Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18 - Evidence for July 7, 2005
OTTAWA, Thursday, July 7, 2005
The Standing Committee on Legal and Constitutional Affairs met this day at 10:55 a.m. to examine Bill C-2, An Act to amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act.
The Honourable Lise Bacon (Chairman) in the Chair.
[Translation]
The Chairman: We will begin our meeting today on Bill C-2, An Act to amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act.
Before introducing our witnesses, I would like to mention that we have been informed that Senator Andreychuk will act as deputy chairman of the committee.
[English]
Senator Andreychuk, would you act as deputy chairman on a permanent basis or for the committee's consideration of Bill C-38 only?
Senator Andreychuk: I was asked by the leadership because no one else will be available to attend the meetings, and we want to ensure that we have an expeditious steering committee. That is why I will meet with you today on the steering committee. If we speak to other matters, I will be available to attend.
The Chairman: Do we need a motion to that effect?
Mr. Adam Thompson, Clerk of the Committee: I am drafting the appropriate text. The wording I would suggest, given we are not sure whether this is permanent, is: that in the absence of Senator Eyton, Senator Andreychuk be authorized to act on his behalf as deputy chair of the committee.
Senator Andreychuk: I do not think that is in our rules and it is now on the record that I have been asked by the leadership to sit on the steering committee. We will leave Senator Eyton as the deputy chairman but it should be on the record that I will speak for the leadership. That should be sufficient.
The Chairman: You are already chair of another committee.
Senator Andreychuk: There is no rule against that so it is not the issue. However, some of the paperwork is unnecessary so I give the undertaking now that I am here for any steering committee issues.
The Chairman: Good.
Senator Joyal: I so move the motion.
The Chairman: Adopted and agreed.
This morning, we will hear from witnesses from the Department of Justice Canada: Ms. Catherine Kane, Ms. Carole Morency and Ms. Lisette Lafontaine.
We will have one-hour discussion and then proceed to clause-by-clause if that is the wish of the committee. I am certain that everyone read the article on C-38 in The Globe and Mail yesterday, and I look forward to some answers on that, especially in respect of the comments on artistic merit and the second flaw of the bill — new minimum sentences for sexual crimes, et cetera. Ms. Morency, please proceed with your views on that article.
Ms. Carole Morency, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: If it pleases the committee, the three of us will try to address some of the issues that we understand are still outstanding from the witnesses that have appeared before the committee on previous occasions.
We will address the sentencing in such cases, the definition of ``child pornography'' and how the proposed new legitimate purpose defence will operate. We will discuss facilitating testimony to address the issues that have been raised, as well as what is new or repackaged, and the actual change proposed in the Canada Evidence Act. Finally, we will discuss and answer any questions on how the defence would operate in voyeurism offences.
I will discuss sentencing in association in child exploitation cases with a particular focus on child pornography. I will try to summarize and include some of the evidence heard before the Justice Committee in the other place on exactly these issues.
First, Detective Sergeant Paul Gillespie of Toronto Police Service, who heads their Sex Crimes Unit, appeared before the justice committee of the House of Commons and spoke directly to this issue. That unit has perhaps the greatest experience with child pornography in Canada. Their testimony was that over the last three years they have arrested 130 people on child pornography related charges. About two thirds of those cases have been disposed of.
With regard to the outcome in the cases, Detective Sergeant Gillespie said that in about one-half of the cases, the offender received a conditional sentence, house arrest, or probation, and the other one-half received incarceration or another type of disposition. He said that in Toronto alone they have had five or six of cases of repeat child pornography offenders. He said that the longest periods of incarceration he was aware of for possession of 2,000 to 3,000 images of child pornography was between six and nine months for first offences. He said the longest sentence was three years for an individual who possessed 1 million images.
Detective Inspector Angie Howe appeared before the committee on Bill C-2. She heads up the child pornography unit for the Ontario Provincial Police. She said that in a recent case an individual was arrested for his third child pornography offence. On his previous two offences, one of which was a contact offence, he received conditional sentences. Detective Inspector Howe said this is happening repeatedly. With regard to the number of children who are being victimized through this type of crime, the estimate is that perhaps 1 million different images exist on the Internet globally, with as many as 100,000 different children as victims.
It has been asked how many cases are being processed and with what outcome. Statistics Canada keeps this type of statistical information. The Canadian Centre for Justice Statistics released a Juristat report in April 2005 entitled Children and Youth as Victims of Violent Crime. The report provides an overview of many offences against children, and drawing from the Uniform Crime Reporting Survey, it notes that in the year 2003, the authorities charged 166 persons with production and distribution of child pornography. The bulk of the cases are on the possession side, but the reference in the statistic is 166 for production and distribution. Ninety-nine per cent of offenders are male and the majority are between the ages of 25 and 54. The trend data in the Juristat report indicates an eight-fold increase in the number of reported child pornography incidents in 1998-2003. In 1998, there were 20 charges and in 2003 there were 159.
On sentencing outcomes, the Juristat reported that 52 per cent of offenders who were charged with and convicted of distribution received probation and 33 per cent received imprisonment. Conviction rates in 1999 were 41 per cent. In 2001, that rose to 58 per cent and has remained relatively stable since then.
Detective Inspector Angie Howe referred this committee to a 2005 report entitled, Child Pornography Possessors Arrested in Internet-Related Crimes.
The study looked at processed cases, and the findings are consistent with what we understand to be the case in Canada. They looked at 1,713 arrests of possessors of child pornography through the Internet. They found that almost 100 per cent of the offenders were male, 91 per cent were white and 86 per cent were older than 25. Only 3 per cent were under the age of 18. Eighty per cent of the offenders in those cases possessed images that graphically depicted sexual penetration. One in five, or 21 per cent, also possessed images that depicted sexual violence to children such as bondage, rape and torture, in quite graphic images, including quite young children.
From their review of those cases, they determined that 40 per cent of those arrested for possessing child pornography were dual offenders; there was evidence of committing a contact sexual offence. The summary indicates that 96 per cent of child pornography possessors were convicted or pleaded guilty and 59 per cent were incarcerated. The figure of 59 per cent incarceration is similar to that in the Statistics Canada Juristat.
This gives a sense of how some child pornography cases are processed in Canada. In one-half the cases, the most serious outcome is either a conditional sentence or probation. This evidence was before the committee in the other place. As the minister said, it was the reason for proposing amendments for mandatory minimum penalties.
The Chair referred yesterday to The Globe and Mail editorial about mandatory minimum penalties. I remind the committee of the minister's very fulsome evidence on these issues. He said that the government preferred not to propose mandatory minimums but, rather, to go with the bill as initially introduced.
Quite a number of proposed reforms seek to address the concerns with regard to the current sentencing practices in these cases. There were a number of amendments to increase maximum penalties, including a well-received amendment to increase the maximum penalty for these offences on summary conviction from 6 months to 18 months. Also important is an amendment that the government proposed to Bill C-2 to make the intent to profit from commission of any child pornography offence an aggravating factor for sentencing.
Bill C-2 proposes to codify a practice we see in cases where children are victims of violence and abuse. It is significant because it amends the sentencing objectives in the Criminal Code and directs a court, in any cases involving abuse of a child, to consider denunciation and deterrence.
This is a change that I believe was not fully acknowledged or appreciated by some of the witnesses who have appeared here, but it is a significant. As the minister said, the government's preferred approach and his preferred approach is to address those concerns through those amendments. The committee in the other place received evidence that suggested that that was not enough to give effect to the denunciation and deterrence of this type of conduct if one- half of the cases end in a conditional sentence or probation.
The pornographer profile study from the United States summarizes the motivators of those in possession of child pornography. Again, we can all agree there is little evidence, but we can glean some insights from processed cases. Through the research and their experiences, the study identifies four motivators. The first group is the obvious one: those who have a sexual interest in children, whether very young, prepubescent or adolescent. The second group is those who are sexually indiscriminate, meaning they are constantly looking for new and different sexual stimuli. The third group is the sexually curious, who download a few images to satisfy that curiosity. The fourth group is those interested in financial profit by selling images or setting up websites that require payment for access. Bill C-2 as introduced seeks to address those four groups.
Further evidence indicates continuing concerns about the efficacy of Bill C-2 as introduced. The Senate and the other place agree that we must condemn this conduct uniformly.
With that by way of background, we have some evidence of sentencing practices in these cases. The minister's comments were that the choices that were available included going forward with a protection of children bill with some mandatory minimums or no bill at all. Given the overarching priority that the protection of children has always been a government priority and is at the heart of this bill, that was the choice, to take the bill with some mandatory minimums.
The mandatory minimums in Bill C-2 fall into two categories. One is the procuring type of offences. They are very much akin to the only mandatory minimum that we currently have in the Criminal Code that addresses sexual abuse of children. Currently in the Criminal Code, there is subsection 212(2.1), which we refer to as an aggravated procuring of a young person for prostitution purposes. That is in the Criminal Code and has been since 1997.
Bill C-2 proposes four others akin to that subsection: a parent who procures a child for unlawful sexual activity; a householder who knowingly permits unlawful sexual activity with a child; a person who lives off the avails of a juvenile prostitute; and, last, a person who seeks out the sexual services of a juvenile prostitute.
The other group of mandatory minimums proposed in Bill C-2 deals with child pornography and with the three specific child contact sexual offences in sections 151, 152 and 153.
In the current Criminal Code, we have 29 mandatory minimum penalties and one deals with the sexual exploitation of children, the others with firearms, murder, impaired driving and the like. We do not have much evidence in Canada about how those mandatory minimums operate and to what outcome; although to the extent that we have some evidence, it seems there is some positive impact in the area of impaired driving and firearms.
The Department of Justice, through an independent contractor, published a research report on mandatory minimum sentences in the U.S. That research looked at California's policy of ``three strikes, you are out.'' There were very significant offences and very significant mandatory minimums. It looked as well at firearms and drugs, and in particular very high mandatory minimums dealing with drug offences in the United States, as well as impaired driving.
Throughout all of the research, there is reason to say, that mandatory minimum sentences do not work and can cause some problems. On the other hand, there seems to be some positive impact, but it is always difficult on either side of the issue to point to one factor as being the main thing. We have to take a broader look.
