JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, October 7, 2003

Á

1150

The Chair (Hon. Andy Scott (Fredericton, Lib.))

Mr. Scott Newark (Vice-Chair and Special Counsel, Office for Victims of Crime)

The Chair

Mr. Scott Newark

Á

1155

The Chair

Â

1200

Mr. David Matas (Member of the Board of Directors, Beyond Borders)

Â

1205

The Chair

Mr. J.R. Norman Boudreau (Vice-President, Volunteer Executive Board, Beyond Borders, Inc.)

Â

1210

The Chair

Detective Sergeant Paul Gillespie (Toronto Police Service)

Â

1215

Â

1220

The Chair

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

The Chair

Mr. Vic Toews (Provencher, Canadian Alliance)

Mr. Scott Newark

Â

1225

Det Sgt Paul Gillespie

Mr. Vic Toews

Det Sgt Paul Gillespie

Mr. Vic Toews

Det Sgt Paul Gillespie

The Chair

Mr. David Matas

The Chair

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

Â

1230

Det Sgt Paul Gillespie

Mr. Richard Marceau

Det Sgt Paul Gillespie

Mr. Scott Newark

The Vice-Chair (Mr. Chuck Cadman)

Mr. David Matas

Â

1235

Mr. Richard Marceau

Mr. David Matas

The Vice-Chair (Mr. Chuck Cadman)

The Vice-Chair (Mr. Chuck Cadman)

Mr. Paul Harold Macklin (Northumberland, Lib.)

Det Sgt Paul Gillespie

Mr. Paul Harold Macklin

Det Sgt Paul Gillespie

Mr. Paul Harold Macklin

Det Sgt Paul Gillespie

Mr. Paul Harold Macklin

·

1315

Mr. Scott Newark

Mr. Paul Harold Macklin

Mr. David Matas

Mr. Paul Harold Macklin

Det Sgt Paul Gillespie

The Vice-Chair (Mr. Chuck Cadman)

Mr. David Matas

·

1320

The Vice-Chair (Mr. Chuck Cadman)

Mr. Scott Newark

The Vice-Chair (Mr. Chuck Cadman)

Mr. Myron Thompson (Wild Rose, Canadian Alliance)

Det Sgt Paul Gillespie

Mr. Myron Thompson

Det Sgt Paul Gillespie

Mr. Myron Thompson

Det Sgt Paul Gillespie

Mr. Myron Thompson

·

1325

Mr. Scott Newark

Mr. Myron Thompson

Mr. Scott Newark

The Vice-Chair (Mr. Chuck Cadman)

Mr. John Maloney (Erie—Lincoln, Lib.)

Det Sgt Paul Gillespie

Mr. John Maloney

Mr. Scott Newark

Mr. John Maloney

Mr. David Matas

The Vice-Chair (Mr. Chuck Cadman)

Mr. Vic Toews

·

1330

Det Sgt Paul Gillespie

Mr. Vic Toews

Mr. Scott Newark

Mr. Vic Toews

Mr. David Matas

Mr. Norman Boudreau

Mr. Vic Toews

Mr. Scott Newark

Mr. Vic Toews

Det Sgt Paul Gillespie

The Vice-Chair (Mr. Chuck Cadman)

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

·

1335

Mr. Norman Boudreau

Mr. David Matas

Mr. David Matas

The Vice-Chair (Mr. Chuck Cadman)

Mr. Scott Newark

The Vice-Chair (Mr. Chuck Cadman)

Mr. Myron Thompson

Det Sgt Paul Gillespie

Mr. Myron Thompson

Det Sgt Paul Gillespie

·

1340

Mr. Myron Thompson

Det Sgt Paul Gillespie

Mr. Myron Thompson

Det Sgt Paul Gillespie

Mr. Myron Thompson

Det Sgt Paul Gillespie

Mr. Myron Thompson

The Vice-Chair (Mr. Chuck Cadman)

Mr. John Maloney

Det Sgt Paul Gillespie

Mr. Scott Newark

Mr. Myron Thompson

Mr. Scott Newark

The Vice-Chair (Mr. Chuck Cadman)

Mr. Myron Thompson

The Vice-Chair (Mr. Chuck Cadman)

Mr. Myron Thompson

Det Sgt Paul Gillespie

The Vice-Chair (Mr. Chuck Cadman)

·

1345

Det Sgt Paul Gillespie

The Vice-Chair (Mr. Chuck Cadman)

Mr. Scott Newark

The Vice-Chair (Mr. Chuck Cadman)

Mr. David Matas

The Vice-Chair (Mr. Chuck Cadman)

---

CANADA

Standing Committee on Justice and Human Rights

---

NUMBER 067

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Tuesday, October 7, 2003

[Recorded by Electronic Apparatus]

Á  (1150)  

[English]

    The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call to order the 67th meeting of the Standing Committee on Justice and Human Rights.

    Today, pursuant to the order of reference of Tuesday, April 1, 2003, we're looking at Bill C-20, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

    We have for the second panel this morning, from the Canadian Broadcasting Corporation, Edith Cody-Rice, senior legal counsel; from the Office for Victims of Crime, Scott Newark, vice-chair and special counsel; from Beyond Borders, David Matas and Normand Boudreau, both of whom are members of the board of directors; and from the Toronto Police Service, Paul Gillespie, detective sergeant.

    Usually we would go to the Canadian Broadcasting Corporation first, because it's listed first, but we're probably going to see a vote that will interrupt the second panel of the morning, so I think I'll go directly to the Office for Victims of Crime. We'll save the Canadian Broadcasting Corporation for the end, because if we don't get there, it's easier to get them to come back from Ottawa than our other panellists.

    If everybody is in agreement, I'll go to the Office for Victims of Crime, Scott Newark--welcome back.

    Mr. Scott Newark (Vice-Chair and Special Counsel, Office for Victims of Crime): Thank you, sir.

    With the number of people, I'm guessing we have about five minutes for an introduction.

    The Chair: I would say seven minutes, unless you've been instructed otherwise. I don't want to cause panic in the group here.

    Mr. Scott Newark: It is nice to be back testifying in front of this committee, albeit in a different capacity this time.

    We've prepared a brief. We were not able to have it translated in time for distribution. We'll do that, however, in the future and ensure that you get it.

    I just want to touch on a couple of subjects by way of introduction, and hopefully, your voting requirements aside, you'll be able to come back and we can continue in questions.

    No question, obviously, I was here and heard some of the previous panel about the importance of the subject matter itself. It's probably rare that there is a subject on which there is as much public agreement about its importance, if some question about how to achieve some of the issues involved.

    Specifically, in our brief, and what I want to touch on, are a couple of issues arising out of Bill C-20 that I think are of paramount importance. Mr. Gillespie, from the Toronto Police Service, and I had the occasion about a year ago to meet with and give some suggestions to a group of MPs--I know Mr. Macklin was present--on some of the issues contained in Bill C-20. So I've learned, I suppose, in one sense, over years of testifying before parliamentary committees that you don't always get everything you need in the first go; it is generally a gradual process. But there's no question that Bill C-20 represents progress in the sense of some of the issues about protection of children from exploitation. That's not to say, however, that there aren't some things we could improve in the bill, and I want to touch on a couple of those.

    Generally, Parliament is called on to reform laws when there are changing circumstances, an evolution in technology or a change in societal trends. You end up, as lawmakers, having to respond to that.

    That's obviously the case in the content of Bill C-20. The thing that's added to this and is a growing phenomenon in our country is that you are required to respond to court decisions where literally the courts have interpreted legislation, or in some instances the absence of legislation, and then Parliament is called on to respond to it. That's slightly different from what the historical trend had been, and it's something that's a reality in today's context. In particular, obviously that's true in relation to the Sharpe decisions and the child pornography provisions.

    The four major areas I would suggest are of key importance in Bill C-20 include the preamble. I know that's not normally the subject of a lot of discussion, but preambles are actually used for interpretation of legislation, and you need to anticipate that virtually anything that deals with public safety legislation will be ultimately challenged in the courts.

