Senator Cardozo: This is more of a statement just to thank Senator Manning. This will be the first bill that I will be involved in from beginning to end. Like you, I look forward to hearing from the diversity of opinion on this bill, and I’m sure you and I share that view. We’ll look forward to those hearings.

The Hon. the Speaker pro tempore: Could you get to the question, please?

Senator Manning: Thank you. I wasn’t sure if you were answering Senator Cardozo’s question in the beginning or asking me one. Anyway, it was a little bit of both. I wouldn’t want you to be confused.

The bottom line is that we live in a changing world in so many aspects of our world. The media is part of that. When I remember back to when I was growing up, we had one channel in our community — the CBC — and if the weather was bad, you had to go on the roof to fix the rabbit ears to make sure the view came in and wasn’t all snowy on the screen. Access to media is now at your fingertips. Finding some type of regulation to deal with that is in all our best interests, but finding the best legislation to deal with that is in Canadians’ interest. I think that’s where we need to be in relation to the bills. It can’t be Band-Aid solutions. We have to take the whole problem and try to work through it and try to come up with solutions and a piece of legislation that addresses the concerns of all players.

I know the small players in the media are struggling in this country. I don’t have to go any further than Newfoundland and Labrador to see that. I’ve met with those people in some cases. They’re concerned about legislation, but they’re also concerned about their futures, and many of them have closed up shop. We have to try to find a way to protect them but at the same time protect the freedom the media has.

What I said earlier in relation to committee is that we can talk about it here in the chamber and we can talk about it outside, but it’s in committee that the work gets done. It’s in committee that we hear from the witnesses and educate ourselves and, hopefully, through that educational process come up with a piece of legislation that addresses the concerns we all share.

Hon. Donna Dasko: Will Senator Manning take another question?

Senator Manning: Yes.

The Hon. the Speaker pro tempore: Could you ask your question, please?

The Hon. the Speaker pro tempore: Are honourable senators ready for the question?

Hon. Paula Simons: Honourable senators, today I rise to speak to Bill S-241, known as the “Jane Goodall Act.” Since this bill was first placed before us, we have heard many inspirational, passionate, even lyrical speeches about the importance of protecting animals, especially “charismatic” mammals, including gorillas, elephants, tigers and whales, from abuse and exploitation.

Our cultural expectations for the proper care of captive wildlife in zoos and aquariums has changed radically over our lifetimes. Today, it is not enough for animals to be kept safe and well fed. We also demand that animals today be cared for and displayed in a way that recognizes and respects their dignity and autonomy. We now believe that the primary role of zoological gardens and marine parks is not to entertain children and sell popcorn, but to protect endangered species from extirpation and extinction. Canada’s zoos pride themselves on their breeding programs — their efforts not just to keep animals safe in captivity, but to work to reintroduce them, where and when possible, to their natural habitats.

This has been a radical paradigm shift. When I was growing up in Edmonton, I lived just a few blocks away from what was then called the Storyland Zoo. Animals were kept in enclosures that featured nursery rhyme and fairy tale settings and backdrops. There was no effort to keep the animals in naturalistic landscapes. They were there to be cute and to be part of a fairy tale, fantasy world.

But the zoo abandoned the Storyland theme decades ago. Today, the Edmonton Valley Zoo focuses primarily, though not exclusively, on northern and prairie animals who are well adapted to life at 53° latitude. The zoo strives to keep animals — where they can — in relatively naturalistic settings. Some of the older enclosures are still lacking, but the zoo is moving in the right direction, in keeping with emerging philosophies of zoo keeping.

The Edmonton Valley Zoo is also part of an international network involved in what is known as the Species Survival Plan, a program to help breed and restore populations of endangered or threatened species. It is specifically involved in the breeding and protection of the Amur tiger, the Grevy’s zebra, the snow leopard, the red panda and the Goeldi’s monkey. The zoo also supports the work of the Snow Leopard Trust, the Red Panda Network and the Amphibian Ark.

The Edmonton Valley Zoo has done its best to learn from the mistakes and prejudices of the past, and it strives to create a facility that offers educational opportunities to the community and to help safeguard species at risk.

I bring this up not just to mark the way the philosophy of Canadian zoo management has evolved over time but because the successes — and failures — of the Edmonton Valley Zoo highlight a problematic weakness in Bill S-241.

