Justice Committee on Feb. 5th, 2007

[Myron Thompson, Conservative, Wild Rose, AB]

For good reason, because I know what the purpose of this bill is, and when some lawyers begin talking about it being a communication factor or something, suddenly I get nervous. Are they making light of this whole situation when they get into those kinds of conversations? Basically you're going after a person because of a conversation, and I think we all understand the purpose of this luring activity. I think we all understand that it has a purpose of no good.

Mr. Fast, you may be aware that I've been trying for 13 years to get some fast, hard action against child pornography, and every time we seem to be moving in that direction through legislation.... I've had private member's bills, but I'm one of those unfortunate guys who never gets his name drawn.

Then some judge makes a decision that there could be some artistic merit, so it gets watered down a little. And then they come out a little later and they throw in the words “public good” or “useful purpose”, because they're so afraid that whatever legislation they present won't meet the charter test. Yet the purpose of getting rid of child pornography has nothing to do with the charter, as far as I'm concerned. It has everything to do with protecting children against this evil deed. And luring is an evil deed.

I'm not so sure that luring an 18-year-old should be legal. What's the purpose of luring except that usually it's no good? If you're luring an 18, or 19, or 20-year-old, I think the same purpose is probably in the back of their minds, these people who have no better way of so-called communicating than that method. Common sense tells me that this activity itself is not a good practice, and that it leads to no good. But I'm quite certain that if you brought in legislation that made it so you couldn't do it with 18- or 19-year-olds, then there would be something that would say it wouldn't meet the charter test because of certain rights.

That's how I feel about this whole picture of trying to do the right thing, and you get little comments that worry me, not that I disagree that Mr. Lee has a point to make. I understand the point, but is that really a concern of mine? Not a bit. Is that the concern of the public? No. Is that the concern of parents? No. They want action to protect their kids. They don't care about the little communicating difficulties or whatever.

I wish we would get the courage to say that we are going to start bringing down the hammer on these people, because luring has an intent, and that intent is to harm someone, whether it be an adult or a kid, but particularly kids.

I'm wondering how you feel about my unlawyerly opinion.

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Thompson, the way I would respond is in this manner. At this table, yes, you're right, there are a number of lawyers; however, lawyers aren't generally without some compassion and understanding for the needs of children and the need to protect children.

As you know, at law there are a number of things that need to be in place before we convict people. The whole notion of actus reus and mens rea, which is the act itself and then the whole notion of intention, is a critical part of our justice system. We have to recognize that, because it's what's gives us a system of justice that balances the rights of those who have been victimized against those of persons who have been charged but not yet convicted.

However, I would say this. Especially when it comes to children, we need to be especially vigilant in ensuring that we have tools in place to protect them, because they don't have the same ability as you or I have to defend themselves against predators. As I mentioned earlier, they don't have the same ability to discern what's safe and what isn't. They don't have those critical thinking skills yet. They're easily impressed. They're impressionable young children.

I believe that when we're dealing with children and an attempt to sexually or otherwise hurt them, we need to impose sentences that truly are deterrent, and also provide the courts with the ability to remove habitual offenders—the ones who would repeat their offences no matter what you do with them—from society.

I have sympathy for your frustration with the way in which the justice system sometimes, perhaps, fails to address the needs of victims, especially children.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you.

I certainly understand that many people such as you and Mr. Lee and others have compassion for the cause you're trying to put forward. I realize that. But I guess it is the frustration, after 13 years of working on child pornography and really getting somewhere in dealing with the problem after the fact, that it doesn't look as though we're ever going to be able to get rid of the problem because of the system. The system is supposed to work mostly, I think, for victims, and it doesn't seem to.

I appreciate your efforts on this bill.

Mr. Chairman, after listening to Mr. Fast's suggestion to amend the legislation—the amendment, I understand, has now been distributed among the people--I would at this time like to move that a paragraph (b) be added to section 172 following paragraph (a), as follows:

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Given the importance of the bill, Mr. Chairman, and the need to seriously address this phenomenon of child luring, I wonder if a member of the party opposite would be willing to second that motion.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I second it.

[The Chair, Conservative, Art Hanger]

The motion is on the floor and is seconded by Mr. Murphy.

There is one problem with the amendment, Mr. Thompson and Mr. Murphy. There has been some discussion with the legal counsel. The problem, as it relates to the parent act under that rule, is that paragraph 172(2)(a), which this motion purports to address, is not covered or dealt with by Bill C-277, which deals only with paragraph 172.1(2)(a). So unfortunately it's an inadmissible amendment.

