Madam Speaker, we are debating a motion which calls upon Parliament to bring in measures to protect and assert the will of Parliament against certain court decisions.
It is straightforwardly put and I have listened carefully to the debate. I am not a lawyer and in some instances that gives me an advantage because I can ask naive questions, rhetorical questions they may be, hopefully to stimulate debate.
Whenever members of Parliament come to the House to speak, sometimes what happens to be before the House when one is doing House duty may not necessarily be one's area of expertise. As a consequence parliamentarians are offered a plethora of background material, a little history, and a few words of wisdom that may help them to look at the subject matter before the House and participate in debate. I want to share with the House some of the background information that was given to parliamentarians.
In 1982, Parliament adopted a new Constitution and entrenched the Canadian Charter of Rights and Freedoms. The charter embodies the values of Canadians, and sets out our rights and freedoms. According to some recent surveys, up to 90% of Canadians see the charter as a symbol of Canadian identity and believe it has played a crucial role in protecting our rights and freedoms.
That is a wonderful statement and I think it is hogwash. It refers to a number of surveys where 90% of Canadians believed that the charter sets our rights and freedoms and is a symbol of our Canadian identity. I am not sure if 90% of Canadians are even aware of what is in the charter or what it means. They have probably seen a news flash or heard someone once say that, but I am not sure that Canadians were engaged in the charter when it first became part of the laws of the land back in 1982.
The charter is a very interesting document. The whole process that Canada went through to patriate our Constitution and to enshrine a Charter of Rights and Freedoms was a significant event in our history, but it was also a political event. It was an event that had some interesting political manoeuvering. There was posturing, negotiating and trade-offs.
I do not think that the patriation of the Constitution with a Charter of Rights and Freedoms was a result of extensive consultation with Canadians or with parliamentarians. It turned out in some cases to be simply the discussions of two people huddled away in a kitchen trying to cut a deal.
We know what happened there. We know that Quebec was not a part of it and was not happy with the result. The then Prime Minister of the day, Prime Minister Trudeau, said that we had better take a deal while we can get it and that was celebrated.
Most of the debate that I have heard today has raised some of the questions related to the charter and the fact that it has broken through another dimension of the legal and judicial system in Canada.
I took a law course when I was in university. I learned about precedents and about the different areas of the judiciary. I always remember the roles and functions of the judiciary basically being to apply the laws as the courts interpreted them, to look at precedent, and to maintain some consistency and stability within the application of the law.
Very slowly, as a consequence of the charter, the question of interpretation started to creep in and it went even further. I discussed earlier with a member here in the House the concept of a list. There are certain groups that have been identified. I have often thought that if there is a list of anything that must mean that something is not on the list. Otherwise we would say all things.
Canadians would probably agree that the laws of Canada apply equally to all. Our Charter of Rights and Freedoms does not say that in simple terms. It is more complex and this is where the lawyers come in. This is why I appreciate not being a lawyer in that culture because I can ask questions about my motivation.
If a case were to come up that identified potential grey areas within the laws of the charter, I would imagine that it would be interesting to go to the Supreme Court to try and shape the interpretation of an aspect of our laws or the charter and win a case to make a difference. Part of the profession is the identification of areas within the charter and our laws which must grow as society grows. We change, but maybe not for the better in all things. Because of what has happened, I could mention a few areas where the world is not a better place, and child pornography is one of them.
This aspect of court-made law fascinates me. A couple of years ago I asked the resources of the Library of Parliament to provide me with some scholarly papers on the debate about court-made law. How did this evolve? Suddenly the courts of the land were interpreting the laws in different ways such that there were consequences to the application of those laws.
There were also consequences to Parliament which made those laws in the first place. We have gone through a period over the last 10 or 15 years where our laws have been challenged on virtually every front. This is because more precedents are being set. Where do Parliament and the courts fit with each other? The briefing note stated:
By adopting the charter, Parliament and the provincial legislatures decided to make explicit the right of Canadians to go to court and challenge laws. The roles of Parliament and the courts do not conflict, but rather complement one another and Parliament remains a key stakeholder. Through the charter, Parliament has provided the courts with a lens through which to interpret the laws that it has passed.
This cannot be so because we are now faced with many different challenges. Parliament and the courts do not complement each other in this regard because there is disagreement. Parliament, for instance, disagrees with the definition of marriage. This Parliament has voted on two occasions in the recent past that marriage is defined as the union of one man and one woman to the exclusion of all others.
Bill C-23 contains a preamble which reaffirms Parliament's view, on behalf of Canadians and the social values of Canada, that marriage is the union of one man and one woman to the exclusion of all others. Others have come forward to say that it leaves them out because they want to be married and enjoy recognition like married couples because they too are in a loving, caring relationship, and they believe that a loving, caring relationship does not have to be a man and a woman. This certainly does touch some hot buttons.
