Bill C-6 (Historical)

An Act to amend the Criminal Code (conversion therapy)

This enactment amends the Criminal Code to, among other things, create the following offences:
(a) causing a person to undergo conversion therapy without the person’s consent;
(b) causing a child to undergo conversion therapy;
(c) doing anything for the purpose of removing a child from Canada with the intention that the child undergo conversion therapy outside Canada;
(d) promoting or advertising an offer to provide conversion therapy; and
(e) receiving a financial or other material benefit from the provision of conversion therapy.
It also amends the Criminal Code to authorize courts to order that advertisements for conversion therapy be disposed of or deleted.

Motions in Amendment

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, the member for Portneuf—Jacques-Cartier is absolutely right that it is important that we get the definition right. Surely, we want this legislation to pass constitutional muster, and a piece of legislation that has a definition that is vague and overly broad is at risk of a charter challenge, at risk of being found to contravene fundamental justice and at risk of being found to contravene section 7 of the charter.

I had hoped that this would not be the case and that we could have gotten it right, so that we could have a law on the books that would stand.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Madam Speaker, I rise today not to debate a ban on coercive conversion therapy, but instead to debate the means by which we ban this harmful, damaging practice. I want to make one thing very clear from the outset: I am against forcibly attempting to change an individual’s sexual orientation. I condemn that practice in the strongest possible terms. There is simply no place for this in Canada.

However, there is a place in Canada for compassion. At the justice committee, of which I am a member, we heard testimony from a variety of stakeholders on this bill, including survivors of coercive conversion therapy, members of the 2SLGBTQ+ community, indigenous leaders, academics, doctors, lawyers and faith leaders. I thank all the witnesses for their contributions, especially those who had the strength and courage to share their very personal experiences. I know it could not have been easy.

It is evident to me from having heard these witnesses, read countless briefs and spoken to dozens of constituents that there is a widespread support for banning coercive conversion therapy practices, and there should be. However, as with all legislation, the language must be clear. We need to ensure that judges can interpret and apply the law as it is written, and that Canadians know what the law prohibits and what it does not: in other words, whom it protects and whom it does not. On this point, I have heard repeatedly that the bill’s definition of conversion therapy is unclear and overbroad, as my colleague just said, and may have unintended consequences.

For earlier Liberal speakers to say that those with any concerns are against the communities we are trying to help, and speak from fear, is a harmful, wrong-minded statement. The Minister of Justice has said that the bill would not affect good-faith conversations, which I understand to mean caring, non-coercive discussions with doctors, parents, counsellors, faith leaders or others to whom Canadians, young and old, may turn for support. However, the bill, as drafted, does not say that. Why not? As we all know, what matters is not what the minister says the bill will do, but what the bill actually says. That is the law. That is what judges will apply, from Victoria to St. John’s.

Several witnesses appearing before the committee called for amendments to the bill to clarify its definition, to make it clear that it does not criminalize these good-faith conversations. Coercive conversion therapy should be banned, but we should leave politicization out and remember that we are dealing with real people with real vulnerabilities trying to make their way and needing help at a vulnerable time. We need to clarify, then proceed. The government should welcome the broadest possible support among Canadians for this legislation: nothing more, nothing less.

In fact, when the committee first heard from the Minister of Justice on this bill, the minister admitted, “I will focus on the bill's definition of conversion therapy, because there appears to be some persisting confusion about its scope.” I agree with the minister. There is persisting confusion, and the confusion is about its scope, confusion that we, as parliamentarians, have a duty to rectify.

André Schutten, legal counsel and director of law and policy at the Association for Reformed Political Action Canada, or ARPA, told the committee the definition is ambiguous, unclear and overbroad, and that it “captures helpful counselling and psychological support for children, teens, and adults”.

Colette Aikema explained to the committee that the counselling she received to help her cope with past traumas, including abuse and rape, would be criminalized by this definition of conversion therapy. Ms. Aikema told the committee that her voluntary therapy from a University of Lethbridge counsellor and a faith-based sex addiction group helped save both her marriage and her life. This was powerful testimony that should not be ignored.

