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37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Wednesday, October 8, 2003

1535

The Chair (Hon. Andy Scott (Fredericton, Lib.))

Mr. Nicholas Bala (Assistant Dean, Faculty of Law, Queen's University, As Individual)

1540

1545

The Chair

Ms. Carole Brosseau (Counsel, Research and Legislation Service, Barreau du Québec)

1550

1555

The Chair

Mrs. Megan Williams (National Director, Canadian Conference of the Arts)

1600

Mr. Frank Addario (Legal Counsel, Canadian Conference of the Arts)

1605

The Chair

Ms. Audrey Churgin (National Director, Canadian Artists' Representation)

1610

The Chair

Mr. Vic Toews (Provencher, Canadian Alliance)

1615

Mr. Nicholas Bala

Mr. Vic Toews

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

1620

Ms. Carole Brosseau

Mr. Richard Marceau

Ms. Carole Brosseau

Mr. Richard Marceau

Ms. Carole Brosseau

Mr. Richard Marceau

Ms. Carole Brosseau

Mr. Richard Marceau

Ms. Carole Brosseau

1625

The Chair

Mr. Inky Mark (Dauphin—Swan River, PC)

Mr. Frank Addario

Mr. Inky Mark

Mr. Frank Addario

Mr. Inky Mark

Mr. Frank Addario

Mr. Inky Mark

Ms. Carole Brosseau

1630

Mr. Nicholas Bala

Mr. Frank Addario

The Chair

Ms. Wendy Lill (Dartmouth, NDP)

1635

The Chair

Ms. Wendy Lill

The Chair

Mr. Nicholas Bala

Ms. Wendy Lill

Mr. Frank Addario

The Chair

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

1640

Mr. Frank Addario

Mr. Derek Lee

Mr. Frank Addario

Mr. Derek Lee

Mr. Frank Addario

Mr. Derek Lee

Mr. Frank Addario

Mr. Derek Lee

Mr. Frank Addario

Mr. Derek Lee

Mr. Frank Addario

Mr. Derek Lee

Mr. Frank Addario

Mr. Derek Lee

Mr. Frank Addario

Mr. Derek Lee

Mr. Frank Addario

Mr. Derek Lee

Mr. Frank Addario

Mr. Derek Lee

Mr. Frank Addario

Mr. Derek Lee

Mr. Frank Addario

Mr. Derek Lee

1645

Mr. Nicholas Bala

Mr. Derek Lee

Mr. Frank Addario

The Chair

Mr. Richard Marceau

Ms. Carole Brosseau

Mr. Richard Marceau

Ms. Carole Brosseau

Mr. Richard Marceau

Ms. Carole Brosseau

Mr. Richard Marceau

1650

Ms. Carole Brosseau

Mr. Richard Marceau

Ms. Carole Brosseau

Mr. Richard Marceau

The Chair

Mr. John McKay (Scarborough East, Lib.)

Mr. Frank Addario

Mr. John McKay

Mr. Frank Addario

Mr. John McKay

Mr. Frank Addario

1655

The Chair

Ms. Carole Brosseau

Mr. John McKay

Ms. Carole Brosseau

The Chair

Mr. Inky Mark

Mr. Frank Addario

Mr. Inky Mark

Mr. Frank Addario

The Chair

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

1700

Ms. Carole Brosseau

1705

The Chair

Mr. Nicholas Bala

The Chair

Ms. Wendy Lill

The Chair

Mr. Nicholas Bala

The Chair

Ms. Carole Brosseau

1710

Ms. Carole Brosseau

The Chair

Mr. Christian Jobin (Lévis-et-Chutes-de-la-Chaudière, Lib.)

Mr. Nicholas Bala

The Chair

Mr. Richard Marceau

Ms. Carole Brosseau

The Chair

Mr. Frank Addario

1715

The Chair

Mr. John McKay

Mr. Frank Addario

Mr. John McKay

Mr. Frank Addario

Mr. John McKay

Mr. Frank Addario

1720

The Chair

Mr. Inky Mark

Mr. Frank Addario

Mrs. Megan Williams

The Chair

Ms. Audrey Churgin

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

Mr. Frank Addario

The Chair

Ms. Carole Brosseau

1725

The Chair

Ms. Wendy Lill

Mr. Nicholas Bala

Mr. Frank Addario

The Chair

Mr. John McKay

The Chair

Mr. Vic Toews

1730

The Chair

Ms. Carole Brosseau

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 068

2nd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, October 8, 2003

[Recorded by Electronic Apparatus]

¹ (1535)

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): Bienvenue tout le monde. Welcome, everyone.

I call to order the 68th meeting of the Standing Committee on Justice and Human Rights, pursuant to the order of reference of Tuesday, April 1, 2003, on Bill C-20, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

Today we have as witnesses Nicholas Bala, the Assistant Dean of the Faculty of Law at Queen's;

[Translation]

two representatives from the Quebec Bar: Carole Brosseau, Counsel, Research and Legislation Section, and Denis Mondor, Vice-President;

[English]

the Canadian Conference of the Arts, Megan Davis Williams, National Director, and Frank Addario, Legal Counsel; and from the Canadian Artists Representation, Audrey Churgin, National Director.

I want to apologize, the committee will fill up here. We're debating a justice issue in the House, so you'll see some coming and going. It's the nature of what we do here. I offer my apologies. It's certainly no indication of the level of interest, and everyone will have access to blues and transcripts later.

So welcome, everyone. I presume you've been advised of the way we operate. I know many of you have been here before. We would try to keep opening comments inside of ten minutes. If there are two people making the presentation in some instances, please keep that in mind. I feel very badly sometimes for the second person in a presentation who has been brought in at nine minutes and thirty seconds, and I have to do the dirty work. Please keep that in mind.

I welcome your interventions. We're going to go with the order presented in the agenda for today. We'll be starting with Nicholas Bala, the Assistant Dean of the Faculty of Law at Queen's University.

Please proceed.

Mr. Nicholas Bala (Assistant Dean, Faculty of Law, Queen's University, As Individual): Thank you. It's a privilege to be here.

I should say by way of introduction that although I was associate dean, I'm now just here as a leader of a research group that involves myself and some colleagues in the psychology department and the psychiatry department of Queen's University.

We also have Janet Lee, who is a worker in the victim witness program in Kingston in the court system.

We've been involved in a research project for a number of years, partly funded by the SSHRC, looking at a range of issues about child witnesses. In our brief and in my remarks I'm going to focus just on what is now section 16 of the Canada Evidence Act, clauses 25 and 26 of the bill, in the discussion. I'd certainly be willing to engage in other issues, but my main research focus has been on these provisions.

In the course of our research, we have been doing some court observation. We've been looking at cases that have been decided. We have also been doing some lab work, which I'll be talking to you about, and I've been doing some judicial education programs and had an opportunity to talk to some judges about some of the amendments that are being proposed here.

I certainly don't want to suggest that I'm coming here on behalf of the judiciary, but some of my comments and concerns about the specific provisions that are being proposed reflect some comments that I've heard from some judges at certain points, as well as my views and those of my colleagues.

The present section 16 is very problematic, and I very much commend the effort to reform and amend this provision. Right now, when a young child, or a child under the age of 14, comes into court, unlike an adult.... An adult is simply put on the witness stand, they're asked to take an oath, and they can testify.

There is in fact some interesting research that indicates that a substantial portion of adults who testify cannot give a meaningful definition of “an oath”, but they're allowed to testify. I'm not saying they shouldn't be, but we say you just give an oath and away you go and testify; we're not going to inquire as to what your understanding of that process is.

Children, however, are put through an intensive questioning process. In fact, the younger the child is, the more intense that process of inquiry: Do you know what an oath is? Do you know what a promise is? Do you know what the concept of truth is? Do you know what the concept of a lie is?

Young children have a great deal of difficulty in answering those questions. At the very least, it's a very intrusive and embarrassing process, and many judges find that they're uncomfortable.

What is an oath? Some people--and it's not uncontroversial--would say, well, an oath is a commitment to God to tell the truth. So here we have this six-year-old child who is asked, can you give us a definition of that, and if you're making a commitment to God, do you believe in God? Do you know what God is? Do you know what God will do if you tell a lie under oath?

Children are asked these kinds of questions, which I would submit are very inappropriate, very intrusive, and often don't have a meaningful answer. As well--I'll come to it in a moment--it's actually counterproductive in terms of a search for the truth to ask these kinds of questions.

There are cases where children have given testimony after promising to tell the truth, and the trial judge was satisfied that the child understood the promise. There's a conviction, and then the court of appeal says, well, this child may well have been telling the truth, the child understood the difference between the truth and a lie, but we didn't think there was a satisfactory explanation of what a promise is--a promise. So now we're going to throw out the conviction and you can have a new trial, three years later, and the crown says it's not going to bother to appeal.

The concept of “promise” is very difficult, even for adults, and with greatest respect, even some politicians have trouble with giving a good explanation of what a promise might be, and so on.

Let me tell you for a few minutes about our lab research. We've done some very interesting work with young children. I have videotapes, which I'd be happy to show you after, of children going through this process. We have a number of different experiments. We've also been working with children in the courts.

But one of the things we found is that if a child is asked questions--for example, do you know the difference between the truth and a lie?--and they give a good answer or not a good answer, there is no relationship between whether they can successfully answer questions about a truth and a lie and whether they will actually tell you the truth.

¹ (1540)

In other words, children who may give you a good description or explanation of what the difference is between a truth and a lie may nevertheless lie to you, and children who cannot answer those questions will nevertheless tell you the truth. We have a number of different simulations of that; there's no relationship between their answers and their ability to tell the truth, or their willingness to tell the truth, which isn't surprising. Perhaps the most famous lie in the world was told by a former law professor, Bill Clinton. I'm sure he could give you a very good definition of an oath, but nevertheless would proceed to tell you a lie. So that kind of inquiry is really not meaningful as to whether a witness should be permitted to testify.

On the other hand, interestingly, we have found the act of promising has significance in that when a child, and perhaps adults, but we were doing research with children, is asked to promise to tell the truth, not to define what it means--children, even at the age of three or four have an idea of what a promise means, from their parents--he or she is statistically more likely to tell the truth than a child who is not asked to promise. That symbolic commitment is important. Whether or not they can tell you what a promise is, the act of promising is important. It gives them a commitment.

