JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, October 23, 2003

¿

0910

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.))

Mrs. Edith Cody-Rice (Senior Legal Counsel, Canadian Broadcasting Corporation)

¿

0915

The Vice-Chair (Mr. John McKay)

Mrs. Edith Cody-Rice

The Vice-Chair (Mr. John McKay)

Mrs. Edith Cody-Rice

The Vice-Chair (Mr. John McKay)

Ms. Lynne Cohen (Secretary, Canadian Justice Review Board)

¿

0920

¿

0925

The Vice-Chair (Mr. John McKay)

Ms. Judy Williams (Government Affairs Officer, The Federation of Canadian Naturists)

¿

0930

The Vice-Chair (Mr. John McKay)

Ms. Pamela Hurley (Director, Child Witness Project, Centre for Children and Families in the Justice System)

¿

0935

¿

0940

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews (Provencher, Canadian Alliance)

¿

0945

Ms. Pamela Hurley

Mr. Vic Toews

Ms. Pamela Hurley

Mr. Vic Toews

Ms. Pamela Hurley

Mr. Vic Toews

Ms. Lynne Cohen

Mr. Vic Toews

Ms. Lynne Cohen

Mr. Dave Nichol (Administrative Officer, Canadian Justice Review Board)

Mr. Vic Toews

Ms. Judy Williams

¿

0950

The Vice-Chair (Mr. John McKay)

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

Ms. Edith Cody-Rice

Mr. Richard Marceau

Mr. Stéphane Deschênes (President, Federation of Canadian Naturists)

¿

0955

Mr. Richard Marceau

Mr. Stéphane Deschênes

Mr. Richard Marceau

Mr. Stéphane Deschênes

Mr. Richard Marceau

Mr. Stéphane Deschênes

Mr. Richard Marceau

The Vice-Chair (Mr. John McKay)

Mr. Paul Harold Macklin (Northumberland, Lib.)

Ms. Judy Williams

À

1000

Mr. Stéphane Deschênes

Mr. Paul Harold Macklin

Ms. Judy Williams

Mr. Stéphane Deschênes

Mr. Paul Harold Macklin

Ms. Judy Williams

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews

À

1005

Ms. Judy Williams

Mr. Vic Toews

Mr. Stéphane Deschênes

Mr. Vic Toews

Mrs. Edith Cody-Rice

Mr. John McKay

Mrs. Edith Cody-Rice

The Vice-Chair (Mr. John McKay)

Ms. Sarmite Bulte (Parkdale—High Park, Lib.)

À

1010

Mrs. Edith Cody-Rice

Ms. Sarmite Bulte

Mrs. Edith Cody-Rice

Ms. Sarmite Bulte

The Vice-Chair (Mr. John McKay)

---

CANADA

Standing Committee on Justice and Human Rights

---

NUMBER 073

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, October 23, 2003

[Recorded by Electronic Apparatus]

¿  (0910)  

[English]

    The Vice-Chair (Mr. John McKay (Scarborough East, Lib.)): Ladies and gentlemen, I call this meeting to order.

    We will have some problems today covering our six hours' worth of hearings. Apparently at 10 o'clock there's a vote, so that means we will have to decamp, go to vote, and then come back.

    For this particular panel, I anticipate we will get through the representations of all of the groups--we have four groups at 10 minutes each--and then maybe start the questioning. Then we'll have to interrupt the questioning and come back.

    I assume you've all been briefed on your presentations. We'll allow ten minutes for each presentation, and at the end of all the presentations we'll start the questioning.

    So unless there's some other order, we'll just go in the order that's been given to us in the agenda, with the Canadian Broadcasting Corporation first. I call on Edith Cody-Rice to begin.

    Mrs. Edith Cody-Rice (Senior Legal Counsel, Canadian Broadcasting Corporation): Good morning Mr. Chair, honourable members.

[Translation]

    I will be speaking in English, but I would be happy to answer your questions in French. I have given the clerk a French version of my presentation.

[English]

    I've given you my brief and the presentation I'll make this morning in both languages. They are at the back, and I think there are 25 copies in each language.

    We at the CBC have particular concerns with respect to journalists. We also have concerns about the defence of artistic merit, but we want to focus our concerns on journalism, given that a number of other groups are focusing on the concerns they have about artistic merit. We want to mention, though, that we do support the concerns of the artistic organizations that have expressed concern about the removal of the defence of artistic merit.

    I am going to go right to the question that concerns us about journalism. In my presentation, I've done it in this form because it's easier for you to read. I want you to take a look--and I'm sure you have--at the proposed section 162 of the Criminal Code, the offence of voyeurism.

    What are the elements of the offence? They are surreptitious observations--recording is included but not required--if the person is in a place where the person could be expected to be nude, to expose genital organs, or be engaged in sexual activity. Examples might be a bedroom, a doctor's office, public toilets, or a change room.

    It also includes surreptitious observation of a person who is nude, exposing genital organs, or engaged in sexual activity done for a purpose of observing or recording the state or activity. It is also an offence to observe surreptitiously a person for a sexual purpose. But in that case it doesn't matter whether the person is in a public or private place.

    So what are the concerns of the Canadian Broadcasting Corporation? Our concerns include the hampering of journalists in their legitimate functions, and hampering the media from publication in the public interest. The CBC understands the concern of the government to protect individuals from exploitation, and the CBC itself has policies to address these concerns. But in certain circumstances, surreptitious observation is justified in the public interest. In the brief we have submitted to you, we've set out our policies on clandestine observations, etc.

    What are some examples of investigations we might undertake? These are relatively rare, and would be rather intensive investigations, but you might be investigating a prostitution ring, for example, or child pornography.

