Bill C-12 (Historical)

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

Criminal Code

[Sue Barnes, Liberal, London West, ON]

Mr. Speaker, I am pleased to rise today to speak to Bill C-22. I am also very aware that all the justice critics need to be in committee for clause by clause of another justice bill right after this, so I am going to truncate my remarks to help get all the right people in the room who need to be there shortly after question period.

I will say at the outset that our party will support the bill. In doing so, we are following up on work that has gone on over a number of years. The Speech from the Throne of October 5, 2004 committed the government to cracking down on child pornography. Similarly, in the previous Speech from the Throne, the former Liberal government committed to reinstating former Bill C-20, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

The bill was reinstated on February 12, 2004 as Bill C-12. It was awaiting second reading in the Senate at the time of that Parliament's dissolution for a federal election. In June 2004 the then prime minister reiterated support for reintroduction of the package as the first legislative item in the new Parliament. I know that the former minister of justice, the hon. member for Mount Royal, introduced in the former Parliament Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act. It received third reading on June 9, 2005, royal assent on July 20, 2005, and came into force in its entirety less than a year ago, on January 2, 2006. Bill C-2, then, is built on reforms previously proposed in the former Bill C-12 and proposed reforms in five key areas.

I might reiterate, too, that former Bill C-12, by a procedural motion, a hoist motion, from the then opposition Conservative Party, was prevented from going forward a couple of years earlier.

Be that as it may, when I hear the Minister of Justice incorrectly saying that nothing was done, I have to put on the record that we did strengthen prohibitions against child pornography.

We broadened the definition of child pornography to include audio formats as well as written material “that has, as its predominant characteristic, the description of prohibited sexual activity” with children “where that description is provided for a sexual purpose“. We prohibited advertising child pornography, increasing the maximum sentences and making a number of offences have more bite.

We wanted to protect young persons against sexual exploitation. One of the things that I like in Bill C-22 is that the government has not disposed of that section that was so important, the section that talked about the exploitation of children. It had prohibited sexual activity with young persons between 14 and 18. Under Bill C-2, a court would be directed to “infer that a relationship is exploitative of the young person based on its nature and circumstances, including the age of the young person, any difference of age, the evolution of the relationship, and the degree of control or influence exercised over the young person”.

Consistent with the existing criminal law treatment of sexual assault, that bill focused on the offending conduct of the accused rather than just on the young person's consent to that conduct. That was always the concern, that it was not just an age number, because the age of 14 has been in the Criminal Code and utilized since the late 1800s. It was the “exploitative” nature, and I am pleased that the bill keeps this, because that helps in our being able to come forward with our consent today.

We did increase the penalties for offences against children.

We facilitated testimony not only for child victims and witnesses under 18 years but for other vulnerable victims and witnesses. This is procedural, to help stop re-victimization in the court process.

We created a new voyeurism offence. Today we have those cameras that take pictures; that is why we needed this.

In 2002 we also created the offence of Internet luring under section 172.1 of the Criminal Code. That prohibited the use of a computer system, including the Internet, to communicate with a young person for the purpose of committing a sexual assault against that person. It can and is being successfully charged, irrespective of whether a sexual assault actually took place. The fact of the offending conduct of trying to lure a child via a computer system is what we were getting at and it is there.

Also, just a few weeks back, a private member's bill on increasing sentences passed in the House.

Today's Bill C-22 is an improvement over former private members' bills, no matter how good the intention was. The fact is that now this bill has the five year close in age exception and that will go a long way, I think, in helping us to accept this bill and give our consent to it.

In fact, in our Liberal justice plan announced last week, this was one of the bills that we said would be put forward and given consent by our party, along with the other bills of conditional sentencing and imprisonment, as amended in committee, such as: Bill C-9; Bill C-18, an act to amend certain Acts in relation to DNA identification; Bill C-19, an act to amend the Criminal Code (street racing) and to make a consequential amendment to the Corrections and Conditional Release Act; Bill C-23, an act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments); and Bill C-26, an act to amend the Criminal Code (criminal interest rate), which was debated in the House last week under the topic of payday loans.

