Dick Proctor

[The Budget, March 30th, 2004]

A crappy jewel?

[Canada Elections Act, March 26th, 2004]

Mr. Speaker, I thank the member for North Vancouver for that clarification.

On the matter of two people to constitute a party as opposed to one person, I think it would have been a good discussion. I am not sure how it would have gone, but I wish we could have had that debate. I am repeating myself here now, but I believe it would have been much more acceptable to a majority of Canadians if we had had that figure. The discussion on the Ontario legislation is instructive in that regard because it had the same number, as the member for North Vancouver pointed out.

It is quite unbelievable with regard to Mr. Figueroa, the leader of the Communist Party, that he was not even made aware that this bill had been resurrected and had gone to committee. He indeed had very short notice to come before the Standing Committee on Procedure and House Affairs to discuss that legislation. I guess it is a comment not only on that particular department of the government but perhaps overall. The government looks to be, since February 2 when we came back, a little helter-skelter in many areas as plans and priorities seem to change abruptly on the government side.

With regard to the committee, of which I was not a member when this suggestion of going from one to two was defeated recently, I think democracy would have been better served, I think this would be a better piece of legislation, and I think the opposition members would be happier to support this particular bill had we had that figure of two rather than one.

[Canada Elections Act, March 26th, 2004]

Mr. Speaker, I am pleased to speak to this bill. I am not sure if the debate is going to continue after I am finished my speech, but I am serving notice that I probably will not be using all of my time. Therefore, anyone else who is intending to speak should be prepared.

I had the opportunity to speak to this legislation on February 18 before it went to committee. I did not participate when the bill was at the committee stage. However, the member for Regina—Qu'Appelle was an important member of that committee.

Part of the reason for not needing all of my time today is that the member from the Bloc, as well as the member for North Vancouver have put the case very well as to what the problems are and what the reality is with this piece of legislation.

We are debating the Figueroa decision. The Supreme Court struck down some time ago the requirement for a political party to find at least 50 candidates and put the names of those 50 candidates forward in a general election as a condition of being registered as a bona fide party. The court in its wisdom ruled that the 50 candidate rule treated small parties unfairly by denying them three key benefits that are granted to larger parties. They are: first, the right to issue tax receipts for political contributions; second, the right to receive unspent election funds from candidates; and third, the right to have a candidate's party affiliation listed on the ballot. This treatment was found to be unequal by the court and to infringe upon the rights of citizens to participate in a meaningful way in the electoral process as protected by section 3 of the Charter of Rights.

The court suspended the impact of its judgment for one year, which expires on June 27. That was in order to give Parliament an opportunity to bring forward the necessary changes to the Canada Elections Act.

The bill has gone through the committee stage. The government has basically, as others have said, brought back the bill in the same form that it went to committee. The argument here is that the number 50 is too large, and we do not disagree. As a matter of fact, the member for Regina—Qu'Appelle introduced a motion at committee, which was narrowly defeated, that would have reduced the number from 50 to 12. That, as others have said in the debate prior to question period, would have made some logic and some sense, but it was voted down.

I attempted this morning to put forward another figure, simply because we agree that 50 is too large a number. It is under-inclusive, but the number one, in the opinion of the New Democratic Party, is certainly over-inclusive. It is too small a number.

I put forward today the suggestion for two, but it was ruled out of order. We would have thought that would have been at least twice as good as having just one member making it a bona fide party entitled to all the accoutrements that come with that, and having three other officers of the party.

I will not go over the concerns I have raised previously in debate on this as to my unhappiness with that particular number. We think it is a wrong number. We are concerned that the government thinks it is a wrong number and that is why it has included a sunset clause in the bill. We will come back here in the next Parliament and we will be debating this all over again.

I thought the member for North Vancouver made a very good point about the amount of money that has been wasted. If the government had agreed back in 2000 to set the limit at 12 as opposed to 50, we would not be in this position. That was apparently acceptable to the Communist Party of Canada, which is the party that has brought this concern forward, but it was ignored at that time. It is unfortunate that this was the case, because I think this could all be behind us and we would have a good piece of legislation that is supportable and happily supportable. I find myself and my party in the same position as the other opposition members who have spoken here today. We will support the bill, albeit very reluctantly.

