THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, September 18, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:16 p.m. [ET] to study Bill C-291, An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material).
Senator Denise Batters (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good afternoon, senators.
My name is Denise Batters. I’m a senator from Saskatchewan. I’m normally deputy chair of this committee, and today I have the pleasure of chairing this committee because Senator Cotter, the regular chair, is away. I’m happy to be in this position, especially for this bill.
I invite my colleagues to introduce themselves.
[Translation]
Senator Carignan: Claude Carignan from Quebec.
Senator Galvez: Rosa Galvez from Quebec.
Senator Oudar: Manuelle Oudar from Quebec.
[English]
Senator Busson: Senator Bev Busson from British Columbia.
Senator Patterson: Rebecca Patterson, Ontario.
[Translation]
Senator Audette: Michèle Audette from Quebec.
[English]
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
Senator Dalphond: Pierre Dalphond from Quebec.
[English]
Senator Tannas: Scott Tannas from Alberta.
The Deputy Chair: Before we begin, I ask all senators and everyone else here in person today to consult the cards on the table for guidelines to prevent audio feedback incidents. Please make sure to have your earpieces away from all microphones at all times. When not using your earpieces, please place them face down on the stickers placed on the table for this purpose. Thank you all for your participation with that.
Honourable senators, we’re meeting today to begin our study of Bill C-291, An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material). To study this private member’s bill, we are pleased to welcome two members from the House of Commons here today: Mel Arnold, MP for North Okanagan—Shuswap, sponsor of the bill; and Frank Caputo, MP for Kamloops—Thompson—Cariboo.
Welcome to you both, my colleagues, and thank you for joining us. We will begin with your opening remarks before we move to questions from senators.
We’ll start with Mr. Mel Arnold, and then we’ll follow with Mr. Caputo. The floor is yours for five minutes each when you are ready to begin.
Mel Arnold, Member of Parliament, North Okanagan—Shuswap, British Columbia, sponsor of the bill: Thank you, Madam Chair and senators, for having us here today. It’s an honour to be here in your presence to speak to my private member’s bill, Bill C-291, An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material).
At the outset, I would like to express my thanks to the honourable member for Kamloops—Thompson—Cariboo, Mr. Caputo, who was central to the conception and drafting of this bill. The honourable member’s experience as a Crown prosecutor has afforded him insight into how we as parliamentarians can strengthen our federal statutes to enhance protection of Canadians, especially children, and I thank him for his work on this bill.
As I stated in previous debates of this bill, I believe it is essential that the Criminal Code of Canada contains terms that accurately describe prohibited activities. I also believe that the code’s use of the term “child pornography” is a misnomer that fails to accurately describe the gravity and reality of such material.
What the Criminal Code currently calls “child pornography” is more severe than mere pornography because it involves children, cannot be consensual and is exploitative and abusive, and the Criminal Code should clearly reflect these realities.
Madam Chair, the Criminal Code of Canada contains many elements, including essential elements meant to define, prohibit, deter and penalize criminal activities. Bill C-291 does not propose amendments to definitions, prohibitions or penalties; it clearly and succinctly proposes to change the term “child pornography” to “child sexual abuse and exploitation material.”
Thus far, this bill’s progression through the legislative process has benefited from broad all-party support. During the study of this bill at the House Standing Committee on Justice and Human Rights, there was unanimous support for an amendment that expanded the proposed new term with the addition of the words “and exploitation.”
I hope that this bill and the improvements that it proposes may continue to progress through productive and efficient examination today and in the Senate in coming weeks.
Child sexual abuse material is a growing problem in Canada, and Canadians look to Parliament to take the steps, big and small, required to deal with problems like sexual abuse and exploitation of children.
Amongst those who look to Parliament for such actions are organizations on the front lines of fighting child sexual abuse and exploitation in Canada, whom I must thank for their work and support of this bill. I sincerely thank the Canadian Centre for Child Protection, Ratanak International and First Call Child and Youth Advocacy Society for their support of this bill and the work they do every day to counter sexual abuse and exploitation of children.
I thank the committee for making time in your busy schedule to examine this bill and look forward to taking your questions. Thank you.
The Deputy Chair: Thank you very much.
Frank Caputo, Member of Parliament, Kamloops—Thompson—Cariboo, British Columbia: Thank you, Madam Chair, and thank you very much, honourable senators. It’s a true honour to be here. I never thought that a kid from North Kamloops would be here giving evidence before the Senate. Some might say that they’d have carefully prepared remarks. I want to speak to you largely from the heart today because this is something that is extremely close to mine.
My background is that I became a parole officer at 22 years old, and that was a bit of a tough gig. Well, not as tough as Senator Busson’s history. But I dealt with a number of sexual offenders through that. I hadn’t really given this type of offence a lot of thought then. It wasn’t until I became a prosecutor. I was called to the bar in 2008 after having Senator Cotter as my dean at the University of Saskatchewan; I think he is our chair, to also give him a shout-out. I became a Crown prosecutor in 2011 and prosecuted until my election in 2021.
It was around 2014 or 2015 that I began to prosecute almost exclusively in the area of internet offences against children and sexual offences against children, particularly production, distribution and possession of child sexual abuse and exploitation material and internet luring. That was largely my focus.
It was in my time there that I began to realize the misnomer of what we now in the code call “child pornography.” In fact, when I was before the court, I would frequently say:
This laptop contains material that meets the Criminal Code definition of child pornography or what is now more appropriately called child sexual abuse material.
That was my first recollection of the fact that the code calls it this and we had to make that out for law, but it really shouldn’t be the case.
I remember attending what was called a British Columbia Integrated Child Exploitation, or BC ICE, conference. It’s a unit. I’m sure it’s found across the country. You would get about 200 people in a room who were passionate about law enforcement and prosecution and sentencing around child sexual abuse and exploitation material.
These are the types of issues that we would raise when I taught, for instance, sentencing and advanced criminal law, at Thompson Rivers University, in sentencing in advanced criminal law.
I’m not sure if a lot of people realize this, but the proliferation of these types of offences, not just because more is happening but because we’re detecting it more; it’s probably about 10 to 15 times more than we were when I started my career, based on a law change in 2014. I won’t get into that too much.
Typically, we would read about it, but there are law enforcement officers — particularly in BC ICE, which is a very small unit of a handful of officers — who see these things day in and day out. I remember the trauma and feeling emotionally scarred by reading about it. We need to give a shout-out, in my view — and I want to today — to the law enforcement officers who go through these things every single day looking for new victims to try to rescue. I’m so grateful for their work.
To this day, I remember the times when child sexual abuse and exploitation material was inadvertently disclosed — it wasn’t supposed to come to us as Crown. Those images, you don’t unsee them. That’s just for somebody who is seeing them, not the person who is experiencing hands-on victimization. That is not pornography, which is consenting adults doing and depicting something for others. We have to call it what it is: sexual abuse.
I spoke with a stakeholder in Germany about this a year or two ago, and they thought it was amazing that we would be the leaders. As far as I know, Canada would be a leader. And with that, my exhortation to you as senators — I know you’re separated from the House of Commons, but we all know the precarious situation that we have with minority governments. I am pleading with you to please prioritize the passing of this bill in the most non-partisan manner.
I said to people when I was on their doorsteps and knocking on doors — I was never elected for anything before I was elected as the member for Kamloops—Thompson—Cariboo — that I would make this change. I couldn’t have done it without the support and leadership of MP Arnold here.
