Debates of May 8th, 2003

Supply

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, I thank the hon. member for his intervention on this opposition day motion, including the issue of the definition of marriage. It is very helpful that he has reminded the House of some of the important history.

I personally have done some research in the last couple of years on the whole discussion of court made law. It does raise the whole aspect and the question of whether Parliament in fact is the highest court in the land.

We understand it is Parliament that does these things but even the Supreme Court of Canada has defined what is a free and democratic society and has laid out in its definition of what constitutes a free and democratic society elements which would encompass virtually every interest group in society. It leaves it so fuzzy that we could make an argument, like we do with regard to the Sharpe case on artistic merit and discrimination against a group because marriage cannot be applied to it. There is all this fuzziness and vagueness.

I would like the member's comments on this whole concept of court made law and whether Parliament is the highest court in the land.

[John McKay, Liberal, Scarborough East, ON]

Madam Speaker, the hon. member hits on an extremely important point. When I went to law school, and this was pre-Charter days I am afraid to admit, the issues were simply that a judge was there to interpret what was in front of him and to build on precedents that existed. That was the circumscribed area in which judges could deal with the cases in front of them.

With the advent of the charter, we have opened up that whole realm of interpretation and we have developed this concept of the living tree. This living tree sometimes, one would think perhaps just exactly what a judge wants it to be at any given time, allows a judge to interpret not only what he thinks Parliament meant but also what he thinks possibly the law should be.

That brings us four-square into the concept of the supremacy of Parliament. In some respects Parliament does have the “trump card” in the notwithstanding clause but it is a very crude idea and something that any government would be quite reluctant to use.

We are faced with the reality that Parliament may put forward a piece of legislation. However once we hit on section 15 and it is found to be discriminatory, whether it is intentional, we end up in a section 1 analysis and if it cannot be justified, then that particular law does not survive.

The hon. member asks a very important question and I think in some respects that is the root question that is behind this motion: Is Parliament still supreme? I think there are a lot of us saying that if it is supreme, it is not perfectly obvious that it is.

[Maurice Vellacott, Canadian Alliance, Saskatoon—Wanuskewin, SK]

Madam Speaker, I read an excellent article by Douglas Farrow, associate professor of Christian thought at McGill University. If others want to read it, it is in the Wednesday, May 7 National Post . It is entitled “Culture wars are killing marriage”. It talks about the particular proven social goods, these things coming with marriage, ”stability of community and property, of human reproduction and the care of children, of cross-gender and cross-generational bonding”.

Would the member want to comment on those particular social goods?

[John McKay, Liberal, Scarborough East, ON]

Madam Speaker, it was really interesting over the course of the hearings to start to unpack the reasons why marriage was the bedrock of our society. As one witness has put it, marriage is society's parent. It is not society's child. Therefore, no one can mess with it, including Parliament and the courts. That speaks directly to the hon. member's point that society benefits hugely from heterosexual marriage.

[Diane Ablonczy, Canadian Alliance, Calgary Nose Hill, AB]

Madam Speaker, I would like to let Canadians who are watching this debate know that we are debating a motion brought forward by my party, the official opposition, the Canadian Alliance. The motion reads as follows:

That this House call upon the government to bring in measures to protect and reassert the will of Parliament against certain court decisions...

Which ones are they? There are three. The first is rulings that would reverse the traditional definition of marriage as decided by the House to be, “the union of one man and one woman to the exclusion of all others”. This was decided by the House in 1998. The second ruling would grant house arrest to child sexual predators and make it easier for child sexual predators to produce and possess child pornography. The third ruling that concerns us and that we feel Parliament should deal with is one that grants prisoners the right to vote.

What I would like to add to the debate today is a discussion of a very important principle. The important principle is as follows: that it should be the elected representatives of the people in the House who decide the laws under which our society operates rather than appointed members of the judiciary who are not elected and who are not responsible or answerable to the people of this country. That is a very important principle.

I would like to point out why this is a concern. As I mentioned before, I was here and I believe you were here, Madam Speaker, when we had a debate and a vote a few years ago on the important issue of the definition of marriage. A majority of the House and the majority of most of the parties in the House upheld the definition of marriage as an institution, which is defined by the union of one man and one woman to the exclusion of all others. That was what Parliament decided. What has happened? As everyone knows, there have been recent court rulings which say that this decision by Parliament contravenes the charter and that the definition of marriage, according to these court rulings, must be changed.

With respect to the matter of house arrest, Parliament says that house arrest should only be given to people who do not pose a risk to society. What are the courts doing? In case after case house arrest, which is basically no punishment at all, is given to people who are a risk to society. A case in point is that of Ronald James Aucoin in New Brunswick who was twice convicted of child molestation and being a sexual predator. What was he given for causing this harm to innocent children? He was given 18 months house arrest. That was it. Therefore, our courts are using the law of this Parliament in a way that it was never intended to be used.

With respect to the law on child pornography, there are many sections of our Criminal Code which make it illegal and unlawful to produce and own child pornography. Yet in the well known Sharpe case the courts, right up to the Supreme Court, ruled that there was some artistic merit in this material and therefore the Criminal Code provisions, which we past in the House to outlaw it, were of no effect.

With respect to giving prisoners the right to vote, the elected representatives of the people of Canada have said that if someone breaks the law in significant ways and is imprisoned for it, and as we have just seen it is pretty hard to be put in prison for breaking the law so one would have to be a pretty serious criminal to be imprisoned, then that person does not get to pick the lawmakers of the country because that person is a law breaker. That is what our law says, as passed in the House. What did the courts say? They said that law was unconstitutional and we had to let violent offenders and lawless people vote and have full participating rights in our democratic society. This is a tremendous concern.

Let us remind ourselves of what this is all about. This is about a nice, little word called democracy. It is one that is thrown about with great abandon very often in our society. Yet what does it really mean? Do we think about that and do we really honour it with the way we order our society? Democracy means rule by the people. Because there are 30 million of us to come together and decide on all the things that we want to do to make our society a good, safe and well ordered society, we elect people to speak for us.

About every 100,000 Canadians elect someone like me to come to this place to consider the measures that must be taken to protect, to order our society and to put those into place. We represent 100,000 people, more or less. We are their voice to allow them to rule their own affairs and we are accountable to them. If we do something that the people who elected us do not approve of, then they can turf us out of office and have done so in the past. That is what democracy means.

If we get to the point, as we have, where judges decide that certain laws passed by the representatives, the voice of the people, can no longer be effective, then I submit that is undemocratic. That is completely and utterly a slap in the face to the democratic values and traditions that we claim to hold dear because judges are not elected. They are not accountable to the people. In fact they are appointed mostly by the Prime Minister. If the people of this country do not like the direction or the judgments that are made, there is nothing they can do about it.

I want to stop and make it clear at this point that this is not a criticism of judges. There is a huge number of very fine, committed, intelligent, capable people serving in our judiciary and we are very proud of our judicial system in this country. What is causing the problem is that instead of Parliament asserting its supremacy as the voice of the people in a democratic country, we have abdicated in many cases decision making and important interpretation of laws to the point where the interpretation becomes law making.

Not long ago we had a judge appear before our immigration committee and in the course of our discussion with him the judge said the following:

--I'm always concerned when legislation uses imprecise language because what you're saying to a judge is “You solve it”. You're asking judges, who don't have experience and who don't really have any background as to the real purpose of what Parliament is trying to do, to come up with an answer.

Language should be as precise as possible and I can only tell you that after almost 40 years of having to deal with provisions, particularly the Criminal Code provisions...legislation is getting more confusing every day.