Interestingly enough, if a child has made a promise and then tells a lie, it may be easier to identify a child as lying after they've made the promise because they're more uncomfortable about lying after having made a promise. So that commitment process is important for children, both for their telling the truth and for the credibility assessment.

Speaking now on what our research tells us about proposed subsection 16.1 as it's now drafted, it is certainly an improvement over the present law, because we're getting rid of the abstract inquiry into questions about truth and lie and the meaning of promise. But we have some concerns about this provision as it is now drafted. One of the concerns is that there is now no expectation in the legislation that children will promise to tell the truth, so that an adult or a person over the age of 14 will be asked to give an oath, but for a child under that age there will be an inquiry as to whether he can meaningfully understand and answer questions. That's an important inquiry to have, but the child will simply testify.

I would submit to you that it's appropriate to ask children, just as we ask adults, to make a commitment to promise to tell the truth. That doesn't mean they will all promise to tell the truth, but it's more likely they will tell the truth if they made a promise than if they didn't. With adults, we ask an adult to give an oath. Why aren't we going to ask children to make a commitment, a promise to tell the truth?

I think it's important also for people in the justice system, for judges or juries, to say they've heard this child give a promise and they'll treat that in the same way as they would the oath of an adult.

If that provision is in there, I think it's important that there be a specific statement in the act that while the child should be asked to promise to tell the truth, there should not be questions about the child's understanding of the meaning of promise, oath, truth, or lie. We don't ask adults to define those terms; we shouldn't ask children to do so. Children can often use words. There's a lot of research that shows that children by age three or four have an understanding of the word “promise”, but they can't define it. You may say that if they can't define it, how do they know what it means.

I'll give you another example. You have a two-year-old child and you ask him to define the word “ball”. What would be the definition of a ball? A spherical object that bounces and can be used for play. A child can't give you a definition, but would that mean the child doesn't know what a ball is? No. You would ask a child to show you a ball, and a child could identify a ball. So you would say that a child of two, who couldn't be a witness at least, could identify a ball for you. Going through an abstract definitional exercise is not appropriate with children. It doesn't tell you whether they understand what the concepts are.

Another concern we have about this provision has to do with the fact that in specific cases it would be appropriate for a judge to instruct a child about the importance of telling the truth, and I would note for you that the Youth Criminal Justice Act does require judges to instruct children under the age of 12 about the importance of telling the truth before they testify. It may well be appropriate to have that in this provision.

¹ (1545)

Another concern we have about this legislative provision as it is now drafted has to do with the age. Right now, the age you have for this inquiry is the age of 14. We would suggest to you that the age of 12 may be a better age. It's a more developmentally appropriate age, in that by the age of 12 most children are starting or are in adolescence, they're psychologically and physically in adolescence. It is also probably a more significant legal age, in that by the age of 12, if a child were lying, the child could be charged with perjury. Of course there are very few prosecutions for that, but at least conceptually you're saying that 12 is when we treat you as a young person, the age when we hold you accountable under the criminal law. So it might be a better age than 14, both developmentally and legally.

Finally, as it is now drafted I think proposed subsection 16.1(3) is problematic, in that it provides that a party who challenges the capacity of a proposed witness under the age of 14 has the burden of satisfying the court that the proposed witness is unable to understand and respond to questions.

One of our concerns is that the wording of that paragraph seems to suggest that a defence counsel who is concerned about a child testifying might start to cross-examine the child in the initial competency process, and that is not now done. It's appropriate for the judge or the person calling the child to be asking the questions at that stage. I think this provision could be reworded to indicate that while the defence counsel might appropriately raise the issue, there should not be cross-examination by the party challenging the child at that moment.

In our brief that you have, I and my colleagues summarize some of our concerns and also propose some words that reflect the kinds of concerns I've put before you today.

Thank you for your attention. I'd be pleased to answer questions when the time comes, either under this provision or more generally about some of the other issues.

[Translation]

The Chair: Thank you.

The next 10-minute period is for the representatives from the Quebec Bar, Ms. Brosseau and Mr. Mondor.

Ms. Carole Brosseau (Counsel, Research and Legislation Service, Barreau du Québec):

Generally speaking, I will be following the outline that appears in the brief, which you have probably received.

At the outset, I would like to emphasize the fact that an overhaul of the Criminal Code has been promised recently. The bill you are studying at the moment—and this has nothing to do with the merits of the bill and is not a comment on it—would add new provisions to the Criminal Code, rather than reassessing its existing provisions, for the most part.

At a round-table meeting, the Minister of Justice asked criminal law stakeholders to comment on the difficulties caused by the current Criminal Code. One of the difficulties mentioned was precisely the ongoing addition of new provisions. Even though we agree with some of the provisions of the bill, we note that the same legislative technique has been used again, and we are still concerned about that.

That said, my first comment will be about the consent by adolescents to sexual relations, and more specifically about clause 4 of the bill, which expands the scope of section 153 of the Criminal Code to include, among other things, “anyone who is in a relationship with a young person that is exploitative of the young person.”

The Barreau du Québec would like to point out that it believes that subclause 153(1.2) of the bill is superfluous. In fact, in R. vs. Léon, the court found that the term “dependence” necessarily included the sexual exploitation of the adolescent. In light of the general comment I made at the beginning, you will appreciate that we would like you to eliminate this provision, in the interest of reducing the size of the Code.

My other comment has to do with the offences of voyeurism and child pornography. The Barreau du Québec would like to emphasize that it agrees with making voyeurism an offence. We have always been in favour of a new provision for offences that not only had a sexual connotation but that also violated privacy.

I would like to draw your attention to clause 6 of the bill. We mentioned to two examples in our brief. We are somewhat concerned about the interpretations that the courts could make. Apparently, the intention was to cover these two aspects of the offence. Moreover, we feel that the concept of privacy is somewhat disregarded, and we wanted to make that clear to you. We want to ensure that this provision does cover the two aspects I mentioned.

We would also like to suggest the addition to clause 6 of a defence to enable individuals with a legitimate excuse to present their case before the court. There is no provision for any defence in this clause, and it is important that something be added for that purpose.

Similarly, clause 7 introduces a defence based on the public good. In light of the comment we just made on clause 6 of the bill, we recommend that the defence of a legitimate excuse replace that of the public good in clause 7.

We come now to clause 8 of the bill, which amends subsection 164(1) of the Criminal Code, to include voyeuristic recordings in the list of articles to which a seizure order could apply. The Barreau du Québec would like to substitute a production order for the seizure order, because the objective of this provision is to ensure the cooperation of the network of servers and suppliers. In our view, a production order would be more effective than a garnishee order in forcing the individuals in question to cooperate with the justice system.

With respect to witness accommodation, clause 15 of the bill amends the Criminal Code to facilitate the providing of testimony by persons under the age of 18, and for others under certain circumstances, which would be at the discretion of the court.

¹ (1550)

Section 486 of the Criminal Code has been amended a number of times over the years to facilitate the testimony of vulnerable witnesses.

The problem we see with clause 15 is that essentially it is the vulnerable state of the witnesses that is the determining factor. We might consider including the elderly and others in this group of vulnerable witnesses. Rather than having a list that might be restrictive, the Barreau du Québec would prefer to let the judge decide whether a closed hearing is necessary for a vulnerable person. Without providing a comprehensive list in section 486, the decision about witness accommodation would be left up to the discretion of the judge.

Moreover, this provision could also include reformed witnesses. The Barreau du Québec does not think that reformed witnesses, who often have an extensive criminal background, should be able to benefit from the provisions of clause 486.2. We do not think this is the intent of the legislation, but we would feel very uncomfortable if these benefits could be used by these individuals as well.

Clause 486.3 of the bill provides for cases where an accused who is providing his own defence cannot cross-examine a witness. This is chiefly an issue of professional law, and the Barreau du Québec is very concerned about this matter. We understand the merits of the legislator's intent. This provision also raises tremendously complicated professional issues.

In the case of a cross-examination, if a lawyer is appointed for that purpose, to avoid having an accused cross-examine a witness, the problem is that first, the accused cannot be represented by a lawyer and will certainly not help conduct the cross-examination of this individual. Moreover, in what capacity is the individual or counsel appointed in this way acting, if he or she is appointed against the will of the accused? Is the lawyer acting in an amicus curiae capacity? Does he really represent the accused who wishes to conduct the cross-examination?

There is also a financial problem. How will the lawyer be paid for his work? But an even more serious question is this: How could such a lawyer comply with his or her ethical standards of good representation when there is no cooperation or even consent from the accused?

We would like this provision to be stayed and that the professional association attempt to find a way of dealing with this problem. I must confess that the Barreau du Québec has very significant experience in this area, and that we have seen some very troubling cases in situations of this type.

Finally, I will conclude with the amendments to the Canada Evidence Act. To add to what Mr. Bala was saying earlier, we see a difference between the French and English versions of the bill, particularly in subclause 16.1(3). I very much agree with Mr. Bala that the burden of proof in the English version seems much more extensive than it does in the French version. I therefore think that the provision must be redrafted so that the two versions correspond.

¹ (1555)

[English]

The Chair: Thank you.

The Canadian Conference of the Arts, for ten minutes.

Mrs. Megan Williams (National Director, Canadian Conference of the Arts): Thank you.

Our intervention has more to do with the spirit behind this legislation and less with the intricacies of different points of law that the previous speakers have addressed.

I'm the national director of the Canadian Conference of the Arts, which is an advocacy organization that since the middle of the last century has been dealing with issues that affect artists and their work.

One of the issues that keeps returning into public discourse and litigation and jurisprudence is the issue of freedom of expression, which one would think was a pretty simple right guaranteed to us in the charter, but which has lots of permutations and changes that arise.

You'll be hearing from several other arts groups during the course of calling witnesses. Tomorrow you'll be hearing from the Writers' Union of Canada, which is present here today, and the Union des écrivaines et des écrivains québécois, as well as the Canadian Museums Association.

The remarks I'm making and the brief the CCA has written have the support of a number of other large arts organizations that you might recognize, including ACTRA, the Canadian Association of Broadcasters, the Canadian Film and Television Production Association, and the Ontario Association of Art Galleries.

