BRIEF TO THE
STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
HOUSE OF COMMONS
40th Parliament, 4th Session
An Act to Amend the Criminal Code (Sexual Offences Against Children)
Presented by the Canadian Criminal Justice Association
Background of Canadian Criminal Justice Association
The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Standing Committee on Justice and Human Rights regarding Bill C-54, An Act to Amend the Criminal Code (sexual offences against children). The members of the Association certainly recognize the importance of protecting children from sexual predators and we have sincere empathy with and concern for the victims of child sexual abuse. Nevertheless, we are troubled by some of the approaches taken in Bill C-54 and by the assertion that this legislation will protect children from sexual victimization. In this brief we provide a research-based analysis of the provisions in this bill and look forward to your questions and comments.
The CCJA is one of the longest serving non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before this committee on numerous occasions. Our association consists of nearly 800 members and publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, the Justice Directory of Services, and the Directory of Services for Victims of Crime. We also organize the “Canadian Congress on Criminal Justice” every two years.
History & Relevant Issues Pertaining to the Legislation
Canada has had a lengthy history of moving judiciously to create sound legislation in the area of sexual offending that is consistent with the Charter of Rights and Freedoms and that employs the least restrictive measures that can be effective in responding to these serious crimes. While our American neighbours have often rushed into ill-conceived and sometimes counter-productive measures (Megan’s Law, creating the public sex offender registry, for example), responding to public pressures to “get tough” on sex offenders, Canadian policy-makers have historically taken a more measured approach, taking into account the need for effective rehabilitation programs to prepare sexual offenders for their eventual return to the community, and tailoring sentences to the individual criminogenic needs of the offenders (Pertrunik 2002; Petrunik 2003). In 1981, Dr. Robin Badgley was asked to chair a Special Committee on Sexual Offences Against Children and Youth. The Badgley Commission was established in response to a need for factual information surrounding the incidence of sexual offences against children and youth, in order to substantiate the need for changes to the criminal code proposed in Bill C-53 (1981) - an act to amend the criminal code in relation to sexual offences (Lovely 1992). The CCJA supports this type of reasoned and research-based policy-making. In response to the 1984 recommendations of the Badgley Commission, Parliament created the offences of 'invitation to sexual touching', 'sexual interference', and 'sexual exploitation' on June 30, 1987 by passing Bill C-15, which was proclaimed into law on January 1, 1988.
The first Canadian legislation on child pornography was enacted in August of 1993 with the proclamation of Bill C-128 (An Act to amend the Criminal Code and the Customs Tariff – child pornography and corrupting morals). This legislation provided a legal definition for child pornography and prohibited its production, sale and possession.
In 2002, in response to increased public concern about the use of the internet as a vehicle for would-be predators to attract and meet child victims, Bill C-15A created the offence of child “luring” online and amended child pornography legislation to take into account its presence on the internet.
In December 2002, following a public consultation on child victims by the Department of Justice, the federal government introduced Bill C-20, which, among other goals, aimed to further protect children and other vulnerable persons from sexual exploitation. This legislation expanded the 1993 definition of child pornography to include written material “the dominant characteristic of which is the description, for a sexual purpose, of sexual activity with a person under the age of 18 years that would be an offence under this Act.” This change removed the requirement that the individual be found to possess material intended to “advocate or counsel” sexual activity with a person under 18 in order to be convicted of a child pornography offence. Bill C-20 also introduced a new category of sexual exploitation which made it an offence for an adult to have sexual contact with a young person between the ages of 14 and 18 while in a relationship that is “exploitative of the young person.” The bill also proposed the creation of the offence of “voyeurism,” making it an offence to secretly observe or record a person for sexual purposes where there is a reasonable expectation of privacy. This bill died on the order paper when Parliament was prorogued on November 12, 2003 and was subsequently reintroduced as Bill C-12 in February, 2004. Bill C-12 also died on the order paper with the dissolution of Parliament in May, 2004. Bill C-2, introduced in the first session of the 38th parliament on October 8, 2004, incorporated the changes in C-20/C-12, and increased the penalties for sexual offences against children by introducing mandatory minimum sentences. This bill was passed in July, 2005 and the bulk of its provisions came into force in November of the same year.
