Mr. Speaker, I am very disappointed that Liberal members would not allow the minister to be questioned on his speech. His speech raises a number of very serious issues. The minister should not be allowed to duck out of answering the real tough questions in respect of the bill.
Recently the Toronto Police Service held a press conference. In that press conference it told Canadians two things that were reported as news, although it was not news to anyone. It told us that Canada was rife with child pornography and that the federal government was not giving police officers the support they required to deal with the epidemic of child pornography.
Toronto police officers said that they had more than 2,300 names of suspected pedophiles on their list but only about 5% of them had been arrested. The reason for that very low arrest rate was because Canada lacked a national strategy for targeting sex offenders. The police officers are not getting the money nor the legislative changes needed to work effectively and efficiently to convict child pornographers and put them behind bars.
On the other hand, the Liberal government continues to claim that it is doing everything it can to protect children and that its laws are working. Who should Canadians believe? Should they believe the frontline police who have seen firsthand the worst and most degrading forms of child sexual abuse and the most depraved kinds of criminals who perpetrate this abuse or should they believe the Liberal government that was accused in December by the independent Auditor General of deliberately misleading Parliament for years about the billion dollar cost overrun and administrative failures in implementing Bill C-68, the long gun registry?
Canadians want to know what it will take for the government to get its priorities straight. For years frontline police officers have pleaded for federal support to combat child exploitation. The only response from the Liberals has been to slash police resources and to enact complex legislation that does nothing to protect children.
In contrast the British authorities have already arrested 1,500 people out of the 7,000 suspects from the same child pornography investigation. Why is Canada so far behind other western industrialized nations in this very important struggle? It is a lack of will, a lack of real concern and a failure to set our priorities straight as a country.
Perhaps it would be inaccurate to say that the Liberal government does not care about protecting children. I believe that all Canadians care very deeply about our children. However, the Liberal approach to protecting children consistently fails to put the needs of children ahead of the rights of criminals. This needs to change.
Much of the most recent public awareness about Canada's child pornography laws date back to a man named John Robin Sharpe. In the mid-1990s Mr. Sharpe was charged with possession of child pornography and defended himself on the basis that the Criminal Code laws against this offensive material violated his freedom of expression.
Mr. Justice Duncan Shaw in the B.C. Supreme Court agreed and struck down the Canadian child pornography laws as unconstitutional. For two years Canadian children effectively went without legal protection against pedophiles as police were compelled to put investigations on hold pending the appeals.
I quote what Ontario Provincial Police Detective Inspector Robert Matthews said in the Kingston Whig-Standard on May 3, 1999 just after the laws were struck down, “We have some cases... dealing with possession that are being put on hold awaiting [a final decision]”.
Isabelle Schuman, head of the criminal justice section of the Canadian Bar Association, said in the same newspaper report, “Here in Quebec, there are a number of cases where the Crown and defence have agreed to wait because there is no point in going ahead”.
In the Globe and Mail on March 2, 1999, it was reported that, “The Crown will seek adjournments on child pornography possession cases now before the B.C. courts”.
All across Canada, child pornography cases were put on hold while the Liberal government and the then justice minister, who is now our health minister, stood by for the Sharpe case to wind its way through the courts. One by one, the Liberals stood to vote down a Reform motion in Parliament to invoke section 33 of the charter as a measure to allow cases to proceed normally during this appeal process. All that the former justice minister stated was that she had confidence in the appeal courts to make the right decision. However, while our justice minister was busy being confident in the courts, law enforcement agencies across Canada were severely handicapped in their attempts to suppress child pornography, and as a result, our children went unprotected for a period of two entire years.
Canadians felt relieved when the Supreme Court decision of January 2001 substantially upheld the law as constitutional. What most Canadians did not understand was that while upholding the constitutional propriety of the law, the Supreme Court opened up a loophole in the interpretation of the law that simply allowed the pedophiles to continue exploiting children.
