When we were discussing the various ideas we had for topics for this week’s series from our firm, Pitblado LLP, I told my colleagues that I wanted to use my writing opportunity to give the readers of Slaw a glimpse into something that is unique to Manitoba from the standpoint of technology and the law.
I told the group that I wanted to report on Manitoba’s recent enactment of The Child and Family Services Amendment Act (Child Pornography Reporting) (Manitoba). With the enactment of these changes to The Child and Family Services Act (Manitoba), Manitoba became the first province in Canada to enact legislation which makes it mandatory for a person who encounters child pornography to report it.
The amendment uses the same definition of “child pornography” as is used in the Criminal Code (Canada) — s.163.1(1) — and has included that definition under The Child and Family Services Act’s existing definition of “child abuse”. In the interests of space and repeating the obvious, I won’t repeat the definition here for you, but you can click through to it if you’re interested.
In addition to this, the legislation also includes some of the following features:
- an informant’s identity is to be kept confidential except as required in judicial proceedings or by consent;
- it’s illegal to retaliate against an informant;
- police are obligated to tell an employer when an employee having access to children in the workplace is charged with a related offence;
- no person will be required or authorized to seek out child pornography; and
- penalties for violating the legislation include a maximum fine of $50,000 and/or imprisonment of not more than 24 months.
As I continued to think about the new legislation, I remembered that this is only part of Manitoba’s $2.4 million anti-sexual-exploitation strategy. Part of that strategy also includes the province’s ongoing support for Cybertip.ca. For those of you who haven’t heard of this excellent website and service, Cybertip.ca is Canada's national tipline for reporting the online sexual exploitation of children. While the tipline is currently owned and operated by the Canadian Centre for Child Protection, this wasn’t always the case. What some people don’t know is that it was created in Manitoba in 2002 by Child Find Manitoba which operated that service in Manitoba. Then, in 2005, it went full blown as a national website and strategy under the auspices of the Canadian Centre for Child Protection with the support of some corporate heavyweights, such as Bell, Telus, MTS Allstream, Rogers, Shaw, AOL and Cogeco.
Another feature of Manitoba’s new legislation, is that Cybertip.ca is to report annually to the Manitoba legislature. Since launching, Cybertip.ca has received almost 35,000 reports resulting in thousands of websites being shut down, at least 45 arrests and the removal of children from abusive environments. While I really wish that we lived in a world where Cybertip.ca wasn’t necessary, and that I didn’t have to trumpet the ‘accomplishments’ I just did, I know we’re all a lot smarter than that. So, when Cybertip.ca presents its next report to the Manitoba legislature, as required by the new Manitoba legislation, I suspect we’re going to see even higher numbers. Which means that the tipline is working, I suppose.
My post isn’t all plaudits, though. I did hear a story a couple of weeks ago from someone who is close to the issue which really upset me. She told me that she has been part of several submissions to the authorities concerning various individuals who have been suspected of possessing and/or transmitting child pornography, and claimed that in certain cases the authorities failed to act on the tip — for example, where someone only has a few images on their computer, rather than a large library. This really bugged me: Is there some sort of unofficial de minimis exception at play here. But to keep this in perspective, I have to acknowledge that I talked to one person involved in making such submissions—not to law enforcement or others, so I must give the authorities the benefit of the doubt.
If you, like me, have kids, you know how big of a part of their lives the Internet has become. It’s a different world out there than when I was growing up, that’s for sure. We know we need to watch what our kids are doing on the Internet. This will always be the case and it’s an unfortunate reality. At the same time, I feel a bit more comfortable knowing that my provincial government has made it, and continues to make it, a major priority to do its best to protect my children in cyberspace. This province can be incredibly progressive when it wants to get behind an issue and this is a perfect example of that.
I see the Cybertip.ca initiative as a wonderful gift from Manitoba to the rest of Canada, and especially to kids around the world. And I see the new Manitoba legislation making it mandatory to report child pornography as an invitation to the rest of the provinces and territories in Canada to get in line and do the same thing!
I agree with your kudos to Cybertip.ca, who do awesome work.
However, I think your assessment of mandatory child pornography reporting laws is all wrong. I don't even know where to start.
Let's start with the basics: what pressing social problem is this law supposed to solve? Was there a huge problem with people discovering child pornography and deciding not to report it? No evidence has ever been presented that demonstrates that … and it sort of defies common sense.
Everyone from Joe Q. Public to the largest ISPs in the country would say that they have both the power and the moral inclination to report child porn to the authorities … and have done so without a legal obligation. The existence of cybertip.ca is a testament to that. I'd suspect that the only people who know about child pornography and don't report it are the sort of criminal element who aren't going to follow this law anyway.
Who was calling for this law? In Nova Scotia, there were news articles clarifying that it was not coming from the cops who fight child exploitation. The men & women best positioned to tell us how to tackle the problem could care less about this legislation. It got a rousing "Well, I guess it couldn't hurt" from law enforcement.
Talk to anyone who actually work in the field .. they'll tell you that their biggest worry is how will they ever get the time to pursue the growing pile of cases they already know about. Finding instances of child pornography to investigate is like shooting fish in a barrel. Finding the resources to actually investigate the cases, that's the problem.
So this law is, at best, a way for politicians to claim to be doing something about child pornography while ignoring the resourcing issues that are really preventing the work from being done. (Which is consistent with your contact's story–the cops can't even get to all the cases.)
Can we at least say this legislation won't actively hurt the fight against child pornography? I'm not sure. I note that these laws contemplate the creation of some kind of "reporting agency" bureaucracy to receive the supposed flood of complaints–as opposed to the simple current answer, call the police. I'm not in law enforcement but I can't imagine why more bureaucracy will help.
There are other potential harms that I haven't seen much about. If there are unreported cases of child porn, I can imagine that at least some of them come from the spouses of offenders (who I guess would be in a posiiton to stumble across the material.) Feminists know that forcing women to come forward to authorities about their husbands can have awful consequences. On another note, the Nova Scotia legislation also seems to require lawyers to report on their clients, which clearly compromises the right to a fair defence.
Are these a little hypothetical? Maybe. But compared to the zero proven benefits of the law, it's upsetting to see that even the potential for harm like this hasn't been considered.
None of which is to say that child pornography isn't a huge problem that needs our attention. However, there are good and bad tools for tackling the issue. Too often we let our judgment get clouded by the horrifying nature of the problem, and don't seriously assess the efficacy and risks of our supposed solutions.
Two issues immediately come to mind here. Kevin touched on the first one regarding the failure of the spouses of offenders to report. I can see this as a tool to compel spouses or cohabitants or mere roommates to testify against primary offenders in order to avoid getting charged themselves.
Second – it seems to me that this could be a matter of adding another layer of lesser included offenses to facilitate plea bargaining, or to have another fall-back position in case any evidence of before-the-fact intent seems too shaky.
I'd like to think that no prosecutor would try to push too hard in a case where the ONLY thing the defendant did was fail to report. Unfortunately there are a few prosecutors who are occasionally less than scrupulous.
Ontario has now adopted a similar law. No one in the Legislture dared to appear to favour child pornography by opposing it. One consequence is that a person who actually has contact with real children and who has a specific duty to report suspected abuse, such as a doctor or teacher, has a maximum fine for failure that is far lower than someone who does not report child pornography. So the case where the report may actually benefit an actual child is treated less seriously than the entirely speculative benefit of this new duty.