    Almost invariably, as in the Sharpe case, it gets down to a section 1 interpretation by the courts; and frankly, rather than having the courts determine Parliament's intent, in every single piece of legislation, in my experience, you should be expressing it, particularly where what's involved is choices between priorities. Again, the Sharpe case is an example of that.

    There was an absolute recognition that child pornography, in all its forms, represents a risk of harm to children. Legislating against that is an interest that obviously the lawmakers take into account. The court, at least the majority of the court, concluded that child pornography triggered paragraph 2(b)rights, in the sense of freedom of expression, that there was another interest involved there.

    Traditionally, that balancing of interests is, I suppose, anachronistically viewed as a political process. In today's reality the courts are also involved in that, and to the extent that you are therefore more able to articulate the values involved, I would suggest, in the preamble, the better chance you have of sustaining the legislation or the choices you make as legislators as to what should be done.

    Our brief contains some specific suggestions about language that might be included in the preamble should you ultimately decide what the choices are that you wish to see the legislation reflect.

    The second issue that I think is of key importance, obviously, is the age of consent--and I heard some of the discussion on the panel preceding us.

    I guess I'd put it this way. During the last five or six years, I've actually worked inside of government, which has been an illuminating, if sometimes frightening, experience. But perhaps the best way to approach this is to see what conduct you wish to permit, or, put in the negative sense of criminal justice, what conduct you wish to see prohibited.

    For example, is it the case that you think it's appropriate that 45-year-old adults are entitled by law to have sexual intercourse with 15-year-old boys and girls, or do you think that conduct should be criminalized?

Á  (1155)  

    If you do, with respect, I think you should be saying to the Department of Justice, or the lawyers who are employed, “Find us a way to accomplish that goal”, as opposed to the other way around, where we look at legislation and then get into the sort of “what if” examples.

    I heard some of the comments about the close-in-age exception. I very much agree with the fact that we have the capacity to draft the legislation to capture the choices you wish to make, and our brief includes some examples in relation to that.

    The same thing is true in relation to the child pornography provisions. I would suggest that you look at it that way: what do we wish to accomplish?

    Again--and I heard some of the points raised by Madam Fry earlier about the danger of a broad net approach to something that captures things unintended--I don't think there's any question that Bill C-20 is a step forward in the sense of it recognizing the notion of dominant characteristic or purpose, if you will, of the material involved, but remember that we're starting from the point here where the Supreme Court has already acknowledged that all forms of child pornography represent a risk of harm to children. I would think that is the point you need to build from.

    The fourth point that I think is of primary importance in the bill deals with an improvement in relation to criminal voyeurism. We specifically gave suggestions about this, and I would only suggest to you that the two areas that are contained that I find a little problematic--and just by remarkable coincidence I drafted an alternative section in case you're not satisfied with what's in Bill C-20--are, one, the notion of a reasonable expectation of privacy, and two, the public good defence.

    I would think you should look at it a different way and say, are we prepared to say that somebody surreptitiously sticking a camera in their shoe, walking around town and filming up women's skirts, and then advertising that for sexual purposes for sale is something we are prepared to criminalize? If that is so, approach it that way and I think you'll be able to find the means by which you can actually do that.

    You are faced in this legislation, and indeed in many others but probably on this kind of subject matter, with not just the subject matter of the legislation but the importance of Parliament asserting its authority as the democratically elected institution to make the choices between competing values and not simply leaving that to the courts. I think, with respect, that is something Canadians expect of the institution. As the subject matter that I've read through the bill, I think you actually have the capacity to do that if you approach it that way, in defining what you think is and isn't acceptable and what should be criminalized, and take it from that approach.

    Thank you very much, Mr. Chairman.

    The Chair: Thank you very much.

    We will now go to Beyond Borders for seven to ten minutes.

    I think you were advised that you had ten minutes. I'm not going to take three minutes away, but if you can do it in seven minutes, you'll get a star.

  (1200)  

    Mr. David Matas (Member of the Board of Directors, Beyond Borders): There are two of us, so we'll split it up. I'm going to talk about possession of child pornography, and Norm Boudreau, who's here with us, is going to talk about the age of consent.

    To start off with, I want to refer to the Convention on the Rights of the Child, article 3.(1). It says:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

    What we're dealing with here in terms of possession of child pornography is a conflict of rights between the free expression of adults and the protection of children. What the Convention on the Rights of the Child tells us is the rights of children, the protection of children, come first.

    None of us are children around this table. All of us are adults. We must not think of adults first; we must think of children first. That's our duty, and that's your duty as legislators.

    When it comes to possession of child pornography, that crime is an important tool in protecting children. Without it, what you have to prove is some form of actual victimization of children, which can sometimes be very hard to prove. Possession of child pornography is an important and useful tool in protecting children.

    We have, of course, to make sure that freedom of expression is not unduly limited. That was very much an issue in the Sharpe case, which I argued for Beyond Borders at the Supreme Court of Canada.

    The Supreme Court held that the present law was constitutional, with two exceptions that they read into the law about self-created expressive material and private recordings of lawful sexual activity. The court explained the definition of “artistic merit”.

    What we find troubling about this bill is that the bill drops the defence of artistic merit, or educational, scientific, or medical purpose, and just leaves the bill and the law with the defence of public good, which is already there. The trouble with just leaving the law with the defence of public good is it's extremely uncertain, perhaps too broad, perhaps too narrow. We're concerned that it might be too narrow, but we don't know what it means.

    Obviously what we heard before with Alan Borovoy was that it was too broad.

    The Supreme Court of Canada in the Sharpe case said that the defence of public good has received little interpretation and its precise definition was beyond the scope of the appeal.

    Now, the practical problems of putting a very vague defence into the law is this. It doesn't serve as a deterrent. If you read what child abusers say, they think what they're doing is in the public good. They promote sexual activity of children. It also is going to lead to a lot of not guilty pleas. We're going to get the courts clogged up with defendants saying they're not guilty because they think there's a defence of public good. The defence, of course, will be defined over time, but differently in different provinces until it gets to the Supreme Court of Canada. So we'll have many years of uncertainty about the law.

    Of course, since the Supreme Court of Canada gave its decision in the Sharpe case, Sharpe has since been acquitted, at least for some of what he did, on the basis that it had some artistic merit.

    We need to tighten up the defence of artistic merit by making it more specific. The Supreme Court of Canada indicates how that can be done in the wording in their judgment because they give us an idea of what the “defence of artistic merit” means.

    I pick up at least three restrictions from the judgment, three components. One is that the intention of the creator is sexual portrayal, enticement, or seduction. That's in the judgment. The second is that the work is unconnected or has little connection with artistic, educational, scientific, or medical conventions, traditions, or styles. That's in the judgment. The third is that the mode of displaying distribution is showing material to young children for the purpose of sexual gratification, enticement, seduction, and abuse. That's in the judgment.

    I read what Minister Cauchon said to this committee when he was justifying the bill. He himself talked about it as limiting the defence of artistic merit by saying that it had to be subject to the test of public good and not a sexual purpose, which is in the bill.

    The trouble is that the limitation he's proposed is much too large in general. What we need is something a lot more specific.

    I propose as well a fourth limitation, which is also based on something else in the Sharpe judgment about likely effect. I heard the previous panel. There was a lot of discussion back and forth about what the Sharpe case said about likely effect, but it was there in the judgment. The court said that the evidence supported the existence of a connection between possession of child pornography and incitement to abuse children sexually, reduction of inhibitions against sexual abuse of children, and grooming or seducing a victim. So the court said there was evidence to support this likely effect.

  (1205)  

    I think what we need is a fourth exception, that the material could change the possessor's attitude in ways that could make the possessor more likely to abuse children sexually--again drawn from the judgment.

    On the form of the law, we suggest to keep the defence of public good. Say that artistic merit and medical, educational, and scientific purpose are part of public good, but public good, artistic merit, educational, scientific, and medical purpose are limited by these four exceptions of intention, connection with artistic conventions, mode of display, and reasonable likely effect.

    That's my submission.

    The Chair: Thank you very much.

    Monsieur Boudreau.

[Translation]

    Mr. J.R. Norman Boudreau (Vice-President, Volunteer Executive Board, Beyond Borders, Inc.): Good afternoon. My name is Norman Boudreau and I appear before you as a former teacher, as a lawyer and as a parent.