When John Robin Sharpe was tried by the B.C. Supreme Court, the same judge who had struck down the law as unconstitutional in 1999 proceeded to acquit him on two charges involving written pornographic material by applying an absurdly broad definition of artistic merit. It strikes me as strange that the same judge who had already expressed his disdain for the law on a constitutional basis would be put back by the courts to hear the matter. Clearly the chief justice in that province should have assigned a new judge to that case so that at least Canadians would have had the perception that the judge was approaching this case from a fresh point of view. Clearly what he could not do by declaring the law unconstitutional, he simply did by applying this absurdly broad definition of artistic merit.
John Robin Sharpe's written material is not art on the basis of any reasonable standard. His writings depict sexually explicit material that glorifies the violent sexual exploitation of children by adults. Furthermore, most Canadians will agree that all forms of child pornography are harmful. The harm done to children and society generally by the creation and distribution of this type of material, regardless of how it is produced, cannot be ignored. Beyond the clear intent for this material to provide sexual gratification to the creator or viewer, child pornography is created to glorify, to encourage and to normalize the idea of sexual activity between adults and children. It simply opens the door to the further exploitation of children.
Despite the court's obvious error in this ruling, once again the Liberal government did not immediately move to clarify the law and eliminate the artistic merit defence, a move that would have had the overwhelming support of Canadians. Only after months of intense pressure from the Canadian Alliance did the Minister of Justice move toward this legislation in which he claims to have eliminated the artistic merit defence. In reality he has done no such thing. The minister has replaced all of the previous defences to child pornography and merged them into one defence, the defence of the public good. There are two substantial flaws in this wrong-headed Liberal approach
First, there is no substantive difference between the public good defence and a previous defence, the community standards defence, which was rendered ineffective by the Supreme Court of Canada in the 1992 Butler decision. The community standards test, just like the public good defence, was concerned primarily with the risk of harm to individuals and society. However, because of how the court approached that particular defence, it was rendered ineffective. There is no positive benefit in doing what this minister has done in respect of the public good defence. There is no positive benefit in simply recycling laws that have been already discredited by the courts.
The second substantial flaw is that the artistic merit defence, which has been eliminated on paper, still applies in practice. Even by the Minister of Justice's own admission, artistic merit remains a component of the public good that the courts will consider in any new charge of child pornography. In essence, the minister has simply repackaged and renamed the artistic good defence.
I find it surprising that members opposite would tolerate this kind of perpetuation of abuse against children on the thin excuse of artistic merit when they would never allow, I would hope, the same kind of abuse to be perpetrated against ethnic minorities, against women or against other minorities. Yet they choose to do it in respect of the most vulnerable people in our society, our children. Once again the Liberals, in this legislation, avoid taking a clear stand against child pornography and the protection of children.
One of the biggest failures of this Liberal bill is that it will not protect children by raising the age of sexual consent from 14 years of age to 16 years. The most frequently cited reason that Liberals give for not raising the age is that it might criminalize sexual activity between young people close in age. Every parliamentarian, and hopefully most Canadians, understands that this excuse is pure nonsense. All the minister needs to do is establish a peer exemption for sexually active younger teens. The Criminal Code already permits children younger than 14 to consent to sexual activity as long as their partners are less than two years older than they are. The British, who have set their age of consent at 16, also have a close in age category that has not, as Liberals suggest, criminalized teenagers. It has had the opposite effect, that is, it protects these vulnerable young people from much older sexual predators.
In a Pollara poll released in May 2002, 80% of Canadians believed that the federal government should raise the age of sexual consent from 14 years of age to 16 years of age. I find it interesting that the Minister of Justice continually quotes a similar percentage of Canadians who are in favour of marijuana decriminalization as his basis for moving in that direction, yet despite calls from average Canadians, provincial Attorneys General and premiers, Child Find Manitoba, Beyond Borders, Focus on the Family, the Canadian Police Association, the Alberta Federation of Police Associations, and countless other organizations, including the Canadian Alliance, the Minister of Justice continues to give excuses as to why this cannot be done.
