Debates of April 7th, 1997

Criminal Code

[Christiane Gagnon, Bloc, Québec, QC]

moved:

Motion No. 1

That Bill C-27, in Clause 1, be amended by deleting lines 20 to 29 on page 3 and lines 1 to 7 on page 4.

Mr. Speaker, I am pleased to see that the government has decided to bring Bill C-27 back to the House for final consideration and passage.

Could members of the Reform Party be asked to be a little quieter, so that I may continue? We gave them our attention, but the debate is over for them now.

This is a bill covering three topics: sex tourism, child prostitution, criminal harassment and female genital mutilation. I think that it goes in the right direction, but I deplore the fact that the government has not agreed to all our suggestions, which were all based on comments made by witnesses who appeared before the committee.

I myself introduced two private member's bills on sex tourism and female genital mutilation that were more in line with the wishes of the witnesses heard.

Today, the Bloc Quebecois is proposing an important amendment to Bill C-27 as it relates to sex tourism. The Bloc Quebecois' purpose in introducing this amendment is to remove from the bill a completely new provision that did not appear in the original text and that was quietly slipped in by the standing committee during clause by clause study of the bill.

Once again, the government has acted at the last minute, without notice, to impose upon us a measure which changes considerably the scope of the original bill. I would like us to take a closer look at this little trick that the government is trying to perform.

First of all, I would like to remind the House that the purpose of the new provisions on sex tourism is to allow the prosecution in Canada of Canadian citizens who go abroad to sexually exploit children knowing that they have little chance of being prosecuted, let alone punished.

Since the people of Canada and Quebec do not condone the sexual exploitation of children by their fellow citizens, whether these children live in Canada or elsewhere, the government is seeking to change the Canadian legislation to include an exception to the usual rules so that those who commit such acts outside our borders can be punished. As we can see, the objective of this measure is to send a clear message to all Canadians. The message is clear indeed: do not touch children; respect for children and their physical integrity are very important to us.

I said this was an exceptional measure. It is exceptional in that, according to the usual rules of law, each country is sovereign within its own territory and no other country can interfere with what goes on within that territory.

In other words, when a Canadian citizen travels abroad to sexually exploit children, it is up to the authority in the country where the crime occurred to press charges. Unfortunately, governments in several of the countries where child sex tourism is widespread do not have the legislation, the manpower or the political will to put a stop to this type of abuse.

This is why Canada is taking its responsibilities and finally fulfilling its international commitments concerning children rights. With this bill, the Canadian government is getting the means to sue its own citizens once they are back from their little trips abroad. We support this principle, but now the government has introduced a provision whose results will be in conflict with the goal we are trying to reach here.

This provision is found in clause 1 which amends section 7 of the Criminal Code to provide for a procedure to be used when a child sexual assault has occurred outside Canada. Pursuant to this new provision, for legal proceedings to be instituted in Canada, the country where the assault occurred must submit a request to this effect to the Canadian Minister of Justice. And the minister has to agree to prosecute.

Those who are somewhat familiar with sexual tourism soon realize that this proposal is sheer nonsense. How can we expect a third world country, known as a haven for sexual tourists, to ask a foreign government to sue in its place? How can we believe that these countries, even if they do not have the laws, the manpower or simply the political will to protect their own children, are going to admit to the whole world that they are unable or unwilling to do anything? This is asking a bit much.

This whole legislative effort is all for naught since it is a well known fact that child sex tourism has reached such alarming levels precisely because of the tolerance or lack of resources on the part of the host countries. These countries are certainly not ready to be humiliated and ask a foreign government to step in and fill this legal vacuum. I honestly believe that the only instance when these provisions would work is if the victim and the criminal are Canadian.

It goes without saying that any country would then realize how appropriate it is to let the Canadian government deal with the case. One can easily assume that in all other instances nothing will change and children will continue to be sexually exploited by tourists looking for kicks. My bill did not contain such half measures. It was quite clear. It provided for the prosecution of

offenders, regardless of the willingness of foreign governments. This was too much to ask, I believe.

In the name of the sacrosanct sovereignty of states, the motion passed by the government will insure that crimes against children will go unpunished, those same children Canada solemnly committed to helping when it signed several international documents. This is the way this government honours its commitments. My amendment would eliminate this procedural requirement and allow the bill to do what it is supposed to do, namely protect children.

I urge you to support the Bloc Quebecois' amendment, in order to better protect children in Canada and abroad.

