Mr. Speaker, I would echo much of what has already been said in terms of the timeliness and the importance of this debate. I am very pleased to participate in a debate of such a very significant nature.
I want to begin by commending my colleague, the hon. member for Mississauga South. I know he has been a tireless worker with respect to issues such as this one. I know the particular motion comes from a very purist and principled motivation to protect children. I could not embrace in a more enthusiastic way anything that we as legislators and we as members of parliament do that will enhance protection for children.
The motion would amend subsection 163(8) of the criminal code. It would basically tighten up an existing definition. Without casting any aspersions at all on what the hon. member is trying to accomplish, that current section sets out significant protection for individuals who would be victims of exploitation under this type of activity. However, as has been referred to, there is certainly a need to have clarity in this type of legislation and in some cases to provide some direction for judges who might interpret too broadly this type of activity.
The references to the case that is pending before the supreme court, Queen v Sharpe, was highly publicized and received a great deal of response nationally although it arose out of a court in British Columbia. It has sparked very much a debate and a need to revisit this type of legislation. Anything that would depict children in such a way as to be defined as pornography or exploitive is something on which we have to move swiftly and very starkly to oppose.
My only regret, as this case has progressed through the courts and has been argued before our justices of the supreme court, is that the Minister of Justice did not act in a more swift and decisive way to refer the case immediately to the supreme court so that the decision would have been made and the signal would have been sent.
Any suggestion that the possession of child pornography, let alone its production and distribution, is constitutionally valid is asinine. Any type of activity that leads to the production of child pornography obviously has to be what has created the opportunity for someone to possess it. It is not beyond logic to follow that someone had to produce it for a person to be in possession of it. We have to send a clear message that it is absolutely offside.
The current practice is to let these matters progress through the courts. As the hon. member has stated there may very well be the need in the near future, if things do not go as they should in the supreme court, for the government to act swiftly and to invoke the notwithstanding clause. We know that is a very severe intervention and it is one that is very rarely implemented. It is the equivalent of a legislative nuclear bomb. It brings in a legislative bar on further discussion on the particular issue and suspends any further litigation in that area.
This issue is of importance. I agree very much with the commentary we have heard already on the subject matter before us. I agree wholeheartedly that it is a perfect example of something where parliament should very much consider, if need be, invoking the notwithstanding clause. I know we can all speculate and that there is not a great deal of merit in doing so at this time, but let us hope that step will not be necessary.
When we are dealing with issues that involve charter rights it is something that we have to contemplate carefully. There are fundamental freedoms which are very much protected by our charter. I am sure the Chair would agree that the charter has also led in some instances to very perverse decisions where community rights are used to stomp on individual rights and vice versa. Individual rights are often displayed in such a way that the majority of people are very much taken aback by a court's decision.
The law is and has been referred to many times as a living tree. We have to be careful when we cross into the area of legislators telling or restricting judges in what they can and cannot do. I for one still have a fair bit of faith in our judiciary. We have some very talented judges. Just like it is not popular to defend politicians, it is sometimes not popular to say that we have some very able and very competent judicial minds.
However, there is ample evidence to suggest that when it comes to children and the protection of children there are times when it is incumbent, not just our responsibility but our absolute right, to intervene on behalf of children. I can think of many instances where that is the case. One that comes to mind quite quickly is the potential change to the criminal code with respect to conditional sentences.
Conditional sentences should not be handed down by judges when it comes to sentences for sex offences, offences of violence or offences against children. That is something that should not be contemplated. I am sure it was not contemplated when the legislation was passed. The government should very much consider revisiting the particular issue.
Similarly I think we can do more to protect individuals from sex offenders. I have a private member's bill before the House that would amend the conditions of probation which attach under section 161 of the criminal code with respect to putting a bar on a sex offender attending a private dwelling house when a child is present.
There are more examples of what we can do to tighten up and very much close in on anyone who would cross that line and harm a child. It goes without saying that the harm done to a child by even the mildest display of violence or sexual intrusion carries with that child for life. It is a life sentence imposed and has absolutely drastic and far reaching effects on the life of a child.
This type of debate is very useful when it comes to looking at these types of issues, examining what more we can do. We in this place are tasked to do everything we can to protect young people, people of all denominations, ages and creeds across the country.
I believe the hon. member would very much agree that we should have a national strategy to combat child pornography. We should be doing more to study this area. We should have a national databank with respect to those who are convicted of pedophilia and crimes of such a nature.
We could do a great deal more if we had a national sex offender registry that would inform those who are most at risk. We know that the use of the Internet, the use of modern technology, allows us to expand the horizons of information and availability. Technology has broken down many barriers in terms of making information available.
There is much to be done. We should have legislation that would allow for testing of sex offenders for communicable diseases such as AIDS. That is another suggestion I am sure many members of the House would embrace.
Fundamental changes can be made. I think the hon. member is moving in the right direction with his suggestion under this motion. Obviously a lot can be done. One of the greatest fears against which we have to be guarded is the creeping complacency or apathy that exists, desensitization by the prevalence of pornography and violence and its perpetration as some form of art. We have to do more to ensure that this is not the case in the House. That is not what Canadians expect us to do. Although I am very quick to point out that freedom of expression is something we always have to be conscious of and respect, freedom of expression never involves the exploitation of a child.
I have no doubt that we will be discussing the Sharpe case again at some point in the future. As I have indicated, I hope it will not come to pass that it will be incumbent upon this government or any government to intervene with the notwithstanding clause. Should that happen, I expect that the hon. member will echo the remarks he has already put forward. I support him in that. The charter is there as a shield and a sword. Similarly we have to be prepared to use the particular piece of legislation when it is necessitated, when it is incumbent and when it is proper.
I support the hon. member in his efforts. I commend him and congratulate him again for bringing the matter forward. Debates of this nature help Canadians to understand the issues. They help in furthering the drafting and presentation of legislation that would improve the protections which currently exist in our criminal code. In conclusion, I support the matter and I fully hope that all members of the House will do likewise.