Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 59 - Evidence
OTTAWA, Thursday, April 17, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-27, to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation), met this day at 11:02 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Today we begin our study of consideration of Bill C-27, an Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment, and female and genital mutilation).
With us today from the Department of Justice are Carole Théberge, Counsel for Criminal Policy Section; Lucie Angers, Counsel for Criminal Policy; and Carole Morency, Counsel of Family, Children and Youth Section.
Welcome to our deliberations today. I hope you will spend a few minutes to give us some details on the legislation. Senators will then have a number of questions. Please begin.
Ms Lucie Angers, Counsel, Criminal Policy, Department of Justice: As you proposed, we are ready to give you some indications in relation to the bill. After that, feel free to ask any questions that you might have.
Bill C-27 is an attempt to deal with three areas of the law where there was a need for amendments. The three areas concern child prostitution, including child sex tourism and child sexual exploitation, criminal harassment and female genital mutilation.
All of these areas relate to violence against women and children. The need to deal with the problem of violence against women and children has been emphasized on several occasions at the national and international level. I will deal, in turn, with the three areas dealt with by the bill.
First, concerning the issue of child sex tourism, the bill would allow Canada to prosecute its citizens and permanent residents involved in child prostitution abroad. The United Nations is currently working on a draft optional protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. Canada ratified the Convention on the Rights of the Child in 1991, and we are playing an active role in trying to develop a meaningful optional protocol to the Convention on the Rights of the Child.
[Translation]
Our involvement in the Optional Protocol to the Convention as well as our participation last year in the world congress on the sexual exploitation of children for commercial purpose in Stockholm has brought us to the realization that an international consensus does already exist and that we can, therefore, move to amend our legislation to allow Canada to prosecute its citizens and permanent residents who are involved abroad in the sexual exploitation of children through prostitution, an activity that some refer to as child sex tourism.
However, this same consensus appears more difficult to achieve in international law when it comes to the issue of the sexual exploitation of children for non-commercial purposes. At present, the countries participating in the talks on the Optional Protocol to the Convention cannot agree on a definition of this offence which may include sexual contact, incest or even child pornography. For this reason, Bill C-27 imposes additional procedural requirements in the case of offences involving the sexual exploitation of children for non-commercial purposes where such offences were committed abroad by Canadians.
[English]
There are two procedural requirements that are imposed in the case of non-commercial child sexual exploitation committed by Canadians abroad. First, the foreign state in which a Canadian citizen or permanent resident committed an offence of non-commercial sexual exploitation of children must request Canada to institute criminal proceedings. Second, there is an obligation for the Attorney General of the province where the presumed offender is found to consent to the proceedings being instituted in Canada.
These requirements will allow Canada to be assured of the cooperation of the foreign state in collecting evidence and in ensuring a successful prosecution of the case in Canada, while, at the same time, protecting the principle of the foreign state's sovereignty.
The second area that is addressed in the bill, which is related to the issue of child sex tourism, is child prostitution. The following measures are taken in respect to child prostitution: First, a new offence of aggravated procuring has been created to deal severely with those who, while living on the avails of children involved in prostitution, use violence or intimidation in addition to aiding and compelling these children, for their own profit, to engage in prostitution. A mandatory five-year minimum sentence was felt essential to send a strong message of disapproval of such a horrendous practice.
[Translation]
Secondly, the bill amends a section of the Criminal Code which deals with obtaining the sexual services of a person under the age of 18 years. National consultations on the issue of prostitution revealed that this Criminal Code provision proved difficult to enforce in certain provinces. Proof is required that the person from whom the sexual services were obtained was under the age of 18 years when the offence was committed.
This proof is difficult to obtain since in the majority of cases, youths refuse to testify for fear of reprisals from their procurer. The bill proposes to amend this section to allow the use of decoys or other persons such as older prostitutes who would testify to the fact that the accused asked to obtain sexual services from a person under the age of 18 years. This presumption would make it easier to prove that an offence had been committed.
Thirdly, still with respect to child prostitution, the Criminal Code would be amended to make it easier for youths who wish to testify against their johns or pimps. Some safeguards are already in place to help youths who wish to file charges. For example, they can testify behind a screen or give evidence by way of videotape and their identity is withheld.
[English]
Concerning the second area covered in the bill, criminal harassment, Bill C-27 would strengthen the 1993 provisions that are already included in the Criminal Code. The bill would state that a person who commits murder while stalking in circumstances where that person intended to make the victim fear for her safety or the safety of others, for example, her children, can be found guilty of first-degree murder.
The bill also proposes that a court imposing a sentence on a person who is convicted of stalking, in breach of an existing protective order commonly called "peace bond", shall treat such a breach as an aggravating factor for sentencing purposes.
