Debates of Nov. 6th, 2003

Petitions

[Maurice Vellacott, Canadian Alliance, Saskatoon—Wanuskewin, SK]

Mr. Speaker, it my privilege to table in the House the names of petitioners calling upon Parliament to immediately hold a renewed debate on the definition of marriage, reaffirming, as it did in 1999, that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament should take all necessary steps within the jurisdiction of the Parliament of Canada to preserve this definition of marriage.

Questions on the Order Paper

[Geoff Regan, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I ask that all remaining questions be allowed to stand.

[The Acting Speaker (Mr. Bélair)]

Is that agreed?

[Some hon. members]

Agreed.

[The Acting Speaker (Mr. Bélair)]

I wish to inform the House that because of the ministerial statement government orders will be extended by 24 minutes.

The House proceeded to the consideration of Bill C-20, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, as reported (with amendment) from the committee.

Criminal Code

[The Acting Speaker (Mr. Bélair)]

There is one motion in amendment standing on the Notice Paper for the report stage of Bill C-20.

Motion No. 1 will be debated and voted upon.

[Libby Davies, NDP, Vancouver East, BC]

moved:

That Bill C-20 be amended by deleting Clause 7.

Mr. Speaker, I am pleased to rise in the House today to speak to Bill C-20 and the amendment before us.

I would like to make it very clear that members of the NDP support the measures in the bill that are clearly presented and defined. We believe they will help protect children, a goal that is certainly shared by all of us in the NDP and I think by all members of the House.

We believe we have an obligation to do whatever we can to protect children in our society and to stop the abuse and exploitation of children in every form, whether through child pornography or any other way. That is something that we support very strongly. It is a very important value.

In presenting the amendment today to delete clause 7, we do so because we believe the present wording of clause 7 is very vague. Clause 7 talks about the public good defence. We believe that it may, as a result of being very vague, be very difficult to catch child pornographers, while at the same time there are concerns that we will be endangering the rights of artists from pursuing legitimate artistic expression or researchers and health workers from dealing with the effects of child abuse and sexual trauma.

We believe that the defence of the public good, as has been put forward in the bill, would transfer too much power and discretion to the courts. For example, it may take years of litigation and jurisprudence for the courts to decide exactly how to apply this defence of the public good in relation to child porn laws. I do not think that is something anyone wants to see.

The scope of the public good is ironically both, on the one hand, too broad and, on the other hand, too narrow. In fact, what we need to be doing in the bill is clarifying it to ensure that the most essential point is that the police will be able to make sound decisions in their investigations of a suspected child pornographer to protect children. Second, that artists who are legitimately engaging in artistic expression will not be prosecuted because of that legitimate activity.

We realize that these are difficult issues but surely our role here as parliamentarians in examining the bill is to make sure the clarification on these issues is very clear and that it does not become a subject of ongoing and endless debate in the court system.

In speaking to the amendment today and urging the deletion of clause 7, we believe that clarifying the definition of the public good is something that has not yet been resolved or taken place. It needs to happen here in Parliament.

We do need to be sending a clear message to the courts on how we want the legislation to be implemented and approached. The way it stands now is that I think there is still ambiguity.

We have presented this amendment because we believe the bill is just not good enough. We want to see a good job done on the bill. A tremendous amount of effort went into the bill and its goal is to protect children from sexual exploitation. We want to do it in a way that we are clearly delineating artistic merit. We believe that the provision in the bill as it stands now is simply not adequate to do that.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, the motion put forward today proposes to delete clause 7 of Bill C-20, which is an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

In essence the motion seeks to maintain the status quo on child pornography. Simply stated, the government does not accept the status quo and neither do Canadians.

Clause 7 of Bill C-20 proposes two reforms to the existing child pornography provisions. First, it proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the dominant characteristic of the material and it is done for a sexual purpose.

Second, Bill C-20 proposes to narrow the two existing defences into one defence of public good, a term that is now specifically defined in the bill. Under the new law no defence would be available where the material or act in question does not serve the public good or where it exceeds or goes beyond what serves the public good. More simply stated, if the risk of harm that it poses outweighs the benefit that it offers to society, then no defence would be available.

The motion to delete clause 7 does more than just seek to maintain the status quo; in fact it says the opposite of what Bill C-20 proposes. It says that written materials that consist primarily of descriptions of unlawful sexual activity with children which descriptions are done for a sexual purpose are not child pornography and that they should not fall within the reach of the criminal law.

