Mr. Speaker, I will be splitting my time with the Secretary of State for Children and Youth.
I am pleased to participate in this important debate. I welcome the opportunity to have this discussion to confirm the government's commitment to taking the necessary measures to safeguard our children. The government remains committed to strengthening the criminal law's protection of children from sexual exploitation and all forms of victimization.
Canadians agree that child pornography is one of the most horrible forms of child sexual exploitation. Parliament has ensured that Canada's laws against child pornography are among the toughest in the world. Our law is very clear in prohibiting the creation of child pornography. The criminal code prohibits the making, printing, publishing or possessing for the purpose of publication any child pornography. Our laws strike at the heart of the trade in child pornography. The criminal code prohibits the importing, distributing, selling or possessing for the purpose of distribution any child pornography.
Let us be clear: our criminal code prohibits the possession of child pornography. The supreme court upheld criminalizing possession. One of the reasons parliament criminalized is that we must reduce the market for child pornography and consequently reduce the abuse of children that child pornography often entails.
Our law defines child pornography quite broadly. It is defined as a photographic, film, video or other visual representation that shows a person who is or is depicted as being under the age of 18 years and is engaged in or is depicted as engaged in explicit sexual activity. It does not matter whether or not it was made by electronic or mechanical means. Child pornography can be a photograph, a movie or a computer file. Our law ensures that it is all illegal.
Our law is not restricted to defining child pornography as depicting explicit sexual activity, as is proposed in the motion before us today. The law prohibits any visual representation, the dominant characteristic of which is the depiction for a sexual purpose of a sexual organ or the anal region of a person under the age of 18 years. In addition, the criminal code states that child pornography includes any written or visual representation that advocates or counsels sexual activity with a person under the age of 18 years. That would be an offence under the criminal code.
Our laws against child pornography are among the toughest in the world. The government is committed to being vigilant, both domestically and internationally. The nature of the computer networks and the child pornography rings through which this illicit material is traded crosses borders and requires international co-operation.
The G-8, for example, has consistently acknowledged the economic and social benefits arising from new technologies, but has also recognized that it must combat the use of such technologies for criminal purposes. Canada, along with its G-8 partners, has been active in countering the sexual exploitation of children on the Internet. Perhaps the most far-reaching international legislative initiative in this regard is the Council of Europe's cybercrime convention, which Canada signed in November 2001. The convention has now been signed by 33 countries, including all the members of the G-8 except Russia.
The cybercrime convention, which targets a broad range of computer related crime, addresses child pornography specifically in connection with computer systems and contains provisions to criminalize various aspects of the electronic production, possession and distribution of child pornography. The convention harmonizes laws to help shut down the international production and exchange of child pornography. We have not yet ratified the convention, but we can be proud that our existing law is already consistent with the child pornography provisions in the Council of Europe's cybercrime convention.
Our laws against child pornography are tough and have been upheld by the highest court in the land. The offence of possessing child pornography was challenged last year as being contrary to the freedom of expression and security of a person guaranteed by the charter.
On January 26 last year the Supreme Court of Canada upheld the constitutionality of the prohibition of the possession of child pornography. However the court decided that the guarantees protected by our constitution required the recognition of two exceptions where the prohibition's intrusion into free expression and privacy was most pronounced and its benefits most attenuated.
The first exception of excluded material consists of written materials or visual representations made and possessed by the accused for personal use. This exception refers to so-called works of imagination. We must keep in mind two things. First, there are no children involved in the production of these works. Second, although such works of the imagination can be possessed, they cannot be distributed, given away or traded in any manner.
The second exception consists of any visual recording made by the accused or in which the accused is shown provided that: the sexual activity is not unlawful; all parties consent to the making of the representation; and the representation is made exclusively for the person who made it or the person shown in it.
We must understand what this means as well. A person cannot have lawful sexual activity with children, so a person cannot create and possess images depicting such behaviour. The supreme court further stipulated that with respect to the narrow range of lawful sexual activity between 14 and 17 years of age, the individuals involved must consent to the visual recording and the resulting representations are excluded for their use. Although the individuals involved can possess the representations, they cannot give them away, trade them or distribute them.
The highest court in the land found a balance that was consistent with our charter of rights and freedoms. The supreme court upheld the law that parliament enacted. It is possible to amend the law but any changes have to be very carefully crafted to ensure that we prevent harm to children and also retain the constitutional protections that ensure we are free and democratic society.
The government has proposed amendments in Bill C-15A that succeed on both these fronts. Protecting children is a priority in Canada. We continue to fine tune our law to counter the new ways criminals exploit communications technologies to facilitate pedophile activities.
Bill C-15A will amend the criminal code to prohibit transmitting, making available, exporting and accessing child pornography. It will also prohibit possessing child pornography for the purpose of transmission, making available or exportation. These provisions will be particularly helpful in combating child pornography on computer systems, whether it is transmitted by e-mail or accessed through the Internet.
The passage of Bill C-15A should not be delayed any further. A commitment was made to speed the passage of these provisions when Bill C-15 was split. It is now time to honour that commitment. Bill C-15A will provide new ways to strangle the trade in child pornography. It will make our law better so that parliament can fulfill its commitment to protect children.
Clearly this government is dedicated to protecting children. We will take and make every effort to find the ways and means to deal with those who would take electronic technologies and attempt to advance them in a way that is inconsistent with our belief in the way our children should be protected.
Mr. Speaker, I am very pleased to join my colleagues in this debate today. We all share a concern for the protection of children and youth. I must reflect not only from a domestic perspective but also from an international one. Canada is not alone. Many countries are seized with the issue of commercial child sexual exploitation, pornography is an aspect of that.
I have had discussions with colleagues both internationally as well as domestically. We know that by making changes in legislation to protect the rights of children and youth as individuals, each and every aspect of proposed legislative amendments has to be carefully vetted. Due consideration must be given to how this will impact on existing legislation and the rights of individuals and how it is vetted against the constitutional rights of individuals. We have an obligation to do that as legislators. It is not an option. It is something that honours the rights of individuals.
We as a government have worked tirelessly to protect children from sexual exploitation. We recognize that children are vulnerable members of society and we have acted to ensure our children are strongly protected against sexual predators. This is normal and is something that all members of the House share in in terms of expressing how we feel about our children in Canada and around the world.
To protect children from sexual exploitation, parliament passed criminal code amendments on October 18, 2001, which included major provisions to better protect children from criminals who sought to sexually exploit them by using the Internet.
This legislation creates a new offence of luring which targets criminals who use the Internet to lure and exploit children for sexual purposes. This legislation makes it an offence to transmit, make available or export or intentionally access child pornography on the Internet.
The legislation allows judges to order the forfeiture of any instrument or equipment used in the commission of a child pornography offence. It enhances the ability of judges to keep sexual offenders away from children by making prohibition orders, long term offender designations and peace bonds available for luring and child pornography offences.
The legislation amends the child sex tourism law enacted in 1997 to simplify the process for prosecuting Canadians who commit sexual offences against children in other countries.
Since 1993 the government has introduced many changes to ensure children are protected from those who seek to sexually exploit them. Our actions include amendments to the criminal code to deal more effectively with high risk offenders, and we have had a longstanding debate on this. As members know, there is a national sex offender registry which will serve the betterment of all children in our country.
The government passed legislation to improve public safety through changes in the parole and correction system, including measures for easier detention of sex offenders in penitentiaries until the end of their sentences and measures to strengthen rehabilitation and treatment programs for sex offenders.
We have amended the criminal code to toughen laws on child prostitution and child sex tourism. The criminal code has been amended to ensure that peace bonds are effective in keeping abusers away from women and children. Legislation has been passed to make criminal records of pardoned sex offenders available for background checks. A national information system on child sex offenders has been established which will enable employers and organizations to determine if a job applicant has a criminal record for sexual offences before allowing the applicant to work with children.
The RCMP is on track with its improvements to the Canadian Police Information Centre, or CPIC, and will have by November 2002 a distinct national sex offender category in CPIC to help police protect the public against sex offenders. This builds on the government's September 2001 announcement of a $2 million project to create the special sex offender category on CPIC.
I will speak about two international summits or congresses we have had which illustrate that Canada is not alone. They illustrate that this is a global problem for the various countries trying to provide protection for children.
In 1996 we had the first world congress in Stockholm. Canada joined with other nations, the United Nations, regional organizations and non-governmental organizations worldwide to commit to a global partnership against the commercial sexual exploitation of children. We gathered to mobilize the international community to arrive at a common platform and launch a concerted and co-ordinated commitment to address the commercial sexual exploitation of children.
Our commitment was clear and strong: Commercial sexual exploitation of children is wrong. It is an offence and will not be tolerated. Commercial sexual exploitation of children knows no borders or boundaries. So too our commitment is without borders or boundaries.
Since the first world congress many efforts have been made around the world in terms of improved legislation, law enforcement, prevention programs, recovery and reintegration programs, research, exchange of information and anti-trafficking measures. The insidious thing about the sexual exploitation of children, commercial and otherwise, is that once we resolve the problems of child prostitution and child abuse and deal with issues on the Internet we have the emergence of another issue: the trafficking of children and women. It is insidious that the power of this negative force is so pervasive and permeating that it eludes governments around the world.
We must band together with other countries to work for our children and young people. However the growing involvement of organized crime, increased trafficking across borders and within countries, and the proliferation of child pornography via the Internet have created new challenges to the eradication of commercial sexual exploitation of children and youth.