    It is to be noted that mere observation during an investigation is in itself an offence. For example, if someone, without recording anything, observed someone in these particular situations and then reported on them, it would be an offence to publish what they had reported. So mere observation in itself is an offence.

    I just want to bring two elements to this surreptitious observation. I had a discussion with a lawyer from the Department of Justice, and it became evident to me that we disagreed on what observed meant. There appeared to be a difference between my thinking that observed meant just watching someone, and this person thinking that observed meant something more than that.

    I brought along the Oxford English Dictionary this morning just to tell you what observed means. Here is the meaning of observe in the Oxford English Dictionary: to perceive, to mark, to watch, to take notice of, to become conscious of. That's quite broad, in my view.

    What is surreptitious? Surreptitious is underhanded, kept secret, done by stealth, or clandestine.

    One of the questions I have is that in most cases CBC reporters are required to identify themselves as reporters, but there may be a reason why they wouldn't identify themselves as reporters. If they went into some situation and had not identified themselves as reporters, would their observations be surreptitious because they weren't misrepresenting who they were? That's just a question; it's just an indication that some of the elements seem to be rather broad.

    So there is a defence of public good, which we recognize, and in our view it is not adequate to protect journalists and media organizations. The defence of public good has been interpreted as:

necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature or art, or other objects of general interest.

    You will see that is from the Supreme Court of Canada Sharpe case.

    Freedom of speech and freedom of the press are not mentioned in the current legal interpretations of public good. In addition, what is necessary or advantageous is a value judgment that may vary with the individual making the judgment.

    Also of great concern to us is the fact that proposed paragraph 162(7)(b) states that motives for conduct are irrelevant. This could mean that a journalist or news organization carrying on a legitimate investigation could be convicted of an offence, as the legitimacy of their activity would not be taken into account.

    The ease with which the offence may be committed, and the uncertainty that would thus arise with respect to legitimate journalistic activities will cause a chill on reporting, and may make this legislation subject to a challenge pursuant to the Canadian Charter of Rights and Freedoms, sections 1 and 2(b). Section 1 states:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

    Section 2(b) states:

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication;

    The proposed legislation limits freedom of the press. The reasonability of limitations is subject to a proportionality test developed in the Supreme Court of Canada decision in R. v. Oakes in 1986. The test is that the objective of the legislation must be of sufficient importance to warrant overriding a constitutionally protected right or freedom. The measures adopted must be rationally connected to the objective. The means should impair the freedom as little as possible, and even if an objective is of sufficient importance, the severity of the deleterious effects of a measure must be justified by the purposes it is intended to serve.

    We feel there is a good possibility that where there are charter challenges, this legislation will not meet that test.

    The CBC has proposed an amendment to the legislation. We propose that a specific public interest in journalistic defence should be included in the legislation. The CBC recommends including the following defence--and I must say this is a tightened-up version of what I put in the brief.

No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good, are in the public interest or are committed in the process of journalistic investigation for the purpose of preparing, publishing or distributing public news.

A definition of public news should be included which will offer the defence to: newspapers or journals including Internet newspapers and journals which do not publish pornography; and broadcasters licensed by the CRTC, including their websites.

    I took the initial amendment suggestion from the Privacy Act of the Province of Saskatchewan. They have wording very similar to that, and the exact wording is in the brief I have presented to you. Then I realized that if you said “public news” everybody could go on the Internet, and they might all say they were on the Internet with public news.

    So I tightened this up to limit it to people who are licensed by the CRTC, including their website--that means there's some element of responsibility--and newspapers and journals. For example, The Globe and Mail has a website, The National Post has a website, and the Ottawa Citizen has a website, so it would not be open to every person who just went on the Internet to publish material.

    Thank you.

¿  (0915)  

    The Vice-Chair (Mr. John McKay): Thank you.

    Do you have that amended wording available?

    Mrs. Edith Cody-Rice: I have the amended wording in the brief. Except I must say I did just notice a typo. It should say “serve the public good” rather than “service the public good”.

    The Vice-Chair (Mr. John McKay): I was only looking at this brief.

    Mrs. Edith Cody-Rice: This is a tightened-up version. If I may say so, I put both in, but I think this is a little bit better.

    The Vice-Chair (Mr. John McKay): Okay. Thank you.

    Next is the Canadian Justice Review Board, Lynne Cohen.

    Ms. Lynne Cohen (Secretary, Canadian Justice Review Board): Mr. Chairman, honourable members of the Standing Committee on Justice and Human Rights, ladies and gentlemen. On behalf of the Canadian Justice Review Board; its chairman, law professor Robert Martin; and the directors of the board, I thank you for inviting us to speak this morning.

    I'm just going to read it. I hope that's okay. It's my first time appearing in front of a committee.

    Let me first say that on the whole, Bill C-20 appears to be a commendable effort to provide a greater measure of protection in court proceedings for children and other vulnerable persons. The Canadian Justice Review Board would like to be on record as supporting this effort. The comments I'm about to make are intended to further enhance the principles of the bill.

    We have some concerns with the proposed legislation, in review of proposed section 486.2 on page 13. We find three proposed subsections that begin by employing the words “despite section 650” of the Criminal Code of Canada. There seems to be an intent to have Bill C-20 override an important section of the Criminal Code.

    The view of the Canadian Justice Review Board is that section 650 of the Criminal Code, and especially subsection 650(3), establish and protect the longstanding Canadian legal tradition of fair and open trials. Section 650 already provides ample and sufficient latitude for judges, when determining who may ask questions and the type of questions that can be posed in cross-examination. I would go so far as to say that a judge may take it upon himself or herself to ask any questions deemed appropriate and necessary to determine the truth of any allegation.

