Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 17 - Evidence for June 22, 2005
OTTAWA, Wednesday, June 22, 2005
The Standing Senate Committee on Legal and Constitutional Affairs met at 4:07 p.m. this day in Ottawa to study Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.
Senator Lise Bacon (Chairman) in the chair.
[Translation]
The Chairman: I call this meeting to order. We have the pleasure of having with us Minister Cotler, Minister of Justice, to discuss Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.
With the minister, are Ms. Catherine Kane, Senior Counsel/Director, Policy Centre for Victim Issues, Ms. Carole Morency, Senior Counsel, Criminal Law Policy Section, and Ms. Lisette Lafontaine, Senior Counsel, from the same section.
[English]
Welcome, Mr. Minister. I have just heard that you have to be in the House for some votes and can only stay with us until 5:20. We are looking forward to hearing from you on Bill C-2. We have already heard from Senator Pearson, the sponsor of the bill, and from Senator Nolin. It is always a pleasure to have you with us.
[Translation]
Mr. Irwin Cotler, Minister of Justice and Attorney General of Canada: Thank you, Madam Chair, and thank you for introducing my officials. All three are experts in this area.
[English]
I regard them as the three experts both within and outside of the government on matters of child protection. They have appeared before Senate committees in the past, and I am the beneficiary of their ongoing counsel, expertise and experience.
It is a pleasure to be here today to speak to Bill C-2, to amend the Criminal Code, better known as the protection of children and other vulnerable persons act, and the Canada Evidence Act.
The protection of the vulnerable — and children are the most vulnerable of the vulnerable — has been a compelling priority for me since becoming Minister of Justice and Attorney General of Canada. It is also a continuing priority for the government, reiterated most recently in the October 2004 Speech from the Throne commitment to crack down on child pornography. In fact, it was the first bill introduced in Parliament on behalf of the government to symbolize the importance of the protection of children and other vulnerable persons.
This protection of the vulnerable is very much what Bill C-2 is all about. It is about providing increased protection to children against abuse, neglect and sexual exploitation, including through child pornography. It is about an enhanced sentencing regime organized around the principle of proportionality having regard both to the gravity of the offence as well as the responsibility of the offender in respect of children. It is about better protecting Canadians against voyeuristic invasions of their privacy, and it is about ensuring that the criminal justice system is sensitive to the realities of child and other vulnerable victims and witnesses, and facilitates their testimony rather than compounds their already difficult experience.
In short, Bill C-2 is all about what we, as parliamentarians and as Canadians, care about so deeply: Our children and the vulnerable amongst us.
[Translation]
Bill C-2 proposes criminal law reforms in five key areas. First, it will further strengthen our child pornography prohibitions; it will provide increased protection to youth against sexual exploitation by persons who would prey on their vulnerability; it will strengthen sentencing provisions for offences involving the abuse, neglect and sexual exploitation of children to ensure that the penalties adequately reflect the serious nature of such conduct; it will facilitate testimony by child and other vulnerable victims and witnesses; and finally, it will create two new voyeurism offences.
[English]
Let me begin with the first broad area of reform here, and that is in the area of child pornography.
Bill C-2 builds upon our existing comprehensive laws against child pornography in very significant ways. Our starting point with Bill C-2 on this issue is quite simply to send a clear and compelling message that any portrayal as children as objects of sexual exploitation in any format and for any purpose poses an undue risk of harm to children and to Canadian society and will not be tolerated.
In this context, we have proposed five reforms that were not present in the predecessor legislation but are present in Bill C-2. Accordingly, Bill C-2 expands our existing definition of child pornography to include audio formats as well as written materials that have as their dominant character the description of unlawful sexual activity with children where the description is provided for a sexual purpose. It creates a new prohibition against advertising.
[Translation]
It will significantly enhance the penalties for child pornography, including increasing the maximum penalties on summary conviction, imposing mandatory minimum penalties and making the commission of any child pornography offence with intent to profit an aggravating factor for sentencing purposes.
[English]
Finally, it proposes to significantly narrow the existing child pornography defences to a single harms-based legitimate purpose defence. Under Bill C-2, a defence would only be available for an act that has a legitimate purpose related to the administration of justice, science, medicine, education or art and — and it is important to add this — that does not pose an undue risk of harm to children. For example, possession of child pornographic materials by police for purposes related to a criminal investigation would be protected. However, possession of the same materials by a child pornographer for his personal use would not be protected.
The second area of reform is the sexual exploitation of young persons. Bill C-2 will provide increased protection to our youth against predatory exploitative conduct. It will expand our existing prohibitions that protect youth under 18 against sexual exploitation through prostitution, pornography, and where the relationship involves trust, authority or dependency by directing courts to infer that a relationship with a young person is exploitative of that young person by looking into the nature and circumstances of that relationship, including the age of the young person, any difference in age, the evolution of the relationship and the degree of control or influence exerted over the young person.
[Translation]
In this way, Bill C-2 recognizes that a young person can never consent to be sexually exploited and therefore focuses not on the young person's consent to such conduct but rather, on the exploitative conduct of the wrongdoer. This approach also reflects the reality that a young person's vulnerability is evidenced not only by chronological age but also by other factors and it explicitly directs the courts to take the specific needs and situation of each young person into account.
While not all youth share the same characteristics, we believe that they all deserve to be equally protected against behaviour that exploits their unique vulnerability, and that is what Bill C-2 will do.
[English]
The third is sentencing in cases involving child victims.
[Translation]
Bill C-2 proposes numerous sentencing reforms for offences against children. Our objective has always been to ensure that the serious nature of exploiting or abusing a child is reflected in sentencing outcomes in these cases.
[English]
Toward this end, therefore, Bill C-2 proposes to increase the maximum penalties for child specific sexual offences, child pornography, child abandonment and failure to provide the necessities of life.
As well, in all cases involving the abuse of a child, Bill C-2 requires sentencing courts to give primary consideration to the objectives of denunciation and deterrence of such conduct and makes the abuse of any child an aggravating factor for sentencing purposes.
