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37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, October 7, 2003

0905

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance))

Ms. Carrie Kohan (Co-Founder and Child Advocate, Project Guardian)

0910

The Vice-Chair (Mr. Chuck Cadman)

Dr. Janet Epp Buckingham (Director, Law and Public Policy, The Evangelical Fellowship of Canada)

0915

0920

The Vice-Chair (Mr. Chuck Cadman)

Mr. Russ Hiebert (Legal Counsel, Canada Family Action Coalition)

0925

0930

The Vice-Chair (Mr. Chuck Cadman)

Mr. A. Alan Borovoy (General Counsel, Canadian Civil Liberties Association)

0935

0940

The Vice-Chair (Mr. Chuck Cadman)

Mr. Vic Toews (Provencher, Canadian Alliance)

0945

Dr. Janet Epp Buckingham

Mr. Vic Toews

Dr. Janet Epp Buckingham

Mr. Vic Toews

Mr. Russ Hiebert

The Vice-Chair (Mr. Chuck Cadman)

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

0950

Mr. Russ Hiebert

Mr. Richard Marceau

Mr. Russ Hiebert

Mr. Richard Marceau

Mr. Russ Hiebert

Mr. Richard Marceau

Mr. Russ Hiebert

0955

Mr. Richard Marceau

Mr. Russ Hiebert

Mr. Richard Marceau

Mr. Russ Hiebert

The Vice-Chair (Mr. Chuck Cadman)

Mr. Inky Mark (Dauphin—Swan River, PC)

Ms. Carrie Kohan

Mr. Inky Mark

Ms. Carrie Kohan

1000

Mr. Inky Mark

Dr. Janet Epp Buckingham

Mr. Inky Mark

Mr. Russ Hiebert

Mr. Inky Mark

Mr. A. Alan Borovoy

Mr. Inky Mark

Mr. A. Alan Borovoy

1005

Mr. Inky Mark

The Vice-Chair (Mr. Chuck Cadman)

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Mr. A. Alan Borovoy

Mr. Lorne Nystrom

Mr. A. Alan Borovoy

1010

The Vice-Chair (Mr. Chuck Cadman)

Ms. Carrie Kohan

The Vice-Chair (Mr. Chuck Cadman)

Mr. Russ Hiebert

The Vice-Chair (Mr. Chuck Cadman)

Mr. Lorne Nystrom

The Vice-Chair (Mr. Chuck Cadman)

Mr. Pat O'Brien (London—Fanshawe, Lib.)

Mr. A. Alan Borovoy

Mr. Pat O'Brien

1015

Mr. A. Alan Borovoy

Mr. Pat O'Brien

Mr. A. Alan Borovoy

Mr. Pat O'Brien

Ms. Carrie Kohan

1020

Mr. Pat O'Brien

Dr. Janet Epp Buckingham

Mr. Pat O'Brien

Dr. Janet Epp Buckingham

The Vice-Chair (Mr. Chuck Cadman)

Mr. A. Alan Borovoy

The Vice-Chair (Mr. Chuck Cadman)

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

The Vice-Chair (Mr. Chuck Cadman)

Mr. Kevin Sorenson

Mr. A. Alan Borovoy

1025

Mr. Kevin Sorenson

The Vice-Chair (Mr. Chuck Cadman)

Mr. Kevin Sorenson

Mr. A. Alan Borovoy

The Vice-Chair (Mr. Chuck Cadman)

Ms. Carrie Kohan

The Vice-Chair (Mr. Chuck Cadman)

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

1030

Ms. Carrie Kohan

Mrs. Marlene Jennings

Ms. Carrie Kohan

Mrs. Marlene Jennings

Ms. Carrie Kohan

Mrs. Marlene Jennings

Ms. Carrie Kohan

Mrs. Marlene Jennings

Ms. Carrie Kohan

Mrs. Marlene Jennings

Ms. Carrie Kohan

Mrs. Marlene Jennings

Ms. Carrie Kohan

Mrs. Marlene Jennings

Ms. Carrie Kohan

The Vice-Chair (Mr. Chuck Cadman)

Mr. Richard Marceau

Dr. Janet Epp Buckingham

1035

Mr. Richard Marceau

Ms. Carrie Kohan

Mr. Russ Hiebert

The Vice-Chair (Mr. Chuck Cadman)

Mr. A. Alan Borovoy

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

1040

Mr. Richard Marceau

The Vice-Chair (Mr. John McKay)

Ms. Hedy Fry (Vancouver Centre, Lib.)

The Vice-Chair (Mr. John McKay)

Mr. Russ Hiebert

The Vice-Chair (Mr. John McKay)

Mr. Inky Mark

Ms. Carrie Kohan

Mr. Inky Mark

1045

Ms. Carrie Kohan

Mr. Inky Mark

Ms. Carrie Kohan

Dr. Janet Epp Buckingham

Mr. A. Alan Borovoy

The Vice-Chair (Mr. John McKay)

Mr. Paul Harold Macklin (Northumberland, Lib.)

1050

Dr. Janet Epp Buckingham

Mr. Russ Hiebert

The Vice-Chair (Mr. John McKay)

Mr. A. Alan Borovoy

The Vice-Chair (Mr. John McKay)

Mr. Lorne Nystrom

Mr. Russ Hiebert

1055

The Vice-Chair (Mr. John McKay)

Mr. Lorne Nystrom

Ms. Carrie Kohan

The Vice-Chair (Mr. John McKay)

Mr. Christian Jobin (Lévis-et-Chutes-de-la-Chaudière, Lib.)

Mr. Russ Hiebert

Mr. Christian Jobin

Dr. Janet Epp Buckingham

The Vice-Chair (Mr. John McKay)

Mr. Chuck Cadman

1100

Mr. Russ Hiebert

Ms. Carrie Kohan

The Vice-Chair (Mr. John McKay)

Mr. John Maloney (Erie—Lincoln, Lib.)

Mr. Russ Hiebert

Mr. John Maloney

Mr. Russ Hiebert

Mr. John Maloney

Dr. Janet Epp Buckingham

Mr. John Maloney

Mr. A. Alan Borovoy

1105

The Vice-Chair (Mr. John McKay)

Mr. A. Alan Borovoy

The Vice-Chair (Mr. John McKay)

CANADA

Standing Committee on Justice and Human Rights

NUMBER 066

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, October 7, 2003

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance)): It's nine o'clock on Tuesday morning, October 7, 2003. I'd like to call to order the 66th meeting of the Standing Committee on Justice and Human Rights.

Everybody have your seats, please. We have a full agenda this morning.

This morning we'll continue our consideration of Bill C-20, an act to amend the Criminal Code, protection of children and other vulnerable persons, and the Canada Evidence Act.

For this meeting we'll be hearing testimony from Ms. Carrie Kohan, from Project Guardian; Ms. Janet Epp Buckingham, from the Evangelical Fellowship of Canada; Mr. Russ Hiebert, from the Canada Family Action Coalition; and Mr. Alan Borovoy, from the Canadian Civil Liberties Association.

Welcome to you all, this morning.

For those who are not familiar with the committee, the committee will entertain a ten-minute presentation from each group in succession. I'll let the presenters know when they have one minute remaining. That will be followed by questions from the members of the committee.

Without any further ado, I'll begin with Ms. Kohan, from Project Guardian. Ms. Kohan.

Ms. Carrie Kohan (Co-Founder and Child Advocate, Project Guardian): Thank you.

Hello. I'm the child advocate who founded Mad Mothers Against Pedophiles, and I am also the co-founder of Project Guardian. I'd like to thank the committee very much for allowing me to speak to you on this matter today.

As most of you know, I became active in speaking about this epidemic after our family had a close call with a three-time convicted pedophile back in the spring of 1998. Douglas Arthur Freeman was his name. He was a warrant expiry and he was released back into the public with a psychological assessment report that stated he was likely to offend again.

This was the beginning of my commitment to empower the children of Canada and abroad. And five years later, I've literally worked with over 3,000 families and victims who have been affected by this crime. Because children are not able to be with you here today to speak of their wishes or needs, I'd like to attempt to do so in their place, both as a child advocate and as a mother.

When looking at Bill C-20, I'm pleased to see the government is actually beginning to focus more on the health and protection of children than ever before, and I'd like to congratulate you on taking the steps in creating this long-needed legislation. It truly is a step in the right direction. But because we all share in this plight, we must realize that we have a long way to go to effectively protect the children of Canada from sexual abuse and violent crimes.

Bill C-20 is quite an extensive bill, so I will only touch briefly on a few of the proposed amendments, as follows.

First of all, regarding artistic merit, the argument for artistic merit began long before John Robin Sharpe's case. It actually began on December 21, 1993, with charges laid against a young artist, Eli Langer, and the director of the Mercer Union Gallery, Ms. Sharon Brooks, who displayed Langer's works, which depicted children having oral and anal sex with each other as well as with other adults. This case was successfully intervened by both the CCLA and PEN Canada.

In the CCLA's general council letter to the then Ontario Attorney General, the Honourable Marion Boyd, Alan Borovoy wrote, and I will paraphrase, that because no children were used as models, it was work created by the artist's imagination, so it should not be a criminal matter. Mr. Borovoy added that exposure to this material would not likely influence someone to commit a criminal assault against a child. Well, nearly nine years later we have much evidence to the contrary. Because the precedent established by that case occurred, the law continued to fail the children of Canada over the last decade and it has brought us to where we are today.

It is our understanding that the term “artistic merit” is actually still included under the definition of “public good”, so to replace one term with another really gets us no further ahead in protecting children and instead simply perpetuates the problem.

Canadians want all loopholes closed to ensure children's safety. Given past court decisions and arguments made by skilful lawyers, this proposed amendment in Bill C-20 needs to be clear in its intent and verbiage, because common sense would tell you that there can be no public good served by any form of child pornography, written or otherwise.

Secondly, I'd like to address the amendments made in Bill C-20 for increasing maximum sentences.

As many of you know, Carrie's Guardian Angel bill was a private member's bill that was named after me, and it asked for a 20-year minimum sentence for serial pedophiles. This national request came as a result of the prevalence of lenient sentences for convicted pedophiles in this country.

Evidence from Statistics Canada actually shows that maximum sentences for pedophiles in Canada are not imposed. Increasing maximum sentences do not protect our most vulnerable, because courts continue to impose conditional or other inappropriate sentences for pedophiles because there are no minimum prison sentences for serious offenders.

For example, the maximum penalty for child rape in Canada right now is ten years. However, according to Statistics Canada, the average time served is a measly six to eight months, and that's for child rape, and that is if the convicted pedophile even gets prison time.

