moved that Bill C-20, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act be read the second time and referred to a committee.
Mr. Speaker, this is the first speech of 2003. I would, of course, like to begin by extending to you and all the members of your team my best wishes for this new parliamentary year. I would also like to extend best wishes to all my colleagues.
Here we have the opportunity to express ourselves in what is probably the finest democratic forum in the world. Not only is this an incredible opportunity, but also a duty. I believe that there have always been fine and constructive debates in this House aimed at ensuring our ability to continue to work together to build Canadian society. With that in mind, I again extend to all of my colleagues my best wishes for our continued constructive work together.
I am very pleased today to begin the second reading debate on Bill C-20, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.
The government's commitment to the protection of children is clear and strong. As stated in the Speech from the Throne, we believe that Canadians have a collective responsibility to protect our children from exploitation in all its forms, including sexual exploitation.
We have therefore introduced Bill C-20 in order to reform the Criminal Code, to increase penalties for abuse and neglect, as well as to provide more sensitive treatment for children who participate in criminal justice proceedings as victims or witnesses.
The bill proposes a package of criminal law reforms that address five key components: first,strengthening the child pornography provisions to respond to continuing concerns; providing increased protection to youth against sexual exploitation by persons who would prey on their vulnerability; strengthening specific sentencing provisions related to offences committed against children, including abuse and neglect, to ensure that sentences better reflect the serious nature of these offences; facilitating testimony by child victims as witnesses and other vulnerable persons through a number of measures that include providing consistency and clarity regarding the use of existing testimonial aids, and by providing that child witnesses are competent witnesses; and creating a new offence of voyeurism to address in defined situations surreptitious viewing or recording of others in situations where there is a reasonable expectation of privacy.
This package of criminal law reforms is based, in large part, on extensive consultations with provincial and territorial governments, as well as with the general public.
This shows how much the current government values the collaboration of the provincial and territorial governments, which share responsibility for the criminal justice system with the Government of Canada. It also shows the current government's commitment to ensuring the participation of Canadians and obtaining their opinion on current issues.
With regard to the merits of Bill C-20, I would first like to point out that it includes a preamble. Although this is not without precedent, it is nevertheless an exception with regard to the majority of bills introduced in this House. We have included this preamble for a very specific reason, which is to stress the importance of the issues addressed in Bill C-20, namely, the protection of the most vulnerable people in our society, our children, from all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect.
Child pornography is an issue on which the government has demonstrated leadership both domestically and internationally by taking strong and effective measures to better protect children from this form of sexual exploitation.
Hon. members will recall that last July new offences came into effect that addressed the misuse of new technologies, including the Internet, to sexually exploit children. These new offences include transmitting, making available, exporting and accessing child pornography. The amendments also allow courts to order the deletion of child pornography posted on Canadian computer systems such as websites.
In addition to these reforms, we have developed and are delivering a training program for prosecutors on computer crimes which include child pornography. We are also supporting the pilot project by Child Find Manitoba on Cybertip.ca. Launched in September 2002, Cybertip.ca receives public reports about online child sexual exploitation. By mid-January 2003, as a result of reports forwarded by Cybertip.ca, more than 50 websites suspected of containing child pornography have been investigated by law enforcement. These investigations have led to many of the sites being shut down, including a number that were hosted in Canada.
At the international level, we continue to work with our G-8 partners on the implementation of a G-8 strategy for online child sexual exploitation. This strategy includes measures and aims at improving international cooperation, prevention, public awareness and outreach to other countries.
Today, Bill C-20 goes even further and directly responds to concerns regarding the issue of defence based on artistic merit and also the current definition of written child pornography.
As we respond to these concerns, it is important to remember that one of the key components that allowed the validity of the overall child pornography scheme to be recognized was the possibility of using various defences.
Bill C-20 is based on the Supreme Court's analysis and attempts to maintain this constitutional balance.
Bill C-20 recommends a twofold response drawing from the Supreme Court of Canada 2001 decision, which upheld the overall child pornography scheme. It would revise the child pornography defences to simplify and narrow their availability and broaden the definition of written child pornography.
Bill C-20 proposes to provide only one defence, the one of public good and to eliminate the other provision, which includes artistic merit. By doing so, the availability of a defence would be subject to a two step analysis. First, does the material or act in question serve the public good? If it does not, then there is no defence. Second, even if it does serve the public good, does it go beyond what serves the public good? If it goes beyond, then there is no defence.
Under the current laws, as interpreted by the Supreme Court, there is currently no requirement to balance artistic merit or good against any potential harm to society. Under the new law, the defences would be merged into one of public good and the courts would be required to consider whether the good served by the material or act is outweighed by the risk of harm that it poses.
