Justice Committee on Jan. 31st, 2011

[Brian Rushfeldt]

Perhaps I can answer.

First, I apologize for not having our document for you in French. I was out of the country when I got the call to appear and just got in late Saturday morning. So I presented it, and I apologize for not having it available today.

Right now the Criminal Code talks about child pornography as being under the age of 18. I'm sure the detective will have a comment about this. We've talked to a number of police forces that simply say that trying to handle all the cases of those under the age of 18 is problematic because there are too many. Sometimes you can't tell if someone is 16 years old. Are they 18, 19, or 16? But certainly prepubescent children are recognizable to investigators. I think our country and other countries will benefit if we at least make sure we are protecting any prepubescent child. Of course that might eliminate some of the older children we wouldn't protect, so I'm torn about that. But if there is a question legally about whether they are of age, of course that puts the courts in a tough spot.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

That is also the most horrifying aspect of child pornography and usually the most upsetting in the public's eyes. When children reach puberty, especially young girls, they often want to become adults. It is considered more normal when someone is attracted to a young girl with the physical attributes of a woman than when they are aroused by a prepubescent child, as you said.

[Brian Rushfeldt]

I would agree with you partially on that, I think. However, from a lot of the people we've talked with, clearly there is a decrease in the age of children pedophiles are going after. In fact, we're seeing huge increases in very young children. I think somebody mentioned that even babies are on the Internet and are the prized collection of some of these people.

It's always questionable. But I think part of it is putting the onus back on the perpetrator. If the perpetrator says, “Oh, well, I believed that she was 14” or “I believed he was 15”, that's not a good enough defence. I think there is a defence already in the Criminal Code that's fairly good on that. Maybe that's an area that even needs to be looked at again so that we simply cannot allow that kind of argued defence by any perpetrator.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

You all seem to be quite convinced that minimum sentencing plays an important role in deterring individuals with pedophilic tendencies from acting on those tendencies.

You mentioned comparisons between Canada and other countries. The Department of Justice conducted a study showing that none of those countries saw any effect on crime, in general, when minimum sentences were imposed. I saw the study, but I do not recall whether it even mentioned sex crimes.

Do you have any documentation or meaningful research to show that minimum sentences are indeed effective? I always come back to one question: Once the individual has served their minimum sentence, what happens to them when they are released from prison, with no job or prospects?

With conditional sentencing, as my colleague mentioned, the judge does not impose the sentence he could. However, he informs the accused of the sentence he is allowed to hand down. The judge imposes conditions, and in less serious cases, he can impose conditions that ensure that the individual will be able to reintegrate into society, while continuing to hold a job and taking care of his family.

By taking away someone's job for a year or a year and a half, you completely disrupt their life, and it seems to me that the person would then be more likely to cling to their vice rather than pursue something else.

With suspended sentencing, the judge states that if the individual does not respect the conditions imposed, they will have to return to court, where the judge can then hand down the stiff sentence authorized under the law.

We have seen over time that this has been an effective way of dealing with many other crimes. Do you not think this could also be an effective way of dealing with offenders who are not yet very involved in pornographic activities?

[The Chair, Conservative, Ed Fast]

Unfortunately, we're already over time for that set of questions. Maybe in the second round you can come back to that.

I'll go to Mr. Comartin, for seven minutes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

And thank you, witnesses, for being here.

Mr. Rushfeldt, if I could start with you, on this concept of trying to change the terminology, you mentioned that there were some draft proposals on that. Has any jurisdiction adopted that as their main thrust in terms of dealing with this type of material?

[Brian Rushfeldt]

There is a segment of Australia that has actually passed that legislation. I'll just see if I have that here. If not, I definitely will get my assistant, Nathan Cooper, who is sitting in the back corner, to....

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Is this one of the states of Australia?

[Brian Rushfeldt]

Yes, it is one of the states of Australia that has done that. There was certainly mention of that in the document from Europe, as well.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Do you know if there are any countries in Europe that have adopted it?

[Brian Rushfeldt]

I'm not sure that Europe has gone to that. I'm not aware of anything specific at this time.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

With regard to the state in Australia that's adopted it, have you seen any studies on whether it's been effective? And I mean that from two vantage points. One, has it been challenged in the courts? In addition to that, if it hasn't been, has it been effective, as opposed to the type of terminology we've used around child porn?