According to another 1997 Statistics Canada study, only 60% of convicted pedophiles actually get jail time, which means 40% do not. Instead, convicted pedophiles in Canada get house arrest, and they're told to stay off their computers, or they get community service, and they have indirect access to children once again, and to Canadians. This is outrageous.

As for the age of consent issue, the overwhelming cry from Canadians is to raise the age of consent back up to 16 years of age at the very least. To allow a child who is in grade seven the right to consent to sexual activity with an adult truly is a crime, and is detrimental not only to the health and the future of that child but to the cohesiveness of the family unit as a whole.

Furthermore, because many children at the age of 14 are still pre-pubescent, this low age of consent opens the door to the creation of legal, childlike pornography and allows a 14-year-old child who may have the physical body of a nine-year-old to have consensual sex with an adult. It is absolutely unbelievable that we would allow sexual consent in this country by a grade seven or grade eight child when we consider the life-altering ramifications that can occur with sexual intercourse, such as STDs and pregnancy.

Because of the time available, I am going to skip the comments I had on vulnerable witnesses and go to the final topic, which concerns the issues of technological development and voyeurism. I'd like to combine the two and tell you where the crime of pedophilia is heading.

According to a very recent article, from October 2, 2003—a Reuters article—about Interpol's annual assembly, Interpol police officer Hamish McCulloch stated during his address that Internet pedophiles increasingly crave video images of children being abused and that this could lead to pay-per-view child porn sessions, using web cameras, on the Internet.

Officer McCulloch also highlighted the rise in virtual child pornography that uses advanced computer graphics to create highly realistic electronic images, and he urged countries to make this a crime.

McCulloch added that child pornography is spreading across the world, and the age of victims is constantly falling, with even virtual newborns being exploited or raped online. If you can imagine, this is where we've come to—virtual newborn babies being raped online.

Our Charter of Rights and Freedoms, combined with the absence of tough legislation and successful arguments made by societies such as the CCLA, the John Howard Society, and the defence attorneys' association, has enabled this crime to grow exponentially to a point where Canada has come to be known and advertised on the Internet as a desirable place for pedophiles to live.

It seems that our doors are open for business, our police are left ill-equipped, and our children are left completely vulnerable. Because we all share in this plight, it is our societal responsibility to put children's rights first. It is our duty to focus our efforts not only on the protection of the child, but also to provide, at the very least, the same level of rehabilitation as that provided today to the child rapist while incarcerated.

It is our conclusion that our legislation needs to become tough on this crime. Yes, removing the rights to freedom of the convicted pedophile may seem harsh to the vocal minority, but to the emerging majority it is a logical and necessary step. We need penalties worthy of second thought in Canada, or more specifically we need penalties that will cause pedophiles to have second thoughts about child abuse in Canada, because child rape is a most heinous crime and is deserving of the most severe penalties.

If a child victim who had experienced this crime had the opportunity to sit before you here today, I'm sure he or she would agree with me as well.

Thank you very much.

¿ (0910)

The Vice-Chair (Mr. Chuck Cadman): Thank you, Ms. Kohan.

Now we'll go to Ms. Janet Epp Buckingham from the Evangelical Fellowship of Canada for ten minutes, please.

Dr. Janet Epp Buckingham (Director, Law and Public Policy, The Evangelical Fellowship of Canada): Thank you.

The Evangelical Fellowship of Canada appreciates this opportunity to appear before the Standing Committee on Justice. The Evangelical Fellowship of Canada is a national association of evangelical Christians. Our affiliates include 36 denominations, over 100 religious organizations, and almost 1,000 churches. I speak to you not only as the director of law and public policy of the Evangelical Fellowship of Canada, but also as the mother of two children, one who is twelve and one who is nine. I feel very personally as well these issues of child protection.

The EFC has long been concerned with the protection of the vulnerable, particularly children. We were interveners before the Supreme Court of Canada and the B.C. Court of Appeal in the Sharpe case. We have made submissions to this committee, the Department of Justice, and the justice minister on child pornography, child prostitution, and the age of consent.

Our concern for the protection of children stems from the biblical mandate to care for the vulnerable. In the Bible the people of Israel and followers of Jesus were commanded to care for children. As well, our belief that God has created all people in his image and loves each person is the foundation for our belief in the worth of each human being. Flowing from this is a respect for human dignity, and it is our desire to treat people as persons, not as objects or playthings.

With specific reference to Bill C-20, we applaud the federal government's initiative to protect children. We have been gravely concerned with the B.C. Supreme Court's decision that writings depicting sexual acts with children in the context of violence and torture are legal. We trust that the additional definition of child pornography proposed in Bill C-20 as including any written material the dominant characteristic of which is the description, for a sexual purpose, of prohibited sexual activity with children will provide greater protection to children. We believe this is a reasonable attempt to close the gap opened in the March 2002 B.C. Supreme Court decision.

We support the increase in maximum sentences for child-related offences. We believe, however, that minimum penalties would be more effective than higher maximum penalties. We are pleased that the legislation does away with the artistic merit defence. The new defence of public good, we trust, will send a strong message to the judiciary that this defence is to be applied narrowly. We are pleased that the provision has two parts, so that material that is seen as serving the public good must still pass the test of not extending beyond the public good.

The justice department backgrounder on Bill C-20 notes that the legislation attempts to alleviate the potential trauma of the courtroom experience for young witnesses under 18 by allowing them to use testimonial aids such as closed-circuit television or testifying from behind a screen. We applaud this attempt to facilitate the testimony of child victims and witnesses and reduce their trauma in the courtroom setting.

However, this same legislation that implicitly recognizes the potential for trauma of the courtroom experience for young witnesses in any criminal proceeding establishes the offence of sexual exploitation in which the courts would determine whether a relationship with a person under 18 is exploitative. The courts will examine the nature and circumstances of the relationship, including any difference of age, the evolution of the relationship, and the degree of control or influence exercised over the young person, according to the justice department backgrounder.

Given that it is difficult even for adult women to report and testify regarding date rape, with all the pressures inherent in teen life and the vulnerability of the age we question the wisdom and the prospect of having young teens required to testify about the details of their intimate relationships. This could be further traumatizing for already victimized youth, or ineffective if the youth bypass the process and the offence.

Instead of this new offence, we strongly recommend that the age of consent to sexual activity be raised. The current low age of consent makes Canada open to problems related to child prostitution and child abuse. I would note that the United Nations Convention on the Rights of the Child defines a child as anyone under the age of 18. Just by way of comparison, I'll note that other western countries I think we would identify with have a higher age of consent. For New Zealand and Australia, it's 16; Ireland, 17; Belgium and Luxembourg, 16; England, Scotland, and Wales, 16. In the U.S. the age ranges from 16 to 18, and even France has an age of consent of 15.

¿ (0915)

Sexual activity among young teens can have detrimental physical and emotional effects on the rest of their lives. The physical effects of sexual activity can include sexually transmitted diseases, which can lead to painful medical conditions and infertility and of course pregnancy.

As well as physical effects, sexual activity at an early age can have detrimental emotional effects. Young teens may not have the foresight or maturity in judgment to choose a sexual partner wisely. The breakdown of the relationship or manipulation within the relationship are heavy burdens for one so young to carry.

Many teens also do not seem to be making wise decisions about sexual activity. The statistical report on the health of Canadians indicates that 15- to 17-year-olds, the youngest age surveyed for the report, were engaging in high-risk sexual activity. I won't take the time to detail that now, but we gave a written submission that details some of these high-risk sexual activities.

There is the potential for exploitation in peer sexual relationships as well. As noted in the Department of Justice's handbook on child sexual abuse legislation, the Badgley committee found that three in five sexually abused children had been threatened or physically coerced by their assailants. Young victims were as likely to be threatened or forced to engage in sexual acts by persons relatively close to their own age as by older persons. Youths under 18 years are vulnerable to exploitation by their peers as well as by adults.

For these reasons, we urge this committee to amend this legislation to raise the age of consent to sexual activity to 16 or 18 years of age. This would more effectively protect young Canadians from exploitation than the proposed newest offence of sexual exploitation.

Protecting children means both protecting them from the actions of others and from undertaking serious or dangerous activities before they have obtained the appropriate level of maturity. Other high-risk activities, such as purchasing cigarettes or alcohol, are regulated according to age and prohibited for those in their early to middle teens. Driving a car or joining the military are similarly prohibited for those considered too young. Early sexual activity has the potential to bring devastating lifelong consequences and should be reserved for those of an age to be considered an adult.

We are failing the young people of Canada if we do not provide guidelines for them to protect them from the severe long-term consequences of their actions. If they are too young to make responsible decisions about smoking, drinking, boating, and driving a car, surely they are too young to make responsible decisions about sex.

In conclusion, we are pleased that this legislation takes steps to improve the protection of children in Canada and to reduce exploitation of them. We support the amendments that strengthen the child pornography provisions by adding a new broader definition of written pornography and a more narrow defence of public good. However, we do recommend that this committee recommend amendments to raise the age of consent to sexual activity.

Thank you.

¿ (0920)

The Vice-Chair (Mr. Chuck Cadman): Thank you, Ms. Epp Buckingham.

Now, Mr. Russ Hiebert from the Canada Family Action Coalition.

Mr. Russ Hiebert (Legal Counsel, Canada Family Action Coalition): On behalf of Family Action Coalition, I want to thank you for the opportunity to address you this morning.

Canada Family Action Coalition has long been a leader in pushing for tougher child protection legislation, whether through submitting petitions with half a million signatures in support of prohibitions against child pornography or in having hundreds of thousands of postcards delivered to you MPs demanding mandatory minimum sentences for child sexual offences.

With respect to Bill C-20, let me begin by saying we support those amendments that broaden the definition of written child pornography, the amendments that increase maximum sentences for child-related offences, and those that make voyeurism and the distribution of those images an offence.

We do, however, have serious concerns about this bill. We oppose the creation of a public good defence and seriously question the new exploitive relationship category of offenders. We would also urge the government to do three things: first, to raise the age of consent to at least 16; second, to adopt mandatory minimum sentences; and finally, to include the advertising of child pornography as an offence equivalent in all respects to distributing it. I will now discuss each of these in more detail.

While we support removing or narrowing the artistic merit defence, we oppose the introduction of the public good defence. We believe there is no such thing as a public good when it comes to child pornography because, by definition, child pornography involves those images whose dominant characteristic is depiction for sexual purposes. This is something that Canadians abhor and is something the police and prosecutors have been easily able to distinguish from the innocent pictures taken by parents of their children. There is therefore no need for a public good defence.

