Debates of Feb. 2nd, 1999

Supply

[John Nunziata, Independent, York South—Weston, ON]

Mr. Speaker, her time has expired. She cannot have it both ways. She cannot refuse to—

[The Deputy Speaker]

The hon. member for York South—Weston as usual is seeming to misrepresent the position of the Chair in this matter. I gave the hon. the whip for the official opposition time to ask a question. I deliberately cut him off to allow the minister to reply. He had used up the time, but I was prepared to allow the minister a brief reply. I indicated that. I did not cut him off sooner in order to allow him to complete some reasonable part of his statement, and I am allowing the minister to reply. That is it. That will be the end of the time for questions and comments when the minister has completed, but she will have a very few seconds left to complete.

[Anne McLellan, Liberal, Edmonton West, AB]

Mr. Speaker, I simply wanted to clarify for the House that in relation to one Mr. Robin Sharpe, there are two other charges pending against this individual, one in relation to production and one in relation to distribution. I therefore would ask that the Reform Party stop spreading misrepresentations in this situation.

[Val Meredith, Reform, South Surrey—White Rock—Langley, BC]

Mr. Speaker, I am amazed to be here participating in a debate on the illegality of child pornography. I am offended by the attitude of the Liberal government and the minister who feels that Canadians have no right to be participating or observing a debate on this issue. I would like to know, who are they to say that Canadians are overreacting because they are concerned that a judge has said that it is legal to possess child pornography?

This law was originally passed unanimously in parliament in 1993, but the decision of one man, Mr. Justice Shaw, has undone all the work by the people's representatives.

This case raises a number of issues that go beyond the impact upon the Sharpe case specifically and the possession of child pornography in general. In this case Robin Sharpe got off. At least one other case was thrown out in the B.C. provincial court because of Justice Shaw's decision. The possession of child pornography is therefore currently legal in the province of British Columbia.

Make no mistakes, child pornography is not about pictures of naked infants on bearskin rugs. It is about children, sons, daughters, grandchildren, being abused and exploited by adults.

The only people whose rights were being infringed by this law are pedophiles. I believe that we as a society have a right to deny this extreme minority the right to see young children being abused. Make no mistake, we mean real children. Real children are being abused to make child pornography. There is no acting. There is no consent, because children can never give consent to acts like this. Because it is now legal to possess child pornography in B.C., I am sure that more children are going to be used for the creation of pornography to satisfy the appetite of pedophiles. That means that more children will become victims of sexual abuse in order to satisfy the charter of rights and freedoms of pedophiles. The results are not necessarily apparent immediately in the now. But many of the negative recriminations occur 10, 15 or 20 years later. How often do we hear convicted adult sex offenders plead for reduced sentences because they themselves were sexually abused as children? What type of circle of violence are we creating by legitimizing the possession of child pornography?

I want to extend Justice Shaw's reasoning to other criminality that perhaps possession of stolen property could be determined to be an infringement of the possessor's freedom of expression. What about the possession of illegal drugs? It could easily be argued that their use relieves tension and there is no harmful intent. Or what about the possession of unregistered firearms? Surely it could be argued that Bill C-68 was an infringement on the freedom of expression of gun owners, the vast majority who have no harmful intent.

Perhaps this government should spend as much effort keeping child pornography out of the hands of pedophiles as it does restricting the rights of legitimate gun owners.

I would like to raise another spectre. That is of courts taking over the role of parliamentarians. It does not matter if 301 individuals representing five different political parties and, more important, 30 million Canadians unanimously agreed that child pornography is wrong. One individual has changed the law in British Columbia.

I know the case is under appeal, but that means that three other judges in the B.C. court of appeal will get their say. After that maybe nine other judges in the Supreme Court of Canada will have their say. While I respect the roles courts have in administering justice they should not have the right to overrule the will of the members of this House who are elected by Canadians to make laws on their behalf.

This is about far more. It is about respecting our constitution. This is another example of the courts interpreting the charter of rights in a manner in which it was not intended. Every now and then the Prime Minister likes to claim responsibility for introducing the charter of rights. I would like to think that he did not bring in the charter of rights to give pedophiles the right to possess child pornography.

It was almost 800 years ago that the British had the Magna Carta which introduced such concepts of guarantees of rights and the rule of law, as well as laying the foundation for parliamentary democracy. The Americans have had their constitution and the bill of rights for over 200 years. Despite the spectacles that we see today in the American Senate it aided ennoble causes like the freeing of slaves. Now if we compare these two historic documents with our charter of rights that is still shy of its 20th birthday, it will be known as the document that gave pedophiles the right to possess child pornography. We should be ashamed that our charter is even being challenged in this way.