One gets the impression that when the draughtsmen don't know what to do and how to solve a problem, they just use imprecise language hoping that someone will solve it some day.

He also said, from the point of view of a judge:

I would always welcome legislation that was precise and defined what we were supposed to do, rather than leaving it up to the judge to define, because then you get different judges having to define it and you have different interpretations. Then you need to go to the Court of Appeal for them to come up with a single definition, and from there you end up going to the Supreme Court of Canada, which may disagree with the Court of Appeal...many problems [are created]...

It is not only the people of Canada or members of Parliament who see this as a problem. It is the judges themselves and it is up to us to fix it.

An example of what the judge was talking about would be a bill that makes amendments to the Criminal Code intending to safeguard children from sexual exploitation. Supposedly, it would make it easier to prosecute sexual predators. However, in fact it does not. What the bill does is it takes the existing defences to possession of child pornography, and those defences are that it is of artistic merit, educational, serves scientific or medical purposes, or serves the public good, and repackages all of those defences into one single defence of the public good.

However, nowhere in the legislation from the House is the public good defined. What are judges supposed to do? They must put a definition in place because we did not have either the foresight or the intestinal fortitude to make it clear what we meant. Thus we have a situation where the court decides.

Here is what the Supreme Court said in the Sharpe case which supported a child pornographer possessing the most horribly explicit and degrading material involving children. The court said:

It might be argued that the public good is served by possession of materials that promote expressive or psychological well-being or enhance one's sexual identity in ways that do not involve harm to others.

How anyone could suggest that the creation of this material would not involve harm to the very children it preys on and degrades is beyond belief.

If the people of Canada or members of Parliament were asked whether this made sense and whether they wanted this to govern someone who could own or produce child pornography they would say no way, of course not. Yet, what we say does not matter because we have this vague legislation talking about the public good which puts the real power of determination into the hands of judges. In many cases the judges do not want this.

I would like to quote Abraham Lincoln from his first inaugural address where he said:

The candid citizen must confess that, if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

That is what Abraham Lincoln said 150 years ago. What have we learned? Here we are today making the very same mistake that Lincoln warned against in the early days of the formation of another great democracy in the United States. The decision that caused Lincoln so much problem was the infamous Dred Scott decision which created a constitutional right to own slaves. That is what the court had decided, even though the leader of the country said, no, we want an end to slavery.

The simple fact is that a constitutional document in the hands of the judiciary has the potential to undermine democratic institutions by taking out of the hands of the people the ability to make the most basic moral and cultural decisions.

If we were to do a survey of any group of Canadians not behind bars and asked, “Should violent criminals who have murdered, raped, mugged, robbed and otherwise abused the rights of innocent citizens be allowed to have all the rights and privileges of citizens in democratic elections?”, we would get a huge percentage of the majority of people replying, “Is this a joke? Why are we even being asked this question? The answer is no”.

Yet, we cannot have the will and the common sense of people on this important issue of who gets to choose our lawmakers. We cannot have the will of the people prevail because a small group of unelected, unaccountable people have decided otherwise.

The House has a duty if it cares about democracy, if it means business about what our country is all about, and if it means business about our values and traditions of a people free to rule and govern their own affairs through their elected representatives. We have a responsibility to fix this situation. There is a simple way to fix this situation. It is one that no government has ever been willing to do. We must access the clauses in our Constitution that would allow us to make certain that the will of Parliament prevails, like the notwithstanding clause.

We would say that notwithstanding any interpretation of the charter it is the will of the people of this country that prisoners do not vote. It is the will of the people of this country that the institution of marriage remain the way it is. It is the will of the people of this country that no one will be allowed to produce or to own child pornography because it is repugnant and repellant and because we have a duty to protect our children.

That is what we should be saying. We should be standing up for democracy and for the voice of the people, and saying this is the decision that will stand, period. It is not up to the courts to overrule by judicial interpretation what the House and people of Canada, by giving the House authority, decide is right for our society. That is exactly what our motion says.

The motion in its fundamental essence is in defence of the democratic principles and values that we claim to hold dear but are allowing to slip away, ruling by ruling, decision by decision, on issues that are fundamental to the way our society is ordered, fundamental to the way we treat each other, and fundamental to the way we protect our most vulnerable members.

No matter what side the House might come down on these judicial rulings and no matter that we know that judges are honourable people and try their anxious best to do a good job in the position they have been placed in, the fact of the matter is that it is completely wrong. No matter what the decision is, no matter the honour and integrity of the people making it, it is completely wrong in a democracy for unelected people to be making fundamental societal decisions that are not accountable in a democratic sense.

The House has the ability, the tools, the right, and the legal authority to put a stop to that. However, it is not willing to do that. Our motion urges the House to make the changes that would allow us to protect and reassert the will of Parliament. It is not only the will of Parliament; it is the voice and forum where the people are able to rule and govern their own affairs.

I urge the House to support the motion.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, I want to thank the hon. member for her contribution to the important debate today.

I wanted to ask her a question about the charter. I have often heard arguments concerning the Charter of Rights and Freedoms that everything it brought was not necessarily all positive, that it also brought with it some exposures. We have seen those exposures by the significant number of challenges against the charter.

I have often thought that if we have a list of something, there would be exclusions or inclusions. If we have a list then someone must be left off, otherwise there would be no need for a list. It would apply equally to all.

Therefore, in the case of the democratic rights and freedoms of any of the matters that we consider to be our rights, the charter should probably have said that all persons resident or on Canadian soil shall enjoy the protection of those rights under the charter, period. It would apply to everyone whether they are citizens, non-citizens, visitors, immigrants, refugees or whatever.

The member is well aware of the plethora of charter challenges on a variety of issues. Is Parliament now questioning whether or not the notwithstanding clause was a serious effort to recognize that there would be problems under the charter and that it was a necessary tool? Or whether in fact it was simply there as an accommodation which was never intended to be used, but that we would work through the evolution of the changes to our laws in Canada on a case by case basis? I would be interested in her comments.

[Diane Ablonczy, Canadian Alliance, Calgary Nose Hill, AB]

Madam Speaker, the member has raised a number of important issues.

I will respond to his last comment first. If the notwithstanding clause was meaningless, never meant to be used, then why was it put in? Surely we owe the people of Canada better than to toss in empty words and meaningless phrases.

I would argue that it is there for a reason. It is there because wise people recognized that there may be unintended consequences to the introduction of the charter, and that those consequences needed to be dealt with and that there had to be a mechanism allowing those unintended consequences to be dealt with in order to preserve the rule of the people in this country.

With respect to the list, it is my belief that democracy has as one of its tenets, the equality of all people before the law. It is not the equality of people before the law, including a whole bunch of things. As soon as we mention a, b and c, then people say what about d, e and f.

By including some people or some cases specifically, we are, whether intentionally or not, giving special recognition to those categories, those lists. That is wrong because it detracts from the clear principle that Canadians are equal before and under the law, and have certain rights as set out in the charter.

More than that, the charter has been used as a reason not to bring in effective legislation. One case in point is the desire to attack organized crime. We know from the shootings in Quebec, the problems in human smuggling, and other situations that are laid at the doorstep of organized crime that we must take steps to outlaw criminal organizations and participation in those organizations.

What happened? There is always a fear that the charter would overrule that law because it would take away from people's right to association. Parliament should say that notwithstanding the charter right to association it believes that criminal organizations must be outlawed and that no one should be permitted to participate in them. However it cannot say that. We have this cumbersome set of rules that is trying to get at these organizations and is not doing so directly.

