Bill C-23 (Historical)

Sex Offender Information Registration Act

An Act respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other Acts

Supply

[John McKay, Liberal, Scarborough East, ON]

Mr. Speaker, we certainly had a tumultuous summer on this subject. I do not know whether my constituents are more irritated by the decision itself or the fact of the irrelevancy of Parliament to this debate.

Parliament has spoken at least three times on this subject in the last few years: once in a free vote in 1999 in an overwhelming vote of 216 to 55 in favour of the traditional definition; in 2000 on Bill C-23 and again on a harmonization bill and both of those were whipped votes.

The courts have felt perfectly free to ignore everything that Parliament has said to date. I dare say that pretty well everything that is said today will be ignored as well.

Parliament is irrelevant to this debate because it allows itself to be irrelevant. Power abhors a vacuum. Parliament gave the charter to the people of Canada yet the judges have not at all been shy about using that power to the maximum.

This is not a dialogue between Parliament and the judiciary. This has become a monologue in which Parliament is afraid to speak with any authority.

I sit on the justice committee. We spent six months travelling the country going to 13 separate communities. Well over 200 briefs were directly submitted to us. There were over 450 written submissions. Regardless of the views, I thought it was an excellent exercise in democracy. Everyone got their say and just possibly there may have been some meaningful exchanges among the participants. When the people are given an opportunity to speak they usually have some wisdom to share.

Not only were the members of the justice committee ignored, so also were the hundreds and thousands of people who made an effort to participate in the process. In one fell swoop the Court of Appeal of Ontario trashed the efforts of the committee and devalued all those who chose to participate, making any report that we would like to make utterly and completely irrelevant.

Those who think the decision of the Court of Appeal is a good decision should think carefully about any future participation of Canadians in the democratic process. Why would anyone really bother? Why would they let themselves be humiliated? Indeed, why bother to vote?

There will be those who argue that this is in fact a free vote. For an observer from Mars, that might appear to be a free vote, but let not the rest of us be so naive. The government has chosen not to appeal this decision and ask for a stay in that decision and is therefore creating facts on the ground.

In early June the government's official position was to support the traditional definition of marriage. By the end of the month the government had turned 180 degrees in the opposite direction and proposed a reference to the Supreme Court of Canada to which any first year law student already knows the answer, and drafted a bill which allows for no other alternatives whatsoever. In addition, the Prime Minister has signalled to members of the cabinet and therefore his parliamentary secretaries that they will not be free to vote as they see fit. The Minister of Justice has been travelling the country to argue with the provinces to just treat the bill as if it had already passed.

The contempt for Parliament and by extension its MPs as representatives of the people is breathtaking. We will collectively bear witness to MPs and cabinet ministers swallowing themselves whole in this so-called free vote.

For those who generally accept the deconstruction of the institution of marriage in the name of equality, I say good for you. Vote as you see fit. I profoundly disagree with you.

Having now commented on the process by which we get here, I would like to talk about the issue itself. Professor Daniel Cere of McGill University has analogized heterosexual marriage to a web with a variety of strands which underpin the very existence of our society and our nation. Among the variety of strands are sociological, anthropological, legal, theological and generational.

The courts in their deconstruction have said that all these strands are non-essential to the core meaning of marriage. Marriage according to the Court of Appeals is merely a love institution, two persons with a pulse having sex.

The conventional relationship between opposite gender people reaching generationally backwards and forwards is an incident of a marriage, not its core element. The Court of Appeal has literally bombed the intergenerational bridge both front and back.

Heterosexuals reach back to previous generations and forward to future generations. The Court of Appeal has said in effect “So what? It's not a core feature of marriage”. Inherent capacity of heterosexual couples to procreate is nice but it is not a necessity.

The court has said that the way in which heterosexuals reach out to a larger society and say in effect “we will perpetuate you” is a novelty, but it is not a core element. And forget all that religious nonsense. It is just a collection of myths anyway. We are a secular society and we have no space in our one size fits all pluralism to buy into anyone's ancient myths. It is really a conceit to equate equality with sameness.

Pluralism should respect diversity. People come in all shapes, sizes and orientations. They are not the same, but this crude deference to equality has convinced us that the same is equal and equal is the same. This is intellectual nonsense. A just society treats its citizens with equality before the law. It does not jam each and every citizen and each and every relationship into identical boxes.

The courts have bought this crude idea because Parliament is AWOL on this issue. We have deferred to the legal equality claims in deference to all else. We have bought the notion that if it is not exactly the same, then it is not equal. In the marriage debate that works itself out to say that homosexual relationships must be equal to heterosexual relationships, therefore, marriage must be reshaped and redefined to accommodate the equality claims so that they are the same thing. This is nonsense in life, but apparently not nonsense in law.

Mr. Justice Charles Gonthier is quoted as saying, “To permit the courts to wade into this debate risks seeing Section 15 (equality) protection against discrimination based upon sexual orientation being employed aggressively to trump Section 2(a), protection of the freedom of religion and conscience”.