[Translation]
We believe that Bill C-2, as initially introduced with these sentencing reforms, achieved our objective in a meaningful and effective way and in a manner that is consistent with the Criminal Code's sentencing principles and objectives.
[English]
As you know, Bill C-2 was amended by the Justice Committee to impose mandatory minimum penalties for the three child specific sexual offences, child pornography, and for procuring-related sexual offences against children, thereby adding to the existing mandatory minimum penalty in subsection 212(2.1) of the Criminal Code enacted in 1997 for the aggravated procuring of a young person for prostitution. These amendments respond to concerns identified by the committee with respect to current sentencing practices in cases involving the sexual exploitation of children, including, for example, an increasing use of conditional sentences or house arrest in these cases.
[Translation]
Although this was not the government's preferred approach — primarily because mandatory minimum penalties do not always produce the desired practical outcomes — we nonetheless accept that these amendments are intended to enhance Bill C-2's ability to achieve our shared objective of more clearly denouncing and deterring the sexual exploitation of children.
And we share the view that the protection of children against sexual exploitation is too important to do anything less than all that we can to realize our objective. Accordingly, the government's amendment requiring a parliamentary review five years after Bill C-2's enactment will enable us to assess whether we have been successful in achieving all of Bill C-2's objectives.
[English]
Reform number 4 centres on facilitating testimony. Bill C-2 builds upon reforms in this context enacted over 17 years to enhance the ability of a child and other vulnerable victims and witnesses to provide a clear, complete and accurate account of events while at the same time respecting the rights and freedoms of the accused. By clarifying and providing a uniform test for the use of testimonials such as a screen, a support person and closed-circuit television, Bill C-2 will facilitate testimony for three groups of victims and witnesses.
[Translation]
That includes child victims or witnesses under the age of 18 years or victims/witnesses with a disability, victims of criminal harassment and other vulnerable victims and witnesses.
[English]
For all child victims and witnesses, testimonial aids will be available on application unless they interfere with the proper administration of justice.
For victims of criminal harassment where the accused is self-represented, the Crown can apply for the appointment of counsel to conduct the cross-examination of the victim. The court will be required to appoint counsel unless doing so would interfere with the proper administration of justice.
[Translation]
For the last group involving any other vulnerable victim or witness — such as, for example, victims of spousal abuse or sexual assault, the Crown can apply for the use of any of the testimonial aids or the appointment of counsel to conduct the cross-examination for self-represented accused. In these cases, these adult witnesses would have to demonstrate that, based upon the surrounding circumstances including the nature of the offence and any relationship between them and the accused, they would be unable to provide a full and candid account without the testimonial aid.
[English]
Bill C-2 also proposes to amend the Canada Evidence Act to eliminate the mandatory competency hearing and the distinction between sworn and unsworn testimony for children under 14 years. Children's competency to testify should not depend upon their ability to articulate their understanding of what it means to swear or promise to tell the truth. Instead, it should depend upon their ability to understand and respond to questions and a requirement to promise to tell the truth. This is what Bill C-2 proposes. Under this new test, it would then be up to the trier of fact, just as it is in every other case, to determine what weight to give to the evidence.
Finally, in the area of voyeurism, Bill C-2 will modernize the criminal law to more effectively address voyeuristic invasions of privacy.
[Translation]
The creation of new offences is necessary to keep abreast of the technology which allows a person who is hidden far away to secretly observe or record others through the use of miniature cameras and other technology.
Bill C-2 will criminalize the surreptitious observation or recording of a person when there is a reasonable expectation of privacy in one of three specific situations:
[English]
There are three specific situations in that regard: where the person is in a place where he or she is expected to be in a state of nudity or engaged in sexual activity, such as in a bedroom, bathroom or change room; where the person is in a state of nudity or engaged in sexual activity and the purpose is to observe or record the person in such a state or activity; or where the observation or recording of the person is done for a sexual purpose.
Bill C-2 also proposes to prohibit the publication or distribution of any voyeuristic recording including, for example, over the Internet. A defence of public good would be provided for those acts that constitute voyeurism but serve the public good.
In conclusion, Madam Chair, Bill C-2 in its entirety proposes many new and enhanced protections for children and other vulnerable persons. These reforms have been welcomed by law enforcement, by my provincial and territorial counterparts with whom I have shared these reforms and who have urged the expeditious passage of Bill C-2, and by Canadians who consistently identify the protection of the vulnerable as a high priority. This is also the government's priority and our commitment, and this is precisely what Bill C-2 purports to realize.
[Translation]
The Chairman: Thank you, Minister. The bill significantly changes the definition of child pornography found in section 163.1 of the Criminal Code. Those who work in the arts have expressed some concern about their freedom of expression. The new definition refers to written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of 18 years that would be an offence under this act, although there is a legitimate purpose defence. Is there not a danger of violating freedom of expression with this new definition?
Mr. Cotler: No, Madam Chair. I do not think there is any danger because it is a very restrictive defence, for example, as compared to the artistic merit defence. In the proposed form, only one defence remains. That is what is important here. Therefore, the artistic merit defence will no longer exist, but you will still be able to argue that the act has a legitimate purpose related to art. However, contrary to the current artistic merit defence, there will be a two-part analysis. That is very important in terms of the defence. Does the act in question have a legitimate purpose? And if so, does it pose an undue risk of harm to the child? That is a summary of the defence, which protects both freedom of expression and children.
Senator Rivest: Mr. Minister, you questioned minimum penalties. You said that the government was not in favour of imposing minimum penalties. Why?
Mr. Cotler: Our experience and scientific research show that mandatory minimum penalties are not a deterrent nor are they effective.
All research, not only in Canada, but in other countries, shows that mandatory minimum penalties yield results that are the opposite of what people supporting the option wanted to achieve. I am not questioning their intentions, because they are acting in the same good faith.
As regards the bill, first of all, the government did not propose mandatory minimum penalties — it was an amendment moved my members — because the aim of this bill is to protect children. If the aim is protection and if we want to review the bill after five years, perhaps research will show that there was a reason for that. It was not my preference, nor was it the government's preference, but it was the result of a parliamentary process that must be respected.
