Debates of April 23rd, 2002

Supply

[Brian Fitzpatrick, Canadian Alliance, Prince Albert, SK]

Mr. Speaker, my question does not get into international conventions, the Internet, global accords and so on. It deals with real circumstances and situations.

A lot of the problems with the law in Canada cannot be cured by making more laws and making them thicker and higher. A lot of the problems have to do with making our laws more effective. We must see the defects in legislation and fix them so the problems are resolved.

The government says it wants to protect young people from sexual exploitation. We came up with a specific amendment that would go back to what we had before 1990, something which worked for decades and did not create any problems.

The circumstance I will deal with is a real one. It is not isolated to myself. As a former lawyer I had a case where I was asked for advice. A couple in their mid-thirties had a 14 year old child who was living with a man who was 40 years of age. The couple asked me what they could legally do. I looked at the criminal code. I am not a criminal law expert. Parents have a duty to provide the necessities for their children but the age of consent was 14.

Can the minister tell me whether the duty to provide for the necessities of a child extends to 14 and 15 year olds? If it does, what will the government do so parents can exercise that right?

[Ethel Blondin-Andrew, Liberal, Western Arctic, NT]

Mr. Speaker, I have spoken to many young people. I have had contact with a lot of youth workers who believe every step we take in terms of legislation protecting them as well as children younger than them must be carefully examined. That is why the Government of Canada is undertaking consultation.

As I indicated, one's own visceral beliefs must sometimes be set aside to do the right thing for young people. One of the concerns young people have is that they too would be criminalized in the process. They want to know they would have not only protection from predators but from a system that could unduly confine or prosecute them. They do not want to be doubly victimized by both the predator and those proposing to protect them. We must give them that.

No age of consent has ever been non-controversial. Whether it is for political purposes or for providing services it has always been difficult. That is why the Government of Canada is undertaking consultations across the country.

[Bill Blaikie, NDP, Winnipeg—Transcona, MB]

Mr. Speaker, on behalf of the NDP I would like to begin by saying how unsatisfactory this is. We are trying to deal with an issue as difficult as the issue the Alliance motion has put before us in the context of a one day debate on a motion which we either have to vote up or down. This is a difficult situation for the House to be put in, for parties to be put in and for individual members to be put in.

Perhaps it is unavoidable in some ways but it seems to me it was avoidable at one point. We had an opportunity to look at these issues in greater depth than we are now able to at least today, but we passed it up. Again it is partly because of the politics that attends this kind of issue.

People want to do a good job writing laws that deal with the issue of child pornography. Very often they are prevented from doing so by being in the position of either passing bad laws or bad motions because there is a willingness on the part of others in our political universe to charge them with not caring enough about child pornography if they do not hurry and pass the motion or the legislation.

In terms of amendments that came back to us from the Senate on Bill C-15A and in terms of this motion, we are now dealing with a situation that would have been preventable in part if we had been able to take the time to do Bill C-15A properly, or that part of Bill C-15 which was carved out of the original Bill C-15. However, because it dealt with child pornography and a number of other issues, and I am as guilty as anyone else in this, we said, no, let us just pass it and get it through.

Eventually the government buckled to the pressure. Instead of having that bill go through committee and having that part dealing with child pornography being considered properly, there was this sense that anyone responsible for any delay on that was somehow an accomplice of child pornography and therefore the bill had to be rushed through. In some sense now we are dealing with the consequences of not being able to look at that bill as thoroughly as we should have. Today we are debating an opposition day motion and we are basically in a similar position.

We are being asked to vote for something which, depending on one's point of view, one could not quarrel with the principle that the government immediately introduce legislation to protect children from sexual predators. Who could be against that? Yet the motion goes on to include thus, thus and thus. It is not well worded in some respects and does not really reflect some of the concerns people genuinely have, in that if we are to implement some of the measures that are included in the “including” part of the motion, there are things that need to be taken into account that are not.

If we were to go back far enough we could fault the government for not bringing in a piece of legislation having to do with child pornography alone. Then we could just deal with that. Instead original Bill C-15 before it was split into Bill C-15A and Bill C-15B, had child pornography and various other amendments to the criminal code having to do with police officers, et cetera. There were a whole bunch of things. Some were quite simple and one could just be for them and pass them. Others, as we have come to know more probably than we would like to through various court decisions, were complicated, such as this child pornography issue.

If the government had introduced that part of Bill C-15 which dealt with child pornography alone and allowed the committee to do a proper job, and if opposition parties had not taken the view that it had to be rushed through, there might have been a better job done. Then we would not be in the position we are in today.

We are of two minds, frankly. One is whether to vote for the general intent of the motion, which is to say that the government should introduce legislation to protect children from sexual predators. But we realize that the House really is not of one mind as to what that legislation might look like. It is a political dilemma in some respects because it goes beyond the principle in the motion to talk about, for instance, raising the legal age of consent to at least 16 years.

I know that members of the Alliance have said it is not their intention in any way to criminalize sexual relations between teenagers. I am glad to hear that, but the motion does not say that. In fact some would argue that the age of consent is 14 years in one respect but 18 years in another respect. What is it that is intended by the legal age of consent being raised to 16 years? What is the intent with respect to the 18 year old threshold that we also find in the law?

Having said that, I myself as the NDP justice critic asked the then minister of justice, now the Minister of Health, when she was before the committee I believe on Bill C-15 whether or not the government was intending to act with respect to the legal age of consent. I do not want to speak for other governments but I believe provincial ministers of justice have raised this with the federal ministry of justice. There is a feeling that something needs to be done about the age of consent. I am not unsupportive of that as the NDP justice critic. However it is a matter of some detail as to how one goes about doing that in the criminal code and the motion does not reflect that.

With respect to the child pornography aspect of the bill, many people are concerned. The member for Palliser stated it well on our behalf yesterday when he read letters from his constituents. People are concerned about the so-called Sharpe decision and the fact that artistic merit was used as a defence against charges of possessing what I believe were stories, which by anyone's judgment except perhaps Mr. Sharpe's and a few others, are offensive. If one takes a certain point of view with respect to child pornography stories, they may well actually contribute to sexual crimes by virtue of their existence and the relationship between their existence and the effect of their existence on the person who has them in their possession.