We're very clear in our position: The defence of artistic merit must be present in redrafted Bill C-20 so that innocent artists are not humiliated by having their work subjected to lawsuits.

We've examined previous jurisprudence that demonstrates that the courts are also clear in their support of freedom of expression and artistic merit. This defence has been an established position in Canadian law, summarized by the Supreme Court of Canada in the 1992 judgment on the Butler case as follows:

Artistic expression rests at the heart of freedom of expression values and any doubt in this regard must be resolved in favour of freedom of expression.

...the court must be generous in its application of the “artistic defence”.

The artistic merit defence applies not only to existing works, but to works that are only being contemplated.

Should Bill C-20 pass without proper amendment, films like The Boys of St. Vincent might never see the light of day. The director of such a film, which chronicles the abuse of boys in a St. John's orphanage, would have been advised by lawyers that the subject would certainly attract litigation. Canadians needed to see that work in order to reflect on that situation and understand its significance.

I want to add also that artists do not want to be on the front lines of testing dubiously drafted legislation again. Fighting faulty legislation is a huge waste of resources, but more importantly is accompanied by a loss of reputation for artists whose work is charged as pornographic. Let us take the time now to position Bill C-20 so that while it protects living children from sexual predators, it will also provide future generations of children with their charter right, which is freedom of expression.

I'm going to ask our legal counsel, Frank Addario, to speak. Frank is with the firm Sack Goldblatt Mitchell, and he has a longstanding commitment to ensuring that freedom of expression in Canada is not compromised. He has represented us in the Little Sisters Book Store case, he represented the artist Eli Langer, and he has also worked on a number of similar cases.

Frank.

º (1600)

Mr. Frank Addario (Legal Counsel, Canadian Conference of the Arts): At the outset, if it's not clear from our brief, let me just say that the Canadian Conference of the Arts supports this legislation to the extent that it's aimed at preventing abuse of and harm to real children. We think there should be criminal sanctions for producing or distributing material involving the abuse of real children. So that's really what's not on the table from our point of view. But we don't support the elimination of the artistic merit defence.

I want to make three points about that within the limited time I have. The first is that the law is working, from my perspective as a practicing criminal lawyer. Eight years after subsection 163(1) was enacted, the Supreme Court of Canada gave an exhaustive definition of the artistic merit defence in the Sharpe case. The defence now has defined limits, and, importantly, artists are allowed to govern themselves in accordance with the law as it is laid down by the court. Artists know in advance what they can and cannot do. And as we point out in the brief, the artistic defence itself is not a new invention; it has a long, well-established history in Canadian law. In fact, the Supreme Court has described artistic expression as being at the heart of the freedom of expression guarantee in section 2 of the charter.

Artists and arts organizations are understandably worried that the legislation will send the message to police and the courts that Parliament no longer holds that view, that Parliament is prepared to sacrifice the artistic expression of legitimate artists nationally in order to satisfy a perceived need to ensure that pedophiles never access or use the defence of artistic merit.

In practical terms, the artistic defence is most important to young artists, and artists whose work challenges conventional norms. If you eliminate the artistic merit defence, as proposed by the law, the police realistically are not going to arrest the producers of coming-of-age films prepared or produced by the CBC. They're not going to pursue Margaret Atwood, if she chooses to tackle the subject matter of this legislation. They're going to go after young artists whose work has never received critical acclaim, or artists who see their role as challenging the consensus values of the majority. So that's really what's at stake if you eliminate the defence.

The second point I want to make, and it's related to that last point, is that the history of art in this country and elsewhere is filled with examples of works that were initially controversial and later became consensus or popular works of genius. Among those are Nabokov's Lolita; Goya's “Nude Maja”; Lady Chatterly's Lover, which was the subject of extensive litigation in this country, starting at the trial level and going to the Supreme Court of Canada in the Brodie case; and the classical paintings of Cupid as well.

The only way to protect artists from prosecution, which I would suggest is a legitimate goal of the committee and the legislation, is to make their defence explicit.

And the third point really is that the public good defence just won't cut it. I always thought of it as kind of a quaint relic of the first criminal code we had in 1892. It's really of no value to anyone creating, possessing, or displaying controversial work; its history in the courts has been inauspicious, to say the least. The whole notion of public good really runs contrary to Canadian values, because obviously in a democracy, freedom of expression serves the public good—not the other way around. Freedom of expression is an end in itself; and it's not, and shouldn't become, a vehicle for consensus works of visual or artistic expression. But if you say “you only get the freedom of expression if it serves the public good”, you've introduced a secondary value onto freedom of expression. And what's worse, we'd say that by eliminating the artistic defence, Parliament sends the message to the courts that just producing worthy art is not good enough to avoid the criminal sanction, but that artists also need to convince judges or juries that they've used just enough sex, or they've been minimally controversial, to convey the message. That's the way the public good defence works. Under the public good defence, one step over that line, and it's a criminal conviction.

So we think that the artistic merit defence should be retained; it's important and has good historical roots, and it will work.

º (1605)

The Chair: Finally, we have the Canadian Artists' Representation, Audrey Churgin.

Ms. Audrey Churgin (National Director, Canadian Artists' Representation): Hi. I've been invited to speak to you from the vantage point of Canadian Artists' Representation, le Front des artistes canadiens. I'm the national director of the organization, through which we've had highly publicized experiences with artists who have experienced censorship. CARFAC has an important history on advocacy of the subject.

CARFAC was confirmed in 1998 by its certification under the Status of the Artist Act, through CAPPRT, the Canadian Artists and Producers Professional Relations Tribunal, to represent all visual artists in Canada. Today we represent over 13,000 professional artists from across Canada, 4,000 of whom are members.

CARFAC was established in 1968 to represent and protect the interests of individual creators in all visual material. Though we have an important responsibility to our membership, our dedication is to all professional artists in Canada, irrespective of membership.

CARFAC was involved in the 1993 case when Eli Langer and Mercer Union Gallery director Sharon Brooks were faced with criminal charges around the issue of whether or not Langer's paintings and drawings constituted child pornography or whether they were exempt under the law due to inherent artistic merit. In summary, there was a professional assessment performed by expert witnesses who were asked to apply artistic community standards.

In Langer's case the court concluded:

“...although the subject-matter of the paintings and drawings is shocking and disturbing, the work as a whole is presented in a condemnatory manner that is not intended to celebrate the subject-matter. In other words, the purpose of the work is not to condone child sexual abuse, but to lament the reality of it.”

There is intense interest on the part of artists to see the constraints of law be flexible enough to withstand the stress caused by freedom of expression. The removal of the artistic merit defence for art that challenges social norms, replaced by a notion of serving the public good, submits the right of freedom of expression to censorship and bases the legality of artists' creation on current community standards. We equate Bill C-20 with the introduction of censorship on the creative practice of Canada's artists.

CARFAC's view on censorship is primarily from the perspective of the artist as a person. This perspective is further authenticated because CARFAC's membership, board, and staff are all artists. We seek to protect our right to create art as we choose. We're concerned with freedom of expression in all its human forms, and our advocacy is aimed at the rights of the individual. But in facing off against those who would choose censorship over freedom, we also confront questions dealing with the object of art, its aesthetics, the theory behind its making. These issues are not centred on the ethereal rights of the artist, but rather the corporeal rights of the art object.

Our society asks us, “What is art?” This question demands our attention, becomes a central issue and diverts us from the more primary concerns about the rights of the individual.

The definition of “art” will change within its social context. The society in which it exists will shape its relative meaning. Questions arise about the qualities that define art, and they should be debated, explored, and understood. But these are not the issues that must be resolved when the question is about human rights and freedom of expression. We should question what is the potential for censorship under the proposed wording in Bill C-20, and by what social systems we want to determine and impose censorship in the interests of the public.

Sometimes a thing is best understood in terms of what it is not. The artist fosters the discussion, puts the thing on view. This is the opportunity to face our devils and know what it is that we define within that term, as well as what falls outside. Those serving on this committee are faced with this opportunity and are exercising the right to know wrong. Imagine the future if you spent your life shrouded by the darkness of censorship, contained by police by threats of law, motivated by fear to conform. How can you be expected to have a relationship with the inherent goodness we presume exists within?

The absence created by censorship without a contrasting presence is not definable. The artist is not proposing the assumption of the activity he depicts. He is proposing discussion, consideration, and demanding response.

The repression of artistic expression does not lead to a healthy society. I believe a healthy society is one that endorses an exploration of human experience. Healthy minds develop through respect, study, and the opportunity to question. Artists create many things, some of them attractive or likable, some of them repulsive, difficult, accusing, titillating, ugly, angry, or indecent.

º (1610)

The observer who experiences the art object is confronted with his own moral design and relationship to community standards. The exchange between the artist and viewer has dignity because it lays opportunity for human expression, growth, and understanding.

Laws of censorship are political repression. It gives nothing to the people it protects or polices. It is disrespectful of human intelligence and capability. The presumption that adult members of our society cannot decide for themselves what they should see or think is repressive. Whoever would decide for us does not believe in the integrity and basic dignity of human existence.

Child pornographers should be challenged in the courts. Many factors contribute to illegal activity, and the evil intentions of an abuser will be seen in various ways. This person should be in court, charged with criminal intent, and the standards of the land should be invoked to protect our children. The many things this person has done, said, or created should be examined, and the question of distribution should be carefully considered within the legal system. It must be done, and the artists' community of Canada supports that, but we do not support the suppression of expression according to public standards that change and are not based on the theoretical exploration of philosophies of change.

Art is not pornography, and art that challenges the public norm should not be presumed to be pornography, nor should the artist be presumed to be a pornographer. There must be space for both the protection of our children and freedom of expression. The law, as it stands, with the artistic merit defence, must continue to be there for us.

When I see art that crosses my line, I decide for myself what I want to experience, what I want to limit, what I will expose to my children. I do not require that the artist refrain from creation of the object, even if it offends me; rather, I'm grateful for the opportunity to exercise my intelligence and consider the situation for myself. I appreciate the confrontation. When my line is crossed, I know it exists.

Both the artist and the witness lose their human dignity and human rights when a censor decides for them what can be pictured and what can be thought. Censorship creates absence without the context of presence. The roar of artistic practice is what creates a palpable freedom in the spaces between the artist and society.

Thank you.

The Chair: Thank you very much.