Is the member asking, are there unintended consequences of the charter? That is a good example of where a clear evil in society, a clear problem in society, or a clear unsafe situation in society needs to be firmly and fairly dealt with, but because the charter and the interpretations of the charter are allowed to interfere with that the will of the people is thwarted.

This is definitely a situation where the notwithstanding clause should be put into place and state that, notwithstanding, we do not allow criminal organizations to operate with impunity in our society.

[Maurice Vellacott, Canadian Alliance, Saskatoon—Wanuskewin, SK]

Madam Speaker, because my hon. colleague is a lawyer I have a question along that line. A good article was written by Douglas Farrow, the associate professor at McGill University, in the Wednesday, May 7 National Post entitled “Culture wars are killing marriage”. He stated: “...the courts are actually ordering illicit alterations to the 1867 Constitution Act...”

He goes on to say that “marriage is not merely a union of two persons”. In fact, if we were to use that neutered definition of merely between two persons it would not be an institution at all but a legal fiction and an incoherent one at that. On the matter of marriage, he goes on to talk about judicial activism:

And then the courts will find themselves having to choose between Section 15 equality rights and Section 2 freedoms. This is not supposed to happen and the remedies for it are--as yet--virtually unthinkable. Some of these remedies, while claiming to balance Section 2 and Section 15, will dangerously erode freedom of speech, freedom of association, and freedom of religion.

Charter jurisprudence, I fear, has allowed itself to become a combatant in this culture war. That is why it has chosen to sacrifice marriage on the altar of a spurious equality right, and to attempt to resurrect it as “the union of two persons”. This is a futility in which Parliament is about to become complicit. If it does, it will only drag Canada deeper into a quagmire of competition between two incompatible visions for society: one which sees marriage as a tried and tested good which must be privileged, and one which out of jealousy refuses to privilege it, consequences be damned. Is it really too late to turn back?

Could the member respond to my question of balancing section 2 freedoms and section 15 rights--freedom of association, freedom of religion, freedom of speech, and this equality issue from section 15?

[Diane Ablonczy, Canadian Alliance, Calgary Nose Hill, AB]

Madam Speaker, I will answer that question by pointing out the bigger picture rather than addressing a specific issue.

The ever expanding authority that the charter is conferring on the courts, because Parliament refuses to reassert itself, has contributed to a fundamental shift. Whether we think that the authority of the charter has been used by the judiciary in a positive way or not, the fact is that there is a fundamental shift. Decisions with the legislative expression of the democratic institutions are discarded by the court and have lead to the conclusion that the judiciary is now exercising substantial political power, once vested only in the hands of elected officials.

Some, like the former Chief Justice of Canada, do not deny that this shift in political power is taking place, but simply say that this what politicians must have wanted when they passed the charter.

Other members of the judiciary are more willing to recognize that much of the current utilization of the charter is a political rather than a judicial exercise and caution constraint. However, the interpretation of the charter, as my colleague mentioned as it applies to the definition of marriage, to whether one may own child pornography or whether a law-breaker can vote in federal and democratic elections, any of those issues and more, is now allowed to be taken out of the hands of the people through their representatives and put into the hands of the judiciary. I do not agree with the Supreme Court Justice who says that this is what politicians wanted. I do not believe the people wanted that.

Our commitment to democracy is too strong and too much of a tradition for us to have knowingly just flung it off on a small group of appointed people. That was never intended.

To answer my colleague, if the people of the country, through their elective representatives, do not want to have the charter interpreted in a way that interferes with traditional institutions of our country, then there is one way for that to be stopped and that is for this House to use its legal power to reassert the supremacy of members of Parliament, and therefore the people of Canada and the democratic rights of the country.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, we are debating a motion which calls upon Parliament to bring in measures to protect and assert the will of Parliament against certain court decisions.

It is straightforwardly put and I have listened carefully to the debate. I am not a lawyer and in some instances that gives me an advantage because I can ask naive questions, rhetorical questions they may be, hopefully to stimulate debate.

Whenever members of Parliament come to the House to speak, sometimes what happens to be before the House when one is doing House duty may not necessarily be one's area of expertise. As a consequence parliamentarians are offered a plethora of background material, a little history, and a few words of wisdom that may help them to look at the subject matter before the House and participate in debate. I want to share with the House some of the background information that was given to parliamentarians.

In 1982, Parliament adopted a new Constitution and entrenched the Canadian Charter of Rights and Freedoms. The charter embodies the values of Canadians, and sets out our rights and freedoms. According to some recent surveys, up to 90% of Canadians see the charter as a symbol of Canadian identity and believe it has played a crucial role in protecting our rights and freedoms.

That is a wonderful statement and I think it is hogwash. It refers to a number of surveys where 90% of Canadians believed that the charter sets our rights and freedoms and is a symbol of our Canadian identity. I am not sure if 90% of Canadians are even aware of what is in the charter or what it means. They have probably seen a news flash or heard someone once say that, but I am not sure that Canadians were engaged in the charter when it first became part of the laws of the land back in 1982.

The charter is a very interesting document. The whole process that Canada went through to patriate our Constitution and to enshrine a Charter of Rights and Freedoms was a significant event in our history, but it was also a political event. It was an event that had some interesting political manoeuvering. There was posturing, negotiating and trade-offs.

I do not think that the patriation of the Constitution with a Charter of Rights and Freedoms was a result of extensive consultation with Canadians or with parliamentarians. It turned out in some cases to be simply the discussions of two people huddled away in a kitchen trying to cut a deal.

We know what happened there. We know that Quebec was not a part of it and was not happy with the result. The then Prime Minister of the day, Prime Minister Trudeau, said that we had better take a deal while we can get it and that was celebrated.

Most of the debate that I have heard today has raised some of the questions related to the charter and the fact that it has broken through another dimension of the legal and judicial system in Canada.

I took a law course when I was in university. I learned about precedents and about the different areas of the judiciary. I always remember the roles and functions of the judiciary basically being to apply the laws as the courts interpreted them, to look at precedent, and to maintain some consistency and stability within the application of the law.

Very slowly, as a consequence of the charter, the question of interpretation started to creep in and it went even further. I discussed earlier with a member here in the House the concept of a list. There are certain groups that have been identified. I have often thought that if there is a list of anything that must mean that something is not on the list. Otherwise we would say all things.

Canadians would probably agree that the laws of Canada apply equally to all. Our Charter of Rights and Freedoms does not say that in simple terms. It is more complex and this is where the lawyers come in. This is why I appreciate not being a lawyer in that culture because I can ask questions about my motivation.

If a case were to come up that identified potential grey areas within the laws of the charter, I would imagine that it would be interesting to go to the Supreme Court to try and shape the interpretation of an aspect of our laws or the charter and win a case to make a difference. Part of the profession is the identification of areas within the charter and our laws which must grow as society grows. We change, but maybe not for the better in all things. Because of what has happened, I could mention a few areas where the world is not a better place, and child pornography is one of them.

This aspect of court-made law fascinates me. A couple of years ago I asked the resources of the Library of Parliament to provide me with some scholarly papers on the debate about court-made law. How did this evolve? Suddenly the courts of the land were interpreting the laws in different ways such that there were consequences to the application of those laws.

There were also consequences to Parliament which made those laws in the first place. We have gone through a period over the last 10 or 15 years where our laws have been challenged on virtually every front. This is because more precedents are being set. Where do Parliament and the courts fit with each other? The briefing note stated:

By adopting the charter, Parliament and the provincial legislatures decided to make explicit the right of Canadians to go to court and challenge laws. The roles of Parliament and the courts do not conflict, but rather complement one another and Parliament remains a key stakeholder. Through the charter, Parliament has provided the courts with a lens through which to interpret the laws that it has passed.