What we need to debate in the House is the appropriateness of the artistic merit defence when it comes to child pornography. I would bet there would be divisions between individuals within parties on this issue as it is not a question of one party versus another necessarily. There is nothing written in the evidence so to speak which says that child pornography should have this particular defence available to it, even in the very limited form that the supreme court has made it available.

For instance, we do not permit artistic merit to be a defence when it comes to hate. We have carved that out and said that artistic merit does not cut it as a defence when it comes to hate literature. We should look seriously at whether or not we should have a similar, but obviously not identical, carve out, when it comes to child pornography. Just what that would look like would be a matter of some deliberation.

As I have said in the past, the artistic merit defence is something that should be referred to the Standing Committee on Justice and Human Rights. The member for Palliser said that yesterday on our behalf in the debate on the amendments to Bill C-15A. We need to look at these decisions. We need to hear from people who are making very strong arguments that this is not a defence that should be available.

Of course, we need to hear from people who say that eliminating this defence would in some way or another endanger freedom of expression in other areas of expression. I would hope that even those who are strongly supportive of the artistic merit defence are not doing it on the basis of their attachment to or out of any defence of child pornography. They are doing it presumably because they are concerned about the effect that rejecting such a defence might have in other areas. It seems to me that is the moot point of the issue before us.

I say once again how much I regret that as a House we are not able to deal with this in a satisfactory manner in terms of process. We get rushed when we should not be rushed. Parliament has been rushed a number of times in my experience. A couple of times, certainly in retrospect, people have judged that we have passed bad law or law that would not stand up in the courts, et cetera. Although this is not a piece of legislation, we should consider whether or not we are doing the same thing again today.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Speaker, I want to ask the hon. member to comment on something that concerns me a great deal about the motion.

I agree with him that on an issue as complex as this we must sit down and think clearly so that we do not do the wrong things for the right reasons. We must clearly understand the issues of sexual exploitation of children, which all of us in the House are opposed to, completely and totally. I have spent a great deal of my time as secretary of state for the status of women working with the Minister of Justice dealing with the issues of commercial sexual exploitation of children and youth. It is an abomination and we must work very hard on that issue.

However, the term legal age of consent and raising it to 16 concerns me. It is not about sexual exploitation but about the sexuality of young people below the age of 16 and their ability and right to consent to engage in sexual activity at the age of 15 or sometimes at the age of 14.

I recall clearly that sexual activity in young people was beginning at the age of 13 when I was practicing medicine. I remember that it was a very difficult time for physicians who were trying to help those patients to make the right decisions with regard to issues of sexually transmitted diseases and pregnancy. How do we help these young people? How do we discuss birth control and the prevention of sexually transmitted diseases? How do we talk about the issue of safe sex with these young people?

First and foremost there must be a recognition that young people under the age of 16 do have a sexuality that they need to express and engage in consensually with each other. That is what concerns me about this age limit that we are placing here. Second, what happens to physicians and other health care providers who are helping these young people through these difficult times? They discuss sex in a logical and clear way in terms of the pros and the cons and talk about protection, what the risks are, and what the up sides are of this issue. What might this prohibit when we talk about appear to describe children engaged in sexual activity?

Does that mean that a physician counselling a young person below the age of 16 would be considered to be describing or appearing to describe children engaged in sexual activity? Would it mean that two young people at the age of 15 who mutually consent to have sex would suddenly be indulging in an illegal activity? Is that an appropriate thing? Would it mean that when health care workers give these young people either condoms or other forms of birth control they would be doing something illegal?

There are huge ramifications to this consent issue that concern me. I wonder if the hon. member could comment on this because for me, the problem of appearing to depict means that a young girl of 15 cannot write anything in her diary about her relationship with a young boy of 15 with whom she had sexual activity. How she writes that would be apparent to depict the engagement in sexual activity. Those are the concerns I have.

I understand the intent of the motion and I do not have a problem with the intent. For many of us who are parents and physicians, we are all concerned about exploitation of children and youth and the engagement of sexual activity without consent. For me this age of consent is a major concern.

[Bill Blaikie, NDP, Winnipeg—Transcona, MB]

Mr. Speaker, the hon. member has asked a lot of questions and I will not pretend to be able to answer them all. However, the fact that so many questions can be asked about what this means points to some of the difficulties that I expressed about the motion. I do not know exactly what it would mean or what the motion would mean. I know what Alliance members have said about what it means but that is not what the motion says.

It is legitimate to be concerned as to whether or not this would have the effect of criminalizing sexual activity between people who are under the age of 16. It does not for instance register the caveat, as I think exists in the law now, if there is not a big age difference between people involved and that sort of thing.

I heard the member say that is taken for granted within the motion. Is it? Perhaps the motion should have said that to begin with.

Having said all that, what the member raises in terms of physicians instructing young people with respect to birth control or sexuality et cetera is the sort of thing that could be done without depicting or describing children engaged in sexual activity. There is probably a way around that, but clearly the member raises some important concerns.

What it reflects, and I do not say this about the member's question but just generally, is that as a society none of us are certain about what level of responsibility we want to assign to young people at various ages. There are mixed messages coming from the House in a number of ways.

On the one hand we have people arguing that children as young as 11 should be held responsible by criminal law for break and entering, property thefts or other crimes. There is a certain amount of cognitive dissonance here. On the one hand we want to drive down the age of responsibility when it comes to a bunch of things that are regarded as criminal and on the other hand we want to drive up the age of responsibility when it comes to sexual matters.

That may be a good thing depending on how we do it and what it includes. There is a kind of confusion in our collective mind about responsibility and when it kicks in and whether it kicks in at different ages with respect to different kinds of activity.

Outrage is appropriate to some degree when it comes to some of the terrible things that go on, but humility is also in order in the sense that this is not an easy question and there is clearly a lot of confusion with respect to the whole notion of responsibility and how it should be described and how it should be enforced.

