Sue Barnes

[Justice, February 27th, 2004]

Mr. Speaker, I am very happy to answer this question because I too, and all members, read that article. There is nothing that is entertaining or educational about the sexual exploitation of children, which is why the government has a bill currently before the House and one on which we hope the opposition members will support. The bill would strengthen what can be done in our courtrooms. Our judges are there to protect the children in the performance of what happens in that courtroom. They will do their jobs and we will give them the tools.

[Contraventions Act, February 25th, 2004]

--goes out and says that it is all right, they are giving the wrong message. The message is that it is not all right, and that is what we have to say. Contributing to the wrong message does not solve the problem. What we have to do is comply with our international obligations.

We have the single convention on narcotic drugs, the convention on psychotropic substances and the convention against illicit traffic in narcotic drugs and psychotropic substances. Canada is party to all three of these international conventions dealing with illegal drugs. These treaties require the member countries to prohibit certain activities, including the production, trafficking, import and export of drugs. Countries do and must provide adequate penalties, including imprisonment for serious drug offences.

[Contraventions Act, February 25th, 2004]

Mr. Speaker, I would answer my colleague across the House that her message that it is all right, is the wrong message. It is not all right. Every time a member in the House, who is credible--

[Contraventions Act, February 25th, 2004]

Mr. Speaker, I am pleased to speak on third reading of Bill C-10 which will reform Canada's laws as they relate to the possession and cultivation of cannabis.

Bill C-10 is the culmination of a long process that illustrates how the House should approach a major reform of the law in a non-partisan spirit.

All parties in the House can point to parts of the bill that respond to concerns that they raised and points that they made. Of course, there are divergent views in the House as there are across the country, but Bill C-10 represents a modern made in Canada approach to dealing with the harm caused by marijuana.

Members are well aware of the major steps that led to this reform. The House in May 2001 agreed that a special committee on the non-medical use of drugs should be established. The special committee undertook extensive public hearings across Canada. Witnesses from government departments, specialists in drug issues, educators, police and concerned Canadians made their views known.

The special committee made many recommendations regarding overall drug policy. The government has responded to those recommendations by renewing Canada's national drug strategy and providing $245 million over five years for education, prevention, law enforcement and harm reduction strategies. The special committee also recommended alternative measures for dealing with possession and cultivation of up to 30 grams of cannabis.

It is important to note that there were three minority reports. While the Canadian Alliance considered 30 grams too much, both the New Democratic Party and the Bloc Quebecois supported the intent of the recommendation, although they both had concerns.

Bill C-38, introduced by the government in May 2003, followed up on the recommendation of the special committee. This bill was referred to the special committee before second reading.

At that time, the Minister of Justice said that this demonstrated that the government was listening and willing to consider amendments to ensure we got it right, and that the special committee on non-medical use of drugs was well positioned to examine this issue after the exhaustive work it did to prepare its report, which was released last December.

The special committee in turn took its responsibility seriously. At this time I would like to thank the members of that all-party committee, including the chair, the member from Burlington.

It did make important improvements to the bill. In particular, it recommended that the bill make it an offence to release personal information to foreign governments and international organizations in relation to the offences of possession or cultivation of small amounts of marijuana that are punished by a ticket. They are still offences, but it is the way of handing out the fines and the sanctions that have been adjusted.

It makes the cultivation of one to three plants for personal use punishable by a fine of $500 for an adult and $250 for youth. It provides that where there is an agreement between Canada and a province, the offence could be prosecuted by a ticket under the Contraventions Act. It requires that the government review the impact of the new legislation within three years. We are pleased with that addition.

The amendments to Bill C-38 proposed by the special committee were accepted by the government. The result of all these actions is the bill now before us, Bill C-10, which I believe meets the expectations of Canadians.

Members of the House are aware of the problems that a criminal conviction for the possession of a small amount of marijuana can cause for a person. It can close opportunities for employment and prevent travel to certain countries.

As a society, Canadians have decided that it does not make sense that a young person who makes a bad choice in life by experimenting with marijuana should receive the lasting burden of a criminal conviction and face such serious consequences.

The members are also aware that Canadians want stricter sanctions on large marijuana growing operations, which are both a danger to our communities and a source of revenue for organized crime.

Bill C-10 reflects what Canadians want. Marijuana remains a prohibited substance and its possession will remain a criminal offence. This is the message that youth must understand, that there are sanctions. This is not legalization.