This cannot be so because we are now faced with many different challenges. Parliament and the courts do not complement each other in this regard because there is disagreement. Parliament, for instance, disagrees with the definition of marriage. This Parliament has voted on two occasions in the recent past that marriage is defined as the union of one man and one woman to the exclusion of all others.

Bill C-23 contains a preamble which reaffirms Parliament's view, on behalf of Canadians and the social values of Canada, that marriage is the union of one man and one woman to the exclusion of all others. Others have come forward to say that it leaves them out because they want to be married and enjoy recognition like married couples because they too are in a loving, caring relationship, and they believe that a loving, caring relationship does not have to be a man and a woman. This certainly does touch some hot buttons.

I have often thought that when people in this place talk about being discriminatory by using a term like homophobic, that the term was being used as a negative. However, I have also heard the word discrimination used in a positive context such as a person being discriminating in wines because one wine is different from another. There are differences and we celebrate those differences.

It would be a shame if everything in our world was reduced to the lowest common denominator. We would then have to look at everything that we had. If some people had more money than others, then their money would have to be redistributed so everyone would get down to the lowest common denominator. It does not make much sense to make us all the same. If we were all the same, this world would be boring. If everything is important, then nothing is important. If everything is a priority, then nothing is a priority.

Can we not discriminate in favour of the traditional family being the biological mother and biological father with a child? Marriage is an institution which does not offend people. One of the previous speakers mentioned a comment taken from committee testimony describing marriage as society's parent, not society's child. We should think about that for a moment.

We must understand that the basic instinct of every human organism is survival of the species. That is the number one instinct of all species, either human or non-human. The number one instinct is to survive, to propagate, and to flourish. We do that as human beings by procreating. For years mankind has had the urge to propagate, to have children, to grow families, to create a society, and to build a family tree. These are not bad things. As a matter of fact, our society grew to the point where it thought so highly about the important roles of the traditional family, of child with biological mother and biological father, that it started to discriminate in favour of that traditional family by giving it child tax credits, family deductions, or assistance for child care.

Every law in our land is discriminatory. If all things were equal for all people and at the lowest common denominator, there would be no injustices for the laws to deal with. All our laws are discriminatory and that is not a bad thing. I discriminate in favour of seniors and the disabled who need help. I discriminate in favour of aboriginals. I discriminate in favour of high unemployment areas which need assistance in job creation or alternatives, as in the terrible situation we are seeing now in the Atlantic fishery.

Yet, people are going before the Supreme Court and other courts in the land saying they are being discriminated against. By this action we are slowly eroding the variety and the vibrancy of a free and democratic society. Change is good, variety is good, and differences are good. We should celebrate our differences. Do we all have to look and act the same? No.

Our Charter of Rights and Freedoms says that we are all entitled to be treated equally under the laws of Canada and we should all enjoy those rights, without qualification. Lawyers felt it was a little more interesting to make it a little different.

I will give the House an example. Today I received a communication from a colleague who thought he had something in a similar vein regarding some difficulty in a bill before the House. It was a question relating to values underlying a free and democratic society. The legislation uses this language which was borrowed from the Supreme Court of Canada because it is part of the values underlying a free and democratic society.

Let us look at section 1 of the charter as interpreted by the Supreme Court with regard to the values underlying a free and democratic society. They are described as follows:

--respect for the inherent dignity of the human person, commitment to societal justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

That is a mouthful, to say the least, but if members get a chance to look at the transcript and look at the statement again, it is a statement that arguably anyone could use to say, “I should be there”. In fact, the values of a free and democratic society are being defined by the Supreme Court of Canada as the consolidation of the values of each and every person individually and therefore everybody's values are there. But then we get into the problem that everything is important and, as I said, if everything is important then nothing is important. If everything is a priority then nothing is a priority.

Our value system cannot be a consolidation of everybody's values, because in a free and democratic society everyone has the right to have values and establish their own set of family, moral and social values. It does not mean that they reflect Canadian society's consensus on those values. Those values move over time and our laws will move to reflect them over time, but I must admit that there are certain things within our society which should not move.

This place is hypocritical if it does not put our children first. It is hypocritical if it does not uphold the fact that the existence of child pornography in any form constitutes an abuse of children and is bad for society. That is a value that has not changed and it should not be changed, so why are we now getting into things about someone who drew pictures from his or her imagination and there being artistic merit? If someone was in possession of photographs of children in compromising situations, clearly a matter of child pornography, why were they not charged for those pictures? Why were they also charged for drawings or for writings? It just opened a Pandora's box. I swear, Madam Speaker, if this was the intent, this was the perfect way to yet again open up this argument about child pornography.

There are certain values within our society that we should not abandon. I think that the issues with regard to protecting our society, our children, from the existence of child pornography and dealing with it in the strongest possible terms are unquestioned. It would pass 100% in the House in a plain, simple motion: Is that the value that we as parliamentarians want to defend on behalf of the Canadians we all represent? The answer is yes and yet the courts are discussing it, debating it and challenging it, and now we have legislation that talks about concepts such as public good. I do not need another vague definition. I do not need another uncertainty. I would rather split the case, split the bill, deal with the certainties first and let them play with their vagarities later on.

Finally, I think the debate has been useful from the standpoint of raising an important question, that is, it may be time for the question of the true supremacy of Parliament vis-à-vis the courts to be revisited. It is an important question. All people in Canada are represented by the 301 parliamentarians here. We have the opportunity and the resources as well as the responsibility to make ourselves aware of the views, opinions and values of our constituents, of all Canadians. When we bring them here, there can be no clearer voice than the voice of parliamentarians. I am sure that Canadians would agree that the laws of the land should be made by Parliament and not by the Supreme Court of Canada.

[The Acting Speaker (Ms. Bakopanos)]

It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for St. John's West, Fisheries; the hon. member for Renfrew—Nipissing—Pembroke, National Defence.

[John McKay, Liberal, Scarborough East, ON]

Madam Speaker, I want to thank the hon. member for Mississauga South for his able speech. I noted that it was almost without notes. I always admire someone who can speak without notes, but I have no such ability.

I will read from a Globe and Mail article of last week by Professors Katherine Young and Paul Nathanson. They ask a very interesting question and I want to hear the hon. member's response to it:

So why would marriage be harmed by adding a few gay couples?

For one thing, we would lack even the ability we still have to provide public cultural support for heterosexuality. It would become, at best, nothing more than one more “lifestyle choice”...and could then no longer be propagated in the public square--which is necessary in a secular society. In fact, propagating it would be denounced and could be challenged in court as discrimination--the undue “privilege” of a “dominant” class, which is a breach of...Canada's Charter of Rights and Freedoms. But discrimination to maintain marriage as it has long been defined should be allowed in view of the fact that marriage, as a universal institution and the essential cultural complement to biology, is prior to all concepts of law.

In short, redefining marriage would amount to a massive human experiment.

The article states that just as change in the Divorce Act showed compassion for a few 40 years ago, it set in motion social forces that are only being played out now. In fact, I remember both these witnesses. I also remember students from McGill University who talked about how they were the products of a divorce culture. Those forces were set in motion at least 30 or 40 years ago when we last experimented with marriage by changing the Divorce Act.

