House of Commons Hansard #172 of the 36th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was children.

Topics

The House resumed consideration of the motion and of the amendment.

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4:30 p.m.

Progressive Conservative

Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS

Madam Speaker, I appreciate the opportunity to pose a question to the member opposite.

I listened carefully to the comments of several members today including the member opposite from Scarborough Southwest. He commented specifically about the fact that he was present in the House when this legislative change was first inserted in the Criminal Code. That was done by a Conservative government.

The motion yesterday was brought forward by the Conservatives and similarly received unanimous support of the House. I believe there is room for some common ground and some compromise on this issue. I am referring to a middle ground with respect to positions that have been outlined throughout the day by various members.

The Reform Party has proposed what I think is fair to characterize as a fairly extreme response. Given the emotion that is wrapped up in this issue, its seriousness and the implications thereof, that is not outlandish. However, the previous speaker indicated quite clearly that there is a need for rational response. There is a need for due process, a word the minister has used throughout the day.

In all sincerity, I ask the member, is there not a compromise in a referral to the Supreme Court of Canada? That is a response that would leave it in the hands of the judiciary, which is not always embraced by the Reform Party. There is a cynicism that exists in that regard, but it would expedite matters.

We all know the old maxim about delay being the deadliest form of denial. We have seen denial by the government. We saw denial in the late intervention with respect to the referendum. We saw delay with respect to the introduction of changes to the Young Offenders Act.

Would this not be an infinitely reasonable solution for the Minister of Justice to act now with legislative authority from the supreme court act and the Criminal Code to refer this matter of extreme importance to the Supreme Court of Canada where nine judges of the highest court in the land could pass judgment on the issue and we would have a definitive answer?

Then we would also have the fallback position that is being proposed by the Reform Party that if need be at that time this measure, which could be described as perhaps too extreme' could then be invoked.

Let us leave the word pedophelia and all the emotion out of it. There is a need for timeliness here and that has not been the government's trademark. Would the solution not be to go to the Supreme Court of Canada?

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4:30 p.m.

Liberal

Paul Szabo Liberal Mississauga South, ON

Madam Speaker, I understand the member's point. I agree with him that in the best interest of all Canadians this matter has to be dealt with in as expeditiously a manner as possible.

The member has given advice to the House with regard to what kind of timeline a reference to the supreme court would take. It is very clear that the supreme court has already dealt with the issue and it is very clear that the supreme court has upheld the same arguments already, so it would be an automatic process.

I ask rhetorically whether participating as an intervener and defending the laws of Canada before the B.C. appeal court would not have a shorter timeline than a reference to the supreme court. I do not know the answer to that question. I believe, though, that the justice minister is considering all those options.

I agree with the member that to invoke the notwithstanding clause is tantamount to admitting that the current laws of Canada are not constitutional and that we are basically desirous of overruling the charter. I believe that position is extreme. It is certainly premature. I believe it is one of the reasons we have to defeat the motion but continue to take the tightest line in getting our laws reinstated in a manner which is acceptable to all.

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4:30 p.m.

Liberal

Tom Wappel Liberal Scarborough Southwest, ON

Madam Speaker, I am honoured to say a few words on the motion brought forward today.

I will try to be as careful as I can in my words and not impute motive, as has been suggested by members of the official opposition, but rather deal with the motion as put forward and my views on it.

It is useful to have a look at what the motion proposes:

That the government should take legislative measures to reinstate the law that was struck down by a recent decision of the Court of British Columbia—

That statement is simply wrong. The law in question, section 163 of the Criminal Code and some of its subsections, is still the law of Canada. A particular judge of the British Columbia superior court has ruled in what can only be described as a boneheaded decision that there is some sort of constitutional right to possess child pornography.

That ruling is not even binding on his fellow judges, never mind judges in other provinces, never mind appeal courts, never mind the Supreme Court of Canada. There is no doubt the judgment has caused a huge outcry in Canada. There is no doubt from listening to the debate today that everybody is completely in favour of making it a crime and continuing to have it a crime to possess child pornography. That is not the issue.