I cannot overemphasize the importance of this case to the value of the charter and to the courts in general. I suspect very few Canadians can list the benefits that the charter has brought in their day to day lives. But if this decision is allowed to stand, they will certainly remember it. Even before this decision in my five years as a parliamentarian I have received countless letters and phone calls of constituents telling me that Canada would be much better off without the charter of rights. If this decision were to stand, that is, if the courts decide that it is more important to allow pedophiles the right to see children being abused than it is to protect our children, I am afraid I could not disagree with them.

If the charter of rights and accompanying court decisions are to have any value at all in the lives of Canadians then they must have the support of Canadians. Decisions like this left to stand will drive away any of the support that might still remain for the charter of rights and our constitution.

A constitution or a charter of rights that does not have the support of the people is an empty document. It is a document that is devoid of any relevancy. That is our challenge today, to make sure our charter of rights respects the feelings of Canadians and has relevancy to all our lives in Canada.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Mr. Speaker, my question is for the hon. member who has just spoken.

Is she aware of a principle generally recognized by the courts? I believe two appeal courts in Canada have already issued a similar opinion, the Quebec Court of Appeal for one.

The principle is that of presumption of the constitutionality of a piece of legislation until a final court of appeal has reached a decision. In other words, in this case, with respect to subsections 163.1(3) and 163.1(4) of the Criminal Code, although a court of the first instance in British Columbia has declared these subsections of the Criminal Code unconstitutional, does she not believe that the presumption of constitutionality of this section can, or must, be applied until a higher court has rendered a decision. In Canada, this means first the appeal court and then the Supreme Court of Canada.

In other words, I am casting some doubt on the statement she or her Reform Party colleagues have made, that the children of British Columbia are not protected, because there is no longer any applicable legislation on child pornography, since subsections 163.1(3) and 163.1(4) of the Criminal Code have been invalidated.

[Val Meredith, Reform, South Surrey—White Rock—Langley, BC]

Mr. Speaker, if that section is held constitutionally then why was one pedophile allowed to walk free and why are there 40 cases in British Columbia being held back from being tried until there is a decision made on this?

If that constitutionality is a given then why are the children of British Columbia having to face the fact that pedophiles are being let out of the court system on to the streets to continue plying their trade? I do not believe the children of British Columbia are being protected. Would the member feel the same way if it were the children of Quebec who were at risk?

[Randy White, Reform, Langley—Abbotsford, BC]

Mr. Speaker, I just heard the justice minister indicate that the Reform Party was making this a political issue.

I ask my colleague, who happens to be a politician along with the rest of the politicians who lack the spine to make decisions on such issues, why she thinks this should not be a political issue in this country. Why does she think politicians should not stand up for the rights of the young in this country?

[Val Meredith, Reform, South Surrey—White Rock—Langley, BC]

Mr. Speaker, our job is political and it is to make sure that these debates and discussions take place in an open forum for all Canadians to know that their leaders, the 301 people who sit here, are concerned about the issues and protecting their children.

If that is being political, that I feel it is important that we be having this debate in the public eye, in the House of Commons, then I am guilty of that. I think for far too long Canadian politicians and governments have removed the people from the governance of their country. The day has come when that has to stop. The people in Canada deserve the right to be part of this conversation.

[Darrel Stinson, Reform, Okanagan—Shuswap, BC]

Mr. Speaker, after listening the my colleague's speech I would like to ask her if she agrees that as elected representatives of Canada our first or foremost responsibility is to the safety and well-being of the law-abiding and innocent people of this country.

[Val Meredith, Reform, South Surrey—White Rock—Langley, BC]

Mr. Speaker, I believe that when we have a conflict between the rights of Canadians and they come head to head that it is the Parliament of Canada that has to establish very clearly whose rights take precedence.

In this case I suggest parliament has to make it very clear that it is the rights of children, not the rights of pedophiles, that take precedence.

[Jim Abbott, Reform, Kootenay—Columbia, BC]

Mr. Speaker, it does not give me great pleasure to come to the House to debate this as I believe that the courts have made a mistake.

I believe that the justice minister should have acted on this issue in a far more decisive way. It does not give me pleasure to be debating this because there should be no debate. The children of Canada must be protected. Under this justice minister, under this government, that is not happening.

The definition of civilization is that we protect those who cannot protect themselves. We must look after the children of Canada. The people of Canada are saying to us in the House protect our children.

The justice in his ruling wrote: “There is no evidence that the production of child pornography will be significantly reduced if simple possession is made a crime”. The word significantly blows this thing completely out of proportion. What does he mean by significantly reduced?. It is the responsibility of the House to protect the children of Canada. For this justice to say that he is making this ruling because there is no evidence that they will be more significantly protected, even if they are protected one small amount, that is better than this judgment.

