Debates of Feb. 2nd, 1999

Supply

[Reg Alcock, Liberal, Winnipeg South, MB]

Madam Speaker, perhaps I can recall the remark I was making when I committed the error. Through you, Madam Speaker, I believe the member opposite side is irresponsible and attempting to simply irresponsibly inflame debate.

[John McKay, Liberal, Scarborough East, ON]

Madam Speaker, the Reform Party calls upon parliament and the government to take legislative initiatives to strike down and reach a decision on the British Columbia lower court decision concerning child pornography.

The motion invites the government to take all legislative measures necessary to reinstate the law and to invoke section 33 of the Constitution commonly known as the notwithstanding clause.

I thought it might be useful for members on all sides of the House to actually review the sections of the law that are applicable to this case, particularly section 163.1 and the definition of child pornography:

a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity—

The accused is charged under two sections. The first is subsection (3):

Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography is guilty of—

Also subsection (4) which says “every person who possesses”. There are two offences here: possession for the purpose of and simple possession. As indicated, Mr. Sharpe was charged with subsections (3) and (4), namely possession for the purposes of distribution and possession of child pornography.

I would like to note that the U.S. Federal Court of Appeals as recently as last week quoted the Canadian legislation favourably in upholding the constitutionality of that law.

Child pornography is a curse that all members of the House view with distaste. It is something that has to be addressed and has attempted to be addressed on both sides of the border.

Mr. Sharpe in turn claimed his fundamental freedoms, particularly section 2(a) of the charter, freedom of conscience; section 2(b), freedom of expression and opinion; section 2(d), freedom of association; and section 15(1), equality rights under the charter. He claimed all those sections with respect to the possession charge. With respect to the possession for the purposes of, he simply claimed section 2(b).

The crown acknowledged that there is a limitation on the freedoms pursuant to section 1 of the charter and that the rights and freedoms of the rights of citizens are subject to reasonable limits as prescribed by law and as can demonstrably be justified in a free and democratic society. Then the judge went into an analysis of the evidence that was before him.

Subsection 3, possession for the purpose, was upheld as valid constitutional law. I will not deal with that. The section that has members opposite concerned is with respect to what is known as simple possession. It was found to be void and unconstitutional. I thought a review of the decision would be appropriate and in order, given the level of rhetoric the House enjoyed.

Page 7 of the decision indicates that sexually explicit pornography involving children possesses a danger to children because of its use by pedophiles in the seduction process. Children are abused from the production of film or videotaped pornography. Highly erotic pornography incites some pedophiles to commit offences. Highly erotic pornography helps some pedophiles relieve pent-up sexual tension.

It is not possible to say which of the two foregoing effects is greater. Mildly erotic pornography appears to inhibit aggression. Pornography involving children can be a factor in augmenting or reinforcing the cognitive distortions of pedophiles. There is no evidence which demonstrates an increase in the harm to children as a result of pornography augmenting or reinforcing the cognitive distortions of pedophiles. The dissemination of written material which counsels or advocates sexual offences against children poses some risk to the harm of children.

The crown conceded that this is a violation of one's guaranteed freedom of expression but argued that it was a reasonable limit within the limits of the law. Only one case was cited, the attorney general v Langer, in which the law was actually held to be a valid law. Section 163.1 was explicitly held to be valid and thereafter the paintings themselves were returned to the accused.

In dealing with that case Judge Shaw says that Judge McCombs did not do “a proportionality test”. A proportionality test is nothing other than a fancy way of saying risk benefit analysis; in other words weighing the legislative objective against the effects of the legislation. The question becomes whether to use a legislative hammer, i.e. the Criminal Code, to kill the impugned behaviour in the context of our charter.

Several other tests are referred to in the course of the decision but the judge concluded that in his view it was appropriate to the present case to consider the proportionality test between the desultory effects and the salutary effects on the prohibition and possession of child pornography.

He then went through a weighing process and made the conclusion that there was no evidence which demonstrated any significant increase in danger to children related to the confirmation or augmentation of cognitive distortions caused by pornography. That is a conclusion with which many of us would have some serious difficulty. I quote it:

There is no evidence which demonstrates any significant increase of danger to children related to the confirmation or augmentation of cognitive distortions caused by pornography. There is no evidence that “mildly erotic” imagines are used in the “grooming process”. Only assumption supports the proposition that materials that advocate or counsel sexual crimes with children have the effect of increasing the occurrence of such crimes. Sexually explicit pornography is used by some pedophiles to relieve pent-up sexual tension. A person who is prone to act on his fantasies will likely do so irrespective of the availability of pornography. There is no evidence that the production of child pornography will be significantly reduced if simple possession is made a crime.

