House of Commons Hansard #98 of the 37th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was courts.

Topics

PetitionsRoutine Proceedings

10:15 a.m.

Some hon. members

Agreed.

Committees of the HouseRoutine Proceedings

10:15 a.m.

Liberal

Peter Adams Liberal Peterborough, ON

Mr. Speaker, I am pleased to table the report of the Standing Committee on Procedure and House Affairs regarding the report of the electoral boundaries commission for New Brunswick. This report and related evidence will be forwarded to the commission for its consideration.

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10:15 a.m.

Canadian Alliance

Vic Toews Canadian Alliance Provencher, MB

moved:

That this House call upon the government to bring in measures to protect and reassert the will of Parliament against certain court decisions that: (a) threaten the traditional definition of marriage as decided by the House as, “the union of one man and one woman to the exclusion of all others”; (b) grant house arrest to child sexual predators and make it easier for child sexual predators to produce and possess child pornography; and (c) grant prisoners the right to vote.

Mr. Speaker, I am pleased to rise today to sponsor this motion on behalf of the Canadian Alliance.

The Canadian Alliance is concerned and Canadians across the country are concerned that recent court decisions do not represent the view of Parliament nor the values of Canadian society as a whole.

The three issues outlined in the motion are of particular importance to the constituents in the riding of Provencher and indeed to ordinary citizens across the country, citizens whom I speak to and whom I receive letters from on a daily basis.

Under the assumed authority of the Canadian Charter of Rights and Freedoms the courts have moved beyond their traditional role as arbiters of legal disputes and into the realm of policy making. Indeed, they have become politicians.

While it was anticipated that the charter would grant the courts new powers to review the constitutionality of Parliament's decisions, it has become clear that the courts have taken for themselves an authority that Parliament either expressly withheld from the courts at the time of the drafting of the charter or an authority that no reasonable interpretation of the provisions of the charter could support. Specifically, recent decisions of the courts such as those related to marriage, our laws governing the protection of children and prisoner voting rights are not decisions that are properly grounded in the constitutional jurisdiction granted to the judiciary by Parliament.

An unaccountable and unelected judiciary has simply and erroneously appropriated the jurisdiction to legislate by judicial fiat matters of social policy.

In the opinion of the Canadian Alliance, and indeed in my personal opinion, this was never intended to be the jurisdiction of the courts. Political decisions related to social policy must remain the exclusive jurisdiction of a democratically elected Parliament.

While Canadians enthusiastically support the charter they are becoming increasingly concerned about the political direction of the courts. Nevertheless, judges in Canada have taken on a greater role in shaping government policy, an area that was previously reserved for elected officials.

In many cases where the judiciary has confined itself to its proper constitutional role its decisions have had a positive effect. However in many other cases, such as the Sharpe child pornography case, the effect has had detrimental effects on our society and our ability to protect our children.

Whether or not ordinary Canadians agree with conclusions reached by the courts, it is apparent that Parliament's social policy leadership is becoming irrelevant since its choices are limited by the political choices of the courts as Parliament is ordered to comply with judicial policy directions in all existing and future legislation. As a law-making body, Parliament is becoming less relevant, less creative, less effective, and less vigorous as a result of this shift in power.

Recently, three provincial courts have ventured into the realm of social policy and have ordered Parliament to redefine the institution of marriage. It is important to note that Canada is the only country in the world whose courts have determined the issue of same sex marriage to be a rights based issue. The two countries that have legalized to some extent so-called same sex marriage, the Netherlands and Belgium, have done so as a matter of public policy through the legislative process, not on the basis of judicial compulsion.

In respect of this issue, this new wave of judicial activism appears to pay little heed to either Parliament or indeed the comments of the Supreme Court of Canada as set out in prior decisions. In the Egan Supreme Court decision in 1995, Justice La Forest, writing for four judges for a nine court panel, specifically rejected the idea that the traditional definition of marriage improperly discriminated against same sex couples. Rather, he concluded that Parliament was properly entitled to make a distinction between marriage and all other social units. In his words:

...the distinction made by Parliament is grounded in a social relationship, a social unit that is fundamental to society. That unit, as I have attempted to explain, is unique. It differs from all other couples, including homosexual couples.

