Justice Committee on Feb. 2nd, 2011

[Carole Morency]

My understanding is it has not succeeded. There have been some cases, early on, after the enactment of the child pornography offence, and it has not succeeded. I'm not aware of a case under the voyeurism offence where there's been an issue with that. So in the context of Bill C-54's proposal, there is every reason to believe that a court interpreting the new offence would be very much directed and guided by the Supreme Court's decision in Sharpe and other case law under the voyeurism offence.

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

That's all, Mr. Chair. Thank you.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Comartin.

We'll move now to Mr. Norlock for five minutes.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you.

Derek, with all due respect, the digital devices.... Once again, I know we have lawyers here, and I'm not a lawyer, but I have sat for many hours watching many different cases, from sexual assaults to minor thefts, and I know about interpretation. But I recall, time and time again....

My question to Ms. Morency would be pursuant to her experience with regard to jurisprudence when it comes to interpretation and the actual judge looking at the law, or the appeal court, even better still, looking at the law, because I think.... My fear is that if we go down Mr. Lee's path, we become overly proscriptive, and by virtue of that, I think the courts would realize that a heart monitor, a pacemaker, a hearing aid cannot or would not be used in the transmission of sexually explicit pictures or sounds.

So I really get concerned about that. Honestly, I really don't mean to be insulting or anything else. I'm just so worried that we get into the minutiae, we lose sight of things. And I think courts have already looked at these issues. You mentioned voyeurism and some of the case law surrounding it. So I wonder if you could comment on being overly proscriptive vis-à-vis the effectiveness of the law. What is your experience or the case law that you've viewed with regard to judges being able to interpret or if a policeman became overzealous and laid a charge against someone who was on probation or who was on recognizance for being engaged in child pornography and he happened to have a hearing aid, so the court is going to zap his hearing aid?

That's number one. Could you comment on that? You might take a few moments for that.

[Carole Morency]

My short answer is I would agree with the premise of the question that the hearing aid wouldn't be transmitting, communicating, providing access to the World Wide Web or other.... I suppose there are some medical devices like a heart halter that might be transmitting data to a recipient computer, but it's not providing access to the Internet or other digital networks in the sense that it would provide the offender with the ability to access or communicate with a child or access illicit material such as child pornography. But I certainly appreciate the concerns expressed here. I will undertake to go back and see if I can provide a more fulsome answer that would allay the concerns you had identified.

As to the other part of your question, my understanding from reading a lot of case law is I have not seen a sentencing court express concern on how to identify what they want to prohibit a convicted person from accessing. Typically what they do, the way it's reflected in judgments, is a sentencing report is provided to the court and submissions are made by the crown and the defence to provide or restrict access to whatever devices or under what terms of supervision. The intention with Bill C-54 was to leave that flexibility in the hands of the court to craft an appropriate sentence to address the concerns in that case.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you. Those are all my questions.

[The Chair, Conservative, Ed Fast]

All right.

Ms. Morency, I'll just ask you to deliver a more fulsome report to us, to the clerk, and she'll distribute it to the members of the committee.

We'll move on to Mr. Murphy for five minutes.

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

I have one specific and one general question.

The specific one is this. We had evidence from witnesses the other day, and I was struck by a comment but didn't know how to process it, that in Florida there's a 25-year minimum sentence for a child molestation conviction. The minister said you know everything, Ms. Morency; I wonder whether you could comment on the world view of the severity of offences in this realm.

My second question is more general. The minister didn't bite on Mr. Rushfeldt's comments and my question regarding changing the definition, but if you look at the code, and we all say the code needs a good look-at now and then, between sections 150 and 182—these are the sections on “Sexual Offences, Public Morals and Disorderly Conduct”—the way I'd read it, in terms of condemnation, is in descending order of severity or annoyance to the public.

It's interesting that when I say “sexual offences”—and this bill is actually titled in part “sexual offences against children”—you would expect it to be under that first term of the code section, but it's actually under the public morals section.

For instance, if we all think about the realm of offences, between section 150 and section 162 you have “Sexual Interference”, “Invitation to Sexual Touching”, “Sexual Exploitation”, “Incest”, “Bestiality”, “Voyeurism”, and then we're on to section 163, which is “Offences Tending to Corrupt Public Morals”, which starts with obscene materials—comic books and all that sort of thing—and then goes on to child pornography.