With respect I believe the judge was wrong. I believe the House believes the judge was wrong. When it comes down to it, we are talking about a question of values. Surely it is the right of parliament to expect that it can create an environment in which it wants to see Canadian children raised.

Children should be free of the fantasies of adults and free of the abuse that this is something of a false test, and it is a false test. There will never be an empirical test that says if a possesses child pornography it therefore follows that b will be harmed. We cannot do it. We are human beings. It does not work. The test appears to be objective but I submit it is quite naive. It is nothing other than legal fiction.

It is up to parliament to express its view that this test is nonsense. Canadians believe that it is a Canadian value that possession of this material leads to harm and is degrading to our society.

I can do no better than to quote from a letter sent to my hon. colleague from Greenwood—Broadview dated today's date by Mr. Danson, the lawyer for the Mahaffy and French families, who should know something about this issue. He said:

Both the Supreme Court of Canada and the Supreme Court of the United States have concluded that the use of children to make sexual pictures is child abuse. Simply put, child pornography is a direct product of child sexual abuse and constitutes a permanent record of a child's sexual exploitation.

Once Judge Shaw arrived at the conclusion he arrived at, it follows that consideration of the detrimental effects will be pro forma. Judge Shaw believed that the invasion of personal freedom and privacy were profound and therefore by a circuitous bit of reasoning used his earlier findings as the basis for his findings that the detrimental effect of an invasion of privacy was a fact that overwhelmed the issue concerning possession. In the interest of time I will not quote it.

I believe Judge Shaw's findings are wrong. He used a false test which has led to absurd conclusions. I suggest all members support the attorney general in her intervention and await the decision of the appeal court. The House could only do one thing that is more absurd than Judge Shaw's reasoning, and that is support the motion.

I quote from the final page of Mr. Danson's letter:

I know in bringing forward this motion in Parliament today they are motivated by genuine, honest and good intentions, but I have to say to you that on this one, the Minister of Justice is absolutely correct and should be fully supported.

[Grant McNally, Reform, Dewdney—Alouette, BC]

Madam Speaker, I compliment the hon. member for Scarborough East on his logical premises and his reasoned debate. It is one of a few we have heard from the government side today.

I do not agree with his conclusion based on the premises that he cited, that the only conclusion could be to support the attorney general's intervention in this case. The conclusion he drew based on the premises he made is not the only conclusion that can be reached. This was a ruling by Judge Shaw that was incorrect. It was wrong and many people do not agree with it. The member stated that he did not agree with Judge Shaw. Yet he also clearly stated that the production of child pornography produced a record of child abuse and the abuses involved in the creation of child pornography.

Would the member not agree that by waiting even through an expedited process by the attorney general and by not taking action immediately the attorney general allows this kind of abuse to continue in the jurisdiction of British Columbia? I know his legal background. He knows that cases which set precedent in one jurisdiction are often used in other jurisdictions in future cases.

Does he not agree with the fact that this decision and failing to intervene now would mean there would not be some further abuses happening to children, particularly in the jurisdiction of British Columbia?

[John McKay, Liberal, Scarborough East, ON]

Madam Speaker, I thank the hon. member for the question.

First, the decision was issued on January 13. As I understand, within the week the British Columbia attorney general appealed the decision. Within the following week, one week before parliament was recalled, the Attorney General of Canada joined the appeal in an intervener status to uphold the constitutionality of the case. I cannot think of any response that could be quicker. As to the issue of whether we should use, if you will, the nuclear bomb of the Constitution in order to blow up this possession, I think that is a gross overreaction. It is a conclusion that is not warranted under the circumstances. In my view it has no precedent value.

This is a decision of the trial court of British Columbia. It is a lower court decision. If it is upheld, their argument becomes much stronger. But in my view this has no precedent value. It has no precedent value in other provincial court jurisdictions. It has no precedent value on his fellow judges. It is simply a stand-alone decision. In my respectful submission it was a timely response on the part of the Attorney General of Canada and on the part of the Attorney General of British Columbia.

To invoke the notwithstanding clause of the Constitution in order to quash this offence is a disproportionate response to the offence that we all want to see corrected.

[John Duncan, Reform, Vancouver Island North, BC]

Madam Speaker, I take great exception to the member making an analogy between a nuclear bomb and the notwithstanding clause. If we are ever going to send a message to the judiciary that parliamentary supremacy over legislation is meaningful, and if the public at large is going to receive that message as well, there is no better time to use this than at a time when something so offends the common sensibilities of people.

