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

SupplyGovernment Orders

12:20 p.m.

Progressive Conservative

Elsie Wayne Progressive Conservative Saint John, NB

Madam Speaker, I want to say, like the hon. member stated, that I thought we made the rules. I thought we were the ones who brought in how our country was going to grow and how our people were going to live, but now the courts dictate to us and that is wrong. If the courts interpret a bill in the wrong way, then we had better reword the bill so they understand it, and in everyday language if that is what we have to do.

SupplyGovernment Orders

12:20 p.m.

Progressive Conservative

Norman E. Doyle Progressive Conservative St. John's East, NL

Or it won't pass the country.

SupplyGovernment Orders

12:20 p.m.

Progressive Conservative

Elsie Wayne Progressive Conservative Saint John, NB

Yes, it won't pass the country.

I have to say that in my riding of Saint John, New Brunswick, we have come to what we thought was a crossroads when saw these things happening up here on the Hill. At my little church that I go to our minister has done outreach into the area. The church now is packed on Sunday morning with anywhere from 800 to 1,000 people. We have reached out to those who are poor, to those who were going in the wrong direction, and to those who were drug addicts, and we have turned their lives around, because we could see that Canada had come to a crossroads.

Let me say that when I look at where we are at now with the Supreme Court, what it wants to do with the definition of marriage and what it wants to do in supporting John Robin Sharpe, we have come to a crossroads and we must take the stands we have to take here in these Parliament Buildings to correct it.

SupplyGovernment Orders

12:20 p.m.

NDP

Alexa McDonough NDP Halifax, NS

Madam Speaker, I have to say that I think the speech we just heard by the member for Saint John is not really worthy of her. I think the reality is that she has, as every single member of this Parliament has, a significant number of constituents whom she represents, or whom I think she would say she aims to represent, who in fact have entered into loving relationships and partnerships, unions that they want to be sanctified in the same way as any others.

I have to say that when I listened to the last several speeches from Alliance members and, I am sorry to say, from the Conservative caucus as well, I had to wonder about whether there was not a deliberate juxtaposing of the issue of same sex marriage with that of sexual predation on small children to try to inflame and engender the hateful form of homophobia that does grip some of the people in our society.

I have a particular question for the member for Saint John. When she said go and live together if you want but just shut up about it and do not ask for equal rights that neighbours and other family members have, is that--

SupplyGovernment Orders

12:20 p.m.

Progressive Conservative

Elsie Wayne Progressive Conservative Saint John, NB

A mother and a daughter live together and they don't ask for equal rights. A father and a son live together and they don't ask for equal rights--

SupplyGovernment Orders

12:20 p.m.

The Acting Speaker (Ms. Bakopanos)

Time has run out. I am being lenient with the time. There was a question. The hon. member for Saint John.

SupplyGovernment Orders

12:20 p.m.

Progressive Conservative

Elsie Wayne Progressive Conservative Saint John, NB

Madam Speaker, I have to say that I got re-elected in nine consecutive elections because of what I stood for. Everyone knows what I stand for. I will not change and they know that.

SupplyGovernment Orders

12:25 p.m.

Progressive Conservative

Greg Thompson Progressive Conservative New Brunswick Southwest, NB

Madam Speaker, the exchange we just heard shows the degree of emotion that sometimes erupts in this place on motions which I think should be debated; that is not to say that we are going to have all of the answers at the end of the day.

I am going to speak specifically to the motion, which states:

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.

Those issues have been debated this morning.

The previous member spoke specifically on the definition of marriage. I do agree with her. I do not think, if we check the record, that she used the inflammatory language that she has been accused of using by the member for Halifax. I think the record will show that. I think her language was appropriate and it was consistent with what she believes and what many of us believe, but it was not homophobic, and I think it is regrettable that the member for Halifax used that term.

Really, the motion speaks to the issue of who decides public policy. Is it the elected officials in this country or is it the unelected judiciary? That is really the point of this whole debate. Who makes the laws?

I can remember the exact date of one of my first debates in the House. I spoke in the House on November 23, 1989 on the abortion issue. Again, that law was struck down by the Supreme Court. Parliament at the time was involved in debate on the issue of coming into the House with a bill that would survive close scrutiny by the Supreme Court, or in other words, conform within the Charter of Rights. Typical of the debate today, that bill involved a lot of raucous debate. A lot of different views were exchanged on the floor of the House.

Just as an example of how members can support or vote against a particular bill for a particular reason, there were people in the House at the time who voted against that bill because they felt it was more pro-choice than pro-life. I was one of the members who voted against it. Conversely, there were the members of the NDP. I remember that the member for Burnaby--Douglas, who sat a row or two across from me, voted against it for completely opposite reasons.

This shows us the controversy that can come out of legislation to address that need to have our elected politicians make public policy. Some Canadians, and I include myself, think there is something wrong with the system when public policy is struck down by the courts, as in the Robin Sharpe case where that was allowed to happen. Unelected judges are making these kinds of decisions. They do not have to be accountable to the people in their communities after having made those judgments, unlike us. We have to go back to the public to keep our jobs.

Our jobs are on the line because people measure us on the positions we take, the words we say in the House and whether we are for or against something. That is not the case with Canadian judges. Some are saying that we should have a system where judges have to be confirmed by Parliament so that whenever a vacancy arises in the Supreme Court, as is the case in the United States, there is a process where their confirmation is required. That suggestion has been made in Canada. It may be a sign that we adopt a system similar to that.

I do not think we want to get into that because most of us realize there are problems in the American system as well. Sometimes it turns into nothing more than a political battle, when the President of the United States, whether he is a Republican or Democrat, attempts to appoint someone to the supreme court. There is always a huge and almost uncontrollable debate in the United States as to whether judges will be confirmed. I do not think we want to see that happen. However one of the debates we should have in this place is whether we can change the way in which judges are appointed to Canada's Supreme Court. I am not saying I have the answers but it is time that debate take place to see if we can possibly change it.