[Reed Elley, Canadian Alliance, Nanaimo—Cowichan, BC]

Mr. Speaker, I am the father of eight children. I have a 33 year old daughter who 20 years ago was 13. I have an 11 year old daughter who will be 13 in a couple of years. I have a 15 year old daughter who was 13 a couple of years ago. I do not know whether hon. members who just spoke have children of that age in their homes, but I do.

I have seen over the course of 20 years our society force young people to grow up too quickly. The media, fashion magazines and television have an incredible effect upon our young people. I have seen them forced to grow up physically. The natural changes that go on in their bodies seem to happen at an earlier age. Then everything else around them forces them to grow up in that way.

I have to say as a father that I have not seen an accompanying environment in our society that helps them to grow up emotionally so they can cope with some of the horrible stuff that may come their way because of a drift that I call moral laxity. It has allowed this kind of filth to go on in our society and is bombarding our children at every turn.

I cannot for the life of me see why anybody, any member of the House, would be against us having the kind of debate that we are having today. It may result at some point in the government bringing legislation that would enable our judiciary, social workers, court officials, and police departments to have some kind of legal recourse to stop the sexual predators who are preying upon our young people at an earlier and earlier age.

Why would members vote against something like this when we know this is going on in our society? If we do not do something about it, it makes my job as a father, as a parent of teenage children, more difficult and I believe I speak for many parents in this country.

[Bill Blaikie, NDP, Winnipeg—Transcona, MB]

Mr. Speaker, if the member had listened to me I said we were of two minds about the motion. We do support the main thrust of the motion that the government immediately introduce legislation to protect children. However, the member would have to admit it is not absolutely clear what that legislation should look like.

With respect to his other comment, he talked about our children being bombarded. They are. This is one of the things that struck me over the years and I am glad he raised this. Most children are not bombarded with child pornography. They would be a minority, I presume. However, all children are bombarded, our whole society is bombarded, with the exploitation of sexuality that we find in advertising, for instance.

Advertising is becoming more unacceptable. The exploitation of sex, implications of adultery and all kinds of things are woven into various advertisements. This is done not by sick little minds that are writing dirty stories somewhere in remote parts of the country. This bombarding of our young people with advertisements and other things that exploit sexuality is being done by the so-called paragons of our society, by the corporate elite who pay people hundreds of thousands of dollars a year to come up with new ways to exploit sexuality.

I never hear anything about all the acceptable legal ways in which sexuality is exploited. I am not pointing my finger at the hon. member here. I am saying that it is kind of odd. I can remember preaching about this 25 years ago, one of my first summer charges, saying we are so concerned about pornography yet we are not concerned about all the latent pornographic images and the way in which sexuality is exploited. There is subliminal pornography and encouragement to elicit sexual activity built into the way we sell cars, clothes and everything, yet this is all called free enterprise. This is the ultimate human activity.

How many times have I heard the word marketing in the House as if it was some kind of mantra, as if anyone who is not into marketing is some kind of dumdum. I will tell the House that marketing is all about the exploitation of sexuality when it comes to many products. When the day comes that we have that kind of debate in here and we go after the corporations for the way in which they are constantly, every day, in every house, on every TV set exploiting sexuality, then we will have a real debate on our hands.

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

Mr. Speaker, this morning's debate is very important and addresses a very serious matter.

I believe that the Canadian Alliance member who introduced the motion before us has not taken the right approach when it comes to the debate he wants to initiate. If it is true that his objective is to protect young people, he has gone about it the wrong way by wording the motion as he has.

No one can be opposed to the creation of a committee or to the possibility of improving Canadian legislation in order to increase the protection of our children. I would be among the supporters of such a thing, but this is not what we have before us at this time.

If that is what he had in mind, he has gone about it in the wrong way. We could address the entire issue of television violence and the possibility of providing our children with more information in the schools. We could also look at the possibility of holding sensible and balanced discussions on sexuality and young people.

We could also address poverty, the question of extortion in the schools, and the drug issue. Something very close to sexual exploitation can occur when a young person needs money for drugs or something else. We have to look at what is going on in our schools to realize that we can do something about it.

However, this is not how the hon. member has gone about it. Let us not be taken in. In reading today's motion, we can see that it addresses two specific points which come up periodically with the Alliance and before that with the Reform Party.

The first part deals with the age of consent, that is raising the legal age of consent from 14 years to 16. A private member's bill was introduced by the Reform Party during the 36th parliament, and we heard all the speeches then. It did not get through. I will come back to this in more detail later on.

The second part of the motion is in response to the Sharpe judgment. Incidentally, yesterday I listened to speeches in the debate on Bill C-15 that made the hair on my arms stand on end. Whether one agrees or not with the court's ruling is one thing. However, dragging the name of a judge through the mud, as they did, a judge who rendered a decision in the Supreme Court of British Columbia based on the statutes that exist in Canada, that is quite another story.

Justice Shaw rendered a decision. One might argue that is was not the best decision, but then the law must be changed. His decision was based on the law as it currently exists, based on the Canadian Charter of Rights and Freedoms, obviously, but also based on the criminal code.

There is good reason that we do not yet know if this judgment will be appealed or not. That is because there has been no decision yet. It might be wise to give the authorities, the crown attorneys and the government, a chance to decide whether or not they will appeal, but this has yet to happen. However, I challenge the Canadian Alliance to find where the judge made an error in law in this ruling.

Before dragging the judiciary through the mud, as the Alliance did yesterday, which discredits to some extent the position it is taking, I would like them to do some thinking.

I myself have been doing some thinking on the motion we are debating today. Certainly, if I wanted to play petty politics, like the Alliance is doing, I would applaud the motion and say, “Yes, this is terrible. All of these guys who are taking advantage of our young people and abusing them, and so on, they should be thrown in jail, regardless of the legislation and the age”. However, that would not be responsible. We are hear to act responsibly.

Let us compare the past and the present situation. Is there room for improvement? The age of consent of 14 has been around for quite some time. If we look at the criminal code, and even before the criminal code was adopted in 1892, we see that for women—because women accept a great deal—the age of consent has been set at 14 since 1890.

