordinary court of law, but especially a judge in a criminal court—have appearing before them people charged with child pornography, the main component of the charge must be depictions of sexual activity of a person under the age of 18 years.

Does that mean that any depiction of sexual activity of a person under the age of 18 years will prompt the Crown to lay charges under the bill before the House? No, because there will be the same defences as the ones that already exist in the Criminal Code. In this case, there will be a defence that could be raised.

Thus, a charge will be laid if the definition I just read applies. However, the accused might not be found guilty of the charge. There could be situations or depictions of children under the age of 18 engaged in sexual activity that will not be prosecutable. This is the legitimate purpose defence the bill proposes.

What is a legitimate purpose? I will give the exact definition from the bill. The bill creates one defence in cases of child pornography, which only applies if the act has:

--a legitimate purpose related to the administration of justice or to science, medicine, education or art--

Why is this second element important? It is because in the Sharpe case it was possible to introduce two grounds for defence in court. I understand that this bill removes one of them.

It is certain that if a broadcaster regulated by the CRTC showed an advertisement on public television promoting a personal hygiene product such as soap or baby powder or such, and the public saw a child in a bath with another child, such a thing would not of course be subject to prosecution under the bill before the House. It is important to recognize this nuance.

When the Supreme Court handed down its decision in the Sharpe case, concerns were raised about the balance necessary between vigorous protection for those who want to exploit children for the purposes of child pornography and the rights of artists and professionals, such as psychiatrists and those in related fields, to have material that could be used for artistic or professional purposes, but not for the exploitation of children.

The bill also provides other means that may be somewhat less important but which are still justified. For instance, it allows testimony by children under 14. It is not customary for children under 14 to appear in court. Usually there would be an inquiry or a preliminary hearing first. The bill makes it possible to hear the testimony of children under 14. We believe it is completely proper to do so in a context where, considering the circumstances or facts that might lead to a decision that children were exploited for the purpose of child pornography, their testimony could incriminate or clear a person.

In addition, there are various methods of hearing testimony from persons significant to the child, using videoconferences or other such technology.

We in the Bloc Quebecois are in favour of this bill, in principle, but we do have certain concerns. I have not heard any response from the Parliamentary Secretary to the Minister of Justice to the following, which is our first concern. We understand that the bill will set maximum penalties that depend on the offence involved. For the main one I have referred to already, it will go up from 5 years to 10. We understand that sentencing will be affected by certain circumstances judged to be aggravating factors. We do, however, find it hard to understand why no minimum sentences are specified.

I know that some degree of discretion is afforded to the courts and the judges in determining sentences. The member for Charlesbourg—Haute-Saint-Charles will be bringing in an amendment in committee that will, I hope, be supported by all members. The purpose of that amendment will be to ensure that, when a case is heard relating to the new offence created by Bill C-2, there is a minimum sentence depending on whether a criminal prosecution or summary conviction is involved. We feel it is important to have both a lower limit, the minimum sentence, and an upper limit, the maximum sentence.

In short, we are in favour of this bill because it protects our children better. We do want to bring in one or two amendments relating to sentencing. I am sure that all members of the Bloc Quebecois will have a serious contribution to make when the Standing Committee on Justice meets.

[Rob Moore, Conservative, Fundy, NB]

Mr. Speaker, I rise today to speak to Bill C-2, an act to amend the Criminal Code in regard to the protection of children and other vulnerable persons.

First, I want to be very clear that there are some aspects of this bill that are worthwhile. I applaud those measures. For example, Canada is in need of legislation to deal with voyeurism and the distribution of voyeuristic material. As a matter of fact, there is a lady from my home province of New Brunswick, Julia Buote, who has helped to lead the fight for tougher laws on voyeurism. I commend her on that effort. We also need legislation that helps to facilitate the testimony of child victims and witnesses and this bill provides a step in that direction.

Unfortunately, as we have seen in the House before, these worthwhile measures are thrown in with a bill that still falls far short of what Canadian children require from this government. In short, this legislation allows for the continuation of a dangerous loophole that will allow for child pornographers to continue to possess what should be illegal material.

Much of the controversy over Canada's child pornography laws dates back to the court case of John Sharpe. In the Sharpe decision, the Supreme Court of Canada said that the Criminal Code defence of “artistic merit” should be interpreted as broadly as possible. This helped shape the decision that allowed Sharpe to be acquitted on two counts of “possession of child pornography with the intent to distribute”. The material in question contained violent writings targeting vulnerable children; however, the judge ultimately found that this material had artistic merit.

All across Canada, child pornography cases were put on hold while the Liberal government did nothing as the Sharpe case wound its way through the courts. For two years Canadian children effectively went without legal protection against child pornographers as police were compelled to put investigations on hold pending the appeals.

The Supreme Court held in Sharpe that artistic merit should be interpreted as including “any expression that may reasonably be viewed as art” and that “any objectively established artistic value, however small”, would support the defence.