[Gordon Kirkby, Liberal, Parliamentary Secretary to Minister of Justice and Attorney General of Canada]

Mr. Speaker, the purpose of this motion is to remove two procedural requirements to prosecution in Canada of cases of sexual abuse committed by Canadians abroad. Bill C-27 proposes to allow for the prosecution in Canada of Canadians who obtain the sexual services of a child for consideration, what is often referred to as child sex tourism.

However, following testimony before the justice and legal affairs committee, the committee amended the bill in order to allow as well for the prosecution in Canada of Canadians who sexually abuse children while abroad. This new amendment requires two preconditions to the prosecution in Canada of a Canadian who sexually abuses a child while outside of Canada which do not exist in the case of child sex tourism offences.

First, a request has to be made by the foreign state where the offence is alleged to have been committed. Second, the consent of the responsible provincial attorney general has to be obtained. Both preconditions are essential to the exercise of Canada's extraterritorial jurisdiction. The motion proposes to remove these two procedural requirements.

The justice and legal affairs committee heard from witnesses as to the importance of these procedural prerequisites. They are necessary for two reasons. The first reason is that prosecuting in Canada for offences committed abroad is contrary to the principle that a country has jurisdiction for offences committed on its territory. An exception to this principle is accepted when it is so required by an international convention or permitted by customary international law or international consensus, as is the case for sex tourism.

The emerging consensus to allow states to prosecute their nationals involved in child sex tourism is evidenced by the drafting of an optional protocol, in which Canada is playing an active role, to the United Nations Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. But it is not the case for child sexual abuse.

The optional protocol addresses only two sexual offences relating to children, child prostitution and child pornography. At this time it does not deal with other sexual offences against children. The declaration and agenda for action recently was adopted at the world congress against the commercial exploitation of children which was hosted by the Swedish government in August 1996. It also dealt with only child prostitution and child pornography. The lack of international consensus with respect to the country's extraterritorial jurisdiction over sexual abuse of children committed in a foreign country underscores the importance of having procedural requirements in order to comply with proper jurisdictional principles.

The second reason for keeping the additional procedural requirements can be explained in terms of sovereignty and practicality. The request from the foreign state indicates an interest from that state in the prosecution of the offence and assures Canada that the foreign state will co-operate in facilitating the Canadian prosecution of the offence. Without a request from the foreign state and the underlying assumption of co-operation Canada would have no basis to send law enforcement officials into the foreign state to interview witnesses and collect evidence. The co-operation from the foreign state is necessary to gather evidence required for the prosecution.

In conclusion, it is my belief that these procedural requirements are essential in order to make the committee's amendment work effectively. For these reasons I do not support the motion.

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Speaker, Bill C-27 will receive the support of our caucus. We think there are measures in the bill that are going in the right direction.

I have some real concerns about the ability of Canada to enforce laws against offences committed outside our jurisdiction. Because of that concern I am prepared to recommend to my caucus that we support the amendment that has been placed before us which we are debating today.

What are some of the reasons for supporting this amendment and really what is the amendment to do? The amendment will strike from the bill sections 4.2 and 4.3.

Section 4.2 states:

Proceedings with respect to an act or omission that if committed in Canada would be an offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 163.1, 170, 171 or 173 shall be instituted in Canada only if a request to that effect to the Minister of Justice of Canada is made by:

(a) any consular officer or diplomatic agent accredited to Canada by the state where the offence has been committed; or,

(b) any minister of that state communicating with the Minister through the diplomatic representative of Canada accredited to that state.

Section 4.3:

Proceedings referred to in subsection 4.2 may only be instituted with the consent of the Attorney General

This means the attorney general of the province in which the individual the charge is being initiated against lives.

First of all, what this would entail is an intrusion by the Justice Minister of Canada into what is normally the constitutional jurisdiction of the provinces which is to initiate criminal proceedings. It would give the justice minister an overwhelming say in the prosecution of offences under the criminal code. We would see a division of powers. I should say we would see an attack on the division of powers. In fact, there would be a collapse of the division of powers between those who make the law in this country and those who are supposed to enforce it.

All of a sudden we would have the justice minister being the key figure not only in making the law but in initiating any criminal proceedings and prosecution under the law. I think that is wrong and we have to be very aware and cautious of allowing that kind of collapse between the division of powers that exist in a democracy.