    Court proceedings are seldom pleasant events, but this is no reason to include in Bill C-20 any provisions that would apply “despite section 650” of the code. The Criminal Code protects us all, in terms of the right of every Canadian to make full answer to any allegation. This should continue to be the case.

    We ask that the committee re-examine proposed subsection 486.2(5) of Bill C-20, because there we see that Bill C-20 also refers to acts of terrorism, and offences under the Official Secrets Act. We submit that the committee ought to keep the focus of Bill C-20 squarely on children and other vulnerable persons, so there is no doubt or question about the transparency of the agenda. In particular, we suggest that in Canadian law the entitlement of an accused to answer fully in person or through legal council is paramount and should not be tampered with. It need not be tampered with in order to accomplish the stated goals of Bill C-20.

    When one tampers with section 650 of the Criminal Code, either in the context of Bill C-20 or any other bill, no one can know how the courts may later interpret the initiative, or how it may relate to the Charter of Rights and Freedoms.

    We submit that Bill C-20 is equally effective when the proposed sections replacing section 486 are deleted. Furthermore, the removal of these proposed sections from the bill will enhance it by not bringing into question the rights of the accused to raise a proper defence.

    We also ask the committee to re-examine proposed subsection 215(3) and proposed section 218, which speak to the penalties. When we compare the penalty applicable on conviction at trial with the far lesser penalty applicable in exchange for a confession, we see a red flag. We ask, “Does Bill C-20 make the prospect of a light sentence far too attractive? Is the truly guilty person, by virtue of a guilty plea, back on the streets far too early?”

    Consider also the situation of a wrongly accused person. How many of us are able to afford half a million dollars to hire a top-notch lawyer? We know that the costs of litigation are astronomical. We know that an exonerated defendant has no hope of recovering all the costs from the crown without a further civil action. In essence, a false allegation and trial can mean financial ruin.

    Allegations of wrongdoing sometimes arise for improper reasons. Given the choice between financial ruin of one's family versus a maximum 18-month sentence, which is the more attractive alternative? We don't know, but we do know of ongoing judicial inquiries into wrongful convictions. We believe that no one wants to see economic considerations become a primary tool for legally enticing a confession from an innocent person.

    In summary, perhaps the architects of this bill have yet to find the proper balance in these areas. If I may return to my opening remarks, Bill C-20 is a very worthwhile effort to protect children and other vulnerable persons, but we must in all circumstances continue to presume that an accused is innocent until proven guilty. We must not, in Bill C-20, diminish the rights of the accused to a full defence and an open trial. To do so opens the door to a very slippery slope. Therefore, we believe that words like “despite section 650” of the Criminal Code are inappropriate.

¿  (0920)  

    I earlier pointed out that section 650 of the Criminal Code gives judges wide latitude and discretionary powers. We submit that Bill C-20 needs a transparent agenda to protect children and other vulnerable persons. In the process of attempting to accomplish this goal, Parliament should not create a new class of person who becomes known as the “vulnerable accused”. Section 650 ought not to be regarded as a section to be circumvented, nor should it be treated or viewed as an inconvenience. By the same token, rather than being dependent on whether a conviction is obtained as a result of an open trial or by confession, the penalties for the offence, as described in Bill C-20, should be more consistent and relate to the seriousness of the crime.

    On behalf of the Canadian Justice Review Board, I thank the committee for your thoughtful attention. I trust that you will give due consideration to our submissions.

¿  (0925)  

    The Vice-Chair (Mr. John McKay): Thank you very much.

    The next submission is by the Federation of Canadian Naturists.

    Ms. Judy Williams (Government Affairs Officer, The Federation of Canadian Naturists): Thank you very much.

    I would like to point out that we have a French version of our introductory remarks. During the questioning, Stéphane Deschênes, who is the president of the FCN, will be able to field questions in French.

    Thank you for the opportunity to appear before you today. My name is Judy Williams, and I am honoured to introduce federation president, Mr. Stéphane Deschênes, who is accompanying me this morning.

    The federation, the naturists society, and its lobby arm thank you for your intent to protect our young people and other vulnerable persons, through Bill C-20. We acknowledge the hours of research and writing necessary before the bill could receive second reading. However, as stated in our August 22 brief, we have very serious concerns about the bill, which include those of the Canadian Conference of Artists, Canada's national advocacy group for 200,000 artists, regarding the proposed replacement of the artistic merit defence. This defence was clarified by Chief Justice McLachlin in the Supreme Court v. Sharpe. We believe aspects of the bill have the potential to chill artistic freedoms, and to unintentionally penalize naturists as well as artists.

    Proposed section 162, intended to replace section 163.1, should not be rushed, and further study must factor in naturists and top-free freedoms, which have been inadvertently ignored. Thus, we recommend retaining section 163.1, including subsection 163.1(6), the artistic merit paragraph, and we recommend that further study is needed before Bill C-20 receives third reading.

    Today we are distributing the FCN brochure and a postcard from Wreck Beach. Because this was not in French, we will have it available afterwards for you. We also have a copy of the world guide to beaches and resorts, which is the definitive bible for skinny dippers; and a history of naturism in Canada. We will be leaving these with you.

    The Federation of Canadian Naturists and the FQN represent over 6.1 million Canadians who have indicated they would like to participate in social nudity, or skinny dipping. Together with our French counterpart, the FQN, we are Canada's national naturist nudist organization, affiliated with the International Naturist Federation. This past summer we sponsored the Going Natural across Canada Tour by Malcolm Scott, our FCN president, on behalf of both English- and French-speaking Canadians.