We are faced in Canada today with judicial activism that in no way reflects the values of Canadian citizens and Canadian society. The values that Canadians are concerned with is protecting their children. They demand few things. They expect safe streets. They are not getting safe streets. They expect to be free from terrorism and unfortunately in some cases they are not getting this. They expect to be free and to avoid the issue of drugs for teens. They want the protection of their teens from a drug culture. They expect protection from being ripped off. Sadly this government is going very slow. They expect those things but what do they demand? They demand the protection of children.

The justice minister has said to the police to go ahead and do your thing. As a solicitor general critic, as I go in and out of RCMP detachments I run into file after file that is full to overflowing, brimming with paper and documents just to protect the police because of the charter action that has been taken in so many instances. The judicial activism that is presently underway not in any way reflecting the values of Canadians is hampering the police in their ability to do their job.

There has been mischief by the charter of rights and it has been mischief that has been brought forward by the law society in Canada. We even have first degree murderers who walk away when the courts decide they should have had a search warrant under certain conditions. So all of a sudden things are overturned, murderers are permitted to go free and in retrials there are situations where there cannot even be proper evidence brought forward.

There is just one thing that I can say about murderers versus this issue. At least the people who are murdered are dead. The difference in this issue is that the children of Canada who are subjected to this become the walking dead. We must protect children and we must protect our children now.

The justice went on to say a few more things:

A person's belongings are an expression of that person's essential self.

Another quote:

It is the means of ensuring individual self-fulfilment by developing and articulating thoughts and ideas as they see fit.

Mr. Sharpe was quoted as saying:

—that pornography is probably good for children, that children are able to consent to have sex with adults and that child pornography laws interfere with the rights of those who are interested in adult-child sex.

How can a four year old make any kind of an informed judgment on that? How can an eight year old make any kind of an informed judgment? That is what Canadians are faced with today. How absolutely pathetically stupid, ridiculous and reprehensible that statement is.

If the people on that side of the House do not understand that we are sitting with a hand grenade, with the pin pulled, let me quote Eugene Meehan of Lang Mitchener on CFRA this morning. He equated the situation to “a grenade with the pin pulled”. This situation is urgent. The opportunity to expose child pornography will increase rapidly as a result. It will happen. It is happening.

A police officer testified that as a result of the possession count against Sharpe, the police had been able to obtain warrants and carry out searches that have assisted them in finding child molesters. In British Columbia that is all set aside at this point. The justice minister can say to the police go ahead but the law has been struck down and needs to resurrected. We need to have action and we need it now.

Let me address the issue of who we are in the Chamber. There are 301 people in the Chamber elected by the people of Canada. The people of Canada assume that the House of Commons is the supreme power in the country. Under this justice minister and her predecessor, under this solicitor general and his predecessor, the government has allowed the courts to become the lawmakers and the law restricters in Canada.

We must stand up. We must be counted. It is up to members of parliament to reflect the values of the people of Canada. The people of Canada are saying “Protect our children, protect our children now”.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, the hon. member has expressed the sentiments that all members of parliament have expressed throughout this debate, and that is our abhorrence with the issue of child pornography.

The member is trying to suggest that this issue is all to do with abhorrence of child pornography. He stated that because of the Sharpe decision everything is free form now in B.C. That is not the case. That is not advising the House of the real facts.

The fact is that in current cases before the courts adjournments are being sought. The police are also continuing to pursue their investigations and to lay charges. The B.C. attorney general has asked that the appeal be expedited.

The member will know this is an issue of process and I want him to comment on the process. The notwithstanding clause, which the Reform Party is suggesting will be the solution to all the problems, only deals, as he should know and I do not think he does, with cases from today forward or from the point of invocation forward. It does not deal with the Sharpe case. That appeal must proceed to deal with the Sharpe case. The federal government will be party to that appeal and we will vigorously defend the rights of children and the laws of Canada.

The member must clarify he fully understands that this is about process, about the integrity of our system of laws and courts and the application of the notwithstanding clause, and not with regard to simply abhorrence of child abuse.

[Jim Abbott, Reform, Kootenay—Columbia, BC]

Mr. Speaker, let me make very clear that I understand the notwithstanding clause. I understand that it is not an either/or. The appeal can proceed. We can do both, and that is what Canadians want. Why? Because the member himself said that adjournments were currently being sought. He also said that it would be expedited. Expediting something in a court is akin to watching molasses trying to drip out of a container in the Arctic in January.

I do not care how much expediting is going on. This case will drag on for one or two years at least. The member is not prepared to acknowledge that.

Furthermore, at this time it is not enough that the police in Canada have had the tools of their trade taken out of their hands in so many other instances. In this case the member knows full well that if the police were to go to a judge today and ask for a search warrant on the basis of this law they would not receive it. I read what was said, that the search warrant would have not been granted for Sharpe if this law was not in place.

