Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18 - Evidence for June 29, 2005 - Afternoon meeting
OTTAWA, Wednesday, June 29, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, met this day at 4:05 p.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: In continuing consideration of Bill C-2 today, the committee will hear from Mr. Steve Sullivan of the Canadian Resource Centre for Victims of Crime and Mr. William Trudell of the Canadian Council of Criminal Defence Lawyers. Mr. Sullivan, please proceed.
Mr. Steve Sullivan, President, Canadian Resource Centre for Victims of Crime: Thank you for the opportunity to come before the committee once again to speak to another important bill. My previous appearance was in consideration of Bill C-10. I am pleased that both Bill C-10 and Bill C-13 passed.
I will keep my remarks on Bill C-2 brief, after which I will try to answer any questions senators might have. The centre testified before the committee in the other place on this bill as well. It has gone through some changes since then so I will try to speak to those changes as well.
We support Bill C-2 and I will address the portion of the bill that has not received much public attention but is important to some of the people with whom we work; the provisions that will help to facilitate testimony for vulnerable persons by trying to lessen the burden and the difficulties of testifying in court.
With respect to violent or sexual offences, reporting the offence to police takes a great deal of courage. We know that the majority of sexual assault victims do not report the offences to the police for a variety of reasons. Complainants are courageous to come forward knowing that they may have to testify in open court with a roomful of strangers, talk about the most painful and personal experiences of their lives and be cross-examined by people who are doing their job by trying to discredit the complainant's testimony. Coming forward with such prospects ahead is an incredibly difficult thing to do.
If, within the bounds of our justice system — respecting the right to be presumed innocent, respecting the right to full answer defence, we can create mechanisms and processes to facilitate that testimony that would be good for the justice system in general.
Bill C-2 does not introduce anything new into the system. Rather, it will expand on important existing protections that have been used but under-utilized across the country. For example, it will expand on protections for complainants to not be personally cross-examined by the person who is accused of victimizing them. Imagine being the victim of a sexual assault or of criminal harassment and testifying in open court, and then being challenged by the person accused of victimizing you. That is difficult for the victim and it is important to realize what these amendments to the Criminal Code are about, which is facilitating testimony.
The bill proposes to make it easier for information to come before the court, allowing the judge, the jury and the lawyer better access to information to make decisions that are more informed. Bill C-2 will do that.
When I testified before the committee in the other place, concerns were expressed by a group about whether this could encourage or facilitate wrongful accusations and/or wrongful convictions. I am not aware of any evidence to suggest that the existing protections upheld by the Supreme Court have led to or could lead to wrongful convictions or wrongful accusations. Wrongful convictions do take place, whether these protections are used or not. Sometimes our system is not perfect but there is no evidence to suggest that these protections or the provisions in this bill would encourage wrongful convictions.
Certainly, we know that most victims do not report. Nothing in this bill would encourage anyone to go through that painful process. Some people do make wrongful accusations but I do not envision that these provisions will facilitate those actions.
It is important to realize that there is nothing automatic about these protections. In some cases, there are presumptions, for example, that the people not cross-examine victims of criminal harassment. Even so, it is not automatic because judges will still have the discretion to deny the request. We know that many of the protections, such as screens and closed circuit televisions are not common because some courts are not set up to in that way. It is important to keep in mind that judges will have the discretion to decide whether it is appropriate to use the discretions in every case. If it is necessary, then the protections are in place.
I would like to make one comment about publication bans. Although it is not addressed in the bill, senators might want to keep in mind that in respect of sexual assault victims, publication bans are fairly automatic, although not on a large scale. A publication ban protects the complainants' identity, which is an important protection for a number of complainants. It is not something everyone wants. In a limited number of cases, but I believe important nonetheless, we found there are some women victims who simply do not want those protections and it can be onerous to have the publication bans lifted. The Crown does not represent the victim so what the victim might want may be different from what the Crown may want. Many years after the fact, if a victim decides to go public she has to back to court to have the ban lifted.
Victims, who decide at some point to speak publicly, can face certain challenges. I do not know whether we need to address those challenges through legislation or insist on better communication between the victim and the Crown. However, it is something we may see more of as more victims come forward and speak publicly about these issues.
I will touch briefly on one issue that has received much of attention, and that is the new category of child exploitation. Many people have called for the raising of the age of consent. We have in the past called for the raising of the age of consent. However, looking at the proposal put forward in the bill, I am optimistic. I am concerned how it will be played out in the courts, but we need legislation to have the discretion to deal with the 40-year-old who is seeking a sexual relationship with a 15-year-old while, at the same time, recognizing the 15-year-old and the 20-year- old may not be a situation to be dealt with under the criminal law. However, as the parent I may not be too happy about that. This bill allows for the discretion to look at individual cases and decide whether the criminal law is really the best avenue.
Having said that, the bill builds on the existing provisions but it will be a new provision for the court to interpret. There are people in the other place who raised concerns that it may be too complicated and it may not be workable. Our recommendation at the House of Commons committee was a review of the provisions within five years to see how they are working, and whether they need changes.
The final issue I will touch on, which has probably received the most attention in the bill, are the provisions with respect to child pornography. I know that you had some witnesses last week from the Canadian Association of Chiefs of Police talk a bit on that subject. I believe one of the members from the OPP brought samples of child pornography.
I know that later on you will hear from groups representing writers and artists, and I know they have expressed concerns about the bill infringing on their freedom of expression. I am not an artist. You will have to hear from someone much more sophisticated than I am. However, I have looked at the books and the pictures that they are concerned with and I do not see how they can be at risk.
The bill is specific. It refers a number of times to the
...dominant characteristic, the description, presentation or representation, for a sexual purpose, of unlawful sexual activity with a child.
It talks about created for ``sexual purpose.'' It talks about being created to counsel someone to have sexual activity. It is very specific on the federal government focus, and it is not Lolita; it is not a book that makes mention of an adult man who has a sexual relations with a child.
In reality the other thing — and I am not sure if the CACP focused on this — is that the police are dealing with rape and abuse of children on the Internet. It is not someone's fantasy, it is not someone's imagination; it is the real torture of children. They are seeing trends for younger victims and they are seeing trends for more violence. They have their hands full dealing with the Internet, and they are nowhere near capable of dealing with the problem.
You know the challenges and I am not criticising law enforcement in Canada or across the world, but it is a huge problem. Law enforcement does not have the time to go to libraries and art museums to look for child pornography because someone may have painted a picture that offends someone else. The last time a painting was the subject of a criminal offence was in 1993 with Eli Langer, and that was shortly after the legislation came into effect and before the Internet boom. The most prominent case is Robin Sharp. I do not know if any senators have seen what he created. Although the court found his creations did have artistic merit, under this legislation his creations are not art. He was also found with pictures of young boys.
When police find a collection of child pornography, and there may be writings or there may be, as in Mr. Sharp's case, comic books almost, they also find real pornography. The artistic merit, the artistic defence, although it has garnered a lot of attention particularly because of Mr. Sharp, is not much of an issue for law enforcement. The provisions in the bill are appropriate because under the previous law Mr. Sharp's material was declared legal. I believe if this bill had been in place his material would not have been declared legal. Any law that would have said his material is acceptable is flawed, so this bill corrects that flaw.
Having said that, though, artistic merit — Lolita, paintings, the kind of things you will hear from the witnesses this evening — is not an issue for law enforcement and I do not think it is even covered in the legislation.