Technology is growing at such a fast pace that governments around the world are scrambling to catch up with the issue. Technology is being used not for the betterment of humanity but against the most vulnerable in our society: our children and youth.
Since Stockholm the Government of Canada has been working hard with non-governmental organizations, its provincial and territorial counterparts and other countries to stem and combat the sexual abuse of children at home and abroad. We are proud to have played an active role internationally in the negotiation of a number of new instruments to address the commercial sexual exploitation of children.
In the last five years negotiations have been concluded on: ILO Convention No. 182 on the worst forms of child labour; the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; the Convention Against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; and the Convention on Cybercrime by the Council of Europe.
These instruments elaborate on our fundamental rights as set out in the United Nations Convention on the Rights of the Child. We encourage all states to consider signing and ratifying or acceding to these important new instruments as soon as possible.
As members well know, a few weeks from now we will have the United Nations Special Session on Children. I sincerely hope states will take the opportunity to move forward the international agenda for the protection of children especially when it comes to the United Nations Convention on the Rights of the Child. This is so important.
We had a second meeting in Yokohama last December. After all the discussions and resolutions the document that came out was in the right place. Canada was a strong leader at the meeting. Canadians believe in protecting the rights of children. We must lead by example. We have therefore taken a certain number of measures as I have indicated.
It will cost money. Children are a priority of our National Strategy on Community Safety and Crime Prevention which has been allocated $145 million over four years in addition to its current funding of $32 million per year. We have also expended moneys through CIDA with our partners around the world to do likewise for children abroad who have less than we do.
This is a complicated issue. There are a number of issues which should be dealt with individually and not by an omnibus bill in which everything is rolled together and each amendment is do or die. We must look at each component because we are dealing with the rights of individuals. We are dealing with the constitution and the charter whether we like it or not. The notwithstanding clause is not our own little instrument to whip out whenever we wish. We must be careful about that. We must be circumspect when dealing with the rights of children and all citizens.
Mr. Speaker, on behalf of the NDP I would like to begin by saying how unsatisfactory this is. We are trying to deal with an issue as difficult as the issue the Alliance motion has put before us in the context of a one day debate on a motion which we either have to vote up or down. This is a difficult situation for the House to be put in, for parties to be put in and for individual members to be put in.
Perhaps it is unavoidable in some ways but it seems to me it was avoidable at one point. We had an opportunity to look at these issues in greater depth than we are now able to at least today, but we passed it up. Again it is partly because of the politics that attends this kind of issue.
People want to do a good job writing laws that deal with the issue of child pornography. Very often they are prevented from doing so by being in the position of either passing bad laws or bad motions because there is a willingness on the part of others in our political universe to charge them with not caring enough about child pornography if they do not hurry and pass the motion or the legislation.
In terms of amendments that came back to us from the Senate on Bill C-15A and in terms of this motion, we are now dealing with a situation that would have been preventable in part if we had been able to take the time to do Bill C-15A properly, or that part of Bill C-15 which was carved out of the original Bill C-15. However, because it dealt with child pornography and a number of other issues, and I am as guilty as anyone else in this, we said, no, let us just pass it and get it through.
Eventually the government buckled to the pressure. Instead of having that bill go through committee and having that part dealing with child pornography being considered properly, there was this sense that anyone responsible for any delay on that was somehow an accomplice of child pornography and therefore the bill had to be rushed through. In some sense now we are dealing with the consequences of not being able to look at that bill as thoroughly as we should have. Today we are debating an opposition day motion and we are basically in a similar position.
We are being asked to vote for something which, depending on one's point of view, one could not quarrel with the principle that the government immediately introduce legislation to protect children from sexual predators. Who could be against that? Yet the motion goes on to include thus, thus and thus. It is not well worded in some respects and does not really reflect some of the concerns people genuinely have, in that if we are to implement some of the measures that are included in the “including” part of the motion, there are things that need to be taken into account that are not.
If we were to go back far enough we could fault the government for not bringing in a piece of legislation having to do with child pornography alone. Then we could just deal with that. Instead original Bill C-15 before it was split into Bill C-15A and Bill C-15B, had child pornography and various other amendments to the criminal code having to do with police officers, et cetera. There were a whole bunch of things. Some were quite simple and one could just be for them and pass them. Others, as we have come to know more probably than we would like to through various court decisions, were complicated, such as this child pornography issue.
If the government had introduced that part of Bill C-15 which dealt with child pornography alone and allowed the committee to do a proper job, and if opposition parties had not taken the view that it had to be rushed through, there might have been a better job done. Then we would not be in the position we are in today.
We are of two minds, frankly. One is whether to vote for the general intent of the motion, which is to say that the government should introduce legislation to protect children from sexual predators. But we realize that the House really is not of one mind as to what that legislation might look like. It is a political dilemma in some respects because it goes beyond the principle in the motion to talk about, for instance, raising the legal age of consent to at least 16 years.
I know that members of the Alliance have said it is not their intention in any way to criminalize sexual relations between teenagers. I am glad to hear that, but the motion does not say that. In fact some would argue that the age of consent is 14 years in one respect but 18 years in another respect. What is it that is intended by the legal age of consent being raised to 16 years? What is the intent with respect to the 18 year old threshold that we also find in the law?
Having said that, I myself as the NDP justice critic asked the then minister of justice, now the Minister of Health, when she was before the committee I believe on Bill C-15 whether or not the government was intending to act with respect to the legal age of consent. I do not want to speak for other governments but I believe provincial ministers of justice have raised this with the federal ministry of justice. There is a feeling that something needs to be done about the age of consent. I am not unsupportive of that as the NDP justice critic. However it is a matter of some detail as to how one goes about doing that in the criminal code and the motion does not reflect that.
With respect to the child pornography aspect of the bill, many people are concerned. The member for Palliser stated it well on our behalf yesterday when he read letters from his constituents. People are concerned about the so-called Sharpe decision and the fact that artistic merit was used as a defence against charges of possessing what I believe were stories, which by anyone's judgment except perhaps Mr. Sharpe's and a few others, are offensive. If one takes a certain point of view with respect to child pornography stories, they may well actually contribute to sexual crimes by virtue of their existence and the relationship between their existence and the effect of their existence on the person who has them in their possession.
What we need to debate in the House is the appropriateness of the artistic merit defence when it comes to child pornography. I would bet there would be divisions between individuals within parties on this issue as it is not a question of one party versus another necessarily. There is nothing written in the evidence so to speak which says that child pornography should have this particular defence available to it, even in the very limited form that the supreme court has made it available.
For instance, we do not permit artistic merit to be a defence when it comes to hate. We have carved that out and said that artistic merit does not cut it as a defence when it comes to hate literature. We should look seriously at whether or not we should have a similar, but obviously not identical, carve out, when it comes to child pornography. Just what that would look like would be a matter of some deliberation.
As I have said in the past, the artistic merit defence is something that should be referred to the Standing Committee on Justice and Human Rights. The member for Palliser said that yesterday on our behalf in the debate on the amendments to Bill C-15A. We need to look at these decisions. We need to hear from people who are making very strong arguments that this is not a defence that should be available.
Of course, we need to hear from people who say that eliminating this defence would in some way or another endanger freedom of expression in other areas of expression. I would hope that even those who are strongly supportive of the artistic merit defence are not doing it on the basis of their attachment to or out of any defence of child pornography. They are doing it presumably because they are concerned about the effect that rejecting such a defence might have in other areas. It seems to me that is the moot point of the issue before us.
I say once again how much I regret that as a House we are not able to deal with this in a satisfactory manner in terms of process. We get rushed when we should not be rushed. Parliament has been rushed a number of times in my experience. A couple of times, certainly in retrospect, people have judged that we have passed bad law or law that would not stand up in the courts, et cetera. Although this is not a piece of legislation, we should consider whether or not we are doing the same thing again today.
Mr. Speaker, this morning's debate is very important and addresses a very serious matter.
I believe that the Canadian Alliance member who introduced the motion before us has not taken the right approach when it comes to the debate he wants to initiate. If it is true that his objective is to protect young people, he has gone about it the wrong way by wording the motion as he has.
No one can be opposed to the creation of a committee or to the possibility of improving Canadian legislation in order to increase the protection of our children. I would be among the supporters of such a thing, but this is not what we have before us at this time.
If that is what he had in mind, he has gone about it in the wrong way. We could address the entire issue of television violence and the possibility of providing our children with more information in the schools. We could also look at the possibility of holding sensible and balanced discussions on sexuality and young people.
We could also address poverty, the question of extortion in the schools, and the drug issue. Something very close to sexual exploitation can occur when a young person needs money for drugs or something else. We have to look at what is going on in our schools to realize that we can do something about it.
However, this is not how the hon. member has gone about it. Let us not be taken in. In reading today's motion, we can see that it addresses two specific points which come up periodically with the Alliance and before that with the Reform Party.
The first part deals with the age of consent, that is raising the legal age of consent from 14 years to 16. A private member's bill was introduced by the Reform Party during the 36th parliament, and we heard all the speeches then. It did not get through. I will come back to this in more detail later on.
The second part of the motion is in response to the Sharpe judgment. Incidentally, yesterday I listened to speeches in the debate on Bill C-15 that made the hair on my arms stand on end. Whether one agrees or not with the court's ruling is one thing. However, dragging the name of a judge through the mud, as they did, a judge who rendered a decision in the Supreme Court of British Columbia based on the statutes that exist in Canada, that is quite another story.