In British Columbia the law is not in place and search warrants cannot happen. The police are being restricted in being able to stop this most reprehensible of all crimes.

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I respect the views of the hon. member for Kootenay—Columbia and I will have something to say later on the subject of judicial activism.

On the issue of simultaneity of action to appeal courts and by this parliament in relation to invocation of section 33(1) of the Constitution, would the member not accept that this would render moot in legal terms proceeding with the appeal process before the supreme court? I do not unfortunately think one can have both courses at once.

[Jim Abbott, Reform, Kootenay—Columbia, BC]

Mr. Speaker, we have taken advice and our advice is contrary to what the member just stated.

[Paul Devillers, Liberal, Simcoe North, ON]

Mr. Speaker, once again, our friends across the way are debating whether our criminal justice system is properly managed.

Once again, they are complaining in veiled terms about a judicial decision, which, in their opinion, undermines the credibility of this justice system. Once again, they are arguing that the courts are exceeding their legitimate role. Once again, they are calling for strong action by Parliament.

It is easy to understand why some of my fellow citizens would have such a knee-jerk and emotionally driven reaction. It is however much more difficult to accept this kind of reaction from experienced parliamentarians. Is it our role to jump every time a judicial decision is made? Should we not be reviewing the facts much more dispassionately and reasonably? Have we not learned that a judgement at first instance can be appealed?

I believe it is important to participate in the debate proposed to us, but the reaction must be measured and must be based on the law and the basic values by which we are governed, not on the rawest emotions. We must rise above primal reaction and consider this issue in its context. However well intentioned the motives may be, it is more damaging than the very decision it decries.

It is obviously not my intention to discuss the judgment rendered in this case. Not only would this be inappropriate but also it is under appeal. The Attorney General of Canada will intervene in support of the validity of the provisions and thus the legitimacy will be tested before the appellate court. This is the procedure that is followed in a constitutional state or a country based on the rule of law.

The main purpose of my statement is to guard against the highly emotional reaction to a decision rendered in the first instance. I believe that matters should be placed in perspective and that we should let Canadians know that their justice system is operating based on sound principles. That is not our parliamentary role.

If recourse was taken under the notwithstanding clause every time a court trial division came to a conclusion which opposed the government of the day either on moral, legal or political grounds, unfortunately it would be almost a daily occurrence. It would also be a politicization of our justice. It would be denying justice, not contributing to it.

The charter of rights and freedoms is a legal instrument we have given ourselves to guarantee the fundamental rights and freedoms of everyone. This is an instrument we are proud of, and rightly so. It represents our core values. We have established institutions to deal with and settle conflicts of interpretation, for instance, when a conflict arises with respect to a piece of legislation.

I do not know whether the Sharpe decision is well founded in law. It will be up to the higher courts to decide. I do know, however, that we have a legal system in this country under which decisions can be reviewed. There is no call to push the panic button when a trial division judge hands down a ruling, whatever that ruling may be.

Our criminal justice system has its own checks and balances which assure us, to the extent humanly possible, that the best decisions will be rendered. A court decision that poses a problem can be appealed. Appeals are heard every day in the country. I believe it would be particularly inappropriate of me to suggest that a legislative response is needed every time a court decision is rendered. The system works.

I would also like to indicate that I am sharing my time. There is no need to go on at any length about the despicable nature of child pornography. I am certainly no defender of such material. The immense majority of Canadians fully support our resolve to prohibit objects or materials that can harm the community and individuals. Child pornography is intolerable because it harms what is dearest to us, our children.

However, we do not have the right for demagogic purposes to leave the impression that pornographers now have free rein. For one thing the decision is under appeal. Moreover, some have already lost sight of the fact that possession of such materials for the purpose of distribution is prohibited and that the constitutional validity of this prohibition is not in doubt. However that is not the issue.

Parliament has a vital role to play in determining what should and should not be prohibited. Its role is paramount. No one is saying otherwise. There are limitations in place, however, to ensure the protection of certain fundamental rights and freedoms. The courts can help us by determining how this goal can be achieved with the least disruption to other fundamental freedoms. There must be dialogue between Parliament and the courts.

Some court decisions may sometimes strike us as wrong. The first step is for the superior courts to review these decisions and, if necessary, take corrective action.

An immediate and ill-considered reaction by Parliament along the lines of the motion being proposed is nothing less than counterproductive. Let us remember that invoking section 33 of the charter implies that we think that the action taken is not reasonable in a free and democratic society. Is this really what we wish to do? Is this the message we want to send? Should we not give the appeal courts a chance to do their job and see if the decision will be overturned?