Senator Rivest: That is a strange legislative technique. You are saying it is useless, but you are doing it anyway. A study commissioned by the Department of Justice in 2002 entitled: Mandatory Minimum Penalties: Their Effects on Crime, reached exactly the same conclusion as you did, saying it was totally ineffective. You say that you included this provision because of a parliamentary process. Moreover, your parliamentary secretary stated it very clearly in the House when he said, and I quote:
Let me start by saying, first of all, that as part of a minority government...and the proposition that we see before us also within this committee is that we have to come to an understanding that on certain issues there has to be some type of mediated middle ground, if we possibly can...
So it was for purely political reasons. As the experts have pointed out, these provisions are often under consideration to appease the indignation of voters who read the headlines. Minimum penalties have been included in response to condemnation.
These considerations should be completely separate from any decision-making by the Minister of Justice or a government. Minimum penalties should not be included in a bill for purely political reasons. Will these provisions not be challenged, as despite their apparent effectiveness, it will not be possible to uphold them legally, since they are not the result of serious and recognized analysis? You say yourself that you do not believe in the effectiveness or the relevance of minimum penalties.
I find it odd that the government has agreed to introduce a provision for minimum penalties for purely political and not legal considerations. A bill is first and foremost legal, especially in the Criminal Code.
Mr. Cotler: I must say that specific considerations were contained in the purpose of this legislation. We are talking about protecting children. The government's message remains clear and consistent in this regard. Protecting children, particularly protecting them from sexual exploitation, is our priority. That is the aim of Bill C-2.
As you know, Bill C-2 was amended by the Justice Committee to impose mandatory minimum penalties for three child-specific sexual offences, child pornography and for procuring-related sexual offences against children, thereby adding to the existing mandatory minimum penalty in subsection 212(2).1 of the Criminal Code, enacted in 1997, for the aggravated procuring of a young person for prostitution.
These amendments respond to concerns identified by the committee with respect to current sentencing practices in cases involving the sexual exploitation of children, including, for example, an increasing use of conditional sentences or house arrest in these cases.
So we adopted — and we are in a minority situation — an amendment that calls for a review of Bill C-2, especially as regards the process for mandatory minimum penalties and to see if the concerns of members were warranted.
I can conclude with an analogy. Former Prime Minister Pierre Trudeau had responded, when he was asked why — and I was one of the professors who asked him the question at the time — he had included a notwithstanding clause in the Charter of Rights and Freedoms. He replied that it was not about choosing between a charter with a notwithstanding clause or a charter without a notwithstanding clause, but a charter with a notwithstanding clause or no charter at all.
It is the same here. We have Bill C-2 to protect children with mandatory minimum penalties or no bill. In my view, it is preferable to have a bill that includes mandatory minimum penalties — which, frankly, was not my choice, but in the end, what is most important is adopting this bill.
When I appeared before the House committee, I said: if there is a case where I am prepared to reconsider mandatory minimum penalties, it is as regards the protection of children from sexual exploitation and especially from child pornography. In this case, I am open, if it is necessary, to including mandatory minimum penalties. In principle no, but in this specific case, perhaps.
Senator Rivest: Your experts and your studies tell you that at any rate it is completely ineffective and you personally do not believe in it. However, you put it in the bill.
Mr. Cotler: Yes, I said that in all honesty, but I provided the reason: to protect children from sexual exploitation. As a result, in order to respect the parliamentary process, perhaps there will be an amendment, for example, moved by the Senate committee with which I will not agree. This legislation exists for the public good. That does not mean that I will not accept the amendment.
We must respect the parliamentary process, especially, and this is what is important, when we are talking about protecting children from sexual exploitation.
The Chairman: What reasons did House committee members give for proposing minimum penalties?
Mr. Cotler: I believe that it was their understanding of conditional sentences. They thought that if there were no longer any conditional sentences, it was necessary to have mandatory minimum penalties, to correct what they thought was an approach in dealing with sexual offences against children. I think that is what motivated members, and that is the reason why we have said that if there are mandatory penalties, we will conduct a review in five years. Then we will see who was right. You have quoted the concerns of our expert and members on this topic.
Senator Rivest: According to my information, it was just the Bloc Québécois that demanded minimum penalties. Did the Conservatives or the NDP do the same?
Mr. Cotler: Yes, the Conservatives were not only in favour of that, they said that without it, they would not be prepared to support the bill. The Bloc said the same thing, that to obtain their support, it would be necessary to include mandatory minimum penalties, and representatives of both parties make up the majority on the committee.
[English]
Senator Eyton: I have a supplementary.
Minister, could you give me a better understanding of the process of examination, debate and public involvement in the other place? I want to know how thorough and extended that was for the bill we have before us.
Mr. Cotler: Honourable senators, there was a sustained discussion. One must appreciate that Bill C-2 is following on its predecessor, Bill C-12. While we have introduced a series of initiatives that were not part of Bill C-12, the predecessor legislation also was supported by the other place.
We believe that we have improved upon that predecessor legislation, which also had sustained hearings with witnesses who appeared before the committee and submitted briefs. There was a range of experts, including non- governmental organizations and law enforcement officials, and there was a comparative inquiry in this regard.
Given that the legislation died on the Order Paper, we had the opportunity to take another look at it, which might well have been adopted before, to see if we could improve upon it. I think we did that by broadening the definition of child pornography and narrowing the defence with respect to child pornography. These are important initiatives that build upon the bill's predecessor and will result in a more enhanced sentencing regime.
Bill C-2 was also subjected to sustained questioning and examination by the committee in the other place. The only change that was made in this legislation was with respect to mandatory minimums. My views on mandatory minimums are well known and are not unlike what you have expressed here. I believe that mandatory minimums serve neither as a deterrent nor are they effective. That has been my appreciation of the evidence thus far.