I will ask the hon. member this. On one level we really should ask ourselves what the problem is here. Why can we not simply admit a few gays to the institution of marriage? In fact, I think it will be a few; it will be a symbolic few. It will not be a huge number by any means, so what is the great harm? What is the problem here? Why should we not make this decision based simply upon a charter analysis as opposed to a larger social policy analysis?

[Paul Szabo, Liberal, Mississauga South, ON]

And, Madam Speaker, I have another 20 minutes.

It is a terrific picture with a number of dimensions. I do not consider this an issue of whether or not we should change the definition of marriage to allow a few gay couples to be married. In our society we have had some changes. We have had changes, for instance, in the rising number of common law relationships that are outside of the marriage bond, the licensed and registered marriage. There is a growing class of people who for their own reasons decide that they do not want to consummate a marriage in the same way that others do.

So the question really gets down to why we are making a big deal of it, because it is only a few people. It shows that there is a difference. Our statistical analyses of a broad range of problems has shown that there is a big difference between the value system of each of the groups as they evolve.

The breakdown and divorce rate of married couples is at about 40% in Canada. Common law couples split up 50% more often. Gay couples split up even more frequently than that. I do not have the numbers, but I know from businesses that provide benefits to declared same sex couples that they have to wait one year before they are eligible for those benefits, the reason being that the likelihood of a relationship lasting more than a year is very low. If it lasts a little more than a year, chances are that the relationship will be there for a little bit longer. In comparison to the lifestyle choices and the value choices, there is the longevity of the relationship.

Then we can look at domestic violence. The statistics tell us that numbers of people who experience domestic violence are highest in common law relationships and very low in married relationships. It is really interesting. It is almost like the commitment to the relationship is much stronger at the marriage end of the scale, it dilutes somewhat in the common law and then in the same sex partnerships there is less cultural commitment to long lasting relationships. The strength of the commitment is in direct correlation to the degree of difficulty and, even within the gay population, abuse. We get statistics there.

The other part is with regard to children. The common law relationship emulates the married relationship because it is a heterosexual union and procreation is part of the relationship. The only thing it really does not have is the formality of the registration and the licensing of that marriage. Again, some aspects of the benefits to those families are delayed for a year. Common law relationships and same sex relationships have to wait for a certain period before they qualify for certain benefits, whereas married couples immediately qualify. There is no question that in our laws we discriminate in favour of married couples because we recognize that commitment.

I would argue that what really matters, why we would not want to open it up and reduce it all to the lowest common denominator as just two people who love and care for each other, is that there are other differences in terms of the commitment to the relationship, the lifestyle description or the way those lifestyles are demonstrated. A married relationship, I think, is different in an historic sense. Had common law relationships continued to rise and married relationships seemed somehow to peter away over time, it would be different. However, that is not the case. Married relationships have stabilized. People are going back to getting married because they have found out that there is security and comfort in knowing that there is a relationship in which there is a commitment.

Let me leave the House with what I had written in a book on the definition of real love. This is kind of interesting. I thought real love, or some would say true love, was a situation where one puts the interests of the other ahead of one's own. It is an unselfish commitment in an unselfish relationship.

I found out that the biggest reason common law relationships were entered into so much more frequently than marriage was that they were easier to get out of than being married. If that is the reason then obviously the best interests of the other is not ahead of one's own. Therefore I tried to argue in this monograph that the quality or the degree of real love was less strong in a common law relationship than a married relationship because of the degree to which one puts the interests of the other ahead of one's own.

We could have a lot of discussion on this but if we were to look at the demographics in our society and the statistics on social problems we would see that married relationships are the healthiest places in which to raise children and the healthiest and safest places for women. Marriages contribute the most stability to a society, which we enjoy in Canada.

[John McKay, Liberal, Scarborough East, ON]

Madam Speaker, I want to reinforce the answer that the hon. member gave me. When we took in testimony we heard that if we took a five year segment for relationships and over that five years someone married, there was an 8% chance that the marriage would end in a divorce in that five year period. If, however, they first lived together and then married over that five year period, they actually doubled their chances of separation, which is a bit counter intuitive. In a similar situation, if two people lived together over that five year period, the breakup rate was 40%. That is five times greater than marriage, which is really an interesting statistic.

If we were to do what has been put to us, which is simply to say that marriage is an institution about love, that gender has nothing to do with it, then why cannot anybody be in this institution? It really should make no difference at all.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, I thank the member for the statistics. Marriage is not just about love. I think that the value within Canadian society of the marriage union has to do with children. It has to do with getting together. Our basic instinct is to procreate. It is to create a healthy society, to create families and to create family trees. It is not just about love. It is about reflecting that love in having children. That is the deciding point.

The member hopefully will find a way in which marriage can be described as something more than a caring relationship between two people, because the next thing that will happen is that we will have two university students sharing the same accommodation and saying that they really care about each other and want the same tax deductions.

[Betty Hinton, Canadian Alliance, Kamloops, Thompson And Highland Valleys, BC]

Madam Speaker, I will be splitting my time with my colleague from Regina—Lumsden—Lake Centre.

I would like to address my remarks to all clear-headed and decent Canadians, like those in Perth—Middlesex and in my own constituency. I think I can safety state that the people in these two ridings hold the same values and share a common philosophy.

Recent court decisions are a concern of most Canadians. Canadians do not hold our courts in contempt but Canadians think they have reason to believe that our courts have contempt for them, for their beliefs and for their values.

On the issue of child pornography, we witnessed the use of the defence of artistic merit. Where is the artistic merit in written or visual material that deals with the sexual exploitation of children? How could anyone buy the argument that graphic depictions of children being sexually manipulated against their will by savage predators has any artistic merit? Yet we have the court accepting this specious and brutal argument.

Decent and normal Canadians reject that argument because they know child pornography is clearly harmful to children and must be the subject of criminal prosecution. It is not only our right as parliamentarians, it also is our duty and moral responsibility to eliminate the defence of artistic merit by repealing that section of the Criminal Code.

Most Canadians have never seen or read any of this unspeakable material with no wish to be exposed to it. I have seen the light of innocence and trust in a child's eyes extinguished by the horror and pain of this terrible exploitation.

The Canadian Alliance invited the most senior Toronto police investigators from the child pornography squad to visit our caucus and give us their opinion on what was being done and what needs to be done.

To this day, those terrible, horrible, depraved photographs are seared in my memory and still tear at my heart. If I am impatient for change to our laws and angry when members in this chamber argue against this motion, I will explain that it is because I have seen the evidence.

Now the Liberals and their friends are going to attempt to further confuse Canadians. The latest scheme is to allow lawyers to argue that perhaps there is some public good to be found in child pornography. Public good and child pornography do not belong in the same sentence. There is absolutely no merit, artistic or otherwise, in child pornography. There can be no public good in it either.

It is simply repugnant to Canadians that the government would allow anyone to consider that somehow the public good can be served by the production and distribution of child pornography. How can the public good be served by such depraved material? How can the corruption of innocent children be considered some sort of contribution to the public good?

Canadians want legislation declaring child pornography indefensible on every level. They also want harsh sentences handed down to the guilty. While we are at it, we should raise the age of consent from 14 to 16, while maintaining the close in age exemption.

Why can we not give our children the gift of an extended childhood to give them the greater gift of freedom from legal exploitation? Why is it that the Liberals and their friends so harshly reject the notion that children under 16 deserve our protection? Why do the Liberals and their friends buckle in the face of Supreme Court decisions that rob our children of their innocence, trust, dignity and, most important, their childhood?