I think my answer is that this has evolved, and that child pornography wasn't as condemned by the community when the code was written and amended as it is now. It strikes me that if there's any order to the code—not for today, perhaps—in ordering the severity of offences and putting them in the right section.... There are some people who want to move offences against animals, as sentient beings, from the property section to other sections of the code.

So in the modern Criminal Code that we may get some day, should these sections—pornography, and especially this part of the child pornography section—be moved higher up in our order of condemned offences?

[Carole Morency]

In terms of your first question, the minister was very generous in his remarks. I really don't know everything.

I do know and can tell you that when you do look at the mandatory minimum penalties that may be imposed for different offences in other countries, you will see differences. In the United States, it's not a secret that there are definitely higher mandatory minimum penalties and higher maximum penalties for many offences.

Let's take one offence—child pornography, for example, because I believe the comments by the witness were to do with that. If we look at the United Kingdom's approach to child pornography, their maximum penalty generally is ten years, with no mandatory minimum penalty. In France you have a range of maximum penalties as well, but no minimum penalties. In Australia, you have a range of penalties as well. Ten years is the common mark for many of them, but there are no minimum penalties. If you look at the United States, at the federal level, where they can deal with interstate criminal law powers, it's true that they have some offences that provide for—for example, in pornography using the mails—a mandatory minimum penalty of five years and a maximum of twenty years.

So there is a different approach for all the countries. The approach that you see reflected in the bill, as the minister has said, reflects the Canadian context and the intention to bring some consistency across the board to all of the offences in which a child is a victim.

I believe the second part was really more of a commentary, rather than asking me to comment on a reordering of the code.

Was there a question that you...?

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

Do you agree with me?

[Carole Morency]

Well, I think there's no question that the Criminal Code has not had a consolidated reform in quite a number of years, and as you amend it, you do lose some of the coherence between sections.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Lemay, you have five minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chairman.

I have a couple of questions. I find it really hard to understand the bill. The more we are talking here, the more confused I become. There is the matter of Internet pornography, which is to be addressed under section 171. This is not really clear to me and I have trouble understanding, but I would like to see some figures.

Can you send us the figures, covering the time between 2005 and now, regarding the number of mandatory minimum sentences imposed for offences which, in your opinion, would receive longer minimum sentences today?

[Carole Morency]

I don't believe I have the figures in the sense that you mean. I have not seen the presentation that my colleagues at Canadian Centre for Justice Statistics will provide. I'm hoping they will provide the data that shows the baseline that I've referred to.

I'm certainly able to provide you with those high-level numbers that I mentioned in my earlier response, but I suspect that the fuller presentation will provide you with greater detail. Perhaps I could undertake to provide you, if I can, with information that still remains outstanding after that. I'd be happy to provide that; it's just that they have the access to the data.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Regarding the purpose of the new section 171.1 and the provisions which follow regarding activities carried out on the Internet, I have no trouble understanding that the government does not want to punish people who surf the Web—that is, people who visit a site like www.pornographie.org—but to punish those who use, transmit, produce and upload onto the Internet pornographic content. This is how I interpret the new section 171 in the Criminal Code.

Is that a clear reading? The point is not to punish people who surf the Web, but people who use the Web to distribute, transmit, deliver, and so on, content. Is that correct?

[Carole Morency]

In fact it's even more fundamental. The offence that's proposed in clause 13 of Bill C-54--it may occur through the Internet, but it does not have to. The intention here is to....

First of all, you'll see that the definition of sexually explicit material excludes child pornography. So we're not talking about someone providing child pornography to a young person. What this offence addresses is any person who takes sexually explicit material and provides it to a young person for the specific purpose of facilitating their commission of a sexual offence against that child.

How can that happen? It could happen, as you mentioned, that an offender is on the Internet and sends such an image to a young person. It could easily, and very often, happen in an in-person direct contact situation--the old-fashioned way, right? We know from research, and forensic psychiatrists who've appeared before this committee before have said, that child sex offenders often use these materials to lower the inhibitions of young people, to show them that this conduct occurs, that other kids may be doing it, or in this case other adults are doing it, to normalize it, to make it easier for them to then sexually assault the child.