Apparently nothing short of marriage is good enough. We get into this foolishness about separate but equal. All of those in the 1960s school busing debates start playing tapes in their heads. Heterosexual couples are different from homosexual couples for one very obvious reason: gender. They are equal for the purposes of law, but they are not the same. Same is not equal and equal is not the same. The issue is to achieve legal equality, not sameness. A principled view of pluralism would respect not only the need for the freedom of the individual but also the cooperation that is required to create conditions of common good.

Our charter is an important statement of rights and freedoms, but it is silent on the conditions necessary to create common good. When we let the lawyers run away with the debate and give undue deference to judicial pronouncements, we erode the conditions for the common good. It is rights without responsibilities.

By dumbing down marriage to two persons with a pulse having sex, we have destroyed the conventional and replaced it with the contractual. The law of contract serves us very well in the exchange of goods and services but is supremely inadequate to express the complexity of opposite gender relationships. Marriage is or has become a contract, nothing more, nothing less. All those strands to which Professor Cere referred, which feed that web, are charming but not necessary, are mere mythologies.

At the justice committee, we were repeatedly cautioned not to mess with marriage. The example frequently quoted was the change to the Divorce Act, which created no fault divorce. It was argued that this was a tiny change affecting an insignificant number of people and would alleviate genuine hardships. Who today can say that their family has not been affected by no fault divorce? It has affected every marriage in the nation and continues to be a national tragedy. We have achieved the distinction of being one of the most divorcing nations in the world.

Today we are invited to make a minor change to the definition of marriage, which will affect a small number of people and alleviate an injustice. Do not be naive: this will affect how everyone regards marriage and will have consequences for the heterosexual community far beyond those apparently minor inconsequential changes.

Caution is the operative word. There are alternatives available and I would, if I may, urge everyone to support the motion.

Business of the House

[Don Boudria, Liberal, Minister of State and Leader of the Government in the House of Commons]

Mr. Speaker, there have been yet further consultations and I now believe that you would find consent for the following. I move:

That, if at any time that the House stands adjourned during June, July, August and September 2003, the Standing Committee on Justice and Human Rights has ready a report on Bill C-23, when that report is deposited with the Clerk of the House, it shall be deemed to have been duly presented to the House.

Injured Military Members Compensation Act

[Don Boudria, Liberal, Glengarry—Prescott—Russell, ON]

Mr. Speaker, I rise on a point of order. There has been consultation among all House leaders and I am pleased to inform the House about this item. I would seek unanimous consent, pursuant to that agreement, for the following:

That, if at any time that the House stands adjourned during June, July, August and September, 2003, the Standing Committee on Justice and Human Rights has ready a report on Bill C-23, when that report is deposited with the Clerk of the House, it shall be deemed to have been duly presented to the House.

Again, this is on Bill C-23 only, because there were discussions of another item about which there was not an agreement.

Justice

[Betty Hinton, Canadian Alliance, Kamloops, Thompson And Highland Valleys, BC]

Mr. Speaker, doing it right is better than doing it fast.

How badly flawed is Bill C-23? If and when it comes into effect it will have zero names on it because it is not retroactive. The Liberals want people to reoffend before they get put on the registry. The provinces, victims, and police have been screaming for a retroactive registry.

Why will the Solicitor General not commit to a sex offender registry that will actually have the names of those convicted on it?

Supply

[Lorne Nystrom, NDP, Regina—Qu'Appelle, SK]

Mr. Chair, I want to switch to another area but I want the minister to make a short comment when he answers about the contributions and grants to legal aid research that will be eliminated at the end of 2003, which is only about seven months away. Perhaps he could tell me why that has happened. It may be interesting to hear the answer.

I want to switch now to the sex offender registry. As the minister knows, the RCMP now has CPIC, which is a database for sex offenders that is used around the country by the police. Ontario now has a sex offender registry that came into force retroactively.

Since we are debating Bill C-23, which is a proposal to have a national sex offender registry, I want to ask him what the advantages of the new registry will be over the existing ones, which are the Ontario one and CPIC.

If he would also make a comment about the legal aid question, I would appreciate it.

Budget Implementation Act, 2003

[Gerry Ritz, Canadian Alliance, Battlefords—Lloydminster, SK]

They never will because they have been promised and denied so many times. They remember little things like the gun registry, the invasion on their civil liberties, and their rights and freedoms.They look at things like the national energy program. They remember things like the payout on the home heating fuel that went to prisoners and people who did not even live in the country. They look at these guys as poor fiscal managers. That point is getting nailed home.

I look at polls and they show the Liberals at 38% in Saskatchewan. That means that all three people voted because that is how many people in Saskatchewan get called when they do a sample of the country. I guess all of them were Liberals, but in my riding we would be hard-pressed to find anybody who would stand and say “I am a Liberal and I like it”, because the family is under attack, the sex offender registry does not go anywhere because the Liberals will not make it retroactive and it does not protect our kids.

The DNA database that the police are crying for is not retroactive and never will be, so we have a bunch of blank sheets of paper. What good is that? We have Police Chief Julian Fantino from Toronto saying to take the money from the gun registry, put it into a sex offender registry, and make it work. He runs the largest police force in the country. He just had a huge tragedy in his area and he realizes what needs to be done. We have to get it done. A majority government can do these things.

