House of Commons Hansard #94 of the 36th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was pornography.
Canadian Tourism Commission ActGovernment Orders
The Acting Speaker (Mr. McClelland)
It being 5.30 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at the second reading stage of Bill C-5.
Call in the member.
(The House divided on the motion, which was agreed to on the following division:)
Division No. 1289Government Orders
The Speaker
I declare the motion carried. Accordingly the bill stands referred to the Standing Committee on Industry.
(Bill read the second time and referred to a committee)
The House resumed from May 9 consideration of the motion that Bill C-24, an act to amend the Excise Tax Act, a related act, the Bankruptcy and Insolvency Act, the Budget Implementation Act, 1997, the Budget Implementation Act, 1998, the Budget Implementation Act, 1999, the Canada Pension Plan, the Companies' Creditors Arrangement Act, the Cultural Property Export and Import Act, the Customs Act, the Customs Tariff, the Employment Insurance Act, the Excise Act, the Income Tax Act, the Tax Court of Canada Act and the Unemployment Insurance Act, be read the second time and referred to a committee.
Sales Tax And Excise Tax Amendments Act, 1999Government Orders
The Speaker
The House will now proceed to the taking of the deferred recorded division on the motion at the second reading stage of Bill C-24.
Bob Kilger Liberal Stormont—Dundas, ON
Mr. Speaker, if the House would agree, I would propose that you seek unanimous consent that members who voted on the previous motion, with the exception of the hon. member for Haldimand—Norfolk—Brant who had to leave to attend another meeting, be recorded as having voted on the motion now before the House, with Liberal members voting yea.
Sales Tax And Excise Tax Amendments Act, 1999Government Orders
The Speaker
Is there agreement to proceed in such a fashion?
Jay Hill Reform Prince George—Peace River, BC
Mr. Speaker, members of the Canadian Alliance will be voting against this motion.
Stéphane Bergeron Bloc Verchères, QC
Mr. Speaker, members of the Bloc Quebecois will vote against the motion.
Yvon Godin NDP Acadie—Bathurst, NB
Mr. Speaker, members of the New Democratic Party will be voting no on this motion.
Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS
Mr. Speaker, members of the solid Progressive Conservative Party will be voting no on this motion.
Jake Hoeppner Reform Portage—Lisgar, MB
Mr. Speaker, I vote no on this motion.
(The House divided on the motion, which was agreed to on the following division:)
Division No. 1290Government Orders
The Speaker
I declare the motion carried. Accordingly the bill stands referred to the Standing Committee on Finance.
(Bill read the second time and referred to a committee)
Division No. 1290Government Orders
The Speaker
It being 6:04 p.m., the House will now proceed to the consideration of Private Members' Business as listed on today's order paper.
Paul Szabo Liberal Mississauga South, ON
moved:
That, in the opinion of this House, section 163 of the Criminal Code should be amended to reflect a new definition of obscenity as follows: “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.”
Mr. Speaker, I am pleased to speak to my Motion No. 69 regarding the issue of pornography.
Today in Canada sexually explicit material generally characterized as pornography is more available, more explicit and more violent than ever before. Most Canadians support the prohibition or restriction on what is considered beyond society's level of tolerance. Pornography is viewed as amoral and that it portrays sexes and their relationship as basically repugnant. It is also considered to cause harm and as a result, strong legislation is considered appropriate.
On the other hand, there are those who would argue that there is no convincing evidence of any causal relationship between pornography and actual physical harm significant enough to justify infringement on the constitutionality guaranteed—
Svend Robinson NDP Burnaby—Douglas, BC
Mr. Speaker, I rise on a point of order. Could the hon. member just indicate the number of the motion so that I might follow the debate carefully?
PornographyPrivate Members' Business
The Acting Speaker (Mr. McClelland)
It is Motion No. 69.
Paul Szabo Liberal Mississauga South, ON
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.
John Reynolds Reform West Vancouver—Sunshine Coast, BC
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.
Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS
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.
John Maloney LiberalParliamentary Secretary to Minister of Justice and Attorney General of Canada
Mr. Speaker, I am very pleased to have the opportunity this evening to speak to Motion No. 69 introduced by the hon. member for Mississauga South.
The motion seeks to amend the current definition of obscenity as it appears in subsection 163(8) of the criminal code as follows:
“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 praise the member for his efforts to protect Canadians from any material containing violence. He is well known for his work in this area and I congratulate him. However, I am not sure the aim of the motion is clear enough.