In the 2001 Sharpe case, the Supreme Court of Canada interpreted “for a sexual purpose” as being that which can be reasonably perceived as intended to cause sexual stimulation. With this interpretation in mind, it is difficult if not impossible to comprehend the basis for any argument that seeks to support and protect materials that mostly describe the sexual abuse of children and where these descriptions can be reasonably perceived as intended or intending to cause the reader to be sexually stimulated.

It is quite significant that our existing criminal law already clearly prohibits the sexual exploitation of children. The types of written material that this motion seeks to protect are those that portray or purport to portray children as a class of objects for sexual exploitation.

The government recognizes the very real risk of harm that such portrayal and objectification of children poses to our children and to society at large. That is why Bill C-20 proposes to include these types of materials within our definition of child pornography.

The second thing the motion seeks to do is to maintain the current test for when child pornographic materials should be protected by the defence of artistic merit.

Under the current test for artistic merit, the defence is automatically available for material that, objectively viewed, demonstrates some artistic merit no matter how small. For example, if the material in question is a written story, the question becomes, objectively viewed does the story reflect some accepted or recognized literary techniques or styles? If so, the defence is available irrespective of whether the risk of harm that the story poses to children and society outweighs any benefit that it offers.

The government does not agree with and does not support the existing test for artistic merit and neither do Canadians. The Standing Committee on Justice and Human Rights amended Bill C-20 accepting the government's amendment to define the public good as including acts or material that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.

This definition closely models the language of the Supreme Court of Canada when it interpreted public good in the Sharpe case. Accordingly, the interpretation of Bill C-20 will be guided by the Supreme Court's judgment in this case.

A number of witnesses representing the arts community appeared before the justice committee on Bill C-20 to express concerns that their work or that of fellow artists would be criminalized by Bill C-20. I believe that their concerns are at the heart of this motion.

The justice committee's amendment of Bill C-20 to include a definition of the public good directly responds to those concerns expressed not only by the arts community but also to those expressed by child advocates appearing before the committee. They wanted greater clarity in the bill as to what constituted the public good. However, as to the balance of the concerns raised by the arts community witnesses, a number of observations or points in reply should be made.

The first question to be considered and answered in any potential child pornography case is the following: Does the work in question meet the Criminal Code's definition of child pornography? The written works that were described by these witnesses to the justice committee would not meet the existing definition of written child pornography, that is, they could not be said to advocate or counsel unlawful sexual activity with children. Neither would they meet Bill C-20's proposed new definition. That is, they could not be said to be works that one, were comprised primarily of descriptions of unlawful sexual activity with children and two, that such descriptions were written for a sexual purpose.

The second level of inquiry, and one which falls to the courts to determine, is if the material meets the definition of child pornography, is it protected by a defence? Under Bill C-20, as I have already outlined, there would only be one defence and its test would be a two step inquiry and yes, it is possible for art to meet such a two step inquiry.

Bill C-20 in its preamble clearly identifies the bill's objective. It states:

Whereas the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect;

The motion to delete clause 7 of Bill C-20 and to maintain the status quo for child pornography is not only incompatible with Bill C-20's objectives, it is antithetical.

I urge all hon. members to support Canada's children and to support Bill C-20 as passed by the justice committee and not to support this motion.

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

Mr. Speaker, I rise today to speak to this motion, which the Canadian Alliance will support not because we support artistic merit but because we do not support the broad definition of public good.

In the John Robin Sharpe case the judge considered some of those vile, ugly drawings to have some sort of artistic merit. That has been a problem with us and, I think, the nation. Even the hon. member across the way who spoke would agree that those drawings should not have been considered to have artistic merit.

Under Bill C-20 the existing defences of child pornography, that is, artistic merit or educational, scientific or medical purposes, are reduced to the single defence of “for the public good”. This leaves in the hands of the judges the determination of what is for the public good.

Furthermore, despite the justice minister's attempt to sell Bill C-20 to Parliament and to the nation on the basis that the artistic merit defence has been eliminated, he admitted recently in the justice committee that it is still included under the broader defence of “for the public good”. Here is what the minister said at the justice committee:

Artistic merit still exists in the sense that a piece of art will have to essentially go through the new defence of public good and through the two stages. Of course, the first question is always this. Does it serve the public good?

We on this side of the House object to that and I think Parliament objected to it last week. My memory is sometimes not very accurate and not very clear, but I do remember that last week the House passed a private member's bill in the name of my hon. colleague from Wild Rose. That bill calls upon Parliament to bring forward legislation against child pornography that would remove all defences and would in effect stamp out child pornography, all defences for child pornography that would exploit children and all defences against criminal possession of child pornography.