Bill C-10 reflects what Canadians are telling us. Marijuana remains a prohibited substance and its possession will remain a criminal offence. However, the procedure for punishing a person who is convicted of possessing a small quantity of marijuana or cannabis resin for personal use has been changed in a way that better reflects the attitudes of Canadians toward the seriousness of the crime.

Possession of 15 grams or less of marijuana will be punished by a summons or a ticket and not by summary conviction. The fine will be set at $150 for an adult and $100 for an adolescent, if there are no aggravating circumstances.

Police officers will retain the discretion to give a ticket or a summons to appear in criminal court for the possession of more than 15 grams of marijuana and up to 30 grams. If a summons is issued, then the maximum sentence will remain a $1,000 fine and/or six months in jail. These fines would be higher in many cases than what offenders are getting now.

It is important to note that when a youth is facing a charge, his or her parents will be notified. We believe the punishment for possession will now be seen by Canadians as fitting the crime.

Bill C-10 also responds to Canadians' expectations concerning the cultivation of marijuana. It will double the maximum penalty for cultivation if the offender has more than 50 plants. In addition, it sets out a number of aggravating circumstances which would require courts to provide reasons for not imposing a prison sentence.

It is appropriate that the penalty for cultivating up to three plants be reduced. The person who is growing only three plants or less is likely to be cultivating for personal use; however, we deplore the use of marijuana. Canadians recognize that there is a difference in culpability where the person is growing for personal use as opposed to cultivating for sale to others. Bill C-10 makes that distinction.

All members are aware that Bill C-10 by itself will not solve all the problems that drugs are causing in our country. It is of course important that criminal law be modernized. Bill C-10 should lead to more uniform enforcement of the prohibition of possession of marijuana.

Currently it depends in what city, town, province or territory one lives. This hopefully will assist more police officers encountering a problem. Tickets will be issued that then will get paid. The amounts for youth will be of the amounts that they can pay and the money will not come from parents pulling dollars out of their pockets. These are sanctions for youth.

Those sanctions will free up police officers so that they can do more important work and not be there handing out numerous charges in some areas and voice reprimands in others. It does not seem to be much of a sanction for youth if they are in a city or town where it is just a verbal warning as opposed to this ticket that is going to cost money each and every time.

Bill C-10 should lead to more uniform enforcement for the prohibition of possession of marijuana. The greater penalties for cultivation combined with the extra police resources that the government is funding under the national drug strategy should reduce the prevalence of grow ops. We all know how important it is to go after the grow ops.

However, the drug problems being experienced by our communities across Canada require a comprehensive response to address the underlying causes of drug abuse. Much of what has been done does not fall on the shoulders of the federal government. It is therefore particularly important to note that the government's commitment in renewing the national drug strategy is to work with provincial, territorial and municipal governments, addiction agencies, non-government organizations, professional organizations and associations, law enforcement agencies, the private sector and community groups to reduce the harm to individuals and to society of drug abuse.

The government is playing the leadership role that it should play in the fight against drug abuse and it is rejecting the “Ottawa knows best” attitude that in the past has hindered cooperation with our partners. Through the mechanism of a bi-annual conference, the first of which will be held this year, the government will bring all the stakeholders together to set research, health promotion and drug prevention agendas.

In that regard, the amendment made by the special committee and accepted by the government that, after three years, there must be a comprehensive review of the effects of the alternative penalties on Canadian society is to be welcomed. This was a good addition.

It is my sincere belief that when Parliament reviews the effects of Bill C-10 on Canadian society, it will find that the legislation struck the right balance, and that Bill C-10 will have played an important part along with the many individuals and initiatives who are working and being funded under the national drug strategy in reducing the harm caused by drugs to Canadians.

I want to point out to Canadians that operating a motor vehicle while impaired by any substance remains a serious criminal offence. Driving while impaired by drugs including marijuana is included in the offence under subsection 253(a) of the Criminal Code. Section 254 of the Criminal Code calls for minimum penalties for impaired driving including a mandatory minimum $600 fine on a first offence, a 15 day minimum sentence on a second offence, and a 90 day minimum sentence on a third offence. The maximum penalty for impaired driving is five years unless someone is hurt or killed putting the maximum penalty up to 14 years.

The challenge for police dealing with drivers impaired by drugs is proving a person's impairment because as yet, no scientific screening device exists to determine the levels of impairment by drugs. The government is proceeding to deal as expeditiously as possible with practical difficulties inherent to proving the drug impaired driving offence.

Consultations that were started last fall have been completed. We intend to move forward very quickly in this area. This is an important area to the government, and I do not want Canadians believing that we will let this area go. We are actively working on it right now.