First, let us examine the effect of the proposal before us. The proposed definition of obscenity would extend the notion of obscenity beyond the bounds of its common understanding. The current code definition requires the undue exploitation of sex or the combination of sex and at least one of violence, horror, crime or cruelty in order to be considered obscene.
Obscenity is understood to include some notion of sexual immorality or indecency. The proposed definition of obscenity in the motion would include materials that unduly exploit violence, crime, horror or cruelty alone. To include within the definition of obscenity strictly violence, horror, crime or cruelty would not fit in within the common and legal understanding of the concept. Other changes to the current definition of obscenity proposed by the motion would have little or no effect on the manner in which the term is currently applied.
The replacement of the word publication with matter or thing is not necessary. The courts have already held that the definition of obscenity in subsection 163(8) applies to all matter whether or not it is a publication. There is no need therefore to make this change.
Second, the addition of through degrading representation of a male or female person is also unnecessary because it is included within the judicial interpretation of the current definition of obscenity.
As has been referred to tonight, the Supreme Court of Canada said in R. v Butler that material which depicts explicit sex without violence will usually also have to depict degrading or dehumanizing treatment in order to be constitutionally prohibited.
As mentioned by the court, explicit sex that is not violent and not degrading or dehumanizing is generally tolerated by society and will not qualify as undue exploitation of sex. Where there is undue exploitation of sex alone, therefore, it is unnecessary to specify that it includes degrading representations because that is implicit in the context of undue exploitation based on the interpretation given by the Supreme Court of Canada.
The motion also proposes to add the phrase “in any other manner” as a qualifier of undue exploitation. The type of manner contemplated by this wording is unclear but it would appear unnecessary as well. For reasons similar to those I have already referred to, the provision as it currently appears in the code leaves the notion of undue exploitation unqualified so as to allow for more flexible interpretation.
The definition proposed in the motion would qualify the phrase undue exploitation with through degrading representation of a male or female person, with the result that the possible interpretations of the phrase would be narrowed. It then attempts to broaden the definition with the addition of the phrase “or in any other manner”. This addition is unnecessary and needlessly complicates the current wording with the possible result that judicial interpretations of the new definition may not turn out to be what the motion seeks to realize in proposing this definition.
Just like the hon. member, we want to protect children from the harmful effects of material containing violence. But there may be other, more efficient ways to go about it than to legislate.
First, we must trust the conscientiousness of Canadian parents to adequately supervise the activities of their children and regulate the types of materials to which their children are exposed.
In addition to parental supervision, the broadcasting industry has adopted a voluntary code regarding violence in television programming to respond to the public's concern over the issue of violence in the media and in society in general. The voluntary code states that:
It is the responsibility of the broadcaster, the regulator, the cable operator and cable delivered programming services, in conjunction with parents, teachers and individual viewers to work cooperatively to inform and educate society on how to best manage this technological revolution which has created an endless video buffet of programming choices.
While the government must certainly play a role in protecting children from the harm occasioned by violence in the media, all sectors of society must work co-operatively to achieve this goal. The criminal code is a blunt instrument. It is not the sole instrument or even the most effective instrument available to deal with social or moral behaviour. It may be used to deal with certain discrete types of behaviour but we must resist the tendency to rely too heavily on it as a panacea for all that we wish to repair in our society.
In conclusion, I would also like to join with other members in thanking this hon. member for his contribution to the debate on this subject.
Roy H. Bailey Reform Souris—Moose Mountain, SK
Mr. Speaker, I want to say, particularly to those people looking in across Canada, that they indeed should pay tribute to the hon. member for Mississauga South for bringing this motion before the House. No other issue has brought more attention from across Canada than this issue.
Frankly, I totally disagree with the parliamentary secretary. What he is doing is giving credence to an issue that goes beyond any reasonable doubt about the content and how the courts should act.
We have an issue that the lower courts and the supreme court of B.C. have agreed on. It is now before the Supreme Court of Canada. The question Canadians want answered is, what happens if the supreme court agrees with the two lower courts? Canadians from coast to coast are worried about that. Is it not the responsibility of the House to draft new legislation? It cannot be any clearer than it is now.
The only recourse we have is the notwithstanding clause. If that clause was to be used only on rare occasions, then this is that rare occasion. How can any elected official in this House not know full well that when those pornographic films are made somebody's child or grandchild is being abused? I cannot believe the defence of the system. It simply goes beyond my imagination.
The motion introduced by my hon. friend is a new definition for obscenity. Obscenity takes place in many different ways. How far does freedom go when the two lower courts of B.C. based their dismissal of the case on the grounds of freedom of expression?