When the Liberal government finally reacted to public outrage over the Sharpe decision, the response was woefully inadequate. Three times now, first with Bill C-20, then Bill C-12, and finally Bill C-2, which is before us today, the government has attempted to appear tough on child protection, but in reality is not closing loopholes that threaten Canadian children.

Actually, the government has now come full circle and is still including a type of artistic merit defence for the possession of child pornography.

Under Bill C-12 from the 37th Parliament, the existing Criminal Code defences for child pornography, which included artistic merit or educational, scientific or medical purpose, were reduced to a single defence of “public good”.

Despite the Liberals' attempt to sell the bill on the basis that the artistic merit defence had been eliminated, the former justice minister admitted in the justice committee that it was still included under the broader category of public good. He stated, “Artistic merit still exists in the sense that a piece of art will have to essentially go through the new defence of public good...”.

Interestingly, in the Sharpe decision the Supreme Court also briefly considered the defence of public good. The court found that public good has been interpreted as “necessary or advantageous to...the pursuit of, among other things...art or other objects of general interest”. Again, when Canadians discovered this loophole they were rightly outraged.

The Liberals are now proposing, in Bill C-2, another brand new loophole. This time it is called “legitimate purpose”. The new legislation replaces the term public good with legitimate purpose. The defence would be available if the act in question has a legitimate purpose related to, among other things, art, and if the act does not pose an undue risk of harm to children. The loophole for artistic merit has therefore not been closed and what constitutes “undue risk of harm to children” remains open to interpretation by judges.

In its 2001 Sharpe decision, the Supreme Court of Canada stated that artistic merit should be given as broad an interpretation as possible, a strong signal of how the courts view these defences.

I feel the question that Canadians are asking is why the government is contorting itself to leave open loopholes for the possession of child pornography. I believe the problem is that the government's focus is not on doing all it can to protect children but on what the courts might say if we passed effective legislation.

In my opinion, establishing a test of undue risk is an insult to Canadians. Any risk to the safety of children should be met with the strongest response possible.

I ask the government to listen to the people who work on the front lines of child protection. Listen to police offices who have to deal with the tragedy of child abuse. I will quote from Scott Newark, vice chair and special counsel for the Office for Victims of Crime. He said:

Almost invariably, as in the Sharpe case, it gets down to a section 1 interpretation by the courts; and frankly, rather than having the courts determine Parliament's intent, in every single piece of legislation, in my experience, you should be expressing it, particularly where what's involved is choices between priorities.

Again, the Sharpe case is an example of that. There was an absolute recognition in the Sharpe case that child pornography in all forms represents a risk of harm to children.

Sergeant Paul Gillespie of the Toronto Police Service 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.

Now police will be left to determine whether something serves a legitimate purpose or poses an undue risk before proceeding further.

I also want to talk about some other changes in the bill, one being maximum sentences. Again there is an appearance to the Canadian public that the Liberal government is being tough on people who commit offences against children. However increasing maximum sentences is meaningless if the courts do not impose these increased 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, truth in sentencing, eliminating statutory release and no conditional sentences for child predators.

All across the country child pornographers are given conditional sentences for their crimes. These people are serving no jail time. Canadians may not be aware of that. How then is raising the maximum sentence going to help when the courts are not even approaching sentencing beyond the minimum sentences? Higher maximum sentences for child pornography will not be effective unless the courts enforce them.

The bill also fails to prohibit conditional sentences and child predators should serve their sentences in prison and not in the community.

I want to touch on the age of consent. The bill ignores the pleas of police groups, child advocacy groups and the provinces by failing to increase the age of consent. The age of consent for adult-child sex must be raised from 14 to 16. On this issue, 80% of Canadians polled have said that they want to increase the age of consent to at least 16 years.

In 2001, provincial ministers unanimously passed a resolution calling on the federal government to increase the age of consent to at least 16.

Like Bill C-12 before it, Bill C-2 fails to raise the age of consent. Instead, the bill creates the category of exploitive relationships. It was already against the law for a person in a position of trust or authority or with whom a young person was in a relationship of dependency to be sexually involved. It is unclear then now how adding people who are in a relationship with a young person that is exploitive in nature will add legal protection for young people.

I believe all Canadians care very deeply about our children. I believe that all members of this House sincerely want to protect children. However the Liberal approach to protecting children consistently fails to put the needs of children ahead of the rights of criminals. This needs to change.

We must act in the best interest for Canada's children and close all loopholes that allow for the possession of child pornography.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased to speak to Bill C-2, an act to amend the Criminal Code concerning the protection of children and other vulnerable persons, and the Canada Evidence Act.

Bill C-2 addresses an issue that is foremost on the minds of many Canadians, mainly the protection of children against abuse, neglect and exploitation. It is also an issue that remains a priority of the government, a commitment that was reflected again in the recent Speech from the Throne, as well as by the fact that this is the first legislative item introduced in this Parliament.

Bill C-2 proposes much welcomed criminal law reforms and addresses five main issues.

First, it strengthens current provisions banning child pornography.

Second, it further protects children from sexual exploitation by people who take advantage of their vulnerability.

