Paul MacKlin

[Family Mediation, February 6th, 2003]

Mr. Speaker, I rise today in the House to express my support for the “Helping Families Succeed” initiative that has been launched by Family Mediation Canada, a national organization dedicating its efforts today to raising public awareness of the benefits of mediation.

Canadians have clearly signalled that families need services like mediation when parents separate or divorce.

While the amendments proposed in Bill C-22 are a very positive and timely step forward, changes to the law by themselves are not enough to improve the family justice system in Canada. Services are needed to ease the conflict and stress that come with separation and divorce and to help parents while they are making decisions about the care of their children.

Some parents need support to make decisions about their children's care. They need tools to help them minimize conflict, cooperate and work out child focused parenting arrangements. Alternative methods of resolving conflict, like mediation, can help Canadian families achieve these goals.

[Antipoverty Act, February 4th, 2003]

Madam Speaker, I am pleased to have the opportunity to speak to Bill C-228 introduced by the hon. member for Hochelaga—Maisonneuve. The bill touches on important issues of concern to all Canadians and I welcome the chance to address them.

The bill, entitled the antipoverty act, is actually a proposed amendment to our Canadian Human Rights Act. As can be seen, these proposed changes are significant.

First, it would add social condition as a prohibited ground of discrimination. Second, it would explicitly make it a discriminatory practice for banks to refuse to provide service to individuals by reason only of their low income. Third, the hon. member's bill would require the Canadian Human Rights Commission to review every bill introduced in or presented to the House of Commons by a minister of the crown to determine whether it would likely result in a discriminatory practice. The commission's findings would be tabled in both houses.

Last, the bill would have the commission prepare an annual report on poverty in Canada in which it would establish the required annual expenditure to end poverty. This report would also be tabled before both houses and the bill would compel the House of Commons to debate its contents.

Before turning to the specifics of the bill and why I cannot support it, I would first like to take a moment to comment on its objective. Clearly, it is motivated by the desire to alleviate the serious problem of poverty in Canada. With this objective, the Government of Canada has already demonstrated its full agreement.

Poverty continues to prevent some individuals from realizing their full potential as equal members of our society with a right to equal opportunity and equal participation. Addressing the problem of poverty needs to be a priority for all levels of government, federal, provincial and municipal. Unfortunately, despite numerous governmental policies and programs implemented to address this concern, poverty persists.

Federal efforts have included such measures as employment insurance, increased tax credits and national labour and housing strategy. Provincial and municipal governments have also been active in developing and implementing policies and programs aimed at eradicating poverty.

Nevertheless, more remains to be done. As a result, the government has recently reaffirmed its commitment to strengthen the social safety net and to work to eradicate poverty through a number of innovative initiatives. To name one such initiative in particular, the national child benefit is helping children and families break out of that cycle of poverty.

The government promised in the Speech from the Throne to increase the national child benefit, one of the most effective programs we have seen to date for assisting poor families to get on their feet. In addition, specific measures tailored to the needs of low income families caring for children with severe disabilities are being developed. Strides are also being made with respect to improving the educational needs and outcomes of first nations children.

It is true that poverty and the lack of social support have kept some members of our Canadian community from maximizing their individual potential, which is not acceptable in a free and democratic society. Without a doubt, our work is aimed at eradicating the root causes of poverty by ameliorating disadvantage and improving opportunities at any early age. Experience has taught us that band-aid solutions will not work. Our energies and resources must be targeted at those measures that will be the most effective and successful in breaking down systemic barriers to participation and interrupting vicious cycles of poverty faced by some of our citizens.

It is because of the government's commitment to effective, responsive and respectful anti-poverty policies that I cannot support the bill of the hon. member. Poverty alleviation and improved protection from discrimination are fundamental matters that require a more thorough and considered response than that offered in this bill.

This piecemeal approach is reflected on three levels.

First, the inclusion of social condition as a prohibited ground of discrimination without further statutory definition or guidance could have undesired and even unforeseen consequences for the interpretation and administration of our Human Rights Act. For example, if no constraints are imposed, an undefined ground of social condition could conceivably be used to challenge our progressive system of taxation. Rather than protecting the disadvantaged, the CHRA could be used as an instrument of profit by the most advantaged in our society. This is an unacceptable risk.

This is why the Department of Justice is currently conducting a comprehensive review of the CHRA. We are considering structural and procedural improvements for examining the possibility of expanding the scope of protections to include new prohibited grounds of discrimination, one of which is social condition.

