Bill C-26 (Historical)

Tougher Penalties for Child Predators Act

An Act to amend the Criminal Code, the Canada Evidence Act and the Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender Database Act and to make consequential amendments to other Acts

This enactment amends the Criminal Code to
(a) increase mandatory minimum penalties and maximum penalties for certain sexual offences against children;
(b) increase maximum penalties for violations of prohibition orders, probation orders and peace bonds;
(c) clarify and codify the rules regarding the imposition of consecutive and concurrent sentences;
(d) require courts to impose, in certain cases, consecutive sentences on offenders who commit sexual offences against children; and
(e) ensure that a court that imposes a sentence must take into consideration evidence that the offence in question was committed while the offender was subject to a conditional sentence order or released on parole, statutory release or unescorted temporary absence.
It amends the Canada Evidence Act to ensure that spouses of the accused are competent and compellable witnesses for the prosecution in child pornography cases.
It also amends the Sex Offender Information Registration Act to increase the reporting obligations of sex offenders who travel outside Canada.
It enacts the High Risk Child Sex Offender Database Act to establish a publicly accessible database that contains information — that a police service or other public authority has previously made accessible to the public — with respect to persons who are found guilty of sexual offences against children and who pose a high risk of committing crimes of a sexual nature.
Finally, it makes consequential amendments to other Acts.

Tougher Penalties for Child Predators Act

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, this is up my alley because I worked for probation and parole for 13 years, and my daughter Mindy is a correctional worker at the Brampton youth correctional centre.

One of the questions that was posed a while ago was about whether sentences should be concurrent or consecutive. I can say that the government and Parliament have a responsibility to ensure that the Criminal Code is clear about what an offence constitutes, but at the end of the day it will be a decision by a judge that will determine whether or not that sentence should be consecutive or concurrent, based on the assessment, the pre-sentence reports, the pre-disposition reports, and whether the offender is an adult or a youth.

As well, it is a bit rich that we are studying a bill about sexual offences right now when the government did not spend the $10 million of funds that were earmarked for the National Child Exploitation Coordination Centre. Maybe my colleague can elaborate on that.

The other thing that I would like the member to elaborate on is the importance of prevention and rehabilitation and how that can help us as a society and ensure that we will all be safe at the end of the day.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I would like to thank my colleague for her questions, which could well be the topic of a dissertation.

It is disgraceful that the $10 million in question was not spent, since that money was supposed to be used to provide direct assistance to victims. The Conservatives often say that we on this side of the House do not care about victims. Nevertheless, we are talking about many programs that have proven their worth. They do not cost much, but they provide really good value for money. It seems to me that the Conservatives are completely missing the mark on this.

I would also like to thank my colleague for asking a question about prevention. Asking that question has nothing to do with favouring criminals over victims. On the contrary, I would not want any repeat offenders to be allowed to reintegrate into the community. I am not proud to say that such a registry will be created to inform me of the presence of dangerous people in my community. I would prefer that those people not be in my community. We need to work on that. We have to help the people who can be rehabilitated by using programs that have proven their worth. We need to think about other measures to deal with those who cannot be saved.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I rise today to speak to Bill C-26, the tougher penalties for child predators act.

Protecting children from predators is a Liberal priority, as I am sure it is a priority of everyone in the House. For that reason, we will support the bill, though in many respects we view it as a missed opportunity from a policy perspective. I want to be clear. Sexual violence is traumatic and devastating at any age, but even more so for children.

The attempt of criminal sentencing to in some way quantify the impact of sexual violence is a failure from the outset. As with all violent crime, no criminal sentence or civil remedy can undo the wrong that has occurred, though we would hope that healing is possible for every victim.

However, the law can only deliver an imperfect measure of justice. No, consecutive sentence, increased maximum penalty, no order for damages can undo the actions that society would justly have offenders repay.

The hearts of everyone in the House, including my colleagues on the justice committee, go out to the victims of childhood sexual offences. The testimony of victims we heard at committee was gut-wrenching and, frankly, at times difficult to listen to.