There is a difference obviously of using some material for certain purposes. We understand that because some of us in the House had the opportunity to be briefed by the crime unit from Toronto some months ago on the nature of child pornography and how awful and terrible it is. We understand that use as being a legitimate one. It was not criminal possession and it did not have to be judged by any kind of law to find out if it was for the public good or not. We understand that it was very helpful in that particular case. We would not think that the law should remove the opportunity for our law makers to view this sort of thing to see what the problem is for our law enforcement officials to use it.

My belief here today is very simple. Parliament just last week said that we should remove all defences for criminal possession of child pornography that exploits children. We do not have to work too hard at figuring out the exploitation of children by that kind of material.

As we look around the House of Commons this week it is probably in its most floral stage. There are more flowers in here than perhaps those outside decorating for Christmas. We remember the veterans who fought in the wars that gave us the freedoms that we enjoy in this nation. None of us would want to deny the fact that these freedoms have been hard fought for, they have been won at the cost of the lives of many of our finest, over the years of the history of this nation.

However, they did not die so that such garbage could be pushed upon society. They did not die so that such garbage could be used to penetrate and bring about harm in the lives of our children. They did not die so that our children could be preyed upon by adult sexual predators in this nation or in any nation.

They did not die for that reason. I believe they died because they wanted a nation that had freedom for families and parents raising children, a nation where parents could raise children in the safety of a free nation, the safety of a nation where the children were free.

Can members imagine that? Can members imagine the children of this nation being set free to play on the playgrounds of this country, to play on the playgrounds of the schools, to walk safely home on the sidewalks of our cities and not be in fear of being grabbed or used or taken by sexual predators who run free in this land?

I think we need to remember why these people died, why they gave their lives, and I think we need to remember the kind of freedom they wanted us to have.

I know that many people will not agree with what I am going to say, but let me tell them that I believe there is no such thing as artistic merit in child pornography. There is no such thing as artistic merit. That kind of garbage is not art and it does not need protection.

That kind of garbage is not put there for educational purposes. Not only is it put there to pervert the mind of the one who is producing that kind of garbage, but it is put there to pervert the minds of others. It is there to pervert the minds of other adults and to allow those minds to feed upon this kind of garbage and imagine in their own minds the kinds of things that they might want to do with the children of this land. That has to stop. There is no sense in protecting that kind of thing.

Yes, we want to have freedom in this land, but as we all know, our freedoms are all guided by certain limits. When we drive down the highway, we assert the freedom to drive and to have a driver's licence and an automobile, but as we drive we are restrained by white lines and yellow lines, stop signs and stoplights and all the laws we have. Everything we do is somehow defined and constrained by certain laws.

I do not think we should have absolute unhindered freedom to produce the kind of garbage that places our children in danger in this country.

A Parliament, a nation, a people and a society that cannot place our children truly in a priority position of safety and protection is not a good society. It is a weak society. It is a crumbling society. If it cannot protect its own young people and its own children, it is a society that is on its way to destruction.

We need to remove all kinds of pretended defences for things that place our young people at risk. It is absurd to think that some artist should have the right to depict these kinds of things when it puts our children at risk and when that very depiction is there only for the promotion of evil, for the promotion of predatory thoughts and actions.

We believe that this government needs to go back to square one with this legislation. This will put it back to square one. It needs to start over and put in something here that will be in keeping with the motion this House passed just last week.

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

Mr. Speaker, it is a pleasure for me to speak today on Bill C-20, now at report stage.

Last week, the House unanimously adopted a motion that made quite clear how distasteful we all find those who exploit or hurt the most precious members of our society, our children. They are also the most vulnerable members of our society. Our children need all the protection society can provide. If society cannot protect those we hold most dear, it has failed to do its most fundamental duty.

Members are sometimes taken by surprise. Sometimes that is good; other times it is not. This week, I was extremely surprised to receive an e-mail message from Mr. Sharpe himself. I think that the parliamentary secretary also got one. For this pornographer—because that is what he is—to write to the members of the Standing Committee on Justice and Human Rights as a legislative analyst and legal commentator of our work is very perplexing, to say the least.

From the outset, the Bloc Quebecois has been trying to protect our children from individuals like Mr. Sharpe. We are trying to ensure that our children cannot be hurt or exploited by perverts with rather warped notions about human relationships.

During committee meetings, there were numerous debates, including one on the defence of serving the public good. Initially, the defence of serving the public good was not defined or set out in Bill C-20 and so was quite broad. One after the other, numerous witnesses and experts appeared before the committee to tell members that the concept of public good had to be defined. In committee, the Bloc Quebecois moved an amendment in this regard, which served as the inspiration for the final definition found in Bill C-20. As a result, this bill was improved in committee.