As currently drafted, the legislation pays extraordinary deference to the American standards of zoo and aquarium care as set by the Association of Zoos and Aquariums, the AZA — although I guess that should be “A-zee-A,” which is sort of my point. The bill grants to the seven big Canadian zoos and marine parks that have achieved “A-zee-A” status particular privileges and exemptions, for which other Canadian zoos do not qualify. Never mind that Canada has its own agency that independently inspects and rates Canadian zoos, CAZA, which stands for Canada’s Accredited Zoos and Aquariums.

The bill doesn’t offer an explanation of why we should or would rely on American rather than Canadian standards. There seems to be an implicit suggestion that the American accreditation is better or, perhaps, harder to achieve. But as a Canadian, I am deeply uncomfortable with writing an explicit preference for American rather than Canadian protocols right into the text of the bill —

Senator Simons: — especially without evidence that because it’s American, it’s automatically better.

If we’re worried that CAZA doesn’t have the right standards or enough teeth, surely, we should deal with that issue and not import U.S. rules and regulations right into our Canadian legislation. Today we may think that those rules are better, but given the cultural upheavals in the United States, do we really want to tie our legislation to American paradigms and models in the long term?

Making ourselves beholden to the judgment of American inspectors may also rob us of the chance to make nuanced decisions based on specific local situations, and here I want to circle back to the example of the Edmonton Valley Zoo and address, if you will, the elephant in the room.

One of the key reasons that the Valley Zoo has never achieved AZA accreditation is because it keeps a solitary Asian elephant, known to the public as Lucy. Lucy has lived at the zoo for 45 years, and her presence there has been contentious for decades, with lobby groups from around the world pushing for her removal to an American elephant sanctuary, many of which — for what it’s worth — also lack AZA accreditation.

Now, if I had a time machine and could undo the decision made more than four decades ago to bring Lucy to Edmonton, I would. The zoo should probably never have had an elephant in the first place. Elephants, as many of you have explained, are intelligent, social animals who do not thrive in solitude, and they are large animals who need space and freedom to roam. They aren’t meant to be housed in barns or corrals.

It’s one thing to say that the zoo should never have had an elephant or that it should improve its enclosures, but it’s quite another to insist that Lucy be moved now. For years, the British‑based animal rights group Free the Wild has led an international campaign calling for Lucy’s removal from the Valley Zoo. As recently as 2021, Free the Wild described Lucy as being “imprisoned” and in “purgatory.” Their public statement continued:

The question remains — Why does Edmonton Valley Zoo, after four decades of total exploitation, choose to continue to torture Lucy?

In response, the Edmonton Valley Zoo invited four independent experts chosen by Free the Wild to examine Lucy this past October. Last week, Free the Wild released their independent reports into Lucy’s health and care. Did the experts find evidence of torture?

Well, Ingo Schmidinger, who is an international expert in the care of captive elephants and who was, at the time of the examination, the Director of International Operations for the Global Sanctuary for Elephants, wrote this:

The team shows huge dedication to their daily tasks —

 — he reported of the staff at the Valley Zoo —

 — Extraordinary is the amount of Lucy’s caretaker . . . and the time spent with the elephant during all daily working hours, as well as the extreme attention she receives from each team member.

Schmidinger concluded that, ideally, Lucy should be moved to an elephant sanctuary but noted that because of a long-standing respiratory condition, he doubted she could be moved safely at this time. Lucy breathes and drinks only through her mouth and never through her trunk, which is extremely atypical. No one knows whether her trunk is blocked or obstructed in some way, and despite their best efforts, none of the four experts could figure out the cause of her respiratory distress.

Schmidinger wrote:

But, as the question with regard to her respiratory issue is still not answered, although this ailment has been observed and mentioned now at least since 2008 . . . we have to assume that under the current circumstances, and as we still don’t know what is happening to Lucy, she might not be fit for travel at this very moment.

A separate report co-authored by Dr. Frank Goeritz, Head Veterinarian at the Leibniz-Institut für Zoo- und Wildtierforschung in Berlin, and his colleague Thomas Hildebrandt, the Head of the Leibniz Institute’s Department of Reproduction Management, was far more definitive. They wrote:

In summary of all medical finding we conclude that Lucy is not fit for travel, neither for long nor for short distances. . . . Stress and even very mild physical activity brings Lucy in an anaerobic metabolic status, which can lead to total decompensation of her respiration and hence general metabolism.

