Debates of March 9th, 2004

Criminal Code

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

Mr. Speaker, the bill before the House is extremely important, which is why the work done by the Bloc Quebecois was particularly thorough. It is common knowledge in this House and outside these walls that we are used to being diligent, strict and very serious about our parliamentary work. This was especially true for Bill C-12.

This is a bill that could have been even better in my view. It could have been improved, but the government unfortunately refused many of the amendments proposed by the Bloc Quebecois. We proposed seven amendments at committee and only one was accepted. That is unfortunate because this bill could have been even more effective legislation in the cases we want to handle with Bill C-12. That said, the Bloc Quebecois will nonetheless support Bill C-12.

Bill C-12 amends the Criminal Code to add a new category to the offence of the sexual exploitation of young persons. It makes additional amendments to further protect children from sexual exploitation; to increase the maximum penalty for child sexual offences, for failing to provide the necessaries of life and for abandoning a child; to make child abuse an aggravating factor for the purpose of sentencing; to amend and clarify the applicable test and criteria that need to be met for the use of testimonial aids, for excluding the public, for imposing a publication ban, for using video recorded evidence or for appointing counsel for self-represented accused to conduct a cross-examination of witnesses; to create an offence for voyeurism and the distribution of voyeuristic material; and to amend the child pornography provisions with respect to the type of written material that constitutes child pornography, and with respect to the child pornography defences.

As members know, this enactment also amends the Canada Evidence Act to abolish the requirement for a competency hearing for children under 14 years of age.

This bill addresses the issue of consent to sexual relations, and this is where I will start.

Currently, in Canada, rules regarding sexual consent in the Criminal Code can be summarized in four points. First, the consent of a person under the age of fourteen is not a defence to a charge of a sexual nature. We can, therefore, deduce that a person 14 years or older is capable of giving such consent.

Second, there is an exception to this rule. The consent of a complainant can be a defence if the latter is between 12 and 14 years of age or if the accused is between 12 and 16 years of age, if the accused is not more than two years older than the complainant or, finally, if the accused is not in a situation of trust or authority over the complainant.

Third, a person in a situation of trust or authority cannot sexually interfere with a person between the ages of 14 and 17, even if the minor consents.

Finally, it is important to note that, naturally, child prostitution is illegal in Canada.

These provisions of the Criminal Code were strongly criticized, mainly by the party that preceded the Conservative Party of Canada, the Canadian Alliance, which wanted to raise the age of sexual consent to 16. One of the arguments in favour of raising the age of consent was that Canada was at risk of becoming a sex tourism destination since sexual relations with minors 14 years and older are not illegal here.

The Bloc Quebecois has always opposed any increase in the age of consent. In our opinion, while it may not be desirable for young people 14 and 15 years old to have sexual relations, the provisions referring to this age reflect what society is prepared to tolerate.

We have also spoken out more than once about the double talk of the reform-alliance-conservative members. In the debate on young offenders, they argued that adolescents 14 or 15 years of age were mature enough to be held criminally responsible for their actions, but in this debate on the age of sexual consent, they are arguing that the same 14 or 15 year olds are not mature enough to consent. Go figure that one out.

With Bill C-12, the Minister of Justice is proposing amendments to the provisions relating to consent to sexual relations. In fact, the Minister of Justice is creating a new provision relating to exploitation. From now on, an adult cannot have sexual relations with a minor if exploitation is involved.

The criteria used to determine the existence of an exploitative relationship are the age difference between the accused and the young person, the evolution of the relationship, and the degree of control or influence by the person over the young person.

This was amended after consideration in committee. The adolescent's age was added to the criteria for determining exploitation. This new criterion in no way changes the position we held at first reading. We still have certain reservations about this new mechanism.

First of all, we feel it creates legal uncertainty. An adult involved in sexual relations with a minor will never be able to be absolutely certain that he or she is not committing a criminal offence, because the Criminal Code provisions leave a very wide latitude for the presiding judge's interpretation of the law.

Furthermore, a parent who disapproves of a minor child's choices in terms of love will still be able to lodge a complaint with the police, even if the reasons behind such a complaint are not those provided for by the legislator. This could add to judicial uncertainty.

The second point addressed by the bill is voyeurism. As you know, Mr. Speaker, since you are technologically up to date, technological progress in recent years has made it necessary to amend legislation in order to face these new realities. For example, digital cameras that transmit live images through the Internet have raised the issue of possible abuse, such as the clandestine observation and recording of people for sexual purposes, or when such an observation or recording is a flagrant violation of privacy.

Therefore, the bill proposes adding two new offences to the Criminal Code and provides for a maximum of five years in prison for all acts of voyeurism. Three specific instances will be criminal offences, all having to do with deliberately observing or recording another person in circumstances in which there is a reasonable expectation of privacy.

That would be the case when the observation or recording is for sexual purposes, when the person being observed or recorded is in a place in which a person can reasonably be expected to be nude or to be engaged in sexual activity, in a bedroom, for example, and when the person being observed or recorded is nude and engaged in sexual activity and the purpose is to observe or record a person in such a situation or engaging in such an activity.

The second offence concerns the distribution of material that one knows has been produced through an act of voyeurism. This offence is described in clause 6 of the bill in the following way:

Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, publishes, distributes, circulates, sells, ...or makes available the recording, or has the recording in his or her possession for the purpose of printing, publishing, distributing, circulating, selling or... making it available.

During the committee's study of this offence, I proposed an amendment that the committee accepted, forbidding the use of such recordings in advertising. This amendment would make clause 6 of the bill more complete and more effective.