We also heard from Timothy Keslick, a member of the 2SLGBTQ+ community, who fears that without further clarification, the therapy he relies on to help him navigate his same-sex relationships would be barred by the bill’s ban on treatment that “repress[es] or reduce[s] non-heterosexual attraction or sexual behaviours”.

Others also expressed the need to clarify the definition of conversion therapy in the bill—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Alexandra Mendes]

I apologize. I have to interrupt the member, who will have five minutes to complete her speech next time the bill comes to the floor.

Criminal Code

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Madam Speaker, there have been discussions among the parties, and if you seek it, I believe you will find unanimous consent to adopt the following motion:

That,

(a) pursuant to section 5(1) of An Act to Amend the Criminal Code (medical assistance in dying), a Special Joint Committee of the Senate and the House of Commons be appointed to review the provisions of the Criminal Code relating to medical assistance in dying and their application, including but not limited to issues relating to mature minors, advanced requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities;

(b) pursuant to section 5(2) of the Act, five members of the Senate and ten members of the House of Commons be members of the committee, including five members of the House of Commons from the governing party, three members of the House of Commons from the Official Opposition and two members of the House of Commons from opposition who are not members of the Official Opposition, with two Chairs of which the House Co-Chair shall be from the governing party and the Senate Co-Chair shall be determined by the Senate;

(c) in addition to the Co-Chairs, the committee shall elect three vice-chairs from the House, of whom the first vice-chair shall be from the Conservative Party of Canada, the second vice-chair shall be from the Bloc Québécois, and the third vice-chair shall be from the New Democratic Party;

(d) pursuant to section 5(3) of the Act, the quorum of the committee be eight members whenever a vote, resolution or other decision is taken, so long as both Houses and one member of the governing party in the House, one member of the opposition in the House and one member of the Senate are present, and that the Joint Chairs be authorized to hold meetings, to receive evidence and authorize the printing thereof, whenever six members are present, as long as both Houses and one member of the governing party in the House, one member of the opposition in the House and one member of the Senate are represented;

(e) the House of Commons members be named by their respective whip by depositing with the Clerk of the House the list of their members to serve on the committee no later than five sitting days after the adoption of this motion;

(f) changes to the membership of the committee, on the part of the House of Commons, be effective immediately after notification by the relevant whip has been filed with the Clerk of the House;

(g) membership substitutions, on the part of the House of Commons, be permitted, if required, in a manner provided for in Standing Order 114(2) and that they may be filed with the Clerk of the committee by email;

(h) until Wednesday, June 23, 2021, members may participate either in person or by video conference and witnesses shall participate remotely;

(i) until Wednesday, June 23, 2021, members who participate remotely shall be counted for the purpose of quorum;

(j) until Wednesday, June 23, 2021, except for those decided unanimously or on division, all questions shall be decided by a recorded vote;

(k) until Wednesday, June 23, 2021, when more than one motion is proposed for the election of the joint chair or vice-chairs, any motion received after the initial one shall be taken as a notice of motion and such motions shall be put to the committee seriatim until one is adopted;

(l) the committee have the power to sit during sittings and adjournments of the House;

(m) the committee have the power to report from time to time, to send for persons, papers and records, and to print such papers and evidence as may be ordered by the committee;

(n) the committee have the power to retain the services of expert, professional, technical and clerical staff, including legal counsel;

(o) the committee have the power to appoint, from among its members, such sub-committees as may be deemed appropriate and to delegate to such sub-committees, all or any of its powers, except the power to report to the Senate and House of Commons;

(p) the committee have the power to authorize video and audio broadcasting of any or all of its proceedings and that public proceedings be made available to the public via the Parliament of Canada's websites;

(q) until Wednesday, June 23, 2021, in camera proceedings may be conducted in a manner that takes into account the potential risks to confidentiality inherent in meetings with remote participants;

(r) pursuant to section 5(5) of the Act, the committee submit a final report of its review, including a statement of any recommended changes, to Parliament no later than one year after the day in which it commenced their review;

(s) pursuant to section 5(6) of the act, following the tabling of the final report in both Houses, the Committee shall expire; and that a message be sent to the Senate requesting that House to unite with this House for the above purpose and to select, if the Senate deems advisable, Members to act on the proposed Special Joint Committee.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Alexandra Mendes]

All those opposed to the hon. member moving the motion will please say nay.

