Mr. Speaker, once again, as members of the Canadian Alliance, we find ourselves in a position where we have to defend the rights of the most vulnerable group of people in our society, our children, against a Liberal cabinet fixated on protecting the interests of dangerous sexual offenders.
Past experience should tell us that this need not be much of a challenge, given the fact that Liberals tend to govern by opinion polls, and the evidence is clear that Canadians overwhelmingly support giving children the most effective legal protection possible against sexual predators.
Nevertheless, to this point the legislation put forward by the minister continues to defend the interests of sexual predators rather than Canadian children.
However it appears that some of the concerns that have been consistently raised by the Canadian Alliance, members of child advocacy organizations and the police may finally be catching the attention of the government.
Recently we heard the Solicitor General admit that he may have erred in his opinion that including convicted sex offenders in a national registry would violate their charter rights. Perhaps it is not too late to hope that the Liberals will also eventually admit that there is no justification for the criminal possession of child pornography and amend the laws accordingly.
Over the course of parliamentary debate on this issue I have often been struck by the contrast between the fact that Canada's Criminal Code provides no defences against certain types of hate propaganda, yet the defences for the possession of child pornography are alive and well and broader than ever. There is zero tolerance for hate propaganda against vulnerable minorities, and rightly so, yet the most vulnerable minority of all, our children, are not similarly protected.
By now most Canadians are familiar with the case of the notorious child pornographer, John Robin Sharpe, and the material that originally sparked this debate on our child pornography laws. After being caught with material glorifying violent sexual acts between adults and children, Sharpe began a court challenge in the mid-1990s arguing that his charter rights were being violated by Canada's legal prohibition on child pornography. Eventually the Supreme Court of Canada upheld the law but said that artistic merit should be interpreted as broadly as possible. A British Columbia superior court judge later did just that and let Sharpe off the hook for two possession with intent to distribute charges on the basis that the material had artistic merit.
Let us be clear about what kind of material we are talking about, the kind of material that allowed this judge to apply artistic merit to acquit Mr. Sharpe of those charges. We are not talking about literature, art or anything that could reasonably be described as such. Seventeen stories that Sharpe had written were given as evidence. Detective Noreen Waters of the Vancouver police department characterized those stories as follows:
They're extremely violent stories, the majority of them, with sexual acts involving very young children, in most cases, under the age of 10 engaged in sado-masochistic and violent sex acts.... And the theme is often that the child enjoys the beatings and the sexual violence....
John Robin Sharpe was acquitted of those charges. Clearly, after the Sharpe cases, there was a legislative gap that required immediate attention. Canadians were outraged but it took some time and considerable pressure to convince the justice minister to bring forward legislation.
Last December, when Bill C-20 was finally tabled, the minister was proud to declare that the existing defences for child pornography had been narrowed, implying that the artistic merit defence was no longer there. No one was fooled. In fact, instead of eliminating all legal loopholes that justify the criminal possession of child pornography in Bill C-20, the minister simply combined these defences and hid them in the broadly interpreted defence of public good.
However, despite the minister's attempt to sell Bill C-20 on the basis that the artistic merit defence no longer applies, he admitted on September 25 in the justice committee that it was still included under the now broader public good defence.
The Supreme Court briefly commented on the public good defence in the Sharpe decision stating:
It might be argued that the public good is served by possession of materials that promote expressive or psychological well-being or enhance one's sexual identity in ways that do not involve harm to others.
If this commentary is any indication of how the public good defence will apply in the courts, it clearly will not fulfil the aim of protecting our children.
The Supreme Court of Canada does not make comments like that idly. It is signalling what it may well do in the future. It is too big a risk for Parliament to leave that particular phrase as open as it now is in the bill. It has become clear that the public good defence has not been precisely defined and will be subject to broad interpretations by the courts.
Mr. David Matas, a well-known lawyer and a member of the board of directors of the child advocacy group, Beyond Borders, said the following during committee hearings on October 7 in reference to the public good defence:
The practical problems of putting a very vague defence into the law is this:
He was referring to this public good defence. The quote continues:
It doesn't serve as a deterrent. If you read what child abusers say, they think what they're doing is in the public good. They promote sexual activity of children. It also is going to lead to a lot of not-guilty pleas. We're going to get the courts clogged up with defendants saying that they're not guilty because they think there's a defence of public good. The defence, of course, will be defined over time, but differently in different provinces until it gets to the Supreme Court of Canada. So we'll have many years of uncertainty about the law.
Given what the Supreme Court of Canada has said, I think know where this court is going to take this particular definition.
The same day, detective sergeant Paul Gillespie of the Toronto police also said:
--trying to, as a front-line officer, determine what the public good is will prove to be impossible.
We are putting evidentiary burdens on the police in addition to those they already have that they simply will not be able to meet.
The representative from the Canadian Bar Association also expressed doubt that the public good defence would be effective stating:
The issue is one of how the courts are going to interpret for public good. This is not an easy concept and it is one that does incorporate the community standard that the court rejected in their interpretation of artistic merit in Sharpe, but there's a real issue of whether or not it's indeed going to solve the problem.
That is exactly what I have said on earlier occasions. The Supreme Court of Canada has already emasculated this particular defence. Why does it think that by resurrecting it in this new bill it will do any better?