Finally, Bill C-27 would address the issue of female genital mutilation, or FGM. The practice already constitutes an offence under the aggravated assault provision of the Criminal Code, which is punishable by up to 14 years' imprisonment. However, in order to make it clear in no uncertain terms, Bill C-27 specifically includes FGM under a "wounding" or "maiming" definition included in proposed section 268. No one can consent to the practice of FGM that constitutes bodily harm.
This modification to the Criminal Code will assist departments such as Department of Justice, Health, Status of Women, Citizenship and Immigration and Canadian Heritage in producing public legal, health and cultural educational materials on female genital mutilation.
[Translation]
Madam Chair, Ms Morency, Ms Théberge and I will now be happy to answer any questions you may have concerning Bill C-27.
Senator Beaudoin: At the outset, I have to admit that I am rather supportive of this measure. The first question I have concerns section 741 of the Criminal Code. Since the Statute of Westminster, Canada has the power to enact legislation with an extraterritorial purpose. This is the case with the amendment that you are proposing. The Canadian government is within its rights to do so and I support this initiative. However, I have some concerns about the enforcement of this legislative provision. There is no problem in the case of the United States, France, England, South America and Europe, but there may be some serious enforcement problems when it comes to countries not known for taking a hard line on sex tourism.
We know which countries fall into this category and Canadian authorities need some cooperation from them. I would like some assurances in this regard. How is this system going to work in certain countries, because we are going to need their cooperation in order to prosecute offenders. Granted, I agree with you that this legislation is better than nothing at all. However, what chances do we have of successfully enforcing it in those countries not known for their willingness to cooperate?
Ms Angers: You raise an extremely important question which was indeed addressed when we appeared before the House of Commons committee. Countries like Australia, Belgium, and New Zealand have encountered this problem in attempting to pass legislation that is extraterritorial in scope. This issue has also been raised in international forums. For example, we have been attending the meetings of the working group on the Optional Protocol to the Convention on the Rights of the Child. This is indeed a problem. Clearly, one of the reasons why countries passed legislation like this was because they felt that the countries in which these practices occurred were perhaps not sufficiently well-equipped or even necessarily interested in prosecuting cases to the full extent.
As you can no doubt surmise, most countries have laws in place prohibiting sexual relations with youths under 18 years of age in exchange for money. This practice is banned in most countries. How can we enforce these laws when the police or the state are not always interested in doing so because hard currency flows into the country as a result of this brand of tourism, currency which supposedly contributes to the country's development?
However, in international forums, these countries are increasingly aware of the considerable impact child sex tourism has on their own resources. It is very costly to have a whole segment of the population with little education to speak of or to have youths suffering from AIDS or other health problems. When the young generation is unable to contribute to a country's development, the effect can be devastating.
The Philippines and Thailand have now decided to take a much harsher stand on criminal offences committed by foreigners within their borders. We are now seeing a shift in sex tourism from these countries to new ones.
This phenomenon is now less prevalent in the Philippines and in Thailand, but it is apparently on the rise in Laos and Cambodia. Countries are becoming aware of the problem and are making efforts to prosecute offences committed within their own borders.
You asked the following question: what happens when we decide to prosecute someone after realizing that the country will not take any legal action? You know how we deal with crimes against humanity and war crimes. Prosecution is a costly process, since we dispatch commissions to these countries either to take evidence from witnesses or to try and bring these witnesses back to Canada.
We are assured of the country's cooperation, first of all by virtue of its having signed the Optional Protocol to the Convention on the Rights of the Child. By signing this protocol, the country undertakes to cooperate with other states. Even though the optional protocol is still being drafted, we are assured of the country's cooperation through diplomatic channels.
For example, if we hear of an offence having been committed in Thailand or in the Philippines, we try to contact the country informally through diplomatic channels to find out what it intends to do. Does it intend to prosecute? If it does, and if we feel that the matter will be dealt with properly, clearly the country in which the offence was committed has the first right to prosecute. If it does not plan to follow up on the matter, Bill C-27 will enable us to say to them, "Listen, we can prosecute, we can try and gather evidence, we can send in police officers and so forth."
Through diplomatic channels and by exercising some pressure internationally, we can deal with this issue.
Senator Beaudoin: I am happy to hear you say that the situation is improving in two or three countries because the outlook is certainly not rosy in other countries.
[English]
Senator Pearson: There is a growing body now of jurisprudence. Australia already has several cases, as does Sweden, and so on. As already mentioned, the cooperation with the Philippines and Thailand has been very great. There are people within those countries who are using this movement, which was really enhanced by the Congress in Stockholm, to create their own legislation that will be even better, or more equipped to meet with ours.
