Honourable senators, I rise today to speak as critic at third reading 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).

Before I begin my remarks, because this has been a particularly heavy set of bills, I want to mention that the subject matter of the bill before us can be personally traumatic for some, and because we are all individuals with varying degrees of lived experience, I urge any of my colleagues, Senate staff or members of the public listening to take a break if you feel overwhelmed and to seek out support if you need it.

Colleagues, as Senator Batters mentioned in her speech last Thursday, this bill is about labels, and labels are a very powerful thing. We all use labels to conceptualize and even generalize life, objects, living things, but we also often label people. Labels can be positive, but they can also be negative.

With Bill C-291, we as senators and with our colleagues in the other place, as parliamentarians, are being asked to change the label of what we now call child pornography.

What we label as pornography in and of itself is not necessarily illegal and even falls under the protection of freedom of expression when it involves consenting adults. However, when it involves a child, a minor that cannot ever consent to what is happening to them, it is a horrible thing and it is not a matter of freedom of expression.

To label something as child pornography muddies the waters, because, again, children, by definition — and I cannot stress this enough — cannot consent to what is happening. Therefore, to label such material as pornography, in my opinion, is the wrong term to use when it involves children and is abhorrent to most Canadians.

I applaud and thank members of Parliament Mr. Mel Arnold and Mr. Frank Caputo for championing this issue and taking the first steps with Bill C-291. Bill C-291 correctly — and rightly, in my opinion — aims to change the term “child pornography” to “child sexual abuse and exploitation material” because that is what it is, and it is not just the act of creating such material that is abusive and exploitative; every time an image is shared, a video is downloaded or streamed, the victim — the child — is revictimized and continues to be exploited, effectively, forever.

During my second reading speech, I made references to international uses of the updated term and presented some statistics about child sexual victimization. I do not intend to rehash those points today. Rather, I want to talk to all of you about duty and responsibility, the duty that we have as parliamentarians to provide clarity in law.

That responsibility falls onto each of us as legislators to ensure our laws provide clear and unambiguous language, whether that is in a government bill, a Senate public bill or a private member’s bill, and that is what Bill C-291 does. It provides clear and unambiguous terms to identify a crime that victimizes children.

When this bill was before the Legal and Constitutional Affairs Committee, senators debated the observation that was appended to the committee’s report on Bill C-291. That observation noted, and I quote:

. . . how the Criminal Code has been amended in a piecemeal manner for many decades and has become cumbersome, sometimes repetitive, or inconsistent, and is in need of comprehensive reform . . . .

I am not a lawyer, but I found that interesting, particularly in the context of Bill C-291 because it itself is a bit of piecemeal fix to the Criminal Code. It is quite narrow in scope for what it wants to change, but culturally changing something like language means a lot.

While changing the language is a great step forward, I am left wondering where we go from here because, as I said earlier, Bill C-291 is a first step. I call it a first step because during his testimony at the Legal Affairs Committee, I asked the bill’s author, MP Frank Caputo, where we, as in Parliament, go from here. He raised some interesting points in response to my question, and in going back to what he said in response to other honourable senators, three things struck me on where this bill seemingly comes up a bit short.

I am a friendly critic of the bill, but a critic nonetheless, and I’d like to highlight those for you now.

The first is awareness of crimes by the public and by the victims themselves where a child is sexually abused or exploited. Mr. Caputo recounted from his time as a Crown prosecutor a victim not realizing until later in life that they had been sexually abused as a child.

And to someone like me with a health care background, this tracks in many ways because we know that many victims of child sexual abuse and exploitation can be afraid to speak up, particularly if the assailant is someone close. Many also repress their memories as a response to trauma, and worst still, many victims often still blame themselves. All of us understand that there are likely many more victims out there, and this crime is more widespread than we can possibly imagine.

While this bill does not promote awareness of the breadth and scope of the abuse and exploitation material of children, our debates do have power. Moving forward, we as parliamentarians have a duty to broaden the conversation and the debates we have about the violation of society’s most vulnerable because if we do not, that is how it becomes easier for crimes like this to go unnoticed, under-reported and undetected. But in our future conversations, including even here today, we bring awareness to the matter. People are watching.

The second shortcoming is the challenges in gathering evidence and prosecuting crimes where a child has been abused and exploited. This is because positively identifying victims can be a challenge, owing to the global nature of the crimes, and once the images have been shared electronically, we know that the images are spread indefinitely over time and space — and it is not for lack of trying.

The RCMP stood up and run the National Child Exploitation Crime Centre here in Canada, which we visited. They work very closely with the U.S. Department of Justice, which partnered with the National Center for Missing & Exploited Children. Together, and in conjunction with other allies, these countries provide law enforcement with the means to identify victims of child sexual abuse and exploitation material, but there are limits as much of this material is found, stored and shared online, and as I said previously, it can criss-cross the globe in cyberspace instantly, leading to the difficulty — and often delays — when it comes to securing the material and identifying the victims. Lack of evidence makes it very difficult to prosecute, but it can be even more challenging for law enforcement when terms are inconsistent with those of our global partners.

At this time, I must recognize the vicarious trauma experienced by the investigators and analysts who review this most heinous and dehumanizing material that victimizes children. We are forever thankful for your dedication and your perseverance in trying to protect children.