I want to say for the record that I was particularly struck by the testimony of Mr. Greg Gilhooly, a victim of the terrible crimes of Graham James. Mr. Sheldon Kennedy also appeared by teleconference, but unfortunately we experienced some technical difficulties into his testimony. In any case, I would like to commend both of them for assisting the committee with its work, along with Mr. Alain Fortier and Mr. Frank Tremblay of Victimes d'agressions sexuelles au masculi. Their bravery in going on the public record for the benefit of Canadian society is truly admirable and most appreciated.

As to the purpose of Bill C-26, Liberals support the policy objectives of reducing sexual offences against children, denouncing such heinous acts when they occur and separating offenders from society where necessary. However, from the Liberal perspective, the bill should have focused more on reducing crimes in the first place, rather than on punishing offenders once a child had been victimized.

In our committee over the past year we have talked a lot about victims, and rightly so, but we should put more focus on having fewer victims to talk about. Reducing rates of child sexual crime will require making meaningful fiscal commitments instead of these repeated changes to the Criminal Code.

Liberals believe it is crucial for criminal justice policy to be evidence-based. That belief is at the core of our support for the charter, which requires our courts to weigh a law's intended purposes against its actual effects in real life. Unfortunately, the bill is largely a missed opportunity when it comes to reducing sexual offences against children.

As we heard at committee, the data shows that a reduction in the incidence of these crimes would require investing in rehabilitation programs. Instead, we heard that the Conservatives had cut programs that successfully achieved reductions.

In addition, some provisions in Bill C-26 that reduce judicial discretion are problematic, though not fatal to our support for the bill. I will explain these conclusions in a minute. However, I would like to go over the provisions of Bill C-26 for the benefit of the House.

Bill C-26 seeks to amend the Criminal Code to increase mandatory minimum and maximum penalties for certain sexual offences against children, including sexual assaults and offences related to child pornography.

Bill C-26 would also increase the maximum penalties for violations of various court orders, including probation orders, peace bonds and so forth. In addition, it would amend the Canada Evidence Act to ensure that the spouses of the accused would be competent and compellable witnesses for the prosecution in child pornography cases.

The bill would also amend the Sex Offender Information Registration Act to increase the reporting obligations of sex offenders who travelled outside of Canada.

Finally, Bill C-26 would enact the high risk child sex offender database act to establish a public-accessible federal database that contains an amalgamation of already public information with respect to high-risk sex offenders.

I want to say a few words about rehabilitation, which I know is a principle of sentencing that the government prefers to ignore. However, from a public policy perspective, it is absolutely crucial. I say that not because anybody wants to put support for offenders above support for victims, but because we want to have fewer victims.

Some in this chamber may recall that at second reading I expressed considerable skepticism about the bill before us. After all, in 2012, many of the criminal provisions in Bill C-26 were amended in Bill C-10 to create or increase minimum penalties or to increase maximums. Since Bill C-10 came into force, the Minister of Justice, as repeated again today by the Minister of Finance, indicated that child sexual offences had risen by 6%. Therefore, it serves to reason that either Bill C-10 was ineffective at reducing the number of offences or that the government is again increasing penalties, without waiting to see whether Bill C-10 was effective.

I understand that maybe the focus here is denunciation and separating offenders from society, but I would plainly ask, why are we not doing more on prevention? Why is reduction not our central policy focus when it comes to child sex offences or at least worthy of equal focus to denunciation and separation from society?

Liberals will support the bill, but we would like a direct answer to this question from the government. Where is the prevention?

I would like to draw the government's attention to some specific testimony from the committee. We heard from two representatives from an organization, which was discussed earlier in debate, called Circles of Support and Accountability, or COSA.

COSA is a community-based reintegration group that holds sexual offenders accountable for the harm they have caused, while assisting with their re-entry into society at the end of their sentences. COSA was started by the Mennonite Central Committee, and there are chapters across the country.

