Mr. Speaker, I am pleased to take part in this very important debate. Bill C-20 provides us with an opportunity to better protect children in Canada.
This particular debate will evoke a great deal of emotion and there is no doubt that Canadians are watching closely as to how the government and the Parliament of Canada will respond to this important issue. Since the decision in the Sharpe case brought this issue to the forefront, I think that police agencies, victims' groups and Canadians in general have viewed this as an issue of timeliness and an issue requiring immediate action. Sadly, that has not been the case. Although I applaud the government for finally bringing this legislation forward, I lament the fact that it has taken almost two years.
I respectfully disagree with the commentary from my NDP colleague, although I take his comments very much to heart when he speaks of balance. Yes, there is often a need for balance when dealing with issues such as this one, but I also agree with the commentary that there is a time for decisiveness, particularly and fundamentally on an issue that is so grave in the harm that can come to children.
This bill has taken a long time to come before the Parliament of Canada. One would have hoped that in that time it would have come in a perfect form or at least close to a perfect form. That is not the case. I am very fearful that this legislation does not go far enough to alleviate the inexcusable production of child pornography. The bill does not address the current lack of resources in the country vis-à-vis the police and those who deal directly with all efforts to try to attack and remove this scourge on society.
I will preface my remarks by saying that there are many favourable aspects of the legislation. I suspect that on closer scrutiny by the justice committee, it will no doubt prove to be beneficial. For example, clause 5 amends subsection 161(1) of the Criminal Code to expand the definition of those convicted or discharged on conditions prescribed in a probation order and can be viewed as a positive step. The addition of offences under this section will increase the number of offences for which a judge can place a probation order, leading to a greater number of victims being protected. I have a private member's bill that is in the same vein. It would allow a judge to place a provision on a sexual offender barring his or her presence in a dwelling house in the presence of a child unless escorted by an adult. Those are the types of expanded protections that we should be constantly seeking as far as legislation such as this is concerned.
A total crackdown on child pornography is happening in many jurisdictions, including in the United Kingdom. That type of response sends a strong message, a message of deterrence and a message that embraces public protection. That is in and of itself part of what should occur when the law is brought to the forefront.
Sadly, the government has a record of producing complex and cumbersome legislation that is difficult to enforce and often difficult for the courts to interpret. The replacement of the Young Offenders Act is a perfect example, as are the terrorist legislation and the gang law. All of these, although well intended, came far short of accomplishing what one would hope because of the abstract, complex nature in which they were presented.
Getting back to the substance of the bill, the amendments to sections 151 and 152 of the code also maintain the indictable offence maximum of 10 years and increase the level of punishment under summary conviction, by directing the court to incarcerate not exceeding 18 months, making it a hybrid offence, in essence. Again, I view this as positive. It expands the range of sentences available to judges to send that message of deterrence and keeps in mind the balance necessary to at the very least try to rehabilitate.
Sadly, when it comes to child pornography and individuals who engage actively in the manufacturing, production and proliferation of child pornography, just as for those involved in pedophilia and sexual assaults, the chances of rehabilitation are often very slim. The preference in my view, and I suggest in the view of many, is that the emphasis has to be put on the protection of the public when these types of offences are involved. These offences are referred to as sexual assault cases but they are violent offences. Sexual assaults inevitably can be characterized as violent and the effects are long-lasting, lifelong in many instances. A life sentence is what is handed to a victim of this type of horrific invasion.
The fundamental question in this debate must centre around the harm caused to those who are most vulnerable: children, obviously. Underlying this, we must give thought to the role of the court in the context of judicial policy as it pertains to the supremacy of Parliament. We must show how this new legislation would eradicate child pornography within the context of artistic merit.
My overall assessment is that this legislation narrows but does not eliminate or eradicate artistic merit from the Criminal Code. Unfortunately for Canadians, the legislation does not go far enough, I suggest, for it once again could be subjected to judicial interpretation, putting children at risk.
Does the two step analysis of which the minister spoke serve the public good? Some of the questions from my hon. colleague from Mississauga and other members of the House posed the rhetorical question: What possible public good or merit could be found in something that exploits children? There is no merit. There is no public good that could be found in such material.
