[Recorded by Electronic Apparatus]
Tuesday, October 1, 1996
.1552 
[English]
The Chair: Order.
I apologize for our tardiness. This is a case of the world's slowest woman wanting to meet the world's fastest man.
Today we have Bill C-27, An Act to amend the Criminal Code with respect to child prostitution, child sex tourism, criminal harassment, and female genital mutilation.
We also have a private member's bill of Madame Gagnon, Bill C-235, An Act to amend the Criminal Code with respect to genital mutilation of female persons.
Our witnesses are Mr. Roy, senior general counsel, Criminal Law Policy; Elissa Lieff, senior counsel, Criminal Law Policy; and Carole Morency, counsel, Family, Children and Youth Section, from the Department of Justice.
Mr. Roy, did you want to make a presentation or just field questions?
Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy, Department of Justice): Madam Chairperson, I'm basically in your hands.
I have some notes, if there is a need for me to make a short presentation as to what this bill is attempting to do. On the other hand, if the members and you as chairperson wish simply to ask us questions, again that's fine by us.
The Chair: Probably an overview would be helpful. I see nobody objecting to that, so perhaps you could give us just a few words before we begin.
Mr. Roy: Bill C-27 is an attempt by the Minister of Justice to deal with four areas of the law where there is obviously a need for amendments. The four areas have to do with child prostitution, child sex tourism, criminal harassment, and, finally, female genital mutilation.
At the Ninth United Nations Congress on the Prevention of Crime and Treatment of Offenders, which took place in Cairo in May 1995, member states were urged to adopt effective measures against practices harmful to women and children. There is also pressure for member states - and that obviously includes Canada - to do something in those areas coming from the 1993 United Nations Declaration on the Elimination of Violence Against Women and the 1995 platform for action of the Fourth World Conference on Women. These two meetings recognized that there is a need for action.
Canada has ratified the United Nations Convention on the Rights of the Child. We hope this bill will help to fulfil our commitments, as set out in the convention, to protect children from all forms of sexual exploitation and unlawful sexual practices.
Finally, Bill C-27 also supports our commitment at the August 1996 World Congress Against Commercial Sexual Exploitation of Children, which took place in Stockholm, and its declaration and agenda for action adopted by all participants.
My colleagues, Ms Morency and Ms Lieff, took part in that meeting in Stockholm. If there is a need for it, obviously we'll be able to answer questions relating to that.
.1555
Now let me turn briefly to the four areas we are trying to cover in this piece of legislation. First, child prostitution.
The changes that are proposed in the bill are aimed at protecting children from adult predators. One of the main points of discussion during the consultations that took place in preparation for this bill was the enforcement difficulties associated with subsections 212(2) and 212(4) of the Criminal Code, which require that a prostitute give evidence against a procurer, when in most cases child prostitutes simply do not wish to appear as witnesses against their pimps. By changing the wording to make it illegal to attempt to procure the sexual services of a person who the offender ``believes'' is under the age of 18, it would be easier to apprehend customers of young prostitutes.
Also created by Bill C-27 is an evidentiary presumption, to facilitate the proof of this belief. A new offence of aggravated procuring, with a five-year minimum sentence, would also be created for those who, for their own profit and while living on the avails of a child prostitute, use violence or intimidation in carrying out prostitution-related activities.
To make it easier for child prostitutes to testify in court, the proposed amendments would allow testimony from behind a screen, videotaped evidence, or the use of a closed-circuit television system, just as for any other victims of child sexual abuse. Bill C-27 proposes to let the courts make an order restricting the publication or broadcast of the identity of the complainant or witness in a prostitution-related case. This is intended to encourage prostitutes to testify.
As you can see, a number of measures are aimed at the phenomenon of child prostitution in order to give law enforcement the tools to fight that particular problem.
Child sex tourism is another area covered by this bill. As most of you will know, the code already addresses certain aspects of sex tourism. More particularly, and depending on the circumstances, proposed section 212 could be applied to tour operators or travel agents offering sex tours in this country, since proposed paragraphs 212(1)(a) and 212(1)(g) specifically provide for this kind of behaviour.
The proposal in Bill C-27 would amend the code to enable the criminal prosecution in Canada of Canadian citizens and permanent residents who travel abroad to engage in the sexual exploitation of children for money or other considerations. Therefore what is being asked of Parliament is to extend the jurisdiction of our courts for criminal actions committed elsewhere, not within the four corners of this country, as is traditionally the rule in Canada and in common-law jurisdictions. Child sex tourism can only be stopped by international commitment and collaboration, but with this amendment Canada will join eleven other countries that have already adopted measures that resemble what is being proposed to Parliament.
Also in Bill C-27 are some provisions having to do with criminal harassment, what is commonly known as ``stalking''. What is being proposed here is to strengthen the existing Criminal Code prohibition of criminal harassment. Bill C-27 proposes that a person who commits murder while stalking in circumstances where he or she intended to make the victim fear for their safety or the safety of others can be found guilty of first-degree murder, which as we all know carries a minimum penalty of spending 25 years in prison, the mandatory penalty being life in prison. Bill C-27 further proposes that a court imposing sentence on a person who is convicted of stalking in breach of an existing protective order - what we call, generally speaking, a ``peace bond'' - shall treat such a breach as an aggravating factor for sentencing purposes.
[Translation]
Lastly, Madam Chair, Bill C-27 addresses the issue of female genital mutilation. It makes it clear in no uncertain terms that in the opinion of the Minister of Justice, the practice known as female genital mutilation constitutes an offence under Canadian criminal law and an offence under section 268 of the Criminal Code punishable by up to 14 years' imprisonment.
.1600
One of the bill's amendment would provide for a medical exception to allow physicians authorized to practice medicine under provincial laws to perform necessary surgical procedures based on the diagnosis given.
Other countries which have adopted laws to prohibit mutilation have made provision for similar exceptions in the case of recognized surgical procedures.
Bill C-27 further clarifies the amendment, stipulating that a young person under the age of 18 cannot consent to genital mutilation, and no other person can consent on that young person's behalf. This stipulation is included in the legislation to acknowledge the fact that children are more vulnerable to abuse than adults and that children are in greater need of protection.
The Criminal Code contains specific provisions geared to children, such as those relating to consent to sexual activity. The proposed amendment is consistent with the principle whereby additional protection should be afforded to children and that is why the Code is being amended to address this matter specifically.
It is important to note that pursuant to sections 21 and 22 of the Code, anyone who counsels, aids or abets a person in the commission of an offence, and, by extension, the offence of female genital mutilation, is considered criminally liable. It isn't necessary to specifically provide for this offence in the Code.
Under section 273.3 of the Code, it is illegal to remove a child from a country for the purpose of having that child undergo this procedure; here again, the Code spells out the penalty for this type of behaviour.
The departments of Justice, Health, Status of Women, Heritage and Employment and Immigration are working on education and information projects to inform the public on the legal, cultural and health-related aspects of female genital mutilation. Achievements to date include a report on community-level consultations in 1995, a study of the available documentation, an information package for community workshops across Canada and consultations involving health care workers.
[English]
As you can see, Madam Chair, the portion of the code that would be amended would be merely to make it clearer, if there is a need for that, that this kind of activity constitutes an offence in criminal law. There is already some work under way to help with the education that probably is required of some of those communities to make sure these people understand that this is criminal, and therefore there will not be such a practice in our country.
So those are the four areas Bill C-27 is attempting to address. My colleagues and I would be more than happy to try to answer your questions, to enlighten you, if we can, on these difficult areas of the law.
The Chair: Thank you very much.
