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

[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)