    The INF has over 500,000 members in 32 different countries. We are also joined in our concerns by TNS and NAC, which represent many thousands of naturists in North America.

    Essentially, naturism is a non-sexual, non-exploitive and communal social practice and belief in the sanctity and basic dignity of the nude human body. Naturists believe in raising their children to accept and celebrate their bodies, rather to view them as shameful. The INF defines naturism as “a way of life in harmony with nature, characterized by the practice of communal nudity with the intention of encouraging respect for oneself, for others, and for the environment.

    We have some general observations on proposed section 162. We are concerned that it equates our naturist nudist way of living with child pornography and voyeurism, and could therefore penalize naturists who practice social nudity in their homes, and at naturist resorts and beaches with their families. Naturist publications, such as Canada's naturist magazine N , which we have for you today, would be threatened under such legislation.

    While we recognize the over-breadth of section 163.1, we also believe that when child pornography involves real harm to real children in its creation, courts seem to agree that possession of the resulting product cannot be shielded behind the free-speech right of the charter. If it can be determined that photos of naturist children depict them engaged in activities normally engaged in by children at play or in sports around the world, they should not be labelled obscene or pornographic. In the case of Alessandra's Smile in the United States, it was determined that the magazines that had been seized were not obscene because they showed children around the world engaged in activities typical of children.

    On our specific observations on proposed section 162, the phrase “surreptitiously, observes...or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy” can equally include clothed or unclothed persons, regardless of setting. I believe CBC referred to washrooms or bedrooms, and we'd do the same here.

¿  (0930)  

    If so, this is far over-broad, will catch too many innocent persons, and should be eliminated. How would photographers or observers prove they were unsurreptitious? Would it criminalize photos of naturist children at play or engaged in activities typical of children around the world at a naturist resort of beach? Clearly, naturists and their children must not be mischaracterized and prohibited from our lifestyle and recreational choices, and caught in the over-breadth of proposed subsection 162(1).

    Proposed paragraphs 162(1)(a) and 162(1)(c) do not require a person to be nude to be penalized. Also, by including breasts in both over-broad paragraphs, through implication the bill's authors appear--I say appear only--to not have considered recent Canadian jurisprudence, by suggesting that breasts be considered as part of a state of nudity, and that they be associated with sexual organs and sexual activity. This is R v. Jacob, December 1996.

    Finally, proposed paragraph 162(1)(b) should not apply to naturist settings, or when observation or recording is done for a naturist purpose. Rather, authors should recognize that setting and purpose are characterized by non-sexualized nudity, which means that the intent does not involve an increased sexual component of behaviour.

    In proposed subsection 162(4), which deals with distribution, circulation, and publishing of such recordings, it would definitely mischaracterize naturist publications, such as Going Natural or N, and they could not possibly verify the unsurreptitiousness of all photos. It would be difficult to prove a photographer or observer was not surreptitious. According to Going Natural editor, Paul Rapoport, “When it comes to publications such Going Natural we cannot possibly verify unsurreptiousness of all the photos.” The onus, in other words, would fall on the editor to prove he or she did not know the photos or visual representation were gathered surreptitiously.

    We feel that subsections 163.1(6) and 163.1(7), the artistic merit defence, should not be replaced by the far more vague and subjective argument of the undefined “public good”. With proof of intent for prurient use and motives of the accused being irrelevant, it is too vague to say that exceptions can be made for the public good. Where would the role of nude models for live drawing, painting, and sculpting classes fit? Would such models be subject to penalties, along with the instructors and institutions who hired them?

    What precisely defines “the public good” is unclear. It is subject to interpretation and therefore to abuse by the police and crown, who are not obligated to hear all sides before making their decisions. In the mid-1970s, for example, a prosecution occurred with the book, Show Me!: A Picture Book of Sex for Parents and Children , and Last Tango in Paris was also dinged. Another example, cited in appendix A of the CCA witness brief, involved an Alberta police department seizing material belonging to a feminist organization, even though the material was part of an anti-pornography campaign.

    To eliminate the artistic merit defence would be to stifle artistic expression and encourage blind uniformity or consensus art, through fear of being penalized, such as is found in totalitarian states.

    Finally, the FCN/FQN cannot support the replacement of section 163.1 by proposed section 162. We do not believe that naturism has been discriminated against, but rather that it simply has not been factored into the bill for consideration. More study must be given to this serious omission, since such an important amendment to the Canadian Criminal Code must not be rushed.

    We of the FCN/FQN stand ready to assist you in this process, if called upon. Now that Chief Justice McLachlin, in the Supreme Court v. Sharpe has clarified the artistic merit defence, it should not be obliterated by its more subjective and vague relative known as the public good.

    Thank you.

    The Vice-Chair (Mr. John McKay): Thank you.

    Next is the Centre for Children and Families in the Justice System, Pamela Hurley.

    Ms. Pamela Hurley (Director, Child Witness Project, Centre for Children and Families in the Justice System): Good morning, Mr. Chairman, and members of the committee. Thank you for allowing me to have the opportunity to speak to you today regarding the proposed legislation. I'm going to address proposed section 486, as it pertains to children under 18 with respect to testimonial aids and support persons.

    I represent the child witness project at the Centre for Children and Families in the Justice System. The project to prepare child witnesses to testify in court was established in 1987, just before Bill C-15 came into effect. Since that time we have provided services to over 500 child victims and witnesses who have testified in court, and we have also monitored Bill C-15 as it has been implemented since 1988.

    Our research endeavours have included two follow-up studies of children. Our database on information on child witnesses and their court cases has been maintained since 1987. We have developed a sense of the strengths and deficiencies of current laws and policies for children who testify in court.