Madame Gagnon, ten minutes.
[Translation]
Mrs. Gagnon (Québec): I am pleased to speak today on Bill C-27 which deals with an issue very dear to my heart. I have sponsored a private member's bill, Bill C-235, which also deals with the issue of female genital mutilation and sex tourism.
I would like to suggest a few changes to these two aspects of Bill C-27. I look forward to hearing from the witnesses because for the moment, these provisions seem rather obscure, even though we have already met with departmental officials.
.1605
The private member's bill that I sponsored was educational in nature. I find the minister's bill too restrictive. Let me explain my views on several aspects of the proposed legislation.
Take, for example, the subject of female genital mutilation which comes under the Criminal Code assault provisions. I would have preferred it if the legislation did more to educate those who subscribe to the practice of female genital mutilation. I would have liked to see the practice considered as a separate offence and to have a clear explanation of the procedure given.
We know very well that these persons, whether in their own country or here, do not view the procedure as an assault. We have to explain to them what female genital mutilation is. If the minister's bill does nothing more than describe the act in the assault provision, then it will have no educational significance, as we would have wished.
I question the exception which would allow medical practitioners to perform surgical procedures. I have written to a number of people in the medical field and to gynaecologists. I hope that the committee will be able to hear from some of these individuals. The organization that represents these individuals does not appear to support the exception contained in the minister's bill.
With respect to genital mutilation, the proposed legislation says that young persons under the age of 18 will not be able to consent to the procedure. Again, I have some problems with this provision. Does this mean that the practice of female genital mutilation involving women 18 years of age and over is acceptable?
Once again, I don't believe the minister's bill will have the desired educational effect. We are sending out a mixed message by saying that persons under 18 cannot consent to this procedure whereas those over 18 can. I am anxious to hear from groups concerned about this issue. They will certainly have something to say about this matter.
It is a well-known fact that a great deal of pressure is put on women to undergo this procedure. I don't know whether you are familiar with the practice of female genital mutilation.
I wouldn't advise that we watch a film about the procedure, because I don't think many of you could sit through it. The procedure is indeed extremely brutal and performed under abominable conditions. I think you all know what is involved.
That is why I would have liked this practice to be considered an offence under the Criminal Code. We are told that the legislation contains general provisions. I don't know if I'm using the correct terms, since I am not a legal expert, but I will try to explain myself as best I can.
I did a bit of research. Certain sections of the legislation contain very explicit definitions. For example, the definition in section 22 of aiding and abetting comes up again in connection with other offences.
I have spoken on the subject and the same problem arises in the case of the sexual exploitation of children. There was no wish to specify that agencies were involved. Some of the details in section 22 and other Criminal Code sections can also be found in the general provisions.
I may come back to this point later if time permits and I will give you other examples. I do not feel that this bill has the desired effect.
As far as the consent provision is concerned, I think we're making a mistake and taking the wrong approach. We are sending out a mixed message to men. Often, the male-dominated society is the one which decides because a woman who has undergone the procedure is deemed marriageable.
People still need to be educated a great deal. A bill is not enough. Women believe that when they have undergone excision, they are more acceptable and marriageable. In certain societies, mutilation is one way of controlling a woman's body.
.1610
The general provisions also address the principle of extraterritoriality. Why do I mention this? Because we are looking at these issues as a whole and they should be clearly defined. I would like someone to enlighten me on these matters. Have you really carefully considered persons under the age of 18? Perhaps there is a reason why you specified that young persons under 18 cannot consent to the procedure, while it's different for those over 18 years of age.
I doubt that certain medical procedures would be authorized in some cases. I think we should demand a clearer definition of female genital mutilation. This procedure, while not customarily performed here in Canada, may be carried out by cultural communities which have decided to adopt Canadian or Quebec values. These communities need to be enlightened. That's why I think we should have a very specific definition of the procedure.
Mr. Roy: Madam Chair, when attempting to address the unique phenomenon of female genital mutilation, the Minister of Justice encounters the problem of having to examine this type of behaviour in light of the law as it now stands.
Let me try to explain what I mean. This is an especially difficult subject and I would hope that we discuss the issue further, if ever my explanation was not sufficiently clear.
When we began to receive inquiries in 1994, the minister maintained that this practice was already banned under the Criminal Code. The minister based his argument primarily on existing law, that is on the existing assault provisions in the law, namely on sections 265 to 269 of the Criminal Code.
How is assault defined? An assault occurs when someone uses force on someone else against that person's will. Depending on the outcome of this use of force, different types of offences may be committed: assault causing bodily harm or aggravated assault causing bodily harm, pursuant to section 268 of the Code.
Clearly, when someone is undergoing female genital mutilation, that person is being assaulted. The question that arises is whether this person who has consented to the procedure could in fact be guilty of a criminal offence.
To understand what this means, we have to look to the Supreme Court and the court of appeals that have handed down rulings in assault cases as to what in fact constitutes consent. The Supreme Court appears to have imposed certain restrictions in one of its well-known ruling, the Jobidon decision.
Therefore, when reviewing this matter, the Minister must bear in mind this precedent as well as written statute law. He must try to include a provision dealing with genital mutilation without somehow sending out a signal at the same time that this practice is not now viewed as an offence.
.1615
You can understand that if we had a bill similar to the one that Mrs. Gagnon is sponsoring, Bill C-277, some could advance the following argument: since you are creating an offence, this means that the practice is not currently an offence and so in the meantime, it can be tolerated.
This is not the position of the Department of Justice and it is certainly not the position of the Minister of Justice since we believe that section 268 already applies. Therefore, the Minister must guard against creating a legal void by tabling a bill. This bill is being tabled for added certainty. It is simply making it clear to those would consider performing this procedure at the present time that they could not do so with impunity.
The goal of Bill C-27 is essentially educational. The Minister of Justice does not want to give communities where this practice is tolerated the impression that this is acceptable in Canada. The Minister has chosen to state this position specifically rather than to create an offence which could give the impression that a legal void now exists. The minister believes that by stating specifically that female genital mutilation is an offence under section 268, he is getting the desired message across to these communities without necessarily running the risk of creating a legal void. At the same time, he is meeting his objective, which is to educate people.
On the other hand, as I was saying, the minister must position this provision within the general law as it relates to assault. The law is not solely statutory in nature, but is also a function of court decisions.
This brings me around to the two exceptions in Bill C-27 to which Mr. Gagnon alluded, namely the medical exception and the exception pertaining to consent.
Perhaps it would be easier to venture an explanation if I start with the exception respecting consent. As I was saying, in the Jobidon case, which has been followed by other cases, in particular the Welch case before the Court of Appeal of Ontario, the courts found that there was a limit to the extent to which a person could consent to have bodily harm inflicted upon him by another person.
Take for example the Jobidon case. If my memory serves me correctly, Jobidon was a patron in a Sault Ste. Marie bar and got into an argument with another customer. The two decided to settle the matter outside. The argument continued in the parking lot, Jobidon punched the other person, the victim. He fell backward, struck his head on a car and subsequently died.
The defence argued that the victim had consented to the fight when he stated "Listen, let's settle this matter outside". The Supreme Court of Canada ruled that valid consent should not be allowed to be given in similar cases.
In the Welch affair, a person was charged with sexually assaulting a woman during sadomasochist sex. The defence argued that the woman had consented to the assault. At the trial, the woman maintained that she had not given her consent. The judge was compelled to instruct the jury as follows: even if the woman consented to the act, does this constitute valid consent when in this particular instance, the sexual relations resulted in bodily injury?