Justice Shaw rendered a decision. One might argue that is was not the best decision, but then the law must be changed. His decision was based on the law as it currently exists, based on the Canadian Charter of Rights and Freedoms, obviously, but also based on the criminal code.
There is good reason that we do not yet know if this judgment will be appealed or not. That is because there has been no decision yet. It might be wise to give the authorities, the crown attorneys and the government, a chance to decide whether or not they will appeal, but this has yet to happen. However, I challenge the Canadian Alliance to find where the judge made an error in law in this ruling.
Before dragging the judiciary through the mud, as the Alliance did yesterday, which discredits to some extent the position it is taking, I would like them to do some thinking.
I myself have been doing some thinking on the motion we are debating today. Certainly, if I wanted to play petty politics, like the Alliance is doing, I would applaud the motion and say, “Yes, this is terrible. All of these guys who are taking advantage of our young people and abusing them, and so on, they should be thrown in jail, regardless of the legislation and the age”. However, that would not be responsible. We are hear to act responsibly.
Let us compare the past and the present situation. Is there room for improvement? The age of consent of 14 has been around for quite some time. If we look at the criminal code, and even before the criminal code was adopted in 1892, we see that for women—because women accept a great deal—the age of consent has been set at 14 since 1890.
With the introduction of the criminal code, in 1892, this was included, again to protect women. But even then some distinctions had to be made. There were exceptions, because in those days, people were getting married at a very young age, even under 14. All this to say that if we look at the evolution of the legislation, we realize that, since 1892, there was never a full ban on sexual relationships with young girls over the age of 14.
Earlier, a Canadian Alliance member said “I speak as a father”. It just so happens that I too am a father. I have a 12 year old daughter and a nine year old son. They are much more mature than I was when I was their age. Do we have to go backwards? I do not think so. I believe that someone who is not handicapped, who does not have psychological problems, can give consent by age 14. This is not ideal and I do not wish this to anyone, but I think that, in its current wording, and considering the whole related jurisprudence, the criminal code provides good protection. A balance is struck and this is what we must seek.
To engage in petty politics as they want to is one thing, but they should be a little more logical in the process. The political party that is bringing forward this motion to raise the age of consent from 14 to 16 is the same party that is largely responsible for the amendments to the Young Offenders Act to lower the age of criminal responsibility from 16 for 14 for serious offences.
Based on the logic of the Canadian Alliance, a 14 year old who commits a criminal act is fully responsible for his actions and should be tried as an adult. Under the recent legislative changes made, provinces such as Manitoba, Alberta or British Columbia will be allowed to try 14 year olds as adults when they commit certain acts. I can assure the House right now that, in Quebec, we will use a ministerial decree to exclude 14 and 15 year olds from these provisions. This will not be the case in the provinces that are represented by the Canadian Alliance, where right wingers are very influent. They will treat 14 year olds like adults when it comes to criminal offences, but these same young persons would not be old enough to give their consent to sexual relations.
Once again, I urge them to be logical. There is an obvious contradiction here. Just now, I heard them say 10 years old. They even want to lower the age at which the Young Offenders Act would apply to ten. I certainly hope that someone, somewhere, will finally draw the line.
It was largely because of them that the legislation was amended. Fourteen and fifteen year olds will be treated like adult criminals, but the age of consent must be raised to sixteen. This makes absolutely no sense. Even in the criminal code, consent per se is not easily established. There are rules, specific criteria for arguing such consent. It is very complex. Even the supreme court has ruled on this more than once; the criteria are very clear.
Since I am an MP from Quebec, I look at what is being done in Quebec. Under the Quebec civil code, a 14 year old is deemed to be of full age for all acts pertaining to his employment or to the practice of his profession. He is also considered to be old enough to enter into contracts alone to meet his ordinary and usual needs. Under the Quebec civil code, a young person is recognized has having the power of discernment of an adult.
That having been said, at some point, it becomes necessary to amend the legislative provisions if it is felt that they do not reflect what society is prepared to tolerate. In Quebec, as far as the civil code is concerned, 14 year olds may act as adults. They can also be emancipated and take responsibility for some of their actions, although they are not adults. We need to be clear about this. As they mature, they are able to make certain distinctions. Fourteen seems to be a good age as far as the provisions of the criminal code go.
So much for the first part. I have taken the time to speak to this at length because it troubles me. This is not the first time the Canadian Alliance has acted in this way. I would like to see this party be logical in its approach to young people. I too want to protect them, but I also do not want to see their rights endangered.
The second part of the opposition motion consists, as I have said, in opposing the finding in the Sharpe case. As we know, the Sharpe case got to the Supreme Court of Canada, and then was brought back before the courts and retried. Justice Shaw of the British Columbia Supreme Court also brought down a verdict.
The second part opposes all of this. Even in connection with the Supreme Court of Canada's judgment in Sharpe, this set some guidelines and directed the debate properly in a free and democratic society such as ours. I therefore cannot understand the tenacity of the Canadian Alliance on this matter, unless it is for political gain and visibility.
As far as the Sharpe decision is concerned, I shall read a brief excerpt from it:
|Accordingly, s. 163.1(4) should be upheld on the basis that the definition of “child pornography” in s. 163.1 should be read as though it contained an exception for: (1) any written material or visual representation created by the accused alone, and held by the accused alone exclusively for his or her own personal use.
Thus, this entire aspect was excluded in a way. Once again, this problem is not going to be solved by lowering the age from 16 to 14. People who have problems are going to continue to have them even if the age of consent in the criminal code is raised to 16 years.
The second part of the judgment reads as follows:
|(2) any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use—
This is understandable. The man in question may be unbalanced. I am not familiar with his specific situation. As far as the legal and criminal aspect is concerned, however, as well as application of the criminal code or the charter of rights and freedoms, at some point guidelines have to be set, as I have said. And we are within them.
If we do what the Canadian Alliance wants us to do—I do not know if they have thought about it—which is to go against the ruling made by the Supreme Court of Canada, to try to do in the legislative branch what the courts did not do in the judiciary branch, because they applied the Canadian Charter of Rights and Freedoms, this means that it would even be prepared to promote the use of the notwithstanding clause.
Did the Canadian Alliance say that it was prepared to use the notwithstanding clause to sort of validate the approach that it is proposing in its motion this morning?
I clearly remember that the Canadian Alliance was opposed to using the notwithstanding clause in the fight against organized crime, even though organized crime is a scourge that may be even more serious. I am not saying that pornography is not important. That is not the point. But in terms of the impact, of the monitoring problems, organized crime remains an even broader issue.
I think the Canadian Alliance is failing, both as regards raising the age of consent from 14 to 16 and blocking the decision in Sharpe. Therefore, going ahead with this motion would not make any sense.
If we look at the decision made by Justice Shaw, we realize that even the evidence adduced by the crown was insufficient to demonstrate beyond any reasonable doubt that the writings were advocating or encouraging sexual activity with a person under the age of 18.
Also, let us not forget that the individual was found guilty regarding the pictures, the use of films, etc. There is a whole part to which the criminal code could be applied, and properly so, when the evidence was adduced.
As for the other part, B.C. Supreme Court Justice Shaw even said that he did not have proof beyond any reasonable doubt that this individual, through his book, was advocating or encouraging sexual activity with a person under the age of 18.
Again, the Canadian Alliance is going about this the wrong way if it really wants to solve this problem, because the motion that it is moving would do nothing to solve this aspect, given that the judge had no proof. This is why I am saying that the Alliance had no reason to drag the judge's name through the mud because of this decision, because it was well founded when it comes to the issue of proof. This motion will do nothing to solve the problem.
I shall end my remarks here. Obviously, when it comes to the principle, the Bloc Quebecois will always fight to protect young people more. There is no problem when it comes to this.
We have introduced a number of private bills specifically to protect young people, whether it be from violence on television, drugs, or taxing. We have always been ready to intervene, and especially to improve legislation to protect youth. When the issue is clear, we support it. When it is vague, as is the case with the motion before the House, when it is not clear and says just about anything, that is a different story.
Yesterday, during question period, following a question from a member of the Canadian Alliance, I saw that the Liberals are interpreting it quite differently, very broadly. This proves that we do not even understand the motion in the same way. Based on the speeches made this morning, it is clear where the Canadian Alliance is heading with this, without spelling it out in the motion.
For all of these reasons, we do not support the motion, and I personally will be voting against it.
Mr. Speaker, it is not all that clear that Justice Shaw failed to follow the direction provided by the Supreme Court of Canada in the Sharpe decision, because questions are still being asked. No authority has decided to appeal from this decision, so it cannot be all that clear.
In considering an issue such as this, my first thought is that we must look for similarities with other approaches to the criminal code. The strongest analogy that I can see is with hate propaganda. I am not the first one to mention this. Others have looked at the issue of pornography in relation to hate propaganda. Just as hate propaganda must incite, promote or advocate something, so too must child pornography.
Looking at the Shaw decision by the Supreme Court of British Columbia, one realizes that even if that court had not accepted the concept of artistic merit, the accused would have been acquitted anyway. According to the judge who heard the evidence, who examined the documents, who examined the entire matter in a mature manner, knowing full well that this was a highly visible case, the prosecution was not able to prove beyond a reasonable doubt that these works advocated or counselled sexual activity with a person under the age of 18 years. There was no incitement.