Second, I have great concern that we are going to be able to successfully prosecute an infraction that occurs in another country. How will we do it? How will we get the evidence into this country to successfully prosecute? If the justice minister is going to be the one who decides whether or not there is sufficient evidence to proceed with a criminal prosecution are we going to look at the same delays that we now see when individuals apply to the justice minister under section 690 of the Criminal Code, those who feel that there has been a miscarriage of justice occur? We have had 690 application after 690 application presented to the justice minister and in some cases it has taken years for him to assess the fresh evidence and make a decision.

We just saw two cases that have been hung there for years and finally decided upon by the justice minister. One was the King case and the other was the Beaulieu case. We still have a case that has been outstanding for at least four years, a 690 application that the justice minister is still looking at, the delay for reasons unknown.

Are we now going to say the justice minister has to decide on all these cases that might be coming forward as a result of the creation of this new law? It is absolutely wrong. Not only that, the justice minister can only move on complaints not if they come from you or me, Mr. Speaker, who might be over there and happen to witness a crime. No, they have to come from a consular officer or a diplomatic agent accredited to Canada. Therefore, if you or I are over there and happen to see an offence committed by some individual against a child, we cannot bring this to the attention of the authorities here. We cannot even bring it to the attention of the justice minister.

According to this legislation, we have to bring that to the attention of the justice minister through a consular officer or a diplomatic agent accredited to Canada by the state where the offence is being committed or, if we cannot do it that way, by any minister of that state communicating with the minister through the diplomatic representative of Canada accredited to that state.

Do members know what that is setting up? It is setting up a situation that looks good, that we are taking some action against these child sex tourists, people who would go to another country and involve themselves sexually with children.

I will say five years from now if the justice minister is still around and we ask him how many successful prosecutions or otherwise have been registered in this country as a result of this legislation, it will be very close to zero. Why? Because of the narrow restrictions that are being placed on any successful prosecution. It is not just the fact that it is going to be difficult to produce evidence. Are we going to bring the victim over here? Are we going to bring witnesses over here at enormous cost? How are we going to do it?

That is part of it. Once the complaint information has gone through this very narrow restricted channel and the justice minister says to the attorney general of the province in which that accused person or the targeted person lives "go ahead and charge this person" it is wrong. It is not going to work.

It is another attempt by this government to create a smoke screen that it is going to get tough in an area that is very difficult to handle and that is frowned on and creates revulsion in the minds of every decent thinking Canadian.

We are prepared to support this bill in the hope that we are wrong in our estimation of the difficulty that is going to be presented toward any successful prosecution. We are prepared to support this bill. But I am not prepared to support that part of the bill that gives the justice minister the final say on prosecution under this statute. Why should be trust the judgment of the justice minister when a lack of sound judgment and common sense runs like a current through a host of the legislation that he has brought forward and other decisions that he has made?

How can we trust the judgment of a justice minister who grants victims the right to make written impact statements in Bill C-41 and takes away that very right in Bill C-45? How can we trust the judgment of a justice minister who tells this House that he consulted on a regular basis with the attorneys general of the

provinces when putting together Bill C-68 and we had those attorneys general appear before the committee and say that there was no consultation at all? How can we trust the justice minister? How can we trust his judgment?

I support the amendment to strike from the bill this special power granted to a justice minister whose judgment over the last three and a half years has proven to be unsound and lacking a basis in common sense.

I cannot support the justice minister's having this kind of power and it is not unlike the kind of power he has given himself in many bills through orders in council. He will not get my support in this area for this kind of authority and power that could stymie any successful prosecution or any complaint from going beyond his office or beyond his desk. I will not support it.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Mr. Speaker, this is a good case where the Bloc has contributed in an exceptional way to improve a bill or even to impose its vision on some matters.

I take this opportunity to commend the hon. member for Québec, who was one of the people that started this whole debate on sex tourism, excision and other related matters in Bill C-27.

However, as is often the case with the Liberal Party, the opposition had to take the initiative and to introduce private bills to get it to respond. Bill C-27 is a blatant example of that: the hon. member for Québec introduced a series of bills, among others, on sex tourism, as well as sex tourism in other countries, so that the government would budge.

The hon. member for Québec did not merely introduce a bill. Since the government tabled Bill C-27, which we are examining, the hon. member, as well as the official opposition, have very closely followed the committee work. Testimony heard in committee indicated that the bill fell short on some things, so we tried to co-operate with the government, to move some amendments so that Bill C-27 would come as close as possible to meeting the objectives of the private member's bills tabled by the hon. member for Québec, particularly with regard to sex tourism.