We are learning from the experiences of our provincial and territorial counterparts, such as Quebec and the Northwest Territories, that have included social condition and we are determining whether those experiences are appropriately transferrable to the federal arena. Protection from discrimination on the basis of social condition is an important and complex issue that merits dedicated analysis rather than hasty inclusion or a piecemeal approach.

Second, other portions of Bill C-228 are similarly ill-advised as an effective strategy for addressing poverty. Burdening the Canadian Human Rights Commission with the task of reviewing every piece of government legislation and calculating the cost of eradicating poverty on an annual basis would, to say the least, be a substantial extension of its current mandate.

The time, effort and resources that would be required to fulfill these duties would overshadow and overwhelm the central and vital work of that commission as an anti-discrimination agency which assists victims of discrimination with their claims for equality. Not only would these amendments have serious financial and administrative cost consequences for the commission, but the duties to advise Parliament on the costs of poverty and to assess all potential legislation would be decidedly outside the expertise and perhaps outside its statutory competence.

Third, there is also the question of how the bill restricts the operation of Parliament and the discretion of ministers. The government of the nation requires flexibility and autonomy in setting its own agenda to respond to the needs and demands of Canadians promptly and effectively.

This system has worked well. Canadians have let us know what poverty concerns they have and the government has responded in the House through legislation and administrative programs. The government has already moved far beyond with concrete action plans and systemic solutions to break the vicious poverty cycle.

There is no question that the government supports the effective alleviation of poverty. This is clearly demonstrated by our social programs and our social and economic support systems. A comprehensive review of the CHRA is already underway, as I mentioned, which is considering the issue of social condition in its full context. What cannot be supported, however, are cumbersome tasks for our human rights agencies, the inefficient and inappropriate use of administrative resources and the restriction of House operations.

For these reasons, the government cannot support Bill C-228.

[Criminal Code, February 3rd, 2003]

Mr. Speaker, within the confines of the context of what we are proposing, we have always taken the position that the judges within our courts have to look at all the facts in each individual situation and determine whether there is risk to society if the person is put out on bail or given interim release of some nature, and that is important. We have valued that within our system.

I will specifically refer to clause 24 of the bill which states that we can draw the attention of the judiciary to the issue that we believe is very important by saying “this is an aggravating factor that we want you to take into consideration when sentencing”. I believe that is the way in which we as legislators are able to draw to the attention of those who sit on the benches throughout the country the way in which we want them to proceed with matters which we believe are important and what we believe they have to put their minds to.

I believe the bill would succeed in that regard. It would bring the attention of the court to it. It states that it would be considered as an aggravating factor when the court looks at sentencing. I believe that is the way in which the House operates to assist the judiciary in the country to go forward and properly deal with those who come before it with respect to these offences.

[Criminal Code, February 3rd, 2003]

Mr. Speaker, I do not think there is any doubt that we are always concerned about issues relating to the protection of our children and that we do and have as a government taken a very strong stand on the issue.

I just recited for the members assembled in the Chamber the number of provisions that we have that limit, in extraordinary ways, those who would attempt to commit an active dissemination or making of child pornography. When we look at our history of legislation I think all of us can sit back and reflect that simply making laws does not ultimately result in the protection that all of us would like to see.

We within the Chamber are limited to the obligation and opportunity to go forward to make the best laws and provide the best tools that we can for those who have to enforce the laws of the land.

I believe that in providing a more limited defence, as we are suggesting in the bill, through public good, it will be much more limiting than the previous defence. I think that is advantageous to those who would try to enforce the law.

As the Supreme Court clearly stated, we must be prepared to allow for some of those areas as defences, otherwise it would be declared unconstitutional. The question is, how do we provide for defences, for example, as I set out, that clearly limit it to areas where we believe it is extremely important to have the freedom, in particular with respect to the prosecution of those offences? We need to have that available to protect those who would investigate and prosecute.

I believe we are making great strides in this area. We have a comprehensive program. I believe this will add to it. With respect to the Sharpe case, we must remember that Mr. Sharpe was convicted using our existing laws. It was within our purview to provide the tools for the law to be there and it was enforced. He did receive a penalty under the law as provided.

If we are going to go forward and deal with the matter I believe that what we have brought before the House is an excellent basis on which to do so.

[Criminal Code, February 3rd, 2003]

Mr. Speaker, I am pleased to rise today to join in the debate on Bill C-20, an act to amend the Criminal Code, respecting the protection of children and other vulnerable persons, and the Canada Evidence Act.

Although Bill C-20 responds to a number of important issues, its overall objective is to provide increased protection to children against sexual exploitation and abuse in all forms. In particular, it addresses child pornography which, unfortunately, is an issue that is all too familiar to all hon. members.

I have found the second reading debate on Bill C-20 to be very interesting from a number of perspectives.

