Moved second 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).

She said: Honourable senators, I rise today to speak at the second reading of Bill C-291, a bill that will change the term “child pornography” in the existing Criminal Code to the more comprehensive phrase “child sexual abuse and exploitation material.”

This might not seem like a significant change, but words matter. They particularly matter where they impact the lives and the futures of children, our most vulnerable citizens.

Before proceeding further, I’d like to recognize the contributions of the members of Parliament who are responsible for bringing this important bill into existence. This initiative is being advanced by my Conservative caucus colleague Mel Arnold, the MP for North Okanagan-Shuswap in British Columbia. The author of Bill C-291 was another of my caucus colleagues, MP Frank Caputo.

Mr. Caputo proposed this bill stemming from his time as a Crown prosecutor in the Province of British Columbia. He saw a problem with the current system and set about trying to change it. When Mr. Caputo ran for election as a member of Parliament in the 2021 election, he spoke about this idea with voters in his constituency on their doorsteps, and he found Canadian voters were as concerned as he was about the need to protect our children from exploitation and abuse. So when he was elected as a member of parliament for the first time in 2021, Mr. Caputo knew that this initiative would be the subject of his first private member’s bill.

Given the limited opportunities of private members’ business to be chosen for debate under the House of Commons’ private member’s bill lottery system, Mr. Caputo traded his bill with Mr. Arnold, who had an earlier spot in the order. Kelowna-Lake Country Member of Parliament Tracy Gray traded her private member’s bill spot with Mr. Arnold so that he could bring forward Bill C-291 even faster. I want to thank my Conservative colleagues for their great teamwork on this bill, working together to see that this initiative is passed as quickly as possible for the good of Canada’s children.

Allow me to return, then, to the substance of the bill. Why is changing the legal terminology from “child pornography” to “child sexual abuse and exploitation material” so important? It is a matter of recognizing and naming this material for what it is — the abuse and exploitation of children. The word “pornography” implies that there is a consensual element to it, but this is never the case where a child is involved, particularly in a power imbalance with an adult. Further, the word “pornography” sickly implies an element of entertainment rather than portraying this material for the crime that it is — the vile and degrading abuse of the innocence of children.

The new phrase doesn’t materially change how the law would be applied. All of the elements previously covered under the term “child pornography” would be covered under this new term. Child pornography was first introduced as a Criminal Code offence in 1993. The current offence in the Code reads as follows:

163.1 (1) In this section, child pornography means:

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;

(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or

(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

When Mr. Arnold first introduced Bill C-291, the bill suggested replacing “child pornography” with the term “child sexual abuse material.” The House of Commons Justice Committee amended this bill to include “and exploitation” to better encompass the entirety of the offence. However, the committee was careful to clarify that this addition would not widen the current interpretation of the offence, just better reflect what is already in the current definition.

The term “child sexual abuse and exploitation material” is in keeping with a global trend away from the term “child pornography” for some of the reasons I have already mentioned. The European Parliament passed such a resolution in March of 2015, which stated that it:

Believes it essential to use the correct terminology for crimes against children, including the description of images of sexual abuse of children, and to use the appropriate term child sexual abuse material’ rather than ‘child pornography’ . . .

Law enforcement agencies have also moved away from the term “child pornography” and toward language describing child sexual abuse and exploitation. Europol and INTERPOL use the terms “child sexual abuse material” and “child sexual exploitation material.”

Canada’s own RCMP Online child sexual exploitation website explains that the term “child pornography” is outdated “. . . and benefits child sex offenders because it suggests the offences are consensual acts” and “evokes images of children being provocative, rather than suffering horrific sexual abuse . . .” and states that “This can help child sexual offenders to justify and normalize their crimes.”

Modern discourse around this abusive and exploitative material is consistent with a respectful discussion of child‑centred and victim-focused healing for child sexual abuse survivors. Calling these crimes what they are is a way of naming the immense gravity of these offences against children, and recognizing the devastating impact this abuse has on their lives. The term “child pornography” minimizes this.