[Brian Rushfeldt]

I can't answer that. I haven't seen data. I'm not sure when that was changed. I think it was fairly recently, so there may not be data on that yet.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Okay.

In terms of this type of approach, have you had any discussions with the Department of Justice on taking that approach, rather than the terminology they've used in Bill C-54?

[Brian Rushfeldt]

We did present a brief to the Department of Justice over a year ago, which included that as one of the suggestions on the terminology.

In that report that came out, Every Image, Every Child, which was from the ombudsman, that was his number one recommendation. We've talked to a number of law enforcement people on that as well, and felt that the changing of the terminology sets a tone. The terminology of “pornography”, which we generally accept in Canadian society, North American society, and probably around the world, sets the tone. People tend to think, because the term “pornography” is in it, that it's not that bad. I've talked to people, well-meaning people, in some of my meetings across Canada, who said “Pornography is legal, isn't it?” I look at them, probably with a blank look on my face to the first few people who raise that, thinking, “How did you not know?”

I think that's what we're up against. The law really sets a tone for how Canadians view certain things. And that term “pornography” I think really does an injustice to the victims as well. Clearly, it won't change the Criminal Code per se, and the definition and the sentencing, and all those things, but it changes how we as a society look upon that kind of act against defenceless children. I think that's important.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

The essential difference is the focus on the abusive nature of the conduct, whether it's in material or in the actual physical conduct. That's the concept behind it, as opposed to the allure that pornography has in our society more generally.

[Brian Rushfeldt]

I think that's it, yes. It takes it back to what really happens in the crime, not somebody's perception of something else. But this is what's going on in the crime.

I think if we did that, and certainly if you folks as lawmakers did that, the Canadian public would say “Good, we now see that something is being done to really deal with this horrendous crime in a positive way”. I think Canadians are really looking for that.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

This would be along the same lines as when we moved away from the use of the sexual term “rape”, as it was seen as a sexual term, to creating sexual offences, assault, and treating them all as sexual assaults. It's the same kind of concept, right?

[Brian Rushfeldt]

I think it is. I think to some degree it is, although I know sometimes these pedophiles, who do commit a sexual crime against a child, get charged with a sexual offence, which is good. Because if they were just charged with a pornography offence right now, the sentences would be meaningless. That whole section would be meaningless in some ways. So I think the fact that we can bring the pornography section to a higher or better level—I'm not sure what terminology—would be helpful.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

To Inspector Naylor, like Mr. Murphy, I think it was about six years ago that the justice committee worked on legislation. I think there were representatives both from the RCMP and the OPP. The vast majority of this material and the victims of this material—that is, not the way it's used, but the children who are abused in the material—tend to be from outside the country. In fact, I think the RCMP officer said at that time that in the previous year they had only one case they were able to identify in Canada where the material had been produced in Canada. Since then—and I think part of it is because of that legislation we passed, and quite frankly the kind of work that you're doing, the OPP, and other police forces are doing to be more active in this area—there's been on average, in my assessment, four or five cases a year now that I'm seeing.

I've recited those facts. I'm just wondering if you can give me a sense: am I accurate on that? Our sense was that about 50% of it was coming from the United States, was being produced in the United States, and somewhere around 35% to 40% of it was being produced mostly in the old Iron Curtain countries--central and eastern Europe—all the way into Asia, with the Russian mafia playing a fairly significant role. Those seem to be the numbers, with a small smattering here in Canada, and then miscellaneous around the world. Is that basically still the situation?

[Det Insp Scott Naylor]

No, I'd have to disagree with that. With the advent of the Internet, and with social networking and portable devices that are out there now, the making of child pornography in Canada is on the increase, hugely on the increase.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

In terms of the responsibilities we have in terms of protecting our own children to start with, I'm just trying to get a sense of how many of the victims of this material are here resident in Canada versus elsewhere. That's not to say we aren't to do things to protect those children elsewhere, but I just wanted to get that feeling for how many are here and how many are elsewhere.

[Det Insp Scott Naylor]

I've heard some statistics from my friend here. Just in the provincial strategy alone in Ontario, in the last year and a half we've rescued 121 child victims. That would be 121 child victims of child pornography--of being a victim of having child pornography made of them.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

All in Ontario?

[Det Insp Scott Naylor]

All in Ontario.