It is important to know that, at the United Nations this fall, there was consensus from all the nations that belonged to the United Nations to continue with the work of Stockholm and to adopt the agenda at Stockholm, which has this as one of its major platforms.
In addition to that, now 190 countries have ratified the Convention on the Rights of the Child. The only three that are missing are the Cook Islands, which are having some difficulties in getting their act together; Somalia, for reasons that are obvious, namely, they have no government; and the United States.
Senator Beaudoin: The United States? That is very surprising.
Senator Pearson: Those are the only three countries that have not ratified the convention.
Senator Jessiman: I am told that there is a private members bill, Bill C-246. Are you familiar with that? I am told it gives an extra-territorial reach to more of Canada's criminal laws relating to child prostitution and would extend that reach to more people, for example, not only Canadian citizens, as this does, but also those who are ordinarily resident in Canada, as well as persons who are present in Canada following the offence.
Why has the government taken a more restrictive approach in Bill C-246 in defining those to whom the proposed amendments would apply?
Does this approach not limit the proposed effectiveness of the legislation? Why are you limiting it just to citizens and permanent residents as defined in the Immigration Act? You have not extended it to pimps, for instance, who might also be Canadian citizens, or to permanent residents.
Is there anything in place or projected to be in place to deal with the activities of tour operators or travel agencies which promote the sex industry abroad? I am surprised there are such people. I deal with a lot of tour people. I did not know there are tour travel agencies to deal with sex.
Can you answer all those questions, please?
Ms Angers: Yes. You are referring to Bill C-246, which is the bill from Ms Gagnon from the Bloc Québécois.
Senator Jessiman: Yes.
Ms Angers: The scope of the bill that was proposed by Ms Gagnon was much larger. There are two things: First, it did address permanent residents and Canadian citizens as in the bill, and it also referred to a broad spectrum of offences contained in the Criminal Code. However, the House of Commons Committee, JLA Committee, decided following the testimony of some witnesses to include, not in Bill C-27 as revised by the committee, not only child sex tourism -- that is, child prostitution -- but also a list of several other offences that were also referred to in Ms Gagnon's bill. For instance, now you have sexual interference, sexual touching, abuse by a person in authority, et cetera. We are covering some additional Criminal Code offences that were covered in Ms Gagnon's bill.
Senator Jessiman: What about pimps?
Ms Angers: Concerning your second question in relation to pimps, pimps are certainly covered. If you are a Canadian citizen or a Canadian permanent resident, you are subject to the bill like everyone else. Whether or not you are a pimp does not matter. If pimps engage in the activities covered in the bill, they are subject to the bill. Pimps, by their status, certainly would be covered in the bill.
Senator Jessiman: You say they are covered.
Ms Angers: Yes, that is what I am telling you.
Also, in respect of Canadian tour operators offering tours in Canada, it is covered already in the Criminal Code. There is a section in relation to procuring.
Senator Jessiman: It is not in this bill but it is covered elsewhere in the Criminal Code.
Ms Angers: It is in the Criminal Code already.
Senator Jessiman: Is it the same for travel agents?
Ms Angers: Yes, anyone who entices someone to go abroad to have illicit sex.
Senator Jessiman: Would the pimps be covered by this bill or elsewhere?
Ms Angers: The pimps would be covered by their status as a Canadian permanent resident or a Canadian citizen.
Senator Gigantès: You said "engaging in these activities". Does that include facilitating someone else's engaging in those activities or does "engaging in these activities" mean that the pimp has had sex with children?
Ms Angers: No, it would also cover the case of a person who facilitates that by the provisions in the Criminal Code dealing with aiding and abetting.
Senator Gigantès: Thank you.
Senator Doyle: My question, I suppose, is one of style. We are speaking here of child prostitution. I looked up the word "prostitute" in my dictionary. I find that it is a person who offers her or his body to indiscriminate sexual intercourse, or a person given over to infamous practices, an abandoned person, a base hireling, or a corrupt or a venal politician. I do not find any children among those.
There was a time not too long ago when it was stylish in our laws to refer to illegitimate children, and you do not hear that anymore. I do not know why we persist in saying "child prostitute" when we mean the offender is a person who prostitutes children. While you might say that now is the world's style, every journey begins with one little step, even in style. I stumble over that expression.
I stumble over "juvenile prostitution" even more because it suggests a certain willingness and intention on the part of the prostitute, not a person who has been dragged, kicking and screaming, or ignorantly, into the field. I am interested in your thoughts.
Ms Angers: You raise an interesting point that was raised at several occasions during the national consultations on prostitution. That is why, as opposed to using the expression "youth prostitutes", people now are increasingly using the term "youths involved in prostitution", thereby implying that they are not prostitutes per se but they are children who have been involved -- that is, by someone else or children who have been procured. You have that new trend.