It is agreed.

The House has heard the terms of the motion. All those opposed will please say nay.

Hearing no dissenting voice, I declare the motion carried.

(Motion agreed to)

[John Nater, Conservative, Perth—Wellington, ON]

moved that Bill C-219, An Act to amend the Criminal Code (sexual exploitation), be read the second time and referred to a committee.

Madam Speaker, it is indeed an honour to represent the good people of Perth—Wellington in this place.

It is an honour to rise in the House this afternoon to begin second reading debate of my private member's bill, known in this Parliament as Bill C-219, an act to amend the Criminal Code (sexual exploitation).

As I stated when I introduced the bill at first reading, it is a direct result of the advocacy, comments and concerns of the people of Perth—Wellington.

In early 2018, an incident occurred in which a person employed to work with persons with disabilities, who was also a children's entertainer, was convicted of a serious sexual crime against a person living with disabilities. My constituents were outraged by the lenient sentence of a monetary fine and probation, and called for a resolution to the flaw in the Criminal Code.

In a perfect world, I would have liked to have done so much more through the bill to better support Canadians living with disabilities. Far too often I hear from constituents who live with disabilities that they have fallen through the cracks: those who experience challenges in accessing government programs; those who face challenges with housing; and those who encounter barriers in employment. However, as hon. members know, with the limitations of Private Members' Business, it would not be possible to achieve all these goals through legislation without a royal recommendation.

In his 1913 autobiography, Theodore Roosevelt includes this quotation, “Do what you can, with what you've got, where you are”. I am here today in the House doing what I can with the legislative resources available to me to try in this way to better protect Canadians living with disabilities.

I originally introduced the legislation in the previous Parliament, in January 2019, as Bill C-424. However, as members know, the Standing Orders on Private Members' Business were a barrier to moving the bill forward at the time and it died on the Order Paper when the 42nd Parliament was dissolved.

During the 2019 election, the proposals contained in my bill were included as part of the Conservative Party's election platform, and I personally made the commitment to my constituents that if I were to be re-elected, I would bring back this legislation to the House. Today, I am fulfilling that commitment to the constituents of Perth—Wellington.

Shortly after I tabled the bill for the second time in February 2020, another case involving sexual exploitation reached the news. This case involved a young person. The former chief of police of Bridgewater, Nova Scotia was sentenced to a 15-month imprisonment following an October 2019 conviction for sexually exploiting a 17-year-old girl. In this instance, the offender was also convicted of sexual assault, however, this caused a legal issue as it was questioned as to whether the court could convict a guilty person of two criminal offences for the same incident. In this case, the conviction of sexual exploitation was entered and the conviction of sexual assault was stayed.

As a sexual exploitation charge is often accompanied by a sexual assault charge, Bill C-219 would provide the additional benefit of ensuring only fair sentences are available when such controversies occur. Furthermore, Bill C-219 proposes to provide courts with the ability to impose harsher sentences in instances when only a charge of sexual exploitation is made. One example of the convictions of sexual exploitation but not sexual assault occurred last year, also in Nova Scotia, in which a religious leader was convicted of sexually exploiting a 17-year-old young person.

The second proposal contained within Bill C-219 was also inspired by the incident that occurred in my riding. If passed, the bill will require courts to consider the fact that a victim is a person living physical or mental disability as an aggravating circumstance when sentencing a person convicted under section 286.1(1) or 286.1(2) of the Criminal Code. This would fill an unfortunate void currently existing in the Criminal Code.

Persons living with disabilities are more vulnerable to this kind of exploitation due to a number of factors, including the capacity to give consent. What is more, in many cases, the offender is known to the victim and is often someone the victim must rely upon for care or other personal or financial support. This addition to the Criminal Code would ensure courts always take into account this vulnerability.