For example, for impaired driving a public education campaign has had a positive impact. It is difficult for anyone to say the positive results have come mostly from the education campaign and not the impaired driving mandatory minimums. The point of drawing this to your attention is, as the minister said, the preference always is to leave discretion in the hands of the individual court judge dealing with the facts and circumstances in the case before that judge. However, that said, the mandatory minimums proposed in Bill C-2 are very much at the low end of the spectrum. For example, where you have a summary conviction maximum penalty of 18 months, as proposed by Bill C- 2 a mandatory minimum penalty is 14 days. It is a starting point. It does not preclude a court from imposing or an individual accused from seeking out treatment. Whether the accused is in prison for 14 days, six months or even two years there will be difficulties in having a full opportunity to treatment. You cannot force the person to have treatment, although such treatment is available in both federal and provincial penitentiaries.
In cases of child pornography where an accused receives a conditional sentence, incarceration or probation, one of the conditions is that the accused avail himself of the treatment recommended to him by his probation officer.
An issue that this committee had last week, and which was flagged in the editorial yesterday, is the question of how the proposed new definition of child pornography and proposed new legitimate purpose defence will operate, and what impact they will have in the specific example given on artistic freedom of expression.
Last week the committee heard from Charles Montpetit who provided the committee with some very helpful information about some of his work.
Unfortunately, I could not the book in both official languages and therefore I have only one copy of one of his two volumes. I presented one story in the book to the clerk and I will use it as an example of how the proposed reforms will work. I will contrast it with Bill C-2 and with the Beattie decision by the Ontario Court of Appeal.
The committee members should have a copy of the extract of the story in the book that Mr. Monpetit edited. I do not propose to take the members through it, but point out it is a story by W.P. Kinsella as an adult recounting his coming of age and first sexual encounter in his last year of high school. His encounter was with his girl friend, a few years younger. There is nothing graphic or explicit in the story. It is a very much a coming of age type of story and the type of example I sought to address in my remarks to say that this does not fall within the proposed broader definition of written child pornography. It does not have as its dominant characteristic a description of unlawful sexual activity. It is not the dominant characteristic of the story. To the extent that there is any description, and committee members will probably find that there is really nothing there, that description is not provided for a sexual purpose.
In contrast, and to give a bit more of a graphic description of Bill C-2's proposed broader definition is trying to address, I have provided the committee with a copy of the decision by the Ontario Court of Appeal in Beattie. The decision was released on April 8, 2005.
I can confirm to the committee that the accused in this case is seeking leave to appeal this decision to the Supreme Court of Canada. I caution the committee and members that the extracts in this judgment from some of the 33 stories that this individual is charged with possessing by way of child pornography are quite graphic. You may or may not feel comfortable in looking at it, but I provide it to the committee to illustrate my point. In particular, paragraphs 6 through 13 provide some extracts from these stories that this individual is charged with possessing. They are quite graphic. They depict in detail all sorts of sexual activity with very young girls, often at the hands of their father, and they are depicted as normal. The children in these stories are depicted as wanting and enjoying this sexual abuse, and indicate that this is normal conduct for fathers in particular to engage in with their children.
The stories in those paragraphs have as their dominant characteristic the description of unlawful sexual activity with children. It meets or can be interpreted as meeting ``for a sexual purpose'' in the manner that the Supreme Court of Canada interpreted is reasonably intended to cause sexual stimulation to some observers.
Importantly, and I read this into the record last week, at paragraphs 14 and 15 of the judgment, the Ontario Court of Appeal said these stories sent two very clear messages: First, that children have a sexually insatiable and ready appetite for these types of encounters and they enjoy it when it is painful and violent. Second, these stories send the message, even though it is contrary to everything we have in the Criminal Code, and all would agree today, that parents or fathers routinely have sex with children and that is normal and we should encourage it. That is at the heart of Bill C-2's proposed broader definition of written child pornography.
You have before you two very different ideas. One might claim that the stories described in the Ontario judgment are artistic. It is hard to do that, but, in the Sharpe case, he was acquitted on his material, his stories, which seemed to resonate with what we have before us here, on the basis that they did not meet our existing definition of ``advocates'' or ``counsels''. That is very much the issue at the heart of the Beattie decision. We must ask do these materials advocate or counsel. Alternatively, Mr. Sharpe would have been able to avail himself of the artistic merit defence. He called some witnesses, some experts, who persuaded the court that there was artistic value in these stories. They demonstrated literary technique, style and the like. Based on that, and in the alternative, the court held that Mr. Sharpe would have been able to avail himself of the artistic merit defence.
Bill C-2 adds a second layer to that analysis. It proposes a legitimate purpose defence, so material that has a legitimate purpose related to the administration of justice, medicine, education or art or science is the first branch. Even if these stories that I have just referred the committee to in the Ontario Court of Appeal decision were found to demonstrate some artistic merit or technique, the next test would have to be under the new legitimate purpose defence, do these descriptions pose an undue risk of harm to children.
Again, going back to what the Supreme Court of Canada said in Sharpe, we know what child pornographers do with these items. They are used to groom and seduce victims. They are used to fuel cognitive distortions and to fuel offenders to go on and commit sexual offences, contact offences. It is difficult to make that argument persuasively on the first example that I have given you in the extract of the book and not at all difficult to make on the basis of the description I just referred to the committee.
The editorial says artistic freedom of expression is being unduly infringed and that the types of examples cited in that case, I would suggest, the coming of age, the other examples are not even caught by the definition, and even for those cases that might be in the grey zone, and there is always a grey zone, the legitimate purpose defence is available for materials that meet that two-step, harm's-based test.
It is my proposal to initiate discussions on these issues after my colleagues speak.
Ms. Catherine Kane, Senior Counsel/Director, Policy Centre for Victim Issues, Department of Justice Canada: In the course of the testimony of witnesses before this committee have raised several issues with respect to the provisions that we categorize as facilitating testimony, and those that reform the Canada Evidence Act. Sometimes they have been used interchangeably, but the provisions to facilitate the testimony of children are amendments in the Criminal Code. The other amendments are amendments to the Canada Evidence Act, and they deal with how children's evidence is received in any proceeding.
With respect to facilitating testimony, these are provisions applauded by all those who seek to assist children in criminal proceedings. They will be significant improvements, because they will assist a child witness in any proceeding, not just child pornography or child sexual offences. These will have far-reaching benefits for children in the justice system.
Anyone who has been a witness or a victim will say that it is not a pleasant experience, even if you have very little at stake in the process. It is intimidating. It is foreign and unfamiliar to people, and for children this is particularly true. Over the years, we have made a number of reforms to these provisions to try to make that atmosphere a bit more accommodating while also protecting the rights of the accused. We have never overstepped the bound.
In the course of making those amendments over the last 15-18 years, one provision in the Criminal Code, 486, has been amended so many times that it now has 27 subsections and a whole range of subparagraphs.
It has become confusing. Within that, we have a range of different testimonial aids with different criteria for their application and different eligibility.
In Bill C-2, we took that whole section apart. Bill C-2 does four things to improve these provisions: It reorganizations the existing 27 subsections into seven specific sections that deal with all these issues on their own. For example, the reorganization includes exclusion of the public from the courtroom, support persons for witnesses, testimony by closed-circuit television or behind a screen, and restrictions on the personal cross-examination by a self- represented accused and publication bans. It will provide clear and more consistent criteria for the use of these testimonial aids by children under the age of 18 and by vulnerable adult witnesses and for some particular special cases, for example, criminal harassment victims and children depicted in child pornography.
The reforms will expand the protection for children under the age of 18 so that, in general, a child victim or witness in any criminal proceeding may request a screen, the use of closed-circuit television or a support person to accompany them when they give their evidence. In addition, where the accused is self-represented, a request may be made for the judge to appoint counsel to conduct the cross-examination of the child.
There is a requirement that the judge will order these testimonial aids on application, unless it interferes with the proper administration of justice. The model is: Ask and you shall receive, but there is a residual discretion for the judge in appropriate circumstances to say, ``This is not appropriate in this case.''
The main change is an expansion to protect children and vulnerable witnesses. However, in redrafting the whole of this section, we also re-enact many provisions. There was some confusion about those provisions because certainly when anyone sees these amendments and sees that we have publication bans included in the package and exclusion of members from the courtroom, there is a logical assumption that there are some big changes underfoot. That is it not the case. We have simply given those sections new numbers and some minor consequential amendments. They are re- enacting existing provisions interpreted by the Supreme Court of Canada and passed constitutional scrutiny.
There is one small change in the publication ban provisions and that is we have addressed the issue of Internet publication. Concerns have been expressed in the way provisions have been drafted that applies to publisher broadcast and whether that includes broadcast by Internet; the consensus is that it does. We have clarified that we are talking about a dissemination of information in the various forms of communication that exist now and that did not exist 20 years ago when these provisions were first codified.
That is the overview of those facilitating witness provisions, all of which are contained in the Criminal Code.
The other part concerns the amendments to the Canada Evidence Act with respect to children. Under the current law, the Canada Evidence Act treats children under 14 in the same way as it treats other people whose mental capacity is challenged. There is a current section 16 that requires the judge to conduct a two-part inquiry whether they are dealing with a person who has some mental disabilities or whether they are dealing with a child under 14. The two-part inquiry requires the judge to first determine, in the case of a child, whether the child understands the nature of an oath or the nature of a solemn affirmation and, second, to determine if the child is able to communicate the evidence. These amendments were made in 1988 with the purpose of trying to more readily permit children's evidence to be received. However, as the cases have interpreted this provision, we have not seen that ready acceptance of children's evidence.
If these two criteria are met, the child gives evidence under an oath or an affirmation. However, if the child does not understand the nature of the oath or the affirmation but has the ability to communicate the evidence, the evidence is received on a promise to tell the truth. That is the current law. While it may appear quite sensible on its face, the interpretations and practise of these provisions do not reflect Parliament's intention in amending the Evidence in an effort to permit children's evidence to be admitted more readily.
