Mr. Speaker, I will be sharing my time with the hon. member for Pickering--Ajax--Uxbridge. Unfortunately I only have 10 minutes so I will not be able to deal with all the aspects I would like to.
For the benefit of my constituents and others who may be listening I will begin by quoting the motion that has been moved. It states:
That the government immediately introduce legislation to protect children from sexual predators including measures that raise the legal age of consent to at least sixteen, and measures that prohibit the creation or use of sexually explicit materials exploiting children or materials that appear to depict or describe children engaged in sexual activity.
This is a motion. It is not an amendment to a specific clause of a bill. It is simply an expression of what the mover hopes is the view of parliament. I have absolutely no difficulty whatsoever in supporting the motion. However I qualify my support by rejecting as categorically idiotic any suggestion that the government is dragging its feet, has not protected or is not protecting children, or that anyone on this side of the House is not interested in protecting and looking after children. That is simply not the case. It is a matter of the approach we take to do that.
There are few people currently sitting in the House of Commons who sat on the Horner justice committee in 1993 when it considered the child pornography legislation that is currently in the criminal code. I am one of the few members of parliament who sat on the committee in my capacity as official opposition critic for the solicitor general.
For those who were not here and do not remember the history, the legislation was brought forward by the Progressive Conservative government of Brian Mulroney. It was not the first time he had tried to bring in legislation to protect children and had been attacked by numerous forces saying it was too draconian.
If members think the current legislation is not draconian enough they should put themselves in the context of 1993 when people criticized the Conservative government for making it too strict. There was a great deal of opposition even to the inclusion of written material. The proposal was that the legislation should deal strictly with photographic visual evidence and that written material was not a harm to children and should therefore not be prohibited.
I fought against that. We were in support of including written material. Memory has a way of fading and making one seem smarter than one was, but it is fair to say that if I went back to look at the transcripts I would see I had a problem with putting two things into the legislation: advocating or counselling; and the defence of artistic merit. I will get to both those things in a moment.
In any event, members on this side of the House and I hope on the other side will talk about some of the things the government has done since 1993 to continue to protect children. In the meantime the Sharpe decisions of both the Supreme Court of Canada and the Supreme Court of British Columbia have come down. That means we must revisit the issue and decide what we need to do to plug loopholes.
Let us make no mistake. Loopholes have been imposed by the Supreme Court of Canada which were not contemplated by the legislators who passed the legislation in 1993. I say that as a bald fact because I am one of them.
I support raising the legal age for consensual sexual activity between adults. I want to make that clear. I am talking about consensual sexual activity between adults. The motion says at least 16. I am prepared to consider 18 as the age because it is a matter of empowerment and lack of equal bargaining power. Someone who is not an adult does not have the same mental capacity to make rational decisions as an adult. The adult may therefore be able to take advantage of the child.
We can always come up with examples. Someone may have just had his 18th birthday and had sex with his girlfriend who is two days shy of her 18th birthday. We are not trying to come up with the ridiculous. We are trying to protect children. We must therefore come up with broad strokes that are reasonable to protect those who cannot protect themselves: the children of our country.
I have no difficulty in at least considering the pros and cons of increasing the age of consent not just to 16 as the motion calls for but to 18. We cannot drink in the province of Ontario until we are 19. We cannot vote until we are 18. Why should we be able to have sex at the age of 17 with someone who is 47? It makes no sense to me so I am prepared to consider that. That is one of the things the motion calls for: to consider ideas.
A real problem has arisen with respect to subsection 163.1(1)(b). Subsection 163.1(1)(a) deals with visual depictions of pornography. I am not talking about that. All these horrendous examples we have heard of visual depictions are against the law. Some judges in the country are not giving the kinds of sentences I would give if I were a judge, but that is a different issue. The maximum penalties are there. If we give someone a conditional sentence for the possession or making of child pornography we ought to have our heads examined.
However that is not what we are talking about. We are talking about any written or visual representation of children engaged in sex that advocates or counsels sexual activity. Then there are the defences: First, material does not constitute child pornography if it has artistic merit or an educational, scientific or medical purpose. I will not talk about educational, scientific or medical purposes. However I will talk about artistic merit because that is what Mr. Justice Shaw talked about in the British Columbia case when he handed down the second Sharpe decision.
We must be technical because we are passing laws that would restrict freedom in the broadest sense of the word. We must therefore look at things from a legal point of view.
I will quote Mr. Justice Shaw on the issue of advocating or counselling. He was referring to two things Sharpe had allegedly written. I say allegedly because I do not believe he necessarily wrote them. Pedophiles are notorious for trading things. One of the simplest ways of getting around something like this is for people to take someone else's filth, say they wrote it and claim it has artistic merit.
In any event, this is what Justice Shaw said:
[33] While Boyabuse and Stand By America, 1953 arguably glorify the acts described therein, in my opinion they do not go so far as to actively promote their commission. The descriptions may well be designed to titillate or excite the reader (if the reader is so inclined) but these descriptions do not actively advocate or counsel the reader to engage in the acts described.
[34] Nor, in my view, do Boyabuse and Stand By America, 1953 send “the message” that sex with children can and should be pursued. If that were the case, then literature describing murder, robbery, theft, rape, drug use and other crimes in such a way as to make them appear enjoyable would likewise be said to advocate or counsel the commission of those crimes. In my opinion, such literature is not what the “advocates or counsels” requirement is intended to capture.
In my opinion the judge is wrong. He has his opinion. I have mine. How do we deal with the difference of opinion? In my opinion, to use his words, we should change the clause. It should be changed along the lines of what the police officers told us last Tuesday. To the section I have quoted they would add “or a prominent characteristic of which is the description of sexual activity between a person under the age of 18 and an adult, the primary purpose of which is for the sexual gratification of an adult or which poses a risk of harm to a child”.
My 10 minutes is up. That is unfortunate because I wanted to address artistic merit. I hope someone will ask me a question.