A number of witnesses told us that this Liberal bill does not go far enough, and that we should give it more teeth if we are to get effective results in protecting sexually abused children in third world countries.

Despite the support we had from some women's groups, social interest groups and even legal experts, the Liberal government waited until the last minute to move amendments to try to meet the demands of the Bloc Quebecois. Even these last minute amendments failed to support our goals in dealing with sex tourism.

That is why, once again, the official opposition felt it had a professional obligation to put forward in this House an amendment about the extraterritorial impact. I invite government members to think very seriously before coming out for or against the amendment put forward by the hon. member for Québec in the overall context of the implementation of this bill.

In some third world countries, in Asia, in India, sex tourism is a very profitable industry. In spite of the government's last minute amendments, we have to understand that any country where sex tourism exists must submit a request to Canada so that the attorney general can prosecute the individual who committed the offence in that country.

Tell me what country where sex tourism is known to exist, where it is tolerated, would do that. According to witnesses, there even are countries that favour sex tourism because it is good for the local economy. Considering the clause that is before us, why would those countries themselves ask the Canadian government to prosecute someone who practised sex tourism on their territory? None will do it. Those are often countries which encourage sex tourism.

The amendment put forward by the hon. member for Quebec aims at giving the Canadian government the power to prosecute individuals who commit the crime. I understand there are issues of territoriality and extraterritoriality. However, we should not forget that the law aims at protecting the young.

Again, several young people who appeared before the committee told how individuals sexually abused them. Often, it is Canadians who go to other countries, and it is people who know them who sexually abuse these children, these young women or young men.

I think that the amendment presented by the member has only one purpose, that is to better protect the children. If there is a problem with enforcement, we will take care of it as we go along, but we must at least help the families and the victims by giving the Attorney General of Canada the ability to prosecute those who sexually abuse children and who even profit from sexual tourism.

In closing, I ask all the hon. members on the government side to read very carefully the amendment; it is very short, but very broad in scope. If they have the time, they should also read the testimony of some young people who came before the Standing Committee on Justice and Legal Affairs to complain about the fact that Bill C-27, which was introduced by the government party, falls short of the objective sought.

I think that the amendment moved by the hon. member for Québec should be adopted because it would correct a deficiency in the bill as written by the Liberal government. In the case of Bill

C-27, as in the case of several other bills, we see that the government has tabled a series of amendments and a bill, and following the testimony of a number of people before the committee, the government intends to make further amendments. This is akin to tabling a bill without knowing what consequences it will have or considering all the possibilities it will open up.

Although they may have done so in the case of a number of other clauses, I think they failed to amend this particular clause and go as far as the hon. member for Quebec was suggesting. That is why the Bloc Quebecois will vote in favour of this amendment to Bill C-27, and I would ask that the government give this amendment serious consideration. I hope it will also vote in favour of the amendment, with the official opposition, so as to improve the bill and help it achieve its objective to protect children.

[Jim Abbott, Reform, Kootenay East, BC]

Mr. Speaker, this bill to a certain extent does make me think of tourism. Not to make light of the issue; the issue is desperately serious. The sex tourism business is an absolute scourge and by all means must be wiped out. But this bill does not do it.

This bill reminds me of being a tourist somewhere in England where I saw a suit of armour which was the real, authentic thing. Obviously if a person had gone into battle with that suit of armour it would have offered some kind of protection. It is rather interesting that about a year later I happened to be going through a wax museum or some such thing in Victoria, British Columbia, where again I saw the same suit of armour. However, the difference was that suit of armour was made out of plastic.

Imagine, if we were to go back to the time of King Arthur, the difference between going into battle with the real suit of armour and going into battle with what appeared to be the real suit of armour but which was only plastic. The very first time the person wearing that suit of armour was engaged in battle he would have been fatally wounded.

And so it is with this bill. The bill appears to be a suit of armour. This clause appears to be something that would be effective and would actually work. However, it is like all the other trappings the government continuously comes forward with.

In another life I believe that you, Mr. Speaker, were and perhaps still are a lawyer. You would know as a lawyer that when evidence is going to be collected in another country, under what terms and conditions is the evidence collected? Who is able to actually clearly state that the evidence is real? What about the difference in jurisdiction? What about the difference in standards of proof between the two justice systems, between the country where the offence is taking place and where the adjudication would actually take place?