It is true that using the expression "child prostitute" is not expressing well the fact that a child does not go into prostitution by his or her own will but is forced into prostitution. That is a thing that we try as much as possible to use now in our legislation and we use it also in our speeches.
Senator Doyle: I am the last person on earth to suggest the Department of Justice should become trendy, but right here on the front page of Bill C-27, it says "child prostitution". If it was raised and if it was on the table at the committee in the House of Commons, why in heaven's name would we take a backwards step?
Ms Angers: We did not change the term in the title as opposed to having it in the bill per se because it is kind of economy of drafting. As I said, it is not something that we are using anymore. We could have used, "children involved in prostitution", but, in terms of economy of drafting, we try to have the title as short as possible.
Senator Gigantès: It is objected to because we are talking of them being subjected. They do not do anything of their own free will there.
Senator Doyle: "Prostituting children" adds only two words. That does not suggest that they did it through themselves.
Senator Gigantès: I am maniacal about condensing, but I am in agreement with Senator Doyle. There is space in the third line for a word or two more. You could add one more line. I am surprised that the Department of Justice has worried about wordiness. This is not your habit.
Ms Angers: Yes. We do not refer to the words "child prostitution" in the bill. It is in the title. The title will not remain, obviously, in the Criminal Code. It is true that it is something that is not used as much.
Also, there is a controversy for the children who are older, for example, the children who are 17 years old. We heard some witnesses that appeared before the JLA Committee who said, "I became involved in prostitution when I was 17. It was my free will. I was never pushed into it, and I recognize my statute as a prostitute. I want to remain a prostitute. How dare you call me a victim?"
This was surprising for me to hear. We know prostitutes tend to become involved in prostitution at an early age. Some of these people still think that they are prostitutes and they are proud of it.
This does not provide an explanation for the title. It is certainly something that we will bear in mind.
Senator Doyle: While it may be discouraged over at the Department of Justice, there are about 15 or 20 references to it in our library summary of the legislation, so it is there.
Senator Milne: I must agree with Senator Doyle. My French is not very good, but it seems to me it is worded more correctly in French in the short title.
Senator Doyle: It usually is.
Senator Milne: In the bill itself, in the "whereases", it is correctly worded "the prostitution of children", which is easy to do.
In the preamble to the bill, in the fifth and sixth "whereases", it is talking about concerns regarding the prostitution of children, whether inside or outside Canada, and protecting children from all forms of sexual exploitation.
Protecting children is what I am concerned about. Assuming that the evidence of young prostitutes will be vital to a successful prosecution under the proposed child sex tourism provision, what assurances will we be able to offer that their future safety, and the safety of their families, is not compromised by their successful evidence before some kind of a tribunal?
There are cases here in Canada where the families of these young people are at grave risk if the underage people come forward and act as any kind of witness. I should like to know how you see this being resolved in this bill or how you can overcome what is, in effect, a contradiction. You are trying to protect the child yet, in some degree, you are putting them and their families at risk.
Ms Angers: The best evidence is direct evidence; that is, to have the child who has been subjected to prostitution testify. However, there might be some cases where there are other witnesses who can testify to that effect and, therefore, it is not necessary to have the child's testimony.
First, nationally, the bill tries to help enforce the provision relating to obtaining sexual services of children. The bill is aimed to that effect because we want to prevent children from having to testify in these cases.
Second, it is true that it is an issue that is raised often in the context of children but it is also raised in the context of adults -- that is, women who are involved in prostitution and who say, "I do not want to testify against my pimp. I am too afraid." That is why some measures are taken in Canada.
We could think of similar measures in the context of child sex tourism to protect these witnesses. There are witness protection programs and certain kinds of relocation programs. A member of the RCMP would be better able to talk about that. There are some measures that exist and could apply to children who are coming to testify.
We also have all the measures in relation to the videotaped evidence to which I was referring, namely, the out-of-court testimony. All these help to alleviate the burden of children testifying. Obviously, you cannot necessarily control what the pimp will do afterwards, but all these measures are aimed at trying to prevent this happening to a child.
Senator Milne: I have heard of cases where young people involved in prostitution manage to escape from their pimps. They have been exported from one part of Canada to another and they manage to escape from their pimps and go home. But the pimps know where they came from. They know the family and threaten the rest of the family, namely, the younger children or the younger sisters of these unfortunate individuals. The result is that the individuals who have managed to escape quietly return to what they were doing before in order to protect their families. I cannot see that witness relocation will make any sort of an impact on that kind of problem whatsoever.
Ms Angers: Ms Morency will address that question.
Ms Carole Morency, Counsel, Family, Children and Youth Section, Department of Justice: From the international perspective, your initial concern was on the child sex tours and what kind of support or protection could be offered to the child victims who would participate in a Canadian prosecution.