Although I did not participate in the committee, I have read the arguments and positions that were put forward by the Chief Electoral Officer. I agree with him that as a result of this legislation we are putting him in a rather delicate position as the person who enforces the Canada Elections Act. In fact, in response to a question, Mr. Kingsley, the Chief Electoral Officer, said that he did feel uneasiness and he tried to convey that in his comments. He said, “I am trying to tell the committee that there is an authority underlying the bill to which I want to draw the committee's attention”.

I think it is really unfortunate that the government has allowed this to get to this stage instead of dealing with it in a more appropriate fashion and, indeed, in an earlier fashion. We had the prorogation of the House last November 8 or thereabouts. The bill was here and died on the order paper. It has been resurrected sometime since February 2 when we reconvened, but there has not been due care and attention paid to it. The amendments were not acceptable at the committee stage and, as I said a moment ago, we are back here dealing with a very unsatisfactory piece of legislation, but one that we need to get through in terms of the approaching election campaign.

On the business of just one person, the minority of one, so to speak, there is nothing that would prevent a leader of that party from continuing to raise money, to retain any unspent election funds and to continue in a way that may not be terribly productive. It could be more destructive than productive in the parliamentary process.

I take real exception to the government House leader saying this morning that somehow this will improve democracy. I do not see how it could possibly improve democracy by having the numbers so low; in fact, it is the lowest common denominator.

In conclusion, I think it is a temporary and totally inadequate solution. It is going to be rushed through the House in order to clear the decks for an election. The proof that it has many shortcomings is the fact that it has this two year sunset clause. We will be back here again to debate this. Like the other parties that have spoken in debate and in opposition on this, we will be supporting the bill, albeit most reluctantly.

[Health, March 26th, 2004]

But not accountable, Mr. Speaker, which was the sixth principle that people wanted.

The fact of the matter is that the privatization of health care has grown exponentially under this government. The Liberals have already changed a law to make it easier. In fact, the lead B.C. staffer in the Prime Minister's office was a lobbyist for health care privatizers days before entering the PMO.

Did the B.C. Liberal premier know in advance of this secret Liberal plan to privatize health care? Did Gordon Campbell let private clinics grow because he knew the Liberal government in Ottawa would not stop him?

[Health, March 26th, 2004]

Mr. Speaker, the real scandal is not sponsorship. It is the privatization of health care.

After 11 years of starving the system, now we read today that the Liberals want to reopen the Canada Health Act to make it easier for premiers like Ralph Klein to privatize health care. We hear of a secret Liberal plan to help corporate friends own their own hospitals.

How happy is the government today to learn that Ralph Klein thinks the secret federal Liberal privatization plan is a good thing?

[Canada Elections Act, March 26th, 2004]

Mr. Speaker, I find myself in agreement with the member for North Vancouver on this issue. The government has itself in a pickle because it did not accept the motion several years ago, indicating that 12 members would constitute a party. It is unfortunate that his colleague from Fraser Valley did not vote for it in committee because the vote was lost seven to six. Had the member voted the other way, this would be part of the bill today.

The government House leader said in his remarks that having parties with only one candidate would improve the democratic process in the country and in the House of Commons. Thinking about the member for Saskatoon--Humboldt who is in a party of one because no other political party in the House would accept him, how does that kind of example prove the democratic process in the House of Commons and indeed Canada?

[Agriculture, March 22nd, 2004]

Mr. Speaker, it is a pleasure to rise in the House today on this important issue. For our part, we in this party believe in criticism of the government on programs when criticism is due and praise when it is warranted.

Notwithstanding that there are a lot of questions about the program that has been unveiled today, on balance it is praiseworthy and a step in the right direction for farmers who have been beleaguered in this country for far too many years.

What is significant about this program, as I understand it, is that it is not a 60:40 program. Let me explain what I mean by that. For the past 10 years, the Chrétien government had insisted that because there was a joint jurisdiction in agriculture between the provinces and the territories as well as the federal government, all of the programming had to be paid 40% by the provinces and territories and 60% by the government.