    I hope to provide you with both a clinical and research perspective on the experiences of child victims and witnesses of crime who are involved in the criminal justice process. I'll also voice the insights and recommendations of the many young people whom we interviewed after the resolution of their cases.

    The first point I would like to make is that children who are witnesses in court are unique, and are different from adult witnesses. Children who are involved in the system find the whole process adversarial, alien, and often frightening. They are often stressed about the rules as witnesses, and have anticipatory fears about testifying. While waiting to testify, many children are struggling to recover from their own victimization and traumatic experiences, which they must recount in court.

    System stressors include delays, and often children have to wait from one to two years from the time a charge is laid until the court outcome. That's a long time in a young person's life. Other difficulties children express are the open court situation, and rigorous cross-examination.

    Next I will describe the children and adolescents who have been referred to our program over 15 years. They range in age from 14 years to under 18 years, with an average of 12 years. Approximately 90% of these children know the accused, either as a relative or an acquaintance. So in less than 10% of the cases, the accused is a stranger.

    We know from the children whom we have served, as well as from our other research, that the closer the relationship a child has with the accused, the more difficult it is to testify. Therefore, having a support person beside a witness is very helpful. Also, testifying outside of the courtroom using closed-circuit television will help a child.

    During the first years in the late 1980s and early 1990s, the majority of the referrals involved children who were going to court as victims and witnesses of sexual abuse. In the past 10 years, our referrals have more than quadrupled, and the cases have expanded to include children who have witnessed violence and physical abuse in their homes, and children and youth who have been assaulted by other peers.

    The impact of witnessing violence affects children in many different ways depending on their age, relationship to the accused, the severity of the violence, and the frequency and duration of the abuse. As a result, some young people experience post-traumatic stress symptoms.

    Many children are emotionally fragile and vulnerable when called to testify in court. They express anticipatory anxiety about facing the accused. Court preparation alleviates some of this anxiety, and testimonial aids such as closed-circuit television also assist in alleviating anxiety.

    Research findings indicate that children who are less stressed and anxious can provide more effective and complete evidence, and are thus effective witnesses in court.

¿  (0935)  

    Stressful situations for children in the criminal justice system are facing the accused, feeling intimidated and fearful, and testifying in an open court. Younger children are intimidated by the unfamiliar and formal surroundings of a courtroom. Teenagers are concerned about public exposure and having to testify in open court, where school tours can come in and listen to their testimony, or members of the public can come in and listen to details of their victimization or the violence they have witnessed.

    Youth of all ages can be intimidated or silenced during testimony by seeing many support people and friends of the accused in the courtroom. Facing the accused and being in an open courtroom have been expressed as the hardest tasks for young people, therefore, taking a child outside of the courtroom and allowing them to testify via closed-circuit television can help facilitate accurate testimony.

    Young people have also expressed that using a screen is not as helpful as closed-circuit television because it isolates them from support people and the courtroom, and they still feel intimidated by being in the presence of the accused. As well, under the present system, closed-circuit television isn't frequently used. In some matters it takes three days of hearings to come to court, and at that time it may be denied. We are strongly recommending that courthouses be retrofitted with this system so that all children have an opportunity to testify via this means.

    In closing, I would like to reiterate that my colleagues and I, through clinical practice and research with child witnesses, do follow-up interviews with children who have testified. We do this after three years, and then after 12 years. What do they recollect? What are their vivid memories? Most of them say that facing the accused in the courtroom is still a vivid memory for them. Many express that seeing the accused inhibited them from providing a full account. Many also express that testifying in a public courtroom in front of people who were intimidating and who silenced a complete account of their testimony was very difficult.

    We are strongly recommending that this legislation be put in place to ensure easy access to closed-circuit television for support people. The experience can be predictable. The child can be prepared in time and know that they will not have to go into a courtroom in cases where it is not necessary.

    Thank you.

¿  (0940)  

    The Vice-Chair (Mr. John McKay): Thank you.

    Now for the first seven minutes we have Mr. Toews.

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much, and thank you to the witnesses for coming here today.

    I want to make one comment on the CBC's submission here. I think it was very well done, and it has certainly given me a lot to think about on the offence of voyeurism in proposed section 162.

    It appears to me that a person surreptitiously observing, in circumstances that give rise to a reasonable expectation of privacy, is essentially an offence if the observation or recording is done for a sexual purpose. This doesn't even deal with recording people who may be nude or not; just people who have a reasonable expectation of privacy. So we're criminalizing that. Some of the provincial statutes--Quebec, especially, in its privacy act--already have some of that.

    I'm just wondering whether this proposed section isn't a little over-broad. If we're not dealing with a sexual situation, but simply the issue of reasonable expectation of privacy, is this appropriate for a criminal law? I think you've given me a lot to think about. I thank you for bringing that to my attention.

    I note here that the submission by Ms. Hurley commends the steps being taken to protect witnesses under the age of 18 who require special support persons to be with them during their testimony. Your testimony indicates how easy it is for witnesses under the age of 18 to be intimidated in the courtroom. Speaking as a former prosecutor, I understand that. I've had to deal with that in many situations, especially a number of years ago when there wasn't much sensitivity given to children. I'm very pleased to see that we have taken steps to protect children, and I think this bill is an attempt to do that further. I support the intent of the legislation to protect these vulnerable witnesses.

    What I find so astounding is that we recognize in this bill that as a society, people can be intimidated in the context of a courtroom by the legal process, yet we allow children to give sexual consent at age 14 in our country. In fact, the actual age of sexual consent here in Canada, according to some cases, is 12 years old. In a recent case in Saskatchewan, a 12-year-old child who was fed liquor was then deemed to have given sexual consent to individuals well into their 20s, who were referred to by the judge as “these boys”. Then two of these so-called “boys” were acquitted of raping a child 12 years old.