The issue is whether or not we vote in favour of the motion. If we vote no, why are we voting no? I will tell the House why I am voting no. We have a law and that law is still in force. It is still being enforced by police forces across the country. The Minister of Justice indicated that it is the will of the Government of Canada that the law continue to be enforced. Police forces across the country have indicated they will continue to do it.

In British Columbia, the subject of this judgment, there are lower courts which generally speaking have to follow the precedent of a higher court but can adjourn cases pending clarification of the law. They do not need to dismiss them. On any cases that are dismissed the crown counsel can appeal those decisions and make sure everything is in order waiting for the court of appeal.

How can we take legislative measures to reinstate a law that does not need reinstatement? It is still the law of Canada. To vote for the motion is to be completely illogical. We cannot vote to reinstate a law that does need reinstatement.

We are not talking about a circumstance down the road when the highest court of the land might theoretically overturn the section in question. If that were to occur, no matter how fast I hurried I would probably still not be the first person to call for the invocation of section 33 of the Constitution, and I would. However that time has not yet arisen.

The first reason I am voting against the motion is that it asks us to do something based on the false premise that the law is no longer the law of Canada. It asks us to reinstate something that is already in status. Second, it asks us to do so by invoking section 33 of the Constitution Act, 1982, the notwithstanding clause.

I have not been here all day so I do not know if anybody has referred to the actual wording of section 33(1) of the charter of rights and freedoms. It might be useful to have a look at the wording of that section if we are being asked to invoke it at this point in time:

Parliament or the legislature of a province may expressly declare in an Act of Parliament or the legislature as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15 of this Charter.

That is a lot of gobbledegook to non-lawyers unless we analyse it, so I will analyze it briefly for us. Parliament may expressly declare under section 33 of the charter that section 163.1(4) shall operate notwithstanding a provision included in section 2 of the charter.

If the courts were to find as a matter of law that section 2 of the charter gives a charter right to the possession of child pornography, notwithstanding that court decision the Parliament of Canada using section 33 could declare section 163.1(4) still to be the law of Canada.

In order to invoke section 33 we need a judicial decision deciding that section 2 overrides section 163.1(4) and that judicial decision must apply across Canada. It has to make it a law of Canada that it is a charter right to possess child pornography.

There is no such decision in Canada today. If there is no such decision in Canada today, the notwithstanding clause of section 33(1) of the charter cannot be invoked because it requires something in the Constitution to be overridden notwithstanding that it is in the Constitution.

The judgment of Justice Shaw does not do that. The judgment of Justice Shaw stands completely alone. It stands isolated in Canada. None of the members of parliament who have spoken today support the judgment of Justice Shaw. None of us support his rationale, his legal rationale or any kind of rationale he proposed in his decision. That decision has been roundly and completely criticized in the House today. The House has sent a very clear message on behalf of Canadians to the court of appeal and to the Supreme Court of Canada.

How can we in good conscience as responsible legislators, notwithstanding that we abhor the concept of child pornography, that we do not agree it is a charter right to possess child pornography, vote for a motion that is based on two legal fallacies: one that the law protecting children is not in force across Canada and the other that there is somehow across Canada a declaration that it is a charter right to possess child pornography which therefore we have to override using the charter? Neither of those circumstances is in place.

That being the case, the motion if not technically and procedurally out of order is logically out of order since it does not make any legal sense whatsoever.

I want to make abundantly clear that if there is any kind of inordinate delay in getting to the court of appeal or any kind of dealing with the matter expeditiously, we still have the opportunity to consider the proposal put forward by the member for Pictou—Antigonish—Guysborough and a quick reference to the Supreme Court of Canada.

Should it be that the highest court in the land strikes this down, I will try to be the first to call for the charter to be invoked to override such a ridiculous decision. In the meantime, in law and in logic we cannot support the motion no matter what good intentions are behind it.

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4:40 p.m.

Reform

Diane Ablonczy Reform Calgary Nose Hill, AB

Madam Speaker, Canadians watching the debate must be going crazy. To hear the nonsense being spouted from government benches is beyond belief.