The Solicitor General stood up in reply to a question in the House today and said that a motion I introduced totally scuttled Bill C-23, the sex offender registry. That is a David and Goliath story if I ever heard one. As if I took down a majority Liberal government. I would like to pass a couple of other motions on a few other things if it were that effective. However, he did not read the other half of the motion which said that Bill C-23 should be withdrawn until it is made retroactive. It is useless until we have some names in the registry.

Even when the government does implement the half measures it is talking about, the offenders can still apply to a judge and say that they cannot have their names there because it is not in their interests. Well of course it is not. It is in the interest of the poor victims out there who suffer again and again at the hands of these perverts. These guys just cannot help themselves.

We took many years to make a few changes to the Young Offenders Act and then it was softened because one province said it was too strict. The other nine said it was not strict enough, so the majority did not rule. Democracy does not count for a darn thing in this place at times. It is political will.

We see that in the helicopter replacement procedure. The government keeps crying that there is no politics in this replacement procedure. History shows that it was politics that cancelled it, it was politics that debundled it, and it was politics that bundled it again once the government saw a consortium coming together that it wanted. Now it is politics that says the specifications are all watered down.

During the late show last night I presented all of the things that have been changed, such as payload requirements and the potential for crash landings. The Liberals can lose the aircraft and nobody is concerned because that is how they have dumbed down the specifications. That is not good government. That is not good practice at any level in the private sector or government organization. We cannot do that. We cannot play politics with major procurement systems like that. We cannot play politics with sponsorship programs or job creation funds. They all hit the proverbial fan.

People in Canada are finally starting to keep a scorecard, saying “This is where it went off the rails. This is where it went wrong. This is why we have to hold these guys accountable”. That has to be done and there is a political price to pay for all of this tap dancing that we see around the edges.

Points of Order

[Gerry Ritz, Canadian Alliance, Battlefords—Lloydminster, SK]

Mr. Speaker, I rise on a point of order to provide some clarification on a response the Solicitor General made while answering a question from my colleague from Edmonton North. He seemed to say that single-handedly I had short-circuited Bill C-23, the sex offender registry.

In fact, it was an amendment to the motion. The reason that we were seeking to have the bill set aside was that the bill failed to provide retroactive registration of sex offenders.

Justice

[Wayne Easter, Liberal, Solicitor General of Canada]

Mr. Speaker, yes, it could probably be passed in a day if we could get cooperation from members of the official opposition. Who is holding up the federal sex offender registry at the Canadian Alliance?

We introduced the bill on December 11. We have debated it on six separate days. On March 31 we had a motion from a member of that party, the member for Battlefords--Lloydminster, which said: “That this House declines to give second reading to Bill C-23...”. That is the bill that we want to get through, and that party is opposing it.

[Rick Borotsik, Progressive Conservative, Brandon—Souris, MB]

Mr. Speaker, the Prime Minister has said that there is a perception that money can unduly influence the political process. Perhaps he should realize that his own personal schedule and his own legacy agenda are wrongfully manipulating the political process of the House.

There are some very important pieces of legislation before the House and in committee. Recent events in Toronto have focused the need for the creation of a national sex offender registry. Bill C-23 is the legislation that will create such a registry and is an issue that Canadians see as a priority.

Yet the Prime Minister does not see this as a priority. What does his own House leader put as a priority before the House? Bill C-24, the political financing act. He wants us to stay in the House until that legislation is passed, but he does not care about the sex offender registry.

The Prime Minister is more interested in pushing through vindictive legislation aimed at getting even with people within his own party, those who once referred to Bill C-24 as “dumb as a bag of hammers”, than in doing what is best for Canadians. It is no secret that the financing bill has raised a storm of controversy, but we should be dealing with things that are important to Canadians in the House, not what is important to the Prime Minister.

Supply

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, we are debating a motion which calls upon Parliament to bring in measures to protect and assert the will of Parliament against certain court decisions.

It is straightforwardly put and I have listened carefully to the debate. I am not a lawyer and in some instances that gives me an advantage because I can ask naive questions, rhetorical questions they may be, hopefully to stimulate debate.

Whenever members of Parliament come to the House to speak, sometimes what happens to be before the House when one is doing House duty may not necessarily be one's area of expertise. As a consequence parliamentarians are offered a plethora of background material, a little history, and a few words of wisdom that may help them to look at the subject matter before the House and participate in debate. I want to share with the House some of the background information that was given to parliamentarians.

In 1982, Parliament adopted a new Constitution and entrenched the Canadian Charter of Rights and Freedoms. The charter embodies the values of Canadians, and sets out our rights and freedoms. According to some recent surveys, up to 90% of Canadians see the charter as a symbol of Canadian identity and believe it has played a crucial role in protecting our rights and freedoms.

That is a wonderful statement and I think it is hogwash. It refers to a number of surveys where 90% of Canadians believed that the charter sets our rights and freedoms and is a symbol of our Canadian identity. I am not sure if 90% of Canadians are even aware of what is in the charter or what it means. They have probably seen a news flash or heard someone once say that, but I am not sure that Canadians were engaged in the charter when it first became part of the laws of the land back in 1982.