The final issue I will mention concerns the amendments with respect to mandatory minimum sentences. We testified before the committee in the other place a couple of years ago when they began a review of conditional sentences. There was an election called before that committee could report back. We recommended that conditional sentences not be used for sexual offences involving children, including child pornography. The information from the witness representing the Toronto Police Service was that one-half of the Toronto individuals convicted of possession of child pornography related offences are getting conditional sentences. These images are just horrific. Every time they are downloaded or viewed, someone is invading that child's privacy and it is a permanent record of the most painful moments in that child's life. I do not think we can devalue the importance of someone taking the steps to download, possess, trade, distribute, create, whatever those child pornography images. Those are among the most horrific things you will have ever seen if you have ever seen them.
I am not a big fan of mandatory minimum sentences. It is appropriate in most circumstances for courts to be able to tailor a sentence to an offence and to an offender. Unfortunately, in this case the courts have not given these kinds of offences the seriousness that they deserve.
As far as the penalties proposed, at the committee I attended there were certainly a lot of numbers bandied around. Some of the numbers were unreasonable and would have been found unconstitutional. The sentences proposed by the committee are quite appropriate.
Those are my remarks. I look forward to trying to answer any questions you may have.
[Translation]
The Chairman: Formerly, you were in favour of setting the age of consent at 16. You seem more optimistic now with regard to the consent provisions proposed in Bill C-2, which would also contain a provision providing for a review after five years. You also suggested this to ensure the efficiency of the consent provisions. Why five years? This is one of your suggestions. Was there any specific reason to suggest a five-year period?
[English]
Mr. Sullivan: We recommended five years. It was not a magic number for us. It just seemed to me that five years was a consistent number in other pieces of legislation where there is a provision to call for a review. It is more from an organizational point of view to be consistent with the kinds of other reviews. Certainly, we would have no objection to an earlier review. Five years seemed to be practical to give the courts time to figure this out, and for appeals to work their way through and see how the legislation is working.
Senator Ringuette: I welcome your comments and your support for this bill. The Canadian Resource Centre for Victims of Crime has probably seen many things to which we are not privy.
You have acknowledged that there are some wrongful accusations and convictions. Are you aware of any statistics on that subject?
Mr. Sullivan: Unfortunately, I am not. We have all heard of the more prominent cases such as Morin and Milgaard, and there have been some here in Ottawa involving sexual assault. I do not have any statistics to share with you.
Senator Ringuette: With your knowledge of wrongful accusations and convictions, how do you feel about the minimum sentencing in the bill? As some people are wrongly convicted, will minimum sentencing be a double wrong?
Mr. Sullivan: It is important to recognize that these will not be the first minimum sentences in the Criminal Code. We have minimum sentences for offences involving firearms and for homicide. The minimum sentence for first degree murder is 25 years. The general concern about wrongful convictions exists with regard to other offences with minimum sentences.
It is not my intention to devalue the impact of a wrongful conviction on anyone. However, I think our system is fairly good at figuring out who is guilty and who is not. Keep in mind that up to 90 per cent of people plead guilty.
Senator Ringuette: The police informed us of that statistic last week.
Mr. Sullivan: There is always concern about wrongful convictions, whether or not the offence carries a mandatory minimum penalty. There is always a stigma, even when someone is acquitted. I know people who still believe that Guy Paul Morin was involved in the murder of Christine Jessup, even though he has been publicly declared innocent.
One of the problems is that offenders in possession of child pornography are often people that do not have a criminal record. They are sometimes respected members of society — doctors, lawyers or police officers. They are not the kind of people the courts are used to seeing, and when the judge sees the offender's background, he bases his sentence on a clean record and good social standing. The sentences are often inappropriate for the crime.
[Translation]
Senator Rivest: My question is about the victims of sexual crime. Recently, in Quebec, there was a high-profile case because the victim was a well-known figure. She constantly told the media how she appreciated the quality of police services for victims, as well as the services of the crown prosecutor and other social workers.
Over the past years, at the national level, have you noted any clear improvement in the way that victims of sex crimes are received and treated by the legal system?
[English]
Mr. Sullivan: There has been much progress made in the treatment of victims. I attended a consultation meeting today to discuss a new fund that will help victims attend federal parole hearings. That is a different issue, but it is another example of how the federal and provincial governments are trying to improve things for victims.
The victims' movement was begun by women's groups that started speaking out about sexual assault and domestic violence. The first sexual assault centres emerged in the 1970s and they have certainly progressed since then. There is real awareness among the public as well as among Crown attorneys and police officers, and there has been increased training for police services.
Unfortunately, we have not seen much movement in the reporting of sexual offences. These offences are still not reported to police. The court system is not always nice to sexual assault victims. It the nature of the offence that it often involves two people who know each other, perhaps in a dating relationship. It is his word against hers. There are not always physical indicators of violence, and it is very difficult to prove such offences, so police are skeptical about laying charges. It is not that they do not believe the victim, but they know it will go nowhere. Crown attorneys are very cautious as well. Victims have seen cases such as the Michael Jackson case and the Kobe Bryant case where the victims are dragged through the mud and their credibility questioned. Also, despite the progress that has been made, huge stigma still accompanies sexual assault. When a woman is sexually assaulted late at night, the first questions often are: What was she doing out so late at night? Was she drunk? How was she dressed? Even in 2005 those questions are asked. We are all guilty of it sometimes.
In response to your question, there has been progress but there is more improvement to be made.
Senator Pearson: Thank you for your testimony. Has the Canadian Resource Centre for Victims of Crime worked with young victims who have been involved with pornography?
I do not know to what extent they have been identified, whether any of them have come forward or whether you have any programs to work with them.
Mr. Sullivan: We have not worked directly with any victims involved in child pornography. One of the huge problems in our approach to this is that not enough is done to identify the victims. It is a huge challenge, but the police are beginning to make progress in that area.
Senator Pearson: I am not saying that you should. I am interested to know whether other centres are now evolving.
When issues around the sexual abuse of children first became public through the ``Badgley Report on Child Sexual Abuse,'' a flood of organizations began to work with the victims of child sexual abuse. I have not heard of any group that has taken on this more challenging task. I gathered up my courage and looked at the images provided to us by the police. The experiences that those kids would have undergone when those photographs were taken are horrible. I do not know where they go for help.
Mr. Sullivan: Toronto Police Services has become a leader in identifying these children. We do not know the long- term implications for a child who knows that those images are probably available forever. There is no way to eradicate them from the Internet.
I had a discussion with Detective Gillespie from Toronto Police Service. At one time, they were trying to locate a specific child and they developed a plan with an individual who would provide counselling to her if she were found. I will try to find some information for you about this, but I am not aware of any program in Canada.
Senator Pearson: In spite of this new law, it is an emerging issue. The policewoman who appeared before us spoke about there being 1 million images on the Internet.
They are not all Canadian children, by any means. However, many Canadian children will have been involved. Even if they came across these things inadvertently later on, the feeling that such an image is out there of you when you were three or four is a constant cloud.
Mr. Sullivan: Actually, Canada has adequate laws to investigate and prosecute individuals involved in these crimes. There may be some fine tuning and the police could certainly educate more than I could. We have the tools to investigate these cases. People talk about sentencing. The real problem is resources. Unfortunately, as you know, we do not have enough resources. That is not just a problem for Canada; that is a problem across the world.
Senator Pearson: I was interested and thankful for your comment around the age of consent. The significant thing about this legislation is that by making the age of consent irrelevant in the crime, it will protect children up to age of 18 years. That is one of the positive sides of the legislation. I agree that we do not know how it will play out in the court and it will be a great challenge for judges.
Mr. Sullivan: I agree. That is one area to focus on. Certainly, at the committee other witnesses advocated for the age of 16, which is a simpler way to do it, but we would be missing those who would be just as vulnerable and subject to exploitation at the age of 15 years.
The other thing good thing about the legislation is the focus on the intention of the offender or the accused. We are not trying to say to young people that it is illegal for you. Kids will explore; they are doing it now. The focus is on the adult person and his or her motives.
