Evidence of meeting #44 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was children.
A recording is available from Parliament.
11:55 a.m.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
No, it's okay.
My question has been answered.
11:55 a.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
Mr. Chairman, I have two points.
First, there is no legal precedent, but there are precedents contained in Marleau and Montpetit. In this period of your life, you seem to be more progressive than conservative, which gives me great pleasure.
However, it is clear that if we adopt an amendment which exceeds the scope of the bill, we would create a precedent which might be referred to at other meetings. It would not bind the Speaker of the House of Commons, who would certainly reverse your decision because he would not want such a precedent.
Mr. Chairman, the issue is, rather, should we discuss this now or wait until we go into clause-by-clause and continue our meeting with the official from the Department of Justice? In theory, we cannot entertain an amendment, because we are still not at the clause-by-clause study stage.
11:55 a.m.
Conservative
The Chair Conservative Art Hanger
That's a good point, Mr. Ménard. We are not quite at that point. We can certainly continue our discussion; clause-by-clause study will actually yield further opportunity for amendment, and we'll most likely have a discussion at that point.
If it's satisfactory to the committee, we'll re-engage this conversation on the amendment when we reach clause-by-clause consideration.
We have one hour, but it appears that the time has run out for Mr. Fast. Members of the justice department will be standing now on the floor for their comments.
Let's see who is next on the list. Mr. Thompson is finished; Mr. Bagnell is next in line. Go ahead.
Mr. Fast, please, you have two minutes left. We're going to give you that opportunity to sum up.
Mr. Bagnell has a question.
11:55 a.m.
Liberal
Larry Bagnell Liberal Yukon, YT
I have a short question.
You said you could regale us with cases. I'm wondering about the number of times this has come to court. You briefly mentioned this. With reference to the number of times the judge actually gave the maximum, did he give the allowable maximum of five years a high percentage of the time? If he didn't, if he never gave it, then how would they ever go to 10 years?
Second, were there any judgments in which the judge said he wished he had the ability to give a longer sentence but was constrained to five years?
Noon
Conservative
Ed Fast Conservative Abbotsford, BC
I hope I haven't misled you. The five years I referred to were the five years that Mr. Whitmore was sentenced to for a non-luring sexual offence. He'd been sentenced a number of times before and obviously hadn't learned his lesson--
Noon
Liberal
Larry Bagnell Liberal Yukon, YT
No, no, I'm not thinking about a particular case. What I'm referring to is the sentence that you're trying to change from five years to 10. In the cases that have already come up, the cases in which the judges had the option of five years, did the judges use the five-year sentence very often? Did they ever complain in their judgments that it wasn't enough and they wanted more time?
Noon
Conservative
Ed Fast Conservative Abbotsford, BC
The range of sentencing at present, with the short history that the offences had in the Criminal Code, is between six months and two years of imprisonment, in some cases with conditional sentences and in some not. So we don't have a long enough history where we can say the courts have been trying to impose higher sentences but have been constrained. We haven't had any repeat offences. We've had only one situation, as far as I know, where there was a luring offence coupled with a number of other sexual offences, such as sexual interference. In that case, the individual received a total of three and a half years. But again, we haven't had a Peter Whitmore charged with a luring offence yet. And if someone like that were to come forward after having served many years in prison and still indicate recidivism, at that point we would need some tool available, especially since it's not only our children who are at risk, it's mentally disabled children.
We have some cases here. There's one case, Regina v. Deck, that involved a 13-year-old girl. Not only was she a minor, but she had some mental disabilities, which this predator, again, exploited for his own ends.
Noon
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Bagnell, the time is now up. I appreciate it.
Mr. Fast, thank you.
Mr. Thompson, on a point of order.
Noon
Conservative
Myron Thompson Conservative Wild Rose, AB
I'm just wondering if it's required that I withdraw the motion from this meeting and reintroduce it at clause-by-clause. The most elemental duty we have is to protect society. This is so frustrating. We have little nitty-gritty things that keep coming up and we can't move forward with stuff that ought to be moved forward with. I'm cheesed right off about that. And I don't know why. Somebody is going to have to explain it to me.