They concluded:

Therefore Lucy should remain . . . . Aside from her ineligibility to travel she is a geriatric patient and would not be able to cope with her new environment (unfamiliar habitat, new caretaker staff, and other elephants). Lucy is receiving a high level of affection and attention from her keepers and veterinarians, which resulted in a specific management and enrichment program adapted to Lucy’s age and health status. She would not survive independently from humans. Ultimate goal is to keep Lucy stimulated and engaged and to provide her with good care for the rest of her live . . . .

Now, let me note that the median age of death for an elephant in captivity in the United Kingdom is 20. For an Asian elephant in captivity in North America, the median age of death is 43, and Lucy is already 47.

The fourth expert to examine Lucy, Dr. Patricia London, reached a different conclusion. Dr. London, an American veterinarian and the founder of the Asian Elephant Wellness Project, concluded that with appropriate cautions, Lucy might well survive a move to an elephant sanctuary in Tennessee. But even though London was the most critical of Lucy’s living situation, she, too, had praise for Lucy’s caregiving team. She wrote:

. . . it is recognized that the staff seems very committed to taking care of Lucy. . . . I do think the current veterinary team is doing a good job monitoring Lucy, managing her pain, and has Lucy’s best interest in mind with everything they do and recommend. They have been very welcoming and open to any and all suggestions made medical-wise for Lucy.

Now, all this is not to give the Edmonton Valley Zoo an A plus grade in elephant care. The experts were all agreed that Lucy would benefit from more exercise, a diet with less hay and fruit and more celery and parsley — wouldn’t we all — better quality sand to lie on, access to a pool or pond of water and far more freedom to roam naturally. And as an Edmontonian, I share Dr. London’s frustration that many of these recommendations were made in the past but were not acted upon. When the City of Edmonton took on the responsibility of caring for an elephant 45 years ago, it needed to ensure that the elephant received the best possible care to the very end of her days.

But to talk about torture and purgatory? Such overheated rhetoric makes it easy to raise money but not easy to make decisions in Lucy’s best interests.

Now, I have dwelt for some time on Lucy’s case because some of you have raised very specific and florid concerns about her well-being in your own speeches and I wanted you all to have the latest independent analysis of her health status from four independent experts hired by Free the Wild.

But Lucy’s case illustrates the importance of Bill S-241 because it will severely limit the ability of other zoos to make the same mistakes the Valley Zoo did 45 years ago. But it also illustrates the limitations of this bill, with its overreliance on American — not Canadian — standards and its easy assumption that if it’s American, it must be better.

When this bill does go to committee, I hope members will push beyond sentiment and make a decision based on scientific evidence. We must be good stewards of the animals in our care and ensure that our zoos and aquariums are fit for purpose for the 21st century. But we must also ensure that we make those decisions in Canada and take responsibility for them here.

Thank you, hiy hiy.

(On motion of Senator Martin, debate adjourned.)

[Translation]

On the Order:

Resuming debate on the motion of the Honourable Senator Kutcher, seconded by the Honourable Senator Boehm, for the second reading of Bill S-251, An Act to repeal section 43 of the Criminal Code (Truth and Reconciliation Commission of Canada’s call to action number 6).

Hon. Julie Miville-Dechêne: I rise to speak in support of the principle of Bill S-251, which was introduced by Senator Kutcher.

At first glance, this appears to be a very simple, very short bill that should be very easy to support, regarding the use of reasonable force to correct a child. Who among us here advocates any form of child abuse? No one, obviously.

How could anyone object to sending a clear, albeit symbolic, message about our commitment to ending all forms of mistreatment, abuse and trauma for Canadian children? Again, no one.

On the other hand, this topic affects most of us personally, whether as a former child or as a parent.

Like many of my generation, I myself experienced physical correction when I was young. I have a vivid memory of the first spanking I received from my mother, at the age of seven or eight, when we lived in France. Even worse were the punishments at school. At that time, corporal punishment was frequently used to discipline children in elementary schools in Paris. I remember classmates being spanked in front of everyone and others being seized by the ear and pulled around the classroom by the teacher. For students, it could not have been more humiliating.