I’m begging you: Let’s please perfect that desire and be at the forefront of change in Canada and of calling it what it is so that this both pernicious and insidious crime is accurately reflected, because if we don’t, then who will? Please pass this as soon as possible. Thank you.
The Deputy Chair: Thank you very much. I really appreciate both of you being here today. Thank you for your remarks, heartfelt as they are.
We will now proceed to questions from members. I am actually the Senate sponsor of this bill, and we have with us Senator Patterson, who is the critic of this bill. Senator Patterson, would you like to lead off the questioning, or would you like to go a little later?
Senator Patterson: I might be missing some of the documents, Madam Chair. I do apologize for that.
The Deputy Chair: No problem. Would you like to be a little further down the list?
Senator Patterson: If I could, please. I do have some observations. I just want to make sure I get the right context. Thank you.
The Deputy Chair: All right. No problem. I sort of put you on the spot there. We will have Senator Dalphond, then.
Senator Dalphond: I thank you for being with us today. We are mindful of the time that might be left of this Parliament. That’s why I supported the idea we speed up the study of this bill.
My questions will be coming from my background. I was not a Crown prosecutor, as you know, Mr. Caputo. I want to make sure that in the record, my question is to address one of my concerns for greater certainty.
Am I correct in understanding that this bill is not intended to change in any way the body of jurisprudence case law that has developed around the interpretation of the provisions that will be affected by this new label and replacing “child pornography” with this new terminology? Can you confirm that your intent is not to change the body of the law or to send a message to judges to increase the sanctions?
Mr. Caputo: That’s a difficult question because we don’t know how the judiciary will react to what Parliament does.
What I can say is this: Section 163(1) currently contains a definition of what is called “child pornography.” That definition will stay identical. What will change is the name and nothing else. Currently, there is a 10-year maximum for possession, I believe; that stays the same. That reflects Parliament’s intention of the seriousness. I believe that maximum should be raised, but that’s not here before us today. I believe that the maximum sentence for production is either 10 or 14 years; again, that’s not changed.
I will not say that we shouldn’t be revisiting the seriousness of this offence. In my view, we should. Victims are often subject to a psychological life sentence, but this bill itself only changes that one discrete line in section 163(1) that addresses what we call this. Will judges say Parliament chose to reflect exactly what is occurring and, therefore, things will change? I can’t say that, but I want to give you a fulsome answer.
Senator Dalphond: So you wish to change the label but not the content of the provision.
Mr. Caputo: This bill changes the label only.
Senator Dalphond: We heard from Senator Gold in his remarks about that bill in the chamber that many provinces and territories are using the same expression, so a change in the Criminal Code might create some problems. Do you have anything to say about that?
Mr. Arnold: Yes. This came up previously when the bill was studied at the House of Commons Justice Committee. We had assurance from the minister at that time. I don’t have the exact quote, but the government committed to working closely with the provinces to update their legislation. Obviously, provinces have responsibility for their own legislation, so we can’t force that. But if the provinces understand the reason for this bill and the need for the change, I would hope they would act expediently as well to update their legislation to truly reflect what child sexual abuse and exploitation material is.
Senator Dalphond: Could you please elaborate on the factors that guided you to choose that label more than any other label?
Mr. Caputo: I harken back to when we did this BC ICE training. I often did it, and a few prosecutors would go. I actually had the honour of attending the RCMP training program for the first time when it was reinstituted after COVID. This time, I went as a speaker rather than as a participant. We were actually using the term “child sexual abuse material.” In fact, somebody quipped — they made a bit of a joke — “We’ve been calling it CSAM for all these years. Now we’ll have to call it CSAEM.”
For the people who are impacted by this, this is viewed as an antiquated term. If it’s viewed as an antiquated term professionally — and it’s actually viewed as inappropriate logically for equating pornography with child abuse and sexual abuse — then frankly, this is long overdue. This is something we should have done years if not decades ago. The inspiration for me is just to get it right.
Senator Dalphond: Does it codify the practice?
Mr. Caputo: In my view, it does. It’s the practice of a very small number of people, but these are the people who live it. Their lives revolve around protecting children.
The Deputy Chair: Thank you very much. I wanted to ask you about something. When the Government of Canada brought forward Bill S-12, a bit of an omnibus bill which started in the Senate, it contained a coordinating amendment in which the government recognized the change of language from “child pornography” to the more appropriate “child sexual abuse and exploitation material.”
I think Senator Dalphond was quoting from some of Senator Gold’s remarks; that’s where that comes from.
In October, a year ago, I asked Senator Gold about that and got his confirmation that, yes, this would mean what the Government of Canada actually agrees with your private member’s bill. I thanked him at the time on behalf of the government for accepting that amendment in this bill.
Senator Gold indicated:
I believe it reflects the government’s agreement that the older way of describing this material was inappropriate, and that the definition advanced in the bill — which you sponsored here in the Senate — is a more appropriate and accurate way to describe this material. None of us wants to see it exist, but it does exist, and, therefore, it needs to be dealt with appropriately and under the Criminal Code.
That’s very good to know, given that the Government of Canada has also already included that very language in one of its own bills to emphasize the appropriateness of that.
On that, I’m just wondering what sort of reaction you have had. This is something I believe, and I spoke about it when I gave my lengthy second reading speech in the Senate, that this is not a consensual situation. I said:
If there is any part of the term “child pornography” that allows the perpetrators of these crimes to try to justify their actions, then we need to use a different term to describe this. There is zero room for ambiguity here.
Can you tell us about some of the international components? When I was looking at this, I noted that some international organizations use the more appropriate term “child sexual abuse and exploitation.” Could you speak a little bit about that?
Mr. Caputo: I’ll let MP Arnold speak on that.
Mr. Arnold: Thank you, Senator Batters, for that question. Yes, this bill will harmonize the terminology of Canadian statutes with that of many other nations with which we cooperate internationally to fight child sexual abuse and exploitation material.
In 2016, the Interagency Terminology and Semantics Project on sexual exploitation and sexual abuse of children released their Luxembourg Guidelines to harmonize and strengthen the advocacy work and intergovernmental and interagency cooperation. The Luxembourg Guidelines recommended replacing the term “child pornography” with the terms “child sexual abuse material” and “child exploitation material.” So this bill does fit the guidelines and terminology that many organizations are already working with and using. This is simply catching the Canadian statutes up with the current terminology being used.
The Deputy Chair: Thank you very much.
Mr. Caputo, you spoke about Senator Cotter having been your dean at the excellent University of Saskatchewan College of Law. That’s also my alma mater, so shout-out to U of S Law.
To let you know, Senator Cotter indicated that he was sorry he couldn’t be here today but definitely supports your amendment and what you’re trying to do here, and he’s very proud of his former student in that regard.
I have one other question. This bill amends a number of different places in addition to that one section of the Criminal Code. This bill also amends the terminology to ensure we are using the correct phrase in all of those different places in the Criminal Code and other acts which refer to that inappropriate terminology. That label will be changed to the more appropriate label in all of those other acts, correct?
Mr. Caputo: Yes, that’s my understanding. For instance, in the Sex Offender Information Registration Act, I imagine that it would be changed there and elsewhere throughout. The terms are used often. For instance, I’m thinking of the direct indictments provisions would likely list the different acts. That is just off the top of my head. My understanding is that “child sexual abuse and exploitation material” would simply replace “child pornography” where it is found throughout the Criminal Code and corresponding federal legislation.