One of the Bloc Quebecois' amendments concerns minimum sentences, and I wish the government had been open to this. The public feels—and I understand this—that sentences for sexual predators and child pornographers are not tough enough.

It was in response to this concern that we proposed an amendment prescribing a minimum sentence. For example, for a maximum sentence of ten years, I proposed a minimum sentence of one year. It is a rather short sentence, but it is enough to send an important message to the effect that the elected members of this House and the general public want to ensure that the sentences imposed upon these perverse and twisted individuals are harsh enough.

I was hoping that the government would seize this opportunity to have a debate of a much more general nature on minimum sentences.

I had the support of both Alliance members and Progressive Conservative Party members, as well as some government members. Unfortunately, I did not have time to convince a sufficient number of them.

I think that it is our duty as members of Parliament, elected by the people, to address this serious issue and to decide collectively to send a clear message to the judiciary. This message would say, “We, parliamentarians, believe that, because our children are so precious, so vulnerable and so dear to us, those who commit these types of offences cannot get away without a mandatory jail term”.

All this to say that the Bloc Quebecois is against the amendment brought forward by the New Democratic Party. I am still not clear what its purpose was. The Bloc Quebecois is asking members of this House to oppose this amendment. It is also asking them to support Bill C-25. We will come back to that at the third reading stage.

We are also asking the House to explore the possibility of imposing minimum sentences. This would ensure that those who prey on our children get the clear message that harsh punishment awaits those who commit these repugnant acts.

[Inky Mark, Canadian Alliance, Dauphin—Swan River, MB]

Mr. Speaker, I am pleased to be involved in today's debate at report stage of Bill C-20, an act to amend the Criminal Code regarding the protection of children and other vulnerable persons.

The reason I read the title of the bill is because we pass a lot of legislation in the House with great intent, but when it comes to the actual effectiveness of the legislation, it becomes very questionable.

I would like to congratulate my NDP colleague from Vancouver East for her success in having one of her amendments accepted. That in itself is a success because most times it is not easy to have amendments accepted in any legislation. I have been successful in the past with some amendments I have put forward on bills. The problem is that when amendments come to the House for debate and a vote, most times they end up being defeated.

The PC Party of Canada supports the amendment regarding the deletion of clause 7. Clause 7 probably took up half the time for public hearings on the debate over artistic merit and exactly what public good meant. Both sides of the argument were heard. There was no agreement as to how effective this clause would be if left in the bill. Even opponents were not sure of its affect and how it would relate in court. The artistic community felt it was unnecessary. Some individuals felt the clause was too broad. The PC Party does support the amendment in that it will delete clause 7 of the act.

We need to come back to the focus and intent of Bill C-20. The bill is about the protection of children in this country. A large majority of members in the House are parents themselves and have raised children. Perhaps many are grandparents. We all know that children are our most vulnerable and precious gifts. Whatever we can do to protect them from harm is laudable and that should be our prime focus.

Unfortunately, when we get into legislation, we tend to lose touch with its intent. We are so busy trying to make everybody happy that we lose focus of its intent, which is the protection of children and other vulnerable persons.

Canadians have great expectations of members in the House of Commons. On this very subject, Canadians want the House to remove all loophole wording in Bill C-20. The deletion of clause 7 is a good step.

Canadians want the age of consent for teens having sex with adults raised from 14 to 16. The greater public expects the House to add tough minimum mandatory sentences to all laws regarding adults having sex with underage teens or children.

Canadians have great expectations of members of the House of Commons. Unfortunately, we will probably fail them again like we did yesterday during debate on the sex offender registry, Bill C-23. The greatest shortcoming in that bill was the lack of retroactivity. In other words, what about all those convicted pedophiles of the last 10 years? We will not know where they are. We know that for repeat offenders the probability is quite large, especially for those who have been convicted of pedophilia.

Let me go back to clause 7. Under Bill C-20, the existing defence of child pornography, which is artistic merit, educational, scientific or medical purpose, is reduced to a single defence of public good. This leaves in the hands of judges the determination of what constitutes public good.

In fact, I am surprised and disappointed that the parliamentary secretary said this morning that the government will be opposed to this amendment. Furthermore, despite the minister's attempt to sell Bill C-20 on the basis that the artistic merit defence had been eliminated, he admitted recently in the justice committee that it is still included under the broader public good defence.

The PC Party calls for the elimination of all defences that justify the criminal possession of child pornography. Of course, the criminal possession of child pornography does not apply to those in the justice system for purposes associated with prosecution, or by researchers studying the effects of exposure to child pornography.