    I will make my presentation in English only. I apologize to the Francophone members of the committee.

    Just as Mr. Matas has done, I will limit my remarks to the issue of the age of consent.

    I want to say first of all that the issue of the age of consent does not concern all children in Canada, but only a tiny fraction of them. Most children in Canada are good children, children who are sufficiently mature and responsible. So this concerns only a minority of them, but it is a minority that is quite vulnerable.

[English]

    I urge you to reject these amendments that are proposed for the law on age of consent. They are total lemons. I'll tell you why you should reject them.

    Proposed subsection 153(1.2) states that there are three factors to be considered when determining whether the relationship is exploitative or not. These three factors are not an exhaustive list. We're going to leave it to the creative defence counsel to add to these factors in favour of their clients.

    There are five deficiencies in the proposed amendment. First, it's subject to the judge. What may be deemed to be an exploitative relationship to one judge will not be an exploitative relationship to the other. This will result in vast jurisprudence, and, as my learned friend said, it will most likely go to the Supreme Court of Canada to find out what an exploitative relationship is.

    Second, there is vagueness in the law. The Canadian public is entitled to be governed by clear laws without ambiguity. The law in this case is vague and confusing. The adults in many cases will not know, until they have been arrested and convicted, that they were breaking the law. The uncertainty of the law will attract charter challenges.

    The law does not provide for any preventative measures. There are no deterrents to the crime. The onus of proof rests with the complainant, the child. Regarding the manipulative nature of pedophiles, we can certainly say that the ability of the child to recognize an exploitative relationship will be greatly diminished.

    It's not practical. The people who have drafted this legislation have probably never been in a courtroom. The people who will be accused of this offence will inevitably plead not guilty. They will certainly have the judge decide whether the relationship was exploitative or not, and this will go to preliminary trial, and so on.

    Most cases of sexual abuse are historical, meaning they happened 20 years ago. How will the judge be able to define or realize whether or not a relationship was exploitative 20 years ago? It will not happen. Historical cases will not be prosecuted and the offender will not be punished.

    We propose that the age of consent be raised to 16 years old and that there be a close-in-age exemption for a four-year gap. So a 20-year-old will certainly be entitled to have a sexual relationship with a 16-year-old without committing any crime. The close-in-age exemption is to recognize the close-in-age maturity between young children.

    Before I came here I wanted to take a close look at a recent case of age of consent in Canadian law. I came across the Regina v. Edmondson and Regina v. Brown and Kindrat in Melfort, Saskatchewan. This was the case of a 12-year-old aboriginal girl who was preyed upon sexually after being made drunk by three adult males. Edmondson, 26, sexually assaulted the 12-year-old girl with his two friends, Brown and Kindrat, outside his truck on a gravel road near Tisdale, Saskatchewan, in September 2001.

    Edmondson was convicted, but the other two, Brown and Kindrat, were found not guilty. In the cases of Brown and Kindrat, the jury found that they took all reasonable steps to ascertain that the girl was at least 14 years old. The judge referred to the adult men as boys at least six times and referred to the girl as Ms.

    My submission is that we should reject these amendments.

  (1210)  

    Thank you very much.

    The Chair: Thank you very much.

    Now we will go to the Toronto Police Service, Paul Gillespie, detective sergeant.

    Detective Sergeant Paul Gillespie (Toronto Police Service): First and foremost, I'd like to thank you very much for the opportunity to be here today.

    I work in the Toronto Police Service sex crimes unit. I'm in charge of the child exploitation section. I have 11 officers permanently dedicated to child pornography investigations and 6 officers permanently dedicated to child prostitution investigations. I'd like to say that these investigations are in the city of Toronto, but the simple fact is they're all around the world now. I'm presently conducting cross-border investigations in 17 different countries of online people who trade, share, make, and distribute child abuse images.

    On that note, the term “child pornography” is quite bothersome to me and other investigators around the world. Pornography denotes perhaps a deviant or weird type of nature, but it almost suggests some form of agreement, compliance, or the fact that somebody was willing to do this. What we're dealing with is child abuse, and these are images of child abuse. I'd just like to leave that open for perhaps later discussion.

    First and foremost, the simple fact that we're sitting here today listening to all these very well-articulated arguments on artistic merit and public good means we haven't quite got it right yet. Police officers everywhere, and certainly in Canada, are where the rubber hits the road. We have to make that initial decision on which laws apply, how to enforce them, and how to arrest people. On their behalf I would ask you to please write certain sections of the law with more clarity, as Normand eloquently put it, when we talk about the evolution of a relationship and when we're looking into degree of control or influence. These are such subjective terms.

    We've seen what happens when police are left to define what is or isn't artistic merit. We'll be fighting about this one for years. Police would simply appreciate laws that are very clear and that will allow us to make better informed decisions at the time we are required to make them. Wording that is very open to speculation and suggestion and not quite clear makes it very difficult for officers to understand exactly what they're supposed to be doing. I can tell you from experience that when officers aren't quite sure of the wording, they don't do anything.

    I do not envision ever using some of these sections myself. I don't know what they mean. I just know it's going to open me up to scrutiny down the line, and three years down the road a panel might decide that I didn't make the right decision. I'm not sure. It's difficult enough out there with everything else we do.

    I'd just like to give you a little insight into the child pornography investigations, these images of abuse we deal with. Until a few years ago it was very uncommon to seize more than a small amount of pictures and/or movies. With the technological advances today, on a very regular basis my office will seize over 500,000 images of abuse in movies. Unfortunately, the majority of these are of prepubescent children, often in diapers, in the most graphic and awful images of torture that can be imagined.

    I guess we don't even have to worry about the artistic merit in a lot of the stuff we see, although somebody might have in their collection one or two things that could be on the bubble. The fact is that the vast majority of the stuff is the most awful evil that one could imagine.

    Along with that and the technological changes of the day, we are now into things like encryption. The bad guys are getting very good at working anonymously on the Internet and buying software that allows them to defeat the forensic retrieval of evidence. There are all sorts of things out there now that can frustrate and stop investigations. Police are having a hard time keeping up with the technological advances.

    Computers and hard drives are very inexpensive and can store large quantities of information. New technology is available that allows people, with their PDA or cellphone, to take a picture or a streaming movie with images of abuse and transmit them to somebody else. It's very hard for the police to get in the middle of that anywhere. This medium has now been created, and it's very difficult to work in.

    At the end of the day, and once you get past all of the technology, it all boils down to children. These are kids who are being abused. It is very hard for me to understand how some might think that a 60-year-old who has gotten into a relationship with a 14-year-old has had consensual sex because they're allowed to, has videotaped or captured this with consent, and then used it later to blackmail, bribe, etc.

  (1215)  

    We had a case in Toronto of a 14-year-old girl who thought she was in love with a 21-year-old male. She allowed consensual taping of certain acts. She was then told, within weeks of this, to work the streets as a prostitute because these images had already been put on the Internet and in fact they would be shown to her family, and it was used as extortion.

    I don't think she was in the position and she didn't have the life skills to make that informed judgment and decision at the time she made it. She's a 14-year-old child.

    I try to explain to people that, yes, your 14-year-old daughter, once you have a fight, can walk across the street and move into the house with a 65-year-old abusive, alcoholic male, and there's nothing you can do about it. It defies logic to me, and I think most people in Canada would feel the same way. It's not until you put things in their face do they understand it.

    My problem with dealing with images of abuse is trying to explain to the general public and to educate other police officers, government officials, and the judiciary about the real depth of our problem. People think child pornography involves perhaps a 12-year-old running along the beach or somebody in a bathtub with bubbles in a pose that could be perhaps suggestive. That's not what we're talking about any more. We're talking about the most vile, despicable acts against young children. We're talking about people who are involved in something they have no control over. They are the perfect victims.

    If you're a bad guy, you get to act anonymously in this wild, wild west environment. You can roam throughout it. Nobody can find you. If you're the least bit good technologically, it's almost impossible to be detected. If you simply have a little sophistication, there's a large underground of people using news groups and chat rooms that have formed.

