Mr. Speaker, we are debating amendments to an act to amend the criminal code, specifically Bill C-15A, and that the House support amendments numbered 1(b) and 2 that were made recently by the Senate, but the Minister of Justice has indicated that the government disagrees with Amendment No. 1(a) because;
the amendment could exempt offenders from criminal liability even in cases where they knowingly transmit or make available child pornography.
Amendment No. 1(a) is designed to ensure that Internet service providers are not found liable for illegal acts under the legislation. This would mean that account providers would not be responsible for illegal content posted on websites owned by their account holders and made possible by the Internet service provider's equipment as well as not being held liable for illegal content received in an e-mail address or accessed through an account which they have provided.
The amendment is unnecessary. There are currently protections in the legislation for Internet service providers in terms of intentionally spreading and accessing child pornography. Further, Internet service providers have not given any alternatives to the situation that currently exists. Harmful content on the Internet is a growing problem and there must be some way that Internet service providers can ensure that web pages provided by them are not used to distribute child pornography.
Child pornography is extremely and especially valuable to pedophiles. Testifying in the Sharpe case, Dr. Peter Collins defined pedophilia in these terms: “the erotic attraction or the sexual attraction to pre-pubescent children”. Similarly:
The widespread availability of computers and the Internet has resulted in new ways of creating images, and has facilitated the storage, reproduction and distribution of child pornography.
Detective Waters, who also testified in the case, “likened this increased distribution to a tidal wave”. As stated in the annual report of the Criminal Intelligence Service Canada on organized crime in Canada for the year 2000:
The distribution of child pornography is growing proportionately with the continuing expansion of Internet use. Chat rooms available throughout the Internet global community further facilitate and compound this problem. The use of the Internet has helped pornographers to present and promote their point of view.
The R v Sharpe report stated:
Criminalizing the possession of child pornography may reduce the market for child pornography and decrease the exploitative use of children in its production.
Last week, thanks to the member for Pickering--Ajax--Uxbridge, 37 members of parliament had an opportunity to hear from prosecutors and Dr. Collins on this very important topic. We heard that pedophiles can and do download thousands of erotic images; 25,000 to 30,000 images are not unusual in a case. As the House was told last week, there were 400,000 in one case.
The feeling of the prosecutors is that not all images should need to be presented at court, but only a representative sample, because now it is tying up police and prosecutions to deal with the cases, to deal with the hundreds and tens of thousands of images. As a result they are not able to arrest other known child pornographers because their resources are stretched too thin. We certainly agree with the government's rationale and we will not be supporting the Senate amendment there.
Very quickly, Amendment No. 1(c) deals with the issue of the wrongfully convicted. As the legislation is currently written, without the Senate amendment the Minister of Justice may delegate someone, anyone for that matter, to investigate a case in which an individual may have been wrongfully convicted. The Senate amendment states that the individual so delegated must have certain broad, legal qualifications. We support the amendment. It is a housekeeping amendment and the NDP caucus gives it the good housekeeping seal of approval.
I would like to turn, however, in the time I have left, to Amendment No. 1(b), which provides for an exclusion similar to that envisioned by the B.C. supreme court in dealing with the judgment in the case of Robin Sharpe. This would ensure that the possession of materials of artistic, scientific and educational merit would not be criminalized under this legislation. Though the idea of artistic merit can be problematic, as we have seen recently, this exclusion may be necessary to ensure the constitutionality of the legislation and that the offence of accessing child pornography over the Internet is congruent with other child pornography offences. The amendment would ensure that the legislation has that exclusion written in, that materials created or possessed for these purposes would not result in criminal sanctions.
The question of artistic merit has raised a good deal of concern and that is what the debate has focused on here. I would like to read into the record letters that I have received from constituents in Palliser.
Hazel Raine wrote on the Sharpe decision and stated:
The ruling by Justice Duncan Shaw...that the violent graphic stories of child sexual abuse produced by John Robin Sharpe have sufficient “artistic merit” for Canadian society is an insult to Canadians. Our children are precious and we want them protected by every means possible from pedophilic material. There should be an immediate appeal of this ruling.