As Senator Pearson has indicated, the World Congress that was held in Stockholm resulted in the adoption by all the attending states of a declaration and agenda for action. Central to those two documents is the consensus that states need to develop services to support their children who are victims of this conduct and provide appropriate services to the family so that families do not push their children into these situations, if that is the case.
Also, in line with that is the optional protocol or the efforts to draft the optional protocol to the Convention on the Rights of the Child, which tries to support similar services being implemented by the different states. The adoption of these instruments internationally and the strong efforts to work towards an optional protocol is some evidence of these states' goodwill to try to provide the appropriate services to these children and their families.
It is not necessarily a response that would come, for example, from the Canadian government which is prosecuting the case, although my colleague, Lucie Angers, has indicated how the Canadian government can try to facilitate or address those concerns in the prosecution. When the foreign state indicates a commitment to work with the Canadian government in the prosecution of an offence, there is a correlated commitment to try to support the victims as well in their own state.
Your second issue deals more with the domestic situation, and I will let my colleague speak to that.
Ms Angers: You were saying that some pimps will find the families and will threaten them. Yes, there is always that possibility, but that possibility exists in any case where you have violence exercised against a child, or any case at all involving violence. If you have assaults committed against women, or whatever, there is also the fear of being revictimized or having your family victimized by the same person who committed the offence. This is a concern throughout the whole spectrum of the criminal justice system. Therefore, there are measures to try to alleviate that fear.
Senator Milne: Are there measures in this bill to try to alleviate that?
Ms Angers: The measures are more aimed to helping the testimony by ordering a ban on publication of the identity of the child. These measures are very practical and help, in any way the Criminal Code can, to address these concerns, although they do not prevent incidents from happening in the future.
We are always trying to have that provision dealing with the protection afforded to more vulnerable people, for instance, children. We are always trying to enlarge that provision as much as possible. It continues to be changed because we try to add additional protections to try to alleviate these problems.
Senator Milne: Where is that contained in this bill?
Ms Angers: It is in clause 6 at the bottom of page 6, and also on pages 7 and 8. On page 6, it involves the testimony outside the courtroom. Clause 6.(2) is to the effect that, when it is necessary to hear testimony but the child has difficulty communicating evidence, the judge must follow a certain procedure.
You then have the conditions for exclusion to respect the rights of the accused.
In clause 6.(4), you have the order restricting publication. The videotaped evidence is dealt with in clause 7.
Senator Gigantès: You made some reference earlier to relocation. I do not suppose you mean that, if we bring a child who was forced into prostitution here to testify against a Canadian, we are prepared to relocate that child, and his or her family, here in Canada. I have no objection to doing that. I want to be clear.
Ms Angers: Normally, the cases in which we will prosecute are when the Canadian citizen or permanent resident is here, obviously. If you relocated the person in Canada, then it might be a problem. It is probably much better to send the child back to his own country, to be better protected against that particular Canadian.
Senator Gigantès: I approve of this bill. I think it is a good step, but despite international protocols, I think it will be many years before children forced into prostitution will be protected if they dare testify, because some other cultures do not think that it is too terrible a thing to force a child into prostitution. It is a very sad thing. However, we must start somewhere.
Ms Angers: It is a first step. Also, at the international level, the consensus is building that countries must address this problem because, if it is not addressed, as a country, you are in danger of having even more problems than presently exist. It is building, but it is a slow process. Some countries do think that there are advantages at this point in time. Canada is trying to build on that.
Senator Pearson: I have a supplemental question concerning the pimps.
Legislation is always a work in process. That is to say, things are added to it as one realizes that what it was set out to do is not quite adequate.
There are problems. I have heard the same thing from several people giving testimony about the relationship of pimps, about the threatening of families, and so on, and the difficulty sometimes of getting evidence against them.
Does this law help to make it possible to go after the pimp by setting up a decoy -- that is, by getting the pimp to think that you are younger than you are if you are a policeman or a policewoman?
Ms Angers: The problem is really in relation to customers. We heard from some provinces that it is very difficult to get a conviction for a customer of a youth who has been subjected to prostitution. In the case of pimps, you usually have some evidence.
However, in order to enforce legislation in respect of customers to try to catch them, yes, the bill does provide for the use of decoy or undercover officers or the testimony of older prostitutes.
Older prostitutes do not want trouble. They do not want to have kids in the area. Also, they are trying to protect their "turf". They have indicated to the police and during the consultations that they would be ready to testify to say that that kid is 16 years old and he or she should not be there.
The law will help that because it will permit these prostitutes to testify that, "Yes, I was asked for the sexual services of a kid who is 12 years old," and that will be sufficient for the application of the subsection.
Senator Pearson: Proposed section 212.(4) has been a major problem.