As interpreted by the courts, section 16 requires that before the child is permitted to testify, the child be subjected to an inquiry as to his or her understanding of the obligation to tell the truth, the concept of a promise, and an ability to communicate. While the Supreme Court of Canada has commented on the absurdity of questioning children about their understanding of the religious consequences of oaths in getting past that first hurdle of whether or not they understand an oath or affirmation, those questions about religious beliefs continue to prevail, although adults are never asked the same questions.
In addition, the child's ability to communicate the evidence, which is the second branch of the inquiry, is interpreted by the Supreme Court of Canada as far more than just what one would understand to be basic communication appropriate to a child of a certain age level. The capacity to communicate has been interpreted as an ability to observe, to interpret what the child has observed, and to recollect events in the past.
There has been extensive consultation and research into the child's experiences as witnesses in proceedings. In particular, there is research from Queen's University, the Toronto Child Abuse Centre, the Child Witness Network and the London Family Court Clinic, among others. The research is consistent in their conclusions. The child witness project at Queen's University is worth noting because that is a multidisciplinary project team of lawyers, psychologists and victim witness service providers. Their seven-year research has been conducted with the benefit of a grant from the Social Sciences and Humanities Research Council. They have concluded that a child's ability to answer abstract questions about oaths, affirmations and promises is really not related to whether they will give honest or truthful testimony in court.
The team has also noted that children are able to promise to tell the truth, understand promises from their daily social contacts with other children and teachers and so on, but they cannot always explain what the concept of a promise means. They have also noted that asking the child to promise to tell the truth does underscore for them that there is a certain importance to what they will say and they have to give true evidence in court.
Bill C-2 reforms are significant changes to the way children's evidence will be received. These reforms should significantly improve the experience of children in court.
The proposed amendments in section 16 are drafted in simple, straightforward language in an attempt to convey Parliament's intention. The current section 16, as I have described, will continue to apply to witnesses who are over 14 whose mental capacity is challenged. When you are dealing with someone where there is doubt about their mental abilities, that inquiry will continue.
The new section 16.1 will apply to children under 14 and it will make the following changes.
Senator Milne: Excuse me, Ms. Kane, I do not want to interrupt your flow of thought but I am looking for section 16. The section 16 I am looking at is about search warrants.
Ms. Kane: I am referring to section 16 of the Canada Evidence Act.
Senator Milne: Where is the amending part here?
Ms. Kane: The amendment is in clause 26.
The bill only shows you the amendments. You will need the Criminal Code existing section 16 to see the part that survives. The only change to section 16 is to clarify that it will now only be applicable to people over 14 where their mental capacity is challenged. That is the change. The new section 16.1 will be only for children under 14 years. If you are dealing with a child who is under the age of 14, nothing else matters in the Canada Evidence Act except for the new section 16.1 with respect to qualifying them to testify.
The amending legislation clearly sets out that a child under 14 shall not take an oath or affirmation. That is no longer an option.
The child under 14 years is presumed to have the capacity to testify. That is the starting point, but capacity to testify requires an ability to understand and respond to questions. We are not using the term ``communicate'' because ``communicate'' is interpreted to mean so much more than understand and respond to questions. The new law makes it clear that we are looking at the child's ability to understand and respond to questions, and that will be different for a five-year-old than for a 13-year-old.
If the child can understand and respond to questions, the child's evidence may be received. The child's capacity, which is his or her ability to understand and respond to questions, can be challenged. We start from that presumption, but it does not mean if someone has doubts about it cannot raise that issue and there cannot be an inquiry to determine if the child has the capacity to give evidence.
Where the issue is raised about whether the child has the capacity to understand or respond to questions, the judge will conduct an inquiry or will cause that inquiry to be conducted. The judge may ask the Crown to take the child through some questions as judges do now, but those questions will be directed toward the child's ability to understand and respond to questions.
Assuming that the child is found to have that capacity, the judge will ask the child to promise to tell the truth, which will underscore the importance of truthful testimony, but will not ask the child whether he or she can describe a promise in an abstract way, and the child's evidence will be received.
The goal of these reforms is to permit children to give their evidence where they are able to understand and respond to questions, but as with any other witness, the trier of fact, whether judge or jury, will determine the weight to attach to that child's evidence.
There are some concerns based on hypothetical situations and the potential that children's evidence could be manipulated. We have to recall that where the child will be the witness for the Crown, the Crown bears the burden of proving every element of the offence beyond a reasonable doubt at all times. The Crown will be able to assess early on whether that child will be able to respond to questions and give truthful information.
Over the last few years, there has been a great expansion in most of the larger court centres. There are victim witness assistants whose first priority, when they rank services to be provided to victims and witnesses, is to assist child victims. They certainly do not coach their evidence, but they get them prepared for court so they know what will happen, where they will sit and what role each person plays in the courtroom. They try to raise their comfort level.
If, in the course of that preparation, the victim assistants have any doubt as to whether the child has been coached or manipulated in some way, they have an obligation to bring that issue to the attention of the Crown attorney.
We should be quite confident that many safeguards are in place that will provide checks and balances on any evidence, not just that of children, where there is a suggestion of manipulation, coaching and so forth. These amendments should not increase that risk any more.
I am quite prepared to answer questions when we get to that point. Thank you very much for the opportunity to be here this morning.
Ms. Lisette Lafontaine, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: I was asked last week to clarify the relationship between the offences of voyeurism and the defence which is provided for those offences.
On page 5 is clause 6, which adds section 162 to the Criminal Code. Proposed subsection 162(1) defines the offence of voyeurism. It outlines all the elements that the Crown must prove to establish that an offence has been committed. It requires observation or recording which must be done in a surreptitious manner, and the person who is observed or recorded must be in circumstances that give rise to a reasonable expectation of privacy.
In addition, one of the three conditions listed in paragraphs (a), (b) and (c) is needed: Either the person is in a place where one would expect the person to be nude or engaged in sexual activity, or the person is nude or engaged in sexual activity, and the observation or recording is made for the purpose of observing or recording a person in such a state.
To prove (b), the Crown may bring as evidence the motives of the person. The third case is where the observation or recording is done for a sexual purpose. That is the main offence of voyeurism.
Subsection 162(4) creates the distribution voyeuristic material as an offence. Once the Crown establishes the elements of the offence, the person will not be convicted of the offence if the defence of public good is accepted by the court. Subsection (6) is where the defence of public good is located. It is not a new defence, but has been in the Criminal Code for a long time. It is the existing defence to obscenity, and it is also, until Bill C-2 comes into force, a defence to child pornography. This defence is well known by the court.
Subsection (7), right after that, establishes how the defence will apply. It specifically says ``for the purposes of section (6).'' Subsection (7) only explains how the defence of public good will apply. It establishes what is a question of law and what is a question of fact. The difference between questions of law and questions of facts is that a question of law is one that interprets the law, whereas a question of fact applies the law to a series of facts. Questions of law are decided by the judge and questions of fact are decided by the jury, if there is a jury. Another important point is that there can be an appeal of a question of law whereas there cannot be an appeal of a question of fact.
When we say ``the motives of the accused are irrelevant,'' it is only for the purposes of applying the defence of public good. It has nothing to do with proving the elements of the defence. It is only for the purposes of subsection (6), which is the subsection where the defence of public good is contained.
With respect to saying ``the motives of an accused are irrelevant,'' there is an objective test for the public good: Is the public good served? It is not whether the accused intended or thought he was serving the public good. That creates an objective test for the defence of public good.
Senator Pearson: I thank you very much for your clear explanations, which are very helpful.
Ms. Morency, in your description of the sentencing procedure, I should like to put on the record the comparison with other crimes. As I recall, a Toronto police detective told us that this crime receives less sentencing than other crimes.
Ms. Morency: I believe the concern was with the amount of time that police invest in investigating a case relative to the sentencing. It is quite complex to investigate a computer-related crime, such as we typically find in child pornography. However, one does not see much in the outcomes when one-half of the accused end up on probation and or with a conditional sentence, no matter that they may have possessed thousands of images involving graphic sexual abuse of infants and toddlers.
I am not sure that they provided other evidence. If we look at all child sexual exploitation cases and the sentencing outcomes, our understanding is that the outcomes in those cases would be similar to sexual abuse in general. There would be custodial sentences of around 47 per cent for both types of cases. That is higher than in general for criminal offences.
However, when you look at how conditional sentencing is used in child sexual exploitation cases across the board — not just child pornography but the other contact offences against children — our understanding is that it is somewhere in the nature of one in five cases, or about 21 per cent that, across the board, yield a conditional sentence. That compares with about 15 per cent for sexual assault in general. There is a difference already in terms of the use of conditional sentencing there. If you look at the use of conditional sentencing across the board for all criminal offences, our understanding is that it is in the neighbourhood of 4 per cent.
For each of these, we were looking at what was the most serious outcome in these cases, that is, if a custodial sentence is the most serious, or if a conditional sentence is the most serious. If we look at probation as the most serious — and this is consistent with the evidence that the Toronto police provided — in dealing with child sexual abuse, in about one third of the cases, or 29 per cent, the most serious outcome is probation. For all sexual assault, it is about 32 per cent. In general, for all criminal offences, it is 30 per cent.
Obviously, there are difficulties in trying to make bald comparisons between these numbers. The core of Bill C-2 is to provide better protection to children against all forms of abuse and sexual exploitation, and to ensure that the criminal justice process will facilitate their testimony as victims. It is also to ensure that the outcome in the criminal justice system in these cases reflects what I understood to be a unanimous position on, that is, that this type of conduct is to be condemned. I point out that all the witnesses have said this. We wish to take different or stronger initiatives to send that message more clearly throughout the process to deter and denounce.
If you look at sentencing in and of itself, you see that there are discrepancies.
Senator Pearson: In The Globe and Mail this morning, a letter raised the question of reverse onus, a subject that was brought up last week. Do you remember that it was raised? It seemed to me that it was a misunderstanding of what was happening.
Ms. Morency: I think I spoke to this in my remarks last Wednesday. I reiterate that the offence of child pornography and the existing defences for child pornography have been thoroughly interpreted by the Supreme Court of Canada in its judgment in Sharpe in 2001. We have tremendous benefit and opportunity to draw from that judgment.