Our society abides by the rule of law. We are told this with such frequency in this House that the hon. member must realize it, as must all other members as well. The offence of which a person is accused must be looked at closely. If one wishes to be defended properly, and if one wishes to have a decision based on law, the charges must be looked at. The judge then decides whether the crown has proven its case beyond all reasonable doubt. This is the basis of criminal law in Canada. The crown must prove its case beyond all reasonable doubt.
Is this too much to prove in this case? That is another debate. However, for as long as these rules of law, which have been in place since time immemorial, have not been changed, they have to be applied. This is how criminal law works. The charges must be proven beyond all reasonable doubt.
The judge heard the evidence, saw the pictures, viewed the videotapes, and reached the conclusion that, as far as incitement is concerned, there was none present. That is why Justice Shaw reached the conclusion he did.
This may not be satisfactory to us, but that is not the judge's fault. He merely applied the rules of law. When all is said and done, when these are properly applied, when the evidence has been properly provided, it is my opinion that counsels for both the crown and the defence are satisfied with the way things have been done, particularly with the guidelines provided by the highest court in the land, the Supreme Court of Canada.
Mr. Speaker, I am so pleased to have the opportunity to speak on this very important motion, this very important issue with which parliamentarians and Canadians have been seized for a number of years and which has been brought sharply into focus, pardon the pun, by the Sharpe decision which has come down from the British Columbia court. This decision, I think, has caused many Canadians to question loopholes and some of the lax criminal justice response we have when dealing with the issue of child pornography.
I will be splitting my time with the hon. member for St. John's East. As a very fine member of the Progressive Conservative caucus, he is one who for many years has been advocating a stronger position from government in relation to this serious issue of pornography and its distribution.
The motion is a motion which I take to read as taking these steps “including but not limited to”; I see the motion as a gateway to a more activist and more interventionist approach on the part of government when dealing with this issue. Our Progressive Conservative Party wholeheartedly supports any legislation which will help to address and to eventually eradicate child pornography.
The myriad of problems surrounding this issue, including the hamstrung ability of the police to investigate in many instances, as well as the increased use of technology and the proliferation of this type of disgusting material becoming ever more readily available through the Internet, poses serious challenges for the law enforcement community. Investigation on the part of the government into all aspects of what we should do is very timely and extremely important. In fact, it is so important that I can think of no issue that the Department of Justice could be more actively engaged in at this time.
There are positives and negatives that we must look at when considering this issue of age of consent. We look forward to the government clearly putting on the record its position and what active role it might play in assessing the complications of this controversial issue. In fact, I believe we are going to hear divergent opinions on this issue. One of the perverse elements of the way in which the motion currently is worded is that it actually could have a negative impact on some criminal code sections by lowering the current age of 18 to 16. This is what we have to keep in mind. It is not simply a matter of a paintbrush sweeping across the code and stamping the age of 16 as being the appropriate one. There is a danger here.
With respect to this issue, Bill C-15, passed in 1989, addressed the question of age of consent, replacing the prior unsuitable legislation. That bill prohibited adults from engaging in virtually any kind of sexual contact with boys or girls under the age of 14. That bill also made it illegal for adults in positions of trust or authority to have sexual contact with minors between, and here are the key words, the ages of 14 to 18. Therefore, by simply stamping 16 in its place there is a danger that a very naive, unworldly youth of the age of 17 might fall outside the parameters. We have heard the sad tales of people in positions of trust, those involved in the church, those in the school system, foster parents and sadly even parents, who take advantage of youth who are under the age of 18, not 16. We want to be careful not to narrow further the ability of the prosecution to proceed with charges when positions of trust are involved.
I note with interest that in 1981 the current Prime Minister, then the justice minister, proposed Bill C-53, which would have retained a broader version of the prohibition against sexual activity with a young person between those ages of 14 and 18. That bill was not adopted.
Raising the age of consent to 16 would have to be accompanied by an exemption permitting sexual contact with someone between the ages of 14 and 16 if there are only a few years difference between the actual partners. We are into an area of morality and we are into an area of practicality, one in which we would have to proceed with some caution.
The overall effect of the Sharpe decision by Mr. Justice Shaw has many in society recoiling with dismay that a learned judge would in fact open the door to potential pedophiles and those who take advantage of youth, who denigrate images and engage in writings that have a very corrosive effect on societal norms.
Mr. Speaker, as you would be aware, Mr. Justice Shaw in handing down the Sharpe decision in my view broadened the interpretation of the current exemption or defence of artistic merit. Not only did he acquit Mr. Sharpe on some of the charges dealing with the material and whether he was in fact advocating or counselling illegal sexual activity, there was language in the obiter, that is, language in part of his decision, which in my view can be interpreted as, or one could glean that, it is expanding the artistic merit definition. I will quote from page 40 of the decision:
|Any objectively established artistic value, however small, suffices to support the defence.
Justice Sharpe went on to state that the “community standards” considered in determining obscenity do not apply, and further, the creator need only point to objective fact to support the defence and then the crown must disprove it.
There are real problems with that. When one looks at the definition of a story, if you will, that would fall into the category of having some artistic merit, it appears that the base level is that the story have a beginning, a plot and a conclusion. The material, however offensive and disgusting, is somehow to be gleaned as having artistic merit if it meets this very base level. I would suggest that we are mandated, obligated, to respond with legislation to close this legislative loophole.
The Progressive Conservative Party has been supportive in the past of the law enforcement community, victims' groups and child advocates who are constantly tasked and constantly struggling with the lack of resources available to them to undertake this monumental task. As I have said before, what could be a more fundamental issue? We know that the lasting impact on victims of sexual abuse is sometimes a life sentence. Very often the mental anguish, the detrimental effect on the development of young people, is everlasting. It is certainly incumbent upon parliament to take every available opportunity to make for a safer and kinder society.
We have heard from victims as recently as today at the justice committee. There was a very telling comment that I think warrants repeating. It dealt with the need for victims to have more support, a stronger voice, an ability to be heard in a substantive way by the triers of fact, by the individuals who ultimately will decide whether a person will be incarcerated and, after the fact, whether the person will be released. It talks directly to the issue of respect for and dignity of victims, whereas victims very often are unwittingly and irreversibly brought into a cold and foreign forum in which they have no control and of which they have no prior knowledge.
It is clear that there has to be an equitable approach taken by the government. This is why we need a victims' ombudsman's office.
We have a budget specifically set aside for the commissioner of corrections to deal with the concerns, some legitimate, of federal inmates. There is a federal budget allocated to ensure that inmates, some of whom are serving time for absolutely heinous crimes and have victimized numerous citizens, have an office where they can go if their steaks are burned, if they are not getting access to the Movie Channel or they do not have the ability to log on.
Yet victims very often are completely ignored. They have no outlet, no central office in the country, where they can go to find out about important things like parole hearings or information pertaining to response to treatment.
In conclusion, we very much support the motion before us, but I would like to seek unanimous consent, if I may, to move an amendment to the motion. I move:
|That, after the words “that the government immediately introduce legislation to”, the substitution be made of the words “eliminate the legal loophole of artistic merit and other measures to enhance the protection of children from pedophiles and child pornographers in light of recent court decisions”.
I anxiously await the positive response to my amendment from members present.
Mr. Speaker, I want to say a few words on the child pornography issue as it relates to the recent Sharpe case in British Columbia. This case, as we are all very much aware, found its way to the Supreme Court of Canada which made a ruling giving courts guidelines on how to deal with these matters.
The supreme court ordered that the Sharpe case be retried and it is the decision arising from the retrial that is causing the kind of debate that we are having today in the House of Commons.
The rules on photographic child pornography are relatively clear. In the retrial, Mr. Sharpe was found guilty of possession of child pornography with regard to photographs that were subsequently found in his possession. However he was found not guilty with regard to certain written pornographic materials in his possession, and it is in that area on which I want to address and focus my remarks.
Mr. Sharpe successfully defended himself with regard to his written material by using two defences: first, the material did not openly advocate committing illegal acts with children; and second, the materials had artistic merit.
It is difficult to imagine that the federal government, upon hearing the result of that case, would not be rushing into the House of Commons with a bill in hand to protect our children from people who prey upon children. Instead, it appears, and I hope I am wrong, that government members have to be dragged kicking and screaming and forced to deal with the issue.
If the debate today does nothing more than to draw attention to that fact and to somehow bring attention on the government for not acting, then it will be a very successful debate.
In the court ruling, the judge pointed out that subsection 163.1(1)(b) of the Criminal Code of Canada states that child pornography means:
|| (b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years--
The judge points out that the supreme court's earlier decision on the Sharpe case provides guidance on the meaning of “advocates or counsels”. In order to be guilty of an offence under that provision, the supreme court stated that the advocacy must be up front and active. It cannot be subtle or hinted at. It must be seen as actively inducing illegal behaviour with children.
The trial judge found the written material in Sharpe's possession to be morally repugnant but that it fell short of openly advocating such activities. Therefore he was found not guilty under section 163.
I want to point out that everywhere I go there seems to be a desire across the country to have this law tightened up so there are no grey areas. There can be no grey areas where children are concerned.