Another shortcoming I alluded to, was the age of consent. Bill C-20 fails to raise the age of consent for sexual contact between children and adults. Instead, the bill would create a category of exploitative relationships aimed at protecting people between the ages of 14 and 18. In determining whether a person is in a relationship with a young person that 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 person over the young person. This category is a vague provision that fails to create the certainty of protection that children require. It would not serve as a real deterrent and would simply result in longer trials and more litigation.

It was already against the law for a person in a position of trust or authority, or with whom a young person, someone between 14 and 18, was 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 would add legal protection for young people.

As well, Regina v. Sharpe carved out two exemptions to the child pornography law: material such as diaries or 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, kept by the person for personal use. The latter exemption would have the potential to expose children aged 14 to 18 to further exploitation by child pornographers since they would be engaging in legal activity.

By the government's failure to prohibit all adult-child sex, children continue to be at an unacceptable risk. Only by raising the age of consent would children be truly protected under the Criminal Code. We are not advocating criminalizing teenagers. As with other jurisdictions with a more reasonable age of consent, such as the U.K., Australia and most U.S. states, a close-in-age exemption would apply to ensure that teenagers were not criminalized.

Another aspect where Canadians expect change is in the sentencing of those convicted. Bill C-20 would increase maximum sentences for child related offences. These offences include sexual offences, failing to provide the necessities of life, and abandoning a child. This is meaningless if the courts do not impose the sentences, and we know by experience that when maximum sentences are raised there is no corresponding pattern in the actual sentencing practices. What is needed are mandatory sentences, truth in sentencing by eliminating statutory release, and no conditional sentences for child predators.

It is high time that the House, in passing legislation, protects the intent of the legislation, in this case Bill C-20, in regard to our children and other vulnerable persons.

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

Mr. Speaker, I am pleased to address the amendment and talk about this issue one more time.

I am at a point of true frustration when it comes to this particular issue, which I consider to be an absolute no brainer.

We have in the country people who own, possess, manufacture, sell and profit from the exploitation of our children through child pornography. It is a big industry. It is creating a great amount of risk for our kids throughout the country.

We continually sit back and debate the legalities of this or that, or one thing or another. We are fearful that we might step on someone's toes and harm some individual who has some artistic talent or is a great writer of some sort. That is the most frustrating part about this whole episode.

Are we truly taking the steps necessary to protect the children of our country? Are we? We are debating legal parts of a particular bill. By the way, all the expert witnesses before the justice committee indicated that this was not the way to go, that it was a bad bill and would not achieve its goal. All the expert witnesses said that in the committee. Yet the committee has brought the bill forward with no changes.

While the justice minister stands on his feet with his parliamentary secretary and others insisting that this will be the great thing that will protect our children forever and ever, the legislation is still allowing a defence of public good which no one can define because it is too broad.

Therefore, I applaud the NDP for bringing forward a motion that would delete clause 7 of Bill C-20. The bill needs to go back to the minister's office, back to the justice department, and it needs to reflect the will of Canadians.

What is the will of Canadians? We had a vote in the House of Commons. All members who were present stated loud and clear that, on behalf of their constituents, they were casting a vote in favour of eliminating all defences that exploit children when it comes to child pornography. That is not some defences; that is not one or two defences. That is all defences.

There is no debate about what certain experts are doing with this material in trying to fight it, for example, police have possession of it because they confiscate it and they want to get to the bottom of it so they can clean it up. However, what stops them from doing their job properly? It is weak legislation like Bill C-20. They have to examine this material because it might have some public good.

I fail to understand what kind of possible public good could come out of something that exploits our children in the manner that we have all witnessed through different methods.

I too received a letter from John Sharpe. It was a wonderful letter. It is not very often that an MP can brag about getting a letter from a pornographer. The member from the Bloc said he received a letter. I think several of us received this letter from this ingenuous artist who has artistic merit in his writings, who even dared to put a quote in about how some people were saying that a sexual relationship between an adult and a child was healthy and it should be blossomed and encouraged. It stated that teachers in schools should have sexual relations with their students because it was good. What are we coming to when we allow that to go on?

It takes real courage and determination to say no, we are not going to allow it, it is utter nonsense that we even entertain these kinds of things, and we are going to end it.

Bill C-20 will not end it.

Clause 7 of the bill allows “public good”. It is a broad statement and nobody knows what it really means. Sure, I support the motion to get rid of that clause, and far better yet, I say, we should get rid of the bill, go back to the drawing board, start over and say that we are going implement something that has some real teeth in it, something such that judges will clearly understand that the people of Canada, through their elected representatives, want child pornography wiped off the face of the earth. Let us say that we are going to put all our ammunition toward fighting this war and get the job done.