At a time when technology has meant the wide proliferation of sexually exploitative material victimizing children, these heinous crimes against children remain indefinitely online, destroying child victims again and again with each replay. The insidious and overwhelming nature of the global internet haunts victims desperate for the removal of material depicting their abuse. The torment of this exploitation extends well beyond any physical or sexual crime — it is the victimization of a child’s mind, their spirit and, in all too many cases, their future.

One victim of child sexual exploitation, now an adult, put it this way:

Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them—at me—when I was just a little girl being abused for the camera. . . . I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop —

— her offender. She said that when it was first discovered what her offender did:

I went to therapy and thought I was getting over this. I was very wrong. My full understanding of what happened to me has only gotten clearer as I have gotten older. My life and my feelings are worse now because the crime has never really stopped and will never really stop. It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused . . . and is getting some kind of sick enjoyment from it. It’s like I am being abused over and over and over again.

The statistics on the sexual abuse and exploitation of Canadian children are shocking. With the onset of the COVID-19 pandemic and the isolation of mandatory lockdowns, the increase in rates of crimes against children are staggering.

Statistics Canada reports that the rate of police-reported child pornography has been on an upward trend since 2008, with 11,790 incidents of child pornography reported by police in 2021. That trend has increased significantly since the pandemic, with a 47% increase in 2019, and a 31% increase from 2019 to 2021.

Between 2014 and 2020, incidents of police-reported child sexual abuse and exploitation more than tripled. Sexual crimes against children also increased through the pandemic, rising 14% in 2021 alone.

Of course, many of the child sexual abuse and exploitation crimes against children occur online, and this has also increased significantly with the pandemic, as people have been more likely to stay at home and internet use has been more widespread. Statistics Canada reports 61% of child pornography incidents and 20% of sexual violations against children occurred as cybercrimes.

Cybertip.ca, Canada’s online website for reporting child sexual abuse and exploitation, reported an unbelievable 815% increase in its reports of child luring between 2018 and 2022. Often the precursor to other sexual crimes against children, online luring is when someone coerces a child, usually by communicating through technology, engaging them in friendly conversation to facilitate committing a sexual crime against them, either online or by meeting in person.

The tip line saw other sharp increases in crimes against children during the pandemic. Statistics Canada reports that in 2021 alone:

. . . Cybertip.ca saw a 37% increase over the previous year in the overall online victimization of children, 83% increase in reports of online luring, 38% increase in reports of non‑consensual distribution of intimate images, 74% increase in reports of sextortion on online platforms often used by youth, and an increase in youth’s intimate images appearing on adult pornography sites and being shared on popular social media platforms . . . .

While the magnitude of these statistics is difficult enough to comprehend, it’s important to note that these numbers reflect only the incidents of child sexual abuse and exploitation that are reported either to the national tip line or to the police. Research shows that 93% of childhood abuse victims do not report the abuse to authorities before the age of 15, and two in three — 67% — speak of it to no one, including family and friends. The extent of this scourge is truly devastating.

And with Bill C-291, while we consider the terminology we use in the Criminal Code to better reflect the reality and gravity of the sexual abuse and exploitation of children, we cannot escape the truly horrific nature of this material.

A 2016 report produced by Cybertip.ca examined more than 150,000 reports they had received in the previous eight years. In it, they reviewed 43,762 images and videos of child sexual abuse material, and 78% of the media assessed contained images of prepubescent children under 12, with 63% of those children appearing to be under the age of eight. Disturbingly, Cybertip.ca reports that “As the age of the children decreases, the sexual abuse and sexual exploitation acts get more intrusive. . . .” The report also says that “6.65% of those children under 8 years old appeared to be babies or toddlers,” and “59.72% of the abuse acts against babies and toddlers involved explicit sexual activity/assaults and extreme sexual assaults.”

Explicit sexual images/assaults are defined as:

Images or videos of children in explicit sexual acts, ranging from self-masturbation to those sexual acts involving adults and other children.

Extreme sexual assaults are defined as those “. . . at the worst end of the scale such as acts involving bestiality, bondage, weapons, defecation/urination, etc.”