After lengthy deliberations, the Court of Appeal of Ontario found that there are types of bodily injuries to which a person cannot consent. A brawl was not the issue here, but rather sexual relations of a rather unique nature.
This was a rather lengthy explanation of the question of consent in this particular case.
.1620
According to our charter experts, in certain types of procedures which come under the broad heading of female genital mutilation - you will have noted that the definition of female genital mutilation is broad and not particularly precise - , within the range of possibilities, there exists the possibility that someone may give their consent and that this consent is valid under common law.
If that were the case, there would be a risk with respect to the Charter. It probably falls within the general notion that a person should be free to do whatever he wishes with his body.
I wouldn't want you to misinterpret my comments when I give you an example of the uses the law allows persons to make of their bodies.. I don't want someone to tell me that I'm talking about something totally different and that my comments are outrageous.
For instance, some persons consent to having their bodies tattooed and to having certain body parts pierced, in particular genitalia.
The law as it now stands authorizes this type of assault when valid consent is given.
A person can have his ears, nose, lips and other body parts pierced and, based on the Jobidon or Welsh decisions, we cannot say that valid consent was not given.
The question that we, the minister and you, as parliamentarians, must ask is whether a person of full age, that is 18 years of age and older, can give consent which is valid under law to this procedure as defined in our bill.
The fact of using the word "mutilation" lends a certain connotation to the procedure. However, the definition proposed in Bill C-27 for inclusion in the Code is much more sanitized. The reference made is to the excision of certain female body parts. The question that arises is whether it is possible or within the realm of possibility for consent to be given to some of these excisions. And if it is possible to give one's consent in common law, would Parliament, by refusing to acknowledge that such consent is possible, be overstepping its authority under the Charter of Rights and Freedom?
This is the dilemma that arises when we grapple with the issue of consent.
The minister is proposing the following: in the case of a person under the age of 18, consent cannot be given.
As I was saying in my introduction, the minister believes that children should be granted special protection. A young person should not have to undergo this type of procedure because of family pressure, or worse still, because someone has consented to the procedure on that young person's behalf.
Moreover, in the case of a person over the age of 18, the bill proposes that the common law provisions apply, as was the case further to the Jobidon, Welch and other decisions.
I submit to you that this approach is consistent with what other jurisdictions, including England, have adopted with respect to the notion of consent.
We fully realize some will argue that no provision for consent should be made whatsoever.
.1625
I believe that is the position Mrs. Gagnon is advocating.
The minister, however, is saying that certain exceptions may apply. Therefore, in his opinion, provision should be made for consent. I believe that the committee is going to hear from certain witnesses who share this view. We will be very interested in hearing what they will have to say.
This brings me to the final part of my presentation which I realize has been lengthy. Nevertheless, I hope that I have been able to shed some light on this subject for you.
The final point I wish to discuss is surgical procedures. In law, a surgical procedure is a form of assault. We start with this basic principle. When is it possible to undergo a surgical procedure without the doctor being criminally liable? Pursuant to section 45 of the Criminal Code, a medical practitioner is protected against criminal liability to the extent that he is carrying out the procedure because an emergency situation exists. Otherwise, the medical practitioner will require the person's consent.
Certain valid surgical procedures may be carried out for a valid medical reason, and therefore the excision of a portion of a woman's genitals may be medically necessary. I am referring here to cases where a cancerous growth, a cyst, or something similar has been found. If consent as defined in one of the bill's provisions is not given, the doctor who wishes to perform the surgical procedure would be unable to do so.
This explains the need for an exception as contained in the bill. If the person is unable to give their consent, there has to be something in the bill which authorizes the physician to perform the procedure. In this case, a medical opinion stating that the procedure is being performed for reasonable medical purposes would substitute for consent. By definition, this would exclude a physician who, working with a family requiring such a procedure to be performed, would carry out the operation on the pretence that he is a doctor. The fact that he is a doctor would not be enough; the procedure would have to be performed for recognized medical reasons.
That is the rationale behind our proposal to include an exception for medical procedures.
Mrs. Gagnon spoke of the notion of aiding and abetting. She indicated that there were instances in our criminal law where this notion was more clearly defined than a mere reference to sections 21 and 22 of the Code.
I'm thinking here about aiding and abetting in the case of assisted suicide, although this is done for very particular reasons which we can get into if necessary.
As for the other cases, I'm by no means convinced that the aiding and abetting was appropriate and I will not recommend that the criminal law be amended to create exceptions which are probably not necessary, since our law is clear on this point.
I invite the committee members and in particular our friends at the research branch to review the Supreme Court ruling in Thatcher on the scope of sections 21 and 22. The court held that it is unnecessary in law to link this specific notion to each offence created.
I realize that my answer was far too long, but I do hope that I have been able to enlighten you and that my comments will help to get the discussion going.
[English]
The Chair: Thank you. It certainly was complete.
Mr. Ramsay, ten minutes.
Mr. Ramsay (Crowfoot): Madam Chair, after that answer, I don't know if I want to ask him another question.
Mr. Roy: I apologize, Mr. Ramsay.
Mr. Ramsay: That's fine.
Madam Chair, our caucus will support this bill. We have concerns about it and we would make amendments to it if we could, but we will support it generally.
However, I have been reading the analysis of this bill conducted by Mary Hurley from the Library of Parliament, and she raises some very interesting questions about this bill. I wonder if the Department of Justice has this analysis.
.1630
Mr. Roy: No, we don't, Mr. Ramsay.
Mr. Ramsay: Very quickly, this analysis points out that in 1988 the Criminal Code was amended to introduce offences related specifically to procuring and seeking the sexual services of persons under the age of 18. Seven years later, the federal-provincial-territorial working group on prostitution acknowledged the view that these provisions have had little impact on bringing pimps and customers of child prostitutes to justice.
There are some questions listed here that I find interesting. Do you have any data on the number of charges laid under the various child-prostitution-procuring provisions of the Criminal Code? What is the conviction rate? What is the range of sentences imposed? To what do you attribute present problems in enforcing existing child prostitution provisions?
Then, when it gets to this special section, where a minimum sentence has been imposed, the current Criminal Code prohibits living on the avails of prostitution of a minor and imposes a term of imprisonment up to 14 years upon conviction of that offence.
One of Bill C-27's amendments would impose a mandatory minimum sentence on pimps of child prostitutes who are convicted of aggravated procuring. The proposed offence would require proof beyond a reasonable doubt that not only has the accused lived on the avails of prostitution but he or she has also aided or compelled the minor to engage in prostitution, and used, or attempted to use, violence or intimidation against a juvenile.
The question that's asked is a very obvious one. Why did the Department of Justice not focus its attention on better enforcement of existing child prostitution provisions rather than on the creation of a new offence?
What these questions raise in my mind is the possibility that we're creating new offences in the Criminal Code that may never be enforced. The child sex tourism part: although there isn't anyone who wouldn't support that, how do we enforce it? We have provisions in the Criminal Code now that are seldom, if ever, enforced.
So is this what we're doing? Are we adding to that list through Bill C-27? The female genital mutilation portion also raises that question. This is a hidden practice. The question under that heading asks how many people have been charged up until now with that kind of act. How many do we anticipate will be charged? How often does that kind of offence, as reprehensible as it is, take place?
Of course, my own thought is that we have created a situation where we're now outlawing a practice that may be culturally or religiously oriented, and we're allowing, through our immigration policies, for people to come into Canada, embracing those customs. Now we're saying to them, by way of a statute, that it is a criminal offence if they maintain those customs, as reprehensible as they are to you and I.