She asks me as the representative here to “take whatever steps are necessary”.
In a similar letter with a similar tone, Sheryl Van Wert, also from Moose Jaw, stated:
This ruling implies that we value artistic expression over the protection of Canada's children--our future. As a Canadian citizen hoping to one day be a parent, I ask that you carefully consider your part of the decision to be made regarding this ruling. Please protect our future generations from those who would destroy their innocence and safety.
We do have two very clearly different points of view on this. There is a notion, as these letters indicate, that the defence of artistic merit makes it a simple walk in the park for pedophiles to hide behind a claim of legitimacy. That is a major concern. On the other hand, there is the concern, from people who do not have child pornography as a primary concern, that we would be limiting freedom of expression and freedom of speech.
I will read an excerpt from a play written some time ago by the poet laureate in the New Democratic Party caucus, the member for Dartmouth. The play is entitled All Fall Down . There is a soliloquy by one of the people in the play, Connors, who works with sexually abused children and in this excerpt contemplates the working of the human mind. Connors states:
How do you protect yourself from the images flying around out there. How do you protect yourself from the images in your own head. A man bounces his daughter on his lap, sits on the bed and watches his wife undress, thinks about winter tires, the teller with the big hooters at the bank, how he'd like to reach out and stroke them, his daughter's musical giggles, the bruise on his wife's leg, how soft the little girl's cheeks are. He wonders if she was fifteen years older and not his daughter--but that's gone in an instant and he remembers his own mother's scent, her shining hair, sitting on her lap, feeling like the only special one in the world, and suddenly, he despises his wife, wants to strangle her, but just for an instant, maybe wants to end his own life too, all those gaping nights, weeks, years ahead, all those dark unexplored holes behind, and then that's gone too. Thoughts fly by like hummingbirds. Some of them could land you in jail but if you keep them in your head, they're harmless there--
In the matter of the Sharpe case and the supreme court decision, Chief Justice McLachlin, writing for the majority, indicated that “any objectively established artistic value, however small, suffices to support the defence”. While the ruling added that “what may reasonably be viewed as art is admittedly a difficult question--one that philosophers have pondered through the ages”, it concluded that it is necessary to maintain a society in which “artists, so long as they are producing art, should not fear prosecution” under a child pornography law.
The supreme court's attempt to strike a balance between preserving freedom of expression and protecting children from dangerous pornography has drawn fire across the board. Rose Dyson, representing Canadians Concerned about Violence in Entertainment, stated that the “artistic merit defence” is in fact “a gaping loophole” that would make it easy for the most vile pedophile to hide behind claims that he is producing literature.
While civil libertarians applauded Mr. Sharpe's acquittal on all charges related to his fictional works, their main argument is that only photos or other material depicting “actual children” should ever be subject to prosecution. According to John Dixon, President of the B.C. Civil Liberties Association:
Writings ought to be freely distributable among adults no matter what fantastic or imagined content.
A 1999 paper written by the Canadian Civil Liberties Association stated:
Artistic taste is largely in the eye of the beholder. How could a blunt instrument like the criminal law define the distinction between serious efforts and those which are not? What possible justification is there to criminalize any fictionalized depictions?
The CCLA warned that the “overbreadth” of the law “appears capable of imperiling legitimate art” while striving to stamp out the pornographic fantasies of a few “disordered souls”.
On the other hand, Carleton University journalism Professor Klaus Pohle, who has criticized similar legislation in which hate propaganda and obscenity are left open to broad interpretation by the courts, said that building a law on a “fuzzy” definition is a recipe for disaster. He stated:
Anybody can stand up and say there is artistic merit in anything. What you're doing here is putting on trial the definition of artistic merit.
In fact, English Professor Paul Delaney of Simon Fraser University testified at trial that Mr. Sharpe's writing skills were negligible and insisted that even if some of his work showed a shred of artistic merit:
...we do not allow speeding drivers to avoid punishment by appeal to the 'esthetics' of an intense, thrill-seeking experience.
