Mr. Speaker, it is a pleasure for me to rise in this House to take part in this very important debate on Bill C-12.
The bill is one which capsulates, and very much is intended to address, an extremely important issue, that being the proliferation and possession of child pornography in this country. I am very sad to say that the overwhelming feeling that I and many others, including the previous speaker, have been left with is that a huge missed opportunity is occurring within the pages of Bill C-12.
While the bill attempts to address these critical matters of protecting children in the country, it falls far short. In its final analysis, it is described as a complex and cumbersome bill that will not make it easier to prosecute sex offenders and those who, in many cases, are sexual predators in our community who perpetrate the worst kind of violence on children: sexual abuse, which is tantamount in many situations to a life sentence of turmoil, of complex physical damage, of the type of impact on a person's life from which they never recover.
The responsibility, obligation, upon members of Parliament, those in a position to address the situation, cannot be understated. Here we had a golden opportunity to do something about this egregious situation that is occurring on the streets, in small villages and towns and residences across the country.
The controversy arising in one area of child pornography that came out of the now infamous John Robin Sharpe case, which went all the way up to our Supreme Court of Canada, and the difficulty that remains surrounding the definition of an artistic merit interpretation that was left by the courts allows for a dangerous and broad interpretation of a type of child pornography of which a person might be in possession. This statement not only has allowed but has left open the door for further proliferation of child pornography by individuals like John Robin Sharpe,
There is an important distinction to be made between the types of defences that rely on an exception, if you will, to possession of certain types of materials. I want to be clear in defining that. The courts spoke of essentially three exceptions, artistic merit being one of them, which I personally and many members of the Conservative Party oppose. It also made way for educational, scientific or medical purposes. What we are talking about clearly is anatomy charts, instructional videos for educational purposes that depict a child in a certain fashion.
All of those defences lumped in with artistic merit were, in essence, boiled down by the courts to a single defence of public good. That broad interpretation is what is so dangerous. The former justice minister in the wake of this decision came before the justice committee and essentially admitted that the broader definition of public good defence was still very much one which would leave open the possibility of a person possessing child pornography. He said, and I am quoting from his testimony at the justice committee:
Artistic merit still exists in the sense that a piece of art will have to essentially go through the new defence of public good and through the two stages. Of course, the first question is always this. Does it serve the public good?
That might be the first test, but that second broad category of artistic merit leaves open the possibility that an individual can possess or perpetrate or proliferate child pornography. A zero tolerance definition is needed. No one in any way, shape or form in this country should be encouraged or permitted to possess child pornography, full stop. Yet the bill leaves open that very real possibility. That is the Liberal answer to the John Robin Sharpe case.
I am fearful that any backing away or watering down of a definition such as this will leave that danger out there for young people in this country. There is no excuse for not completely eradicating the flexibility that was left open by the Supreme Court.
That is not to say there are no other elements of the bill that do at least attempt to go further in securing the lives and the safety of children, and I will touch on that in a moment. The fundamental question in this debate must centre around the harm that could be caused to those who are most vulnerable, mainly children.
Underlying this theme, 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 would eradicate child pornography in Canada within the context of the artistic merit defence. Bill C-12 comes up short. The legislation does not go far enough. It does not subject the country to the type of ironclad protections that should be available when it comes to protecting children.
One of the often used defences when we see cases like this is that if we were to bring forward amendments in legislation to shut down any further interpretation there could be a constitutional challenge. Well, as sure as night follows day, in a matter like this there will be a constitutional challenge. If we get caught up in the constitutional constipation that we see constantly from the government, we will leave a lot of people vulnerable. On an issue as fundamental as the protection of children that is unacceptable.
The government is letting down the country when it comes to leaving open interpretations such as artistic merit for child pornography. There is an inherent danger in society as a whole when we fail to recognize the detrimental effects of child pornography at a very basic level.
The Charter of Rights and Freedoms does provide sufficient protection for freedom of thought and expression, and surely a common sense interpretation has to follow, but what constitutes a reasonable limit is central to the debate, the so-called Oakes test that applies when it comes to a clash of constitutional rights protected by the charter.
The existing defences of child pornography are outlined in Bill C-12. Artistic merit is grouped in with educational, scientific or medical purposes. That is misleading and unacceptable. They are reduced to the public good definition. I have already referred to the justice minister's admission that the public good is still a wide open interpretation.
In the R. v Sharpe case, the Supreme Court also briefly considered the defence of public good. The court found that the public good has been interpreted as “necessary or advantageous...the pursuit of science, literature, or art, or other objects of general interest”.
What on God's green Earth does that mean? What are the general interests of somebody so sick as to go out and depict children in a sexual fashion?
The court went on to say:
It might be argued that the public good is served by possession of materials that promote expressive or psychological well-being or enhance one's sexual identity in ways that do not involve harm to others.
Explicitly, child pornography harms children. The making of it, the depiction of children in a sexual fashion, harms children, harms society and tears the social fabric.
The court went on to say:
In some cases this might eliminate some of the more problematic applications of s. 163.1(4). For example, it might in certain cases foreclose the law's application to visual works created and privately held by one person alone, or to private recordings by adolescents of their lawful sexual activity. Nevertheless, the public good defence might not answer all concerns as to the law's breadth. Absent evidence of public good in the particular case, a person might still be convicted for possession of material that directly engages the value of self-fulfilment and presents little or no risk of harm to children. Thus, while the public good defence might prevent troubling applications of the law in certain cases, it would not do so in all.
That admission by the court underlines the problem of leaving the door even slightly open.
