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.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Typically, but it would depend on the nature of the offence and at what point in the process they were caught.
Sometimes you'll find that in these types of cases, the accused will ask for pictures. When they go and check, they'll find child pornography, so child pornography charges are common. Some of the sexual assault contact offences may be found as well.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Then they will end up with a mandatory minimum for being in possession of child pornography, right?
Senior Counsel, Criminal Law Policy Section, Department of Justice
That is post the enactment of Bill C-2.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Coming to the significant concern I have on this section, and we've already addressed it, is there any way we can reserve conditional sentences where appropriate, within the amendment that's being presented?
Senior Counsel, Criminal Law Policy Section, Department of Justice
I'm not sure if I'm in a position to comment on that type of amendment. As I've already indicated, it is fair to say that on our assessment of how a serious personal injury offence might be interpreted, it would be difficult to imagine this.
But if you look at what I've described concerning how the courts already deal with these cases, conditional sentences are exceptional. In the two situations where CSOs were granted, the court did so as an exception rather than as a matter of routine process or practice.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Police always have trouble hearing a court of appeal say that it's going to be only in the rarest cases, but this is the one we have in front of us. The message that goes down to the lower court is that it can be used, and rarity becomes more the norm than the exception.
Senior Counsel, Criminal Law Policy Section, Department of Justice
In that case, the mitigating factors and aggravating circumstances were quite significant. The accused had been in pre-sentence custody, suffered a number of assaults, and was expecting that this would happen again with the period of imprisonment. The accused was engaged in a period of outside treatment and from the very beginning—there was no prior criminal record—took responsibility for his actions. In that case, the court provided a fairly good listing of the factors to be considered.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I just want to pursue your saying you don't see a way out. I'm looking at a sort of notwithstanding clause--notwithstanding 1(a), conditional sentences could still be used in the appropriate circumstances.
Senior Counsel, Criminal Law Policy Section, Department of Justice
I think I'm in a difficult position in terms of trying to comment on that in the case of Bill C-9. It may be an issue, for example, that gets considered in the other place, in its review of Bill C-9.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
Thank you.
Good afternoon, Ms. Morency.
I would now like to indirectly thank Mr. Fast, the sponsor of this excellent bill, which I hope will receive everyone's support.
I have a technical question for you. The objective of the amendment is to increase the length of sentences. It also addresses communication carried out with a criminal intent. But the Crown must first prove that there is criminal intent. If so, an indictment will obviously follow, as the case may be.
I was wondering whether you are familiar with computers. I suppose so. I have four children who are all over 18. We had a dozen computers at home. Let me assure you that these machines were on day and night. When people chat online, they can do so in small, confidential chat rooms where they can play sex games.
In the example I'm giving you, there is no contact. Section 151 of the Criminal Code refers to direct or indirect contact with the body of an individual or with an inanimate object. However, you are talking about communication with criminal intent.
Let me give you an example. In Quebec City, a journalist had 1,000 pictures of young men and boys on his computer. This man was a pedophile. But when we talk about increasing sentences to 10 years, does that take into account the fact that a computer is the extension of an individual? People go on to these chat rooms for sexual contact, and communicate with a criminal intent. Are those cases covered? I was wondering about that when I read section 151.
Senior Counsel, Criminal Law Policy Section, Department of Justice
If I may, I will respond in English.
The offence of luring requires the Crown to prove beyond a reasonable doubt that the accused communicated for the purpose of committing one of the enumerated offences. The example you give involves offences under section 151, which specifies that there be touching. Typically, in these luring cases, charges relate to section 152, which is an invitation to sexual touching, so the accused, through their communications, typically asks the young person to answer some very sexually explicit questions, to touch themselves, etc., and that type of thing. The offence is committed--looking at the luring offence right now--even if there's no touching, because the communication is “for the purpose of”. That's where the criminal intent is.
When you have situations of pop-ups or things like that, again the question would be whether there is intent when an accused is turning off or trying to get out of these things that come up on the Internet. If they involve, for example, child pornography, accessing child pornography is an offence, but the Crown would still have to prove that the accused intended to access that. So if it's a pop-up and they're trying to get out, it's a different situation. But when you look at the cases that have been reported, it's clear that the communications form the basis for these charges. They are typically back and forth, and it is fairly explicit that the accused is describing exactly what he wants to do to the young person, and vice versa, and then often there is a rendezvous to meet. The criminal intent is in the communications for the purpose of, and it's typically relating to the section 152 charge. There is one case that involved the child abduction offence, in which the child was actually abducted as a result.
Conservative
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
That generally answers my question. But I want to make sure that I understood. In my area, it turns out that a man had over 1,000 pictures of young boys on his computer. This man had also been in chat rooms with other people, but these people were not necessarily the boys whose pictures he had. That's why I was wondering if you were familiar with computers.
I know what I'm talking about because I had to look into the matter at a certain point. In this case, I am not referring to regular chats where anyone can come online, I'm talking about private chat rooms. Generally speaking, people who are online don't know they are there. For instance, as an adult, I can enter a private chat room, proposition someone, talk about intimate things and undertake a sexual relationship online with a 12-year-old child. What exactly does communication with a criminal intent mean? Do you understand what I'm getting at?
Senior Counsel, Criminal Law Policy Section, Department of Justice
I think you are referring to chat rooms. Indeed, the type of communication referred to in rulings concerning the luring of children often involve chat room discussions.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
Please feel free to speak in English if that's easier for you. Are you sure that those cases are covered.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you very much for the information you're providing the committee.
I'd like to start off by asking you if you can give us the information that you have on the 19 reported cases, whether it's the actual reference where we can go to get it, or if you already have it in print type, whether you can get it to the committee members through the chair. Thank you.
I want to come back to section 152 of the Criminal Code, which is on invitation to sexual touching. My understanding, from what you've told us, is that prior to the sexual luring via the Internet provision--because that's what it intended to capture--which came into force in 2002, those cases would have been tried under section 152. Is that correct?
Senior Counsel, Criminal Law Policy Section, Department of Justice
Yes, or the abduction provision or one of the others.
February 5th, 2007 / 12:30 p.m.
Liberal
Senior Counsel, Criminal Law Policy Section, Department of Justice
They were having to try to show that it was an attempt to commit one of those offences.