Again, are we creating legislation...? Yes, it's a warning. You must not go to Thailand and engage in child prostitution or you could be charged. How do we investigate that? How do we gather the evidence to charge an individual who's gone over there and done that kind of thing? That's the question this document raises in my mind.
I guess the bottom line is, yes, we should be doing everything we can, but when existing laws against child prostitution have not changed a thing, and if the rate of prostitution has not indicated that there is a successful war against that kind of evil within our society, then are we not simply adding law upon law that's difficult to enforce, where either it is difficult for the police and the Crown to obtain sufficient evidence to warrant successful prosecution or there are simply not the resources or perhaps the will to enforce it?
.1635
Mr. Roy: Let's turn first to child prostitution. I think the last thing the Minister of Justice wants to do is to create something that is unenforceable. With all due respect, we think the amendments proposed in this bill are making what is now unenforceable enforceable.
What we hear when we speak to the police, who are trying to do something against child prostitution, is that the main problem they encounter is in getting the child prostitute to testify against his or her pimp. They simply won't. And when you look at the section in the code right now, you will see that in order to get a conviction against someone, you need to show that the individual who is trying to get the services of that young prostitute knows the prostitute is under the age of 18. So we're trying to address problems with this legislation: first, enforcing this on the street, and second, getting at those pimps who are using young prostitutes.
How are we doing that? First, the amendments here would propose that someone who is believed to be under the age of 18 by the person who is making the approach will be found guilty of the offence. Why are we doing that? It's for the police to be able to use as decoys in trying to get people to come to those prostitutes policewomen or policemen who will be over the age of 18. Right now if you use a policeman or a policewoman the offence will simply not have been committed, because the person is not a child under the age of 18.
Suppose I'm a potential customer and I approach someone. I want to see if there can be an arrangement made whereby I'm going to get sex from that person under the age of 18. If the person is not under the age of 18, no offence is committed. Therefore I as a policeman cannot enforce that provision, because what I need is a way of getting to those situations, and right now I can't. So what the clause on page 4 of the bill does is to say ``or who that person believes is under the age of eighteen years'', so in the future the police will be able to use decoys, to put on the street young men and young women posing as prostitutes, and then nab people who will be coming to them to get the services of a prostitute under the age of 18.
That's the first point. The second point has to do with the pimps themselves. Again, under the scheme we have right now it is extremely difficult for these young people to testify. What is being proposed is a number of ways for them to testify without having to confront that pimp, and once these pimps have been caught, the penalty is extremely severe. We're talking about a minimum of five years in prison when there has been violence and when it is for a commercial use that the young prostitute has been used.
So the minister thinks on the one hand we're going to give the police ways of enforcing the code, which right now is extremely difficult, because they cannot use decoys, and on the other hand we're going to give tools to the court so these young prostitutes will be able to go and testify without having to be confronted by that individual, who is sitting across the table from where they are. Ultimately, once these guys are caught doing this, using violence and having the commercial aspect of this, they're going to go to prison for a long time.
That's why these proposals we think make this phenomenon...and make the enforcement of the law a lot easier for the police. Hopefully it is going to be supported by all, because it's giving the police tools they don't have right now.
Now, you were asking for statistics or other information, and I'm turning to my colleagues to see if they have something to add to my submission.
.1640
Ms Elissa Lieff (Senior Counsel, Criminal Law Policy, Department of Justice): At Justice we don't gather statistics on the number of charges laid under the provisions, but we've been involved in a federal-provincial-territorial consultation process in which there have been discussions about the number of charges that have been laid, particularly under section 212. It's clear that in some provinces they're laying charges and dealing with these cases more successfully than in others, which is part of the reason we were asked to address this problem.
In terms of the questions you raise about child sex tourism and the gathering of evidence, clearly it will be more expensive to deal with cases in which part of the evidence is gathered outside the country. We are aware, though, that there are situations where Canadians are involved in this kind of activity. It has been brought to our attention through discussions we've had with Revenue Canada and through the meeting we attended in Stockholm, at which we were advised by delegates from other countries of cases in which Canadians were involved in their countries. So we know this activity is definitely taking place.
The Chair: Mr. Gallaway.
Mr. Gallaway (Sarnia - Lambton): I just have a few questions and then I want to share my time, Madam Chair.
First, other than section 212 of the Criminal Code and the provisions that deal with hijacking, what other criminal laws do we have in this country that would dare to be extraterritorial in their effect?
Mr. Roy: I think the most prominent of them all is the one having to do with war crimes and crimes against humanity. You will find these provisions in section 7 of the Criminal Code. If someone has committed a crime against humanity as defined in international law or a war crime, wherever that crime has been committed, that person can be prosecuted in this country.
The basic rule under section 6 of the Criminal Code is that we prosecute in this country crimes that have been committed in this country. It is only in exceptional circumstances that Parliament will exercise its jurisdiction and give jurisdiction to the courts for offences committed elsewhere.
In the particular case we're talking about here, sex tourism, this has to do with the consensus emerging in international law. Canada would probably not bring forward the kind of legislation we're talking about if there were not that kind of consensus, because our tradition is that we stick to the crimes that have been committed here.
In international law there is a consensus emerging to the effect that countries should be able to prosecute their own nationals for these kinds of offences having to do with sex tourism. By their nationals I mean people who are citizens of that country. This bill is proposing to extend that notion to permanent residents, who are for all intents and purposes citizens of this country, other than some privileges they don't get because they're not citizens. They are residing here and are acting as Canadians. It is being proposed that these Canadians, citizens or permanent residents, who go abroad and commit this kind of offence will be prosecuted in this country for the crime committed elsewhere.
There are very few examples. I told you about crimes against humanity and war crimes. There may be some offences under the Immigration Act that have that extraterritorial application.
The Chair: There are sections under the Immigration Act and the Citizenship Act that are extraterritorial. For instance, it's an offence to use a Canadian citizenship document in the United States. It happens fairly frequently at the Detroit-Windsor border, which is why I'm familiar with it. People use a Canadian passport to enter the United States and they're caught, they're turned back and they're charged with the offence in Windsor even though it occurred in Detroit.
Mr. Gallaway: We've had witnesses before this committee on other subject matters describe.... This bill has a rather lengthy preamble. At the bottom of the first page it talks about ratifying the United Nations Convention on the Rights of the Child, which I believe the previous Parliament did do. I don't think anyone disagrees with that.
Which other countries are enacting criminal laws that are similar or parallel to this section we are proposing to enact?
.1645
Mr. Roy: I said in my introduction that there are 11 countries. We have the list here. Perhaps Ms Lieff could give it to you.
Mr. Gallaway: They have enacted -
Mr. Roy: Extended jurisdiction beyond their borders.
Mr. Gallaway: Interestingly, some of us on this committee are doing the Young Offenders Act review. It talks about the age of consent being 18. I don't know anything about ages of consent, but what would happen if the age of consent in a country was 16?
A voice: Ours is 14.
Ms Lieff: What this does is extend the application of our prostitution law, which refers to the age of 18.
Mr. Gallaway: The fact is that if the age were 16 in another country, then in one sense you would be abrogating the laws of that country. Is that correct?
Mr. Roy: My understanding is that the countries we're talking about where that kind of a practice may happen are ones in which using children for sex would be an offence, as it is in this country. In other words, child prostitution is illegal but to some extent tolerated by the authorities in those countries, for whatever reasons. But it's a crime. It's not as if it were a crime only here and not abroad.
Mr. Gallaway: I understand that, but I'm asking you a specific question. I'm picking an arbitrary age of 16. Is child prostitution illegal in countries involving people who are 16 years of age, or is the age of consent legal in certain countries?