I am trying to get at the basis of why so many members on the other side, including the hon. member, feel so strongly that this is an overreaction. Why is it an overreaction?

[John McKay, Liberal, Scarborough East, ON]

Madam Speaker, the first reaction should not be an overreaction. The first reaction is to read the case which is 21 pages and to review the reasoning of the judge. If we review the reasoning of the judge we will see it is clearly flawed. That is the first response we would have. We would also be well advised to read Mr. Dosanjh's comments on that case which attack the reasoning of the judge. That would be the first appropriate and proportionate response. It is completely out of line to use section 33 for this purpose.

[Jason Kenney, Reform, Calgary Southeast, AB]

Madam Speaker, I too commend the member for Scarborough East for his thoughtful and reasoned remarks.

He did not compellingly answer the question just posed as to why he feels it is an overreaction to invoke section 33. He merely reiterated his assertion. However, the tone of his comments was appropriate in that his comments did not follow the pattern of his colleague from Winnipeg South who launched unfortunately on an all too common partisan speech imputing motives to others who feel very strongly about this as do I.

[An hon. member]

Coming from you those are really new words. Like you are not partisan on what you speak.

[Jason Kenney, Reform, Calgary Southeast, AB]

As I was about to say to the very hon. lady opposite, I have no doubt that the government members here have nothing but the best of motives in the position they take. They place greater emphasis on the importance of the authority of judges as opposed to those of us who place greater emphasis on the importance of the authority of parliament. It is a legitimate debate to have in a democracy.

I do not choose to castigate my colleagues opposite for arriving at a different conclusion than do I. I would invite them to accept a similar position of equanimity when it comes to such a critically important debate.

The hon. member for Winnipeg South castigated the official opposition for calling for immediate action in its motion. Let me make reference to that motion as it has not been read for some time. What we simply seek is “that the government should take immediate measures to reinstate the law that was struck down by a recent decision of the court of British Columbia regarding the possession of child pornography, even if that entails”—not necessarily but even if that entails—“invoking section 33 of the Constitution Act, the notwithstanding clause”.

On this point, if the House were to pass this motion and officials from the justice department were to conclude that other reasonable measures could be taken immediately to counteract the effects of this judgment apart from the invocation of section 33, then I am sure we would support that. I agree section 33 is the ultimate legal constitutional lever available at our disposal and we should use it with great discretion.

I would call on members of the government, if this motion passes, to provide us with reasoned opinions as to whether or not there are other legal avenues available to act immediately, rather than waiting for the indefinite appeal process.

The second element of the motion says essentially that notwithstanding any standing order or usual practice of this House the bill would be considered in one sitting so as to expedite it. I think it is a reasonable motion.

I also read a letter sent on January 20, 1999 to the right hon. Prime Minister from some 70 members of the government, including the hon. member for Winnipeg South who said that it was unreasonable for the opposition to call for immediate action in this. Yet I look at the letter to which he has affixed his name where he, among others, wrote to the Prime Minister “We ask that you send an unmistakable message to the nation that your government will not tolerate any proliferation of child pornography through the weakness of our laws. We ask that the government not wait for the appeal of the B.C. decision to be heard, but immediately act in defence of Canada's children”.

This is not me speaking; it is conscientious members opposite who have signed this letter. I am not using this as a partisan lever. I am just pointing out that the member for Winnipeg South seems a bit schizophrenic today, because the letter went on to say “The undersigned recommend that strong new child pornography legislation be introduced as soon as the House resumes”. That was yesterday. We, the official opposition, introduced this motion as soon as we had the opportunity.

The member and his colleagues went on to say “We ask also that you consider the use of the notwithstanding clause”. Let me quote that again in case the member for Winnipeg South is not listening. “We ask also that you consider the use of the notwithstanding clause or other equivalent effective measures”—which we are open to in our motion—“to send a clear message that Canada's charter of rights will never again be used to defend the sexual abuse of Canada's children”.

They call to immediately act at the first opportunity in the House and to consider invoking the notwithstanding clause. I would suggest their wording is even stronger than that proposed in the motion before us. This is a letter that was signed by my colleague from Winnipeg South who just stood up and for making the same argument imputed my motives as being strictly partisan and political. I resent that.

Yes, I am a politician. I am a partisan. But on matters like this one I do believe that common sense and common values can prevail.

