Mr. Speaker, on behalf of the Progressive Conservative Party I am pleased to take part in this important debate. I want to commend my friend from Palliser for his remarks, which I think were very apt and timely.
The debate deals with an issue that has plagued Canadians particularly in recent days and months in the aftermath of what is now known as the Sharpe decision coming out of the British Columbia court of appeal, which in essence creates an exemption for types of child pornography on the basis that they might in some fashion have artistic merit.
I think that on its merits that decision has left Canadians with a great sense of ill ease and abhorrence for child pornography, which is so detrimental to the development of a child and exploits children in a way that has long term and lasting effects on their development.
This decision, if nothing else, has exposed some of the shortcomings in our criminal justice in the way in which we deal with child pornography. Bill C-15A and the amendments which form the subject of this debate touch directly on some of these issues. Yet one could argue that the wording of the amendment that is before us dealing with artistic merit reinforces the Sharpe decision, which is the very reason that we have seen such passionate speeches against the use of the words artistic merit in describing anything that deals with child pornography and has such a detrimental effect.
I can indicate at the outset that the amendment, which proliferates or continues this use of artistic merit to describe either written, photographic or computer generated images giving them some value as artistic merit, must be brought back, as referred to by my friend from Manitoba, to either the justice committee or the House itself. The justice department should make a very indepth effort into defining, within strict parameters, what artistic merit might encompass, perhaps excluding anything to do with child pornography.
Not unlike other pieces of legislation that we have seen come before the House, there were flaws in this bill. Bill C-15A in its origin was an omnibus package that required splitting. It required taking portions of it out and putting it in another bill. There have been ongoing changes and attempts to reconfigure the legislation as it now appears before us.
The government has agreed with a number of the recommended changes from the other Chamber and yet has not agreed with the one which deals with the elimination of the threat of prosecution for Internet service providers and cable companies. That amendment to the legislation is one which is somewhat difficult for many to understand. What it says in essence is that we cannot hold culpable or criminally responsible the Internet provider for the mere transmission of what would be deemed offensive pornographic material.
It follows previous precedent cases involving telephone companies or even the postal service. A supreme court ruling in The Electric Dispatch Company of Toronto v The Bell Telephone Company of Canada, which goes back over 100 years, found that the notion of transmission encompassing the person sending the message and the person receiving it but not the intermediary providing the technical wherewithal for the communication. This was referenced by Pierre Claude Nolin in the other place. One could say that this same argument would apply to the Internet service providers.
If all that companies do that are only acting as intermediaries between two or more persons is provide the means for storing or transmitting digital data for a third party, they might be innocently caught up in the transmission of smut or any offensive material. In this context one would expect there would be the recognition on the part of a trier of fact that the person who transmitted the child pornography without knowledge would not be held liable. However, where the issue is so serious and detrimental to the development of a child and to the spinoff effect there has to again be ironclad wording, very precise and clear language used in reference to that.
An amendment has been moved that essentially would negate the amendment brought forward by the Senate and would send it back for further study, which is perhaps what should happen. It appears that the issue, in the first instance, did not receive the attention it needed.
As we have seen with other bills, the Senate in its wisdom did good work but, because of the broad implications of this, we should take the time to ensure we have it right. For that reason, we in the Progressive Conservative Party feel that we cannot support the Senate amendment with the new and expanding forms of communication over the Internet. It is absolutely pivotal and critical that the legislation be precise and clear. It is meant to update the old sections which were aimed at the same sort of nefarious activity: the spreading of pornographic material that exploits children.
A number of Internet service providers that testified before the justice committee, providers such as AOL Canada, strongly supported the government's effort to limit the existence of child pornography and the proliferation online, and to capture the wrongdoers.
I think it is fair to say that within the industry there is a clear recognition and an acknowledgment that they must co-operate and do everything they can to monitor the service they provide and co-operate with law enforcement in preserving and, in many cases, turning over evidence to the police and to the law enforcement community.
I do not feel the bill captures the necessary tightness to ensure that both Internet service providers and this omnipresent, ever valuable effort to protect children is properly balanced. The possibility of liability attached to the stakeholders who participate in the blocking or the removal of material is still in the current wording and yet by virtue of this amendment we feel there is still some jeopardy that could exist for children.
I would suggest that most Internet service providers are being extremely diligent in their efforts to self-police their systems yet there is concern that by virtue of the wording of the legislation they could get caught in the net or the crackdown on individuals who bring pornography online.
Let us be clear, there is no property in good ideas and no political hay to be made on this issue. There is a very real intent and a very real spirit of co-operation on all sides of the House to ensure that we get this right for the protection of our most vulnerable, our most valued citizens, our children.
The Progressive Conservative Party of Canada, in that vein, acknowledges the spirit and intent of the legislation. My colleague made reference of Rose Dyson, a very distinguished Canadian who has taken upon herself the role of championing the protection of children and Canadians generally from images and acts of sexual violence and violence.
In our last election platform my party brought forward a national strategy to combat child pornography and child abuse. The package included references to Internet safety education for children as well as measures to ensure adequate training for police involved in the tracking of pornography. Extraordinary efforts are underway today throughout the land on behalf of municipalities, provinces and the RCMP to address this ever expanding and very harmful issue that takes place within many communities.
The legislation today deals with a number of elements for protecting society. It also has references to protecting and expanding the sentence range for those who stalk individuals or disarm a police officer.
There is also a very important amendment which touches upon the subject matter of the wrongfully convicted and those who have an opportunity then to bring forward their case when new evidence comes to light or when there has been a miscarriage of justice.