Senator Pearson: That is right.
Senator Joyal: Mr. Sullivan, I wish to approach this issue the other way around. It may not happen often, but we have seen young people make false allegations. We saw that in Vancouver two or three weeks ago.
All kinds of reasons and motivations cause young people to make those accusations. For example, a girl might make the accusation against her professor because he has not paid enough attention to her in class. There are cases. You know about them.
How do we ensure that the right to cross-examine a witness or a victim in that context also protects the rights of the accused?
The penal system of justice must provide a fair opportunity to seek the truth. As much as I am concerned about the majority of the real victims, we must be concerned with the interests of the justice system. It happens that young people may make false and fabricated accusations. We know the stigma that remains on a person, professor or any adult who happens to be in contact with a young person over such an allegation. You know the system. Immediately, the person must be suspended and reinstated after the trial. We know about the damages, and so on.
Are you satisfied that this bill maintains the equilibrium between the rights of the victim to be heard in a context that is less traumatic than a court hearing? We know that a court hearing is a trauma for most people who enter the system. On the other hand, we must be satisfied that the accused person has a fair capacity to defend him or herself.
Mr. Sullivan: I agree. There is a recent case in Ottawa of a police officer charged with sexual abuse of his step- daughter and acquitted. The judge took the unusual step of saying that he believed that the step-daughter and a friend, the two complainants, were lying. That is fairly unusual to go beyond just acquittal and to declare the police officer in this case innocent.
You are correct. That police officer faces that stigma. I am sure there are a number of people who know him or know of him who still believe that he is probably guilty of those offences. Whether we are talking about sexual assault offences with provisions or any other criminal charge, we must always be concerned about wrongful convictions. It certainly does not help victims and it does not help the credibility of the justice system.
In looking at these proposals and being satisfied that they do, on the one hand, help facilitate testimony while not infringing on someone's opportunity or right to make full answer in defence, these are not new provisions. They are building on provisions that are already in place. There is no evidence that I have seen or, frankly, I do not know of any cases where there has been a wrongful conviction because a screen was used or because the accused was not personally allowed to cross examine or the person testified through closed-circuit testimony.
There have been wrongful convictions involving, as you mentioned wrongful convictions in B.C. The most famous case is from Saskatchewan. Those things happen. I do not think these provisions will increase that risk. The judge has the discretion to allow the protections after considering all the information and determines whether they are necessary to facilitate that testimony. These provisions are used sparingly because of the concerns that you raised; namely, we need to ensure that people have a chance to make a full and fair defence. However, at the same type, we want to ensure that the court benefits from as much evidence and the complainant's testimony as possible.
The existing provisions work without infringing too much on the accused person's rights. These provisions build on that. The fact that there is discretion will be appropriate to address the concerns that you mentioned.
Senator Joyal: My other question concerns proposed new section 486(1) of the bill, on page 14, the last part of the paragraph. It is the section dealing with the exclusion of public in certain cases:
... if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order, or the proper administration of justice, or is necessary to prevent injury to international relations or national defence or national security.
We are dealing with child pornography. I am amazed. I know that there are exceptions of international relations, national defence and national security, but we are dealing with child pornography. We are not dealing with terrorism or federal-provincial relations.
I am trying to determine in which statute that section generally stated. I am surprised that this change will allow a justice to exclude the public during a child pornography case that might have an impact on national defence or national security. Are we not going overboard?
Mr. Sullivan: I not sure I can answer that question.
Senator Joyal: I would understand if there would be a period after ``the proper administration of justice....'' We all agree that you cannot bring justice into disrepute. However, we are amid international relations, national defence and national security. Who do we want to protect?
Mr. Sullivan: We could add to these provisions to facilitate testimony but, to be honest, I do not have an answer to that question, for which I apologize.
Senator Joyal: All right. I read the bill and wondered whether the Department of Justice includes such a clause in every bill. Is it simply a standard clause? I do not see any obvious relationship between fighting child pornography and protecting national defence.
Senator Pearson: We could ask a departmental official to explain. I have been told that it is from a section of the Criminal Code. If the committee needs further explanation, an official could give us clarification.
Senator Joyal: The witness said that he supports the bill and so I asked the question on the section about the exclusion of witnesses and testimonial aids.
Senator Pearson: You do not need to answer the question.
Senator Joyal: I do not mean to embarrass you, Mr. Sullivan.
Mr. Sullivan: Unfortunately, I do not know everything.
Senator Joyal: We are two of a kind. Thank you, Mr. Sullivan.
[Translation]
Senator Nolin: My question is about the changes made in the sentences. Do you keep statistics on the victims of crime that you are in charge of?
[English]
Mr. Sullivan: What specific statistics do you want to know?
Senator Nolin: My concern is the way in which we evaluate the effectiveness of sentences. Will we see that person again in the same context? What is the point of increasing penalties if, in two years, we see that person again? That is why I am concerned that you maintain those statistics.
Mr. Sullivan: We do not keep statistics on those rates. Our clients are the victims, on whom we keep information and with whom we have an ongoing relationship. Are you asking whether a victim might be victimized again?
Senator Nolin: Yes.
Mr. Sullivan: Certainly, if they were to come re-contact us, we would not keep statistics on it but we would have information on the individual. Many of our clients have an ongoing relationship with the centre because generally the offence is of a more serious nature for which the sentence might be longer than the average.
We deal frequently with family homicide, violent sexual assault and aggravated assault. Those clients are dealt with most often but we also deal with others who might call for information. I would not have statistics on a victim we dealt with today on a sexual assault, for example, who might come back two years later because of sexual assault. We do not have those statistics.
Senator Nolin: You do not maintain such numbers.
Mr. Sullivan: No.
Senator Nolin: You cannot tell us whether the amendments to sentencing that we are contemplating would be proper, just or effective.
Mr. Sullivan: No, not in that context, senator. One thing to keep in mind if the offender re-offended, it might be against a different victim so we would not know that even if we did keep those statistics. We know that people who have been victimized are at risk of being victimized again but not necessarily by the same person. In domestic violence situations, we know those victims are at risk of being victimized by the same person. The short answer is that we do not have statistics to indicate that one of our clients has been re-victimized by the same individual.
Senator Nolin: Do you believe that a tougher sentence would act as a deterrent to re-offend?
Mr. Sullivan: As I mentioned earlier, I am not a big fan of minimum sentencing or of raising the penalties from 10- 15 years because no one receives those anyway. For specific offences, I do not think the sentences reflect the seriousness of child pornography offences. Those investigations are complicated for law enforcement, time-consuming and expensive. A conditional sentence or house arrest sentences do not reflect the seriousness of the offence.
I do not think tougher sentencing is a solution to the problems we face with violence and the sexual abuse of children. However, it is appropriate to address the seriousness of these offences and send a message to the courts. Frankly, I wish the courts did not need that message.
Senator Nolin: Why is it important?
Mr. Sullivan: It is important to send the message that this kind of offence is one of the most reprehensible that anyone could commit.
Senator Nolin: The message includes the punishment component.
Mr. Sullivan: Absolutely. Within that, I would love to see, as I am sure all senators would love to see, more treatment programs for offenders as part of the sentence. Not only would there be a minimum sentence of 14 days but also counselling to address the problems. I would never suggest that the only solution to the problem is more punishment because there is a range of solutions. Having support in the community for the offender to turn to after release is important for the difficult times yet to get through. I would never suggest that punishment is the sole solution but it is an element that the public respects.
Senator Nolin: I am not suggesting that we get rid of the punishment component but I am trying to learn from your experience whether it would be effective to increase or change the patterns of sentencing.