Bill C-23, the Sex Offender Information Registration Act was also tabled in December 2002 in response to pressure from the provinces, some of which were already operating their own provincial registries. The bill was debated at second reading before Parliament prorogued in November 2003. It was re-introduced as Bill C-16 when Parliament resumed sitting in February 2004 and was given Royal Assent on April 1, 2004, creating the National Sex Offender Registry Act, which came into force in December, 2004.
Overview of Bill Amendments
Bill C-54 proposes to (1) increase the mandatory minimum penalties instituted by Bill C-2 in 2005, and to create new mandatory minimum penalties for incest and bestiality, sexual assault, sexual assault with a weapon and aggravated sexual assault when the victim is under the age of 16; (2) create a new category of judicial order prohibiting offenders from using the Internet or “other digital network,” except in accordance with conditions set by the court; (3) create a new offence of transmitting, making available, distributing or selling sexually explicit material to a minor for the purpose of facilitating the commission of a sexual offence; and (4) update the child luring legislation to take into account the use of telecommunication devices besides computers (ie. Cell phones, etc).
In the opinion of the CCJA, Canadian legislation that addresses sexual offences against children must be created and amended carefully, taking into account societal changes, such as the increased prevalence and use of the internet, and involving solid criminological research and public consultation in order to ensure that the laws passed will have the intended effect of protecting children from sexual abuse. We note that the mandatory minimum sentences brought into effect in 2005 were opposed at the time by criminologists, who questioned their efficacy in terms of deterrence. The preponderance of criminological research demonstrates that mandatory minimum sentences, regardless of severity, do not have a deterrent effect and will therefore not prevent child sexual abuse. The current mandatory minimum sentences for child sexual abuse (which range from 14 to 45 days’ incarceration) have been in place for a scant 5 years, which is not sufficient time to ascertain their effect, if any, let alone to determine that they are inadequate and in need of upward revision. Further, there is no research to suggest that more severe mandatory minimum penalties will have the desired effect of deterring crime.
The CCJA continues to maintain its historical stance against the imposition of mandatory minimum sentences (see position paper available online at http://www.ccja-acjp.ca/en/pp/pp0004.html). Our analysis of research and evidence continues to find that the introduction of mandatory minimum penalties has little to no deterrent effect and serves only to increase the number of persons held in prisons and correctional facilities. Further, the members of the CCJA believe (along with many other criminologists and policy analysts) that mandatory minimum sentences are generally inconsistent with the fundamental principle of determining sentences based on proportionality, taking into account the seriousness of the offence and the degree of responsibility of the offender. Removing judicial discretion to determine a penalty that is appropriate to the particular offender and circumstances of the case creates a situation in which some punishments may be fundamentally unjust. Furthermore, the use of mandatory minimum sentences fails to recognize that offenders are heterogeneous in terms of their relevant social histories, mental faculties, abilities and circumstances. Applying a homogenous, standard minimum sentence is contrary to the needs of public safety and does not address the individual criminogenic needs of convicted offenders nor consider what might be best for their rehabilitation. For this reason, the CCJA remains opposed to further and continued use of such mandatory minimum sentences and cannot support the proposed increases contained in this legislation.
With respect to the new category of judicial order prohibiting offenders from using the internet or other digital network, the CCJA understands the government’s desire to prevent individuals from using the internet in a way that poses a risk to children. However, such a blanket prohibition against internet usage in this digital age may create a significant hardship for offenders who return to the community and need to find employment or return to school. Many jobs require the use of a computer and/or the internet, and the internet is now an indispensible tool for higher education. Our organization foresees that placing such a blanket restriction on internet usage will disadvantage many released offenders and make their reintegration into the community more difficult, forcing some, who might otherwise have obtained jobs, to require social assistance. The previous restriction against using a computer system “for the purposes of communicating with a person under 16 years of age” seems a more reasonable restriction that does not place undue hardship on the individual. For these reasons, the CCJA would recommend that section 161.(1) of the criminal code continue to read as is.