That old refrain of respecting court decisions is wearing thin. How can Canadians be expected to continue respecting our courts when they increasingly believe that our courts do not respect Canadians? We can remedy that right here in this Parliament. Insofar as child pornography is concerned, we can eliminate the defence of artistic merit in child pornography that is clearly so harmful to children.

This is the people's Parliament and children are people. Children are owed the love, the respect and the protection of their Parliament.

If all hon. members stand together in the House, we would be sending a message to Canadians and to our courts. That message would be very clear. Any obscene material, any pornography that depicts the exploitation of children is legally, morally and totally repugnant to Canadians and to their Parliament.

The other court decision that rankles us as well is the idea that pornographic sexual predators can serve their sentences under house arrest. It is totally unacceptable. What about children who walk up to that front door in all innocence or, even more frightening, a child who runs to that house for shelter against a threat? The inhabitant of that house could be just as dangerous, or more so, for that child than the one from whom he or she is trying to escape. It simply does not make sense. A criminal is a criminal and a child predator is most definitely a criminal. They belong in prison, not in the comfort of their own homes.

If Parliament adopted a national child protection strategy and allocated the necessary financial resources, we would be taking a step in the right direction.

Plain and simple, the priorities of Canadians are not the priorities exhibited by the Liberals. The police and crown lack the necessary resources to ensure the investigation and prosecution of child pornography, and related crimes receive the appropriate priority. What greater priority could there be than the safety, trust and innocence of our children?

I stress that this is not a partisan issue. It is simply and only an issue of children and their protection. How could anyone with a clear conscience stand and disagree? How could any member of Parliament turn his or her back on Canada's children? How could members look another child in the eye if they do not support what it is we are here speaking about today?

We have to stop child pornography. How could any member ever approach a voter, who is also a parent, and ask for that person's trust and vote if we deny them this simple right?

Let us switch to another part of the motion. I think the majority of Canadians are wondering why the Liberals and their friends here in Ottawa are eroding many of the cherished beliefs, values and standards of Canadians. It is no surprise that Canadians are beginning to wonder who is in charge of their country and their destiny.

Liberals should have the right to denounce or support the motion, this whole concept, if it is what they and their constituents deem appropriate, without having to ask for the authority of the whip or face party discipline.

Another part of the motion echoes again the beliefs of the majority of Canadians. Law-abiding citizens and victims of criminals do not accept that prisoners should have the right to vote in Canadian elections. Prisons are places where people pay their debt to society. The fact that they receive pay from society while in prison still baffles many Canadians, but that is an argument for another day.

There is not a thinking Canadian anywhere who supports the notion that prisoners should have all the rights and privileges of those who live outside the prison walls and within the law. There is not a thinking Canadian anywhere who would agree that murderers should enjoy the same rights as his victims.

It devalues the vote. In fact, it inflates the value of the prisoner's vote while deflating the vote of citizens outside the prison walls.

If the right to vote is held as an inalienable right, a right that people have fought and died to win or retain, what value does it hold when a mass murderer enjoys the same right?

The Liberals and their friends make a tired argument that criminals are victims of society. If that were believed to be true, then we would have a question to ask, and I would challenge any Liberal across the way to answer the question. What did some innocent, law-abiding citizen do to society to deserve a brutal and agonizing death at the hands of his or her murderer? What did the innocent victims of Paul Bernardo and Karla Homolka or Clifford Olson do to society to deserve their deaths at the hands of these beasts?

Canadians do not believe the argument that criminals are the victims of society. Canadians do not believe that a vote from within a heavily populated prison should swing the results of an election. Canadians do not want prisoners to have the right to vote.

This is a non-votable motion. Having heard many speakers from other parties, especially the Liberals, I am left pondering one question. Because of the Liberals, New Democrats, Bloc Québécois and Progressive Conservatives who argued against this motion, can we assume from that that they would not vote to protect children from being exploited at the hands of beasts involved in the child pornography industry? Do they believe that children at 14 years are old enough to be exploited by those who would do such things? Do they believe that Paul Bernardo, Karla Homolka and Clifford Olson should have the right to vote, the same as law-abiding citizens?

We will be reminding Canadians in the next election who stands where on the issue of protecting children. Right now it appears that the Canadian Alliance is the only party standing for Canadians.

[Larry Spencer, Canadian Alliance, Regina—Lumsden—Lake Centre, SK]

Madam Speaker, I am glad to rise today to bring the attention of the people across the land and the attention of Parliament to the need to stand and be counted against the decisions that are being made across the land in our courts that bring a threat to certain things. These are things like the definition of marriage, like making it easier for child predators to produce pornographic materials, like granting prisoners the right to vote, and one other which I might mention.

Judges are extremely important public servants and are well paid for their competence in the business of making decisions that affect the lives of individuals and families. However, interestingly enough over recent years judges increasingly and purposefully are influencing public policy through their edicts. At times they seem to be dictating to Parliament on what public policy should be and what are the best interests of the general public. Often decisions by the judiciary reflect the judiciary's own personal views of the will of society rather than a more accurate application of the law.

Only elected officials and Parliament have the authority and the role to establish public policy. This is supposed to be done through the passage of legislation in what we all want to be a democratic system of government. The role of judges is to apply the law, but it is not the role of the judiciary to create the law. Elected officials can be removed from office if they do not represent fairly the views of the people. They can also be defeated even if they are doing an outstanding job of representing their constituents.

That having been said, judges are both unelected and unaccountable to the people for the decisions they render. Therefore, judges' decisions must always be subject to the laws established by our elected representatives. Elected officials should bear the responsibility of demanding more effective accountability of the judiciary. In a government of the people, by the people and for the people, there must be a strong system of accountability built into each branch of the government.

There are hundreds of stories in this country of judges making decisions that are not mandated by the laws that they are to administer. There is definitely a problem within the realm of family law, for instance. In family courts many times the decision favours one party or the other without real justification. Time and again, husbands and wives going through personal divorce are then divorced from their own children by the decision of the court. In most cases this means that the father is no longer allowed to have adequate parental involvement with his own children. He effectively becomes divorced from his own children.

Rulings handed down by these activist judges likely would never be found to be charter-proof if they were written in law by Parliament. Both the judiciary and the Liberal government have turned a blind eye to this travesty of justice. They have both failed the families of this nation.

Controversial decisions or bad decisions are met with little or no public scrutiny. Is this fair? Now more than ever our country is in need of fundamental legal reform. These changes must be made through Parliament and not dictated by appointed judges.

Recently an Ontario court ruled that the definition of marriage, defined in tradition and in Parliament as being exclusively between one man and one woman, was unconstitutional because it excluded same sex marriages. The ruling shocked Canadians across the country who have for decades supported the traditional definition of marriage and valued the institution of marriage on religious and societal grounds. The ruling also shocked many federal representatives who only three years ago voted overwhelmingly in the House of Commons to uphold the definition of marriage as being between one man and one woman.

Following the Ontario court ruling, I joined with Canadians across the country in calling upon the federal government to appeal the Ontario decision and to defend the traditional definition of marriage. In addition, my office received a great number of phone calls, e-mails and letters from across the country and from residents of my riding.

Regrettably the Canadian Alliance was the only party actively working to encourage the government to appeal that decision. Elected members of the federal Progressive Conservative Party and the New Democratic Party remained strangely silent on the subject despite the number of Canadians who were calling for an appeal. The federal government struggled with its decision waiting until the last day to finally make the right decision and launch an appeal.