I know that today's debate is the result of outrage in certain sectors at what some see as an unjust decision. I do not believe that we have the right to shamelessly exploit this outrage.

I, for one, believe strongly that the justice system must be allowed to review these rulings in the usual manner. I understand people's outrage, but I do not share it.

[Diane Ablonczy, Reform, Calgary Nose Hill, AB]

Mr. Speaker, I am a little sad today. I thought we were in this House to make laws for the people of Canada. I thought the job of the courts was to enforce and apply those laws.

It is clear that there is a perceived conflict in two laws that have been passed by this House, one making the possession of child pornography illegal and one protecting freedom of expression. The courts clearly are not sure which one we wish to be paramount.

There is a motion today whereby this House can make it very clear to the courts which law we wish to be paramount.

What is the problem with the lawmakers of this land, representatives of the people of this country, parents and children of this country making it clear that we do not wish to tolerate the possession of child pornography in our society?

[Paul Devillers, Liberal, Simcoe North, ON]

Mr. Speaker, the hon. member suggested that it is the role of parliament to make laws and the role of the courts to interpret them. That is exactly what is going on here.

Parliament has made laws prohibiting the use and possession of certain pornographic materials and the courts are in the process of interpreting them. The difficulty is that we are at the trial division level.

From here there is an appeal to the British Columbia court of appeal and then a further right of appeal to the Supreme Court of Canada. We only need go back to the last parliament to see an example where a case was tried and appealed. I refer to the case of the defence of drunkenness.

Parliament was not satisfied with the interpretation. It did not accept that it was proper. Parliament exercised its discretion and passed, under the previous justice minister, a new law to prohibit the defence of drunkenness.

That is how the system should work. The system should be allowed to carry its course through the courts where the courts will interpret the laws. At the end of the day, if parliament is not satisfied with the result of that interpretation, then it is open to parliament to pass a new law.

[John Nunziata, Independent, York South—Weston, ON]

Mr. Speaker, in her remarks the Minister of Justice referred to the Reform motion as being wrong and a precipitous action, yet 75 of her colleagues signed a letter to the Prime Minister asking for the very same thing that this motion is asking for today.

I will quote from that letter. It reads “We ask that the government not wait for the appeal of the B.C. decision to be heard, but immediately act in the defence of Canada's children”. The letter to the Prime Minister goes on to ask that the use of the notwithstanding clause be considered.

The former solicitor general, who is in the House, today signed this letter. A number of colleagues opposite, members of the Liberal caucus, signed this letter. Yet the Minister of Justice and the Prime Minister are now overriding the wishes not only of the majority of Canadians and the unified opposition on this side of the House, but the majority of the members of the Liberal caucus who support this motion and who are being forced not to support the motion before the House today.

The former solicitor general is nodding his head. How can these members reconcile having asked for a specific course of action just a few short days ago and putting their signature to this request in a letter to the Prime Minister and then a few days later parking their principles at the door and acting like obedient sheep? Whose interests are they serving? Are they serving the interests of their constituents? Are they serving the public interest? Or are they afraid to offend some unelected people in the Prime Minister's office?

[Paul Devillers, Liberal, Simcoe North, ON]

Mr. Speaker, I had not seen the letter, but someone just handed me a copy of the letter that the hon. member refers to. I understand there are 69 signatures on it.

I cannot speak for my colleagues who signed this letter, but I can point out that the letter asks that the government consider the invocation of the notwithstanding clause.

Not having any more background than that, when it says “consider the use of the notwithstanding clause”, that is not to me a full endorsement of its invocation. It is saying that the government should consider it the way a due diligent government should consider all alternatives.

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I appreciate the member for Simcoe North sharing his time with me.

To begin, I would like to review the history of the charter of rights. It was not part of the original constitutional patriation package. It was introduced because very many scholars around the country reminded the then prime minister that we were one of only two major countries that did not have a charter of rights, the rights and freedoms of citizens. The other was Switzerland. We were both mid-19th century constitutional systems. And it was introduced.

What about the notwithstanding clause? The problem was really a conflict of different modes of legal thinking and, in particular, the then NDP premier of Saskatchewan, Premier Blakeney, who had been educated in the English system where there is no charter of rights. There is now, by the way, with the European court of human rights and the European charter and most of the decisions seem to affect Great Britain. In any event, Mr. Blakeney opposed the idea of a charter, but he agreed on the basis of the present notwithstanding clause.

It is a very awkward clause in its drafting. It had to be.

In the United States unpopular decisions have been overturned by constitutional amendments. One can cite here, for example, the income tax amendment which reversed supreme court decisions.

Mr. Trudeau, when he was approached on this issue and asked why he inserted the notwithstanding clause, said “It was the price of getting the charter. Without it I would not have had the charter”. He then said “I am very sad about it, but I do not believe any federal government will dare to use it”. That has been the fact of life. No federal government has used it.