This was even when the issue was strictly on trade related items. As we know, provincial governments do not sit at the table when they are negotiating trade deals. We always thought it was a canard. It was an unsustainable argument. What is particularly encouraging, as I understand today's announcement, is that it will not be requiring the provincial governments to pony up 40% of the money that will flow to the farmers, particularly those in the cattle industry.

When we think of provinces like Saskatchewan, which has 40% of the arable land in this country, or the neighbouring Province of Manitoba, both of them have a large cattle herd and a small tax base. Both of them have indicated that if it were required, if 40% of the money were required from provincial governments, that they would not be in a position to pay their farmers or enter the program.

This is definitely a step in the right direction and welcome news for an industry that has been devastated since the border closed as a result of the single case of BSE that was discovered in Alberta on May 20, 2003.

On the 60:40 program, I hope that this is a signal that the government has backed away because previous governments had never taken this idea of joint jurisdiction and therefore 60:40 funding seriously. It was only when the previous government of Mr. Chrétien brought in those programs and insisted on it for more than a decade. We certainly hope it is a signal of improvements to come.

My colleague from Winnipeg North Centre said it is clear that farmers no longer pray simply for rain; they also pray for elections. To that extent I agree with the member from the Conservative Party who was noting the same point. With the federal election in the offing, all of a sudden the government is doing something for farmers whom they largely ignored, not just for the past couple of years as the statement said, but indeed for a long time before that.

The chair of the Treasury Board noted in his comments that the government wanted the border re-opened to live cattle exports as quickly as possible. I agree with that, but would qualify it by saying in the very short term. I think it is totally unsustainable that we should be shipping live cattle to packing plants in the United States instead of doing the slaughtering, and producing the boneless and boxed meat here in Canada and providing decent jobs for Canadians in the meat packing industry. It is akin to shipping raw logs to Japan or elsewhere in the world and buying back finished lumber. It is a crazy system.

The Canadian cattle industry is far too integrated with its American counterpart. We need to have some spaces in our togetherness. We need to do things a little bit differently.

We ought to be looking at eliminating bovine growth hormone and eliminating all animal feed to all animals, not just to ruminants in order that we can ship products to other countries that now do not take our products.

However, that is a debate for another day. Overall, this caucus is pleased with the announcement of today and particularly the fact that the provinces would not have to pony up that money. We hope that is a sign of future things to come.

[Criminal Code, March 9th, 2004]

Madam Speaker, I do not have any difficulty at all, as I indicated in my speech, with the voyeurism enhancements and the enhancements for children to testify. I support all of that. I note that the parliamentary secretary talks about the public good and having had consultations with or references from the courts in drafting this. That is encouraging.

At the same time, I have to point out to the parliamentary secretary that, as I said in my speech, growing numbers of organizations, interest groups and editorial writers are extremely concerned about the direction in which this bill is headed. They do not think it is going to survive a charter challenge. I appreciate what the member is saying about getting the bill through, but I think it is more important to get it right first than to get it through fast.

[Criminal Code, March 9th, 2004]

Madam Speaker, the member said that I was taking his party out of context and that was not what the party believed. He also talked about drawing a line. I can draw a line. I thought I tried to do that in my speech, but let me repeat it again.

The line is between real children and imagination. Somebody cannot be criminalized for imagination unless that imagination is clearly designed to advocate for pedophilia or other acts. I, like the member, want to catch the type of individual about which he has talked. As a police officer, he dedicated his resources to going after individuals who abused vulnerable 12 or 14 year olds and dealt with that individual to the fullest extent of the law. I do draw a line between works of the imagination with somebody going after a real person or using pictures of a real person against his or her will. If it is a young person, obviously that does not need to be included.

With regard to Mr. Sharpe, I only referred to him because he is one of many people quoted as saying this legislation, as drafted, is poorly crafted. I think I am recalling fairly well from memory that he said that a conservative, by the book judge would probably throw out the public good defence.