Just this month the B.C. Court of Appeal overturned a lower court decision and said that laws prohibiting same sex marriage are discriminatory. The ruling gave Parliament until July 12, 2004 to change Canada's marriage laws and is similar to other rulings in Ontario and Quebec. The minister is again hesitating to appeal this court decision, this in spite of his vote in favour of the 1999 resolution which was overwhelmingly passed in the House of Commons and which stated in part, “that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps to preserve this definition of marriage in Canada”.

The Minister of Justice is not following the will of Parliament's resolution. Interestingly enough, the current Prime Minister, the current Deputy Prime Minister and the wannabe prime minister all voted in favour of the resolution. It remains to be seen if the Liberal government will ever have the backbone to follow through on its commitment to take all necessary steps to preserve the institution of marriage.

The Canadian Alliance supports the definition of marriage as it currently stands. We believe that the government has an obligation to defend the longstanding application of the definition of marriage as was affirmed in the House by that overwhelming vote. An issue as important as the definition of marriage must be ultimately decided by elected representatives who can reflect the wishes of Canadians. It must not be left to unaccountable judges.

The John Robin Sharpe case brought out a very imaginative ruling. It ruled that the child pornography produced by John Robin Sharpe had artistic merit and was therefore legal to be possessed by that convicted pedophile. Decisions continue to lean toward protecting the criminal rather than children and families.

Yet another example of judicial activism was apparent when the Supreme Court recently allowed prisoners, including murderers and pedophiles, the right to vote. We in the Canadian Alliance believe that this court decision is fundamentally flawed. We contend that this court ruling is nothing more than a slap in the face to the ordinary law-abiding citizen.

In her decision the chief justice stated that the right to vote is fundamental to our democracy. I agree. However, is not the obligation to obey the law equally fundamental? If there is no respect for the rule of law, both our society and our institutions will deteriorate into a state of chaos. It seems absolutely ridiculous to me that we would give prisoners the right to continue to vote so that lawbreakers then have the right to select those who make the laws and write out the pardons.

I also believe that this decision is in violation of the Charter of Rights and Freedoms. The charter does state that reasonable limits may be placed on fundamental rights. It is ridiculous to say that we cannot interfere with the rights of a prisoner. What is incarceration? Incarceration is all about limiting a prisoner's rights. The charter says that we can do that so we cannot hide behind that excuse.

Political scientists have failed to see the importance of this Supreme Court ruling. They claim that the 12,000 prisoners to whom this decision will give the right to vote is too small a number to influence the outcome of the election. That is not the point. It is a matter of principle.

What has the court done by giving prisoners the right to vote? The easy answer would be that the court has diminished the value of citizenship and it has harmed the integrity of the democratic system. Perhaps the court should reconsider its actions. Most of all, perhaps the government should reconsider, step up to the plate and deliver legislation to reclaim the rightful place of this the people's House.

Canadians expect their elected representatives to have the courage to make important decisions even if it means tackling divisive questions head on. For too long the Government of Canada has stood back and let the Supreme Court usurp Parliament's role as legislator. It is time for Parliament to take responsibility and protect and reassert its will and right to be the lawmaker of this land.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, the motion asks the House to call upon the government to bring in measures to protect and reassert the will of Parliament against decisions of the courts that certain members do not agree with.

With the greatest of respect, I believe this reflects a fundamental misunderstanding of the role of the judiciary in our democratic process. In the proper functioning of a democratic society, it depends on a number of key participants. Under our Constitution, Parliament, the courts and the executive form those key participants. We enjoy a strong and free democracy because the sum of those three parts is greater than the whole.

It is also important that we maintain a healthy and continued respect among Parliament, the courts and the executive. That respect is undermined when parliamentarians engage in unfounded attacks on the judiciary and judicial institutions.

Canadians are justifiably proud of their Constitution. They are proud of the rights and freedoms they all enjoy and which the Constitution protects. They are also proud of our judiciary which has the difficult and sometimes unenviable task of deciding when those rights and freedoms have been violated.

Our judicial institutions are among the finest in the world. Other nations look to us as an example for developing their own judicial systems. Canada is a leader in preserving and promoting judicial independence. I for one, who has had an opportunity to see other countries struggling with this question, want to ensure that the tradition continues well into the future.

Our system of justice, indeed our democracy, is based on the rule of law. The rule of law simply cannot exist without a healthy, vibrant and independent judiciary. We do not have to look much further than the evening news to understand what life is like in countries where there is no independent judiciary, where judges are pressured to toe the government line. I know that is not what Canadians would want to see happen in this country.

The Constitution is the supreme law of our country. Since 1867 we have called upon the courts to interpret and apply the Constitution and they have done so, striking down laws that offend federal or provincial jurisdiction. Since 1982 we have called upon the courts to interpret and apply our Charter of Rights and Freedoms. In many ways this task is different because it involves consideration of the fundamental values and beliefs that we hold dear. However, in many ways the task is the same.

The courts are interpreting the supreme law of our land and applying it in the best way they know how. This is a difficult job. It is not easy trying to figure out what equality, or freedom of expression, or fundamental justice mean.

We have to remember that the courts did not ask for this task; we in this Parliament gave that task to them. Therefore it is simply not right for this chamber to turn around and chastize judges for doing the job that we gave to them.

It is completely consistent with the rule of law that judges be able to strike down laws that are inconsistent with the Constitution. They have been doing it in one form or another for almost 136 years. If they did not have this power, how would the rule of law be protected? How could we require governments to comply with the Constitution? The answer clearly is, we could not.

Underlying this motion is the notion that courts have somehow usurped or limited the role of Parliament by inserting their views on issues of public policy. However it is not the courts that limit Parliament. It is the Constitution, including the charter, which limits Parliament.

We have made a deliberate choice to provide the courts with a role and that role is interpreting the charter and the Constitution. That role includes the power to declare unconstitutional legislation that is invalid. When the courts find that legislation is unconstitutional, the legislature can respond by crafting legislation that contains limits that are reasonable and justified in a free and democratic society as set out in section 1 of the charter. There is certainly no question that with the advent of the charter, the courts have had a more direct impact on the lives of Canadians. As a result, there has been public scrutiny of their decisions.

However to the extent that courts play a role in shaping public law and policy, they do so in accordance with well established rules of constitutional and statutory interpretation, not based on any philosophical preference on the part of the judges. For example, this motion talks about the same sex issue. Some disagree with the court decisions on opposite sex requirement for marriage. They have expressed concern that the courts, rather than the elected members of Parliament, are making decisions to change fundamental social institutions. They are concerned that judges are making law in accordance with their own opinions.

I disagree. In my view, the courts are simply trying to apply the charter in a way that is consistent with the law and past court decisions. Indeed, as my colleague has noted, the courts in all of these cases have gone to great pains to underscore the importance of Parliament. Each decision has given Parliament time to consider how to address the important concerns that have been identified. Rather than trying to usurp or ignore Parliament, I would suggest that these decisions specifically acknowledge the essential role that Parliament has to play in deciding important social questions such as these.

As we all know, last November, the Minister of Justice referred the question of marriage and the legal recognition of same sex unions to the Standing Committee on Justice and Human Rights. He asked the committee to consider policy approaches, to hear from Canadians and to report back with recommendations on possible legislative reform. Members of the standing committee have just recently finished their hearings on this issue and are considering their report and recommendations right now. I understand that the committee hopes to report back to the minister in early June.

I am the first to recognize that judges and their decisions are not always popular but judicial decision making is not about popularity. It is about interpreting and applying the law which, like it or not, happens to include our Constitution. We as legislators have given the courts the task of determining some of the most difficult and divisive legal, social and economic issues of our time. Judges must be independent and free to make those difficult and sometimes very unpopular decisions.

