Justice committee  My understanding is it has not succeeded. There have been some cases, early on, after the enactment of the child pornography offence, and it has not succeeded. I'm not aware of a case under the voyeurism offence where there's been an issue with that. So in the context of Bill C-54's proposal, there is every reason to believe that a court interpreting the new offence would be very much directed and guided by the Supreme Court's decision in Sharpe and other case law under the voyeurism offence.

Justice committee  This became apparent when we looked at the case law. When we looked at the length of the sentence imposed, we saw that there were more sentences coming in at the low end of the spectrum. In other words, they were closer to the mandatory minimum penalty level. The other thing I would note for the committee's attention is that since that time we've also had a few fairly important decisions that have contributed to what we're seeing today.

Justice committee  You have it in section 162, very close in the voyeurism offence. The change there is just for grammatical reasons. You have similar language in the child pornography offence in section 163.1.

Justice committee  Not that I'm aware of. In fact, a Supreme Court of Canada decision in the Sharpe case, the child pornography case in 2001, interpreted all of the components of the child pornography offence, including for sexual purpose and explicit sexual activity, which again the courts would be informed by when they look at this and similar language in the voyeurism offence.

Justice committee  I would like to respond in English. I understand the committee will be receiving a presentation by colleagues at the Canadian Centre for Justice Statistics. They may be able to provide you with more specifics. In 2005, 11 new mandatory minimum penalties were enacted in child-specific offences.

Justice committee  Certainly, and it's as the minister said: the intention was to get at this predatory conduct before an actual contact sexual offence is committed. And yes, of course, there is an awareness of investigatory practices used by police currently under existing Criminal Code offences as well as those we would envision for this proposed new offence.

Justice committee  I'll do my best. I'm not the technical expert on the cyber aspects of criminal law. If the committee requests, if I may, I can obtain other assistance for you from one of my colleagues. Let me tell you, in terms of the use of the word “Internet”, certainly in developing Bill C-54 we looked at what is the language being used now, whether in legislation or in practice by courts.

Justice committee  It is, broadly.

Justice committee  I might also add that my colleague has just reminded me that the Interpretation Act also has a definition of telecommunications. So concerning the intention here, you're correct. It is to—

Justice committee  It's “computer system” as defined by the Criminal Code, which is more than just a desktop.

Justice committee  The intention is to catch, yes, exactly what's available now and what is possible in the future in terms of identifying the nature of the communications that will be at play rather than just what specifically presents today. You're talking about the conceptual. I'm trying to find for you right now the reference in Bill C-51, the definition.

Justice committee  The defence of entrapment is available at common law. So it's not in the Criminal Code. But to assist you with this, section 172.1—the existing “luring a child” offence on which both new offences are modelled—engages similar types of practices to those you heard about from the witness from the OPP on Monday.

Justice committee  The amendment that you see in clause 15 replaces the word that is currently.... For example, currently section 172.1—luring a child—talks about someone who, using “a computer system within the meaning of subsection 342.1(2) communicates with”. This is replacing the language there and in the new offences with “telecommunication”, because this is the language that's also being proposed more broadly in what is currently Bill C-51, which was previously Bill C-46, the Investigative Powers for the 21st Century Act.

Justice committee  I believe the term is originating in what is now Bill C-51.

Justice committee  You'll see the reference to “telecommunications” there, because the offence you're talking about, which is now found in clause 15, was originally in the predecessor to Bill C-51; it was in Bill C-46. So for consistency purposes, this is using the same language. The intention here, though, in replacing “computer system” with “telecommunication” is to use the term that is the broadest term to capture all kinds of technology that will fit under it.