The member is just the latest example of it. He says the law is in effect in Canada. Guess what? Letters have been read in the House including one from the Canadian Police Association which say that in the province of British Columbia possession of child pornography cases are being thrown out of court. The law is not in effect in the country. It is not in effect in the province of B.C. People with children and grandchildren and relatives and friends, people they care about in British Columbia, are going to hold this member to account when he dares to stand in his place and says what is to worry about, the law is in effect, when he knows very well that it is not in effect in the province of British Columbia. But of course that does not matter to this member. Then he said and gasped “We are being asked to invoke section 33 to override the charter. How can we possibly do that? This would be terrible for parliament to say it is supreme. How can we do such a nonsensical thing?”

I would like to read from a letter dated January 20 signed by Liberal members: “We ask that the government not wait for the appeal of the B.C. decision to be heard. We ask also that you consider”, this is to the Prime Minister “the use of the notwithstanding clause”. Guess who signed this letter on January 20? The member who just spoke.

I would like to ask the member who got to him between January 20, 1999 and February 2, 1999, or perhaps he just wanted to be able to tell his supporters that he really fought this thing but when it came time for him to put his money where his mouth was, he was not willing to do it.

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4:45 p.m.

Liberal

Tom Wappel Liberal Scarborough Southwest, ON

Madam Speaker, the comments of the last 10 minutes indicate why I am voting against the motion.

My hon. colleague can try to portray them any way she wants. She can take whatever shot she wants. I have stood in the House of Commons and spoken in front of Canadians as to my reasons. Let me say, however, I do not in any way, shape or form say that we should not in appropriate circumstances use the notwithstanding clause and I indicated what those circumstances were.

I should indicate that when I signed that letter my purpose was to indicate to the Prime Minister how very concerned we were as ordinary backbenchers as to the ramifications of this decision.

When the hon. member for Mississauga South spoke he made a number of very excellent points about why he signed the letter and I agree with all those. I signed the letter. I stood in this place and explained why I am not supporting this motion. Absolutely no one got to me, as the member puts it. No one has called me to tell me which way to vote. No one has twisted my arm. No one has asked me to hide behind the curtains.

Everybody knows that on an issue like this I will vote the way I think I should vote and I am going to vote against this motion for the reasons I indicated. What got to me was the wording of the motion.

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4:45 p.m.

Reform

Gurmant Grewal Reform Surrey Central, BC

Madam Speaker, shortly following the news of the B.C. court decision I heard from a constituent in Surrey Central who recounted to me her sad story that exhibits the pain and suffering that can result from the lax attitude and the laws we are facing today.

She was involved in child pornography when she was in her teens. She was vulnerable and made a bad choice. Years later evidence of her involvement became evident to her employers and employees and she had to quit her job. So she continues to suffer considerable embarrassment, regret and shame as we are talking. The point is she did not consent but she had to suffer.

I would like to ask the member what he would suggest I tell my constituent who is still suffering today.

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4:45 p.m.

Liberal

Tom Wappel Liberal Scarborough Southwest, ON

Madam Speaker, I suggest that he tell his constituent that every member of the House on behalf of all Canadians expresses their sympathy for the tragedy of his constituent.

None of us support child pornography. All of us are against it. All of us are in favour of the law as it now stands. That is what he should tell his constituent.

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4:50 p.m.

Bloc

Daniel Turp Bloc Beauharnois—Salaberry, QC

Madam Speaker, I wish to speak on behalf of my party to the Reform Party motion so that our party's position is again made clear, as it was this morning by the member for Berthier—Montcalm, our justice critic.

The Bloc Quebecois intends to vote against the amendment moved by the Reform Party because it does not think it appropriate to immediately invoke the notwithstanding clause of the Canadian Charter of Rights and Freedoms, although this clause can, on occasion and in the proper circumstances, provide Parliament with a means of giving the views of lawmakers precedence over those of judges. But, in the present circumstances, we do not think it appropriate to invoke this clause right away, because the matter is before the courts and it is up to them to pursue the process set in motion by the complainant in this affair.

I have examined the decision handed down on January 13 by Mr. Justice Shaw. It is clear from this decision that the judge thinks the Criminal Code, specifically subsection 163.1(4) is contrary to the Constitution of Canada and that it violates certain of the Constitution's provisions and certain fundamental freedoms. Having considered the arguments, the judge goes on to say that this provision is justified in a free and democratic society.