On a number of occasions we have seen instances where new science, such as the use of DNA particularly, has exonerated individuals who were convicted. There is one case that I would suggest has long been a festering sore on the Canadian justice system. That is the case involving Steven Truscott. A book has been written quite recently by a very renowned author, Julian Sher, entitled Until You are Dead , which references the sentence which was handed down to Mr. Truscott as a 14 year old upon being convicted of a murder.
There is a 690 application that has been brought forward on his behalf by a well-known lawyer and defender of the wrongfully accused, James Lockyer. This is before the justice minister as it currently stands. However this new legislation will not impact on that. We implore the justice minister to act with haste, with prudence and with diligence to ensure that the miscarriage of justice is corrected in the very near future.
The way this legislation currently reads, there are concerns particularly given the creation of this loophole that comes from the Sharpe decision that many members have already enunciated. There are a number of ways in which we can improve the child protection measures within the criminal code but many of those efforts and amendments will be in vain if police are not given the support and the necessary tools and resources to address the issue.
There is very much a fiduciary duty on not only the law enforcement community but also on members of parliament, members of the defence bar and members of children's aid to do everything within their means to respond to the issues of child pornography and images and to the written word being used to disparage and degrade children within communities.
The legislation is a step and a move in the right direction. It is very much aimed at expanding the current efforts that are available and the current elements of the criminal code which reference child pornography. Yet the act itself is something that is not directly addressed in such a way that would allow for the eradication of such and allow for police officers to go to the lengths needed to direct all of their attention and resources to the issue itself.
Much of this issue is one of common sense. In terms of clarifying, the amendment of the legislation itself should put greater emphasis on the protection of children. The bill, as it is brought forward, groups a number of criminal code amendments in one and this suggests to me that the proper emphasis is not there. This legislation aimed at child pornography should be standalone, particularly underscored by the decision in Sharpe. I would suggest that there is now an opportunity on the part of the Minister of Justice and the legion of lawyers that he has in his department to pick up this issue and come back with legislation that defines narrowly and strictly when artistic merit might be brought into play as a defence for using and proliferating child pornography.
There is also an important timeline to keep in mind. The clock is running with respect to the appeal itself in British Columbia. That time period expires this week. We are yet to hear a public commitment from the Minister of Justice to put pressure on the attorney general of British Columbia to clearly state that not only will the Government of Canada be pushing for this appeal to be taken but will also join in that appeal as an intervener. As has happened in the past, this should clearly happen and should happen immediately. It is surprising and disheartening I think for most Canadians to know that the government has responded in a very lackadaisical way.
Individuals who are convicted of the heinous crime of pornography against children should be punished and should definitely receive the full extent of the law. There has to be a higher element of deterrent and public example of those who engage in this sort of activity.
The other day there was a private member's bill which looked directly at increasing the sentence for those convicted under sections 152, 153 and 151 of the criminal code. The Progressive Conservative Party certainly agrees and supports the intent of those bills, but recognizes, as most Canadians would recognize, the need for very clear definitions when dealing with the law.
Amendments that are put forward at any time are meant to strip away some of the confusion. My grandfather used to speak about how confusing the law could be. He said “If you are putting a new roof on your house, you do not put the shingles on top. You have to strip some of the old shingles away”. That metaphor is very true of how we draft and craft law in this place.
It seems that far too often we are piling legislation on top of legislation, instead of in some instances removing some of the provisions that simply muddy the waters. Particularly when it deals with issues so fundamental, so clear I think in the minds of Canadians, we certainly should draft legislation that mirrors that and reflects the same clarity of thought and clarity of purpose.
The bill as it stands currently, which deals with the numerous issues I have talked about including the miscarriage of justice, is still in my view somewhat unclear. The one amendment which we support wholeheartedly deals with the miscarriages of justice and calls upon the minister to put certain criteria in place for those who would be involved in the panel and the review of those miscarriages. They have some basic understanding of the criminal justice system and the system itself, be they retired judges, lawyers, defence or crown lawyers in good standing with their provincial bar, or they have had some experience that would lend credibility and a greater understanding to the hearing process. This we see as a very good step toward ensuring that there is no further miscarriage of justice when that panel undertakes its review of the evidence itself.
Again I very much associate myself with the remarks made by previous members that legislation which is clear and which responds to this gaping hole left by the Sharpe decision is necessary. There were old sections in place that dealt with this nefarious activity, but because of changes in technology, changes in the way in which we can communicate images and the written word, this is a modernization attempt. It is an attempt by legislators, by parliament, to respond. Certainly the spreading of pornographic material of children, exploiting children, is perhaps that issue which is most offensive and which most binds Canadians together against some common enemy or some purpose in which we can all agree that there has to be more.
What on earth could be more fundamental than that issue and more fundamental to the role of parliamentarians to respond? Certainly heightened awareness itself is not enough. Families recognize that their children have to be protected. They recognize that the world has changed, that there are in fact greater dangers afoot around every corner. This type of legislation with which we have been charged, to improve and examine, gives us that opportunity.
Two of the three amendments come up short in terms of reaching that standard of clarity and standard of purpose. The average Canadian would expect more and we cannot shy away from it. We should take every opportunity to get it right on an issue such as this.
The transmitting and the making available of this type of material, whether it be to sell or exploit, should be a criminal offence. There should be an effort made to ensure that no person is wrongfully convicted. There is some irony that we find elements of the wrongfully convicted in this very same bill. It is certainly something that undermines the justice system further when a person is wrongfully convicted.
I will close on that note. The Progressive Conservative Party will be supporting the legislation generally, but not the amendments which we feel work contrary to the express purpose of this legislation.