We on this side will add Bill C-22 to that list of bills. There are about 11 government justice bills. This one makes six that the Liberals are prepared to move forward in the Liberal justice plan, although we do not think that these bills are universally perfect. But we could find flaws with all pieces of legislation in the House. There are sections in this bill to do with unconstitutional areas of the Criminal Code, which we could have fixed. The justice minister has chosen not to do that, but at this stage I think the protection of children should be our utmost priority.

Listening in the chamber today was one of the good police officers who has to work in this area. He was kind enough to give some Liberal members a briefing. Unfortunately, his colleague from the federal police services was not allowed to do that, for reasons unknown.

On this side of the House, we as the official opposition are prepared to support this bill. I am prepared now to move on and give my time so that critics from the other parties can all be present in the justice committee for voting measures later this afternoon on another piece of legislation. There is unequivocal support here for Bill C-22.

[The Speaker]

I am sorry to interrupt the parliamentary secretary, but it being 5:29 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at the third reading stage of Bill C-12.

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

[Leon Benoit, Canadian Alliance, Lakeland, AB]

Mr. Speaker, I am pleased to rise to speak to Bill C-12 today. What the bill is intended to do, which is quite different from what it actually does, is to make amendments to the Criminal Code that are intended to safeguard children from sexual exploitation, abuse and neglect.

Clearly these are issues that should have been dealt with a long time ago. In fact, I have been in the House for over 10 years now, and when I first came here the government promised it would deal with these issues. Legislation has appeared on a couple of occasions before and it was supposed to deal with some very serious problems regarding child exploitation, abuse and neglect, yet nothing concrete has happened.

I can safely say that things are no better now when it comes to protecting our children than they were when I came here 10 years ago. In fact, if we take a careful look at the law and the way the courts interpret the law, I think it is safe to say that things are actually worse now and the law actually does a poorer job now of protecting children than it did 10 years ago.

Now we have Bill C-12, which is supposed to fix these flaws in the law, but clearly Bill C-12 will not do that. There are several clear gaps in this legislation, which really make it clear that it will not do the job that it is intended to do. Again, the stated purpose of the legislation is fine, but what the legislation delivers is not. Frankly, that is a common problem that I have seen over the past 10 years. We have seen legislation that states a noble goal but then once delivered really does not do it.

The government seems extremely weak when it comes to putting forth effective legislation and that is too bad, especially when we are talking about protecting our children. I am going to point out some of the specific areas where this legislation clearly fails.

First, this legislation does not eliminate all defences for the criminal possession of child pornography. That is what the Canadian public wanted. It wanted all defences for the possession of child pornography eliminated.

Second, it does not raise the age of consent for adult-child sex. Since I have been here, I have seen literally tens of thousands and hundreds of thousands, possibly millions--it probably is in the millions--of names presented on petitions from Canadians who have called on the government to raise the age of sexual consent from 14 to 16. What has the government done about these hundreds of thousands and probably millions of petitioners? It has ignored them, and that is really another serious flaw in this legislation. The government did not listen to the people who really understand what has to be done, but I will get to that later.

The third thing this legislation clearly fails to do is institute mandatory sentences for child sexual assault. What more important role has the law than to protect our children? To me the answer is clear: there is none. There is simply no more important role of the law than to protect children, yet this legislation clearly fails to do that.

The laws in the United Kingdom and the United States put in place mandatory sentences for sexual assault against children. Why is this so difficult or why is this government so unwilling to do that in Canada? Quite frankly, I do not have the answer.

I do not have the answer. It has been so frustrating. Several members of our party have taken on this issue with everything they have. We have all spoken to this issue. We have all encouraged the government to get serious about protecting our children. Yet what do we get? We get Bill C-12, which absolutely, certainly and clearly will not do that. Why? I will not try to answer for the motives of the government. I can say that this will not do it.

Because of this, Canada is becoming a global haven for child predators. That is not the kind of reputation I want for our country. One of the things we do not want Canada to be is a haven for sexual predators, yet because of our weak law that is exactly what we have become. It is shameful and it is embarrassing. More important, it is a failure of the Government of Canada to protect our children. It is such an important failure that it has to be corrected. The government has made several attempts to correct this over the years but it has clearly failed.

I want to go back to the issue of who the government listens to when it comes to making laws with regard to this issue. Does it listen to the Canadian public? No. As I have already said, we have had petitions presented in the House that have been signed by hundreds of thousands, possibly millions, of people. I would venture to guess that all of us in this party have presented petitions on this issue. Clearly the government has not been listening to the Canadian public.