This bill is nothing more than a plastic suit of armour and it is so typical of the Liberals that they would be trying to trot this out and actually say that the bill is going to make a move in the direction that is so desperately needed.

Taking a look at the total motion before the House, Bill C-27, and the fact that it includes child prostitution, child sex tourism, criminal harassment and female genital mutilation, clearly this is nothing more that window dressing by the justice minister where he has pulled together all of these bits and pieces so at the end of the day he can say "see, we tried, we made some kind motion in the direction we need to be going".

This bill is a plastic suit of armour that will fall to any lawyer coming in right after being called to the bar. How can there be a case, as has been pointed out by my colleague from Crowfoot, where an individual witnessing the sex tourism business has to go to another individual who in turn has to inform the justice minister? The justice minister would then have to inform the officials. The officials would then have to write letters, and heaven only knows if we have not learned something about the justice department writing letters in the Airbus affair I do not know when we will.

The letters go to the country where the alleged offence took place. People take a look at them and try to make decisions about what they should do. They then turn around and perhaps they go out to get some witnesses. They try to collect evidence. There would not be that much evidence related to this case. After obtaining the evidence it would be transported back to Canada where this lawyer freshly having been called to the bar would squash it right out of sight. This is nothing more than plastic art-

[The Acting Speaker (Mr. Milliken)]

Order. The chief government whip on a point of order.

[Bob Kilger, Liberal, Stormont—Dundas, ON]

Mr. Speaker, in the next 15 minutes we will be summoned back to the Chamber to vote on some deferred recorded divisions. I have had some discussions with the other parties. We have come to an agreement. I want to thank the representatives of those other parties for their co-operation. When we reconvene for the deferred recorded divisions, the first division we would ask the Chair to call would be No. 15, the ways and means motion of the government on the matter of the budget.

[The Acting Speaker (Mr. Milliken)]

That would be followed by the two private members' motions, Motions Nos. M-31 and M-277 in that order. Is that agreed?

[Some hon. members]

Agreed.

[The Acting Speaker (Mr. Milliken)]

So ordered.

The House resumed from March 21 consideration of the motion that this House approves in general the budgetary policy of the government.

The Budget

[The Acting Speaker (Mr. Milliken)]

It being 6.30 p.m., the House will now proceed to the taking of the deferred recorded division on Ways and Means Motion No. 15. Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

[The Speaker]

I declare the motion carried.

The House resumed from March 12 consideration of the motion and of the amendment.

Peacekeeping Or Peace Enforcement Commitments

[The Speaker]

Pursuant to order made on Wednesday, March 12, the House will now proceed to the taking of the deferred recorded divisions relating to Motion M-31 under Private Members' Business.

The question is on the amendment.

As is the practice, the division will be taken row by row, starting with the mover and then proceeding with those in favour of the amendment sitting on the same side of the House as the mover. Then those in favour of the amendment sitting on the other side of the House will be called. Those opposed to the amendment will be called in the same order.

(The House divided on the amendment, which was negatived on the following division:)

[The Speaker]

I declare the amendment defeated.

The next question is on the main motion.

(The House divided on the motion, which was negatived on the following division:)

[The Speaker]

I declare the motion lost.

The House resumed from March 19 consideration of the motion and of the amendment.

Canadian Volunteer Service Medal For United Nations Peacekeeping Act

[The Speaker]

Pursuant to order made on Tuesday, March 18, 1997 the House will now proceed to the taking of the deferred recorded divisions relating to Motion No. 277 under Private Members' Business.

The question is on the amendment.

(The House divided on the amendment, which was negatived on the following division:)

[The Speaker]

I declare the amendment lost.

The next question is on the main motion.

[Jean Landry, Bloc, Lotbinière, QC]

Mr. Speaker, I would ask that you consider that I voted with my party. I was in my seat. Pardon me.

[Dan McTeague, Liberal, Ontario, ON]

Mr. Speaker, I was wondering if I could seek your guidance on the validity of a vote when the actual mover of this motion saw fit not to be here on this occasion.

[The Speaker]

It is perfectly in order that we take this vote because it is an order of the House. Very gently I would remind hon. members that we never refer to another member when he or she is not present.

(The House divided on the motion, which was negatived on the following division:)

[The Speaker]

I declare the motion defeated.

It being 7.30 p.m., the House stands adjourned until 10 a.m. tomorrow, pursuant to Standing Order 24(1).

(The House adjourned at 7.31 p.m.)