Even the former justice minister said in response to a question that I asked her in the justice committee on October 2, 2001 that:
...I think we will see that a consensus is emerging that, with certain safeguards, we should probably be moving on the age of consent from 14 to 16.
Elected officials from all political stripes recognize the importance of implementing these legal tools so that our law enforcement authorities can better protect our children, but this minister keeps offering excuses for why it cannot or should not be done. He keeps saying how difficult it would be, although I cannot imagine that it could be more difficult than making our drug laws more lenient, which is what he proposes to do this spring, especially considering the ramifications such a move would have on the United States, our neighbour and our largest trading partner.
The minister tries to tell us as Canadians that his thousands of lawyers in the Department of Justice cannot figure out a way of raising what virtually every civilized jurisdiction in the world has done. The British, most American states and other western civilized countries have moved in that direction. What impediment is there that prevents his lawyers from drafting a relatively simple provision that provides certain safeguards and brings the age of sexual consent from 14 to 16 without criminalizing teenage sexual activity but protecting our children from child predators?
There is a reason that has been given. The minister's parliamentary secretary, the hon. member for Northumberland, even said in the House on November 5, 2002, that there were “many social and cultural differences that have to be reflected in that law”. This was certainly news to many Canadians. I do not know what he is talking about. Is he talking about a culture of pedophilia when he makes references to cultural backgrounds?
Let me tell the House about what one member of Canada's ethnic communities had to say about that. I will spell the name so we have it right for the record. Vettivelu Nallainayagam, a name which is almost as difficult to say as Toews or “Taves” if one were making that kind of comparison, wrote on November 16, 2002 in the Calgary Herald:
I am offended, and angry, that the government has sought to hide its unwillingness to change the age, using as its excuse the different sexual mores of Canada's various cultures. It casts these cultures in a negative light and undermines the foundations of our multicultural society.
The writer continued:
I have interacted with many cultural groups, having been associated with the Calgary Multicultural Centre for a long period of time, and I never took home the impression that any one cultural group in Canada would be opposed to changing the age of sexual consent.
The writer concluded the piece by saying:
I appeal to the minister of justice and his parliamentary secretary not to hide behind cultural excuses but to act to raise the age of sexual consent to 16. And I would also urge the members of different ethnic communities to write to [the parliamentary secretary] asking him not to insult the intelligence of the ethnic community in Canada.
As Liberal ministers keep making weak excuses for not moving to raise the age, they will continue to be discredited by clear-thinking Canadians.
As I have stated, it is not anyone's intention to criminalize sexual activities between young people who are close in age. The intent is to protect young people, who are not always in the best position to protect themselves from sexual abuse by adults. Under our current laws, children and teenagers easily become targets of pornographers, Internet sex scams, pedophiles and sexual abuse, and parents have no legal recourse with which to shield their children from these dangers.
I noted that in the minister's speech today he is proposing that witnesses under the age of 18 receive extensive protection in court, extensive protection that would prevent an accused from cross-examining those individuals under 18. This is a remarkable admission by the Minister of Justice. Here he is saying that even in the court, children under the age of 18 can be exploited by the court process where there is a crown attorney, where there is a judge, where there is a public forum. Children under the age of 18 can be exploited, so he wants to bring in protection for children under the age of 18. What about children out on the street who are under the age of 16 and are victims of sexual predators? There is not a judge out there on the street protecting these children. There is not a crown prosecutor out there protecting these children. Yet there is no protection by the government for laws that at least will give the police and parents the right to protect their children.
What double standards: that children need protection in the courts, but where they are in danger of being preyed upon by sexual predators on the street and elsewhere they receive no protection that is effective in preventing these kinds of abuses.
Instead of extending full protection to children under the age of 16, the Liberals prefer to introduce a complex and cumbersome law that will do little to achieve its stated purpose. This is the same thing as the complex Young Offenders Act. It says wonderful things, but if one is actually in the street trying to enforce these laws, they are ineffective. It is the same thing as the gang law that has been passed: complex procedures that will not effectively curtail the activities of gangs without substantial increases in police and court resources.