The other five judges chose not to base their decision on this issue and in the result the decision of Justice La Forest, together with the judgment of Justice Sopinka who concurred in the result arrived at by Justice La Forest, forms the authoritative basis of the decision. Although both Justice La Forest, on behalf of those who addressed this issue, and Parliament have clearly expressed their support for traditional marriage legal challenges continue to mount.

Last week, when the British Columbia Court of Appeal ruled that prohibiting same sex marriage was discriminatory, it joined two other recent lower court rulings in Ontario and Quebec. I was surprised, perhaps I should not have been, but I was certainly disappointed to hear the justice minister suggesting the possibility that he may choose not to appeal the British Columbia decision, particularly since he along with the majority of his cabinet colleagues voted in support of a Reform Party resolution in 1999 that stated:

...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 Liberals are now deserting their commitment that they made to the public of Canada. The former finance minister who hopes to be Canada's next Prime Minister has failed to articulate a clear position on this issue. He has said that he would support the decision of the courts and would not use the parliamentary override, the notwithstanding clause, to preserve traditional marriage.

This is astounding considering that he voted to take all necessary steps to do so four years ago. He is failing to show leadership. He is deserting the commitment he made to Canadians four years ago. Knowing that public opinion is divided on this issue, the Liberals may find it convenient to leave this hot potato with the courts in order to shift the responsibility for this matter onto the unelected and unaccountable judiciary that cannot be voted out of office.

However, if the Liberals decide not to challenge this court decision, as they have apparently done, they will have failed in their responsibility to demonstrate leadership on this important social issue.

As the chief law officer of Canada, the justice minister has a clear obligation to Canadians to appeal the B.C. Court of Appeal decision to the Supreme Court of Canada. If the Supreme Court then chooses to abolish traditional marriage by overturning the Egan decision in the comments of Justice La Forest, then the minister is obligated, in keeping with the promise he made to Canadians in 1999, to invoke section 3 of the Canadian Charter of Rights and Freedoms.

At this point the decision is properly back in the hands of parliamentarians and not in the hands of those who would improperly take this jurisdiction away from the elected representatives of the people. Those parliamentarians who choose to allow the courts to make these decisions, because they do not have the courage to make the decisions themselves, fabricate an excuse by saying it is the Constitution that makes us do this.

Let us make it perfectly clear that section 33 is, in fact, an appropriate mechanism by which Parliament retains supremacy in this country. Although the courts may successfully be pressured by interest groups into a position on marriage based on what may be new and fashionable, it is the duty of Parliament to await the test of time through rigorous debate. This is particularly true because these views and theories on marriage are so oddly out of step with the views of ordinary Canadians, and indeed historical and sociological precedents on marriage across the world.

In the case of John Robin Sharpe, our ability as Canadians to protect children from sexual abuse and exploitation has been seriously eroded by the courts. Parents breathed a sigh of relief after a January 2001 Supreme Court decision substantially upheld Canada's laws against child pornography. Unfortunately, the exception created for personal writings was defined in such a broad way that violent and anti-social text that glorified the sexual exploitation of our children by adults like Sharpe could be justified under the law.

We would never tolerate that kind of abuse of minorities in this country. We would not tolerate that kind of abuse of women in this country. Yet the Liberal government is prepared to tolerate the abuse of the most vulnerable people in our society, our children. We did not see this immediately, but a year later, when Sharpe was re-tried in the B.C. Supreme Court, the judge interpreted Sharpe's pornographic works involving children, the sexual abuse of children, as having artistic merit. It is shameful.