I submit that if we were to consult our constituents broadly there would not be a debate. There would be as close as we could find the unanimity in a democratic society on the need for this sovereign legislature to use all of its power to act and to act immediately.

Some of the members opposite offer soothing words about respecting the judicial process and allowing the appeals process to work. I know as well as they do, and certainly as well as the member for Scarborough, a lawyer, does, that the appeals process can be tortuously long at times. It is a slow tortuous process open to procedural delays and there is no guarantee that this will come to a satisfactory conclusion.

In fact there seems to be among those opposing this motion a presumption that the higher courts, the appeal courts, will overturn the absurd, disgraceful, bizarre judgment, as I would characterize it, rendered at the B.C. court. I do not share their presumption. I might be able to share their presumption if I had not seen over the past 15 years the courts grow bolder and bolder and bolder in asserting essentially a legislative power and legislating from the bench, notwithstanding the democratic consensus of Canadians on critical issues.

This is not a political issue. I suspect and hope there are members of all parties who will support this motion this evening.

I have just received a copy of a letter from the Canadian Police Association which is also speaking on behalf of victims of crime, CAVEAT and the Canadian Resource Centre for Victims of Crime. It is signed by Mr. Grant Obst, the president of the CPA. It is a letter to my house leader with a copy to the Minister of Justice in which he writes:

I have been made aware of the motion you made this morning in the House of Commons calling upon the federal government to enact legislation criminalizing the possession of child pornography. On behalf of the Canadian Police Association, let me lend you the support of our 35,000 members across the country.

We believe that the current law is constitutional—

—contra the judge—

and expect the B.C. Court of Appeal and possibly the Supreme Court of Canada to uphold it. However, that will take time, and some cases have already been delayed or thrown out due to the judgment.

Cases have been thrown out. Pedophiles have been let out on the street as a consequence.

There is clearly an urgency to this issue and we therefore hope that parliament can act swiftly to ensure that the laws against possession of child pornography are upheld in B.C. and in the rest of Canada. Given that urgency, we support any action which will ensure the laws against possession of child pornography are upheld.

We applaud your initiative on this matter.

It does not say anything about any party. It talks about the principle of the issue before us.

I appeal to all members to put aside partisanship, not to impute motives. One of the reasons I am a member of the Reform Party is because I oppose judicial usurpation of democratic authority from the parliament. It is one of the reasons I left the Liberal Party and joined the Reform Party. But that does not mean Canadians cannot agree in principle beyond partisanship that there is a need from time to time to use the constitutional levers put at our disposal to protect not just our children but perhaps even more importantly the principle of parliamentary supremacy. That is what this debate comes down to.

Some members seem to believe that invoking section 33, the notwithstanding clause, characterizes an overreaction. The real true overreaction, the real legal nuclear bomb if you will, is the abuse of judicial authority exercised by judges, such as the one in this case, where they use their own narrow, parochial, social, political values to impose them on society contra the virtual unanimity of Canadian democracy.

I call on my colleagues on all sides of the House to not impute motives to one another here but let us assert the sovereignty of this parliament. We can act. The Constitution gives us the power to act and we must act. To do otherwise is to abdicate our fundamental democratic responsibility.

[Marlene Catterall, Liberal, Ottawa West—Nepean, ON]

Madam Speaker, I have been listening to the debate throughout the day with great interest and I must say with some puzzlement. Several Reform members have suggested that members on this side of the House give greater importance to freedom of expression than to the protection of children. It is quite the opposite and I would appreciate the member's comments on what I am about to say.

This parliament has very clearly passed legislation that says the importance of protecting our children supersedes the individual rights to freedom of expression. The Constitution of this country allows us to do that.

The Reform Party in its motion today seems to be accepting the judgment of the British Columbia court, that in fact we have gone too far, that we do not have the right to impose that limit on freedom. The Reform Party wants us to accept that judgment and say we have to override the charter of rights and freedoms to protect the legislation.

The legislation is a very legitimate and necessary limitation on personal freedom because there is no greater obligation of this parliament than the protection of our children, especially from this kind of abuse. That is why I want to go into court and I want to demonstrate clearly that this parliament does have the right to limit personal freedom for the greater good of protecting our children. That is why I am not prepared to accept the judgment of that judge and to say now I have to act in accordance with his judgment and overrule the charter so that this law can prevail.

I ask the member also to comment on what would happen if we now say that we have to overrule the charter because we accept that the judge was right, this exceeds the charter and the only way of making it valid is to overrule the charter. Then every lawyer whose client has been convicted of possession of pornography would have the right to go back into court and say “Parliament has overridden the charter, which did not exist when my client was convicted, therefore my client should be freed because the law was unconstitutional and parliament has admitted it”.

