Mr. Speaker, Motion No. 69 is a private member's motion. It is non-votable which means that this matter is here for debate tonight. I want to take some latitude simply because the issue of pornography, particularly child pornography, has seized Canada with regard to a particular case which has now been appealed to the Supreme Court of Canada.
Canadians generally support prohibitions and restrictions with regard to pornography. There is some concern that there is direct causal harm. The problem is that there are others who argue very strenuously that there is no significant evidence that there is a causal relationship between pornography and actual physical harm significant enough to justify infringement on the constitutionally guaranteed freedom of expression. That is the issue, freedom of expression.
I believe that in our laws today, freedom of expression and the rights of the individual continue to be promoted by the courts. It continues to be argued that individual rights in fact are now in conflict with the greater good, the greater right, and of the society as a whole. That is a serious issue.
Harm is said to flow from pornography in two ways. First, it is theorized that there is a direct causal link between violent pornography and violence against women so that such material can act as a trigger to aggression. Second, it is said that pornography contributes in a general way to the myths about sexuality and about women which ultimately makes violence and degradation more acceptable to a society as a whole. It can however be difficult to find objective proof of the harmful effects, according to some.
There are three potential sources of proof available. The first is anecdotal evidence. Police or press reports may say that a sex offender was a habitual consumer of explicit material or victims may claim that their assailants had been influenced by pornography. The second is statistical evidence which attempts to show a correlation between the prevalence of pornography and the incidence of violent crime. The third is experimental evidence, accounts of experiments which attempt to measure the reactions of individuals to the stimulus of pornography, particularly aggressive or violent material.
Anecdotal and statistical evidence suffer from the defect of being unable to establish a causal link between pornography and violence. The Library of Parliament produced a little report for me. It notes that the presence of such material may be merely symptomatic of antisocial behaviour rather than its cause. It also points out that some research has purported to show that many rapists report having little exposure to pornographic material.
As for statistical evidence, rates of sexual assaults have increased but not significantly more than those of other forms of crime. In any event, establishing a statistical link of this sort is extremely problematic.
As I was researching this subject matter I came across an article in a publication of Focus on the Family called “Citizen”. It talked a bit about the harm effects. The article which is dated May 1999 states:
Pornography is a root of all kinds of evil. A 1988 study by Queen's University psychologist Dr. William Marshall found that 86% of convicted rapists and 77% of convicted child molesters admitted to being regular or habitual users of pornography. According to one journalist who covered the trial of Paul Bernardo, convicted in 1995 of kidnapping, torturing and brutally murdering two teenaged girls in Ontario, “the most frightening realization” was the appetite he had developed for hard core pornography as a teenager, to the point that he eventually graduated “from using it to doing it. Bernardo's trial was, in part”, she concluded, “a trial about pornography”.
These are the kinds of things which I suspect motivated me to bring this issue to the House in a way in which it would promote discussion and maybe some thoughtful consideration by members of parliament about the issue of pornography.
In the Criminal Code of Canada the word pornography is actually not there. It is the word obscenity. I would like to read into the record what constitutes obscenity In the Criminal Code of Canada. It states:
For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
It is legal language but it basically says that violence, crime, horror and cruelty in themselves are not obscene. It says that if there is a sexual activity and it is in conjunction with crime, horror, cruelty and violence it shall be deemed to be obscene. It struck me that it is very difficult to segregate obscenity on the basis that there must be sexual content.
As a consequence, I drafted an amendment to the existing criminal code definition of obscenity which tried to do a couple of things. I have had some input from others that maybe some of the language is not absolutely necessary. The principal change within the definition that is being proposed is that it makes obscenity, whether it is 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 am well aware that this is a significant change in the definition. The issue for me has more to do with social values and the tolerance and standards which society establishes for itself.
Evidence has clearly shown that the prevalence of pornography in our society continues to grow. Consider what has happened in the past 20 years. We have evolved to a point where pornography involving adults is broadly acceptable within society, but add a child to it and the entire country is outraged. It is amazing to me that to achieve the age of 18 would all of a sudden somehow change the social acceptability of pornography. I do not think so. Yet socially, adult pornography has been a massive industry.