It comes to the point, honourable senators, where perhaps no words can truly describe the depravity of these disgusting crimes — these absolute sins — against innocent children. But it is apparent that calling this “pornography” is, frankly, disrespectful and insulting to child victims. There is nothing in these scenarios that is consensual. 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.

MP Mel Arnold said as much during debate on this bill in the House of Commons. He said:

What the Criminal Code currently calls “child pornography” is more severe than mere pornography because it involves children and cannot be consensual. It is exploitive and abusive, and the Criminal Code should clearly reflect these realities. So-called child pornographers are producers of child sexual abuse material. Those who distribute it are distributors of child sexual abuse material. Those who possess it are owners of child sexual abuse material. Those who view it are consumers of child sexual abuse material. These are the realities that compelled me to table this bill.

MP Frank Caputo quoted the Provincial Court of British Columbia Judge Gregory Koturbash in the decision for R. v. Large, a child-luring case:

The phrase “child pornography” dilutes the true meaning of what these images and videos represent to some degree. The term “pornography” reinforces the perception that what is occurring is consensual and a mutual experience between the viewer and the actor. These are not actors. It is not consensual. These are images and videos of child sexual abuse.

This material is scarring. Even for those who must review it, whether they are veteran police officers who must investigate thousands of these images online or jurors who are exposed to this material in the course of a trial, anyone who deals with these images or stories of children being sexually exploited is disturbed by it. MP Frank Caputo, who, as I mentioned, was formerly a Crown prosecutor, described his experience with this kind of material:

We will have police officers at a constable level who go through, literally, 3,000 media files. They could be out on the streets. They could be investigating robberies. They could be investigating break and enters, but no, they are looking at media that will probably harm them psychologically maybe for the rest of their lives, maybe for a few months.

As a former prosecutor, I remember that some of the most scarring things were reading about what was in these files. I did not generally have to look at them. Those times as a prosecutor that I had to deal with these things even in the written word, I can say I viewed it as traumatizing, disgusting, vile material.

We must address this material with the gravity and severity it deserves — by naming it as the abuse and exploitation of our country’s most vulnerable citizens, not as consensual “pornography.” This material is so devastating it can have a profound effect on even the most experienced of law enforcement professionals.

Speaking of which, my home province of Saskatchewan has an integrated provincial police unit to combat online child exploitation called ICE, the Internet Child Exploitation Unit. The Saskatchewan government funds $2.1 million for nine ICE investigator positions in three municipal police services — Regina, Saskatoon and Prince Albert — plus five resources with the provincial ICE unit. The team focuses on investigating cases of child exploitation and apprehending perpetrators, while promoting prevention and identifying vulnerable child victims. I was proud to support this important work when I worked as the Saskatchewan Minister of Justice’s chief of staff for nearly five years.

The ICE unit in Saskatchewan is regarded as one of the best in the country. It boasts a 98% conviction rate once charges have been laid, and it has been an integral part of many local and international child abuse and exploitation crime investigations. I know that Saskatchewan’s ICE unit has unfortunately seen the number of cases of child sexual exploitation increase in the province in the recent years of the pandemic, consistent with the statistical trend across the country. As I have worked on this bill, I have thought often of these Saskatchewan ICE officers, who must deal every day with the vile, exploitative, damaging material we’re discussing in this legislation. It is an incredible personal burden they carry for the sacrifice of service.

Child sexual abuse and exploitation must be eradicated, honourable senators, and as legislators, it is our duty to do whatever we can to move that goal forward. That’s why Mr. Caputo and Mr. Arnold proposed this bill in the other place, and that’s why I have chosen to sponsor it in the Senate.

Our Conservative caucus has a proud tradition of standing up for justice. Under Prime Minister Stephen Harper, our Conservative government established a number of measures to protect children from sexual predators. In 2012, we passed the Safe Streets and Communities Act, Bill C-10, which established new mandatory minimum penalties for several child exploitation offences while strengthening existing penalties. We also created offences to combat child luring and removed the ability for offenders to access house arrest and conditional sentences for child exploitation offences.