Bill C-20 proposes to broaden the definition of written child pornography. In addition to including materials that advocate or counsel prohibited sexual activity with children, it would also include materials that describe prohibited sexual activity with children where the written descriptions of that activity are the dominant characteristic of the material and they are done for sexual purpose.
All Canadians are concerned about protecting young persons against sexual exploitation. We have begun to respond to this concern with the creation of the offence of Internet luring. I am pleased to say that charges have been laid under this new legislation.
Given the serious nature of this issue, we must continuously re-evaluate and ask ourselves if we can do more. Some believe that young persons would be better protected against sexual exploitation by simply increasing the age of consent to sexual activity. We believe however that the issue is about how to protect young persons from the exploitative conduct of others and not about their consent to such conduct.
Currently, the Criminal Code sets the age of consent to any form of sexual activity--from sexual touching to sexual intercourse--at 14 for most purposes with two exceptions. First, for exploitive relationships, the age of consent is 18 years. The consent of a young person who is 14 or older but under the age of 18 is not valid where the other person is in a position of trust or authority over the young person or the young person is in a position of dependency on the other. The age is also 18 for purposes related to prostitution and pornography. Second, for those close in age, a young person who is 12 or 13 may consent to sexual activity with a peer provided that the older person is less than 2 years their elder and there is no position of trust, authority or dependency.
But, and I want to be very clear on this, when we talk about the age of consent we are referring to consensual sexual activity. Consensual means there is a genuinely voluntary agreement to engage in the sexual activity. Any non-consensual sexual activity, no matter what the age of the person, is a sexual assault.
I held consultations on this issue, and just recently I asked for comments from my provincial and territorial counterparts. While there is agreement on the need to strengthen measures to protect young people from sexual exploitation, they do not all agree that raising the age of consent is the best way, or even an effective way, of reaching this objective.
I recognize that people's opinions on the age at which it is appropriate for young people to begin sexual activity varies enormously. However, as adults, whether we agree with it or not, the reality is that adolescents do indeed have sexual experiences. In this context, I believe that what Canadians want is to better protect their children from sexual exploitation.
Accordingly, the bill proposes creating a new category of prohibited sexual exploitation in order to better protect young people who have reached the age of consent, those who are between 14 and 18.
In addition to taking into consideration relationships of trust, authority or dependence, the courts must also take into account the fact that a relationship is based on exploitation and examine the nature and the circumstances of the relationship, including age difference and the degree of control or influence exerted over the adolescent.
In this manner the proposed amendment in Bill C-20 focuses on the other person's exploitation of the young person and not on the apparent consent of that young person to the exploitative conduct. I would also note that, unlike proposals to raise the age of consent to 16 years, the proposal in Bill C-20 would protect not only 14 and 15 year olds, but also 16 and 17 year olds from such exploitation.
The bill proposes several amendments to the sentencing provisions for offences against children to ensure that these provisions adequately reflect the serious nature of these offences. These include: increasing the current penalty for sexual exploitation, which includes the proposed new category, from 5 to 10 years when proceeded by indictment and from 6 to 18 months when proceeded by summary conviction; increasing the maximum penalty for sexual interference and invitation to sexual touching from 6 to 18 months when proceeded by summary conviction; and increasing the maximum penalty for failure to provide the necessities of life from 2 to 5 years when proceeded by indictment and from 6 to 18 months when proceeded by summary conviction.
Similar amendments are proposed for the abandonment of a child, which is currently an indictable offence that carries a maximum penalty of two years. We are proposing to make this a dual procedure offence with a maximum penalty of 18 months on summary convictions and 5 years on indictment, as well as making the abuse of any child, in the commission of an offence, an aggravating factor for sentencing purposes.
Bill C-20 also contains reforms to ensure that it is not as difficult for child witnesses to take part in criminal proceedings. A courtroom can seem strange, even austere for most witnesses. But for children, the experience can be very traumatic.
There have been important reforms in criminal law since the late 1980s in order to make the justice system more sensitive and better suited to the needs and realities of child victims and witnesses. These reforms recognized that the ability of child victims or witnesses to provide a clear, full and precise description of events can be adversely affected by both the trauma of the offence, but also by the criminal justice system itself.
The reforms contained in Bill C-20 follow up on these measures, including those that allow child witnesses to be accompanied by a person they trust, those that allow child witnesses to testify from behind a screen or by closed-circuit television in the case of certain offences, and those that restrict the questioning of a child by an accused person who is representing himself, and also in the case of certain offences.
When it comes to the current provisions, experience has shown that while these measures to facilitate testimony are very helpful for young witnesses, they are not always requested or applied in cases where they should be.
