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.