The Deputy Chair: That is exactly right. So while your bill is not extremely long, but several pages long, all of those different things that it quotes are not changing anything else. It is simply changing the inappropriate phrase of “child pornography” to the phrase “child sexual abuse and exploitation material,” which should be the correct phrase. Right?
Mr. Caputo: Exactly.
The Deputy Chair: Okay. Thank you very much.
Senator Simons: The necessity for this bill was driven home to me when I googled Bill C-291. The stories that came up used the phrase “child porn.” I guess we should be blessed they didn’t say “kiddie porn,” which I have also seen used. It is really important not to “cute-ify” a crime against children.
I have a little concern about the phrase “exploitation materials.” Is that defined elsewhere in Canadian law? I’ll tell you why I ask.
I was a journalist for many years and covered courts and crime for a chunk of that time. One of the cases involved a high-profile Edmontonian who was convicted of possession of child pornography, as it was known then. One of the things that led to his conviction was that he had a collection of pictures of naked children that had come from naturist sites. The pictures were not sexual or sexualized. The children were not being exploited when the pictures were taken. The exploitation arguably happened after the fact. And I’m worried if there are any concerns that people who might have been convicted under the old term might be able to say it is not exploitation material. I’m wondering if that has a technical definition in Canadian law or if you need to define it in some way.
Mr. Caputo: I would argue no. As somebody who dealt with these things on the ground, my argument would be — I’m thinking back to the common law. Forgive me, it is three or four years since I argued my last case.
I’m looking at the definition in 163(1). We’re looking at materials here that advocate for the sexual abuse of children or in furtherance of sexual abuse of children. The common law definition as it has evolved for many years — the Supreme Court of Canada considered this issue in a case called Sharpe in 1997, if memory serves — none of that changes. What we’re doing is accurately reflecting what has occurred. So “materials” is meant to be all-encompassing, because it could be data, writing — because people can write in such a way that it is advocating for the sexual abuse of children. People can have recordings, any sort of media.
When I first drafted this, it was “abuse material.” The government asked that “and exploitation” be put in. I’m sure they had very good reason for that. Potentially abuse and exploitation, somebody could split hairs, I suppose, on that. I don’t think it would impact that one bit because the common law remains the exact same, in my view, and Parliament’s intent here is to accurately reflect it.
I don’t know how the common law grows from that, but I don’t believe that the concern you are addressing will manifest itself.
Senator Simons: Is the phrase “exploitation materials” to your knowledge used in any other sort of — I dislike calling it “revenge porn” for the same reason I dislike calling it “child porn.” But are there other places you might know of in the Criminal Code where we use the term “exploitation material” to capture a parallel kind of offence?
Mr. Caputo: Not to my knowledge. Section 150 is where offences against children start. I’m just going through my head. I don’t have the Criminal Code in front of me, but I am thinking about it and there is nothing that is ringing bells. I’m sure somebody on the internet will probably tell me I’m wrong.
Senator Simons: I wondered if this was a novel description.
Mr. Caputo: Then-Attorney General and Minister of Justice Lametti came to me with the “and exploitation material” part, and then it was Minister Gary Anandasangaree who asked that that be put in. My recollection is that it was not based on a different section of code. That’s the best answer I can give.
Senator Simons: Thank you very much. I really appreciate that.
The Deputy Chair: Right, because on that, “and exploitation” was added in at a House of Commons committee. That was an amendment, because initially your bill had the phrase “child sexual abuse material.” Then “and exploitation” was something added. Do you recall who made that amendment?
Mr. Arnold: I believe it came from the Liberal members on the committee there.
The Deputy Chair: And then it was passed with that. Yes. Thank you.
Senator Patterson: I don’t have a legal background, but I have a background to know well enough that words are everything, and this bill is about changing words. We know that as law evolves, we try to change our wording on the legal front to look at the impact on the victim as opposed to the product itself. This is a two-parter, I promise.
For the first question, when we talk about sexual abuse, it is the act, and exploitation is taking the product and moving forward through different means. From what I understand, in terms of the actual definition, the legal definition of “exploitation” takes it to the next level. It may not be the actual act of taking however you produce that, which is used in the act of abusing the child in doing it, but then you take that act further and it goes in perpetuity and is used to make money and exploit and victimize. I just used the definition.
Have I heard that correctly? Is that what we’re trying to achieve, to ensure that we can have the full impact for children who are abused this way with this definition change? That’s part one. It was a bit convoluted, but I’m not a lawyer.
Mr. Caputo: That’s okay. The world has enough lawyers.
Mr. Arnold: I’m not a lawyer either, and I want to thank Mr. Caputo for being here with his experience and knowledge.
“Abuse and exploitation” is very fitting for this because the exploitation continues every time an image or drawing is reshown, re-looked at or shared; that exploitation continues on and on. It is not just the initial act of making the image or material. It is the actual exploitation that goes on and on that we’re looking to address with this change in terminology in order to protect our children in Canada. Frank, do you want to add something more?
Mr. Caputo: Sure. This goes back to what Senator Simons was asking, when you were saying this was something nagging. I just looked up the code. I certainly don’t have it memorized, but I thought there might be something.
Section 153 is the offence of sexual exploitation, and that refers to when somebody “ . . . is in a position of trust or authority.” It is actually the same when you consider laws of consent, age of consent, as I recall. I will just read section 153(1) into the record:
Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who . . .
Then it goes through the actus reus of the offences and the physical elements of the offence, touching or invitation, counselling. So that is obviously part of our criminal law. I think that’s the only section that uses that.
Perhaps that is the fulsomeness of it. When you exploit somebody, you are arguably abusing them. When you abuse them, you are obviously exploiting them. And MP Arnold is quite correct about the repetition. That is something that I had no comprehension of before I started the work — none.
Let’s not kid ourselves here. When a child is abused and that depicts something that is in the most vile, sick kind of way of interest to people, and people rewatch it, you may have images, media — let’s call it “materials” — that are viewed literally millions of times. That child is revictimized every single time. That’s abuse. When I look at it that way, “exploitation and abuse” is very fitting.
Senator Patterson: Do I have time for a follow-up question? Okay. And it is quite important too. When I look at 163(1) — because we have got some other documentation here — I just need to reiterate as a critic that the focus is on the definition. Because I see minimum sentencing, minimum punishment, et cetera. There is no intent. They have been struck, yes?
Mr. Caputo: They have been struck. The one-year and six-month minimums have both been struck. Yes, this basically only relates to striking out two words and introducing five words.
Senator Patterson: Thank you.
Mr. Arnold: It changes the term, not the definition. The definition is elsewhere. It just changes the term in that section and other acts as needed.
Senator Patterson: Thank you.
[Translation]
Senator Carignan: I would like to know whether you have consulted law enforcement agencies or victim assistance organizations. Could you give us a brief summary of their comments on your bill?
[English]
Mr. Arnold: I’ll start off and then pass it on to Mr. Caputo. I mentioned in my opening that we had endorsement from the Canadian Centre for Child Protection, Ratanak International and First Call Child and Youth Advocacy Society. When we were in the process of this bill going through the House of Commons, I believe it was Senator Batters who organized a trip out to the RCMP Special Investigations Unit here in Ottawa. That was an eye-opener for many of us, so I thank you for organizing that. That is where we heard about the investigators, the police and the traumatization that they undergo in investigating situations like this. Some of them end up with a form of PTSD from images they have seen.