The second part of this two step analysis of which the minister spoke asks if it goes beyond what serves the public good. I find that statement in and of itself completely puzzling. There is no merit in the depiction of children in a way which degrades them. There is harm in and of itself. There definitely will be constitutional challenges. There always are and there always will be on issues such as this. As surely as night follows day, there will be a challenge based on this new legislation. That is inevitable. Yet Parliament has a strong role to play when it comes to issues of public good. It has a strong role to play in drawing lines on moral issues. Why not be definitive in the first instance if we know that it is going to go to the courts?
There is an inherent danger to society as a whole when we fail to recognize just how detrimental child pornography is at a basic level. No one is suggesting that the works of Nabokov in Lolita or Plato in Symposium or other classics that touch to some degree on issues involving children be removed from circulation based on the promotion of sexual conduct with minors. As my colleague from Saint John suggested, the Charter of Rights and Freedoms provides protections for freedom of thought and expression, yet implicit in that are responsibilities as well. The question of what constitutes a reasonable limit is central to this debate. Common sense surely must be the guiding principle, common sense that is so often lacking in legislation that appears in this place.
Subclause 7(1) of Bill C-20 amends subsection 163.1(1) of the Criminal Code, defining child pornography to include:
any written material, the dominant characteristic of which is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years--
While the addition of a clear section for the purpose of defining what constitutes child pornography is welcome, the removal of the words “for a sexual purpose” would, in my opinion, completely change the meaning of the legislation and its purpose. The exclusion of those four words could send a clear message to the judiciary, removing the subjectivity of the purpose of the work and putting the emphasis on the acts within.
There is also in legislation before the House the issue of dealing with raising the age of consent. I would suggest again that an opportunity was missed to send a clear message on this. There is easily a remedy when it comes to a pure exemption. It would have clarified this supposed reason that the government is putting forward for not raising the age of consent because it would involve sexually active teenagers, that somehow the activities of two teenagers at a drive-in could result in criminal charges being brought forward. There is already the two year exemption that is applied, which again is a common sense approach that surely would prevail, yet the message it sends is one of ambivalence. I know that there certainly are examples that we can all imagine whereby a very streetwise 13 year old, up against a naive 17 year old, would fall outside the current parameters or even the parameters that are presented in raising the age of consent. Again one would hope that common sense would prevail in the courts of the land.
There is always a need to streamline legislation and to put it in common parlance so that people, and particularly young people, can understand it. We seem to, in this place, continually stack legislation upon legislation. My grandfather used to speak about the need to strip away old shingles before putting new shingles on the roof. That same approach, I suggest, would often apply in legislation such as this, as the definition of child pornography should not be open to interpretation through intent or by any other means, that is to say, the thought process behind the writing and whether or not a work was produced for a sexual purpose would be of no consequence. We simply need to state the definition of what is acceptable and what is not, with the clear definition that the judiciary is removed from the public-private nature of the debate.
As a remedy to the problem associated with subsection 163.1(6) of the code, subclause 7(2) replaces subsection 163.1(6) with another subsection which states that no person will be convicted of an offence under the section
if the acts that are alleged to constitute the offence, or if the material related to those acts that is alleged to contain child pornography, serve the public good and do not extend beyond what serves the public good.
What on earth does that mean? Where could there be public good found in some form of child pornography?
I understand the intent of the minister's legislation, yet I fear that what has been presented will not be sufficient to protect against the abhorrent creation of child pornography, of material depicting children in a pornographic way. Members of the public, along with child advocacy groups, members of the House of Commons and Canadians in general, have continually called upon the government to produce a clear, concise piece of legislation which would completely remove the chance that material of this nature would ever find its way into public hands.
The Catholic Women's League of Antigonish and groups from all over the riding of Pictou—Antigonish—Guysborough, from across Nova Scotia and from across the country have continuously carried on the white ribbon campaign in an effort to have the government bring forward strong laws against child pornography. This bill, sadly, does not meet the standard that they are searching for.
The minister has left open to interpretation by the courts a matter that strikes at the very heart of our democracy. The intent of the bill is to protect children from all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect, and yet unfortunately the definitions of public good will be vague and insufficient and not of a level to objectively put forward to the courts any type of pornography and how it might be used. It is not clear. Once again there is a question of the acceptability to the individual. Obviously an argument as to what constitutes the public good will predominate, leaving the children vulnerable again. There can be no levels of child pornography, just like there are no levels of pregnancy. It either is or is not.