This government tends to be elitist and wants to listen to a certain elite group of people that knows better than the general public; that seems to be the way it thinks. If that is what it wants to do, has it listened to front line police officers? That would make sense. Front line police officers know that child abuse takes place and they know how it takes place. They know where they fail in building a case that would stand up in court because of the law put in place by the government. Front line police officers know all these things. They also know the unbelievable damage this predation does to children and their families and their communities. Front line officers have told the government that, but does the government listen? It does not.

Until the government listens to child advocates, to front line officers and to the Canadian public, it will never fix this problem. I just want to say that a Conservative government will. We will. We have been speaking out on this issue and putting forth concrete recommendations for change. We have put amendments to legislation that the government has brought forward. Those amendments by and large have been ignored.

But when we form the government we will fix this issue, because to us the protection of our children is important. It is something we see as one of the most important things a government can do and clearly one of the things government is expected to do. We will do that.

Part of this problem has come about as a result of the artistic merit defence. How many people have called the offices of every single member of Parliament, including Liberal members, to say they were upset with the Sharpe decision? In that case, the Supreme Court interpreted artistic merit and said that in the law it should be interpreted in the broadest sense possible.

While members of Parliament on both sides of the House have heard about this again and again, the government has done nothing to fix the artistic merit problem in Bill C-12. It simply is not going to change in that regard, but this has to be fixed. That is a big part of the reason why this problem has been allowed to carry on for so long. It simply has to be fixed. I have very little faith that this will happen, but I hope it will before Parliament is dissolved. If the government does not fix it, we will.

Business of the House

[Jacques Saada, Liberal, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform]

Mr. Speaker, this afternoon we shall continue with the opposition day motion.

Tomorrow we shall debate the motion to refer to committee before second reading Bill C-34, the bill introduced earlier today respecting dumping of toxic waste by ships. We shall then return to third reading of Bill C-23, the first nations fiscal legislation, Bill C-12, the child protection, and Bill C-10, the cannabis legislation.

Next week, we will continue this business where it has been left on Friday. We will add to the list a motion to refer to committee before second reading a bill to be introduced tomorrow concerning the DNA data bank.

Tuesday and Thursday shall be allotted days.

Hopefully, by the end of the week, we will begin to have some of the legislation now in committee reported back, so that we can get a good start on finishing the work we have to do before the summer adjournment.

Criminal Code

[The Speaker]

The House will now proceed to the taking of the deferred recorded division on the amendment to the motion at third reading stage of Bill C-12. The question is on the amendment.

[Ken Epp, Canadian Alliance, Elk Island, AB]

Mr. Speaker, I notice that no one else is rising, so I will indeed take the opportunity to challenge the member.

She has failed to address my question. She gave a wonderful answer, that there are some nice things in the bill and some positive things. I agree. The bill is not totally bad. That is not why we are sending it back. It has several serious fatal flaws and we want those corrected in the bill so we actually protect our children.

I posed the problem to her twice. This is now the third time. Her inability or unwillingness to address it, I think is a tacit admission that the bill fails on the very point I mention. That point is, if a 15 year old smooth talks a 13 year old neighbour into doing things which are wrong, that child does not have any protection of the law. Yet the government has the gall to call Bill C-12, in brackets, protection of children. It does not do exactly what it says in the title of the bill that it purports to do.

How is a 13 year old protected in this scene that I have stated? The fact that she will not address the question and talks about everything else is warranting a press release that says that the Liberals do not care whether 15 year olds smooth talk neighbouring 13 year olds into having sexual activity together and things like that.

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, the amendment before us is as follows and I will quote it because it is important for the Canadian public to understand the amendment. The amendment put by the opposition party states:

Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, be not now read a third time but be referred back to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness for the purpose of reconsidering all of its clauses, with the view to eliminate loopholes identified by the nation's most notorious child pornographer, Robin Sharpe.

That is the official opposition's hoist motion.

I understand from this amendment that child pornographer Robin Sharpe claims to like Bill C-12, the protection of children and other vulnerable persons bill. Sharpe is said to like Bill C-12's proposed new sexual exploitation of children offence on the basis that he thinks it would provide an accused with the opportunity to cross-examine the young victim on their sexual relationship, and that this could in turn both educate and entertain the public about child-adult relationships.