I have often thought that when people in this place talk about being discriminatory by using a term like homophobic, that the term was being used as a negative. However, I have also heard the word discrimination used in a positive context such as a person being discriminating in wines because one wine is different from another. There are differences and we celebrate those differences.
It would be a shame if everything in our world was reduced to the lowest common denominator. We would then have to look at everything that we had. If some people had more money than others, then their money would have to be redistributed so everyone would get down to the lowest common denominator. It does not make much sense to make us all the same. If we were all the same, this world would be boring. If everything is important, then nothing is important. If everything is a priority, then nothing is a priority.
Can we not discriminate in favour of the traditional family being the biological mother and biological father with a child? Marriage is an institution which does not offend people. One of the previous speakers mentioned a comment taken from committee testimony describing marriage as society's parent, not society's child. We should think about that for a moment.
We must understand that the basic instinct of every human organism is survival of the species. That is the number one instinct of all species, either human or non-human. The number one instinct is to survive, to propagate, and to flourish. We do that as human beings by procreating. For years mankind has had the urge to propagate, to have children, to grow families, to create a society, and to build a family tree. These are not bad things. As a matter of fact, our society grew to the point where it thought so highly about the important roles of the traditional family, of child with biological mother and biological father, that it started to discriminate in favour of that traditional family by giving it child tax credits, family deductions, or assistance for child care.
Every law in our land is discriminatory. If all things were equal for all people and at the lowest common denominator, there would be no injustices for the laws to deal with. All our laws are discriminatory and that is not a bad thing. I discriminate in favour of seniors and the disabled who need help. I discriminate in favour of aboriginals. I discriminate in favour of high unemployment areas which need assistance in job creation or alternatives, as in the terrible situation we are seeing now in the Atlantic fishery.
Yet, people are going before the Supreme Court and other courts in the land saying they are being discriminated against. By this action we are slowly eroding the variety and the vibrancy of a free and democratic society. Change is good, variety is good, and differences are good. We should celebrate our differences. Do we all have to look and act the same? No.
Our Charter of Rights and Freedoms says that we are all entitled to be treated equally under the laws of Canada and we should all enjoy those rights, without qualification. Lawyers felt it was a little more interesting to make it a little different.
I will give the House an example. Today I received a communication from a colleague who thought he had something in a similar vein regarding some difficulty in a bill before the House. It was a question relating to values underlying a free and democratic society. The legislation uses this language which was borrowed from the Supreme Court of Canada because it is part of the values underlying a free and democratic society.
Let us look at section 1 of the charter as interpreted by the Supreme Court with regard to the values underlying a free and democratic society. They are described as follows:
--respect for the inherent dignity of the human person, commitment to societal justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.
That is a mouthful, to say the least, but if members get a chance to look at the transcript and look at the statement again, it is a statement that arguably anyone could use to say, “I should be there”. In fact, the values of a free and democratic society are being defined by the Supreme Court of Canada as the consolidation of the values of each and every person individually and therefore everybody's values are there. But then we get into the problem that everything is important and, as I said, if everything is important then nothing is important. If everything is a priority then nothing is a priority.
Our value system cannot be a consolidation of everybody's values, because in a free and democratic society everyone has the right to have values and establish their own set of family, moral and social values. It does not mean that they reflect Canadian society's consensus on those values. Those values move over time and our laws will move to reflect them over time, but I must admit that there are certain things within our society which should not move.
This place is hypocritical if it does not put our children first. It is hypocritical if it does not uphold the fact that the existence of child pornography in any form constitutes an abuse of children and is bad for society. That is a value that has not changed and it should not be changed, so why are we now getting into things about someone who drew pictures from his or her imagination and there being artistic merit? If someone was in possession of photographs of children in compromising situations, clearly a matter of child pornography, why were they not charged for those pictures? Why were they also charged for drawings or for writings? It just opened a Pandora's box. I swear, Madam Speaker, if this was the intent, this was the perfect way to yet again open up this argument about child pornography.
There are certain values within our society that we should not abandon. I think that the issues with regard to protecting our society, our children, from the existence of child pornography and dealing with it in the strongest possible terms are unquestioned. It would pass 100% in the House in a plain, simple motion: Is that the value that we as parliamentarians want to defend on behalf of the Canadians we all represent? The answer is yes and yet the courts are discussing it, debating it and challenging it, and now we have legislation that talks about concepts such as public good. I do not need another vague definition. I do not need another uncertainty. I would rather split the case, split the bill, deal with the certainties first and let them play with their vagarities later on.
Finally, I think the debate has been useful from the standpoint of raising an important question, that is, it may be time for the question of the true supremacy of Parliament vis-à-vis the courts to be revisited. It is an important question. All people in Canada are represented by the 301 parliamentarians here. We have the opportunity and the resources as well as the responsibility to make ourselves aware of the views, opinions and values of our constituents, of all Canadians. When we bring them here, there can be no clearer voice than the voice of parliamentarians. I am sure that Canadians would agree that the laws of the land should be made by Parliament and not by the Supreme Court of Canada.