When I returned to Quebec in the 1970s, times had changed, at least at school. I may be a wise and patient senator now, but I was a rebellious teenager. I still remember the stinging slap my mother gave me after I insulted her. Let’s just say that it did nothing to improve our relationship.

I want to add that, although I remember being disciplined like that, it did not cause me any lasting trauma. In fact, like many other children, I’m sure, I was more hurt when my family yelled at me and criticized me. A slap hurts in the moment, but the damage words can do can last a long time. However, I doubt the government will ever be able to legislate what a parent can and can’t say to their children.

Bill S-251 proposes to eliminate the exception set out in section 43 of the Criminal Code, which allows a parent, among others, to use “force by way of correction toward a . . . child . . . if the force does not exceed what is reasonable under the circumstances.”

Although I am in favour of the principle of the bill, I still want to point out three problems worth thinking about.

The first is a political issue that comes up in many of our debates: How far can the government go in regulating private behaviour? Of course, there is no question that the government can criminalize violence against children, as it does for violence against any person, particularly the most vulnerable.

When it comes to “force [that] does not exceed what is reasonable under the circumstances,” however, we are also getting into the area of education, discipline and discretion in the exercise of parental authority. It’s clear that the government can and must protect children from violence, but it also can and must respect parents’ judgment.

[English]

It’s also important to remember that the exception provided at section 43 is already quite narrow. Here are excerpts from a March 2021 letter from Justice Minister Lametti to Heidi Illingworth, the Federal Ombudsperson for Victims of Crime:

The issue of whether or not section 43 should be repealed raises differing and strongly held views across Canada. . . .

As you are likely aware, assault is broadly defined in Canadian criminal law to include any non consensual use of force against another person. This can also include non consensual touching that does not involve physical harm or marks. Section 43 of the Criminal Code is a limited defence to criminal liability for parents, persons standing in the place of parents, and teachers for the non-consensual application of reasonable force to a child. . . .

In 2004, the Supreme Court of Canada . . . held that section 43 is consistent with the Canadian Charter of Rights and Freedoms and the United Nations Convention on the Rights of the Child. It also set out guidelines that significantly narrowed the application of the defence to reasonable corrective force that is transitory and trifling in nature. Moreover, the SCC’s decision provided that teachers cannot use force for physical punishment under any circumstances . . . .

[Translation]

There are many different parenting styles and approaches. I don’t believe that this grand, complex human adventure can be reduced to an exact science with definitive and universal answers that can be applied to any situation. That’s why we have to be careful not to target parenting approaches that we may not like, but that don’t necessarily deserve to be criminalized.

In a similar vein, I would point out that differences exist not only between individuals and families, but sometimes also between cultures. The way children are raised, the role of authority and discipline, and parenting approaches are often shaped by our personal or cultural history. Cultures and family backgrounds also influence the perception and impact of physical correction on children.

Again, I want to reiterate that we should not be condoning child abuse, mistreatment or violence in any way, but neither should we disproportionately target Canadians from minority cultures by removing the narrow exemption set out in section 43 of the Criminal Code. Some parenting styles may not match our own personal preferences. This does not necessarily mean that they are criminal.

[English]

Finally, I note something of a paradox. Many of the people who support this bill argue that we should not fear a wave of new prosecution of parents if we remove the exemption at section 43. This is because, while removing the exemption would technically make any non-consensual touching of children by their parents a criminal offence, everyone realizes this is an absurd situation. For this reason, proponents of the bill argue that if we remove the exemption at section 43, a new set of common-law defences and exemptions would apply, including an exception for minimal offences, rules about necessity, implied consent and others.

So are we really just removing one explicit, codified and narrowly interpreted exemption and replacing it with numerous vague and uncodified exemptions that would achieve the same purpose? In some ways, it could be argued that we are asked to make the Criminal Code less pragmatic and less realistic and that, as a result, courts will have to develop new workarounds. In other words, the change we are contemplating may be more symbolic than substantive.

All that being said, I recognize there is a global movement to remove these limited exemptions, even if it means developing new ones to replace them.

As of 2022, 65 countries have banned corporal punishment. Even in France, Article 371-1 of the Civil Code was amended in 2019.