It is incredibly important to restate again that the government finds absolutely nothing entertaining or educational about the sexual exploitation of children.

While Mr. Sharpe is entitled to his own personal opinion, as are all members of the House, we do not on this side of the House look to convicted child pornographers for legal advice. Bill C-12 would directly respond to the issues that the government and indeed Canadians have identified as demanding new legislative responses.

First, it would provide young persons with additional protection against sexual exploitation by creating a new offence. With the proposed new offence, a court could infer that a relationship is exploitive of the young person based on the nature and circumstances of the relationship, including the age of the young person, any difference of age, the evolution of the relationship, and the degree of control or influence exercised over the young person.

The primary focus of this review is not on the sexual activity, but rather on whether the accused exploited the young person. For example, it focuses on how young was the victim and how much older was the accused. Did the accused control or influence the young person by befriending, for example, a wayward or neglected young person, or by buying things for this young person?

In this way the focus is on the offending conduct of the accused, rather than the young person's consent to that conduct. This is consistent with the criminal law's treatment of sexual assault. The proposed new offence does not create the opportunity that Mr. Sharpe claims.

Second, Bill C-12 proposes amendments to prevent a self-represented accused from personally cross-examining the young victim and to permit the judge to appoint counsel to conduct the cross-examination in his or her place.

These amendments would prevent exactly the kind of abuse Mr. Sharpe claims is permitted. It is not what the other misperception of the bill says. Here we are actually dealing with the situation. We have the solution to the problem. Judges have an inherent jurisdiction to control proceedings in their court and some have appointed counsel for self-represented accused without relying on a specific code provision.

Judges would determine whether evidence was relevant and questioning was appropriate. They would not readily permit the type of questioning Mr. Sharpe advocates.

Moreover, the police would investigate and lay charges based on the facts. If the accused had sexually exploited the victim, determined by the conduct and the circumstances, the nature of the relationship, if any, and the age and age difference between the victim and the accused, the appropriate charges would be laid and prosecuted.

Bill C-12 was thoroughly reviewed by the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. The committee heard from a large number of witnesses who spoke to all issues addressed by the bill. The committee considered the evidence and considered the bill and, indeed, made amendments to the bill before reporting Bill C-12 back to the House.

We should not be looking to undermine the important work of the standing committee. It has done its job and now let us do ours and vote against this motion.

Robin Sharpe is entitled to his opinions. All people are entitled to opinion, as long as the opinion does not break any laws. He once thought that the prohibition against the possession of child pornography was unconstitutional and quite frankly the Supreme Court of Canada disagreed with him. This government disagrees with Robin Sharpe yet again.

I call on all hon. members to oppose this motion and to support instead the swift passage of Bill C-12 and, with that hopefully, we will be able to continue on to third reading after we have finished with this hoist motion.

Business of the House

[Jacques Saada, Liberal, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform]

Mr. Speaker, it is a great pleasure for me to reassure my colleague and Canadians that we are working on a number of bills.

We will proceed this afternoon with third reading of Bill C-9, an act to amend the Patent Act and the Food and Drugs Act (The Jean Chrétien Pledge to Africa). This bill, which we introduced and which is now at third reading, makes it possible for us to send pharmaceutical products to help countries in Africa.

This will be followed by third reading stage of Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

Then we will move on to report stage of Bill C-23, an act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other Acts.

This will be followed by the debates on the motions for referral to committee before second reading of Bill C-29 and Bill C-32. I would like to point out that it is as part of our democratic reform that we are now regularly referring bills to committees before second reading, to allow them to review the legislation.

Therefore, before second reading, we will refer Bill C-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts, and Bill C-32, an act to amend the Criminal Code (drugs and impaired driving) and to make related and consequential amendments to other Acts. We know that Canadians really want us to deal with the issue of impaired driving.

Of course, we will deal with third reading of Bill C-10, an act to amend the Contraventions Act and the Controlled Drugs and Substances Act.

This is for today. We may not have time to finish everything, because there is a lot to do. In any case, tomorrow we will deal with report stage and, if possible, with third reading of Bill C-30, an act to implement certain provisions of the budget tabled in Parliament on March 23, 2004.

Then, we will undertake our review of Bill C-28, an act to amend the Canada National Parks Act.

Of course, next week we will continue with any unfinished business.