However, parliamentarians believed that mandatory minimums in areas involving the sexual exploitation of children might act as an antidote to the conditional sentencing regime, which they felt had been unduly utilized in protecting children from sexual exploitation. In the end, we acquiesced on the question of mandatory minimums for several reasons: First, it was consistent with the overall principle and purpose of the protection of the most vulnerable; second, it was the wish of the parliamentary majority, which we had to respect in the committee; and, third, the amendments were limited to sexually related offences, which already had their own precedent in the Criminal Code.
As I indicated in my testimony to the committee, while I am against mandatory minimums in principle, this is the one area in which I would consider them.
Finally, when they chose to adopt this particular mandatory minimum amendment, we proposed our own amendment, which was adopted, to the effect that the whole thing will be reviewed after five years, at which time we will let the evidence speak for itself.
The choice was not between child protection legislation with mandatory minimums or without mandatory minimums. The choice was child protection legislation with limited mandatory minimums in this area or no child protection legislation. You have to make a judgment call at that point and that is what we did.
Senator Ringuette: In regard to the mandatory minimum sentencing, did the department do any cost analysis on this issue?
Mr. Cotler: I will ask any of my three officials here to respond; they bring with them institutional memory that I do not have.
Ms. Carole Morency, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: In terms of specifics, we did not cost out the mandatory minimum penalties imposed in Bill C-2; they came out very quickly at the end. We did look at the types of offences that were being contemplated and had been proposed by the opposition members on the committee and looked at the sentencing practices in those cases.
For example, a private member's bill sponsored by Mr. Marceau, Bill C-303, proposed a number of mandatory minimum penalties, or MMPs. The bill was constantly cited as an example of the type of conduct that was at the heart of discussion on MMPs, and we did look at those.
As for the impact on federal corrections, an MMP of 14 days, for example, would not have any significant impact for us because 14 days would be two years less a day served in a provincial institution. There was minimal impact from that perspective.
We did provide the committee with evidence about how many cases there had been on these types of charges before. We provided information to the committee at clause by clause as to how many cases there have been, based on an adult criminal court survey from 2002-03, so the committee had a sense of the number of charges. That formed part of the picture.
Some of the witnesses who appeared before the committee spoke to specific concerns about how sentencing practices were followed through in these cases. As an example, the police said that they go to the trouble of investigating these cases and laying charges, but if we get a conviction, the outcome is a conditional sentence. The evidence from the Toronto police force was that conditional sentences were being imposed in half the cases they had been tracking over the last couple of years. There was a growing concern by some of the police that if the outcome did not result in a sentence that they felt was appropriate, it was counterproductive for them to invest the time and energy in these cases.
The committee did receive evidence from a range of experts that spoke to a number of issues and concerns. This evidence was before its members when they studied what the sentencing outcomes should be and what possible changes could be made to more effectively or directly achieve the needs addressed in this bill.
Senator Ringuette: Based on statistics, I cannot believe that the department has not studied the probable range of costs associated with this mandatory minimum sentencing.
Ms. Morency: If we look at the offences proposed in Bill C-303, some of those are in Bill C-2. A much longer period of mandatory minimums was proposed in that bill: three months on summary conviction; one year on indictment, or five years. It is difficult to cost out in advance.
Looking at what was in that bill — amendments to Criminal Code sections 170, 171, 212 and on child pornography — most of those are proposed in Bill C-2 now, with a minimal cost or impact being in the $500,000 range. Again, it is not a complete assessment of the cost.
Senator Ringuette: You have a ballpark figure.
Ms. Morency: Based on that package, because we did not have the amendments.
Senator Ringuette: I definitely will support any legislation that will enhance the protection of children.
There was a highly publicized case in Vancouver a few years ago where a store was selling child pornography from its shelves. They were brought to court, and their defence was based on freedom of speech and the artistic form of the pornography.
The Chairman: Do you have the name of the case, senator?
Senator Ringuette: I do not. I am not a lawyer. I tend to keep an eye on these things, but I cannot give you a reference to X v. Y. Perhaps our research staff could look into it.
Mr. Cotler: It may have been the Little Sisters case. I am not sure. There is another case where the issue arose more frontally before the Supreme Court that would have addressed the same issues. It is the Sharpe case.
Senator Nancy Ruth: It was Sharpe.
Mr. Cotler: That was not the book store case, but Sharpe was more fundamental.
Senator Ringuette: My recollection is that the gentleman in question was found not guilty based on freedom of speech and the art that he was exposing publicly in his store. How will Bill C-2 change the freedom of speech scenario in regard to magazines containing child pornography? From my perspective, a magazine depicting child pornography it is not art and it is not freedom of speech. I hope that Bill C-2 will correct that loophole and possible line of defence, or at least clarify to what extent a person can use freedom of speech and art as a defence in regard to child pornography.
Mr. Cotler: Let me try to contextualize that case and at the same time answer your question.
The availability of a defence under our existing child pornography laws was an important factor in the Supreme Court of Canada upholding constitutionality for our overall child pornography provisions. Some will ask why is there any defence. The very constitutionality of the legislation requires that there be a defence to begin with. That is because our definition of child pornography is broad. It spans a wide range of material, including material that depicts the sexual abuse of a real child as well as material that depicts the sexual abuse of an imaginary child.
This broad definition is intentional. We recognize that both types of depiction cause a reasonable risk of harm to children, whether we are talking about a photograph of the sexual abuse of a real child or a computer-generated picture or composite of an imaginary child or even written text that advocates the sexual abuse of a child. What is important, however, is that under Bill C-2, no defence is available for either a real or imaginary depiction where the material in question poses an undue risk of harm to children.
The thing to realize about Bill C-2 in relation to the Sharpe case and the like is that, first, we have expanded the definition of what constitutes pornographic material to capture the kind of material from the point of view of definition that might not have otherwise been captured in the Sharpe case. From the point of view of definition, we have narrowed the defence so that we protect freedom of expression but have not eliminated the defence such that the constitutionality of the legislation might come into question.
The legislative package seeks to respond to the defence of artistic merit and the definition of child pornography in two ways. First, existing offences of child pornography are limited to what might be called a single, two-pronged defence that imposes a harm's-based rationale.