It is a sad truth, but as legislators we must be willing to admit that sexual exploitation is a problem in our country and we must strengthen our laws to better protect the most vulnerable in our communities.

Research and statistics have time and time again shown us that young people and persons living with disabilities are more often than not the victims of sexual and other types of crime.

According to Statistics Canada's report “Victims of Police-reported violent crime in Canada, 2016”, “When controlling for population, the rate of victimization was highest among youth aged 16 to 17 and young adults aged 18 to 24.” The report further explains, “Overall, 8% of police-reported victims were victims of sexual offences. However, these offences were much more prevalent among child and youth victims that came to the attention of police.” The report goes on to state that 34%, more than one-third of female victims of sexual offences, were aged only 12 to 17 years old.

According to Statistics Canada’s Report Violent Victimization of Women with Disabilities, “according to both self-reported and police-reported data, the large majority of victims are women...This trend is also evident when looking at the population with a disability” who are victims of self-reported sexual assault “as nearly nine in ten (88%) victims...were women.” The report also states that Canadians with a disability, 30% of incidents, were more likely to be victimized in their own home compared to victims who did not have disability. This serves to highlight the sad reality that even in their home, people with a disability are at an increased vulnerability.

According to the Department of Justice Research and Statistics Division, “Sexual assault is a gendered crime; women are victimized at a higher rate…than men... As with other violent victimization…young people aged 15-24 years have the highest rate of sexual assault (71 incidents per 1,000 population).”

Sexual exploitation is a disturbing crime because it involves an imbalance and an abuse of power. Often it involves some sort of authority figure in a position of trust. That is why for years the Criminal Code includes the following description in its section on sexual exploitation “Every person...who is in a position of trust or authority towards a young person” or “who is a person with whom the young person is in a relationship of dependency. ” Furthermore, in the sexual exploitation of someone with a person with a disability, it reads similarly, “Every person who is in a position of trust or authority towards a person with a mental or physical disability or who is a person with whom a person with a mental or physical disability is in a relationship of dependency.”

This makes the specific crime of sexual exploitation all the more concerning. It requires a person in a position of power to take advantage of that power for their own appalling purposes. There is no excuse and there is no justification for these kinds of acts. These crimes occur when a person actively choses to use their position to harm an innocent victim.

Last month I had the honour to meet virtually with representatives of Boost Child & Youth Advocacy Centre, an organization that provides services to victims of these types of crimes from Toronto to Barrie to Peterborough. They talk about how difficult it is for victims of vulnerable populations in the justice system.

We need to ensure they are respected and supported. We need to ensure when victims come forward, they feel they are taken seriously. We need to ensure victims of these types of crimes have faith in the system and believe the devastating acts committed against them will not go unpunished.

I recognize that introducing legislation that proposes to increase sentences may not be consistent with the direction of the current government, which has often taken the position that some mandatory minimums are not appropriate. I would like to address that issue.

Charter challenges on mandatory minimum sentences are determinations if the sentence is “grossly disproportionate”. This is not the case with this bill. Given the abuse of power and the long-term impacts on victims, it should be clear to all of us that a one-year minimum sentence for sexual exploitation of a person under 18 years of age or a person with a disability is proportionate to the serious crime.

Sex crimes are different from other crimes. This has been recognized by successive governments for decades, including by the current Liberal government. The current mandatory minimum sentence of 90 days for sexual exploitation of a young person has been in place since the current Liberal government came to office and they have chosen to keep that in place. In fact, when the government introduced Bill C-22, their own backgrounder explicitly stated they were not proposing to remove mandatory minimum sentences for sexual offences and listed them among other serious violent offences in which strict sentences remain in place.

Furthermore, when the justice minister spoke in the House, he clearly stated that sexual offences committed against children were committed by serious criminals and should be treated seriously. The same should be true of sexual offences committed against persons living with disabilities.

It would be beneficial for Parliament, the elected branch of government, to explicitly include in the Criminal Code a higher sentence for these crimes for the purpose of protecting vulnerable Canadians. Criminal laws serve to protect vulnerable people and serve a valid purpose. They are a legitimate part of fostering a safe society and they serve the public good.