Not surprisingly this was the same judge who had originally struck down the law as unconstitutional in 1999. Clearly, what he could not do by declaring the law unconstitutional, he simply did by applying an absurdly broad definition of artistic merit. Sharpe's writings are not art by any reasonable standards. His writings depict sexually explicit material that glorifies the violent sexual exploitation of children by adults. The loophole of artistic merit remains in the new Liberal bill, Bill C-20.

Although the Liberal government has used smoke and mirrors to pretend that it has made the loophole disappear, a prominent Liberal lawyer, David Matas, who represented Beyond Borders, has in fact said the new Liberal legislation would create a larger loophole than artistic merit. Yet these members opposite claim that they have addressed the problem. They have not done anything in Bill C-20 that purports to abolish the defence of artistic merit. They are misleading the public when they suggest that the defence of the public good is a satisfactory answer.

The other issue of importance is the law that allows convicts, including child sexual predators, to serve their terms in the community, otherwise known as house arrest. The Liberal government instituted this policy in 1996 in order to reduce incarceration rates. Whatever happened to the overriding concern about the protection of society?

The Liberals have become bureaucrats who say that we need to reduce incarceration rates. What about the protection of children, people in the streets, our cities, towns, and rural countryside? Serious criminals who still pose a risk to the community have abused these sentences and the government has done nothing to take steps to prevent that.

For example, in 2001 a New Brunswick man was handed a six month conditional sentence and 18 months probation after he pleaded guilty to possession and trading of child pornography on the Internet. The pornographer dealt in pictures involving children between the ages of 10 and 12. Although the law directs the courts to impose the sentence only in those circumstances where serving the sentence in the community would not endanger the safety of the community, that principle appears to have been long forgotten by the courts.

The courts have ignored the federal justice minister's stated intention that these house arrests would not apply to violent crimes. Even the concept of imposing a prison sentence to deter others no longer seems to be applied as a result of the Liberal law.

In another more recent case the supreme court overturned a 1993 law passed by Parliament prohibiting prisoners serving a sentence of two years or more from voting in federal elections.

In another more recent case the Supreme Court overturned a 1993 law passed by Parliament prohibiting prisoners serving a sentence of two years or more from voting in federal elections. It was found that the law infringed section 3 of the Charter of Rights and Freedoms, which gives Canadians the right to vote. As a result, the motorcycle gang member and convicted murderer who challenged the law won the right to vote. In the days and weeks following the ruling, polls showed that the overwhelming majority of Canadians disagreed with the decision.

In the upcoming May 12 byelection in Perth--Middlesex, a prisoner has been placed on the voter's list who recently was convicted of stabbing his wife to death while their children watched. Canadians are outraged that murderers and violent criminals can take part in the democratic process for which they have shown contempt.

By the court substituting its political opinion, and I emphasize it is a political decision on the part of the court, this is not a legal decision, for that of elected parliamentarians, Canadians have no reason to believe in the legitimacy of democratic government and the rule of law. Unfortunately, although the Canadian Alliance introduced a motion last year that would end prisoner voting, the Liberal government refused to support it, suggesting that it would deal with the problem in some other mysterious way. In actual fact the constitutional amendment, as outlined in the motion, is the only way by which Parliament can reverse the effects of this damaging and ill-conceived court decision.

If a member of Parliament makes laws with which Canadians do not agree, that member of Parliament may not be re-elected. However Canadians do not have the opportunity to remove judges who make significant decisions that do not reflect the values of our citizens and our country.

Once the Prime Minister appoints a judge, by virtue of our Constitution a judge may remain in his or her position until age 75. Because of the important decisions our judges are called upon to make, many people in Canada believe that the closed door process for choosing judges, controlled by the Prime Minister, should be changed. In fact Canadian Alliance policy specifically calls for Supreme Court of Canada judges to be chosen by a multi-party committee of the House of Commons after open hearings. Others would like to go further. A recent survey taken by the polling company Environics suggested that two-thirds of Canadians believe that Supreme Court judges should be elected.