[Jason Kenney, Reform, Calgary Southeast, AB]

Madam Speaker, I did not imply that the members opposite value freedom of expression over the responsibility of the protection of children from pornography. I did suggest that some of the members opposite may value the authority of the courts contra the balance versus the authority of parliament. I think that is a legitimate debate.

She knows she is being disingenuous when she suggests the Reform Party supports the judgment and believes that it is constitutional. She knows that is absurd.

I do not think there is a member in the House who believes this judgment is constitutional. But the point is this. The appeals process can work on track. We can invoke the notwithstanding clause in this place and protect these children immediately by reinstating the law. We can do that and allow the attorney general of British Columbia to pursue the appeal.

The hon. accountant opposite seems to disagree with the judgment of the lawyers I have spoken with. Let me make it clear that we can put this to the supreme court and let it have its say. It is nice that members opposite seem to have an absolutely unmitigated faith that the Supreme Court of Canada will undo this unjust, unconstitutional, outrageous decision. I am not entirely sure based on some of the precedents I have seen come out of that court.

But we can allow the appeals process to work and allow that to take the years and millions of tax dollars that it will to satisfy this British Columbia pervert's desire to tie up our court system. We can allow that to happen but at the same time protect the children by invoking section 33. The are not mutually exclusive. They are mutually compatible.

[Rick Casson, Reform, Lethbridge, AB]

Madam Speaker, after that rousing speech and retort I will try to carry on.

Along with most Canadians I was shocked and outraged when we heard that a B.C. supreme court judge had struck down the section in the Criminal Code that prohibited possession of child pornography. The judge in his decision stated that Robin Sharpe's freedom of expression was violated by the Criminal Code which prohibits possession of child pornography.

It is not at all surprising that such an offensive attack on the values of society comes from the benches of the unelected and the unaccountable. Judicial activism, a recently coined term, refers to rulings by judges which go well beyond the intent of the law. These decision substantively change the law to the point where judges have taken on the role of legislators or law makers as opposed to simply interpreting and applying the law.

The courts have turned free some of the worst criminals in society, from drunk drivers to child pornographers. These judges who are acting without an electoral mandate are singlehandedly changing the laws in this country.

We as elected members of parliament make the laws that govern this nation right here in the House of Commons. So why are we allowing these laws to be arbitrarily changed on the strength of a decision made by a few unelected, unaccountable officials? How many more shocking decisions are Canadians going to have to endure before this activism is stopped?

The first section of the charter guarantees the rights and freedoms set out in it are subject only to reasonable limits described by law as can be demonstrably justified in a free and democratic society.

What was so democratic about striking down a portion of section 163? In interpreting this section, a judge is to apply a test of proportionality, balancing the interests of society with that of the individual. I must say I cannot imagine that any legislative assembly in this land would agree with this decision, a decision that puts the rights of the pedophile before the rights of his victims, the children of our society.

Much has been discussed today but I want to spend just a few moments discussing pornography and the effects it can have on the user in society.

Sex is everywhere. We read about it every morning in the papers. We hear about it all day long on the radio and watch it on the national news each night. No one in society can escape it. This fascination has fuelled a huge increase in the growth of pornography.

Here are a few stats. The adult industry is worth over $10 billion a year. In 1996 the amount of hardcore video rentals numbered 665 million. Each week 150 new pornography videos are produced in the United States. Hotel guests spent $175 million in 1996 to get pornography in their rooms. Between 9 p.m. and 1 a.m. each night over 250,000 people dial phone sex numbers. In the United States the number of stores distributing hardcore pornography have even outnumbered McDonald's restaurants. McDonald's was the former king of capitalism.

Although these figures are for the U.S., it does not lessen their impact. Nowhere has this growth been so prevalent as on the Internet. By some estimates, some 17 million web pages are dedicated to pornography. Detective Noreen Waters of the Vancouver police, an expert on child pornography, testified in the B.C. case that with the advent of the Internet there has been a veritable explosion of the availability of child pornography.

Dr. Michael Mehta, a professor from Queen's University, has studied the Internet extensively and estimates that up to 20% of the activity on the web has to do with child pornography. This number is even great when one considers all the other obscene material, material that is illegal under Canadian law but yet is available on the net.

However, there are some that would say that an individual has every right to view whatever he wants in the privacy of his home. This may be true but there have to be limits.