I know the bill has proven to be of some difficulty for members in the House, but we are not sent here to do the easy things. I firmly believe all of us in the chamber, on every side of the House, want to improve the lives of Canadians. We want to make penalties and sanctions fit the offences in a manner that is appropriate and in a manner that will not destroy lives, but will allow in some instances, especially with our youth, them to make an error in judgment, to be sanctioned, then to move on with their lives and not carry a penalty for the rest of their lives.

Many of my colleagues have talked about pardons. Canada has a pardon mechanism. People can apply for pardons on an individual basis. Some members, who have worked very hard on the bill, wish we could wave a magic wand and erase the criminal records of people who carry these records because of a simple possession charge. There are maybe over 6,000 people in Canada who carry criminal records because of a simple possession charge.

Unfortunately, there is no mechanism to do a broad amnesty or pardon because we have to look at the specific situation of everybody's case. When examining pardons, it is a material part of that process to see what exactly is being pardoned, such as whether the original offence was a plea bargain down from a more serious offence. We should not do a retroactive blanket pardon.

There are students heading toward universities or professional schools who would make good and productive members of society, but who may have in their youth taken part in activities that are still illegal in this country. They might be unable to obtain employment, or they might be unable to take university courses, or they might be unable to work in a government office if they carry that criminal record. They may have to delay their education.

I do not think anybody excuses bad behaviour. However, we on this side of the House, with the help of those who look seriously at the bill before us and who look at what we have a chance to change in society, think there is more than ample reason to change the law today.

Bill C-10 deserves the support in the House. Ladies and gentleman, colleagues in the chamber, it has been a long time coming. The Le Dain commission was nearly 30 years ago. I believe we should move cautiously forward. Some people advocate going immediately to legalization. Most of the time our bills move forward step by step. Law, just like anything else, is a living tree. I urge all members of the House to support Bill C-10.

[Contraventions Act, February 23rd, 2004]

Madam Speaker, we on this side of the House accept the Speaker's guidance on the motions that have been forwarded on report stage debate. The Speaker has accepted two technical motions brought forward by the government to amend Bill C-10. These amendments flow from the amendments that were made by the special committee and will make the bill a better bill while maintaining it, in each case the intention of the Special Committee on the Non-Medical Use of Drugs.

The amendments were proposed by the government after it had the opportunity to consider the amendments that were made by the special committee. Members are aware that, in the somewhat unusual circumstances of last October, the special committee did not feel that it had time to wait until another day for the government to present amendments to implement the changes it wanted. Thus, we have those amendments before us today.

Accordingly, the amendments were drafted in some haste on the night when the special committee began its clause by clause review of the bill. It is therefore not surprising that these technical amendments that we have today are necessary to consider the wording of the amendments made by the special committee. The government believes that the improvements to the wording can and should be made.

I will walk hon. members through the amendments so they will be able to vote on them with a full understanding of their implications. I am confident that members will then support the changes.

The first technical amendment is to clause 3.1. The special committee added a prohibition regarding the disclosure to a foreign government or an international organization or their agents of information relating to a cannabis contravention offence maintained by the Royal Canadian Mounted Police or by an organization having a law enforcement role unless the disclosure is required by a court order. Violation of the prohibition would be a summary conviction offence.

The wording adopted by the special committee is somewhat imprecise and vague. Reference to “other law enforcement information systems” and “organizations having a law enforcement role” are vague and need to be clarified. The government's proposed amendment would bring added clarity and precision to the text. However there is a very important change suggested.

The wording of the bill currently refers to “an agent of a foreign government”. The concern is that “agent”, which is undefined, could be interpreted quite narrowly. Therefore the government believes that the special committee's intent to foreclose unauthorized disclosure to anyone of information regarding tickets would be best accomplished by replacing “agent” with “a person who acts in the name of or on behalf of such a government or organization”.

The next amendments deal with the review of the provisions of the act. Members of the special committee heard conflicting testimony about the consequences of moving to a ticketing regime. They also heard from some witnesses that the increased penalties provided for major grow ops would have little effect in part because the courts would not respond to the signal provided by Parliament and that the offence of cultivation was to be treated very seriously. Some witnesses called for mandatory terms of imprisonment.

Given the importance of the changes which Bill C-10 is making in the way we would punish the possession of a relatively small amount of marijuana and in the way we would treat the cultivation of marijuana, the government fully accepts that there is a need for the review but the question is how best to ensure in law that the review will take place. The amendment of the committee is somewhat imprecise and vague.

