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

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I would like to thank my colleague for that excellent question.

Of course, prevention is extremely important. We also have to be realistic about sexual predators and some sexual offences. When I worked as a radio announcer, I did a show following a serious case of pedophilia that received a fair bit of media attention in Quebec.

That day was probably one of the most defining moments of my radio career. During the call-in show, which was mainly about the castration of pedophiles, since experts were considering that issue, I received a call from a pedophile.

He admitted that he had a condition that could not be healed. He had made the decision himself to withdraw from society because he no longer trusted himself in an environment where he would be in contact with children either directly or indirectly. All that I remember was that I was there, with my headphones and microphone, and my producer was begging me not to say anything and to let this man talk. That is what we did and it was enlightening.

We have to act intelligently when it comes to matters of criminal law. It is true that crime does not pay and that we have to punish criminals appropriately. As in labour law, the punishment must fit the crime, but we must not become obsessed with just that. We have to look at the whole picture, and I hope that is what we will do in committee.

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 second time and referred to a committee.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I wish to split my time with the member for Ottawa South.

[The Speaker, Andrew Scheer]

Does the hon. member have unanimous consent?

[Some hon. members]

Agreed.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I felt quite confident that the House would certainly want to hear from the member for Ottawa South, and I appreciate the indulgence of my colleagues for that.

Today it is my honour to stand to speak to Bill C-26, and I want to state from the outset that I am reluctant to support the bill. However, we will vote at second reading to send the bill to committee, and will do so in order to provide the government with an opportunity to present what evidence, if any, has emerged since 2012 that has prompted the introduction of even more mandatory minimum sentences.

It was just two years ago that many of these same provisions were contained in Bill C-10. In the two years since the coming into force of Bill C-10, child sex offences, as we heard from the minister, have risen by 6%. To repeat, in the two years since the coming into force of Bill C-10, child sex offences have risen by 6%.

The House will remember that when the Conservatives introduced Bill C-10, in 2011, they spoke at length about how these measures would combat child sex offences. I think we are still in agreement that reducing child sex offences is a priority that we all share. The government has made much of the fact that it imposed mandatory minimum sentences, stating that this would somehow reduce incidents against children.

Again, that legislation, Bill C-10, came into force in 2012. Since the coming into force of that bill, and despite the rhetoric from the Conservatives, it must be accepted, and indeed it was earlier in debate this evening, with obvious concern, that child sex offences have actually risen.

I want to make it clear that I do not for one minute believe that the Conservatives planned or hoped for this result, but I do believe that they need to accept the idea of being smart on crime.

At the justice committee this past March, I raised this issue with the minister. It was the same issue that I raised with him in the question and answer period following his speech this evening. I wanted to know why the government would introduce further flawed legislation for these offences when very clearly the evidence suggested that its previous approach had not worked.

The same question was posed at the justice committee when these statistics were introduced by the minister at committee, as they were again this evening. I asked him where the statistics came from, and at that point he did not know. He indicated he would get back to me, and I guess that happened tonight. We now know that these statistics came from Justice Canada.

I asked the minister at committee, on March 6 of this year, “Do you not agree that the stats that show that child sexual offences have increased in the last two years indicate that the increases that you put in C-10 haven't worked?”

The minister responded, and not exactly in the same fashion as he did this evening, but his response was:

I'd answer that two ways.First, I would say that C-10 would hardly have had effect in the time period we're looking at. Secondly, and perhaps more importantly, it indicates to me that we have more to do. It indicates very clearly that we have to take more steps toward prevention, deterrence, and denunciation.

That was, in part, the exchange that I had with the minister this past March at the Standing Committee on Justice and Human Rights, a part of which we heard repeated here this evening.

If it were the intent of the government when introducing Bill C-10 to reduce crime as it relates to child sex offences, then it must recognize and accept that its efforts have failed. Some members of the Conservative caucus, including the minister, would argue that not enough time has passed to properly measure the impact of Bill C-10. I assume they believe that with the passage of time, the data will indicate Bill C-10's effectiveness.