The other defence used successfully by Sharpe was the artistic merit defence. The trial judge pointed out that this was covered in the Criminal Code of Canada under subsection 163(6) which states:
| Where the accused is charged with an offence under subsection (2), (3), or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose. v
It seems to be very complicated and that is why the peddlers of pornography can easily get around the kinds of laws that we have today.
Unlike the obscenity provisions of the criminal code, there is no imposition of community standards in determining what is pornographic. In its guidelines, the supreme court stated that if allegedly pornographic materials have even minimal artistic merit, then the owner of the material must be found not guilty. The onus would be on the crown to prove beyond a reasonable doubt that the materials have no artistic merit, which is very difficult to do. In other words, if a written article is 90% pornographic and 10% art, the writer must be found not guilty of possession of child pornography by virtue of the material's artistic merit however limited the artistic merit might be.
What kind of a law is that? We have to ask who would draft the laws and legislation that would leave a loophole big enough to drive an 18-wheeler through, where a written article can be 90% pornographic and 10% art and the writer will be found not guilty because the 10% has artistic merit.
We in parliament very often blame the judges for coming to the various decisions they come to but more of the blame should be placed right here on us. The people who draft and pass these laws are to blame. The judges can only interpret what is given to them by the lawmakers and we happen to be the lawmakers. We have a great responsibility in this regard to close these legal loopholes. Therefore the law needs to be changed.
There must be a prohibition against child pornography which catches more than those materials that actively promote illegal acts with children. Materials that depict degrading acts with children that can suddenly introduce and induce such behaviour have to be banned as well as materials that create an atmosphere that might lead to illegal behaviour.
The law needs to more accurately reflect community standards with regard to this behaviour. Figuratively speaking, we should not need to be caught with a smoking gun in order to be found guilty. Having possession of the gun itself should be enough to warrant conviction.
When will parliament start thinking more about the protection of our children and less about the civil libertarians out there who are preaching artistic merit and how important that is? The importance of our children should be the focus of our attention continually here in the House, not how important artistic merit is. We all realize that artistic merit is important but the protection of our children must come first in our society. When it comes to artistic merit, the law must be change.
If we are to err here, we should err on the side of child protection not artistic merit. However parliament seems to have forgotten that we are not talking about consenting adults where one person's art is another person's pornography. We are talking about little children, people not of the age of consent who deserve the maximum protection that parliament can write into the laws of the land. In matters of child pornography, community standards should carry more weight than artistic merit or artistic licence, and our laws should be amended to reflect that.
Mr. Speaker, I will be splitting my time with the member for Lethbridge.
Mr. Speaker, I am pleased to rise today in support of our opposition motion. The motion addresses one of the gravest concerns Canadians face today, the sexual exploitation and abuse of children.
One of the points I wish to make is that the motion itself is not a legal document. Some people are overly concerned that the motion has to be interpreted the same way someone would interpret a statute. That is not the intent of a motion at all.
The purpose of a motion is to provide policy direction to the executive, asking them, the cabinet members, the Minister of Justice, the Prime Minister, to take action and introduce appropriate legislation. This is a political document. It is not a legal document.
I noted the suggested amendment that was brought forward. I looked at that amendment and I do not see anything inconsistent with what is already stated in the motion. The motion does not deny the amendment brought forward by the member for Pictou--Antigonish--Guysborough.
It says that the government immediately introduce legislation to protect children from sexual predators including, and then it talks about two specific issues. One is to raise the legal age of consent and the other is to prohibit the creation and use of sexually explicit material. I am just summarizing. That is not exclusive. It establishes a minimum. The suggestions that are put into the motion that was made previously are already contemplated or within the purview of the contemplation of the government if it wishes to proceed in that direction.
Certainly I agree with many of the comments made by the member who introduced that amendment .
Our motion, if adopted and passed into law, would extend badly needed protections to our children who are at risk of exploitation by child pornographers and pedophiles. We must not be afraid to show leadership in providing the policies and the legislation that our children need.
It is a sad fact that Canada is becoming a safe haven for child pornographers and pedophiles from all over the world. In listening to the police the other night, I believe it was April 16, the police said that back in 1993 Canada's legislation was praised as one of the most progressive pieces of legislation in dealing with this issue. Yet subsequent court decisions have whittled away the effectiveness of that legislation.
In Toronto alone there are at least 400 reported cases involving child pornography that need to be investigated. The police simply do not have the resources to do it. A lack of resources and a lack of appropriate legal tools will prevent the bulk of these cases from being investigated.
In one case where the investigation is under way, there are 400,000 pictures involving the depictions of the abuse of thousands of children. It has literally bogged down the Toronto police. The police need our help. Resources are a significant issue. On the other hand, we here should also be providing them with the appropriate legal tools. We are here today to implore the government to take those steps.
As my colleagues have stated, some of the legal changes we are supporting include raising the age of sexual consent from 14 years to at least 16 years. We are saying at least. We are establishing a floor. We are not establishing a ceiling.
The other day the Parliamentary Secretary to the Minister of Justice was up to some mischief in question period suggesting that this motion in some way advocated the lowering of that age. The Liberals are casting around looking for a technical reason not to do what every Canadian believes they ought to do. They are looking for technical excuses. When we interpret these types of motions as purely legal documents, we can find millions of excuses not to do what we are supposed to do.
I implore the Minister of Justice and his parliamentary secretary to stop looking for legal technicalities. We can hire lawyers to find legal technicalities. We need parliamentarians to stand up and voice clearly the policy direction. The policy direction here is clear. At least the floor should be 16 years. We do not support lowering the age of consent where that consent is already established at 18 years.
Why did the parliamentary secretary come into the House yesterday to play that kind of mischief? Why does he spend his resources and his time in trying to pass off that kind of mischievous argument? Given the gravity of the issue we are dealing with, why would he even suggest that, when he knows that the policy direction given here if the motion is passed by the House is seen as an inclusive and expansive, not a restrictive motion?
Some of the points the member from Pictou--Antigonish--Guysborough made are good ones. We do not need to turn the motion into a legal document. We need to stand and say that this motion already encompasses that and let the government have the moral fortitude to do what is right.
Even the former Minister of Justice in response to a question I asked her in the justice committee on October 3, 2001 said “I think we will see that a consensus is emerging that with certain safeguards we should probably be moving on the age of consent from 14 to 16”.
Elected officials from all political stripes recognize the importance of implementing these legal tools so that our law enforcement officials can better protect our children. This provision plays a significant role in defining the scope of available offences to try to stop child pornographers.
Finally, I want to comment on the case of John Robin Sharpe. Public outrage over this case indicates that writings depicting violent sexual exploitation of children run far beyond what Canadians are prepared to accept. Canadians clearly believe that the law should never permit such material to be distributed or circulated or even created. This material is used, as the police say, to groom children, to break down inhibitions so that those children can be used as sexual objects.
I implore members of the House to support the motion, to stop thinking like lawyers and to start thinking about the future of this country and about doing the right thing.
Mr. Speaker, I am pleased to be given the chance to speak to this motion today. However discussion of things such as child pornography and the age of sexual consent brings no joy to me at all. What I personally bring to the House today is a deep, serious concern about the peril of our children, the peril they are in from sexual predators who would destroy their innocence and in essence their very lives, and the alarming lack of support that the government provides our crime fighters and our courts to deal with sexual exploitation of children.
As far as my constituents are concerned, there is no other issue that gets as much attention as our country's lack of comprehensive child pornography laws and our embarrassingly low age of sexual consent. Petition after petition, letter after letter, the message is clear: things need to change and they need to change now.
Two things are very clear to the vast majority of Canadians. Adults having sex with children, whatever the medium it is documented by or on, has no artistic merit. Fourteen year olds do not have the confidence nor emotional maturity to consent to having sex with people possibly twice or three times their age. Those two things are so self-evident that many are flabbergasted by the lax laws our country has on these issues. If we as a nation of compassionate, intelligent people cannot protect the most vulnerable members of our society, then what are we doing? We need to protect our children or we have indeed failed in the creation and maintenance of a just and safe society.
The message the government sends to Canadians about our children is they have no rights as people, they are property to be used and abused as any adult sees fit and it hopes they make it through life, but as a government, it does not bother ensuring their safety. That is wrong and that needs to be changed.
This is not about the morality of the right or the liberalism of the left. This is vital and intrinsic to a functioning healthy society and crosses over every party line. Children cannot be allowed to be sexually abused and used and be expected to grow up into balanced and well-adjusted adults. It is foolish and irresponsible to assume otherwise and do nothing.
A couple of years ago the member from Pickering--Ajax--Uxbridge brought together some crime fighters on Parliament Hill. He did the same thing a week ago. However, two years ago when we got together, Detective Matthews from the OPP pornography unit brought an issue to my attention that needed addressing in the criminal code. I brought forward a private member's bill to amend the criminal code to allow for the forfeiture of equipment used in the production and distribution of child pornography. I am proud to say that it is in Bill C-15A and is part of the bill that will hopefully be law soon.
When the member brought these same people back together last week, I was able to attend. What we heard and saw was truly distressing. We heard from the woefully understaffed police agencies on child pornography, from police officers to lawyers to intelligence officers, and the message was loud and clear: Canada provides very little protection for its most helpless citizens.
