Evidence of meeting #45 for Justice and Human Rights in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offences.
A recording is available from Parliament.
Conservative
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Thank you very much.
Perhaps I can make a suggestion which relates to the concerns raised by Mr. Lee, which I share. Indeed, after having listened to him, I understand very well, but perhaps if we added “and other electronic tools as described by the judge”, there would be precise instructions to follow. I imagine that when direction is given, it could refer to a certain number of things. It could refer to the Internet, it could refer to access to this or access to that, and so on, but you do not think of heart monitors or that type of instrument.
There is something else I want to ask right now. Several of the minimum sentence increases affect minimum sentences which were created in 2005, particularly as relates to sections 3, 4, 5, 9, 11 and 12 of Bill C-54. They were introduced for the first time in 2005 and came into effect on November 1, 2005.
To your knowledge, has the Department of Justice, or anyone else, ever undertaken a study to determine how the imposition of minimum sentences in 2005 affected outcomes?
Acting General Counsel, Criminal Law Policy Section, Department of Justice
I would like to respond in English.
I understand the committee will be receiving a presentation by colleagues at the Canadian Centre for Justice Statistics. They may be able to provide you with more specifics. In 2005, 11 new mandatory minimum penalties were enacted in child-specific offences. Based on data between 2005 and 2006-07, we looked at convictions, sentences imposed, the length of the sentences, and other forms of sentencing that may have been used since 2005. We also looked at the case law to see what changes may have been introduced by sentencing courts.
I can tell the committee that the sentencing courts have shifted their thinking. They appreciate that the objective of the 2005 amendments was to make denunciation and deterrence a primary sentencing consideration in cases involving violence against children.
In addition, we saw that the mandatory minimum penalties have begun to have an impact. In the offences prior to the MMPs, where we could have seen a conditional sentence imposed and afterwards no availability of a conditional sentence, we could see a decline in the percentage of cases where a conditional sentence wasn't imposed. We could see an increase, a slight increase, in custodial sentences, and we could see an increase in fines and other dispositions. It's a slight increase over that time.
When you look at specific offences, such as sexual assault, the general sexual assault defence, which, in the 2008 data, was charged in about 80% of cases involving child victims, there was no mandatory minimum penalty. So you don't have that equal treatment.
Acting General Counsel, Criminal Law Policy Section, Department of Justice
This became apparent when we looked at the case law.
When we looked at the length of the sentence imposed, we saw that there were more sentences coming in at the low end of the spectrum. In other words, they were closer to the mandatory minimum penalty level.
The other thing I would note for the committee's attention is that since that time we've also had a few fairly important decisions that have contributed to what we're seeing today. The Supreme Court of Canada, for example, in R. v. L.M. from 2008, has clearly said that a maximum sentence is possible in the appropriate circumstances, and the court has noted the impact of the Internet.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
I apologize for interrupting, but we have so little time. I ask a 10-second question and the answer goes on for—
Bloc
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
I would like to know whether this has an effect on the number of offences which are committed—
Bloc
Conservative
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you.
You've offered, I think twice, to give us those cases on entrapment. Could you give them to the committee, and could you give us that decision on L.M. as well?
I'm a bit concerned. The wording that's in clause 13, which will be 171.1(5)(a)(ii), it's near the bottom of page 5: “the dominant characteristic of which is the depiction, for a sexual purpose...” You're defining sexually explicit material reusing the term “sexual”. What I'm concerned about is does that exact wording appear any place else in the code?
Acting General Counsel, Criminal Law Policy Section, Department of Justice
You have it in section 162, very close in the voyeurism offence. The change there is just for grammatical reasons. You have similar language in the child pornography offence in section 163.1.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
My concern is that we hear of the picture taken of the woman nursing so her breasts are exposed, the baby in the bathtub, and the fear of a parent or custodian, caregiver, whoever, being charged under this type of section. Have we had any of that type of abuse under those two sections?
Acting General Counsel, Criminal Law Policy Section, Department of Justice
Not that I'm aware of. In fact, a Supreme Court of Canada decision in the Sharpe case, the child pornography case in 2001, interpreted all of the components of the child pornography offence, including for sexual purpose and explicit sexual activity, which again the courts would be informed by when they look at this and similar language in the voyeurism offence. So the Supreme Court in the Sharpe case--basically, its interpretation acts objectively viewed that all at the extreme end of the spectrum of sexual activity—
Conservative
The Chair Conservative Ed Fast
Ms. Morency, if I could, I'll ask you to slow down, because the interpreters are having some trouble keeping up with you.
Acting General Counsel, Criminal Law Policy Section, Department of Justice
The Supreme Court continued to say that depictions of nudity or intimate sexual activity, but not casual sexual contact.... But it has to be for a sexual purpose. The example that was provided would not fit within that interpretation.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Let's say you have a young child running around on a beach somewhere in the nude, and you have a predator taking a picture at that point, so not a custodian, not a caregiver. The Sharpe case would exclude that picture that showed up on the Internet subsequently; it would exclude that.
Acting General Counsel, Criminal Law Policy Section, Department of Justice
I think the case law is clear in saying that on its own, by itself, it likely may not fit within the definition of child pornography, but found together, in the context of other materials that may point out the sexual purpose behind that photo, if that was the case, that could be an issue that could be argued.
That issue has arisen in the context of child pornography. The innocent baby being bathed in the bathtub in a picture, is that caught? It's very clear that that would not be. Is it possible that it could be? Again, as I say, in the contextual approach, in terms of all of the factors looking at it, it's very remote that it would be caught.
NDP