Ms Angers: Yes. We tried to address it. Some might think that it does not address the problem; we think it does. There are several ways in which it can address the problem. If there are some problems with the wording, I am sure the Minister of Justice will be ready to reconsider it.
Senator Lewis: My interest is in clauses 6 and 7 of the bill, dealing with the evidence of young people who are under a disability. These are amendments to the Criminal Code now. Could you explain the effect and the extent of these changes, how it affects what is already contained in the Criminal Code?
Ms Angers: These provisions were already in the Criminal Code, as you rightly noted. All that we are doing in the bill is to extend the application of the provisions that already existed to have out-of-court testimony and videotaped evidence. We are extending it to a larger category of offences, namely, child prostitution and child pornography, in order to help these persons testify.
Previously, the provision was only aimed at complainants. It was not aimed at witnesses. Any complainant or witness, in the context of all these offences, can now avail himself or herself of the provisions that are in the Criminal Code.
The two major changes were, first, to extend the application of the provisions to witnesses as well; and, second, to expand the scope of the provisions that could be covered by the legislation.
Senator Lewis: This extends it further.
Ms Angers: Yes.
Senator Lewis: How will those sections work in practice?
Ms Angers: In practice, it is at the request of the victim or the person who wants to use these provisions, obviously, because, in some cases, the witness or the complainant will want to have the publicity. They will want to say to the world that that person has been an abuser, or whatever. In some other cases, they might not. The choice is left to them. They ask for that protection, depending what they want, and then the judges decide what is appropriate in those cases.
Senator Jessiman: The question was:How does it work in practice?
Senator Lewis: I asked the question in the wrong way.
Ms Angers: I answered in the wrong way.
Senator Lewis: I will ask the question in the right way. What has been the experience?
Senator Jessiman: Do you know? Maybe you do not know.
Ms Angers: Ms Morency has much broader experience in family law. She will be able to answer your question.
Ms Morency: These provisions were initially introduced as part of what was called Bill C-15 in 1988, which was a fairly significant reform to the Criminal Code relating to the prosecution of child sexual abuse offences. These reforms followed on the heels of the recommendations from the three-year, extensive Badgley Committee Report, which strongly supported these types of provisions to facilitate obtaining evidence from child victim witnesses in these cases.
As part of Bill C-15, Parliament was required to review the implementation of Bill C-15 after four years of operation. That review was conducted in 1993. A report was released by the Horner Committee at the time, which indicated that these provisions were having a significant impact in facilitating the prosecution of these offences by enabling children to provide evidence in a way that recognizes the limitations and the difficulties children, in particular, experience in these types of situations.
The report indicated that better or more frequent use could be made of these provisions, but nonetheless found them to be quite significant. They have been upheld by the Supreme Court of Canada on Charter challenges. The provisions have proven to be successful and can make a difference in the prosecution of these cases.
We would expect a similar effect with respect to the juvenile prostitution provisions.
Senator Lewis: Do you know of any difficulties that have arisen in practice?
Mrs. Morency: The difficulties tend to be that they are not used. For example, closed circuit television or videotaping is not used as often as some might have preferred to see. Sometimes, that is due to limitations of resources. Prosecution of these cases falls within the responsibility of the province. If you are in a small centre, you may not always have the same access to the facilities that are available at some of the larger centres.
Having said that, there is considerable experience at the provincial level in prosecuting with these provisions, where they are able to use them. For example, mobile units are created in some provinces. There is increasing use of these provisions and, certainly, we would like to see even more use. The department is trying to work with the provinces to facilitate that. The bottom line is that they are being used and they are having an impact.
Senator Moore: Clause 7, dealing with the videotaping and the admission of videotape in evidence, says:
...a videotape made within a reasonable time after the alleged offence, in which the complainant or witness describes the acts complained of, is admissible in evidence if the complainant or witness, while testifying, adopts the contents of the videotape.
What does that mean, "adopts"? Tell me how that happens. How does a person "adopt" the content of the tape? Is it something that is being shown to the court or is it something that they ask or consent to have used? Practically speaking, what is the application of that word in this context?
Ms Angers: This provision concerns court delays. If the trial is only held two years after the offence, you might not remember everything that happened. That is why that provision was there, namely, to have fresh testimony so that when the trial starts, you can return to that testimony and adopt it.
Senator Moore: You can go back to that testimony and adopt it or elect to use it as opposed to relying on memory? Is that the idea?
Ms Angers: Yes. Tou adopt the content of it, and then the lawyer for the accused can cross-examine.
The Chair: It is actually much clearer in French, as is often the case, French being a much more precise language. It says, "s'il confirme". In other words, it confirms.