We propose that the only credible defence should be for educational, scientific, or medical purposes. If anything, the public good defence is a broader defence that incorporates all of the artistic merit defence and much more. It will make convictions harder to obtain by opening up a host of legal loopholes that can be used to justify the criminal possession of child pornography.

While we applaud the effort to increase the reach of the Criminal Code, it is our belief that the new category of exploitive relationships fails in several distinct ways. It requires an already traumatized teen to testify about the private characteristics of an abusive relationship they deeply regret, and this very real obstacle could easily push these crimes underground as insecure teens avoid the process altogether.

Furthermore, this category is a vague provision that fails to create the certainty of protection that children require. It will therefore not serve as a real deterrent and will simply result in longer trials and more litigation. We strongly believe it would be far more effective to drop the exploitive relationship category and simply raise the age of consent.

According to the police officers working with this on a daily business, raising the age of consent is a matter of urgency. The current law prevents concerned parents, police, and social service agencies from protecting or rescuing boys and girls who are coerced by older teens and adults. Whereas international protocol makes it possible to return a runaway 14-year-old Canadian girl from the U.S. or Mexico within 12 to 24 hours, according to Commander Ross McInnis, who has 28 years experience with the Calgary vice unit, there is nothing they can do to get her back from another Canadian city because of the current age of consent.

Only 18 months ago, 80% of Canadians polled said they wanted to raise the age of consent to at least 16 years. Only two years ago, all provincial ministers unanimously passed a resolution calling on the federal government to raise the age of consent to at least 16. Most western democracies, as mentioned, have a 16-year age minimum and some are even at 18.

There is no excuse for not raising the age of consent. Some claim that raising the age of consent may criminalize sex between consenting teenagers, but this is simply false. The Criminal Code already exempts from prosecution those closely related in age. Furthermore, history shows us that this was not an issue before the age of consent was lowered from 18 in 1987.

Raising the age of consent would send a clear message that Canadian society is committed to protecting our children and that we are opposed to the sexualization of children. It would also provide parents and police a valuable tool to rescue and protect children.

¿ (0925)

This legislation also fails to address serious concerns regarding sentencing for child-related offences. At present, sentences given simply do not reflect the seriousness of the crime. According to Frank Goldsmith of the Ontario Provincial Police porn unit, one of their biggest concerns is the lenient sentencing that is coming out of the courts. The harshest sentence he has ever seen for possession of child pornography is two years less a day, when the maximum for this offence is five years. He views house arrest for pedophiles as a slap on the wrist, while their victims face a life sentence, something they will never, ever get over.

Mr. Goldsmith believes that conditional sentences are a joke. Offenders caught outside of their homes know they can always use the excuse that they are going to work or to school. In fact, Detective Constable Bruce Headridge, the former head of the Vancouver Police vice unit, suggests that conditional sentences have brought the justice system into disrepute. Pedophiles know that our justice system does not view the possession and distribution of child pornography as a serious crime. They read news articles like the one distributed by the Canadian Press entitled “Possession of Child Porn Rarely Nets Jail Time”.

We find it appalling that there are minimum sentences for drunk driving, but none for child sex offences. We therefore propose that mandatory minimum sentences be introduced and that conditional sentences for sexual offences involving children be abolished. Incarcerating those who possess child pornography not only helps protect the other children from harm, it also acts as a deterrent to those considering exploiting children. According to Justice Michael Moldaver of the Ontario Court of Appeal:

Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know they will pay a heavy price.

Some have argued that minimum sentencing simply helps criminals perfect their skills. This is certainly not true for convicted pedophiles, as they are always held in protective custody and never allowed to mingle while in prison. Otherwise hardened criminals who are disgusted by their crimes would harm them.

This is not a petty crime. This is about real children being abused, and we need real minimum mandatory sentences to protect them.

Finally, we propose extending the nature of the prohibited offence to not only include the printing, publishing, distribution, and selling of child pornography, but also the advertising of it as well. According to the police officers I spoke with, and mentioned above, one of the key things that Parliament could do to help them would be to extend the offence to include the advertising of the availability of child porn. Such advertising is a distinct part of the distribution process, but at present there are no restrictions against it. The only purpose for advertising is to facilitate sales and distribution. It logically follows that it should be treated as seriously and carry the same penalty as distribution, as is currently the case in the United States.

While we support some of the steps taken in Bill C-20, we encourage you as a committee to go further and to really protect the most vulnerable members of our society. You can do this by narrowing any possible defence instead of broadening it with the public good defence; by providing mandatory minimum sentences instead of conditional ones; by raising the age of consent instead of pandering to sexual libertarians; and finally by broadening the offence to include the advertising of child pornography. Each of these steps would foster and support the dignity of children and send the message that they are accorded equal protection within Canadian society.

A truly free and democratic society is one that protects its weakest members from the appetites of those who, in the name of free expression, would degrade and harm our children.

¿ (0930)

The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Hiebert.

Last, but certainly not least, Mr. Alan Borovoy from the Canadian Civil Liberties Association.

Ten minutes, please, Mr. Borovoy.

Mr. A. Alan Borovoy (General Counsel, Canadian Civil Liberties Association): Thank you, Mr. Chair.

The issue is about to be joined.

When many people hear the words “child pornography” it conjures images of a real child being unlawfully abused. If this legislation had been confined to situations of this kind, there would be virtually no controversy; there would be universal support for legislation of that kind. But both the existing child porn law and the government's proposed amendments to it go far beyond that. They make it possible to suppress material, fictionalized depictions, that are drawn entirely from the imagination. Among the materials targeted are those that show a person depicted as under 18, depicted as engaged in explicit sexual activity. This is capable of nailing legitimate art.

Consider, for example, the classic painting that shows a pre-pubescent Cupid fondling the nipple of the goddess Venus, or the more modern sculpture of the biblical Lot in a drunken state being straddled by his underage daughter. These rather well-known works of art would appear to fall within the prohibitions of this law.

Just to indicate that these examples are far from being far-fetched, a few years ago—and reference has already been made to this—a young Toronto artist, Eli Langer, was charged with an offence because of drawings of his that were on display in a public gallery. The drawings depicted sexual activity among young people. In our view, it is unacceptable in a democracy for a person to be charged for merely depicting such activity.

Art has to be able to portray evil as well as virtue. The subject matter of art cannot be confined to birds, flowers, and cans of soup; it has to be able to depict the dark side of the human condition, or it's not art.

Just recently you had this young man having to live under a cloud of legal uncertainty for months, about himself and his work. While the crown ultimately withdrew the charge and the court ultimately cleared his work, the difficulty with that is that we shouldn't be consoled. Artistic freedom is undermined not only by the convictions imposed, but also by the charges that are laid, and even those that are threatened.

Perhaps for our purposes here the most significant aspect of the Langer case is that his work was cleared because of the defence of artistic merit--the very defence the government would now replace.

When we mention the practical experience, I call to mind some of the examples our organization cited to the Supreme Court of Canada when the constitutionality of this legislation was being examined. We suggested that a modern classic such as Lolita could run afoul, could be caught by this over-broad definition. It describes the sexual interactions of an adult male with an underage girl. The court's judgment said no, it wouldn't include Lolita, because that piece of work doesn't counsel and advocate this kind of sexual conduct.

¿ (0935)

Now, the amendment before you would no longer make it necessary to counsel and advocate; a mere description would suffice. Yes, there would have to be a sexual purpose, something that's hard to discern but rather easy to suspect. Attributing purposes like that often invites the harassment of those who create unconventional or unpopular material.

Then they talk about the defence of public good. Bora Laskin described it as anomalous. The Supreme Court of Canada has expressed misgivings, and the same court has also held that the comparable term, “public interest”, is unconstitutionally vague. That's what we would be left with if those amendments were enacted.

The problem is that artists and authors have no way of knowing in advance whether these defences would apply. Their safest recourse, of course, is just to avoid the subject matter. That may please some people, but it is hardly a recipe for literary and artistic freedom in a democratic society. One has to ask the question why. Why is it necessary to imperil works of the imagination? What social good comes of this?

Some people claim that there are people who are influenced by exposure to material like this.

A friend of mine I think put it very well, and he answered this. He said suppose for a moment that all material currently defined as “child pornography” were suddenly to disappear from society--what would we expect the pedophiles to do, take up stamp collecting? Pedophiles are likely to remain pedophiles with or without child pornography.

And to whatever extent we want to use a rationale like this, where would it stop? Could it be said that the Jonestown suicides of a few years ago were influenced by some people's exposure to the Bible? How about the copycat crimes that are committed in society? Could it be said that they are influenced by exposure to the television news? Would anybody seriously then say we should censor the Bible or the television news? Of course, immediately people would say they have redeeming merit, and they'd say that rightly. But so does a lot of material that is currently capable of being treated as child pornography.

In conclusion, it is the recommendation of the Canadian Civil Liberties Association that the law be narrowed so that it applies only to material the making of which involved or is held out even to have involved the unlawful abuse of a real child. If that were done, there wouldn't be any need for these defences. Artistic merit, public good, none of those defences could rescue material that was the product of unlawful abuse. There would be no need for it.

In the alternative, we would suggest that you go no further, that you do not adopt the proposals made by the government.

¿ (0940)

I should just add a qualifier I wanted to begin with, but alas at my age my memory fails me, and that was simply to point out that we regret being unable to address many of the other provisions of Bill C-20. The notice we got for this meeting came rather late, and we haven't been able to do as much homework as we normally do and usually like to do.

In any event, if you have questions relating to those, we would take them under advisement and try to respond to them, if not today, at a subsequent occasion. All of which is, as always, Mr. Chair, on behalf of the Canadian Civil Liberties Association respectfully submitted.

Thank you.

The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Borovoy.

I'd like to thank all the witnesses and commend the witnesses. Everybody stayed pretty well under the ten minutes, which is nice to see.

Now we'll proceed to the open round of questions, a seven-minute round. I'd ask the members to be just as judicious with your time as the witnesses were in their presentations, because I think there are a lot of people who want to get on the record here.

Mr. Toews, seven minutes please.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much, Mr. Chair. I want to thank the witnesses.

Certainly there's much to consider, much to think about. I do, however, have some problem with the call that we should somehow excuse virtual child pornography from the scope of the Criminal Code. I find it surprising that we should be asked to legalize virtual child pornography. I don't think any of us here would allow virtual exploitation of other minorities in this country. We wouldn't allow graphic depiction of racial minorities being abused; we wouldn't allow it of women; and yet here we're being asked, when it comes to our most vulnerable minority, to allow virtual exploitation of our children—our most vulnerable minority.