Even today we have heard about how complex trials are grinding our justice system to halt. What I have heard the minister say here today simply is adding more of this complexity rather than putting in straightforward provisions that actually protect children. What he creates is wonderful net for lawyers to work in, to operate in, to ensure that the entire system slows down and in fact, as the chief justice indicates, grinds to a halt.
Why are we doing this? Why do we choose to discard the effective and embrace the cumbersome? I can tell the House that the reason is this: the focus of Liberal legislation is not on who the legislation is intended to protect. The focus is on what the courts may say if we pass this legislation. The courts might declare it unconstitutional so therefore we should not do the right thing; we should do the thing that is complex and cumbersome and satisfies the legal machinations of our legal system.
We need a government and a minister who will stand up and say, “I want to bring forward legislation that is straightforward, direct and effective and that will protect children”.
When the minister brings in that type of legislation he should be prepared to stand up to the courts and tell them that the rights of children are more important than the rights of sexual predators who rely on decisions, like Mr. Justice Duncan Shaw's decision, in respect of artistic merit. Why is it that these types of perverse decisions receive protection while children are left to fend for themselves? Lip service is paid by adding a few little things in courts, but the substantive issue of children being preyed upon by sexual predators virtually goes unaddressed.
Instead of a straightforward, effective provision, the bill creates the category of sexual exploitation with the intended aim of protecting children between the ages of 14 and 18. In determining whether an adult is in a relationship with a young person, which is exploitative of the young person, a judge must consider the age difference between the accused and the young person, the evolution of the relationship and the degree of control or influence by the adult over the young person. Anyone who has had experience in the courts will explain what this means. This is another complex law that will simply grind the system to a halt and, in the end, will do nothing to protect children. This is lip service, not a substantive recognition of the problem that the Toronto police recently pointed out to us.
Currently it is against the law for a person in a position of trust or authority, or with whom a young person, someone between 14 and 18, is in a relationship of dependency, to be sexually involved with that young person. It is unclear how adding people who are “in a relationship with a young person that is exploitative of the young person” will protect young people.
By the Liberals' failure to prohibit adults exploiting, in a sexual sense, children under the age of 16, police and parents are faced with a continuing risk to children that is not effectively addressed by these amendments. As has been said by more than 80% of Canadians, only by raising the age of sexual consent will young people be truly protected under the Criminal Code.
While I realize that the Solicitor General has introduced a separate bill concerning the sexual offender registry, I want to comment briefly on that since the Liberal failures in that department are quite significant in this context.
After reviewing the Solicitor General's proposal for the registry, I have concluded that the Liberal idea of justice defies all common sense by targeting law-abiding Canadians while giving convicted child predators the benefit of the doubt.
The Liberals continue to pour millions of dollars of taxpayer money into a registry of law-abiding firearms owners but still refuse to create a registry that includes all sexual offenders. We heard the Solicitor General's weak and very lame comments in excusing why convicted criminals, who are serving time in prison today for brutally destroying the lives of children, will not be on that sexual offender registry. He says that it is double jeopardy when he knows this has nothing to do with the constitutional doctrine of double jeopardy. Double jeopardy relates to two criminal convictions for the same offence. This sex offender registry is not a conviction. It follows that conviction. It is done in every other context where we seek to identify those who present a danger to society. What better criteria can we rely on than when someone has been convicted by a court of these crimes?
In reality the Liberal proposal for a sex offender registry appears to be a poorly disguised public relations strategy. The proposed registry is nothing more than a blank piece of paper. I know and Canadians know that without a comprehensive list of offenders convicted in the past the registry will be virtually useless.
Pedophiles and other sex offenders who have a notoriously high rate of reoffending can only be added to the registry if they offend and are caught in the future. Furthermore, none of this information will be available for members of the public who may need to know when there is a sexual offender in their midst. In effect, known sexual predators will be exempted from the Liberal plan until they are convicted of more offences.