Mr. Sullivan: I am sure the clerk could obtain a copy of Detective-Sergeant Gillespie's testimony before the committee in the other place. He talked about their experience in Toronto where one third of the people they have dealt with they are seeing again. We know that one of the problems is that child pornography is difficult to detect the first time around. Unfortunately, no one is sitting over the shoulder of these people to see if they are re-offending, and the same occurs in cases of child sexual abuse. The official recidivism rates of child sexual offenders, who are often tested after two years, are almost meaningless. We know that sex offenders and child predators will usually go seven years before re-offending. We know that sexual assault is the least reported crime.
However, I take your point. We should not do something because it makes us feel good. Rather, we should do it because it is the right thing to do and there is a balance between punishment and treatment and community support.
Senator Mercer: Information from the Canadian Resource Centre for Victims of Crime indicates that these in many instances offenders were victims themselves.
What are we doing in that respect to the victims of crime? Are we advising such victims on how to avoid becoming a victimizer at a later date? Are we providing psychological assistance to the victim to prevent that transfer to victimizer? In the end, we will continue to talk about the victims today becoming the victimizers in later years.
Mr. Sullivan: Unfortunately, we do not do very much. We talked earlier about the improvements made with respect to sexual assault victims and the increased number of sexual assault centres across the country. There are only two places in Canada where adult male victims can go for treatment. One is here in Ottawa and is called The Men's Project. They deal with abusers and with people who are at risk of becoming abusers. It is an excellent program although it is underfunded and struggling. The other organization I know of is in British Columbia where they are trying to form a national association. However, there really is not much done for male sexual abuse survivors. We know most of the abusers are men. The sad reality is that unless people offend they are unlikely to get help.
There was an article in the paper recently about an increased number of men who have a sexual interest in children — certainly not a large number, but it is becoming a bit more common, at least in this area — proactively going to get treatment before they abuse. That makes an absolutely incredible amount of courage because if that becomes public or someone find out the stigma is unbearable.
We need to encourage people to do come forward. There are many paedophiles out there that never touch a child, but they have an interest in children. They are strong enough to fight that urge and we need to build the supports for them to safely go and proactively get that treatment. We also need to do the same for people who have been abused and are at risk of being abusers.
Senator Mercer: Perhaps one of the things governments in general are not addressing is the cycles of poverty, crime and abuse. Sometimes they are all interrelated, although abuse is not limited to the poor although they are more vulnerable.
We need to find programs that can break the cycle of abuse. If we identify victims and prevent them from becoming victimizers, we will make tremendous progress in breaking the cycle of abuse. Yes, we will still have people who will commit the crimes, but they will come from an unknown source. With a good program, we can intercept the victims and break the cycle. Unfortunately, it is the crime that keeps on giving in many ways.
Mr. Sullivan: Female victims tend to internalize their abuse and harm themselves and put themselves in dangerous situations, whereas male abusers are more likely to act out.
It is safe to fund sexual assault centres that help women — it is very important, do not get me wrong — and necessary. It is maybe not as politically correct or popular to fund programs for potential abusers. There has been little done to address adult male survivors of sexual abuse. Frankly, governments have been reluctant, almost politically correct.
Senator Mercer: We are spending good money after bad if we are not attacking this issue and we are not trying to break the cycle of abuse. It is when you break the cycle that you make progress. If you let the cycle go on it gets bigger.
Mr. Sullivan: We often wait until after someone has committed an offence and in prison and then we try to treat them, which is not always a good environment in which to treat someone. Sometimes they are so far along that treatment is not effective at that point and we have missed, as you mentioned, the opportunity to break the cycle.
Senator Joyal: As you know, the prison culture is hostile to that type of prisoner. Most of the time child molesters have to stay in specially isolated wings of the prison because the other prisoners are not nice to those kinds of people.
When we impose minimum sentences we raise the bar on the perception that they are in prison to protect society. However, they stay in isolation and rehabilitation is difficult. When they have served their sentence, they leave prison.
We know that the people who molest children suffer from a mental defect. If you are addicted to child pornography, you are a deviant, you have a psychological problem that needs treatment.
The conditions under which the prisoner serves his term are certainly not the best conditions for the release of that person back into society. The treatment that they receive during that time is almost meaningless. Then they start the cycle all over again. I am not a specialist, but that is an average common sense perception.
We will achieve the objective of this bill in fighting pornography in an effective way. We will fight it, there is no question. However, I have reservations about the level of its success. I will not vote against the bill but in real determines what will it achieve?
Mr. Sullivan: I take your point. I do not know if there is a magic number on how you would accomplish it, but the intention is to make the penalty uncomfortable. A lot of these people, especially with child pornography, are not the kind of people who would normally end up in prison. They are doctors, lawyers, well-to-do people, public servants, they are educated.
Sometimes we talk about punishment, we go too far, and the punishment loses its impact. With these people, you do not want a sentence that is too comfortable. Some ague that a conditional sentence is too comfortable given the lack of resources that probation officers have to adequately supervise people. However, you want to make the sentence mean something and make the person accountable without going too far and risking a Charter challenge and making the punishment ineffective.
Punishment is an appropriate aspect of the sentence, deterrence, and all those things, but we also need to address the deviance, that is the ongoing addiction to child pornography. It is impossible to treat that addiction in 14 days at the OCDC. The conditions in our provincial institutions are not good. We need to build a structure so that these people have some supports and guidance so they do not get back into the cycle of abuse.
This bill will not solve the problem of child pornography, but I believe it is one more piece of the puzzle for young offenders.
The Chairman: Mr. Sullivan, it has been helpful to hear from you today. Thank you for your presence at the committee.
Senator Joyal: I want to apologize to the witness because I was under the impression that section 486 was in a special section of the code, but it is not. It is in the general section of the code dealing with the administration of the system. That is why there is the mention of ``prevent injury.'' It is not directed at child pornography. I thought it was in a section of the code quite well spelled out, so I apologize to you, sir. I did not want to embarrass you at all.
The Chairman: Honourable senators, we will hear next from Mr. William Trudell, Chair of the Canadian Council of Criminal Defence Lawyers.
Welcome to our committee, Mr. Trudell.
Mr. William Trudell, Chair, Canadian Council of Criminal Defence Lawyers: Honourable senators, on behalf of the Canadian Council of Criminal Defence Lawyers, it is a privilege and honour to appear before you on another very important piece of legislation.
I believe I speak on behalf of the entire legal community when I say that we depend on the Senate so much, because you really are the gatekeepers. Your work effectively changes criminal justice as we know it.
We often appear before the House of Commons committee. The audience there is different, and sometimes their positions are partisan, which is understandable. We want you to understand that being invited to appear before you is very important. We go back to our constituents and say, ``Don't worry about it; the Senate is listening.''
There is no one in this country who does not agree that we must protect children and other vulnerable people from persons who do not respect them. Our concern in relation to this legislation is whether it is optically doing the job or really doing the job.
I do not want to suggest, as others have before the House of Commons committee, that this legislation is a reaction to Sharpe and Beattie, two of the most prominent cases in Canada. I respectfully submit that parliamentarians are more careful than that, but one cannot help but reflect on where we are and the reaction that we see.
I like to view this section of the Criminal Code and child pornography after the Supreme Court of Canada's decision in Sharpe as a picture. Chief Justice McLachlin and the majority explained that picture, but I respectfully submit that we cannot have abstract art.
Under the new definition of child pornography, when we go into an art gallery we have to ask, ``What does `legislative purpose' mean?'' I am concerned, on behalf of the council, that this only reopens the gates to question the issues that we thought were given guidance by the Supreme Court of Canada in Sharpe.
I understand that you will hear from many members of the public about what the removal of the important words ``artistic merit'' means. We all know that this new definition of child pornography will invite interpretation and legislation for years to come. Artists, writers and painters will express their concerns, and they are the public. However, as a lawyer I can only say that the new definition is vague. Why are the words ``artistic merit'' taken out of the code? The picture in the gallery has now changed, and we do not know what it means. As a defence counsel, however, I am more concerned about the process of getting to the art gallery.