The charter is a very interesting document. The whole process that Canada went through to patriate our Constitution and to enshrine a Charter of Rights and Freedoms was a significant event in our history, but it was also a political event. It was an event that had some interesting political manoeuvering. There was posturing, negotiating and trade-offs.

I do not think that the patriation of the Constitution with a Charter of Rights and Freedoms was a result of extensive consultation with Canadians or with parliamentarians. It turned out in some cases to be simply the discussions of two people huddled away in a kitchen trying to cut a deal.

We know what happened there. We know that Quebec was not a part of it and was not happy with the result. The then Prime Minister of the day, Prime Minister Trudeau, said that we had better take a deal while we can get it and that was celebrated.

Most of the debate that I have heard today has raised some of the questions related to the charter and the fact that it has broken through another dimension of the legal and judicial system in Canada.

I took a law course when I was in university. I learned about precedents and about the different areas of the judiciary. I always remember the roles and functions of the judiciary basically being to apply the laws as the courts interpreted them, to look at precedent, and to maintain some consistency and stability within the application of the law.

Very slowly, as a consequence of the charter, the question of interpretation started to creep in and it went even further. I discussed earlier with a member here in the House the concept of a list. There are certain groups that have been identified. I have often thought that if there is a list of anything that must mean that something is not on the list. Otherwise we would say all things.

Canadians would probably agree that the laws of Canada apply equally to all. Our Charter of Rights and Freedoms does not say that in simple terms. It is more complex and this is where the lawyers come in. This is why I appreciate not being a lawyer in that culture because I can ask questions about my motivation.

If a case were to come up that identified potential grey areas within the laws of the charter, I would imagine that it would be interesting to go to the Supreme Court to try and shape the interpretation of an aspect of our laws or the charter and win a case to make a difference. Part of the profession is the identification of areas within the charter and our laws which must grow as society grows. We change, but maybe not for the better in all things. Because of what has happened, I could mention a few areas where the world is not a better place, and child pornography is one of them.

This aspect of court-made law fascinates me. A couple of years ago I asked the resources of the Library of Parliament to provide me with some scholarly papers on the debate about court-made law. How did this evolve? Suddenly the courts of the land were interpreting the laws in different ways such that there were consequences to the application of those laws.

There were also consequences to Parliament which made those laws in the first place. We have gone through a period over the last 10 or 15 years where our laws have been challenged on virtually every front. This is because more precedents are being set. Where do Parliament and the courts fit with each other? The briefing note stated:

By adopting the charter, Parliament and the provincial legislatures decided to make explicit the right of Canadians to go to court and challenge laws. The roles of Parliament and the courts do not conflict, but rather complement one another and Parliament remains a key stakeholder. Through the charter, Parliament has provided the courts with a lens through which to interpret the laws that it has passed.

This cannot be so because we are now faced with many different challenges. Parliament and the courts do not complement each other in this regard because there is disagreement. Parliament, for instance, disagrees with the definition of marriage. This Parliament has voted on two occasions in the recent past that marriage is defined as the union of one man and one woman to the exclusion of all others.

Bill C-23 contains a preamble which reaffirms Parliament's view, on behalf of Canadians and the social values of Canada, that marriage is the union of one man and one woman to the exclusion of all others. Others have come forward to say that it leaves them out because they want to be married and enjoy recognition like married couples because they too are in a loving, caring relationship, and they believe that a loving, caring relationship does not have to be a man and a woman. This certainly does touch some hot buttons.

I have often thought that when people in this place talk about being discriminatory by using a term like homophobic, that the term was being used as a negative. However, I have also heard the word discrimination used in a positive context such as a person being discriminating in wines because one wine is different from another. There are differences and we celebrate those differences.

It would be a shame if everything in our world was reduced to the lowest common denominator. We would then have to look at everything that we had. If some people had more money than others, then their money would have to be redistributed so everyone would get down to the lowest common denominator. It does not make much sense to make us all the same. If we were all the same, this world would be boring. If everything is important, then nothing is important. If everything is a priority, then nothing is a priority.

Can we not discriminate in favour of the traditional family being the biological mother and biological father with a child? Marriage is an institution which does not offend people. One of the previous speakers mentioned a comment taken from committee testimony describing marriage as society's parent, not society's child. We should think about that for a moment.

We must understand that the basic instinct of every human organism is survival of the species. That is the number one instinct of all species, either human or non-human. The number one instinct is to survive, to propagate, and to flourish. We do that as human beings by procreating. For years mankind has had the urge to propagate, to have children, to grow families, to create a society, and to build a family tree. These are not bad things. As a matter of fact, our society grew to the point where it thought so highly about the important roles of the traditional family, of child with biological mother and biological father, that it started to discriminate in favour of that traditional family by giving it child tax credits, family deductions, or assistance for child care.

Every law in our land is discriminatory. If all things were equal for all people and at the lowest common denominator, there would be no injustices for the laws to deal with. All our laws are discriminatory and that is not a bad thing. I discriminate in favour of seniors and the disabled who need help. I discriminate in favour of aboriginals. I discriminate in favour of high unemployment areas which need assistance in job creation or alternatives, as in the terrible situation we are seeing now in the Atlantic fishery.