    Earlier the term the “Wonderland Club” was mentioned. This was a sophisticated group of worldwide pedophiles who were offering up certain acts of abuse against children. Every Friday night they would meet in a certain channel and they would order exactly whoever's turn it was to abuse a child in a certain way.

    We know there are several of those groups occurring in Canada right now. Getting that close to them is proving to be impossible, because of the sophistication. When we do seize that computer and the files are encrypted, there's nothing we can do to make the fellow turn over the key to his encryption or to give us the password. It is getting frustrating. The bad guys are flaunting it in our face. The fact is they're running programs that wipe out evidence because they're allowed to and it's available. I'd like to notify you that this seems like it's in the future. It's not. It's here. And this is what we face.

    In regard to the public good, again, as I said earlier, trying to determine what the public good is, as a front-line officer, will prove to be impossible. The fact that we're sitting around and debating it, and it has been done for some time and it will carry on for some time, is a perfect example. Unless we have workable laws in which the police can make the right decision at the right time...I think that's in everybody's best interest. So however these laws come into effect and however they are crafted, please assume you're the poor fellow who has to make that initial decision that you could be paying for, for the rest of your life.

    Thank you.

  (1220)  

    The Chair: Thank you very much.

    I see we have 24 minutes, so we'll probably have to leave 10 minutes before the vote.

    Is there interest on the part of members to come back after the vote and go beyond one o'clock? Four members would give us a quorum.

    Some hon. members: Agreed.

    The Chair: Okay. We'll come back after the vote and go beyond one o'clock.

    Chuck, will you be here to chair? There's a huge outcry.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Only if you want me to.

    The Chair: Okay, we're all set.

    Mr. Toews, for seven minutes.

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much for the presentation of the witnesses. We look forward to hearing what the CBC has to say as well. I'm sorry we didn't get to you, and we apologize for that.

    Certainly the shortcomings that have been identified in this law relate primarily to the issue of public good and the age-of-consent issue. I think some very good ideas have been brought forward, and I think the discussions and the presentations demonstrate the input of very practical people to this very difficult issue.

    One of the issues we haven't even dealt with is the whole problem of evidence and the proof of these kinds of cases. I know police officers are simply overwhelmed by essentially using 19th century evidentiary laws to deal with what is a 21st century problem, and this act really doesn't get into that issue. We're just dealing with the bare bones of the legal concepts that are, in my opinion, fundamentally flawed, as you have demonstrated in your testimony here today.

    Just very briefly, I know Mr. Vermette has presented some suggestions. I'd have to review them a little more carefully; I saw them for the first time only today.

    But I'd ask some of the other panellists, perhaps Mr. Gillespie or Mr. Newark, or indeed the others.... Certainly other countries must be facing this problem and have addressed this issue in a more proactive way than we have here in Canada. Are there certain legislative statutes or pieces of legislation that have been brought forward that you consider to be more focused on what the problem actually is and that deal with it in a proactive way?

    Mr. Scott Newark: Actually, we were talking a little bit about that this morning too. I think you could look at other jurisdictions in relation to penalties. It's somewhat odd...I actually think the genius of our justice system always was this offender, this offence. I was not a fan of minimum mandatory penalties, but I think, regrettably, because of what I think would have to be characterized as choices made by sentencing courts that don't reflect the general public's sense of what the appropriate sentence should be, we are, with some frustration, seeing the need for minimum mandatory sentences. That's one thing I think you could look at all around the world.

    The other one that strikes me in particular about this--you raised it, and I know Paul could probably talk even more about it--is we don't have anything specifically in the code in relation to disclosure in a whole lot of areas. My experience has always been that this is also generally where the Supreme Court or courts tend to get in, where there's nothing in the code, no parliamentary expression to something. They have to literally go through administrative work for defence counsel in processing all of the images to be able to comply with the Supreme Court of Canada ruling in Stinchcombe about disclosure.

    We should have, in my opinion, something where they would be allowed to go and say, look, we want to take a sample of all this stuff; we don't have to do a complete disclosure of every single image--similar to what we do, actually in drugs, so that we get police officers out of doing administrative work for defence counsel and on to tracking down these people.

    Don't forget--and this is a somewhat cynical view--disclosure is generally asked for in the hope that it's not going to be given, because it creates a potential defence.

    Those are the two areas in particular that I would think are most applicable.

    I think maybe the third one--and Paul may want to touch on this--is not in the scope of this bill, but it's the capacity to get behind the technology to find the information you need to see who is running these sites--the details of the Internet service provider. My understanding is right now we don't have that technological capacity reflected in the laws, and we should.

  (1225)  

    Det Sgt Paul Gillespie: If I may continue, I'd just like to, again, add the human touch to this need that the police have to examine every last piece of evidence. If we seize a computer with a half million images of abuse, how can I assign an officer to sit down and look at half a million images of children being abused?

    I don't know if we ever consider the human element, and until you've done it, you have no idea what it's like. I invite anybody to come to my office. I've had to look through 25,000 pictures in a matter of hours to try to gather evidence for an upcoming bail hearing, and it is soul destroying. So as a matter of a regular exercise--okay, it's your turn; sit down there--it can't be done. This is just one of the reasons we recently approached Microsoft Corporation, and we're working with them. We're trying to develop software that helps us speed up some of the work we're doing, and not have human eyes and human hands deal with what hopefully can be assisted by software.

    But in regard to the other side of it, we don't examine every gram of cocaine on a boat. I don't understand why we have to look at every image. In certain countries, in the United States, certainly in Texas, once you've hit a certain small number, the collection is deemed to be that, and it's actually only six pictures in Texas. In the United Kingdom, they have a classification system, between one and six, and the degree of evil, if you will, is perceived to reflect the collection itself.

    I think these are very good common sense ideas.

    Mr. Vic Toews: Is the British model one we should be looking at? Would you recommend it?

    Det Sgt Paul Gillespie: I think it's worth looking at. I've been very lucky in the last year. I've travelled extensively throughout the United States and the United Kingdom. I've done training with the Federal Bureau of Investigation, the Department of Justice, U.S. Customs, a Manchester police national crime squad. I've tried to see best practices. I don't know if we need to reinvent the wheel on a lot of these issues; I think there's an awful lot of good out there. I'm not saying they're perfect, but I think there are some models that we can at least look at and perhaps adapt to a more Canadian style of law enforcement and policing.

    Mr. Vic Toews: Could you identify those for us by sending the committee a letter setting out what forms you see as acceptable?

    Det Sgt Paul Gillespie: Absolutely.

    Just on that note, in the United Kingdom, if you have files that are encrypted and the police seize them and you do not turn over the key, it's a two-year sentence for contempt of court, period. In the United States, they're working toward this.

    In regard to speed-up of how quickly we can obtain information, we have to execute a Criminal Code search warrant, which is typically 20 to 50 pages, to get information on a service provider just to find out who might have used a computer. In the United States and the United Kingdom, it's a one-page affidavit.

    There are a lot of things we could be doing better. At the end of the day, it's the officers such as myself who have to do these.

    We have about 800 pedophiles in Toronto right now who we've identified. They're sharing, trading, child pornography, images of abuse, all over the world, bragging to undercover officers all over the world. We know statistically that 45% of those who collect child pornography sexually abuse children, period. It's 45% in Toronto; U.S. Customs is about 40%. Thus I can say accurately that there are about 300 to 400 kids in Toronto being abused right now. I can only do them one at a time. I'm so bogged down in paperwork, it's very frustrating.

    So I think there's a lot of good we can do simply by doing it the way others do, within reason.

    The Chair: Thank you.

    Mr. Matas and then Mr. Marceau.

    Mr. David Matas: Just in terms of other countries, I draw your attention to the Sharpe judgment, paragraph 180, which cites and quotes the laws of Australia, Belgium, England, New Zealand, and the United States. You can actually get the text of the laws from going to that judgment and going to the citations. It's paragraph 180 in the Supreme Court decision. It's the dissent judgment.

    I would also say we have to build on our own legal tradition. This is one of the frustrating things about Bill C-20. We had a lot of information from the Supreme Court of Canada. We don't see that in the bill. Let's adopt the standards the court articulates.

