Justice Committee on Jan. 31st, 2011

[The Chair, Conservative, Ed Fast]

Thank you.

We'll now go on to Mr. Dechert for seven minutes.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Ladies and gentlemen, thank you very much for being here today and sharing your very important testimony with us on this critical legislation that we're studying. The expertise you bring is I think very significant. In my tenure with this committee, I think what I've heard today is one of the most insightful, varied, and expert testimonies I've heard on any of the legislation we've been recently studying, so I really want to thank you for that.

I'd like to start with Ms. Campbell.

First of all, I would like to thank you for sharing your brave story with us today. I know that it must be very difficult for you to be here. I think I can say on behalf of everyone here that we have greatest sympathy for what you've gone through in your life and we hope that no other children have to suffer the way you did.

I want to thank you for the organization you've created to assist other child sex abuse victims. I know that you and your colleagues there are doing great work to protect children in Canada and elsewhere around the world. I just can't thank you enough for that.

[Ellen Campbell]

Thank you.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I'd like to ask you, through your experience working with sexually abused children, do you believe the passage of Bill C-54 would help to protect children? Secondly, could you give us perhaps some examples--obviously without names of cases that you know about--where you could tell us whether you think children who were abused would have been prevented from being abused had these provisions been in place previously?

[Ellen Campbell]

Okay. One of the things that I guess I should really clarify, too, is that a lot of the work we do is with the adult survivors. We do work with Children's Aid and a lot of agencies that work with children, and I guess one of the things I neglected to say is one of the things I think is really important: we're talking about prevention here, which is critical, but the other really important piece is the value for the victims themselves.

A good example is Martin Kruze. I don't know, but I think most of you would remember that Martin Kruze came forward at Maple Leaf Gardens. He was the first one to come forward to say that he had been sexually abused there. He was one of over a hundred men who came forward, who we are still helping; they are still coming forward 13 years later.

Martin's perpetrator, Gordon Stuckless, got two years less a day, if you recall, and Martin committed suicide. He said: “Is that all my life is worth? Two years less a day?”

So what I'm also imploring this committee to do is to think of the message you're giving to the victims, and that's a lot of who we see as the victims, the children themselves. Can I give you a specific case that I'm working on personally? No. We don't do front-line work, but the agencies we work with could absolutely give you case after case, I'm sure. I see the damage that's done with the adults. I hope.... I can't be more specific.

But the other part that I guess I've neglected to say--and to your question--is about when these people get out. I know it's not part of we're talking about today, but we need electronic monitoring then, because.... Your concern is about them getting out afterward. We need to control them afterwards, because they do reoffend. If we let them out with conditional sentencing, you can put conditions on them, but we know statistically that they reoffend.

So for us, that's why, I guess, minimum sentencing first of all gives a strong message, but secondly gives a strong message to the victims that their lives are worth something. I hope this answers that for you.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you very much. I appreciate that answer.

I'd like to ask Mr. Rushfeldt a question.

Mr. Rushfeldt, as you probably know, this government is frequently criticized by the opposition and other people on the basis that mandatory minimum penalties we provide in various pieces of criminal justice legislation increase the cost of prisons and incarcerating people in Canada. What is your view on the increased costs of incarcerating offenders resulting from mandatory minimum penalties as proposed in this Bill C-54?

[Brian Rushfeldt]

I've not done any work on the amounts, per se, but I have looked at some things and read some things. Social science research is not always provable, but clearly I think it was mentioned how much the crime costs the public purse in a sense through health care, counselling, lost production, suicides. I think if we could do a balance on that, sort of a cost-benefit analysis, if you will, we'd find that the cost of actually incarcerating some of these folks for a longer period would not outweigh what it's costing society by not keeping them in and their reoffending.