First, the debate serves to highlight the importance of careful scrutiny of measures that we have taken and propose to take to better protect children against sexual exploitation. The government welcomes this debate for it is through such discussions that we, as parliamentarians, can broaden our knowledge and our understanding of the issue at hand and thereby ensure the right response to what has already been said are very complex issues.

Second, the debate on Bill C-20 demonstrates that we do not all share a common understanding of what our criminal laws currently prohibit, that is vis-à-vis, child pornography or what Bill C-20 proposes by way of amendments. I believe that to fully understand and debate what Bill C-20 proposes, it is essential that we first fully understand our existing child pornography prohibitions.

Third, I note that while it may appear that there is a divergence of opinion among hon. members about what is the best way to protect children against sexual exploitation through child pornography, I believe that we all share a common, overarching concern and objective, namely, to better protect our children against this form of sexual exploitation. Let me reiterate the comments of the Minister of Justice in that regard. This government's commitment to the protection of children is clear and strong and it is reflected in Bill C-20's proposed amendments.

As I have already said, before considering the proposed child pornography amendments in Bill C-20, it is important to fully understand and appreciate what our existing criminal law already prohibits.

Since 1993, the Criminal Code has prohibited, first, making, printing, publishing or possessing for the purpose of publication any child pornography. This carries a maximum penalty of 10 years imprisonment on indictment.

Second, it prohibits the importing, distributing, selling or possessing for the purpose of distribution or sale, of any child pornography. This carries a penalty of 10 years imprisonment on indictment.

Third, it prohibits the possession of child pornography. This carries a maximum penalty of five years imprisonment on indictment. I note that the Supreme Court of Canada upheld the constitutionality of the possession offence with a very narrow exception. It does not apply to self-authored works of the imagination that are made and kept solely for one's personal use. However the child pornography offences do apply to self-authored works of imagination that are shared or otherwise disseminated.

Since July 23, 2002, and as a result of Bill C-15A, the Criminal Code also prohibits the transmitting, making available, exporting or possession for the purpose of transmitting, making available or exporting, any child pornography. This carries a maximum penalty of 10 years imprisonment on indictment. It also prohibits accessing child pornography. This new accessing offence carries a maximum penalty of five years imprisonment on indictment.

Bill C-15A amendments also allow the courts to order the deletion of child pornography posted on Canadian computer systems such as websites. These new measures directly address the misuse of new technologies to commit child pornography offences. On a related note I would add that Bill C-15A also created a new offence of luring. That is using a computer system in such a way, such as through the Internet, to communicate with a child for the purpose of committing a sexual offence against that child.

These are existing child pornography offences and they are very comprehensive. They recognize and address the many different ways that child pornography can be made and disseminated. When we look at them altogether, they show why Canada's child pornography provisions are among the toughest in the world, and they are.

Bill C-20 goes further yet and builds upon this comprehensive set of prohibitions against child pornography in two very key respects.

First, it broadens the definition of written child pornography. Currently the existing definition of written material only applies to material that advocates or counsels sexual activity with a young person under the age of 18 years. That would be an offence under the Criminal Code. Bill C-20 proposes to also include written material that describes prohibited sexual activity with a child where the written description of the activity is the dominant characteristic of the material and the written description is done for a sexual purpose.

This proposed amendment recognizes the risk of harm that such material can pose to society by portraying children as a class of objects for sexual exploitation. It also directly responds to the concerns flowing from the most recent Sharpe decision.

Bill C-20 also proposes to amend the existing defences of child pornography. Currently the Criminal Code provides a defence for material that has artistic merit or an educational, scientific or medical purpose. It also makes the public good defence available for all child pornography offences.

Bill C-20 proposes to merge these two defences into one defence of public good. As a result of the proposed amendment, a court would be required to consider whether the act or material in question serves the public good. If it does serve the public good, then the court must also consider whether the act or material goes beyond what serves the public good. If it exceeds what serves the public good, then there is no defence available. In other words, does the risk of harm posed by an act or material in question outweigh any potential benefit to society? That is the question we have to ask.

The question has been asked, when or how could anything related to child pornography ever serve the public good. I can understand this question, particularly from those who may be less familiar with the intricacies of criminal law, but this is not a new defence or indeed one without any existing legal interpretation or understanding.

In January 2001 the decision of the Supreme Court of Canada in the Sharpe child pornography case, the court considered the meaning of public good. The court noted that the term “public good” had been interpreted as including matters that were necessary or advantageous to the administration of justice, the pursuit of science, literature, art or other objects of general interest.