So I want to take a second to thank every individual investigator, police officer and enforcement officer who has ever had to endure a case or an investigation with this type of material. I can’t imagine it. Excuse me. I’m a proud grandfather of a 3-year-old. I can’t imagine anybody getting away with anything like that because of a term in a bill that we can correct. Thank you.
Mr. Caputo: I thank MP Arnold for his input and very candid response.
Senator, thank you for the question. This is my first time in Parliament — the Forty-fourth Parliament. I can tell you I have probably discussed this no less than 50 times. I have talked about it with defence lawyers. I have talked about it with prosecutors. I have met with so many non-profits. I don’t have a Rolodex of them. I wish I had kept that, thinking back on it now. What I can say is this: I have never once had pushback on this. I have had people of all political stripes say, “I fully endorse this. I may not agree with you. I may not agree with your party. But I fully endorse this.” That might be groups like sexual assault centres, places that specialize in these things, and I visited a fair number of them. There has been 100% support for this. I don’t have a Rolodex, as I said, but I give you my word that this is something that has been well received by those people who deal with this kind of material or this kind of work.
The Deputy Chair: Thank you very much. Actually, Mr. Arnold, that wasn’t me who organized that very important trip. I believe it was actually Senator Busson. Am I right?
Senator Busson: I think we both had something to do with it.
The Deputy Chair: Anyway, it was very worthwhile. Thank you for that.
[Translation]
Senator Audette: Thank you from the bottom of my heart for defending vulnerable people and thank you for your humility; we need it. My colleague on the other side of the room, whom I like very much, said something I wanted to say myself. Thank you, Senator Carignan, for asking who was involved and consulted.
I just completed a process where we spent 33 months hearing from women and men who were children at the time of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Word choice is important; there are no politics or political parties. As you said at the beginning of your moving message, this bill must not be politicized. I’m telling you right away that, when we talk about exploitation and abuse, word choice is important, since the old terminology — which is still being used — was very mild. I will support the bill.
Here is my question. I’m not an expert and I haven’t experienced what you’ve experienced. Have any groups of women who were victims, who were children and became adults, been able to share with you the feeling that they are indeed comfortable with these changes, even if this doesn’t go far enough? The bills are making small strides.
We know we’re talking about material; however, there is sexual exploitation of our young children that isn’t necessarily filmed, but it does exist. Is that separate or included? I’d like to end with a big thank you, as it’s often women who take on these issues and here we have two men; thank you for that.
[English]
Mr. Caputo: Thank you very much. I have met so many brave young women — and it is disproportionately young women who are impacted. There are also a number of young men who are. Some people want nothing to do with the system. Some people actually don’t even know they have been abused until well later in life.
I can recall stories. I don’t want to breach anybody’s privacy, but I know of instances where people realized this in their thirties. There was that trauma that was under the surface, which relates to the seriousness of this. I have certainly dealt with a number of people — if I understand, senator, your question was, “Have you dealt with people who have experienced this?” Yes, 100%.
The second part of your question was, “Does this impact the actual abuse?” The abuse itself is generally reflected in section 151 of the Criminal Code, which is sexual interference, or section 271 of the Criminal Code, which is sexual assault. You also have internet luring, which I think is section 172(1), or invitation for a sexual offence. Those are inchoate offences. They are just an invitation or an attempt to do it. So what we would call the offending behaviour itself is well codified. This is the production of the material that happens at the time of the abuse, if that makes sense.
I’m really glad you brought this up, and I’m sorry for my long-winded answer. One of my struggles in dealing with victims is that they are often, I say, imprisoned. They are serving a psychological life sentence. I used to teach a sentencing class, and we would talk about proportionality of sentencing. When we reflect the seriousness of this offence in the words, that is incredibly important, because when you meet somebody who is victimized — and you will meet them in their forties, fifties, sixties or even a few months after — the impact doesn’t leave. That is the importance of this bill, in my view. Thank you.
Senator Audette: Thank you very much.
The Deputy Chair: Thank you very much.
Mr. Arnold: I think it was slightly after the passing of the bill in the House of Commons that I met with representatives of a child advocacy centre in Vernon, the Oak Centre. They are part of the Archway Society for Domestic Peace. There were about six different representatives there, from counsellors to an Indigenous representative to a representative from the RCMP. Almost all of that centre’s work is dealing with youth or children who have suffered some form of abuse. Not all of it is sexual, but some of it is. When I explained the bill to them, they wished for speedy passage of the bill. Every organization there that day said that, and that has been widespread everywhere. Thank you.
[Translation]
Senator Galvez: Thank you very much, gentlemen, for being here to try to resolve this important issue.
[English]
I’m not a lawyer. I don’t normally sit on this committee. I’m replacing my colleague Senator Pate, but the subject touches me deeply.
When my son was in primary school, one day we learned that, at the end of the school day, someone picked up a little boy from the exit. I live in a very nice neighbourhood. Never in my life could I have believed it, but for a few hours, we didn’t know what had happened and where the little boy was. It was horrible, as was the idea that it could have been our son. This is unacceptable. This is very important.
We see the statistics. In preparing for this, I read the statistics. They are increasing exponentially. Things are moving faster than the legislation.
Why are two MPs trying to change that? Why isn’t the judicial system working at speed? I’m sorry, but I want to understand the root of the problem because otherwise we will have to make changes little by little, every time somebody realizes something again. What can we suggest to the government?
Mr. Arnold: I’ll start. I want to thank Mr. Caputo for recognizing, during his work as a Crown prosecutor, just how serious the issue is. We quite often don’t think about how a word can change an interpretation.
I was recently made aware of another case. I won’t speak about it here, but it gave me reason to look at the Criminal Code, and I can see how a simple one-word change in the code would have prevented another individual from potentially being free to reoffend. It wasn’t until I read about the case and then researched the code myself to see how it affected one individual. I won’t say more here because I’m going to pursue it further, but I could see where a simple one-word change in the code could change things.
As legislators, that’s our responsibility: to listen to our constituents, the people and the courts and identify where we can improve laws so that law enforcement and the judiciary system can do better jobs in their roles.
Mr. Caputo: Thank you, Senator Galvez. I appreciate that. Change is so slow in this area. If memory serves, the Supreme Court decision in Ewanchuk was the first case to say, “It’s not ‘no means no’; it’s only ‘yes means yes.’” Historically, it was “stop at no” rather than “start at yes.”
Just for anyone who is watching, that’s the law. You have to get a yes; you don’t wait for a no.
I could go on for hours about this. I will highlight a few simple things. I said this in my initial speech in the House of Commons, along with talking about this very issue.
I have a private member’s bill that talks about the difference between sexual assault and robbery. For those around the table who aren’t lawyers — a lot of people don’t know what robbery is — robbery is essentially theft and violence. If I take MP Arnold’s phone, that’s theft. If I push him and take his phone, that’s robbery. Theft plus violence is robbery. The maximum sentence for robbery is life imprisonment.
The old adage is that a person’s home is his or her castle. The maximum sentence for breaking into a person’s home is life imprisonment.
Does anybody around the table know the maximum sentence for sexual assault? It’s 10 years. The maximum sentence for sexual interference is 14 years. For sexual assault of a child under 16, it’s 14 years. We actually treat the taking of property more seriously than we treat the taking of someone’s sexual dignity and inviolability and right to consent. That is absolutely disgusting.