Ms Lieff: The age of consent will differ from country to country. There's no question about your being correct in saying that. What we're doing here is saying to Canadians that this is the Canadian law and when you leave this country and engage in activities that are illegal in Canada, regardless of the situation in the country where you're conducting yourself in that manner, if you come back to Canada we can prosecute you under Canadian law.
Mr. Gallaway: How are you going to gather evidence? Who's going to be the complainant? Who's going to gather the evidence? What's the burden of proof going to be? How are you going to set a yardstick to really have evidence that's acceptable for a Canadian court?
Mr. Roy: You're going to be faced with the same problems as we are faced with in the war crimes context, crimes against humanity, where we prosecute for offences committed elsewhere.
For that matter, when you have, for instance, a conspiracy to commit a crime and the conspiracy takes place in a number of countries, you need to rely on other countries to gather that evidence.
How do we do that? I think there are two possibilities. Either the witnesses are brought from abroad in this country to testify here or Canada will send rogatory commissions abroad - that is, a judge, defence counsel, crown prosecutors - to speak for those witnesses and then bring back that evidence so it can be heard by a Canadian court. This is as is done in matters of that nature all over Canada and as has been the case for quite some time.
Will that be easy? The answer is no, definitely not. Does that make things more complicated? Yes. Who has the responsibility for prosecuting these cases? It is the provincial attorney general.
Finally, you're asking who is going to be the complainant. In our law there is no need to have a complainant in order to start a prosecution; however, it is understood that authorities in this country find out about these kinds of behaviour and they would be perfectly entitled to launch a prosecution after the investigation has been done.
What we hope for, however, is that this is going to have a deterrent effect by saying, don't leave Canada to have sex with children abroad and then come back thinking that you can't be prosecuted, that the people in the Philippines are not going to prosecute you and you are scot-free in Canada. There will be a way to prosecute these people.
Mr. Gallaway: How big is the problem?
.1650
Ms Lieff: The problem exists in Canada and is growing. I believe some of the witnesses who appear before the committee will be able to give you some information with respect to cases they've been involved in, information that will point out how the problem is brought to the attention of authorities.
I can tell you that in some situations now, because of our child pornography laws, officials working for Revenue Canada, or police officers working in a number of jurisdictions, have come across situations where someone is in possession of child pornography and have been able to charge the individual with possession of child pornography, or, in the case of Revenue Canada Customs officials, have seized the child pornography. They've become aware, from reviewing the materials in question, that the particular person may have been involved in child sex tourism.
Mr. Gallaway: Thank you.
The Chair: Thank you.
Ms Torsney, you have about a minute.
Ms Torsney (Burlington): Thank you.
Mr. Roy, you raised an issue, perhaps inadvertently, that is also an important one with relation to this issue of sex tourism. The bill specifically allows for commercial sexual exploitation of children. There are those who want us to make an amendment so that all child sexual abuse should be prosecuted in this manner.
What's the comment from the department so far?
Mr. Roy: I don't know if Mr. Gallaway was asking the questions and was inadvertently raising the reasons why it has to be limited to some behaviour. Perhaps it was advertent on his part, but my comments are as follows.
First, there has to be some international consensus that this is the kind of thing that becomes an ``international crime''.
Second, there are problems in prosecuting these cases. What you are suggesting, if I'm not mistaken, is to make it possible to make sexual abuse committed either against Canadian children or by Canadian adults against children prosecutable in this country.
Generally speaking, the balance in the system right now is that when this is taking place abroad, Canada extradites these individuals abroad so that they can be prosecuted where the crime has been committed. It would become extremely onerous for Canada if we were to prosecute each and every one of the cases that you are talking about, because there would be a need to gather that evidence abroad and then to prosecute this case here in Canada for something that hasn't taken place in Canada.
As most of you well know, our courts are already overburdened, and if on top of that we need to handle these cases, I don't know where the resources will come from. An international consensus has to emerge. I don't know that it is emerging at this point in time.
Third, there is the issue of the gathering of evidence.
Fourth, there is the issue of the scheme. Right now, extradition is the tool used. At the end of the day, it's a matter of resources, which are, as you all know, extremely scarce, both in terms of the prosecution and the courts.
Ms Torsney: Madam Chair, perhaps I'll have more questions on the next round.
The Chair: That's fine.
Monsieur Bellehumeur.
[Translation]
Mr. Bellehumeur (Berthier - Montcalm): I'm trying to understand. The Minister of Justice claims that a legal void now exists. You say that pursuant to section 268, a person who performs an excision, infibulation, total or partial mutilation or any other kind of procedure is subject to criminal prosecution.
Mr. Roy: Yes.
Mr. Bellehumeur: Under section 268, these practices are considered to be aggravated assault.
Mr. Roy: Yes.
Mr. Bellehumeur: Based on the Jobidon ruling which you cited earlier, is it true that we cannot consent to the commission of aggravated assault?
Mr. Roy: That is not what the Jobidon ruling says. Let me read you an excerpt:
- The limits on consent imposed apply to assaults as defined by section 265 and thus, consent is
vitiated where adults intentionally apply force causing serious hurt or non-trivial bodily harm
to each other in the course of a fist fight or brawl.
That's precisely the limitation set by the court.
Mr. Bellehumeur: I see.
Mr. Roy: The ruling makes it clear that in a fight situation, only wounds of a minor nature can be inflicted. That is what the court says.
Mr. Bellehumeur: Therefore, consent can no longer be given when the situation deteriorates to a point where aggravated assault is committed. Getting back to section 268, the focus of our attention here is excision and any other acts listed earlier on that fall within the category of aggravated assault. Is that correct?
Mr. Roy: Yes.
Mr. Bellehumeur: If an excision is performed today on a 19 year-old young woman, based on my understanding of the Jobidon decision, the young woman could not consent to someone inflicting serious bodily injury upon her or to aggravated assault.
If the young woman cannot consent today to acts which constitute aggravated assault under section 268 and if excision is considered to be aggravated assault, then the person who performs the procedure could be charged with an offence.
If I understood the proposed amendments correctly, "excision" is defined very clearly. Moreover, subsection 4 makes some provision for consent to be given, consent which, according to my interpretation of the Jobidon ruling, cannot be given today. This is a complex matter.
Mr. Roy: You've put your finger on it. If we fail to amend section 268 as proposed in Bill C-27, where we will stand? The Crown Attorney could lay a charge under section 268, but he would have to deal with the issue as to whether valid consent was obtained from the young person, or the adult woman.
On the basis of the common law, as recognized in the Jobidon and Welch rulings, why would he be in this position? Because the definition of the act of wounding someone, as contained in section 268, is extremely broad.
If you look at the definition of the word "wound" or "maim" given in Black's Law Dictionary and Words and Phrases - I'm certain you're familiar with these works - it states that wounding or maiming occurs when the skin, the dermis, is broken.
If this is true, in the case of an excision, it is unclear whether the Jobidon decision would stop someone from performing a procedure like the one we are discussing. That is the type of problem addressed by the proposed amendments. To protect the young person under the age of 18, a procedure of this nature would be prohibited, whether it was minor or major in nature.
Therefore, we need to create an exception which will be interpreted on a case-by-case basis. This will help us to determine where to draw the line.
Mr. Bellehumeur: Perhaps we don't have any specific cases of excision to discuss. Let's take the example of a 33-year-old worker who is tired of working and who thinks that if he had a minor accident while on the job, maybe he could get some money. He arranges for a friend to cut his finger off. Am I wrong in saying that pursuant to section 268, charges will be laid against the person for cutting off his friend's finger?