Child pornography remains child pornography. Any defence of it has to be in relation to either a legitimate purpose regarding the administration of justice or a legitimate purpose with respect to education or science or art. In addition to having a legitimate purpose, it must not unduly risk harm to the children. That is the harm's-based rationale.
To begin with, there is a broader definition of what constitutes pornography. Pornography is always pornography. For any act where a person is charged in that regard, the only defence is a legitimate purpose defence, such as a criminal investigation in the case of a police officer or a situation that does not pose a risk of undue harm to children. That would be the case with regard to art, for example.
Senator Pearson: One segment of this bill that I found interesting concerns facilitating the testimony of witnesses and children as witnesses. I know it has been a long-time concern.
I was very happy to see in the preamble to the bill references to the Convention on the Rights of the Child and the child's right to participate. I am not questioning it. I want to put on the record the degree to which this provision of the bill is based on a considerable body of research on the capacity of children to understand that when they say ``I promise to tell the truth,'' that they know what they are doing. I know people ask the question, ``How can you believe that?'' You may want to pass that on to one of our officials. There is a good point in it.
Mr. Cotler: I did speak to this subject during my initial testimony. I have mentioned the change to move away from the matter of competency to the amendment that we have in Bill C-2. I will turn it over to the officials to go into the specifics of it.
Ms. Catherine Kane, Senior Counsel/Director, Policy Centre for Victim Issues, Department of Justice Canada: Honourable senators, I believe you are referring to the quite significant amendments to the Canada Evidence Act. They are based on a solid foundation of research both within Canada and internationally. The system we currently have in place requires the child to first of all be subject to two types of competency inquiry: first, whether they can understand and swear an oath; and, second, whether they can communicate the evidence. That has been interpreted by our courts as a more rigorous standard than was originally intended. It often ends up with a child's evidence not being received, even though that child would be quite capable of providing the evidence and the court would be quite capable of weighing the evidence and determining what parts it should or should not accept.
The reforms will focus on whether a child is able to understand and respond to questions. If the child is able to understand and respond to questions, they can give their evidence.
All of the evidence will be received unsworn. The child will be asked to give a promise to tell the truth. Research indicates that children understand what it means to promise. It is part of their everyday relationships with their peers, their teachers and their parents to make a promise. They cannot always explain what it means to promise, but nor can we sometimes. It is a rather abstract concept, but they do know what a promise means. This will underscore for them that it is a solemn occasion and that they have to give their truthful testimony. If they can relate that concept, their evidence will be received.
If there is any challenge to the child's competency to understand and respond to questions, the challenging party needs to raise the issue and then it will be looked into. Presumably the judge will turn to the Crown attorney, who has some familiarity with the child, to take the child through some questions to establish competency.
Senator Cools: My question is on a slightly different aspect of the issues of child protection. Minister, because you tell us that you are busy working on the whole phenomenon of the protection of children, when can we expect to see proposed legislation that would modify or repeal section 233, on infanticide, of the Criminal Code? The section states that:
A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child or by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.
I have studied this in depth and there is no relationship between murderous behaviour and lactation. Many such cases — and there are too many for comfort, particularly cases of religious neonaticide — are rarely related to mental disorders. As a matter of fact, some are premeditated and wilfully executed deeds. I assume that everyone knows the term ``neonaticide'' and that a man cannot commit infanticide.
The Chairman: That is not related to Bill C-2.
Senator Cools: The minister talked about a series of bills he would introduce in respect of protecting children. I wonder whether he has wrapped his mind around this issue. We do not have the opportunity often to hear from the minister.
The Chairman: He has to leave soon.
Senator Cools: Senator Mercer, do you want to talk to me? You always want to talk to me, don't you? You find me irresistible.
Senator Mercer: The minister is being very accommodating with his time.
Senator Cools: He is and that is why I put this question to him. The minister has an enormous intellect and I knew him before he was a minister. I would like to know whether he has wrapped his mind around this issue and, if he has not, I would like to place it on his radar screen for him to consider. Section 233 of the Criminal Code is not widely known and understood, but it is used far too often to bypass some pretty serious crimes. That is my point.
Senator Mercer should speak less and think more.
The Chairman: Senator Cools, that is not acceptable.
Senator Cools: He started it, senator.
The Chairman: That is not acceptable. Please wait.
Senator Cools: I cannot open my mouth but he has something to say; and that is a drag.
The Chairman: We are not here to talk like that.
Senator Cools: Call him out of order, not I.
The Chairman: You are both out of order.
Mr. Cotler: You are correct to have noted that even before I came to the role of Minister of Justice and the Attorney General, the issue of child protection was a priority for me. When I mentioned a series of reforms, I meant a series of reforms in respect of this proposed legislation — Bill C-2 — and the protection of children and other vulnerable persons. I was not speaking of other legislative issues in this regard. We have sought to identify five broad areas of reform in this generic bill that is protective of children and other vulnerable persons.
I should say that I have not looked at the provision of the Criminal Code that you have cited. I do know, as my officials have advised me, that the department is presently engaged in looking at some antiquated provisions of the Criminal Code. We will bring forward modernizing legislation in due course. This might be included in one of those initiatives.
Senator Cools: A large study was done in the U.K. on this some years ago. I believe that it was the Butler commission.
Senator Joyal: In making reference to your conversation with Mr. Trudeau on the Charter, I might give you additional information to which you were not privy at the time. There was a meeting of then Minister of Justice Chrétien; his Parliamentary Secretary Jim Peterson, one of your colleagues; Prime Minister Trudeau and I, then Deputy Chair of the joint committee. We had to make a decision. Mr. Trudeau asked us individually what each of us thought about a charter with a notwithstanding clause. This meeting was in his office; it was not a cabinet meeting. Mr. Chrétien has reported this meeting in his memoirs, so I am not revealing discussions that should remain private. When Mr. Trudeau came to me and asked what I thought, I said to him: ``un tien vaut mieux que deux tu l'auras.'' It is better to take what we have now than to have nothing.