Included in that judgment is a consideration of the existing defences. The court has clearly held that the existing defences, which Bill C-2 models, does not impose a reverse onus. Rather, there is a defence. As with defences in general, whether it is in this area, in the area of sexual assault or in other areas, where an accused seeks to rely on a defence, all the accused need do is point to some evidence to raise an air of reality that the defence can apply in that situation. It does not mean that the accused must call evidence or that the accused must take the stand. The accused can point to evidence to raise the air of reality, even through cross-examination of the Crown's witnesses. A fundamental, general principle throughout criminal law, in particular as it applies to defences in general, is that there is a presumption of innocence. The burden of proof remains on the Crown at all times. If you look to experts, such as Professor Don Stuart who teaches at the law school at Queen's University, you will see that they refer to what I have described as an evidentiary type of burden, where the accused has to point to some evidence that raises an air of reality. That is not a reverse onus. That is not a shifting in the burden of proof. At all times, the onus is on the Crown to prove beyond a reasonable doubt.
If we look at the Sharpe case and how the trial proceeded, we see that the accused and the Crown both called expert witnesses on whether the written material in that case had artistic value. One set of witnesses said it had value, while the other said it did not. I do not think Mr. Sharpe testified on that. The experts testified, and the evidence was before the court. The court came to its findings based on that evidence. There was an air of reality that there was some style, some technique, some plot to his stories that was followed and it satisfied. Therefore, the defence would have been available had the material met the definition.
[Translation]
Senator Nolin: I would like to thank our three witnesses for their testimony. Ms. Morency answered most of the questions I had with regard to minimum mandatory sentences, but I still have a question concerning section 212 which already calls for a five-year minimum sentence. Did we really adopt this amendment in 1999?
[English]
Ms. Morency: That was part of Bill C-27, which came into force in 1997.
Senator Nolin: Do we have some knowledge as to the effect of such a mandatory minimum sentence?
Ms. Morency: Unfortunately, we do not have much research as to how our existing mandatory minimum penalties have been operating across the board, and to what effect. To the extent we have some, it is always difficult to comment.
In the Criminal Code, section 212(2.1), which is the offence of aggravated procuring, has a mandatory minimum. We also have the provisions of section 212(2), which is living off the avails of juvenile prostitution. I do not have a breakdown between those two. I have a lumped number, however. We do not have a lot of cases that proceed under those two sections that we are aware of.
For example, in 2002-03, based on statistics from Statistics Canada, Canadian Centre for Justice Statistics, drawing from the adult criminal court survey, which has 90 per cent of police agencies reporting, there were 17 cases for the two. I cannot differentiate between the two, that is, which ones would be (2.1) and which ones would be (2).
I do not have the information in terms of the sentencing.
Senator Nolin: My question is more of a subjective one. We heard witnesses — and I am sure you were here when we heard them — talking about the fact that there is some sort of attitude in court to go around those infractions, to facilitate all sorts of things, to let the judge be the one solely in charge of deciding what is best for rendering justice. That is why I was asking those questions. Is there some sort of pattern being created around section 212(2.1)?
Ms. Morency: Unfortunately, I cannot speak to that. It is fair to say, as you have, that some of the research suggests that, sometimes, there can be other routes sought to avoid a mandatory minimum in that case.
For example, if a child pornography case were to be charged, there are not many alternative routes to charging that, and the same with the procuring types of offences. If you have a consistent approach to the sentencing in the sense that all the procuring-related offences now have a mandatory minimum, it is more difficult to try to circumvent that. However, I cannot answer you directly.
Senator Nolin: We all understand what the minister decided to do and why he is doing it. Look a little bit into the future; you heard the lawyer representing the defence lawyers of Canada, and they will question our bill in the near future. What will the effect be on Bill C-2 if one judge, or let us say the process, decides that clause 3, which is the first one on the list of mandatory minimum sentences, is declared in breach of section 12 of the Charter? What will be the effect, so we understand, if we accept the deal that the minister has accepted — if we say for the good of justice, let us accept Bill C-2 with flaws instead of trying to have a perfect bill?
Ms. Morency: First, in the age we live in, the potential for a Charter challenge always exists. The Sharpe case is an example. What was the effect of that Charter challenge upon other cases that were proceeding? It does have an impact.
Again, the position Parliament took with that and the advice that it was certified as being Charter compliant — and in the end, the Supreme Court upheld that — was, will it have some impact in the interim? Obviously it will, and there is not much we can do to prevent that from happening in those instances other than ensuring, through the legislative process, that we have everything useful to support the legislation on the record, and that we support the legislation through its implementation after the fact.
You had the minister provide fulsome evidence on the constitutionality of these mandatory minimums, including under section 12 of the Charter. Therefore, there is the minister's advice — and certainly he required the statutory obligation to certify the legislation as Charter-compliant; however, that does not mean that some may not try to challenge it. Challenges may come, but the position remains, based on Charter analysis, that Bill C-2 is fully Charter- compliant and will withstand Charter scrutiny. What we try to do as officials, after Parliament may enact legislation, is to support the implementation of that legislation to fulfil and achieve Parliament's intent.
Senator Nolin: I am not questioning the good faith of the minister signing off on Bill C-2 as amended. I am saying what if, as an example, clause 3 of the bill is declared not complying with section 12 of the Charter; what will be the effect on the rest of the bill?
Ms. Morency: Let us bear in mind that if the challenge is to the sentence, first, the accused has been convicted of the offence, so there is guilt there. There might be a challenge and, in one case, you might have a successful challenge and that would be appealed. The effect would be contained to that extent. Whether you would have many more cases that would do that or not, the accused has still been convicted. The question is, would a mandatory minimum of 14 days be unconstitutional and should the accused have been entitled to a conditional sentence? That would really be the impact and that is what is happening now. The worst-case scenario is, in some instances you might have the current practices while that challenge is being worked out through the courts.
Senator Banks: I would like to look at page 5 of the bill, clause 6, where you said, I think, that if provisions of paragraph 1 are met, you would need one of subparagraphs (a), (b) or (c) in order to qualify. If you are going to do that, I think you need to add the word ``or'' after the semicolon at the end of subparagraph (a), do you not? Would they not otherwise be read together?
Ms. Lafontaine: I agree that it would be clearer, but our drafters have rules that they follow. The ``or'' is between the subparagraphs (b) and the (c), and the drafters tell me we do not need the ``or'' between subparagraphs (a) and (b). We also had this discussion with them.
Senator Banks: I am perhaps naive in my questions here and in my situation, but I agree with everything in this bill. I can handle even the mandatory sentencing and the concept of reverse onus with respect to things that are clearly child pornography. I think the vast majority of this bill would go unquestioned by anyone.
However, can you explain to me two questions with regard to clause 7, paragraph (1), subparagraph (c) on page 7? What is meant by the phrase ``a sexual purpose''? Also, what would be harmed if at the end of that line it said ``of sexual activity with an actual person''? My concern is the one you have heard about, and it is my first chance to express it, the grey area or the thin line between a demonstrable heinous crime and censorship. As you have heard, it is difficult, given some of the defences here, for a creative person — or any person — to know in advance whether they are committing a crime when they are committing it.
I will be more specific. What is meant by ``a sexual purpose'' and is it defined anywhere; and what would be harmed by saying ``of sexual activity with an actual person''?
Ms. Morency: In answer to your first question, ``for a sexual purpose'' was interpreted by the Supreme Court of Canada in the Sharpe decision in the specific context of our existing child pornography legislation. It is interpreted at paragraph 50 to mean that which is ``reasonably perceived as intended to cause sexual stimulation to some viewers.'' It has a clear meaning within law. That will be authoritative for us as well in the context of what is proposed in clause 7, paragraph (1), subparagaph (c), referred to at page 7, which is the proposed new broader definition of written child pornography.
Your second question is, would there be harm in narrowing subparagraph (c) to apply only to an actual child? I remind the committee that our existing child pornography legislation already applies to material whether it involves a depiction of a real child being sexually abused or an imaginary child being abused. That has been interpreted by the Supreme Court and upheld as constitutional. The stories extracted in the Ontario Court of Appeal judgment, for all we know, could be an account of a real sexual abuse or a totally fictional account in the mind of the author. However, if you apply the interpretation ``reasonably perceived as intended to cause sexual stimulation to some viewers,'' clearly in the hands of some persons one could understand that type of story crosses the line and is what is at the heart of subparagraph (c) — the broader definition of written child pornography. Our existing legislation applies to material that depicts real or imaginary children. The Supreme Court has agreed that materials portraying children as objects for sexual exploitation are not only harmful to children but to Canadian society at large. Clause 7(1)(c) on page 7 of the bill builds on that and expands our existing definition to more clearly cover the kind of material that is before this committee.
Senator Banks: Would you repeat your comment on the intent of the material? Did you say, ``to cause sexual stimulation?''
Ms. Morency: The Supreme Court of Canada's interpretation of ``for a sexual purpose'' is that which is ``reasonably perceived as intended to cause sexual stimulation to some viewers.''
Senator Banks: Is that meant to be whether it is exclusively intended to cause sexual stimulation or whether it is presumed to cause? For example, a novelist might write something that might be appropriate for the content of the book but might cause sexual stimulation for some readers of the novel.
Ms. Morency: You have to read the entire definition. It may be that two lines in a book would sexually stimulate a handful of readers but it is not the dominant characteristic of the work, and so might not warrant a description of unlawful sexual activity. You have to put the facts together to determine whether the material falls within that definition. In the example before us on the decision of the Ontario Court of Appeal, I do not have the stories so I cannot say whether the dominant characteristic of each would fit those descriptions. If that were so and the Supreme Court's analysis from Sharpe were applied to those stories, then one could make a strong pervasive argument in law that the material would be caught by this proposed definition. While it may not be sexually stimulating to most of us — most of us do not engage in those kinds of activities in the first place — it might be stimulating to some people.
Senator Banks: Likely you have answered this question, and if so I apologize for asking it again, but given what you said would Nabakov's novel, Lolita, which depicts a sexual relationship between an older man and a 12-year-old girl, be caught by this proposed legislation?
Ms. Morency: The Supreme Court of Canada decision in Sharpe would indicate that Lolita would not be caught by the existing definition.