[Myron Thompson, Conservative, Wild Rose, AB]

The system won't allow it, I'll bet you.

[The Chair, Conservative, Art Hanger]

That's basically it, yes. We're talking about two different sections or subsections here.

[Myron Thompson, Conservative, Wild Rose, AB]

That's basically it. Obviously we are going to have some support from this committee to get this type of change. Just exactly what would be the process?

I think Mr. Fast understands why it's so frustrating.

[The Chair, Conservative, Art Hanger]

If there's a desire to challenge my ruling on it, the committee can certainly overrule my ruling, if that's the desire of the whole committee.

[Réal Ménard, Bloc, Hochelaga, QC]

And you will resign?

[Some hon. members]

Oh, oh!

[Réal Ménard, Bloc, Hochelaga, QC]

I just want to know.

[The Chair, Conservative, Art Hanger]

Your secret desires and thoughts are now out on the table, Mr. Ménard.

[Myron Thompson, Conservative, Wild Rose, AB]

I'd like to see this amendment added, because it's a very important bill.

[The Chair, Conservative, Art Hanger]

Is it the consensus of the committee that this amendment be accepted as presented?

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I understand what Mr. Thompson and all of our colleagues are saying, but what I am interested in is the precedent this would create. You might remember that some of our colleagues here at the table have in the past tabled amendments to bills which were beyond the scope of those bills. You end up with problems when a committee supports an amendment the scope of which exceeds that of the bill. If we establish a precedent which works in favour of regular members of Parliament, which we are, whereby amendments exceed the scope of a bill, I expect this precedent to be used on other bills. I just want to make sure that things are clear.

[The Chair, Conservative, Art Hanger]

It's the authority of the committee, if the committee as a whole agrees with this particular amendment and wishes to overrule what I have stated is the issue, that's its choice, now and at any other time.

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

This is a small point of order, but the committee may or may not collectively want to see this amendment, and might be prepared to overrule the chair, but the fact is that the rule still exists. Once the bill was reported back to the House it would still be just as vulnerable. There's no provision for overruling the Chair of the House, the Speaker.

I think what I'm suggesting is that if we were to overrule the chair, if some were to move the motion and the chair ruled it out of the order, then the chair's overruled by the committee and it went to the House, the whole act might be seen just as a political statement and it might be moot because of the view of the Speaker. The rule is really quite clear, and I think the staff have pointed that out.

[The Chair, Conservative, Art Hanger]

That's very true. The issue could stumble forward and then be brought before the House and the Speaker.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

I was just going to say I think Mr. Thompson was asking for a legal way of changing this, not this illegal way of overriding the chair.

Would we have to go back to the House? Can you amend it at third reading?

[The Chair, Conservative, Art Hanger]

The issue is that this committee can unanimously agree to include this provision; there's no guarantee what might happen on the floor of the House. One person might stand and object, and then it goes before the Speaker.

I believe Ms. Jennings is on the list first.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

If I understand the procedures and rules which apply to committees, you are right to say that this committee could study and vote on a motion which would reverse your decision on whether the amendment is in order or not. However, as Mr. Lee mentioned, the House of Commons could then reverse the committee's decision.

My question is in line with the one asked by Mr. Ménard. If the House of Commons did not reverse the committee's decision, it would create a legal precedent which could lead committee members, without the input of their committee colleagues, to table amendments which exceed the scope of the bill currently under study by a committee. In that case, the committee chair would then be forced to decide whether an amendment was in order, even if it exceeded the scope of a bill.

[The Chair, Conservative, Art Hanger]

I don't think it would be the first decision made by a chair to be overruled by a committee.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

My point is that should a member of this committee table a motion challenging the chair's ruling that this amendment is out of order because it's beyond the scope of the bill we're studying, and should the committee adopt that motion, thereby allowing this amendment, and should the committee then actually adopt the amendment itself, if it goes to the House and the House in its wisdom determines that it will allow that amendment to stand, would that create jurisprudence that would then provide that any time a member brings before committee an amendment that is beyond the scope of the actual bill being studied, the amendment would automatically be admissible?

[The Chair, Conservative, Art Hanger]

I'm just advised that we don't have jurisprudence in the House; we make laws, so there would be no precedent.

Go ahead, Mr. Petit.