So the proposed new offence in clause 13 addresses that conduct, whether it happens in person or through the Internet or other means.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Does this type of provision already exist in other countries? Would the enforcement of these provisions be something completely new throughout the world, or does this already exist? If so, can you tell us what effect it has had elsewhere?

[Carole Morency]

I can indicate to the committee that variations of this may exist in other countries. In the United States, at the federal law level they have an offence of using the mails to provide child pornography—for example, material to a young person. I believe there might be something similar or a variation of it in the United Kingdom's Sexual Offences Act.

But the approach taken here in Bill C-54 is unique in the sense that it reflects the Canadian law, with similar concepts and similar approaches. As the committee heard on Monday from Inspector Naylor, it's an issue that police have long spoken about that they would find very useful as another offence.

So we know it exists; we know that other countries have approached it perhaps somewhat in similar ways, but not exactly like this.

[The Chair, Conservative, Ed Fast]

All right; thank you.

We're going to go to Mr. Dechert.

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

Thank you, Mr. Chair.

Thank you, Ms. Morency and Mr. Villetorte, for being here today.

You have probably heard people talk about mandatory minimum sentences and how they would add to the cost of our prison system and our correctional services system. Of course, that's a policy issue that we as MPs are dealing with.

You may have heard that when we last met the committee heard from Mr. Brian Rushfeldt of the Canada Family Action organization. I asked him what he thought of the increased cost of incarcerating people as a result of these mandatory minimum penalties in this bill and how he would react to them. He said:

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

I'm not going to ask you to comment on that, because that's a policy issue, and those of us who are elected here are the ones who should be dealing with those kinds of policy issues. All of my colleagues on the government side believe this is money well spent.

Here is the question I wanted to ask you. You mentioned something earlier about U.S. mandatory minimum penalties that are comparable to the offences we are talking about here. I wonder whether you could tell us what you know about those U.S. mandatory minimum penalties and how they compare to the penalties we're proposing in this legislation.

[Carole Morency]

When we look at how our laws compare with those of others, I would suggest that the comparison needs to look at not just what the mandatory minimum is, but at the nature of the offence and what the maximum penalty is that's imposed in the other law as well, because the approach presented in Bill C-54 seeks to bring a consistency across the board for the offences that we have here in Canada.

As you asked, if you look at, for example, the United States, criminal law is a state power. If you look at the state law on child pornography or other forms of child sexual exploitation, you will find a range of penalties, both minimum and maximum, and a difference of approach. I'm not in a position to go through all of that at this time.

But as I mentioned before, at the federal level they have federal criminal laws that address child pornography offences. For example, there is a five-year minimum penalty and a maximum of twenty years for a first offence of distributing child pornography through the mails. It has to be through the mails to apply at the federal level, to catch the interstate commerce threshold. Then, there's a minimum penalty of 15 years and a maximum penalty of 40 years for a repeat offence of possessing or knowingly accessing child pornography that has been mailed, as an example.

But as I mentioned as well, if you look at other countries and their approaches, there is a range. Canada's, with the mandatory minimums proposed in Bill C-54, are as I say consistent with the mandatory minimum penalties that exist right now in the Criminal Code. One of the proposals, to add a five-year minimum penalty for the offences that carry a fourteen-year maximum penalty—for example, incest in section 155—would be comparable to the offence we have now in the Criminal Code in subsection 212(2.1), the aggravated prostitution of a young person using violence.

The approach Bill C-54 takes is to bring all of that together so that you have coherence.

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

In your view, are we being tougher on child sex predators with this bill than the average in North American or European jurisdictions, or are we in the same ballpark? Or are we being softer on these kinds of criminals?

[Carole Morency]

As I said, the reference is to the comparable child pornography in Australia, the United Kingdom, and France: no mandatory minimum penalties, but the maximum is around ten years, on average. That's close to what we have here, but in Canada you would have mandatory minimum penalties as well.

And then at the other end you would have differences in both minimums and maximums in the United States, and that's long-standing.

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

Thank you very much.

[The Chair, Conservative, Ed Fast]

Next we will go to the Liberals.

Do you have any further questions? No?

Okay, then we'll go to Monsieur Ménard.