If that is the case, why are we here today discussing Bill C-26? Why are we here debating this bill, if, as the minister himself suggested, we need more time to properly assess the impact that Bill C-10 will have in reducing crimes against children? It does not make sense. It has caused many of us on this side of the House to wonder why the government is doing this.

Albert Einstein once said, “Insanity is doing the same thing over and over and expecting a different result”. No one in the House would accuse the Minister of Justice of being Einstein, but the government's behaviour on this issue gives rise to the suspicion that they are playing politics with a very serious issue.

I have said time and again that I find it very troubling that the government would seemingly use sensitive subjects as a potential wedge issue, or worse, to raise money from its base leading up to an election. We have seen this approach to cyberbullying in Bill C-13, presently before the justice committee, where the government is using real victims of cyberbullying to bring in measures that have absolutely nothing to do with cyberbullying. It is using victims to bring in a law that would allow for the widespread invasion of our privacy.

Suffice it to say, though, that on the matter of crimes committed against children, the House is very united. I want to reiterate that no one in this House is immune from heartache when we hear of any child who has suffered because of the actions of an adult. I know that members on all sides share this view.

The Liberal Party remains steadfastly committed to the protection of the most vulnerable of the vulnerable, our children, against the most predatory of practices: child pornography and sexual offences against children. We support concrete measures aimed at the prevention of sexual offences against children as well as appropriate punitive sanctions against those who commit such heinous acts.

I earlier quoted the justice minister, who had indicated in a response to a question I posed that he believed that we need to do more to combat crimes against children. He indicated that we need to do more in the areas of prevention and deterrence and that prevention and deterrence are important elements in reducing crimes against children. This bill, however, includes no measures to prevent sexual offences against children or measures to ensure the treatment, rehabilitation, or reintegration of sex offenders. Again, why this glaring inconsistency?

By increasing mandatory minimums, the bill would reduce judicial discretion and could result in charter challenges.

We need to know that the laws we are passing will be effective in reducing the incidence of sexual violence against children and will not be merely symbolic expressions. That is why we will seek a detailed study and analysis with stakeholders at committee. Liberals will seek to ensure that the policies adopted in this area reflect the best evidence and the latest research available and will not be based on fear and ideology, or worse, on an effort to raise money from a political base using the Criminal Code and this sensitive issue as a way to exploit the fears of Canadians.

We also want an effective law that addresses these issues and not laws that will be met with endless charter challenges defended at taxpayers' expense.

We have some concerns about charter challenges to the sentencing provisions of the bill and about privacy suits that may arise from the offender database. Moreover, travel restrictions may raise concerns as to the mobility rights of Canadians, as guaranteed by the charter. I raise these issues knowing that the government's record on crime legislation is abysmal. Time and again, we see the courts tossing out its legislation, because it is found to be unconstitutional.

Sexual violence, like other forms of violence, is traumatic and devastating. The minister also suggested in committee that along with prevention and deterrence, we need denunciation of those charged and convicted of crimes against children. No one would disagree with that position, but denunciation does not equal deterrence. We must endeavour to find methods of prevention, as well as punishment, while not overlooking the importance of treatment and rehabilitation and the reintegration of offenders.

Evidence-based criminal law policy is a guiding principle of the Liberal Party of Canada. It is through this perspective that we review and critique all legislation.

While we have supported mandatory minimums in this area in the past, we no longer support them as a matter of policy, given that they are ineffective in achieving their stated objectives and may violate the charter. Indeed, mandatory minimums should be the exception, not the rule. Under the current government, they have become the rule, not the exception, despite the fact that mandatory minimums have no basis in evidence pointing to their effectiveness.

There would not be one member of the Conservative caucus who could rise today in his or her place and point to any independent study that would suggest that mandatory minimums work. Indeed, that challenge was advanced to the minister immediately after his speech.

This is not an issue that should divide the House, because we all want to protect children. We in the Liberal Party want to do it in a way that respects the charter, respects evidence and facts, and respects the overwhelming need to be smart on crime.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I thank the member for his speech. I have no problem with what he said.