I heard Mr. Sullivan, whom I know and have a great deal of respect for, talk about minimum sentences. The first thing I ask you to look at in this bill is mandatory sentences. Mandatory sentences do not work. This bill contains mandatory sentences for first offenders. Even in impaired driving legislation there is no mandatory minimum jail sentence for a first offence; there is for the second, but even there notice must be served. The domino effect of mandatory prison sentences will be huge.
First, there will be more litigation. If a person who does not fit the profile of the usual accused before the court is facing jail, there will be a trial. There is no incentive to plead guilty, so there will be more trials, and many courts already have a serious problem with backlog. This will only exacerbate that problem.
This effectively binds the hands of a judge in dealing with offenders. If there is a mandatory sentence, judges will no longer be able to entertain conditional discharges or conditional sentences. Conditional sentences are disparaged in almost every criminal justice hearing, be it in Parliament or by special advocacy groups.
Conditional sentences are in the Criminal Code in response to section 718 of the Criminal Code that says that we should not incarcerate people unless necessary. A conditional sentence is a sentence of imprisonment, but it allows the judge to tailor the terms. It allows for treatment, et cetera. That change will create serious difficulty in the criminal justice system. I ask you to consider that change seriously.
I read some transcripts of the evidence of previous witnesses before this committee. There was some criticism of judges in previous transcripts. Judges cannot speak for themselves, and I am not here on their behalf, but it is unfair to suggest that judges do not see the entire picture. We ask judges to do a very difficult job, and the imposition of mandatory sentences will not allow them to do it.
There are mandatory sentences in the United States, but we do not want to move toward a grid system. The emphasis in criminal justice in this country is on restorative justice, on dealing with matters in the community, and these provisions do not reflect that system.
The defence bar urges you to carefully consider mandatory sentences. They do not work.
Many years ago, car theft was the most serious offence and, therefore, there were mandatory sentences. That did not work, so they introduced, ``take auto without consent.'' Then we had a mandatory imprisonment of seven years for importing. That did not work. The Crown would prosecute ``possession for the purpose of trafficking in drugs'' as opposed to the importing, to avoid the mandatory sentence.
We are concerned that we may be going too far in not questioning the capacity of a witness. A judge should always be able to find out whether a witness, however young, understands questions and can answer them.
Generally, we all want to ensure that our vulnerable are protected but, in my respectful submission, does this bill do anything other than invite litigation and a step back? We all want to ensure a safer society.
Senator Mercer: I, too, have some concerns about minimum sentencing, but I have concerns from the point of view that there are a number of judges who tend to be what some people would say are ``lenient'' in the sentences that they give out under the current rules.
Do you think that there might be a tendency for those judges to acquit rather than give a light sentence? Is it possible that they will realize that finding a person guilty will lead to a minimum sentence that makes them uncomfortable because they did not impose that sentence before the minimum sentence rule was imposed?
Mr. Trudell: Can I respond directly and honestly?
Senator Mercer: I hope so.
Mr. Trudell: I have been practising criminal law for 32 years. I really do not think that there is a plague of lenient judges. Quite frankly, I am concerned about the other side.
Judges cannot answer for themselves, but the most difficult job a judge has is to find the appropriate sentence. We must remember that judges' sentences, in many cases, can be reviewed by higher courts.
What is happening now is that before even a trial takes place, we have judicial management and pre-trials. You will get an idea of what the judge is thinking about in terms of sentence, but if Crown counsel is not satisfied with a particular judge, the Crown counsel would not agree to a plea in front of that judge.
This is anecdotal that judges are lenient. Quite frankly, I apologize, but I do not agree with police officers, witnesses, who come and say the judges are being too lenient. They are not being too lenient. Why are they being too lenient? Are they not locking people up; is that the answer?
Judges have to go through the principles of sentencing before they reach the proper decision. If a judge gives a conditional sentence, there might be someone on the other side of the page who says that is too lenient, but a conditional sentence is a sentence of jail.
I do not know that it means there will be more trials in front of those judges, because judges have to look at all the principles of sentencing and apply them. Some judges are reluctant to send people to jail, where other judges may do it more easily, but they both do it on the basis of what they think is proper.
With great respect, senator, I do not accept that there are too many lenient judges. My experience is that these days, with the public really watching, judges are careful, especially in cases like these, to reflect public concern. I am not here representing judges.
Senator Mercer: You are here representing the Canadian Council of Criminal Defence Lawyers, which is another piece of the puzzle in the system. It seems that minimum sentences makes your job or the job of your membership a little tougher, that is, if you are to bargain out your client, your options are narrowed significantly by imposing minimum sentences. If the minimum sentences are there, they are probably higher than you would have hoped to negotiate for a first-time offender under the current circumstances.
Mr. Trudell: My job as a defence counsel is to try to ensure that my client does not come back. My job is not to put a band-aid on and move away. I say to every client, ``I am not here for you today, I am here for you a year from now.'' That is what defence counsel do. We represent society, too, not just an individual. We are officers of the court. We want to ensure that this person gets the treatment. We do not just represent the accused; we represent their family, children and neighbours. We are supposed to be problem solvers. What is the problem? Is there an alcohol addiction? Is there an addiction to pornography? Is there a collapse here of a support network? As a defence counsel, my job is to address all the issues, so he does not come back. I do not want him back.
In regard to the mandatory sentence, I will not serve the time. It just does not help the criminal justice system. If you lock him up, what happens when you lock him up for 90 days, a year? There will be no treatment. You have already raised this issue. He will be locked up, he will have to be kept in segregation because it is one of those offences. He will be isolated, serve his time and come out. You might as well just have a computer sitting there because the judge cannot address the issue. You are not solving the problem. You are putting it in the next room for three or six months. It may make some people happy who think we are not being tough enough, but it will not solve the problem.
Senator Mercer: There are the other people in the mix, the victims. The Crown and society are victims along with the specific victims, will want to know that there are some results to these actions.
Mr. Trudell: That is the job of the criminal justice system. If my eight-year old daughter when I go home tonight has been assaulted, I will probably say, ``Where is he?'' I will be angry and react emotionally. I may go out and want vengeance, but we have a sweet criminal justice system that intercedes. The fact that I do not think it is tough enough does not answer the problem. That is not the society we have. We have a criminal justice system. There are also victims who are very careful and who want restorative justice. They want to know that a person accepts responsibility and is perhaps punished, but you do not hear about all of the victims who say, ``I do not need this person to go to jail; I want this person to have help. I want to ensure it does not happen again.''
There are many people out there who are victims who are not saying, ``Lock them up.'' Restorative justice in this country is on the move. If you have a victim who says that this guy must be locked and punished, your job as a member of society, as a Crown counsel, as a judge, as a defence counsel is to say that this is the system we have. The person will be punished. He will have to pay his debt to society. There must be a balance. Do we know that this victim was himself a victim of child abuse? Did we know that this victim, when he got up that day, lost his daughter or lost his job? I read the transcript. It is very easy for people to toss out names like Brier and Bernardo.
I am not here to defend Mr. Bruyere but he has a history. It is simple to say he saw pornography, went out, and committed a terrible crime. He committed the crime but his personality developed over a long period of time. It is simple to stamp out Internet pornography, which might have been a catalyst in the case of Brier, but the underlying cause had been there for years.