Do you want to know where to start? Start addressing that antiquated mentality that goes through every single bill.
I prosecuted a case where somebody was abused. She was Indigenous and 12 years old. She was abused by her step‑grandfather repeatedly and of the worst order. Her mother was murdered when she was 18 months old. I argued for a very stiff sentence in that case. I said, “You know what? This is essentially incest.”
“Well, no, Mr. Caputo, this isn’t a blood relationship.”
“Give me a break.” That is what I was thinking. I’m not criticizing that judge because the judge enforced the law. We expect people to enforce the law, but why aren’t we changing it?
I just had a discussion with someone about adoptive relationships. It is time to get with the times and recognize the pernicious nature of sexual offences. We are so slow. I’m not trying to be partisan here, but if you look at where mandatory minimums were passed, particularly under the Harper government, they were regarding drugs — not sex crimes — and guns. The government has addressed guns and has addressed drugs. No one has said a word about sex crimes — not one word.
In legislation, as far as I know, not one thing has been said about sex crimes. We have been happy to repeal minimums on guns and drugs. Not one word has been said about sex crimes. Why is that?
I apologize for getting passionate about this because politically no one wants to address it. Well, Senator Galvez, I’m addressing it here. That is the elephant in the room.
I know you’re cutting me off, chair. I’m sorry. I apologize.
Senator Galvez: I’m happy I asked that question.
Senator Busson: I have a question. I spoke in favour of this bill in the Senate; I think it was in April when we discussed it. I was lucky enough to be with you both when we attended RCMP headquarters and talked to the investigators about the work they are doing. It was pointed out at that time that part of their work is to investigate perpetrators, but sometimes these things are happening in real time. There is, in essence, a possibility for real-time rescue of these children.
Could either of you comment on our focus here today? You might ask, “What’s in a name? Why is it so important to actually focus on the wording?” Because it’s only wording, only definitions, and we sometimes get tied up with semantics. Can you comment on why it’s so important that the word “pornography” be taken out?
We’ve danced around it, but this is the essence of why this bill is so important. I’m not trying to be judgmental. Pornography is legal with consenting adults, as you said, Mr. Caputo. It creates a bit of an image of salaciousness and evokes different things. I’m saying too much. Could you please comment on this?
Mr. Arnold: Thank you for your years of service with the RCMP. Congratulations on the recent anniversary of your Troop 17, I believe it is called. I won’t say how many years it was —
Senator Busson: Twenty-five?
Mr. Arnold: — but it was fantastic. Senator, thank you for choosing Salmon Arm as your first posting as an RCMP officer.
Senator Busson: I live there now, so that says it all.
Mr. Arnold: It must have been okay because that’s where you’ve retired. Thank you for your years of service and thank you for the question.
Words are so important. That’s why we are moving this bill through. Pornography, as you stated, typically depicts consenting adults. Children cannot legally consent to sexuality. That’s why it is truly sexual abuse and exploitative material.
I don’t know if Mr. Caputo can elaborate, but that’s what it comes down to. The words in the code and in our legislation should properly depict what it is they’re talking about. I don’t believe there’s anything that is truly child pornography. I believe it is all child sexual abuse and exploitation material.
Mr. Caputo: I will intervene briefly. I got very passionate, I realize, at the end of that last answer, but if I can, I will summarize it as this, Senator Busson: We’ve got work to do, and that work is not going to happen overnight. This is one small step on a long journey, and part of that journey is recognizing just how serious sexual offences are.
Also, we must fundamentally reorganize as a society and as a justice system how we think about sexual offences. Part of that is to say that this isn’t consensual. Children can’t consent, as MP Arnold said — full stop.
I view this as one small step in a long journey. When we are looking at reorienting how we look at sexual offences, that is important. Thank you.
The Deputy Chair: I appreciate that. Senator Busson, I note when you were talking about when you gave that speech, you referred to it having been in April. It was actually April 2023. I was looking at when my speech was, and it was March 30, 2023.
Senator Busson: Thank you.
The Deputy Chair: No problem. Now we will end our first round with Senator Clement, and we’ll have time for a very brief second round.
Senator Clement: I want to thank you both for being here. Thank you also, MP Caputo, for your career and the work you’ve done. Thank you, MP Arnold, for supporting and championing this piece of legislation.
Thank you also for being passionate and emotional in public. I think that’s a very good thing. There’s nothing wrong with that when we’re operating in and occupying a public place. It’s okay to show those things, so I appreciate it.
My question follows up on the exchange that MP Arnold had with Senator Audette. We were talking about language, word changes and legislative changes, and that’s one thing, but what we really want to get at is influencing the public and what happens out in the community. How do you see these word changes influencing public awareness, making sure that we’re getting ahead and preventing, and having kids and having families aware? How is this language change going to do that? How do you see that happening?
Mr. Arnold: As we’ve said, pornography is something different in many people’s minds, and possibly most people’s minds, in that it is something created through consent. Changing this term to “child sexual abuse and exploitation material” would hopefully be a small part in changing the belief that this should somehow be acceptable. It should not.
Some people may think pornography is acceptable. Just putting the word “child” in front of it doesn’t change that perception of child pornography in many people’s minds. When you change it to “child sexual abuse and exploitation material,” I hope everyone in society will look at that term and see very clearly what it is.
Mr. Caputo: I’ll give you two anecdotes. This is something where we talk about how words matter. Let’s not forget about the victims too.
I had somebody who saw my initial speech, and again, out of privacy, I won’t give many details, but they said they felt so validated. Somebody who has been through this and was a victim can say, “What I went through wasn’t pornography. It was abuse, so call it that.”
Another person who was talking to me randomly one day — again, I won’t give too many details — said, “Tell me about your work.” So I started talking about it, and I’ll never forget this: This person just grabbed me and hugged me while I was essentially mid-sentence.
It is for those people that we undertake this work, to reflect that what these two people I was talking to went through wasn’t pornography. Let’s call it what it is. Again, this is a very small change. I’m mindful this is step 1 of potentially 100, but we have to start somewhere, and for me, this is where I chose to start, with MP Arnold’s excellent and exemplary leadership in stewarding and marshalling this bill — all the way to third reading, hopefully.
Senator Clement: Thank you.
The Deputy Chair: Thank you very much. How I phrased it when I spoke at second reading, again, on March 30, 2023, was:
Bill C-291 is a fundamental step in addressing the grim reality of child sexual exploitation in this country. To tackle this problem, we need to call it what it is: child sexual abuse and exploitation. This stomach-churning material is not consensual. It is not entertainment. It is not art. This is the abuse of vulnerable children, robbing them of their innocence, their childhoods, the very core of their identities over and over and over again.
And then I asked for swift passage, as it had passed in the House of Commons with unanimous support. I hoped that would happen then in the Senate, and we’re quite some time after that, but I very much appreciate what you two have done.
We will have a brief second round with Senator Patterson, who has a question to ask.
Senator Patterson: First and foremost, I would like to note that you did include the National Defence Act, and I wish to thank you for that because very often it gets missed. Remember that members of the Canadian Armed Forces will go overseas and will discover this because as countries disintegrate, their children are often their first victims. So kudos for that. Thank you very much.
Again, we’ve talked about why this needs to go fast. This is a definition change. I’m clear on that. However, I think my colleagues have certainly brought up some points about where we need to go from here. What is your recommendation? I’ve picked out a few. Where should we be going, not as a change to what we have right here, but what should we be focusing on in the future in order to make this stronger to protect young people?