The Toronto sex crimes police unit showed the round table about 40 seconds the 400,000 images it seized from one arrest in the city. Some of the children were as young as six months old. They were real children. They were being raped, tied up and tortured. It was the most revolting 40 seconds of my life and it is something I never want to have to see again. However it would have been selfish not to have witnessed, to know exactly what was going on and to try to help. It is my duty as an adult, as a father, as a grandfather and as an elected representative to help change things for the better and to ensure that this filth is not permitted to be produced, traded or possessed within our borders.
The John Robin Sharpe case will forever be linked to child pornography. I suppose that is understandable. What we cannot allow is for him to be lauded as a freedom fighter. He is for organizations, such as NAMBLA, that aggressively advocate sex with children claiming to truly understand that children are sexual creatures. Sharpe's writings are not the documents we should be waving around as examples of freedom of thought and expression.
Last month Sharpe was found guilty of possessing boxes of child pornography. However he was found not guilty for the stories he had written and obtained from other pedophiles. Justice Duncan Shaw's reasoning was that however vile they were they had artistic merit.
The guidelines for granting this exception are foggy at best and the laws concerning this area must be specifically and carefully rewritten so as to allow for things like Shakespeare's Romeo and Juliet to be studied in schools but to allow the banning of the diatribes filled with the rape and torture of children and luring stories read to children by pedophiles to normalize sex. One thing pointed out to us by these crime fighters was that these writings and pictures were used to brainwash children so they would eventually think it was a normal action. To say that there is any artistic merit in this type of filth is simply unjustified. In a tactic to recruit and groom, as was mentioned earlier, there is one lever that we must take away from child pornographers and pedophiles.
Since Sharpe's textual child pornography had an introduction, a body and a conclusion, while being somewhat grammatically correct, it was considered to have artistic merit. We have to make amendments to ensure that this does not happen again. One psychiatrist who testified at the trial said it was one of the most violent things he had ever read. Yet someone says there is artistic merit.
People promoting hatred through writings are not permitted to use artistic merit as a defence but child pornographers are. If writings and comics that depict children being stalked, kidnapped, tortured, raped, sodomized, murdered and cannibalized are not hate literature, then what is? If a 14 year old is permitted to consent to being videotaped while having sex with a 40 year old man, how can we as a nation say with a straight face that we care about our youth?
There have been a number of meetings on the Hill with people who fight this vile stuff everyday. They have told us that there needs to be a national task force specifically dedicated to fighting child pornography and the spread of this stuff. They do not have the resources. As was pointed out earlier, there is one case in Toronto that has a whole unit tied up. They have to catalogue every one of the 400,000 images seized in this one case and present them in court. This ties up their entire force. Another 400 cases have been reported but they cannot get to them.
In the cases of drug seizures, a sample is good enough as proof in court. They do not have to bring in the two tonnes of marijuana or whatever. A sample is sufficient. I think simple changes in the law such as that would take a tool away from these people when they came to court to fight these things.
If we want to get into the debate about the technicalities of some laws existing and some not, let us forget about this. This is about parliamentarians, parents and grandparents doing something to protect our children. If we cannot put aside some of these party specific issues and come together as a parliament to do something, then something is drastically wrong.
I want to read some quotes by witnesses that the committee heard a week ago today.
Detective Sergeant Gary Ellis in Toronto stated “Police exist to protect the weak from the strong and right now we cannot do that properly”. I thought that was a little misleading but after thinking about it for awhile, I decided he was right. We have the weak when we speak of our children and they are the most vulnerable people in our society. There is an aspect of that quote and I understand what he was getting at.
Detective Bob Matthews spoke about studies and all of this posturing with no concrete action. He stated “We've educated ourselves stupid on this issue”. I agree with him. We have talked and talked and this issue is still in front of us. Let us bloody well do something to change it.
The Toronto chief of police stated “If we can't protect our children, then we should, as a society, fly the white flag or surrender because all is lost”. I agree with that entirely. If we as parliamentarians cannot do what is right for our children, then we have no business being part of this parliament.
A corporal in Interpol stated “It's an explosion. And these are horrible images. There are kids that have been abused to produce those”. In one instance children were as young as six months old. One person who saw some stuff provided by Interpol said that a baby who still had the umbilical cord attached was being sexually abused. When we think about the degree of heinousness this takes to perpetuate, then we have to do everything in our power to provide protection.
Detective Matthews stated “Canadians produce as much or more child pornography, per capita, as any other developed country”. Our lawmakers are saying this to us and it is up to us to do something to help them.
Mr. Speaker, I will be sharing my time with the hon. member for Pickering--Ajax--Uxbridge. Unfortunately I only have 10 minutes so I will not be able to deal with all the aspects I would like to.
For the benefit of my constituents and others who may be listening I will begin by quoting the motion that has been moved. It states:
|That the government immediately introduce legislation to protect children from sexual predators including measures that raise the legal age of consent to at least sixteen, and measures that prohibit the creation or use of sexually explicit materials exploiting children or materials that appear to depict or describe children engaged in sexual activity.
This is a motion. It is not an amendment to a specific clause of a bill. It is simply an expression of what the mover hopes is the view of parliament. I have absolutely no difficulty whatsoever in supporting the motion. However I qualify my support by rejecting as categorically idiotic any suggestion that the government is dragging its feet, has not protected or is not protecting children, or that anyone on this side of the House is not interested in protecting and looking after children. That is simply not the case. It is a matter of the approach we take to do that.
There are few people currently sitting in the House of Commons who sat on the Horner justice committee in 1993 when it considered the child pornography legislation that is currently in the criminal code. I am one of the few members of parliament who sat on the committee in my capacity as official opposition critic for the solicitor general.
For those who were not here and do not remember the history, the legislation was brought forward by the Progressive Conservative government of Brian Mulroney. It was not the first time he had tried to bring in legislation to protect children and had been attacked by numerous forces saying it was too draconian.
If members think the current legislation is not draconian enough they should put themselves in the context of 1993 when people criticized the Conservative government for making it too strict. There was a great deal of opposition even to the inclusion of written material. The proposal was that the legislation should deal strictly with photographic visual evidence and that written material was not a harm to children and should therefore not be prohibited.
I fought against that. We were in support of including written material. Memory has a way of fading and making one seem smarter than one was, but it is fair to say that if I went back to look at the transcripts I would see I had a problem with putting two things into the legislation: advocating or counselling; and the defence of artistic merit. I will get to both those things in a moment.
In any event, members on this side of the House and I hope on the other side will talk about some of the things the government has done since 1993 to continue to protect children. In the meantime the Sharpe decisions of both the Supreme Court of Canada and the Supreme Court of British Columbia have come down. That means we must revisit the issue and decide what we need to do to plug loopholes.
Let us make no mistake. Loopholes have been imposed by the Supreme Court of Canada which were not contemplated by the legislators who passed the legislation in 1993. I say that as a bald fact because I am one of them.
I support raising the legal age for consensual sexual activity between adults. I want to make that clear. I am talking about consensual sexual activity between adults. The motion says at least 16. I am prepared to consider 18 as the age because it is a matter of empowerment and lack of equal bargaining power. Someone who is not an adult does not have the same mental capacity to make rational decisions as an adult. The adult may therefore be able to take advantage of the child.
We can always come up with examples. Someone may have just had his 18th birthday and had sex with his girlfriend who is two days shy of her 18th birthday. We are not trying to come up with the ridiculous. We are trying to protect children. We must therefore come up with broad strokes that are reasonable to protect those who cannot protect themselves: the children of our country.
I have no difficulty in at least considering the pros and cons of increasing the age of consent not just to 16 as the motion calls for but to 18. We cannot drink in the province of Ontario until we are 19. We cannot vote until we are 18. Why should we be able to have sex at the age of 17 with someone who is 47? It makes no sense to me so I am prepared to consider that. That is one of the things the motion calls for: to consider ideas.
A real problem has arisen with respect to subsection 163.1(1)(b). Subsection 163.1(1)(a) deals with visual depictions of pornography. I am not talking about that. All these horrendous examples we have heard of visual depictions are against the law. Some judges in the country are not giving the kinds of sentences I would give if I were a judge, but that is a different issue. The maximum penalties are there. If we give someone a conditional sentence for the possession or making of child pornography we ought to have our heads examined.
However that is not what we are talking about. We are talking about any written or visual representation of children engaged in sex that advocates or counsels sexual activity. Then there are the defences: First, material does not constitute child pornography if it has artistic merit or an educational, scientific or medical purpose. I will not talk about educational, scientific or medical purposes. However I will talk about artistic merit because that is what Mr. Justice Shaw talked about in the British Columbia case when he handed down the second Sharpe decision.
We must be technical because we are passing laws that would restrict freedom in the broadest sense of the word. We must therefore look at things from a legal point of view.
I will quote Mr. Justice Shaw on the issue of advocating or counselling. He was referring to two things Sharpe had allegedly written. I say allegedly because I do not believe he necessarily wrote them. Pedophiles are notorious for trading things. One of the simplest ways of getting around something like this is for people to take someone else's filth, say they wrote it and claim it has artistic merit.
In any event, this is what Justice Shaw said:
| While Boyabuse and Stand By America, 1953 arguably glorify the acts described therein, in my opinion they do not go so far as to actively promote their commission. The descriptions may well be designed to titillate or excite the reader (if the reader is so inclined) but these descriptions do not actively advocate or counsel the reader to engage in the acts described.
| Nor, in my view, do Boyabuse and Stand By America, 1953 send “the message” that sex with children can and should be pursued. If that were the case, then literature describing murder, robbery, theft, rape, drug use and other crimes in such a way as to make them appear enjoyable would likewise be said to advocate or counsel the commission of those crimes. In my opinion, such literature is not what the “advocates or counsels” requirement is intended to capture.