And of course it was raised, and I think this is a good point, that incarcerating them for a long enough period of time to hopefully get some help, hopefully re-establish themselves is a problem—and I know Mr. Ménard raised the issue that then they're potentially out of the workforce, etc. On the other hand, if we don't have them incarcerated long enough to try to do something with them, then they are back out and potentially—and I think a lot of the stats do say—many of them reoffend. There is a huge cost to the public in those offences because of what it does to the victims or the survivors.

So I don't know that we could put a dollar figure on it, but I—

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I'm not asking you to say how much it would cost, but assuming there is an increased cost, what do you think of the value of that? Do you think it's money worth spending?

[Brian Rushfeldt]

I think it's very worth spending, because when I talk to a number of victims, especially the Internet pornography victims, I hear that the crime doesn't stop when the guy is caught. Those images, as we just heard, are out there circulating for years. In fact there are some quotes in this report from the ombudsman in Canada: 19-year-olds who were victims at six saying they're still victims because they can't walk down the street without thinking, “Did this man see my pictures?” Because they're still out on the Internet.

I think it's money well spent. If we can prevent one more child from being abused, we have made that investment worth while.

[The Chair, Conservative, Ed Fast]

Now we'll move to Mr. Lee for five minutes.

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

Thank you.

I wanted to ask Inspector Naylor about the means. Well, I know that you will have good experience in the means that are used to investigate, charge, try, and convict individuals who are either persistent offenders or who are—how do I describe it?—people who are just users, conveyors, traffickers of child pornography. And there have been many successes over the past few years. I read the newspapers. But have you had a chance to take a close look at proposed section 172.2 of the bill? That's the section that looks like a framework for investigation. I'll just use the word “entrapment”, because, as I read it, it's possible. Do you recall that section?

[Det Insp Scott Naylor]

No, I don't.

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

Okay. I don't want to put you on the hot seat here on the technicalities of it, but it imposes a presumption about the age of the victim. It removes the defence where the accused would say that he or she didn't know the age of the victim. Then it says—and this is put in here for the police—it is not a defence to a charge under the above sections that “if the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer”...that the person referred to above didn't even exist.

This has to do with luring, communicating, making an arrangement with a young person. We all agree we want to stop that. We want to make it impossible for that to happen. But this seems to set up a scenario where there was no victim or potential victim, and there can be no defence about the knowledge of age of the non-existent victim. And there are pretty clear tools and immunity to police officers to go ahead and do something like that—in other words, to lie to somebody over the phone, lie to somebody over the Internet. Even if the person didn't exist, it's not a defence to the charge to say that there was no person.

Have you in your work ever used that type of mechanism, where there wasn't a victim, there wasn't a real criminal offence that took place at all—the setting up of an arrangement, nothing ever happens, talk on the phone?

[Det Insp Scott Naylor]

What I can tell you from an investigative perspective is that is an undercover technique that is used on a daily basis. There are online undercover police officers posing as fictitious eight-, nine-, ten-, eleven-year-old girls and boys on a daily basis, trying to trap and lure those like-minded individuals who are in certain areas trying to lure these children--whether it be an undercover police officer or a child on the outside--into committing sexual offences with them.

What I can tell you is that there is absolutely no question, no question whatsoever, that the person on the other end, the unknown person who is chatting with the undercover police officer, knows the age and sex of this individual.

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

You're clear beyond all doubt that no one could stumble into one of these scenarios?

[Det Insp Scott Naylor]

I'm 100% sure.

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

Okay, thank you.

Thank you, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Ménard, do you have another question? Do you want another round?

Monsieur Ménard, for five minutes.

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

I would like to know whether you fully understood the last part of the question I asked you regarding suspended sentences. Unfortunately, it is no longer called that. The Criminal Code talks about “parole”.

The term “suspended sentence” explained the idea so clearly. The judge could choose not to hand down the sentence authorized under the law and to impose conditions on the accused. In these types of cases, that could mean requiring the person to undergo treatment, allowing them to keep their job, placing restrictions on their movements and so forth.