Are people influenced by this material? I think the last nine years have demonstrated clearly that child pornography does influence behaviour very significantly. Police and other recent evidence clearly shows the pernicious influence of this material. Child pornography is in fact used to groom children to make them think this activity is somehow normal.

As for stamp collecting for pedophiles if they didn't have child pornography, I say let them collect stamps and let them collect them in a prison cell. They'll have lots of time to write letters. I have absolutely no sympathy for child pornographers who can't get their hands on child pornography.

Moving on to some of the recommendations, I note the three presenters other than the Civil Liberties Association have reiterated a call for mandatory minimal sentences, expressed concern about the public good defence because it essentially incorporates the artistic merit defence within it—and we heard the minister say as much in earlier testimony—and raised the issue of the exploitive relationship.

I find this new offence very puzzling. Here we have a crime that will be very difficult to prove as a prosecutor. I know the difficulties, and some of those difficulties were alluded to—the difficulties adult women have in expressing themselves in the context of a court. Now we're asking children between the age of 14 and 18 to describe the nature of their relationship.

I find it odd that we're creating a crime that deals with an exploitive or trust relationship, and yet if a stranger were to pick up a 14-year-old girl.... Let's say you're down at the beach with your daughter, and your daughter is 14 years old and is picked up on the beach by a stranger—a 27-year-old man, or a 30-year-old man, or a 40-year-old man—and has sex with that individual. There's no crime, no law against it. It's only a crime if it's your teacher who does it.

It is absolutely astounding. And what I hear from some of the testimony is that we have a 14-year-old girl, let's say, or a 14-year-old boy, for that matter, in another city being exploited by an adult male, and there's no law that can bring the child back under our Criminal Code. I find that astounding.

I notice the EFC indicated a minimum of 18 years. You've also indicated a range between 16 and 18 for other western democratic societies. Do you know why Canada has such a difficulty creating a minimum of at least 16 years, never mind 18--and would you be satisfied with at least 16?

¿ (0945)

Dr. Janet Epp Buckingham: We would be very pleased to see the age of consent raised to any extent. We have put in our materials 18 because that is the age to which you're considered to be a child under the UN Convention on the Rights of the Child. But many western democracies have 16 or 17, and we think it would be of great assistance even to go to the age of 16. It would be a help. But 14 is just too low.

Mr. Vic Toews: Are you aware of any civilized western democracy that has an age of 14?

Dr. Janet Epp Buckingham: There are other countries that have low ages as well, but the ones I identified in my presentation are ones I think Canada would identify with, and they all have a higher age.

I don't know why Canada has 14; it does seem a bit unusual.

Mr. Vic Toews: I'm just a little concerned, then. I'm talking now to Mr. Hiebert. If you could talk a little bit more about the advertising of child pornography, does any other country prohibit that type of advertising?

Mr. Russ Hiebert: Yes, the United States has the same restrictions for advertising as they have on the distribution of child pornography, and it's for a very good reason. What other point would there be in advertising if it weren't part of the process of distribution? They see it as an equivalent offence.

The police I spoke to, particularly those of the Ontario Provincial Police Project P unit, which is the vice unit that deals with these issues, said that at the present time they can't prosecute people who advertise openly on the Internet that they have this material for sale. They literally have to use public money to go out and buy the material, and if they are successful in purchasing it they are then in a better position to prosecute these criminals. They think it's appalling that just south of the border simply advertising that you have it available for sale is an equivalent crime and that it's not the case in Canada.

The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Toews.

Monsieur Marceau, you'll have seven minutes, please.

[Translation]

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

I would like to thank our witnesses for having presented their views. You defended your positions very eloquently.

My first question is for Mr. Hiebert. You said you would like to see the public good defence replaced by the defence based on education for scientific or medical purposes. For instance, a psychiatrist who is treating pedophiles could keep in his practice, for purposes of research or for the treatment of pedophiles, child pornography, to help treat that type of mental illness.

¿ (0950)

[English]

Mr. Russ Hiebert: Yes, that would be one example. Another example would be the child porn unit I just referred to where they have to use this material to educate the police force as to what qualifies as child porn and what does not.

I think this speaks to the comments of Mr. Borovoy, in the sense that prosecutors and police have done a very good job of distinguishing between what is child porn and what is not child porn. The definition itself provides us with an example that the dominant characteristic is that it is based on the depiction for sexual purposes. They use this material you're referring to as an example: “This stuff here is a depiction for sexual purposes; this is what we consider to be crime and to be illegal to possess. This stuff over here, on the other hand, is art and is beyond the call of the law.” That's one example.

Another example would be a medical doctor who performed different sorts of procedures on these areas and would also have to have depictions of them.

[Translation]

Mr. Richard Marceau: I take it that when you refer to the police, you include that in education.

If the public good defence were replaced by the types of defence you gave, what other types of defence would that exclude, which would now be included in the public good defence? The public good defence is quite broad. If you reduce it to the defence based on education, scientific or medical research, that would exclude certain other things from the defence. What would these things be?

[English]

Mr. Russ Hiebert: Are you asking me what scientific purposes?

[Translation]

Mr. Richard Marceau: No. You claimed that the defence should be limited to the purposes of education or medical or scientific research. What is the difference between what you are suggesting and the defence based on the public good?

[English]

Mr. Russ Hiebert: We suggest that the public good defence is far broader in scope than limiting it to the educational, medical, or scientific purposes. I think it's not beyond the imagination of a judge in this country to think there are any number of public goods that could come from this sort of thing. We simply don't believe we should leave it to them or that we should provide them with such a broad interpretation or give them the latitude to have a broad interpretation of the law. It is Parliament's responsibility to concisely define this issue.

[Translation]

Mr. Richard Marceau: What happens when a person has fairly twisted sexual fantasies involving children and writes them down in his diary? If the person writes down those fantasies for himself in his own diary, which he keeps on his night table, could this person be charged with possession of child pornography?

[English]

Mr. Russ Hiebert: Yes, they could, and for a good reason.

Let me draw to your attention Dr. Peter Collins. He is the expert forensic psychiatrist with the Ontario Provincial Police Project P unit. He also testified at the Supreme Court of Canada in the Robin Sharpe decision, and he makes the following points. There are dangers posed by child pornography, by even the simple writing or possession you're referring to. It does three things.

First of all, it reinforces a cognitive distortion within pedophiles and it lends them psychological support to a pedophile's belief that sexual encounters with children are normal and healthy. That's the first element.

Second, it fuels the sexual fantasies of those who possess it, even the person who's simply writing about it in their journal at night. This is what it's doing to them—it's fueling this desire to have a sexual encounter with a child.

Third, it can be used by pedophiles to groom children if it was to then be distributed. But one more point: Chief Justice McEachern of the British Columbia court also made the point in the court of appeal decision in Sharpe that the simple possession of this kind of material, whether written or depicted, can also fall in the hands of other people, even if not intentionally, and then be used to do these things Dr. Collins is concerned about.

¿ (0955)

[Translation]

Mr. Richard Marceau: Doesn't that come down to criminalizing a person's thoughts? Instead of keeping his fantasies in his head, this person may want to write them down in his diary, and never intend to act upon them and involve a child. This person may have had a dream and may write it down. At first glance, that seems very close to criminalizing a person's thoughts.

[English]

Mr. Russ Hiebert: People are free to think whatever they would. What we are concerned about is when this is substantiated, when it's created into a form that can be distributed, that can be referred to frequently, that can be passed on to children to try to groom them for these kinds of activities.

You're asking me questions about basically the whole debate between the artistic defence and the practical needs of society. Let me ask you this question. How do you think the artistic needs of artists compare to the real harm inflicted upon innocent boys and girls? I'm not here as an advocate for the artistic community, although I deeply appreciate art. I think what this committee needs to do is to look beyond the subjective needs of the artistic community, which are very real, and look to the heart of the matter.

[Translation]

Mr. Richard Marceau: I was not referring to art in this case, but to a person who writes a personal diary at night which he keeps in his night table. I wasn't referring to art. That position comes pretty close to criminalizing a person's thoughts, thoughts which would otherwise not lead to any concrete actions except for those involving a page being written in a diary which is kept in a night table. I just want to be clear, I am not referring to art here.

[English]

Mr. Russ Hiebert: In response, I think Dr. Peter Collins has the best answer to that question--that is, simple possession of that kind of material, even if it's not on display, does things to these people. It reinforces their belief that sexual relations with children are normal. He mentions the reinforcing of the cognitive distortions of pedophiles. That's what it does, and this is a harm to our society to have people who are experiencing this reinforcement, because they live in our society and they could some day simply decide to enact that.

The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Hiebert.

Mr. Mark, seven minutes, please.

Mr. Inky Mark (Dauphin—Swan River, PC): Thank you, Mr. Chairman.

Welcome to the committee to our witnesses, and thank you, as well.

This bill actually is called “protection of children and other vulnerable persons”, and at least three of the witnesses indicated that the core issues of their bill, as they see it, are age of consent, the public good defence, and minimum mandatory sentencing. If the bill is labelled as protection of children and if these areas of amendment you see as necessary, what is your opinion on this bill? Is it worth its weight in paper if you don't get these amendments into the bill? Maybe the three of you could respond to that.

Ms. Carrie Kohan: As we've said, I think it's a step in the right direction, definitely, but it has a long way to go. For instance, the age of consent--

Mr. Inky Mark: Would you be happy without the amendments, without any of the three areas amended?

Ms. Carrie Kohan: We would certainly like to see the age of consent up to 16 at the very minimum. I have done radio talk shows from coast to coast and literally I have not heard one Canadian say that they're pleased with the age of consent where it is at. Absolutely every single person who has called in has said they wanted it raised.

Perhaps what we should do is look at a referendum on this issue, make it attached to the next election ballot, as they do in the States. It is such an important issue that I think it would be the responsibility of the government to actually hear from Canadians on this issue. Actually in response to the radio talk shows, as I said, the overwhelming response will be at least 16, if not 18 years of age. It's a necessary step.

I also am very pleased with what you've proposed with protection of children in the courtrooms, but I also believe that it should go one step further. Rather than just screens in the courtrooms, what I've heard again from the majority of Canadians is that they don't want the accused to be in the same courtroom as the child who is testifying. With technology today, with closed circuit TVs, and with an understanding of this crime, I think it's necessary to actually put the accused, the pedophile, into another room, where they can watch the entire hearing. The old argument of the accused has a right to face his or her accuser no longer applies with today's technology. The physical aspect of it no longer applies, at any rate, because it can be accomplished through closed circuit TV and other technologies.

