Madam Speaker, I am pleased to rise today to speak to Bill C-219, which would amend the Criminal Code to increase sentences for offences of sexual exploitation and to add as an aggravating circumstance the fact that the victim is a person with a disability for the purposes of sentencing.
I agree with all members, or at least I think all of them, that this bill has a noble objective to protect the most vulnerable. I am perhaps a little less comfortable with the method of achieving this goal through increasing sentences and imposing higher mandatory minimum sentences.
Before I begin talking about the bill itself, I want to talk in general about mandatory minimums and revisit a question I have asked the House before about whether these sentences truly act as deterrents. The example I cited was the Bloody Code, used in England from the 17th to the 19th centuries. This code imposed the death penalty for such crimes as the theft of an item valued at more than 12 pence, such as a turnip. One might think that the code deterred people from stealing turnips, but that was not the case. Instead of sending people to the gallows for stealing such low-value items, juries instead opted to acquit the offenders, often by underestimating the value of the item stolen. The code did not deter crime, but rather encouraged it. After the imposition of capital punishment for the theft of turnips, more turnips than ever were stolen.
In these modern times, one could imagine that mandatory sentences might now be deterrents for judges, who might be tempted to look for ways to acquit the offender rather than impose a minimum sentence that would be disproportionate to the crime committed. Conversely, if the minimum sentence is very short, one would have to wonder whether it would truly be a deterrent and whether it would simply give judges less discretion.
Before I speak about the different parts of the bill, I will say that at this stage I will not comment on whether it is appropriate to refer the bill to a committee. I believe that the bill raises many questions and I am going to focus on that today. I will then indicate whether I will be voting for or against the bill at second reading. I think that the discussions in this chamber will be very informative and a great opportunity to show the importance of the debates held in the House.
The first of the three aspects covered by Bill C-219 concerns people in a position of authority. Paragraph 153(1.1) of the Criminal Code will be amended to increase the minimum sentence on summary conviction from 90 days to one year. In such a summary conviction, the judge would be limited to handing out a sentence between one year and two years less a day. This would greatly limit the judge's discretion in determining the sentence. Judges' responsibilities go beyond handing down a guilty verdict or an acquittal. Sentencing is also an important part of their job. Their discretion in this case would be severely curtailed.
Another problem is the imposition of the same minimum sentences for crimes deemed indictable offences and for crimes deemed summary offences. Handing out the same minimum sentence for crimes considered to be of different severity raises questions.
Furthermore, this amendment to the Criminal Code may not be constitutional. In 2019, the Court of Appeal of Yukon ruled that the minimum sentence of one year for an indictable offence was unconstitutional. We therefore can expect that the courts will do the same thing with the one-year minimum sentence for an offence punishable on summary conviction. The Nova Scotia Court of Appeal and certain lower courts in other provinces also declared this portion of the law unconstitutional.
The bill's second amendment relates to a person in a position of trust or authority, specifically towards a person with a mental or physical disability. This clause poses the same problem because it too adds a minimum punishment of one year for an offence punishable on summary conviction. We will most likely have the same debate about why the minimum sentence should be the same for an offence punishable on summary conviction as for a criminal offence.
Another problem might be the constitutionality of this mandatory minimum sentence. If we compare this to an article intended to protect other people also considered vulnerable, in this case children under 16 years of age, it is worth remembering that the Quebec Court of Appeal overturned the mandatory minimum sentence in Caron Barrette in 2018. The court declared:
...that the one-year mandatory minimum sentence of imprisonment provided for in s. 151(a) of the Criminal Code is of no force or effect with respect to the appellant, that it is unconstitutional as infringing s. 12 of the Canadian Charter of Rights and Freedoms and is not saved by operation of s. 1 of the Charter.
We might have a constitutionality problem in this case too. Another problem is that subsection 153(1) of the Criminal Code is rarely used because it is not very clear. Unfortunately, it is not a paragon of clarity.
At paragraph 184 of the decision in R. v L.C., the Hon. Erick Vanchestein says:
This provision was not subject to specific doctrine or jurisprudence in respect of its interpretation.
In other words, it is rarely used. He goes on to say:
It would appear from the parliamentary debates and proceedings surrounding the enactment of this provision that this offence was created at the request of organizations representing [persons with disabilities] who were seeking to obtain specific protection for vulnerable persons with disabilities, more specifically, the caregivers.... For this provision to be meaningful it necessarily needs to be complementary to the provisions with which it forms part.
The important paragraph is the following:
The court finds that the protection targeted by this provision is sexual abuse that takes advantage of the victim's disability, which is not the case here.
In that case, the victim was deaf.
In the end, the person was acquitted of the charge under section 153, because it needed to be proven that they had taken advantage of the victim's disability. What Crown prosecutors often do is use other sections that are clearer and easier to convict on. That makes section 153 ultimately useless, because it is not clear enough or makes it too hard to meet the burden of proof.
The last part of the bill calls for an amendment in the context of the commodification of sexual activity. It states that the court shall “consider as an aggravating circumstance the fact that the victim of the offence is a person with a mental or physical disability”.
We can expect this to create some discrimination in the hiring of sex workers. That is the absurd part of it. For instance, clients would be more likely to be criminally charged if they used the services of a sex worker with a disability that does not make her otherwise vulnerable than if they went to her colleague who does not have a disability. This would be a rather strange side effect of a very literal reading of the clause.
Furthermore, section 718.04 of the Criminal Code already sets out aggravating factors for offences against vulnerable persons. It reads:
When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
Therefore, there is already a directive for judges that a harsher sentence must be imposed when the victim is someone who is considered vulnerable.
There are a number of questions that could be asked about this bill. We could look at everything that was done following the Bedford case, which decriminalized the provision of sexual services. Should we be cracking down on clients or focusing on pimps, for example?
There is a lot to debate. I look forward to following this issue and hearing the parliamentary debates on it.