Finally, copies of a recording obtained by the offence of voyeurism for the purpose of sale or distribution could be seized or confiscated. The courts could also order deletion of any voyeuristic material from a computer.

We feel that the legislative provisions relating to voyeurism were made necessary by the proliferation of surveillance cameras and the rapidity of distributing images taken by such cameras, via the Internet for instance.

Consequently, we are in favour of these provisions, especially since they were improved through the amendment proposed by the Bloc Quebecois.

The third issue addressed in this bill is child pornography. It is, of course, the most talked about.

If there is one thing on which we have to agree, it is the fact that nothing is more precious in our society than the safety and security of our children.

Knowing that the end does not justify the means, we have to be careful in what we choose to do to protect our children. Nevertheless, it is all about striking the right balance, and we must keep in mind that the ultimate goal is to protect our children, who are the most vulnerable people in our society.

The new provisions on child pornography proposed in Bill C-12 address two different aspects. First, there is the definition of child pornography. The present definition of child pornography applies only to material that advocates or counsels sexual activity with a child. Bill C-12 would expand that definition to include any material that describes prohibited sexual activity with a child where the written description of the activity is the dominant characteristic of the material and is done for a sexual purpose.

This new provision reads as follows:

—any written material the dominantcharacteristic of which is the description,for a sexual purpose—

This is important.

—of sexual activity witha person under the age of eighteen years thatwould be an offence under this Act.

I know that many artists raised certain fears about this new provision. In my opinion, it specifically states that it must be done for a sexual purpose in order to be considered child pornography. This should alleviate their fears, which are legitimate, especially as the public good defence—I will come back to this in a moment—also provides artists with very good means of defence. These are legitimate.

We believe that this new provision is cause for concern. First, it is important to specify that possessing child pornography is already a crime carrying a five year jail term. However, this new provision states that written material describing sexual activity with the person under 18 years of age for a sexual purpose is child pornography.

Consequently, this would mean that anyone who, in their private diary, describes their sexual fantasies—some twisted, no doubt—is committing a criminal offence and can be sentenced to five years in prison, even if they do not show what they have written to anyone and even if no child has been involved in any way whatsoever in the creation of the written material.

At first, these provisions struck us as too broad and tantamount in a way to making thoughts a crime. It was pointed out to us that these provisions must be interpreted in light of the ruling of the Supreme Court of Canada in Sharpe. Under that ruling, two types of material must be excluded from the definition of child pornography: first, documents or representations that the accused alone created and retains solely for personal use and, second, visual recordings created by the accused or in which he is represented, which do not depict any illegal sexual activity and which the accused retains solely for personal use.

We find it hard to understand and we have said so many times in previous speeches and in committee why the Minister of Justice did not incorporate these exceptions into the Criminal Code. In fact, their absence will have the effect of creating legal uncertainty, because the Criminal Code will provide, even for an informed reader, a very imprecise definition of child pornography.

Through Bill C-12, the Department of Justice is also creating a public good defence. On the face of it, this new mechanism seemed reasonable, but needed to be specified further. That is why we put forward an amendment in committee to clarify the concept of public good. This was done following repeated requests by the Bloc and many witnesses who appeared before the committee calling for the concept of public good to be specified.

Two clauses were added after clause 6. They read as follows:

For the purposes of subsection (6), acts or material that serve the public good include acts or material that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.

For the purposes of this section, it is a question of law whether any written material or visual representation advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

This provides artists with a public good defence. It provides a defence to those who had concerns. Some scientists were also concerned. We have specified that, for the pursuit of medicine or research, this was an appropriate defence for possession of child pornography.

Although these amendments are not totally the same as what the Bloc Quebecois had brought forward, we are nevertheless pleased with the amendments the government came up with, because their very substance is in keeping with what we proposed in committee.

The fourth change proposed in Bill C-12 is to increase the maximum sentences for offences committed against children. Under the government's reform proposals, the penalties for offences that harm children would be increased. The maximal penalty for sexual exploitation would double from five years to ten. The maximum penalty for abandonment of a child or failure to provide the necessities of life to a child would more than double from two to five years. The abuse of a child in the commission of any Criminal Code offence would also have to be considered as an aggravating factor by the court and could result in a tougher sentence.

We are in favour in these new provisions. That being said, the Bloc moved a number of amendments in committee to create a minimal sentence for child abuse. Unfortunately, none of these amendments were passed, although they were supported by members of the Conservative Party, at the time the Canadian Alliance, and even members of the Liberal Party.

I think it is high time for members of this House to look into minimal sentences for those who abuse our children, the most vulnerable members of our society. I hope we will have an opportunity to act soon.

Last, the fifth issue has to do with facilitating child witness and victim testimony. Here is how the department explains the reforms proposed to facilitate the testimony of children who are vulnerable witnesses or victims:

Several reforms will help ensure that participating in the criminal justice system is less traumatic for the victim or witness. Current Criminal Code provisions would be expanded to allow all witnesses under 18 to benefit from testimonial aids in any criminal proceeding (not only those involving sexual and other specified offences). These aids include providing testimony from behind a screen or by closed-circuit television or having a support person accompany the young witness. Current provisions generally require the Crown to establish the need for a testimonial aid. Given the potential trauma of the courtroom experience for young witnesses, the proposed reforms acknowledge the need for the aid.