Before I clarify that, I want to explain the harmful effects that pornography can have on its users. First of all, it is important to understand that pornography is addictive and, as with all addictions, more and more exposure is needed to satisfy the cravings. These sexual addictions do not happen overnight. They take time to develop. There is a gradual progression from the soft porn pages of Playboy to the hardcore images on videos. However, just as not everyone who tries a cigarette becomes addicted, not everyone who uses pornography will become addicted.

However, once an individual develops an addiction, almost nothing can come between them and their cravings. In this case the judge heard from expert witnesses who testified that pedophiles often go to great lengths to get their hands on explicit pornography and use it in ways that put children at risk.

Can this government not see that each day a pornography addict is allowed to possess this disgusting and obscene material that it is aiding and abetting his addiction? Each day their addiction is strengthened, each day they need more to satisfy their perversions and each day they are closer, if they are not already, to abusing children.

When pornography users become pornography addicts everyone around them suffers. Their family suffers, their colleagues suffer, society suffers and everyone becomes a victim.

In spite of these effects, pornography is legal. In a decision of the supreme court R. v Butler, Mr. Justice Sopinka acknowledged that pornography was a legitimate freedom of expression but it did allow reasonable limits to be imposed. These reasonable limits do not try to legislate morality but rather they try to protect society from the harmful effects of pornography.

When parliament declared that child pornography was illegal it realized that the rights of innocent children, the most vulnerable members of society, were more important than the rights of child molesters.

If this ruling is allowed to stand we may as well declare open season on all our children; not even infants will be safe. The sexual deviants who prey on young children have no limits. According to investigators it is not uncommon to find images depicting children in sexual acts. Police have even investigated cases where babies were violated.

The Internet has spawned a huge underground network where pedophiles exchange pictures and information on hunting down children and making child pornography. This material is used by pedophiles to groom their victims, to lure their victims into thinking that abuse is normal and that they should enjoy it.

What happens to the children who are victimized in pornography? As an example, consider that 85% of teen prostitutes were abused as children. We cannot waste any more time in correcting this wrong. One child pornographer has already been set free. How many more perverts are sitting in their houses surrounded by their dirty pictures ready to abuse another child?

Appealing this decision could take months, if not years, and then we have no guarantee that the judge will respect the wishes of the Canadian people.

When the charter was drafted a section was included that will allow any legislative assembly, including parliament, to enact the notwithstanding clause. This clause was not meant to be used often. But if it cannot even be used to outlaw child pornography, what can it be used for?

The family is being attacked on all sides in our society. The government discriminates against it through its tax system. Special interest groups mock it and now it is being violated by the courts.

This is tragic because the family, without question, is our most valuable institution and the heart of our social order. It is the place where children are brought into the world and cared for. It is where they learn trust, love and security as well as the values and behaviour that will make them good citizens and in turn good parents themselves.

Many of us in this House are parents and grandparents. We know how precious our children are to us. We know that if our children are being abused by these pornographers we would demand action immediately. We would not waste any time in doing what we could to protect our children. We would act now.

The Reform Party recognizes the importance of children and families in our society which is why we have introduced this motion today. However, our good intentions are not enough. We need the support of the government benches to pass this motion.

I know there are many Liberals who have signed a petition asking for exactly the same thing we are asking for, a petition to the Prime Minister, a petition to take immediate action. I want these members, these parents and these grandparents to stand together with the members on this side and do the right thing.

This is not about partisan politics. This is about the well-being of our children. Why can we not band together today, put aside partisan politics and do the right thing? Let us do it for our kids.

[Jim Pankiw, Reform, Saskatoon—Humboldt, SK]

Madam Speaker, I would like to state how preposterous it is that we are in the House of Commons, the law making body of our country, debating something so entirely stupid and ridiculous. This should not be a question in anybody's mind. I submit to members that the only people who have a question as to the appropriate thing to do here are the Liberal MPs.

I spent the last couple of days talking to my constituents and they say in no uncertain terms to exercise our authority and end possession of child pornography, to take whatever steps we have to.

The media unfortunately are reporting that Reform is bringing this to a vote for partisan purposes. That is not the story. The story is that 70 Liberal MPs signed their name demanding exactly what we are asking for here today and now they are going to reverse their decision. Why? For one reason. They were ordered by a dictator, a dictator who does not allow free votes in the House of Commons, a dictator who appoints all senators so there is no body above the House of Commons to intervene when decisions are not made with proper thought. Furthermore, he is a dictator who appoints all the supreme court justices.