Regardless, I believe the closed door process for choosing Supreme Court and Court of Appeal judges is in need of review. Although the Prime Minister consults with interest groups such as law societies, bar associations and individual members of the legal associations and the legal community including judges, as well as the justice minister himself when making appointments, given the significance of court decisions since the advent of the charter, it is increasingly necessary for these appointments to come before Parliament in some fashion so that a broader spectrum of Canadians are involved in this decision.

I dare say there are not many members of the House who could name the nine Supreme Court judges who have so much power over the lives of individual Canadians and our democracy. I doubt if one person could stand in the House and name all nine. At the very least, Canadians have indicated that judicial appointments must allow for greater direct input by citizens to help ensure that those we appoint as judges properly reflect the values of Canadians rather than simply the political interests of a particular Prime Minister.

My time is drawing to a close, but I would direct the readers or the listeners to go back to some of the earlier Supreme Court of Canada decisions where the courts said in very lofty terms that these rights and freedoms were not to be interpreted in a vacuum, but they needed to be interpreted in the context of our historical and cultural roots. The courts have cut off those roots. They have gone on a frolic of their own. It is time that it stops. Ultimately it is the duty of Parliament, as a federal legislative body, to bring our public policy and our laws into line with the views and values of Canadians, and so I encourage all members to support the motion.

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10:35 a.m.

Glengarry—Prescott—Russell Ontario

Liberal

Don Boudria LiberalMinister of State and Leader of the Government in the House of Commons

Mr. Speaker, we have just been hearing comments about the need for Parliament to protect itself against certain court decisions. I must say that, having heard my hon. colleague's speech, it is my impression that we should instead be having a motion to protect society against speeches such as the one we have just heard.

Some members of the House have suggested that the courts are assuming a role that is not contemplated in the Constitution. That is close to ridiculous. Such comments may cause people to question the legitimacy of the courts. In a society where we value the law, comments like this coming from parliamentarians run totally contrary to the principles we are called upon to defend in this Chamber, collectively and individually.

Of course criticism and debate are necessary elements in a healthy democracy. That is what gives members the right to make statements, but is certainly not an excuse to make statements that are neither informed nor responsible.

The impression created by the speech we have just heard is misleading and could risk damaging the credibility of the institution of the Canadian courts and the public's confidence in our system of justice as a whole.

It is clear that the power of judicial review has always existed under the Constitution. It is not as if the Prime Minister three weeks ago kicked out the former Supreme Court justices and appointed a fresh batch of them with a new mandate under a new Constitution. That power of judicial review has existed since 1867.

In first year university we were taught issues such as Russell v. Regina. It had to do with who had the authority to dispense liquor licences. I studied that a long time ago. I even had a different haircut then. This is to say how long that right of judicial review has existed. The boundary between Ontario and Manitoba was decided that way several years later under Premier Mowat.

The hon. member across the way refers to the right to vote of women and I am glad he made that point. Maybe he could talk about the right of women to sit in Parliament, namely in the Senate. In fact it was part of our judicial system that eventually gave them that right. The judicial committee of the Privy Council made that decision.

I wonder at that time, had it been left to people who think the same way as we just heard in the speech a moment ago, whether that right would have been achieved then. To ask the question is almost the same as answering it. It probably would not have existed today.

As I have said, the courts have always played a significant role in reviewing government legislation. This is a longstanding principle of the common law. There is no question that the role of the courts in interpreting the Charter has given them a higher profile and a more direct effect on the daily lives of Canadians.

However, even though the courts exercise considerable influence on the shape or the interpretation of Canadian law, they do so in accordance with well-established rules of constitutional and statutory interpretation, and not in a vacuum. Decisions are not reached on the basis of any personal bias on the part of judges, be they in the Supreme Court or in the other courts of Canada.