Instead, we debate and debate. I am so disgusted with the media across the land, with the news items and all of that which they keep flourishing while they do very little on this extremely dangerous thing that is affecting our children. I wish the media would get off their rear ends and start telling the truth about what child pornography is all about and how it is harming this nation. When we start harming our kids, we harm our families and we harm the nation. As my colleague said a few moments ago in his speech, a nation that allows this to carry on is a nation that is doomed.

Let us talk about democracy. We had a vote in the House of Commons. You know what the vote was, Mr. Speaker. Everyone said yes, let us have legislation that will eliminate the defences for child pornography. Let us eliminate them, everybody said.

On that side of the House, they all know that Bill C-20 does not do that. How can they, with good conscience, stand in the House of Commons and declare on one day that this is what must happen and be proud of it--and I was proud of them for doing so--and then turn around and defeat a motion on this amendment because they want to keep Bill C-20, which does not accomplish the job. And they know it.

The justice minister needs to give his head a serious shake if he thinks for a moment that Bill C-20 is the answer to defeating child pornography in this country. He needs to listen loud and clear to those who appeared as witnesses at committee and said how ineffective this particular bill is in accomplishing a very important mission for the sake of our kids, our grandkids and our future grandchildren.

[An hon. member]

The police are asking for help.

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

The police are asking for help. Even the judges want a clear definition. When something comes to their court they do not want to have to decide based on some possible little clause that would provide an excuse to have a good defence. It would tie up the courts forever and ever. All the lawyers would get rich.

How disgusting it was when I listened to one person from the Liberal government being interviewed. I believe it was the member for Scarborough—Rouge River. When he talked about the motion that was voted on last week he simply said that it was nothing more than a motherhood statement. Darn right it was a motherhood statement: it is a statement that every mother and grandmother in this country is crying out.

[An hon. member]

And every father too.

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

Every parent, every grandparent, every aunt and uncle, and every friend of a child is calling out, “Put an end to this nonsense”.

I am so frustrated today that we have to debate this one more time, that we have to take the time of the House and spend it debating a no-brainer. We just are not going to tolerate it anymore.

Zero tolerance means zero tolerance, and for Mr. Sharpe and all the rest of the pornographers out there who want to write letters to all of us, I have a short, quick message. They might as well stop, because this member is not going to stop until their actions and activities cease to exist, for the sake of our children.

And it has to happen today, because I think today could be our very last opportunity. I ask members to please honour their democratic decision last week, support this motion, get the bill back to the drawing board and do it right.

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

Mr. Speaker, it is my pleasure to address Bill C-20, in a perspective slightly different from that of the previous speaker of course, but it is the role of Parliament to offer different perspectives.

I would like to start by thanking the members of the Standing Committee on Justice, particularly the hon. member for Charlesbourg—Jacques-Cartier, in the beautiful area of Quebec City, Quebec's national capital, who has worked very hard with all the parliamentarians on the committee to report an improved bill.

We must remember that this bill was in response to court decisions attempting to determine what constituted child pornography offences and what constituted the right to freedom of expression. Any attempt to oversimplify this issue should make us suspicious.

The basic premise of the bill is a real and perfectly defensible one and I think it is a bit of an exaggeration to say that we are opposed to it. We must not change or allow the law to be changed in such a way that children under the age of 14 could have sexual relations with adults and vice versa.

There is a bias in this bill reflecting this reality. Representations were made by a number of groups, and parliamentarians as well. Also, I had the pleasure of exchanging ideas with a member of the other place—I do not think our standing orders allow me to name her—who has been looking into this whole issue of sexual exploitation for a decade. She testified before the subcommittee on solicitation laws.

Our colleague from the NDP proposed a motion to the committee on which I represent the Bloc Quebecois with our colleague, the critic for justice. The senator made us realize that, of the problems we are facing, human trafficking is the biggest. Bigger than property trafficking, and bigger than drug trafficking. The danger exists that children will be used and exploited for sexual purposes.

The Bloc Quebecois supports this bill because it creates a new criminal offence in Canada that did not exist before. It amends section 153 by adding subsection (1.2), which stipulates that, in order to determine that a person--meaning a adult--is ina relationship with a young person that isexploitative of the young person, a judge may take into account thenature and circumstances of the relationship.

Under the Criminal Code, it is already an offence to have sexual relations with anyone under 14 years of age, and that is understandable. There should be something beautiful, egalitarian, and noble about sexuality that contributes to personal growth, which is not the case for 11-, 12- or 13-year-old children who do not have the maturity or experience to engage in, enjoy and benefit from a sexual relationship.