An example given is that of possession of child pornographic material by police or crown prosecutors for the purposes associated with investigation and prosecution. I hope all hon. members can see the public good to be served by enabling our police and prosecutors to possess child pornography for these investigative and prosecutorial purposes. The law must take these realities into account and Bill C-20 does exactly that.

The proposed amendment to have only one defence of public good should not be misconstrued as saying that child pornography is good. Of course it is not and the government has taken very real and concrete measures that strongly condemn child pornography.

The existence of child pornography defences was a key element in the supreme court's decision to uphold the constitutionality of the overall child pornographic scheme. Bill C-20's proposed amendment to allow a very limited defence in limited circumstances that requires the balancing of the risk of harm against the risk of good to be served by that act or material in question draws from the supreme court's wisdom in this regard.

In other words, the government has taken very seriously its responsibility to protect children against sexual exploitation, as well as its responsibility to uphold the charter. It is not a question of doing one or the other. Bill C-20 does both. It protects the right of child victims to equal protection and benefit under the law and the charter rights and freedoms of the accused.

I would also like to acknowledge concerns noted by hon. members regarding the sentencing results in some child pornography cases. In this regard concerns are twofold; namely, that the sentences being handed down are generally too lenient and that they are inappropriate where they consist of a conditional sentence.

To this I would like to draw the attention of hon. members to a part of Bill C-20 that has received little attention and that is clause 24. Clause 24 proposes to make the commission of any offence against a child, and not just against one's own child, an aggravating factor for sentencing purposes. First, I believe that this part of Bill C-20 speaks directly to the concern noted by some members regarding how seriously courts should view child pornography. Second, on the question of the use of conditional sentences in child pornography cases, I would note that the Standing Committee on Justice and Human Rights is currently in the midst of a review of the use of conditional sentences since their implementation some six years ago. I certainly look forward to seeing the results of that review on this issue.

Bill C-20 proposes significant reforms that will better protect children against sexual exploitation through child pornography. I call on all hon. members to support this important bill.

[Criminal Code, February 3rd, 2003]

Mr. Speaker, I rise on a point of order. The insinuation that I am laughing at something that a member is speaking about in the House is totally uncalled for and totally inaccurate. I resent that remark, because it does not reflect my position on the bill.

[Carrie's Guardian Angel Law, February 3rd, 2003]

Mr. Speaker, I am pleased to speak today to Bill C-214, an act to amend the Criminal Code, being introduced by the hon. member for Calgary Northeast.

The private member's bill before us today seeks to create a new section, section 273.01, in the Criminal Code that would affect sentencing of offenders convicted of section 271, sexual assault; section 272, sexual assault with a weapon, threats to a third party or causing bodily harm; or section 273, aggravated sexual assault.

The amendments would come into play where the victim is a child under the age of 16 and where the offender comes within one of six prescribed circumstances, any of which could result in designation of an offender as a dangerous child sexual predator. If designated under the proposed scheme, the offender would receive an automatic life sentence.

The three existing offences mentioned in the proposed bill currently carry maximum penalties ranging from 10 years to life imprisonment, the most severe penalty known to our law. As well, if firearms are involved, there is a provision for a four year mandatory minimum penalty.

I suspect most Canadians would be surprised that these offences already attract such severe maximum penalties. In fact, surveys conducted by the Canadian Sentencing Commission in the mid-1980s showed that the public had very little knowledge of either maximum or minimum penalties generally and that many were taken aback by the severity of the existing maximum.

The Criminal Code provides that “the fundamental purpose of sentencing is to contribute... to respect for the law and maintenance of a just, peaceful and safe society”. The objectives of sentencing set out in the Criminal Code include denouncing unlawful conduct, deterring the offender and others from committing offences and promoting a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.

The government shares the concerns of Canadians. Courts across the country have been imposing stiff sentences for this type of crime, which address sentencing objectives, such as denunciation and deterrence, and highlight the importance of individuals being able to feel safe and secure.

In addition to providing a maximum penalty of life imprisonment, which the Criminal Code already does for specified sexual offences, Bill C-214 would provide for full parole ineligibility be set at 20 years.

In Canada, we have tried to avoid reliance on mandatory minimum sentences. Our judicial system has always respected the discretion of judges to fashion a sentence that is proportionate to the gravity of the offence and the conduct of the offender. A judge having the benefit of all the facts and evidence regarding the circumstances of the offence and the offender is well placed to determine the appropriate sentence in an individual case.