[Translation]
Senator Rivest: I share your feelings about minimum sentences. If I understand criminal law, it consists in defining crimes, and it always involves a defendant, with evidence and specific circumstances. It seems to me that wall-to-wall sentences, with no regard to specific conditions, evidence or the nature of a crime or release is at the hub of our legal process; this is up to the judge's discretion, as you noted. Can an section providing for a minimum sentence — and there are such sections for other offences in the Criminal Code — be constitutional pursuant to the Charter of Rights and Freedoms, given the fact that an individual must receive a just and fair trial, which must be adapted to his personal condition, the nature of the offence and the circumstances? Do you think that there is any ground for contesting the constitutional validity of such minimum-sentence provisions?
[English]
Mr. Trudell: A person might be sentenced to jail for a second impaired conviction because the person is an impaired driver and, although challenged, the sentence is deemed constitutional. However, in the case of child molestation, the prisoner is kept in segregation and that presents problems.
I expect a constitutional challenge on cruel and unusual punishment because the person would not enter a general population area. The 14 days received by someone convicted of such an offence would be much more difficult than an ordinary 14 days with the general prison population.
Very simply, we are warehousing offenders and creating another climate of danger. I had a case of a person facing a minimum mandatory sentence for a first offence, it would be an absolute challenge if the person had problems, a background, an explanation, and I was unable to give that explanation to the judge to help him or her apply the principles of sentencing under section 718 of the Criminal Code.
Whether the challenge is successful or not, it will be challenged because that is our job. It is our job to represent the accused and to represent the system. It will detrimentally affect the criminal justice system. Judges will be highly frustrated because they will often know that the offender needs treatment at the Clarke Institute, but cannot insist on that treatment because of parliamentary legislation.
Minimum sentences do not work. In impaired driving, minimum sentences have not worked, but mandatory videos and locking devices on cars have helped more than the jail sentences have helped. A minimum jail sentence of 14 days does not change anything.
[Translation]
Senator Rivest: The Minister of Justice who was a witness said that he did not personally believe in minimum sentences, but that they were included in this bill for purely parliamentary reasons. He explained it very well. Besides, studies done by the Department of Justice showed that this is not an efficient way to fight crime. He said that there was no deterrent effect at all.
[English]
Mr. Trudell: Why are they there? Is it for the optics? Are we creating legislation to appease a limited audience?
With great respect, I am not being critical of those people who have points of view, police officers, for instance, who appeared before this committee.
I read the committee transcript given by representatives of the Canadian Association of Chiefs of Police when they appeared on June 23. They suggested that there is a national steering committee that has not even consulted with the police. I am on that national steering committee and that statement is wrong.
The steering committee is in the early stages and the police are correct about the agenda for consultation. They say that judges do not understand. If there is no empirical research, if the Minister of Justice says it does not work, if history shows it does not work and if we know it will clog up the courts, why is the charge of possession of pornography in there? It is unbelievable — publication of the charge on the front page and immediate entry in the child offender registry.
Many commissions said 30 years ago that for some cases, the charge alone is sufficient. In this case, with all the attendant emotional contagion around child pornography, someone arrested for such an offence is automatically assumed to be a paedophile. Giving the police the tools with which to investigate and prosecute is important, not just sweeping them under the rug and then moving on. It will not work. We know it will not work so why is it included?
Senator Pearson: We heard testimony during the hearings of the committee of the House of Commons, and you can take from that whatever you want.
One can speak to mandatory sentences in general terms. As far as I can tell, no one on this committee feels comfortable with mandatory sentences, although some might deny it. I believe that all senators on the committee generally agree.
The review after five years, will give us a good chance to determine effects. I would like you to comment on the idea that in these cases, the primary purpose in the judgment is denunciation and deterrence, to which the courts would be directed to give primary consideration.
Mr. Trudell, you spoke of someone deterred merely by the chance of a charge of possession of child pornography. In many cases that would be true. We also heard that some of those offenders have reoffended numerous times. Obviously, the deterrent did not work in those cases. We are looking at a wide spectrum of perpetrators, which makes this discussion complicated. We are also looking at images of an offence that is of a completely different order because small children and babies are being offended against, forever. Those images can never be erased from the system.
That offence does not compare to an impaired driving conviction. I admit that I was supportive of that proposed legislation but not about the mandatory sentences.
If the legislation goes through, what would like to see examined from an evaluation point of view, in this five-year period? What do you think would show whether or not it worked? What kinds of components would show it had done harm? What would you like to see?
There will be accompanying research and we are looking at the way in which this will come back in five years. What should be there in the pieces of evaluation that will be continually done?
Mr. Trudell: I was going to ask honourable senators to consider a three-year review as opposed to a five-year review. Five years is a long time. Bill C-36 got a three-year review.
Let us say the bill has passed and we are having discussions, and we have to see whether mandatory sentences are working at all, and whether or not, somehow, judges can get an indirect voice at how frustrated they are in terms of not being able to impose treatment and deal with each offender in a specific way.
Senator Pearson: I would like to interrupt you and ask a question because you have experience and I do not.
We know that treatment at a provincial level is in the hands of the province. There is nothing in the legislation that the federal government does that can impose treatment. Is that correct?
Mr. Trudell: That is right.
Senator Pearson: With conditional sentencing, you can make a condition that the person seeks treatment.
Mr. Trudell: In almost every case it would be a condition.
Senator Pearson: Do we know whether or not the treatment is available? To some extent that is one of the issues that we continually return to, namely the resources are not there.
Mr. Trudell: One of the real issues in this country is the lack of facilities for people who suffer from mental disabilities being dragged through the criminal justice system.
When I started practicing 30 years ago, the Clark Institute of Psychiatry in Toronto had a forensic unit that was largely staffed and well used. It is not there. If you are trying to figure out what the problem of crime is and how to address is it, and if we are to talk about restorative justice as this committee did in terms of the young offenders legislation, we need to ensure that the tools and the money is there. That is not only for the police to do their job, and they need it as crime is sophisticated, et cetera, but also for people to make sure that the treatment is there.
The federal government should not be able to produce legislation to say X and not, of course, allow for a provision of money to the first ministers when the request is made.
To get back to your question, if mandatory sentences were imposed I would want to know not only whether they are working — we will never know whether they are working — but what it has meant to the system.
I think it will mean that there is more of a backlog. You will probably find judges who are frustrated. I think you will find people who are assaulted in jail. I think you will find repeat offenders, and I think you would want to look at that information.
I believe we would want to know how all these protections for vulnerable witnesses are working in the criminal justice system, because we are moving away from the adversarial system in many respects. I submit that every person who testifies, a judge, who is the person who is sitting there, must be able to be satisfied that this person can understand and answer questions. I would think that we would want to look at that issue.
Of course, in five years, we will want to know about the definition of ``child pornography'' but it will be in the Supreme Court of Canada being considered in five years because the smart people who you will hear will talk about the vagueness of what this has done.
Quite frankly, I see what has happened here between the Supreme Court of Canada and Parliament as not a dialogue. Parliament has said to the Supreme Court of Canada, ``we do not like what you said in Sharpe, we are not having a dialogue anymore.'' However, there will be a dialogue in a few years.
The picture in the gallery, if I could use that terrible analogy, the abstract painting, will still be decided, but the corridors of the gallery in terms of the process, I think we would want to know how it is working after a review in three years.
Senator Pearson: These are good questions.
Mr. Trudell: I understand that you saw the pictures. In this business, as a defence counsel and as Crown, we see the pictures all the time. We see pictures of the autopsies all the time. We are abhorred by this kind of stuff. It is unbelievable. Where does this stuff come from? When we see this shocking stuff, we have to step back.
With great respect, I am kind of wondering how I will explain to my children about same-sex marriage. How will I explain to my children about the gay pride festivities in Toronto? I may look at some of this stuff and say that this is disgusting, what is going on here? You have to figure out a way to live in society and explain some of this stuff.