Incidentally, Thursday of next week, May 6, will be an allotted day. I would suggest that hon. members get a good rest, because there is still a lot of work to do.

Criminal Code

[Paul MacKlin, Liberal, Northumberland, ON]

Mr. Speaker, I am pleased to take part in today's debate on Bill C-12, an act to amend the Criminal Code, the protection of children and other vulnerable persons, and to make changes to the Canada Evidence Act.

I will speak to a part of the bill that has not received a great deal of attention thus far but contains important provisions for children and other vulnerable witnesses.

Bill C-12 contains a range of reforms to the Criminal Code that would make it easier for a child or other vulnerable persons who are witnesses to provide their testimony at criminal trials. These provisions build on the current Criminal Code provisions that recognize that participating in the justice system as a victim or witness is not a pleasant experience. It is usually a very traumatic experience, particularly for children.

The proposed changes in Bill C-12 recognize that despite the progress that we have made in developing a justice system that is responsive and sensitive to the needs of children and all victims and witnesses, more still needs to be done.

Our law currently permits the judge to exclude members of the public from the courtroom in some circumstances. For example, this could be ordered where a child victim of sexual abuse is giving his or her evidence.

In addition, a publication ban may be imposed to protect the identity of young victims. A support person may accompany a young victim and some young victims may give their evidence from behind a screen or on closed-circuit TV. The law also protects a young victim or witnesses of a sexual or violent offence from having to face questioning from an accused who represents him or herself.

Videotaped interviews are also permitted to be used as evidence where the child adopts the videotape at the court proceeding.

The current provisions when they are used work well. However, due in part to the fact that some of these provisions have been amended over time rather than as one comprehensive package, we now have a different series of tests for the use of various testimonial aids, different offences to which they apply and different age categories of young persons who can benefit.

Obviously the bill goes a long way toward resolving some of these concerns and hopefully I will have a chance to explain it at another sitting of the House.

[The Speaker]

The House will now proceed to the taking of the deferred recorded division on the amendment of the member for Battlefords—Lloydminster to the amendment to the motion at third reading stage of Bill C-12.

The question is on the amendment to the amendment.

[Chuck Strahl, Canadian Alliance, Fraser Valley, BC]

Mr. Speaker, just before question period the member for Elk Island asked me a question dealing with child pornography that is dealt with in some ways in Bill C-12, an act to amend the Criminal Code. He was quoting from subsection 7(7). This is dealing with pornography. It says:

For the purposes of subsection (6), acts or material that serve the public good include acts or material that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.

The member asked what I thought about those categories. I agree with him that this material is necessary for science or medicine for treatment of people who have a disease of addiction to child pornography for example, or education where police officers have to be taught what it is they are looking for and so on.

The category we are wondering about is art, to have the idea of public good and use it in the category of art.

John Robin Sharpe is pleased with the bill. I think he is pleased in part because he sees this as a loophole. He will use it as he used the artistic merit argument in times past to try to get away with some of the filth that he thinks is worth having and sharing.

On the issue of art, I want to share a story that moved me years ago, if I can get through the story. It was a story related by Dr. James Dobson. James Dobson was the president of Focus on the Family, a well-respected psychologist who was appointed years ago to sit on the President's panel dealing with pornography in the United States. I heard him give a talk on this one time.

He told how he had to travel from town to town to do these investigations. Part of that involved looking at pornographic material in order to see just how bad it was. I cannot imagine doing that for weeks on end.

He said that the final blow came for him when there was a series of pictures that he was forced to look at. They started with a healthy, happy two year old child. The progression of pictures eventually ended with a picture of a two year old with a butcher knife through its chest.

He was at a meeting and I do not know in what city. He said he just gathered up his papers, went to the airport and took the first plane home. He said the pictures were so filthy and so incredibly evil that he just had to get home and hug his family.

I know there would be an argument that we cannot banish pornography because we have to have a way of judging it. There is a problem in the United States and here too, that when the picture, and they call it art, is reproduced, it is frequently seen as just that; it is just a picture, just a photograph.

A crime was committed but there is no crime in the circulation of the documents. There can be pictures of children being abused in the most heinous ways, graphic, awful and evil pictures, but the distribution of it, if it is considered artistic by somebody, in and of itself is not a crime. In the commission of the crime, if they could catch the guy perpetrating it, they would throw him in jail. But the circulation of it to people who somehow get their jollies from this should also be a crime.

