Mr. Speaker, I am pleased to rise today for the third reading of Bill C-12, an act to amend the Criminal Code, the protection of children and other vulnerable persons, and the Canada Evidence Act.
Today is an important day for a couple of reasons. First and foremost, it is an important day for Canada's children. Support on this day for Bill C-12 will bring us one step closer to realizing an objective that I believe is shared by all hon. members, namely, better protection of our children against all forms of abuse, neglect and sexual exploitation.
Today is also an important day for another reason. Today is the day when I hope that all hon. members will unite to say to Canadians, with one voice that is both strong and clear, that our children are the priority. We can do something today to move this priority even better and give effect to just that voice. This is the day that we do move from talk to action. This is what Canadians demand and this is what Canada's children deserve.
Bill C-12 proposes reforms in five key areas: first, strengthening the provisions against child pornography; second, protecting youth against sexual exploitation; third, increasing the maximum penalties for specific offences committed against children; fourth, facilitating the testimony of child victims and witnesses and other vulnerable persons; and finally, modernizing the criminal law through the creation of the offence of voyeurism.
Regrettably, child pornography is an issue that is well-known to members and to all Canadians. Although Canada's criminal laws against child pornography are already among the toughest anywhere, Bill C-12 proposes to further strengthen these laws by directly responding to concerns flowing from the child pornography case involving John Robin Sharpe.
How does Bill C-12 respond to these concerns? Hon. members will recall that Mr. Sharpe was convicted of possession of child pornographic photographs. He was, however, acquitted on the charge of possession of written materials for the purpose of distribution or sale. Even though the court found that these written materials consisted primarily of descriptions of adult male-boy sexual acts of abuse and torture and described them as “morally repugnant”, Mr. Sharpe was acquitted of this charge because these stories did not meet the existing definition of written child pornography, that is, they did not advocate or counsel unlawful sexual activity with children.
Why then do we need to have this bill? I would like hon. members to consider this. Bill C-12 directly responds to the concerns of this case and proposes to broaden the existing definition of written child pornography. It proposes to prohibit written materials, such as those offered by Mr. Sharpe, that describe unlawful sexual activity with children where these written descriptions are the dominant characteristics of the material and they are written for a sexual purpose.
The government, in Bill C-12, clearly recognizes the very real risk of harm that these materials pose to our children and our society. We must not allow our children to be portrayed as a class of objects for sexual exploitation. I urge all hon. members to join with me in condemning such materials.
The alternative basis for Mr. Sharpe's acquittal on the written materials was that the materials would have been protected by the defence of artistic merit. The existing defence of artistic merit is easily satisfied by answering one, and one question alone: Does the work in question, objectively viewed, have some artistic merit? For example, does a written story show some accepted literary techniques or style? If it does, that is the end of the inquiry and the defence of artistic merit is available to the accused.
Canadians have clearly said no to this one step test. Again, the government has listened and Bill C-12 proposes a different test that draws from the wisdom of the Supreme Court of Canada. Bill C-12 proposes only one defence: the defence of public good, which involves a two step inquiry.
Does the material or act serve the public good? If not, there would be no defence. If it does, then an additional second question must be asked. Does it go beyond what serves the public good? In other words, if the risk of harm to society posed by such material or act outweighs the benefit that it offers to society, no defence would be available even if it had artistic, educational, scientific, medical or other value.
I appreciate that although the public good defence is one that is known to our courts, it may not be well understood by some, potentially including some in this chamber. Again, the government has heard and has responded further to these concerns.
The Standing Committee on Justice and Human Rights amended Bill C-12 to accept the government's clarification of the public good defence, including its legal interpretation. As amended, Bill C-12 now defines the public good as including acts or material that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.
This new, inclusive definition closely models the language of the Supreme Court of Canada in the Sharpe case, thereby strengthening subsequent reliance upon this judgment to assist with the interpretation and application of the public good defence.
On October 28, 2003, the House unanimously passed a motion calling on the government to eliminate all child pornography defences for “possession of child pornography which allow[s] for the exploitation of children”. Bill C-12 delivers this and more.