Of course, this was in the context of negotiation on something we never had — a charter. Now, we have the Charter. When we look at compulsory or minimum sentences, I wonder if it is bad policy or bad law.
As the Minister of Justice, you must be satisfied that it is not bad law. If it is bad policy, we can always make changes or adjustments. However, as the Minister of Justice, especially in consideration of sections 7 and 12 of the Charter, you have to be convinced when you advise Parliament that those minimum sentences satisfy the Charter.
Some Supreme Court cases have pronounced on the nature of the constitutionality of minimum sentences. Could you confirm for the committee today that those minimum sentences satisfy the precedents of the Supreme Court and the criteria they have defined in respect of minimum sentences?
Mr. Cotler: That is a good question. While I would have some questions about the issue of policy, you are correct to say that I have to certify that the legislation comports with the Charter. My view is that the proposed legislation would comport with the Charter in that the mandatory minimum in the bill is not disproportionate, having regard to both the gravity of the offence and the conduct of the offender. You might call it a minimum of the mandatory minimums in that regard. It would comport with the principle of proportionality and the jurisprudence I have read from the Supreme Court and otherwise.
Generally speaking, the provisions upheld in respect of mandatory minimum sentences have a low minimum penalty that, while potentially harsh in certain circumstances, are unlikely to rise to the level of gross disproportion for any reasonable hypothetical; or the mandatory minimum scheme is sufficiently tailored such that the offences cover a relatively narrow scope of conduct and ideally are sufficiently serious to warrant treating with a mandatory penalty.
I would think in this instance the mandatory minimums are tailored to a relatively narrow scope of conduct which is sufficiently serious that one could arguably warrant treatment with a mandatory penalty, the nature of which is not in itself grossly disproportionate having regard to the seriousness of the offence and the responsibility of the offender. In my view, it would pass Charter muster even if it might not always comport with some of my own policy preferences for the reasons I mentioned.
I would add another comment. At the meeting of the federal-provincial-territorial Ministers of Justice, I referred the question of conditional sentencing and mandatory minimums to the FPT committee on sentencing. They are now about to report back, and we will be the beneficiaries of their report.
Madam Chair, I even asked your committee to look into this question because I thought that these matters recur and it would be useful to have the view of this committee given its experience and expertise. However, I appreciated your reply to me that your committee did not have the time to look into it.
We will seek to apprise ourselves of the results of the continuing FPT study, which we can then share with your committee. My department is reviewing the whole question of sentencing principles. We do not want study it only within the context of a particular bill, but also within the context of the criminal justice system with due regard to the underlining principles, such as proportionality.
Senator Joyal: When you answered your own appraisal of the Charter in relation to Bill C-2, it is my opinion that if the court were ever to consider its constitutionality, they would do it in the first context with the objectives in mind in this bill. However, they will look into the other sections of the Criminal Code whereby there are minimum sentences. In my opinion, minimum sentences are not something you pick out of the air and say, ``The crime is so odious that we will impose this minimum sentence.'' There are principles when you impose a minimum sentence, and there must be coherence with the other sections of the code that do or do not impose minimum sentences. It works both ways. We need some rationality, cohesion and coherence within the Criminal Code on the sentencing philosophy of the code.
When you accepted the proposal of the opposition parties in the other place, did you have time to satisfy yourself that those minimum sentences were in coherence with the other sections of the code?
Mr. Cotler: Yes, we did look into the other sections of the Criminal Code. Apparently, 29 offences currently carry MMPs. We were able to satisfy ourselves as to the coherence of the MMPs in this particular legislation and where they otherwise exists in the Criminal Code.
As I indicated, it also exists, for example, in connection with the aggravative procuring of a juvenile prostitute. There already is an MMP with respect to protection of young people in matters of predatory sexual conduct.
I did not want to delve too deeply into it, but we looked into the Charter aspects as well. I gave a rather abbreviated summary because MMPs can run a risk of violating section 12 of the Charter, the right not to be subjected to any cruel and unusual treatment or punishment. The test under section 12 is whether the punishment that is inflicted is grossly disproportionate for the offenders such that Canadians would find the punishment grossly disproportionate or intolerable.
In my view, they would not find the mandatory minimum in this case grossly disproportionate or intolerable having regards to the crime and to the offender. Where the challenge addresses the impact of a mandatory minimum sentence, the section 12 analysis has resulted in the court performing two discrete tasks. The reviewing court must consider whether the imposed sentence, as I have indicated, is grossly disproportionate for the individual offender, having regard to the principles of sentencing, the purpose of the legislation, and the actual circumstances of the applicant.
We looked into the purposes of the legislation and the principles of sentencing. This legislation speaks to the importance of the principles of deterrence and denunciation because we are involved with child protection and the actual circumstance of the applicant.
Assuming that this analysis would not reveal any Charter violation, the court would consider whether the sentencing scheme would have an unconstitutional effect in relation to reasonable, hypothetical scenarios. In our view, this legislation, for the reasons that I have mentioned, would pass constitutional muster. It would be consistent with the other framework of 29 offences in the Criminal Code and it would be particularly consistent with the purpose of the legislation, namely, the protection of children from predatory sexual practices.
Senator Joyal: Could Ms. Morency give us the study that was conducted regarding the sentencing in relation to child pornography in previous cases? It was given to the members in the other place.
You might want to answer that after I ask the minister another question, because I see time is passing.
I want to return to the issue of the objective crime of child pornography in relation to the amendment to section 163.1(b) concerning works of art. In determining if a work of art is deemed to be pornographic, the objective criteria is the harm done to children. Would that definition not strike down works of art like the famous painting of Rosso Fiorentino, a 16th century Renaissance master? One of his works of art in the National Gallery of Canada depicts a goddess touching the sex of a young cupid. It has been commented on before as being ``pornographic.'' Would not the movie Pretty Baby, by Louis Malle, about a young girl who works in a house of bad repute, or the film Lolita, with Jeremy Irons, if seen by a child or by children, be viewed as ``pornographic'' given that definition? Would this definition or including in the Criminal Code the objective element of possible harm being done to a child or to children not strike down some works of art that exist already and that have been accepted as meeting society's level of tolerance?