The last number of months, under the challenges of COVID-19, many Canadians have been distressed to hear increasing reports of sexual crimes.

On July 13, 2020, a CBC news headline stated, “Child sex exploitation is on the rise in Canada during the pandemic.” The article states, “Cybertip.ca said...saw an 81 per cent spike over April, May and June in reports from youth who had been sexually exploited, and reports of people trying to sexually abuse children.”

A Global News report last month stated that a man from outside of Edmonton was arrested and charged with multiple counts of exploitation, among other charges.

A March 20, CBC news headlined stated, “Reports of sexual violations against children double in P.E.I.”

I encourage all members of all parties to come together to support this bill. In fact, there is precedence for all-party co-operation regarding changes to these sections of the Criminal Code.

Prior to 2005, the maximum sentence for sexual exploitation of a young person as an indictable offence was only five years, and no minimum sentence was provided. This changed in the 38th Parliament, when the then Liberal minority government passed Bill C-2, an act to amend the Criminal Code, protection of children and other vulnerable persons, and the Canada Evidence Act, which was sponsored by then justice minister Irwin Cotler. That bill increased the maximum sentence for sexual exploitation of a young person to 10 years, and introduced a minimum sentence of 14 days.

The bill also added to the Criminal Code a list of factors regarding the nature and circumstances of the relations to be established to determine how the relationship is exploitative. As Minister Cotler told the justice committee at the time, the purposes of the bill were ”to provide greater protection to youth against sexual exploitation from persons who would prey on their vulnerability.”

This bill was not only supported by all parties, but its passage was accelerated by all-party agreement and the use of a unanimous consent motion.

Then, on May 1, 2008, the Criminal Code was amended again, through another bill also named Bill C-2, this time to change the definition of a young person and to provide additional protections. This bill, the Tackling Violent Crime Act, was sponsored by the then justice minister Rob Nicholson and passed quickly through the House of Commons with all-party support and co-operation.

I would note the support of that bill included the current Minister of Transport, the Minister of Crown-Indigenous Relations, the government House leader, the chief government whip, and the Liberals members for Ottawa South, Halifax West, Humber River—Black Creek, Lac-Saint-Louis and Coast of Bays—Central—Notre Dame.

Young people and persons living with disabilities need to be protected. It is incumbent on us to pass this bill, because it is a targeted bill to correct two specific flaws in the Criminal Code. As parliamentarians, we have a duty to ensure the Criminal Code provides appropriate sentences for disturbing crimes so vulnerable Canadians are not at risk. There is no excuse for these crimes.

I urge all my fellow members to support this important bill.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I thank the member opposite for introducing this bill. I have two questions to put to him.

The member raised the issue of sexual offences. What he is proposing is not just keeping a mandatory minimum but expanding it from 90 days to one year on summary conviction. Courts have already held in the country, in Yukon and Nova Scotia, that this has been found unconstitutional.

My second point is that I am asking him, given his long analysis and deep thought on the issue of mandatory minimums, what his position would be with respect to our position on this side of the aisle, that mandatory minimums contribute to the overrepresentation of people in the criminal justice system. It does not serve victims and, particularly, it does not serve Black and indigenous Canadians.

Given that reality, would the member be moved to be supportive of Bill C-22, which is currently before the House?

[John Nater, Conservative, Perth—Wellington, ON]

Madam Speaker, I will try to address most of what the Parliamentary Secretary to the Minister of Justice spoke about. I would start with what he ended with, and that is mandatory minimums and overrepresentation of certain groups within the criminal justice system. That is a conversation that needs to be had, but on the crime of sexual exploitation, that is a crime in which there is a power imbalance and in which the offender is a person who is in a position of power over the victim. They are not a vulnerable population. It is the victim in these cases who is in the position of a vulnerable population.