At committee, we heard about the organization's remarkable success at reducing recidivism. Specifically, research indicates that offenders involved with COSA have a reduction of sexual recidivism of 70% to 80% compared to those who are not. The program is also very cost effective. For example, the annual budget in Ottawa, which would work with about 8 to 12 offenders a year, is less than the cost to incarcerate one offender in the federal system for a year.

COSA had been receiving $2.2 million in government money annually for two decades. However, the government ended that funding, which in Ontario, for example, supported 70% of its operations.

From a public policy perspective, how does it make sense to tinker with the Criminal Code, while defunding programs that are proven to reduce recidivism by 70% to 80%? Think of how many fewer victims that means, or maybe do not, because it is too heartbreaking.

Also on this point of prevention, speaking about the proposed federal sex offender registry, the Privacy Commissioner, Mr. Daniel Therrien, told the committee:

—evaluations that have been done based on the experience in the United States suggest that there is little or no evidence that registration and notification laws are effective, either in terms of deterring sex offender recidivism or in reducing reported sex offences.

Any government's time and money are limited resources. Is Bill C-26 an efficient allocation of those resources to serve the worthy objective of reducing child sexual offences? Again, I repeat, it is a missed opportunity.

I also want to mention that it remains my view, and the view of the Liberal Party, that some of these changes inappropriately remove judicial discretion from the sentencing process. Perhaps Conservatives look at these changes and think, “Great, higher sentences across the board”.

However, a key point that gets missed here is that discretion is not eliminated. It is simply downloaded to law enforcement and prosecutors. The result, in some instances, might be that we see no charge where we would currently see a relatively minor or moderate charge, because a new mandatory minimum would make an appropriate outcome impossible. Dr. Stacey Hannem, the chair of the policy review committee of the Canadian Criminal Justice Association, drew our attention to the particular problem of eliminating summary offence options.

In any event, I want to reiterate that Liberals will support this bill, because we indeed support the denunciation of child sexual offences and separating offenders from society where necessary. None of my criticisms of this bill detract from the gravity of these types of crimes. However, their gravity is why I wish the government would do more to prevent these crimes in the first place, rather than focusing exclusively on dealing with their consequences.

As I said, this is a missed opportunity to prioritize the prevention of these intolerable crimes.

[The Acting Speaker, Bruce Stanton]

Before we start questions and comments, I just wanted to indicate to hon. members that I know that this is an important and complex question. However, I do notice that in the period allowed for questions and comments, even when it is 10 minutes, we have scarcely been getting three interventions into that 10 minutes.

I am appealing to hon. members, for their colleagues who may wish to participate in that period, to the extent members can, to keep those interventions as brief and as succinct as they can.

The hon. member for Gatineau.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I take the message to heart. I know that I am one of the guilty people on that front.

The question that I would like to ask my colleague, who is the Liberal justice critic, is as follows.

We spoke about the work that was done in committee. In committee, I was concerned about the only two amendments that the government accepted. They were presented as technical amendments, but in the end, people from the department said that those amendments actually addressed fundamental errors and omissions.

This is the second bill where the government has introduced new provisions and new topics that were not examined by the committee on the very day that we were studying the bill clause by clause. I would like to hear what my colleague has to say about that.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I thank the member for her question.

What she mentioned is exactly what happened a few times in committee. Unfortunately this shows a lack of respect for those participating in the committee. It would absolutely have been possible to present these amendments and to discuss them with the witnesses during the study in committee.

The fact that these amendments were received after all of the testimony, during the clause-by-clause study, was unfair and truly showed a lack of respect for all of the participants, who are there to try to improve the bill. That is what I think. There is no problem with presenting amendments like that at the last minute. However, when the government knows about an amendment, it should present it as soon as possible. It is best to discuss these amendments with the witnesses.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Mr. Speaker, I want to thank my friend from Charlottetown for his intervention on this bill this afternoon, and I want to thank the members of the Liberal Party and the New Democratic Party for indicating their support for this bill. It is an important bill.