This is where the Bloc Quebecois parts company with the judge and, through the voice of its members who will support the motion after voting against the amendment, wishes to make known to this judge and to other judges who will be asked to rule on this matter, because this case will be appealed, probably to the Supreme Court, that elected officials consider this provision unreasonable and feel that, in a free and democratic society, the government must oppose child pornography. It must adopt measures to discourage this practice and to prohibit the wholesale distribution of child pornography, which is harmful to children and violates their most fundamental rights.

It is for this reason that the Bloc Quebecois will vote in favour. It wants to send a message to the public and to the judges who will have to again decide this matter, so that they may consider that, in a free and democratic society, a government and a Parliament are justified in wishing to restrict basic freedoms where pornography is concerned, particularly child pornography.

Other alternative measures have been presented, in particular the one suggested by the hon. member for Pictou—Antigonish—Guysborough and his colleagues, that a reference to the supreme court be made by the federal government under the Supreme Court Act and the Criminal Code. Such a procedure would make it possible to speed up the debate and would allow the courts to reach a decision more quickly, and ought not, moreover, to be excluded from the hypotheses considered by the Minister of Justice.

For the moment, however, having spoken to certain people, certain criminal law specialists who are of the opinion that the integrity of the Canadian criminal justice system might be put in jeopardy if there were immediate recourse to the notwithstanding clause, and having considered these opinions, it is certainly worthwhile for the judges and the public to understand that, in the present circumstances, the Bloc Quebecois considers it inappropriate to make use of the notwithstanding clause, as the Reform members wish to do. Instead, a certain degree of patience is required, allowing the legal process to take its course.

In conclusion, to repeat the position taken this morning by the hon. member for Berthier—Montcalm, our justice critic, the Bloc Quebecois will be voting in favour of this motion, because it represents a means of sending a clear message that this judgment and the position taken by Mr. Justice Shaw do not appear to be in line with our party's views of what is reasonable in a free and democratic society. Also, as for the amendment, we will be voting against it.

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4:55 p.m.

Reform

Gurmant Grewal Reform Surrey Central, BC

Madam Speaker, I am honoured to speak on this issue on behalf of my constituents. This is a very sensitive and delicate issue.

No one is pleased to debate in this House child pornography or other things which are hurting our society. We have to address these sensitive moral issues very seriously and we have to effectively suggest and act in this Chamber so that we can control these issues and take the right decisions.

My colleagues and I, as the official opposition, have chosen to use our supply day today to force the House to debate and vote on the recent decision by a British Columbian judge that in effect allowed the possession of child pornography and made it legal in this country.

It is a good thing for Canadians that we are here on this side of the House as an alternative to the government. We are here to hold the Liberal government accountable and suggest that it make the right decision in this Chamber. The Liberals are apparently prepared to do nothing about the effect the legal possession of child pornography will have except sitting on their hands and waiting for the courts to do something.

Courts cannot replace elected officials. The judges are unelected. They are unaccountable. It is we in this House who have to think, who have to act. We cannot tinker with the law. We need a law that has strong teeth which can give protection to society, which can give protection to the children and the most vulnerable in society.

The constituents of Surrey Central and I are outraged that the Liberal government is not prepared to take immediate action to protect our children. During the break I received an unprecedented number of phone calls on this issue. In fact, the Liberal justice minister has been spewing forth legal mumbo-jumbo ever since this decision in an attempt to do nothing about the situation.

As parliamentarians Canadians expect us to work on their behalf in this place to defend and uphold the levels of morality in our society. Clearly the production and possession of child pornography is unacceptable to the vast majority of Canadians.

The other day on the Internet two pedophiles were talking to each other. One said that he would rather choose Canada to live in and love children. How pathetic this is. Do the Liberals want to make Canada famous for red lights? Will it be a red light country?

Our children need care and they need protection. They need protection from drugs. They need protection from violence, television, the Internet and sexual abuse.

We do not want Canada to be a haven for pedophiles, drug dealers, criminals and terrorists. It would be a shame if we in this House did not act on this right away when it is needed. We expect the government to act and to act fast. We believe it is our duty as the elected representatives of the people to do something about this decision and outlaw the possession of child pornography.