Let us take freedom of religion. If we look around the House we see people of different religions. No one for one moment would accept a member of the House criticizing a Jewish member and using degrading representation or degrading remarks. The member would be called totally out of order. However, out in society and in the media it is fair game to attack one religion, that religion being Christianity, and it is all done in the freedom of expression. It is even creeping into the House.
A reporter came up to me the other day and asked me what I thought about the baggage a leading politician was carrying. I told him to wait for a minute and then I asked him what he thought about the baggage I was carrying. He said that I was not carrying any baggage. I told him that I happened to believe in God, in prayer and in fellowship, and that I too volunteered my time as an administrator for a private Christian school. He asked me why I called that baggage. We are allowing this in many different ways.
The supreme case under the charter of freedom of expression has allowed two court decisions to make a mockery out of decency and a mockery out of everything that this country has ever stood for since Confederation. We cannot pass the buck by simply saying that we have to train the parents or we have to stop it on TV. We have to say to the courts that this House is supreme when it comes to decisions like that.
What will we do, I would ask the hon. member? I congratulate him for bringing this forward. I have never had so many cases of representation.
I would say to the hon. parliamentary secretary and government members opposite that if they had a free vote they would bring in the notwithstanding clause just like that. They would bring it in tomorrow if they had to. This is not a party thing. It is a thing of principle, of morality and of decency. However, here we are in limbo. We will let the courts decide.
In the meantime, possession of pornography is legal, and by information that I have been able to acquire, it is growing. Why would it not grow? If it is legal in B.C. it will soon be legal all over the country. Hon. members should ask the RCMP and their police forces. It is growing.
Hon. members may think I am carrying some baggage. They may also think that what is happening in this country is all right. We know about the interference with the clergy at the Swiss Airlines memorial. We know that people were told what to do. That was interference in the freedom of religion. Now, under the guise of freedom of expression, we sit here as legislators with the possibility of the supreme court agreeing with the two lower courts on this terrible issue.
After the passing of the charter of human rights, one of the supreme court judges said that they would finally get a chance to make laws.
Our whole democratic system is built on the principle that there is a big stone wall between the legislature and the judiciary, but we are quite willing to let the judiciary do its thing and make rulings that affect the lawmakers of this land.
In closing, I want to congratulate the hon. member. When the decision comes down and then comes before the House, I know where he will stand. He will stand in defence of children. He will stand against child abuse. He will stand against pornography.
When I was home in Saskatchewan for the weekend I experienced a big debate in the provincial legislature on pornography. This debate was not about child pornography. It was about a crown corporation and the government giving money for the production of a pornographic film of gays and lesbians to be shown at government expense. This is freedom of expression. This is wrong. Nobody can defend it.
I want to say to the House and to people across Canada that they should rise up and take control. Canadians elect us. They should say that it is not up to anyone but the people in this place to make the laws. They should say that it is up to us to protect the people with the laws, not to interpret according to some feelings of the people needing to be politically correct.
We are so worried about being politically correct that we have become obscene within ourselves. Let us face indecency, corruption and immorality the way we should. We should not be passing the buck. It is our responsibility to do it in this place.
My hon. colleague in the Conservative Party and my hon. colleague in my own party have spoken. There will be no change. I say to the member for Mississauga South that when this issue comes up again he can bank on my party's full support in what he is doing.
Paul Szabo Liberal Mississauga South, ON
Mr. Speaker, I thank all my colleagues who took the opportunity to participate in this debate on an issue that will unfortunately continue to seize this place.
I know that the question of the Sharpe case will certainly be one that we will be waiting in anticipation for from the supreme court. It is certainly our wish that the court will uphold the laws of Canada to make possession of child pornography illegal and that we will be sustained.
Hopefully, from all three levels of the courts, we will have received input with regard to those areas of the existing legislation which may lead to this kind of problem where there is some ambiguity as to whether or not those laws are an unnecessary and undue infringement on the rights and freedoms of individuals.
Some things that were said in the House today were useful and constructive. From that standpoint, I feel that Motion No. 69 served a purpose.
The parliamentary secretary took me to one other dimension of this whole issue. He talked about the role of parents. There is no question that we all have to be part of the solution. We cannot legislate morality. We cannot legislate behaviour. All we can do is provide some of the thinking and some of the principles under which we should guide Canadians.