For all testimonial aids, the judge retains the discretion to deny the aid or protection where its use would interfere with the proper administration of justice. In addition, the facilities to permit the use of a screen or closed circuit TV must be available in the courtroom before the judge can permit their use. Fundamental rights for the accused are fully respected under the proposed amendments.

The reforms would also allow children under 14 to give their evidence when they are able to understand and respond to questions.

We in the Bloc Quebecois support these provisions.

In conclusion, we support Bill C-12. We would have liked to have seen more openness on the part of the government to the amendments we proposed, including those relating to minimal sentencing for people sexually exploiting our children, doing harm to these beloved and so vulnerable beings who deserve the attention and protection of the members of this House.

I wish to announce that I will continue to work to get this House to address the issue more thoroughly. I trust that at that time I shall have the support of all members of this House so that the pedophiles who are victimizing our children will be punished severely. Often child victims are marked for life.

[The Acting Speaker (Mr. Bélair)]

Before we move on to questions or comments, it is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Saskatoon—Humboldt, Aboriginal Affairs; the hon. member for Renfrew—Nipissing—Pembroke, Government Contracts; the hon. member for Ottawa West—Nepean, Citizenship and Immigration.

[Art Hanger, Canadian Alliance, Calgary Northeast, AB]

Mr. Speaker, I listened carefully to the member making his presentation. I do not doubt that he has the best thoughts in mind when it comes to protecting our children

However, I am left with some questions about his position, given the fact that he also states that we must strike a balance. I do not quite understand what his balance is when it comes to protecting our children. There is only one protection as far as I am concerned.

I will relate to the hon. member my experience very briefly. As a former police officer, I have had to deal with this kind of crime against children. There are individuals, men out there, who do nothing but prowl around looking for the vulnerable, looking for 13, 14, and 15 year old runaways. Their eyes fall upon those youngsters and they know which ones to pick. They know who to go after. They do not have to look very hard. With that, those 13, 14 and 15 year olds, some of them may be younger than 13, are selected. They know how to manipulate those youngsters for sexual favours. It happens daily on our streets and with that, comes the child porn industry.

There is no balance when it comes to this that I can see. Would the member like to engage in a reply on the kind of situation where procurers, pedophiles come after our children? What kind of balance would he like to see struck when it comes to convicting them? If the hon. member is married himself, if he were to find one of his own children in that position, how would he deal with the matter?

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

Mr. Speaker, I thank the member for his question. I also thank him for the fact that he did not question my beliefs concerning children. I myself have two six-year-old children. One of them has chicken pox and is here in my office. I thank my assistant, Patrick, for taking care of him during these few minutes, because he cannot go to school since he is contagious. That being said, I wanted to thank him publicly.

Indeed, nothing is more precious than our children. I talked about balance. However, it was not quite clear whether we were talking about sexual exploitation or child pornography. When I was talking about child pornography, the idea was to be very careful not to abusively accuse some legitimate artists who may write a novel, for example, Lolita . We know about the novel Lolita , some novels or some texts that may be quite legitimate and, in a wider context, whose narrative describes sexual acts between minors. As the text does not generally have a sexual purpose, it would not be considered child pornography.

When I was talking about balance, this is what this was about. I was absolutely not talking about balance in the case of sexual exploitation of children, these poor children who are abused by some quite despicable people.

This is why I suggested in committee that we have minimal penalties to fight against this and to punish as harshly as possible people who prey on these vulnerable human beings that are our children.

I hope that, when I introduce a bill on minimal penalties for people who sexually exploit our children, which I will do in the near future, I will have the support of the member who is asking me questions.

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I would like to thank my hon. colleague for his speech on the bill. The section in the legislation that I did not get to talk about dealt with voyeurism offences and I am pleased that he did speak on this. I would like to ask him a question with respect to those offences and some of the other areas of this piece of legislation.

We are now on the motion to send the bill back to committee as opposed to getting it through third reading of the House. This is a legitimate tactic, not by his party, but by another party in opposition, to slow down the process of getting this piece of legislation moving, to get it into effect in the courtrooms, especially with those aid situations for the vulnerable and disadvantaged people, and even those children who have their accused coming at them by way of cross-examination. He is well aware of all of the parts of the bill that could be beneficial. I would like his comments on this delay.

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

Mr. Speaker, I think this bill should be passed as soon as possible. As for the voyeurism provisions, we know how incredible technology has become. It can do a lot of good, and a lot of bad. Cameras are now very small and can broadcast live on the Internet. So, it is now possible to hide a small camera in a bathroom, whether it is a public or private location, or in a bedroom, whether it is in a private home or in a hotel, and broadcast these images on the Internet. I do not think anyone of us, who expects a little privacy or intimacy, would like these images to be broadcast.

This new offence of voyeurism is long overdue. The legislative process being as it is, we often find ourselves lagging behind the technology. I think this is a good example that points out the need to adopt this piece of legislation as soon as possible.

[Brian Fitzpatrick, Canadian Alliance, Prince Albert, SK]

Mr. Speaker, my first comment concerns the fact that Mr. Sharpe is, apparently, quite enthralled with the legislation. He says that the loose definition in the bill would liberalize things quite a bit from his standpoint and would give him lots of grounds for reasonable doubt in a criminal trial.

I have another point I want to raise. We had a serious case in my riding this past summer where a 12 year old aboriginal girl was sexually assaulted by three men in their mid-twenties. They had their trial split. One was convicted. I do not know how the jury decided the case for the other two accused because we cannot get into that, but one of the main defences of the lawyers was that the accused believed the victim was at least 14. This just proves to me that we have a problem and the bill does not provide any protection on that matter.