Mr. Roy: There are even legal precedents in this area.
Mr. Bellehumeur: Let's get back to the issue of excision. What is the difference between a person who arranges to have his finger cut off and someone who has her clitoris or labia majora or minora excised. In both cases, the person is 33 years old.
Mr. Roy: The problem is that we have a piece of legislation which lends itself to this interpretation. Clearly, the partial excision of a woman's labia minora constitutes wounding.
It is not necessary for the excision to be of the nature you spoke of in order for it to be covered by section 268 as it now stands.
.1700
You're talking about an excision that would be done with piece of broken glass.
Mr. Bellehumeur: No, not at all.
Mr. Roy: Clearly, this cannot be allowed.
Mr. Bellehumeur: You're not answering my question. I'm using the example of a 33-year-old person. That person cannot arrange to have someone cut off her finger. Clearly, that would be illegal. However, it is possible for that person to have consented to the excision of her clitoris or labia majora or minora. However, the person who arranged to have her finger cut off could also say that she consented to the procedure.
If the young woman says that she consented to the excision, where is the difference? In the case of a finger, a law states that this is illegal and the message that is conveyed is this: you cannot mutilate someone else and you cannot get someone else to mutilate you. However, suddenly we're talking about more intimate parts of the body and nothing can be done if an 18, 19, 20 or 33- year-old gives her consent.
I'm saying that we have to send out a message and educate people. There's no question about it. Just as we have been able to educate people that it is not right to cut off a finger or to mutilate oneself, I think that we also have to get a message out to young women with this bill.
Whether the young woman is 18 years old or 16 years old, it's still an act of mutilation. This should not be allowed just as we do not allow someone to cut off a person's finger. As you yourself stated, there are many legal precedents in this area.
Mr. Roy: I am tempted to respond in a Jesuitical manner by asking you a question in return, with your permission.
Take for example a woman who decides to wear a ring. According to what I've read...
Mr. Bellehumeur: Wearing a ring is not...
[English]
The Chair: Mr. Bellehumeur, you've had about nine minutes now. Let's let him answer the question.
[Translation]
Mr. Roy: In this person's case, we could argue successfully that this is covered by subsection 3 as it is currently worded because the definition is extremely broad. This constitute a form of mutilation. That's why you have subsection 4.
Mr. Bellehumeur: The amendments that you are proposing seem more permissive than the Jobidon ruling, if you say that this offence already exists.
I'm going by what you said and by the logic that you have defended until now.
[English]
The Chair: We're way over time on that one.
Ms Torsney, please keep in mind that Mr. Telegdi wanted to ask a couple of questions.
Ms Torsney: I just want to follow up on this issue of commercial versus non-commercial. I think you're aware that there's a specific case we're referring to, where two Canadians were involved in a third country. The third country has a statute of limitation on prosecution, I believe, which we don't have.
So sometimes it's not that hard for the gathering of evidence, yet Canadians are left without justice. I find that really hard to reconcile.
I can appreciate all the arguments about extraterritoriality and international consensus and everything else, but we have a victim who didn't get justice. We have a Canadian who is accused of having committed a crime but who will never face any court and be appropriately tried. No money or favours changed hands. It's a pretty tough issue.
Mr. Roy: I don't know if this is a crude way to put it, but it seems to me our system - and it's reflected in subsection 6(2) of the code - is that when you commit a crime in this country you get justice in this country. When you commit a crime elsewhere, it is for the other country to deal with that issue. We are willing - and this is not necessarily the case for every country in the world - to extradite our own nationals to foreign countries for them to be dealt with by the foreign jurisdiction.
I think I understand where you are coming from, that we have Canadians here who will be in some sort of limbo in that something has been done to them abroad and they see the foreign authorities doing nothing. But what I'm talking about, I guess, is that in terms of the system, the way it works and the resources we have to allocate toward these kinds of crimes, foreign countries such as Germany will refuse to extradite its own nationals. It says it will prosecute its nationals wherever they commit crimes in the world. That also means it does not seek to get cases dealt with in other countries. It brings everything back to Germany and uses a system that is quite different to gather information and evidence in order to be able to do this.
.1705
Our system of justice is the other way around. We say if it's done within the parameters of our country, that's fine; otherwise we will send you our nationals to prosecute. We don't have a problem with that. Our rules of evidence and the whole system are geared toward that. So when you try to expand our jurisdiction by saying ``Because that has taken place abroad and that person is not going to be prosecuted, we have to be able to do something about this'', you are turning the system on its head, to some extent. That makes it difficult for people like me who have been in this system for a while and know how difficult it is to get the resources to do the cases that aren't taking place in this country, with the rules that have been developed to prosecute these cases here. That's where we're coming from when a suggestion like this is made.
Madam Lieff is tempted to add to what I have to say.
Ms Lieff: I just want to add one point. Mr. Roy has made several points about this, but the other aspect of this is that Canada often wants to take the position against other countries that are giving extraterritorial application to their laws and situations, where we don't think they should be doing that.
If we're seen to take steps to expand our laws in the absence of international consensus on a particular issue, we may be putting ourselves in a position where we're doing something we have told other countries they can't do.
Ms Torsney: I guess when it comes to children, it makes it a lot harder.
The second area I wanted to explore is that some people think this bill should include arranging sex tours. Why isn't that in here? I know the answer, but I think it should be on the record.
Mr. Roy: We believe that section 212, when you look at paragraphs (1)(a) and (g), already covers this kind of behaviour if it's done in this country. You can go further and say that if someone is committing that crime abroad, if the sex tour operator is helping, knowing full well this is happening, he may be aiding and abetting in the commission of the offence abroad, going back to sections 21 and 22. So sections 21 and 22 and paragraphs 212(1)(a) and 212(1)(g) could very well apply to these situations. If that happens here, I would suggest that prosecutions would be warranted.
Ms Torsney: Have we had any?
Mr. Roy: Not that I know of.
Ms Torsney: Maybe there's some possibility it isn't taking place. Somehow I doubt it.
Mr. Roy: According to the information I have - I don't know about my colleagues here - those tours are mainly arranged from abroad. If someone is leaving from somewhere in the United States because there is a tour operator there, it would not be a crime in this country. Only when the tour is organized in this country is a crime committed, so let's be clear about that.
The Chair: Mr. Ramsay. Mr. Telegdi is next.
Mr. Ramsay: Thanks, Madam Chair. I'd just like to follow up a little on what Mr. Gallaway was pursuing.
First of all, you've indicated that prosecution and punishment is a deterrent. That, of course, has not been a very consistent message coming from your department on some of the other bills. I'm glad to see it is emerging here, at least, as a deterrent.
I would like to ask you about the resources to enforce this particular part of the bill, which is the child sex tourism. It's going to be the responsibility of the provinces to do this. Will a provincial-territorial-federal financial agreement be entered into with the provinces to pay for the enforcement of this particular part of the bill?
.1710
Mr. Roy: The offence that is being committed falls under the Criminal Code. As you know very well, offences under the code are prosecuted by the provincial attorneys general. There is no plan to allocate more resources to the provincial attorneys general or anything of this sort because it is their responsibility to enforce the code.
Provincial attorneys general have been aware of the plan to extend the jurisdiction of Canadian courts to these kinds of crimes for quite some time. I haven't seen or heard anything to the effect that they anticipate they will need more resources to the point where they would need to try to get the federal government to allocate some.
Mr. Ramsay: Have any provincial governments indicated to the federal government that they're prepared to enforce this particular provision of Bill C-27, which means they would have to gather evidence in a foreign country where adults from this country have had sexual relations with children under the age of 18?