The second is the point of mandatory minimums more generally. Courts and Parliament have recognized that certain crimes need to be condemned, and we need to take strong actions on them. This is the case with violent crimes and sexually based crimes. In this case, I would argue this is one that would withstand a charter challenge due to the serious nature of the actions undertaken by offenders against vulnerable populations, including young people and persons living with disabilities. They are the vulnerable populations that we need to be defending with this legislation.

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, I thank my colleague for his speech.

I have a very specific question for him. The amendments he wants to make to the Criminal Code target offences that, depending on the severity of the charge, the Crown can choose to prosecute as a criminal offence or an offence punishable on summary conviction.

However, the bill suggests that the one-year mandatory minimum sentence remain the same in both cases even though a criminal offence and an offence punishable on summary conviction differ in both nature and severity. I would like my colleague to comment on that.

[John Nater, Conservative, Perth—Wellington, ON]

Madam Speaker, I thank my colleague for her question.

I apologize, but I will answer the question in English because it is harder for me to answer in French.

The member does raise an important question about summary versus indictable offence. If I understood the question well, it was whether summary conviction and indictable offences would have the same mandatory minimum sentence and whether that would be appropriate, given that they be slightly different crimes. I would argue that given the seriousness of these crimes, whether it is on summary conviction or an indictable offence, the minimum sentence of one year would be appropriate for either summary conviction or otherwise, given the seriousness of the power imbalance of an offence involving a vulnerable population.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Madam Speaker, the problem I have with mandatory minimums is that they tend to be one-size-fits-all, no matter the circumstances or the information on each case, and I am worried about them taking away from judicial discretion. I was wondering about his thoughts on the sentencing principles that already exist in the Criminal Code under section 718.2, which do require a judge to take into account whether there was a position of authority or trust and whether a person was under the age of 18 years. These allow judges to significantly increase penalties based on the circumstances of the case.

I believe what he is trying to tackle in this bill is already allowed for in the Criminal Code, and I am wondering why he does not agree with that.

[John Nater, Conservative, Perth—Wellington, ON]

Madam Speaker, the member for Cowichan—Malahat—Langford does raise an important point about sentencing guidelines, which are already there, and I do agree with that to a degree, but we have seen cases, including one that happened in my riding, where that was not the outcome. There was no sentence. It was a monetary fine and probation for the individual I have seen in this riding. I would say that when there is a serious crime we need to, as Parliament, stand up and say that this is not appropriate.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the President of the Queen’s Privy Council for Canada and Minister of Intergovernmental Affairs and to the Leader of the Government in the House of Commons]

Madam Speaker, it is safe to say that parliamentarians reflect their constituents' beliefs. I think that we would find consensus that hideous crimes are being perpetrated in society far too often. Sexual offences, in particular against children and persons with disabilities, are indeed hideous crimes. They cause so much damage to our society.

An occurrence can take place over hours. Often, more than the hours of the actual incident, the effects could be prolonged for days and in incidents of captivity they could be much longer than that. People seem to forget that the consequences of being a victim of such a crime go far beyond the time of the incident: they stay with the person for the rest of their lives.

It is important that we as legislators understand and appreciate the impact these types of crimes have on victims, their family members and friends. Having that appreciation and understanding puts us in a better position to take action.

I used to serve on a justice committee. I want to bring two perspectives from that. It was a youth justice committee, and I was its chair for a number of years. We had this discussion about minimum sentencing, or minimum dispositions, as there was an increase of people who were stealing cars. People on the committee said that no matter who the person was who stole a car, we needed to ensure that youth had a minimum sentence or an assessment where he or she, most often he, would have to fulfill x, y and z requirement plus whatever else they would have to assign. Other members of the committee had a different approach, saying that we needed to allow the honorary probation officers dealing with youth some discretion.

As a justice committee, we never dealt with sexual offences, but the principle of judicial discretion was something on which we had a very healthy discussion. When the committee first formed, some individuals with the hardest attitudes toward ensuring there were the toughest consequences came to believe that minimum sentences were not what we should be putting into place.

