Mr. Speaker, allow me to begin by congratulating you on your appointment as Deputy Speaker of this House. I know you have always shown great concern for parliamentary freedom and the quality of debate in this House and will protect that freedom.
My congratulations as well to all the new MPs, my new Bloc Quebecois colleagues in particular of course. We are well aware of the extremely clear and strong mandate with which we, and our new colleagues over the way, have been entrusted by our fellow citizens.
Bill C-2 to amend the Criminal Code is an extremely important bill. Important, first of all because it is vital to follow up on the Supreme Court decision relating to child pornography in the Sharpe case, and second because child pornography is such a sensitive issue.
This is an extremely sensitive subject, and of course all members of Parliament are sensitive to anything that might possibly involve the exploitation of children. We do, however, also not want to put a system in that might inhibit artistic freedom, for example. A balance must be struck between the two, and we feel that the initial version of Bill C-2 does this successfully.
To begin at the beginning, the definition of child pornography is quite clear. There have, of course, been provisions in the Criminal Code for a very long time relating to child pornography. What makes this up to date and new is the variety of forms such pornography can now take, through new technologies like the Internet in particular.
For the purpose of this debate, then, we need to keep in mind the definition of child pornography. Clause 7 of the bill is intended as an amendment to section 163.1(1) of the Criminal Code which reads as follows:
163.1(1)(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means:
Electronic here being an innovation. Continuing:
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity
The first component of the definition of child pornography involves the depiction of a child under the age of 18 engaged in sexual activity. The expression “sexual activity” is key here.
The second component of the definition is as follows:
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;
This definition is important since it must ensure that when judges—a judge in an ordinary court of law, but especially a judge in a criminal court—have appearing before them people charged with child pornography, the main component of the charge must be depictions of sexual activity of a person under the age of 18 years.
Does that mean that any depiction of sexual activity of a person under the age of 18 years will prompt the Crown to lay charges under the bill before the House? No, because there will be the same defences as the ones that already exist in the Criminal Code. In this case, there will be a defence that could be raised.
Thus, a charge will be laid if the definition I just read applies. However, the accused might not be found guilty of the charge. There could be situations or depictions of children under the age of 18 engaged in sexual activity that will not be prosecutable. This is the legitimate purpose defence the bill proposes.
What is a legitimate purpose? I will give the exact definition from the bill. The bill creates one defence in cases of child pornography, which only applies if the act has:
--a legitimate purpose related to the administration of justice or to science, medicine, education or art--
Why is this second element important? It is because in the Sharpe case it was possible to introduce two grounds for defence in court. I understand that this bill removes one of them.
It is certain that if a broadcaster regulated by the CRTC showed an advertisement on public television promoting a personal hygiene product such as soap or baby powder or such, and the public saw a child in a bath with another child, such a thing would not of course be subject to prosecution under the bill before the House. It is important to recognize this nuance.
When the Supreme Court handed down its decision in the Sharpe case, concerns were raised about the balance necessary between vigorous protection for those who want to exploit children for the purposes of child pornography and the rights of artists and professionals, such as psychiatrists and those in related fields, to have material that could be used for artistic or professional purposes, but not for the exploitation of children.
The bill also provides other means that may be somewhat less important but which are still justified. For instance, it allows testimony by children under 14. It is not customary for children under 14 to appear in court. Usually there would be an inquiry or a preliminary hearing first. The bill makes it possible to hear the testimony of children under 14. We believe it is completely proper to do so in a context where, considering the circumstances or facts that might lead to a decision that children were exploited for the purpose of child pornography, their testimony could incriminate or clear a person.
In addition, there are various methods of hearing testimony from persons significant to the child, using videoconferences or other such technology.
We in the Bloc Quebecois are in favour of this bill, in principle, but we do have certain concerns. I have not heard any response from the Parliamentary Secretary to the Minister of Justice to the following, which is our first concern. We understand that the bill will set maximum penalties that depend on the offence involved. For the main one I have referred to already, it will go up from 5 years to 10. We understand that sentencing will be affected by certain circumstances judged to be aggravating factors. We do, however, find it hard to understand why no minimum sentences are specified.
I know that some degree of discretion is afforded to the courts and the judges in determining sentences. The member for Charlesbourg—Haute-Saint-Charles will be bringing in an amendment in committee that will, I hope, be supported by all members. The purpose of that amendment will be to ensure that, when a case is heard relating to the new offence created by Bill C-2, there is a minimum sentence depending on whether a criminal prosecution or summary conviction is involved. We feel it is important to have both a lower limit, the minimum sentence, and an upper limit, the maximum sentence.
In short, we are in favour of this bill because it protects our children better. We do want to bring in one or two amendments relating to sentencing. I am sure that all members of the Bloc Quebecois will have a serious contribution to make when the Standing Committee on Justice meets.