One point I do want to make in regard to this motion is that the motion itself does not really come up with any answers. In other words, it is suggesting that something has to change but it is not suggesting any amendments. Very bluntly, the motion does not call for specifics. I am not saying that in a confrontational sense; it simply does not call for an amendment to current legislation, particularly to the Criminal Code. It does not speak of charter amendments. It does not speak of highlighting one particular right over another. It calls for the Government of Canada to acknowledge that this is an important issue and to bring in measures to protect and reassert the will of Parliament against certain court rulings.

We do not disagree with that, but the fact is there are no specifics. In all fairness, whatever those specifics might be, they have to be well thought out and well articulated. Possibly at some point one of the parties in the House might come in with an amendment that might be considered in this place, but the motion does not call for that.

Again, in the motion the Canadian Alliance highlighted some of the issues under some of the flashpoints. At the end of the day when we talk of issues like same sex marriage, child sexual predators, who are basically under house arrest and allowed to walk freely in the streets, and granting prisoners voting rights, those issues raise the ire of a lot of Canadians. They really are left scratching their heads about how things like this can happen.

It comes back to the supremacy of Parliament. It comes back with a government that is strong and brave enough to confront some of those issues head on and bring in legislation which is more consistent with the true values of Canadians. I would like to see the Government of Canada recognize that there is a problem, bring in some specific amendments, or maybe in a very brave sense, debate whether the Charter of Rights and Freedoms is serving us in the way we expect, in the way we expected it to 20 years ago when, for the first time, we brought in a charter in Canada. It has led to some of this public debate and some of these challenges in our courts.

I will leave it at that and I look forward to any comments or questions from my colleagues.

SupplyGovernment Orders

12:35 p.m.

Canadian Alliance

Myron Thompson Canadian Alliance Wild Rose, AB

Madam Speaker, as this member has the same name as I do, I would like to take this opportunity to thank him for paying some of my bills, but I will not do that.

The point of the debate today is it really is a good time for us all to reflect on exactly what is happening in this land regarding court decisions versus the legislation which comes out of this place. I know we all have thought about it and made comments, when we have had conservations among ourselves, on how it should change, et cetera.

This member has been here before and I would like to ask him a question based on his experience, and to put on his thinking cap. I cannot help but believe that the decision by the courts, for example on the Sharpe case, upset the people who developed the charter and brought it into being. I do not believe for a moment that the purpose of the charter is to protect those individuals who have been brought to the courts for possession, usage and distribution of child pornography.

It appears to me that the charter has been used in too many cases to override the entire value of the country and the people's values with regard to some issues. I believe perhaps now is the time that the charter should be brought to the House of Commons for full debate and consideration for amendments or whatever it might be to protect society's values and what Canadians really want to see happen in this land.

Perhaps there is a problem there. Does the member think there is and, if he does, how should that be handled?

SupplyGovernment Orders

12:35 p.m.

Progressive Conservative

Greg Thompson Progressive Conservative New Brunswick Southwest, NB

Madam Speaker, the member is onto something, which is I guess is the point that we are attempting to logically debate today. This is a big question in the minds of many Canadians and in fact some civil libertarians on issues like that. There comes a point when we have to ask, “Who are we protecting? Are we here to protect the greater society or the greater good or an individual that has been convicted of a heinous crime?” That is really the essence of the debate.

I think many Canadians fall down on the side of that member in this case. I think the law has let us down. Who was it who said that the law is an ass from time to time? I should have the full quote before me, but this is an example of where the law in a sense has to be revisited.

If we are talking about the charter, there are many members here who have legal backgrounds. This is a road that most governments do not want to go down. We tried that in the late eighties, early nineties and right through to the fall of the Progressive Conservative government in 1993 where we paid a heavy price for some of that constitutional renewal. Some of the charter issues were being debated then.

We do have in the charter a notwithstanding clause which, to my knowledge, the federal government has never exercised. Some of the provinces have from time to time. In other words, notwithstanding these rights, the Government of Canada would have the chance to basically put the charter on hold for five years I think while it thought its way through some of these issues. That in fact has never been used by the federal government and I think it has only used twice by the provinces. One of them was the province of Quebec and, if I am not mistaken, I think the province of Manitoba as well.

There is a safety mechanism or trigger in the charter which is very seldom used by the federal government, much to the chagrin of many Canadians from time to time.

SupplyGovernment Orders

May 8th, 2003 / 12:35 p.m.

Canadian Alliance

Kevin Sorenson Canadian Alliance Crowfoot, AB

Madam Speaker, I rise today to participate in this debate asking the House to call on the government to bring in measures to protect and basically to reassert the will of Parliament against certain court rulings. More specifically, I want to draw some attention to the ones granting prisoners the right to vote.

On August 13, 2002, an editorial by Dan Gardner appeared in the Ottawa Citizen that concluded:

--it's not judges that deserve to be pummelled. It's the elected politicians who didn't have the guts and vision their job demanded.

Although Mr. Gardner has referred solely to section 15 of the charter in relation to same sex marriages in his editorial, there are numerous examples where judiciary, particularly those within the Supreme Court, are creating new law in their rulings.

Before I proceed, I would like to take the opportunity to thank my colleague from Provencher for the excellent speech that he delivered this morning and the powerful arguments that he presented regarding Parliament defending the traditional definition of marriage and Parliament's role here.

The member for Provencher as well as our other colleague from Surrey North travelled throughout the country over the course of the last month and a half with the Standing Committee on Justice to hear numerous witnesses present arguments both for and against changing the definition of marriage.

For the record, I fully support the position of my colleague and my party that the definition of marriage should remain as the union of one man and one woman to the exclusion of all others.

As I stated earlier, judges are creating laws in this country. This is not just in the opinion of member on this side of the House, but I refer members to today's editorial in the National Post “Looking for leadership”. Let me read the first paragraph:

Canadians expect that their elected representatives will have the courage to tackle divisive questions head-on. Yet on two of the most prominent issues facing this country--marijuana decriminalization and gay marriage--it is the court system, not Parliament, that has taken the lead. Will the federal government take a definitive stand now that lower court decisions are piling up on both issues? Or will it stand back and let the Supreme Court usurp the role of legislator--as it is regrettably done in the past...

It goes on and lists a number of issues on which it stepped out.

Effectively, the decisions or judgments of judges are being substituted over that of elected representatives of the people. We therefore must ask, “Why and how are judges entering into an area that has exclusively been the prerogative of Parliament?