With the introduction of the criminal code, in 1892, this was included, again to protect women. But even then some distinctions had to be made. There were exceptions, because in those days, people were getting married at a very young age, even under 14. All this to say that if we look at the evolution of the legislation, we realize that, since 1892, there was never a full ban on sexual relationships with young girls over the age of 14.

Earlier, a Canadian Alliance member said “I speak as a father”. It just so happens that I too am a father. I have a 12 year old daughter and a nine year old son. They are much more mature than I was when I was their age. Do we have to go backwards? I do not think so. I believe that someone who is not handicapped, who does not have psychological problems, can give consent by age 14. This is not ideal and I do not wish this to anyone, but I think that, in its current wording, and considering the whole related jurisprudence, the criminal code provides good protection. A balance is struck and this is what we must seek.

To engage in petty politics as they want to is one thing, but they should be a little more logical in the process. The political party that is bringing forward this motion to raise the age of consent from 14 to 16 is the same party that is largely responsible for the amendments to the Young Offenders Act to lower the age of criminal responsibility from 16 for 14 for serious offences.

Based on the logic of the Canadian Alliance, a 14 year old who commits a criminal act is fully responsible for his actions and should be tried as an adult. Under the recent legislative changes made, provinces such as Manitoba, Alberta or British Columbia will be allowed to try 14 year olds as adults when they commit certain acts. I can assure the House right now that, in Quebec, we will use a ministerial decree to exclude 14 and 15 year olds from these provisions. This will not be the case in the provinces that are represented by the Canadian Alliance, where right wingers are very influent. They will treat 14 year olds like adults when it comes to criminal offences, but these same young persons would not be old enough to give their consent to sexual relations.

Once again, I urge them to be logical. There is an obvious contradiction here. Just now, I heard them say 10 years old. They even want to lower the age at which the Young Offenders Act would apply to ten. I certainly hope that someone, somewhere, will finally draw the line.

It was largely because of them that the legislation was amended. Fourteen and fifteen year olds will be treated like adult criminals, but the age of consent must be raised to sixteen. This makes absolutely no sense. Even in the criminal code, consent per se is not easily established. There are rules, specific criteria for arguing such consent. It is very complex. Even the supreme court has ruled on this more than once; the criteria are very clear.

Since I am an MP from Quebec, I look at what is being done in Quebec. Under the Quebec civil code, a 14 year old is deemed to be of full age for all acts pertaining to his employment or to the practice of his profession. He is also considered to be old enough to enter into contracts alone to meet his ordinary and usual needs. Under the Quebec civil code, a young person is recognized has having the power of discernment of an adult.

That having been said, at some point, it becomes necessary to amend the legislative provisions if it is felt that they do not reflect what society is prepared to tolerate. In Quebec, as far as the civil code is concerned, 14 year olds may act as adults. They can also be emancipated and take responsibility for some of their actions, although they are not adults. We need to be clear about this. As they mature, they are able to make certain distinctions. Fourteen seems to be a good age as far as the provisions of the criminal code go.

So much for the first part. I have taken the time to speak to this at length because it troubles me. This is not the first time the Canadian Alliance has acted in this way. I would like to see this party be logical in its approach to young people. I too want to protect them, but I also do not want to see their rights endangered.

The second part of the opposition motion consists, as I have said, in opposing the finding in the Sharpe case. As we know, the Sharpe case got to the Supreme Court of Canada, and then was brought back before the courts and retried. Justice Shaw of the British Columbia Supreme Court also brought down a verdict.

The second part opposes all of this. Even in connection with the Supreme Court of Canada's judgment in Sharpe, this set some guidelines and directed the debate properly in a free and democratic society such as ours. I therefore cannot understand the tenacity of the Canadian Alliance on this matter, unless it is for political gain and visibility.

As far as the Sharpe decision is concerned, I shall read a brief excerpt from it:

Accordingly, s. 163.1(4) should be upheld on the basis that the definition of “child pornography” in s. 163.1 should be read as though it contained an exception for: (1) any written material or visual representation created by the accused alone, and held by the accused alone exclusively for his or her own personal use.

Thus, this entire aspect was excluded in a way. Once again, this problem is not going to be solved by lowering the age from 16 to 14. People who have problems are going to continue to have them even if the age of consent in the criminal code is raised to 16 years.

The second part of the judgment reads as follows:

(2) any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use—

This is understandable. The man in question may be unbalanced. I am not familiar with his specific situation. As far as the legal and criminal aspect is concerned, however, as well as application of the criminal code or the charter of rights and freedoms, at some point guidelines have to be set, as I have said. And we are within them.

If we do what the Canadian Alliance wants us to do—I do not know if they have thought about it—which is to go against the ruling made by the Supreme Court of Canada, to try to do in the legislative branch what the courts did not do in the judiciary branch, because they applied the Canadian Charter of Rights and Freedoms, this means that it would even be prepared to promote the use of the notwithstanding clause.

Did the Canadian Alliance say that it was prepared to use the notwithstanding clause to sort of validate the approach that it is proposing in its motion this morning?

I clearly remember that the Canadian Alliance was opposed to using the notwithstanding clause in the fight against organized crime, even though organized crime is a scourge that may be even more serious. I am not saying that pornography is not important. That is not the point. But in terms of the impact, of the monitoring problems, organized crime remains an even broader issue.

I think the Canadian Alliance is failing, both as regards raising the age of consent from 14 to 16 and blocking the decision in Sharpe. Therefore, going ahead with this motion would not make any sense.

If we look at the decision made by Justice Shaw, we realize that even the evidence adduced by the crown was insufficient to demonstrate beyond any reasonable doubt that the writings were advocating or encouraging sexual activity with a person under the age of 18.

Also, let us not forget that the individual was found guilty regarding the pictures, the use of films, etc. There is a whole part to which the criminal code could be applied, and properly so, when the evidence was adduced.

As for the other part, B.C. Supreme Court Justice Shaw even said that he did not have proof beyond any reasonable doubt that this individual, through his book, was advocating or encouraging sexual activity with a person under the age of 18.