The independence of the judiciary is a key constitutional principle and one that is critical for the public's confidence in the judicial system. Although all members of the public will not necessarily agree with a particular decision, it is important that the public knows that the courts will make decisions free from interference.

Through several international agreements, all democratic governments, including Canada's, have endorsed the basic principles of judicial independence. In adopting these principles of judicial independence, governments and legislatures have agreed to constrain their power to ensure that the judiciary remains independent and has the legitimacy necessary for the continued public support and confidence in the justice system.

Our system of governance has worked well and will continue to work well as we enter the next millennium. The effectiveness of our system of governance depends on a judiciary that is independent and willing to make difficult and sometimes unpopular decisions in accordance with the rule of law.

Parliament is never prevented from amending or introducing new legislation in the public interest so long as that legislation is constitutional. The Canadian people expect no less from us as parliamentarians.

Our Constitution and what it stands for is the underpinning of this entire country. We as a Parliament chose, based on principles some 21 years ago, to add a Charter of Rights and Freedoms to that Constitution. I think each and every one of us has to stop, look at the principles that underline that charter, as it is entrenched, and make a decision; do we believe in the principles that it espouses or not. If we do, there is ample room for us as legislators to go forward within the confines of those principles to legislate and to do the job Canadians expect us to do in a way that is fundamental to the preservation of the society that we know.

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

Mr. Speaker, I agree that probably a big majority of Canadians are quite fond of the Charter of Rights and the principle of it, and it is certainly supported across the land. I support those principles.

I was also pleased that the 20 people or so who put this document together were wise enough to remember that there could be times when the public values, and the public in general, could be in conflict with the decisions that the courts made based on the charter. Recognizing that possibility, they put in section 33, the notwithstanding clause.

If I have heard it once, I have heard it a hundred times, and strongly from that side, that it was deplorable to even think about using section 33 in regard to the charter. However the public has risen up and tabled thousands of signatures begging Parliament to literally put an end to child pornography, to close the loopholes. They are demanding this and asking for it. However the courts make a decisions that leave the loopholes. Obviously the government is not going to change the law because it has not done it with Bill C-20. In its feeble attempt, it left “public good” in legislation as another loophole.

When do we use section 33? Should it never be used? Members of the Liberal party said that today. It will be quoted in Hansard over and over. When are we going to recognize, that yes in a judicial sense the Supreme Court is the highest court of the system, but Parliament is the highest court of the land and it is run by the people of Canada, not by me, not by that member or by you, Mr. Speaker. It is run by those who elected us.

They are demanding, and there is no doubt about it, that the safety of our children be top priority and that child pornography be stamped out . Why is the government so reluctant to do that? Why does it to continue to hide under the decisions of the court and under the idea that there could be some artistic merit or public good, or whatever, to child pornography? It just does not make sense.

I would think that the member has relatives, children of some kind, in his household. Does he not believe that our most elemental duty is to make every effort possible and to make absolutely certain that we do our utmost to protect the little ones in the land? What is wrong with that? I think there is nothing wrong with that and the public thinks there is nothing wrong with that. However I can guarantee, based on what I have heard throughout the day, the government will not even consider clause 33. It seems to be very reluctant to go against any decisions that the courts make. Why?

[Paul MacKlin, Liberal, Northumberland, ON]

Mr. Speaker, as legislators, where do we fit in the entire perspective of the charter? As a government, what we are doing now is what we will continue to do, and as I stated in the House today, we are very clear. We do not disagree with the fact that child pornography is wrong. We are against child pornography.

However what we are trying do, within this legislature, is to find an effective way that meets a number of interests. I know that sometimes people look at the way in which we are approaching it in Bill C-20. They refer to the fact that we are using and have put in the only defence, a public good defence. They look at that and ask how anything about pornography can be good. I do not disagree with that. There is no good in pornography itself.

The question that we are really struggling with is freedom of expression. How do we deal with the ability of, for example, those who teach in a university, to teach about pornography? How do we do that if in fact it is absolutely and completely illegal to even talk about pornography? It cannot be discussed. The police officers would not be permitted to deal with it.

[Myron Thompson, Canadian Alliance, Wild Rose, AB]

We do not.

[Paul MacKlin, Liberal, Northumberland, ON]

The hon. member says no. I think it is very important that we understand that part of the public good is in prosecuting those individuals. In so doing the police need to have access. They need to be able to investigate and see the pornographic images in order to to prosecute these people.

Those members of the opposition who choose not to accept this have to be understanding of the sensitivities and the problems that are involved in the prosecution of these offences. There is no answer to say that there is an absolute and complete prohibition on pornography. We have to leave a way and a means, for example, in dealing with it in medical institutions, research institutions. It would not be allowed unless the defence was available of the public good because it is for the public good to deal with it in that fashion.

We do have disagreements in the House but the House has the ultimate authority to go forward. The member talked about section 33 of the charter. I believe that was put in the charter for good reason. It has been used within provinces to date. I am not aware that it has been used at the federal level, but from that perspective it is there to provide a safety valve if a situation were to arise where we would not able to react as a legislature in an appropriate fashion quickly enough. That at least is another way and means to deal with the issues of the charter.

However we must remember what that does. When we deal with section 33 of the charter it effectively takes away the other benefits that the charter was originally set out to give. What we would effectively be saying is that notwithstanding all those other principles we are going forward with this other perspective.

It is very clear that section 33 of the charter does have a valid reason for being there. Yes, it has been used and may be used in certain circumstances but it must be used with care because those principles, as I said earlier, are either respected or they are not. I believe we should always try to respect the principles that form the basis of the charter.

[Brian Fitzpatrick, Canadian Alliance, Prince Albert, SK]

Mr. Speaker, a democratic society works because we have mutual respect for one another's rights. If I want somebody to treat me fairly and respect my rights, I have to do that with the other person.

The very nature of criminal law is when people ignore other people's rights. The ultimate crime, of course, is murder. Murderers deprive citizens of their rights when they terminate their very existence, which undermines the whole democratic process. Society as a whole would collapse if people did not have respect for one another's right.

It seems to me that a natural consequence of committing a serious criminal offence is that one is deprived of some of one's rights in society. It is a reasonable thing. It can be justified. One of those rights is the right to participate in the democratic process by voting.

Without getting into a legalistic argument with the parliamentary secretary on court decisions, does he not feel that a natural consequence of committing serious crimes should be that people will be deprived of some of their rights under the charter? When people break that social contract is that not the bedrock of our democratic society?

[Paul MacKlin, Liberal, Northumberland, ON]

Mr. Speaker, in response to the member's question, of course we take away rights from individuals when they commit a crime.

However, who was it who established the rights we are going to take away? It was this place, this Parliament, through the Criminal Code, that determined what rights we would address for various crimes. We are the ones who set out the sentences, the penalties and the options that are available. It is those of us who gather here who have made those decisions. We set out the limitations and gave the courts what we believed were the appropriate ranges of sentences that should be applied in each individual case. I think it is very clear that we set out what those responses were to be.

Let us go beyond that. What the court has clearly stated is that we did not have the right under the charter to take away those voting rights. What we have to do in this place is re-examine this to see what we as a legislature can do.

I still believe, and I do not believe that I will be doubted, that this House of Commons, this Parliament in its totality, is the place where we make decisions. We have the ultimate authority. It is not the court that holds the ultimate authority and, therefore, to criticize the court is inappropriate in this case.

[The Deputy Speaker]

It being 5:30 p.m., it is my duty to inform the House that proceedings on the motion have expired.