Mr. Speaker, I rise today to speak to Bill C-2, an act to amend the Criminal Code in regard to the protection of children and other vulnerable persons.
First, I want to be very clear that there are some aspects of this bill that are worthwhile. I applaud those measures. For example, Canada is in need of legislation to deal with voyeurism and the distribution of voyeuristic material. As a matter of fact, there is a lady from my home province of New Brunswick, Julia Buote, who has helped to lead the fight for tougher laws on voyeurism. I commend her on that effort. We also need legislation that helps to facilitate the testimony of child victims and witnesses and this bill provides a step in that direction.
Unfortunately, as we have seen in the House before, these worthwhile measures are thrown in with a bill that still falls far short of what Canadian children require from this government. In short, this legislation allows for the continuation of a dangerous loophole that will allow for child pornographers to continue to possess what should be illegal material.
Much of the controversy over Canada's child pornography laws dates back to the court case of John Sharpe. In the Sharpe decision, the Supreme Court of Canada said that the Criminal Code defence of “artistic merit” should be interpreted as broadly as possible. This helped shape the decision that allowed Sharpe to be acquitted on two counts of “possession of child pornography with the intent to distribute”. The material in question contained violent writings targeting vulnerable children; however, the judge ultimately found that this material had artistic merit.
All across Canada, child pornography cases were put on hold while the Liberal government did nothing as the Sharpe case wound its way through the courts. For two years Canadian children effectively went without legal protection against child pornographers as police were compelled to put investigations on hold pending the appeals.
The Supreme Court held in Sharpe that artistic merit should be interpreted as including “any expression that may reasonably be viewed as art” and that “any objectively established artistic value, however small”, would support the defence.
When the Liberal government finally reacted to public outrage over the Sharpe decision, the response was woefully inadequate. Three times now, first with Bill C-20, then Bill C-12, and finally Bill C-2, which is before us today, the government has attempted to appear tough on child protection, but in reality is not closing loopholes that threaten Canadian children.
Actually, the government has now come full circle and is still including a type of artistic merit defence for the possession of child pornography.
Under Bill C-12 from the 37th Parliament, the existing Criminal Code defences for child pornography, which included artistic merit or educational, scientific or medical purpose, were reduced to a single defence of “public good”.
Despite the Liberals' attempt to sell the bill on the basis that the artistic merit defence had been eliminated, the former justice minister admitted in the justice committee that it was still included under the broader category of public good. He stated, “Artistic merit still exists in the sense that a piece of art will have to essentially go through the new defence of public good...”.
Interestingly, in the Sharpe decision the Supreme Court also briefly considered the defence of public good. The court found that public good has been interpreted as “necessary or advantageous to...the pursuit of, among other things...art or other objects of general interest”. Again, when Canadians discovered this loophole they were rightly outraged.
The Liberals are now proposing, in Bill C-2, another brand new loophole. This time it is called “legitimate purpose”. The new legislation replaces the term public good with legitimate purpose. The defence would be available if the act in question has a legitimate purpose related to, among other things, art, and if the act does not pose an undue risk of harm to children. The loophole for artistic merit has therefore not been closed and what constitutes “undue risk of harm to children” remains open to interpretation by judges.
In its 2001 Sharpe decision, the Supreme Court of Canada stated that artistic merit should be given as broad an interpretation as possible, a strong signal of how the courts view these defences.
I feel the question that Canadians are asking is why the government is contorting itself to leave open loopholes for the possession of child pornography. I believe the problem is that the government's focus is not on doing all it can to protect children but on what the courts might say if we passed effective legislation.
In my opinion, establishing a test of undue risk is an insult to Canadians. Any risk to the safety of children should be met with the strongest response possible.
I ask the government to listen to the people who work on the front lines of child protection. Listen to police offices who have to deal with the tragedy of child abuse. I will quote from Scott Newark, vice chair and special counsel for the Office for Victims of Crime. He said:
Almost invariably, as in the Sharpe case, it gets down to a section 1 interpretation by the courts; and frankly, rather than having the courts determine Parliament's intent, in every single piece of legislation, in my experience, you should be expressing it, particularly where what's involved is choices between priorities.
Again, the Sharpe case is an example of that. There was an absolute recognition in the Sharpe case that child pornography in all forms represents a risk of harm to children.
Sergeant Paul Gillespie of the Toronto Police Service 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.
Now police will be left to determine whether something serves a legitimate purpose or poses an undue risk before proceeding further.
I also want to talk about some other changes in the bill, one being maximum sentences. Again there is an appearance to the Canadian public that the Liberal government is being tough on people who commit offences against children. However increasing maximum sentences is meaningless if the courts do not impose these increased sentences. 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 minimum sentences, truth in sentencing, eliminating statutory release and no conditional sentences for child predators.
All across the country child pornographers are given conditional sentences for their crimes. These people are serving no jail time. Canadians may not be aware of that. How then is raising the maximum sentence going to help when the courts are not even approaching sentencing beyond the minimum sentences? Higher maximum sentences for child pornography will not be effective unless the courts enforce them.
The bill also fails to prohibit conditional sentences and child predators should serve their sentences in prison and not in the community.
I want to touch on the age of consent. The bill ignores the pleas of police groups, child advocacy groups and the provinces by failing to increase the age of consent. The age of consent for adult-child sex must be raised from 14 to 16. On this issue, 80% of Canadians polled have said that they want to increase the age of consent to at least 16 years.
In 2001, provincial ministers unanimously passed a resolution calling on the federal government to increase the age of consent to at least 16.
Like Bill C-12 before it, Bill C-2 fails to raise the age of consent. Instead, the bill creates the category of exploitive relationships. It was already against the law for a person in a position of trust or authority or with whom a young person was in a relationship of dependency to be sexually involved. It is unclear then now how adding people who are in a relationship with a young person that is exploitive in nature will add legal protection for young people.
I believe all Canadians care very deeply about our children. I believe that all members of this House sincerely want to protect children. However the Liberal approach to protecting children consistently fails to put the needs of children ahead of the rights of criminals. This needs to change.
We must act in the best interest for Canada's children and close all loopholes that allow for the possession of child pornography.