Again, the Canadian Alliance is going about this the wrong way if it really wants to solve this problem, because the motion that it is moving would do nothing to solve this aspect, given that the judge had no proof. This is why I am saying that the Alliance had no reason to drag the judge's name through the mud because of this decision, because it was well founded when it comes to the issue of proof. This motion will do nothing to solve the problem.

I shall end my remarks here. Obviously, when it comes to the principle, the Bloc Quebecois will always fight to protect young people more. There is no problem when it comes to this.

We have introduced a number of private bills specifically to protect young people, whether it be from violence on television, drugs, or taxing. We have always been ready to intervene, and especially to improve legislation to protect youth. When the issue is clear, we support it. When it is vague, as is the case with the motion before the House, when it is not clear and says just about anything, that is a different story.

Yesterday, during question period, following a question from a member of the Canadian Alliance, I saw that the Liberals are interpreting it quite differently, very broadly. This proves that we do not even understand the motion in the same way. Based on the speeches made this morning, it is clear where the Canadian Alliance is heading with this, without spelling it out in the motion.

For all of these reasons, we do not support the motion, and I personally will be voting against it.

[Brian Fitzpatrick, Canadian Alliance, Prince Albert, SK]

Mr. Speaker, I find it interesting that the Bloc member would be shocked that a party would want to use the notwithstanding clause. I think in his home province of Quebec, the provincial government, with Bill 101, did in fact exercise the notwithstanding clause to deprive minorities of language right freedoms. It seems an unusual criticism coming from a Bloc member.

I want to make something perfectly clear. We do not intend to criminalize the victim in this situation, which is the child. The Bloc member surely cannot be saying that if an adult exploited an 11 year old or a 12 year old that we would charge the 11 year old or the 12 year old and bring that child to court. That is absolute nonsense. That is not the intent of this motion. The intent is to criminalize the actions of adults.

The member says we are trying to politicize the matter. In most United States jurisdictions the age of consent is 16 years. In England or Great Britain it is 16 years. In Ireland the age is 17 years. In Australia the age is 16 years. What we are proposing is pretty much in synch with what I consider as the civilized world.

The member says we want to complicate things. He indicated during his speech, and I am sure he does not want to be identified with the group or people who are asking for this, that some were even advocating lowering the age of consent to 10 years. The question I have is very specific. Who in the world in this country, who is responsible and reasonable, would advocate lowering the age of consent to 10 years? I would be curious to know who that is.

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

Mr. Speaker, I think that the member hears what he wants to hear. What I said concerns the Young Offenders Act. Furthermore, I noticed that he did not argue this, because his arguments on the distinction lack credibility.

What I said with respect to ten year olds is that the Canadian Alliance members want to lower to ten the age at which the Young Offenders Act applies. They have always been up front about this; they have stated their views repeatedly. Of course, the age of consent is different. What they are saying today is that they want instead to raise it from 14 to 16.

What the Canadian Alliance member does not understand is that they are not being logical from a legislative point of view. They themselves say that a 14 year old can be treated like an adult when it comes to criminal offences. That is what they want; that is what they sought. They are very cosy with the Canadian right and pushed until the Liberal government caved in and lowered the age of criminal responsibility to 14.

Today, these same members want to raise the age of consent from 14 to 16. It is clear to anyone listening that they lack credibility.

[Dan McTeague, Liberal, Pickering—Ajax—Uxbridge, ON]

Mr. Speaker, I am pleased to ask a question of the hon. member. I know he has spent a considerable amount of time as a lawyer and is in the practice of ensuring that young people are protected by the law to the maximum amount. However I ran from my office to ask him a couple of questions about his interpretation of the Shaw decision with respect to Sharpe, in particular about his belief that the Shaw decision did not run afoul of the direction of the Supreme Court of Canada and that there was in fact no error in law.

Could he square for the House of Commons the comments made by Shaw, which I believe went beyond the interpretation of the Supreme Court of Canada, that materials in question detailing abduction, rape and sexual torture of young boys as adult males “may well be designed to titillate or excite the reader if the reader is so inclined and arguably glorify the acts described therein”.

Would the hon. member not conclude, as I did, that such material ran afoul of the SCC explanation that the prohibition against material which viewed objectively sends the message that sex with children can and should be pursued ought to be prohibited?

Shaw also pointed this out in his decision with respect to artistic merit in throwing out the community standards. The use of metaphors, allegories, themes, incredibly the victim's fortitude in enduring sexual abuse by pedophiles, was found by Justice Shaw to be a theme, a plot sufficient to establish the requisite artistic merit for justice. Based on this, would the hon. member not agree that, because of what happened with respect to Sharpe's writing to possess the requisite artistic merit to constitute a defence of the charge, that once again this would appear to be yet another example of an error as Justice Shaw ignored the objective standard imported by the supreme court into the artistic merit defence?

There are two clear questions that I think raise the eyebrows of many of us who have spent a bit of time looking at the Shaw decision and his apparent taking of liberties of the direction of the Supreme Court of Canada. Would the member not then feel that his earlier comments in reference to the motion of the Alliance Party were somewhat premature and perhaps did not show a sufficient amount of due regard to the actual decision of Justice Shaw?

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

Mr. Speaker, it is not all that clear that Justice Shaw failed to follow the direction provided by the Supreme Court of Canada in the Sharpe decision, because questions are still being asked. No authority has decided to appeal from this decision, so it cannot be all that clear.

In considering an issue such as this, my first thought is that we must look for similarities with other approaches to the criminal code. The strongest analogy that I can see is with hate propaganda. I am not the first one to mention this. Others have looked at the issue of pornography in relation to hate propaganda. Just as hate propaganda must incite, promote or advocate something, so too must child pornography.

Looking at the Shaw decision by the Supreme Court of British Columbia, one realizes that even if that court had not accepted the concept of artistic merit, the accused would have been acquitted anyway. According to the judge who heard the evidence, who examined the documents, who examined the entire matter in a mature manner, knowing full well that this was a highly visible case, the prosecution was not able to prove beyond a reasonable doubt that these works advocated or counselled sexual activity with a person under the age of 18 years. There was no incitement.