The expression “national drug strategy”, for instance, is undefined in the bill. We know there is enough national drug strategy, announced by the government, and $245 million would be devoted to fighting drug abuse over five years. However, in law, the national drug strategy is not specifically existing.

Moreover, the term “government” is not defined in the Controlled Drugs and Substances Act as it is in some other acts. To rectify this, the government is proposing an amendment that would bring added clarity and precision to the text and make it more effective in four ways.

First, the responsibility to appoint someone to carry out the review is placed squarely on the shoulders of the minister who is charged with the administration of the Controlled Drugs and Substances Act and who has the primary responsibility for Canada's drug strategy, and that would be the Minister of Health.

Second, the scope of the review was significantly expanded. The provision in the bill currently calls for a review of the “Alternative in Penalties”, which refers only to the ticketing regime. The proposed change will cover “the provisions and operation of the act”. This means that the report should cover the effects of the increased penalties for grow ops.

Third, the existing provision provides no timeline for the completion of the review. In theory, the mere appointment of the reviewer of the act would constitute compliance with the provision. If this amendment is accepted the review will have to be completed and submitted to the minister within one year of the appointment.

Fourth, the minister of the day will be obliged to table the report in both Houses of Parliament within 30 sitting days after receiving it.

Clearly the process that is proposed in these amendments is preferable to the process currently in Bill C-10. I put these motions and their explanations before the House for its consideration.

[Criminal Code, February 23rd, 2004]

Madam Speaker, I am pleased to speak to Bill C-471, an act to amend part XXIV of the Criminal Code regarding dangerous offender designations and the Corrections and Conditional Release Act, introduced by the hon. member for Crowfoot.

The objective of the bill is to jail indefinitely anyone convicted for a second time for any one of three specific sexual offences against a child under the age of 18: section 271, sexual assault; section 272, sexual assault with a weapon, threats to a third party or causing bodily harm; and section 273, aggravated sexual assault.

The bill would require new criteria for these specific offenders to be granted parole, specifically requiring at least two psychiatric assessments indicating the risk posed by the offender, and with both assessments indicating that there was no risk of reoffending.

The bill proposes to meet these objectives by amending the dangerous offender provisions of the Criminal Code, specifically section 753, regarding the establishment of new mandatory criteria for judges to consider in dangerous offender applications against this specific group of offenders. The bill would add a new provision to the Corrections and Conditional Release Act establishing mandatory criteria parole hearings regarding these specific offenders.

I commend the overall objective of the bill of enhanced security for children from sexual predators. I do not think anybody in the House would do otherwise. As stated in the Speech from the Throne earlier this month, this is also a priority of the government and has been for the past decade.

However, I do not believe that the bill would accomplish what it is setting out to do, that is, to enhance child safety. I would like to examine how the scheme proposes to operate and in so doing clearly demonstrate why I believe it simply will not work.

The heart of the bill is the proposal to amend section 753 of the Criminal Code. This particular provision defines the criteria that a judge must consider to designate a convicted offender as a dangerous offender. The proposal in Bill C-471 seeks to dramatically change the way a particular class of offenders is designated as dangerous offenders.

This proposal would make dangerous offender designations automatic where the defendant has had two or more convictions for the enumerated sexual offences where the victim was a person under the age of 18. That is what the member for Crowfoot indicated when he introduced his bill on October 6, 2003, and again this morning in his speech.

I must submit that I have serious concerns about this proposal. The bill says quite clearly that individuals convicted of a sexual offence listed in subsection 752(b) where the victim was under 18 years of age is subject to this new provision if they had a previous conviction under the same offences. Again, these offences are for sexual assault, committing a sexual assault while carrying, using or threatening to use a weapon, and aggravated sexual assault.

As I understand it, these specific offences are currently listed in subsection 752(b) in order to define the term “serious personal injury offence”. I note that these provisions are there to do exactly what the member for Crowfoot wants, that is, to make dangerous offender designations against sexual offenders easier. It seems to me that it is working.

At last count, of the 200 designated dangerous offenders since the last major revision to part XXIV, proclaimed August 1, 1997, over 90% of the designations were for sexual offences, and the vast majority were for the three listed offences, I believe about 80%. I would also point out that the Crown success rate for such applications is extremely high, over 90% in most provinces.

Right now there are over 340 dangerous offenders in the corrections system. Of those, over 90% are sexual offenders. About 80% of sexual dangerous offenders are there because of a section 271, 272, or 273 offence. Clearly, the current provisions are hitting the mark. These are the offenders that the provisions target and with great success. The bill seems to imply that this is not good enough.