    So we see this inconsistency in government legislation. In court there is already quite a bit of protection, but out on the street, where children need the most protection, we say that in certain circumstances if the accused thought the child might have been 14, even though she was only 12, the child can give consent. The law in this particular bill doesn't in any way protect that. In fact, it says if there's some kind of trust relationship there's protection. But if a stranger picks up a 12-year-old child, thinks she is 14, and has sex with her, this new law does absolutely nothing to protect that child.

    I'm puzzled, if not horrified, about this failure to recognize this vulnerability of children as young as 12 years old, yet we're taking steps to protect children in court up to age 18.

    Does somebody want to explain and perhaps rationalize the government's position on this? I certainly can't.

¿  (0945)  

    Ms. Pamela Hurley: We have had concerns, and we expressed them in the past in the consultation papers we submitted some years ago. We believe the age of consent should be raised.

    Mr. Vic Toews: To what age?

    Ms. Pamela Hurley: It should be raised to 16, but with the caveat that young people in a peer relationship, for example, should not be prosecuted.

    Mr. Vic Toews: So you're talking about a close-in-age exemption.

    Ms. Pamela Hurley: Yes. But we recited a case where a young person of 14 met an older man through an Internet connection, and he could not be prosecuted because there was consent. So where there's a larger age difference, we believe that younger children should be protected.

    Mr. Vic Toews: Right. I know what the centre has said on their concerns about witnesses under 18. Could you maybe make some comments about the existing age of sexual consent, or is that beyond your purview?

    Ms. Lynne Cohen: I haven't thought about it, but personally I would want it raised for consent.

    Mr. Vic Toews: To what age would you suggest, bearing in mind the close-in-age exemption? I think most of us would agree with that.

    Ms. Lynne Cohen: Not having given it a lot of legal thought, 16 sounds like a good age.

    Mr. Dave Nichol (Administrative Officer, Canadian Justice Review Board): Maybe you could consider some consistency in the age people are allowed to drink, drive, and are given adult privileges, and work around that framework. It might establish a principle to work with.

    Mr. Vic Toews: Police have testified to us that they have no legal ability to prevent 14-year-old children from being exploited by adults. Parents are frustrated, police are frustrated, and I'm very concerned about this. Do any of the other witnesses have any comments? I know this might be outside the purview of why you're here.

    Ms. Judy Williams: From a teacher's point of view, I know that youngsters are sexually active at a very early age--much earlier than when I grew up. It's a sign of the times, unfortunately. I wouldn't have a problem with the age being 16. I think the current proposal in Bill C-20 is between the ages of 14 and 18, so 16 is in the middle--this is without any forethought, so I might change my mind.

    As a teacher, I watch some of these young girls come into my classroom. I taught special needs children, and I had a few autistic girls that, honest to God, I wanted to protect so much. But you get into the issue of discrimination if you say the age should be higher for children like that--if ever there would be a time--because they are so innocent. I don't know whether Stéphane would agree or not, but I think 16 would be a good age.

¿  (0950)  

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Toews.

    Monsieur Marceau.

[Translation]

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you Mr. Chairman.

    I would like to thank all of you for being here this morning and for making your presentations.

    My first question is for Ms. Cody-Rice from the CBC. Ms. Cody-Rice, you have suggested an amendment to include the journalistic profession. Would you be satisfied with a definition of the concept of "public good", instead of an amendment? Most, if not all of the witnesses who appeared before this committee expressed concerns about the definition of "public good". They said it was too broad, etc. Would you be happy if we were to say that the public good includes this, or that, etc. and if we included journalism and the exceptions that you have brought forward? Is this something that you may have considered and, if so, then why was it rejected? If not, is it something you might find acceptable?

    Ms. Edith Cody-Rice: I did not reject that approach, and I am open to suggestions. I realize that the public good in general, just like the public interest, will be interpreted by the courts, but I don't see why we could not include, in the act, a definition of "public good" that would include journalism, literature and other similar disciplines.

    But there is another aspect to all this. For the time being, the concept of "public good" will be interpreted by the courts, but it will be up to a jury to decide whether or not something goes beyond the public good. It is the jury that should concern us. A jury is composed of citizens who have a job to do, but they are not experts. Each jury reacts in a different way. If you adopt the concept of "public good" without any further information in the bill, this will give rise to some concerns since the decisions will rest with the jury. I suggested an exemption from the act. That way, there will be no jury involvement. Do you understand?

    Mr. Richard Marceau: Yes, I understand. Thank you.

    Mr. Deschênes, you have been very quiet so far. I will give you an opportunity to speak to the committee. You say in your brief, and I quote:

We urge you to exempt mere nudity as practiced by naturists throughout Canada and the world from your definitions of pornography.

    Could you suggest a wording for this exclusion?

    Mr. Stéphane Deschênes (President, Federation of Canadian Naturists): Unfortunately, we did not have much time to prepare for our appearance here. We tried to find a lawyer to help us. Neither one of us has any legal training.

¿  (0955)  

    Mr. Richard Marceau: There is help for that.

    Mr. Stéphane Deschênes: Yes. What also concerns us is the fact that if the exclusion is too broad, it would not include those who take surreptitious photos in naturist centres. We don't want to be taken advantage of. We don't want to see our pictures on the Internet. We already have a problem on naturist beaches, particularly Oka and Wreck Beach. Of course, we want to make surreptitious photography and unauthorized publication of pictures illegal. But with the wording in the bill, the simple fact of being a naturist or the act of looking at someone in a naturist environment will become illegal. We are most concerned about the provision making us responsible for proving the surreptitious nature of the photography. That is a heavy onus for us.