That's going to be expensive and time-consuming. Has any province or any department of the attorney general in Canada indicated to the federal government, to your department, that it's prepared to enforce this aspect of the bill?
Mr. Roy: I am looking at my two colleagues. I haven't seen anything from the provinces to the effect that they would not enforce these provisions. Actually, Mr. Ramsay, the provinces are quite used to having to go abroad to gather evidence in cases. On the other hand, I haven't seen anything come back from the provinces saying they are going to enforce those provisions.
I would understand their silence in this matter as meaning this is part of their general responsibilities under the code for the administration of justice in the province, and they would probably be willing to apply this whenever it is appropriate. I have had no indication that there is any resentment or anything of the sort coming from the provinces to the effect that they are not going to be doing this.
Mr. Ramsay: To what extent have they been consulted with regard to this portion of Bill C-27?
Mr. Roy: This has been ongoing for months at the level of senior officials, deputy ministers and, if I'm not mistaken, even at the level of ministers.
Mr. Ramsay: Was the cost factor discussed at all?
Mr. Roy: Not that I know of.
The Chair: Mr. Telegdi, welcome to our committee.
Mr. Telegdi (Waterloo): Thank you, Madam Chair.
The Chair: You have five minutes.
Mr. Telegdi: I have some concern with the point raised by Mr. Gallaway. I think the legislation's intent is to deal with a problem that is abhorrent to Canadians. Once you start getting into that section, I think you are taking away from the aim of the bill. We're not looking to be tougher on Canadian citizens in other countries who aren't breaking laws over there; we're looking for them to obey the laws over there. The possibility existed that there might be a problem, and I think it would cause controversy around the bill that I don't think there should be any controversy about.
The other part of the bill I have some concern about is the issue that relates to whether you believe the person is under 18. The person is either under 18 or not. It reminds me of the situation where you have the hybrid offences, such as possession of marijuana, and at some point you have possession for the purpose of trafficking. So it goes from a summary offence to an indictable offence.
When I see that kind of leeway, I'm always concerned about the possibility of too much power for the police. It could be open to abuse. I have seen too many cases go to court seeming to be simple possession cases but for whatever reason they were pushed to be possession for the purpose of trafficking. It ate up a lot of resources in court time and taxes to support it.
.1715
From your department I would like to see if there are any countries that have similar legislation, where you're talking about whether a person believes something. It becomes very difficult. You played the scenario that if you yourself were trying to procure the services of a prostitute and it happened to be a policewoman, she'd be able to gather evidence against you. I have trouble seeing that thing play out as a very real situation. Once you start getting into the area of what the person believes or does not believe I think you are touching on a very difficult situation, one that again I could see as being counterproductive. At the very least I would like to see from you information on which countries, which of the western democracies, have similar legislation.
Mr. Roy: Be sure, sir, that we're going to try to find that information for you. But if you will allow me, let's go back to the initial problem we have here. We have a provision in the code that is aimed at protecting children under the age of 18 from prostitution. For all intents and purposes that is unenforceable. So what we hear from the police community and also from people who have it at heart to protect these children is that something has to be done to enforce that very provision we're talking about: someone who tries to have sex with a prostitute under the age of 18.
The way that has been chosen to do this - let me go back one step - is if the police were able to use as decoys people who are over the age of 18 but who present themselves as being under the age of 18 - and I think it's easily feasible to do that - if we're able to do that and the person is trying to have sex with that person.... Again, I will use myself as the example. I am looking for a child under the age of 14. She is presenting herself as being under the age of 14. Therefore the inference will be drawn by the judge and the jury that I believed the person was under the age of 18. The offence is committed.
Right now, the way the code is drafted, this is not possible. We would have to use people under the age of 18 in order to do that, and I can tell you right now the police - rightfully so, in my view - categorically refuse to do this. This is simply not right. If you're going to be doing that kind of work, which may be dangerous at times, it has to be a real trained police officer doing this. That's the reason why it is drafted the way it is.
But we're going to be looking into other legislation to see if there is support elsewhere.
Mr. Telegdi: But what if you yourself, Mr. Roy, fantasize, if you will, and one of your fantasies is that you go to a prostitute of whatever age. It could be middle age, 40 years old, 50 years old. If that prostitute wears a school uniform or something, then are we going to charge that person under that act? Are we going to charge you under that act for fantasizing?
Mr. Roy: I'm glad you've selected me as being the person instead of someone else.
That's the reason why, frankly, we have chosen the language we have chosen instead of having something like ``who presents himself or herself as being under the age of 18''. That very scenario you have in mind would be criminalized under that kind of wording, whereas here it is enough that the person believes the person is under the age of 18.
.1720
The signal we're giving here is that if you believe the person is under the age of 18, you're committing a crime. This is what we're saying. If it is purely a fantasy, because he or she is dressed as a child but you don't believe the person is under the age of 18, there is no crime committed. Mind you, if the person is dressed as a young person and is under the age of 18 then there is also a crime being committed.
The Chair: Thank you.
Thank you, Mr. Telegdi.
Monsieur Bellehumeur.
[Translation]
Mr. Bellehumeur: Following the same logic as before, I would like to clarify one point. If I understand correctly, a doctor who amputates a patient's limb because of the presence of the streptococci bacteria or for some other reason, even though he is committing an assault and even aggravated assault pursuant to section 268, will be protected by section 45 of the Criminal Code which pertains to surgical procedures.
Mr. Roy: Not necessarily.
Mr. Bellehumeur: What do you mean, not necessarily.
Mr. Roy: Not necessarily, because section 45 as it has been interpreted applied to emergency situations. Your doctor will be protected by the consent that was obtained because the procedure is being performed for reasons that are socially redeeming. That is a distinction that Jobidon establishes.
Mr. Bellehumeur: Therefore, a woman suffering from cancer of the clitoris or labia majora who authorizes a doctor to perform an excision is releasing that doctor from any responsibility.
Mr. Roy: Absolutely.
Mr. Bellehumeur: I see. The bill makes specific reference to excision, but also includes the following "except where a surgical procedure is performed". Is there any point mentioning this to avoid a legal void if that already exists in the Criminal Code? The proposed legislation does not create a new offence. There is always the question of consent.
What if the bill is adopted as is and a woman authorises a doctor to remove her clitoris because of cancer or the presence of a cyst? The procedure will be performed by a qualified physician for therapeutic reasons. Why is it necessary to mention "except where a surgical procedure is performed"? Why is it necessary to include this in subsection 3, since the woman will have consented to the procedure?
Mr. Roy: Take the case of a 5, 6, 7 or 10 year-old child, or any young person under the age of 18. Subsection 4 states that this young person cannot consent to such a procedure. If neither the child nor his family can give this consent, as the bill now stands, the physician cannot perform the operation. He could not get consent, valid or otherwise, since the law prohibits him from doing so. Therefore, the medical exception provision is absolutely necessary.
Mr. Bellehumeur: Are you telling me that under the current Criminal Code, if a young child of 6, 7 or 8 was afflicted with the same illness as Lucien Bouchard and that his parents consented to having his leg amputated, they, along with the doctor, could be held criminally responsible?
Mr. Roy: No, because at the present time, there is no provision in place to prohibit a person from giving his consent.
Mr. Bellehumeur: Yes, but someone cannot amputate an arm, hand or whatever. Pursuant to section 268, this would be considered aggravated assault.
Mr. Roy: Because, Mr. Bellehumeur, the procedure is being performed for reasons that are social redeeming. The objective is to protect the person from illness.
Mr. Bellehumeur: It's the same thing in the case of cancer of the labia majora or minora or of the clitoris or of any other part of the body.
