Madam Speaker, I am pleased to participate in the second reading debate of Bill C-321, an act to amend the criminal code to provide for the forfeiture of property relating to child pornography crimes. At the outset I wish to congratulate the hon. member for Lethbridge for his concern about child pornography, a concern that the government shares with him and a great number of Canadians.
Our children are the most vulnerable members of our society and we must do all that we can to protect our children from harm. No one will deny that child pornography seriously harms children. I believe it does so in at least two ways. It creates a permanent record of the sexual abuse of children and perpetuates the message that children are appropriate sexual objects. Indeed, they are not.
Child pornography was specifically prohibited by amendment to the criminal code, enacted in 1993. This amendment, which is now subsection 163.1 of the criminal code, created new offences for the importation, distribution, sale, production and simple possession of child pornography. All these offences carry a greater penalty than the offences prohibiting obscene materials involving adults.
These criminal code provisions against child pornography take on a greater importance with the rapidly expanding use of the Internet. It is now easier to communicate valuable information and carry on discussions on all kinds of subjects with people who share our interests. Unfortunately it also makes it easier to disseminate and collect images of child pornography.
The purpose of the child pornography provisions is primarily to protect children from sexual abuse and exploitation, but also to send a clear message that it is not appropriate to have sex with children or to portray them as sexual objects. I know that Canadians are greatly supportive of this legislation prohibiting child pornography.
The purpose of Bill C-321 is very much in line with the purpose of the child pornography provisions since its purpose is to create an additional deterrent to child pornography. It would add to the sentence currently available under the criminal code a financial penalty that would result from a forfeiture to the crown of all tools and instruments that have been used in the commission of the offence. Bill C-321 would provide the judge with discretion to forfeit anything “by means of or in relation to which” a child pornography offence was committed. I wholeheartedly support this purpose.
However, I have some questions on the working of the provisions as drafted. I am particularly concerned that the bill might unnecessarily penalize individuals who have nothing to do with the offence.
It would be the case of an employee who uses the Internet during his lunch hour to download child pornography images on an office computer. He might also transmit these images to others; to do so, he would use the computer provided by his employer for conducting business for which he is employed. He would also use it to access and distribute child pornography without the knowledge of his employer and, of course, without his consent.
The offence would clearly be committed by means of the computer. If the employee was convicted of a child pornography offence, the judge could, in addition to sentencing him to imprisonment for up to 10 years, order the forfeiture of the computer. Bill C-321 would allow this. In this case the forfeiture would penalize the employer and not the employee who committed the offence. The person penalized would be an innocent third party and not the person guilty of the offence. This is a consideration that we should keep in mind.
I can see another problem in relation to forfeiture of “anything by means of which the offence was committed”. In order to receive and transmit on the Internet one needs a server or a router, which is typically owned by a service provider. Could the server be forfeited? I do not see anything in the bill that would prevent it. Other criminal code provisions that would allow forfeiture of the tools used in the commission of an offence specifically exempt public communications facilities and equipment from forfeiture. That is not the case here.
I support the purpose of this bill, but I have concerns with its practical implications. This bill may require further consideration and amendment.