The partial answer to that question appears in a column that I read in a 1999 edition of Choices . In the article “Wrestling with Rights: Judges, Parliament and the Making of Social Policy”, author Jane Hiebert says:

Since the Charter’s introduction, the judiciary has passed judgement on the constitutionality of a breathtakingly broad range of political and social issues from the testing of cruise missiles in Canadian airspace to euthanasia...

--the Charter has changed the political environment and climate of legislating and is influencing legislative choices at all stages of the policy process..

Effectively, according to Professor Hiebert, the charter offers:

--a convenient refuge for politicians to avoid or delay difficult political and moral decisions. Elected representatives can insulate themselves from criticism, and political parties can avoid risking party cohesion, by ignoring controversial issues and claiming that fundamental issues of rights should first be resolved by courts before political decisions are taken...Thus, the expectation is for political inaction in which Parliament not only avoids issues but does not exert influence on how the Charter should be interpreted and applied to social conflicts.

Professor Hiebert contends “this is an abrogation of political responsibility to make policy decisions in the public interest”.

Former attorney general of British Columbia, Alexander Macdonald, agrees with Professor Hiebert. In the book that he authored, Outrage: Canada's Justice System on Trial , Mr. Macdonald contends that the Charter of Rights and Freedoms has entangled the criminal justice system in a mesh of judge-made law. He says that elected officials are too powerless or scared to lift a finger to stop it.

The former British Columbia attorney general says that government may have to consider wider application of the notwithstanding clause, the Constitution's rarely used escape valve, to deal with judicial activism and courts that go far beyond what people think is common sense and fairness.

Pointing to the British Columbia court decision that struck down the law against possession of child pornography, Mr. Macdonald demonstrates how courts are substituting their judgment over that of the elected representatives of the people.

In the book that Mr. Macdonald wrote, he also touches on what he calls “the whole immigration fiasco, thanks to the Singh decision”. This one-time lawmaker says that as a result of the Supreme Court's interpretation of the law, if somebody gets into Canada and touches Canadian soil, whether they are smuggled in or have falsified their papers, it does not matter. They immediately get a lawyer and can buy two or three years while they go through the process, quite possibly selling drugs and committing other crimes while they wait to be processed, all at the expense of the Canadian taxpayers, and all at the expense and time of genuine refugees who are unable to afford or receive a hearing.

For all the examples of where the courts have overturned laws passed by Parliament and failed to reassert its authority, there are examples where this and previous governments have deliberately and with much forethought abrogated their responsibility by drafting and passing legislation that is full of holes and therefore wide open to interpretation.

Bill C-41, which gave us conditional sentences, is a prime example. Under this legislation which passed in 1995, any person convicted of an offence for which the punishment is a sentence of two years less a day may receive a conditional sentence, meaning they are not incarcerated but remain at home under house arrest or under certain other conditions. Although my party, the Canadian Alliance Party, repeatedly asks that the legislation be amended to limit conditional sentences to non-violent offences and first time offenders, the government refuses to amend the law.

Subsequently in case after case, including manslaughter and rape cases, time and time again these violent offenders were receiving conditional sentences. Still the government failed to amend the law despite many demands from victims groups, the Canadian Police Association, and those of us sitting in the official opposition. Ultimately the courts ruled that conditional sentences were not off limits to violent offenders, and if this in fact had been the intent of Parliament, it should have been written clearly within the law. That is what the courts say.

As I stated in the House just over a month ago, the Supreme Court will be ruling any day on whether or not warrants allowing for the taking of DNA samples is unconstitutional. A convicted rapist's lawyer in this case is not arguing his client's innocence, and he is not arguing that there has been a miscarriage of justice. He is arguing against the law that has allowed the police to obtain evidence against his client.

As I also mentioned in the House in regard to the Feeney decision, Supreme Court Judge L'Heureux-Dubé in her dissenting opinion said that while the rights of the accused are certainly important under the Charter of Rights and Freedoms, they are not all the equation. This Supreme Court judge boldly suggested that it was time to reassess the balance the court has struck between protecting the individual rights of the accused and preserving society's capacity to protect its most vulnerable members and to expose the truth. Judge L'Heureux-Dubé said:

--perhaps it is time to recall that public respect and confidence in the justice system lies not only in the protection against police abuse, but also in the system's capacity to uncover the truth and ensure that, at the end of the day, it is more likely than not that justice will have been done.

In regard to courts overturning a law passed by Parliament, a prime example occurred on October 31, 2002. On that date the Supreme Court overturned a 1993 law passed by Parliament prohibiting prisoners serving a sentence of two years or more from voting in a federal election.

The court found that the law infringed section 3 of the Charter of Rights and Freedoms which gives every Canadian the right to vote. Section 3 cannot be overridden by section 33, which is the notwithstanding clause. However, the government can, but in this case has chosen not to, introduce a constitutional amendment to reverse this decision.

Given the government's failure in this regard, the Canadian Alliance has stepped forward and tabled a constitutional amendment. The amendment we have put forward would replace section 3 of the Canadian Charter of Rights and Freedoms, part 1 of schedule B, with the following:

3.(1) Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and be qualified for membership therein.

3.(2) Subsection (1) does not apply to any person who is imprisoned.

It is a constitutional amendment. Effectively this constitutional amendment would mean that no person imprisoned at the time of an election would be guaranteed the right to vote under the charter.

In the opinion of members on this side of the House, an opinion that I am confident is shared by the general public, the majority of Canadians, convicted persons should not enjoy the same rights as upon conviction they do not enjoy the same liberties as law-abiding citizens.

For the government to continue to assert the rights of the offenders over the rights of the victims, over the protection of society I believe is an affront to Canadians in general and to victims more specifically. Again I am confident that the majority of Canadians would be of the same opinion.

According to a poll that was commissioned by the Solicitor General, a majority of Canadians believe safety and security concerns should override the protection of some individual rights. Two-thirds of Canadians think that police and prosecutors should have more power to fight crime even if that might be seen as an infringement on some individual rights.

Furthermore, and again I remind the House that this is a poll by the Solicitor General's very own department and I quote from it, “just under half of Canadians are very or somewhat confident in the prison system, while only one in three would say the same thing about the parole system”.