Senator Joyal mentioned that he watches television during the hours of five and seven. Well, between five and seven, anywhere in the country, you can turn on a television and see nude lovemaking. Sex in the City is on at seven o'clock. Some of the channels air unbelievable programs that are shocking and disgusting. It is not so rock disgusting as what we see here, but we have to fall back from it and figure out the balance.
Senator Pearson: I agree with you, but for me the issue is the offence against the child.
Mr. Trudell: There is no question about that.
Senator Pearson: It is different from an offence against an adult engagement or consensual activity or anything like that.
Mr. Trudell: It is unacceptable, it is unimaginable, but we must look at it and deal with it in a balanced way.
[Translation]
Senator Ringuette: The current Criminal Code was last reviewed in 1954; thus, there has not been any mandatory sentence for pornography and sexual offences for the past 51 years. We know that only 50 per cent of defendants are sentenced to jail and that there is a very high number of repeat offenders.
The conditional sentence order does not seem to have yielded the expected results for correcting this problem. With the review process every five years that we have now, can we not issue a mandatory sentence order, to be reviewed after five years?
You say that judges are frustrated, but do you not believe that the population is also frustrated as it sees the statistics for pornography and sexual crime on the rise, whereas conditional sentences do not involve any jail time?
It is easy to say that judges will be very frustrated, on the one hand, without understanding, on the other hand, how frustrated the people are with the current situation and the rate of repeat offences.
I come from a small community. There certainly are cases in our community where priests have been accused after many years and never been jailed. There is suspicion and gossip among the people, but since the Reverend Father plays golf with friends of the parish, it would look bad for the Church.
All this frustrates the population immensely. Of course, judges will be very frustrated over the five coming years, but the people are also very frustrated with the fact that the current system has not worked for 50 years.
I agree with you in saying that we do not have all the tools. But on the other hand, nothing in this bill prevents a judge from ordering that the individual doing jail time should receive treatment and be followed by professionals.
[English]
Mr. Trudell: I do not know whether judges will be frustrated, but it could be frustrating to be asked to follow the principles of sentencing in the Criminal Code and to find a just and fair balance without being given the room to do so. We are asking them to decide on the punishment while balancing it with the needs of the offender.
You say that the public is frustrated. In many cases, the public reacts to headlines about the big cases or to the cases that happen in their community. We do not do a very good job of educating the public on how the criminal justice system works.
I do not know that the public has been frustrated about this for 51 years. Things are changing so fast in our society and we are trying to keep up. However, I do not think we can generally say that the system is not working, and the statistics support that statement. There are lots of bad cases, but the system is working. Where is the empirical data that shows that mandatory sentences work? I have not seen evidence that the system is not working and the public is frustrated. I think the public is pretty satisfied with the criminal system once it is explained to them. However, when people who are part of the system say that judges are too soft and the system is not working, we create a climate of fear and these committees will never accomplish anything.
I respectfully submit that the system works very well, although it does not have the financial support it needs. I submit that we tend to react to the terrible cases.
I remember former Minister of Justice McLellan saying that she would not change the legislation until she got everyone in the same room and heard the whole story, because she heard a different story from Crowns, from defence counsel and from the police. We all have our own interests that we want to push.
If you have reason to believe, from what people are telling you, that sending people to jail will hurt the system rather than help it, why would you pass this law and then review it in five years? Why do we not accept now that this is not the answer? Surely we can be more creative.
Repeat offenders have to go to jail. I will not ask a judge to give a repeat offender another bite at the apple. That is ridiculous. Section 718 says jail where necessary. A conditional sentence is a sentence of jail in the community. These people remain in their homes, and there is a certain degree of public screening of these sentences.
Senator Ringuette: You said that the justice system did not provide empirical data to support this bill. Do you have empirical data that supports your position?
Mr. Trudell: No. It is my understanding that there is no empirical evidence to show that mandatory sentences solve any problems, and even the Minister of Justice seems to say that as well. I am as interested in stopping crime as you are, but we do not have evidence that mandatory sentences work by way of preventing crime and rehabilitating the offender. If we just throw people in jail, we are not addressing the issue. We are creating all kinds of problems in the provincial courts across the country. There will be more trials and downloading. Many of the offences have been hybridized, so trials will take place in the provincial courts rather than in the high courts. We will have a problem of management of resources.
I am sorry if I did not say it well. My remarks were in terms of empirical data that shows that mandatory sentences work as opposed to a suggestion that judges are too lenient.
Senator Ringuette: With regard to your comment about the frustration of judges, I think that their first mandate is to listen to the evidence and reach a verdict and that sentencing is the second phase of their job.
Mr. Trudell: Absolutely.
Senator Ringuette: We are clear.
Senator Milne: Mr. Trudell, you say that two problems with the bill bother you and they bother me as well. First, there is the vagueness of the definitions in the bill and the fact that removal of the artistic merit defence. The second is mandatory sentencing.
I am somewhat comforted by the fact that there is a mandatory five-year review. You should be aware that, because it is mandated in the bill for five years that does not mean that it must take five years. The Minister of Justice can review anything at any time. If he disagrees with this one particularly, I am sure he will do it a little earlier, I hope.
Senator Rivest: I am not quite sure that is true.
Senator Milne: If mandatory sentences do not work, and they lead to more trials, and I believe at one point you said that Crown counsel will try to charge a person with something else to get away from the mandatory sentencing aspect, what else would they charge them with in this case?
Mr. Trudell: We have not encountered a situation like that. I was talking about historical evidence. When car theft resulted in a mandatory sentence of imprisonment, it did not work. We introduced ``take auto without consent.'' People would then plead to ``take auto without consent.''
Senator Milne: Use your imagination in this case, then. It is pretty hard to think of it as something different.
Mr. Trudell: It is hard because this is so unique, integral and gut-wrenching. Until we find another charge, we will have the problems.
Maybe the Crown will not prosecute the offence that is laid. The problem is they are mandatory jail sentences. Until a Crown and defence counsel come up with something creative, we will have trials where we might not. The costs are so great here in terms of the charge and what it means to people who are innocent, to people who make mistakes and who are sliding by the Internet on one occasion. There is a significant amount of subjectivity in terms what will be charged.
Senator Ringuette: I do not think a person will be arrested for browsing the Internet one time.
Mr. Trudell: I hope you are right, but in three or five years, I bet you we are both wrong on this one. I bet you there will be many subjective charges that should never get into the system.
The Chairman: There will be a parliamentary review in five years. That means that if this committee decides to review the legislation in a year or two, we can do that; it is a parliamentary review.
Senator Rivest: Will the minister follow our advice?
The Chairman: We will see.
Senator Rivest: Good luck.
Senator Joyal: I would like to return to the issue of artistic merit. I am grateful that Senator Milne raised this point. This is one of the key issues of this bill. I am surprised that you did not elaborate on this issue. I wish to do so and give you a clear case.
Two weeks ago, I received a catalogue from Christie's International Magazine from the auction house of the same name. Christie's is not a company that is involved in selling dubious magazines. Lot number 384 in that magazine shows a picture of a bronze pendulum made in the 18th century. On top of it, there is a bronze with a young person, two or three years old, touching the breast of the woman. At present, under section 6 there is no problem with that, it is artistic merit; it is a work of art.
There is a painting in the National Gallery at present by a famous Renaissance artist called an ``Allegory of Venus, Cupid, Time and Folly.'' You can see a nude woman and a child of seven, eight or nine years old, again touching the breast of the woman and you see the back of the child. I do not want to be too prudish, but you see the ``anal section'' of the child. According to the defence there is no problem. It has artistic merit.
We are now in a different position with respect to those types of works of art. We must now read the new section 6. There is another painting in reverse; the woman in the painting is touching the penis of the young child. If I own those painting, under proposed sections 151 and 152 I will be submitted to a test.