Mr. Arnold: Thank you. I’m sure Mr. Caputo will have much more to say, but this is just a start.
I believe there needs to be more deterrence and more accountability for those who would take this type of action and especially abuse our young citizens, the most vulnerable. There is a lot of work to do when we see the current situation on our streets, even in family homes. We have a lot of work to do as legislators to ensure that we protect Canadians, because that really is our first priority. The protection and safety of our citizens should be our first priority.
I want to correct one thing from when I misspoke in my answer to the initial question about the potential changes to provincial legislation. I said that it was the minister who had said the government would work with the provincial governments. He was actually the parliamentary secretary at the time of that committee. I wanted to correct that for the record.
Mr. Caputo: Where do we go from here? I’m going to pick up where I left off last time.
I think that incest provision is a very good place to start. Under section 172(1) of the code — I hope I’m not sounding like a law nerd. I know I am, but I’m trying not to be.
It’s internet luring. The hardest thing for a prosecutor to do is put the person in the prisoner box and prove that they are the person behind the computer. If you look at, I believe, sections 3 and 4, they are evidentiary shortcuts. When I say shortcuts, properly done, one was found unconstitutional.
We must look at how we can prove that people who are abusing children are doing it in a way that respects the rule of law and the Charter but also simplifies the process. Right now, there is a backlog of approximately 12 months when somebody gets a hard drive and it goes to an expert. An expert is the one who has to show who was on that. Anybody can say what’s on a computer; only an expert can say how it got there.
These are evidentiary hurdles that can be solved. We have to fundamentally reorient how we think about these things. I must be careful here because people have said to me, “Frank, you’re a lawyer. You have two law degrees, and pursuant to the rule of law, you can’t criticize a judge,” but I am going to criticize a mentality. It was a judgment I read recently. Maybe I misread it, but it bothered me.
There was an instance of sexual assault that involved intercourse. Again, we have to maybe legislate on this. The judge said that we can’t tell how much a victim is impacted based on their testimony, but that they didn’t look that impacted. That’s how I read it. Again, the judge did give that caveat. This was on the way to a house arrest sentence, as I recall. So I’m not criticizing the judgment; I want to be clear here. I’m criticizing the legislative framework that permitted this.
I don’t think house arrest is appropriate for somebody who sexually assaults a child. All sexual assaults are serious on the spectrum, but there comes a line, a threshold. When you commit that and you have violated somebody’s dignity and inviolability, I’m sorry, playing on your video game system is not an option. I know people disagree with me on that. I’m not here in a partisan capacity. I think we have to reflect that.
I think serious harm should be presumed. In fact, in a case called Friesen, the Supreme Court of Canada said upper‑single‑digit and double-digit sentences should not be abnormal for child offences. That’s what Friesen said. As someone who taught a sentencing class, I’ve never once seen the maximum given. How do we as legislators reflect that? I know people don’t like mandatory minimums. Where do we go? We have to fundamentally shift where we go.
I know I’m being long, Senator Batters. I will work with every single person around this table if I’m fortunate enough to be re‑elected. I’m sure MP Arnold is the same way. We will work to make these changes because, in my view, they are non‑partisan. Thank you.
The Deputy Chair: Thank you very much. I want to thank the witnesses for coming all the way from the other place to take the time to be here. It used to be down the hall; now it’s down the street. Thank you very much. It’s such an important topic you brought forward today. Thank you for answering our questions with such passion and in such a heartfelt manner. We really appreciate that.
Senators, we will now potentially move on to clause-by-clause consideration of this bill. If our witnesses would perhaps sit in the back row, that would be great. I won’t bother suspending, necessarily.
I ask my colleagues this: Is it agreed that the committee now proceed to clause-by-clause consideration for Bill C-291, An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material)?
Hon. Senators: Agreed.
The Deputy Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 12 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 13 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 14 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Does the committee wish to consider appending observations to the report?
Senator Clement: I think two versions have been distributed, so it’s the more recent and longer one that is before you.
I’m going to break it down. I’ll start with the first paragraph.
The Deputy Chair: Could you perhaps read it out so that it’s fully on the record first and then go into your argument for it?
Senator Clement: Absolutely.
The committee has reported in the past about how the Criminal Code has been amended in a piecemeal manner for many decades and has become cumbersome, sometimes repetitive, or inconsistent, and in need of comprehensive (see for instance, the committee’s 2017 report Delaying Justice is Denying Justice at pp. 41 to 43.) The committee repeats its past recommendation that an independent body should undertake a comprehensive review of the Criminal Code. The newly revived Law Commission of Canada could undertake such a review, which should include a study of all provisions in the Code that pertain to violence against women, particularly intimate partner violence.
The committee further observes that the bill before us deals with clauses of the Criminal Code containing mandatory minimum penalties that have been struck down, including by courts of appeal. This situation emphasizes once again the need for comprehensive reform. In the meantime, in order to ensure transparency and clarity for the Canadian public, the committee reiterates that this bill does not have the effect of reviving mandatory minimum penalties that have been struck down as unconstitutional.
The committee echoes its previous recommendation, again from the Delaying Justice is Denying Justice report, that the Minister of Justice undertake a thorough review of existing mandatory minimum sentences in order to ensure a reasonable, evidence-based approach to when they are appropriate and consider whether persons with mental health issues should be considered for alternative sentencing options or treatment when faced with mandatory minimum sentences.
The newly revived Law Commission of Canada could undertake a comprehensive review, which should include a study of all provisions in the code that pertain to violence against women, particularly intimate partner violence. The committee requests that it be mandated by the Senate to undertake a review of applicable sanctions in cases involving violence against women, including the underlying values of such sanctions. We encourage the Government of Canada to work with provinces and territories to collectively take greater urgent action to address violence against women and to support victims and survivors of intimate partner violence.
That’s the entirety of the observation. I want to break it down. None of these paragraphs are new. They are repeated. We have put them down as observations on quite a long list of legislation. I’ll start with the first paragraph requesting that comprehensive review, which really does speak to the question that was posed by Senator Galvez. What are we doing here with bits and pieces of legislation?
What happens is that Canadian society cries out in desperation for the experience of victims. So as legislators, we legislate. That is what we do in response to the need to make changes.
The problem is that every time we open and close the Criminal Code, we make a change that then makes it potentially inconsistent with the rest of that legislation. We’ve been doing that for years.
That first paragraph is one that we have put in as an observation to Bill C-3, Bill S-205, Bill C-233 and even Bill S-15 — all of this legislation — just to say, “Please, let’s do a comprehensive review of the Criminal Code.” That’s where that first paragraph is.
The next two are around mandatory minimums. I have heard much in response to the questions around the table. Much has been read into the record here that I think has provided some clarity around the intent of this legislation.
But again, these next two paragraphs are on mandatory minimums and are again in that same view. They have been used by this committee as part of observations around clarity and around the fact that we have this sort of inconsistent document. And for consistency, what we’re saying here is mandatory minimums have been struck down by Supreme Court cases, and now we have Bill C-5, which codifies some of that change in terms of mandatory minimums, and it is just to be very clear here in the observation and to repeat that we want comprehensive review.
