Mr. Speaker, I am pleased to rise to speak to this debate because I feel the issue is very important. I appreciate the sincerity of the members opposite, even though I find myself somewhat at odds in certain areas with some of their remarks.
My biggest fear when the government came to look at this question of child pornography, particularly the section that was cited in the Sharpe case pertaining to artistic merit, was that it would go in the direction of closing down on the artistic merit clause and interfering with freedom of speech basically.
One of the issues with respect to child pornography is that it has been the subject of great literature in the past. Romeo and Juliet and Lolita are two famous works of art that spring to mind. The danger is, if we so hastily, in trying to put limitations on child pornography, put restrictions on literature and freedom of speech we make a very big mistake. I think even my colleagues opposite would agree that freedom of speech like the rule of law and democracy are principles that have to be kept at the highest level of protection, even if it means sometimes having to put up with shall we say very bad literature or a very bad intent in the creating of salacious material.
The problem with the artistic merit defence and what happened was that it left the courts with the dilemma of trying to decide what artistic merit was. That was an unacceptable situation. We can say that Shakespeare and Lolita are examples of art, but there are other pieces of literature, somebody's private attempt at a short story or something like that. Who is to say whether it has artistic merit, particularly if it is not receiving any kind of distribution or opportunity to be assessed by the public? It was a bad provision as a defence for something that could be deemed otherwise as child pornography.
The government's attempt now to say basically in a section that an item would not be considered child pornography if it were deemed to serve the public good is much broader. It allows a lot more latitude and I think we can trust the courts to make a distinction between something that is gratuitous child pornography or even worse, that has created the child pornography for profit. What we really want to do is get at those people who undertake child pornography to make money.
That raises another issue. I am not sure in what I read here whether these amendments deal with the question of where the written pornography, could be inscription, is not meant for distribution; that a person writes their own private thoughts. That raises some very interesting issues of privacy as a fundamental right, as the Privacy Commissioner is wont to say. Is something we write down, a drawing we make or words that we write, if it is never distributed beyond our desk or beyond our home and if it is not seen by other people, or if seen, only in a very private way, should that constitute an offence under law?
The government has inserted a new subsection that says “For the purpose of this section”, the child pornography section, “it is a question of law whether any written material or visual representation advocates or counsels sexual activity”.
I am not a lawyer but I would hope the question in law is whether the offensive material is meant for distribution or meant to be held privately, because in the end it is not the business of the state to try to correct the individual behaviour of people when that behaviour has no impact on the people around them.
If somebody is mentally sick, as indeed somebody who is a pedophile certainly is, the state should not punish that person simply because they are sick. It is when that sickness has an impact on other people, particularly children, that the state must intervene. That is the other thing I have observed here.
I am not sure that the amendment makes it clear that punishment for child pornography should always follow where there is a victim. This is why a visual representation of child pornography should always be against the law and should always be punishable. Where there is photographic representation of a child, or a woman for that matter, or any person in an abused situation, the possession of that photographic image is in fact condoning and co-operating and is party in the original crime. I would say that without any doubt that type of pornography is a crime.
The government addressed a very important issue and it is an issue that has not been mentioned so far. That is the business that has arisen since the Internet has come upon us where people use secret video cameras to record people in compromising positions. The government has added that as a criminal offence under the statute. It is so appalling that I even hate to discuss it, but these are people who take secret cameras out and try to portray people in sexual positions and then sell them on the Internet. The bill very explicitly goes after that, and that is a very positive thing.
The bill does one further thing. Pertaining to this business of getting secret visual recordings of people who are nude as part of an invasion of privacy, there is a subsection that states:
Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, publishes, distributes, circulates [that material]...
What has given rise to these secret recordings of people having private sexual activity has been the Internet. If I read this section correctly, it means Internet distributors of that material would be subject to the penalty under the law.
The difficulty is that I do not know how that could be policed because the Internet is international. It goes all around the world. It is just like child pornography. Where this type of criminal recording might come from is very difficult to determine. One would presume that if this law passes, it will enable authorities to approach the immediate servers who might carry this type of material and advise them that they are breaking the law if they do not try to prevent this from happening. I wish this section would also apply to child pornography in general and I am not sure it does. As one of the members opposite pointed out, a lot of this issue has arisen as a result of the Internet.
Any legislation that comes forward in the House that materially and substantially protects children or anyone else from being abused for profit so that voyeurs of any kind do not have the opportunity to pay money for people to be hurt, both mentally and physically, to satisfy their sick desires, is a step in the right direction. I applaud the government for being sensitive to the question of freedom of speech.