    We are, after all, walking a thin line here, because we have the charter and we have to comply with it. These other countries don't have our charter and they certainly don't have our interpretation of the charter. So we should take the guidance the court gives us about what could make the offence work and still be constitutional. I don't see that in the bill.

    The Chair: Thank you very much.

    To Mr. Marceau, for seven minutes.

[Translation]

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you, Mr. Chair. I thank the witnesses for appearing before us.

    My first question is for Mr. Gillespie. You said, among other things, that the public good defence was too broad. I would like you to help us defining it more accurately. Obviously, we would not want police officers who are investigating and who are in possession of child pornography to be arrested, and the same goes for psychiatrists and scientists. How would you define the exception allowing possession of child pornography?

  (1230)  

[English]

    Det Sgt Paul Gillespie: That's a very good question. I've been thinking about this, and I've been asked specifically by other MPs, “Okay, this isn't great, so how can you make it better?” I can't think of an answer other than to eliminate any defence to possession of child pornography. I can't. You can turn it into this large, what almost aims to be an intellectual exercise in morality issues, but that's because it sometimes gets turned into a morality issue when it's not. It's child abuse.

    I'm not able to craft anything that, truthfully, I consider is any good. I think there should be no defence to possession of child pornography. That's my opinion.

[Translation]

    Mr. Richard Marceau: But if there is no defence, what about a scientist or a psychiatrist who wants to find some treatment for pedophiles, what about your officers who are in possession of child pornography for their work? You might give some training to your officers to explain to them that this is child pornography but that is not, because it is only a mother who took a picture of her little boy in his bath. So you do have some child pornography to explain to people what it is all about. If there is no defence, you could be charged yourself. it is not what we are looking for.

[English]

    Det Sgt Paul Gillespie: No, you're right.

    Scott, do you want to jump in here?

    Mr. Scott Newark: I have a couple of ideas.

    Following from what Mr. Matas said as well, I'd look at it more for a purpose, and I'd recognize that at the end of the day somebody is going to end up making a judgment here. I don't think we can get away from that, and that's short of an absolute ban.

    But, for example—and I'll forward you the copy of the brief—why not say, as the bill starts to, that any public good cannot...? The person who is claiming it cannot at the same time be found in possession of material that does constitute child pornography. In other words, if somebody has material, you can make a judgment as to what the purpose of it is based on what they've actually got. Alternatively, why not say or require that the court make an actual decision as to whether the public good is outweighed by the risk to children? Force the decision on the purpose and the merits involved.

    I just think you should be giving more direction to the courts. I think this was the point that was being made at the end of the table as well, that instead of leaving it wide open like this about what public good is.... I agree that you will end up with an inevitable subjective interpretation that's going to work its way back up to the Supreme Court of Canada and that is going to come back down here again.

    What you actually legislate may not be perfect in what it is, but have the discussion amongst yourselves. I do think most people would probably agree—perhaps not, but I think so—that if a court determines that the risk to children outweighs the public good and free expression, then make it such that that doesn't constitute the public good and is thus child pornography.

    These are small points, but I think you don't necessarily need to solve everything with one thing. You'll end up narrowing it down so that what you're dealing with are those truly difficult situations.

    The Vice-Chair (Mr. Chuck Cadman): Mr. Matas, I believe.

    Mr. David Matas: I don't think we should forget the exceptions that the court read into the law. One of them was that “...any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use”. It's not in the bill, but it's in the old law and it's in the new law, because it's now part of the charter.

    One of the confusing things about the bill is that it doesn't legislate the exceptions the court says are in the law. The other confusing one is “any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use”. Then, of course, I've provided four others.

    There's detail in the judgment, and there's detail that you can articulate.

    In a sense, our concerns and Alan Borovoy's concerns are opposite, because he's concerned that the law would be too constrictive and our concern is that it would give too much licence. But in a sense our concerns are the same, that the law is too vague. It needs detail, it needs specificity, and it needs to give guidance to prosecutors, to the defence, to the accused, to the courts. It doesn't do that now. As result, we have a law that's missing what should be in it.

  (1235)  

[Translation]

    Mr. Richard Marceau: If I understood you correctly, Mr. Matas, in your view, because the legislation is too vague, it would not be helpful to pass it. As Scott Newark has said, all cases would be submitted to the Supreme Court of Canada, which would give a certain interpretation of them.

    At the end of the day, if this act is not made more specific, it will not succeed in doing what we are trying to achieve. Is that a fair depiction of your remarks?

    Mr. David Matas: Yes, that is what I said.

[English]

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

    I'd like to suspend the meeting for however long it takes us to get back here.

  (1236)  

---

·  (1312)  

    The Vice-Chair (Mr. Chuck Cadman): Welcome back to the scaled-down version. I'd like to reconvene the 67th meeting of the Standing Committee on Justice and Human Rights from where we left off. We're going to the government side on the seven-minute round.

    Mr. Macklin.

    Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you very much, Chair, and thank you, witnesses, for bearing with us through these moments when we have to go aside to deal with our other issues.

    I would like to go back to some comments Mr. Gillespie made. In particular, you indicated you wouldn't want to have any defence. Are you looking at that as an absolute? I keep thinking of other witnesses who were here who were talking about other ways—scientific, medical, literary inquiry—in which one could have a defence. In particular, I would think you'd want for your own sake to make sure police officers—investigators, and so forth—would have a protection.

    Could you address that in a way, therefore, that would reflect those concerns that have been expressed by others?

    Det Sgt Paul Gillespie: Certainly.

    In saying that, I guess I assumed it would be a given that those responsible for the investigation and prosecution of these cases would not be deemed to have it in their possession illegally. Past that—possession for other purposes—I don't know if it doesn't just open it up too much. Let's say we arrest a psychiatrist and he's in possession of a large collection of child pornography and says he's using it to study in his practice or he's learning for self-training—and we have had those circumstances arise in the last year. I just don't buy it.

    With all respect, I think it has to be narrowed down as much as possible so people don't have an out. These are images of abuse—children being abused—and other than those involved in the prosecution and investigation of those cases, I'm not quite sure I understand why anybody else should have it.

    Mr. Paul Harold Macklin: But in fairness, you are, I think, clearly suggesting there ought to be exceptions to that rule, aren't you? The absolute simply can't be achieved, I don't think.

    Det Sgt Paul Gillespie: Yes, you're correct.

    Mr. Paul Harold Macklin: For example, you suggested a psychiatrist who had some material in his possession and said he was doing a research project. If in fact he was doing a legitimate research project, should he be prosecuted and subject to criminal liability?

    Det Sgt Paul Gillespie: My thoughts are that if it was a legitimate research project and it was dealing with a subject matter that was basically illegal to possess, steps would have been taken to notify authorities or get them involved in some capacity.

    I'm only pointing this out because we've come across people in the medical profession lately who have been found in possession of this, and their claim is, “Oh, it's part of my job. I want to become a better doctor or a better psychiatrist.” The fact is, I'm not sure that particular defence should be readily available to them except under the most stringent of circumstances.

    Mr. Paul Harold Macklin: I think Mr. Newark would like to respond.

·  (1315)  

    Mr. Scott Newark: I do. In part it's because the more absolute it is, the less likely sustainable something ultimately is. Whether, frankly, we agree with that reality or not, that is the reality we have to deal with. It's why I'd go back as well and.... I'll pick up on the points other people have mentioned, looking specifically at purpose and endowing courts with guidance from members of Parliament about the purpose of possession of material.

    What you're describing is, for example, somebody you can contemplate who would professionally have material for the purpose of professional study, for treatment, or anything else. I used to be a prosecutor. I wouldn't mind at all if, in the circumstances that I know Paul is describing, where they had some material or other, I could look at it and make a decision about whether or not I could prove to a court beyond a reasonable doubt that the purpose of that possession was for sexual gratification, not for professional development.

    Mr. Paul Harold Macklin: Mr. Matas.

    Mr. David Matas: I must confess, I'm sympathetic to what Mr. Gillespie says. From a prosecutorial point of view, we should keep it as simple as possible.