Mr. Roy: Not if you state in the law that consent cannot be given. As the saying goes, you can't have your cake and eat it too. You can't say on the one hand that consent cannot be given and, on the other hand, that it can. As it is now drafted, the bill says that consent cannot be given. It is therefore necessary to make provision for a medical exception to protect the doctor from being held criminally responsible for getting someone's consent when consent cannot be given by a child.
Mr. Bellehumeur: Basically, if a section of the legislation clearly prohibited someone from consenting to being dismembered, whether it be in Mr. Bouchard's case or in any other case, the Criminal Code would have to be very clear on this, otherwise no consent would be possible.
.1725
Mr. Roy: That's precisely what I'm saying. From the moment we say that consent cannot be given, we need to create an exception to this rule and that is what we are doing here.
Mr. Bellehumeur: The situation is very serious. If there is a message to get across...
Mr. Roy: That's what we're trying to do.
Mr. Bellehumeur: Really?
Mr. Roy: Yes.
Mr. Bellehumeur: Would the message perhaps be better understood if we stated that this procedure was illegal in Canada if the person is 16, 18 or 22 years of age?
Mr. Roy: I'm an attorney, Mr. Bellehumeur.
Mr. Bellehumeur: Still...
Mr. Roy: I'm trying to explain to you the minister's intent. As to whether there is a better way of getting the message across, that's really not my area of expertise.
Let me just say that in the case of adults and less serious procedures - I'm trying to be as sensitive as possible to the concerns people have about this issue - there could be a problem in terms of the Charter from a legal standpoint. On this level, I can advise you.
As for the messages that are being conveyed, I'm unfortunately not the right person to talk to.
Mr. Bellehumeur: Mr. Roy, you stated that there was a message to be conveyed. That's exactly what you said.
Mr. Roy: Of course the law always tries to convey a message. There's no question about that. Would the message be better conveyed if there were no exceptions? I can't answer that, because it's not my job to do so.
[English]
The Chair: Thank you, Mr. Bellehumeur.
Mr. Rideout.
Mr. Rideout (Moncton): I just want to deal in particular with the stalking aspect of the changes. The amendments seem to be aimed primarily at changes dealing with a murder situation. But I gather from the statistics, or so I'm informed, murder is the one that gets the publicity, but it's not really the one that happens most often. I'm sure we've all dealt with situations in our constituency offices where people have told us about the problems they have with harassment rather than the threat of murder per se. How come we didn't try to strengthen any of the other aspects of the stalking law?
My second question has to do with the sentencing aspect and judges. I'll just give you this and then you can go quickly. Maybe you could tell me the rationale for the amendment. Could you alo give me some idea as to why we didn't perhaps increase the maximum sentence that could be imposed in a stalking circumstance? Maybe this might act as a bit of a deterrent.
Mr. Roy: To start with the second question first, we have no evidence at this point that the maximum sentence provided by the code is insufficient. This is the reason why it's not being considered for a change at this point. It may change in the future.
On your first question, what you have here is an attempt to clearly tell the courts what to do once someone has received an order on the basis of section 810 or 810.1 of the code. We are familiar with the peace bond. Once you've had this and the person continues stalking, this has to be considered by the sentencing judge as an aggravating factor. You were put on notice. You were told not to do this. You've done it. Parliament would be telling the courts to take that into account and the sentence should be much more stringent than it would be otherwise.
So this is what Parliament is getting in terms of a signal and this is what the ministry is asking this Parliament to do.
Mr. Rideout: Thank you.
The Chair: Thank you.
We're expecting the bells to ring any minute, but I want to ask if you are familiar with the Prober case from Winnipeg and the request Mrs. Prober and her family are making with respect to an amendment to this bill.
Mr. Roy: Yes, we are, Madam Chair.
The Chair: Can you explain this, and can you comment on why that amendment is not in this bill?
Mr. Roy: This was part of the discussion we had in trying to respond to some of the questions coming from Ms Torsney and Mr. Gallaway as to why it may not be appropriate to broaden even more the basis of jurisdiction to go extraterritorially from what we have here. What I mean is that in international law you are allowed to go extraterritorially when there is an emerging consensus that this is a measure that is required, and this is not what we have in the case involving the Prober family.
.1730
The Chair: Have you talked to the bureaucrats of the foreign affairs department?
Mr. Roy: Absolutely. Bureaucrats at Foreign Affairs may be, at least at times, a little bit reluctant to go as far as we're suggesting here, let alone broaden this from where it is.
The Chair: Would it benefit us in terms of this to have people from Foreign Affairs come and talk to us about it?
Mr. Roy: They may give you the foreign relations angle on this. They may be able to talk about some legislation in the United States that we're opposing and therefore it being difficult in Canada to create the precedent, because we're going to be accused of speaking from both sides of our mouth at the same time.
They might be able to help you with this.
The Chair: Have you ever been to Windsor?
Mr. Roy: No, but a colleague of mine is from Windsor.
The Chair: I know that.
When you're in Windsor, Detroit is only two minutes away. When you're deciding where you're going to go for lunch in Windsor, you can factor in restaurants all over the greater Detroit area. Lots of people take children on field trips to Detroit and so on.
I'm informed by a victims group that there have been incidents where people in charge of children in Windsor have taken them to Detroit and have sexually abused them. The Michigan police have not been in a position to investigate because everybody then comes back to Windsor, and the Windsor police are not in a position to investigate because the incident happened in Detroit. Even if they did investigate it there would be no prosecution.
But if we were to extend the application of this law just a little bit, we could solve that little problem, couldn't we?
Mr. Roy: I find it a little bit difficult to consider extending our jurisdiction a little bit. Either we do it or we don't, and it will have to be done on the basis of the offences that have been committed.
I find it a little bit difficult to agree with those groups that say it is not possible to investigate these offences, because we have a mutual legal assistance treaty with the Americans that is allowing us to do that very thing. If the people are coming back to this country, the Americans can come here and speak to these witnesses, and on the basis of the treaty we can go abroad and do the same thing.
Is there the will to investigate all of these offences? That's a different issue.
The Chair: Finally, can you just explain, so we will have it on the record, what kind of an assault it would take before the person would be extraditable from Canada to the United States or from the United States to Canada?
Mr. Roy: Our treaty with the Americans provides that if the offence is punishable by a year in prison, then that's enough for the crime to be extraditable as long as there is double criminality, as long as it is an offence in the United States and an offence in Canada.
I can assure you of one thing at least: an assault in Canada is an assault in the United States. Since these crimes are all punishable by more than a year - actually it's more than two years - all of them are extraditable.
The Chair: Who pays the cost of the extradition - the federal or provincial government?
Mr. Roy: Generally speaking, it's federal. If we're extraditing someone from Canada to the United States, it's going to be a federal case handled by federal prosecutors. However, if this is a case being investigated in Canada because of a crime committed elsewhere, it will be done by the local police and provincial crown attorneys.
Ms Torsney: Do they have the same statute of limitations in the United States and in Canada on sexual assault of children?
The Chair: We don't have a statute of limitations.
Ms Torsney: Right, but do they in the States?
Mr. Roy: There is none in Canada. In the United States there are 50 states and criminal law is a state responsibility. I wouldn't be able to answer. I don't know.
Ms Torsney: The example of the Prober case is that the government in the islands said, sorry, finished, time's up, whereas in Canada there isn't a statute of limitations. It's an important point in Canada-U.S. relations, at least on the border states.
The Chair: I just want to make it clear, because those questions are going to be asked.
This meeting stands adjourned.