I know that a lot of the Bloc members opposed increasing the age from 14 to 16. I wonder what the Bloc member would have to say about raising the age of consent from 14 to 16.

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

Mr. Speaker, members of this House all need to be responsible and consistent.

I find it hard to understand the logic behind the position of the Conservative Party which, on one hand, wants to raise the age of consent from 14 to 16, or even 18 depending on the person to whom I am talking, and, on the other hand, wants 14 and 15 year old offenders to be brought before adult courts because these young people should be able to tell right from wrong.

This does not make any sense. If they want to raise the age of sexual consent, and that is what they want to do, let them do it. However, I would urge them to be consistent and stop asking for 14 or 15 year old offenders to be brought before adult courts. If they refuse to do so, they will show the kind of inconsistency that we will be sad to see.

[Dick Proctor, NDP, Palliser, SK]

Mr. Speaker, I am pleased to take part in this debate. I am tempted to say here we go again on what used to be known as Bill C-20 and now is known as Bill C-12.

The bill proposes to amend the Criminal Code to help safeguard children and other vulnerable persons from sexual exploitation, abuse and neglect and also to enhance the protection of victims and witnesses in criminal justice proceedings.

The bill was introduced and read the first time in December 2002. It was debated at second reading in January and February last year before heading off to the justice committee from whence it has now returned.

The bill has five major components that I would like to review. First, it proposes to strengthen the child pornography provisions by expanding the scope of some existing sentences; the maximum available penalty would be increased from 5 to 10 years imprisonment.

Second, it proposes to increase the protection of young people against sexual exploitation.

Third, it proposes the creation of new offences relating to voyeurism and the viewing or recording of others in situations where there is reasonable expectation of privacy against electronic peeping Toms who resort to tiny cameras and other high tech tools for their and others' sordid gratification.

Fourth, it proposes to increase penalties following conviction for offences committed against children under the age of 16 years, as well as abuse and neglect, which includes failing to respond to the necessities of life and abandonment. I am pleased to see that the maximum penalty has been increased from two to five years.

Fifth, it proposes to facilitate testimony by child victims as witnesses and other vulnerable persons and would ensure that the child witnesses are indeed competent.

Let me say loudly and clearly that I support fully the sections that I have just referred to that deal with sexual exploitation of our young people. It is crucial, as others have noted in this debate, that our society has proper mechanisms to protect children from sexual exploitation, especially by those in positions of trust.

The stronger penalties, for example, against voyeurism, are important because the Criminal Code will be updated to nab these electronic peeping Toms and prosecute them to the full extent of the law.

The New Democratic Party supports the sections that help children to be witnesses. This section makes it easier and less traumatic for children to testify at criminal trials, and I strongly support doubling the sentences for offences against children.

I believe to the core of my being that it is the role of Parliament and our criminal justice system to protect all children from all forms of sexual exploitation.

Like my colleague, the MP for Dartmouth, who is so well respected on all sides of the House and who has taken the lead on this bill, I have two children and I would see any form of sexual assault against either of them to be horrific as are all cases of sexual abuse and exploitation against all minors.

However the member of Parliament for Dartmouth, besides being a first rate mother and a first rate parliamentarian, is also a first rate playwright. She has stated, and I concur, that a growing number of Canadians and other organizations have a real concern with the exclusion of part 7 of the proposed bill because it drops the artistic merit defence as well as deleting the defence of an educational, scientific or medical purpose.

By doing so, it leaves only the defence of the public good. At face value, some people may think, and we have heard it in the House this afternoon, that defence of the public good would also include the two deleted defences. The public good is defined in the bill as something that is necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art. A story or drawing that passes muster under that public good definition is, however, still not home free because the court must then decide whether the harm to society outweighs the benefits.

This, as the Globe and Mail pointed out in an editorial last month, is treacherous territory. Any work of fiction involving the portrayal of a child in illegal sexual activity could be deemed pornographic.

These concerns were all raised when the bill was at committee, but the government is obviously not prepared to budge. The concern that I and other members of our caucus have is that the government has caved into the politics of fear.

Let me be absolutely clear, and I say this directly to the justice critic for the Conservative Party. I support, fully and completely, longer sentences for anyone in this country who creates sado-masochistic pornography that depicts children as sexual objects. Individuals who are involved in these criminal activities will, as a result of these changes, now go to prison for longer periods of time. I approve and applaud wholeheartedly these stiffer sentences.

The difficulty for me and others is that under this proposed revision, any work of fiction involving the portrayal of a child in illegal sexual activity could well be deemed to be pornographic. For example, The Tin Drum , a highly moral work by Gunter Grass, might run afoul of this new legislation, as could Vladimir Nabokov Lolita , a classic literary work, be in danger.

In the past, the Supreme Court has included artistic merit as a plausible defence but the fear is that the law, as it is presently drafted without the artistic merit clause, could criminalize the imagination and I have difficulty with that.

This is not some esoteric argument by the member for Dartmouth or myself. Besides the Globe and Mail , it has elicited the attention of the Ottawa Citizen, civil liberty groups, writers and the artistic community.