While the spokesperson for the federal parole board says that he believes this apparent lack of confidence is only as a result of misperception, Correctional Service Canada has provided absolutely no comment, at least to my knowledge, regarding the majority of Canadians who have zero or no confidence in the prison system. One can therefore only surmise that it too would chalk up this confidence crisis to the misperception of Canadians when the truth is Canadians have ample reasons and examples to have no confidence in the correctional system, which is shown in the case of a number of offenders, one of which I would like to point out.

His name is Michael Hector. In 1995 the National Parole Board let armed robber Michael Hector out of prison. Within less than two years Hector went on a killing spree. On January 9, 1997 he shot Robert McCollum in the face point blank. He walked up to him and killed him instantly. The same day he shot Kevin Solomon, I believe in the back, while he took a shower because he was a possible witness in the McCollum murder. In the same month he stuck the muzzle of a .38 calibre revolver into the back of 20 year old Blair Aitken's head and pulled the trigger after robbing this student and gas station attendant of $944.

On May 5, 1997 Michael Hector, entering a guilty plea to three counts of first degree murder, was given a life sentence for 25 years with no eligibility for parole.

This past Easter weekend, the families of the murder victims learned that after only six years in a maximum security facility, this multiple murderer had been approved for transfer to Archambault Institution in Quebec. That institution is a medium security penitentiary.

This is not an isolated case. It is not a case out of the blue that we have never heard about. This is another example of the correctional system. There is example after example of murderers being transferred to medium, from medium to minimum, and from maximum to medium after serving only a few years of their incarceration. It is these cases that have resulted in Canadians' lack of confidence in the correctional system, their lack of confidence in the prison system and the parole system.

I suggest that the Liberal government has not tabled a constitutional amendment to deal with the Supreme Court's decision because deep down it agrees that prisoners should have the right to vote. Deep down the Liberal government believes that we should never take away the right that these murderers have to vote. The Liberals agree that Michael Hector has the right to vote. They agree that Paul Bernardo has the right to vote. They agree that Clifford Olson has the right to vote. Two of Canada's most notorious sex offenders and multiple murderers, Bernardo and Olson, the Liberal government believes should have the right to vote.

Given the cushy quarters of many of our resort-style prisons in which these and other violent offenders, including Clinton Suzack, are housed, the Liberal government is hoping that granting prisoners the right to vote may improve their chances in the next election. It has already been mentioned that Clifford Olson can hardly wait to vote for the Liberal Party. If the right to vote does not, then perhaps allowing prisoners unlimited access to many other rights should be an affront to Canadians as well.

Over the last couple of months we have noticed in the House where we have given the prisoners the rights to explicit movies, the rights to pizza parties and porn parties, and the rights to have their drugs in prison, to a certain degree.

Our military boot camps do not have TVs, let alone movie channels. They do not have posh weight rooms or air conditioning. If that is good enough for our young men and women who serve this country, it should be good enough for those who are trying to undermine this country and destroy the safety and security of our citizens.

The Solicitor General and Correctional Service Canada maintain that they have a zero tolerance toward drugs in prison but everyone in the House understands the rampant problem of drugs and alcohol in our federal institutions. Sitting as a member of the non-medical use of drug committee, I witnessed firsthand the problem of drugs in our prisons.

In my opinion, no prisoner who is not drug free should be eligible for early release or parole of any kind. If prisoners come up positive in a drug test they should not be eligible for early release. If they cannot remain clean inside, how will they ever remain clean outside? If they cannot function outside in society they will remain inside. Visitation should be strictly limited only to those willing to undergo a thorough search in prisons where drugs remain a problem.

Prisons should not be Holiday Inns and prisoners should not, in my opinion, be afforded the same rights as law-abiding citizens. Prisoners in federal institutions should not have the right to vote, regardless of what the courts say.

Again, I am confident that Canadians would agree. I therefore implore the House to call on the government to bring in measures to protect and reassert the will of Parliament against the court rulings that granted prisoners the right to vote.

SupplyGovernment Orders

1 p.m.

Notre-Dame-de-Grâce—Lachine Québec

Liberal

Marlene Jennings LiberalParliamentary Secretary to the Solicitor General of Canada

Madam Speaker, the people of Lachine are very happy that you pointed out that they live in my federal riding.

Today I have the honour of speaking to the opposition motion that proposes debating the respective roles of the judiciary and the legislative branch.

The motion asks the opinion of the House on whether federal legislation should not be amended or rewritten by our judiciary. For the benefit of the House and Canadians across the country who may be following this debate right now, I would like to reiterate what, exactly, the motion says.

The Canadian Alliance motion moved by the member for Provencher proposes:

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.

That is the motion we are considering today.

Democratic society depends on the intervention of several levels, such as Parliament, the executive and the judiciary.

I would like to remind members that it is not the courts that restrict Parliament, but our Constitution as well as the Canadian Charter of Rights and Freedoms. This debate on the role of our courts should not be surprising, given how new our charter is. There is no doubt that the role of Canadian courts is to interpret our laws, our constitution and our charter.

Since the charter was enacted, 20 years ago, this role has taken on a new meaning. There is nothing ambiguous about the fact that the charter has had a direct and indirect impact on the lives of Canadians.

The result is that a dynamic dialogue has been established between the courts, the executive and Parliament. I believe that this dynamic dialogue is healthy for society and democracy.

Unconstitutional legislation is regularly replaced by legislation with similar objectives that meets constitutional criteria. Interpreting the charter gives the courts a greater role in the life of Canadians.

Since the charter was enacted, the courts have certainly had a greater impact on Canadian law. Decisions handed down by our courts are based on the constitution and follow well-established rules used to interpret the constitution and legislation, not on the intellectual or philosophical preferences of each judge.

The critics of judicial activism are deliberately creating the impression that the courts are usurping Parliament's role. This has caused Canadians to wonder about the legitimate role of the courts in interpreting legislation.

Inevitably, some individuals or groups will disagree with some of the decisions by our courts. Normally, the public only becomes aware of the debate when a court hands down a controversial decision.

Canadian judges have an increasingly demanding constitutional role, ruling on issues that are fundamental to all Canadians.