I'm going to go first to Mr. Toews, for seven minutes.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much.

I appreciate the submissions of all the witnesses. I appreciate that we're dealing with a very difficult subject and that there are going to be differences of opinion on this issue.

I note from some of the testimony there was a reference to a willingness to protect real children. Implicit in that of course is that we can abuse virtual children, children about whom, from a technological point of view, we can't tell whether they're real children or simply the product of technology. I think in this day and age that kind of distinction is meaningless and simply creates more opportunity for those who wish to abuse our children.

I certainly have sympathy for those artists who are concerned about the so-called humiliation of lawsuits. I know those are very difficult things, but yesterday we heard from numerous witnesses, and especially the Toronto police, who came to talk to us about the brutal exploitation of children in this country, the brutal exploitation that is growing rapidly, the seizure of half a million pictures at one time showing the sexual exploitation not just of children but of infants who have just been born. We have pedophiles and pornographers bragging about Canada and what a great place it is in terms of the availability of pornography, of the abuse of our children, and the ineffectiveness of our law to deal with it properly.

I think it is a shame that in a free and democratic country we can't even protect what should be our first concern, that is, our children.

I know we'll have a large discussion on that particular issue of where the correct balance is. Some, we've already heard, felt that the term “artistic merit” went too far. Yesterday we heard evidence that the phrase “public good” is more vague than “artistic merit”, and I found that even those who were defending the interests of children and those defending the interests of pornographers agreed that the term was simply inadequate. I think I'm satisfied that whatever the correct solution is, the drafting of this law has certainly not found the balance between what is the protection of art and what should be the paramount concern of any society, which is the protection of our children.

I want to move, however, from that issue, because I think we'll just get into a philosophical debate. It's good to hear the presentations, but I'm very interested in Professor Bala's comments, and—perhaps speaking as a former prosecutor—I'm very interested in that whole idea of taking the oath.

I noticed you've said that under the age of 12 let's have the children make a promise. In fact we already do that for adults, for those of us who do not take the oath but who in fact affirm. Couldn't we move to that standard, not just for children under 12, but for adults as well: that we all promise—or as the present code, I believe, says, “affirm”—to tell the truth? Perhaps we can update that language to say “promise”. I'd like to hear from you on that particular point.

º (1615)

Mr. Nicholas Bala: I think your question is a good one. Ideally, philosophically, I'd be happy to have everyone promising. I think that would be.... I have a little trouble with “solemn affirmation” unless you're a prosecutor or a law professor. Even then you might not be too sure what “solemnly affirm” means; “promise” is a word, particularly for children but I would say also for adults, that has a lot more meaningful existence.

I think to the extent there's a problem in what you're saying it's that there's a longer, more complex debate, which may involve various religious communities, for example, who might be concerned about the absence of an oath for adults. If I understand correctly, parts of this bill are focusing on child witnesses. Whether you can actually go into that at this stage I'm not sure, but if you could, ideally I think there's a lot to be said for having everyone simply promise to tell the truth and go from there, yes, but particularly for children.

Mr. Vic Toews: Great. Thank you very much.

The Chair: Mr. Marceau, you have seven minutes.

[Translation]

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you, Mr. Chairman. I would like to thank our witnesses for being here today.

I find it remarkable that so far all our witnesses today have said that the defence of the public good was too vague a concept and should be replaced by something else. I believe there was a consensus on that among the witnesses we heard from, both today and yesterday. As Vic Toews was saying, that is true both of those who favour a liberal interpretation of freedom of expression and of those who would prefer a more restrictive interpretation. I do think it is interesting to begin by noting that point.

My first question is to Ms. Brosseau.

You say on page 7 of your brief that you would like to change the expression “public good” to “legitimate excuse”. I would like you to clarify what is meant by “legitimate excuse”. Does this comment appear anywhere else? What would that mean in concrete terms?

º (1620)

Ms. Carole Brosseau: Yes, the notion already exists in the Criminal Code. I cannot say exactly where it is, but maybe Mr. Mondor can help me find it.

This constitutes a recognized defence. “A legitimate excuse” is a more subjective term whereas “the public good” is a very general term, in our opinion. We are in favour of this change which allows the accused a defence which is easier to prove than the notion of public good. In our opinion, this is much more accurate for the accused.

Mr. Richard Marceau: Yesterday, we met Detective Sergeant Gillespie, from the Toronto Police Force. He basically told us that if the police became aware of suspicious activities, it would be difficult for them to decide whether or not to lay charges, because the notion of “public good” is too vague.

How could a policeman be more sure of what to do, and why is the notion of “a legitimate excuse” more accurate?

Ms. Carole Brosseau: This is a means of defence. I think that the offence must be analyzed to determine whether it corresponds to all the criteria of an offence. If it does and if the police believe there is enough evidence, they can lay charges. Means of defence are not used when charges are laid; they are used in court. For this reason, I do not understand why a policeman should feel doubtful or anxious. We are dealing with two different things.

Mr. Richard Marceau: A policeman would say that if the means of defence is not sufficiently specific and too vague, he would not lay any charges. Even if it is only used in court, a policeman does not want to lay charges for no valid reason. On the other hand, they do not want to be too permissive either. They must use their discretion and they would like to have more precise guidelines for what they should do in such cases. That is what he told us.

Ms. Carole Brosseau: I understand.

During an investigation, certain things must be verified before laying charges, we must establish whether any objective elements lead us to believe that there has been an offence, and this probably involves witnesses, etc. It is easier, in fact, to determine whether an excuse is reasonable than to determine whether the public good is involved. I remember other interventions. If we are dealing with a work of art, or something educational which has been entirely approved, we can verify this based on tangible facts. It is easier.

The term “the public good” is still very vague. It involves more discretion than does the notion of an excuse, because it focuses on the individual.

Mr. Richard Marceau: Ms. Brosseau, if I understand, you would like to make this notion more specific and less general.

Ms. Carole Brosseau: Exactly. We want another means of defence. We want to make the legislation more consistent.

Mr. Richard Marceau: How about being even more precise? How about stipulating that an excuse would be valid for reasons that are scientific, educational, medical, psychiatric or for maintaining order? Would this not make it easier for the police and would this not help us in defining what we want to do?

Ms. Carole Brosseau: Of course, that would address some of our concerns, but it would only cover the cases which have been mentioned. I'm thinking of a particular case. This case really happened and it involved the Youth Protection Branch. It's true. Someone had taken pictures of their naked child, as parents often do. The person who developed the pictures thought they were pornographic. The developer sent the pictures to the police and filed a complaint. The parent had a reasonable excuse: he had taken pictures that any parent could have taken. This parent did not have evil intentions, it was his or her child. There was a reasonable excuse which does not fall into the criteria you just mentioned.

You could take pictures of nude children for the purposes of studying anatomy; these types of pictures would not qualify. As I said, on the face of it, I have no objection to including possible lines of defence, but we should also include a more general type of defence for cases that do not involve professional activities, but rather something completely different.

º (1625)

[English]

The Chair: Mr. Mark, you have seven minutes.

Mr. Inky Mark (Dauphin—Swan River, PC): Thank you, Mr. Chairman.

Obviously, the purpose of the bill is to protect children. At the same time, we don't want to neglect our artists. The question I have is should children come ahead of artists, or should artists come ahead of children, or is it possible to balance it, with this particular bill, to ensure that both aren't shortchanged?

Mr. Frank Addario: Mr. Mark, from our point of view, there was a balance struck after the Supreme Court of Canada interpreted subsection 163.1 in the Sharpe case, and there has been no evidence, as far as I'm aware, that children have been put at risk under this legislation. In fact, one could argue that because the police were given the possession offence back in 1993, which they never had before under obscenity law, the safety of children has actually been promoted by the existing legislation. There is no evidence that “vagueing up” the defences would necessarily protect children.

In relation to what Mr. Toews said about the brutal exploitation of infants, once you invoke that spectre it invites the conclusion that anyone who opposes the change to the legislation also opposes protecting children. If there were any evidence that eliminating the artistic merit defence would actually increase the safety of children, including my daughter, then we would be supporting it. But it's not there. All it will do is make artists more vulnerable, we think.

Mr. Inky Mark: So you're basically saying this legislation is not necessary.

Mr. Frank Addario: We're saying that eliminating the artistic merit defence is not necessary. We're not commenting on the other exploitation of children provisions that have been proposed. We're saying that it works, that it has been shown to work, that it assists the police because they now have a good definition from the Supreme Court of Canada, and that there is no evidence that making the artist merit defence available puts children at risk.

Mr. Inky Mark: Do you think it would help if we defined what “public good” is in this legislation?

Mr. Frank Addario: From our perspective, unless you were defining it in the way the Supreme Court defined artistic merit in Sharpe, you would be cutting back on the freedom of expression without any beneficial corollary on the other side for the safety of children.

Mr. Inky Mark: I'd like to go back to what Carole said about photographs. Marlene and I asked that question a few meetings back about parents taking pictures, in fact parents being in the pictures nude with the children. The proposition was that these pictures were stolen and ended up being commercialized. How do you prevent parents from being charged? Would a legitimate excuse apply or work in those circumstances?

[Translation]

Ms. Carole Brosseau: A little earlier, I talked about parents who had taken pictures of their children within the context of a parental relationship. I just want to point out that these were not pictures of adults with children. Obviously, these parents did not commit a crime. They acted legitimately, within a perfectly legal framework. They had an excuse, which had nothing to do with the public good, but it would nevertheless have been a legitimate excuse. The parents need to have an excuse, a line of defence. This is absolutely necessary.

I would like to come back to what Mr. Addario said a little earlier. When you create a new offence, you also have to provide for lines of defence. That's your challenge, that's part of your role as members and legislators. If you create a new offence, you need to provide a line of defence, and that is where you have to strike a balance. Mr. Addario gave you his specific point of view. We claim that even if there is a specific line of defence, you also need a more general one. You need to provide a realistic line of defence which does not represent too great a burden or problem for the public.

I agree with Mr. Addario. Nothing proves that a modified line of defence will better protect children. On the other hand, if you decide to replace one defence by another, the courts have traditionally interpreted this as the will of legislators to give a different meaning to the defence and, ultimately, to change the rules of the game.

º (1630)

[English]

Mr. Nicholas Bala: Mr. Chair, there are obviously some difficult issues here, but I just want to say that pictures a parent takes of a child naked are probably not within the offence provision at all.

