Mr. Speaker, I am pleased to speak to the motion today and indicate the support of the NDP caucus for the motion moved by our Reform Party colleagues.
I think we should acknowledge that yesterday the House did speak with one voice on a motion that was supported by all parties which expressed the continuing confidence of the House in that section of the Criminal Code which was found to be unconstitutional in the case we are discussing. So it is not as if the House of Commons has not already spoken on this.
However, what we have before us today, thanks to the Reform Party, is an opportunity to actually speak to this issue and to express our views. Yesterday there was only a vote with no debate. Today we have a chance to express the collective outrage of members of parliament and of Canadians in general at this judgment. It is not just outrage, it is bewilderment. In this case as in some others, I think Canadians are increasingly bewildered by some of the judgments they see coming out of the courts and this is certainly one of those cases.
What we all want to make clear here today, each in our own way, the NDP by supporting the motion, is that in this country the rights of children not to be sexually exploited or sexually abused will always trump the rights of individuals to any form of freedom of expression which involves the use of child pornography which has been produced through the use of children.
In every case we want this right of children to trump whatever rights may be seen to be enshrined in the charter or understood by some to be enshrined in the charter. I can tell the House as one who was here, and there are fewer and fewer of us all the time who voted for the charter at that time, that when we voted for the charter of rights and freedoms, we did not vote for the right of people to possess child pornography. That was not the intent of parliament at that time. It has never been the intent of parliament, either when it voted for the charter of rights and freedoms or particularly when it voted for that section of the criminal code.
I think it is important for parliament to reassert its intention both with respect to the charter and with respect to that section of the criminal code.
I want to say for the record that on January 27, my leader, the member for Halifax, wrote to the Minister of Justice. I will read part of the letter: “In ruling that the criminal code prohibition on the possession of child pornography is unconstitutional, the court has exposed children to appalling dangers of sexual abuse and exploitation in the production of child pornography. Canadians are rightly horrified that a court could interpret the charter of rights in such a way as to deny the rights of children to be protected from sexual exploitation”. The letter goes on to give a commitment on behalf of the NDP that we would support whatever legislative action is necessary to ensure children are protected from sexual exploitation by child pornography.
I have to be honest with my Reform colleagues and say we have some misgivings about the amendment which could be interpreted as calling for the immediate implementation of section 33 or the notwithstanding clause. We liked in the original motion the timing of whatever it is, because again the motion is unclear. It just talks about legislative measures and then says even if it requires section 33, so it does not require the use of section. Given that the motion itself is unclear, what is to happen immediately? Is it some other legislative measure or is it the invocation of section 33? We felt that there was wisdom in the original motion which would have permitted a united front at least here in the opposition, even if the government did not see the wisdom of voting for the motion.
But we now see that at least one opposition party has expressed concerns about the amendment. We have some ourselves and we will have to decide how we are actually going to treat the amendment when it comes to a vote. I just want to be perfectly honest about this and say we have some concerns about the amendment because it may well be that with the expedited appeal, et cetera, we might have an early judgment in this case. I am sure members would agree with me that it would be better if it could happen quickly for the law to be found constitutional.
The problem with invoking section 33 immediately, if that is what this motion came to be interpreted as, because as I say the motion is not clear about that, is in some respects it gives far too much respect to the judgment of Justice Shaw in finding that section of the criminal code to be unconstitutional. Why would we want to, or at least we should ask ourselves this question, act in such a way as to say that yes, the finding of that section of the criminal code as unconstitutional is in some ways definitive and therefore we have to use the notwithstanding clause, because the notwithstanding clause is there for when things are found in the final analysis to be unconstitutional and parliament says that in spite of that, notwithstanding that, we want this to happen in any event. So there are some concerns there about the motion or at least about the amendment.
What needs to happen here today, and I think the government has failed so far to make this clear, is not when specifically parliament is going to act and in what way it is going to act, whether it is through the invocation of section 33 or by some other legislative measure undefined in the motion, but what needs to be made clear today is that parliament will act. The government has yet to make a statement. One of the backbenchers seemed to allude to it. The parliamentary secretary did not say, unless I missed it, that the government is committed to bringing in the notwithstanding clause or acting in some other decisive legislative way should this decision of Justice Shaw be upheld in the courts. If the government were willing to say that, it seems to me it could save itself a lot of time instead of appearing to want to hang on to the legal process to the exclusion of the political process. If the government were willing to say “We have this respect for the legal process and we feel that it should unfold in the following way, but we want to make clear that should the legal process not produce an outcome which protects children and which upholds that section of the Criminal Code which has been struck down by Judge Shaw that parliament will act and it will act under the leadership of the government”.
The government has not made it clear that it intends to provide that leadership. Until it does it stands open to criticism. I invite the government to speak to that. That is really what I think Canadians want to know. They want to know from their politicians that we are not just willing to sit back and say this is a matter for the courts and that it will always be a matter for the courts and that we do not really want to get involved.
Canadians want us to be involved and they want to know that their politicians and their parliamentarians are in a position to and willing to assert their values over the values of the courts when those values being asserted by the courts are found to be so out of whack with ordinary everyday common moral sense, which holds that child pornography is wrong, that the possession of it is wrong and that people who are in possession of it should be open to prosecution on the basis of this particular section of the Criminal Code which has been found wrongly to be unconstitutional by this judge.
There is really no need to say a lot more about where we stand on this. We stand with the entire Canadian population it seems to me in wanting parliament to say something and to commit to doing something should this judgment not be eliminated in the course of the days to come. Canadians also want a commitment I think from the government that if the legal process turns out to be a long drawn out one that the government would have the freedom to act and not have to wait until the final legal act. That is where the whole question of timing comes in.
I do not think it would be good to bind us that we would have to wait until the end or bind us that we have to act tomorrow, but give ourselves some flexibility.
I could go on and say something more generally about the emerging problem of judicial activism versus parliamentary intent and parliamentary supremacy but my time has run out.