We must speak with clarity and strength on the issue. We must call for the elimination of all defences that would justify the criminal possession of child pornography and call for legislation that would criminalize possession of child pornography. Of course the criminal possession of that material would not apply to those in the justice system who have it for the purpose associated with prosecution, for research or for studying the effects of exposure to child pornography, which is consistent with the court's definition of educational and scientific material.
However I would underline again, for emphasis, the fact that through the bill the minister has left the matter open to interpretation by the courts, strikes at the very heart of what we are tasked with in this place.
The intent of the bill should be, first and foremost, to protect children from all forms of exploitation, all forms of child pornography and all forms of sexual exploitation that, in many cases, documented, scientific, anecdotal and otherwise, lead to further abuse. That is something that we should be moving with quickness and with clarity to eradicate.
Definitions of public good that are as vague as the resulting case law, in this case entrenched by the bill, would not leave courts with the sufficient objectivity to decide what is and what is not pornographic.
I would argue strenuously, having appeared in numerous courts, that common sense would prevail and that the judges, given the opportunity to judge on its merits what constitutes child pornography, would find in every case, having run the gamut, that child pornography can be easily identified, and the purpose for which it is being used is the only defence. Allowing that definition of artistic merit to remain in the bill would open a very dangerous element to that interpretation.
I ask rhetorically why the minister would want to leave that interpretation there. Why did the minister and the government wait so long to act? Why did we have to wait, in this instance, for the court to make that ruling?
I know there will be a legion of lawyers lining up to use this defence and I know it will make its way through the courts again. If this bill becomes law, as a result of the flawed drafting that I see, it will very likely wind up back before this place again, so why would we not do it right the first time? Is that not really the goal here, to be efficient, to streamline legislation, to do it right in the first instance?
As my colleague from Lakeland has indicated, that does not appear to be the way the government operates. It is always about waiting to see what the courts will do, or waiting to see what the polls crystallize around, and somehow keeping the political angle first and foremost in its mind. That is not the way a government should operate, particularly on an issue as fundamental as protecting children.
This is an occasion where the government should act with strength, with leadership and with vision on something so fundamental that goes to the very bedrock of our society, protecting our most vulnerable citizens, the children of Canada.
We are left with flawed legislation that could be fixed easily by removing this artistic merit loophole. My colleague from Surrey Central gave a very comprehensive and fact based speech in the House of Commons this morning. He spoke of the need to put resources into policing, the need to help some of the social services that are there, not only to help with the aftermath of violence and sexual exploitation, but to help prevent it. In the cases of policing, he spoke of the shocking figures that exist in some communities where they do not have enough resources for their police.
It is also a telling comment to know that the police do not support this bill. The police forces in Canada have found the bill wanting for some of the same reasons outlined by myself and my colleague from Surrey. They clearly recognize, as do others, the shortcomings.
Similarly, child advocacy groups have found the bill wanting. They recognize that the bill would give no greater legal protection, nor would it assist in the prosecution of these cases.
The bill should be about accountability and about taking steps to hold people to account when these atrocities occur, but further than that, it should also be about deterrence, about setting an example and about holding a person to account. Putting in place mandatory maximum sentences or raising the maximum sentence does not do that because there is no commensurate requirement for judges to follow that sentencing scheme.
It sounds very impressive when we say that the maximum sentence will be jacked up, but there is no requirement in the bill for a judge to follow that recommendation. Mandatory minimums, on the other hand, would. They put in place a minimum sentence.
I would suggest that when it comes to child sexual exploitation there is need for incarceration and for deterrents. Public protection should be first and foremost in the bill.
On the issue of protecting children, I think we could get unanimity in this place if we were to recognize our responsibility to address anything that allows us to further protect society. I am therefore absolutely astounded that this legislation has left open this artistic loophole.
If we were to step outside this bubble, this political world in which we live, and if we were talk to average Canadians, I think we would find that they too are stunned to find that we have missed an opportunity to protect our children. Why has the Liberal government failed to protect all children? Why did it not bring in a more strident and efficient bill? I cannot answer that question and it is a question that I find extremely troubling.
The interpretation of what constitutes child pornography is something with which the courts are wrestling. Works of a nature that exploit children go against the very fabric of what is acceptable and what is moral in a just society. There can be no denial that there is a direct correlation between the machinations and fascinations of some demented individuals that would harm children and what is actually carried out or perpetrated. Why risk the potential danger when the collective will of the people would see any sort of material that would fall into that definition stricken from existence?
In handing down the Sharpe decision in the first instance, Justice Shaw effectively broadened the interpretation that was there for the current exemption of that defence. Although the Supreme Court wrestled with it, it did not sufficiently close that definition.
While it seems that the minister's lawyers have weighted the rights of the individual and the rights of the child, which is a clash I would say that should be certainly decided in favour of the child, we are once again left with a very mediocre attempt to correct what the Canadian public clearly recognizes is a serious problem. Yet the government is unprepared to step up to that challenge.
By being unwilling to protect the rights of children, and by extension their families, I suggest the government might at the very least have taken the opportunity to present in the upcoming budget steps that would allow for the support of families, the support of policing units and the support of social services, and by that I mean certainly elevating the transfer payments that are there and fixing the fiscal imbalance.
The Conservative Party has been very supportive of past and present laws that protect children, the law enforcement community, victims groups and child advocacy groups that are constantly tasked and struggling with a lack of resources and the overwhelming and, sadly, the increasing numbers of cases that involve children.
This is a sad day when we have legislation as fundamental, as critical as this and the opportunity seems to be slipping through our fingers. I ask rhetorically, why would the government present a flawed legislation on something as fundamental as this? Why do we not just do it right in the first instance? Let us fix the bill because we cannot support it in this flawed state.