In 2015, the Conservative government passed Bill C-26, the Tougher Penalties for Child Predators Act. This bill also established several mandatory minimum penalties for offences concerning the exploitation of children, as well as some new maximum penalties. In addition, while our Conservative government was still in power, Parliament passed a Victims Bill of Rights to recognize the rights of victims of crime, including children.

Of course, in subsequent years, the courts have struck down many of the mandatory minimum penalties our government and previous Liberal governments established, even for the most serious offences. These include many child protection offences, like making, possessing and distributing child pornography, procuring a person under the age of 18, sexual interference with a minor under 16 and child luring.

The Trudeau government that followed in 2015 has made a point of dismantling many other mandatory minimum penalties. Of course, very recently this chamber sadly passed the repeal of several mandatory minimum sentences in Bill C-5, mostly for firearms and drug-related offences, as well as the expansion of conditional sentences for many crimes, including abduction of a person under the age of 14. If the Canadian public were to agree on mandatory minimum penalties for any type of crime, it would probably be for crimes involving the sexual abuse and exploitation of children. This is a line in the sand for most reasonable people. And yet, as the Liberals have removed mandatory minimum sentences, they have not shown any sense of urgency for strengthening child exploitation laws to protect children.

Honourable senators, it is time for us to act. We need to address the insidious and intractable evil of child sexual exploitation. The seriousness of this problem cannot be overstated, and Canadian children need our help. As my colleague and the sponsor of Bill C-291 in the House of Commons MP Mel Arnold said:

The data is truly shocking, but it is not enough for us as parliamentarians to be just shocked. These realities demand a response, especially our response as parliamentarians. By passing this bill, we can strengthen our Criminal Code. We can acknowledge the true severity and often long-lasting effects of child sexual abuse material inflicted on victims. We can also demonstrate the responsiveness that Canadians expect and deserve from us as parliamentarians.

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.

Bill C-291 passed swiftly in the House of Commons with unanimous support. I hope its passage through the Senate will also proceed quickly so that we can join together and do our part as parliamentarians to truly protect Canada’s children. Thank you.

I want to start by thanking Senator Batters for that very thoughtful and emotional speech. I want to thank MPs Caputo and Arnold for having started the bill and congratulate you for carrying it on here.

I would like to think on some level that we are becoming a more enlightened society. And yet, I think, when it comes to this issue — child sex exploitation disguised as child pornography — things are getting much worse, probably, in part, because of the internet and the availability of this horrible content to a lot of people.

In your discussions with Mr. Caputo, did he feel that things are getting worse, and more of this content is being produced over time, or is humanity getting any better on this issue?

I think, as I outlined in my speech, a large part of it is certainly with the proliferation of everything online. That’s what the statistics are showing. Yes, Mr. Caputo recently became an MP, but he was a prosecutor for some time before that. The statistics show that this is increasing and increasing. That’s why I said that we need to take action. This is not a huge step, but it’s one step — it’s an important step. Words matter — that’s why I think that we need to take this step at this point.

Yes.

Thank you for the question. No, I don’t think so. I read out the exact definition. This does not in any way impact the definition. The House of Commons committee made it very clear that this was in no way designed to change the definition. When the courts are considering laws, they often look back to Senate committees, and they will also look back to the House of Commons committee consideration. As someone who sits on the Legal Committee, and as the sponsor of the bill in the Senate, I’m sure that we will have many excellent legal witnesses who will give us guidance on that. That’s something that the courts will look to — the speeches that are given and the committee testimony — in regard to definitions. I don’t believe that definition will be changed in any way — it’s simply to acknowledge the severity of this particular crime.

Senator Batters, I want to start by commending you for sponsoring this bill. I have been concerned about this for a long time, and I think it is completely unacceptable for the term “child pornography” to be used in the Criminal Code. As you know, I work on these issues. Pornography is referred to as “adult entertainment,” and it is absolutely unacceptable for this term to be used to refer to sexual exploitation.

That being said, the term likely dates back to another time when no distinction was made and people were probably less bothered by its use. However, it is high time that term was changed, so I thank you for that.