Our society abides by the rule of law. We are told this with such frequency in this House that the hon. member must realize it, as must all other members as well. The offence of which a person is accused must be looked at closely. If one wishes to be defended properly, and if one wishes to have a decision based on law, the charges must be looked at. The judge then decides whether the crown has proven its case beyond all reasonable doubt. This is the basis of criminal law in Canada. The crown must prove its case beyond all reasonable doubt.

Is this too much to prove in this case? That is another debate. However, for as long as these rules of law, which have been in place since time immemorial, have not been changed, they have to be applied. This is how criminal law works. The charges must be proven beyond all reasonable doubt.

The judge heard the evidence, saw the pictures, viewed the videotapes, and reached the conclusion that, as far as incitement is concerned, there was none present. That is why Justice Shaw reached the conclusion he did.

This may not be satisfactory to us, but that is not the judge's fault. He merely applied the rules of law. When all is said and done, when these are properly applied, when the evidence has been properly provided, it is my opinion that counsels for both the crown and the defence are satisfied with the way things have been done, particularly with the guidelines provided by the highest court in the land, the Supreme Court of Canada.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, I am so pleased to have the opportunity to speak on this very important motion, this very important issue with which parliamentarians and Canadians have been seized for a number of years and which has been brought sharply into focus, pardon the pun, by the Sharpe decision which has come down from the British Columbia court. This decision, I think, has caused many Canadians to question loopholes and some of the lax criminal justice response we have when dealing with the issue of child pornography.

I will be splitting my time with the hon. member for St. John's East. As a very fine member of the Progressive Conservative caucus, he is one who for many years has been advocating a stronger position from government in relation to this serious issue of pornography and its distribution.

The motion is a motion which I take to read as taking these steps “including but not limited to”; I see the motion as a gateway to a more activist and more interventionist approach on the part of government when dealing with this issue. Our Progressive Conservative Party wholeheartedly supports any legislation which will help to address and to eventually eradicate child pornography.

The myriad of problems surrounding this issue, including the hamstrung ability of the police to investigate in many instances, as well as the increased use of technology and the proliferation of this type of disgusting material becoming ever more readily available through the Internet, poses serious challenges for the law enforcement community. Investigation on the part of the government into all aspects of what we should do is very timely and extremely important. In fact, it is so important that I can think of no issue that the Department of Justice could be more actively engaged in at this time.

There are positives and negatives that we must look at when considering this issue of age of consent. We look forward to the government clearly putting on the record its position and what active role it might play in assessing the complications of this controversial issue. In fact, I believe we are going to hear divergent opinions on this issue. One of the perverse elements of the way in which the motion currently is worded is that it actually could have a negative impact on some criminal code sections by lowering the current age of 18 to 16. This is what we have to keep in mind. It is not simply a matter of a paintbrush sweeping across the code and stamping the age of 16 as being the appropriate one. There is a danger here.

With respect to this issue, Bill C-15, passed in 1989, addressed the question of age of consent, replacing the prior unsuitable legislation. That bill prohibited adults from engaging in virtually any kind of sexual contact with boys or girls under the age of 14. That bill also made it illegal for adults in positions of trust or authority to have sexual contact with minors between, and here are the key words, the ages of 14 to 18. Therefore, by simply stamping 16 in its place there is a danger that a very naive, unworldly youth of the age of 17 might fall outside the parameters. We have heard the sad tales of people in positions of trust, those involved in the church, those in the school system, foster parents and sadly even parents, who take advantage of youth who are under the age of 18, not 16. We want to be careful not to narrow further the ability of the prosecution to proceed with charges when positions of trust are involved.

I note with interest that in 1981 the current Prime Minister, then the justice minister, proposed Bill C-53, which would have retained a broader version of the prohibition against sexual activity with a young person between those ages of 14 and 18. That bill was not adopted.

Raising the age of consent to 16 would have to be accompanied by an exemption permitting sexual contact with someone between the ages of 14 and 16 if there are only a few years difference between the actual partners. We are into an area of morality and we are into an area of practicality, one in which we would have to proceed with some caution.

The overall effect of the Sharpe decision by Mr. Justice Shaw has many in society recoiling with dismay that a learned judge would in fact open the door to potential pedophiles and those who take advantage of youth, who denigrate images and engage in writings that have a very corrosive effect on societal norms.

Mr. Speaker, as you would be aware, Mr. Justice Shaw in handing down the Sharpe decision in my view broadened the interpretation of the current exemption or defence of artistic merit. Not only did he acquit Mr. Sharpe on some of the charges dealing with the material and whether he was in fact advocating or counselling illegal sexual activity, there was language in the obiter, that is, language in part of his decision, which in my view can be interpreted as, or one could glean that, it is expanding the artistic merit definition. I will quote from page 40 of the decision:

Any objectively established artistic value, however small, suffices to support the defence.

Justice Sharpe went on to state that the “community standards” considered in determining obscenity do not apply, and further, the creator need only point to objective fact to support the defence and then the crown must disprove it.

There are real problems with that. When one looks at the definition of a story, if you will, that would fall into the category of having some artistic merit, it appears that the base level is that the story have a beginning, a plot and a conclusion. The material, however offensive and disgusting, is somehow to be gleaned as having artistic merit if it meets this very base level. I would suggest that we are mandated, obligated, to respond with legislation to close this legislative loophole.

The Progressive Conservative Party has been supportive in the past of the law enforcement community, victims' groups and child advocates who are constantly tasked and constantly struggling with the lack of resources available to them to undertake this monumental task. As I have said before, what could be a more fundamental issue? We know that the lasting impact on victims of sexual abuse is sometimes a life sentence. Very often the mental anguish, the detrimental effect on the development of young people, is everlasting. It is certainly incumbent upon parliament to take every available opportunity to make for a safer and kinder society.

We have heard from victims as recently as today at the justice committee. There was a very telling comment that I think warrants repeating. It dealt with the need for victims to have more support, a stronger voice, an ability to be heard in a substantive way by the triers of fact, by the individuals who ultimately will decide whether a person will be incarcerated and, after the fact, whether the person will be released. It talks directly to the issue of respect for and dignity of victims, whereas victims very often are unwittingly and irreversibly brought into a cold and foreign forum in which they have no control and of which they have no prior knowledge.