I say this because I believe that, if we were to canvass our constituents, everyone would agree that sexual offences, in particular against children and persons with disabilities, upset people significantly. We have a difficult time understanding why an offender would do such a thing and the initial reaction is to put them in jail and throw away the key. We, as legislators, understand and appreciate that is not necessarily the answer.

Yes, there needs to be a consequence, an element of punishment, but we also need to look at the bigger picture. That is not to say, as the introducer of the motion has put on the record, that former Liberal ministers have come forward and said yes to minimum sentences for certain types of crimes, this being one of them, nor does it mean we have to outright oppose all minimum sentencing; what it does mean is that we need to give special consideration to the types of things that are happening in our communities.

Whatever members think of minimum sentencing, as my New Democratic friend pointed out, they should think of judicial independence and the laws we have in place today. The Criminal Code covers most of everything, if not everything. I have not gone through the details of the private member's bill that has been provided, but it seems to cover, in one fashion or another, what we are having to face today. We might find the odd example that would challenge it to a certain degree, but I think we have to be very careful not to recognize the importance of judicial discretion. That is part of the fear I have. When we talk about systemic racism and look at incarceration and the role it has played, at least in part, it would be irresponsible for us as legislators, any time we talk about minimum sentencing, to not take into consideration the impact it may have on other issues where there could be a correlation. I find some crimes more upsetting than others.

From a personal point of view, the issue of exploitation is something I do not think we could ever do enough about with respect to discussions, debates and looking at ways we can combat it. I do not believe it has been getting better over the last number of years or back over the last decades. In part, that is because of the amount of exploitation taking place on the Internet today. I applaud the ministers of the government who I know have been doing a tremendous amount of consulting on this issue. We have a Prime Minister with a teaching background, who understands the importance of young people and making sure they get the best chances at life. When we start talking about sexual exploitation and those who are vulnerable in our society, we need to be there so we can provide that extra level of protection. There are things we can do. I believe the Government of Canada has been very proactive on that file.

I am hopeful we will see a downturn. Some of what we hear as a direct result of the pandemic on the issue of sexual exploitation is making a lot of people nervous, because we know the cost of one offence is horrendous, not to mention the impact it has on the victim. The costs go far beyond the dollar value. The bill talks about how we want—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Alexandra Mendes]

We have to proceed to the next speaker.

The hon. member for Saint-Jean.

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, I am pleased to rise today to speak to Bill C-219, which would amend the Criminal Code to increase sentences for offences of sexual exploitation and to add as an aggravating circumstance the fact that the victim is a person with a disability for the purposes of sentencing.

I agree with all members, or at least I think all of them, that this bill has a noble objective to protect the most vulnerable. I am perhaps a little less comfortable with the method of achieving this goal through increasing sentences and imposing higher mandatory minimum sentences.

Before I begin talking about the bill itself, I want to talk in general about mandatory minimums and revisit a question I have asked the House before about whether these sentences truly act as deterrents. The example I cited was the Bloody Code, used in England from the 17th to the 19th centuries. This code imposed the death penalty for such crimes as the theft of an item valued at more than 12 pence, such as a turnip. One might think that the code deterred people from stealing turnips, but that was not the case. Instead of sending people to the gallows for stealing such low-value items, juries instead opted to acquit the offenders, often by underestimating the value of the item stolen. The code did not deter crime, but rather encouraged it. After the imposition of capital punishment for the theft of turnips, more turnips than ever were stolen.

In these modern times, one could imagine that mandatory sentences might now be deterrents for judges, who might be tempted to look for ways to acquit the offender rather than impose a minimum sentence that would be disproportionate to the crime committed. Conversely, if the minimum sentence is very short, one would have to wonder whether it would truly be a deterrent and whether it would simply give judges less discretion.

Before I speak about the different parts of the bill, I will say that at this stage I will not comment on whether it is appropriate to refer the bill to a committee. I believe that the bill raises many questions and I am going to focus on that today. I will then indicate whether I will be voting for or against the bill at second reading. I think that the discussions in this chamber will be very informative and a great opportunity to show the importance of the debates held in the House.