During the course of that important debate, there was, I believe, a general acceptance that the law needs to protect certain persons who are working to catch child pornographers. For example, police and crown prosecutors who possess child pornography or provide it to other law enforcement officers for purposes related to the investigation and prosecution of child pornography cases should be provided with a defence for such possession and dissemination. Possession of child pornography by psychiatrists for educational or treatment related purposes was also recognized as something that should be protected.
This is exactly what Bill C-12 does. It recognizes that such acts clearly serve the public good and that the benefit they offer Canadian society clearly outweighs any risk of harm. Such acts do not exploit children.
The Canadian Professional Police Association, which is the national voice for 54,000 police serving across Canada, told the justice committee that they “welcome” the child pornography changes proposed by Bill C-12. They have also said that, from a practical perspective, the public good defence proposed by Bill C-12 will not impede police investigation of child pornography. This is because for most cases there is never any debate about the images. The graphic and explicit depictions of sexual abuse of young children by adults are clearly child pornography.
It is also important to note that while it is the job of the police to assess whether material constitutes child pornography as defined by the Criminal Code, it is not the police who determine whether an accused can avail himself or herself of a defence. That is a matter determined in a courtroom by those present on that day. Again, the public good defence does not impede police investigation of child pornography cases.
I urge all members to give effect to these important changes and to support these proposed child pornography reforms today, as have the police.
The government also recognizes that we must do more to better protect youth against sexual exploitation by those who would prey on their vulnerability in other ways.
Canada's criminal laws already prohibit all sexual activity with any young person below the age of consent, ranging from sexual touching, such as a kiss, to sexual intercourse. The age of consent is 18 where the relationship is exploitative, such as where it involves prostitution or child pornography or where there is a relationship of trust, authority or dependency.
Where none of these circumstances exist, the age of consent is 14, but--and it is important to be clear about this--any non-consensual sexual activity, regardless of age, is a sexual assault.
I understand that some persons believe that the best way to protect young persons against sexual exploitation is to raise the age of consent to 16 or 18 years. The government believes, however, that the real issue is about how to protect young persons from the exploitative conduct of others and is not about their consent to such conduct. There is a difference here.
One reason that is often given in support of raising the age of consent is that young persons, especially those who are 14 or 15 years old, are not mature enough to fully understand the consequences of consenting to engage in sexual activity. For some, young persons are too immature to be able to consent to any sexual activity, even with persons close in age. Others believe that young persons are too immature to consent to sexual activity with someone who is four, five or more years older.
Consider how the existing criminal law treats and recognizes the developing maturity and capacity of young persons. We have to go back. The age of criminal responsibility is 12 years. The age at which a young person may be subject to an adult sentence for committing a serious violent offence is 14 years. The age of consent to sexual activity is 14 years. The age of consent to sexual activity that is exploitative of the young person is 18 years.
While it is true that society uses other non-criminal measures to regulate other aspects of young persons' conduct, it would be completely inapt to compare, for example, the regulation of when a young person is allowed to drive to the criminalization of a young person's engagement in consensual, non-exploitative sexual activity. The government does not accept that normal, consensual teenaged sexual activity should be criminalized.
There is no consensus on this issue, whether among the public, at the level of federal, provincial or territorial ministers responsible for justice, or even among the witnesses who appeared before the justice committee on Bill C-12. Nonetheless, there is consensus on the need to better protect youth against sexual exploitation. Bill C-12 proposes this and more. It proposes better protection not only for 14 year olds and 15 year olds, but also for 16 year olds and 17 year olds, and it protects these young persons against sexual exploitation by others who are considerably older than they are, as well as against sexual exploitation by peers. It is the relationship, not just the age.
Some concerns were expressed by witnesses appearing before the justice committee that Bill C-12 as initially introduced did not adequately address a specific type of exploitative sexual relationship involving, for example, a 14 year old or 15 year old young person and a 40 year old or 50 year old adult.