Let us look at the case of David Trott, the 20 year old B.C. man who has been charged with the murder of Jessica Russell, a nine year old child. This is a very tragic case. We have to look at the facts not at the victim, which in itself is a terrible tragedy. When we look at the accused, he is somebody who is 20 years old and has a criminal record that would make anybody understand that this is a serious problem. He is also a person who was sexually abused as a young child. It is linked to this debate.
What happened? This 20 year old Canadian was born with fetal alcohol syndrome. He is a person for whom there is no recovery. He has permanent brain damage. He is a person who was physically and sexually abused. He is a person who dropped out of school and abused drugs. He is a person that anybody who has known him throughout his life has said that he is a bomb waiting to explode. They could see it.
Why have we failed in society to help people who cannot help themselves? As a consequence the tragedy is amplified by the tragic death of young Jessica.
These are the kinds of things I want to talk about here and I know many members want to talk about it. I throw it back to the parliamentary secretary and say engage parliamentarians in some of the principles that have to guide us in making the laws. Not only can we make good laws, but those laws can also be an inspiration to parents to provide the guidance to their children, and for those in society who are in the company of those children and for those parents to step forward and intervene in a constructive fashion as appropriate to make sure that these tragedies do not happen.
We have an opportunity to be a part of the solution. That is why Motion No. 69 came forward. It has been a constructive debate. I thank hon. members for their kind comments.
We know that the starting point is children. We know that the notwithstanding clause is the tool that parliament has in the event that parliamentarians do not agree with an unfavourable decision. We have to look at that seriously.
I raise this as another dimension of the debate on Motion No. 69 from the standpoint that as time goes on the House may find itself in recess when this decision comes down. I want to be absolutely sure that people start thinking today about what happens when that decision comes down and it is unfavourable. Have we got a clear understanding of the views of this place? If not, maybe we should.
PornographyPrivate Members' Business
The Acting Speaker (Mr. McClelland)
The time provided for the consideration of Private Members' Business has now expired. As the motion has not been designated as a votable item, the order is dropped from the order paper.
A motion to adjourn the House under Standing Order 38 deemed to have been moved.
Christiane Gagnon Bloc Québec, QC
Mr. Speaker, I am pleased to speak today on the subject of parental leave, further to a number of questions I have raised with the Minister of Human Resources Development.
The government's intentions with regard to making the system more flexible and to extending it to pregnant women and parents wanting to take maternity or parental leave are unclear. The minister talks of her desire to expand parental leave by doubling it. It would increase from 25 to 50 weeks.
In her answers, the minister says that the Government of Quebec broke off negotiations in 1997. We ask her to be of good faith in this exercise, to truly want to help parents by giving them parental leave, to extend a hand to the Government of Quebec so Quebecers may be entitled to parental leave as sought by the Regroupement pour un régime québécois d'assurance parentale. This group represents Quebec organizations.
I want to provide some information to the minister, because it is very nice to want to double the length of parental leave and let women look after their children for a year at home, but one must have the means to do so and be able to qualify for that leave.
We asked the minister to reduce the number of hours of work that is required. The minister says she wants to give more flexibility to her parental leave policy, but she should first take a look at the working conditions of women. Just take a look at the current reality in the labour force: women hold non-standard, temporary and part time jobs.
The figures confirm our concern about who can qualify. How many of those who qualify will be able to afford parental leave? We all know that the 55% provided under the federal parental leave program is totally inadequate. If women hold non-standard, part time or temporary jobs, their income is small; so, 55% of their salary during a year spent at home is totally inadequate. Obviously, the Minister of Human Resources Development did not look at the whole issue of parental leave.
The figures speak for themselves. Since 1997, when the changes were made, 10,000 fewer women than before have qualified for maternity benefits. Why? Because 700 hours are now required to qualify. That number has been reduced by 100 hours, but it had gone from 300 to 700 hours and, in the last budget, the government only reduced by 100 hours the requirement to qualify for parental leave. This is totally inadequate.
It is nice to be generous, but everyone knows that only 49% of women who are eligible for maternity leave take advantage of the additional parental leave, because they either do not qualify or cannot afford it. Very few women take the whole parental leave because they cannot stay at home too long, as their income is essential to balance the family income.
Who will be able to afford it? Those who work full time, those who have fringe benefits. Once again, a large percentage of the female population will be excluded.
I ask the minister to examine the whole issue of parental leave, to show openness and to negotiate, so that Quebec can finally implement its parental leave policy, which is far more generous. The federal government could have responded to Quebec's request for extended parental leave for self-employed women who want 70% of their income. That is the whole issue with regard to parental leave.