However—and I mentioned this in my speech—there is the issue of mandatory minimum sentences. He lectured us about how these sentences are ineffective. I may agree with the thinking behind that; however, I would like him to tell us whether the Liberals have done an about-face.

From 1993 to 2003, they added a number of mandatory minimum sentences to the Criminal Code. The Conservatives were not the first to introduce mandatory minimum sentences—it was the Liberals. I am thinking about the offences of sexual assault with a weapon and living off the avails of prostitution. All of these mandatory minimum sentences were imposed by the Liberals.

Does this mean that it was not a good idea at the time and that they will no longer do this? Are they changing? Are there offences for which it these sentences are called for and others for which they are not? I am a bit confused about the Liberals' philosophy on this.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I believe that my colleague would simply wish for me to repeat part of what I said in my speech, which is that Liberals have supported mandatory minimum sentences in the past. It is no longer a Liberal Party policy. They have been shown to be ineffective. The evidence indicates that they are not effective. We believe that mandatory minimum sentences should be the exception and not the rule. However, they have become the rule and not the exception. I thought perhaps that was clear enough in my speech. That is certainly where we stand.

My colleague would know as well that the Liberal government of Paul Martin, in 2005, as their first piece of legislation, introduced Bill C-2 on Criminal Code amendments to protect the vulnerable, including strengthening child pornography laws, creating new offences against the sexual exploitation of youth, increasing penalties for child-specific offences, facilitating the testimony of child victims, and other measures.

There is no question that the Liberal Party has been consistent in its stand with respect to the measures necessary to protect the most vulnerable. With respect to mandatory minimums, it is well past time they became the exception and not the rule.

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

Mr. Speaker, it is quite rare that we hear in this place any member of Parliament or an entire political party admitting that they have made a mistake in having supported one policy and have now seen, based on empirical evidence, that the policy has failed.

I would like to ask the hon. member for Charlottetown what kind of evidence it was that finally persuaded—I should not say “finally”—the Liberal Party that mandatory minimum sentences do not work. It is clear that they do not. We are passing many bills that include them in this place. The courts have found them not to be charter compliant. Why are we still passing them?

Specifically to the Liberal Party, what made them change their minds?

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, we believe in evidence-based decision-making and not in decision-based evidence-making, as we see all too often. Therein lies the answer.

What has changed? The overwhelming weight of evidence indicates that mandatory minimums are not an effective tool in reducing the incidence of crime. Indeed, the very fact that we are standing here in this debate and talking about the increase in the incidence of child sexual offences against these stronger penalties is absolutely proof of that. The weight of evidence over the years, as more mandatory minimums have been introduced, has simply become undeniable and overwhelming.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, I am pleased to rise in the House tonight to speak to Bill C-26, the tougher penalties for child predators act.

It is often said that the test of a just society is how it treats the most vulnerable of its citizens. Among the most vulnerable are those who cannot always speak up for themselves, namely, our children. In that spirit, the Liberal Party remains steadfastly committed to supporting the protection of children and concrete measures aimed at the prevention of sexual offences against children, as well as appropriate punitive sanctions against those who commit such heinous acts.

Bill C-26 includes no direct measures aimed at preventing sexual offences against children, nor measures to ensure the treatment, rehabilitation, or reintegration of sex offenders. All too often in the debate on these important matters, the opposition is painted as “being soft on crime”. The reality is we need to be a lot smarter on crime. Unfortunately, Bill C-26 just is not a smart bill. In fact, by increasing mandatory minimums, the bill reduces judicial discretion and may result in charter challenges. As parliamentarians, we must ensure that the laws we pass will be effective in reducing the incidence of sexual violence against kids and not merely a symbolic expression likely to be overturned when first implemented.

The last Liberal government made child protection a priority and its first bill, Bill C-2, an act to amend the Criminal Code and the Canada Evidence Act, was assented to in 2005. That legislation proposed amendments to the Criminal Code and the Canada Evidence Act to provide further protection for children against abuse and sexual exploitation by broadening the definition of child pornography, prohibiting the advertising of child pornography, increasing maximum sentencing for certain offences related to child pornography, and creating new sexual exploitation offences.