I am going back to the idea of awareness for a moment because even the debate we are having today about the bill improves awareness, and more awareness could mean someone reports potential child sexual abuse and exploitation to police. But that potential reporting means nothing if law enforcement cannot detect, investigate and eventually prosecute someone victimizing a child. In order to detect, investigate and prosecute perpetrators, we as parliamentarians need to call for increased and sustained resources to better support all judicial processes in order to bring perpetrators to justice.

The third shortcoming that I want to bring to your attention is sentencing disparity when it comes to sexual abuse and exploitation of children. I can tell you that I was struck by the disparities in sentencing in Canada.

Senators, did you know that the maximum sentence for breaking into a person’s home is life in prison? However, the maximum sentence for sexual assault is ten years, and for sexual assault of a child — guess — is fourteen years.

Highlighting this disparity, how can we look at a victim of child sexual abuse and exploitation, who can never escape from the source of their harm, who will be permanently damaged and left traumatized — effectively serving a life sentence of their very own — while their perpetrator, if convicted, could serve a shorter sentence than someone who breaks into their home?

I am not looking to get into the broader debate on mandatory minimums, but Mr. Caputo pointed out in testimony that despite the previous government’s inclination towards mandatory minimum sentencing, most of the mandatory minimums brought into law were regarding guns and drugs, not sex crimes and certainly not ones involving children. So it would seem that even the previous government was unaware of or underappreciated the scope of these crimes. This is why awareness is so important.

This is where we as parliamentarians can work to update the Criminal Code and give future considerations to the appropriateness of sentencing where children are sexually abused and exploited because all the awareness in the world, even proper and timely investigations and prosecutions, will mean nothing if there are not appropriate penalties for sexually abusing and exploiting children.

What I see as these three shortcomings of the bill that I highlighted today — namely, awareness, investigation and prosecution and sentencing — are not addressed in Bill C-291, but that does not mean I do not support the bill. As I said, passage of this bill is an essential first step, and I want to highlight to honourable senators that this is just the start of a broader conversation that we as legislators need to have.

In closing, I want to share with you the other part of the committee’s observation, and again I quote:

. . . The committee repeats its past recommendation that an independent body should undertake a comprehensive review of the Criminal Code. The revived Law Commission of Canada could undertake such a review, which should include a study of all provisions in the Code that pertain to crimes against vulnerable persons.

And children are very vulnerable persons.

Colleagues, I think this is an excellent suggestion. However, I suggest that we, as senators in an independent Senate, could undertake such a review. As part of such a review, the Legal and Constitutional Affairs Committee could review the Code in a more comprehensive way, and I will leave that for you all to ponder going forward.

But, again, we need to take that first step, which is passing Bill C-291 and updating what we currently label child pornography to call it what it actually is: child abuse and exploitation material. While I am the critic of the bill, I am asking you to join me in supporting this bill at third reading. Thank you.

Senator Patterson, would you take a question?

Yes.

It seems to me that if the reason for changing the term from “child pornography” to “child sexual abuse and exploitation” is that there are forms of pornography that are legal, then changing the term would imply, from a narrow legal sense, that there could be a form of child pornography that is also legal. I’m not saying it is, but it would seem to me that this would be the logical conclusion.

I’m sure this issue was discussed in committee, and I would be interested to know how the committee resolved this question.

Thank you, Senator Woo. I think before we say anything, child exploitation is illegal. So “child” and “pornography” in the same term is illegal. Yes, that conversation was had, and one of the reasons why the word has been expanded is because there were a number of recommendations that came through from the other house and with our international partners, even through the UN and other main bodies that deal in this world of trying to detect, investigate and prosecute. The Justice and Human Rights Committee, for example, said they needed to include the word “exploitation” — get away from “pornography,” use “exploitation” and use the words that describe what it was.

Even the Department of Justice emphasized that adding “child abuse and exploitation material” would actually help to capture some of the areas you talked about initially in your conversation, which are things like fictional works and could be anything. I do not wish to go into that here.

So while pornography is legal between consenting adults, and the sharing of it must be between consenting adults, as soon as you add the word “child” to it, it is always illegal, because children cannot consent.

I don’t disagree with your characterization of child exploitation and so on, but you’ve sort of said why child pornography, by definition, is wrong already. Perhaps it’s just about using terms that more accurately describe the problem.

I guess all I’m asking is whether some clever lawyer paid by some despicable purveyor of this kind of activity and material would be able to use a loophole precisely because we have moved away from a term, because the word “pornography” allows for some legality under certain circumstances. I’m just wondering if that possibility was raised and if we have shut that down.

Thank you again. I’m not a lawyer, but I truly understand where you are going. The challenge is the word “pornography,” if that’s what you’re saying. So can a clever lawyer come back and say, “Well, it’s child pornography”? Child pornography is illegal.

Again, I’m not a lawyer, and I will have to leave that to the very clever people in the room, but the one thing that the different people who spoke said — including the Department of Justice — is that this helps close that door and allows us to truly address the actual illegal behaviour against the victim, who is the child. I’m sorry that’s not clearer. I believe it’s a legal question.

Senator Batters, you are correct.

Are senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and bill read third time and passed.)