The major use of this of course has been by one provincial legislature. Four hundred and fifty measures of that legislature were submitted to the notwithstanding clause. Who was it? Premier Levesque, the premier of Quebec, between 1982 and 1985. When he left office the new premier removed the notwithstanding clause from any consideration for any further Quebec bills, so that it remains what many scholars have called a constitutional aberration.

What are the alternatives? One is very obviously the appeal route. People can differ, and I should not as a lawyer express an opinion on a decision by a judge. He deserves respect. But I would simply suggest that honest men and women in the judiciary are entitled to other points of view and might very readily come to a different point of view.

The section of the charter that is involved is one of the most clear sections of the charter. It calls out for a species of judicial legislation. It really embodies, almost word for word, the provisions of the American bill of rights. Our charter, by the way, is much too long, much too pedantic. It is often hard to understand, but on that it is crystal clear. I would suggest that it is reasonable to expect that other people on appeal might come to a different answer.

What we are doing is to ask the justice minister to expedite the appeal process. We do not have the American system of certiorari where the highest court can pick up immediately from a lower court a decision involving constitutional principles and render its own decision on the file. I think that is a gap in our legal system and it should be, frankly, filled at some future stage not too far in the distant future.

It is probably one of the problems of our charter that we do not have a constitutional court or even a constitutional tribunal of the sort that some of us recommended to Mr. Trudeau when he was going about the adoption of the charter of rights. But we do have the appeal system and it can work very quickly.

The major decision of our supreme court perhaps of recent years is the decision on the constitutionality of a secession by Quebec. Issues of this sort on reference have taken in the past three years or four years. Why not? They did it in six months.

I think we are asking, and I will ask the Minister of Justice, to make sure that the federal government presses for quick action. I would think this is a matter on which the court will respond.

I listened with interest to the comment by the member for Kootenay—Columbia because he has made some thoughtful comments on the issue of judicial power in the past. I would like to see the legal authority on which he relies. I think he should publish it, as the possibility of simultaneity of an appeal action, an action under the notwithstanding clause. I would have thought it was elementary that the issue becomes moot in the courts once the legislative action is proceeding. It is, in any case, for the court itself to decide on this issue. I do not think that it is a sound, juridical principle as advanced, but I would like to see the argument that he has brought forward.

Are there ways in which one can substitute for judges some other form of action? One can define, if one wishes to amend the charter of rights. One could define in much greater detail all the sorts of things one wants to control or prescribe.

One of the weaknesses of our charter is that it defines too much. But when we get into the clarion principles of the American bill of rights, as we do in the section now under contest in this particular case, it calls out for a creative interpretation by the judiciary.

I think the debates in the House are part of the travaux préparatoires, part of the sources the Supreme Court of Canada may go to. I do not exclude a situation, after decision of the Supreme Court of Canada, when we may wish to re-examine ways of changing the court decision. One can consider the notwithstanding clause then. But I would suggest to hon. members the message that should go to the justice minister is to use all speed to make sure that the appeal processes operate with the celerity that they did with the reference on the separation of Quebec.

If the notwithstanding provisions are invoked, by the way, do not expect overnight miracles. It will require fresh legislation by the House of Commons. It will require an approval by the Senate. It will go through all those procedures. It will be, I think, a long and drawn out process.

My message here is, I believe, the opposition's anger and the concerns that it has expressed, which are shared very clearly by very many on the government side, are reflected in the debate. It is part of the record that the Supreme Court of Canada will have available to it on appeal and may properly be referred to.

I do not believe that the notwithstanding procedure should be proceeded with while this matter is pending. I do have reservations about the notwithstanding procedures generally. I think there should be simpler processes for reversing court decisions on the line of the American system.

What I am really saying is that the inchoate debate that the member for Kootenay—Columbia launched last year on judicial activism failed because basically there was no comment on institutional possibilities.

We have gotten over the notion that everything in constitutional change is involved with the Quebec question. There are issues of institutional reform and I think the constructive comments that we heard on both sides of the House during the debate, and there have been a number, are ones better addressed in that context. So do not mess with the charter lightly.

It is an act to achieve a charter of rights. It should be changed, not in the reaction to a single case, but only with a regard to long range principles.

On that basis I recommend following the procedure outlined by the minister of justice for going ahead with the file. I and others will communicate in our own rights but I believe that it has come clearly from the debate in the House. With all Godspeed go ahead with the appeal process. This is a decision that I believe is eminently arguable with all respect by the judge of the Supreme Court of British Columbia. He is only one judge. In the American system it would go immediately to the top which is the sort of reform in terms of the better functioning of our charter of rights that we could seriously consider in the future.