Senator Banks: What is the distinction?
Ms. Morency: The existing definition is, written material must advocate or counsel unlawful sexual activity with children.
Senator Banks: I am asking about the present.
Ms. Morency: Lolita was considered briefly by the Supreme Court in the Sharpe decision. It is part of what is out there, and Bill C-2 is drafted and proposes amendments that build on what we already know to exist. Lolita is a recognized work of art, which I reread before preparing my comments. I do not think it would meet the definition so it would not be caught by the definition.
Senator Banks: Could that happen if it were newly published tomorrow?
Ms. Morency: Compare that book to the example of the extracts before senators on the decision of the Ontario Court of Appeal. There is a big difference. Going back to my earlier opening remarks, even if you have a grey zone situation, the courts will always ask whether it meets the definition. If it is not within the definition, then there is no case. Only when the court finds that it falls within the definition can you move to the next question on whether a defence is available. Art can benefit from a defence subject to this proposed test.
Senator Banks: What is ``legitimate use?''
Ms. Morency: I cannot speculate on how all instances will be dealt with but the process will be clear, the tools will be available, the language will be clear, and we have the Supreme Court's interpretation to guide in interpreting and applying the proposed legislation.
Senator Banks: Under the amendment, the expression of offences with respect to artistic merit have changed. What is a legitimate purpose?
Ms. Morency: The existing test for artistic merit requires an individual to show that the work in question has some artistic value, no matter how small. As long as there is some artistic value, it succeeds in the defence, whether 99 per cent of people say it has none.
Senator Banks: The intent of the bill is such that no matter how small the artistic merit is, artistic legitimacy would be a defence, regardless of other considerations?
Ms. Morency: Certainly. We expect the Supreme Court decision to guide the interpretation of ``legitimate purpose'' with respect to art — to determine whether there is objectively viewed, demonstrable artistic value to the material. For other issues addressed in the offence, there can be ``legitimate purpose with respect to the administration of justice.'' For example, possession of child pornographic images by police for criminal investigative purposes is a legitimate purpose. Canada is not unique in using reference to legitimate purpose or in having a defence for child pornography because other countries use that as well. The difference is between what exists for artistic merit and what Bill C-2 proposes for that second test — the undue risk of harm to children.
Senator Banks: What is wrong with removing the word ``undue'' if it implies that there can be an acceptable harm to children?
Ms. Morency: You have to look at the Supreme Court's decision in Sharpe. I had spoken to this last week but again, the court carved out of our existing possession prohibition two exceptions because the court found that in those two circumstances, there was not an undue risk of harm to children. In those two situations, there were works of the imagination. In a first example, if I were to write a story or paint a picture and show it to no one, there would be minimal risk of harm to children. In a second example, if two 15-year-olds can lawfully engage in sexual activity with each other and make a recording of it but do not show it to anyone else, then we have such an exception because there would be a minimal risk of harm to anyone else. Other elements that exceed that are at the heart of the child pornography provisions. They are based on the evidence before the court that the court has accepted as material that fuels offenders to go out and commit a contact offence, or that fuels cognitive distortions used by pornographers to seduce and groom victims that then causes undue risk of harm to children. It is material that creates a market, and the market causes more of this material to be made and more children to be abused in that making; and that fuels the offence.
Senator Banks: There is no question. I take great comfort from your answer that a modicum of artistic merit is a sufficient defence under the intent of the bill.
Senator Joyal: I will continue on the same point because I raised it in the citing of various cases with witnesses. Clause 7(7)(6) in respect of subsection 163.1(6) and (7) of the Criminal Code, at page 8 of the bill, states:
No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence
(a) has a legitimate purpose...
Note the use of the word ``act.'' The existing defence of 163.1(6) at page 274 of the Criminal Code, says:
Where the accused is charged with an offence under subsection (2), (3), (4) or (4.1), the court shall find the accused not guilty if the representation or written material...
Here we have ``representation or written material'' and in the new wording we have ``act.'' In your opinion, is not the word ``act'' much broader than the words ``representation or written material''?
Ms. Morency: I suggest it is more accurate. The offence is the act of making and/or possessing child pornography. One of the witnesses last week referred to a difference between Bill C-2 and a predecessor bill. Bill C-2 focuses on the conduct relating to that act. Images of child pornography in the hands of the police remain child pornography. The question is whether there is a defence for police to possess that material. If not, they are committing an offence when possessing it or distributing it to the Crown. The defence applies to the conduct with regard to that material.
Senator Joyal: Although I may be wrong in my interpretation of the present defences under subparagraph 6, it is the representation or written material that is judged to have artistic merit. We propose to change this to recognize a legitimate purpose for the act, independent from the material. To me, it is very different. Currently, the material is presented in court and the judge has to determine objectively whether there is artistic merit. Experts can be called, and they may disagree on this. The judge has to decide on the basis of testimony heard on artistic merit.
We are now putting that aside and looking at the act, and the means of producing the object of pornography is totally different. Under this, the accused must prove that the act has a legitimate purpose. I am not so sure that, as you have said, legitimate purpose can be proven by a simple affirmation that this is art. It is much different, because to determine legitimate purpose you have to go to the intention of the person. If I do this for the purpose of pleasing you, that is an intention. Independent of the fact that it pleases you, I look at whether it has artistic merit. There are certainly more elements than there were before.
Legitimate purpose is related to the result you want to attain. If I say my objective is to please Senator Milne, and I choose this object to do so, I will be judged objectively on whether I attained my purpose by choosing the right object. Legitimate purpose is difficult to prove. I am not so sure that I need only attest that my intention was to please Senator Milne. I think the proof is much wider.
Ms. Morency: I did not intend to say that you merely have to say that you intended it to be art. There must be some evidence objectively viewed to demonstrate that the work in question has some legitimate artistic value, and that is applying the Supreme Court's analysis.
``Legitimate purpose'' would have a plain and obvious interpretation. The question will always be whether the material in question meets the definition. I will use the police as an example to help me illustrate this. Photographic images that meet the definition are child pornography, regardless of how legitimate the activity is in relation to those images. A police officer assigned to a child pornography investigation unit possesses that material. He or she has the legitimate purpose, related to the administration of justice, of possessing that material for investigative purposes. The same material in the hands of a child pornographer, for his own personal gratification, does not have a legitimate purpose. He could argue that it has a legitimate purpose for art, although that would be difficult to prove. He could argue that it has the legitimate purpose of preventing him from committing a contact offence. However, the Supreme Court of Canada did not accept that as a therapeutic value.
The materials are child pornography no matter what, but in the hands of some people, for certain limited purposes, a defence may be available. The same material in the hands of someone else, for other purposes, may not benefit from that defence. It would not suffice to simply argue that the material is art.
In the Supreme Court's interpretation of the existing legislation, you have to point to some evidence that raises an air of reality. There must be some evidence to show that, objectively viewed, there is some basis for believing that the work has artistic value.
The police have no problem, from a practical perspective, determining what is art and what is not. Written material is usually in the context of a much larger collection, which makes it more difficult to argue that it is something else. The courts look at the collection in its entirety, if it is presented. They can determine that one particular picture alone may not constitute child pornography but that as part of a collection of 1,000 images it does.
Senator Joyal: You said that the police will immediately know the difference between a work of art and pornography. Paintings were seized in Toronto that were later shown not to meet the present definition of the code. That is a clear indication that in the field of works of art, the police, with all due respect, may not be able to make that determination. It is even less certain when you start investigating the legitimate purpose of the person who commits the act. You confuse in your answer ``legitimate work of art'' and ``legitimate purpose.'' I believe that a work of art is a work of art. In the defence under subparagraph 6, the judge does not have to determine whether it is legitimate.
You can conclude that in the hands of a child that work of art might cause harm. I can think of some works of art to which I would not repeatedly expose a child.
However, that does not change the fact that it is a work of art and, per se, would be excluded from this bill. Now, it is totally different. You include the notion of ``legitimate purpose,'' which essentially questions what the person had in mind when the person produced that work of art. That is a big change from what we have presently.
Ms. Morency: I did not mean to make light of your concern. I understand your concern. I meant to say that police are faced with child pornography, sometimes with 10,000 images or one million images. We have had two cases where art has been at issue in child pornography. We had the Eli Langer case and then the Robin Sharpe case. We have police-charging standards, Crown prosecutorial standards in terms of when charges are laid. In three provinces — Quebec, New Brunswick and British Columbia — there is Crown precharge approval.
I understand the concerns you are addressing. Every effort has been made to respond to and address those and to build a framework within which the courts can apply clear standards and tests, and to be guided in that process by the Supreme Court of Canada's decision in Sharpe.
Senator Joyal: I accept your answer, but I what I raise as an issue is not someone who has 10,000 or one million child pornography photos. This is a defence based on art. We are changing something that exists now and putting in something different. We must judge it objectively on the text that you have proposed to us. You know more than I do that each word counts when you go to court. You must prepare your defence according to what is in the Criminal Code. I am trying to understand the extent and the limit of the defence that you are proposing to replace what we have now.
I am not questioning that the intention of this bill is to fight pornography. We all agree on that. I am trying to see the impact that this proposed section will have on freedom of expression of artists. I am not trying to prevent you from fighting those who have one million photographs of children being tortured on the Internet. That is not the point.
Senator Pearson: I have a supplementary question to that. That is a legitimate concern. We are using the word ``legitimate'' a great deal here.
Senator Joyal: You understand what a legitimate point is.
Senator Pearson: I know what you are talking about. It seems to me that we are trying to capture the act of possession. The act of possession is the crime. The Supreme Court has said that when Sharpe was writing for his own purpose it was not considered a crime. The act is in spreading it. That is my understanding of what ``act'' is trying to capture here.
With all the great respect I have for artists, having come from a family of artists, there are artists whose intention is to create child pornography. In that case, I feel the act would be criminal. There are those who intend to do that. Among the collection of images that you do get, occasionally there is a piece of work whose intention is clearly what they have discussed here as causing undue harm. There are very few, but there are some.
Senator Joyal: Those responsible for interpreting the act, as far as we have been able to see, are the police, and in the end what results is an exercise of judgment on the part of the police. That is it. This is the reality with which we are dealing.
