Debates of March 21st, 2003

Criminal Code

[Dick Harris, Canadian Alliance, Prince George—Bulkley Valley, BC]

Madam Speaker, in February 2002, Mr. Justice Shaw of the Supreme Court of British Columbia, using whatever logic or rationale that may have prevailed on that particular day, ruled that the written works of acknowledged pedophile Robin Sharpe, which depicted young children in various sexual poses, depicted young children as victims of sexual violence, and depicted young children being brutally exploited sexually by adults, “had artistic merit” and acquitted Robin Sharpe of the charges of possession and distribution of child pornography.

This came as an absolutely unbelievable court decision to millions of Canadians. It fuelled the fires of doubt about whether their justice system was working for society. It fuelled the storm of protests over the decisions that we see coming out of our justice system. It fuelled the storm of protests over the mounting judicial activism that has been happening in our country for the last 10 years because governments, such as the Liberal government, do not have the guts to make controversial law and legislation in this Parliament, but rather they would take the cowardly way out and leave it to the judges to make these decisions and expect Canadians to just sit back, abide by some very sick decisions, such as this one here, and accept that because it came from the courts it must be right.

This has not happened by accident. I believe that the push to get controversial or publicly sensitive legislation out of Parliament started way back when Pierre Elliott Trudeau was the Prime Minister of Canada. He and his government put through legislation and he led the charge through the Charter of Rights and Freedoms so that Parliament would never have to make controversial decisions that would make it uncomfortable or nervous. It would be left in the hands of the courts to decide.

The government now brings in Bill C-20 that is supposed to fix this. The defence that it is trying to fix is that the representation or written material has artistic merit or is for educational, scientific or medical purposes. It was certainly the defence used in the case of Robin Sharpe, which Chief Justice Shaw accepted, for whatever insane reason, and certainly, not for the good of society.

Now instead of using the artistic merit, educational, scientific or medical purposes defence, the new bill, which is supposed to fix this thing, proposes that this defence be repealed and replaced by the defence that the material alleged to constitute child pornography serves the public good. This is amazing.

Every sane person in the country could understand that we simply could not attach the phrase “serving the public good” to materials that depict the sexual exploitation of children or the brutality of children by sexual predators either in drawn form or written word. My God, how can we imagine that Canada could accept that a defence could be used that could describe child pornography as serving the public good?

Only a Liberal government that has failed Canadian on so many justice issues since 1993, could come up with a bill like this.

They are not alone. The Liberals on the other side who support the bill, will stand up and say that we have to be careful and that we have to try to determine that maybe there might be some public good in child pornography. They will stand up and vote for the bill. They will be joined by their friends in the NDP party. The member for Palliser has already given notice on this. January 27, the member for Palliser said, and he believed that his colleagues shared his opinion, that:

--if it has not specifically hurt a minor in the production of it, if it is created by people's visual imaginations and if the main purpose of it is not simply about pornography and sexual exploitation, then under the laws people do have a right to their own imaginations and thoughts, however perverse...

That reflects the opinion of the member for Palliser and as he said, “I believe it will be shared by a majority”, of whom, I do not know. It is certainly not rational thinking Canadians but maybe that does not include supporters of the NDP party. However it will shared by a majority if not all of his colleagues. Therefore we are talking about not rationally thinking Canadians.

Mr. David Matas of Winnipeg wrote an opinion on child pornography and artistic merit. Apparently this person is a Winnipeg lawyer. He argued the Sharpe case in the Supreme Court of Canada for an organization called Beyond Borders, which is a leading fighter against child pornography in Canada. He is a very knowledgeable person.

Mr. Matas said that the defence of artistic merit, which is in the legislation now and in the court system now, needed to be narrowed so that only in the case of police officers using child pornography that was drawn or written as evidence in a case against the child pornographer or cases like that could it be allowed. Certainly not the possession by some of these perverts that are running around our country preying on our children.

I am absolutely disgusted at the lack of knowledge that the Liberal government has about how society feels about child pornography. It is a disgusting lack of leadership by the government and we certainly cannot support the bill.