Under the current provisions, one of the prerequisites for making a dangerous offender designation is that the defendant must have committed a serious personal injury offence with the criteria being defined in subsections 752(a) or (b). That is, if the offence was one of the listed ones in subsection 752(b), then no further inquiry by the court would be needed regarding the serious personal injury offence requirement.

The court must then turn to the test outlined in subsection 753(1)(b). This requires the court to satisfy itself that the Crown has met the prerequisites of proving that the individual, by his conduct, has shown a failure to control his sexual impulses and, further, that there is a likelihood that he will cause injury, pain or other evil to others in the future as a result of his failure to control his sexual impulses.

I would emphasize that the prerequisites for a dangerous offender designation for individuals convicted of the listed sexual offences are already significantly less stringent than for all other offences. Specifically, I would point out that if the Crown were to seek a dangerous offender designation for an offence other than the three mentioned in subsection 752(b), the first step for the Crown would be to meet the burden of establishing that the offence was a “serious personal injury offence” as defined in subsection 752(a).

This would require, first, that it be an indictable offence with at least a maximum penalty of 10 years and, second, the Crown must prove, under subsection 753(1)(a), that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons. Subsections (i) through (iii) provide the criteria which the court would use for making such a determination.

I make these points and I know they are technical, but they are important points. I make these points to clearly demonstrate to the House that part XXIV of the Criminal Code already makes dangerous offender applications against individuals committing the listed sexual offences easier than non-sexual offenders. That is not in fact my primary concern with the bill. Far from it. My real concern lies with the mandatory imposition of the dangerous offender designation.

I would draw the attention of the House to subsection 753(1), which states that the court may impose the dangerous offender designation on the offender if the Crown satisfies all of the criteria I have mentioned above. This is the same for both categories of offenders, the designated sexual offenders and all others. This wording provides the court with discretion on whether to impose the designation. It is there for a reason and that reason is critical to the constitutionality of this provision.

When we lock up any individual, we are depriving that individual of his or her liberty, but we do so for specific reasons and we only do so where we provide due process and protection of fundamental rights of the individual. Since 1982 that right has been clearly entrenched in the Constitution by section 7 of the Charter of Rights and Freedoms. I would point out that even before 1982 those fundamental rights existed and were in fact vigorously protected by the courts.

Since 1982 that right has been codified and entrenched. The Supreme Court of Canada has had a lot to say about how section 7 interplays with the desire to protect society from habitual and violent offenders. The leading cases on this are the decisions of the Supreme Court in Regina v. Lyons 1987 2 S.C.R. 309, and more recently Regina v. Johnson, 2003 S.C.C. 46.

In Lyons, the court made it clear that Parliament could indeterminately imprison offenders in order to protect Canadians from harm, but if and only if the charter rights of these individuals were protected. In Regina v. Johnson, the Supreme Court reviewed the provisions as they are now and again found them to be constitutional. However, it emphasized, as it did in Lyons, the importance of the discretionary aspects of the provisions as a fundamental method to ensure that the rights of these offenders were protected.

Both of these cases provide an exhaustive examination of the constitutional viability of part XXIV, both before and after the 1997 changes. Both cases emphasize the discretion afforded the courts in refusing to impose a dangerous offender designation as a critical aspect of the viability of the scheme.

The bill before us today simply goes too far. It says that the court shall have no discretion and if there are two convictions it is automatic. I simply cannot support the bill regardless of the laudable objectives--and I know my colleague has put a lot of work into the bill--of protecting children. I simply do not believe the courts would uphold it. It would be irresponsible to amend the Criminal Code knowing that it would be unconstitutional. Along with the fact that part XXIV already successfully targets these specific offenders, I submit that this proposal does not merit the support of the House.

In theory we must envision the constitutional aspect. The Constitution is real and not just theory. The constitutionality of our laws is very important.

[Criminal Code, February 18th, 2004]

Madam Speaker, I also am glad to see another woman taking the position in the chair.

There are three motions on Bill C-12. I will briefly speak to the two government motions. Government Motion No. 1 is a grammatical correction amendment to clause 6. This is a technical motion that proposes to correct a grammatical mistake in the French version of an amendment made in committee. Clause 6 was amended in committee to add the offence of “advertising” a recording made through the commission of an offence of voyeurism to the listing of other prohibited acts regarding such voyeuristic recordings. The words added in the French version require an indirect object, but they are placed in a sentence where all of the other verbs require a direct object.