My constituents and I were assured that immediately upon return to Ottawa this week the House would take measures to ensure the protection of our children from being induced or forced to commit sexual acts.

On January 22 about 70 members of parliament from the government side wrote a letter to the Prime Minister. It will be surprising to see what kind of result we will get from the vote today. I wonder how they will vote. If these members have the guts to write to their Prime Minister, who was probably not listening to them in caucus, we would encourage them to stand and represent their constituents and a vast majority of Canadians and vote accordingly.

We on this side of the House believe it is our moral responsibility to protect the most vulnerable in our society, the children. I am sure the members on the other side of the House will think the same way.

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5 p.m.

Liberal

Andrew Telegdi Liberal Kitchener—Waterloo, ON

Madam Speaker, I think a few points are being missed in this debate. I would like to point out to members of the Reform Party that I will be standing up and voting my conscience. It will not be in support of the motion that the Reform Party has proposed. The reason for this is fairly simple.

We live in one of the best countries in the world and we all recognize this. One of the reasons this is the best country in the world is that we have some very good institutions. One of those good institutions, even though once in a while some judge makes a wrong decision, is our court system.

I think the Reform Party is being somewhat disingenuous on the one hand to try to pretend that it is for law and order and then to continually try to undermine the courts of this country. Members of the Reform Party cannot have it both ways. Reform members would serve their constituents very well if they would explain how the system works and then wait for the outcome. I do believe the member would be doing a greater favour to his constituents than to stand up in this House day after day and exploit a difficult issue for pure political gain.

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5 p.m.

Reform

Gurmant Grewal Reform Surrey Central, BC

Madam Speaker, our current justice minister has been holding her portfolio for 601 days. She has been dragging her feet on the Young Offenders Act. She has been dragging her feet on important decisions she was supposed to make. She has shown a lack of leadership on the important issues that this parliament and this country is facing.

Just now the hon. member on the other side pointed out that a wrong decision has been made. What is the member doing about it? Is he going to close his eyes and ears and just let it go as it is?

Why did 70 members on the government side write to the Prime Minister on January 20? Because they know that something wrong has been done. If something wrong has been done then we as the elected representatives of Canadians must stand in this House and work through our conscience and vote the way our constituents are telling us to vote.

How many Canadians want child pornography to continue? How many Canadians want their children in this situation? I have two teenage boys. God forbid if they were forced into this situation. How would I feel if the judge made a decision that would allow the pedophile out, he thanked the judge and then said “here are the pictures of your children”?

This is a very emotional issue. I know that members on the government side in their hearts know that they are wrong to oppose this motion. Let us forget about politics on this ground. We are not in an election mode. Let us look through the lens of issues. Let us do something which will make history in this country, which will make our children's future the best on the planet.

I ask all members, particularly the member who asked the question, if they agree that what is being done is wrong, then have guts. Do not sit in the House like a bag of sand. Work on your conscious and vote accordingly.

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February 2nd, 1999 / 5:05 p.m.

Liberal

Bryon Wilfert Liberal Oak Ridges, ON

Madam Speaker, I point out that what distinguishes our society from non-democratic societies is the rule of law.

There is no question that no one in the House today has indicated anything but abhorrence for the decision of the chief justice of the British Columbia supreme court. What seems to be at issue here with some members of the opposition—

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5:05 p.m.

The Acting Speaker (Ms. Thibeault)

I am afraid I must interrupt the hon. member but the time for questions and comments has expired. The hon. member for Surrey Central has 10 seconds to reply.

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5:05 p.m.

Reform

Gurmant Grewal Reform Surrey Central, BC

Madam Speaker, I do not know what the question was but I am sure the member was talking about the rule of law.

We cannot have different laws for different people. Yesterday we debated Bill C-49. In this situation we cannot make a law in the House which will not serve Canadians—

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5:05 p.m.

The Acting Speaker (Ms. Thibeault)

Resuming debate, the hon. member for Oak Ridges.

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5:05 p.m.