Speaking of disgusting acts, I cannot sit down before I tell the House about something that happened the last two nights in the Bell Centre in Montreal. Some of the fans were booing the American national anthem and booing the presence of American based teams playing in Canada. This as one of the most disgusting and embarrassing things I have ever seen Canadians do. One has to wonder where their priorities are--

[The Acting Speaker (Ms. Bakopanos)]

I apologize to the hon. member but 10 minutes does go by fast.

[Greg Thompson, Progressive Conservative, New Brunswick Southwest, NB]

Madam Speaker, I am delighted to speak to Bill C-20. I want to thank my colleague from Pictou--Antigonish--Guysborough, our justice critic, for his help on this issue. As members know, he is now campaigning to become leader of our party, which I hope he does. I do want to put some comments on the record on his behalf and on behalf of my party.

Bill C-20 is basically the Liberal answer to the John Robin Sharpe case, the pornographic case which became famous in Canada.

There are some aspects of the bill which we take some comfort from in terms of what it will do. For example, clause 5, which amends section 161(1) of the Criminal Code to expand the definition of those convicted or discharged on the conditions prescribed in a prohibition order, can be seen as a positive step. We do not dispute that.

We also believe that positive amendments have been brought forward with regard to sections 151 and 152 maintaining the indictable offence maximum of 10 years while increasing the level of punishment under summary conviction by directing the court to incarceration not exceeding 18 months.

Fundamentally, this debate and this legislation must centre around the harm caused to those most vulnerable in our society, our children. Underlying this, we must give thought to the role of the court in the context of judicial policy making as it pertains to the supremacy of Parliament. We must show how this new legislation will eradicate child pornography. It is our belief that the new legislation will not do that.

We are talking about eradicating child pornography within the context of the artistic merit defence. Unfortunately for Canadians, the legislation does not go far enough and could once again be subjected to judicial interpretation putting our children at risk. There will definitely be constitutional challenges under Bill C-20 if it is passed.

There is an inherent danger to society as a whole when we fail to recognize the detrimental effect child pornography can have at a base level. No one is suggesting that the literary works of Nabokov, who is the author of Lolita or Plato's Symposium , be removed from circulation based on the promotion of sexual contact with minors. Indeed the charter of rights provides sufficient protection for freedom of thought and expression. However the question of what constitutes a reasonable limit is central to this debate and to Bill C-20.

Clause 7(1) of Bill C-20 amends subsection 163(1) of the Criminal Code, defining child pornography to include any written material, the dominant characteristics of which is the description for a sexual purpose of sexual activity with a person under the age of 18 years of age.

While the addition of a clearer section for the purpose of specifically defining what constitutes child pornography is welcome, I suggest that the definition be altered to remove foreseeable subjectivity.

As a definition, child pornography should not be open to interpretation through intent or any other means. The thought process behind the writing and whether or not the work was produced for a sexual purpose should be of no consequence. We need simply state the definition of what is acceptable and what is not. With this clear definition, the judiciary is removed from the public-private nature of the debate. As a remedy to that, a clause was placed in the bill, within section 163, saying that:

No person shall be convicted of an offence under this 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.

We understand the intent of the minister's legislation. I fear the manner in which it is presented will not be sufficient to protect the abhorrent creation of pornographic material depicting children. The public, along with child advocacy groups and members of the House, have called upon the government to produce a clear, concise piece of legislation which would remove completely the chance that materials of this nature would see the light of day. Once again the minister has left open to interpretation by the courts a matter that strikes at the very heart of our democracy.

The intent of this bill is to protect children from all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect. Unfortunately, the definitions of public good will be vague and no level of objectivity exists which will allow a court to decide what is pornographic and what is not. Once again it will be a question of acceptability to the individual. Obviously, an argument as to what constitutes the public good will predominate leaving our children once again vulnerable.

We ask the minister why it has taken so long, and how the legion of lawyers has produced yet again an obviously flawed piece of legislation. This bill has been laying around this place for a long time but they have yet to get it right.

The overall effect of the Sharpe decision by Mr. Justice Shaw had many in society recoiling with dismay. We have heard that today in the House. That a learned judge would in fact open the door to potential pedophiles and those who take advantage of youth, who denigrate images and engage in writings that have a very corrosive effect on social norms, is a travesty.

Works of this nature go against the very fabric of what is acceptable in a moral and just society. There can be no denial that a direct correlation exists between the fantasies of sick individuals and the harm created to children. Why risk the potential danger, 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 or defence of artistic merit.