That is how the Criminal Code used to deal with this. For decades now, courts have been convicting individuals who have sexual relations with children under 14 years of age. This bill makes it clear not only that a adult in a relationship with a young person that is exploitative of that young person—note the use of the word exploitative—cannot have sexual relations with the young person, but that the nature of the relationship will be taken into consideration. Originally, the bill set out a number of criteria to be used to determine if a relationship was exploitative.

The first of those criteria was, of course, the age difference between the adult and the young person. The second one was the evolution of the relationship, and the third one was the influence the adult had over the young person.

The Standing Committee on Justice, as I understand--the parliamentary secretary may nod if I am right--added a fourth criterion, namely the age of the teenager.

That goes to the heart of the bill. We believe all those things are relevant. The biggest traffic in the history of mankind, no longer of goods only, but of human beings, is a problem compounded by Internet and new communications technologies. It is now possible to get a lot of information and have access to sites showing teenagers.

This is why a new offence has been added to the Criminal Code; it is aimed at those individuals who have sex with children under 14.

The issue is not as straightforward as it may appear, because of the right to freedom of expression. Of course, no one would claim that freedom of expression justifies having sex with a person under 14. The Supreme Court handed down a decision. What did it say about child pornography? I would like to quote the following:

I conclude that “artistic merit” should be interpreted as including any expression that may reasonably be viewed as art. Any objectively established artistic value, however small, suffices to support defence.

What the Supreme Court said is that we should never interfere with an artist's creative process. As law makers, we are certainly concerned by the Supreme Court's very broad interpretation of freedom of expression and creative process. This is why we had to set limits.

Bill C-20 says that if the depiction of sexual acts with teenagers goes too far, under Bill C-20, it will not be accepted even if it is part of a creative process. That is indeed setting limits.

The definition that would be found in the bill, if passed, would include some safeguards. Thus, we would talk about material that might objectively consist of child pornography, and I quote:

c) any written material the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual activity with a person under the age of eighteen years.

This would be an offence under the current legislation. We understand there should be a balance. We agree that there might be painters or other artists who will, in their creative process, reproduce scenes of nudity that might involve children. What we do not agree with is written material the explicit and dominant characteristic of which is the depiction of an activity for a sexual purpose and involving people under the age of 18. I think the difference is extremely important.

I was a little sad about the comment from our Canadian Alliance colleague. He suggested that some parliamentarians, because they support Bill C-20, might agree with the fact that there are sexual activities without consent with children. I think we must recognize and say that this is not the objective of the bill.

In substance, the bill would create a new offence, the exploitation of children with the intent of having sexual activities. It would include safeguards in this definition.

When this offence is brought before a court of law, we believe there would be enough safeguards to ensure there is no abuse.

The time that was allowed to me to make my point on this issue has expired.

[Wendy Lill, NDP, Dartmouth, NS]

Mr. Speaker, I rise today to speak to the amendment to Bill C-20, put forward by my party to delete section 7, which would remove the defence of artistic merit from the child pornography legislation, draft Bill C-20 before the House.

I start by saying the New Democrats and certainly myself are extremely concerned about child pornography and want to see it eradicated from the face of the earth. As parents, as artists, as parliamentarians, we all believe that we need to find many new mechanisms to ensure that child pornography cannot exist and that it gets no sustenance in this society. We believe there is a lot of good in Bill C-20 and some real progress is being made here.

I want to make that point because it is important to make it right off the bat. We are trying to change a bill which is ostensibly about protecting children. To oppose parts of it does not mean we do not want to protect children. Of course we want to protect children.

We want to talk about the fact that clause 7 weakens the whole bill. It weakens the ability to work against child pornographers. We heard witness after witness who came before the committee, from the Toronto Police Association to the B.C. Civil Liberties Association, to the Canadian Conference of the Arts to the Canadian Bar Association, indicate that clause 7 was problematic because the language that was used was vague and contradictory.

We do not want that kind of statement or those concerns when we talk about legislation which judges then have to interpret and which police on the street have to interpret and make snap decisions about whether they can take something to court and win. We want to make clear that the defence of public good at this point in time is not clear enough to be of any good in the fight against child pornography.