We would actually like to see that aspect, and perhaps even go one step further than that and digitalize the child's voice, because from our understanding of this crime and the fantasies that occur with the pedophile, to have a young child victim, a sweet little voice describing what the accused possibly has done to him or her, that would perhaps feed into or fuel the fantasies of the pedophile. To make the voice of the child monotone, computer-altered digitally, would certainly nullify or reduce the possibility of fantasies of the pedophile, because no longer would he actually be hearing and rehearing the voice of the young innocent one describing the acts.

À (1000)

Mr. Inky Mark: Janet, would you be happy if no changes are made to the bill?

Dr. Janet Epp Buckingham: We do see some very valuable things in the bill. We do see it as closing some loopholes created by the courts in the child pornography cases coming out of B.C. We simply don't think that the child sexual exploitation new criminal offence is going to be effective, and we would like to see the age of consent increased. But we do see the importance and value of tightening up the loopholes on the child pornography provisions.

Mr. Inky Mark: Russ.

Mr. Russ Hiebert: I think the legislation, as it stands, is an incremental step in the right direction. It's a very small step, however, and we would much prefer if some of the recommendations that you've heard from us this morning were incorporated into this legislation. Otherwise it's not really adding that much.

Mr. Inky Mark: Mr. Borovoy, I appreciate your position regarding free speech. Even though you indicate that the courts are not too exact in terms of what “public good” is, is it possible to define what “public good” is, and then to put it in a manner to protect artistic and creative merit?

Mr. A. Alan Borovoy: I'm not sure whether you'll ever come up with a definition that will be satisfactory. Of course, if you were to adopt the wisdom of the Canadian Civil Liberties Association, you wouldn't need it, because you then would confine the scope of the child pornography offence to situations where real children were being abused, or where the material held out that real children were being abused, and we wouldn't need to worry about those defences.

Without offending the species I'm about to refer to, it would be a dog's breakfast to attempt to define the “public good”. Indeed, if you look at some of the jurisprudence, you'll see that judges over the years have had an awful time with it, and they have said so, including no less, of course, than Bora Laskin.

Mr. Inky Mark: Should we have legislation that promotes the protection of artistic merit, apart from this legislation?

Mr. A. Alan Borovoy: We should certainly protect artistic merit. But we objected even to that, because while it's better to have artistic merit than not to have it, it is such an exercise in subjectivity. Whose taste buds are going to prevail? Even if you were to trust judges and juries, what about police officers and customs officials? Who would be the first to admit that this is not offending them? They would be the first to admit that artistic judgment is not their forte.

À (1005)

Mr. Inky Mark: Thank you.

The Vice-Chair (Mr. Chuck Cadman): Thank you.

Mr. Nystrom, seven minutes, please.

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): My first question is for Mr. Borovoy. I wanted you to have the opportunity to respond to what Mr. Toews was saying about the comments you made about the unlawful abuse of a real child. He was talking about the virtual abuse of a child as well.

I'm a great admirer of yours, and of the work of the Civil Liberties Association, and I think you should have a chance to respond to that.

Mr. A. Alan Borovoy: Thank you. I was afraid you'd never ask.

On his discussion of virtual pornography, you may recall I said that as far as we are concerned, the law could apply both to where a real child is being abused and to where the material holds out as though a real child were abused. It could apply to both.

When he went beyond that and said what if it was a member of a minority group being abused, would we allow that, I'm sorry he's not here, but I'm sure he has seen pictures of blacks being lynched in the southern United States. Is anybody going to suggest for a moment that because we feel for the interests of those blacks that art shouldn't be portraying things like that? That of course goes back to my earlier comment that art has to be able to portray evil. It cannot be confined to the portrayal of virtue.

There was one other thing about using this kind of material to groom children. Of course candy is also used to groom children. They tell me, although I don't profess to be an expert in this, that some of the catalogues also are used to groom children. Nobody would suggest outlawing those, of course. It gets silly. There's no way you can deal with all of the aids that a pedophile with ingenuity may invoke against a child with naïvety. Of course these things would happen.

Mr. Toews said he hopes the pedophiles do take up stamp collecting. This is one area where his question and my answer will concur. I too hope they take up stamp collecting. The problem is, however, that with or without child pornography they're not going to take up stamp collecting. This kind of legislation simply cannot address that issue, and we should stop trying to make it so, because we're going to damage other important values in society with the effort.

Mr. Lorne Nystrom: I want to ask you a follow-up. It has been suggested that a panel of recognized experts from the artistic community should decide if an object has artistic merit or if it advances the field of art. There has been the suggestion made that there should be a panel. Would this be a better way of defining what is in the public good, or is that something we should also leave aside? That's come as a suggestion to us from the artistic community.

Mr. A. Alan Borovoy: I'm not in favour of that, because that again assumes one person's taste buds ought to prevail over another's. In a free society, that ought not to occur. Where we are concerned about the protection of children, our efforts should be confined to those things that demonstrably are hurting children, not to art or depictions of these things that go far beyond that.

Incidentally I hear some rather facile references have been made to, oh, well, we all know that this material has influenced people to commit these offences. If one looks at the social psychology literature on this, we hear that this is precisely what we don't know. Indeed, even the Supreme Court of Canada has acknowledged that this is something we simply don't know. The evidence demonstrates no such thing.

To whatever extent we use that as a rationale, then I go back to the situation at Jonestown a few years ago, or Waco, Texas—sometimes I'm impelled to call it wacko Texas. Are we going to therefore suppress whatever material may have influenced some distorted minds? We cannot sanitize our society or regiment our society in that way and still hope to have a free society.

À (1010)

The Vice-Chair (Mr. Chuck Cadman): I believe Ms. Kohan wanted to make a comment, Mr. Nystrom.

Ms. Carrie Kohan: I would like to respond to Mr. Borovoy's comments about some people's taste buds would then prevail over others. It works both ways, because what in essence he is asking is for the general population's taste buds to be suppressed because of what they—the civil libertarians and other minority groups—would like to see.

It is our opinion that whenever you give rights to one certain group, you automatically take rights away from another. So when we give certain rights to pedophiles or to what you would call art and we would call child pornography, you automatically take rights away. In this case they are rights taken away from the children—from their rights to freedom, their rights to privacy, their rights to protection.

I would ask you to open up your vision and realize that by asking us to suppress our taste buds, it is not serving the public good by any means.

The Vice-Chair (Mr. Chuck Cadman): Thank you.

Mr. Hiebert, do you want to comment?

Mr. Russ Hiebert: Yes, I also want to comment with respect to Mr. Borovoy that contrary to what he said, the Supreme Court of Canada did accept the evidence I mentioned earlier by Dr. Peter Collins on the effects of this material on pedophiles. They did accept that evidence in the Sharpe decision.

I also want to distinguish his example. He mentions that the artistic images of horrific crimes are things that in art we should not suppress, because they teach us lessons. I firmly agree with that. I firmly believe that we shouldn't be suppressing those kinds of images, but I also firmly believe that those images do not feed the appetites of sexual predators like the sexual images that we're talking about here at this table. From my understanding, there is no psychological bent to looking at pictures of genocide that inspires these people to then commit those same crimes, when we know that this is the case with child pornography.

The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Nystrom.

Mr. O'Brien, seven minutes, please.

Mr. Lorne Nystrom: Do I have one minute to ask Mr. Borovoy to respond?

The Vice-Chair (Mr. Chuck Cadman): We can come back.

Mr. Pat O'Brien (London—Fanshawe, Lib.): Thank you, Mr. Chairman.

I would like to hear his response, so I'll ask the question.

Mr. Borovoy says art has to be able to portray evil and Mr. Hiebert has just agreed with that. I certainly would agree—whether it's pictures of the Holocaust, World War II, the very unnecessary and artificial famine in Ireland in the 1840s, which I have studied a lot. Obviously art has to be able to portray evil, but surely that's open to abuse.

I'd like to give you the opportunity, Mr. Borovoy, because I thought Mr. Hiebert's comments were pretty right on. I'd like to hear your point of view.

Mr. A. Alan Borovoy: Could I ask you just to crystallize the question, because I'm not sure exactly what you're asking me.

Mr. Pat O'Brien: I think there's general agreement in our society that art does have to be able to portray evil, but surely that's open to abuse when we're talking about crimes of pedophilia and the comments Mr. Hiebert just made, vis-à-vis the Supreme Court's judgment.

À (1015)

Mr. A. Alan Borovoy: Everything is potentially open to abuse. Both you and Mr. Hiebert have talked about other crimes that are portrayed. Why can't one just as readily assume that people looking at acts of murder will be tempted to commit acts of murder? Why doesn't that follow just as much as being exposed to this will predispose people to act on it?

Mr. Pat O'Brien: Following that up, I guess I would ask you this then. Apparently there's evidence that exposure to pedophilia entices some people to commit that crime. What evidence do you have that looking at crimes of murder entices people to commit murder?

Mr. A. Alan Borovoy: I would suggest to you that it is being awfully selective. But let me take it a step further. You talk about the evidence. I will cite the case for Mr. Hiebert where the Supreme Court of Canada acknowledged that the evidence does not demonstrate it.

Moreover, I will cite to you the social psychologists, such as Donnerstein, whom a lot of people relied upon, who said that, and Jonathan Freedman at the University of Toronto, who did an exhaustive study of the literature and said that whatever else you want to say about the subject, we have not been able to demonstrate a causal connection between exposure to this material and the acts you're concerned about.

Mr. Pat O'Brien: Thank you, sir. I'm hearing conflicting evidence, and I guess we'll need to explore that further.

I'd like to ask Ms. Kohan, with your knowledge in this field, why do you feel that sentences are so lenient? What's the answer? Is it training for judges in the system? Is it adequate? Why is it so pathetically lenient?

Ms. Carrie Kohan: Like you say, it is “pathetically lenient”.

We actually have a case in Ontario right now where Judge Schneider is suing a local DJ for $3 million because the DJ had said that the judge himself, or his judgment, was a disgrace to the justice system, actually reiterating the exact words that I hear daily. So we are in a situation where judges can actually sue the public for saying these decisions are disgraceful, yet we don't have the opportunity to sue a judge if he or she makes a decision that has detrimental ramifications by putting a pedophile back out on the street and causing more cases.