I am the father of two daughters, 15 and 11, and God forbid that anything should ever happen to them in any way that would be covered under this kind of legislation.

One of the reasons this bill is before the House is that we have seen many instances when this type of criminal conduct has not been taken seriously by the courts. The name of this bill is the “tougher penalties for child predators act”. It speaks for itself.

I want to ask the member if he believes that in the past we have seen lenient and unacceptable sentences. Does he believe that victims have not always been fully respected by the courts? Does he agree that this bill is designed to do just that?

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, it strikes me as passing strange that we have a question that would indicate a lack of faith in the judiciary when it comes to imposing sentences in criminal matters, when over the last few days, we have heard that it is only members of the judiciary, and not parliamentarians, who are the appropriate ones to oversee national security in this country.

My answer for my colleague would be that very capable people are appointed to the bench. We trust judges, and judges should have discretion. That discretion should not be unduly fettered in the manner it has been. It results in a whole panoply of unintended consequences, mostly at the lower range of the scale. It does not result in our having fewer victims, and that should be our focus.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, I commend my colleague for his speech, once again. He shows the distinction in his background as a career lawyer. However, I want to go back to the notion of mandatory minimum sentences.

My colleague now knows this. In the United States, there is a bipartisan effort among Republicans and Democrats to do away with mandatory minimum sentences, because the Americans have decided in Congress that they are not working. Whether it is in Texas, California, or New Jersey, there is a movement to do away with them, because they are extremely expensive. As the Americans like to say now, mandatory minimum sentences are all about being dumb on crime and tough on taxpayers.

I would like to ask my colleague to comment a bit more on the fact that these mandatory minimums the government is shoving down the throats of judges are not working. Also, could he just help us understand why it is that the director of criminal law policy at Justice Canada, Mr. David Daubney, who was a Conservative member of Parliament before moving on to that distinguished career, held a press conference just before his retirement two years ago and slammed the Conservatives for not listening to the evidence or the good work being provided by the criminal law policy unit at Justice Canada?

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I know that you wanted the questions and answers to be short, but indeed, a 20-minute dissertation would not be time enough to point out all of the weaknesses of mandatory minimum sentences. Allow me to give the House the Coles Notes.

The academic research and the testimony at committee were unanimous that mandatory minimum sentences do not deter crime. They contribute to prison overcrowding. They discriminate disproportionately against aboriginal Canadians. They are an unjustified attack on judicial discretion. They do not eliminate discretion at all, but as I indicated in my remarks, simply pass it down to the prosecutorial and police-enforcement level, and they are a waste of taxpayers' dollars. That is the Coles Notes.

We need to be seeking more upstream solutions. Our goal should be for there to be fewer victims. Mandatory minimum sentences do not work. The members opposite would not be able to point to a single study that contradicts that. The evidence is absolutely uncontradicted. Upstream solutions is where we should be.

The answers are not in legislative measures. They are not in tinkering with the Criminal Code. The answers are in making investments on the front end in things like poverty reduction and mental health and addiction services. Also, I cannot stress enough the wrong-headed move by the government to cut the rehabilitation and reintegration program, Circles of Support and Accountability, which it has been shown works with a success rate of 70% to 80%. Those are the answers, not mandatory minimum sentences.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I find myself in complete agreement with the hon. member for Charlottetown. The only difference is that I feel so strongly that mandatory minimums are the wrong way to go and unconstitutional that I probably will vote against this bill. As much as I want to do whatever it takes to protect children from child predators, I do not see that this bill is going to be effective.

I would love to hear more from the member for Charlottetown as to what he sees as those upstream solutions. What more could we be doing in prevention? As a mother and grandmother, I cannot find words adequate to express my contempt and loathing for anyone who commits these kinds of crimes. We want to protect our children. What is the best way?