Yet, people are going before the Supreme Court and other courts in the land saying they are being discriminated against. By this action we are slowly eroding the variety and the vibrancy of a free and democratic society. Change is good, variety is good, and differences are good. We should celebrate our differences. Do we all have to look and act the same? No.

Our Charter of Rights and Freedoms says that we are all entitled to be treated equally under the laws of Canada and we should all enjoy those rights, without qualification. Lawyers felt it was a little more interesting to make it a little different.

I will give the House an example. Today I received a communication from a colleague who thought he had something in a similar vein regarding some difficulty in a bill before the House. It was a question relating to values underlying a free and democratic society. The legislation uses this language which was borrowed from the Supreme Court of Canada because it is part of the values underlying a free and democratic society.

Let us look at section 1 of the charter as interpreted by the Supreme Court with regard to the values underlying a free and democratic society. They are described as follows:

--respect for the inherent dignity of the human person, commitment to societal justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

That is a mouthful, to say the least, but if members get a chance to look at the transcript and look at the statement again, it is a statement that arguably anyone could use to say, “I should be there”. In fact, the values of a free and democratic society are being defined by the Supreme Court of Canada as the consolidation of the values of each and every person individually and therefore everybody's values are there. But then we get into the problem that everything is important and, as I said, if everything is important then nothing is important. If everything is a priority then nothing is a priority.

Our value system cannot be a consolidation of everybody's values, because in a free and democratic society everyone has the right to have values and establish their own set of family, moral and social values. It does not mean that they reflect Canadian society's consensus on those values. Those values move over time and our laws will move to reflect them over time, but I must admit that there are certain things within our society which should not move.

This place is hypocritical if it does not put our children first. It is hypocritical if it does not uphold the fact that the existence of child pornography in any form constitutes an abuse of children and is bad for society. That is a value that has not changed and it should not be changed, so why are we now getting into things about someone who drew pictures from his or her imagination and there being artistic merit? If someone was in possession of photographs of children in compromising situations, clearly a matter of child pornography, why were they not charged for those pictures? Why were they also charged for drawings or for writings? It just opened a Pandora's box. I swear, Madam Speaker, if this was the intent, this was the perfect way to yet again open up this argument about child pornography.

There are certain values within our society that we should not abandon. I think that the issues with regard to protecting our society, our children, from the existence of child pornography and dealing with it in the strongest possible terms are unquestioned. It would pass 100% in the House in a plain, simple motion: Is that the value that we as parliamentarians want to defend on behalf of the Canadians we all represent? The answer is yes and yet the courts are discussing it, debating it and challenging it, and now we have legislation that talks about concepts such as public good. I do not need another vague definition. I do not need another uncertainty. I would rather split the case, split the bill, deal with the certainties first and let them play with their vagarities later on.

Finally, I think the debate has been useful from the standpoint of raising an important question, that is, it may be time for the question of the true supremacy of Parliament vis-à-vis the courts to be revisited. It is an important question. All people in Canada are represented by the 301 parliamentarians here. We have the opportunity and the resources as well as the responsibility to make ourselves aware of the views, opinions and values of our constituents, of all Canadians. When we bring them here, there can be no clearer voice than the voice of parliamentarians. I am sure that Canadians would agree that the laws of the land should be made by Parliament and not by the Supreme Court of Canada.

[John McKay, Liberal, Scarborough East, ON]

Madam Speaker, I appreciate the opportunity to speak on this important issue. It is an interesting motion and one that I have thought about for awhile. It highlights a frustration that many people feel with respect to the dialogue between Parliament and the courts. Some might even argue that it has become a monologue. I will focus my remarks on the attempt to change the definition of marriage as something of an example of the perverse consequences of judicial activism.

Everything we do in this place has a charter lens. Sometimes that lens enhances and sometimes that lens distorts. The trump card in the charter is section 15, which looks at discrimination. If a practice, or a law or an institution is discriminatory, whether that discrimination is intentional, then the analysis takes us to section 1 to see if that practice or institution can be justified in a free and democratic society. If it can, then that is it. If it cannot, then the court will strike down a law, practice or institution or say to Parliament “You fix it or we will fix it”.

In theory that sounds fine but in practice it has led to some egregious effects on the use and abuse of courts to find section 15 discrimination. Laws by definition are discriminatory. A law says to this group of people that they are entitled to certain rights and benefits and to another group that they are not. The wheels, however, fall off when the court finds discrimination when in fact there was no intention to discriminate. In fact all it was intended to do was create a difference or a distinction.

I would submit that once the courts make a finding that the institution of marriage is discriminatory, the whole issue, that is one man and one woman to the exclusion of all others, it makes it very difficult to then justify it under the saving section.

When the country was founded, the framers of the Constitution gave marriage and divorce to the federal government to bring uniformity to the institution of marriage. Protestants did not recognize Catholic marriages and Catholics did not recognize Protestant marriages. It was somewhat chaotic and the framers rightly said to themselves “We want some national coherence here, so you, the federal government, look after this area of jurisdiction”, and everything else fell to the provinces.