Going back to your question, as I said, Statistics Canada shows that the average sentence is six to eight months served, when we have a maximum of ten years. When you look at the United States, sentences there can be 150 years, and we've recently seen 1,300 years in a case out of California. So when you look at the two countries, it is six to eight months versus 150 years, because the U.S. has consecutive sentencing. So pedophiles would certainly be attracted to Canada for that very fact alone, because we are so lenient.

I talked to Mr. Wayne Easter about training judges. That was one of the subjects that came up with him, and definitely would be something we would be in favour of. I would like to see dedicated courtrooms specifically for child sexual abuse cases, where not only the judge is trained, but also the court room staff are trained. That way it would be a much faster process; you're not waiting years and years, because it does actually speed up when you have the dedicated staff. As well, there's a higher conviction rate; we've seen that with dedicated spousal abuse courtrooms, because the evidence is fresher and there is a quick response.

So dedicated courtrooms is one of the solutions we can look at. That way, we don't have judges from across the country making decisions that are, number one, set on precedents. We know that civil law is set up to be based on precedents; we're looking at previous cases. We've seen cases where a judge has given eight years for what other judges have been giving two years less a day. So once it gets to appeal court, it's then reduced, of course, because of precedent.

The only way to change it, I believe, is minimum sentencing. You have to decide, as a committee, what you think is the least amount of time that would be prudent for a pedophile to serve. For me personally, I think it's twenty years, because at least that way you have one full generation that will be protected from a serial pedophile. I'm talking about a Karl Toft, or a number of them that have had repeat cases, or used a weapon, or have joined with others in raping a child or many children. So that would be the other aspect as well.

À (1020)

Mr. Pat O'Brien: Mr. Chairman, if I still have some time, I would like to ask Ms. Buckingham about this fixation about private works and the writings of people in their journals. I've heard that before, and it's been raised today by a colleague.

In practical terms, what is the problem there? I don't see the police kicking in the door to look at my private journal, so where does this fixation come from?

Dr. Janet Epp Buckingham: Unfortunately, we seem increasingly to be looking at examples or theoretical possibilities that aren't being raised in court. As far as I know, we've never had a situation where somebody has been charged with a child pornography offence, or any offence, for private writings.

Mr. Pat O'Brien: Has there never been a case where someone's been charged?

Dr. Janet Epp Buckingham: No. So I don't think it's appropriate to make laws based on things that are theoretical possibilities. We need to make laws for what we know is happening. If these issues come up in the future, then I'm sure that courts will deal with them. For example, in the Sharpe case, the Supreme Court of Canada became quite fixated on this idea of private journals, when that was not before the court.

When you hear from the police, I think they will indicate to you that they're inundated with horrific child pornography right now. They are not worried about people's private journals.

The Vice-Chair (Mr. Chuck Cadman): Thank you very much.

Mr. A. Alan Borovoy: May I just respond in this way? Whether or not the court did have a question before it, what the court had before it was the constitutionality of the legislation, which was broad enough to suppress such material. That's why the court addressed it.

The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Borovoy.

Mr. Sorenson, three minutes please.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Again, thank you all for coming, and I appreciate all four witnesses this morning. We know the work of the Evangelical Fellowship of Canada and Carrie and Russ. And Mr. Borovoy, this is not the first time you've been here, and you're very good at bringing forward your position.

I want to go back to what Mr. Nystrom asked about whether you would be in favour of a panel of artists to determine the artistic merit. I want to put a little different twist to it. Defence attorneys thrive on technicalities sometimes, and many times on inconsistencies in law. They can perhaps use public good to throw into question the intent or the motivation for how something was written or drawn or depicted. Would you agree that the material in question, if the public good defence is going to be used, should be assessed—and I would suggest by the courts when they make a decision—as primarily, unquestionably, having public good so overwhelmingly evident that it would be so clear that public good was being served and not sexual, I don't know, I hate to say, deviation, but that the material would not be illegal sexual material?

Should we make the court assess whether this is primarily public good or primarily pornography?

The Vice-Chair (Mr. Chuck Cadman): Who was that addressed to, Mr. Sorenson?

Mr. Kevin Sorenson: Any one of them. All of them.

Mr. A. Alan Borovoy: There was a judge many years ago who wrote about the quagmire of mixed motives. I don't think that reality admits of those nice distinctions.

Incidentally, just about the issue of having a panel of artists judging artistic merit, I suppose if I were pushed, I would have to acknowledge that that might be less bad than having some police officers or customs officials making that judgment, or perhaps even a court. What we object to is using those as criteria to judge fictionalized depictions emanating from the imagination. There's no reason to do that.

À (1025)

Mr. Kevin Sorenson: Can I also ask one question here? I only have three minutes.

Mr. Marceau and I were discussing who would write down in their diaries depictions of sexual activity with children and all that. If the material that is being in question before a court, if that individual also has pornography in his possession, could we throw out the public good for that one piece of evidence that perhaps he wrote or drew? Do you understand what I'm saying? Basically what I'm saying is we're told by the police that they have to go through each depiction of art or pornography, each one, and that is brought before the courts. Now, if this piece of evidence, say in the Sharpe decision, if they did bring some of his writings, but we also know that he had a mountain load of pornography--

The Vice-Chair (Mr. Chuck Cadman): Mr. Sorenson, your question.

Mr. Kevin Sorenson: That's basically the question. Can we convict based on the fact that he also has other pornography in his possession?

Mr. A. Alan Borovoy: Do you mean if he committed a murder or if he committed a robbery, can we convict him of murder? I'm not sure if that's what you're asking me, but if it is, I suppose my response indicates where I would stand on that. I'm not sure if I understood your question adequately.

The Vice-Chair (Mr. Chuck Cadman): I believe Ms. Kohan wants to comment.

Ms. Carrie Kohan: As far as the panel goes, in an idealistic world, we would think common sense would prevail, and especially on a panel. When we look at past court decisions, and the Eli Langer case especially, these were images of children having oral and anal sex with each other and with adult males. For a court to actually say that this should not considered to be child pornography and for the majority of the art to be returned to him and the charges dropped, to us, common sense obviously did not prevail. Perhaps the panel would help that. But I think even more so, it is the responsibility for you as a justice committee to actually tell the judges, tell the community what it is that you define child pornography to be.

The Vice-Chair (Mr. Chuck Cadman): Thank you, Ms. Kohan. We'll have to move it along.

Ms. Jennings, three minutes please.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you.

Thank you very much for your presentations.

I just have two questions. One is that Mr. Hiebert and the other witnesses have used, for instance, the United States as an example of a higher age of consent, criminalizing advertising the availability of child pornography, minimum mandatory sentences. Would I be then correct in assuming that because the United States or some of the states in the United States have some of the criminal provisions that you would like to see included in Bill C-20, they have shown a lower rate of sex offences against children and lower rates of recidivism among sex offenders? That's my first question.

My second question is directed to you, Ms. Kohan, when you said that you operate on the principle or you believe that when you give rights to one group, it means you're automatically taking away rights from another group. Am I then to conclude that by having given the right to vote and civil rights to visible minorities like blacks in the United States, somehow took away rights from whites, or giving the right to vote to women somehow took away some rights from the male gender of the species?

À (1030)

Ms. Carrie Kohan: That's a very good point.

Mrs. Marlene Jennings: I think so.

Ms. Carrie Kohan: I'll go with the latter one first, because when we gave women specific rights or ethnic groups specific rights, I think we had such an inequality within our system that it was necessary. We're at a point now, though, that I believe in human rights. I believe that children, blacks, whites, Chinese, Japanese, whatever colour, whatever ethnic group, whatever sexuality you come from, whatever background you have, you should have basic human rights. When we give specific rights to women, we then effectively take rights away from men.

In this case, we certainly are taking rights away from children when we give specific rights to pedophiles.

Mrs. Marlene Jennings: That's circular argument, because when you recognize the rights for women--

Ms. Carrie Kohan: No, I don't believe so at all.

Mrs. Marlene Jennings: --you're recognizing basic fundamental human rights.

Ms. Carrie Kohan: Absolutely. But I think that you can have basic fundamental human rights as a human being, period. You don't have to be a woman to have those rights. I think you can be a woman, a man, a child, whatever it may be.

Your other question, regarding the....

Mrs. Marlene Jennings: Whether the United States has been able to show that by having some of these provisions that you're advocating be included in Bill C-20--

Ms. Carrie Kohan: I've often thought about that question.

Mrs. Marlene Jennings: --they have lowered the rates of sexual offences against children, with the result of reduced potential harm to children, and secondly, of those who are in fact found to be sex offenders, they have lowered the rate of recidivism--

Ms. Carrie Kohan: In the United States, there was a magazine--

Mrs. Marlene Jennings: --by having provisions that you're advocating here.

Ms. Carrie Kohan: They have a lot of the provisions, including civil commitment.

Mrs. Marlene Jennings: But do they have lower—

Ms. Carrie Kohan: I'm going to get to that.

They have civil commitment, for instance, which would have saved us a lot of harm in our family, because upon the release of convicted pedophiles, especially a warrant expiry, they do an assessment. If the person is found to be likely to reoffend, they are actually then given into the custody of the state or a mental health facility, which would be an indefinite incarceration until they are then found to be fit.

That is one of the provisions I'd like to see us adopt out of the United States. But going back to the United States, they have a higher population compared to Canada. We have stats from Forum magazine that estimates there are 30 million survivors in the United States alone who have experienced child sexual abuse—30 million.

When we look at stiffer penalities there, perhaps it may visually or statistically not look like there is much effect, but in fact there is, because when you put a pedophile behind bars for the rest of his or her life, instead of putting them back out on the streets in six to eight months or right out of the courtroom, you are in effect protecting an entire generation from that particular pedophile.

That's what we are asking here: that you protect our children from pedophiles, especially serial pedophiles, by putting them away at least twenty years. Perhaps in the next twenty years, if we find a cure for this--because there is no known cure to date for pedophilia, no known rehabilitation program that actually is effective--then perhaps we can look at releasing them back into the population. But until then, it is gross negligence on behalf of the government and the judicial system to put these people back out into the public, because you're playing Russian roulette with children's futures.

The Vice-Chair (Mr. Chuck Cadman): Thank you, Ms. Kohan.

Monsieur Marceau, three minutes.

[Translation]

Mr. Richard Marceau: My first question is for Ms. Buckingham. You said you wanted to see the age of consent raised to 18. Did you know that in Quebec, people can get married at 16 if they obtain parental consent?