There are three reasons why clause 7 should be removed from the bill. One is that it does not, in our estimation, in any way further protect children from child pornographers. The law as it stands already criminalizes possessing and distributing child pornography. During the justice committee hearings on Bill C-20, many people brought up the silence around child abuse and how important it was not to return to the time when children and adult survivors of abuse could not talk about it. I want to read a letter from Ian Murray of Current Projects. He said:

The desire to punish those who would bring the abuse of minors to the public view while ignoring the actual victimization of children is a pattern I saw often growing up in the Catholic Church in Nova Scotia, working with abused youth in the Arctic and working as an artist and teacher.

Censorship, like abuse of minors, is an abuse of human rights. It is part of the same power relationship. You are following the pattern of the abuser who says “telling is a sin” while using the silence to continue the abuse.

It would be far more helpful to the protection of children to concentrate on the prosecution of people who abuse minors and those who silence the victims rather than suppressing information about abuse, which is what this law does.

I note that a number of institutions that are currently being sued for or found guilty of aiding and abetting criminal sexual abuse of children, including many churches, schools and the Government of Canada, support this law. Those who have exposed the sexual abuse of children through stories, pictures, plays, film, video, comedy, television programs and songs oppose this law. That should tell us what side the silencers are on. The vicious abuse of children at Mount Cashel is a perfect example of the power of the state and the church working together to silence victims.

As a society we need to deal with the power relations that lead to sexual abuse of minors. We need to talk about it and expose those images and confront the abusers. This law, at the present time with this section in it, makes this illegal.

I would like to move to a second reason why we think it is important that we make an amendment to Bill C-20 and remove section 7, and that is for the protection of artists.

The new defence of public good is too vague and unproven. It would take years of jurisprudence from the courts to decide exactly how to apply this defence in relation to child porn laws. It would literally take years to try to puzzle through it. Will museums be prosecuted for holding classic works of art that depict children in sexual acts? Will libraries, which protect the rights of Canadians to read any and all kinds of literature, have to clear the stacks of any books that might suggest teenagers had sex with adults? This is a slippery slope. Judges and courts should not decide what is for the public good, just as they should not be deciding what has artistic merit.

The third reason why we cannot support this clause in the bill is that it is too vague and leaves both the courts and the police wondering exactly how to prosecute someone and who they can protect.

I want to quote what Detective Sergeant Paul Gillespie of the Toronto Police Service said when he came before the justice committee meeting on October 7. He said:

We've seen what happens when police are left to define what is or isn't artistic merit. We'll be fighting about this one for years. Police would simply appreciate laws that are very clear and that will allow us to make better informed decisions at the time we are required to make them. Wording that is very open to speculation and suggestion and not quite clear makes it very difficult for officers to understand exactly what they're supposed to be doing. I can tell you from experience that when officers aren't quite sure of the wording, they don't do anything.

The Canadian Bar Association, representing over 38,000 lawyers in Canada, also found section 7 vague and contradictory. As written, it says the intentions of an accused are both relevant and irrelevant. Its brief to the committee warned this inconsistency may actually attract constitutional scrutiny and should be redressed.

I want to just say something about what I think is a question on everybody's mind or sits beneath all of this debate. That question is: what is the difference between art and pornography? With respect, I believe that one can tell the difference. I do not believe it is quite as murky as some might believe.

I believe pornography sensationalizes and glorifies. It seeks to deny the truth of what it purports to represent in favour of fantasy or fabrication. Art, on the other hand, seeks truth. Even when art is not a literal depiction of everyday reality, even when it employs fantastical imagery or ideas, it aims to hold up a mirror in which people can see their everyday lives, their emotions and their aspirations reflected. Any legislation in this area should reflect that critical essence of what art is.

Members from the Alliance have already complained about the courts deciding legislation around same sex marriages. Clause 7 would make law the responsibility of the courts to decide how far a bill extends. That is not the role of our judiciary; it is our role as legislators.

In conclusion, we in the New Democratic Party feel section 7 of Bill C-20 is too vague and contradictory and it clearly does not serve the people who are on the streets trying to fight child pornography. It does not serve children. It does not serve the artists and people in the country who have a deep need to express the damage done to them through sexual abuse and violence at the hands of adults.

There are many areas of Bill C-20 that we want to support. It does extend protection for children and other vulnerable people. However, we cannot support treating all work that deals with children and sex as pornography.

It is important that survivors can speak or draw about their experiences without facing prosecution. It is important that artists can explore, not just the virtuous part of society but also its evil side.

The NDP hopes that the rest of the House will agree that section 7 needs more debate and fine tuning and that it should be removed from Bill C-20.

[The Deputy Speaker]

Is the House ready for the question?

[Some hon. members]

Question.

[The Deputy Speaker]

The question is on the Motion No. 1. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[The Deputy Speaker]

All those in favour of the motion will please say yea.