I realize it's difficult for you, because I have the Criminal Code and the amended version, but subparagraph 163(1)(a)(ii) requires that “the dominant characteristic of...the depiction” must be “for a sexual purpose”. There are certainly some legitimate issues, but this is probably not going to fit within that particular concern.

Mr. Frank Addario: Just to answer that, Mr. Mark, the Supreme Court of Canada addressed this issue directly in the Sharpe case in paragraph 51 of the majority judgment. They said that family photos “will not be caught” under the definition that Professor Bala just gave you. On the other hand, if these got into circulation and fell into the hands of a pedophile and were placed in an album of sexual photos, with a sexual caption, for example, then their purpose becomes unmistakably sexual, and they would be caught by the existing legislation.

So the chief justice, who wrote for the majority, thought that it was flexible to both protect parents who had an innocent purpose, and to catch those who didn't.

The Chair: Thank you very much.

Ms. Lill, for seven minutes.

Ms. Wendy Lill (Dartmouth, NDP): Thank you.

About 16 years ago I had a couple of children in day care and was very interested in the high-profile cases going on around children, day cares, and child care workers being charged. I was a playwright at the time, and I wrote a play about that phenomenon, looking at the cases in California and Saskatchewan—but specifically going into the heart of what it means to a father to suddenly be told his son has been sexually abused. So the play was basically all about examining or protecting the search for truth in child abuse cases. There were some passages in it that were pretty disgusting, including a father trying to imagine some of the charges being laid about some of the absolutely unbelievable things that had been done to his son. It just didn't make any sense, but he was trying to understand it.

I'm just wondering if I'm a pornographer, because it could possibly be seen as being a play about sexual abuse. I'm just concerned, as this is really one of those thin-line issues, because we're looking at somebody who was trying to examine the issue of sexual exploitation and trying to find the search for truth in the midst of one of these things. It goes back to what Mr. Bala was saying about the difficulty of questioning children.

It's one of these issues I think artists are concerned about. It's when they decide they want to look at some very deep, absolutely offensive issues right here in our society, and look at them closely, shine a light on them, and say, “This is disgusting. We have to look at it, and we have to look at ourselves in the mirror; and we have to understand it.”

So I worry that the kind of exploration I did 16 years ago might be edited, or I might edit myself before I would even write it now. I might think, “Wait a minute, am I going to get hauled up on charges?” So I need an answer, and I'd be interested in people's response to that.

I am just interested in the fact that we've heard that in the Sharpe case there was a clarification around subsection 163(1), that in fact it even made this thing called artistic merit more specific. I'm really curious.... I don't know if the committee has already asked for that, but have we seen that? Have we got the exact wording now about artistic merit, what it means and what it doesn't mean, so that we can all really look at it closely? I think it would be helpful.

º (1635)

The Chair: I'm advised that Mr. Rosen has it right here, so it will be distributed to everybody.

Was the question directed to anyone in particular?

Ms. Wendy Lill: To anybody who wants to answer it.

The Chair: Mr. Bala first.

Mr. Nicholas Bala: Let me jump in, in part, and say that I think it was about pornography, but an American justice in the Supreme Court in the United States said he couldn't define it, “but I know it when I see it”. In fact, since then we've really been going on trying to define it, and there is probably a consensus about some things that are unacceptable and some things that are acceptable with legitimate artistic merit. Of course, we don't have those words in the new legislation.

It certainly strikes me, though, that what you're describing would perhaps come under public good, but certainly under artistic merit. It has social value. Talking about sexuality and talking about abuse—and the Langer case is a good example—is important.

It's a question of always trying to strike the balance. I think the context of this legislation coming forward is that maybe Sharpe was for some people, and certainly for myself, a little.... The Supreme Court was entitled, and obliged, to articulate that maybe its definition of artistic merit was a little broad, particularly as I think was applied in his retrial. Some people are concerned that artistic merit means that if you can find one person in the world who gets up and says “Yes, I think this thing has some artistic merit”, that's good enough not to be within this provision. You want some narrowing of that.

Ms. Wendy Lill: Wasn't there quite a bit of narrowing of that in this go-around with Sharpe? That's what I'm asking or what I understand, that some limits were put on that. That's what I need to know.

Mr. Frank Addario: It's not a secret that on one of the counts he faced Sharpe was acquitted, because some of the literature that the police had seized the judge found had artistic merit.

I have to point out a couple of other things. The true pedophile—any police officer will tell you this—will have boodles and boodles of stuff in his home. If Sharpe is acquitted on one count and convicted on the remaining counts in the indictment, he's sentenced on the remaining counts of the indictment. It's not going to change the world if on those rare occasions when you have a pedophile who also has some talent or who also has a collection of work that has artistic merit, he is acquitted on one count and convicted on the other.

There was a clarification in the law, and it was in part clarified to uphold the legislation. If you read the Sharpe case, it was about the fact that section 163.1 was overly broad, and that was the opinion coming up from the British Columbia courts. In order to save it from being struck down under section 52 of the Constitution Act, the court read in the generous defence of artistic merit. Rather than seeing it as a problem, you might view the defence of artistic merit as the way in which the original legislation, 163.1, was saved.

The Chair: Thank you very much.

Thank you very much, Ms. Lill.

Is there anyone else in the panel...? If not, Mr. Lee, seven minutes.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thanks.

Mr. Addario, since this amendment is a response to the Supreme Court's decision in Sharpe, and that involves sketches of children, would your group accept that, first, all of the depictions of children in sexual situations, whether in photographs, films of real situations, cinematic representations—just actors pretending—virtual situations created digitally, sketches by hand, and written descriptions, all involving kids, should be prohibited by society, with the exception, which we're trying to craft here today, of the artistic merit, for the public good? Is that a given, that all those things should be prohibited because we as a society are simply not going to tolerate them?

º (1640)

Mr. Frank Addario: I'm not going to give you a completely straight answer, okay?

You use the word “kids”, but in fact it applies to persons up to the age of 18, so situations involving mutually consenting adolescents are also caught by that. That's something to consider when you're describing it.

We do not support the creation or production of any material that involves the exploitation of children. I want to be clear about that.

Mr. Derek Lee: What about sketches? There's no exploitation. There's a graphic depiction of an exploitation, but not a real exploitation.

Mr. Frank Addario: Do you mean sketches that are works of the imagination?

Mr. Derek Lee: Yes.

Mr. Frank Addario: No, we would not support the criminalization of works of the imagination.

Mr. Derek Lee: Okay.

Mr. Frank Addario: That comes very close to prosecuting or criminalizing thought. We're not talking about distribution at this point. We're talking about somebody sketching something from their imagination and sticking it under their pillow and the police come in with a search warrant and grab it and prosecute. We do not support that.

Mr. Derek Lee: So you don't support the current definition, which is essentially that. All this stuff is prohibited with the exception of the artistic merit.

Mr. Frank Addario: No, that's not correct. The current definition is broad enough to support the criminalization of what I've just described as thought crimes. The Supreme Court of Canada has explained that you couldn't do that; that private possession of works of the imagination cannot be caught by the legislation for the very reason I've just given you—it would violate the basic precept of the Charter of Rights.

Mr. Derek Lee: But it is caught by the current articulation of the law in the current amendments. There's no exemption given to thought or the imagination, is there?

Mr. Frank Addario: No, I don't see the current....

Mr. Derek Lee: So Parliament is still going ahead to say that the imagination depicted on the wall here is criminalized. Is that fair for me to say that?

Mr. Frank Addario: No, Mr. Lee, I don't read this as attempting to reverse what they said in Sharpe about the two exceptions.

Mr. Derek Lee: No, no, sorry. You're suggesting that the law in Sharpe, the Supreme Court, is the law.

Mr. Frank Addario: That's right.

Mr. Derek Lee: But what the court said in Sharpe about the imagination—

Mr. Frank Addario: Private possession.

Mr. Derek Lee: —envelope is not reflected in the existing Criminal Code or in the amendments before us today. Is that right?

Mr. Frank Addario: That's right.

Mr. Derek Lee: Okay, maybe we'll just leave that one sit.

Can I go to...? This is really a confused lawyer question. I'm the confused lawyer. Proposed paragraph (b) of this section dealing with public good, 163.1(7), says:

it is a question of law whether an act or any material related to an act serves the public good and whether there is evidence that the act alleged or the material goes beyond what serves the public good, but it is a question of fact whether the act or the material does or does not extend beyond what serves the public good;

I am so confused about that. Professor Bala, maybe you could help out. Let's pretend that I'm a police officer trying to handle a complaint on this. How is a police officer going to handle the analysis of whether or not he has a question of fact or a question of law here and whether there is a public good? Is this way beyond the average police officer?

Mr. Frank Addario: I think I can help you with this.

Mr. Derek Lee: It's way beyond your average lawyer, because I'm your average lawyer.

Mr. Frank Addario: It's not happy language, but I think what it means is that what happens is you raise the defence of public good, and the judge then decides whether there's an air of reality to the defence. If she thinks there's an air of reality to the defence, then she puts it to the jury and says you find as a fact whether or not there's a reasonable doubt about whether or not the public good has been raised.

Mr. Derek Lee: But that's when it gets into the courtroom. I'm talking about the police officer who has to lay the charge. There's no requirement that an Attorney General consent to this. There's no screening at all. It's just a complaint, the police officer, charge laid, into court, get a lawyer. Have we got a problem? Do we have a public interest problem here? Is it fair?

If we're dealing with photographs of real children in real-life sexual scenarios, I'm happy to see the police officer go right ahead. But if we're dealing with the public good issue, if an artist or a writer or a filmmaker says this is public good stuff.... Professor Bala, how does the police officer handle that? What guidance does he or she have in making a decision?

º (1645)

Mr. Nicholas Bala: You're raising a lot of issues. One of them goes back to the point made by the Quebec Bar, which has been made many times, that our Criminal Code is extremely complex. Many people have said that what we should be doing is trying to simplify it, including looking at some of the defence issues. This is obviously a very cumbersome provision.

On the other hand, it's important, since you are engaged in a more peaceful undertaking, you have to take your structure to some extent as it is. The problem with child pornography is it's extremely serious, but most of the cases are not especially close to the line. Indeed, as was pointed out, Sharpe had lots and lots of stuff that everyone would agree was child pornography. He should have been prosecuted; he was prosecuted, and he was convicted.