The last paragraph is about gender-based issues. The reason that one is there is because of Online child sexual exploitation: A statistical profile of police-reported incidents in Canada, 2014 to 2022. That document studies, over that period of time, the impact of online child sexual exploitation and whom it impacts. The majority of victims of police-reported online sexual offences against children were girls, particularly girls between the ages of 12 and 17 — 71% of all victims.
So the point of that last paragraph is to refer to GBA Plus, the gender-based analysis, and say that it is relevant here. It’s always relevant, but it is particularly relevant when we are talking about victims of online child sexual exploitation, a great many of them being little girls.
The Deputy Chair: Thank you.
[Translation]
Senator Carignan: I cannot be against virtue, but the problem lies in including this in a number of reports or in reports that are not necessarily related to the bill we are studying. We’re looking at a bill that changes a term to “child sexual abuse and exploitation material.” One of the comments was about minimum sentences that should be reduced. The testimony we’ve heard here indicates that they should be increased. We’re talking about women’s issues and violence against women. We’re talking here about the exploitation of children in a broader sense, without referring to gender. Part of the report entitled Delaying Justice is Denying Justice is also being used. Recommendations from one section are being included, but without being put into context. After all, there are about five pages of context to this particular recommendation.
I think it’s dangerous to cut and paste out of context and include comments that aren’t directly related to the bill, even though there are some elements of relevance that can be attached to certain sentences from time to time. I think we should stay away from that.
However, that doesn’t mean it’s not important and that we shouldn’t insist that the 2017 report be implemented and that the Law Commission of Canada be mandated to conduct a full review. I think it’s a long process. In Quebec, it was done for the Civil Code of Quebec and it was complex. Doing it for the Criminal Code will take years; it’s an extremely complex job. I agree, and I think it should be done. However, I think we are diluting the message by including that unrelated recommendation in this bill.
The message is being diluted: Repeating it over and over is like crying wolf all the time. At some point, people stop hearing it. If there is a move to be made to insist on the implementation and revival of the 2017 report, I think we need to do something specific, even if it means having a mandate and saying, “Here is such a decision.” The work of 2017 must be updated, with all that implies. There is a new Minister of Justice. We could call him as a witness and bring him up to speed. That’s something that could potentially be done. I’d rather do something stronger, like what I’m talking about, than just include cut-and-paste elements in an observation about a bill without a direct connection.
[English]
Senator Simons: Cato the Elder ended all his speeches in the Roman Senate by saying, “. . . Carthage must be destroyed.” So I see the value of always ending our reports with this same cri de cœur. But I share some of Senator Carignan’s concerns that just transposing this language onto a bill that deals with the exploitation of children without mentioning children seems a bit odd. So I wonder if Senator Clement would consider a friendly amendment, as it were, especially to change the last paragraph to say “applicable sanctions in cases involving violence against women and children including the underlying values,” and then in the last sentence, “address violence against women and children and to support victims and survivors of family violence.” Because we’re also talking about children being abused by family members or, as one of the witnesses mentioned, family members by proxy.
It would contain Cato the Elder’s sense of repetition, but also in the first paragraph as well, if we said, “women and children, particularly intimate partner and family violence,” something like that, because then it would accomplish the goal of repetition but also be congruent with the legislation.
Senator Clement: Do you want me to respond?
The Deputy Chair: I don’t really want to go back and forth for every particular person. I would prefer to have a number of people set out their points, and then I’ll certainly let you respond to that. But on that point, is that something that you are amenable to?
Senator Clement: Absolutely.
The Deputy Chair: Okay. All right.
[Translation]
Senator Carignan: As I was saying, I cannot be against virtue, but what bothers me a little is the place where it is included or the process that is put in place to wake the government up to the need to proceed.
[English]
The Deputy Chair: I personally don’t see the entire thing as motherhood and apple pie. I don’t agree with the questioning of the mandatory minimum issue in this context of a bill dealing with child sexual exploitation and abuse material. And I personally don’t see the value of the repetition on every single bill in ending the — what was it?
Senator Simons: “. . . Carthage must be destroyed.”
The Deputy Chair: “. . . Carthage must be destroyed.”
Senator Simons: And then they did it.
The Deputy Chair: Sure. But what we have seen on a number of bills is that the Trudeau government has not followed or really acceded to many of the observations that we have taken great care in. What I am concerned about here is that this lengthy observation — and especially to make it even lengthier now — could cloud this important issue. We just had this committee unanimously pass a relatively brief but important private member’s bill that changes the highly inappropriate term of “child pornography” to “child sexual abuse and exploitation material.” That’s it. There was widespread support for that.
I don’t really like the idea, then, of having to slice up an observation because some of us may not agree with certain parts. So I think certain parts of the observation only have a minimal connection to this bill, and now we’re trying to potentially fit in other parts.
Yes, and the ending paragraph, as it previously existed, specifies violence against women three separate times, but this bill is actually about children. I just don’t want it to get too clouded. That’s my perspective on it. But, of course, I am just one member here.
Senator Patterson: I have very similar observations. This is important, and that goes without question.
My concern is knowing that it doesn’t get read anyway. This is my health care background coming in: I think that if humans look down and see something is the same and they are busy, they might not even read the first line.
If we want to have a punch in there, especially based on some of the testimony, we need to start doing better. It would be easier for me to read if it was tight. I see “intimate partner violence” related to “child sexual abuse and exploitation” versus “pornography.” This is all about word meaning. “Pornography” has some element of consent. “Intimate partner violence” has a different element. I feel like we’re mixing apples and oranges for the average reader. I’m not a lawyer. I look to the very bright people in front of me.
Similar to my colleagues around the table, I think if we could be tighter and more targeted, that would not negate the fact that this is really very important, but if it is the same thing, human nature is to ignore it completely. We have already seen some of that happening. Maybe we could have more concise wording that keeps the focus on the children and the impact upon them rather than everything else.
That is just my observation. I would find it quite hard to go this long and be a critic of it because I agree with it.
Senator Dalphond: May I offer a compromise? I have been listening, and I am in agreement with everybody, so I guess that may put me in a position to offer a compromise. I will explain why.
I would only keep the first paragraph, and I would add, on the last line of the first paragraph, “the code that pertains to violence against children”— because this bill is about children, I will start with the children — comma, “women and intimate partner violence,” period. I’ll stop there.
Why do I say that? Because the last paragraph says the same thing. It speaks about a comprehensive review of the Criminal Code which should be undertaken by the same commission. So there is a bit of redundancy between the first and last paragraphs. That’s why I would only keep the first, which, in a sense, says the same thing.
Sorry, I am too much of a jurist and too technical sometimes, but the second paragraph, we don’t need to say that. We are just changing the label, just changing the name used to describe the offences. The case law has not changed. We don’t have to say that we don’t intend to change the case law; it was already said many times.
The second paragraph then is unnecessary and even kind of ambiguous in its meaning. It would be saying, “If we’re not saying that, we want to do this.” I don’t like that.
For the third paragraph, well, we already referred to Delaying Justice Is Denying Justice. It has already been said in the first paragraph.
Then it goes on to another political issue, which is mandatory minimum sentences. I don’t share the same views as Mr. Caputo on this, but I don’t think this is the proper bill in which to discuss that. We are talking about child abusers, and we are thinking about labelling the provisions in a different way.
The message is in the first paragraph, which I would keep. We keep saying — as Senator Simons has said, until it’s done — that a comprehensive review of the Criminal Code should be done and that the Law Reform Commission of Canada should do it, that they are better equipped than anybody to do it and that we repeat what we said in our 2017 report. All of that is said in the first paragraph, so I would live with that one. Maybe that will make the bill more palatable to you. It would certainly be more palatable to me.