We and a lot of other organizations and individuals have a problem with the legislation as it is drafted. It will presumably be passed in this place. However, I have my doubts whether it will receive royal assent by the Senate. I think it will want to look at this because of the lack of the artistic merit argument and other shortcomings, and then refer it back here.

What is the point of passing legislation that we can guarantee will run afoul of the Charter of Rights? Why would we not try to do our best as legislators and as parliamentarians to pass a bill that is reasonable, that has a balance on free expression and that protects our children, and indicate to the courts that we are aware of the competing interest? There are competing interests here. I continue to assert that there has to be a line drawn in the sand between real children and products of the imagination.

[Criminal Code, March 9th, 2004]

Mr. Speaker, I am pleased to take part in this debate. I am tempted to say here we go again on what used to be known as Bill C-20 and now is known as Bill C-12.

The bill proposes to amend the Criminal Code to help safeguard children and other vulnerable persons from sexual exploitation, abuse and neglect and also to enhance the protection of victims and witnesses in criminal justice proceedings.

The bill was introduced and read the first time in December 2002. It was debated at second reading in January and February last year before heading off to the justice committee from whence it has now returned.

The bill has five major components that I would like to review. First, it proposes to strengthen the child pornography provisions by expanding the scope of some existing sentences; the maximum available penalty would be increased from 5 to 10 years imprisonment.

Second, it proposes to increase the protection of young people against sexual exploitation.

Third, it proposes the creation of new offences relating to voyeurism and the viewing or recording of others in situations where there is reasonable expectation of privacy against electronic peeping Toms who resort to tiny cameras and other high tech tools for their and others' sordid gratification.

Fourth, it proposes to increase penalties following conviction for offences committed against children under the age of 16 years, as well as abuse and neglect, which includes failing to respond to the necessities of life and abandonment. I am pleased to see that the maximum penalty has been increased from two to five years.

Fifth, it proposes to facilitate testimony by child victims as witnesses and other vulnerable persons and would ensure that the child witnesses are indeed competent.

Let me say loudly and clearly that I support fully the sections that I have just referred to that deal with sexual exploitation of our young people. It is crucial, as others have noted in this debate, that our society has proper mechanisms to protect children from sexual exploitation, especially by those in positions of trust.

The stronger penalties, for example, against voyeurism, are important because the Criminal Code will be updated to nab these electronic peeping Toms and prosecute them to the full extent of the law.

The New Democratic Party supports the sections that help children to be witnesses. This section makes it easier and less traumatic for children to testify at criminal trials, and I strongly support doubling the sentences for offences against children.

I believe to the core of my being that it is the role of Parliament and our criminal justice system to protect all children from all forms of sexual exploitation.

Like my colleague, the MP for Dartmouth, who is so well respected on all sides of the House and who has taken the lead on this bill, I have two children and I would see any form of sexual assault against either of them to be horrific as are all cases of sexual abuse and exploitation against all minors.

However the member of Parliament for Dartmouth, besides being a first rate mother and a first rate parliamentarian, is also a first rate playwright. She has stated, and I concur, that a growing number of Canadians and other organizations have a real concern with the exclusion of part 7 of the proposed bill because it drops the artistic merit defence as well as deleting the defence of an educational, scientific or medical purpose.

By doing so, it leaves only the defence of the public good. At face value, some people may think, and we have heard it in the House this afternoon, that defence of the public good would also include the two deleted defences. The public good is defined in the bill as something that is necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art. A story or drawing that passes muster under that public good definition is, however, still not home free because the court must then decide whether the harm to society outweighs the benefits.

This, as the Globe and Mail pointed out in an editorial last month, is treacherous territory. Any work of fiction involving the portrayal of a child in illegal sexual activity could be deemed pornographic.

These concerns were all raised when the bill was at committee, but the government is obviously not prepared to budge. The concern that I and other members of our caucus have is that the government has caved into the politics of fear.