Liberal

Bryon Wilfert Liberal Oak Ridges, ON

Madam Speaker, as I was indicating, we have a rule of law in this country. Very clearly the law is in effect even in British Columbia. It has been pointed out by other members of the Supreme Court of British Columbia that the ruling of Justice Shaw is not binding on them.

To use section 33 is a very drastic step. It is one that is available. It has only been used twice. It has been used by two provincial governments. In both cases it was after every legal recourse had been exhausted. This is not the case in this situation.

Members of the opposition referred to the fact that some members signed a letter to the Prime Minister urging him to consider the notwithstanding clause or other equivalent effective measures. I would suggest that the Minister of Justice responded very quickly. The government has taken the extraordinary step of intervening in the appeal of the decision of the British Columbia Court of Appeal in order to defend the law, a law which this government believes will be upheld.

Let us make no mistake. The fact is that members of this party urged the Prime Minister to take action. Action has been taken and very swiftly.

This government, and I think everyone in the House, supports the protection of our children. It is absolutely paramount to every member here. There is no monopoly on that issue. It is for that reason the government has decided to act and to act quickly, not to wait if it ever goes to the Supreme Court of Canada, but to take immediate action.

This government believes that the existing law on the possession of child pornography is constitutional. I clearly oppose the decision. It is an abhorrent decision. But I have faith in the rule of law. I do not believe that anyone should be allowed to possess, produce or distribute child pornography. Let us make no mistake.

The fact is there is a process. If governments start to react to court decisions, two things are going to happen. I think the judges are going to be very careful about what they do and we will then question the independence of the judiciary. One judge has made a decision, a decision which we clearly oppose, but there is a process. The Minister of Justice has taken action.

There is no contradiction between the letter which is being brandished about by the opposition and what the government has done. Clearly members on the government benches have asked that action be taken. Action has been taken very quickly. I see no contradiction whatsoever.

We are clearly not giving nor will we give a blank cheque to child pornographers in this country. Therefore the decision to intervene is very important.

Children are our most valuable members of society and we will not tolerate any exploitation. Therefore the legal course of action is the appropriate one. We as parliamentarians write the laws. When this law was passed in 1993, it was passed unanimously by the House of Commons. I have faith that the law which was passed in 1993 will be upheld and it will be upheld by the British Columbia Court of Appeal.

I have no doubt that the action the minister has taken has clearly indicated that this government is prepared to stand behind the law which this parliament enacted. Canadians clearly want to see the government take action. I know from the comments I have heard that Canadians realize that action through the process of the law has been taken.

The rule of law is critical. That is what distinguishes ourselves from other forms of government. We do not have a politicized judiciary in the fact that we cannot simply say this is the decision we want. We have faith in the law of the land. I believe that law will be upheld.

In conclusion, we know clearly that child pornography degrades and victimizes young children. The Parliament of Canada and in fact the Supreme Court of Canada have indicated very clearly that the self-worth and the importance of children in our society is paramount. Therefore the decision by the government is the right one and I will be voting against this motion this evening.

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5:10 p.m.

Reform

Reed Elley Reform Nanaimo—Cowichan, BC

Madam Speaker, I think the government is on the horns of dilemma here. The dilemma is the ancient story of what came first, the chicken or the egg? In this case it is what came first, the people or the law?

It seems to me that in our democracy the people came first and they made the law. That means the people whom we represent in this House are the ones who decide whether or not the law is being applied correctly and whether it is a law that is just. That is where the real problem lies in this debate. The members across the way have not settled that dilemma.

I ask the member which came first, the people or the law?

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5:10 p.m.

The Acting Speaker (Ms. Thibeault)

It being 5.15 p.m., it is my duty to interrupt the proceedings and put forthwith every question necessary to dispose of the business of supply.

Is the House ready for the question?

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5:10 p.m.

Some hon. members

Question.

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5:15 p.m.

The Acting Speaker (Ms. Thibeault)

The question is on the amendment. Is it the pleasure of the House to adopt to amendment?

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5:15 p.m.

Some hon. members

Agreed.

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5:15 p.m.

Some hon. members

No.

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5:15 p.m.

The Acting Speaker (Ms. Thibeault)

All those in favour of the amendment will please say yea.

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5:15 p.m.

Some hon. members

Yea.