I wanted to raise this issue with the House of Commons because I felt that the whole question of dealing with child pornography had to take into consideration the social realities with regard to adult pornography.
I have raised it and I will be interested to hear members' questions, but I want to leave it at that, only because it is now on the floor and in the hands of the members to deal with if they want to talk about it.
I want to make some comments about the B.C. court case in which John Sharpe was acquitted of possession of child pornography. It spawned an outrage right across Canada.
Members of the House will know that the consequence of the original decision was basically to strike down the laws with regard to the mere possession of child pornography in the province of British Columbia. At the same time, the laws of Canada remained intact and were in place in all other provinces and territories. However, that did not matter because the laws of Canada were under attack. As a consequence, there was an immediate appeal to the B.C. courts on the same matter.
Again, after all of the consideration and after all of the outrage that was expressed by Canadians, the B.C. appeal court upheld the decision of the lower court and basically tore down the law. It did not sustain the law of Canada with regard to the possession of child pornography. The case is now before the Supreme Court of Canada.
The case was originally heard in January 1999. On June 30 the B.C. court of appeal upheld the decision. It was a two to one decision. Madam Justice Mary Southin and Madam Justice Anne Rowles felt that the current law was an unreasonable violation of the guarantee of freedom of thought, belief, opinion and expression contained in the charter of rights and freedoms.
Here we are back to the fundamentals. It is the rights and the freedoms of the individual in conflict with societal values and the tolerance level for what constitutes an undue exploitation, in this case of children.
There has been much written about this case. Much of it refers to the legislation that was put in place in the 34th parliament with regard to child pornography. It was admittedly a rushed piece of legislation. It was a piece of legislation which many criticized as being so broad that it would even constitute a violation if a person had certain thoughts. Certain things written in a diary could be subject to problems within the law.
This is a very serious situation. I wanted to raise this aspect of the discussion of pornography because in a short time we will hear from the Supreme Court of Canada and I have some fears about that.
In the B.C. appeal court Chief Justice Allan McEachern disagreed with the other two judges. He believes that the harm caused by child pornography justifies handling the law. This question of cause and effect and is there harm is a very serious issue.
I had an opportunity to discuss this issue with the justice minister so that I could better understand some of the nuances of the law and the judicial system. My view is that the protection of children is enhanced by the prohibition against simple possession of child pornography. I cannot state it any more simply. I believe that the protection of children comes before the rights and freedoms of the individual guaranteed by the charter of rights and freedoms.
It is in conflict, I suppose, in terms of a statement; but in terms of a value system I believe that the starting point in this discussion, the starting point with regard to the legislation, has to be with the children.
In the event that the supreme court appeal is not successful—in other words, the decision of the B.C. lower court and the court of appeal that Mr. Sharpe is not guilty because it was an intrusion of his rights and freedoms—we have the opportunity to do something under section 31(1) of the charter, commonly known as the notwithstanding clause.
The Minister of Justice, in response to the B.C. court of appeal, said that the notwithstanding clause should only be used as a last resort and only after every available legal recourse has been exhausted. I tend to agree with the justice minister. I believe that the notwithstanding clause is for extraordinary circumstances. I do believe, though, that should the supreme court render a judgment which does not uphold the laws of Canada, it should be dealt with by a swift response of the government in invoking the notwithstanding clause and then dealing with the points of law or legislation which the courts have identified as leading them to render those decisions and make those corrections.
I do not believe it would be appropriate for us simply to accept the supreme court decision and continue to study or ponder the consequences. I do not believe Canadians would tolerate a protracted consideration of a negative supreme court decision.
I want it to be dealt with promptly. I believe I have the support of colleagues in this place. I believe that members in this Chamber would say that the notwithstanding clause is our first available option with regard to a negative supreme court decision. I hope we will be able to have that consensus in this place so that we can act swiftly when a decision comes down.