Yesterday in Toronto the Canadian Conference of the Arts and the Writers' Union of Canada held a public forum on their concerns about Bill C-12. They did not stand alone. Joining them were: Canadian Museums' Association; Canadian Artists' Representation; Union des écrivaines et des écrivains québécois; Canadian Civil Liberties Association; B.C. Civil Liberties Association; Union des artistes; PEN Canada; Canadian Library Association; Literary Translators' Association of Canada; Corporation des bibliothécaires professionnels du Québec; Association des auteures et auteurs de l'Ontario français; Ligue des droits et libertés; Regroupement des artistes en arts visuels du Québec; Société Civile des Auteurs Multimédia; Société des Auteurs de Radio, Télévision et Cinéma; Conseil des livres et des périodiques; and Société des auteurs et compositeurs dramatiques.

The following were their specific concerns on this bill. First, artists from all disciplines who create works with themes involving persons under 18 and sexuality, risk having their expressions criminalized.

Second, artists whose work contains such themes would be deemed to be guilty until they can prove themselves innocent of the charge; in other words, reverse onus.

Third, the concept of public good would replace artistic merit. This is a subjective concept that, according to the Supreme Court, has not been clearly defined.

Fourth, under the proposed new law, artists would have to prove objectively in court that (a) they produce their work for the purpose of public good, and (b) their work does not exceed the limit of what constitutes public good.

Fifth and final, an expansive interpretation of sexual purpose and voyeurism will infringe on new and existing artistic works, including literature, visual and media art film and theatre.

The CCA concluded that the bill was poorly crafted and proposed reframing the legislation to protect children while allowing bona fide artists the freedom to create. It argues that retaining the defence of artistic merit in the Criminal Code will serve all the people of Canada, both youth and elders.

It is saying that the elimination of the artistic merit defence will not have any effect on the government's purpose of eradicating sexual abuse of minors, nor will it prevent child pornography. It will serve only to create confusion and punish artists whose work, created in good faith, could be deemed in contravention of the new legislation.

Nor does the CCA believe the term “public good” used in the legislation has been defined adequately and therefore it believes the defence under the public good is an unacceptable substitute for the defence of artistic merit.

Let me come back to the reverse onus clause. This will require an artist to prove that his or her work is not pornographic instead of requiring the Crown to prove otherwise. Clearly this is totally contrary to our judicial system that holds every citizen as presumed innocent until proven guilty. Under this legislation, under the reverse onus clause, someone who is innocent would have to prove it first.

The House needs to be reminded that we are debating this legislation largely because of one individual, John Robin Sharpe. In the court decision regarding Mr. Sharpe, he was convicted of possession of photographs of boys engaged in sexual acts and poses, but he was acquitted on possession of child pornography stories that he had written because two out of three literary experts concluded that his stories had artistic merit.

What does Mr. Sharpe think of the proposed legislation? Just like the writers, artists, editorial writers and New Democrats, he says that the bill is poorly crafted, but he goes on to say that it is so poorly crafted, he could probably use it to his advantage in court. He said:

I am fairly confident that given good legal counsel, and a conservative, by-the-book judge who bases his decisions on the wording of the law...that I and my stories would again be acquitted under the proposed measures.

Legal experts tend to agree with Robin Sharpe, saying that the public good defence is too vague to survive court challenges. The Supreme Court upheld the federal legislation in the Sharpe case, but stressed there had to be generous leeway for artistic merit, and he was acquitted on some counts, not merely because of artistic merit but because the court concluded that his stories did not advocate or counsel pedophilia. In short, the court ruled on the side of free expression.

It is difficult, and it ought to be difficult, to criminalize expression. Of course Parliament has a duty. Children have to be protected, and that we are very clear about. However, at the same time we cannot be seen to be encroaching on freedom of speech or the right to know with some precision what is allowable and what is forbidden.

The Ottawa Citizen , in a recent editorial entitled “Making matters worse”, stated that Bill C-12 would violate both of these principles. It went on to say that no matter how well intentioned the law was, it should not pass. The editorial stated:

The government has not produced solid, empirical evidence that viewing or reading works of the imagination prompts pedophiles to molest real children. Without that evidence, there's no reason to believe this law will make children any safer.

Paul Rapoport from the School of Arts at McMaster University writes that when it comes to visual media especially, “all nudity is sex, all sex is porn, and if minors are involved, find somebody to lock up and throw away the key”.

That description certainly encompasses some members of the Conservative Party who have spoken on this bill in debate in spite of the fact that the most common child in art, according to Mr. Rapoport, is named Jesus.

I was in debate on the artistic merit defence last year, and in responding to another MP, I said this:

--if it has not specifically hurt a minor in the production of it, if it is created by people's visual imaginations and if the main purpose of it is not simply about pornography and sexual exploitation, then under the laws people do have a right to their own imaginations and thoughts, however perverse the member and I might think they are.

This quote made it into a lot of Canadian Alliance householders. We killed a lot of trees over this one, as I guess they tried to portray me as being soft on child pornography. I am not soft on child pornography. However, I must say that I am also encouraged by the editorial boards of major newspapers, civil libertarian groups, writers and artists who have expressed similar concerns about where we are headed with this bill. Specifically, hear the conclusion of the Ottawa Citizen editorial:

The only solution is a law that criminalizes pornography involving real children, but excludes all works of the imagination. This would protect children just as well as the law now before Parliament. But it would also respect free speech and provide a bright, clear line between what is illegal and what is not.

Of course there is a circular argument in all of this that deserves to be named as well. We have the Conservative Party, and especially its justice critic, railing constantly against judicial activism. However, by arguing for a narrower and narrower interpretation of child pornography and one that excludes both artistic merit and defence of the public good, the courts and judges will have no choice but to say that it is so narrow that it violates the Charter of Rights.

