Mr. Speaker, I appreciate the comments made by the member for Mississauga South and I welcome the opportunity to participate in the debate on Motion No. 69.
Just a few minutes ago members of the House were in the Speaker's office shaking hands with John Glenn, a man who has gone up into space twice, once as a younger man and once as a man in his seventies. That proves that in this world we can do anything we want to do.
This type of legislation is something we should support. With respect to the pornography issue, if we do not get a favourable decision from the supreme court, I agree with the hon. member that it may be the first time this parliament will have to use the notwithstanding clause. It should be used if the supreme court does not make the proper decision.
Motion No. 69 calls for an amendment to section 163 of the criminal code and would broaden the definition of obscenity. The member's motion states, in part:
For the purposes of this act, any matter or thing is obscene where a dominant characteristic of the matter or thing is the undue exploitation of any one or more of the following subjects, namely, sex, violence, crime, horror or cruelty, through degrading representation of a male or female person or in any other manner.
I should say at the outset that I see no problem with this amendment to section 163. In fact, it is more reflective of our times. After all, the definition of obscenity in section 163 of the criminal code was written in 1959. Surely times have changed, particularly the manner of transmission of obscene material.
I believe the impetus for this motion by the member for Mississauga South comes from the leading supreme court case on the issue of obscenity. I am talking about Regina v Butler. In that case the supreme court upheld the ban of obscenity as constitutional. In essence, the court ruled that banning obscenity would be an infringement of the freedom of expression, but is saved by section 1 of the charter as a reasonable limit.
Sex that is degrading or dehumanizing will be considered undue because it is harmful to society, particularly women. However, material which offends against community standards could be saved if it was necessary for the serious treatment of the theme. The stronger the inference of the risk of harm, the lesser the likelihood of community tolerance.
Sex with violence will almost always be undue exploitation. Explicit sex that is degrading or dehumanizing may be undue if the risk of harm is substantial. Explicit sex that is non-violent and non-dehumanizing will almost always be tolerated. That seems to be the manner of law in the interpretation of obscene.
The member for Mississauga South does not appear to be objecting to the supreme court case involving Butler. For background, the Butler case involved an individual, Mr. Butler, who was a purveyor of hard-core video tapes. In the first case the court said that charges of obscene were inappropriate and that the video tapes were acceptable. The court of appeal did not agree. The supreme court used the harm test and agreed that the tapes were obscene.
In Motion No. 69 the member's definition of obscene still contains the word undue, which leads to the community tolerance test.
I believe the member for Mississauga South has picked up the notion of degrading for the genesis of his motion. The effect of this motion is simply to make undue exploitation of violence, crime, horror or cruelty as obscene even if no sex is involved. For example, if I have interpreted the member's rationale correctly, under his proposed definition beating someone to death in a degrading manner, torture without exploiting the person sexually, no rape, would be obscene. If that is the case I have no problem with this step forward in amending subsection 163(8) of the criminal code. In fact, I would welcome this new definition.
Some may say that it goes too far and may unduly restrict the publication of photos by legitimate media sources. I do not believe this could happen. In light of the defence of serving the public good, which is contained in subsection 163(3) of the criminal code, it seems unlikely that any legitimate media would be threatened by Motion No. 69.
I am also pleased to see any reference made to amending section 163 of the code. As I said previously, that section dates back to 1959. I have always believed that the code is an evolutionary document which must reflect the times.
If we take a close look at section 163, which is entitled “Offences tending to corrupt morals”, we will find some archaic and startling sections more reminiscent of the 1950s. Paragraph 163(1)(b) states that it is a criminal offence to make, print, publish, distribute, sell or have in one's possession for the purposes of publication, distribution or circulation a crime comic. Yes, Mr. Speaker, a crime comic. Surely this is a bit out of sync with the times and suggests to me that section 163 needs a complete review and a complete overhaul.
Paragraph 163(1)(d) states that anyone who advertises or publishes an advertisement of any means, instructions, medicine, drug or article, intended or represented as a method of restoring sexual virility or curing venereal disease of the generative organs, is guilty of a criminal offence. This is another example of the 1950 attitudes existing in our criminal code.
Surely we have moved beyond that thinking. Section 163 is out of touch with our times. That is why I have no objection to Motion No. 69, which seeks to amend subsection 163(8) of the criminal code.
Motion No. 69 reflects the need to deal with the issue of degrading and reflects community standards and norms of today. It is in step with the times, which I support.
I would like to close by once again talking about the notwithstanding clause. It comes up many times in the debates of the House. Sometimes it is said that we should only use it in extraordinary circumstances. The constitution of the country was drafted by people from across the country. There was a very good reason the premiers in certain segments of the country insisted they would not sign the constitution, the bill of rights, unless it contained the notwithstanding clause.
We have never used it in this House and I find that rather strange. It lets the supreme court and any other court in the country know that the elected members of the House form the supreme body of this country. We have gotten away from that.
I had a debate today with a reporter who said “No, you are wrong. The supreme court runs the country”. He was serious. He really believed that the supreme court had the final say. When I brought the notwithstanding clause forward he said “But you have never used it”. He is correct.
Perhaps now is the time. The member for Mississauga South talked about the child pornography case. If a ruling comes down which is not agreeable to the majority of members of the House, I would hope we would have the courage to use the notwithstanding clause to make a law that the majority of members of the House would agree with. We know what the majority feel. We saw it in a letter from a number of members on the Liberal side to the Prime Minister about using the notwithstanding clause in this particular case. Yet they voted the way they had to vote when we put the motion before the House.
I know there will be a public outcry on this issue if the supreme court allows this case to go the way it has been going through the other levels of the courts, even though it was not unanimous in those courts. I read the minority decision of the Chief Justice of British Columbia, Allan McEachern. I have a lot of respect for him as a lawyer and as a judge, not only in this case but in other cases before him in British Columbia. He disagreed with the other two honourable justices in that case.
I hope his view is the one that the supreme court will take. If it does not, we must let the supreme court know that this is the supreme body of Canada, the body that makes the laws which the majority of people in the country want.
We will support the bill. We also look forward to support from the other side when that pornography issue comes down, if it is not the right decision by the supreme court.