    I have also read some of these excuses that I don't buy either, but we're walking a constitutional fine line here. We have to realize that the present law was held unconstitutional by both the trial division in British Columbia and the British Columbia Court of Appeal. The Supreme Court of Canada held it constitutional, but read in a couple of exceptions. They held it constitutional because of the defences that are there now and the way the law is constrained now. So we can't simply sweep that all away, much as we might like to do so--or at least Mr. Gillespie and I would like to because it might suit our own sense of policy and practicality--because it would be a law that, given what the courts have already said in the Sharpe case, would have great difficulty surviving.

    In a sense we're walking a constitutional tightrope here, trying to figure out what we can do within the limits the courts have allowed. That's why I come back to what I said before. Let's take as much advantage of that judgment as we can. Pick on every word we can that will allow us to restrict the scope of the defences.

    What I find regrettable about that bill...I mean, it has taken some opportunity to do that because it put in the limitation on sexual purpose. It hasn't completely lost track of what was said in Sharpe, but it didn't pay as close attention to it as it could have done.

    Mr. Paul Harold Macklin: I think part of the goal here is to try to capture in some meaningful way what it is we're actually trying to deal with. I think what we're trying to say is if you're going to make a list of exemptions, for example, you'd have a list on which surely we'd leave one or two off, and we'd ultimately find out the list was deficient.

    The concept of public good, I would submit, is an attempt to try to deal with that. In other words, there has to be some justification. I don't know how you could go at it from a list perspective and be more precise.

    Granted, Mr. Gillespie, you did indicate that officers would find it difficult to make distinctions and judgments initially. I suspect that's likely true of many laws we have. Wouldn't there be a learning curve in this process, in any event, for officers to deal with issues of this nature?

    Det Sgt Paul Gillespie: Absolutely. But in my mind, when I hear terms like “public good”, it's very subjective and open to and fraught with.... I have a lot of friends who are lawyers, and we've had this discussion a number of times. I don't know what the simple answer is, but I do know that when you come up with terms that are, in my mind, very open-ended like that, they're going to be spinning around for months, if not years. But I don't know if there's a better way to word something along the same lines.

    The Vice-Chair (Mr. Chuck Cadman): Mr. Matas.

    Mr. David Matas: First of all, “public good” is not a new term; it's an old term. I mean, if we haven't got it now, that's not very comforting. We went to the Supreme Court already and they didn't say anything about it. It leaves us in a bit of a quandary. Surely, it must give everybody on the committee pause for thought when the people who are free-speech advocates and the people who are child-rights advocates both say the same thing, that it's just too vague.

    I don't think the notion that a list isn't going to capture anything is an insuperable objection to putting in a list, because Parliament has many lists and many laws that say, “Without limiting the generality of the foregoing”, or “For example”, or “In particular”. If you're worried about a list leaving something out, you can use some such legislative formulation but still give the law more certainty than it has now.

·  (1320)  

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

    Mr. Newark.

    Mr. Scott Newark: I have two things. First of all, I suppose at least in one sense the public good exception is preferable to the artistic merit, as interpreted by the court in the second Sharpe decision, which meant that as long as you could sort of put a comma or a period in a sentence, that somehow constituted artistic merit. The standard was ridiculously low.

    Having said that, it's why I would suggest you look at the kinds of things...recognizing that unless there's an absolute ban, there's going to inherently be some sort of subjective determination. We have the guidance from the Supreme Court that says there is inherent risk of harm to children in all forms of child porn. That's one factor that has to be balanced. The majority--not all of the court members, by the way--found that there was a paragraph 2(b) right in child porn, in free expression, and I think the minority decision is a much better decision.

    Why not make that balance and direct a court to determine whether or not there is public good here that constitutes a defence? If the risk of harm to children outweighs, say, the public good in production of some writing, then that public good defence is not available. Give them the instructions as to what they should go through in determining the public good. I don't know that it necessarily comes down to specifics on a list. I think it's much more likely helping a court and requiring a court to make purpose-driven decisions, so that if somebody has stacks and stacks of other things that nobody in their right mind could try to qualify as artistic merit, then maybe what he also has doesn't deserve that defence either.

    The Vice-Chair (Mr. Chuck Cadman): Mr. Thompson, you have three minutes.

    Mr. Myron Thompson (Wild Rose, Canadian Alliance): Thank you.

    I was going down that same line, but I'm not going to. I think it was pretty well covered.

    Am I correct in saying, or asking Paul, does every piece of confiscated material have to be analysed?

    Det Sgt Paul Gillespie: Yes, following previous court decisions, such as Stinchcombe, the police are required to offer the defence full, fair, and frank disclosure. That means that at the end of the day our office has been ordered by the honourable judge that we must look at and examine every last image and categorize and offer account to the defence so they fully understand the charges. That involves hundreds or thousands of images at times.

    Mr. Myron Thompson: Once you have sorted out the material that's considered to possibly have some public good--whatever that could possibly be--the rest would then go to the court or go along with the charge detailing what he is being charged to be in possession of. Does the court look at this material in any way to make a judgment as to whether you made a good judgment?

    Det Sgt Paul Gillespie: Yes. We typically will put a small selection of the evidence forth to the judge and show it to him. Very often he doesn't want to see it, but we show it to him.

    Mr. Myron Thompson: In other words, he only has to look at a portion of what you have to look at.

    Det Sgt Paul Gillespie: A very small portion. The defence invariably doesn't really look at anything, but gets to make us jump through the hoops accounting for everything.

    Mr. Myron Thompson: Very quickly, because I only have three minutes, I want to jump to age of consent. I'm not a lawyer and I don't understand a lot of reasons why laws are written the way they are. I was a teacher at one time; I was a principal of a school. On three occasions I went to rescue a 14- or 15-year-old girl over a period of time in the 1990s when I was still a principal because the parents were not allowed to go anywhere near the situation. The girl had left home and was living with adult men, in one case three men, being abused during the entire time. We knew all about it, but the police couldn't take any action because she was there at her own consent.

    When I went in and rescued this girl from that situation, the RCMP sergeant of the detachment in my home town went with me. He thought it would be a good idea to go along because he didn't want to see me get into a lot of trouble. After breaking the door down, entering the place, dragging the girl out kicking and screaming, taking her back to the school and back to her parents, the officer informed me there were 12 charges that could have been laid and they could have all been laid against me.

    For the life of me, has there been any message whatsoever given to anyone from anybody as to why it's a good thing to allow 14- and 15-year-olds to make those kinds of decisions? Has there been any evidence given saying that kids of that age have the right to do this because it's a good thing? What possible good could there be? Have you heard any? I'd like to know.

·  (1325)  

    Mr. Scott Newark: I occasionally now get to attend FPT meetings--federal-provincial-territorial meetings--of justice ministers' officials, which is always amusing. The last time this was raised was at the FPT meetings out in Calgary by many of the provinces, and the only thing I heard that was stopping that was the close-in-age problem--and I think you even heard some of that this morning--that it would criminalize that kind of conduct. With respect, that's nonsense. You pick the number, what the close in age is. The suggestion I made was that if you pick whatever the close in age is, criminalize any conduct beyond that age of people involving genitalia. If 40-year-old men want to hold hands with 14-year-old girls, that's one thing, but anything beyond that is criminal conduct.

    I think the real issue comes down to whether the elected representatives of Canada are prepared to say, “We think this merits criminal conduct and we're going to define it as criminal conduct.” You pick whatever the number is and then define it as criminal conduct and instruct the Department of Justice to go to court and defend it.

    Mr. Myron Thompson: So the answer is no, there has never been--

    Mr. Scott Newark: Nothing that I would say justifies the exception. But I encourage you to call the Department of Justice and ask the same question. They are the people you need to ask it of.

    The Vice-Chair (Mr. Chuck Cadman): Mr. Maloney, three minutes, please.

    Mr. John Maloney (Erie—Lincoln, Lib.): Detective Sergeant Gillespie, can you educate me a little bit on criminal procedure, the necessity of having to disclose 100,000 images that may be on a computer to the defence counsel? Where do we get that from? Is that policy or is it law? Why, why, why?