The judges and courts will strike this down and the justice critic for the Conservative Party will mount his pet hobby horse about judicial activism. In fact I am convinced that the other place, when it looks at this bill, will find it a deficient piece of legislation and demand that changes be made here before it passes.

The list of people and organizations who see flaws in the bill is long and it is getting longer. As I indicated, it legitimate artists, writers, the Canadian Conference of the Arts, some police, civil libertarians, the Canadian Bar Association and major newspapers.

Sergeant Gillespie of the Toronto police said:

Police would simply appreciate laws that are very clear and that will allow us to make better informed decisions at the time we are required to make them.

The Canadian Bar Association said, “While we appreciate the intent”, referring to the defence of public good, “the amendment may not achieve its goal”.

Alan Borovoy of the Canadian Civil Liberties Association recommends that the law be narrowed so that it applies only to material, the making of which is held out to involve the lawful abuse of a real child; not an imaginary child, a real child.

Strengthening the provisions of child pornography, doubling penalties and increasing protections of youth against sexual predators and sexual exploitation is important, and I support it fully. This must be done while protecting free speech and imagination.

I was raised in a time when the words to a pop song of the day went, “Brother, you can't go to jail for what you're thinking”. These words should be as true today and tomorrow as they were yesterday. Without reinstating the artistic merit in this bill, I will reluctantly and sadly find myself voting against Bill C-12.

[Art Hanger, Canadian Alliance, Calgary Northeast, AB]

Mr. Speaker, I listened closely to the member for Palliser. I know he has drawn a line in his conversation and his presentation in saying that there should be strong action taken against child pornographers and that he would like to see longer sentences for those who sexually exploit children, which is well and good. I think we as members of Parliament should be making that very clear, and that children should be at the top of our list.

He also has sort of shaped the Conservative Party as wanting to paint a broad brush and throwing out the net to catch everybody who even thinks or believes that there is a child molester or pornographer around every corner and that every artist is in that category. I want to correct the member because I believe our party does not stand for those things, as he attempted to portray two or three times during his presentation. I believe we have led the charge on this right from the very beginning, that we want to protect our children. We want to protect them from exploitation of every kind, including pornography.

As I mentioned before, and I asked the member from the Bloc this very question, there are people out there who will want to push the envelope at every turn. They will want to look for those who are vulnerable. They will want to create images to satisfy their own desires and the desires of others. There has to be a line drawn somewhere that will prohibit those who want to abuse others, like Mr. Sharpe.

The member for Palliser says that he supported Mr. Sharpe's comments. I do not know if he supports the reputation, background and convictions that Mr. Sharpe has faced. He is truly a porn collector.

Where does the member stand when it comes to this line, because there is indeed a line? I do not think we should be casting aspersions on the Conservative Party, which really wants to protect our children and which stands in the face of opposition looking at the government and its legislation, and the legislation is not truly that way.

Does the member support Mr. Sharpe in all that he does? He has quoted him. Where does he stand?

[Dick Proctor, NDP, Palliser, SK]

Madam Speaker, the member said that I was taking his party out of context and that was not what the party believed. He also talked about drawing a line. I can draw a line. I thought I tried to do that in my speech, but let me repeat it again.

The line is between real children and imagination. Somebody cannot be criminalized for imagination unless that imagination is clearly designed to advocate for pedophilia or other acts. I, like the member, want to catch the type of individual about which he has talked. As a police officer, he dedicated his resources to going after individuals who abused vulnerable 12 or 14 year olds and dealt with that individual to the fullest extent of the law. I do draw a line between works of the imagination with somebody going after a real person or using pictures of a real person against his or her will. If it is a young person, obviously that does not need to be included.

With regard to Mr. Sharpe, I only referred to him because he is one of many people quoted as saying this legislation, as drafted, is poorly crafted. I think I am recalling fairly well from memory that he said that a conservative, by the book judge would probably throw out the public good defence.

We and a lot of other organizations and individuals have a problem with the legislation as it is drafted. It will presumably be passed in this place. However, I have my doubts whether it will receive royal assent by the Senate. I think it will want to look at this because of the lack of the artistic merit argument and other shortcomings, and then refer it back here.

What is the point of passing legislation that we can guarantee will run afoul of the Charter of Rights? Why would we not try to do our best as legislators and as parliamentarians to pass a bill that is reasonable, that has a balance on free expression and that protects our children, and indicate to the courts that we are aware of the competing interest? There are competing interests here. I continue to assert that there has to be a line drawn in the sand between real children and products of the imagination.

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, on the broad aspects of the bill, I think the member and I are in agreement. I believe that all hon. members want us to move toward protecting our children.

The voyeurism parts of the bill and the parts that relate to the aids for testimony for vulnerable people and for children are crucially important. Those are technical areas that could do great good in the courtroom.

The member said that the bill would pass third reading. I want to remind the House that the bill is not at third reading any more because of the motion to send it back to committee, which in effect will slow down the passage of this legislation.

I also want to remind the House and the hon. member that we can share in opinions or differ in opinions about one aspect of the bill or one aspect of the bill may not be what one party, or another party thinks is utopian. In actual fact the changes in drafting around the defence mechanism of public good were based on the Supreme Court material. The bill has been crafted to guide us through a very treacherous path so we can have better protection for our children.

I would like to have the hon. member's opinion about the further delay of the bill and the fact that we will not be delivering it to the public. As we all know, there are people in courtrooms across this land who will not get the benefit of the bill if this delay continues.