To remind members, section 1 of the Charter of Rights and Freedoms guarantees the rights and freedoms, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The contention that section 1 limits are justifiable in this case are correct when weighed against the potential harm to children and the intent of Parliament to protect the rights of those most vulnerable. Simply put, it is my belief that the Supreme Court erred when it favourably interpreted the Shaw decision. Unfortunately I do not think the minister's lawyers understand that.

The Progressive Conservative Party has been supportive in the past of the law enforcement community victims' groups and child advocates who are constantly tasked and constantly struggling with a lack of resources available to them. We desperately need legislation that will protect children. We believe that this legislation is not strong enough. I urge the government and the minister to consider some of the arguments being put forward in the House today.

Again, the objective of this new bill is to protect children. It does not do that. Please allow some of the amendments suggested by this side of the House to be considered by the government. Do not just categorically deny the opposition that simply because we are the opposition.

The Government of Canada is here to protect children and that is what we want it to do.

[Ken Epp, Canadian Alliance, Elk Island, AB]

Madam Speaker, I have a couple of things to say on the bill. I think it would be appropriate for me to begin by making a very important announcement.

One hundred and seventy-five hours ago we saw another Epp baby come into the world. I am a grandfather for the fifth time. I will use a term which is unparliamentary but not offensive, it is my name. In the Epp tradition, the baby came into the world just perfectly. He even had a little hair over his ear to match grandpa's, which was very nice.

This grandchild is little Micah. He is the baby brother of Noah and Hannah. When I see him and his older sister and brother I cannot help but think how totally deplorable and depraved it would be for anyone to engage in any activity of a sexual nature with these innocent, young, beautiful children. Nor can I can understand how anyone would get any pleasure whatsoever from depicting, either by written words, by pictures. cartoons or whatever, that type of activity.

I find that totally deplorable. In fact, I do not know of any words in the English language or in either of my other two languages that come anywhere close to describing the absolutely horrific nature of such an activity.

Along come the Liberals and they say that they will introduce Bill C-20. It is a Criminal Code amendment designed to safeguard children from sexual exploitation. It is a very hapless title. It reminds me of the days when I drove a truck. I used to haul big loads with a big rig on the highway. Every once in a while we did not have a back haul. I would be driving the big truck empty simply to get to another destination. I had no load.

That is what the bill is. It has a fancy title but the bill is empty. It does not begin to address the issues that are before us as a society and as lawmakers in this country.

I want to be very specific because I know this is actually a bill that was brought forward to make political hay. The Liberals brought forward the bill with nothing in it to protect children so that we in opposition will have no choice but to vote against it. We will vote against it because it is ineffective. The bill does not do anything to protect children.

In the next election we probably will have brochures in our ridings asking why people would vote for that Canadian Alliance member when he voted against the protection of children. That will be the Liberals' messaging. I find that almost as offensive as the bill itself. I have seen this happen in previous election campaigns.

For the Liberals to use children in such a blatant way shows how really empty they are of any principles at all. I am really distressed about this.

We have, for example, in the bill a move that is supposed to make it easier to actually convict child pornographers. How will we do that if we stand in front of the same judges trying to make the case? In the past we went there and said that something was bad that the person should be convicted of a crime. The defence would argue, no, that this was in keeping with community standards.

It turned out that community standards basically allowed almost anything to go through because it is very difficult to define community standards. They changed that in the bill calling it “public good”. That may be a little more difficult to prove. Maybe community standards sometimes are contrary to public good but, as I see it, they are almost identical in the eyes of a judge in a law court.

The public good could be argued to be served if we simply fail to stop somebody from writing this junk. They would say “that is the public good”, and they would be arguing free speech. I am not against free speech but limitations to a certain degree are valid. In my humble opinion, when it comes to protecting our beautiful, innocent, young children, we stop at nothing.

I would be totally content to say that to depict child pornography in any form whatsoever, written, hand drawn, definitely photographs or films or videos, but even the written stuff and the hand created cartoon stuff, if it depicts children being abused, it is wrong.