There are some cases.... And in fact it's not so much some people, but it's some material that some child pornographers have that is a little closer to the line. In fact, if it is close to the line, the police can consult with the crown prosecutor and ask, “Should we go ahead with this? Do we have enough evidence? Is this particular material going to be excluded?” I agree with you that certainly this provision is not one that one could pick up and read as a police officer, let alone as a citizen, which is ultimately what our code should be.

I would certainly encourage the committee and the department, as others have, to undertake the project of making the whole Criminal Code more accessible to everybody.

Mr. Derek Lee: We're working on that.

What if we just edit the words “public good” to “artistic merit”? What would we end up with then as a test? Artistic merit defence, artistic merit exemption, artistic merit plus public good.... You must have both, artistic merit plus public good. At least the rubric would be there for the artist and the writer.

Mr. Frank Addario: If he had to raise a doubt about the artistic merit and demonstrate the public good, that would be a super-added burden on the defendant for the reasons that we gave about the problems with the defence of public good and for the reasons you've heard over the past couple of days.

Mr. Lee, if I could just back up to your previous question, the problem for police officers raised by that language in proposed subsection (6) about public good—question of fact, question of law—is a reason to retain artistic merit, because the police can consult with a crown attorney, as they virtually always do in obscenity cases when they're concerned about whether it's the undue exploitation of sex. Often the police have a view, but often they don't have a view. They'll go see a crown attorney and say “We have this material, but that phrase 'undue exploitation of sex' is vague. Which way do we go?”

Artistic merit has been equally well defined as the obscenity provision now, “undue exploitation of sex”. So we think that would be more workable for a front-line police officer than the public good.

[Translation]

The Chair: Mr. Marceau, you have three minutes.

Mr. Richard Marceau: Ms. Brosseau, I apologize, but I would just like to come back to something Professor Bala said earlier.

If I take a picture of my son in his bath, and it is a non-sexual picture, does that mean that I cannot be prosecuted?

Ms. Carole Brosseau: Yes, that's correct. But, in that case, the picture would have been stolen and used for other purposes. That could open the door to a whole new set of problems.

Mr. Richard Marceau: Fine, I just wanted to make sure that...

I wish to ask you the following question. Yesterday, it was suggested that we add another prohibition in Bill C-20, namely the prohibition against advertising child pornography, that is its distribution and production. However, if I were to indicate somewhere: “If you are looking for child pornography, go to such and such a place”, I could not be prosecuted.

Do you think that there should be a ban on the advertising of child pornography in such a way?

Ms. Carole Brosseau: In my view, advertising child pornography is an accessory to the crime. I have not yet analyzed whether advertising is already included in the offence. I did not expect that question, but in my opinion, it is an accessory to the crime. If there is a ban on producing child pornography, there is also a ban on advertising it.

Mr. Richard Marceau: Suppose there was an Internet site called www.childpornography.com...

Ms. Carole Brosseau: You know as well as I do that it's pretty easy to print something out. Kids do it all the time.

Mr. Richard Marceau: Exactly, someone could very well claim that they neither produce nor distribute child pornography, but that they're simply saying where it can be found. But in your view, that would be included, therefore it would be redundant.

º (1650)

Ms. Carole Brosseau: It would be a conspiracy, so the person would be an accomplice. In my opinion, you could file that under the offence of conspiracy. Therefore, it would be covered, because it is a conspiracy. In that case, the individual would be subject to the same sentence. This person is truly an accomplice. It would fall under conspiracy.

Mr. Richard Marceau: Fine.

We received another suggestion. What if a computer were seized and certain files were “encrypted”, and the individual were compelled to provide the key to these files and refused to do so...

Ms. Carole Brosseau: That's what we are suggesting. I have already answered your question.

Mr. Richard Marceau: Thank you very much.

[English]

The Chair: Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chair. Thank you, witnesses.

David Matas was here yesterday, and I thought he gave a very thoughtful paper. We've been booting this business of “public good” around the field here, and his notion is that basically you set up a kind of general defence of public good and under it keep “artistic” and “educational” and “scientific” and all that sort of stuff. But he wanted to add some refinements.

The first refinement he wanted to add was that in effect, in order to establish the defence, you had to establish the intent of the creator. That would be one clarification of the defence.

The second was that the work had to show some connection.... Where there is little or no connection to artistic or educational purpose, that would basically undercut the defence.

The third one had to do with the mode of production. He thought the mode was of significance. Presumably anyone who has 500,000 pictures on their hard drive undercuts their own defence.

The fourth was the notion that the dissemination of this material could change the possessor's attitude in ways that make the possessor more likely to abuse children sexually.

I'd be interested in your comments. He was saying he derives at least the first three from his reading of Sharpe. I'd be interested in hearing, particularly from Mr. Addario, and possibly the Barreau, whether that's a better way to go in terms of phrasing and gives more clarification. The argument has been, really from both sides, that this whole “public good” business is way too vague. What's your reaction to that analysis?

Mr. Frank Addario: I'm sorry I wasn't here yesterday. Could you just repeat the second one? The first is the intent of the creator, and....

Mr. John McKay: The second was that the work is unconnected or has little connection with.... In order to establish a defence you'd have to make some connection with some artistic or educational or scientific convention.

Mr. Frank Addario: And would that be the purpose of the work?

Mr. John McKay: Yes.

Mr. Frank Addario: Let me deal with the last one, changing the possessor's attitude. We think it's really a matter of great debate among social scientists whether any of this material changes possessors' attitudes. Indeed, the Supreme Court in Sharpe and in the Butler case that preceded it said the social science evidence is at best inconclusive. So the idea of supporting any suppression of expression based on the possibility that it could change attitude would not be something the CCA would support.

With respect to the others, we think the intent of the creator is in general something that could be taken into account and that it would be fair to take into account, but it's a problem when you're not in possession of material you've created yourself—when you're a third party recipient of material. It's the same with purpose.

With respect to mode of production, I would say if someone is a genuine artist, whether they're a prolific artist or not a prolific artist should be irrelevant to whether or not they could be prosecuted for child pornography. We are sympathetic to what Detective Gillespie would have told you. But again, if he finds 2,000 images in MP-3 files or on a computer, and they are images of children being sexually exploited, then if there also happen to be 20 sketches or 20 oils—or 20 films, for that matter—that have artistic merit, it doesn't really matter. The fact that the two are side by side shouldn't require the prosecution of one.

º (1655)

The Chair: Ms. Brosseau.

[Translation]

Ms. Carole Brosseau: If I may, I will quote a passage from the Sharpe decision. It was not taken from the majority ruling, but from the minority ruling signed by, amongst others, Justice L'Heureux-Dubé. It says:

The focus must be on the harm of their ( the representations') message and not on the intent or identity of their creator.

I think that basically summarizes the situation. With regard to the issue of whether the creator had any intentions or not, I think that this must be proven by the Crown and that it must not fall within the means of defence. I am not sure I understood your question perfectly, but I think that is basically what you were getting at. You were referring to the message which is sent, and not on the way it was produced.

[English]

Mr. John McKay: If you were going to assert the artistic merit defence, you would have to in effect prove that you had intent. So really the onus then, in order to establish a defence, would be on the accused person.

[Translation]

Ms. Carole Brosseau: Now I understand because the intention was not in the meaning of mens rea. I was a little confused back there, but, indeed, the creator will have laid out the process which was followed, and will have to explain in what context it was carried out and what the objective was, not the intention. I think that the objective is to either do that or send a negative message, but yes, indeed, the creator will have to prove that.

Do you want to know whether this is a good or bad thing? I am having trouble determining the line of defence you are after.

[English]

The Chair: We'll be able to think about that for a few minutes while we go to Mr. Mark.

Mr. Inky Mark: Thank you, Mr. Chairman.

I just want to go back to the section Derek had brought up, which is proposed paragraph 163.1(7)(b) in subclause 7(2), and the question of law and motives. Would you support deleting the proposed paragraph he mentioned altogether: “it is a question of law whether an act or any material related to an act...”?

Mr. Frank Addario: The public good defence, so far as I can tell, has been raised and litigated in three or four cases since 1892. It's just not been central to the operation of the obscenity law for its first hundred years, and of the child pornography law for the last ten years. It just doesn't have a critical place in any of the case law. We thought that the artistic merit defence is the central way in which those cases are litigated, so that's what we focused on. I don't know that we need to eliminate it, because it is one of the defences available for obscenity under section 163, the preceding section. If you were to eliminate it in child pornography, we'd say fine, but don't eliminate it in the case of obscenity without at least looking a little more closely at how it works there.

Mr. Inky Mark: Could you comment on the following paragraph, 163.1(7)(c)? It says “the motives of an accused are irrelevant”.

Mr. Frank Addario: Well, because I've never seen that litigated, I've only ever been able to guess about what that means. But I think what it means is that even if you produce something that's obscene or child pornography, you're not entitled to rely on having a good purpose to do it.

Paragraph 162(7)(b) is at odds with the other defences that are available under the child pornography provisions. It's not at odds with anything in the obscenity law.

I hope that helps.

The Chair: Thank you, Mr. Mark.

Ms. Jennings.

[Translation]

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you.

Yesterday, we heard from an Ontario police officer, who told us just how traumatizing it can be for police officers to look at thousands of pictures of children being sexually abused. But they have to do it to build a case against the accused. He asked whether it was possible to include a provision allowing for the simple use of a sample, as is done, for instance, in the case of drugs. If the police seizes 200 kilograms of a substance, a sample is sent to the lab where it is analyzed by professionals. If the results are positive, the entire load of 200 kilos is deemed to be narcotics. He was wondering whether it was possible to take this approach with child pornography. I would like to have your expert opinion on this matter.

My second question deals with the age of consent. Yesterday, we heard from several witnesses who said that the age of consent should be increased to 18 because it would decrease the number of teenage pregnancies and the rate of transmission of sexual diseases. The witnesses used US figures as examples. Several US States have set the age of consent at 18 and have introduced minimum mandatory sentences. I asked the witnesses whether studies have been carried out showing that the provisions contained in the legislation of these US States had reduced the number of teenage pregnancies and the rate of transmission of infections and sexual diseases, since they asked for the inclusion of such provisions here.