It is clear that there has to be an equitable approach taken by the government. This is why we need a victims' ombudsman's office.

We have a budget specifically set aside for the commissioner of corrections to deal with the concerns, some legitimate, of federal inmates. There is a federal budget allocated to ensure that inmates, some of whom are serving time for absolutely heinous crimes and have victimized numerous citizens, have an office where they can go if their steaks are burned, if they are not getting access to the Movie Channel or they do not have the ability to log on.

Yet victims very often are completely ignored. They have no outlet, no central office in the country, where they can go to find out about important things like parole hearings or information pertaining to response to treatment.

In conclusion, we very much support the motion before us, but I would like to seek unanimous consent, if I may, to move an amendment to the motion. I move:

That, after the words “that the government immediately introduce legislation to”, the substitution be made of the words “eliminate the legal loophole of artistic merit and other measures to enhance the protection of children from pedophiles and child pornographers in light of recent court decisions”.

I anxiously await the positive response to my amendment from members present.

[The Acting Speaker (Mr. Bélair)]

I will take the amendment under consideration and come back to the House.

[Dan McTeague, Liberal, Pickering—Ajax—Uxbridge, ON]

Mr. Speaker, I want to thank the hon. member for today's motion. I think that the motion itself speaks very eloquently to an opportunity to bring all sides of the House together, to avoid the contentious issue of having the effect of dropping section 153, consent and age of trust, down to 16 years of age, which I am sure was not the intent of those who drafted the motion. It is nevertheless a very glaring problem with the motion.

As the hon. member knows, as do you, Mr. Speaker, this issue is not new to me. In fact, we had an opportunity to raise the profile of this issue rather significantly last week, with a number of experts as well as our debate on Bill C-15A. I will not bore the House with the details, but I do have a question for the hon. member.

In terms of the motion being debated here today and given issues and options letters we have sent to various attorneys general across Canada, does the member indeed believe that there may have been an error in law committed by Justice Shaw, upon reflection of the supreme court decision of last January, which might provide grounds for an appeal? If I am not mistaken, we still have two or three days to try to encourage the attorney general in the province of British Columbia to enact that as a means of demonstrating that at least on the court side the fundamental flaws in the Shaw decision with respect to Sharpe are being recognized.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, I am pleased to respond to the question and in particular to the member for Pickering--Ajax--Uxbridge who has been a leader on the government side with regard to this issue. I hesitate to say this, but I wish we had more like him on the government side. I would rather have more like him on the opposition side so we could be in government and perhaps bring to fruition some of his good work.

There is no question in my mind that there is grounds for appeal within the decision written by Mr. Justice Shaw in the Sharpe case. The member made a very important point in his comments when he said the clock is running. The appeal period is about to expire within a number of days. That is why I called upon the Minister of Justice last week to make a strong intervention, to make a strong representation to the attorney general of British Columbia on behalf of Canadians nationwide to proceed with an appeal. I also called for the Minister of Justice and Attorney General of Canada to join as an intervener in that appeal process.

I feel that this is certainly what should take place, along with pursuing all other available avenues to close the loophole and to do more to protect children. More can be done with respect to disclosure. More laws can be passed to narrow the proliferation of pornography everywhere. This two pronged approach, I would suggest, is the way to go. The appeal should proceed, but more important and perhaps more timely would be the passage of legislation in this place that would specifically address this broadened, expanded view of artistic merit as it pertains to child pornography. There is no artistic merit in child pornography. We have very strong laws against the proliferation of hate, of racism and of any sort of material in those areas. There is no reason whatsoever why we cannot pass stronger laws to ban outright any sort of pornographic material, written or otherwise.

[Vic Toews, Canadian Alliance, Provencher, MB]

Mr. Speaker, I would like to ask the mover of the amendment about what exactly he means by a loophole. Second, how would the motion as presently drafted prevent the government from taking any legal action in order to address any so-called loopholes?

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, I do not think I heard the member correctly when he mentioned organ donations. I do not believe I made any reference to that.

With respect to how the government should respond, it is very clear that it has within its means the ability to draft legislation. It has a legion of Department of Justice lawyers who could certainly draft legislation that would simply eliminate within the criminal code the defence of artistic merit, which is found within section 163.1(6), as the member knows. The government has an incredible ability to address this issue.

With respect to the disclosure elements, today the police must to provide thousands and thousands of documents in some cases where a lot of information is garnered. The member is right when he suggests that a sample copy could be acceptable evidence. The government should not only be obligated but should be mandated by virtue of some of these decisions that have come down that have left children at risk.

[The Acting Speaker (Mr. Bélair)]

If I could get the attention of the hon. member for Pictou--Antigonish--Guysborough, I would ask if he has consent from the mover of the main motion to table his amendment? Under rule 85 this consent is absolutely required.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, I have not received any confirmation of that. I came directly to the House. The mover of the original motion is here, so perhaps he could advise.

[The Acting Speaker (Mr. Bélair)]

Does the hon. member for Regina--Lumsden--Interlake Centre give consent to the tabling of the amendment?

[Larry Spencer, Canadian Alliance, Regina—Lumsden—Lake Centre, SK]

Mr. Speaker, at this point there is no consent.

[Norman E. Doyle, Progressive Conservative, St. John's East, NL]

Mr. Speaker, I want to say a few words on the child pornography issue as it relates to the recent Sharpe case in British Columbia. This case, as we are all very much aware, found its way to the Supreme Court of Canada which made a ruling giving courts guidelines on how to deal with these matters.

The supreme court ordered that the Sharpe case be retried and it is the decision arising from the retrial that is causing the kind of debate that we are having today in the House of Commons.

The rules on photographic child pornography are relatively clear. In the retrial, Mr. Sharpe was found guilty of possession of child pornography with regard to photographs that were subsequently found in his possession. However he was found not guilty with regard to certain written pornographic materials in his possession, and it is in that area on which I want to address and focus my remarks.

Mr. Sharpe successfully defended himself with regard to his written material by using two defences: first, the material did not openly advocate committing illegal acts with children; and second, the materials had artistic merit.