I am the first to recognize that the decision-making role of judges is often not the most popular. This is inevitable, given that the legislator asks them at times to make difficult and controversial decisions on economic, social and legal matters.

For these reasons, our judges must not base their decisions on an issue's popularity or pressure from certain lobbies. This is essential for all Canadians, so as to preserve the independence of the judiciary. Its independence is one of the most important tenets of the Constitution, so as to instill in Canadians trust in our judicial system.

Despite the fact that some members of society will not necessarily agree with a particular decision, the public must understand that our judicial system in Canada makes its decisions without interference from any corner.

These attacks that insinuate that there is a problem with the judicial system and the role of judges undermine the trust of Canadians in our judges and courts. Moreover, they also have a disinformation effect on the public regarding the role of the judiciary. Judicial tribunals have demonstrated that they recognize their role within a democratic society.

It should be noted that judges must be independent and free to make decisions that are often difficult and unpopular. This independence adds to the public's respect for equity and the rule of law.

In spite of this, elected Parliaments, acting through their members—like the hon. members of this House here today—remain free to amend legislation or introduce new legislation in the public interest. Still, such legislation must also go through the test of constitutionality. Why? Because we live in a democratic society based on a constitution and, for 20 years now, a charter of rights and freedoms.

I agree that there should be an informed public debate on the role of the courts. I am happy to say that this debate is going on today in this House, as well as in society at large. In order to see through the often groundless attacks on the judicial system, the public needs to have a better knowledge of the important role of the judiciary in our Canadian democratic system.

The opposition motion presented by the hon. member for Provencher is related to judicial decisions on three issues. The first is the issue of “the definition of marriage as decided by the House as, 'the union of one man and one woman to the exclusion of all others'”. The second part of this motion concerns court decisions that “grant house arrest to child sexual predators and make it easier for child sexual predators to produce and possess child pornography”.

Lastly, the third part of the motion is opposed to judges' decisions granting inmates the right to vote.

I will start by looking at the issue of inmates' rights. According to the Canada Elections Act, any person serving a sentence of two years duration, or longer, was ineligible to vote. A court judgment found it was unconstitutional to impose a blanket prohibition on the right to vote of all those sentenced to over two years.

Let us look at that. It was in the Sauvé decision of October 31, 2002, that the Supreme Court of Canada, the highest court of this land under our Constitution, ruled that the blanket prohibition violated the constitutional rights of federal prisoners to vote under section 3 of the charter and could not be justified as a reasonable limit in a free and democratic society under section 1 of the charter. This is the second time that the Supreme Court of Canada has ruled in favour of the voting rights of prisoners.

The Government of Canada must respect the court's decision. What does that mean? In my personal view, it does not mean necessarily that all prisoners who have been sentenced to two years or more of imprisonment constitutionally have the right to vote. What that decision says is that we may not, by blanket decision, remove the right to vote for all.

I would suggest that our government should look at the possibility of putting into place a legislative system with the proper checks and balances. It would allow a judge, for example, when declaring someone who has been condemned to more than two years as a dangerous offender to hear a submission from the Crown that the judge should also order that the individual would not be allowed to vote. We could do a reference to the Supreme of Canada asking it whether that kind of limitation would be constitutional or a violation that is unjustified under section 1 of the charter? I think there is an interest in doing that.

I agree, however, with the Supreme Court of Canada that a blanket prohibition is not constitutional. A prohibition should be well defined for certain offences under specific conditions and where it is not blanket, where there is an independent decision that is made, and where the individual's charter right to vote may be limited or taken away, there must be an opportunity for that individual to speak to the issue and to defend his or her right. That is my personal opinion.

However, I would not be in favour of using the notwithstanding clause. I believe that a proposal to amend the charter of rights is not a realistic option given that such an amendment would require resolutions of the Senate and the House, as well as the legislative assemblies of at least seven provinces that have in total at least 50% of the population. The special voting rules of the Canada Elections Act allow prisoners to vote who are serving sentences of less than two years. Elections Canada has adopted those rules to collect the votes of those federal inmates who are Canadian citizens and are serving a sentence of less than two years.

To reassure Canadians, prisoners vote by special ballot. Their votes are counted in Ottawa by the special voting rules administrator. Prisoners vote for a candidate in the riding where their place of ordinary residence is located. This is not the penitentiary or the prison, but the place where they lived before being incarcerated. If there are fears on the part of some Canadians that the fact that they live in a federal riding where a federal penitentiary or prison is located and that this might have some impact on who actually is elected, there would be little risk of votes by prisoners significantly affecting the result in any given riding.

I understand that there are some members who have been elected with a one vote majority, a five vote majority and a 10 vote majority. I understand their concern if they are in a riding where a penitentiary is located. However, as I said, the votes taking place in the penitentiary are not attributed to that riding unless the inmate casting the vote lived in that riding prior to being incarcerated.

There are approximately 12,000 prisoners in federal penitentiaries. The national average of prisoners associated with each federal riding is approximately 40. It could go up. It could be somewhat less, but it is the national average. The government has already referred the matter to the Standing Committee on Procedure and House Affairs pursuant to Standing Order 108(2) with a request that the committee consider the impact of the Sauvé decision and the scope for legislation in light of the ruling.

Members have already heard a suggestion from my part as to how the committee may wish to look at blanket prohibition, but there is the possibility that we could develop a definite scheme that would meet the test under the charter. Another part of the motion deals with marriage.

Marriage is a recognition of the union of same-sex partners. As I said, the motion addresses the fact that lower courts in British Columbia, Ontario and Quebec have brought down divergent judgments on the heterosexual requirement of marriage.

These judgments were appealed and a decision was brought down just recently by the British Columbia Appeal Court, on May 1, 2003. The Ontario appeal was heard in late April of 2003, and is still pending. The date for the appeal hearing in Quebec will be set shortly.

As hon. members are aware, the three lower court decisions were appealed because the government wanted clarification from the courts on certain legal matters on which judges had given a variety of interpretations.

Marriage, however, goes beyond the strict limitations of the law. I acknowledge that, I agree with that. The Minister of Justice has said that he firmly believes that Parliament is the best place for us, as a society, to address this important issue.