I have a translation question for you that you may not be able to answer now. I have always used the French terms “exploitation sexuelle des enfants” and “matériel d’abus et d’exploitation des enfants,” but the French translation of the bill uses the term “pédosexuel” instead. It is not incorrect.

I just find it strange that the English version uses the term “child sexual abuse and exploitation material,” while the French uses a term that comes from the word “pedophile.” The term is not incorrect, but it is much less commonly used when talking about these issues. In general, we refer to child sexual exploitation, which is broader in scope.

You probably can’t answer my question right now, but perhaps the committee could check and see whether that is really the best term. If we really want to convey the gravity of this issue to ordinary Canadians, then shouldn’t the word “child” be used in the French version as well?

Thank you very much, Senator Miville-Dechêne, and thank you so much for all of the work that you’ve done on this very important topic. That’s an excellent question. I don’t have the French version of it with me, but that’s something that I’m sure we will study in great detail at committee — we want, of course, to have the best possible translation and words being used because, as I said, words matter, in French or in English.

Senator Batters, thank you so much for your time and collaboration with the House, and for sharing it this afternoon. I know it’s late in the day, and people are tired, but it’s really important. I think it’s timely — I can’t even use the word “pornography” when I’m talking to the families of people I work with. I find it absolutely disturbing, uncomfortable and insulting in 2023.

With that being said, I’m really quite happy to see this at this time — the data is alarming, disturbing and gut-wrenching. I’m not a lawyer — by changing the term, I wonder what that does in the latitude, the possibility and the work that a lawyer can do. Does it also change the scope and the reality of that work, in addition to finding the importance of calling this what it is?

It certainly does not impede the work of a lawyer. They took great care — I believe there’s even a particular section in the bill, and certainly in the work that was done in the House of Commons and at committee. Certainly, at the Senate Legal Committee, we will ensure that this is only a change in the term. It in no way impacts any of the definitions. Every single part of the bill simply intends to make that change from “child pornography” to “child sexual abuse and exploitation material.” I’m a lawyer; Frank Caputo is a lawyer — we want to ensure that this helps the situation. None of us want to do anything to impede that, and we’re quite confident that is the case.

I was referring to the enhanced part, not the impeding part so much. There have been interesting cases, and I’m wondering if it also, perhaps, enhanced your work.

Yes, as I indicated in my speech — and I’m sorry that it went on for a while, as it’s very dry in here, so I’m sorry about my voice on that. Certainly, this is something that’s being done internationally. There’s hope that it will be more understood by the general public that this is not something that should be even potentially considered as entertainment, art or anything like that. This is degrading, disgusting material. This is abuse of these children who are forced to be in this scenario. This is not for entertainment. Yes, I’m hopeful that it will help improve the situation, even in a small way. Thank you.

Will you take a question, Senator Batters?

Yes.

It’s a great initiative — and great research on your speech. Thanks from all of us for the work you did here. Your friend and colleague Frank Caputo is my former student; I feel bonded to this issue in a certain way. It reminds me of how old I am.

My question is as follows: I agree with you that words matter, but do you — or the sponsors of this bill in the House — have a view about their comfort level around the substance of the offence as well? You mentioned high levels of conviction in Saskatchewan in cases where charges are laid, but what’s your read on that, and whether that’s also a dimension of what might need to be considered here?

Thank you very much, Senator Cotter. I was going to mention that not only is Frank Caputo a proud product of the University of Saskatchewan law school, but so is the judge, Greg Koturbash, whom I quoted in that case. I don’t know if you taught him as well — anyway, thank you. Kudos for U of S Law.

That’s the thing about private members’ bills. The most successful ones try to take a particular thing and make that change.

So perhaps there is something more to be done about the definition or what have you, but this is the particular part that Mr. Caputo and Mr. Arnold decided to go with, and I think that’s smart. Sometimes a private member’s bill can get a bit too all‑encompassing.

Perhaps that’s something to look at in the future, but this is what we’ve chosen to do right now. Thank you.