I ask the minister why this legislation took the government so long to produce if it is going to be brought forward in such a flawed manner. The overall effect of the Sharpe decision by Mr. Justice Shaw in many cases had people absolutely recoiling in horror that this decision could have been produced by someone from the bench. Yet that learned judge, by his decision, in fact has kicked open the door, and by this legislation it has been left open by the minister. The door is left open to potential pedophiles who would take advantage of youth, who denigrate images and engage in writings that have a very corrosive effect on societal norms. This is a travesty. Works of this nature go against the very fabric of what is acceptable in a just and moral society. There can be no denial. A direct correlation exists between the fantasies of sick-minded individuals and the harm to children that is created. Why risk the potential danger, I ask rhetorically, when the collective will of the people would see this material stricken from existence?
In handing down the Sharpe decision, Justice Shaw effectively broadened the interpretation of the current exemption of defence for artistic merit. Section 1 of the Charter of Rights and Freedoms guarantees the rights and freedoms set out in the charter “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The contention of that section, which is that limits are justifiable, in this case is correct when weighed against the potential harm to children and the intent of Parliament to protect the rights of those who are most vulnerable.
The essence of the debate today is that the protection of children must come first. Simply put, it is my belief the Supreme Court of Canada erred in its favourable interpretation of the Shaw decision. Unfortunately, and I say that respectfully of the courts, the justice minister's lawyers have weighed the rights of the individual against the rights of the child and once again we are left with a mediocre half measure, an attempt to correct. The Canadian public realizes that this is a serious problem yet this is the legislation that the government has produced.
If the Liberal government is unwilling to protect the rights of children and, by extension, their families, I suggest that it might at the very least take the opportunity presented by the upcoming budget to consider supporting victims of crime financially.
The Progressive Conservative Party of Canada has always been supportive of attempts by the law enforcement community, victims groups and child advocates who are constantly tasked and constantly struggling with the lack of resources available to them.
Given what we saw wasted by the government in the production of a long gun registry that is ineffective and a complete disaster, what if that type of money were put into expanding the registry for the DNA data bank, expanding the sexual offenders registry or a missing persons registry, which should be the next step in this attempt to put information online? What about having a victims' ombudsman's office for timely access to information as to matters that were before the court and individuals who are about to be released from prison who were offenders? Funding for legal aid in this country is a disgrace. This, in and of itself, would be an opportunity to put more money into the system to allow for a better brand of justice.
There are so many greater priorities that would have assisted and enhanced our justice system rather than wasting money on a long gun registry that has no connection to public safety and was poorly managed by the government. The Liberals are not good managers, clearly. The fact remains that criminals, particularly the Hell's Angels, will never register their guns. The entire premise of this ill-fated registry is flawed and yet the government continues to support it with taxpayer money. The priorities for where they put the money do not seem to be in line with the public priorities.
As I have said before, what could be more fundamental than the issue of protecting children? We know that the lasting impact on victims of sexual abuse is a life sentence and many of these drastic debilitating effects are sadly passed on and further victims are the result. Very often the mental anguish and detrimental effect on the development of young people is everlasting.
It is incumbent upon Parliament to take every opportunity to make for a safer, kinder, gentler society. I do not want to see Parliament miss that opportunity again.
With the technology that is available, the Internet, there is a great opportunity for police, given the proper resources, to combat this problem in a more effective way. They are crying out for it. Police groups recently have drawn that comparison, what they could have done with $1 billion to address this issue. There is a need to support victims and to have more support and stronger legislation in that regard. It talks directly to the issue of respect and dignity for those who have been victimized. It is clear that there has to be an equitable approach taken by the government, which is why we need this victims' ombudsman's office.
While we debate the merits of the bill, alleviating the philosophic discussions of public good, it becomes evident that the legislation is wanting; the problems associated with the Shaw decision, the Sharpe decision. For the sake of the children, the government has to do better.
In conclusion, we will support the legislation as far as getting it to the committee to try to improve it and add some substance to it. The legislation is a half measure. We want to see the whole measure. People who abuse children must be prosecuted and severely punished. Bringing down laws that are strict, clear and pragmatic is the way to approach this. The legislation is wanting. We in the Progressive Conservative Party hope to make a contribution to see that this will in fact protect children and improve their lives.