[Paul Forseth, Reform, New Westminster—Coquitlam—Burnaby, BC]

Mr. Speaker, the Liberal member said that while this is an aberration it is just one judge, but this is another example of a series of problems perceived by the community which leads to a basic distrust. A gap develops between what the community expects and the results that are delivered through the judicial system. This is only the latest example of the basic lack of community confidence that judges are reflective of mainstream Canadian values. Part of it is not so much what is being decided but also who is on the bench and who gets to be decidee.

I refer to a time when the chairman of the justice committee agreed with Reform on that issue. I said on that day as a backdrop in a general sense we detect that there is not a lot of public confidence in the judiciary itself. One of the mysteries is that the average public does not know how judges get to be appointed.

The late Shaughnessy Cohen, God bless her, said: “We all know it is the committees that want to keep the process secret. We all know they do not want to face an applicant. They do not want to have someone who is applying for a judicial appointment put his face right in front of them because God forbid they should be accountable for this decision”.

She went on to say: “If this committee wants to continue to keep this secret, perhaps they should reconsider the process and reconsider whether they want to be on the committee or not. Maybe it is turning into a star chamber. There is a big difference. There are politics at play here other than Liberal politics or Tory politics. There is also the politics of the bar which is unaccountable and really nasty. It gets down to who is deciding”.

She also said: “In the final analysis who is on the hook if a judge screws up? It is the Prime Minister and the justice minister”. That opinion was very well considered based on experience. The opinion and the evidence we got in this Chamber today was unaccountability, that we should let the system work, that it is all okay. Our point today is that it is not working and changes have to be made.

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I thank the hon. member for his interesting and useful comments. I have done a good deal of pre-parliamentary work on the special institution of the constitutional court which most countries of the world now have. The judges are elected under specific processes that vary by country. The legislative bodies in many countries are using proportional systems. To institute a change of that sort here would require a constitutional amendment which would also require all 10 provinces and the federal government. Forget it.

When I was parliamentary secretary to the Minister of Foreign Affairs we introduced a system of having departmental appointments to ambassadorial rank brought before the committee. A number of very distinguished people appeared and answered questions at considerable length, and not always with considerable politeness on the part of the questioners as to their qualifications. That can be done by simple parliamentary custom. It may be the sort of thing that the justice committee could usefully consider. Would it be the sort of thing that might be advanced?

Some judges would object. When the charter of rights was being adopted I mentioned a system of the parliamentary election of judges for a constitutional court. One distinguished gentleman said that he would never agree to serve on this basis. I told him that he would be surprised by the thunder of feet of people rushing by him, people who would be prepared to go before an electoral system.

I offer this for the hon. member's consideration. It might be a point worth raising. There are already precedents, for example in the foreign affairs committee.

[Derrek Konrad, Reform, Prince Albert, SK]

Mr. Speaker, I am proud to be speaking today on the Reform motion.

The debate has been somewhat diminished by some insulting remarks made by government members. They have characterized Reform as fearmongers. They have said we have wrong motives, that we are acting precipitously and we are silly.

I indict them with the charge that if the members over there sat on this side of the House and that motion had come from this side of the House there is probably not one of them who would not support the motion. That is an indictment I do not think many of them could escape, particularly those 69 who signed the petition to their own leadership asking for a move on this issue.

There are those tonight when the vote comes up who will wish they were on this side of the House. They will wish that they were not whipped into shape so that they could express not only their own hearts' desire in this matter but the desire of their constituents, as well. When the vote comes this side of the House is on the side of the children. It is on the side of the parents of the children. It is on the side of what is right and we will vote as a block on this side to support the motion.

On that side we will be interested to see what the result is and to see if members there will stand up for what they know is right. On the other hand there have been some members who have made good and legal points but I do not believe that it was as quoted by the judge, that the possession of child pornography is an important expression of a person's essential self. That self needs to be reigned in. The law that was struck down needs to be reinstated as soon as possible.

It is not good enough to say that from now until whenever the government stands aside and watches while Canadian children are put at risk, to watch the process take a step by step management rather than leadership approach to dealing with the problem. It will just not accomplish what needs to be done.

Judge Shaw invoked a provision of the charter to strike down the law that protects children from child pornography. It is within parliament's purview to strike down his decision through use of the notwithstanding provisions of the charter of rights and freedoms. We do not think that a careless interpretation by one judge should bring the entire protection of children into danger.

The role of parliament in the debate and in acting has been trivialized by those members who have said let the system work and we will bring in the law in a timely fashion. The Minister of Justice has said for all the time I have been in the House of Commons, approaching two years, to wait and that something on the Young Offenders Act will be brought forward in a timely fashion.