[Translation]

That article states: “Parental authority is expressed without physical or psychological violence.”

[English]

If the French can make this commitment, perhaps we can as well.

Society evolves, and it’s normal that we adapt our legislation to reflect that change. Sometimes we update our laws to reflect the way we already live, and sometimes they reflect our aspirations. Just because things have always been one way doesn’t mean that we must continue forever.

I believe our laws play a role in setting the tone, and we must trust the institutions to behave reasonably in the circumstances. Thank you.

[Translation]

Senator Yussuff: As you are aware, changing the law to support the bill and all the principles in it is the easy part.

We have to change attitudes. With parents and their children, it is not so easy. In each culture, it is not so easy.

The bigger challenge will be how we educate parents regarding how they treat their child differently than maybe they’ve been brought up to treat a child. When I was young and growing up, for my parents, corporal punishment was the normal thing. But much later, as parents, they realized that was not the right way to go about it. Maybe it didn’t help my behaviour — I’m not sure — or maybe it made me more delinquent. But the reality is my parents did change, and I appreciate that reality. But within our family, which was very large with ten of us, we grew up recognizing we could not treat our children that way. I am grateful today that my daughter grew up in her family without ever having to deal with the fact of corporal punishment.

The bigger question I have is about how we change the attitudes of families, recognizing that some see it as fundamental way for them to raise their children however they choose. This is not an easy thing. Some get their guidance from gospel; some get it from their own family growing up. I know this is not fair, but I thought I should ask you this question.

[Translation]

Senator Miville-Dechêne: That question sums up the very essence of the issue. Laws can do some of the work, and they can be a signal or a symbol. But society changes at its own pace. As you said yourself, sometimes it’s a generational issue, sometimes it’s a cultural issue, but certainly, every family has a different perspective on corporal punishment. How can we address that?

Obviously, this can also be taught in school. I know that in Quebec, new courses are being developed on these civic issues. There is no magic solution. You are asking me an extremely difficult question. The fact remains that children talk amongst themselves, and there can be all kinds of influences that make them realize that a situation isn’t normal. They might talk about it to friends or to a psychologist, and the parents themselves can evolve. It’s not 1960 anymore, like when I lived in France. Things have changed a great deal.

The point I was trying to make is that I agree with the principle of the bill, but it obviously won’t solve all the social issues surrounding it.

(On motion of Senator Martin, debate adjourned.)

[English]

Senator Miville-Dechêne: What I understand from the history of this type of bill, because this is not the first time that this section of the Criminal Code has been called into question, is that the education sector’s reaction has always been that, sometimes, it is necessary to go to those lengths.

I understand that the Supreme Court has said that educators have very little room to manœuvre when intervening. However, in that situation, just as for parents, what concerns me is the issue of restraining a child so they don’t hurt themselves. It is very difficult to have absolute and general legislation to govern human beings.

You’ve all seen your children have a temper tantrum or meltdown, and sometimes we don’t know how to deal with it. However, in my opinion, we should not confuse calming down a child, even clumsily, and using unreasonable force.

That is a good question. In reading up on this issue, I realized that it’s not as simple as it seems. Yes, we have a provision that talks about reasonable force. In 2023, it is symbolically very difficult to use words like that because people always think the worst. But if we eliminate that clause, what does that mean? Are we going to have to build up jurisprudence to determine what’s acceptable and what’s not? There will always be situations that will be a bit of a grey area.

[English]

Hon. Denise Batters moved second reading of Bill C-291, An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Explicit sexual images/assaults are defined as:

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

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

It comes to the point, honourable senators, where perhaps no words can truly describe the depravity of these disgusting crimes — these absolute sins — against innocent children. But it is apparent that calling this “pornography” is, frankly, disrespectful and insulting to child victims. There is nothing in these scenarios that is consensual. If there is any part of the term “child pornography” that allows the perpetrators of these crimes to try to justify their actions, then we need to use a different term to describe this. There is zero room for ambiguity here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bill C-291 is a fundamental step in addressing the grim reality of child sexual exploitation in this country. To tackle this problem, we need to call it what it is: child sexual abuse and exploitation. This stomach-churning material is not consensual. It is not entertainment. It is not art. This is the abuse of vulnerable children, robbing them of their innocence, their childhoods, the very core of their identities over and over and over again.