The justice committee amended Bill C-12 to accept the government's amendment to more clearly describe the intention of Bill C-12 in this regard. It now states that the court may infer that a sexual relationship is exploitative, having regard to the nature and circumstances of that particular relationship. An additional fourth factor has also been added to the list of factors to be considered, namely, the age of the young person. This more clearly indicates that the court should consider this factor as well as the age differential between the young person and the older person.
Concerns have been expressed by some that existing sentencing provisions for offences against children do not adequately reflect the serious nature of committing any offence against a child.
Again, Bill C-12 responds to these concerns. It proposes to make the abuse of any child an aggravating factor for sentencing purposes. It also proposes to increase the maximum penalties for child specific sexual offences. The maximum penalty on summary conviction for sexual touching, invitation to sexual touching, and sexual exploitation would be tripled from 6 months to 18 months, reforms that have been welcomed by the Canadian Bar Association among others.
Bill C-12 would also double the maximum penalty for sexual exploitation of a young person from five to ten years when proceeded by indictment. The maximum penalties for failure to provide the necessaries of life and for abandonment of a child would also be increased to 18 months on a summary conviction and from two to five years on indictment for both offences.
Bill C-12 also proposes important reforms to facilitate the testimony of child victims or witnesses and other vulnerable witnesses. Although this part of the bill has received less attention than other parts, it largely has been well received. I know that in my own riding this is the part of the bill that is stressed to me the most, because we have those on the ground workers seeing the need for better protection for those who have been victims once and do not need to be re-victimized in a courtroom.
Most witnesses find the courtroom to be unfamiliar and unfriendly territory. For child witnesses it can be quite traumatizing. The criminal justice system has undergone numerous reforms since the late 1980s to make it more sensitive and responsive to the needs of these victims and witnesses.
These earlier reforms included making available such testimonial aids as a screen, a support person, closed circuit television, the exclusion of the public from the courtroom, publication bans, the use of videotaped evidence of the victim, and the appointment of counsel to conduct the cross-examination of a young victim or witness on behalf of a self-represented accused.
Bill C-12 proposes reforms that will clarify and apply a uniform test for the use of testimonial aids in three distinct categories of cases: first, cases involving a child victim or witness under the age of 18 years or a victim or witness with a disability; second, cases involving victims of criminal harassment; and third, cases involving other vulnerable adult victims and witnesses.
Bill C-12 would make testimonial aids available on application for all child witnesses and witnesses with a disability, unless they interfere with the proper administration of justice. For victims of criminal harassment and where the accused is self-represented, Bill C-12 would enable the Crown to apply for the appointment of counsel to conduct the cross-examination of the victim. The court would be required to order it unless doing so would interfere with the proper administration of justice.
This proposed amendment recognizes that a victim of criminal harassment or stalking, as it is sometimes called, should not have to endure further harassment by a self-represented accused person.
In cases involving any other adult victim or witness, the Crown can apply for the use of any testimonial aid or the appointment of counsel to conduct the cross-examination of the witness for the self-represented accused. In these cases, the court would order the use of the testimonial aid only if, having regard to the surrounding circumstances, including the nature of the offence and any relationship between the victim and the accused, the victim would not be able to provide a full and candid account without the testimonial aid.
Bill C-12 also proposes to modernize the publication ban provisions that can be imposed to protect the identity of the victim or witness or to ensure trial fairness. Bill C-12 would be amended to prohibit publication, broadcast or dissemination in any manner, including by the Internet.
In addition, Bill C-12 proposes amendments to the Canada Evidence Act that would eliminate the current requirement to conduct an inquiry into the ability of a child under the age of 14 years to understand the concept of an oath or affirmation and to provide testimony. In practice, the inconsistent and often rigorous conduct of these inquiries can result in increased trauma to the child witnesses as well as the loss of valuable testimony from child witnesses for reasons unrelated to the ability of a child to provide reliable testimony.
I have much more to say, but I understand that I am running out of time. I understand that it is easy to do politics around all legislation in the House, and I would just ask the hon. members to consider the real benefit of the aids that are in the bill and that we need now, not years down the road, in our courtrooms. The bill is so very important.