Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18 - Eleventh Report of the Committee
Monday, July 18, 2005
The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its
ELEVENTH REPORT
Your Committee, to which was referred Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, has, in obedience to the Order of Reference of Monday, June 20, 2005, examined the said Bill and now reports the same without amendment but with observations, which are appended to this report.
Respectfully submitted,
LISE BACON
Chair
OBSERVATIONS
to the Eleventh Report of the
Standing Senate Committee on
Legal and Constitutional Affairs
Protecting children from sexual abuse and exploitation has been a deep and abiding interest of your Committee. We therefore support the overall goals and methods of the Bill. We do, however, have some concerns with several of its details.
We have serious reservations about the broadened definition of child pornography and the reformulated defence. The new definition could lead to a conviction for a child pornography offence without there being any abuse of an actual person.
We are also concerned about the revised defence, which will permit art that has a ``legitimate purpose,'' and ``does not pose an undue risk of harm'' to minors. This new defence is vague and subjective; leading to uncertainty for artists and writers and a possible restraint on their creativity.
Your Committee is also concerned by the imposition of mandatory minimum punishments that apply to some of the offences against children. Such punishments infringe upon the full application of the principles of sentencing which have been stipulated by Parliament.
We also wish to point out that an important sentencing tool is lost when a minimum sentence is mandatory, particularly in cases when a conditional sentence might otherwise be considered. When a conditional sentence order is prescribed, section 742.3 of the Criminal Code permits a court to impose as a condition that an offender attends a treatment program. When a conditional sentence is not available (as when a minimum term of imprisonment must be imposed), an offender may accept, or may refuse to attend a treatment program under a probation order (section 732.1). Treatment programs seem particularly appropriate in connection with sex offences. Without them, an offender may leave prison unchanged such that the cycle of abuse may continue.
There is a need for more research in the area of child sexual abuse and exploitation. It is clear there is a need to know more about the risk factors for deviant behaviour so that we may intervene to prevent future harm. Specific mention was made about the lack of programs for men at risk of abusing children. We also need to know more about how to predict recidivism. In addition, we believe there is insufficient data available about the effectiveness of monitoring the behaviour of those under long-term supervision orders.
Assessing the effect of the mandatory minimum punishments in the Bill is also in order. We recommend that research in all of the foregoing areas be undertaken, so that it may be available for the five-year parliamentary review called for in the Bill.
Finally, in view of the importance of Bill C-2, and the fact that it contains a number of controversial provisions, we wish to review the Bill before five years have elapsed. Such a study will serve as an early warning system should we discover difficulties with the Bill. It will also allow us to assess whether the research projects we have recommended are sufficiently advanced so that the prescribed parliamentary review can be undertaken with the best possible evidence.