Moreover, the Liberal legislation sought to facilitate testimony by child victims and witnesses by better enabling the use of testimonial aids, including screens, closed-circuit television, and support persons for all child victims and witnesses under the age of 18 years. The reforms also allowed children under 14 to give their evidence if they were able to understand and respond to questions. Such measures were far more concrete in securing the protection of the vulnerable than what we see in Bill C-26. The offences therein captured new behaviour unaddressed by the Criminal Code and also made improvements to the trial process. By contrast, Bill C-26, by and large, only increases penalties that were themselves recently increased, with no evidentiary basis to suggest that the current regime is not working, and without any effort of reducing the incidences of crimes against children.

Perhaps it is worth emphasizing this point another way. Penalties only come into play after an offence has occurred: a child has been victimized, his or her abuser has been apprehended, and the trial process has been completed, with a guilty verdict returned. By addressing only the penalty these criminals receive, we ignore all of the other elements at play. We fail to consider whether the police have adequate resources and tools to apprehend abusers. We fail to address issues at trial that might prevent important evidence from being adduced. In other words, by addressing the end of the process, we ignore the very beginning, which ought to be our goal: reducing incidents in the first place.

Perhaps the biggest concern with Bill C-26 is that the mandatory minimum penalties lack an evidentiary basis. If one goes back to the omnibus crime bill, Bill C-10, one will find that many of these offences had their minimum penalties increased just two short years ago. It begs the question: If these penalties needed to be increased to the lengths in Bill C-26, why did the Conservative government not do so two years ago? Herein lies the problem. With the law amended in 2012, someone imprisoned under the provisions would likely still be serving prison time less than two years later, particularly given the imposition of a mandatory minimum. Thus, we have no idea if Bill C-10's changes were sufficient.

We also have no indication that the changes in Bill C-26 will be beneficial in any way. If anything, we have evidence to the contrary given the constitutional problems of mandatory minimums. Liberals oppose mandatory minimum penalties as a matter of principle and policy. The evidence simply does not support them. Studies show that they are ineffective in deterring behaviour and, indeed, create more problems than they solve.

Indeed, the whole premise that increasing the sentence will somehow cause would-be offenders to change their minds is absurd. When one considers what that entails, it means we seriously think criminals are looking up the Criminal Code online and deciding, based on the number of years indicated in hard-to-read legal provisions, whether they should go forth and do something. This is just not how the world works, and the Conservatives need to wake up to this reality.

It is not only Liberals who oppose mandatory minimums. The former MP for Ottawa West, David Daubney, a Progressive Conservative MP who retired only recently as director of criminal law policy in the Department of Justice after a distinguished career there, was quoted as saying on the way out the door, “The policy is based on fear—fear of criminals and fear of people who are different. I do not think these harsh views are deeply held”. He went on to say at the same time, because he was subject to so much pressure inside the department, that “somebody has to take the risk of talking”.

By imposing mandatory minimums, the government ignores several decades' worth of overwhelming evidence from around the world that longer jail terms do not deter crime and in fact may have the opposite effect: in 1990, a study for the justice department found that:

The evidence shows that long periods served in prison increase the chance that the offender will offend again.

In 1999, research commissioned by the Solicitor General concluded that:

To argue for expanding the use of imprisonment in order to deter criminal behaviour is without any empirical support.

A Massachusetts report from 2004 called mandatory minimums:

...a recipe for recidivism rather than a recipe for effective risk reduction.

Making matters worse, mandatory minimums lead to prison overcrowding. One of the reasons mandatory minimums increase recidivism is that when more people are imprisoned for longer periods of time, prisons become overcrowded and less conducive to rehabilitation.

The Office of the Correctional Investigator has warned the government, documenting an increase in the number of inmates of nearly 7% between March 2010 and March 2012, predicting continued growth in the prison population as the full impact of Conservative policies are felt. The practice of double-bunking is used to accommodate this increase, housing two inmates in a cell designed for one. That practice has grown substantially. In 2004, 6.3% of inmates were double-bunked; by 2012, under the Conservatives, the number had grown to over 17%.