Where the courts signal to a legislature that the Charter of Rights is not being protected, as is the case with some of the things that were raised today, and that does not cover everything that was raised this morning, elected legislatures are free to choose how to respond within the framework of the Constitution. Case in point is the issue of child pornography. It is not as if Parliament did not respond to that issue. We passed Bill C-20 over the objections of some people in the House who claim today to be defending our children in the case of Bill C-20.

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10:40 a.m.

Canadian Alliance

Myron Thompson Canadian Alliance Wild Rose, AB

It does not do it.

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10:40 a.m.

Liberal

Don Boudria Liberal Glengarry—Prescott—Russell, ON

The law improves the state but does not improve it enough, and that was the excuse for voting against it. This is what the member across the way are telling me. Canadians will be free to judge that one.

I want to deviate a bit from my text and speak to the other issue that was raised about inmate voting. Here is how the logic across the way works. Members across the way claim that the Charter of Rights goes too far in giving authority to judges but we do respect what is in the Constitution. The member who spoke just before me said that. However in the case of inmate voting, which is outside the Charter of Rights but within the Constitution, he does not like the Constitution. Does the logic of this escape some members? It has escaped me.

The hon. member has said that we must override the Charter of Rights while respecting the Constitution, except when something is adjudicated upon that is in the Constitution and the decision rendered is not liked. This is like a double notwithstanding clause. If we do not like that notwithstanding clause, we amend the Constitution and create a new notwithstanding clause. That is ridiculous.

For years, centuries even, people—philosophers and others—have talked about the rule of law and the importance of the judiciary being separate from the legislative branch. This has been a part of our traditions since the very beginnings of this country.

Earlier, we heard an argument in favour of electing Supreme Court judges. What western democracy has this kind of structure? I do not know of any.

Of course, there may be municipal judges in some American cities that are elected. That may be the case in some states. However, this is not universally true, nor is it true when it comes to judges in the U.S. Supreme Court. They are most certainly not elected.

The independence of the judiciary is fundamental. Judges' independence must be respected, both individually and collectively. When there are problems with a judge, due to personal conduct or something of that nature, there is a judicial council that deals with the case.

However, with respect to creating a parliamentary appeals court that could overturn the Supreme Court in cases where we did not like constitutional judgments, I am not game for that. I am the minister responsible for our country's electoral laws. Did I like the Sauvé decision? Of course not, and we appealed it. However, in the end, it is the Supreme Court that decided. The Supreme Court decided, as was its right, instead of doing what the minister responsible for the Canada Elections Act would have liked.

Of course the minister would have liked something different, otherwise, we would not have appealed the decision; that is obvious. That was the position of the minister, being myself, and the cabinet, because the decision to appeal is up to the cabinet. We did appeal it, and the result was the Sauvé ruling.

Now the members opposite are saying, “We respect the Canadian Charter of Rights and Freedoms, but there is a legitimate procedure to overturn decisions under the Charter”.

Except that it does not apply to the Sauvé case, and the hon. member himself said so earlier. He is suggesting that, because it would not apply to the Sauvé case, therefore the entire Constitution should be overturned, just to deprive one person of a right. To overturn the Constitution is ridiculous to begin with, and to want to do so to take away a right is even more ridiculous.

Those who have the right to vote are not necessarily the ones we like best, individually or collectively. There are many people I do not like as much as others. There may even be some I do not like at all. I might prefer that some of them did not vote. However, this is not the same as saying that this allows us, individually or collectively, to deprive them of the right to vote, especially after they were given this right by the Supreme Court of our country.

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10:40 a.m.

Canadian Alliance

Kevin Sorenson Canadian Alliance Crowfoot, AB

Yes, we can.

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10:45 a.m.

Liberal

Don Boudria Liberal Glengarry—Prescott—Russell, ON

The member said, “Yes, we can”.

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10:45 a.m.

Canadian Alliance

Kevin Sorenson Canadian Alliance Crowfoot, AB

The Constitution changed.

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10:45 a.m.