Noon
Conservative
The Chair Conservative Art Hanger
Mr. Thompson, we're not going to withdraw the motion at this point. We'll resume discussion on that as we do clause-by-clause.
Thank you, Mr. Fast.
I'd like to call Carole Morency, senior counsel, criminal law policy section, to the table.
Go ahead, please, Ms. Morency.
February 5th, 2007 / noon
Carole Morency Senior Counsel, Criminal Law Policy Section, Department of Justice
Good morning.
As the committee has heard already, the Internet luring of children offence in section 172.1 was proclaimed into force on July 23, 2002. It was enacted as part of former Bill C-15A, which included Criminal Code reforms to better protect children from sexual exploitation, particularly vis-à-vis the use of new technologies such as the Internet.
This offence prohibits the use of a computer system, such as the Internet, to communicate with a young person for the purpose of facilitating the commission of one of the enumerated child sexual or abduction offences.
In the past, luring children over the Internet had become a new concern which was not properly addressed by the Criminal Code. Although the law completely forbade sexual physical contact as a result of Internet communication, the law did not really address action taken before that happened, action that facilitated this type of contact—Internet communication—to prevent a sexual offence or a kidnapping offence from being committed.
So, for example, this conduct could have been charged as an attempt to commit a child sexual offence, but as the law on attempts requires that the conduct amount to more than a mere preparation, it was difficult to have sufficient evidence to found a reasonable belief that an offence had been committed before the prohibited physical sexual contact actually occurred.
The Department of Justice, together with our provincial and territorial counterparts, continues to monitor the implementation of section 172.1. Given the fact that the offence only came into effect in mid-2002, there really is not much hard statistical data relating to its use. What I can bring to the committee's attention is a summary of some of the relevant reported case law.
Nonetheless, we are seeing reported cases and we can confirm that section 172.1 is being used successfully to address Internet luring of children. Charges are being laid and convictions secured, including as a result of guilty pleas and with sentences of imprisonment. So we believe that section 172.1 is having a positive impact in safeguarding children and youth against such online sexual exploitation. And, of course, recognizing that Canada continues to be one of the world's most plugged-in countries, we know that the importance of section 172.1 in this regard will not diminish.
For example, three years ago Statistics Canada reported that 71%, or almost three-quarters, of 15-year-olds use the Internet at least a few times each week, with 60% saying that they used it to communicate electronically through, for example, e-mail and chat rooms.
Parents who participated in the Canadian component of the 2004 World Internet Project survey that was reported in October 2005 estimated that youth in their households spent, on average, 8.9 hours per week on the Internet. Last summer, in August 2006, the United States National Center for Missing & Exploited Children released a report on the 2005 Youth Internet Safety Survey, a survey of 1,500 representative national samples of youth Internet users aged 10 to 17 years. It found that, of the youth who were targeted for sexual solicitations and approaches on the Internet, 70% were girls and 30% were boys, and 81% of those targeted were 14 years old or older. Overall, 90% of the sexual solicitation on the Internet happened to teenagers. They found none involving 10-year-olds, and 3% involved 11-year-olds.
So clearly efforts that serve to strengthen our responses to this type of sexual exploitation will better protect youth. Bill C-277's proposal to increase the maximum penalty on indictment for this offence will do this. As well, Bill C-22, which is now before this committee and which proposes to increase the age of consent to sexual activity from 14 to 16 years, will also better protect youth against Internet luring, specifically 14- and 15-year-olds, who the recent research shows are most at risk for this type of exploitation.
With that, I'll end my introductory remarks. I would be pleased to answer any questions the committee may have for me.
12:05 p.m.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I have two very quick questions, Mr. Chairman, and Mr. Bagnell will probably want to take the rest of my time.
The first one is on this particular offence. Although this may not relate to the penalty provisions, if you had two 16-years-olds attempting to seduce one another on the Internet, I take it to be the case that those actions would be criminalized by this provision. You can say yes or no to that.