    Mr. Richard Marceau: I have with me a copy of Naturisme Québec. I see there are pictures of children in this magazine. Has this ever caused you any legal problems? Has this ever been considered to be pornographic? Is it something that you have ever been worried about?

    Mr. Stéphane Deschênes: We are always worried about it. Many people are afraid to take pictures of children or to submit them for publication. As a magazine, we have never had any problems but we can give you examples of individuals who have taken pictures of their own children and who have been charged because their photos—either naturist photos or simple pictures of naked people—were considered by the police or by a person—

    Mr. Richard Marceau: You say that this has happened, but do you have any figures? This committee has often heard people say that they wanted to avoid having parents, even non-naturists, take pictures of their little boy or girl in the bathtub, something that all parents do, including myself, and be accused of child pornography. Do you have any statistics to back up what you are saying?

    Mr. Stéphane Deschênes: I have no figures, but I can tell you about the man in Ottawa, a few years ago, whose name was Mikuta. I believe he was Polish and did not speak much English. As we explained, if a person is charged, the legal fees can be expensive, particularly if one has a limited understanding of the justice system or is not conversant in one of our two official languages. When definitions are vague, then sometimes—

    The problem is that sexuality is in the eye of the person who sees the photo. We don't consider pictures of nude people to be sexual, but a police officer could look at a nude photo and decide that it is sexual because that is how he sees it. We have a problem with the definition, and the fact that the trial has to go on for quite a long time before it can be determined whether or not a person is guilty. It is very dangerous.

    Mr. Richard Marceau: Thank you.

[English]

    The Vice-Chair (Mr. John McKay): Mr. Macklin.

    Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you very much.

    I guess the concerns expressed by the Federation of Canadian Naturists on voyeurism are relatively new, in terms of witnesses we've had before us. I'd like to go back and just sort of walk through some of the steps one would go through in establishing whether or not something constituted voyeurism, as we're contemplating under the bill.

    You spent some time in your brief talking about surreptitious, but I'd like to get some clarification. If groups of people are nude on a nudist beach and people are taking photographs there in an open fashion, would that in any way be surreptitious? If so, could you explain how you would find the word surreptitious effective in bringing fear to your group and organization in that setting?

    Ms. Judy Williams: I can speak about Wreck Beach, because Wreck Beach has 300,000 visitors a year, year-round. Although it's a public beach and it's legal to take photographs where you wish in the public domain, the tradition at a clothing-optional beach is no cameras. People are not very happy when they see cameras coming down the beach. So if anyone wants to photograph, at Wreck Beach anyway--I can't speak for Hanlon's, Beaconia, Patricia, or Crystal Crescent Beaches--they have to do it surreptitiously, because people will rise up and ask them to put the cameras away.

    We have had trouble with photographs, taken of us without our knowledge, appearing on the Internet. I have had personal grief with the Discovery Channel, a sex channel, where bootleg photographs of myself were shown, surreptitiously taken for sure. I made 13 phone calls to the CRTC and other areas trying to track down the source. I was not very happy about that, because at the time I was still teaching. I always had a policy during the years I was teaching of not being photographed in totality because of the situation with my students--not because of shame, but because it was just easier.

    Yes, we do have concerns. Open photographing really does not happen at Wreck Beach, and I imagine that at other beaches people are very cautious about that as well.

À  (1000)  

    Mr. Stéphane Deschênes: On our concerns with the openness of “surreptitious”, we do want to prevent people from taking surreptitious photos, if we're going to use that word, but it's a matter of the use of the photos once they exist. Intent is important in this situation.

    A naturist's photo that we consider to be perfectly appropriate might be considered to be child pornography in somebody else's hand. Our concerns, once the photos exist, include the determination of whether or not they were taken surreptitiously; whether we are able to make that decision; and whether somebody else would consider the photos in our collection, in our possession, or that we are publishing, to have been surreptitiously taken.

    Mr. Paul Harold Macklin: When you're on a public beach, if I can use that term--I'm trying to get a true understanding of your concern--is there a reasonable expectation of privacy as a nudist?

    Ms. Judy Williams: I would say it's a concern for many people who go to the beach when the helicopters fly over, with their photographers hanging out, taking pictures that might appear on the evening news or elsewhere where people can be recognized. It's not a concern for me, Stéphane, and many naturists, but for some people, their workers, colleagues, and families don't even know that they are naturists. So that is a concern for them.

    Mr. Stéphane Deschênes: We must remember that naturism is currently practised not just on beaches but in some 54 or so clubs in Canada, as well as in private settings. Pools are rented in most major cities for naturist events, for nude swims. Those are definitely much more private situations.

    Mr. Paul Harold Macklin: I guess part of the question is trying to establish when you have a reasonable expectation of privacy. I think I could understand if one were in a private club on private property. But I'm having difficulty trying to understand your expectation of privacy on a relatively public beach.

    Ms. Judy Williams: I guess we'd have to say it's a nudist tradition to not have photographs taken just because we're on a nudist beach. A lot of the airlines are chartering tours and bringing people down to the beach, as though we are exhibits in a zoo. After a while that gets a bit wearing, and people get testy about cameras.

    Invariably, the tour groups that come down the 300 to 400 steps--that's almost 400 feet--all have cameras, so they're asked to put them away. We don't have the legal right to do that, but people are touchy.

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Macklin.

    Mr. Nystrom, do you have a question? No.

    So three minutes go to Mr. Toews.

