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.