Let me be absolutely clear, and I say this directly to the justice critic for the Conservative Party. I support, fully and completely, longer sentences for anyone in this country who creates sado-masochistic pornography that depicts children as sexual objects. Individuals who are involved in these criminal activities will, as a result of these changes, now go to prison for longer periods of time. I approve and applaud wholeheartedly these stiffer sentences.

The difficulty for me and others is that under this proposed revision, any work of fiction involving the portrayal of a child in illegal sexual activity could well be deemed to be pornographic. For example, The Tin Drum , a highly moral work by Gunter Grass, might run afoul of this new legislation, as could Vladimir Nabokov Lolita , a classic literary work, be in danger.

In the past, the Supreme Court has included artistic merit as a plausible defence but the fear is that the law, as it is presently drafted without the artistic merit clause, could criminalize the imagination and I have difficulty with that.

This is not some esoteric argument by the member for Dartmouth or myself. Besides the Globe and Mail , it has elicited the attention of the Ottawa Citizen, civil liberty groups, writers and the artistic community.

Yesterday in Toronto the Canadian Conference of the Arts and the Writers' Union of Canada held a public forum on their concerns about Bill C-12. They did not stand alone. Joining them were: Canadian Museums' Association; Canadian Artists' Representation; Union des écrivaines et des écrivains québécois; Canadian Civil Liberties Association; B.C. Civil Liberties Association; Union des artistes; PEN Canada; Canadian Library Association; Literary Translators' Association of Canada; Corporation des bibliothécaires professionnels du Québec; Association des auteures et auteurs de l'Ontario français; Ligue des droits et libertés; Regroupement des artistes en arts visuels du Québec; Société Civile des Auteurs Multimédia; Société des Auteurs de Radio, Télévision et Cinéma; Conseil des livres et des périodiques; and Société des auteurs et compositeurs dramatiques.

The following were their specific concerns on this bill. First, artists from all disciplines who create works with themes involving persons under 18 and sexuality, risk having their expressions criminalized.

Second, artists whose work contains such themes would be deemed to be guilty until they can prove themselves innocent of the charge; in other words, reverse onus.

Third, the concept of public good would replace artistic merit. This is a subjective concept that, according to the Supreme Court, has not been clearly defined.

Fourth, under the proposed new law, artists would have to prove objectively in court that (a) they produce their work for the purpose of public good, and (b) their work does not exceed the limit of what constitutes public good.

Fifth and final, an expansive interpretation of sexual purpose and voyeurism will infringe on new and existing artistic works, including literature, visual and media art film and theatre.

The CCA concluded that the bill was poorly crafted and proposed reframing the legislation to protect children while allowing bona fide artists the freedom to create. It argues that retaining the defence of artistic merit in the Criminal Code will serve all the people of Canada, both youth and elders.

It is saying that the elimination of the artistic merit defence will not have any effect on the government's purpose of eradicating sexual abuse of minors, nor will it prevent child pornography. It will serve only to create confusion and punish artists whose work, created in good faith, could be deemed in contravention of the new legislation.

Nor does the CCA believe the term “public good” used in the legislation has been defined adequately and therefore it believes the defence under the public good is an unacceptable substitute for the defence of artistic merit.

Let me come back to the reverse onus clause. This will require an artist to prove that his or her work is not pornographic instead of requiring the Crown to prove otherwise. Clearly this is totally contrary to our judicial system that holds every citizen as presumed innocent until proven guilty. Under this legislation, under the reverse onus clause, someone who is innocent would have to prove it first.

The House needs to be reminded that we are debating this legislation largely because of one individual, John Robin Sharpe. In the court decision regarding Mr. Sharpe, he was convicted of possession of photographs of boys engaged in sexual acts and poses, but he was acquitted on possession of child pornography stories that he had written because two out of three literary experts concluded that his stories had artistic merit.

What does Mr. Sharpe think of the proposed legislation? Just like the writers, artists, editorial writers and New Democrats, he says that the bill is poorly crafted, but he goes on to say that it is so poorly crafted, he could probably use it to his advantage in court. He said:

I am fairly confident that given good legal counsel, and a conservative, by-the-book judge who bases his decisions on the wording of the law...that I and my stories would again be acquitted under the proposed measures.