We have the three major institutions in this country that act in passing and enforcing laws under the control of one man and tonight he is going to force these MPs to vote against the wishes of surely most every Canadian who is not a demented pervert.

I would like the hon. member for Lethbridge to let me know his opinion of the authority that is vested in one individual who does not allow free votes, appoints all senators and all supreme court justices. What is the member's opinion of Jean Chrétien?

[The Acting Speaker (Ms. Thibeault)]

I must remind the hon. member never to mention people by name in the House.

[Rick Casson, Reform, Lethbridge, AB]

Madam Speaker, I thank my colleague for the question.

Earlier today we pursued the Prime Minister on the question of whether he would allow his members to have free votes.

We have in our hands a petition signed by 70-plus members of the party who suggest that they do exactly the right thing. It is a letter to the Prime Minister.

When the Prime Minister was asked if he would allow his members to have a free vote, he stood and said “This is not about free votes. This is about process”.

I suggest that it is not about either. This is about our children being attacked by perverts. If members opposite do not have the guts to stand and protect our children, then they should not stand at all.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

Madam Speaker, unlike any member of the Reform Party, I was here in 1993. When this law was passed I was the official opposition critic for the solicitor general.

Unlike any member of the Reform Party, I voted for this law when it came into being. Every member of my party voted for this law and every member of the House of Commons voted for this law. This law was and is supported by the House of Commons.

The issue is the nature of the motion. Members opposite get very edgy when they are accused of rhetoric, and yet we hear one member referring to the leader of the country as a dictator. If that is not rhetoric I do not know what is.

Let us stick with the issue. The hon. member's motion wants us to take legislative measures to reinstate the law that was struck down by a recent decision of the court of British Columbia. That is plainly wrong.

The law is still the law of Canada. It does not need to be reinstated. One judge of one superior court in one province has rendered a decision—

[An hon. member]

The appeal is—

[Tom Wappel, Liberal, Scarborough Southwest, ON]

Obviously members opposite do not wish to listen to reason.

The judge has rendered a decision based on rubbish thinking, but that does not render this law inviolate.

I would like to hear the hon. member's comments on that.

[Rick Casson, Reform, Lethbridge, AB]

Madam Speaker, I think the issue we are faced with is whether the law is in effect or not. The appeal process has been started. The appeal process could go on for who knows how long.

The result of that appeal process we do not know because we do not know if the rest of the judges will support what Canadians want.

The issue is that parliamentarians should act now and invoke this notwithstanding clause to protect our kids.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, I am pleased to participate in this important debate. Abhorrence of child pornography is not at issue in this parliament and in Canada. All members of this place agree that it is not acceptable and we will defend the laws of Canada to the fullest extent to defend those principles.

The Parliament of Canada, the Supreme Court of Canada and the Supreme Court of the United States have concluded that the use of children to make sex pictures is child abuse, and there are many other precedents.

The fact is, in this place today and in this debate, whether or not child pornography is abhorrent is not at issue. We are in agreement. Let us move on.

I am not a lawyer, but as a member of parliament I have a responsibility to participate as fully as I can in issues that come before this place. To do that I have to seek information to inform myself from other lawyers, from judges, from colleagues and from external sources to determine what the facts are.

I would like to lay out the facts because when I lay out the facts I think members will understand why I will not be supporting the Reform motion before the House today.

On January 20 a letter was written to the Prime Minister on behalf of a large number of members of my caucus.

I point out that as of January 20 the matter had just come to the fore. The government position at that time was, should the issue come before the supreme court, it would defend the laws of Canada. The colleagues who I joined in signing this letter to the Prime Minister felt that it was important that our response be swifter and stronger.

As a result, we made are argument to our caucus colleagues, to the government and to the Prime Minister to ask for consideration on a couple of matters. We asked that we not wait until this matter was appealed to the supreme court. We asked for consideration to be given to possible new legislation if the situation was that the current laws of Canada were not strong enough to defend the social and moral fabric and the values of Canada. We also referenced, and members here have used it constantly today, the use of the notwithstanding clause, section 33(1) of the charter.

It is important for us to have made that point. In the event that no action was taken and there were exacerbating circumstances, creating more cases going before the courts and being frustrated, it would be essential for the government to invoke the notwithstanding clause to stop the flow of bad decisions.

Subsequent to this letter, and to the credit of the many members of parliament who signed this letter and the many others who spoke openly to caucus, to the government and to the Prime Minister, the government acted. It acted in these ways.