    Det Sgt Paul Gillespie: It's from the Stinchcombe decision, a case that involved the police apparently not giving full and frank disclosure of all of the evidence to the defence. It was an unrelated case, not a child pornography case, but out of it came this decision, which has been interpreted by some crown attorneys and some judges to basically say that in every criminal case you do, every last bit of information involved in that case must be turned over to defence. This has been further interpreted to mean that for every last bit of evidence seized, if you've seized it, you have to look at it, you have to define it, and you have to categorize it, specifically in child abuse investigations and child pornography cases.

    Mr. John Maloney: Mr. Newark, did the province ever ask that this be reviewed or looked at, as they have in other jurisdictions? If so, what was the response?

    Mr. Scott Newark: It happened recently as a result of this.

    I mentioned earlier that this is one of the examples, in my opinion, where Parliament simply hasn't legislated. In the Feeney case--you'll probably remember that--we were dealing with an arrest in a dwelling house. It was a circumstance where there were pre-existing powers from common law we'd always sort of used but had never gotten around to codifying in the Criminal Code. This is generally where I think it would be fair to say the courts have intruded; this is another example, as Paul said.

    The Supreme Court of Canada in Stinchcombe--it was a fraud case--actually said, and rightly so on the facts, there had to be proper disclosure for a full answer and defence. Because Parliament has not defined what that means--and I think this is a wonderful opportunity for you to do it on these facts--the crown has taken the view that what that means is we must give you every single thing so as to forestall an application that says the rights of the accused under the charter have been violated. So it's a preventive approach.

    Mr. John Maloney: Mr. Matas.

    Mr. David Matas: What we're dealing with here is something way beyond the scope of this, because this applies to the whole criminal law, not just this offence. As I understand Stinchcombe, the concern there was the non-disclosure of exculpatory material. To me, it was a reasonable and fair decision that if the crown is sitting on exculpatory material that's not otherwise available to the defence, the crown shouldn't sit on that material but should disclose it to the defence. What we see as a result of Stinchcombe is rather than the prosecution going through all the material and determining whether any of it might reasonably be determined by anybody to be exculpatory, they just give it all because that's simpler than doing this kind of sorting out.

    Now, maybe there is a better way of dealing with it than giving it all, particularly when you're dealing with stuff of such volume and when a lot of it is repetitive, and maybe Stinchcombe could be complied with in some other way. But it strikes me that this is not the place to deal with it, because it's just a far larger issue.

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

    Mr. Toews, three minutes, please.

    Mr. Vic Toews: Just listening to this morning's proceedings and the proceedings this afternoon with this panel, I've come to the conclusion that if we amend the law as proposed in Bill C-20 to deal with this issue of public good and age of consent in the way being proposed here, it's really not going to make any substantive difference to the police forces or to the prosecutors. It's going to be just as difficult when we're dealing with this kind of trust relationship or exploitive relationship, the age of consent, and then of course the public good.

    What are we actually improving in terms of these two key issues? Frankly, from what I've heard here today, absolutely nothing. All we're doing is spinning our tires. As Mr. Matas has pointed out, we haven't even taken advantage of the direction the Supreme Court of Canada has left us in the Sharpe case. Am I wrong in my analysis?

·  (1330)  

    Det Sgt Paul Gillespie: No, that would be my ultimate thought from--

    Mr. Vic Toews: I'd like to hear that from each of the witnesses. That was Mr. Newark saying that.

    Mr. Scott Newark: No, it was actually Detective Sergeant Gillespie saying that.

    Mr. Newark doesn't quite agree. I don't think the exploitative relationship...I sort of understand what it's aimed at. I think in the long run it's going to turn out to be pretty meaningless. I think we need to make the decision about age of consent and put in whatever the close-in-kind exemptions to that are and get on with it.

    On the child porn sections, I think there is a benefit, at least somewhat, in relation to the inclusion of purpose in the consideration of child porn. But do I think it's as good as it should be? Obviously not.

    I don't agree, actually, with Mr. Matas on the last point, about this not being the place to deal with the issue of disclosure. I think this is exactly the place to deal with disclosure. You have never had a clearer example of failure to act legislatively, resulting in a negative, than I think in these kinds of cases, because of what it means for the guys who are doing the investigations. Their time is tied up doing all of that stuff. It would be a huge, practical achievement if you were able to slide in something within the scope of the bill.

    Mr. Vic Toews: Mr. Matas, I've heard your comments. Have I summarized them accurately?

    Mr. David Matas: Well, I would say in some ways the bill goes backwards rather than forwards, because there's detail that was in the previous law that is gone from this law. We have a more general law than we had before and therefore more uncertainty and with less deterrence.

    Mr. Norman Boudreau: Also, with respect to the age of consent, I think the previous law was at least clear and unambiguous. In this case we have something that's totally vague.

    Mr. Vic Toews: I'll just say in summary, Mr. Newark, that you've given presentations from time to time--no, I'm sorry, Mr. Gillespie, you've given presentations from time to time. You're sitting there with Mr. Newark's sign right in front of you. I know you both, and I'm sorry.

    Mr. Scott Newark: We look so much alike, don't you think? It's just the height thing.

    Mr. Vic Toews: You're twins, that's right.

    You've given presentations to all-party meetings previously. Would you be prepared to do that for the justice committee, if requested, on actually how graphic some of this child abuse material is? I know you gave it for parliamentarians once before. Would you be prepared to do that again if the justice committee asked you to do that?

    Det Sgt Paul Gillespie: Absolutely. Any time.

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

    Mr. O'Brien, three minutes.

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

    I think the idea of criminalizing teenage sexual behaviour is a bit of a red herring. I've heard several witnesses today speak to this age gap. Mr. Newark says to pick a gap, and I agree with that. I think some common sense could prevail there. I personally believe 14 is too low for the age of consent, and I think Canadians are generally just shocked that that's the case. I wonder what the panel thinks would be a better age. Is 16 more achievable than 18 and more realistic from your perspective?

    I also wonder--Mr. Matas, you've made the point repeatedly so I'd like to ask you directly--why do you think department officials have not done a better job of gleaning the wisdom, if we can call it that...or at least the judgment of the Supreme Court? Is there some rush, in your view, to get this bill through? I've heard so many people today pointing out that there are holes in this legislation that I ask the question, why haven't these obvious holes been anticipated by officials?

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    Mr. Norman Boudreau: I'll address the age of consent first. I think we can maintain the act as it stands right now and simply raise the age of consent to 16 and have a four-year gap. If you must, you can also have an extra buffer. You can have an age of consent of 16 years and a four-year gap, and you may even add a two-year provision on top as an extra buffer. You'd use that two-year buffer in analysing whether or not the relationship is exploitive.

    Mr. David Matas: This is in answer to your question. I printed out the statement of the minister when he appeared before the committee. I printed it out, actually, at the airport, in the airport lounge, and the airport computer has Net Nanny, which crosses out anything that's offensive. It crossed out a lot of what was in the minister's speech--

    Some hon. members: Oh, oh!

    Mr. David Matas: --which shows perhaps the problem of too-vague prohibitions on pornography. It's important to have very specific details.

    But there is a bit that survived, and I'd like to read it to you. It talks about the public good test and sexual purpose provisions in Bill C-20:

It also adds an additional test that is not part of the current artistic merit defence. Under the existing artistic merit defence, defence is available for material that is objectively shown to have artistic value. Under the bill's proposal, even material that is objectively shown to have artistic value must be considered under an additional test: it will not have a defence where the risk of harm such material poses to society outweighs any potential benefit it offers.

    So the government appears to have been trying to narrow the defence. The trouble is they did it in a very vague way. They said everything is public good and we're removing artistic merit, so you can't just have artistic merit.

    What we're proposing instead is to keep artistic merit, but to put in exceptions to artistic merit rather than abolish it altogether and leave everything at a very high level of generality. That's the difference.

    The Vice-Chair (Mr. Chuck Cadman): Right, thank you.

    Go ahead, Mr. Newark.

    Mr. Scott Newark: Perhaps I can respond to that too.

    On 16 and your question about why the bill is as it is.... As I say, having now worked with fairly senior levels of government for five or six years, there's almost an institutional ego that creeps in, in my experience, and it exemplifies why....