[Dick Proctor, NDP, Palliser, SK]

Madam Speaker, I do not have any difficulty at all, as I indicated in my speech, with the voyeurism enhancements and the enhancements for children to testify. I support all of that. I note that the parliamentary secretary talks about the public good and having had consultations with or references from the courts in drafting this. That is encouraging.

At the same time, I have to point out to the parliamentary secretary that, as I said in my speech, growing numbers of organizations, interest groups and editorial writers are extremely concerned about the direction in which this bill is headed. They do not think it is going to survive a charter challenge. I appreciate what the member is saying about getting the bill through, but I think it is more important to get it right first than to get it through fast.

[Art Hanger, Canadian Alliance, Calgary Northeast, AB]

Madam Speaker, I find it very positive to rise today to speak about this issue, an issue that I have followed since I came to Parliament 10 years ago. It is also an issue that I had a lot to do with when I was a police officer on the streets of Calgary.

In regard to the exploitation of children, I have experienced the pain of parents who have had children exploited in one form or another. When we talk about pornographic images, let us get down to where the rubber hits the road, that is, every time a child's pornographic picture is shown as an image it is again victimizing that child, time and time again. I think that many in the House forget this fact.

Where is the line drawn when it comes to collecting pornography? That is another issue that we have not defined very clearly in the House.

Let us get to the point. We have a new government on the other side, or that is what they keep telling us anyway. One would think that at least the new government would use this Parliament to make some legitimate changes in legislation over and above this bill, because it was actually developed by the old government. What is the difference between the old and the new? I think it is obvious to all that there is no difference.

I had hoped that a new government would put some teeth into the bill and would put the protection of children ahead of the so-called public good argument or artistic merit argument of pedophiles. It did not. I guess I was only dreaming. It turns out that this is the same bill with the same faults, which will lead to the same problems for police, for judges and ultimately for Canada's children as well as those who most want to protect children, that is, parents.

The government made a reference to the protection of children in the throne speech. I think we can all remember that. Obviously all that reference merits is this ineffective bill. In fact, the bill is a distraction so that Canadians will not think about the failure of the government to protect children from sexual abuse and exploitation.

Over the past three years, the government has had an opportunity to respond to the threats to our children. John Robin Sharpe was found in possession of pornographic photos of children. He challenged his charges. In 2001, a B.C. court dropped a bomb on parents, police and concerned citizens across the country when it said that in some cases even violent child pornography was legal, citing artistic merit at that time. Since that time, this has been thrown into this public good argument.

Organizations like the Canadian Justice Foundation and Mad Mothers Against Pedophiles, with our party, waited for the government to invoke the notwithstanding clause if necessary. It was called on. We demanded not only the protection of children from sexual predators, but it would trump kiddie porn. We had a glimmer of hope when the government announced the new bill in the last session. When the so-called new government, which is really a warmed over old government, put the protection of children in the throne speech, there was a possible breath of fresh air in the thinking that something would change.

As it turns out, our hopes were false hopes. The bill does not protect children. The bill will at best maintain the status quo and at worst it will mean that child porn and sex with minors are issues that will become fixtures in the Canadian agenda.

The bill was designed by someone who either does not understand the courts and does not understand law enforcement or who does understand both and does not intend to protect our children at all.

For years now we have been calling on the government to raise the age of sexual consent. In fact, today in the House I reintroduced my private member's bill, which seeks to raise the age of sexual consent from 14 to 16. Every time the issue comes up, the government uses the lame excuse that if it raises the age of consent that might criminalize the sexual activity of young people close in age. Everyone knows this is nonsense.

As my colleague from Provencher has argued in the House, all the government needs to do is establish a peer exemption for sexually active younger teens. In fact, that is precedent in our courts today: peer exemption. The government chose instead to create a category of sexual exploitation aimed at protecting children between the ages of 14 and 18.

That is an interesting category. Our party's senior justice critic has comments about that. I have a lot of respect for our senior justice critic, unlike those in the NDP, because this man sat in the courtrooms of our country handling cases like this time and again. He knows and understands where things go in the courts. He has watched those who have been victimized. He has seen the broken families as a result of the issues we are speaking of that are in our courts today.

This is what our senior justice critic has recorded:

Bill C-12 fails to raise the age of consent for sexual contact between children and adults. Instead, the bill creates the category of “exploitative relationships” aimed at protecting people between the ages of 14 and 18. In determining whether a person is in a relationship with a young person that is exploitative of the young person, a judge must consider--

Here again he is drawing on his knowledge of the court.

--the age difference between the accused and the young person, the evolution of the relationship, and the degree of control or influence by the person over the young person.

That is what the court has to decide. That is what the prosecutor has to argue. That is what the defence and the accused will be about in the courts of the land.

I will continue the quote:

This category is a vague provision that fails to create the certainty of protection that children require. It will not serve as a real deterrent and will simply result in longer trials and more litigation.

As a former police officer, I fully agree with our senior justice critic in understanding the courts, the defence and the arguments that will be presented. In other words, our courts are going to become a platform for the abuser, the accused, to get his message out. He has a doctrine that he wants to put out to the people of this country and now he will have the courts to argue his case. The relationship of the abuser or so-called abuser and the victimized child will be placed in the public domain. I think that is criminal in itself.

It will be up to the court to determine whether or not a relationship is exploitive. Clearly, in making a determination, a judge must take into consideration the age difference between the accused and the young person, the evolution of the relationship, and the degree of control or influence exercised over the young person. This will ultimately tie up our courts, and regrettably, will not guarantee our children the protection they desperately need.