I only relate that story. I do not want to go on a panel to look at this stuff for weeks on end. I do not want to look at any of it.

All I am urging is that the government consider that when there are loopholes, people will try to use them. My solution is to send the bill back to committee and come up with a better solution than the public good. I just do not think that this section, which leaves this as a loophole, is wise. It will be abused. Or if it is not abused, it will be seen as such a big loophole that law enforcement agencies will say that there is no use in prosecuting. We see that all the time with crime. Chief Fantino from Toronto would say, “What is the use of prosecuting?” If we bring forward something with a loophole, they get off almost every single time.

The police do not have the resources, the people and the perseverance to follow through. They have collected millions of photos. They have confiscated stuff. They try to ride herd on it, but the truth is that without tough and strict laws, they cannot really dig this evil out.

To answer my colleague from Elk Island, this clause is the worrisome one. That is why it should go back to committee. Most of this bill improves things for children and I am happy to support it. However, this part I am not convinced is the best way to address this particular evil. It is a bad and ugly evil that is pervasive in society. Police tell me that it is out of control.

I know the government takes this seriously but I would urge it to reconsider this and send it to committee. Let us get this fixed. Let us make the police happy, the courts happy and Parliament happy with the section that I think is crucial to the implementation of this bill.

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

Mr. Speaker, I appreciate the words of the member who just spoke. I know they come from his heart.

I also appreciate the Liberal members talking about the good parts of the bill, and I agree. There are certainly some good things in the bill that we would like to see moved forward. However, I still believe the Canadian society and even people in the government do not realize how serious child pornography is in Canada and how many cases have been heard. People are being arrested daily.

In the last three week I have done a some research. There are a whole raft of charges that are to be laid against people who are involved in child pornography, pornography that hurts our children and puts them in a really dangerous situation.

We are asking for the bill to be to sent back so the child pornography part of it can be addressed. What good is it to have a law on child pornography, if it is allowed to exist in this land. Under the bill it definitely would be allowed to exist in the hands of those, and it should not. They will continue to exploit our children and they will use the two words left in the bill, “public good”, as a defence. We do not want that to have happen, and I am sure our colleagues over there do not want that either, but it will.

I have results of a lot of the cases where charges have been laid. I would like to ask my friend what he thinks about a number of examples I have. All of them, with the exception of one, are engaged in child pornography, downloading it, sharing it with friends and enjoying it in their evil ways. Those charged have received house arrest or community service and no jail time.

The headlines read, “No Jail Time in Kiddie Porn Case,” or “RCMP Officer Guilty of Sex Offences Gets House Arrest”. It goes on and on, case after case. These are daily occurrences throughout the land, not rarities. It happens continually, and has it become a billion dollar industry. People are profiting from this garbage.

We want it stopped. We want it stamped out. However, the bill contains two words that anybody could use as a defence. They might not be successful, but we have learned through the Sharpe case that some people can be successful.

Why would John Sharpe and other pedophiles across the land praise the Bill C-12 legislation if this were the real tough measure the government claims it to be?

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased that this member chose to speak on a section of this particular bill that has not had a lot of discussion in this chamber and that is the concept of voyeurism.

Some of the questions that have been put to me, when people have talked about the bill have dealt with surreptitious observation. For instance, will the prohibition of surreptitious observation not prevent reporters from observing a person and reporting on it during an investigation, for example, a prostitution or child pornography ring?

It is really important that we understand that to commit the offence of voyeurism, journalists would have to meet all of the requirements of this particular offence. They would have to observe from a place where the persons observed cannot see them, or place a web cam in such a place. The persons observed would have to be in circumstances giving rise to a reasonable expectation of privacy, which means they must have reasons to believe that they are in a place where nobody can watch them, and journalists would have to observe at a place where we would expect persons to be nude or engaged in sexual activity, such as a bedroom or bathroom, or they would have to observe persons nude or engaged in sexual activity for the purpose of observing persons in that state.

So, if journalists are in plain view of the persons observed while the other conditions are met, the observation is not surreptitious, even though the persons do not know that they are journalists. On the other hand, if the defence were provided for voyeurism conducted in the context of investigative journalism, it would allow journalists to put cameras in the bedrooms and bathrooms of Canadians and there is a public good defence.