The official opposition is still waiting. We have quit looking at our watches. We have almost quit looking at the calendar. We are beginning to look at some millennium clock to find out if anything will happen when the government says it will act in a timely fashion.

We have a responsibility in the House of not merely to be regulators of society enforcing contracts between different groups within our society and setting up those kinds of guidelines. We are to provide some leadership and governing.

We want to consult with our people but we will not find in this situation any public approval for consultation, waiting or anything else. Canadians expect us to act. They do not want to see protection for pornographers, perverts and pedophiles. They do not want to see children left at risk. They want protection.

We have heard time and again that there are people who are planning court challenges to take away parents' rights to discipline and raise their children in the best way they see fit.

We understand there is a lot of support for that from the Liberal side. For goodness sake, why would we even consider stripping away the rights of parents to raise their children when we would not even consider stripping away the rights of a pedophile to look at the waterworks of children for his own perverted purposes?

We need to act but there are two ways to act. One is to cut off the supply which is what we are doing. There are laws so that it cannot be produced. What we want to see is something to choke off the demand. There are millions upon millions of dollars spent on educating the public on the dangers of alcohol, smoking and other related social problems but education has not stopped it. Education has only made them aware of the dangers of what it is they are doing. We do not want to see this go down that same road.

We want a law in place that is upheld by parliament that will cut off the demand. We do not treat drunks with alcohol. We do not let it trickle through. If we want to get away from alcoholism we cut it off.

A new generation is coming and it will judge the previous generation on both its actions and its inactions. It will judge this House on whether it acted or whether it just let so-called justice take its course and possibly end up as being an injustice because of our lack of action.

Our vote tonight is action. It can be an action for what is going on or it can be an action against what is going on. I am calling on government members to act. I have three daughters and I will be voting on their behalf and on behalf of my constituency and I will be voting for this amendment.

Parliament has the final responsibility in this country. We have appeal courts and the supreme court to review previous decisions but parliament has the final responsibility. With responsibility should come authority and parliament must not be afraid to act on that authority. It must not fail to use the authority.

President Harry Truman, one of the most respected presidents of the United States, had a sign on his desk which read “The buck stops here”. Are we saying that in our country the buck stops down the road on Wellington where the supreme court justices have final say over the laws and intentions of this House which were produced in accordance with what our constituents asked of us when they said they want just laws, laws that provide equality, democracy, righteousness, freedom? Or are we to say down the road is where you will find those things and you will have to fight your way through every court, right through the provincial courts to the Supreme Court of Canada at great expense? Or can we be expected to act here for the people who we purport to represent?

I say we act here. The buck stops here. When I accepted this job I said I would do all I could to ensure that righteousness prevailed. I said I would not necessarily succeed in everything but that I would do my best to be faithful to what I promised in the election campaign. Part of that will be voting for this legislation tonight. Each MP's responsibility is to ensure the country they leave is in better shape than they found it in. If they fail to do that they fail their people and their promise to them in the election.

[Peter Adams, Liberal, Parliamentary Secretary to Leader of the Government in the House of Commons]

Mr. Speaker, I would like to share with the member some of the facts I have received from a person in my riding of Peterborough.

He says: “This is to express my alarm at the present proposal being debated in parliament to use the notwithstanding clause to override the charter of rights with respect to the current concern over a judicial decision in British Columbia concerning the child pornography law”.

His concern is threefold. One concern is that the notwithstanding clause was not developed in order to have the federal parliament override the charter. It was, as we know, a compromise to accommodate some of the provinces. If the federal parliament were to use it, it would set a precedent that could undermine the charter by permitting political tampering whenever there was a volatile issue such as the one raised at the current moment.

Second, the person in my riding says, as jurors have pointed out, that the child pornography law is flawed and it should be left to the supreme court to comment on it and then for parliament to amend it in the light of intelligent, informed, judicial discussion.

This person says he is not a lawyer but he is quite familiar with this area. This is grassroots comment which the Reform Party is constantly referring to. He is not a lawyer. He is familiar with this area. He says it should be left with the supreme court.

Third, he said that using such extraordinary powers to satisfy a momentary outcry of ethical panic would lead the Canadian government to fall prey to what has infected the United States in what one of its leading constitutional lawyers, Harvard professor Allan Dershowitz has dubbed “sexual McCarthyism”. It might be well to remember that in the McCarthy era of U.S. history we in Canada had a similar tendency that manifested itself in such an embarrassing moment of history as the Taschereau-Kellock commission report which led to the demonization of such innocent individuals who had made great contributions to Canada such as John Grierson.

He points out “While many of your constituents may press for the use of this notwithstanding clause, at the moment this is the time for statesmanship to take precedence over the politics of panic guided by the media and the Reform Party”.

I would be glad if the member would comment on the comments of one of my constituents in Peterborough, a person who is following this debate.