They were not able to provide any evidence, but I was wondering whether you know of any studies which have demonstrated a direct relationship between what those people were asking for: minimum mandatory sentencing and raising the age of consent to 18. I think there was a third issue, but it escapes my mind. Could you address those issues?

» (1700)

Ms. Carole Brosseau: If I may, I will address your first question. I understand completely that it can be difficult for the police. Having been a Crown prosecutor at one point in my life, I know just how hard it can be. But what I want to say is that it is impossible. Under the Canadian Charter of Rights and Freedoms, a full and fair defence implies full disclosure of the evidence. I do not really think you can limit, in legislation, the right to a full and fair defence, since it may be interpreted that way. So I do not think it is either doable or feasible, at least not under the current circumstances. It may be worth studying, but I do not think the situation will change any time soon.

As for the second aspect of your question, believe me, this issue has been around a long time, ever since the discussion paper on the age of consent was produced several years ago by the Department of Justice. I really do not think that minimum sentencing will change the sexual habits of children. In my view, you have to start by educating kids, which is first and foremost the responsibility of parents, and then of teachers. I think you are dreaming—especially since we are dealing with young people—if you think that kids will hold back if they know they are breaking the law. I say this based on my experience as someone who practised in youth court. It is illusory to think they will change their behaviour. You have to start by educating young people. Just look at... In any case, after having seen a couple of reports on what is happening in the United States, I can tell you that the rate of infanticide is very high. Would it make a difference? I do not know if you can come to that conclusion, and I do not dare venture a guess, but I think that you have to start by educating kids and by getting parents to talk to their children about their children's sex life. We have to make the right choices and teach our kids the right attitudes so that they make the right choices in their lives.

» (1705)

[English]

The Chair: I think Mr. Bala had a response.

Mr. Nicholas Bala: I wanted to speak to the second question.

Although I'm aware of some of the research around issues of teen pregnancy and STDs, I'm personally not aware of any study that links them directly to the age of consent, particularly between adults and adolescents. Most teenage pregnancy and STDs involve age-similar peers, as opposed to exploitation. In fact, some of the cases we have suggest--and this is just anecdotal--that when you have an older person as the exploiter they're more concerned and more likely to ensure there's not a pregnancy and STDs, certainly not less likely.

There are legitimate issues about exploitation, particularly of adolescents--both males and females between the ages of 14 and 18--by older persons. And it's a good question, whether the new provision goes far enough to protect adolescents, but I also agree that the criminal law is not a very effective way of dealing with some of these issues. There is an important role for criminal law in prosecuting those who exploit, but often the issue is proof.

So when we look, for example, at juvenile prostitution, which is a very serious problem, we have pretty good law in the sense that the black-letter law is quite good, but the enforcement of it becomes very difficult because bringing the adolescent victims into court already is very hard. They're unwilling to testify. You're getting to a difficult family dynamic.

So there's a real question about how far you want to go with criminal law.

The Chair: Thank you very much.

Ms. Lill, for three minutes.

Ms. Wendy Lill: Thank you.

I think we are all disgusted by the child pornography that is flooding into everyone's lives. I think John McKay was the person who brought in several speakers, including the police from Toronto, and had a stunning presentation about the pornography coming into our lives.

So the question is, are we actually seeing material clauses in this legislation that are going to somehow stem that tide, that are going to clean up the streets, clean up this horrible problem we are all facing? I just don't want to think we have a piece of legislation here that may not be really effective in getting at the root of the problem. I wouldn't mind some comments on that.

Certainly the issue of the public good--everybody says--is too vague. It seems to possibly protect pornographers, and it persecutes artists. So are we making any progress here?

The Chair: Mr. Bala.

Mr. Nicholas Bala: One of the issues implicit in what you're raising is the role of the Internet flooding into our lives. For example, everybody who has an e-mail account now gets material that is probably not prohibited--it's not pornography if it involves adults--and they ask, “Why am I getting this unsolicited stuff? And not just me, but children are getting it.” One of the questions this bill doesn't begin to address is regulation of the Internet, which is a very complex issue, because it involves not only Canada, but other countries. Certainly we'd like to see a lot more in that direction, regarding people who are sending out this material that's completely unsolicited, including to children.

I do think, on balance, there are a number of very important things in this bill. One of the things I'd urge, as you're moving through this process, is that you not throw out the baby with the bathwater. There are legitimate concerns and legitimate areas of debate, and to say let's just forget it and go back to the drawing board.... I think you'd like to preserve the good parts of this bill, the parts you can at least agree on.

The Chair: Ms. Brosseau.

[Translation]

Ms. Carole Brosseau: I think that the bill makes progress on several fronts, including in the area of pornography and privacy rights.

Some questions and concerns remain, which is why we are here to discuss these matters with you. But I think that, on the whole, our organization, the bar, supports most of the provisions contained in this bill, and, strangely enough, we would even like some provisions to go further in some circumstances.

Some Members: Ah, ah!

» (1710)

Ms. Carole Brosseau: People may laugh, but it is true. But, yes, the bill is a good step forward, particularly with regard to protecting children.

[English]

The Chair: Monsieur Jobin.

[Translation]

Mr. Christian Jobin (Lévis-et-Chutes-de-la-Chaudière, Lib.): I have a question for Mr. Bala. We are interested in what you said with regard to the research you conducted with children. You said that for children there is no connection between lying and telling the truth, but that they felt more bound by their promises, in cases where they had been asked to promise something.

Yesterday, we heard from a group which said that questioning children under the age of 14 in cases of sexual assault could be traumatizing for them. What do you think about making children under the age of 14 testify in sexual assault cases?

[English]

Mr. Nicholas Bala: Just to clarify, what I said was that a child's ability to answer the kinds of questions they are typically asked under the present regime, which says “Do you understand what truth is?”, is not related to whether or not they actually tell the truth. That's just to clarify, if I wasn't clear on that point.

The issue of whether children are traumatized by being brought into court is a difficult one, and not only for children under 14. I was mentioning it's often more difficult for adolescents, who are becoming themselves sexually aware and sexually involved, to have to testify about abuse, for example, by a father. Adolescents are often more traumatized by that process, and that's why it's important that many of the protections we have, for example, around the use of screens, videotapes, and closed-circuit television are up to the age of 18. And indeed, this bill expands that.

In an ideal world--well, it wouldn't even be an ideal world.... In Israel, for example, they have a different model for the prosecution of cases where they have investigators who go out, interview the children, and put them on videotape. The children don't come to court to testify at all. Around this issue, I feel that's a better kind of model. However, they don't have a charter of rights the way we do. I think there are going to be real limitations about what can be done.

I think the greatest protections for children are in fact the human supports. In other words, changing legislation is very important, but having victim-witness workers, for example, who are with the children before court, who can meet with them after court, and can provide counselling and therapy, is probably more important than some of the relatively minor changes you're making in the criminal law. That's going to require a commitment of resources, largely by provincial and territorial governments, supported by the federal government, and giving more time for crown prosecutors who are going to meet with children so they can prepare them for the court. Those kinds of things are going to be important.

Yes, it can be traumatic, and it is traumatic for some children to relive that, and indeed for adults to relive the process. Many of these cases are historic abuse cases. It's very difficult. But I don't think we can give up the project of holding abusers accountable; rather, we have to support the victims through the process.

Certainly there are some important improvements in the law here, especially around videotaping, closed-circuit television, and the changes to section 16 that will facilitate victims coming forth and testifying.

The Chair: Mr. Marceau, for three minutes.

[Translation]

Mr. Richard Marceau: I have a brief question for Mr. Addario and Ms. Brosseau. It was suggested several times that people found guilty of being involved with child pornography should receive minimum sentences. I would like to know what you think of this subject, Ms. Brosseau and Mr. Addario.

Ms. Carole Brosseau: I'd like to address that issue. Every time I get that question I repeat the same answer: minimum sentences are, in our view, always inappropriate. I think it is up to the judge to determine the sentence according to the circumstances. There should always be judicial discretion. Minimum sentences sometimes have perverse effects and can result in a sentence being imposed which is not adapted to the situation nor the person involved. This sometimes happens in cases involving firearms, for instance. These are but two examples. Pathetic situations can arise and it works both ways. There must be judicial discretion, because very specific factors are taken into account during sentencing.

Judges may receive guidance with regard to sentencing, something which is regularly included in bills. However, I believe that a ruling should be made based on evidence and circumstances. Don't forget that, with regard to rehabilitation, you have to take into account whether a person is accountable for their actions before the court, before society, and you have to make sure this person can be rehabilitated. Minimum sentences are not and will never be a solution.

[English]

The Chair: Mr. Addario, I think he also directed the question to you.

Mr. Frank Addario: I could say that I don't believe the Canadian Conference of the Arts has a position on this, but I'm also the vice-president of the Criminal Lawyers' Association of Ontario, so maybe I can answer on their behalf.

Apart from adopting what Carole said.... I'd also point out that in the United States they've experimented extensively with mandatory minimums, and I think you could say they came as close to having a judges' strike there as they have ever come in their history because of that. Judges completely revolted at the idea that they couldn't sentence the person in front of them for the crime and for who they were, but had to refer to a meat chart to decide the sentences.

I don't think we can support that. We have mandatory minimums for impaired driving, for firearms, and for the murder offences. I don't think they should be expanded in the Criminal Code.

» (1715)

The Chair: Thank you very much.

Mr. McKay has had a chance to think it over.

Mr. John McKay: I actually want to change tack here for a second. I know you didn't think too highly of Mr. Matas' position on something that could reasonably change a possessor's attitude. Let me see if I can put his argument a little more elegantly, because he makes an analogous argument to sections in the Human Rights Code that prohibit telephone communications in any manner that is likely to expose a person or persons to hatred or contempt.

His argument is, admittedly, a civil argument, but we're not talking about something that's on the balance of probabilities; we're talking about effectively undercutting the artistic merit defence.

So I go back to you again that if you could do it in the human rights code, where you say that if you do behave in this kind of way you are likely to expose a person, you are, in effect, creating that kind of an idea. Why is that not something into which a court should inquire when someone is asserting their defence that this has artistic merit?