I am not questioning the intention of this bill. I totally agree with it 2,000 per cent. However, we are changing something important to me in the reality of today's freedom of expression in Canada on artistic merit. I am concerned about this. I totally agree that we have to repress pornography, exploitation of children, abuse, violence and everything else, but here we are going into a domain that is difficult to circumscribe and protect in the difficult area in which Senator Pearson is well known to invest herself. Essentially, that is what is on my mind. I am not so sure that the way it is written, and with all the good intentions in the world, we are not opening up something and creating a problem here that, as the chair would say, we might want to revisit at a later point in time.
Ms. Morency: May I give one more example that may help? If someone murderers another person, the result — that is, the murder — does not change, but the accused may have a defence. Whether the accused has self-defence or something else, the conduct does not change depending on whether a defence is available. To the extent that Bill C-2 is making some changes, it does not change our existing definition of visual depictions, which probably applies to many of the examples you give for artwork, such as paintings and so on. We have seen many cases that have proceeded under our existing definition of paintings or works of art that may have been caught by our existing definition. There is really just the one case, Eli Langer, and it was not even the painter who was charged; the art gallery exhibitor was charged in that case.
We then have the Robin Sharpe case dealing with written material, and Bill C-2 proposes a reform to address the written material and, across that, there is a change in the defence.
The intent is that material that meets the definition remains child pornography, but what may be protected is that in the hands of some people for certain purposes and in limited circumstances there may be a defence. There is the example of possession of photographs by police versus the same by the child pornographer. In the case of the artist who writes the story or the painter who paints the picture, again, if we follow the Langer case where the paintings were lamenting sexual abuse of children, the court there applied contemporary community standards of tolerance from the obscenity provision. However, the Supreme Court said that it does not apply when we deal with art and child pornography. The accused needs to point to some evidence to show, objectively viewed, there is some evidence of artistic value.
The defence is there. It is available and can work to address the types of concerns that I think you are identifying for the committee today.
Senator Joyal: May I go on with respect to the sentence issue?
The Chairman: We have other questioners.
Senator Andreychuk: You made a comment today that I struggle with. I do not like a reverse onus situation at all in our criminal law. However, we have introduced it. In its application, the Crown still has the conduct of the case and must make out a case before the reverse onus clicks in. We then clearly know exactly what the accused must do. At least, that has been honed in the cases that I have followed.
One of you indicated that the accused must signal some evidence and that it is not a reverse onus per se. The accused must signal some evidence. That is between the prosecution having to make a case and a clear-cut point where the accused must make a defence.
I am not sure how signalling evidence works in court or in law, because that is a grey area. Could I have an elaboration on what that means? To me, signalling evidence signals a reverse onus.
Ms. Morency: In the opinion of the Supreme Court of Canada majority, that is not the case with child pornography. We can look to Professor Don Stewart, who is recognized as a leading criminal law expert, and he describes defences, citing from his fourth edition, Canadian Criminal Law, a Treatise, I believe it is 2001, at page 460.
Onus of Proof:
In the case of general justifications or excuses it is consistently held that the only burden on the accused is the evidential one of pointing to evidence putting the defence in issue. There is no departure from the general rule that the Crown must prove guilt beyond a reasonable doubt and therefore no reversal of the onus of proof which would be subject to a Charter review. The Crown must negative a justification or an excuse.
Senator Andreychuk: I understand that point philosophically. That is why I did not ask it in a legal way but rather a practical way.
Let us take the prosecutor and defence counsel in small-town Canada who will be struggling with this case. How will they put it into practice? It is all very nice to have a theory, but when it is on the ground, it certainly looks as if the accused has to do something that is similar to reverse onus. I strongly feel — and I am only signalling this — that, in practice, that is what will happen. It may not have been the intention. It may be fine-tuning the law in an academic, theoretical sense, but practically, I think you have gotten yourself into a reverse onus situation. If I were representing an accused, I would say, ``We have to do something here.'' It puts the defence counsel in some conundrum.
Ms. Morency: If I could finish the paragraph that I was reading, then I will take the committee to the Supreme Court's finding on this. Finishing from Don Stewart at page 460:
Where the defence is not put in issue by the Crown's case, the accused has a duty of adducing some evidence although this does not mean he has to prove anything or to testify.
That is the standard rule that applies across the board to defences and how they operate.
How does it operate in the specific context of child pornography? In the Sharpe decision, at paragraph 66, the court clearly says:
The wording of the section —
They are referring to the existing defences,
— suggests that it functions in the same manner as other defences such as self defence, provocation or necessity. The accused raises the defence by pointing to facts capable of supporting it (generally something more than a bare assertion that the creator objectively intended to create art) at which point the Crown must disprove the defence beyond a reasonable doubt.
That is the Supreme Court in the child pornography context.
Bill C-2 merges the two defences that we have now into one. Bill C-2's proposed legitimate purpose defence is similar in approach to the public good defence that we have now in the child pornography provisions that is incorporated by reference from the obscenity provisions.
There is a strong authoritative ruling by the Supreme Court on how the defence operates here, supported by equally strong criminal law understanding of how defences operate in general. When there is a reverse onus, reverse onus is very directly imposed and very obvious and very different from this. For example, on a bail hearing, section 515(10) indicates that, in certain circumstances, the accused shall be detained unless the accused can show, et cetera. There is quite a big difference between those exceptional cases where there is a reverse onus clause and this, which is within the realm of all defences.
Senator Andreychuk: I think we have a difference of opinion on the practicality of it, particularly when you talking about artistic merit and having to stand by differently.
If this act is passed, will directives go out to explain all this to all the prosecutors across the country and all the officers who will deal with this? I am mindful that in Vancouver and Toronto, you have an expertise within your police systems, but when you are in small-town Saskatchewan, often that good advice never quite makes it, and then they have a situation on their hands. Has there been talk with the provincial governments on either releasing resources or undertakings that these very complex situations will be explained to police officers and prosecutors on the ground?
Ms. Morency: As you have noted, the obligation to provide directives to prosecutors and police would rest with our provincial counterparts. Over the course of the last three years, in dealing with the predecessor to Bill C-2, and again more recently with Bill C-2, we have been in discussion with our provincial colleagues to assist with full and effective implementation. It would be their responsibility. Certainly, from a federal perspective, as always, we remain supportive and ready to collaborate with our counterparts.
After the committee heard from Detective Inspector Angie Howe from the Ontario Provincial Police, I began discussions with her about whether or not she will prepare some directives, for example, for her own child pornography unit. She advised me that she would do that, and we would look for opportunities to collaborate.
Yes, it is mostly a provincial responsibility but, as always, we work closely with our colleagues in the provinces to support the legislation, and we would do so in Bill C-2 as well.
Senator Joyal: On paragraph (7) at the bottom of page 8, the question of law, it states:
For greater certainty, for the purposes of this section, it is a question of law whether any written material, visual representation, or audio recording advocates or counsels ...
Could you explain your understanding in that context of ``advocates or counsels''? For instance, how does a visual representation such as a painting, per se, in your opinion, advocate or counsel?
Ms. Morency: This proposed reform flows from the Sharpe decision and the materials in question that we were dealing with. Do the written stories advocate or counsel unlawful sexual activity with children, because that is our current definition of written child pornography. In that case, the Supreme Court gave an understanding of what it means to advocate for counsel. The Supreme Court interpreted it, at paragraph 56, as ``actively inducing'' or ``encouraging.'' In other words, the material, objectively viewed, sends the message that sex with children can and should be pursued. The Ontario Court of Appeal decision in Beattie deals with exactly that issue, namely, the interpretation of what advocates or counsels unlawful sexual activity with children.
You referred to subsection (7) at the bottom of page 8. That is intended to address for appeal purposes. A court's interpretation of whether the material in question advocates or counsels is a legal question, so it would be subject to appeal. We have the benefit of the Supreme Court's decision in terms of interpreting ``advocates or counsels.'' We may have it again in the Beattie case, if leave to appeal is granted. That would be our understanding and intent of how this would be interpreted in the future.
Senator Joyal: I can see a simple interpretation or meaning, which would be that if I advocate something, I suggest that people do it. I advise people to do it. When you look at an object such as a painting of an adult with a child that might be sexually representative, an adult, for example, touching the sex of a child, can we say that it advocates or counsels people to do it by the mere fact that they are represented visually to be in a sexual activity?
Ms. Morency: First, the requirement that the material advocate or counsel applies only with respect to the written format and/or the audio format that is also proposed by Bill C-2.
Senator Joyal: In number 7, you say visual representation.
Ms. Morency: It goes back to the definition that we have now in the Criminal Code in section 163.1, subsection 1 (b), ``any written material or visual representation that advocates ...''
Senator Joyal: I am not talking about material. I am talking about visual representation essentially.
Ms. Morency: If we apply the Supreme Court's interpretation, it has to be more than just a depiction of unlawful sexual activity to constitute advocating or counselling. It has to be objectively viewed and interpreted as saying to the viewer that sex with children can and should be pursued. That is the standard that the Supreme Court has set.
With the example you gave, the question is: Would that material, objectively viewed, send that message? It is a high threshold and an objective one.
Senator Joyal: In relation to the objectives of sentencing that the minister and the department have pursued generally, in the principles of sentencing in section 718 and following, instead of a mandatory sentence, would it not be a better policy as an element in the sentencing to say that the person has accepted to undergo treatment, for instance, or that the person is a first offender, and so on. Then there will be a clear signal to the court that there are elements that should be taken into account in determining the seriousness of the sentence.
I have mentioned to some of the witnesses that I have the impression that the court will settle for the minimum. The court will say, ``Okay, 14 days, goodbye. Do your 14 days and after that, go back and do whatever you want.'' It would be better to give signals to the court that there are elements that should be taken into account in determining the sentence that have a long-term benefit and impact on the individual and society rather than putting the person in jail for a minimum number of days and then releasing the person. Then you say, ``We will send the police after that person because he is registered now as a sexual offender.'' That does not seem very rational.
Ms. Morency: The point you raise is what the courts do with existing sentencing principles. Section 718 of the Criminal Code directs courts to do exactly that. It directs the courts to give consideration to one or more of the following fundamental objectives for sentencing:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.