Liberal

Don Boudria Liberal Glengarry—Prescott—Russell, ON

There, he just said it. We are going to overturn the Constitution to deprive them of a right.

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10:45 a.m.

Canadian Alliance

Kevin Sorenson Canadian Alliance Crowfoot, AB

The Constitution changed.

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10:45 a.m.

Liberal

Don Boudria Liberal Glengarry—Prescott—Russell, ON

He just reiterated it. Let the people decide. They can decide whether they want to live in a country where we are protected by our Constitution or in a country where the Constitution can be overturned when decisions handed down by the courts are not to our liking.

One can wonder in what kind of country we would be living if that were the case. I prefer the protection of the Constitution to that of the people who would make arbitrary decisions to overturn a court ruling every time it did not suit them.

That being said, it is not as if the government had not taken its responsibility in regard to election laws. Indeed, I answered questions on the floor of the House at every occasion after that decision was rendered. Then I referred the issue to the Standing Committee on Procedure and House Affairs, formerly called the committee on procedure and elections. It is the committee which reviews legislation dealing with election laws in this country. Any input that colleagues have can be made there.

Did that member or any other one from his party make a contribution in that regard? Of course not.

This has nothing to do with protecting Canadians. How does what has been proposed today protect anyone? The Alliance produced a motion that is not even votable. That really gives a lot of protection to Canadians, does it not?

This has everything to do with a byelection that will occur next Monday. It has everything to do with it and the hon. member knows it. Even over the last couple of days the Alliance members have been invoking in this line of questioning the name of every offender they have been able to find, with the goriest of scenes from the constituency in question.

We are not crazy. Canadians know perfectly well what the opposition is up to over there. In order not to be ridiculed because the motion is so out of step with reality, the Alliance members deliberately chose not to make it votable in order not to look too foolish at least with the proposition that they have brought before the House.

We all know what that is. I am the leader of the government in the House. Do I know if they have votable supply days left? Of course they have supply days left that are votable. The Alliance members deliberately decided to make this one non-votable, even though they had a votable day left. As a matter of fact they have two votable days left.

It was a deliberate choice on their part. They probably could not even get this motion voted on by the totality of their own caucus, let alone the humiliation that such an extremely worded proposition would have had for the membership of the House.

In summary, we have before us a proposition that says that they want to override the Charter of Rights and Freedoms because it is claimed there is authority to do so and in any event, when there is not authority to do so, then they want to override the Constitution.

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10:50 a.m.

Canadian Alliance

Brian Fitzpatrick Canadian Alliance Prince Albert, SK

Mr. Speaker, I rise on a point of order.

The member said something about making the motion votable. I would ask for the unanimous consent of the House to make our motion votable.

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10:50 a.m.

The Acting Speaker (Mr. Bélair)

Is there unanimous consent to make the motion votable?

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10:50 a.m.

Some hon. members

Agreed.

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10:50 a.m.

An hon. member

No.

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10:50 a.m.

Liberal

Don Boudria Liberal Glengarry—Prescott—Russell, ON

Mr. Speaker, a deathbed repentance on the other side will not do any good for the member. The Alliance thought this out--

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10:50 a.m.

Canadian Alliance

Vic Toews Canadian Alliance Provencher, MB

Mr. Speaker, on a point of order. I want the record to reflect that the member speaking is in fact the one who now opposes making this a votable motion.

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10:50 a.m.

The Acting Speaker (Mr. Bélair)

That is not a point of order, but the message has been made.

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10:50 a.m.

Liberal

Don Boudria Liberal Glengarry—Prescott—Russell, ON

Mr. Speaker, let the record show, and I will gladly state, that the opposition party, having deliberately made its motion non-votable and embarrassed for having done so, on the floor of the House of Commons deliberately tried to change it and get our cooperation to get itself out of the embarrassment. No way, José. It does not happen that way. We are not going to do it. Alliance members can live with the decision that they made in regard to this motion. They can live with it. Not only is the motion just awful in the way it was structured, but they can live with the condition that I just described.