The amendment would replace the expression “faire de la publicité” with the verb “annoncer”, a verb which is of a similar nature to the other verbs or prohibitions used in the clause and which is also the same French verb used elsewhere in the Criminal Code for the English equivalent of “advertising”. This would make the French and the English versions consistent.

I will move now to government Motion No. 3, which is a coordinating amendment on clause 27. Again this is a technical motion to amend clause 27 of Bill C-12. It replaces Bill C-12's reference to the public safety bill that died on the Order Paper with the current reference to that same bill as reinstated on February 11.

Clause 10 of Bill C-12 proposes to amend section 183 of the Criminal Code to add the new voyeurism offences to the list of offences for which criminal investigations can intercept private communications and use video surveillance. Bill C-7, the Public Safety Act, 2002, formerly Bill C-17, also amends section 183 of the Criminal Code to add other offences to the list.

Clause 27 of Bill C-12 is a coordinating clause. It is needed to ensure that the amendments to section 183 proposed by both Bill C-12 and Bill C-7 can come into effect regardless of the order of enactment of these bills.

Accordingly this motion seeks to amend clause 27 of Bill C-12 so that it now refers to the new bill number for the Public Safety Act, Bill C-7, to thereby coordinate both bills' amendments to section 183 of the Criminal Code.

Now to the more substantive matter which the hon. member for Vancouver East has proposed in her motion. I rise today to oppose the motion of the member opposite. I do acknowledge the hard work that has been done by all on this committee.

In effect, this motion seeks to maintain the status quo on child pornography and this is something which neither Canadians nor this government accept. The government believes that the existing child pornography provisions do not go far enough to protect our children against this form of sexual exploitation.

They do not go far enough because they restrict the definition of written child pornography to only those materials that “advocate or counsel” unlawful sexual activity with children. The existing child pornography provisions do not go far enough because they provide two defences for all child pornography offences, including a defence for material that has artistic merit or an educational, scientific or medical purpose without any harms-based test.

Bill C-12 says no to the status quo while this motion says yes to it. Clause 7 of Bill C-12 proposes two reforms to the existing child pornography provisions. First, it proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the dominant characteristic of the material and it is done for a sexual purpose.

Second, Bill C-12 proposes to narrow the two existing defences into one defence of “public good”, a term that is now specifically defined in the bill. Under the new law, no defence would be available where the material or act in question does not serve the public good or where it exceeds or goes beyond what serves the public good. More simply stated, if the risk of harm that it poses outweighs the benefit that it offers to Canadian society, then no defence would be available.

Today's motion goes in the opposite direction of Bill C-12. It says that written materials that consist primarily of descriptions of unlawful sexual activity with children, which descriptions are done for a sexual purpose, are okay. It says that these materials are not child pornography and that they should not fall within the reach of the criminal law.

The Supreme Court of Canada interpreted “for a sexual purpose” in the Sharpe case, 2001, as that which can be reasonably perceived as intended to cause sexual stimulation.

With this interpretation in mind, I find it virtually impossible to comprehend the basis for any argument that seeks to support and protect materials that mostly describe the sexual abuse of children and where these descriptions can be reasonably perceived as intending to cause the reader to be sexually stimulated.

These materials are not okay, as this motion would have us believe. The Criminal Code provides a comprehensive set of prohibitions against the sexual abuse and exploitation of children. The type of written materials that Bill C-12 wants to include in these protections, but which this motion seeks to exclude and to protect, are those that portray or purport to portray children as a class as objects for sexual exploitation. The government recognizes the very real risk of harm that such portrayal and objectification of children pose to our children and to society at large. That is why Bill C-12 proposes to include these types of materials within our definition of child pornography.

The second thing that this motion seeks to do is to maintain the current test for when child pornographic materials should be protected by the defence of artistic merit. Under the current test for artistic merit, the defence is automatically available for material that, objectively viewed, demonstrates some artistic merit, no matter how small and no matter what the risk of harm it may pose.

For example, if the material in question is a written story, the test for the current defence is, objectively viewed, does the story reflect some accepted or recognized literary techniques or styles? If so, the defence is available, irrespective of whether the risk of harm that story poses to children in society outweighs any benefit that it offers.

The government does not agree with this and does not support the existing test for artistic merit and neither do Canadians. The Standing Committee on Justice and Human Rights amended Bill C-12 to define the public good as including acts or materials that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.

This definition is modelled on the Supreme Court of Canada's interpretation of the public good in Sharpe. This will help to ensure that the subsequent interpretation of Bill C-12 is guided by the Supreme Court's decision in this case.