Mr. Cotler: I will try to deal with that question both from the point of view of the nature of the alleged offending material as well as the defence. I will then ask my officials if they wish to supplement my response.
The proposed legislation seeks to broaden the definition of ``written material'' and will therefore apply to more material than is currently the case.
The current definition of written child pornography only applies to material that ``advocates or counsels prohibitive sexual activity with children.'' That is what was before the Supreme Court in the Sharpe case. The proposed amendment will broaden the definition to also apply to written material that describes prohibited sexual activity with children where — and this is crucial — that written description is the dominant characteristic of the work and it is written for a sexual purpose.
There would be a determination of whether the written description is the dominant characteristic of the work and whether it is written for a sexual purpose. The Supreme Court has interpreted the words ``for a sexual purpose'' as being reasonably perceived as intended to cause a sexual stimulation to some viewers. It is difficult for me to speculate how this might apply to existing works, other than to describe to you the nature of the definition and the test that has been elicited thus far.
However, if any material should arguably meet the broader definition of what would constitute pornographic material, it would be up to the court to determine whether it met the test of the new defence, which is whether the material was possessed for a legitimate purpose and whether there is a risk that it would cause undue harm to children.
I can share with you the tests, both as to the nature of the definition of pornography and the defence. I cannot speculate on what the court would do in a particular case. Let us again remember that all of this takes place against the backdrop of section 2(b) of the Charter — the broad protection with respect to freedom of expression and the broad protection that freedom of expression has enjoyed in our jurisprudence. This would be the contextual approach in that regard.
The Chairman: Minister, I know that you have to leave now and I wish to thank you very much for your presence here today.
Mr. Cotler: You are welcome. My officials can remain. You may find that the trade is worth it, that you will get more and better information from them than from me.
Senator Pearson: I now have a definition of child pornography, but in this case what is harm and what is undue harm? Maybe the courts will eventually define it.
Ms. Morency: Bill C-2 is very much based on the decision of the Supreme Court of Canada in the Sharpe decision, in which the Supreme Court had the opportunity to examine the existing child pornography regime. In that context, it looked at each element of the existing offence, each element of the defence and all the terms, and it provided very full guidance on how those terms should be interpreted, including risk of harm to children.
As the committee may know, the Supreme Court, in upholding the possession of child pornography offence, carved out of that narrow offence works of the imagination that are created by an individual and possessed for his or her own exclusive use and are not shown to anyone, on the basis they do not pose a reasoned risk of harm. The court came to that conclusion based upon evidence provided in that case that looked at the uses made of child pornography by pornographers. The court looked at the full evidence, including the evidence that child pornography is used to fuel fantasies by offenders that might incite them to commit a sexual contact offence, that it promotes cognitive distortions, that it may be used to groom and seduce victims, and that quite a bit of child pornography is produced through actual contact offences against a child.
Against this backdrop, the court said that this kind of material poses a reasoned risk of harm to children, with the exception of what I have just described — works of the imagination for exclusive personal use.
Bill C-2 would be interpreted against that very full interpretation and understanding. That is where the two-part test comes from. The way the artistic merit defence operates now, again based on the Supreme Court's interpretation, any amount of artistic value, no matter how small, is all that needs to be shown for the work to succeed under that defence.
Bill C-2 sets out the two steps: legitimate purpose with respect to one of the identified objects and analysis.
Senator Joyal: That leaves matters very much to the interpretation of the court. We all agree with the legitimate purpose of this bill of fighting pornography, exploitation of children and so on. However, we have to be concerned when we change the limits and we push them into a grey zone because it leaves a great deal to the interpretation of the court. I think that Canadians are entitled to know what is allowed and what is not allowed in our society.
Clause 7, which would amend section 163.1(1) of the code, states:
any... visual representation or audio recording that advocates sexual activity with a person under the age of eighteen years would be an offence under this Act.
Merely possessing a painting depicting an adult with a child or a movie that depicts an adult having sexual relations with a child or that promotes such sexual relations is an infraction under this bill. The bill provides defences, and those defences must be very clear as well. Otherwise, rather than fighting pornography, to which I totally subscribe, we will create more problems.
The Sharpe decision at least established clearly what was allowed and what was not allowed. This bill creates elements of uncertainty, and we must be very conscious of what we are doing.
Ms. Morency: Bill C-2 builds on what is already in the Criminal Code, which includes two sets of defences. We already have a public good defence for child pornography, which is incorporated by reference from the obscenity provision. Administration of justice, science, education, medicine, art, et cetera, are incorporated by reference. As well, there is a specific defence right in the child pornography provisions for material that has artistic merit or a scientific, medical or educational purpose.
Putting those two together, you have much of what is in Bill C-2 condensed into one simplified, two-pronged test. The public good defence for child pornography, which exists now in the Criminal Code and was in the predecessor legislation to C-2, proposed only the public good defence with a similar two-pronged, harms-based test. However, even though the bill had passed in the House of Commons, there was public debate on the child pornography issue last summer. There was uncertainty about what public good means and how we address it in the context of child pornography.
With regard to how we address that, as the minister explained, the proposal in C-2 is the single test. It is similar to the two-step, harms-based approach we had previously, but it is clearer and reflects more of what the Supreme Court talked about in the Sharpe decision. It does build on what is already in the Criminal Code in terms of defences.
Our existing definition of child pornography is quite broad in that it includes images that depict the abuse of a real child as well as a virtual one. Our neighbours in the United States do not have a similar broad definition on child pornography. That is one of the things that distinguishes our law and makes it stronger and more effective. As the Supreme Court noted in the Sharpe decision, in today's day and age with computer-generated images, how can we differentiate between a computer-generated image and a real one?