Mr. Frank Addario: First of all, there's a problem of proof. They'd need extensive psychiatric evidence in every case to show that this particular suspect was potentially susceptible to having his or her attitudes changed.

Apart from that, you would then be characterizing the material. Let's imagine that he's in possession of the famous Paul Peel painting that's hanging in the Art Gallery of Ontario--two little naked boys warming themselves in front of the fire. You could imagine a situation in which one person in possession of it would have their attitude changed, and another person in possession of it--or the thousands of visitors every year--wouldn't. So you would essentially be characterizing the material according to who had it. It would, I think, be unworkable in practice.

Mr. John McKay: The “who had it” is the key. The “who had it” is somebody who is already accused, and presumably there's enough evidence already on the record that says you have a defence to make, so you choose to make your defence and you brush your paint as broadly as you can.

Why is it that that inquiry is not again relevant to the artistic merit defence? In effect, you're saying that's great, it has artistic merit, it's a wonderful piece of art, and all that sort of stuff. But there's a whole pile of other evidence here that would likely turn someone into a person who...what does he call it--it makes the possessor more likely to abuse children sexually. That is ultimately the target of the legislation.

Mr. Frank Addario: I guess I can answer it this way. I'm really answering on the fly, because I wasn't aware of the proposal.

During the Langer case--

Mr. John McKay: It's not a proposal; it's just his testimony.

Mr. Frank Addario: No, sorry--his proposal.

During the Langer case, I was Langer's lawyer, and we heard evidence that not only are the fantasies of some pedophiles fuelled by what everyone would agree is child pornography, but also by YTV, the Sears magazine, school yearbooks.

It occurred to me then that if you were really intending to get into the possessor's mind, it would be almost unimaginably broad, if you were trying to use that as your hook. On the other hand, you could make it possible for a judge to take it into account on sentencing, once a person has been convicted, and you could do so explicitly.

» (1720)

The Chair: Thank you very much, Mr. McKay.

Mr. Mark, three minutes.

Mr. Inky Mark: How many cases are we looking at? How many artists have been accused and brought before the courts over the last decade? We're talking about artists being arrested. I haven't a clue about how many artists are at risk.

Mr. Frank Addario: Megan may be able to help you with that.

I'm aware of two high-profile cases. The two high-profile cases are Langer, which involved the seizure of over fifty works of art from an artist-run gallery, and a woman in Nova Scotia whose material was seized. It involved a videotape involving her and her child.

Mrs. Megan Williams: I would say the number is very small, but I don't know what the number is.

There are cases, like the one Frank just mentioned, where the videotape the mother made with her child was seized and she decided not to do anything about it. She simply backed away, for obvious reasons.

The Chair: Ms. Churgin.

Ms. Audrey Churgin: I don't have any different numbers to give you, but I can tell you the effect happens at a lower level, at the point of production, of what risks people are willing to take with their work, whether they're willing to show it, whether the galleries are willing to engage the artist to show the work. It often doesn't even get to that point, and the threat hanging ahead of them is going to be worsened by it being a broader definition.

The Chair: Thank you very much.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): One of the problems the police have expressed to us is they are sort of overwhelmed by the amount of evidence—take a computer with 50,000 or 100,000 images.

Perhaps a question to the lawyers in the group. On disclosure, they take the position that in full disclosure, all the images must be recorded, etc., and turned over. Is there a possibility this could be restricted to a reasonable number of images on a computer, as opposed to the whole disclosure? Simply the time and effort that goes into it could better be used in other aspects of investigations.

Mr. Frank Addario: Perhaps the Criminal Lawyer' Association can respond to that.

I would say that if you were going to do it, you wouldn't want to vest the right to make the decision in the police. But you would want to give them the opportunity to apply to a judge for permission not to meet the ordinary disclosure requirements mandated by the Supreme Court in Stinchcombe and section 7 of the charter. So there might be a case where there are 15,000 pieces and a representative sample might fairly enable the defendant to defend himself. But you couldn't say you'd have to give the discretion to the police, because they shouldn't be the ones who would decide that.

I don't see an objection to allowing them to apply to a judge under an amendment to the Criminal Code for permission to cut back.

The Chair: I'll have to go to Ms. Brosseau to get all that head shaking on the record.

[Translation]

Ms. Carole Brosseau: I would repeat what I said earlier. Given the current state of the law and case law with regard to the Canadian Charter of Rights and Freedoms, if there is evidence you want to use for the prosecution, that evidence must be fully disclosed. It is an integral part of a full and fair defence.

I understand the concern of police officers, who have said that the evidence is becoming increasingly complex because of new technical and computer processes, but don't forget that the law is also becoming more complex. Just because the law is becoming more complex does not mean we should stop practising it. The way evidence is used will probably have to be refined. In the best of all worlds, it would be categorized and samples would be given to the defence.

In Quebec at least, I can say that there have been recent failures in that regard and defence lawyers did not necessarily have access to everything. But I think that we can give the police tools to better carry out their job. Perhaps we should work more on that approach to help the police make better use of the computer tools which they now have at their disposal. With regard to technical means, I think the situation can be greatly improved without amending the Code nor the rules of evidence, and without overhauling the law. I think we can use a different approach.

» (1725)

[English]

The Chair: Thank you very much.

Ms. Lill.

Ms. Wendy Lill: I would like to ask a question about the shifting community standards. We know that, depending on where we are in our history, we have very different standards. Since September 11 all sorts of things have become very unacceptable and really offensive to people that weren't before. So I guess the idea of the public good is one of those shifting concepts.

I'm trying to figure out how it would hold up in court, how it would help us to really get at the issue we want to get at, which is to prosecute child pornographers. Are there loopholes in this definition of public good that are going to frustrate us and not get us any closer to our collective goal?

Mr. Nicholas Bala: Part of it--and you've heard this--is that “public good” has been very narrow and not used very much, because “artistic merit” is out there as a broad and protective important concept.

I'm sure that if you amended the act the way it is in front of you right now, and there were only a few cases in the past, the judge would say “Well, one aspect of public good must be artistic merit”, although some might say “Well, if you take it out, it's not there at all”. But I suspect they would tend to expand it. Particularly in light of the charter's freedom of expression, they'd start to read in.

Probably a better way to go is to say, if the problem is that “artistic merit”, in the view of some--and I would be one of them--as articulated particularly in the subsequent Sharpe decision, is too broad, you should look at narrowing it, as opposed to just throwing it out completely.

Mr. Frank Addario: I think I would be repeating myself to say that we thought the artistic merit defence was working. There's no evidence that it's not working, and changing it or eliminating it and adding “public good” we don't think would necessarily advance the ability of the police to prosecute, except to the extent that they'd get convictions that they weren't otherwise entitled to, by virtue of the vagueness of it.

With respect to Mr. Matas' suggestion, as I understand it, he'd essentially be replacing a very explicit definition that was given by the chief justice at paragraphs 64 and 65 of the Sharpe judgment, with a vague phrase, the “public good”, but then adding these criteria that could be taken into account.

I'd say, if it's intended to parallel the artistic merit provision, then what's the gain? If it's not intended to parallel the artistic merit provision, I think we're opposed to it.

The Chair: Thank you very much.

I have Mr. McKay and Mr. Toews. We're pretty much out of time, so please be brief.

Mr. John McKay: Just to correct the record, Wendy Lill said I sponsored a.... I think my colleague in crime, Dan McTeague, was the sponsor of that. I was sort of puzzled by the reference, first thing.

The Chair: Actually, I think she referred to it as “stunning”. Generally, that's not “stunned”, I would take it.

Mr. Toews.

Mr. Vic Toews: Thank you.

The evidence that we heard yesterday from the police was certainly, if not a direct statement, an inference that the disclosure requirements at Stinchcombe, the cataloguing of all this evidence, was in fact being abused by defence counsel, with no intention of defence counsel ever going through all the material, but just to make sure that the crown goes through it, and it basically ties down the police and the crown.

In fact, the suggestion that was made is indeed an interesting one, that there be some kind of an application to the court to allow a sampling, because in fact in the Butler case--I was involved in that prosecution--when that case went to the Manitoba Court of Appeal, Mr. Justice Philp, as I recall, stated to us in an in camera application that he had called that we've seen these kinds of things before, and they seem to have a repetitive theme, so could counsel sort of go through it jointly and decide which ones are representative of the case you're trying to make, and then we would only have to view those particular aspects.

That was done by consent, but I think your suggestion that we do that by way of some kind of an application to the court makes a lot of sense. Otherwise, I don't see any alternative.

I see the suggestion made that you're going to just have to do it all, but what I've posed to police officers in the past is, all right, you have a half a million cases or half a million photographs or movies in one particular case. Why don't you charge a person with 10,000 counts? Each picture is one count.

We used to do it all the time with bad cheques. If somebody does a hundred cheques, it's a hundred different counts, one of fraud and one of false pretences.

So if defence lawyers want to play that kind of game, I'm wondering why the crown counsel simply doesn't say all right, we're just going to prosecute 200 of these pictures, 200 different counts, and here are the photographs for those 200. Is there any requirement that they then produce all the half million? It's just a suggestion.

Mr. Lee seems to have the answer to that.

» (1730)

The Chair: Ms. Brosseau, and then we have to go. We have a 15-minute bell. It has already started.

[Translation]

Ms. Carole Brosseau: In my opinion, this is not an issue of law, but of management or administration. Let me explain why.

If I may be more specific, I would say that the problem does not lie with the disclosure of evidence, since the production of evidence in court and its disclosure is an issue which can be solved, but rather with how to develop the evidence.

The situation may be somewhat different in Quebec, because the Crown prosecutor analyzes the evidence and decides how much of it to produce in court. In some circumstances, in some jurisdictions, there is no Crown prosecutor appointed at the outset of an inquiry. That may be an acceptable solution which would reduce the onus of evidence, which is sometimes too extensive, on the police with regard to certain offences. If you want to use evidence, you must disclose it. So, it may just be a matter of making the right choices and managing the process differently. But I don't think it is a matter of the right to obtain the evidence, and so on.

[English]

The Chair: I'm sorry, Mr. Toews, we have to shut it off. We have to get to the House.

I want to thank all the panel. I would also like to throw in a thanks to the Canadian Defence Lawyers association for their surprise attendance.

He missed it completely, but that's all right.

Thank you very much.

The meeting is adjourned.