In my opinion the judge is wrong. He has his opinion. I have mine. How do we deal with the difference of opinion? In my opinion, to use his words, we should change the clause. It should be changed along the lines of what the police officers told us last Tuesday. To the section I have quoted they would add “or a prominent characteristic of which is the description of sexual activity between a person under the age of 18 and an adult, the primary purpose of which is for the sexual gratification of an adult or which poses a risk of harm to a child”.
My 10 minutes is up. That is unfortunate because I wanted to address artistic merit. I hope someone will ask me a question.
Mr. Speaker, I am pleased to speak to the motion today.
I feel a little like an expectant father in the sense that much of this debate today, which is certainly long overdue, hopefully will ultimately create an environment whereby members do not fall on a partisan basis on what is being proposed.
The motion itself deals with the more interesting question of consent which is reflected in the actual decision itself. However most Canadians understand this issue from the perspective of the decision by Shaw in Sharpe number two, the most recent one last month, in which the decision was made based on the judge not finding an advocacy or counselling of child pornography or molestation. The second one, which received wider media attention, was on the more limited subject of artistic merit as a defence.
The motion which comes from the Canadian Alliance does not deal contextually with the concerns that have been expressed readily. We have had some debate over Bill C-15. The member for Scarborough Southwest has made some pretty good comments with respect to Internet service providers and the requirements we are making. The government should be lauded for moving in the right direction.
On April 16, a week ago this evening, as is reported in some of the papers today, a meeting did take place. I note that some of the facts and figures that came out of a meeting with experts on the subject of child pornography have found their way into the speeches of hon. colleagues. It is interesting that those speeches were taken to heart because subsequently there was a commitment made by most of those members to deal with the issues as they were raised and there were some 11, and options.
The first option deals with the age of consent being raised from 14 to 16 while maintaining the close in age exemption. The suggestion was that there be an amendment to section 151 to substitute 16 for 14 but with the qualifier to retain the age of 18 as a consent for trust relationships.
A number of other issues were raised, such as eliminate the defence of artistic merit; determine that child pornography, written or otherwise, is a form of hate crime; and require that written child pornography be found to advocate in sin and counsel sexual activity. There would be appropriate changes for that.
Another issue was that private recordings of lawful sexual activity privately held for personal use would be subjected to a constraint. There would be an option to restrict such exceptions to recordings between persons under 18 not engaged in explicit sexual activity, clearly indicating both knowledge and consent that the activity is being recorded, not kept in a manner where it is capable of distribution to others, and possession is for the exclusive personal use or the person's possession.
There was concern about expressive material in issue number five, which was a clarification or writing of the Supreme Court of Canada.
Concern was raised on another issue and an option that was given about the necessity for police to provide copies of every image seized. It is a little like a drug bust, where one would have to haul in the entire containership as opposed to bringing in a sample. This makes the jobs or resources for police unnecessary and depletes the resources in combating child pornography.
There were other sections that dealt with DNA and other sections that dealt with the issue of a primary designated offence. We were also talking about minimum mandatory penalties for those who commit these kinds of activities.
There was the idea of a national child protection strategy and the concern about, as we saw in the Bernardo case, the re-victimization of certain individuals as a result of permitting the defence an opportunity to see the tapes and having to go through legal gymnastics in order to get the tapes destroyed.
There was also a concern about the retention of information by Internet service providers which I alluded to in my debate last week.
It is pretty hard to argue against a motion in which, as poorly worded as it may or may not be, the intent is correct, that there must be action by this parliament. I said so in a letter to the Prime Minister 45 minutes after the final decision of Justice Shaw.
I was involved with the contemplation of the use of the notwithstanding clause back in 1999-2000 at the first round. I have made a number of interventions on this in a number of different forums. There is a way for parliament to work out the entire issue of child protection in an environment where we can ensure that the maximum degree of protection is afforded our children and yes, not be afraid of using the criminal code to do that.
Before we get to the notwithstanding clause and before we put awkwardly worded questions into law, we must first understand the importance of the issue that the public expects us to address. Very clearly, the artistic merit defence as qualified by the Supreme Court of Canada, as qualified by saying artistic merit however small, should never be used as a sop to ignore the real purposeful risk that exists to children as a result of written information.
Why is that critical? It is critical for one simple reason. The people who look at, purvey and create these images do it so they can suppress the cognitive distortions or use as a distortion but suppress what would otherwise be an affront to most people. It normalizes the degradation, the torture, the raping of children. It allows them an opportunity to fulfill the belief that what they are doing can be vindicated and can be acceptable.
Of course, normal people in society cannot deal with this because the question of the community harm standard was removed. We also know on this issue that short of the community not having a role to play, we were also told that any simple, tiny, minute form of artistic merit would be enough to outdistance and outclass the importance of protecting children.
It is clear to me, and I say so respectfully to the judges, that the Supreme Court of Canada got it wrong. Justice Shaw went even further in a couple of areas alluded to by me and the justice critic for the Bloc Quebecois, as to how there were a number of errors committed in law.
Ultimately, an action plan could contemplate the direction to the B.C. supreme court to at least review and appeal the issue as we did in the case of Marshall and in the case of Askov. We said that the supreme court made a decision and the lower courts got it wrong so we are going to refer it back to the supreme court to give a decision. We could look at that as an option. However, for this parliament not to delve into it and deliberately set itself upon the notion of having to tackle this issue head on, in my view is an abdication of our responsibility regardless of what party or what corner of a province or part of the country we come from.
It is for this reason I have often felt it was important. It was good enough for the premier of Manitoba 24 hours after the decision to ask the federal government to consider protecting the interests of children and not perverts. It was good enough for the province of Alberta and for other others to make the comments. It was good enough for 85% of Canadians to say on the question of written information, they do not believe that the question of expression and the freedom to express it should be boundless.
There is a line that has been crossed here not just on who calls the shots in terms of the laws of this country, but also a determination of the rights of individuals. If we are so willing to give the benefit of the doubt in the most minute form to people to express themselves while completely ignoring the life, liberty and security of the person which are also guaranteed in the charter, then who will speak for the children?
I cannot be more forceful on that point. I do not think there is any relevance in this parliament going forward with other ideas, debates and issues if in the first instance we cannot protect the next generation.
What is some 750,000 images of 10,000 different children, some as young as six months of age in my community in Toronto? That is significant. There are things we cannot correct because they deal with social mores but we can at least take the time to consider options here and now that restore not only the integrity and the confidence the public has in this place and the other place, but also the confidence in the next generation.
It would be helpful if opposition members who proposed the motion would at the very least consider the annoying part that has caused some difficulty over the question of consent. If they could qualify that, as we did in issue number one which was referred to a little earlier, it would be extremely helpful. I think we would find that a lot more members would support the resolution.
Mr. Speaker, I will be sharing my time with my colleague, the member for Port Moody--Coquitlam--Port Coquitlam.
I am proud to support the motion of my hon. colleague from Regina--Lumsden--Lake Centre. I congratulate him for all the work he has done on this urgent and important issue before us. I also congratulate the hon. member for Saskatoon--Rosetown--Biggar for the efforts she has put into the motion and her long term work on this project.
The motion deserves the support of all members and all parties in this place. I am pleading today with members opposite to put petty partisan considerations aside in the interests of our nation's children.
The motion is not about what happens or has happened in the back seat of daddy's Chevrolet. It is not about paradise by the dashboard light. This is not, going a long way back, about Wake up little Susie. This is about what is happening right now on the streets of our cities, large and small, and on the Internet. It is about what could be happening right now somewhere in Canada or being planned right now somewhere else in Canada.
Let me make it very clear to members opposite who have at times been told to oppose anything that comes from any other party in the House no matter how much our country will benefit from its adoption. Let me explain and plead with them for their support. This is about protecting our children. This is about protecting innocent children who should be running around the playgrounds and the playing fields of the country and not being dragged into back alleys or forced to walk the grimy streets favoured and prowled by sexual predators. I am pleading with those opposite, indeed with all members of the House, to stand shoulder to shoulder with us on this issue.
I would say, especially to the member for Pickering--Ajax--Uxbridge and his colleagues who have publicly supported initiatives like this previously, that we welcome their support on the motion. I talked to him this morning and he proposed an amendment that is not quite the one we want yet but I would suggest to him that after question period today we could meet in the lobby behind the seats. We will work with members of that side of the House if there is an amendment that could please everyone because the job here is to work to protect children not to play party politics.
I ask those member to help us send the message that states clearly to those who exploit our children that there is no dark corner, no dirty back alley, no dingy room anywhere in the country where they can hide. We want them to know there is no place in Canada where they will be able to conceal their behaviour. No person in the country will tolerate their presence in our society.
The motion is all about and only about children and protecting them from the dregs of society, keeping them safe from the small but dangerous plague we call sexual predation.
This is a non-partisan issue and a motion that carries the support of politicians in all parties. The attorneys general of the provinces are on record as supporting efforts to combat sexual exploitation of children and the House should be making every effort possible to lead the battle.
We know the police are hindered in their efforts to protect children as young as and younger than 14 who are being coerced into sex with adults. I stress adults here, not two teenagers experimenting but adults who are exploiting. Members might want to remember that we are not talking about experimentation, we are talking about exploitation.