The Liberals did not say that about farmers and duck hunters who might have a shotgun or a .22. No, they put them on the registry right away. They have done a very poor job of even establishing a registry but they did not say that they would wait until these people were convicted of an offence. We need to remember that these people, who are otherwise lawful gun owners, have never been convicted of any offence. If they had been they would not have received the right to possess a gun. Now the Liberals are saying that convicted pedophiles get a break despite the fact that they have been convicted by a court. They will not go on a registry because that would be double jeopardy. What about innocent Canadians who have committed no wrong? We all know that t cannot be double jeopardy because they have not even been convicted once. If the Liberals want to be consistent they should at least wait until someone breaks the law before putting them on this kind of registry.
In effect, known, convicted sexual predators will be exempted from the Liberal plan until they are convicted of more offences. The reason the Solicitor General gives is that he has concerns about the charter and privacy rights. This is simply nonsense and it has no credible basis in law. The minister should have focused on drafting a law that protects victims instead of trying to guess what the courts might do. If the courts think that the protection of children and other victims should be compromised, Parliament should not make it easier for the courts or for pedophiles or for other sexual offenders,
Furthermore, the federal law prohibiting retroactivity could impact negatively on existing provincial registries. The provinces, as a result of the failure of the federal government to proceed, have acted. Ontario, especially, has gone to great lengths. Other provinces have set up different types of registries. In the United States, virtually every single state has a registry. We can go on the Internet today and put in a name and the face of the convicted felon comes up on the computer screen. That is how public the access is. In some states the access is not that public.
There are reasons perhaps, philosophical, legal or other, but we are not even having that debate here in Canada. Basically we are saying that victims do not deserve this protection and that is the end of the discussion. The same thing is true about the sex offender registry as it is with this particular Bill C-20. It does not focus on the needs of victims. It focuses on what courts might do, and, in the process, renders it ineffective.
Ontario police Inspector Bob Matthews told reporters recently that the light sentences that Canadian pedophiles receive are, in his words, a joke. He said:
It almost encourages child pornography to be distributed, if you know there's no punishment.
Courts regularly, even in my home province of Manitoba, are overturning the decisions of lower court judges who put pedophiles or child pornographers in jail and are giving them conditional sentences. Another Liberal excuse about these people really being in jail but serving their sentences at home. That statement and that process defies any credibility.
Inspector Bob Matthews and every other law enforcement officer knows that the current maximum sentences in Canada for distributing child pornography or for other child sexual offences are rarely given out.
The Minister of Justice has come here and said that the Liberals will raise the maximum sentences which shows their determination to take some effective measures against child predators. The minister knows that the courts do not give those maximum sentences. They do not give the present maximum sentences and they will not give the maximum sentences that will be in place if the bill is passed. This is window dressing designed simply to assure Canadians that something is being done when in fact nothing is being done.
If the minister were truly serious about punishing pedophiles and child pornographers and sending them to jail he would not worry so much about the maximum sentences. He would bring in minimum sentences so that the courts could not allow these individuals to escape the appropriate punishment. He would repeal conditional sentences for child predators and others who commit violent acts against Canadians.
We know that legislating higher maximum sentences for child pornography and predators, as this bill does, will not be effective unless the courts enforce them. We know that the courts simply have no will and no desire to enforce the laws as written.
The bill also fails to prohibit a number of other issues. I realize others want to speak but what I want to speak specifically and very briefly on, in conclusion, is the ever looming problem of the scarcity of resources.
Police and prosecutors simply do not have the tools to deal with child pornography cases effectively or efficiently. They do not have the legal tools they need and they have suffered crippling funding cuts over the past decade that prevent them from doing a thorough and complete investigation.
In addition to the strain caused by lack of resources that the Toronto Police brought to our attention, current evidentiary laws tie up additional police resources preventing police from investigating and prosecuting child pornography in a timely manner. While technology used by child pornographers has developed, the laws needed to address the problem have not kept pace, and that is a glaring omission in the bill.
Those are my opening remarks. I trust that the minister and Liberal colleagues will keep an open mind about possible amendments to the bill. Perhaps the bill should be sent back with specific instructions to ensure that victims, rather than child predators, are protected.