On November 12, 2002, the minister announced that he was referring the issue of marriage and recognition of same-sex unions to the Standing Committee on Justice and Human Rights, He asked the committee to study possible policy approaches to this issue, to hear from Canadians and to provide him with recommendations on possible legislative reform. We are waiting for the committee report and hope that recommendations will be forthcoming.

I am a member of that committee. We travelled all across Canada, and heard from hundreds of Canadians. Now we are drafting the report and holding in camera discussions. I cannot say more on this, therefore, but the government is treating this seriously.

SupplyGovernment Orders

1:20 p.m.

Canadian Alliance

Brian Fitzpatrick Canadian Alliance Prince Albert, SK

Madam Speaker, that was a good speech from the member opposite.

I have a question pertaining to section 33 of the charter of rights. When the charter was designed, an agreement was reached between the premiers and the Prime Minister at the time. People foresaw the situation where there would be a conflict between the courts and the public, as well as the value system of the country. There would be a clash. The compromise that was reached was section 33 of the charter which says that when that happens Parliament has the final say not the courts. That is part of section 33.

There are members opposite who take the position that section 33 should never be used and that the courts should always have the final say. On some issues we are talking about, public opinion is 90% against the court decisions. Does the member opposite believe that there are situations in which Parliament should exercise section 33 and override the decisions of the courts?

SupplyGovernment Orders

1:20 p.m.

Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

Madam Speaker, as I said, section 33, the notwithstanding clause, may not be used to override section 3 of the charter, which guarantees the right to vote. This would require an amendment to the Charter and such an amendment can only be made with a resolution of the House and the Senate, as well as resolutions from the legislative assemblies of seven provinces representing 50% of the population.

I simply wanted to provide the context for my response. As for his specific question, I am a lawyer by training; I am not an expert in constitutional law, despite having studied it in law school. However, I can say as a Canadian citizen who is very proud of our Charter of Rights and Freedoms, that I hope that our federal government and this House will never be called upon to enact legislation invoking the notwithstanding clause.

I hope that we will never get to that stage. I believe that with the intelligence of members of our society, with the creativity to be found here on both sides of the House and in the Senate, among the executive and our judiciary, we will never be in that situation. I believe that we will have the ability to reach a consensus that will respect the Charter and our Constitution, without the need to invoke the notwithstanding clause.

I know there are some provincial legislatures that have invoked it. Personally, I deplored this. According to our Constitution, when the notwithstanding clause is invoked, it is valid for only five years.

That means the issue will come back every five years. Parliament will be called upon to debate and decide whether it agrees to invoke the clause again. This would mean that the issue would never be resolved for the public and for the people who are directly affected by the issue and by the right with respect to which the notwithstanding clause was invoked.

I find it quite surprising that a member of the Canadian Alliance asked this question.

I said I was surprised, but in fact I am not surprised: At its last convention, the Alliance Party debated a policy resolution calling for the repeal of the Charter of Rights. Even the watered down version that it finally passed reflects, in my view, an appalling disregard for individual liberties and personal freedom. It also in my view reflects an appalling disregard for a society founded on the rule of law, on a constitutional democracy, on the separation of powers of the executive, the legislature and the judiciary. I for one would not want to live by choice in a society where we did not live, work, legislate and rule under a Constitution, under a charter that guarantees individual rights and freedoms.

SupplyGovernment Orders

1:25 p.m.

Canadian Alliance

Chuck Strahl Canadian Alliance Fraser Valley, BC

Answer the question.

SupplyGovernment Orders

1:25 p.m.

Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

I did answer the question, Madam Speaker. I was asked if I would be in favour of invoking the notwithstanding clause, and I made it clear that no I would not and--

SupplyGovernment Orders

1:25 p.m.

Canadian Alliance

Chuck Strahl Canadian Alliance Fraser Valley, BC

It's part of the Constitution.

SupplyGovernment Orders

1:25 p.m.

Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

I would hope, Madam Speaker, that we would never as a Parliament be in a position where we would invoke the notwithstanding clause during my lifetime.

I deplore the fact that there are some provincial legislatures that have in fact invoked it. But what is interesting is the case of my home province of Quebec, which in fact did invoke the notwithstanding clause on the sign law. While I deplored it, I applauded the government because it used that five year period in order to find a legislative solution to the problem which respected the needs of the majority of the population in Quebec and the survival of the French language and at the same time respected minority rights. The legislation Quebec came out with afterward in fact did meet the charter test. It met the charter test at fifteen and it met it the charter test at one.

While I deplore the use of the notwithstanding clause, I do recognize that at times a provincial government may have had to do that in order to allow time to seek a solution. However, I would never be in favour of repealing our Charter of Rights and Freedoms, as was debated at the Alliance convention. I can only say that the fact such a thing was debated, while there was a watered down version, is still somewhat appalling. I guess it reflects that leader's view that the justice system is only for the protection of property and for punishment and not for the protection of individual rights and freedoms.

It is too bad that I am not permitted to ask questions at this point in time of the members opposite. I hope the member opposite will be taking part in this debate if he has not already done so because I have a few questions for him.

I find it amazing that this attitude comes from the Alliance Party, which has so often criticized the use of the notwithstanding clause in the province of Quebec. There is a disconnect there. On the one hand, that party thought about or proposed repealing the charter. On the other, it asks me if I would be in favour of using the notwithstanding clause. This would allow the conclusion that those members are in favour of that. At the same time, that same party, or its previous incarnation as the Reform Party, criticized the Government of Quebec for using the notwithstanding clause. I wish that party would get its act together and make up its mind.

SupplyGovernment Orders

1:30 p.m.

Canadian Alliance

Myron Thompson Canadian Alliance Wild Rose, AB

Madam Speaker, once again it is a pleasure to rise and speak to the issues in regard to the motion today.

Just before I get into that, though, I must say that some of the members I heard speak here today have been very effective at confusing me. I heard one member say that we must abide by and live under the Constitution of Canada and then deplore section 33, which is part of the Constitution, if I am not mistaken. I do not understand where the member is coming from. She deplores section 33 but she loves the Constitution of Canada. That section is part of the Constitution. Maybe one of these days we will have to meet somewhere and she can explain that one to me.