The first of the three aspects covered by Bill C-219 concerns people in a position of authority. Paragraph 153(1.1) of the Criminal Code will be amended to increase the minimum sentence on summary conviction from 90 days to one year. In such a summary conviction, the judge would be limited to handing out a sentence between one year and two years less a day. This would greatly limit the judge's discretion in determining the sentence. Judges' responsibilities go beyond handing down a guilty verdict or an acquittal. Sentencing is also an important part of their job. Their discretion in this case would be severely curtailed.

Another problem is the imposition of the same minimum sentences for crimes deemed indictable offences and for crimes deemed summary offences. Handing out the same minimum sentence for crimes considered to be of different severity raises questions.

Furthermore, this amendment to the Criminal Code may not be constitutional. In 2019, the Court of Appeal of Yukon ruled that the minimum sentence of one year for an indictable offence was unconstitutional. We therefore can expect that the courts will do the same thing with the one-year minimum sentence for an offence punishable on summary conviction. The Nova Scotia Court of Appeal and certain lower courts in other provinces also declared this portion of the law unconstitutional.

The bill's second amendment relates to a person in a position of trust or authority, specifically towards a person with a mental or physical disability. This clause poses the same problem because it too adds a minimum punishment of one year for an offence punishable on summary conviction. We will most likely have the same debate about why the minimum sentence should be the same for an offence punishable on summary conviction as for a criminal offence.

Another problem might be the constitutionality of this mandatory minimum sentence. If we compare this to an article intended to protect other people also considered vulnerable, in this case children under 16 years of age, it is worth remembering that the Quebec Court of Appeal overturned the mandatory minimum sentence in Caron Barrette in 2018. The court declared:

...that the one-year mandatory minimum sentence of imprisonment provided for in s. 151(a) of the Criminal Code is of no force or effect with respect to the appellant, that it is unconstitutional as infringing s. 12 of the Canadian Charter of Rights and Freedoms and is not saved by operation of s. 1 of the Charter.

We might have a constitutionality problem in this case too. Another problem is that subsection 153(1) of the Criminal Code is rarely used because it is not very clear. Unfortunately, it is not a paragon of clarity.

At paragraph 184 of the decision in R. v L.C., the Hon. Erick Vanchestein says:

This provision was not subject to specific doctrine or jurisprudence in respect of its interpretation.

In other words, it is rarely used. He goes on to say:

It would appear from the parliamentary debates and proceedings surrounding the enactment of this provision that this offence was created at the request of organizations representing [persons with disabilities] who were seeking to obtain specific protection for vulnerable persons with disabilities, more specifically, the caregivers.... For this provision to be meaningful it necessarily needs to be complementary to the provisions with which it forms part.

The important paragraph is the following:

The court finds that the protection targeted by this provision is sexual abuse that takes advantage of the victim's disability, which is not the case here.

In that case, the victim was deaf.

In the end, the person was acquitted of the charge under section 153, because it needed to be proven that they had taken advantage of the victim's disability. What Crown prosecutors often do is use other sections that are clearer and easier to convict on. That makes section 153 ultimately useless, because it is not clear enough or makes it too hard to meet the burden of proof.

The last part of the bill calls for an amendment in the context of the commodification of sexual activity. It states that the court shall “consider as an aggravating circumstance the fact that the victim of the offence is a person with a mental or physical disability”.

We can expect this to create some discrimination in the hiring of sex workers. That is the absurd part of it. For instance, clients would be more likely to be criminally charged if they used the services of a sex worker with a disability that does not make her otherwise vulnerable than if they went to her colleague who does not have a disability. This would be a rather strange side effect of a very literal reading of the clause.

Furthermore, section 718.04 of the Criminal Code already sets out aggravating factors for offences against vulnerable persons. It reads:

When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

Therefore, there is already a directive for judges that a harsher sentence must be imposed when the victim is someone who is considered vulnerable.

There are a number of questions that could be asked about this bill. We could look at everything that was done following the Bedford case, which decriminalized the provision of sexual services. Should we be cracking down on clients or focusing on pimps, for example?

There is a lot to debate. I look forward to following this issue and hearing the parliamentary debates on it.