The justice committee's amendment of Bill C-12 to include a definition of the public good directly responds to concerns expressed by the arts community and other witnesses who appeared before the committee. They wanted greater clarity in the bill as to what constituted the public good. The justice committee amendment to define the public good responds to this concern.

However, as to the balance of the concerns raised by the arts community witnesses, a number of observations should be made. In a child pornography case, the first question to be considered and answered is whether the work in question meets the Criminal Code's definition of child pornography.

Examples of written works that were described by these witnesses to the justice committee would not meet the existing definition of written child pornography, that is, they could not be said to advocate or counsel unlawful sexual activity with children. Neither would they meet Bill C-12's proposed new definition. That is, they could not be said to be works that, one, were comprised primarily of descriptions of unlawful sexual activity with children and, two, that such descriptions were written for a sexual purpose.

If the material in question meets the definition of child pornography, then the second question to be considered--and it is a question that falls to the courts to determine--is this: Is this material protected by a defence? Under Bill C-12 there would be only one defence and the test for the single defence would be the same for all material. It would be a two-step inquiry that indicates and includes a harms-based test and it would be possible for art to meet such two-step inquiry.

The motion to delete clause 7 of Bill C-12 is not consistent with the objectives of the bill as set out in the preamble, which states:

Whereas the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect--

It is for these reasons that I urge all hon. members to support Canada's children and support Bill C-12 as passed by the justice committee and not to support this motion from the hon. member of the opposition.

[Older Adult Justice Act, February 5th, 2004]

Mr. Speaker, I am pleased to have the opportunity to speak on Bill C-439, the Older Adult Justice Act, introduced by the member for Sudbury.

I would like to thank her for the work she has done.

The amendments in the bill propose to establish the office of the Ombudsman for Older Adult Justice and the Canadian Older Adult Justice Agency and to amend the Criminal Code provisions on sentencing.

I would like to assure the House that those of us in the Department of Justice, including the minister and myself, understand that the protection of older adult rights is a serious matter in this country. I listened to all members in the House today and all of us take these rights seriously.

Through the work of the Department of Justice, we hope to attain a balance of the appropriate protection for older adults while maintaining respect for older adults' rights of independence.

Together with the partners that we have in this country, including the provincial and territorial governments, non-government organizations that operate in our community and the private sector itself, the department currently addresses older adult justice issues through strategies that include legal reform, public legal education, information, research and support for various programs and services.

These efforts have included involvement in the federal government's family violence initiative and the national crime prevention strategy, as well as involvement in and support for the work of the federal-provincial-territorial ministers responsible for seniors' safety, and the security working group in the interdepartmental committee on aging and seniors' issues.

I note that some of the members in the chamber have referred to these areas. The department also provides leadership for the federal interdepartmental working group, which is very active on safety and security of seniors.

Many other issues addressed by this bill are addressed by current provincial-territorial laws. That has been pointed out earlier today. To date, the provincial-territorial law addresses the interests of older adults in terms of physical and mental states, for example, issues of guardianship, health law, substitute decision making, and even those areas that relate to dying, for example, wills and estate planning.

There are also offences within current provincial-territorial jurisdiction such as an abuse of the power of attorney. Several jurisdictions in Canada have also enacted social welfare or protective legislation to protect older adults who are victims of physical or sexual abuse, mental cruelty, or inadequate care and attention.

In jurisdictions where adult protection and guardianship legislation is in place, there may be statutory adult protection service programs that offer a combination of legal, health and social services interventions. That cooperation is more important as one ages, particularly the integration of activity.

While we agree with the overall goal of Bill C-439, the Department of Justice will not support the bill in its current form because of the unconstitutional nature of this particular bill. The main constitutional question raised by the bill is whether the bill is within Parliament's legislative jurisdiction under section 91 of the Constitution Act, 1867.

Part 1 of Bill C-439 would establish the office of the ombudsman for older adult justice, responsible for promoting the protection of older adult rights, investigating complaints, and referring to the Minister of Justice matters not settled satisfactorily.

Part 2 of the bill would establish the Canadian older adult justice agency, responsible for providing resources to promote the protection of older adult rights, including information on the prevention, detection, assessment, identification and treatment of older adult abuse, neglect or exploitation.

Parliament does not have direct legislative competence over the rights of older persons in relation to adult abuse, neglect or exploitation outside the context of criminal law. Inside the context of criminal law, we do have this power. In fact, Canadians aged 65 and older had low levels of violent victimization. It is about 1.8%, although they account for 12.7% of the population, and I am quoting 2002 statistics.