I am really pleased that the member noticed and talked about this public good defence that would be available to journalists to cover situations serious enough to justify using investigative techniques that constitute criminal voyeurism. It is really important that we do not blank it and say there are no defences.

The hon. member has mentioned the police. I would ask the member, why does Bill C-12 not include the specific journalistic defence for voyeurism and why is it covered by the public good?

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I welcome the opportunity to participate in today's debate on Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

As hon. members know, Bill C-12 proposes a number of criminal law reforms that seek: to better protect children against sexual exploitation, abuse and neglect; to facilitate testimony by child victims and witnesses and other vulnerable victims and witnesses in criminal justice proceedings; and to create a new offence of voyeurism. This last is an extremely important area. We have seen much of this in the media in recent years and I think every member in the House is concerned about this crime.

I believe that all of Bill C-12 is important and I support the whole of the bill. However, I will restrict my comments today to those provisions that respond to concerns relating to the age of consent to sexual activity.

The objectives of Bill C-12 on this issue are clearly articulated in the first paragraph of the preamble, which states:

Whereas the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect--

The focus of Bill C-12's response to concerns about the age of consent to sexual activity is on the exploitive conduct of the wrongdoer and not on whether the young person or victim consented to that conduct. I want to repeat that, because I think it is an extremely important part of the bill. The focus of Bill C-12's response to concerns about the age of consent to sexual activity is on the exploitive conduct of the wrongdoer and not on whether the young person or victim consented to that conduct. This is, in my view, both the right focus and the right response.

Voyeurism is an element of the bill that has not yet received much attention, but is one which I believe is important for the protection of a fundamental value of Canadian society, that is, the right to privacy.

Technology has made wonderful progress in recent years. It has simplified our lives by giving us tools that our grandparents never even dreamed of. The technological process has been particularly spectacular in the miniaturization of objects.

While new technologies have given us many advantages, they also have the potential to be misused. I think many of us recognize as we adapt to more and more technological change how that great technology can be abused and used against people.

One instance of this is the use that is made of miniature cameras. These cameras are so small that they can be easily hidden in any place. They may also be hooked up to a computer to enable a person to observe what happens in a room when that person is not only in another room but in another building.

These cameras are so small they can be almost hidden in a pen. We have seen that in terms of some of the science fiction shows and some of the crime programs. At one time we did not believe this was possible, but today it is, and we see this technology being used and used especially for voyeurism. It is an abuse of an individual's rights and it is an infringement on privacy.

Bill C-12 deals with that issue. The proposed creation of a new offence of voyeurism directly responds to this new threat on our privacy, the privacy of individuals. Of course, voyeurism is not new. There have always been what we call peeping Toms, who have observed others through a bedroom window or a keyhole. This conduct was dealt with by charging the person with the offence of trespassing or the offence of mischief. But these offences do not apply to the new ways in which voyeurism is now committed, hence the need for a specific offence of voyeurism.

The offence of voyeurism would have three elements. First is the observation or recording of a person in a surreptitious manner, which means that the person cannot reasonably be expected to see the person or the means of observing or recording.

Second, the person observed is in circumstances giving rise to reasonable expectations of privacy.

Third, one of the three following cases must apply. First, the person observed or recorded is in a place where one can reasonably expect a person to be in a state of nudity or engaged in sexual activity. I would think that a bathroom, a bedroom or a fitting room would qualify as such a place.

Second, a person is in a state of nudity or engaged in a sexual activity and the purpose of the observation or recording is to observe or record a person in that state.

Third, the observation or recording is done for a sexual purpose.

Bill C-12 would also criminalize the distribution of material obtained through voyeurism when the distributor knows that the material was obtained in this manner.

This new offence will not interfere with legitimate purposes. It will be a defence to a charge of voyeurism or distribution of voyeuristic material if the facts that constitute the offence served the public good and did not exceed what served the public good.

The bill would further protect the privacy of Canadians by providing for the seizure and forfeiture of voyeuristic material and deletion of such online material. This is an important element of Bill C-12. It protects a right that Canadians value dearly: their right to privacy.

We in this House have an obligation to ensure that Canadians' right to privacy is indeed protected. This is one more reason for the House to support the bill, in addition to the protection it will bring for children and other vulnerable people.