Third, it amends certain provisions on sentencing for offences against children, including violence and negligence, in order for the sentences to better reflect the seriousness of the offence.

Fourth, it will make testifying easier on the child victim or witness and other vulnerable persons through certain measures, by ensuring coherence and clarity in the rules for using testimonial aids and by making sure from the outset that the child is competent to testify.

Finally, it creates two new voyeurism offences prohibiting anyone from surreptitiously observing or making a recording of a person who is in circumstances that give rise to a reasonable expectation of privacy.

Canada's criminal laws against child pornography are already among the toughest in the world. Bill C-2 proposes further reforms that will make these laws even tougher.

Bill C-2 proposes the following child pornography reforms. It will broaden the definition of child pornography to include audio formats as well as written material that has as its dominant characteristic the description of unlawful sexual activity with children, where that description is provided for a sexual purpose.

Any advertising using child pornography is prohibited. The maximum sentence for any child pornography offence punishable on summary conviction is tripled from six to eighteen months.

It will make the commission of any child pornography offence with intent to profit an aggravating factor for sentencing purposes, and it replaces the existing defences of artistic merit, education, scientific or medical purpose, and public good with a two-part, harm-based, legitimate purpose defence.

Under this proposed reform, a defence would only be available for an act that has a legitimate purpose related to the administration of justice, science, medicine, education or art and does not pose an undue risk of harm to children.

Bill C-2 also proposes to provide greater protection to young persons against sexual exploitation from persons who would prey upon their vulnerability. Under the proposed reform, courts would be directed to infer that a relationship with a young person is exploitive of that young person by looking at the nature and circumstances of that relationship, including the age of the young person, any difference in age, the evolution of the relationship, and the degree of control or influence exerted over the young person.

Bill C-2 forces the court to consider the accused's conduct toward the child and not whether or not the child or victim consented to the conduct.

We often hear complaints about current sentencing results in cases involving child victims. Bill C-2 directly responds to these concerns and proposes numerous amendments.

In addition to the sentencing reforms related to child pornography, Bill C-2 also proposes to triple the maximum penalties on summary conviction from six to 18 months for child-specific sexual offences, as well as for child abandonment and the failure to provide necessities of life, and to increase the maximum penalty on indictment from five to 10 years for sexual exploitation of a young person, and from two to five years for child abandonment and failure to provide the necessities of life.

In all cases involving the abuse of a child, sentencing courts would be directed to give primary consideration to the objectives of denunciation and deterrence of such conduct and to consider such conduct an aggravating factor for sentencing purposes.

Bill C-2 also proposes criminal law reforms that will enhance the ability of child and other vulnerable victims or witnesses to provide clear, complete and accurate accounts of events, while at the same time respecting the rights and freedoms of the accused.

Bill C-2 will facilitate testimony through the use of testimonial aids in three categories of cases: in cases involving a child victim or witness under the age of 18, or a victim or witness with a disability; in cases involving victims of criminal harassment; and in cases involving other vulnerable adult victims and witnesses.

Bill C-2 proposes to amend the applicable test for the use of testimonial aids in cases involving all child victims. These aids would be available on application unless they interfere with the proper administration of justice. In cases involving victims of criminal harassment where the accused is self-represented, the Crown could apply for the appointment of counsel to conduct the cross-examination of the victim. In these cases, the court would be required to appoint counsel, unless doing so would interfere with the proper administration of justice.

In cases involving other vulnerable victims or witnesses, such as, for example, victims of spousal abuse or sexual assault, the Crown could apply for the use of any of the testimonial aids or the appointment of counsel to conduct the cross-examination for self-represented accused. In these cases, these adult witnesses would have to demonstrate that, based upon the surrounding circumstances, including the nature of the offence and any relationship between them and the accused, they would be unable to provide a full and candid account without a testimonial aid.

Bill C-2 also proposes amending the Canada Evidence Act to abolish the requirement for a competency hearing for the witness and to abolish the distinction between testifying under oath or not.

Under Bill C-2, the competence of a person under 14 years of age to testify will depend on that person's ability to understand and answer the questions, and not on their ability to explain what it means to them to swear an oath or tell the truth. It will be up to the judge, as in any other situation, to weigh the testimony.

Last, Bill C-2 proposes to modernize the criminal law's response to the new ways in which acts of voyeurism are being committed.

As I said at the beginning, Bill C-2 proposes many welcome changes to the Criminal Code. The House has already passed an earlier version of this bill. I hope this new and improved version will still receive the support of the hon. members.

[Lucienne Robillard, Liberal, for the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I move:

That Bill C-2, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, be referred forthwith to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

Motions for Papers

[Some hon. members]

Agreed.

(Bill C-2. On the Order: Government Orders)

October 8, 2004--The Minister of Justice--Second reading and reference to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness of Bill C-2, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

Criminal Code

[Irwin Cotler, Liberal, Minister of Justice and Attorney General of Canada]

moved for leave to introduce Bill C-2, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

(Motions deemed adopted, bill read the first time and printed)