As for the Internet, police estimates are that one in four children have received pornography sent to him or her by an adult. The Internet has become the net that some predators use to entrap children. Police everywhere have said that the Internet is being used to exploit children and people are calling for rules to regulate Internet use.
What we need are laws not rules. We need laws that will protect the children and punish the predators. The first law we need is one that says that a child 16 and under is a child not a sexual play toy for sick and evil adults.
The motion before us is about protecting our children. While many people think the age of sexual consent should be set at 18, the motion calls for it to be at least 16. Support for the motion from all parties and all members will send a clear and unmistakable message to the dregs of society. It will tell them that they are criminals and will be treated as criminals if they exploit children in our country.
I wonder if Canadians or parents fully understand that it is possible for a 50 year old to convince a 14 year old to move into a conjugal relationship and there is nothing at all a parent can legally do to put an end to such an exploitive relationship.
How old is the law that says a 14 year old cannot agree to sex? It is at least a century old. It goes back to when children were treated by society as something their families owned as well as loved.
This is 2002 and it is time we updated the old law. We need to tell the world that Canada regards all the years of childhood as precious, all 16 of those years. Right now, under this century old law, predators have the upper hand. It is not right, not just and cannot be justified.
As one advocate said, “It is illegal to pay for sex with a child but legal if there is no money involved”. Advocacy groups say that they are also willing to support a peer exemption where the age difference is very small. That seems to be all the compromise that is needed.
We have other laws to protect those under and over the proposed age of consent for sexual assault. The motion deserves the support of any hon. member who does not believe that 13 and 14 year olds are mature enough to consent to sex with partners who are years, perhaps decades, older. It deserves the support of any hon. member who believes that no childhood should be ruined by sick and dirty old predators.
I remind all members in all parties that parents across the nation are watching to see what happens as a result of this very well-intentioned motion. If they believe all politicians are corrupt, as we read in the papers yesterday, the motion is a good place to start to persuade them otherwise. Let us work together and vote together to protect our children.
Again I say to members opposite that we will work with them over the next few hours before this comes to a vote. If there is a friendly amendment we can move that will help them along and save children, that is the most important thing. I commit, as Leader of the Opposition, to make that happen this afternoon so children and parents, tonight when they go to bed, will know that Canada is a better place to live in.
Mr. Speaker, I rise today to speak to what has been described by almost all members as a very difficult and troubling subject, the sexual exploitation of Canada's kids.
As the youngest member of the House at 25 years of age, I am proud to be supporting today's Canadian Alliance motion which reads:
|That the government immediately introduce legislation to protect children from sexual predators including measures that raise the legal age of consent to at least sixteen, and measures that prohibit the creation or use of sexually explicit materials exploiting children or materials that appear to depict or describe children engaged in sexual activity.
One of the worst things we do in this society is destroy the innocence of the young before their time. We do it through television, through language, through movies and through our social and moral complacency. Now, sadly, we are doing it through our laws by not using every and all known measures possible to prevent the exploitation of kids.
In 1987 the Progressive Conservative government of the day reduced Canada's age of consent for sexual activity from 18 to 14 years of age. The stated reason for the change was that government did not want to criminalize teens who were sexually active with other teens, not that many if any such charges were ever laid. However, since no restriction on the second person's age was mentioned, the law gave legal permission for fully grown adults to engage in sexual activities with 14, 15, 16 and 17 year olds.
Both the provincial attorneys general in Canada and the Canadian Police Association are in favour of raising the age of consent to at least 16 years of age in accordance with the Canadian Alliance motion. In November 1999, after a decade of seeing the terrible results of having lowered the age of sexual consent, a federal justice department paper recommended raising the age of consent from 14 years old back up to 18 years old.
The report states:
|There will always be some people who seek out vulnerable children to satisfy their own dangerous impulses, frustrations or need to dominate, in spite of the law and the disapproval of the vast majority of Canadian society.
| Immature, inexperienced youngsters are unlikely to have adequate knowledge of the implications and consequences of sexual activity. The relatively low age [of consent] may allow pimps, for instance, to seduce young girls without fear of prosecution, with the intention of luring them into prostitution.
Unfortunately, like so many of the countless reports, papers, recommendations and issue discussion papers that are financed by taxpayers and brought to the government for consideration and attention, this paper was also dismissed.
However a new urgency in dealing with the subject of the exploitation of children was created when on March 26 of this year John Robin Sharpe was found guilty of possessing about 400 photographs of boys engaging in sexually explicit activity but was acquitted on the charges of making and distributing child pornography in the form of his own written work. Mr. Justice Duncan Shaw said that the written works describing sadomasochistic violence and sex with men and young kids is “morally repugnant” but still has “some artistic merit”.
What this means in application is that these writings are now legal and can be published. John Robin Sharpe and others of his perverted sort can now posture as artists and write and publish their most demented thoughts and desires about any sexual act with kids.
In order to successfully prosecute, the police and prosecutors now have to prove that the child pornography in question lacks John Robin Sharpe artistic merit. In other words, the best efforts of our law enforcement community to stop child pornography will be like cobwebs trying to lasso a locomotive; futile.
What a cruel turn of affairs. The decision surprised and disturbed me and countless of my constituents and Canadians. I want to take this opportunity to mention one particular constituent, a gentleman by the name of Doug Stead. I first met Doug by being active in the Canadian Alliance and through a tragedy that happened in his family. He has spent countless hours of his time and countless dollars out of his pocket to crusade and actively get involved. As members of parliament we all get lobbied on countless issues but Doug Stead, on the issue of the protection of Canada's kids, has been so persistent and amazing in providing me information that he really has shown what citizenship in a free country should be all about, when citizens rise up to challenges and frustrations at our system of law. Frankly, it is in large part due to his efforts that the Canadian Alliance is actively pushing this issue here today in the House.
The broad interpretation of artistic merit that was in the John Robin Sharpe case suggests that Canada's legislation has weaknesses that may not allow us to protect Canadian children to the best of our ability. Possessing child pornography is not a victimless crime. It degrades, dehumanizes and sexually exploits kids.
The demand for child pornography leads to its continued production and distribution. To suggest otherwise is naive and absurd.
The idea that possession of one's own pornographic writings is harmless, especially in this electronic age of easy transmission where publication of material on the Internet is difficult if not impossible to control, simply ignores modern realities, as the Leader of the Opposition just said.
Some say we must be careful not to restrict freedom of expression. I say if there is any place that cries out for society to say no, it is in the area of child pornography. I do not accept the concept that people should be free to defile children either physically or in writing. I do not accept the concept that there can be artistic merit in the victimization of children. I also do not accept the concept that the intention of exciting or arousing a passion that is perverted, illegal, immoral and in all fashion and form reprehensible to a civil society is acceptable in any form even if it is based on the rather farfetched notion that the creators of such offensive material will not share with others and will keep it only for themselves.
The protection of society's most vulnerable members is our most important duty and responsibility. Ensuring that our children have the opportunity to be the best that they can be is our primary function. It is only through the protection of our children and the promotion of their successes that we can defend against and defeat so many of the ills that exist in our society, be it poverty, domestic violence or criminal activity, which cost our society enormously both in human and economic terms and serve to clog our courts and prisons.
Unfortunately we are failing at this task. The Progress of Canada's Children in the Millennium report of January 2000 stated that the child sex trade exists everywhere in Canada, from large to small communities. It was estimated there were 100 child sex trade offences every single day in the city of Vancouver. RCMP Sergeant John Ward commenting on the report in the Toronto Star said information about Vancouver's Kiddie Stroll where kids were picked up by adults was now on the Internet, complete with prices, making Canada a tourist destination for the child sex trade.
In November 2000, an international report on child abuse by an organization called End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes, ECPAT, singled out Canada as a haven for sexual predators of children. The report stated that Canada has one of the youngest ages of consent for sexual activity at 14 whereas other countries were raising their age of consent to 18 years.
At one point Canada was considered a global leader in combating the sexual exploitation of children. Regressive age of consent laws, flawed legislation and an overall lack of planning by the federal government are now turning Canada into a venue for the sexual exploitation of kids according to this report.
The motion we are debating today states:
|That the government immediately introduce legislation to protect children from sexual predators including measures that raise the legal age of consent to at least sixteen, and measures that prohibit the creation or use of sexually explicit materials exploiting children or materials that appear to depict or describe children engaged in sexual activity.
This is a step in the right direction to re-establish Canada as one of the leaders in protecting kids. One of the worst things we can do in a society is to destroy the innocence of the young before their time. This is our opportunity to rally together across party lines and move Canada forward.
Abraham Maslow has a theory called Maslow's hierarchy of needs. At the bottom of it, the first need of any living, breathing citizen is the freedom from fear, the freedom from exploitation and the freedom from abuse of other citizens. We have a responsibility and it is the first responsibility of the state. Outside of balanced budgets, an efficient economy, national infrastructure, court or parliamentary system that is functional, the number one responsibility of the state is to protect those who play by the rules from those who do not. It is article one of Abraham Maslow's hierarchy of needs.
This place has failed kids, the most vulnerable of our society. We have failed children. If we were to pass the motion, it would be a step in the right direction. We would walk forward together and say this would not happen any more. We would be united. We would change our laws and progressively move this country forward in a way that would protect our most prized possession, our kids.