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

The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?

(On motion of Senator Martin, bill placed on the Orders of the Day for second reading two days hence.)

Hon. Frances Lankin: Thank you, Senator Housakos, for putting forward your views. I would like to, in my question, set aside the matter of the CBC because I think there are many other points of debate that come into it, and that polarized view held among some of us in this chamber won’t be resolved through this particular bill.

I spent a number of years as chair of the Ontario Press Council and then the inaugural chair of the National NewsMedia Council. It has been my experience that any newspaper that brings forward critical arguments, whether it is of one political party’s positions or another, is named “fake news.” I have heard it many times from across the floor as well.

Here is what I want to understand from you: The voices of those small community newspapers that many of us in rural Ontario and across Canada rely on have largely been cancelled out and have not been able to have the resources and the staffing to do local investigative journalism. They rely on The Canadian Press and other feeds.

Your proposal doesn’t address how this issue will get resolved. Surely some of the $81 million is better than nothing at all. Could you speak to what the solution is, please?

Hon. Margaret Dawn Anderson: Honourable senators, I rise in the Senate today to speak to Bill C-29, An Act to provide for the establishment of a national council for reconciliation. I acknowledge that we meet here today on the unceded territory of the Algonquin Anishinaabe nation.

The Government of Canada website states:

Reconciliation frames the Crown’s actions in relation to Aboriginal and treaty rights and informs the Crown’s broader relationship with Indigenous peoples. The Government of Canada’s approach to reconciliation is guided by the UN Declaration, the TRCs Calls to Action, constitutional values, and collaboration with Indigenous peoples as well as provincial and territorial governments.

Please keep this in mind throughout my speech and give it the credence and validity it should be afforded as it applies to Bill C-29.

According to the Honourable Murray Sinclair:

The road we travel is equal in importance to the destination we seek. There are no shortcuts. When it comes to truth and reconciliation we are forced to go the distance.

Given this context, examining the road to Bill C-29 and its destination is essential. On September 21, 2022, the Honourable Marc Miller, Minister of Crown-Indigenous Relations, stated in his second reading speech:

I would like to take some time to reflect on the genesis of this legislation. The road to get here required collaboration and a lot of work. Bill C-29 has been in the making for many years.

So how did we get here?

On December 14, 2017, Carolyn Bennett, the Minister of Crown-Indigenous Relations at the time, announced the appointment of six members to the interim board of directors for the national council for reconciliation and noted:

Over the course of the next six months, the Board members will engage with various stakeholders to recommend options for the establishment of the National Council for Reconciliation and the endowment of a National Reconciliation Trust.

On April 11, 2018, an engagement event was held in Ottawa with 23 participants and 6 interim board members, which resulted in a nine-page summary of the event. On June 12, 2018, a final report was presented to CIRNAC, including a recommendation for establishing a transitional committee for the council.

Three years later, on January 18, 2021, the Honourable Marc Miller announced the establishment of a five-member Indigenous-led transitional committee who will engage with various groups, as well as the provinces and territories, on the legislative framework for the national council for reconciliation, and will provide advice and recommendations to the minister.

On June 22, 2022, Bill C-29 was introduced in the House of Commons. On October 6, 2022, before the House of Commons Standing Committee on Indigenous and Northern Affairs, Minister Miller stated:

The Transitional Committee, recognizing the urgency felt by many residential school survivors and their families, and recognizing the engagement by the Truth and Reconciliation Commission and the Interim Board, took a targeted approach to engagement. In March 2022, they hosted an event with Indigenous and non-Indigenous technical experts to discuss key considerations that could be included in the legislation, such as information sharing.

I had requested and searched for information on the meetings and consultations after June 2018. At 10 a.m. this morning, my office received a copy of correspondence to Minister Miller from the transitional committee for the national council for reconciliation dated March 15, 2022. The correspondence states — and I ask that you please take note:

Our recommendations are based on our own in-depth discussions as a committee, a targeted engagement session with technical experts, and the Interim Board’s final report released in 2018.