In a few minutes we will be at the questions and comments period, but we should remind people of the historical fact that the charter was adopted in our country after broad public debate and culminated in receiving widespread support. It enjoys the support of Canadians. While perhaps the impact of the charter was obviously not anticipated with every single court decision, we were all aware that the role of the courts would evolve as a result of conferring on them additional responsibilities. We conferred on the courts additional responsibilities. We should not be shocked that the courts have conferred responsibilities. That was decided at the time.

As a member of Parliament and as a cabinet minister, I believe that we have a duty to dispel the notion that judicial review is anti-democratic. It is not. It is a protection of democracy. This is a notion that is often preferred when individual or minority rights have been protected against majority excesses.

There is a great need for all of us to acquire a better understanding of the challenges that each of our democratic institutions, and our courts is one such institution, present the other in the development of laws that balance complex and competing public interests. This new understanding can only be achieved when these challenges are properly understood and the debate surrounding them is informed and responsible and that people do behave responsibly.

I want to take this opportunity to respond to critics of this alleged judicial activism on behalf of prisoners.

As members know, on October 31, 2002, the Supreme Court of Canada handed down its decision on the Canada Elections Act which had, of course, restricted inmates from voting. The fact that the decision was split five to four demonstrates how complex decisions about this kind of protection can be.

This was the second time in the past decade that the court had considered the constitutionality of restrictions on prisoners' right to vote. In 1993, the Supreme Court of Canada had ruled that denying all inmates the right to vote was overly restrictive. After this decision, a second piece of legislation was enacted containing the restriction that existed until a short time ago.

Once again, the courts have ruled, and Parliament must respect their decision.

We will respect these decisions and we will do what is right. We will do what is right because it is right, not because some people found an issue to be raised this week, thinking somehow that it would increase their popularity in a riding where they are probably running around 10% or 15% in the public opinion polls. People earn the respect of the people in that constituency and elsewhere by doing the right things, not by further damaging themselves by making outrageous statements on the floor of the House of Commons. That is the way by which we will earn the respect of Canadians.

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10:55 a.m.

Canadian Alliance

Dick Harris Canadian Alliance Prince George—Bulkley Valley, BC

Mr. Speaker, the hon. House leader is talking about doing what is right and says that they will do what is right. What sheer hypocrisy. The member has been in the House as long as I have been here, and even longer, and since 1993 he has continued to stand in the House and crow about the vast majority of Canadians who elected him and his government.

When it comes to the Liberals being elected to form the government, it is okay, but when a vast majority of Canadians are asking the government to remove all the loopholes that would allow any form of child pornography to exist, they will not. When the vast majority of Canadians are offended by the fact that prisoners, murderers, rapists and child molesters have the right to vote because some level of court said so, and the vast majority of Canadians want that fixed, the government will not do it. All of a sudden the majority does not count any more.

When the government can use the majority, it is okay, but when the majority of Canadians want it to do something that is against its philosophy, it says that it will not.

I have a question. Just where does the House leader believe the ultimate decision on how to run this country should be, in this Parliament, the Parliament of Canada, or at some court around the country? Who has the supreme--

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11 a.m.

The Acting Speaker (Mr. Bélair)

The hon. the government House leader.

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11 a.m.

Liberal

Don Boudria Liberal Glengarry—Prescott—Russell, ON

Mr. Speaker, it depends on what the hon. member is asking. If he is asking whether the Supreme Court is supreme in rendering judicial decisions, I think its name answers that question. It is called the Supreme Court because it is the supreme court. If it were not the supreme court, it would not have been called the Supreme Court. People made that decision long before I or the hon. member sat here.

Was it at one point appealable? Yes, it was appointed to a judicial committee of the Privy Council. The decisions of the Supreme Court were not appealable to the House of Commons. I do not know if that is what he is suggesting today. I do not ever recall, in my limited knowledge of constitutional history, that there ever was an appeal to the Canadian House of Commons of Supreme Court decisions. That has never existed.