Mr. Justice Duncan Shaw sided with those who indeed viewed Mr. Sharpe's work as literature. Judge Shaw stated:
Mr. Sharpe's portrayals of people, events, scenes and ideas are reasonably well written. He uses parody and allegory, not expertly, but he does use them...His plots show some imagination and are sometimes fairly complex.
On the other hand, in the 6 to 3 verdict at the supreme court, those in the minority, Justices L'Heureux-Dubé, Gonthier and Bastarache, saw this case very differently. I would like to quote from their observations in their dissenting minority report. They stated:
Child pornography, as defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society...Child pornography is harmful whether it involves real children in its production or whether it is a product of the imagination. Section 163.1 was enacted to protect children, one of the most vulnerable groups in society. It is based on clear evidence of direct harm caused by child pornography, as well as Parliament's reasoned apprehension that child pornography also causes attitudinal harm.
In their report, those three justices went on to state that:
The inclusion of written material in the offence of possession of child pornography does not amount to thought control. The legislation seeks to prohibit material that Parliament believed was harmful. The inclusion of written material which advocates and counsels the commission of offences against children is consistent with this aim, since, by its very nature, it is harmful, regardless of its authorship. Evidence suggests that the cognitive distortions of paedophiles are reinforced by such material and that written pornography fuels the sexual fantasies of paedophiles and could incite them to offend.
...the benefits of the legislation far outweigh any deleterious effects on the right to freedom of expression and the interests of privacy...[it] helps to prevent the harm to children which results from the production of child pornography; deters the use of child pornography in the grooming of children; curbs the collection of child pornography by paedophiles; and helps to ensure that an effective law enforcement scheme can be implemented.
In sum, the legislation benefits society as a whole as it sends a clear message that deters the development of antisocial attitudes. The law does not trench significantly on speech possessing social value since there is a very tenuous connection between the possession of child pornography and the right to free expression. At most, the law has a detrimental cost to those who find base fulfilment in the possession of child pornography.The privacy of those who possess child pornography is protected by the right against unreasonable search and seizure as guaranteed by s. 8 of the Charter. The law intrudes into the private sphere because doing so is necessary to achieve its salutary objectives. The privacy interest restricted by the law is closely related to the specific harmful effects of child pornography. Moreover, the provision's beneficial effects in protecting the privacy interests of children are proportional to the detrimental effects on the privacy of those who possess child pornography.
They end the section this way:
It goes without saying that child pornography which sexually exploits children in its production is harmful. Moreover, we have seen that the harms of child pornography extend far beyond direct, physical exploitation. It is harmful whether it involves real children in its production or whether it is a product of the imagination.
The dissenting supreme court justices wrote:
In either case, child pornography fosters and communicates the same harmful, dehumanizing and degrading message.
At the meeting of MPs last week we heard from police and prosecutors who stated that the dehumanizing and degrading message extends to the written text where short stories apparently give vivid examples of every imaginable sexual act, including rape and bondage. It was pointed out that if someone advocates genocide or promotes hatred in Canada, artistic merit is not a defence. We then have to ask why artistic merit should be a legal defence when it comes to child pornography.
There is no artistic merit defence inherently required for child pornography as, for example, no artistic merit defence applies to uttering threats to cause death or falsely yelling fire in a theatre or a host of other offences. In those circumstances, parliament has rightly concluded that the risk of public harm inherent in the expression outweighs any attendant public benefit derived from the artistic merit of the expression itself.
This is an extremely important issue. Very good arguments can be made on both sides but I think it is critically important that we have a rapid re-examination of the question of artistic merit, either by parliament itself and if not by parliament then certainly by the Standing Committee on Justice and Human Rights. The committee should be looking at this very carefully so we can have legislation that can and will create a more comprehensive and thoughtful legislation dealing with child pornography. The failure to act will continue to place children at substantial risk.
In closing, I will read what Dr. Peter Collins said last week to the 37 members of parliament who gathered in the reading room for a discussion. Quoting from the Talmud, Dr. Collins said:
If you save one life, it is as if you've saved the world.