I can confirm that those technical experts amount to nine individuals with legal, financial or data expertise. This number means that 32 people were specifically targeted to engage with Bill C-29 between 2018 and 2022 — bear in mind, nine of these people were technical experts. Contrast this with the fact that there are 1.8 million Indigenous peoples in Canada and over 630 First Nation bands. There is no record of meaningful consultations with the Inuit, First Nations or Métis, or engagement with various groups, provinces and territories, on the national council for reconciliation legislative framework.

This assertion would appear to be corroborated by CBC News in an article dated February 6, 2023, which reported:

The Canadian government says it’s unable to list the Indigenous communities that participated in the drafting of the proposed National Council for Reconciliation Act, because no such list exists.

The article further quotes MP Jaime Battiste that “. . . broader engagement with Indigenous communities and organizations’ is on the horizon should the legislation pass.”

Collectively, this is highly disconcerting and troubling. Bill C-29 is now before Senate after passing the third reading in the House of Commons, despite the absence of recorded consultation or engagement with First Nations, Inuit and Métis, specifically over four years, between April 2018 and the introduction of the bill in the House of Commons in June 2022. Bill C-29 is a matter of national interest arising from the Truth and Reconciliation Commission Calls to Action. This information should be a matter of public record.

In a news article dated October 17, 2022, Assembly of First Nations National Chief RoseAnne Archibald expressed concern regarding Bill C-29, and the fact that CIRNAC is responsible for appointing the majority of directors of the board for the national council for reconciliation. She noted, “This is not within the spirit and intent of reconciliation, and it’s very paternalistic.”

On December 1, 2022, Inuit Tapiriit Kanatami, or ITK, withdrew its support for Bill C-29, noting that passing this bill could undermine the nation-to-nation building between the Inuit and the federal government. President Natan Obed said, “We believe this could be detrimental.”

In my discussions with ITK, it became clear that Bill C-29 was neither co-developed, nor was there meaningful consultation. The Inuit were neither a part of the drafting, nor privy to the bill before it was introduced in the House of Commons. This refrain was repeated in my meetings with the Inuvialuit Regional Corporation, Gwich’in Tribal Council and Métis Nation—Saskatchewan, as well as with Grand Chief Jackson Lafferty, Behchokǫ̀ Chief Clifford Daniels, Gamètì Chief Doreen Arrowmaker and Whatì Chief Alfonz Nitsiza, all from the Tłı̨chǫ Nation.

Not only were none of them a part of the consultation or drafting of Bill C-29, aside from the Inuit, not one of the Indigenous organizations was cognizant of the fact that this bill had been introduced and had passed third reading in the House of Commons, and was currently in the Senate of Canada.

Grand Chief Kyikavichik stated:

While the GTC supports the overall objective of establishing a National Council for Reconciliation and understands the importance of doing so in a timely manner, it must be done in a way that is thoughtful, strategic and inclusive. The government should not see this as an opportunity to simply check off a box on its commitment to fulfill the Truth and Reconciliation Call to Actions and rush this piece of important legislation.

According to Glen McCallum, President of Métis Nation—Saskatchewan:

When Canada purports to create a body that speaks for the Métis and that body is not accountable to, and selected by, our decision-making processes, it ultimately renders it illegitimate and undermines our position as the government of Métis in Saskatchewan.

Given the role of the Inuit, First Nations and Métis, it is essential to note that Canada has 25 modern treaties, four stand‑alone self-government agreements, two sectoral education agreements and one governance agreement in partnership with Indigenous, provincial and territorial governments across six provinces and all three territories, covering over 40% of Canada’s land mass. The issue of a modern treaty is partially where the Inuit concerns reside with Bill C-29 — and those of other rights holders within Canada.

The Inuit have four land claim agreements: the Inuvialuit Settlement Region, Nunavut, Nunavik and Nunatsiavut.

In 2017, the Inuit engaged in an Inuit Crown-Partnership Committee, or ICPC, with the Government of Canada. The Inuit Nunangat Policy recognizes Inuit Nunangat — or the Inuit homeland — as a distinct geographic, cultural and political region. A key component of ICPC is to advance reconciliation, strengthen the Inuit-Crown partnership and create a more prosperous Inuit Nunangat through meaningful collaboration. That being said, the Inuit, through four distinct land claim agreements, and collectively through the ICPC partnership with Canada since 2017, have constitutionally protected rights and obligations and existing contracts with the federal Crown.