If the framers of our Constitution knew that the courts were about to open up this constitutional word called marriage and eliminate its gender requirements, I am sure they may well have thought that we had all taken leave of our senses and probably would have retired to the parliamentary restaurant over a few drinks and a couple of laughs. Yet this is the state in which we find ourselves by virtue of charter analysis.

First, a finding of discrimination is made, whether real or in its effect, and then we go to section 1 to see whether we can justify it. However the ball game is virtually lost by then and the arguments become hopelessly ambiguous and vague due to the fact that they are rooted in value systems that are based upon beliefs that are deeply held. It is devilishly difficult to justify when those arguments are so rooted in deeply held beliefs by a number of people.

The problem is that it leaves Parliament with no manoeuvring room. We are stuck with an either-or decision. It is a little like President Bush saying “You are either with us or against us”, and it does not really leave much room for those who say, “We may not be for you but we are certainly not against you”. That is what we are faced with, the so-called judicial activism. It creates almost a false pluralism.

Real pluralism should surely mean that I accept and respect one's right to be different, but so also should that person accept my right to be different and not do that which is against my beliefs. The religious communities are having a collective gag reaction. As decision after decision goes against them, they are forced to accept what I would describe as forced or convergent pluralism, one size fits all: “In the name of pluralism, you must accept what I say and who I am”. It is quite, I would submit, an illiberal pluralism and the courts are wittingly or unwittingly forcing values, convergent on a population that did not elect them and barely knows them.

If, as some anticipate, the court changes the definition, then it is reasonable that some minister, priest, rabbi or imam who refuses to marry two people of the same gender will be sued. That is almost a dead certainty. Witness after witness told us of case after case where equality rights trump religious freedom.

I remember the lawyer for the Catholic Civil Rights League making reference to the Hall case in Ontario. This was the young man who wanted to take his gay date to the prom. The Catholic School Board has a constitutional guarantee to conduct its affairs in accordance with Roman Catholic teachings and doctrines. All students and parents effectively sign on to that concept when they send their children to that school. Therefore it comes as no surprise when a Catholic board or school says, on something such as this issue, that no, they would not permit that. That did not seem to prevent the judge from making an order forcing the board to let the boy take his date to the prom. Equality rights trump religious freedom guarantees embedded in our constitution. Effectively, judge trumps bishop.

Is it any wonder witness after witness looks over their shoulders at the Hall case, or the Brockie case, where a printer was asked to print gay literature, refused and was sued, or the Trinity Western case, where all students signed on for a certain code of sexual conduct and the teacher's board said that it made them ineligible to teach in the schools of British Columbia? Is it any wonder therefore that these folks feel naked and exposed to certain aspects of judicial activism and take no comfort in the bland assurances that the guarantee of religious freedom will offer protection of religious expression?

It would be of some comfort if Parliament could be explicit in its guarantee of freedom of expression but I am afraid that would be an illusion. A robust freedom to dissent act or a human rights code might be of some comfort, as several witnesses suggested, but the courts will rightly say to that kind of idea, “Is the charter not enough?” Those in the religious community who are constantly paraded before the human rights boards and courts do not think the fig leaf of a charter provides them with any protection at all. It is almost a case of words are not enough.

The other thing that makes one wonder about this issue is Parliament itself. In 1999 we passed an overwhelming resolution after a day of very animated debate re-affirming the traditional definition of marriage. The preamble of Bill C-23, re-affirmed the traditional definition of marriage and brought it from a common law interpretation into an actual statutory bill. That has scarcely slowed down judicial trains heading toward a clash with Parliament, one which Parliament cannot win.

Twice in the last few years Parliament has spoken forcefully and unequivocally. Yet our system is such that the courts hold the ultimate trump card, which brings me back to my original point. It is extremely difficult to fashion a public policy which takes into account divergent interests and views when the legal environment is such that “you do it our way or we will do it for you”.

How does one fashion a response in the face of such a threat? I, and quite a number of others, believe we would be quite willing to address the genuine equity issues that rise before us, those broader issue, but the courts have effectively put us in a zero-sum game: “you win; you lose”. Unfortunately, the effect of which is that we all lose.

An Act to Amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act

[Stephen Harper, Canadian Alliance, Calgary Southwest, AB]

Mr. Speaker, the only way we will save costs on this program is to scrap this registry and put the money into public safety.

The minister should be ashamed of himself for coming here with a whole bunch of costs and not being able to answer my questions on what this will cost and when it will be finished, but this is typical of the government. I am hardly surprised because this reflects its entire criminal justice agenda. It has nothing to do with public safety. Instead, it is just wasting money and being soft on crime.

We have Bill C-23 which frankly should be renamed the sex offender protection act because the only people in the country it protects are sex offenders. We have Bill C-20 that has loopholes for child pornography. I could go on and on. Under its watch the government has allowed convicts the right to vote.

Can the government explain why it is so soft on criminals and is never prepared to take real action on crime?

International Transfer of Offenders Act

[Raymonde Folco, Liberal, Laval West, QC]

Madam Speaker, I am pleased to rise today to participate in the introduction of the government's initiative to update the Transfer of Offenders Act.