The September 30, 2002 Speech from the Throne confirmed that protection of children is a key priority of the Government of Canada. Numerous legislative reforms and initiatives have since been introduced to strengthen the criminal law's protection of children against sexual exploitation. For example, Bill C-23, the sex offender information registry act, was tabled in December and would establish a national sex offender registry requiring sexual predators to report to police agencies on an annual basis and which would allow rapid police investigations through an address searchable database. Failure to register under the proposal would be a Criminal Code offence with serious penal consequences.

We also introduced Bill C-20, a comprehensive set of measures to protect children and other vulnerable persons from harm, which includes amendments to the Criminal Code providing for substantial increases in penalties for abuse and neglect, and requirements for more sensitive treatment of children who participate in criminal proceedings.

Other notable features of Bill C-20 include the following: tougher child pornography provisions; a new category of sexual exploitation, increasing the level of protection for young persons between the ages of 14 and 18; tougher sentencing provisions for offences where children are the victims; abuse of a child in the commission of any Criminal Code offence is now required to be considered by a judges as an aggravating factor in sentencing; distributing material knowing that it was produced through a criminal act of voyeurism; and also, the creation of the new offence of voyeurism, primarily targeting Internet activity, capturing those who observe or record others without their knowledge for sexual purposes.

Prior to the current session of Parliament, we introduced a number of other reforms that were also designed to protect children. For example, Bill C-15A, which received royal assent on June 4, 2002, amended the Criminal Code by adding offences and other measures that provide additional protection to children from sexual exploitation, including sexual exploitation involving the use of the Internet. That new legislation came into force on July 23, 2002, and resulted in the following changes: it is now illegal to use the Internet to communicate with a child for sexual purposes, as well as to transmit child pornography; courts can now order the deletion of child pornography that is posted on Canadian computer systems as well as the seizure of materials or equipment used to commit a related offence; and the procedure has been simplified to prosecute Canadians who sexually exploit children in other countries.

In 1997 the dangerous offender provisions of the Criminal Code were amended to toughen up the provisions against the most violent sexual predators. Individuals who are declared dangerous offenders by the courts are now subject to a mandatory indeterminate sentence. The 1997 amendments also included a provision that permits judges to impose a long term offender designation, resulting in up to 10 years of community supervision after serving a penitentiary term.

Police and the courts can also impose strict conditions on the activities of known sex offenders through the use of probation orders, that is, section 810, recognizances, prohibition orders and peace bonds.

Another significant impact in this area was the amendment of the Criminal Records Act to make the criminal records of pardoned sex offenders available for background checks, which greatly reduces the possibility that sexual predators would be employed or allowed as volunteers in positions of trust over vulnerable children.

In 1993, the Criminal Code was amended to create a new prohibition order, lasting up to a lifetime, to ban convicted child sex offenders from frequenting day care centres, school grounds, playgrounds, public parks or bathing areas where children are likely to be found. The order also prohibits convicted child sex offenders from seeking or maintaining paid or volunteer positions of trust or authority over children. Another provision was created to allow a person to obtain a peace bond, a protective order lasting up to one year, if he or she fears that another person will commit a sexual offence against a child.

All of these efforts demonstrate the federal government's continued commitment to protecting children. As such, there is no need to create a minimum penalty for this type of offence given the high maximum penalties already found in the code and sentencing patterns for this offence.

While I recognize the concerns of the hon. member for Calgary Northeast with respect to this type of offence, I do believe that the existing penalty of life imprisonment currently demonstrates our commitment to providing protection for children.

Furthermore, the reforms in Bill C-20, which are currently before the House and being debated, will result in changes to our laws that will be much more effective in ensuring the protection of our children.

[Justice, December 13th, 2002]

Mr. Speaker, the sex offender registry was set up in consultation with the provinces and territories. It was unanimously agreed that they did not want retroactivity. However, there has been a movement to deal with the province of Ontario because in fact it does have an existing sex offender registry. In that case we will work with the province to incorporate it within the existing registry as proposed.

[Age of Consent, December 13th, 2002]

Mr. Speaker, as we have said in the House, we have canvassed the provinces, we have canvassed the territories, we have consulted, we have reviewed, and we have brought before the House a piece of legislation that we believe is important.

We believe this piece of legislation does attack those who are preying upon our children.

When we go through the process within the House, of course we will listen to others. We will listen to what the opposition has in debate and we will listen at committee, but in fact we believe we have brought forward a solid piece of legislation that deals with the issue, and that is protection of our children.

[Age of Consent, December 13th, 2002]

Mr. Speaker, we have reviewed this matter fully and we have met with the provinces and territories. We have debated the issue to the end that we believed was acceptable.

The acceptable end is that we are going to attack those who would prey upon our children and other vulnerable people. That is the legislation we brought forward. We are going to protect our children and vulnerable people. Children are a priority for this government.