The Government of Canada has 12 Statement of Principles on the Federal Approach to Modern Treaty Implementation. While all 12 are integral, I will focus on two that highlight the importance of meaningful engagement and consultation specifically regarding Bill C-29:

The second states that modern treaties are reconciliation in action:

The Supreme Court of Canada wrote that treaties serve to reconcile the prior occupation of North America by Aboriginal peoples with the assertion of Crown sovereignty. Treaty rights are recognized and affirmed by section 35 of the Constitution Act, 1982. Treaties establish a mutually agreed-on and enduring framework for reconciliation and ongoing relationships between the Crown and Aboriginal people.

Reconciliation frames the Crown’s actions in relation to section 35 rights and informs the Crown’s broader relationship with Aboriginal peoples. Canada’s approach to reconciliation is informed by legal principles articulated by the courts and by negotiation and dialogue with Aboriginal peoples and provincial and territorial governments.

The tenth states that all federal departments and agencies will conduct their business in a manner that is consistent with Canada’s modern treaty obligations:

Federal departments and agencies will carry out all functions in line with their mandates, including the development and delivery of programs, services, policy and legislation, in a manner consistent with modern treaty obligations and the evolving legal framework.

The preamble in Bill C-29 states:

Whereas the Government of Canada is committed to achieving reconciliation with Indigenous peoples through renewed nation-to-nation, government-to-government and Inuit-Crown relationships based on recognition of rights, respect, cooperation and partnership;

Yet, Bill C-29 is silent on its role and the potential impacts on historic and modern treaties in Canada despite these rights being recognized and affirmed by section 35 of the Constitution Act, 1982, despite the Royal Assent of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, and despite Canada’s assertion that reconciliation frames the Crown’s actions concerning Aboriginal and treaty rights, and that their approach to reconciliation is guided by UNDRIP, the Truth and Reconciliation Commission of Canada, or TRC, Calls to Action, constitutional values and collaboration with Indigenous peoples.

According to TRC Call to Action 53:

We call upon the Parliament of Canada, in consultation and collaboration with Aboriginal peoples, to enact legislation to establish a National Council for Reconciliation.

Instead, Bill C-29 was not a result of consultation and collaboration with Aboriginal peoples. Rather, it is the outcome of 32 targeted individuals and an expedited approach by the Transitional Committee for the National Council for Reconciliation and the Government of Canada.

I have spent much time exploring, understanding, discussing and researching Bill C-29, its genesis and the road it has taken.

As an Inuk senator with a strong understanding of Inuit history and the history of legislation that has had and continues to affect not just Inuit but all Indigenous peoples in Canada, Bill C-29 is vexatious. My concern lies with the foundational principles that led to the formation of Bill C-29, and the deliberate absence of meaningful consultation with Inuit, First Nations and Métis and engagement with provinces and territories. It is negligent that a bill on reconciliation endorsed by Canada sits before the Senate and so blatantly disregards the fundamental principles in the development of legislation that affects us as Indigenous peoples. This should concern all of us.

As parliamentarians, it is our duty to examine, question and use sober second thought to ensure that when we are considering a bill that not only arises from TRC Calls to Action but impacts Indigenous peoples, we are not repeating the historical wrongs of Canada in the guise of reconciliation.

I urge you all to revisit Bill C-29. While I support reconciliation and the work of the Truth and Reconciliation Commission, I do not support Bill C-29.

Quyanainni. Mahsi’cho. Thank you.

Hon. Frances Lankin: Why is it always me you warn? My reputation precedes me.

Thank you, Senator Anderson. I, along with a number of my colleagues in our group, had a chance this week to meet with a member of the Transitional Committee, Mike DeGagné, and also with representatives of the Métis National Council. We have further meetings coming up.

One of the things that Mike DeGagné, who is First Nations, talked about was the representation of the work going forward to the Inuit Tapiriit Kanatami, or ITK, the Métis National Council and First Nations, and the importance of them having a role in designing the consultation. He also talked about this as being a bill to enable the building of the house, but the view of the house, the structure of the house and the foundation of the house must be informed by meaningful, deep consultation with the community. That is the framework approach.

Sometimes, that’s really difficult for us — the framework approach — and we’re seeing it with other bills because the consultation is to come, and the commitment of the consultation is there —