Legal experts tend to agree with Robin Sharpe, saying that the public good defence is too vague to survive court challenges. The Supreme Court upheld the federal legislation in the Sharpe case, but stressed there had to be generous leeway for artistic merit, and he was acquitted on some counts, not merely because of artistic merit but because the court concluded that his stories did not advocate or counsel pedophilia. In short, the court ruled on the side of free expression.

It is difficult, and it ought to be difficult, to criminalize expression. Of course Parliament has a duty. Children have to be protected, and that we are very clear about. However, at the same time we cannot be seen to be encroaching on freedom of speech or the right to know with some precision what is allowable and what is forbidden.

The Ottawa Citizen , in a recent editorial entitled “Making matters worse”, stated that Bill C-12 would violate both of these principles. It went on to say that no matter how well intentioned the law was, it should not pass. The editorial stated:

The government has not produced solid, empirical evidence that viewing or reading works of the imagination prompts pedophiles to molest real children. Without that evidence, there's no reason to believe this law will make children any safer.

Paul Rapoport from the School of Arts at McMaster University writes that when it comes to visual media especially, “all nudity is sex, all sex is porn, and if minors are involved, find somebody to lock up and throw away the key”.

That description certainly encompasses some members of the Conservative Party who have spoken on this bill in debate in spite of the fact that the most common child in art, according to Mr. Rapoport, is named Jesus.

I was in debate on the artistic merit defence last year, and in responding to another MP, I said this:

--if it has not specifically hurt a minor in the production of it, if it is created by people's visual imaginations and if the main purpose of it is not simply about pornography and sexual exploitation, then under the laws people do have a right to their own imaginations and thoughts, however perverse the member and I might think they are.

This quote made it into a lot of Canadian Alliance householders. We killed a lot of trees over this one, as I guess they tried to portray me as being soft on child pornography. I am not soft on child pornography. However, I must say that I am also encouraged by the editorial boards of major newspapers, civil libertarian groups, writers and artists who have expressed similar concerns about where we are headed with this bill. Specifically, hear the conclusion of the Ottawa Citizen editorial:

The only solution is a law that criminalizes pornography involving real children, but excludes all works of the imagination. This would protect children just as well as the law now before Parliament. But it would also respect free speech and provide a bright, clear line between what is illegal and what is not.

Of course there is a circular argument in all of this that deserves to be named as well. We have the Conservative Party, and especially its justice critic, railing constantly against judicial activism. However, by arguing for a narrower and narrower interpretation of child pornography and one that excludes both artistic merit and defence of the public good, the courts and judges will have no choice but to say that it is so narrow that it violates the Charter of Rights.

The judges and courts will strike this down and the justice critic for the Conservative Party will mount his pet hobby horse about judicial activism. In fact I am convinced that the other place, when it looks at this bill, will find it a deficient piece of legislation and demand that changes be made here before it passes.

The list of people and organizations who see flaws in the bill is long and it is getting longer. As I indicated, it legitimate artists, writers, the Canadian Conference of the Arts, some police, civil libertarians, the Canadian Bar Association and major newspapers.

Sergeant Gillespie of the Toronto police said:

Police would simply appreciate laws that are very clear and that will allow us to make better informed decisions at the time we are required to make them.

The Canadian Bar Association said, “While we appreciate the intent”, referring to the defence of public good, “the amendment may not achieve its goal”.

Alan Borovoy of the Canadian Civil Liberties Association recommends that the law be narrowed so that it applies only to material, the making of which is held out to involve the lawful abuse of a real child; not an imaginary child, a real child.

Strengthening the provisions of child pornography, doubling penalties and increasing protections of youth against sexual predators and sexual exploitation is important, and I support it fully. This must be done while protecting free speech and imagination.

I was raised in a time when the words to a pop song of the day went, “Brother, you can't go to jail for what you're thinking”. These words should be as true today and tomorrow as they were yesterday. Without reinstating the artistic merit in this bill, I will reluctantly and sadly find myself voting against Bill C-12.