I am talking about our present court system. It is already against the law for someone in a position of trust or authority, or in a relationship of dependency, to be sexually involved with a young person between the ages of 14 and 18. I do not see how this provision is going to help a lot, apart from providing more opportunities, because it would be in the legislation, for the accused and the defence to argue more about the relationship. I find that absolutely unacceptable.

The bill could have dealt with the age of sexual consent, but rather than simply raising the age of consent from 14 to 16, the bill would allow adults to have sex with 14 and 15 year olds unless the adult was in a position of authority. That is the intent of the government.

Parents of 14 year olds, whom I spoke to, shook their heads over that particular clause. Police forces across Canada shudder at what it means. They are already having a difficult time processing what they have under the present legislation.

Child pornography has skyrocketed. It has exploded since the use of the Internet has been employed by pedophiles and pornographers. Police departments across the nation are developing specialized units that just handle this kind of an offence.

In fact, they cannot keep up because the Internet knows no boundaries and no particular country. It is broadly global and these images float about everywhere. It does not matter in what part of the world one is in, one can tap in to them.

The strategies, even for police to sit down and analyze the issue of child pornography, and that is what we are talking about here, are becoming difficult for enforcement agencies worldwide. They need resources to do it.

There is so much in the proposed legislation and the court precedents over pornography that it is difficult for enforcement agencies to wade through it all to prepare a case for court. The present legislation just convolutes the matter even more. It makes it even more difficult.

I have not heard from the Parliamentary Secretary to the Minister of Justice that the government has a plan regarding resources, or is developing a program or initiative that would deal with the issue of pornography.

Everybody has the opportunity to just go out and do it, do what they see through their own eyes as the way they want to portray pornography. At the same time, enforcement agencies are crying for assistance. That is where we are at.

This clause is not only of no use to the police but will have the perverse effect of dissuading police from even investigating cases of sex with 14 year olds or following up on pornographic images of such. Why? Because proving a position of power is vague, almost meaningless and requires all kinds of legal interpretation. It is totally open to challenge, not to mention that it is senseless.

The fact is that some 40 year old can exploit a 14 year old. Images can be taken of that and distributed under what basis? Artistic thought and merit or public good. The argument will go on and on. It will go on in our courtrooms and those will be the platforms from which the pornographers will operate. They will make their gains in the courts because they would be given that opportunity through the legislation that is offered here.

Instead of going to the public, the moms and dads and the grandmas and grandpas out there, this matter has been turned over, unfortunately, to the lawyers and the courts. The same courts that ruled that John Robin Sharpe was an artist. Under this law, an old man will have every right to have sex with a 14 year old he finds on the street. The images can be collected and distributed on the Internet. The courts will have a tough time trying to track that down in order to deal with it.

Believe me, just like John Robin Sharpe, all the pornographers and perverts will study the law. I sat in on a court case in British Columbia watching another notorious exploiter of children, Mr. Toft. He sat by his lawyer, and between the two of them they argued the case in court like they were both coming from the legal side of things to have his charges worked through the court. He was not in the docket as an accused but sat right beside his lawyer. Go figure.

This law would actually create an enormous opportunity for child pornographers. It would allow an exception to the ban on child porn where pornographers could demonstrate some public good. As we have seen with John Robin Sharpe and his buddies at the Civil Liberties Association, there is no shortage of people to challenge the law. It will be a heyday for them.

Today we should be prepared that challenges will thrust the most hateful child porn out into the public arena and make celebrities of its authors. That is what is on the road here. We are not talking about artistic views held by the member for Palliser, but the manipulators in our society who will go after our children. There are lots of them out there.

The Liberals could have used the notwithstanding clause to send John Robin Sharpe to prison and be done with it. Instead, they made him a poster boy for legalized pedophilia. This law is all shaped around what he has stated in public. The Liberals had a choice.

It is up to concerned Canadian parents and parliamentarians in the House to guard our children more carefully than ever. We cannot depend on the government across the way because this legislation is, in its viewpoint, its offer to help protect our children. Unfortunately, it has failed miserably.

The House resumed from February 26 consideration of the motion and of the amendment.

Supply

[The Acting Speaker (Mrs. Hinton)]

It being 5:30 p.m., pursuant to order made Thursday, February 26, 2004, the House will now proceed to the taking of the deferred recorded divisions relating to the business of supply.

Call in the members.

And the bells having rung:

[The Speaker]

The question is on the amendment.

(The House divided on the amendment, which was negatived on the following division:)

[The Speaker]

I declare the amendment lost.

The next question is on the main motion.

Is it the pleasure of the House to adopt the motion?

The hon. deputy leader of the government.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Mr. Speaker, if you were to seek it, I think you would find unanimous consent that the members who voted on the previous motion be recorded as having voted on the motion now before the House, with the Liberal members voting nay, except those who indicate otherwise.

[The Speaker]

Is there unanimous consent to proceed in this fashion?

[Some hon. members]

Agreed.

[Dale Johnston, Canadian Alliance, Wetaskiwin, AB]

Mr. Speaker, Conservatives in the House tonight who voted on the previous motion will vote on this motion in the affirmative.

[Michel Guimond, Bloc, Beauport—Montmorency—Côte-De- Beaupré—Île-D'Orléans, QC]

Mr. Speaker, members of the Bloc Quebecois will vote in support of this motion.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Mr. Speaker, members of the NDP will vote in support of this motion.

[John Herron, Progressive Conservative, Fundy Royal, NB]

Mr. Speaker, I can confirm that both Progressive Conservatives will be voting in support of the motion.