The proposed new offence of making sexually explicit material available to a minor for the purposes of facilitating the commission of a sexual offence is also fraught with difficulties. The most obvious difficulty that we can foresee is the problem of determining “intent” when an adult provides children under the age of 18 with sexually explicit material. One need only read the news to find numerous examples of parents who are upset at the sexually explicit content of materials provided to their children in the context of sexual education classes. Might these teachers be accused and fall victim to this type of legislation? Presumably their “intent” in providing these types of sexually explicit materials to students would be determined by the court; but by the time the case reached the courts, that teacher’s reputation, livelihood and life would be destroyed. The implications of false accusations of child sexual abuse and “grooming” are serious. Our organization feels that this proposed new category of offence is simply too broad to be appropriately enforced and to rule out the likelihood of miscarriages of justice.
Further, given the already frequent exposure of the average youth to sexually explicit and pornographic materials on the internet and in mainstream media, it is unclear that this legislation serves any protective or preventative function. A survey of American college students published in 2008 found that 93% of boys and 62% of girls were exposed to pornography during adolescence (Sabina, Wolak & Finkelhor 2008). While some of these individuals were exposed accidentally or unintentionally, the vast majority reported seeking out sexually explicit material. This legislation is unlikely to serve a protective purpose in keeping young people from being exposed to sexually explicit material, and the potential for harm or miscarriage of justice with such a broadly defined law seemingly outweighs any possible benefits. Thus, our association is unable to support the creation of this new offence category.
The provisions for updating the existing legislation on child luring to take into account multiple forms of telecommunications are advisable and serve to ensure that the particular media used does not become a legal point of contention in prosecuting such cases of child luring and arranging to meet for the purposes of committing a sexual offence against a child. Our association supports the proposed amendments to Sections 172.1(1).
Recommendations & Conclusion
Based on the discussion and reasoning provided above, the CCJA recommends that the committee reject the increases in mandatory minimum sentences proposed in C-54 on the basis that no evidence has been provided to suggest that the current sentence guidelines are inadequate to serve the fundamental purposes of justice and to allow a range of sentences that will be appropriate to many varying circumstances. The 5 year mandatory minimum proposed for the crime of incest should, likewise, be rejected on the basis that this severe penalty may not be appropriate in all circumstances; particularly given that many cases of incest are historical in nature and deal with aging defendants who no longer pose a threat to the community.
We further recommend that the committee reject the introduction of the new offence of “making sexually explicit material available” to persons under the age of 18 on the grounds that this offence category is too broad to be adequately enforced and is likely to result in miscarriages of justice and false accusations. This legislation will not prevent children from being exposed to sexually explicit material and serves no protective function.
We recommend that the committee accept the proposed revisions to child luring legislation - Section 172.1(1) as these technical revisions are necessary to ensure that all forms of media are covered by the law and that the law remains enforceable.
We would be happy to provide further information, at the request of the committee, or to appear in person to answer questions about this legislation and our brief.
References and Supporting Documents
Casavant, Lyne & James R. Robertson (2007). The Evolution of Pornography Law in Canada. Ottawa: Library of Parliament, Law and Government Division. CIR84-3E. Available online: http://www2.parl.gc.ca/Content/LOP/ResearchPublications/843-e.htm#billc20
Petrunik, Michael. (2002). Managing Unacceptable Risk: Sex Offenders, Community Response, and Social Policy in the United States and Canada. International Journal of Offender Therapy and Comparative Criminology, 46(4): 483-511.
Petrunik, Michael. (2003). The Hare and the Tortoise: Dangerousness and Sex Offender Policy in the United States and Canada. Canadian Journal of Criminology and Criminal Justice, 45(1): 43-72.
Sabina, Chiara, Janis Wolak & David Finkelhor (2008). The Nature and Dynamics of Internet Pornography Exposure for Youth. Cyber Psychology and Behavior, 11(6): 691-693.