Secondly, do the same type of criminal prohibitions exist for this type of communicating or attempt at seduction, or however one would phrase it, by other means? By word of mouth? By telephone? By fax machine? Maybe it's tough to figure out where the phone becomes a computer these days because telephones can receive and send pictures.
Could you clarify both of those questions for me?
And, then, Mr. Chairman, to the extent that there's more time, Mr. Bagnell could take my time. Thank you.
12:10 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Anyone who commits the luring offence could be charged. If it's a young offender, and they meet the specified circumstances of the offence, they could be charged. In fact, the research I referred to from the United States showed that of the youth who were targeted through sexual solicitation, one in four were targeted by peers--contemporaries, those of the same age. It's a possibility. I'm not aware of a case that's been reported in which a young person has been charged in Canada.
On the second point, you're correct: section 172.1 applies to the use of a computer system for the purpose of communicating with a child for that purpose, but that computer system has a definition in the Criminal Code, and it would not include a telephone. The substantive offence of section 152, for example, an invitation to sexual touching, would apply in a situation where a person invites another person to engage in prohibited sexual conduct. A case could be made using that in the old-fashioned way, as in the way offenders, before there were new technologies, used to lure a young person into their home or away from their parents' control for those purposes.
12:10 p.m.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
For the sake of symmetry, what's the penalty provision attached to invitation to sexual touching?
12:10 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
The maximum on a summary conviction is 18 months. It was increased last year by former Bill C-2. On indictment, it's 10 years, and there's a mandatory minimum penalty.
12:10 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Mr. Lee and Mr. Comartin mentioned the effect of Bill C-9. Now that we've drastically changed it, in your opinion, would this crime be caught by the new Bill C-9?
My last question is on this ability to lock up people who are always going to offend. Having reoffenders with no chance of being cured is obviously a frustration. Can you explain how the system works for people like Clifford Olson? What are the options for keeping someone in jail past their sentence, other than what is in this particular bill?
12:10 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
On the first question about the impact of Bill C-9--conditional sentencing reform as passed by the House on this offence--it was noted in the question to the previous witness that under Bill C-9 now...Bill C-277 would increase the maximum on indictment to ten years if passed. It would then be possible to make the argument that a conditional sentence should not be available in a luring charge if the court were persuaded that the facts of the case before them met the threshold definition of a serious personal injury offence, which is defined in section 752 of the Criminal Code. Under the circumstances, the facts of the case would have to show beyond a reasonable doubt that it met that threshold. As was indicated, based on the types of cases we've seen that have proceeded under the Internet luring offence to this point in time, and as reported, and given the facts and the considerations that the courts have looked at, our view is that it would be difficult to see that kind of threshold being met in these cases.
That said, I would like to take a moment to explain how the courts have dealt with the luring offence in terms of conditional sentences to this point. Of particular importance is the Ontario Court of Appeal's 2005 decision on the Folino case, which is a case that gets cited in many other cases right now as setting the bar. When is a conditional sentence appropriate in a child luring offence? In that case, the Court of Appeal held very clearly that in most cases involving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration. Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving this type of offence. It's been cited by other courts. Of 19 reported cases that I reread to prepare for today, there were only two that resulted in a conditional sentence. One was the case I just described--the Folino case.
More recently, the Ontario Court of Appeal, in the Jarvis case from August 2006, reiterated its point about the importance of deterrence and denunciation in these cases and, moreover, went on to say that the conduct prohibited by section 172.1 is serious, as is the secondary offence. If the person took the next step and committed one of the enumerated sexual offences, the court said, then for one of those offences now--in this case it was the invitation to sexual touching--you couldn't have a conditional sentence because of the presence of a mandatory minimum penalty as a result of Bill C-2 from the former Parliament.
Based on our review of the case law to this point in time, and as it's been reported, conditional sentences are—as I say, two cases out of nineteen—very exceptional and very much a reflection of the facts and circumstances in those cases.