Mr. Speaker, I am pleased to rise on this occasion to address the House and Canadians on the matter that has unfortunately captured the attention of the public for a number of years.
Bill C-20, the Liberal answer to the John Robin Sharpe case, has been too long in the making and I am fearful does not go far enough to alleviate the inexcusable production of child pornography.
I will however preface the bulk of my comments by saying that some aspects of the legislation are favourable and under closer scrutiny of the justice committee will no doubt prove beneficial. 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 probation order can be seen as a positive step. The addition of offences under this section will increase a number of offences for which the judge can place an order of prohibition leading to a greater number of victims who will be protected.
We can also view as a positive the amendments in sections 151 and 152 of the Code, 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.
The fundamental question in this debate must centre around the harm caused to those most vulnerable in our society: 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 and we must show how this new legislation will eradicate child pornography within the context of the artistic merit defence. Unfortunately for Canadians the legislation does not go far enough and could once against be subjected to judicial interpretation, again putting our children at risk. There will always most definitely be constitutional challenges.
There is an inherent danger to society as a whole when we fail to recognize the detrimental effect child pornography can have at a very base level. No one is suggesting that literary works be removed from circulation based on the promotion of sexual conduct with minors. Indeed the Charter of Rights and Freedoms provides sufficient protection for freedom of thought and expression. However the question of what constitutes a reasonable limit is central to this whole debate.
Clause 7(1) of Bill C-20 amends subsection 163.1(1) of the Criminal Code defining child pornography to include any written material the dominant characteristic of which is the description, for a sexual purpose, of sexual activity with a person under the age of 18 years. While the addition of a clear section for the purpose of specifically defining what constitutes child pornography is welcome, I would suggest that the definition be streamlined to remove foreseeable subjectivity.
As a definition, child pornography should not be open to interpretation through intent or any other means. That is to say the thought process behind the writing and whether 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 the clear definition, the judiciary is removed from the public-private nature of the debate. As a remedy to the problems associated with Section 163.1(6) of the Code, clause 7(2) replaces section 163.1(6) with:
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.
While I understand the intent of the minister's legislation, I fear the manner in which it is presented will not be sufficient to protect against the abhorrent creation of pornographic material depicting children. The public, along with child advocacy groups and members of the House, has called upon the government to produce a clear, concise piece of legislation, which would completely remove the chance works of this nature would see the light of day.
Once again the minister has left the door open to interpretation by the courts, a matter that strikes at the very heart of our democracy. The intent of the bill is to protect children from all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect. Unfortunately, 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 vulnerable.
I ask the minister why it has taken the government so long and how his legion of lawyers could have produced yet again such an obviously flawed piece of legislation which is going to raise more questions than it answers.
The overall effect of the Sharpe decision by Mr. Justice Shaw had many in society recoiling with dismay and shock. 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 societal 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 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.
Section 1 of the Charter of Rights and Freedoms guarantees the rights and freedoms set out in the charter “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The contention 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, it seems the minister's lawyers have weighed the rights of the individual against the rights of the child and we are once again left with a mediocre attempt to correct what the Canadian public realizes is a serious problem.
If the Liberals are unwilling to protect the rights of the children and, by extension, their families, I suggest they might at the very least take the opportunity in the upcoming budget to consider supporting victims of crime financially.
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 the lack of resources available to them. As I have said before, what could be a more fundamental issue?
We know that the lasting impact on victims of sexual abuse is sometimes a life sentence. Very often the mental anguish and the detrimental effect on the development of young people is everlasting. It is certainly incumbent upon Parliament to take every available opportunity to make for a safer and kinder society.
There is a need for victims to have more support, a stronger voice, an ability to be heard in a substantive way by the individuals who ultimately will decide whether a person be incarcerated and, after the fact, whether the person will be released. It talks directly to the issue of respect for and dignity of victims.
It is clear that there has to be an equitable approach taken by the government. This is why we need a victims' ombudsman's office. We have a budget specifically set aside for the commissioner of corrections to deal with the concerns, some legitimate and some not, of federal inmates. There is a federal budget allocated to ensure that inmates, some of whom are serving time for absolutely heinous crimes and have victimized numerous citizens, have an office where they can go if their situation in prison is not to their liking. Yet victims very often are completely ignored. They have no outlet, no central office in the country, where they can go to find out about important things like parole hearings or information pertaining to response or treatment.
While we debate the merits of the bill, elevating the philosophical discussion of the public good, it becomes evident that this legislation is a far cry from solving the problems associated with the Shaw decision. For the sake of the children the government must do better.