First, the government took the extraordinary step of intervening in the appeal of the decision to the B.C. court of appeal. It is extraordinary for that to happen. The importance and the significance of this issue has been demonstrated by the government taking that extraordinary step.

The government has also supported the B.C. government in having the appeal decision dealt with on an expedited basis to ensure that it is dealt with as soon as possible.

We have also co-operated in seeking the co-operation of law enforcement authorities to continue all investigations and to continue laying charges under the laws of Canada. They are doing that.

We also are satisfied that adjournments have been sought for the cases currently before the courts so that no other decisions will be taken until such time as the issue presently before the appeal court has been dealt with.

It is very important to understand that the letter which has been referred to so often by the Reform Party was dated January 20 when the position was to deal with the situation when it reached the supreme court. The letter was not written today and a position was not taken today after all of these other points were in place. It is extremely important to understand that we took the actions that were necessary to ensure that this matter is dealt with as expeditiously as possible to ensure that the rights of our children are protected as quickly as possible and as forcefully as possible.

I have seen many legal opinions to date. I am advised basically by the consultations I have made as a member of parliament that the case before the appeal court has strong and very substantial merit.

There are issues that are going to have to be dealt with. It has been suggested that the judge may have been in error in the judgment. It may have been a faulty judgment. It may also have been the crown attorney who did not make substantive enough arguments in defending the constitution of Canada.

We do know that the arguments were made strongly with regard to freedom of expression. But were the arguments made substantively? I think that these are the points which have to be raised at the appeal process.

If the members believe that the current laws of Canada regarding child pornography under the Criminal Code are inadequate and unconstitutional, then we should invoke the notwithstanding clause if we believe they are not constitutional. But that is not the case.

Members have said that they support the laws of Canada. We do. And we are going to continue to support the laws of Canada. If we believe they have to be strengthened, maybe we should have additional measures to strengthen those laws.

However, right now it is plain to me, based on the consultations I have had, that invoking section 33(1) of the charter, the notwithstanding clause, is premature and may in fact constitute either coercion or the undermining of the court system itself. I say that because if we were to invoke the notwithstanding clause today, that invocation would only apply to cases that arose from today forward. It would not be applied retroactively to the Sharpe case which has precipitated this matter. That means that the appeal to the B.C. court of appeal has to proceed.

Let us consider this. If the appeal process takes place and the federal government has already invoked the notwithstanding cause, what is the purpose of the appeal? We have basically said that we do not like the court system, we do not value the courts any more, we do not believe that the laws are being treated properly under our Constitution, we are going to ignore anything that has been said and we have invoked the notwithstanding clause.

That is not the way to defend the laws of Canada. The way to defend the laws of Canada is to deal in the courts with the specific issues that come before the courts.

I believe that we have ample evidence that this was a wrong decision. It was poorly argued, and the laws under the Criminal Code regarding child pornography are in fact constitutional, valid and supportive of the children of Canada.

Let me repeat what I said at the beginning. There is no disagreement in this place. There is no disagreement in Canada that we abhor child pornography because it is child abuse.

I will be voting against this motion because, if I am correct, the motion suggests that we take legislative measures to reinstate the law. One does not take legislative measures to reinstate the law. If the notwithstanding clause is invoked, that is not reinstating the law. The motion before us today is in fact contradictory prima facie. It should be defeated. I encourage all colleagues to look very carefully at a very poor motion that undermines not only the laws of Canada but also the rights of our children.

Business Of The House

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

Madam Speaker, I rise on a point of order. I am hesitant to interrupt the excellent speeches being made, but I believe you would find unanimous consent for the following motion. There have been consultations among the parties and I would like to propose the following motion to the House:

1. That Bill C-306, now in the name of the hon. member for Brome—Missisquoi, stand instead in the name of the member for Vaudreuil—Soulanges.

2. That the Order for consideration of Bill C-415, in the name of the hon. member for Beauport—Montmorency—Côte-de-Beaupré—Île-d'Orléans, be discharged and that the bill be withdrawn.

3. That the bill on the Notice Paper in the name of the Minister of Finance, entitled an act to amend the Federal-Provincial Fiscal Arrangements Act, be deemed now to have been introduced, read a first time, ordered to be printed and ordered for consideration for second reading at the next sitting of the House.

[The Acting Speaker (Ms. Thibeault)]

Does the hon. member have the consent of the House to propose the motion?

[Some hon. members]

Agreed.

[The Acting Speaker (Ms. Thibeault)]

The House has heard the terms of the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

(Motion agreed to)