    Mr. Rosen and I were talking about this. I've been testifying before this committee for 15 years on different subjects. There is some angst when legislation is struck down by the Supreme Court of Canada within the halls of the Department of Justice. Rather than dealing with what is presented by the executive branch of government in the sense of legislation, this committee needs its own counsel. All the committees of Parliament need their own counsel. I understand some of you are going to a meeting tonight in relation to a democratic renewal.

    Probably the best single way you would be able, in my opinion, to articulate the kinds of ideas you're talking about is for your committee, as part of the legislative branch, to have the resources and the expertise to be able to draft up those ideas as opposed to responding to what's presented to you.

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

    Mr. Myron Thompson: Yes, thanks.

    Paul, the last time I saw you I invited you to come to our caucus and to make the presentation that Vic is asking you to consider for the committee. At that time the statistics were alarming as to what was happening in Toronto.

    Could you update me on that?

    Det Sgt Paul Gillespie: Yes. We have identified, as of right now, over 800 persons living in Toronto who we know are actively trading, sharing, and creating child pornography, but we can only do them one at a time. We're conducting investigations with just under 20 countries and foreign agencies in regard to persons in Toronto who are trading, trafficking, and sharing these images and these movies.

    We have a very concerted effort. We're working very hard. The more we work, the more we find the bigger the problem is, so it's alarming.

    Mr. Myron Thompson: How many convictions have arrived out of the 800 persons?

    Det Sgt Paul Gillespie: Since January 1, 2001, we've arrested 65 people in Toronto in relation to possessing child pornography and to other things, including assaultive behaviour, etc.

    Our conviction rate is fairly high, I'd say. Of those cases that are finished, there is a 98% to 99% conviction rate.

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    Mr. Myron Thompson: But there's quite a number that are yet to be investigated.

    Det Sgt Paul Gillespie: Yes, we're starting to see certain legal challenges come up that are challenging the way we do business, with disclosure issues, etc. So some of them have bogged right down. We are going to lose some to charter arguments.

    Mr. Myron Thompson: I come from a riding that has a number of rural RCMP detachments, 16 as a matter of fact, mostly in small towns and communities. I was alarmed at the number of cases they have been asked to look at in regard to child pornography.

    Is this something you're finding that's spreading out across the country, not only to cities but also to small communities?

    Det Sgt Paul Gillespie: Absolutely. I believe it's proportionate to population.

    Project Snowball, which came out of Dallas, has received quite a bit of coverage. It seemed to me that the breakdown within Canada was fairly even in regard to the population of the centre. Toronto had 241 cases from that particular project. Smaller agencies had less, but every corner of the country was covered.

    Mr. Myron Thompson: Apparently the biggest problem these areas are having is they don't know how to deal with it. They don't have the knowledge because it's a new and rare thing.

    It sounds to me like we really need some kind of a national effort to attack this.

    Do either of you fellows have any suggestions that could help us do that? I know what they're doing. They're referring it to the police department in Calgary, which overloads them, because they have a fair share of this going on as well.

    Det Sgt Paul Gillespie: Yes. In fact, in January we made a call to the government and the federal police agency, advising them that we did need a national operational strategy just for that reason.

    We're not doing very well in Canada. We're not coordinated, and the majority of the country has no clue on how to deal with these cases.

    There are now round tables set up and we are actually moving in that direction. There are integrated units being formed in Edmonton and apparently in Victoria. There's one in Winnipeg. We're moving in the right direction, but we really have to get going a little.

    Mr. Myron Thompson: Lastly, I'd like--

    The Vice-Chair (Mr. Chuck Cadman): Mr. Thompson, that's it.

    I believe Mr. Maloney wants to follow up on his last question.

    Mr. John Maloney: Detective Sergeant Gillespie, in some jurisdictions you indicated that it's a separate offence if you fail to give the code to get behind the encryption.

    Have you ever asked, again, perhaps through Mr. Newark and the FPT discussions, for that right here?

    Det Sgt Paul Gillespie: I will answer before Scott. It's only something we've seen within the last year and specifically in a number of serious cases in the last six months. I think it reflects a lot of these new Internet crimes, if you will. This wasn't on the horizon for us any more than it was for the legislators, and understandably so. We are absolutely seeing a lot of cases right now, so we have just started to sound the alarm that this is one of the new Internet-type crimes we're faced with and we have no idea how to deal with it.

    Mr. Scott Newark: It happened, actually, and it exemplifies the value of having some of the guys off the street come and give you the specifics of their insights about what they ultimately need.

    To go back to Mr. Thompson's question, I can't think of something that is a better national purpose than a child protection strategy. My office in Ontario was able to assist Detective Sergeant Gillespie's office to get a couple of million dollars extra to be able to try to track these guys down. The same thing is true in the places you're talking about across the province, in all the provinces, that require the resources. It's a very complex process, and it exemplifies the fact that because of the sharing and the new technology, there should be some national leadership on this.

    The suggestion for that is at page 13 of the brief, by the way, Mr. Thompson.

    Mr. Myron Thompson: Do I have your brief?

    Mr. Scott Newark: I think Mr. Toews does.

    The Vice-Chair (Mr. Chuck Cadman): Okay, thank you, Mr. Newark.

    I'd like to ask one brief question to wind it up here. Everybody's finished. I think we all want to get back to the House.

    Mr. Myron Thompson: May I ask a really short question?

    The Vice-Chair (Mr. Chuck Cadman): Very quickly, Mr. Thompson.

    Mr. Myron Thompson: It's on the fact that there was a number given by you, Paul, at one time on the number of real children in diapers and two-year-olds in pictures and on film. How are we doing on identifying who these children are and where they're coming from?

    Det Sgt Paul Gillespie: In the world right now there are tens of millions of these images on computers, floating around the Internet. We believe there are at least 50,000 to 100,000 individual victims. It's impossible to know exactly how many.

    In every police agency in the world, if you put all the resources together, we have identified fewer than 500 of these kids, which is an absolutely staggeringly low number. They don't complain because they don't know to.

    The Vice-Chair (Mr. Chuck Cadman): I'd like to follow that up, Mr. Gillespie, on the same lines, because I brought up the issue of disclosure with the minister the other day. One answer I had was that the police had to spend a lot of time going through the images trying to identify victims. And I appreciate that. I understand that. I wonder if you could give us some kind of an indication of this. If you have 500,000 images on a computer, how much time would you actually spend, or what kind of a percentage of time would you actually be looking for victims as opposed to having to disclose evidence?

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    Det Sgt Paul Gillespie: We're not doing very much, unless there are specific clues to a picture that perhaps could indicate it could be produced in Canada, or perhaps backgrounds of the image. With the money the provincial government gives us, every time we arrest a pedophile I have officers assigned to interview every child in their life as a potential victim. But, again, that's a very lengthy process, if we're talking about hockey coaches or teachers. So we haven't had much luck looking at the images, as can be reflected in the rest of the world.

    We're starting to pay much more attention to the backgrounds of the images. I have an officer who looks at the pictures, and that's all he does, and he tries to see if there are any other clues in the background. But it's almost impossible, for obvious reasons. The bad guys now are blurring certain things. They're even blurring the wall outlets. If you look at a picture you can tell if it's perhaps in the U.K. or Canada--similar characteristics. They're now muffling that and using Adobe Acrobat or Adobe Photoshop, etc. They're using certain software that allows them to blur everything other than the image.

    The Vice-Chair (Mr. Chuck Cadman): That's easy to do.

    Mr. Scott Newark: British and German law enforcement are actually starting to explore whether they can use face recognition biometrics to create a database of identified victims so as to be able to identify potentially...and to match it up to perhaps give police some sort of a headstart on this stuff as well.

    The Vice-Chair (Mr. Chuck Cadman): Well, thank you very much. I'd like to thank all the witnesses for putting up with the realities of this place and our comings and goings.

    And I would especially like to thank the CBC for agreeing to forego their presentation and to come back another day.

    Mr. David Matas: I'd like to thank you for coming back after you'd already heard us.

    The Vice-Chair (Mr. Chuck Cadman): The meeting is adjourned.