Is he asking that we restore the system that was there before, which means that we could appeal in England the decisions of the Canadian Supreme Court? I do not think that is what he is advocating. If he is saying that something was changed to create this and he wants to restore the condition that was there before, that is in fact what he would be asking to restore, which of course would not even do that which he is asking anyway, as I indicated.

I want to respond to the second part of his question, regarding the Sharpe case.

The legislative package, in other words Bill C-20 and other legislation, responds to the concerns about the defence of artistic merit and the definition of written child pornography. The defences that were there before have been reduced to a single defence of public good. As well, the definition of written child pornography would be expanded to cover material that was not even covered under the previous legislation, and would include material that contains written descriptions of prohibited sexual activity and all those kinds of things. That is all included in the legislation which the hon. member says he did not want, even though that was the legislation for which they asked.

What does the public good mean? The public good defence means that any material or act in question must serve the public good and not exceed what serves the public good. That means that unlike the defence of artistic merit, the one that was there before, the new subclause (6), I believe, the public good defence would require a two stage analysis: Does the material serve the public good on any of the recognized areas and, if so, does it go beyond what serves the public good. In other words, no defence would be available where it does not serve the public good or it poses a risk of harm that exceeds what serves the public good.

I believe I have answered his questions.

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11 a.m.

Progressive Conservative

Loyola Hearn Progressive Conservative St. John's West, NL

Mr. Speaker, I listened with interest to the House leader for the governing party. I am a little mystified myself, I must say. I wonder if he could explain to me, first , how we can honestly debate three distinct topics where there might be varying views, particularly when one of them is before a committee that is travelling the country and is having a real problem trying to find a common solution with which most people will agree.

The other issue is in relation to prisoners voting. When we talk about murderers, rapists and child molesters, that is one thing, but what about the fellow who is serving some time for being a little rowdy? It may have been the first time in his life that he got into trouble or the first time he had perhaps one drink too many and was thrown into jail for a few nights. Are we lumping everyone into the same boat?

To try to debate these issues in such a forum, there has to be some other reason for it rather than just trying to find some solution here among us today.

SupplyGovernment Orders

11 a.m.

Liberal

Don Boudria Liberal Glengarry—Prescott—Russell, ON

Mr. Speaker, I think the issue of the motive behind all this is an interesting one, which obviously is what the hon. member is asking.

On the first part of the hon. member's question, the propositions, if they are related at all they are very far stretch. They are largely unrelated, that is true. I suppose the motivation of the hon. members who put the motion is probably to describe that all these things may be examples, in their view, of a role they think is too big for the judiciary. Maybe that is their argument but they can make it themselves. Maybe that is what they are invoking.

Obviously the propositions are very unrelated. One of them, as the hon. member, the House leader, has just raised, is an issue being studied by a committee of parliamentarians obtaining and soliciting opinions of Canadians. Another one is an issue that involves a decision made by the Supreme Court within the parameters of the charter and to which the House has already responded by way of legislation, Bill C-20. The third one is completely outside of the Canadian Charter of Rights and Freedoms and goes beyond that. Therefore they are very unrelated propositions.

On the issue of inmate voting, to be totally fair it does not go quite as far as what the hon. member has just said. The original Supreme Court decision of some years ago, the one that said that everyone who was incarcerated could not vote, was thrown out. However that is not the one that was thrown out lately. Following that first effort, Parliament re-enacted the law but put in the provision, I believe it was two years, so those who were short term incarcerations, overnight and something like that, perhaps even wrongfully charged or whatever, those people were not covered by the law; only those who were in penitentiaries and longer term incarcerations. That in fact was the decision that was eventually given for which the government appealed all the way to the Supreme Court and lost in a five to four decision. However it did not involve at that point the short term stays in incarceration, only the long term ones, the other one having been disposed of several years earlier.