By now everyone will know that I am going to stick to one issue that is on the agenda of this supply motion. That, once again, is child pornography, an issue that is burning at the bottom of my heart and which I think must be dealt with and must be dealt with quickly.

I think everyone in this House, the 301 members of this place, would agree that they do not want any child pornography to exist; I do not think we would find one member who does not. I also think they would agree that in their own ridings probably 90% or more of the people deplore child pornography and would like to see it abolished and banned in its entirety. I do not think there is any quibbling about that.

The question is, do we as a Parliament have the ability and the authority to achieve this? In my opinion, we most definitely do. It would take leadership. It would take determination. It would take a commitment to put all party differences aside and work together to deal with an issue which we know beyond a shadow of a doubt is affecting thousands of children across this country alone, not to mention what it is doing internationally all across the world. The people most vulnerable to abuse are the young people, the kids. I am talking about kids all the way down to the age of two months who have been identified as victims of sexual abuse or sexual predators and pornographers.

If we were to stop and think about that for a moment, I am sure we all would like to say we would like this to disappear tomorrow, we would like to see it gone. We know that is not going to happen, but I think that collectively we can work together to make an effort to do our very best to get that show on the road to abolish and ban it in its entirety, because that is one thing that not only Canadian children but all children across the world deserve: to be free from child predators and this kind of abuse.

As well, if I have heard this once I have heard it a hundred times: “The trouble with the member for Wild Rose is that he is not interested in getting to the root causes of these kinds of problems”. The root cause of these kinds of predators existing and being active across this world is, as has been determined by a number of psychologists, a number of psychiatrists, people working in the medical field, people on the front line and by predators themselves, the root cause of most of these abuses is child pornography. So let us stop the rhetoric about getting to the root cause. It has been pretty well documented and determined that child pornography is the root cause of this kind of problem. We have discovered that now, so let us stop the rhetoric about getting to the root cause. We know what the root causes are. We have good evidence of that.

Let us go after the root cause. The root cause being child pornography means that 301 members of Parliament, on behalf of probably 32.5 million Canadians who would love to see this happen, must come together on that one issue and stop muddling that issue by putting it in a bill such as Bill C-20 with other issues that are going to take a lot of discussion and time. Let us separate it, set it on its own and say we are going to deal with that.

SupplyGovernment Orders

1:35 p.m.

An hon. member

Have the courage.

SupplyGovernment Orders

1:35 p.m.

Canadian Alliance

Myron Thompson Canadian Alliance Wild Rose, AB

Let us have the courage to do it. We know we have the support to do it.

If there is one thing that I have been able to determine in my visits across the country it is that the individuals in the police departments who are assigned to the child pornography units, who are doing their best to fight it, are crying out and pleading with this government to give them the sources and the resources that it is going to take to set up a national strategy to deal with this once and for all, a national strategy that would reach out to other countries to form an international effort, which is well underway in a lot of other countries already. Let us join their efforts to do this.

There has not been one commitment in the form of the budget, not one commitment in terms of dollars and cents that has shown up in any one of the police departments or any one of the areas of jurisdiction that are making an effort to put an end to this terrible thing that is going on in our society. We could start by committing a certain amount of dollars to that cause. Then we could come together as a group of 301 to ask how we are going to accomplish this, spend a day or two to make sure we get it right, and then go forward with it. This would send a loud message to the predators and the child pornography distributors all across the country: “Folks, your time is coming to an end because it is not going to be allowed”.

Instead, what has happened is that the government has tried to come up with legislation that will appeal a decision made by a court, which allowed pornography to continue because there might be some artistic merit to it. In its wisdom, the government came up with a paragraph in its document that says we will get rid of that and what we will do is put in “public good”. Once again the minister has left in the hands of unelected and unaccountable judges the determination of what constitutes public good.

I can assure the House that the Toronto police department, which has approximately two million pieces of evidence in the form of child pornography, is really going to enjoy trying to go through two million pieces of this to determine whether it has any public good. We can almost be certain that any time a charge is brought against a person for having possession of or distributing that particular item, the person will be able to claim the defence of public good. Our courts will be jammed day after day and we will never get anywhere because we have allowed the courts to leave a loophole. No one will be charged.

The government has come back and is reinforcing that loophole with Bill C-20. I say, close the loopholes, listen to the people who have signed their names on the petitions that have been tabled in the House of Commons. Hundreds of thousands of Canadians are begging us to take up legislation that will put an end to the torment and the exploitation of our children across this land. They want it stopped. They have appealed to us to do it because they believe that we are the body of people who can do it.

I have to ask every member in the House of Commons, from every party, whether they would agree that we can do something about this problem. If they do agree, then we must do something about this problem. The last thing I would ask is whether they have the courage to move forward immediately and set this particular item on the table all by itself, not to muddle it with all other social issues but to get it underway and help our police departments across the land to deal with it, to set up a national strategy program and fund it.

Funding is no problem for the government. It found $100 million not too long ago to help out the City of Toronto regarding SARS. I can assure the people in the House that there are police officers who would love to get their hands on $100 million to help them in their fight on child pornography. No one can say for a moment that one is worse than the other, because I can assure members that the number of victims of child pornography far exceed the number of victims of diseases.

I do not think there is anyone here who would not agree that it can be done, so let us do it. We were elected to bring about the will of the people, and I can assure the members who are in here today that the will of Canadians is to stamp out child pornography once and for all, to get rid of it, and to make every effort we can to do it and not muddle it with clauses that leave loopholes.

Child pornography has no artistic merit and does not serve the public good. Every Canadian, except for the 2,500 pedophiles who have been identified, would attest to that to the highest degree.

I find it discouraging that this topic comes up over and over again. In the last six months I do not know how many times I have spoken to this very issue.

I find it discouraging that adult men and women, who are in a position to really do something that will protect our children, cannot come up with an idea or the dollars to do just that but have no problem inventing all kinds of ways to implement a gun registry program, for example. I do not think the almost $1 billion they are going to spend on the gun registry will have much impact on the safety of our children, not nearly the impact that fighting child pornography would have. The police departments would be the first ones to tell us that. The things they see are devastating.

The other problem is that the images we talk about in child pornography are not drawings or sketches. The majority of these images are photographs. These are real people. These are children who are alive and exist, and we do not even have a thing in place to identify who these children are so we could possibly rescue them out of their situation. Whether it be in Canada, in Europe or in the U.S., it does not matter, these children need to be rescued from this horrible plight.