[English]

Dr. Janet Epp Buckingham: First of all, currently in the provisions, for example, the age of consent is 14, but it goes down to 12 for persons within two years of age of each other. I think we would be looking at some kind of similar provision. If it's 18, within a certain age limit lower than that, whether it's two years or four years, then there's an exemption for people who are within two years of age of each other.

I don't think we were expecting some kind of blanket “thou shalt not have any consent to sexual activity until you are 18”, with no exceptions.

À (1035)

[Translation]

Mr. Richard Marceau: Thank you.

Ms. Kohan, I was struck by what Mr. Borovoy said in his introduction and by the example he gave when he referred to Cupid, and to Lot playing with a woman's breast. What do you think of this? I would be interested to hear your views, since those were striking examples. It would be frightening to think that the gold coins, as described, might be considered a form of child pornography. What do you think about that?

[English]

Ms. Carrie Kohan: I think again common sense has to prevail, because someone who is nursing or has maternal instincts should not be compared to Eli Langer's case, where it's explicit child porn of children having anal and oral sex with one another.

You can't put the two in the same camp. You can't put them under the same umbrella, and perhaps your suggestion of a panel would be quite effective with that.

I'll defer to yourself.

Mr. Russ Hiebert: I was just going to make a comment that we tend to forget that these theoretical examples are really not necessary, because before we get to any defence for this kind of behaviour, the legal hurdle that must be overcome first is does it fulfill the definition of having the dominant characteristic of a depiction for sexual purposes? When you look at Rembrandt or Reubens, or any of those other examples that have been given, I do not think that a prosecutor, the police, or even a sensible judge would look at that art and think that its dominant characteristic was for sexual purposes. Only once you get beyond that hurdle do the defences start to come into play. So it's an interesting discussion, but I don't think it's very practical.

And in further response to Ms. Jennings's comment about the U.S., I don't have the statistics on what's happening south of the border, but I do know that unlike the U.S., it is Canada that has the international reputation of being a destination for pedophiles. So whatever they're doing there, and however different it is from our situation, they're doing something that's keeping those people out of the country.

The Vice-Chair (Mr. Chuck Cadman): Mr. Borovoy, did you have a comment?

Mr. A. Alan Borovoy: Yes, thank you.

The reference that was made to nursing would hardly apply to Cupid. I would remind Ms. Kohan that Cupid was connected with love, and Cupid did not represent child love for parents.

And incidentally, as far as Lot was concerned, if I recall my Bible story accurately, the whole purpose of what Lot's daughter was doing was to procreate. She was attempting to have sex with her father. She may have had what one might call a benign objective, but, nevertheless, that's what she was attempting to do. How in the world are we going to attribute sexual purpose, or fail to attribute sexual purpose? So much of our ability to attribute or not attribute is completely in the eyes of the beholder.

Eli Langer will tell you the reason he did it was to expose the evil of children being involved in situations of this kind. He said that was his purpose. Are you going to say no? Do you know better? Are you able to read his mind? The whole thing really becomes like a circus.

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

À (1040)

[Translation]

Mr. Richard Marceau: Thank you, Mr. Chairman. If you give me more time, I certainly will take it.

[English]

The Vice-Chair (Mr. John McKay): Okay, Ms. Fry.

I was confused, because Mr. Lee was sitting beside you there.

Ms. Hedy Fry (Vancouver Centre, Lib.): Thank you very much, Mr. Chair.

I would like to explore this, because I think the issue of art and artistic merit is a very important one. I am not sure at the moment that we have that ability to allow clearly for artistic expression in the bill as it stands. So I would like to say that if one feels we can only allow Rembrandt, Reubens, and the old masters to be exempt, then how are we going to create new masters if we do not allow new artists to form their own sexual expression? I think that is a question to ask. Are we just going to grandfather all the old artists and old masters?

My biggest question is that if seeing a child anatomically and appropriately depicted is going to titillate a pedophile, then we know that there are many religious paintings showing cherubs and angels and seraphim and cherubim as very small children, and anatomically perfect in every single way. I think the question then is, should we paint those over because a pedophile might be walking by and see them and spark his desire to move on?

I think we have to come down with something that will allow that very fine and delicate balance between artistic merit and freedom of expression, whether it be in books like Lolita or otherwise, and the ability to safeguard our children from exploitation and abuse. That is a question I would like to ask: how do you do this, other than saying let us grandfather the old masters?

How do we deal with this really living and very practical question of artists and writers that will begin to write about the seamy side of life? Or should we only have books that speak of nice things? Should we not have books that talk about the abuses of human beings, whether they be children or otherwise, and that depict those and describe them? Do we consider it to be art and do we consider it to be educational writing, or do we consider it to be pornography? Those are questions I would like to get my head around.

I think the question was well put by Mr. Borovoy. As Mr. Borovoy knows, we've been on opposite sides of the fence on different occasions, but I think he's asked an extremely important question, and it's one that has been of concern to me from its practical perspective. It's not theoretical at all, but a very practical question.

I'm going to let anybody answer it who wants to, and I'm sure Mr. Borovoy would love to answer it.

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

Mr. Russ Hiebert: Again, I think the artistic dilemma is a very rare instance. We have Langer, as an example, but I certainly can't think of any other situation where art has been the contentious content or the issue for a prosecutor.

Let's keep in mind, as I mentioned a moment ago, that it must first pass the hurdle of whether or not the dominant characteristic is depiction for sexual purposes. And most of the material you are talking about, I respectfully suggest, does not fall under the category of its dominant characteristic being for the depiction of sexual purposes. Art, whether modern or ancient, or pictures from a parent's family album, would simply not cross that hurdle for most prosecutors. I think it's really theoretical, when we have real concerns for children right now.

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

Mr. Mark.

Mr. Inky Mark: Thank you, Mr. Chair.

The whole issue of public good is basically the big question we're dealing with today. For three of you, it's too open; for Mr. Borovoy, it's too closed.

Would you support a mechanism in the law where public good can be determined, if that offence comes up?

Ms. Carrie Kohan: I believe Mr. Toews actually remarked on that briefly and that the justice minister, Martin Cauchon, had actually said that artistic merit was still covered under the umbrella of public good. So by taking artistic merit away and replacing it with public good, are we in effect still taking artistic merit away? That's the question.

Mr. Inky Mark: That's the question I'm asking.

À (1045)

Ms. Carrie Kohan: Yes, that is the question.

Obviously, artistic merit has to be dealt with, because where we're at today with the two predominant court decisions on Eli Langer and John Robin Sharpe, it is obvious that we have to make changes, because this law is failing the children of Canada.

Mr. Inky Mark: Should there be a mechanism in the law to determine what public good is?

Ms. Carrie Kohan: Would you like to speak on that?

Dr. Janet Epp Buckingham: I actually feel that public good is a better phrasing than the previous artistic merit. Public good makes it clear that it's public; it's not private good, it's not for your own personal enjoyment. This has to be shown to be good for the public. Even art is subject to that public good idea, so I don't think we would have another decision like we had out of the 2002 Sharpe case, where a very mechanistic approach was taken to artistic merit: “Does this have some elements of literature in it?”

In order for artistic merit to fall within the public good defence, I think it's already clear that there has to be shown to be some good for the public. So I would say there is a strong message to the courts that their previous interpretations have been too broad. There's every possibility it could be a reasonable approach to this.

Mr. A. Alan Borovoy: There's something wrong philosophically. I've tried to avoid getting too philosophical, but I guess this is the season of the year to be a bit philosophical. There's something profoundly wrong about making the public good, however one wants to define that, the test of whether certain people should be able to exercise freedom of expression with respect to literature or art.

I don't like making comparisons between what our country does and what dictatorships in society do. I often regard them as obscene comparisons, but they're useful sometimes because of the lessons in them. What was one of our key objections to the Soviet Union's approach to art? Stalin suppressed art that didn't comply with what he called socialist realism; that is, he had a conception of the public good, and every piece of art had to comply with it. In a free society, this is a very dangerous thing to do.

People have to be able to create and express. Yes, we want to protect children. That's why I say that if they really abuse children to make the stuff, okay, but for the rest of it there's simply no excuse.

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

Unfortunately, I've got five questioners and ten minutes left.

Mr. Macklin.

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

I'd like to go to another area of interest, and that is raising the age of sexual consent. I believe three of you indicated you'd like to see that raised. What you're asking us to consider, in effect, is criminalizing sexual conduct.

One of the heightened phases of growing up suggests that sexual conduct, or at least the hormonal side, is likely at its peak around age 15. I'd like to get a sense from you as to where you draw the line in this process, and how we avoid criminalizing sexual conduct. In other words, if a 15-year-old is having some type of sexual activity with a 19-year-old partner, are you going to criminalize that act? What proposal do you suggest that would be acceptable in nearness of age, in permitting what is generally described as sexual experimentation? Where do you draw the line on this?

For those of us who are looking at the possibility of increasing the age of sexual consent--as I understand it, in 1895 or thereabouts we moved the age of sexual consent from 12 to 14--where are we today in our social conduct? Should we raise it again, do you think? Where are we here? I'd like to get a sense of understanding what you really believe we could accomplish by raising the age of sexual consent. How do we protect the criminalization of our youth?

À (1050)

Dr. Janet Epp Buckingham: By that same logic, we're criminalizing young people who are experimenting with smoking cigarettes; or we could say we're criminalizing a kid under 16 who wants to get behind the wheel of a car.

We have to recognize that sexual activity is high-risk, particularly at that young age. Kids of that age tend to not be able to make responsible decisions. We don't consider that they make responsible decisions to engage in other high-risk activities. So we're not trying to penalize children, we're trying to protect children.

Mr. Russ Hiebert: I would also say that Parliament has a responsibility to legislate what it perceives to be in the best interests of children. As was just mentioned, we do so with respect to driving, alcohol, cigarettes, all these other behaviours. It's not inappropriate for Parliament to do the same thing with respect to sexuality. But let's remember--you asked the question--that you don't want to criminalize sex between consenting teens. This has never been an issue. The Criminal Code has an exemption for people close in age; it's the peer exemption, so it's not a problem. It was certainly not a problem before 1987, when the age of consent was 18. You didn't have teens being dragged into court for experimenting with each other. That simply was not the case.

The other thing we have to keep in mind is that there are also instances when teens can take advantage of younger teens. We know from the social science evidence that's probably more than a third of the cases; it's not just the adult and the teen. You can have a 19-year-old literally abusing a 16-, 15-, or 14-year-old. So although this pure exemption exists in the Criminal Code, sometimes it needs to be reflected on a little more thoroughly.

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

Mr. Nystrom.