I want to take another moment and talk about Bill C-12 in its creation of the new category of prohibited sexual exploitation of a young person who is over the age of consent, that is, who is 14 years of age or older and under 18 years.

Under the proposed reform, courts will be directed to infer that a relationship is exploitive by looking to the nature and circumstances of the relationship, including the age of the young person, any difference in age, and the degree of control or influence exerted over that young person.

I understand that there continue to be calls to raise the age of consent for sexual activity. Why is this? As I understand them, these calls seem to be motivated by a number of different reasons.

For example, one reason sometimes given in support of raising the age of consent is that raising the age of consent to 16 or 18 will prevent others from forcing young persons into the sex trade. In response to this, I note that it is already an offence under the Criminal Code to force anyone under the age of 18 into prostitution. This offence carries a mandatory minimum penalty of five years' imprisonment.

Another reason that is given seems to be related to different understandings of what is meant by sexual activity. Canadian prohibitions against sexual activity do not differentiate between sexual activity and sexual activity that involves sexual intercourse. I do not believe that Canadians think a 14 year old or 15 year old girl is not mature enough to freely make a decision to kiss her 17 year old boyfriend, nor do I believe that Canadians want to criminalize a 17 year old for kissing his 14 year old girlfriend. Whether we adults like it or not, the reality is that adolescents do engage in sexual activity.

Bill C-12 in whole is a bill that the House should support and support extensively. It creates new penalties and it creates new offences. At the end of the day, it would mean that we would more greatly protect the most vulnerable in our society. I encourage all members of the House to support Bill C-12.

[Paul MacKlin, Liberal, Northumberland, ON]

Madam Speaker, it is a pleasure to participate in the debate, although I see the time is somewhat limited this evening.

I was at least encouraged to hear the previous speaker advance the fact that now he is giving a selection of items that were clearly referred to as examples that would be included as serving the public good in Bill C-12. I think we are starting to make some progress. We are starting to see that in fact we cannot start off with a bill that has absolutely no means of allowing people to deal with that issue, and the phrase “public good” is an excellent way of expressing that. The hon. member has come a long way toward accepting that principle.

Today I find this a special opportunity to discuss and debate further the issues that are so important, as everyone has pointed out today. I believe this discussion, although it has gone on at some length, should go forward with the concept of trying all ways and means that are meaningful to protect our children while preserving all the rights that are within our charter. I say that of course because Bill C-12 does bring forward, not just child pornography reforms in terms of criminal law, but actually goes beyond that and brings forward other reforms which better protect those who are most near and dear to us, our children, and those people with disabilities.

Bill C-12 is much needed and welcome and I look forward to the reforms that it will introduce. Each of us wants to make sure that the criminal law meets the needs and concerns of Canadians, especially those who are most vulnerable, which includes those with disabilities and our children.

Although the previous speaker concentrated on one particular area of the bill, we must understand and appreciate that there are a number of areas that are being addressed. First, the bill deals with the concept of strengthening our existing child pornography provisions in two respects. One is to broaden the definition of written child pornography to include material that is created for a sexual purpose and predominantly describes prohibited sexual activity with children and the other would narrow the existing child pornography defences so that there would only be one defence of public good.

Within the scope of public good, the previous speaker's commentary about dealing with science, education, law enforcement, the administration and process, the medical issues that arise from this, and the entire study process, this is developing the idea of public good. I am very happy to see that there is some movement in my hon. friend who previously spoke to this concept, because up until this point there was a desire on the part of that party to simply say that there should be absolutely no defence.

I think those members are starting to get the idea. They are starting to develop the concept that there are legitimate uses that have to be there. There have to be opportunities to educate our people to deal with the medical realities and to go through and deal with the administration of justice.

I think it is very important that we are making progress in that area. In narrowing the defences to the one defence of public good, is something that will better serve the public interest, but I think there is a limitation on that.

As one would argue for public good as a concept, one would also have to put a cap on that because we cannot let it go beyond a certain point. The point that has been determined is that one has to weigh the entire public good against the risk of harm that it would pose. Therefore, when it outweighs the benefit, that is the public good defence, to society, then in fact it would be limited.

Second, the bill also proposes to create a new prohibited category of sexual exploitation of young persons. I think the examples that were given by the previous speaker speak to those points. What we are concerned about is the exploitation of children.