The Deputy Chair: That would be an acceptable compromise to me, actually.
Is that something that you would be okay with, Senator Clement?
Senator Clement: Yes. Is it my turn?
The Deputy Chair: On this point, I am calling upon you, as is my prerogative today. I would like you to directly address that because that could lead to a different outcome here.
Senator Clement: Adding some words to the first paragraph to include “children” there would make a lot of sense.
The reason this language is this way is to repeat. I disagree with Senator Carignan —
[Translation]
I actually disagree about the value of repetition.
[English]
I think repetition does have value; I really do. It is a cri de cœur and, to me, it must be a consistent cri de cœur. This is why the language is the same as has been used in countless bills ahead of time, but I do agree with Senator Dalphond’s addition of the word “children.”
I do find it important to refer to this Legal and Constitutional Affairs Committee report from 2017. I see that spelled out in the first paragraph, and that is an important reference.
The Deputy Chair: Given those comments, are those senators who were on the list to speak now satisfied, or would they still like to speak on that?
Senator Galvez: Yes, I also found it a little repetitive. One of my suggestions was to just keep the first paragraph, so I’m happy that people are going in the same direction. I don’t know if this committee generally looks for a consensus. Is that what we are trying to do? Yes? Fantastic.
The only thing missing is, from my outside view and as the first paragraph states, that the committee repeats.
Can you be stronger in what you’re asking? I have seen in other committees that the observations include the request for a response from the government. I have even seen a date put in there.
It is very interesting. We usually say that the government never reads the observations, so the observations don’t lead to anything. But, actually, if you don’t make a specific request, then for sure it will not be answered. Maybe we can say, “We want the government to respond to this report and to give us its vision on when this work should be done, and we expect an answer.”
The Deputy Chair: There have been instances in different observations for different bills where we have asked for very specific things from the government. It is commonplace that we don’t receive those answers even if it is worded quite strongly.
I submit that this bill would not necessarily be the place to strongly say, “Oh, we want you to respond about this 2017 report.”
Frankly, I actually agree with what Senator Carignan said. Maybe this is the time, if we have some time at this committee, to actually request permission. It would be wonderful if this committee could actually undertake a short update study on that 2017 report and actually hear from the current justice minister about it. However, I am not sure if a very strongly worded observation about the government needing to do this right now should be attached to a private member’s bill about sexual child sexual abuse and exploitation and stronger wording. The wording that has been put forward here by Senator Clement in that first paragraph is the wording we have used in the past, referring to that excellent report, of which I was very proud to be a part.
[Translation]
Senator Oudar: I will not go back over all the comments. I had the same proposal as Senator Dalphond with regard to keeping the first paragraph. We all have different reasons for not wanting to talk about minimum sentences. We have heard some horrible things in this bill. It’s good that I am a lawyer and that I respect the case law on minimum sentences. I don’t think this is the ideal place to make this comment, as it’s a bit counterintuitive to do so in this bill.
So I would stick with the first paragraph for reasons that may be more emotional than legal, but I think this is somewhat in line with what all the senators have expressed.
Moreover, if the Law Commission of Canada undertakes a reform of the Criminal Code, it will have plenty of time to examine minimum sentences and stick to the most recent case law.
I do, however, have a problem with the last sentence, which I may have liked to adjust. The Law Commission of Canada is asked to carry out this review. I’m very sensitive to violence against women and that’s what I’ve worked against all my life, but I think we need to take a broader view and talk about crimes and offences against vulnerable people. We’ve talked about children today, but we haven’t talked about the elderly or people with intellectual disabilities.
I think that talking about a study of all the provisions of the Criminal Code relating to crimes or offences against vulnerable people will include other people: murdered and missing women, children, the elderly, people with intellectual disabilities and all people who need the protection of the Criminal Code.
I suggest that, instead of talking about Criminal Code provisions relating to violence against women, and spousal violence in particular — although I’m beating myself up for not talking specifically about spousal violence — if we want to represent the problems of the entire Canadian population, we should simply talk about crimes and offences against vulnerable people, full stop.
Then there would be the other three paragraphs of the note, if Senator Clement agrees.
Senator Audette: That’s what I wanted to suggest, that we not be too specific, as many of us have suffered the impacts of one or more forms of violence; so let’s be more vague instead.
At the same time, Senator Clement, thank you very much for proposing this, because when we go too high, we forget to prioritize what women have been trying to say for a long time. Unfortunately, violence against women and girls still exists, regardless of background or culture.
Senator Clement, I encourage you to make specific proposals, as you did to Senator Manning for his bill on developing a national strategy. This is a place where it will be very specific and important to propose that to him, and you can count on me as a full ally, and we can then propose much more than just an observation; we could perhaps propose an amendment.
[English]
Senator Clement: I want to come back to your comment, Madam Chair, about doing things by consensus. That’s generally the one that feels the best. I have been on both sides of that issue, and I agree.
I also agree with the changes proposed by the senators.
I would add that the committee has consistently reported in the past — I would add the word “consistently,” because this is what this is about. We have used these words in legislation after legislation. So I do want to make the point that Senator Galvez raised about being a bit stronger and adding that to the paragraph as well.
The Deputy Chair: Sure.
Senator Dalphond: After the word “as,” “as consistently . . .” And the last line is, “violence against vulnerable persons.”
The Deputy Chair: What would the last line say, then? Could you repeat that?
Senator Dalphond: I think the last line will read, “The code that pertains to violence against vulnerable persons.”
The Deputy Chair: One other very small thing I was going to suggest — I just looked it up because it constantly says, “the newly revived Law Commission of Canada.” It was actually in 2021. That’s more than three years ago. I would just say, “the revived.”
Senator Dalphond: “Revived.”
Senator Clement: Agreed.
[Translation]
Senator Oudar: I had suggested removing the word “violence” for the same reasons we have all heard today. Abuse was discussed, whereas I was referring to the provisions of the Criminal Code relating to crimes against vulnerable persons, so as not to qualify whether the crime is violence, abuse, pedophilia or something else. The idea is to go beyond violence. There may be cases of abuse that are not violence, and what we are asking is that the commission look at all crimes and offences against vulnerable people.
[English]
The Deputy Chair: So it would say, “include a study of all provisions in the code that pertain to crimes against vulnerable people, particularly intimate partner violence”? No, it would just end with that.
Senator Dalphond: “Vulnerable persons,” period.
The Deputy Chair: “Crimes against vulnerable persons,” period. Okay, look at that.
Senator Dalphond: I think we were able to agree on the wording. It is impressive.
The Deputy Chair: It is, yes, particularly with me in the chair.
With that, I believe we have the proper wording. So is the wording as we have reconstructed it here agreed upon for that observation?
Hon. Senators: Agreed.
The Deputy Chair: Is it agreed that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the observation being appended to the report in both official languages, taking into consideration today’s discussion and with any necessary editorial, grammatical or translation changes as required?
Hon. Senators: Agreed.
The Deputy Chair: Is it agreed that the chair report this bill with that observation to the Senate in both official languages?
Hon. Senators: Agreed.
The Deputy Chair: Excellent. Thank you for your cooperation, senators, and thanks to our witnesses. I’m very pleased to see this result.
(The committee adjourned.)