Mr. A. Alan Borovoy: I wonder if I could just....

We are not prepared to address the whole question, for reasons I indicated earlier, but some of these analogies are bothering me a little bit. On the analogies of smoking and driving, those are regulatory matters. We don't mind regimenting kids to that extent. But when you're talking about criminalizing sexual activity, we would be effectively stigmatizing those kids as having committed rape. That's what would be involved in that. So whatever other arguments there are, I think we have to be rather careful about these analogies.

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

Mr. Lorne Nystrom: Going back to Mr. Hiebert again, you're talking about raising the age of consent. You're saying if it's an 18-year-old and a 16-year-old it doesn't apply anyway because of the way the court interprets the law. I'm just wondering why you would want to raise it. If it were raised, how would you enforce the age of consent? Is there not a possibility of driving some of this underground, rather than the way it is today?

Many countries around the world have different ages. Here's a list of all the countries in the world, and it varies from country to country. I'm not sure what evidence there is that would make it better at 18 than at 17, or even 16. Perhaps you can enlighten the committee on those things.

Mr. Russ Hiebert: Absolutely.

Your concern about pushing these crimes underground would more appropriately apply to the situation where this bill adopted the exploitive relationship category. As was mentioned by my colleague here, forcing teens to testify on these things in court could be a huge hurdle that they would choose not to accept.

But more specifically to your question, again let me remind the committee that there is currently an exemption, the peer exemption. For young people closely related in age, the age of consent is simply not a factor. So we're talking about instances when there are large differences in age, or with respect to adults and people under the age of 14. We think there are very many good reasons for raising it to 16. A lot of them have already been mentioned, and I don't want to repeat all that the panel has had to say.

Of Canadians polled 18 months ago, 80% said they wanted this raised to at least 16 years of age. This is the public outcry. The police want it. They're saying this is a matter of urgency because they can't protect children. For all of these reasons, and when we look at other democracies, it's only realistic to think that Canada does not need to be on the cutting edge of making children available to adults for sexual exploitation. That's what we're currently doing with our low age of consent.

À (1055)

The Vice-Chair (Mr. John McKay): You have less than one minute left.

Mr. Lorne Nystrom: You were talking about minimum penalties. Can you elaborate on that? What is the minimum penalty? What is the crime? How did you find that? There are different crimes that are committed by pedophiles, and you're saying the minimum is automatically 20 years. What kind of flexibility is there? What kind of flexibility will there be before the courts?

Ms. Carrie Kohan: Carrie's guardian angel law was asking for a twenty-year minimum for serial pedophiles, or pedophiles who used weapons or worked together with other pedophiles, like the Wonderland Club, for instance, or it would apply to the new technology with pay-per-view raping of a child online.

Again, we go back to a twenty-year minimum so that we're protecting at least one full generation from that particular pedophile.

Right now, the average sentence in Canada is six to eight months served for actually raping a child. And like I said, that's if you even get jail time. Often we see conditional sentences, with the pedophile actually walking right out of the courtroom, and we see house arrest, where he or she still has access to their computer but they're told to stay off of it. We know the Internet is one of the number one tools in grooming children and in perpetuating this crime.

So it's an urgent matter. It's something that has to be dealt with immediately, because it's disgraceful that we in Canada, a democratic society, are giving six to eight months for raping a child.

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

Monsieur Jobin.

[Translation]

Mr. Christian Jobin (Lévis-et-Chutes-de-la-Chaudière, Lib.): Thank you, Mr. Chairman.

I'm not quite sure to whom I should address my question. One of the four witnesses this morning said that young people should not be allowed to testify in sexual assault cases involving an adult assaulting a minor. The papers in the Quebec City area reported on an alleged sexual assault, but an investigation later revealed that the accusations were fictitious. I am wondering if you are not giving too much power to certain young people who may invent a story to get back at an adult, whose reputation may become ruined even before the case goes to trial. I think you are opening the door to abuse if the bill includes a provision preventing young people from testifying. I do not recall who said that this morning, but I do remember hearing it.

[English]

Mr. Russ Hiebert: Sir, what was your question?

[Translation]

Mr. Christian Jobin: My question is as follows: If young people are not allowed to testify in cases of alleged sexual abuse committed by an adult towards a minor, aren't you giving them the absolute power to invent stories, something which has already happened when groundless accusations of rape were made? This kind of thing has already happened in schools, with students accusing their teachers. I think it would be a mistake. I think young people should be allowed to testify in court.

[English]

Dr. Janet Epp Buckingham: You may have been referring to my testimony. I didn't say children should not testify, but that children would often be reluctant to testify, because under this new offence of sexual exploitation, the nature of the relationship is examined. It's very traumatic for women to testify about these kinds of things, so how much more traumatic is it going to be for children? I wasn't saying they shouldn't have to testify, but that they would likely not want to testify.

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

Mr. Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chair.

I just have a brief question. In response to some questions the other day, the minister suggested a number of reasons why they either can't or won't raise the age of sexual consent, relying instead on the courts to use the new provisions for exploitation to decide it on a case-by-case basis. To me, that tends to imply, rightly or wrongly, that there may be some situation where it is legally acceptable for an adult to have sexual relations with a young person 14 years old.

I'd just like to know if any of you, or Mr. Borovoy, can envision or come up with any example where it would be legally acceptable for an adult to have sexual relations with a.... Can you get married at 14? That's what I'm asking for. Is there a legally acceptable...?

Á (1100)

Mr. Russ Hiebert: The only other exemption besides the peer exemption is the marriage exemption. If a couple is legally married in this country, regardless of their age, then of course they're entitled to sexual relations, despite the disparity in age. But other than that, I don't know of any instance when that would be acceptable. And I do not know what the justice minister was referring to when he said there are restrictions.

Ms. Carrie Kohan: If I might add, another thing to consider is at the age of 14 the child is in grade seven, maybe grade eight at the very most. This is a child we're talking about. According to the five stages of sexual maturity found on puberty101.com, it shows that the sexual maturity peak in males is 18 and 19 in girls—sorry, vice versa.

There is a possibility at the age of 14 that many children are pre-pubescent. They haven't even entered into puberty. To allow Canadian children the ability to have consensual sex, we believe, is wrong, especially when there is the possibility that they're pre-pubescent, because then it opens another legal argument for legalized child pornography. That child who has the body of a nine-year old and who gives consent to have sexual activity, perhaps they record it. If documents are made from that activity, then what's to say that's illegal child porn, because the child was of age and was physically looking like a minor.

It opens a whole gamut, a whole door of legal possibilities of arguments. To erase that and to empower the police officers and to empower citizens....

What's happened is by bringing it down to 14 you've in essence taken the ability away from a parent to govern their family. We had a situation in Edmonton just recently where a mother woke up and her 14-year-old was in bed with a 27-year-old. She phoned the police. They said they couldn't do anything, because she was of the age of consent, which was shocking to the mother. She didn't understand that. They said they might be able to charge him with trespassing, but because the daughter had allowed him in, they couldn't even do that. The mother was left there having to deal with her daughter who was in this situation. She had no recourse whatsoever, and that, in our viewpoint, is a crime, because you're taking the power away from the family.

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

Mr. Maloney, a final question.

Mr. John Maloney (Erie—Lincoln, Lib.): We've heard from Ms. Kohan on a minimum sentence and her reasons why. I think Ms. Buckingham and Mr. Hiebert also referred to a minimum sentence in their presentation.

What is your suggestion, and why?

Mr. Russ Hiebert: My suggestion would be that we abolish the conditional sentences that the police officers think are absolutely a joke in this country. They're telling us it's bringing the justice system into disrepute. Abolish those and simply replace them with the mandatory minimum sentences.

Mr. John Maloney: What do you suggest?

Mr. Russ Hiebert: Well, you have to look at the specific nature of each crime, so I can't give a blanket statement that it should be two years for everybody, but I think two years would be a good place to start for simple possession of..... Actually, let's move beyond that. Five years is the current maximum. Two years less a day is the current maximum that they actually see being implemented, and that's house arrest. So why not move to two years of incarceration as a minimum if you want to use the same amount of time? Simply putting them in prison, keeping them off the streets, keeping them away from harming other children I think is a good place to start.

But you'd really have to ask the police some of the specific questions as to which crime should deserve which minimums. I think we at least need to start the debate on what kinds of minimum sentences should be adopted.

Mr. John Maloney: Do you have any comment, Ms. Buckingham?

Dr. Janet Epp Buckingham: I would agree with that. Certainly the conditional sentencing provisions are not appropriate in this situation. We're talking about people who are abusing and harming children.

Mr. John Maloney: Mr. Borovoy, do you have any thoughts?

Mr. A. Alan Borovoy: This is one of the areas we have not addressed for these purposes, but we have a strong dislike of minimum sentences. What we object to are rigid penalties, regardless of circumstances that have to be imposed.

At the time when capital punishment was repealed in the mid-1970s, the trade-off was to have some mandatory minimum penalties for various types of murder, and nobody then foresaw the kinds of difficulties that might create.

Recently we had the case of Robert Latimer, and whichever way one goes about that, I think most people would readily acknowledge that a compassionate father should not receive the same punishment as a malevolent robber.

Since these things are so capable of such great variety, we would be very uneasy about seeing any further steps along the way to rigid automatic penalties. That's why we have judges.

Incidentally, it's an interesting thing that the Canadian Sentencing Commission did a study of judges a number of years ago and found that over 90% of them said that minimum sentences impair their ability at least on some occasions to give a just sentence, and that minimum sentences at least on some occasions lead to very bad plea bargains in the criminal justice system. It has an awful lot of bad effects.

We've heard some stories here about leniency. I rather suspect that the Canadian judiciary is not exactly a sanctuary for bleeding hearts.

Á (1105)

The Vice-Chair (Mr. John McKay): I want to thank the panel for their helpful insights to the committee.

As per usual, Mr. Borovoy has, if not the last word, close to the last word. He's one of the few witnesses coming before the committee who can quote both Joseph Stalin and the Bible.

Mr. A. Alan Borovoy: I can't be all bad.

The Vice-Chair (Mr. John McKay): He certainly covers the range of view.

Thank you. And I would ask the witness panel to depanel and ask the next panel to empanel.

Our problem, colleagues, is that we have votes coming up. I'm not clear as to whether we have 20 minutes or 40 minutes to get started, because apparently we're going to have a vote in the House.

My thought would be that we do not take a break now. We'll just start right away into the next panel of witnesses and we'll get as far as we can go. All right?

Okay, we'll adjourn.