From the side of the spectrum that tends to favour freedom of speech over all other social objectives, Mr. Alan Borovoy of the Canadian Civil Liberties Association also expressed serious misgivings about the public good defence. He said:
Then they talk about the defence of public good, Bora Laskin described it as anomalous, the Supreme Court of Canada has expressed misgivings and the same court has also held that the comparable term “public interest” is constitutionally vague. That's what we would be left with if those amendments were enacted.
What we essentially have is almost every witness, other than the justice minister, coming before the committee and telling us that the law will not work, it will not be effective and, more important, it will not accomplish its objective of effectively prosecuting child pornographers.
In a further complication of the child pornography defences, the Supreme Court carved out two exemptions to the child pornography law in the Sharpe case: that materials, such as diaries and drawings, created privately and kept by that person for personal use; and visual recordings of a person by that person engaged in lawful sexual activity, again kept by the person for personal use.
Although at first blush those types of defences for personal use appear to be reasonable, the latter exemption has the potential to expose children age 14 to 18 to further exploitation by child pornographers since they would be engaging in a legal activity.
What that means is that a 40, 50 or 60 year old man can have sex with a 14 year old girl as long as she consents to the activity, and that man can legally make a visual recording of that activity. Of course it still remains illegal to distribute it but then there is a permanent record of that child that no doubt will eventually be put out into the public domain.
Our age of consent laws also enable child sexual predators to legally use the Internet to lure children over 14 who are online.
One of the more dubious objections to raising the age of consent from 14 was provided by the Parliamentary Secretary to the Minister of Justice, the member for Northumberland, who stated in the House of Commons on November 5, 2002 that there were “many social and cultural differences that have to be reflected in the law”.
That certainly was news to many Canadians. Many members of Canadian ethnic groups were offended and angry that the government was trying to hide behind so-called social or cultural considerations on the age of consent issue, and never have the members opposite ever asked which cultural group consented to the exploitation of their children. No such cultural group exists in Canada, and that activity should clearly be against the law.
As Liberal ministers keep making weak excuses for not moving to raise the age of consent, they will continue to be discredited by Canadians who have common sense ideas and are committed to the protection of their children even if this government is not.
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.
So far the committee has heard strong recommendations from several witnesses to ignore any excuse from the government in its refusal to raise the age of consent; particularly from police representatives Detective Sergeant Gillespie from the sex crimes unit of the Toronto police service, who has done such a fine job trying to make the children of this country safer, and Mr. Tony Cannavino of the Canadian Professional Police Association. They continue to come to Parliament to remind us that we are failing our children and that Bill C-20 certainly fails our children.
Instead of raising the age of consent, the bill creates the category of “exploitive relationships” aimed at protecting people between the age of 14 and 18. Overwhelmingly, child advocates have urged committee members to reject the provisions of Bill C-20. This new category is a vague provision that fails to create the certainty of protection that children require. It will not serve as a real deterrent. It will simply result in longer trials and more litigation by putting unnecessary, undue prosecutorial burdens and evidentiary burdens on our crown attorneys and our police.
Mr. Normand Boudreau, also a member of the board of directors for Beyond Borders, urged members to reject excuses against raising the age of consent. He reminded us of the story of the little aboriginal girl in Saskatchewan. This case occurred in Melfort, Saskatchewan.
A 12 year old aboriginal girl was preyed upon sexually after being made drunk by three adult males. A 26 year old man sexually assaulted the 12 year old girl with his two friends outside his truck on a gravel road. The 26 year old man received a conditional sentence. The other two, however, were found not guilty. In the case of those two, the jury found that the accused took all reasonable steps to ascertain that the girl was at least 14 years of age. In effect, in this particular case, the age of consent was 12 years old. These individuals were acquitted because they took all reasonable steps to satisfy themselves that the individual may in fact be 14 years old. That is shameful and disgusting.
A side issue on this particular debate that is nevertheless an important one is what is to be done with sex offenders once they are convicted. Currently, Canada's methods serve as little more than a weak reprimand. The list of dangerous sexual offenders who receive no jail time is long. I can quote a number of cases where serious sexual offenders won. For example, the Toronto Sun reported that a Mr. Oswold, who had a record of sexual assault, sexual interference and had attempted to obtain the services of a 10 year old boy, received a conditional sentence for breach of a probation order.
These are the kinds of laws the government has passed. They are not only weak laws in terms of sentencing, but to add final insult to the injury is to try to pass a law such as Bill C-20. The list goes on.
Those who suggest that mandatory prison sentences do not deter crime are mistaken. We know that as long as they are secure behind bars, they will not reoffend.
One witness, I believe it was the Civil Liberties Association, said “What do you expect child pornographers to do, collect stamps?” I say they can collect stamps if they want to as long as they are doing it behind prison bars. They should not be released to be able to exploit our children on the Internet or otherwise.
Only a Liberal would suggest that society should take a chance with its children by releasing those individuals into society without first requiring a period of incarceration. A strong message from Parliament to the courts and from the courts to the offenders that the abuse of children will not be tolerated will have the appropriate effect. Unfortunately, Bill C-20 and the Liberal government fail to send that message.
The lack of funding also continues to be a vital problem for those who are tasked with enforcing the laws. In March 2003 Chief Julian Fantino of the Toronto Police Service said that he was:
--deeply disappointed by the recent comments by [the] Solicitor General that police are adequately resourced in the area of child pornography. The Toronto Police Service has received no funding or resources from the federal government in this area. We have, however, managed to move forward thanks to a $2 million grant from the provincial government.
It was the former conservative government in Ontario that showed concern when the federal Liberal government did not.
That will conclude my comments. I would be prepared to answer questions.