The justice department conducted extensive consultations concerning child victims and the criminal justice system. Responses obtained during these consultations show that the legislative reforms to make it easier for young victims and witnesses to testify during criminal proceedings enjoy considerable support. More specifically, respondents said they were in favour of the application of a uniform criterion for all victims and witnesses who are under 18, in terms of the possibility of testifying behind a screen, by closed-circuit television, or in the presence of someone they trust. The presumption by which these means would be provided unless they hinder the administration of justice is also supported.
Bill C-20 reflects these views and proposes to make testimonial assistance available for all young victims and witnesses under 18 years of age in all proceedings. Under the new law all children up to 18 years of age who are victims or witnesses in any proceedings, not only sexual offence proceedings, may request that a support person accompany them and may request to give their evidence from behind a screen or by closed circuit TV. The crown, in making the request, would not be required to prove the need for this assistance. The judge would order the use of the testimonial aid unless he or she was of the view that its use would interfere with the proper administration of justice.
Coming face to face with the person accused of the offence can be frightening and intimidating for young witnesses. Bill C-20 would ensure that a self represented accused person could not personally cross-examine a witness under 18 years of age in any proceeding. In such cases counsel would be appointed to conduct the cross-examination unless the judge determined that it was necessary to proceed in another manner.
We will also address the alarming issue of criminal harassment, or stalking as it is often called. A victim of criminal harassment should never have to face the possibility of being harassed again by an accused who chooses to represent himself and interrogates the victim personally. In such situations the court will appoint a lawyer who will represent the accused in order to avoid possibly traumatizing the victim with face to face confrontation.
Bill C-20 will also expand the provisions making video recorded testimony by a child admissible in court. Admissibility of a video recording can decrease the risk of anxiety or trauma for a child by reducing the amount of time spent testifying in court. Statements made on video will also allow the court to keep a recording of the statements made by a child at a time when the events were still fresh in his or her mind.
Currently, under the Criminal Code, statements recorded on video are admissible only for specific offences such as sexual exploitation, incest, child pornography, offences related to prostitution and sexual assault, and not in other offences involving violence such as murder or homicide. Video cassettes can also be entered into evidence when the complainant or witness is able to communicate the evidence but may have difficulty doing so because of a physical or mental impairment.
The new legislation will make an interview with a child witness or a witness with difficulty in communicating admissible for any offence, not just sexual offences.
As well, our reforms would also modernize those provisions of the Criminal Code allowing a publication ban in order to protect the identity of a victim or witness or to insure the fairness of a trial. Technological advances have given rise to new means of distributing information, and our legislation must reflect this.
Bill C-20 includes changes to ensure that a publication ban, when imposed, applies to publication, distribution or transmission by any means, including the Internet.
Bill C-20 also proposes amendments to the Canada Evidence Act to address continuing misperceptions of the reliability of children's testimony. Currently, child witnesses under the age of 14 years must undergo an inquiry into their competency and understanding of an oath or affirmation before being allowed to testify.
Bill C-20 proposes to eliminate the mandatory competency hearing and the distinction between sworn and unsworn testimony. The new test will be whether the child is able to understand and respond to questions. It will then be up to trier of fact to determine what weight to give to the evidence.
As well, Bill C-20 also creates offences of voyeurism aimed at remedying a shortcoming in criminal law. While voyeurism is not a new phenomenon, the means by which it can be perpetrated are.
Until very recently, voyeurism mainly related to peeping Toms. The Criminal Code currently allows for that type of voyeurism to be dealt with properly.
The development of new technologies has changed the situation considerably. Nowadays, it is possible to obtain miniature cameras at a relatively reasonable cost. It is easier to be a voyeur from a distance using such cameras, and to do so in locations that would not have been accessible before. The present provisions of the Criminal Code do not allow for this new form of voyeurism to be dealt with properly, which is why we wish to remedy this shortcoming with Bill C-20.
What we are proposing is to make it an offence to surreptitiously observe and record a person in circumstances that give rise to a reasonable expectation of privacy, not only when that observation and recording is for the purpose of sexual exploitation but also when it constitutes a serious violation of the right to privacy.
It will make it possible to seize copies of these recordings in order to prevent their being distributed or sold, as well as to delete all electronic copies of these recordings from computer systems, including the Internet.
Canadians value their privacy. This was confirmed again in the response we received from the public consultation on voyeurism. An overwhelming majority of respondents indicated that this offence should criminalize not only voyeurism conducted for a sexual purpose but also when it constitutes a serious breach of privacy. These new offences would reinforce the protection of the right to privacy valued by Canadians.
It is obvious that Bill C-20 responds in a very direct and meaningful way to many issues that are of concern to all Canadians such as child pornography, protection of youth against sexual exploitation, strengthening sentencing provisions related to offences committed against children, facilitating vulnerable witnesses and victims' testimony and creating the new offence of voyeurism.
I would ask all members of the House to support this very important bill for Canadian society.