There are countries that have gone to the extent of doing something about that. Sweden sort of set up the initial part of it. Canada was there and observed what it was going to do. It has a program which, generally speaking, is beginning to work. This thing was spread out to other countries, including the United States.

As a result of that program, the police have been able to identify some of the victims and some of the predators. While we sit on the sidelines, not participating in this kind of activity, a project in place in other parts of the world called “snowball” has identified for our police departments in Canada over 2,000 predators who reside in Canada. They know their names and where they live.

We should be participating in this program to help identify the victims, the predators, the distributors and the people who are making millions of dollars in profit off this evil thing, and start to wipe it out. That is an action we could take that would be so positive.

SupplyGovernment Orders

1:45 p.m.

An hon. member

So popular.

SupplyGovernment Orders

1:45 p.m.

Canadian Alliance

Myron Thompson Canadian Alliance Wild Rose, AB

And so popular. It would probably get anybody some votes.

Contrary to what the NDP says about this party not being interested in major issues, child pornography and the safety of our children is a major issue in the hearts of Canadians. If members of the NDP do not think it is, I would ask them to please start reading the hundreds and thousands of signatures on petitions in this place alone which beg us to do something about it.

What are we facing in regard to all of this? I started reading some letters that come in from the public. These letters are only a reflection of the hundreds of letters in regard to this issue. One letter reads, “Last week I heard on the radio that we do not have enough money and people power to prosecute child pornographers but we have a billion dollars to establish a long gun registry to keep trapping and sporting tools of law-abiding citizens. What is wrong with this picture? Firearm owners are not potential criminals. Those who prey on young children are already criminals”.

That is a very good point. The government is going after millions of people because it thinks there is a potential problem but in the one area that we have identified, through the help of other methods, it is not doing anything about it.

We are not helping our police departments. In case the people over there do not know it, Toronto is a huge city. I think it has three or four officers to deal with two million pieces of evidence regarding child pornography. They are begging and crying for help.

Members of the RCMP in my own riding have told me that they are getting complaints about child pornography from various sources but that they do not know what to do about it because they are not trained. They give those cases to the police departments in Calgary or Toronto.

We should stop and think about how right the guy is who wrote the letter. He goes on to say, “I don't know why I bother going down to the law court buildings any more to watch our so-called justice system in action. I only get more frustrated and disillusioned every time I go”. He then goes on to talk about the number of child predators and child pornographers who are convicted. “In every case”, he said, “they were given house arrest and community service”.

It is too bad we have to spend so much time talking about this issue. Now we have to wait until Bill C-20 goes to a committee. Even the Conservative Party critic, much to my dismay, said that we had no choice but to support this because we had to get it to committee to try to fix it.

Getting a document to committee means it will take weeks and months and it could probably die. In weeks and months thousands of kids could die. It is time we decided to do something about it. The Liberal Party is the government in power. It has the ability to bring forward the initiative. What is it waiting on?

SupplyGovernment Orders

1:50 p.m.

Canadian Alliance

Chuck Strahl Canadian Alliance Fraser Valley, BC

Madam Speaker, I appreciate the comments of the member for Wild Rose. I know he is very passionate about this issue and worries tremendously, as all of us do who have children and grandchildren, realizing there is a lot of sickness out there, especially in the child pornography area. It is truly sick and truly evil. I appreciate his championing this cause. He has done it, as he has already said, dozens of times in the House. I encourage him to keep that up as long as necessary.

I would like to ask the member to comment on the Liberal government's attempt to deal with kind of a side bar issue, I guess one could call it, of the fall out from some of this child pornography. It brought in legislation a year or two ago to allow for the prosecution of people who go on overseas vacations and then abuse and use children in those exotic locations. People go on sex holidays so they can avoid Canadian laws and then use and abuse children. Of course this is all part of this whole worldwide child pornography connection. People are hugely connected and the sickness is not isolated to any one society.

Would the member comment on the number of prosecutions we have had under that legislation? I will give him the answer even though I know he knows it. The answer is zero, none, zip, no action, nothing. There have been no prosecutions, not a single filing of charges. That legislation is as useless as useless can be because the government is not serious about the issue of child pornography, about protecting children, not only in Canada but overseas, about realizing that it is an interwoven mess that goes from one continent and one culture to another.

However the same sick people are abusing everything from their own Internet fantasies to these vacations for sexual exploitation purposes. Yet nothing is done in a so-called modern society as ours. There is no strategy. We have feeble, useless legislation on the books and the government hides behind that by saying that it has done something through its legislation. Not only has there not been a single prosecution, there has not even been a single filing of charges under that legislation. It is the same thing for child pornography.

Does the member think it is an attitudinal problem or is it just that the government is afraid to put enough teeth in the legislation because it is afraid of the courts? I do not know what it is but I know what the net result is: no protection for kids, no national child pornography strategy and no one understanding that these are real kids in real peril right now.

SupplyGovernment Orders

1:50 p.m.

Canadian Alliance

Myron Thompson Canadian Alliance Wild Rose, AB

Madam Speaker, the member did a pretty good job of answering the question himself when he said that the number of convictions was zero. Other countries, Sweden for one and Australia for another, have programs in place following these kinds of activities. They are making arrests, convicting and sending criminals to jail. They are getting them off the streets to protect society as a whole. It can be done.

I do not know why the government sits idly by and does not engage in these kinds of activities with other countries. It has been invited. We have the technology. We have the money. It is not that expensive. We could do it. Why is there not a priority on it? It comes up with the idea that it is priority and that is why it brought in Bill C-20. The Liberals cannot seem to get it through their heads that Bill C-20 does not close the loopholes. There will be loopholes. The public good is there.

There are two million cases of child pornography in Toronto alone. I could not even begin to name the number of cases across the country. Every one of these items individually could be declared as public good by whoever owns, possesses or distributes them. If it has to go to court, we let the judges determine who is right or wrong. Let us send a message to the judges of our Supreme Court real quick. The people of Canada want child pornography stamped out and banned entirely but the government must take the initiative because it is in charge. We will support it.