We ought to have a law in this country that says that no one can do it. I would even go so far as to write into the legislation “notwithstanding anything in the charter” so that defence could not be used. I would say “notwithstanding anything in the charter, this bill provides that no one may produce or possess, in any form whatsoever, any form of child pornography”. Then perhaps we could stand tall and say that we are doing something tangible to protect our children.

I cannot let my time slip by without making a comment on a glaring omission in the bill, and that is the age of consent. I do not know how it happened in our country that we allowed the age of consent to slip down to 14.

Our goddaughter had a birthday yesterday if I am not mistaken. I know she just turned 12 but that means she finished her twelfth year of life and she is into her thirteenth year. Again, there is absolutely no justification anywhere, anytime for anyone to talk a child of that age into sexual activity. It just is wrong.

Here we have a bill that says we are going to protect children but does nothing with the age of consent. I need to explain this for anyone who may not know what it means. It means that an adult cannot stand up in court and say “I am innocent because she agreed to it”. That is all it means. No one cannot persuade a 13 year old in this country to have sex and get away with it because that is not permitted, but if she is 14, they can. I say that is way too low. The very serious omission in the bill is that it does not address that problem.

We could talk about many other things in the bill but I guess I will have only time for one more in my last minute and that has to do with minimum and maximum sentences.

In the bill the maximum sentences have been increased. Fine, but will the courts use them, or will they continue to give continual sentences?

I had a letter from an individual who actually chastised me for calling for minimum sentences. She said that she did not want minimum sentences for those creeps. She said that she wanted maximum sentences. I wrote to her and told her I understood what she was saying. She wants to punish them to the max, which is right, but, unfortunately, if a maximum sentence is given in the law it prohibits a judge from giving any sentence greater than that. A minimum sentence means that a sentence must be given of at least a set amount.

We should have minimum sentences in a bill that purports to protect children but it is not in the bill. Therefore I will be voting against the bill and my reason is that I truly want to protect children.

[The Acting Speaker (Ms. Bakopanos)]

I am sure that I speak on behalf of all members in congratulating the hon. member for Elk Island for his new grandchild. Thank you for letting the House know.

[Darrel Stinson, Canadian Alliance, Okanagan—Shuswap, BC]

Madam Speaker, I rise today to debate Bill C-20 and the amendment to the bill. I also want to congratulate the hon. member who just spoke on his new grandchild.

I have a big problem with what exactly the government is trying to do with regard to the bill. We all know, or should know, and maybe the problem is that we do not all know, that the government's first and foremost responsibility is the protection of its law-abiding citizens. However it seems that the government has decided to take an easy way out of this. I should explain this to the people at home.

We now have in Canada what is known as judge made laws. The government has allowed that to take place because it lets the government off the hook. Governments are supposed to make laws, judges are to interpret them and lawyers are to debate them. It is easier now for the government to say that it did not intend something to happen in a law and that it was the judge who was at fault for giving that type of sentence.

Therefore, as a member of Parliament, the government in its own stupidity--I cannot put it any other way--decided to give me an out as a member of Parliament when I go home and have to face some tough questions from my constituents, such as the Sharpe decision in regard to child pornography. I can now go home and say that it was a judge who made that decision, not the government.

The fallacy is that we can now lay the blame on the judges, even though the government appoints most of them, because they are not accountable. They do not have to come up for re-election. They do not have to be voted in. They do not have to explain to the population why a decision was made.

[An hon. member]

They're unelected.

[Darrel Stinson, Canadian Alliance, Okanagan—Shuswap, BC]

They're unelected and it lets the government off the hook. Some people call it smoke and mirrors but I call it total deception by the government.

[An hon. member]

Cowardice.

[Darrel Stinson, Canadian Alliance, Okanagan—Shuswap, BC]

Yes, cowardice is a very good word for what the government has allowed to happen.

The function of government is to create the laws. If a judge interprets a law in a way that the government did not mean for it to be interpreted, it takes only a matter of a day or so in this supposed Chamber to change the law so it can no longer be interpreted in that way. However, the government, in its cowardly acts, decided it would not do that because it might be controversial and it did not want to take any type of heat in case it impacted upon it in a coming election.

[An hon. member]

Let the judges take the heat.

[Darrel Stinson, Canadian Alliance, Okanagan—Shuswap, BC]

Let the judges take the heat and let the lawyers be called the dogs of the day for arguing the cases. The fact of the matter is that when we hire lawyers we want our lawyers to represent us to the best of their ability, and then the judge makes the decision.