That is what courts do now when they sentence each and every accused. They look at sentencing principles and consider the aggravating and mitigating circumstances. If we look at reported case law on child pornography, the courts routinely go through those factors: Did the accused plead guilty; did the accused assist the police and save them time and energy in trying to find the material on their computer; is it a first time offence; is there a history of committing contact offences or previous child pornography offences; has the accused already or voluntarily commenced treatment or has the accused consented to enter into a program of treatment? All those factors are considered.
The intent, as I understand it — it is not my area of responsibility — with the sentencing reforms when these were enacted in the mid-1990s was not to provide a listing of each and every factor that courts must consider, but to provide them with principles that they can apply in each and every case so that the outcome reflects the balance of those, and what is fair or what is appropriate in the circumstances.
What Bill C-2 does to those sentencing principles is to say, in all cases involving abuse of a child, courts must give primary consideration to deterrence and denunciation of that kind of conduct. Again, that is a reflection or codification of what courts do for the most part now when they sentence offenders for having committed an act of violence or abuse against a child.
This was the minister's and the government's preferred approach with how Bill C-2 was initially introduced. Having said that, this situation is slightly different. There are some mandatory minimums, and the concern that you have raised is a concern that has been raised by research that exists. One of the down sides of mandatory minimum penalties is that they can sometimes become the ceiling in a case.
Senator Joyal: I am afraid that is what will happen.
Ms. Morency: Again, there are other reforms in Bill C-2 that try to deter and denounce this conduct more forcefully. That is the primary consideration. The courts will be expected to apply the same principles. In each case, what is the appropriate sentence, recognizing all the aggravating and mitigating factors? The mandatory minimum penalties, as I understand it, are never offered as the ultimate ending. Sometimes they may end up there, but certainly the courts have a clear message that the primary consideration in Bill C-2 is to deter and denounce conduct. Some of the research that looks at how mandatory minimums have been implemented show that where offences impose a mandatory minimum that provides a certainty of punishment, that can have an impact. In evidence that was before the Justice Committee, and I believe Detective Inspector Howe spoke to this issue again, some child pornographer offenders go on Internet chat rooms and tell other offenders that if you commit a child pornography offence, do not worry, plead guilty, you will get a conditional sentence, and we will tell you how to keep your images. The evidence indicates there is not a certainty of punishment or maybe not one that some offenders find will sufficiently deter or denounce their conduct.
[Translation]
Senator Nolin: I presume that committee members have received the e-mail from Mr. Montpetit, who was one of the witnesses we heard from last week.
Mr. Montpetit was referring to a conversation you allegedly had with him after his testimony, in the course of which you said that you had read what he had written and that his books would not lead to charges being laid.
[English]
Do you remember that conversation with Mr. Montpetit?
Ms. Morency: I do not recall saying that I was aware that he personally faced any charges, but I did say that I had read the materials about two and a half years ago, and my understanding of them is that they would not be caught by the proposed definition.
Senator Nolin: I will give you a printed copy of what he submitted to us as an attachment to his e-mail. He says that what you have in front of you, for him, is encompassed in the actual definition, not even the definition amended by the bill in section 163.1(1)(a).
If Mr. Montpetit faced charges, would the amalgamated defences in Bill C-2 be any help to him?
Ms. Morency: Out of the context from whatever might have been there, the question will always be: Is this the dominant characteristic or is this depicting unlawful sexual activity? It is not clear to me that the persons depicted in this drawing are of a certain age.
Senator Nolin: Mr. Monpetit is saying that what is in front of you refers to the definition of child pornography in section 163.1, subparagraph 1(a)(i). There is no reference as in subparagraph (c) in Bill C-2 to the expression ``dominant characteristic.'' For him, it is a representation
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, ...
For me, it is obvious what you have before you is that. That then begs the following question: Can he defend himself?
I raise the question again of section 163.1, subparagraph 6(b), which reads: ``does not pose an undue risk of harm to persons under the age of eighteen years.'' He expressed that concern to us last week, and it is valid. You were there; you saw him. He is producing that material for kids in school.
Ms. Morency: It comes down to whether it meets the definition, existing or proposed, and even if it does, whether a defence is available.
His evidence before the committee on the second point was that it is done to educate young persons. It is a literary, artistic endeavour on his part, and it serves an educational purpose. The defence is available no matter what.
The question on the first one, again, is whether it fits within the existing or the proposed definition. I do not recall when the book was published. He has not been charged.
Senator Nolin: He is not suggesting that. He is afraid of the future. When you read the defence, paragraph 6(a), that is fine. You have referred to that, namely, the educational intent, but what about paragraph 6(b)? That is his concern.
Ms. Morency: Do you mean the undue risk of harm?
Senator Nolin: Yes.
Ms. Morency: Again, if we look at how the Supreme Court has interpreted what causes an undue risk of harm, it is materials, for example, based on the case in Sharpe, that can be used to fuel or groom young victims, to incite offenders to commit a contact offence and to promote cognitive distortions for the offenders. It would be a difficult argument for the Crown to make, that one page out of a fuller work — if that is what it is — poses an undue risk of harm to children, based on that criteria.
The question is: Is the law clear in terms of providing an understanding of what the definition is in the process, and is there a process to enable the system to deal with it and apply it to individual cases as they come before the system?
The police have the tools. They work with this. Mr. Monpetit has not been charged. With respect to the future, again, without trying to speculate about each and every work, Bill C-2 seeks to provide that clarity, that certainty and that clear framework. At the end of day, it is up to a court to determine whether the material in question meets the definition and whether the accused before the court can avail himself of a defence in those circumstances.
[Translation]
Senator Nolin: Mr. Montpetit, who spoke in his own name and on behalf of many authors, is concerned with paragraph (b) of the new defence.
I will read to you paragraph 66 of the Supreme Court's decision in the Sharpe case:
The third issue is how the artistic defence functions procedurally. The test, as mentioned, is objective. The wording or the section suggests that it functions in the same manner as other defences such as self-defence, provocation or necessity. The accused raises the defence by pointing to facts capable of supporting it...
I will not read the rest of the paragraph. How can the accused, Mr. Montpetit, support his claim that the image you have before you — without regard to what else is contained in the book — does not pose an undue risk for persons under the age of 18?
[English]
That is his concern. I want to make sure that Mr. Monpetit will maintain his good work trying to educate young Canadians when the bill is sanctioned.
Ms. Morency: I assume you accept our position that it is not even caught by our existing definition, so you do not get to that point.
In the alternative, if you get to that point, the court will look at the evidence before it. In this case, his evidence would be, based on what he provided to this committee last week, that he has won a number of awards based on this work. It has been well received not only as a literary work of art but also as an educational endeavour for young persons. Again, the burden would be on the Crown to prove that it causes more harm than not. The Crown, based on that type of evidence, would have a difficult case to make to show that this is being used in any respect to do any of the things that we understand child pornography is used for, to further victimize and exploit children. The burden is on the Crown, not on the accused. Therefore, does this even get caught by the definition? We suggest it does not. He has not been charged, which would indicate similarly that it is not perceived as falling within our existing definition. If he had to get to the defence and rely on that, again, the type of evidence he provided to this committee would point to an air of reality for his defence, and the Crown would have to prove otherwise. I am not sure how the Crown would prove it. In a given case, the Crown may look at a circulation amongst a certain group. I am trying to speculate here, but the idea is whether there is enough of a framework here for the courts in each case to consider the material before it, to consider the use made of the material and to fairly consider whether the defence applies. Even in discussions with Mr. Monpetit afterwards, I think he acknowledged that his material is not even caught by the definition.
Senator Joyal: I refer again to subparagraph 6(b) at the bottom of page 8: ``does not pose an undue risk of harm to persons under the age of eighteen years.''
Does ``persons under the age of eighteen years'' refer to an eight-year-old kid or a 17-year-old one?
Ms. Morency: The whole of the child pornography provisions apply to persons under the age of 18, or depicted as appearing under the age of 18.
Senator Joyal: To me, it is quite different. A visual representation or written material read by a 17-year-old is, to me, totally different in terms of producing harm than it is in the hands of an eight-year-old. I tried to determine how we will judge this.
Ms. Morency: Again, the definition is pretty clear in saying the line is below the age of 18. Will the Crown in some cases be able to prove that the work in question caused or poses an undue risk of harm? One of the factors the court may have to consider, if it is a 17-year-old versus a six-month-old, is whether there is undue risk of harm.
Bill C-2 is building within the framework that exists. We are not changing the age limits. It is already under the age of 18 because Parliament has already decided that children under that age are at risk, and we need to better protect them.
If we look at whether it is a possibility, it is a possibility that the case could come up. If we look at what is happening in practice, including the evidence from the police before this committee, it would seem overwhelmingly that the number of images involving young persons are generally prepubescent. Research from the United States shows that one in five of those who possess child pornography possessed images involving sexual abuse of children who are infants or toddlers under the age of three.
Is it possible? It is possible, and the burden is on the Crown to prove it. Is it the practical reality that the police and Crown are dealing with today? No.
Senator Joyal: I still have problems identifying how we will measure objectively a visual representation of sexual intercourse between two teens, for instance, under the age of 18. I am talking of teenagers here. Especially in the context of today, that material might not cause undue harm to a 14- or 15-year-old child. However, in the hands of a child who is seven or eight years old, that might cause harm because of today's reality. Where will we draw the line to judge objectively that one work causes harm to a younger child but would not cause harm to an average teenager in today's society?
Ms. Morency: Two 14-year-old children can lawfully engage in sexual activity with each other. If they take a picture of that and keep it for their own purposes, the Supreme Court has said there is no undue risk of harm. The minute they show it to someone else, say a 7-year-old or a 3-year-old, or if they show it to a 17-year-old, the Supreme Court says that is an offence.
The point my colleague made about the difficulties we have when you have a bill before you in this format is that it is only what is immediately before you. It is not everything we already have in the Criminal Code or everything we have had as to how the courts have interpreted and applied the existing law. We are trying to bring all that together before this committee to say that all this based on our experience in this area should continue to have the impact or be interpreted in the way that it has been interpreted to this point by the Supreme Court.