Mr. Trudell: That is right.
Senator Joyal: The test is to determine if I have a legitimate purpose in holding that material, and, does it cause an undue risk of harm? Maybe if I have only the pudendum on the mantelpiece, it might not be that great a risk. However, if I have a certain number of works of art in that context, as the dominant theme of my living room is that kind of work of art, I have become a risk.
This definition is not neutral.
Senator Milne: What if you are reading Romeo and Juliet?
Senator Joyal: You read the transcript. If I have Pretty Baby or Lolita in my living room, I will be suspected of being obsessed with that kind of work and I may be charged under this bill. I will have to prove why I have what I have.
I know I am describing an extreme situation, but this is the reality. Those works of art are there; they are visible. As long as we have the defence of artistic merit, that would be acceptable in the standard of Canadian society of today. In another day it was different. As you know, to have a painting of a nude woman 50 years ago you could not hang that in any room because it was forbidden. As Senator Ringuette said, the standards were different.
You have said that the standards have changed. However, this new section has raised questions. We are well- intentioned. We want to fight child pornography and I have no problem with that. However, by adding those two conditions, we will have to prove two things: First, to know if the purpose is legitimate and, second, if this porn it is a question of law. That is another step.
Mr. Trudell: I did not spend a significant amount of time on this because I know who has appeared before the committee. Senator, let us say that you had this art in your house and you decided to have a tour of your house by some schoolchildren up on the Hill. One kid goes home and complains. Forget about the charge, which would be the end of your career. Would it pose an undue risk of harm to that group of children?
Why is ``artistic merit,'' the term in the Criminal Code interpreted by the Chief Justice, not in the bill? We need to determine the meaning of the abstract
...legitimate purpose related to the administration of justice or to science, medicine, education or art.
I have to respond as an artist or a writer. A strange, muddied, overly broad definition and it will be litigated all the way up to the Supreme Court of Canada. The same question will be asked because among the most fundamental rights possessed by Canadians is freedom of expression.
We have to balance that and so the wording in the bill creates problems because it is open to whoever decides to lay a complaint or a charge. I might think it is art and a police officer might not think it is art.
I am very concerned about this, although I did not spend much time on it. Why is artistic merit, which is basic to free expression, not in this bill?
Those words were removed. Why is that? We do not want them included because the Supreme Court of Canada told us the meaning of ``artistic merit.'' This is not a dialogue with the Supreme Court of Canada but rather it is akin to saying we do not like the decision in Sharpe, with great respect.
Senator Joyal: I will address the voyeurism clause after Senator Pearson.
Senator Pearson: The examples of Senator Joyal do not fall within the existing definition of ``child pornography.'' They are not depicted for a sexual purpose. Those images were not created primarily for a sexual purpose — to incite people to engage in acts that are criminal against children. There is no question of a defence because there is no offence with those images.
Senator Joyal: I will read paragraph 7(1)(b):
(b) any written material, visual representation or recording that advocates or counsels sexual activity with a person under the age of eighteen years would be an offence under this Act;
The paintings are visual representations and second, they advocate a sexual activity. One touches the breast and the other touches the penis. If that is not sexual activity, I wonder what it is.
Senator Pearson: This is the existing definition, which is fair.
Senator Joyal: Paragraph 7(1)(b) states: ``advocates or counsels sexual activity with a person under the age of eighteen.'' If you question whether it advocates sexual activity, read sections 151 and 152.
Mr. Trudell: The Ontario Court of Appeal has decided the case of Beatty, which looks into the implied advocacy and counselling. The court said that you have to read Sharpe to say it is implied, so Beatty has gone back and will go to the Supreme Court of Canada.
Senator Pearson: There is no change with the bill because that is the existing definition of ``child pornography.'' The only change has been the addition of ``audio.''
Senator Joyal: However, you had the defence of artistic merit. As long as artistic merit was in there, it was excluded, even though it represented sexual activity between a child and an adult.
Senator Pearson: ``Audio recording'' is new.
Senator Joyal: When you read the entire section, you see that it provides the defence for this. The proposed new section is on voyeurism.
Mr. Trudell: It is the proposed section 162.
Senator Joyal: Yes. When the minister appeared with officials, we did not have time to consider this proposed section. This approach to voyeurism is very convoluted in the context that it has to serve the public good. To determine that is a question of law. ``Public good'' is not defined in the context of a voyeurism offence. It is left to the discretion of the judge to determine whether such an offence could serve the public good.
Are you not preoccupied with the interpretation that could be given to that section?
Mr. Trudell: I am concerned about that section as well as some other sections. That is vague but in proposed subsection 162(1), I see an inherent dichotomy or conflict. Proposed paragraph 162(1)(c) states: ``the observation or recording is done for a sexual purpose.'' In paragraph 7(1)(b) it states: ``the motives of an accused are irrelevant.'' What does that mean?
I submit that in an attempt to come to grips with a serious problem this proposed section is vague and has some inconsistencies built into it. We have concerns with several other sections but I could send those to the committee in writing.
Senator Nolin: I want to refer to your argument that some proposed sections of Bill C-2 are in conflict with section 12 of the Charter.
I would like to draw on your experience for the benefit of the committee to understand how you structure your argument when you question the validity of proposed legislation that is in conflict with the Charter. Perhaps that could help us to make recommendations if the committee concludes that the bill does not fulfil its intent to be tougher on such offenders and to reduce the numbers of such crimes. How do you do that legally when you raise a valid question?
Mr. Trudell: One of the sections says that dissemination of pornographic material for profit is an aggravating circumstance. We have built aggravating circumstances, such as if something is racially motivated, into section 718. We could do that with the vulnerability of the victim as well.
If I am trying to structure an argument under the Charter, I have to think about section 1. I have to consider whether the Crown will be able to argue that the legislation is justified under section 1 even though it may offend the Charter. To get to that point, I would have to look at other jurisdictions. I would want to look at this proceeding, at Geneva conventions, at what treatment is available and at how different prisoners will be treated. I would want to put together empirical data to show that in these circumstances the public would be satisfied that it is not demonstrably justified under section 1.
Senator Nolin: As you may know, when we report on our work to the Senate, we sometimes include observations. In observations on this bill we may want to stress the importance of what we are doing, and stress what we want and why we want it, with section 1 of the Charter in mind. That is why your testimony is very important.
Mr. Trudell: We want to get tough.
Senator Nolin: ``Tough'' is not a good word. We want the law to be effective.
Mr. Trudell: That is exactly right.
Senator Nolin: The short way is not usually the right way. We all know that the law is only one tool in a spectrum of tools in a policy. We understand that and we accept that; however, we want the legislative tool to be effective.
Mr. Trudell: Although it is trite to say, we do a terrible job of communicating to the general public about criminal justice. If the general public knew how the criminal justice system worked, if they knew about conditional sentences, if they knew about attempts to get tough, if they knew about section 718, we would probably be doing a more effective job.
We must give the police the tools they need for their investigations. The police need to do their job right at the front end, as opposed to cutting a corner, in order to get convictions. However, if the police do not trust the system, if they believe that judges are too soft and that the Charter interferes with their work, then a major stakeholder in the system is questioning it, and that does not work.
The Chairman: In order to remove mandatory minimum sentences from the bill, we would have to amend it and send it back to the House of Commons. What if it were defeated in the House?
Mr. Trudell: I would use the fact that you sent it back as an argument in court some day. I hate to say this, because I do not think they work at all, but if there is concern, as Senator Ringuette has said, about repeat offenders, why not make it mandatory on the second offence, with notice? There is a balance; there is a message. That is what we do with impaired drivers.
The Chairman: Thank you very much, Mr. Trudell. We are pleased with the discussion we had with you today.
The committee adjourned.