As studies demonstrate repeatedly, mandatory minimums discriminate against aboriginal Canadians and other minorities. The growth of the prison population includes a significant rise in the percentage of aboriginal inmates.

Indeed, mandatory minimums disproportionately impact vulnerable minorities, especially aboriginal Canadians, who have less access to legal counsel and are generally treated more severely by the justice system. For example, aboriginal defendants are often charged with a more serious offence than non-aboriginal defendants who commit the same act. Aboriginal people are already dramatically overrepresented in Canadian prisons, and mandatory minimum sentences exacerbate the problem.

Here is the point: the crime rate among aboriginal Canadians could be reduced much more effectively by education and poverty reduction than by increased incarceration.

Perhaps most importantly, these mandatory minimums are an unjustified attack on judicial discretion. One of the arguments in favour of mandatory minimums is that they remove discretion from judges who are supposedly “soft on crime”; however, there is no evidence, not a shred, to suggest that sentences imposed by judges are unjustifiably light. Serious offenders receive serious sentences already; mandatory minimums serve only to remove discretion from judges in exceptional cases where leniency might be appropriate.

Furthermore, these mandatory minimums do not truly eliminate discussion at all. Rather, they transfer it from judges, whose decisions are public and subject to appeal, to police officers and prosecutors. If a crown attorney feels that the mandatory minimum prescribed by the law would be too severe, he or she might decide to charge for a lesser offence. Such prosecutorial decisions are made behind closed doors, and no appeals process exists to challenge them.

In short, these mandatory minimums waste taxpayer dollars. They invite expensive constitutional challenges on the grounds that they violate section 7, the right to life, liberty and security of the person, or section 9, the right not to be arbitrarily detained or imprisoned, or section 12, the right not to be subjected to cruel and unusual treatment or punishment.

Already several of these sentences enacted by the Conservatives have been struck down. Other challenges are currently before the courts. They clog up the court system and require the government to spend millions of taxpayer dollars defending laws that were constitutionally suspect from the outset. This is in the face of the legal responsibility of the minister to ensure that legislation brought to the floor of this House is constitutional.

I will wrap up--

[The Speaker, Andrew Scheer]

I am afraid the member has been out of time for a few moments now. I did extend him some courtesy to conclude his remarks.

We will move on to questions and comments with the hon. member for Burlington.

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, I found the member's speech very interesting as he is a member of the Liberal Party, which is the party that put almost all of the minimum sentences in the Criminal Code to begin with. Year after year, the Liberals would put minimum sentences. All of a sudden, they are holier than thou, and the whole Liberal Party is against mandatory minimums.

This bill would actually increase some mandatory minimums and maximums on sexual crimes against children. Is the member telling me tonight that the Liberal Party is against minimum sentences for criminals who have sexual intercourse with children, either live or through child pornography? I would like to know the answer from the Liberal Party.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, that gives me an opportunity to go back to the parts of my speech I could not finish.

The Parliamentary Budget Officer found a 40% increase in correction costs between 2002 and 2012, even though they had been in decline since 2006. Also, according to the PBO's report, the provinces are on the hook. The Conservative government was found in contempt for the first time in Commonwealth history for refusing to provide the cost of its crime bills, its law and order agenda.

The reality is that it is important that we base our policies on evidence and the latest research available and not on fear, histrionics, and ideology. We want an effective criminal law to address these issues, and not one that will be greeted with endless charter challenges defended at taxpayer expense.

What it really means is that it would not be tough on crime but it would become tough on taxpayers. That is why so many American states are cancelling their mandatory minimums. At the very least, we would expect the Conservative Party to listen to their Conservative cousins south of the border.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I listened with great interest to my hon. colleague, and it seems to me that he is trying to discuss issues of law in a sports bar with all the snickering and laughing. I mean, the Conservatives certainly love when they can get their base all worked up with whatever hot buttons they can push.

I would like to ask my hon. colleague about the issue of victims, because we have a minister who refuses to meet the survivors of the St. Anne's Residential School. We have a minister who walks away from the mothers and daughters of the murdered and missing women, who takes their information and--