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, the answers lie in social programs that are designed to address the root causes for many of the troubled individuals who find themselves in conflict with the criminal justice system. We have seen those social programs under attack and falling at the altar of the obsession with balancing the budget. They include things like mental health and addictions. They include things like poverty reduction. All these sorts of programs require a collaborative approach with stakeholders within communities, and indeed with provincial governments, because there is absolutely an overlap.

That is why I believe it is so difficult for the government to make a serious investment in upstream solutions. As Kyle Kirkup said, if you have a complex social problem, we have a prison for that. Anything that is nuanced, sophisticated, a bit complex, or cannot be fixed with an amendment to the Criminal Code seems to be, sadly, beyond the government's comprehension.

[The Acting Speaker, Bruce Stanton]

I would compliment hon. members. On such a topic, we got in four interventions in 10 minutes. That was much better.

The House resumed consideration of the motion that Bill C-26, An Act to amend the Criminal Code, the Canada Evidence Act and the Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender Database Act and to make consequential amendments to other Acts, be read the third time and passed.

[Scott Armstrong, Conservative, Parliamentary Secretary to the Minister of Employment and Social Development and Minister of Labour]

Mr. Speaker, I would like to inform you that I will be splitting my time with the articulate and passionate member for Mississauga—Streetsville.

Before I begin my official remarks, I would like to say I have never seen an upstream solution or a social program that can cure a pedophile. That is absolutely ridiculous. I have spent 18 years as an educator, over 10 of those as a school principal, and I have seen the victims of child predators. I have seen the victims of pedophilia, and no slap on the wrist, no upstream solution, no social program is going to stop them from violating the rights of our most precious commodity, our children. When they are sitting in a prison cell, predators cannot and will not molest a child. That is the solution for pedophilia in this country.

I am pleased to voice my support for Bill C-26, the tougher penalties for child predators act, during third reading debate. Bill C-26 would significantly strengthen our approach to addressing sexual offending against children. The proposed reforms are targeted at deterring these heinous crimes; ensuring that offenders are held accountable for the harm they cause to the most vulnerable members of our society; and enhancing our ability to monitor these offenders to assist in preventing recidivism.

We know that children are particularly vulnerable to sexual abuse and sexual exploitation. In fact, children represent the majority of all police reported sexual assault victims, and 55% of all police reported sexual assault victims in 2012 were children. It is shocking. Moreover, recent increases in police reported sexual offences are of particular concern. In 2013, they increased by 5% from the previous year, in contrast with the decline in recent years of violent crime generally. This is a higher rate than the two previous years in 2012 and 2013, which each saw a 3% increase. So this is a growing problem.

What are these numbers telling us? In my view the message is clear: we need to do more as a society to protect our children from this harm. That is precisely why Bill C-26 builds on recent reforms enacted by the Safe Streets and Communities Act in 2012, including increasing mandatory minimum penalties and maximum penalties for certain child sexual offences.

Recent jurisprudence reflects the importance of these types of reforms. Judicial consideration of denunciation and deterrence and the imposition of lengthier sentences for child sexual offences have increased following passage of the Safe Streets and Communities Act. These reforms strengthen penalties for child sexual offences. Judges are taking note of Parliament's efforts to recognize the seriousness of these types of offences.

Specifically, the British Columbia Court of Appeal noted: “Parliament has made it very clear that the protection of children is a basic value of Canadian society which the courts must defend”. The Ontario Court of Appeal has also commented on this important legislative objective. That court noted: “...recent amendments to the Criminal Code and decisions of this court have signalled a determination to address, in a more powerful and effective fashion, the need to denounce and deter crimes that involve the sexual victimization of children.”

I believe these are objectives that we can and should support, and they are clearly reflected in Bill C-26's proposed reforms. They are also supported by clear statements of principle contained in the Criminal Code. Section 718.01 clarifies that primary consideration should be given to the principles of denunciation and deterrence when a court imposes a sentence for an offence that involved the abuse of a child. In these cases, the protection of children from those who might harm them is the single most important factor.