The Chairman: Thank you very much for this informative session this morning. Please do not leave because we are not yet through with the bill.
Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-2?
Hon. Senators: Agreed.
The Chairman: I want to mention right now that we will have some observations to append to our report.
Senator Banks: Madam Chairman, never mind the observations. Is it the intention that your committee will revisit this question in a fairly short period of time, shorter than is provided for in the legislation?
The Chairman: That will be in the observations. If we have to mention a timetable, we could. We have not mentioned any, but five years to us is too long.
Honourable senators, shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 4 carry?
Some Hon. Senators: Agreed.
Senator Nolin: With reluctance, yes.
The Chairman: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 6 carry?
Some Hon. Senators: Agreed.
Senator Joyal: On division.
The Chairman: Shall clause 7 carry?
Some Hon. Senators: Agreed.
Senator Joyal: On division.
The Chairman: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 9.1 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 10.1 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 11 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 12 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 13 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 14 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 15 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 16 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 17 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 18 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 19 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 20 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 21 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 22 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 23 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 24 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 25 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 26 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 27 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 27.1 carry?
Some Hon. Senators: Agreed.
Senator Milne: With some reluctance. On division.
The Chairman: Clause 27.1 is carried on division.
Shall clause 28 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 29 carry?
Hon. Senators: Agreed.
The Chairman: Shall the preamble carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed that this bill be adopted without amendment?
Some Hon. Senators: On division.
Senator Andreychuk: Clause 27 was on division. There is a reluctance on the part of two of us. I heard Senator Joyal say he is reluctant, as did Senator Milne. Is it passing on division? I am presuming everyone else said ``yes.''
The Chairman: Yes.
Does the committee wish to consider appending observations to the report?
Hon. Senators: Yes.
The Chairman: Is it agreed that we will proceed with the observations.
We do not have to proceed in camera, do we?
Some Hon. Senators: No.
The Chairman: We have nothing to hide here.
I will let you read the first paragraph of the observations and wait for your comments.
[Translation]
Senator Nolin: I would like to have a general discussion on those observations and leave it up to you and the subcommittee on agenda and procedure to work out the exact wording. It is quite possible that there will be arguments on one word, since there are 12 of us around the table.
The Chairman: I have already received corrections.
Senator Nolin: I think it is better to have a general discussion; that way, you will see where we are coming from and will be able, in your wisdom, to reach a decision.
The Chairman: That is right. Usually we proceed clause by clause and that is why I proceeded in that manner.
[English]
Is it agreed by the senators to the suggestion made by Senator Nolin, or would you rather make your comments?
Senator Nolin: We will all make our comments and the chair and deputy chair will look at word by word and they will accept it.
Senator Milne: Scanning through this, I see that the three issues that I was particularly concerned about are basically covered in here, so I am happy to —
The Chairman: If I could mention one thing about the artists and writers, in the last line of the second paragraph on the page 2 it says, ``Thus there would be no abuse.'' It should say ``Thus there would be no actual abuse.'' That could be added.
[Translation]
In French, we could say: ``so no real person came to any harm.''
[English]
Senator Milne: Obviously, you could say real person; there could be no real abuse.
The Chairman: I thought I would delete, regarding the last paragraph on the same page, where it says, ``Your committee agrees with them,'' perhaps we should say ``both these objectives'' — because they were objectives — instead of ``with them.''
Senator Pearson: I remember that point; however, the point is from what we understand about the impact of child pornography, if it is being used for the sexual purposes, the cognitive and stuff, it does not matter. The abuse is not in the material; the abuse is of the real children who are affected.
The Chairman: The paragraph says, ``Your committee is sensitive to these concerns. Artistic works and free expression....''
Senator Pearson: It is up above, I guess, where you were talking about —
The Chairman: You are discussing the first paragraph; I was discussing the last paragraph.
Senator Pearson: The fourth paragraph.
Senator Milne: The second one on the second page.
Senator Pearson: The point they made was they would not have any problem when it is a real child being depicted or whatever. My point is that the harm to children is not whether or not it is a real or virtual child being used in the pornography; that makes no difference to the way in which it is being used. We are talking just about what they said, so I will agree. I wanted to make it clear that real children are harmed by virtual images.
Senator Andreychuk: Obviously, I have only had moments to read it. It reads to me too much of a defence to the passing of the act. We have just passed the bill and now we are saying but, but, but.
The Chairman: It reflects how people felt.
Senator Andreychuk: Rather than explain what the bill is, because observations were not used in the Senate and then we slowly started bringing them in to signal — not to review the act or to be the report about the bill — it is our observations. We have passed the act and then we should signal that we have some concerns about artistic merit. I do not think we should detail and defend what is in the act; we should just signal the dilemmas in the act so that the department and minister and everyone know that those are causes of concern. We do not need to justify ourselves through it. It bothers me when we say, ``Thus there would be no abuse.'' We do not know.
The Chairman: That is why I was adding ``actual abuse.''
Senator Andreychuk: We should signal the areas of concern; we recommend that the five years is too long. I would condense it and not editorialize on the witnesses as opposed to simply signalling the areas of concern we have — in a broad way, because I think we have expressed a lot of concerns. I have not been very vocal because I believe there is a public will out there to have this bill, and I think the minister is the man who is responsible for ensuring that it is constitutionally sound to resist that political will. He comes and says it is passable. We raise concerns so that he is alerted and he follows those; and we want a shorter time frame for review to assess it. I think it is an editorial chopping that needs to be done.
The Chairman: It is part of a long list of circumstances that we wanted to express, and it was our own feelings. I felt that all of us wanted to do something about the situation and correct the situation in Bill C-2. We were not totally happy with everything that is in Bill C-2, if I can express myself like that as a chair. I am trying not to express your feelings but maybe they were mine. However, that is why the observations usually are much shorter than these ones are — we wanted to express our views on the whole process.
Senator Andreychuk: It can stay that way. Perhaps what we have to do is feed back our changes to you. I thought we would signal them, because we go on to say that we believe that these mandatory minimums comport with the jurisprudence in this area. I am not so sure. I think we accepted it did and time will tell. That is why I say the tone seems to defend and, by doing that, one reading this would say so you had a concern but now you have told us why it is not a concern. I would want us to stop at raising the concern and just leave it as a concern.
The Chairman: Can I have some other expression of feelings about that?
Senator Milne: It is fair if we cut it down to a certain extent rather than reflecting quite so much of what we have heard. My concerns were the three — the mandatory sentences, the extra layer onto artistic merit, value or whatever the term now is, and the review. Those were the three that I think most of us voiced.
The Chairman: Do you feel the need to revisit the observations or leave it to the steering committee?
Senator Milne: You have covered my three; I just wish you would pare them down.
Senator Banks: Do courts ever refer to observations when they are looking at what was intended?
The Chairman: I think it is for the minister.
Senator Andreychuk: They can look at many things but —
The Chairman: It is attached to our report.
Senator Andreychuk: Usually, they look at the minutes of our meetings.
Senator Banks: I know they do that; my question was do they include observations in the things at which they look?
Senator Andreychuk: It has probably been done.
Senator Ringuette: I think that we all agree on the two concerns and one recommendation, meaning we agree with the —
The Chairman: Artistic expression.
Senator Ringuette: Yes, we have some concerns, and with the mandatory sentencing — some of us for different reasons.
Senator Pearson: We agree there is a concern.
Senator Ringuette: Because of this concern, we recommend that a review be done before five years. I do not think we need more explanation. We then start into a litany that, for example, some witnesses told us this and other witnesses told us that. Where do we draw the line? We have two concerns and one recommendation. If we can put that in a succinct way, the bottom line is the recommendation that the review period be shorter than five years.
Senator Banks: I did not see that it recommends that the review be shorter than five years.
The Chairman: Yes, it does; the last paragraph.
Senator Banks: What it says is that this committee will review it before five years.
The Chairman: Yes, it will be our responsibility to do that.
Senator Banks: It does not recommend that the House of Commons or anyone else does it.
The Chairman: We would do it; the Senate would do it. That is what it says.
Senator Banks: There is a difference between recommending that the review period be shortened from five years, on the one hand — which this observation does not do — and saying that this committee will undertake a review before then.
The Chairman: We can do that as a committee.
Senator Banks: Yes, but I am pointing out that we do not recommend that it be shorter.
The Chairman: We wish to go on record as committing ourselves to reviewing the bill before the five years has elapsed; that is what we said.
Senator Banks: The bill that we just passed contains a statutory provision that it will be reviewed in five years; we are not recommending in these observations that that be changed.
The Chairman: No, because we would amend the bill if we did that.
Senator Banks: Right, exactly.
The Chairman: We are not amending the bill, from what you just decided and I carried.
Senator Andreychuk: We are doing two things. We will study, but we are also saying to the government to beware, and also research projects well in advance of that.
Senator Nolin: The next time you come here you will be faced with minimum mandatory sentences; you will have that research at your disposal.
Senator Milne: I am content that the steering committee handles this.
Senator Joyal: I agree completely. There is nothing in it with which I disagree. It reflects generally what I wanted to say.
The Chairman: Unless you disagree totally with some of the paragraphs, it is up to us.
Senator Andreychuk: May I suggest that it be left to the steering committee members? Apparently the Standing Senate Committee on Legal and Constitutional Affairs meets next week, so we will be here. We will have every opportunity to meet.
Senator Joyal: You have information that I do not have.
The Chairman: You are reading my mind. We can come back Monday night and review the observations that we will work on during the week.
Senator Andreychuk: Tuesday or Wednesday.
The Chairman: At some pint in the week.
Senator Andreychuk: Yes.
Senator Joyal: I do not want to question your suggestion, Madam Chair, but the House has adjourned, theoretically, until July 18. Do we want to ensure that we are in a position to report that day?
The Chairman: Yes, we must report on July 18.
Senator Andreychuk: There is no reason to hold it up. On the other hand, we are not squeezing our staff to work over the weekend to change it.
The Chairman: While we are sitting next week, we will try to find time to discuss this. We will then have your comments on the observations.
Is it agreed that I report this bill to the Senate with observations?
Hon. Senators: Agreed.
The committee adjourned.