As legislators, we receive requests based on public opinion and suggestions made by non-governmental organizations. The Youth Criminal Justice Act, which came into force on April 1, 2003, is an example of how an aging law is replaced, in this case, the Young Offenders Act, which was enacted in 1985.

We went beyond revision in that case and, after broad and thorough consultation and the good work of the parliamentary Standing Committee on Justice and Human Rights, replaced the existing statute with a more up to date version of the legislation that reflects the current political and public will.

More recently, we have voted to send Bill C-23 to the parliamentary committee, from which it will emerge to better protect the young and most vulnerable Canadians from sexual predators by establishing a nationwide registry of those convicted of sexual offences.

Bill C-33 is before us now and it is also an important piece of necessary legislation that we can take pride in considering and helping to fashion into a final product that will become the law of the land. As the name implies, the force of this legislation will be felt far beyond Canadian borders. It provides the international community with another example of Canada's progressive criminal justice system, which combines the best aspects of correctional practice. Bill C-33 and the act it will replace do so by balancing the need for fair and humane treatment of offenders with the need to respect the systems and philosophies of other countries.

The proposed bill retains most of the objectives and principles of the Transfer of Offenders Act, which was enacted in 1978.

The new international Transfer of Offenders Act will continue to provide for the implementation of treaties with other countries for the international transfer of offenders. The purpose of the act and the treaties signed between Canada and foreign states is essentially humanitarian. They allow Canadians convicted and detained abroad in difficult conditions to serve their sentences at home and foreign nationals to return to their home countries.

In the case of returning Canadians, the treaties promote public protection, as offenders are allowed to serve their sentences in Canada and to be gradually released into the community. Otherwise they would simply be deported from the country where they were convicted of an offence, however serious, at the end of their sentences and would arrive in Canada with no controls on them.

At the same time, in all cases, the treaties respect the sentences imposed abroad. Countries that return offenders to Canada can be assured that the sentences handed down by their courts will be enforced by the Canadian system.

However, this is not an exercise in clemency as some of my hon. colleagues opposite seem to believe. Anyone who knows Canadian penitentiaries knows that they are not places where one would wish to spend a great deal of time, even as an observer or visitor.

Some foreign administrations provide prison conditions tougher than ours, but it would not be appropriate to list them here. Nevertheless, offenders who are returned to serve sentences in Canadian prisons are not coddled. Other countries are aware of that and accept the transfer conditions before returning the offender.

The Transfer of Offenders Act as it stands continues to serve useful purposes. We are here today to bring it into the present century. The world has changed and the style and content of international treaties must change to keep up. There are obvious changes brought about by the birth of new nations and the rebirth of others. There are also nations that have become independent of former allegiances, thereby growing more attuned to democracy and a concern for human rights. These countries have a need to express these transformations internationally.

There is no better way to bridge these cultural gaps than getting together to negotiate constructive treaties. We find out where the differences are, discuss them, and arrive at compromises. That is the essence of international cooperation. At the same time, we learn from each other and establish new bonds of international partnership.

In this respect, I would like to mention that the very first country with which Canada negotiated an offender transfer treaty was, of course, our friend and ally to the south, the United States of America. That 25-year-old treaty is only one example of the convergence of our American neighbours' programs and policies with ours.

Since the act's proclamation in 1978, only technical amendments have been made to it, although more substantive issues have been identified. These issues have been brought forward with a broad range of interested parties since the consultation document was released in 1997. The wide-ranging consultations identified what amendments would be advisable and necessary. This exercise has been followed by an exhaustive drafting exercise, during which expert officials have identified what changes are possible given Canadian and international law.

As the Solicitor General indicated, the central clauses of the amended act will set out the principles and objectives of the act. This may seem obvious in the context of drafting legislation, but a cursory perusal of existing legislation quickly reveals that it is not so.

There is an excellent example of statement of principles and objectives in the Corrections and Conditional Release Act enacted by Parliament in 1992. These clauses proved to be very useful to corrections professionals. Having force of law, they are not easily amended and, therefore, provide consistency in sentencing.

In these times of mission statements and organizational commitments, the importance of clear and consistent direction for those who must stick to the intent of established legislation to exercise the will of Parliament is easy to understand.

An equally modern aspect of these legislative proposals is that measure requiring a new level of information sharing between governmental authorities and offenders. Simply put, Canadian officials will be obligated to inform a foreign citizen under its jurisdiction of the existence and substance of an international transfer treaty between Canada and the country of citizenship, a function that our Department of Foreign Affairs carries out with regard to Canadians convicted abroad. While this duty is routinely discharged, the added force of law will formalize the practice to the satisfaction of those signing treaties with Canada.

Another new provision will allow a foreign offender detained in Canada to cancel his request for a transfer at any point in time. This significant change will address the rare cases where the situation in the offender's country of origin has taken a turn for the worse between the time when transfer was requested and the time when it is to take place.

The last specific point I will mention may prove to be very important. This entails the new provisions to extend certain aspects of the transfer of offenders scheme to nations that have not yet joined the family of countries that currently have treaties with Canada for the transfer of offenders. One can see that circumstances might arise where such an accommodation would be essential to the well-being of a Canadian incarcerated abroad.