It is difficult to imagine that the federal government, upon hearing the result of that case, would not be rushing into the House of Commons with a bill in hand to protect our children from people who prey upon children. Instead, it appears, and I hope I am wrong, that government members have to be dragged kicking and screaming and forced to deal with the issue.

If the debate today does nothing more than to draw attention to that fact and to somehow bring attention on the government for not acting, then it will be a very successful debate.

In the court ruling, the judge pointed out that subsection 163.1(1)(b) of the Criminal Code of Canada states that child pornography means:

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years--

The judge points out that the supreme court's earlier decision on the Sharpe case provides guidance on the meaning of “advocates or counsels”. In order to be guilty of an offence under that provision, the supreme court stated that the advocacy must be up front and active. It cannot be subtle or hinted at. It must be seen as actively inducing illegal behaviour with children.

The trial judge found the written material in Sharpe's possession to be morally repugnant but that it fell short of openly advocating such activities. Therefore he was found not guilty under section 163.

I want to point out that everywhere I go there seems to be a desire across the country to have this law tightened up so there are no grey areas. There can be no grey areas where children are concerned.

The other defence used successfully by Sharpe was the artistic merit defence. The trial judge pointed out that this was covered in the Criminal Code of Canada under subsection 163(6) which states:

Where the accused is charged with an offence under subsection (2), (3), or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose. v

It seems to be very complicated and that is why the peddlers of pornography can easily get around the kinds of laws that we have today.

Unlike the obscenity provisions of the criminal code, there is no imposition of community standards in determining what is pornographic. In its guidelines, the supreme court stated that if allegedly pornographic materials have even minimal artistic merit, then the owner of the material must be found not guilty. The onus would be on the crown to prove beyond a reasonable doubt that the materials have no artistic merit, which is very difficult to do. In other words, if a written article is 90% pornographic and 10% art, the writer must be found not guilty of possession of child pornography by virtue of the material's artistic merit however limited the artistic merit might be.

What kind of a law is that? We have to ask who would draft the laws and legislation that would leave a loophole big enough to drive an 18-wheeler through, where a written article can be 90% pornographic and 10% art and the writer will be found not guilty because the 10% has artistic merit.

We in parliament very often blame the judges for coming to the various decisions they come to but more of the blame should be placed right here on us. The people who draft and pass these laws are to blame. The judges can only interpret what is given to them by the lawmakers and we happen to be the lawmakers. We have a great responsibility in this regard to close these legal loopholes. Therefore the law needs to be changed.

There must be a prohibition against child pornography which catches more than those materials that actively promote illegal acts with children. Materials that depict degrading acts with children that can suddenly introduce and induce such behaviour have to be banned as well as materials that create an atmosphere that might lead to illegal behaviour.

The law needs to more accurately reflect community standards with regard to this behaviour. Figuratively speaking, we should not need to be caught with a smoking gun in order to be found guilty. Having possession of the gun itself should be enough to warrant conviction.

When will parliament start thinking more about the protection of our children and less about the civil libertarians out there who are preaching artistic merit and how important that is? The importance of our children should be the focus of our attention continually here in the House, not how important artistic merit is. We all realize that artistic merit is important but the protection of our children must come first in our society. When it comes to artistic merit, the law must be change.

If we are to err here, we should err on the side of child protection not artistic merit. However parliament seems to have forgotten that we are not talking about consenting adults where one person's art is another person's pornography. We are talking about little children, people not of the age of consent who deserve the maximum protection that parliament can write into the laws of the land. In matters of child pornography, community standards should carry more weight than artistic merit or artistic licence, and our laws should be amended to reflect that.

I therefore call upon the government to make changes to the laws covering child pornography, changes that reflect community standards and put the welfare of little children in our society first. The government must act and it must act quickly. The lives of children and their well-being are at stake here.

I am not a lawyer so I do not know nor can I recommend how the law should be changed or framed to plug the legal loopholes. However I do know that the only requirement we need in the House to plug that loophole is the political will and desire to do it, the desire to see the most vulnerable in our society protected.

[Rick Casson, Canadian Alliance, Lethbridge, AB]

Mr. Speaker, I thank the member for his participation in our opposition day motion.

We are dealing with the exploitation of our children, the use and manipulation of our children by predators and pedophiles. Some issues that are intended to cloud the issue are being brought into the debate. We have to continually go back to the fact that we are trying to put forth a debate that in the end will result in further laws and further protection of our children.

I want the member to comment on one fact we heard last week at a meeting with some crime fighters which was set up by the member opposite. They indicated that the international police services consider Canada's child protection laws to be a joke. We have heard from the government side today that we have great laws and that the government is doing wonderful things to protect our children. It has been stated in meetings on the international stage that what Canada has on the books as far as protecting children is a joke.

Would the member comment on those issues?

[Norman E. Doyle, Progressive Conservative, St. John's East, NL]

Mr. Speaker, it is hard not to agree with the hon. member that some of the laws we have here governing child pornography, especially the kind of laws that deal with written material and artistic merit, are indeed a joke. I have heard many people in the legal profession and many police officers say the same thing. What the hon. member said has some merit indeed.

I go back to a comment I made earlier today. What kind of laws do we have here? We have to ask ourselves who is drafting the laws in this country of ours. I wish I were a lawyer. I wish I could argue the case from a narrow legal point of view, but I cannot do that.

The hon. member is correct. Some of our laws which are supposed to be designed to protect our children are just not getting past the courts.

Every now and then we blame the courts for falling short, but the blame belongs squarely on the House of Commons. We are the people who pass laws. The people who frame these laws, the lawyers, the civil servants, the deputy ministers must be asleep when we consider some of the loopholes in the law today. There are loopholes big enough to drive a truck through. There are loopholes that favour the predators, the people who prey on children and wish to spread that kind of filth around the country.

We have to be more vigilant. We have to have a greater commitment to the weak in our society. Who could be weaker and more vulnerable in our society than children? We have to concentrate on that.

Hopefully the framers of these laws and the government itself will come rushing to the House fairly soon with a law plugging the loopholes in the existing legislation.