Indeed, there are a whole slew of conditions that may be effective in discouraging the individual from continuing to take part in the desired activity. If the person fails to respect those conditions, they are brought back before the judge, who can then impose the sentence that was initially suspended and explain what that decision means.

With this kind of offence, do you not agree that some cases are more serious than others, that some people are more active than others? In the least serious cases, this may actually be a better approach than imposing lengthy prison terms, since, as you say, the sentence has to be long in order to undergo treatment.

[Catherine Dawson]

May I respond?

I would suggest, although I don't have the facts, that the over 100 children who were rescued in Ontario were rescued from their homes. That's where the production would have occurred. They were sexually assaulted by people who were not strangers, who were uncles, babysitters--predominantly males, but there have been some female offenders of late. So this offence, this hurt, occurred in the home. This would be the home that the person on a conditional sentence may return to or may not return to as one of their conditions, and that has already caused chaos.

One of the things you do with a sentence is you remove the offender from the victim's home, where the offender and the victim were together. I think, if nothing else, for a sexual offence that's a minimum we can expect.

I don't know.... I'm sorry, I would not share the opinion on where there is some small offence and some large offence, and the reason I don't share that opinion is that my research indicates that viewing child pornography or any pornography is addictive. It's daytime, nighttime. It's so incredibly addictive that offenders are into it very quickly. Then they're spending most of their nights on the Internet and that sort of thing. So really, if there is a process of getting them early so that you can cut that addictive behaviour or redirect it, I would say that would be a positive outcome.

But I believe removing the offender from the victim's home is absolutely crucial.

[Brian Rushfeldt]

Mr. Chair, may I respond?

[The Chair, Conservative, Ed Fast]

Yes, you may.

[Brian Rushfeldt]

One of the concerns I think you're raising is part of why we recommended different levels of sentencing, whether it be for possession, distribution, or making, because there is some differentiation in what the guy or woman actually did. We recognize that in some cases a guy might be caught with 100 images, although I think the majority of guys that get caught have thousands, if not millions, of images. Our recommendation takes this into account.

You also asked about the deterrents. I don't know that we consider the mandatory sentencing issue from the perspective of deterrence. I'm not sure it does deter. I have no evidence to say whether it does or doesn't. You mentioned that some say it doesn't. I don't think it's a matter of deterrence as much as protection of the innocent. That has to be our prime consideration. We have an obligation, as a society, to protect those who can't protect themselves. Clearly, every child who is abused is totally defenceless, whether the perpetrator is an uncle, an aunt, or a stranger.

I agree that judges should have some latitude, but I think the latitude has to have a baseline. In fact, we have a case in Winnipeg, Manitoba, where the guy was sentenced to 30 months in jail by the first judge. He appealed, saying the sentence was much harsher than that imposed on most other people for committing his crime. He won the appeal and it was reduced to 18 months. This was based on a precedent. The precedent has been set that it shouldn't be this harsh. So I think we have to be careful on that front too. If we have a standard, it has to be met.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

And my thanks to all of the witnesses here today. The members of Parliament are here on an almost daily basis, and it's easy for us, but I much appreciate the effort and the care with which you've delivered your submissions today.

I want to urge you to keep making your voices heard. Time and again, we hear witnesses come to us with a totally different message. The message we often hear from witnesses is that crime rates are going down, so why do we have to do anything about crime? Your evidence today establishes that the government accurately perceives a need and that targeted and balanced improvements to our criminal justice system are necessary.

Mr. Rushfeldt mentioned appeal courts, and I want to quote from something that the Alberta Court of Appeal was reported to have said sometime in December. They said the vast sentencing discretion currently enjoyed by trial judges “makes the search for just sanctions at best a lottery, and at worst, a myth”. They also said that the present system “inevitably causes prosecutors and defence lawyers to 'judge shop' for jurists they hope will impose the sort of sentence they are seeking”.

So it's those kinds of challenges that the government is trying to meet when we deal with mandatory minimum sentences.

Ms. Campbell, does your organization have any members from the province of Quebec?