Aside from the proposed amendments to the Criminal Code, which do not present the jurisdictional issue, Bill C-439 is not a criminal law measure. Instead, the bulk of the bill is outside Parliament's direct legislative jurisdiction.

The creation of an ombudsman for older adult justice and of a Canadian older adult justice agency could be done federally through the exercise of the federal spending power. The courts have recognized that there is a federal spending power even though it is not mentioned specifically in the Constitution.

The courts have held that Parliament may constitutionally direct the expenditure of money outside its area of legislative jurisdiction so long as the spending statute does not amount in substance to a direct regulation of a matter within provincial jurisdiction. We have heard two of the parties mention this problem earlier today.

Much of Bill C-439 could be accomplished as an exercise of the federal spending power. In general, the ombudsman for older adult justice and the Canadian older adult justice agency proposed by this bill perform non-regulatory functions such as examining issues, making reports, collecting and disseminating information and other like aspects.

There are, however, provisions of Bill C-439 that step well beyond the simple exercise of the spending power and over the line into regulation. This is where we have problems of authority and jurisdiction.

For example, subclause 7(8) of the bill purports to give the ombudsman, in the course of conducting an investigation or study, to require any person to furnish information and to produce documents, papers or things.

Subclause 7(11) prohibits people from obstructing the ombudsman in the performance of the ombudsman's duties and functions under the bill.

Subclause 7(12) makes it a summary conviction offence to contravene clause 7 of the bill, including the ombudsman's right to require information and documents in the obstruction prohibition.

The provisions giving the ombudsman the power to compel information and the production of documents and the offence of obstructing the ombudsman cannot be sustained under the spending power. This is an extension. It is well beyond the jurisdiction. These provisions purport to regulate conduct by imposing legal penalties for failure to abide by the act.

The creation of offences as the most coercive of state regulation of conduct is well outside the scope of the spending power exception. The provisions of the bill I have just described are therefore outside Parliament's power to enact.

There is a similar constitutional flaw in the regulation making power contained in subclause 32(2). This subclause purports to authorize the governor in council to make a regulation, making it an offence to contravene the regulation. Here again, the delegation of this power to create offences exceeds the constitutional basis of Bill C-439, which is the federal spending power.

Having said that, there is no doubt that members in this chamber are interested in all those areas that affect seniors. I applaud the member from Sudbury for raising this. It is a good thing that we are standing in the chamber this hour and another hour, hopefully, to debate these issues and highlight the issues that the member, I know, is very concerned about, and all of us are in our communities.

However, it is not just noble principles that we have to debate in the chamber. We are legislators. We have jurisdictional issues and we should work cooperatively with the jurisdiction that has those areas of responsibility to engage all of us in our communities and make things work properly in a way that we can effect change. It is not our job to spend a lot of time where we cannot be the most effective with the time and resources we have available. We should be working within the jurisdictions, even in the most cooperative manner, to the best benefit of all of our constituents.

No one is saying that these rights and obligations in these areas are not of supreme importance in our communities. Obviously, all citizens are valuable in our communities and older citizens are a special responsibility, just as, as another member mentioned, the youngest citizens.

It is our job as legislators to engage and envelope the ideas, the goals and the values that I think the member is getting at. What she is looking for is an envelope of a bill to address the objectives. The situation with the bill and its present context does not meet the jurisdictional requirement to be supported by the government, the justice minister and the justice department.

Constitutional flaws are serious flaws and we should respect them. Having said that, I do respect all members of the House and their ideas. I think further discussion of anything that could benefit our seniors is a worthwhile use of our energy.

I will end by saying to the hon. member that I look forward to the ongoing debate on this issue. I commend her for her work.

[Committees of the House, October 3rd, 2003]

Mr. Speaker, I have the honour to present, in both official languages, the sixth report of the Standing Committee on Finance concerning Bill C-48, an act to amend the Income Tax Act (natural resources).

The committee has considered Bill C-48 and has agreed to report it (without amendment).

[Committees of the House, June 5th, 2003]

Mr. Speaker, there is a divergence of opinion in the country on what is reasonable. Over time that also will change as the demographics of the country change, as the needs of consumers change and as we get more technology.

We have to realize that the report talked about a merger process. The report was focused on what was the public impact, what was the public interest. We will leave it to those very competent agencies out there to protect the prudential issues, to make sure that we have safe banking. Thankfully we do not see banks in this country falling down and disappearing. We have very good quality banks and we want them in the communities. I understand the member's point.

I am looking forward, as are other members in the House, to the government's response to the report. I hope that we will get that in the 90-day period requested, which should come toward the end of June.