However, when the decision goes against the good of children, of all people, certainly the government should have the intestinal fortitude or the guts to make the change to protect our children, but it does not. It goes along and tries to pass another bill, which I am sure it will get through, Bill C-20.

Bill C-20 fails to set a clear standard on the issue of the age of consent for adult-child sexual relationships. In other words, we allow our 14 year old children to be bought and paid for by some 60 year old, and we do nothing about it. We have become known in the world as protectors of the child sex trade.

I have had the unfortunate opportunity of seeing some of these programs that the police are so concerned about. Fourteen is at the high end of the age spectrum. These videos show three year olds and four year olds. They are sick and they are sickening. Yet time after time when we find these people and law enforcement collects enough evidence and is finally allowed to bring these people to court, they are let off with a slap on the wrist and we say that we can change these people or the way they do business in regard to child pornography.

I have heard the excuse of artistic merit. Nobody with any reasoning is going to argue about a drawing in a doctor's office, for God's sake, yet I have heard members, and I even have heard the minister, stand up and say that is reason the government wants to have this in the bill. What a load of garbage. It is a doctor's office. We know that doctors have drawings and pictures of body parts, so that does not wash with the public out there.

What does get the public angry is that when these people are sentenced they can go right through the whole system without treatment and be allowed to go back onto the street. They are allowed back onto the street to ply their trade, and that is all it is. These people are in it for the money and are using our children to make the money. They go through the prison system without even having to sit one day to understand what is wrong with their trade.

[An hon. member]

Before they ever get to prison.

[Darrel Stinson, Canadian Alliance, Okanagan—Shuswap, BC]

Yes, many times before they ever get to prison.

Then they are pushed out the door to again go after the children, to be part of our so-called neighbourhood that the government is so worried about.

There are things going on in this country. If the government really wants to know what is going on in the country, it should get its head out of where it has it stuck.

[An hon. member]

They use legal aid lawyers too.

[Darrel Stinson, Canadian Alliance, Okanagan—Shuswap, BC]

They use and they use, Madam Speaker.

I cannot believe that we have allowed this to go on for so long. I remember standing up in 1994 in the House arguing about the same thing, the exploitation of our children in this country. I am not speaking as a father because I do not have children. I have not had the good fortune to have grandchildren. I am speaking as someone who has gone with members from this side, the member for Wild Rose and the member from Bulkley Valley, to see the devastation this has created in our cities across Canada.

There is nothing worse than talking to a girl who is 12, 13 or 14 years old and whose life has been totally ruined through this. They are taken in by gangs and forced into these types of acts. They are forced and we sit here and we do nothing about it. Then I am supposed to go home, along with the other members of the House, and say that I am proud to represent Canada.

Let me say that many times I am not proud to represent Canada because of what we allow to take place in Canada. It is time the government decided to give back to parents the right to start raising their children. The government has to get out of the family business and start protecting those who need protection. It is time, long past time, and sooner or later we are going to reap what we sow.

Why do we have an overabundance of child drug addicts and sexual diseases among children in the country? This is why: The government decided it would be a parent. The trouble is that the government does not understand or realize what being a parent is about. It could care less. This is what is going on in our country. It is going on in our schools and our streets and still the government will turn a blind eye and say it is justified under artistic merit.

That is the guts this government has. It will hide behind judges and it will hide behind interpretations such as artistic merit and say when this happens that it had no idea that this could take place and that the law will be made this way and will be interpreted this way by a judge.

Yet time after time on this side of the House members have stood up and told the government exactly what is going to happen. It has still turned a deaf ear to it and decided it will pass it on by. That is a disgrace. Not only is it a disgrace for the House, it is a disgrace for the country.

[The Acting Speaker (Ms. Bakopanos)]

Is the House ready for the question?

[Some hon. members]

Question.

[The Acting Speaker (Ms. Bakopanos)]

The question is on the amendment. Is it the pleasure of the House to adopt the amendment?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[The Acting Speaker (Ms. Bakopanos)]

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

[Some hon. members]

Yea.

[The Acting Speaker (Ms. Bakopanos)]

All those opposed will please say nay.

[Some hon. members]

Nay.