    Mr. Vic Toews: I have the same concern as Mr. Macklin. I have no concern about restrictions on photographing where there is in law a reasonable expectation of privacy. But where people have come to a public beach, public property, there is no reasonable expectation of privacy, through visual observations, recordings, or otherwise. If a journalist wants to go down to a beach and take recordings, there's no constitutional invasion of the reasonable expectation of privacy that we all enjoy in certain circumstances.

    It seems to me the naturists sort of want it both ways. They want the right to be nude in a public place, but they want restrictions on the right of others to observe that or take recordings of that.

    If you want to go on private property, as Mr. Macklin has stated, away from the prying eyes of others, and be nude, I don't see any legal objection to that. If people come onto your private property and photograph you, that's wrong. There is a reasonable expectation of privacy, and that should be punished.

À  (1005)  

    Ms. Judy Williams: Wreck Beach, Crystal Crescent Beach, and Hanlon's Beach are officially designated “clothing optional”. That is a little bit different from your fully clothed public beaches, because people have a certain element of trust in one another. If I'm sitting here right now in my clothing and do not want to be photographed, you need to respect my wishes. If I say to you, “I don't wish to have my photograph taken”, then you should honour that. In this day and age, with the electronic means available for dissemination on the Internet and worldwide web, I think I should have a say.

    It's not that we want it both ways; the tradition is that one does not just randomly point a camera and shoot wherever you go, as a courtesy, whether you're in Guatemala, or around a native aboriginal group or an African group that does not, for spiritual reasons, want to be photographed. Again, it comes down to cultural mores and expectations. It may not be covered by legislation, but it's covered by ethics.

    Mr. Vic Toews: I would honour that if you told me you didn't want me to take pictures of you here. In fact, we have a regulation in the committee against taking pictures here. But others on the street are not bound by the same ethics that you might want them to be bound by. We're not dealing here with an issue of ethics without legal context; we're dealing here with laws. We're trying to put into place a workable legal system. Quite frankly, I don't see how we can prevent the taking of pictures of anything or anyone in an area where there is no reasonable expectation of privacy.

    Mr. Stéphane Deschênes: I think we're getting a little off the topic of our submission. We're not here to suggest that the law should be amended in any way to make it illegal to take pictures of naturists in a public place, including a public beach. You're correct that it's currently legal, and that's not our concern.

    Our concern is with some of the over-broad language that may make our naturist pictures illegal because they are surreptitious; or worse, because they are considered to be child pornography. We are concerned about our ability to publish our magazines and pictures, or just take and hold those pictures, because of the definition of surreptitious.

    Mr. Vic Toews: Okay, I have your distinction. I think that's good. Thank you very much.

    Mrs. Edith Cody-Rice: Could I make one brief comment?

    Mr. John McKay: Certainly, go ahead.

    Mrs. Edith Cody-Rice: This discussion raises one of the concerns one has. You look at the terms in the proposed legislation that are open to broad interpretation--surreptitious, observe, reasonable expectation of privacy, and public good. You have no idea--or you may have an idea in some cases because of judicial history--how these terms are going to be treated in a court, so how does that guide the police when they're making a charge? You're accused and you have to spend huge dollars. You may be acquitted, after spending $150,000 and losing your house. The language is far too broad for all of these very loose terms.

    The Vice-Chair (Mr. John McKay): Thank you.

    Colleagues, I just need some guidance here. We're about 12 minutes away from a vote. Should we hold the witnesses until we come back from the vote, or should we excuse them?

    You think we should release them.

    We have 12 minutes. Are there any last questions?

    Ms. Bulte.

    Ms. Sarmite Bulte (Parkdale—High Park, Lib.): Perhaps I could, Ms. Cody-Rice, speak to you about your definition of public news. You exempt newspaper journals, but what about the independent producers? They're not licensed by the CRTC.

    If I'm making a documentary, let's say, about the nudist beaches, I see what you're trying to get at. I'm not sure that your definition of public news covers all the bases or is adequate.

    What if someone says they're just an independent producer, and they're not licensed to be an independent producer? There's no kind of licensing authority. Do you have to be recognized by the academy or the CFTPA?

À  (1010)  

    Mrs. Edith Cody-Rice: I would be very happy if it were made broader. I had a broader amendment in my original brief, which one could also look at. After I drafted that, I basically exempted everybody who used public news.

    I looked at the Saskatchewan Privacy Act where that is contained, and public news is not defined there. I thought a concern of the committee might be that if you said public news, I could go out and take pictures of anybody, just go on the Internet myself, as an individual, and say this was public news. I thought you might feel that was just leaving the door too wide open for exactly the kinds of pictures you don't want there.

    I have absolutely no objection to it being broadened. It's a challenge to define public news, but this indicates that, for example, broadcasters would have some regulatory body overseeing them. Newspapers might have some credibility, but you might have a little newspaper that somebody forms that has none. The challenge will be to define public news in a way that is adequate. If you feel this is too narrow, I would be perfectly happy if that were broadened.

    I broadened it from the definition in the Saskatchewan Privacy Act, which is fairly restrictive. I felt it was too restrictive, because websites are run by many legitimate activities.

    I quite agree with you. I would like to see it broadened.

    Ms. Sarmite Bulte: There's even the situation like JumpTV, which broadcasts without being licensed.

    Mrs. Edith Cody-Rice: Exactly.

    I do have a definition in the brief we presented that is broader. I narrowed it because I thought the committee might be concerned I had opened the door too far. We just want an indication. We're suggesting possible amendments, but we want these terms to protect artistic and journalistic expression.

    Ms. Sarmite Bulte: Thank you.

    The Vice-Chair (Mr. John McKay): Thank you.

    On behalf of the committee, I'd like to thank each and every witness for making the effort on their presentations. We appreciate it.

    I'll adjourn this meeting until 11 o'clock.