Bill C-26's proposal to increase minimum mandatory penalties for these types of offences is entirely consistent with those objectives. In fact, they further those objectives. The application of minimum mandatory penalties to child sexual offences is not new. We now have experience in this regard. For example, Mr. David Butt, who testified before the Standing Committee on Justice and Human Rights, noted in respect of minimum mandatory penalties:

...the sky has not fallen, in the sense that we still have responsible sentences; we still have a realistic opportunity to present in a sentencing hearing where the appropriate sentence should fall in the range. This is not eviscerated judicial discretion; it has simply moved the floor.

We have to ask ourselves whether it is appropriate to move the floor.

Mr. David Butt, the legal counsel for the Kids Internet Safety Alliance, made those comments on February 4, 2015.

The answer to Mr. Butt's question regarding minimum mandatory penalties for child sexual offences is an unequivocal yes. I agree that minimum mandatory penalties recognize an appropriate level of moral opprobrium, as he stated, for child sexual offences. Furthermore, I am convinced that these types of sentencing measures contribute significantly to the realization of the Criminal Code's important objectives of denunciation and deterrence with respect to child sexual offences.

These are the reasons why Bill C-26 proposes further penalty increases for child sexual offences, as well as mandatory consecutive sentences where offenders are sentenced at the same time for contact child sexual offences and child pornography offences, or for contact child offences against multiple victims. This is another critical aspect of Bill C-26.

I will be clear. Bill C-26's consecutive sentencing reforms mean that sentencing judges must impose consecutive sentences in these cases, regardless of the totality principle, which maintains that the total length of sentences ordered to be served consecutively should not be unduly long or harsh. Judges would be specifically directed to impose a sentence for each conviction and order that they be served consecutively. This would respect each individual victim.

Importantly, these reforms would ensure that the harm done to each child victim is recognized specifically. There would be no more sentence discounts for offenders who are sentenced for multiple offences against multiple victims at the same time. Bill C-26 is clear on this point: offenders must be, and I repeat, must be held accountable for each and every victim they have harmed.

Recent sentencing cases demonstrate the importance of these reforms. Now, although courts have generally been imposing consecutive sentences in cases where offenders are sentenced at the same time for contact child sexual offences and child pornography offences, often in recognition of the additional harm caused when material is distributed via the Internet, the approach to cases involving convictions for offences against multiple victims is much more inconsistent.

We are seeing judges impose concurrent sentences for offences committed against different child victims. I am concerned that such an approach to sentencing might be seen by some pedophiles, in some sort of perverse way, as an incentive to actually violate the rights of multiple victims. Of course, that is not the intention of sentencing. However, we are concerned about the effect of a particular law or practice, not its intention. Certainly, it could not be said that the practice of imposing concurrent sentences in these types of cases serves the important objectives of denunciation and deterrence, which are enshrined in the Criminal Code itself.

These reforms are clearly needed. The victims who testified before the committee on justice and human rights were very clear on this point. However, Bill C-26's sentencing reforms would not stop there. The bill would increase these penalties for breaches of supervision orders, which could be imposed to prevent future offending. The breach of a condition included in such an order is a factor indicating that the offender is at risk of offending again. Therefore, it is critical that penalties for breaches of such orders act as a deterrent.

Accordingly, Bill C-26 would ensure that anyone convicted of breaching a probation order, peace bond, or a prohibition order would be subject to a maximum penalty of 18 months on summary conviction, rather than the existing 6 months, and 4 years on indictment, rather than the existing 2 years.

I have focused on Bill C-26's proposed sentencing reforms, but the bill proposes other important reforms that would assist in ensuring that the evidence of an accused's spouse is available in child pornography prosecutions. Information could be shared between Canada and foreign countries concerning Canadians and permanent residents of Canada who may travel abroad to sexually offend against children. Moreover, the public would be informed of high-risk offenders who might offend against our children.

I see that my time is running out. I will stop there and pick it up in questions and comments.