Ms Angers: You must say, "Yes, I am very comfortable with that testimony. It relates to everything that happened." As a result of adopting the content of the videotape, then you do not necessarily have to testify. However, you can be cross-examined.
Senator Moore: You are adopting that videotape record of your version of what happened as being your statement of evidence at trial.
Ms Angers: Exactly.
Senator Moore: So that you will not have to give direct evidence, but you can be cross-examined on the video.
Ms Angers: That is it exactly, yes.
Senator Lewis: It might be that the word "adopts" has more significance in criminal law than "confirms". I do not know.
Senator Moore: Or "elect to use".
Ms Angers: I am no expert in English, but Ms Morency tells me that this is the word that we use in that context.
Ms Morency: It is criminal terminology.
Senator Moore: You are adopting the use of that video. You are electing to use that video.
Ms Angers: You confirm that you did say that.
Senator Jessiman: I wish to speak now about aggravated procuring. That is something that has been added. Under the Criminal Code now, if one lives on the avails of prostitution of a minor, the court can impose a term of imprisonment of 14 years. Why has this word "aggravated" been added? I know it means that there is violence involved and they are helping with the prostitution.
You have made a minimum sentence of five years. Is there a reason why the courts have not been imposing sentences under the present law up to five or more years? Is that the practice of the courts with these pimps? What kind of sentences do they get for the first, the second or the third time? Is that why you have brought this provision in?
Ms Angers: During the national consultations on prostitution, in some provinces, we were told that the sentences were a bit lenient for the kind of practice that the pimps engage in. If you add to the fact of pimping the violence factor and the profiting factor, then it becomes so horrendous a crime that some were suggesting that you should have a mandatory minimum sentence to send the message out that, if you do that, it is so bad that you will have five years in prison and you will not be able to get out. According to what we were told, some pimps were getting sentences of six months, two years or three years, although the maximum sentence that can be imposed is 14 years.
It was felt that allowing for nonjudicial discretion in the case of aggravated procuring would send a clear message that this practice will never be tolerated in Canada. That is why we have one of the only mandatory sentences. There are few mandatory sentences in the Criminal Code. This sends a strong message that this practice will never be tolerated.
Senator Jessiman: But you must prove this beyond a reasonable doubt.
Ms Angers: Yes, obviously.
Senator Jessiman: But not the other?
Ms Angers: This applies to the offence of living on the avails as well, but it is only that you have a presumption that will help you in proving the evidence of the offence.
Senator Jessiman: My understanding is that the present law is not as onerous as this one. Is that correct?
Ms Angers: You are correct in saying that because we are adding additional elements to the offence of living on the avails of prostitution. We are adding two additional elements, namely, violence and profiting. We are saying that if these two elements are there, you have a mandatory minimum sentence.
The way in which the offence is proved is the same as was the case before, except you still must prove the two additional elements of the offence.
Senator Jessiman: Is there some thought or was it discussed as to whether or not this might five-year minimum under section 12 of the Charter might be challenged?
Ms Angers: Some persons have raised that during the consultation, during testimony before the JLA Committee. For instance, in the Smith case before the Supreme Court, there was possession of a minimal quantity of drugs, which was considered to be completely disproportionate to the imposition of a mandatory sentence.
The minister did not think that that would be the case here. It is extremely difficult to imagine one case where the offence would be so trivial that you would say five years is too much in that case. If you have a pimp who is living on the avails and using violence and profiting, it is difficult to imagine, contrary to the case in Smith, that you could have a sentence that would be completely disproportionate. The Minister of Justice felt comfortable with that.
[Translation]
Senator Beaudoin: You piqued my curiosity when you indicated that the United States had not signed the United Nations' Convention on the Rights of the Child. My question is irrelevant, and you do not have to answer it, but do you have any idea why it has not signed the Convention?
Ms Angers: I have to admit that I am not a party to any U.S. government secrets. As you know, the Convention on the Rights of the Child is a fairly complex document and member states undertake to do a number of things by signing it. Of course, some states take their commitments less seriously when they ratify conventions like this. The United States claim that when they do sign and ratify the convention, they will fulfill all of the stated requirements.
I am not sure if this explains why they have yet to sign the convention. Neither I nor Ms Morency is aware of the reason and they have not let us in on any secrets. This is a regular topic of discussion, in particular at meetings of the Human Rights Commission. The matter was also raised at the meeting on the Optional Protocol to the Convention. I can only guess at their reasons.
Senator Beaudoin: I brought the matter up because we share a border 3,000 miles long. Could this not create problems for Canada? Am I correct in saying that they are not bound by the Convention?
Ms Angers: In what way?
Senator Beaudoin: Since they are not bound by the Convention, this means that they will not be passing legislation and for their neighbours, this could perhaps cause some problems. Do you not agree?