There are other aspects of Bill C-33 to explore, but I will leave it up to my hon. colleagues and, in due course, to the standing parliamentary committee responsible for looking into these measures.

Naturally, I am prepared to take questions from my hon. colleagues on these proposals.

Sex Offender Information Registration Act

[The Speaker]

The House will now proceed to the taking of the deferred recorded division on the previous question at the second reading stage of Bill C-23.

[Gary Lunn, Canadian Alliance, Saanich—Gulf Islands, BC]

Madam Speaker, I am pleased to stand and represent all my constituents of Saanich—Gulf Islands. I want to make a few points on the sex offender registry.

It is important to make the point that on March 13, 2001, my colleague from Langley—Abbotsford brought forward an Alliance opposition supply day motion calling for a national sex offender registry. In that motion it had a timeline that the government would have this completed by January 2002. Again, that motion was discussed over two years ago and the government has taken over a year to actually get this one done. However, now that it is finally done, as my colleague just stated, I believe it is very inadequate in three main areas.

First and foremost, the most troubling aspect of the legislation is that it is not retroactive. There are literally thousands and thousands of sex offenders. There are people like Karla Homolka who will be released from jail in the coming years, if not months. She will not be on the registry. There are thousands more who are equally as bad and will not be put on a registry to protect the public.

The recidivism rate is reported as high as 50%, some at 40%, but there is no question that it is high. Some would argue that it is almost a disease. Child predators, child molesters and pedophiles do offend. They attack and prey on the most vulnerable in our society. I have to ask: who are we trying to protect? Who is our duty to? I have to believe that every member of the House would want to protect the most innocent and vulnerable in our society.

My daughter turned eight years old today and I cannot imagine for the life of me how any parent could handle anything happening to a child that is so innocent, so young and so vulnerable. It would horrify me but it does happen.

As parliamentarians we could go a long way to lessening the opportunity of that happening and, if it does happen, we could increase our opportunity to protect them before they are put in harm's way.

In my readings, where there are effective sex offender registries, if a child is abducted by a sexual predator or someone else, if the authorities can get to a database and do a search of the immediate area to find out if there are any potential sexual predators residing in either a one kilometre radius or whatever it is, the chances of success are exponentially greater of getting to that child or person before the child or person is murdered or actually put in harm's way.

We have to ask ourselves what the most important thing is that we are trying to do in the legislation. I question the simple fact that we have the ability to make this retroactive. I would argue that we are probably doing more to help sexual predators than harming them by putting their names on a registry. If they know they are on a registry, the ones who are borderline or may not be as severe, they may not reoffend if they know they can that easily be tracked down. We have such amazing tools now, such as DNA, yet we seem to have lost our way when we read the bill.

It is absolutely, completely unacceptable that the bill is not retroactive. That is the single fundamental flaw and because of that flaw alone, I cannot support the bill. There are other weaknesses in the bill, which I could support, but I cannot because of the simple fact that it is not retroactive, that there is going to be an empty database.

I urge the government to rethink this. It has just passed a motion not allowing any amendments which is incredibly unfortunate.

The bill should be retroactive. Our interests should be in protecting the most vulnerable in our society, protecting people the victims, not the sexual predators, not the offenders, not the pedophiles. Unfortunately we seem to have our priorities backwards.

There are other weaknesses in Bill C-23. They are twofold.

First, even when the bill comes into force, somebody who is convicted of a sexual offence will not go on the registry again. Forget about the retroactivity, which is so bad that we have not been able to deal with it, but if we move forward now into the future, just being convicted of a sexual offence will not put someone on the registry. The Crown will have to make an application in each and every case to have someone put on the registry. Again that is backwards. It should be automatic that once a person is convicted of a sexual offence, and we could list all the offences, that person would automatically go on the sex offender registry.

For the life of me, I have no idea why a drafter or even why the government responsible would do it this way. It absolutely makes no sense.

To top that off, there is another loophole for the sex offenders. They can make a case to be excluded from the registry if they can show that being on the registry would cause them greater harm than the public. I am at a loss for words. We are not talking about somebody who is accused or who maybe committed an offence; we are talking about a convicted sex offender. The person has been to court, has been tried and found guilty, yet somehow it would cause that individual greater harm than all society. Again we have it backwards. Again it is our children, the most vulnerable in our society. I cannot imagine a member in the House who could possibly support that, yet that is the way the bill is written.

Members stood in the House of Commons and voted for the government to create a sex offender registry and two years later, this is the best it could do. One wonders if the government is competent to govern. I mean that. When the government comes in with a piece of legislation such as this bill, one questions what its interests are.

In summary, first, it is absolutely, grossly inadequate that the bill is not retroactive. That alone is enough to not support the registry. Second, even after a person has been tried and convicted of a sex offence, that person is not put on the registry. Only if the Crown applies for that person to be put on the registry will that person be put on. It should be automatic. The default should be that the person is automatically put on the registry. Third, if the convicted sex offender can show that there would be greater harm to that individual than that of society, that person can be excluded. I would imagine that if one was on the sex offender registry, it would probably do them more good in trying to stop the recidivism.

I urge the government to allow an amendment to come forward to at least make the bill retroactive. Otherwise this legislation would be absolutely meaningless.