I know that the Canadian Association of Chiefs of Police will be here tomorrow, but what we have heard from a practical perspective is that police are not faced with a dilemma when they deal with these cases. They look at a seizure of evidence, whatever number of images they may have. There is no debate as to whether the images constitute art. In the rare cases where they may come across something that is written child pornography, it is in the context of a much larger seizure where the case is easily made with charges for the depiction of child pornography.
In terms of the specific examples given, does the work in question meet the definition? Building on what is already in the Criminal Code, Bill C-2 proposes a broader definition for written material. The same definition that we have now, ``advocates or counsels,'' remains. Bill C-2 proposes an additional definition for written material. The court would have to apply the same analysis as it does when it assesses any material: Does it meet the definition? In the example cited, it would be difficult to meet the test that those works were written for a sexual purpose or that the predominant characteristic is the description of unlawful sexual activity for a sexual purpose. The terms ``for a sexual purpose'' and ``predominant characteristic'' have a clear meaning as established by the Supreme Court.
Is it true that when you change, strengthen or amend legislation that there may be some impact? It is a given that there will always be some need for looking at the legislation, interpreting, applying and implementing it. Drawing from the Supreme Court analysis, which is what Bill C-2 does, there is a strong record to work with to support the objectives of the bill to ensure that practice implements the objectives in the proposed legislation.
Senator Pearson: Anyone who is reading Lolita in Tehran will hardly think that it is in the public good.
I feel satisfied. I think it has been very helpful for you to put on the record exactly what constitutes child pornography. Many people are still confused about it.
I can see why the police would have no difficulty determining the difference between the picture of one's baby playing in the bathtub and child pornography. It is extremely different.
Ms. Morency: Even on that point, the Supreme Court has said that those types of bathtub pictures are not caught because they do not meet the definition of the core terms of the child pornography provisions that we have been discussing. That said, in a different context, it is possible — and the court does say — that if those bathtub pictures that we are contemplating are not in and of themselves child pornography, a bigger seizure of all sorts of material being collected for other reasons might lead to a different conclusion in a specific instance.
Again, the Supreme Court's decision is very clear in saying that is not what is caught when we talk about explicit sexual activity. That is part of the definition of what we have now in the Criminal Code.
Senator Pearson: The material must be explicit, prohibited and sexually related.
I have a question on voyeurism. Given the increase in technology, we know that there are these kids out there with their camera telephones taking pictures of their friends in bathrooms, and so on, and sometimes they misuse those photographs. It is an interesting evolution, something I never would have contemplated.
Before we changed the Divorce Act, people used to try to photograph and catch individuals in an in flagrante delicto offence. I presume that kind of activity now would be caught under the voyeurism provision, would it?
Ms. Lisette Lafontaine, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: That is correct; there is no more in flagrante delicto under the voyeurism legislation.
Senator Pearson: It is an interesting shift in terms of how we see these things. If a woman hires a private detective to investigate what her husband is doing, it would be a crime for the private detective to take a photograph, would it not?
Ms. Lafontaine: If it is done in a way that meets the definition of the offence, yes. Voyeurism does not only address the voyeurism that is conducted for a sexual purpose. It would address all kinds of breaches of sexual privacy. Whether it is done to gather evidence of adultery, whether it is done to blackmail someone, or whether it is somebody's idea of a joke, it is still covered under the offence.
Senator Pearson: I applaud the additions to the code of these new crimes.
Senator Joyal: Are we really just giving ourselves a good conscience by the fact that most of the pornography today is on the Internet and is carried and promoted on the Internet? The purpose of this bill is certainly well intentioned. However, in practical terms, given the big holes in the net, when it is implemented, it will not catch many fish. Our means to fight pornography are limited by the reality of the technology of today.
Ms. Morency: I think you will get some evidence on that from the Canadian Association of Chiefs of Police tomorrow. I would come at it from another angle. Technology is forcing us to re-examine how the laws are able to keep pace with how these offences are committed.
The committee will recall Bill C-15A that was here in 2002, which amended the Criminal Code to better address the use of technology in making child pornography available over the Internet. Because of the strength of our child pornography prohibitions right now, the law is keeping up with the use of technologies in these instances.
Does Bill C-2 make an incremental addition to those prohibitions? I would submit that it does. For example, the proposed broader definition to catch audio formats is a welcome addition that will enable us to better address instances where police have said that in the seizure of child pornography they have found audio-only formats. Often the material is audio/visual, but occasionally it can be just audio. That helps us, particularly with respect to the new technologies.
The proposed definition of written child pornography also can be useful to us, for example, in chat rooms. I do not profess to be a technological wizard, but in chat rooms where there is an exchange of written text between people, it often comes very quickly to a sexual purpose. We envision being able to address and use the broader definition to catch that type of an exchange, as well as written materials that are otherwise being offered out there — stories about the sexual abuse of children.
There was a case recently in the Ontario Court of Appeal in R. v. Beattie, where I believe an appeal will be under way soon. If it has not yet taken place, leave to appeal will be sought. The individual in question had written stories that appeared to be, from the judgment similar to what we saw in the Sharpe case, although I think written for a different purpose or possessed for a different purpose. In that case, the court found that those materials fell within our existing definition of child pornography written material. Whether there is an appeal or not, the point is that the broader definition of written child pornography will enable us to better address things that are happening now.
Certainly, the defence, the clarification, the narrowing, the tightening up and the clear test will help us. Is more required? The CACP will speak tomorrow no doubt about some of the broader initiatives in which the federal government has engaged in terms of the national strategy to protect children against on-line sexual exploitation under the lead of the Deputy Prime Minister, as well as recent initiatives between policing, Internet service providers and the government to better address the issues of implementation and enforcement. Certainly more is required. However, from a legislative perspective, Bill C-2 does build on a strong framework right now and will enable the next step, the practical implementation, to go further.
[Translation]
The Chairman: Thank you very much for your comments. I think that we have had a good session today to understand the whys and wherefores of this bill.
[English]
We will adjourn the meeting until tomorrow.
Senator Joyal: Who are the witnesses tomorrow?
The Chairman: Tomorrow we will hear three people representing the Canadian Association of Chiefs of Police.
The committee adjourned.