Ms Angers: As you know, most of the provisions in the Convention are also included in most of our laws and in most U.S. laws. The Americans have laws on the books dealing with the issue of child labour and child sexual exploitation and abuse. Often, the mere fact of signing and ratifying a convention does not necessarily add to a country's legislative burden since laws are already on the books. I would not venture to speak for the U.S. government, but I do not think that this will create any problems for us.
Ms Morency is indicating to me that the United States may have signed, but not yet ratified, the Convention. Therefore, I apologize for misleading you. Perhaps Ms Morency would like to add something further.
[English]
Ms Morency: They are also active participants in the discussions that we have had at the international level in support of the optional protocol to the convention. They were very much involved in the World Congress in Stockholm. Notwithstanding their status with the convention itself, they are very much involved with the international community in trying to address these issues.
The Chair: Perhaps one could find an explanation in the fact that they cannot get an amendment through, either, which recognizes the equality of women.
Senator Pearson: My comments are supplementary to that because, to give our neighbours credit, they have signed the convention. They have not ratified it.
Senator Beaudoin: Yes, but it means nothing if the Senate does not ratify it.
Senator Pearson: We are told the problem is that when the Americans ratify international treaty, they pull it into their legislation much more rapidly than we do. There are two or three things in the convention. For example, certain states in the United States still allow the death penalty for children.
Senator Beaudoin: That may be the answer.
Senator Pearson: That is completely against the Convention on the Rights of the Child. I have been told that the intention of this current administration is to ratify the Convention against Discrimination against Women and then to ratify the Convention on the Rights of the Child. We will be hopeful.
As Ms Morency has said, on all these areas on prostitution, pornography, and so on, they are extremely cooperative. In fact, they sometimes have laws that are a bit better than ours.
The Chair: I should like to ask the panel one question. This arises from the speech yesterday afternoon that Senator Andreychuk gave about Bill C-27. It was a thoughtful speech.
Senator Andreychuk spoke about the growing uneasiness of looking to the criminal law to find solutions. She said that there were clearly not just criminal law answers to the problems of child prostitution and of child poverty, which frequently drives children to child prostitution, and that we had to look at an inclusive social response.
She also said that we must look much more deeply at the root causes of what leads to sex tourism, what leads to child prostitution or the use of children in prostitution, and the whole aspect of aboriginal children.
She concluded that videotaping and screens certainly have some value, but it is still an horrendous process for the child, and it will be so much better if we can prevent these children from finding themselves in these situations.
I could not help but reflect on our own situation in many aboriginal communities, which are small. It would not help to take a mobile taping unit there. Everyone knows who is the victim and who is the perpetrator within these very small, isolated communities.
I should like to know what the Department of Justice, and this particular branch, is doing in cooperation with provincial governments to try to address some of the root causes of these problems.
Ms Angers: What was raised the most often during the national consultations, in each province it was raised, was the fact that criminal justice is not the solution. We can be part of the solution. We can help to enforce the law, but that will not solve the problem. As you say, the problem is root causes.
We have research to the effect that persons who engage in prostitution were sexually abused, came from violent families, et cetera. The Federal-Provincial Territorial Working Group on Prostitution was established in 1992 to try to bring together the people who can deal with that -- that is, not only the federal government but also the provinces -- because social services and education can only be addressed by the provinces and the territories.
One of the main recommendations that was supported during the consultations was to have outreach services to help prevent kids from engaging in prostitution. Another recommendation was to deglamourize the profession. I believe it was the film Pretty Woman which portrayed that being a prostitute was so much fun because you can find a man, fall in love, and so on.
Some measures in the community are being taken to address this problem. Communicating for the purpose of prostitution, namely, soliciting in the street, is a problem for some communities. We are trying to work together to establish a better way of addressing the problem from a multidisciplinary perspective.
The working group will be tabling its report this fall, bearing in mind the consultations. It is no secret to say that one of the big recommendations of the working group will be to develop services that help not only children who are involved in prostitution but also adults who are involved in prostitution, to help them out of the trade if they are willing to get out, and to prevent them from entering the trade.
The Province of British Columbia, for instance, is working very actively in trying to address these root causes, as is the Province of Nova Scotia. Nova Scotia had a ring of pimps and it got rid of them.
Some things are being done aside from the criminal justice perspective, but in the sphere of our competence, it is our way of trying to tackle the problem.
The Chair: Thank you for your presentation today.
Honourable senators, are you comfortable with proceeding clause by clause at this time? If so, could we have a motion to that effect?
Senator Lewis: I move to report the bill without amendments.
The Chair: It has been moved to report the bill without amendment. Is there agreement on both sides?
Senator Nolin: Yes.
Hon. Senators: Agreed.
The Chair: Carried.
The committee adjourned.