Fortunately, he did not scrap it.
House of Commons photoWon his last election, in 2000, with 57% of the vote.
The Budget March 3rd, 1999
Fortunately, he did not scrap it.
Mr. Justice Robert Flahiff March 3rd, 1999
Mr. Speaker, it will soon be two years since Mr. Justice Robert Flahiff was suspended with full salary of $178, 500, while defending himself against money laundering charges which have just culminated in a three year prison sentence.
Can the Minister of Justice tell us how this judge, who has just been given a prison sentence, can continue to draw a full salary and benefits, at the taxpayers' expense?
Points Of Order February 2nd, 1999
Mr. Speaker, I am sure today you will have the unanimous consent of the House, now that the government has had the privilege of reading the motion I introduced yesterday for which I sought but did not get unanimous consent.
I return today, seconded by the Reform member for Saanich—Gulf Islands. The motion reads as follows, and I request the unanimous consent of the House to move it:
That this House, barring a decision in appeal quashing the decision at trial level, recommend the removal of Mr. Justice Robert Flahiff, judge of the Quebec Superior Court, because of his inability to properly perform his duties due to
(a) a lack of honour and dignity;
(b) failure to perform his duties as judge under the Judges Act; and
(c) a lack of integrity as set forth in the Ethical Principles for Judges of the Canadian Judicial Council;
And that this removal have as its immediate consequence the revocation of the current salary and the right of the said judge to the enjoyment of a pension under the Judges Act.
Supply February 2nd, 1999
Mr. Speaker, my question is for the hon. member who has just spoken.
Is she aware of a principle generally recognized by the courts? I believe two appeal courts in Canada have already issued a similar opinion, the Quebec Court of Appeal for one.
The principle is that of presumption of the constitutionality of a piece of legislation until a final court of appeal has reached a decision. In other words, in this case, with respect to subsections 163.1(3) and 163.1(4) of the Criminal Code, although a court of the first instance in British Columbia has declared these subsections of the Criminal Code unconstitutional, does she not believe that the presumption of constitutionality of this section can, or must, be applied until a higher court has rendered a decision. In Canada, this means first the appeal court and then the Supreme Court of Canada.
In other words, I am casting some doubt on the statement she or her Reform Party colleagues have made, that the children of British Columbia are not protected, because there is no longer any applicable legislation on child pornography, since subsections 163.1(3) and 163.1(4) of the Criminal Code have been invalidated.
Supply February 2nd, 1999
Mr. Speaker, I think children in B.C., like all children across Canada, are still protected by this legislation. It has been declared invalid by a court at the trial level, therefore it is inoperative, but it still exists.
When I was a law student, I remember that certain provisions were constitutional, in terms of the distributions of powers or whatever, even if they had been declared inoperative by courts at lower levels. So long as the final court of appeal did not make the decision, the law continued to be applied as if nothing had changed. It concerned the distribution of powers that Quebec was calling for. Therefore, an inoperative provision is still applicable.
I think that, in B.C., unless I am mistaken, and that can be checked, crown prosecutors and politicians, especially, will still be able to work to protect children, to build cases or whatever. If the crown has everything it needs to take legal proceedings, it can still do so, subject to the final decision in appeal.
Here again, given the importance of this issue, I am sure the appeal court judges will do everything in their power to expedite the matter and hear the case quickly and especially to reach a decision as soon as they can.
Supply February 2nd, 1999
Mr. Speaker, the member has understood what I was driving at, except for one point. I believe the Reform Party has acted properly in calling for this debate in the House. It is not premature to consider the matter. This is in fact the right time to do so in order to send a very clear message to all those listening: that the House of Commons shares the view of Canadians and Quebeckers that child pornography is reprehensible.
This was the time to act in order to send this message. But I am unable to agree to the immediate use of the notwithstanding clause, because an appeal is under way. Furthermore, the federal government has applied for intervenor status in this case, a move I fully support. I am convinced that the Canadian consensus will be heard, that the motion, as written, will be adopted by the House of Commons. I believe that the message will be clear enough. It will not be necessary to invoke the notwithstanding clause. There is still time to take that route, should it become necessary to do so.
Supply February 2nd, 1999
Mr. Speaker, like the members who spoke before me, when I read the decision by Mr. Justice Shaw of British Columbia regarding child pornography, I was very surprised.
What surprised me was that a well-educated judge living in a society that tolerates some things but not others, an adult member of that society, could interpret a piece of legislation as he did. I was very surprised by the judge's interpretation of the legislation and by his intellectual contortion of certain provisions of the Criminal Code and of the Canadian Charter of Rights and Freedoms.
This is no small matter. It is a very serious one. I can understand that parliamentarians would wish to sit down and look at what is not working in this legislation.
I do not wish to go over all the ground again, because I think the House has been well informed. I merely wish to recall, as other members have done before me, the provisions of sections 163.1(3) and 163.1(4) which we are examining, specifically the mere possession of child pornography, which is an offence under these sections.
The individual was charged and the police officers conducted a search. What they found in his apartment was serious: 14 boxes of child pornography. There was enough to wonder if he was intending to sell it, which was probably why he was charged under section 163.1(3).
What did he rely on in his defence? He relied on section 2 of the Canadian Charter of Rights and Freedoms, which talks about the fundamental freedoms of conscience, religion, thought, belief, opinion, expression and so on. He even relied on the equality provisions in section 15 of the Charter.
That was his right. The Charter gives him that right. We live in a free and democratic society, with rights and obligations, and he had the right to use the Canadian Charter of Rights and Freedoms as a defence. It was, in fact, the only defence open to him, given the material found in his apartment.
I think that the crown did what it had to do. It tried to demonstrate that, even if the freedom of expression as guaranteed by the charter had been violated, such violation was justified in a free and democratic society. That is what section 1 states; the section 1 test, for those who have some knowledge of these inner workings, is what they tried to demonstrate before the judge.
What is important to note in order to understand what happened next is the case made by the crown in this matter. The crown called in experts.
One of the witnesses, a female detective with the Vancouver police—which also explains why the section was adopted in 1993 or 1994—testified that the Internet led to a surge in the availability of child pornography. She said that indictments for simple possession enable the police to obtain search warrants, which help identify pedophiles.
Why did the lawmaker provide for that? Simply because the lawmaker knew about it. Evidence has been heard from various people, including psychiatrists. These professionals were invited by the crown to testify in this matter. According to an expert in this field, every study done on the behaviour of these deviant men and women—primarily men in the case of pedophilia—shows that child pornography is a danger to children. He gave very compelling evidence to that effect.
The point was made that child pornography may encourage pedophiles to commit sexual abuse. I think that this borders dangerously on the test under section 1 of the Canadian Charter of Rights and Freedoms.
However, one of the judges who heard the evidence came to a different conclusion. Justice Shaw ruled that it had not been clearly demonstrated that child pornography caused direct injury. I do not know on what planet this judge lives, but this was his ruling.
However, I think his interpretation of the legislation in his decision was fairly twisted. He did note the following “Explicit pornography involving children entails a certain risk to the children because of the use pedophiles might make of it”. This is no mean observation. But it did not prevent him from reaching a different conclusion.
He also said “Children are abused in the production of pornographic films”. That is obvious. In a video of acts adults commit with children, the child is being abused. The proof is clear. In addition there are people behind the cameras and in the room doing the filming and then there are maniacs who buy these films and watch them. Clearly the child has been abused.
The judge stated that there was no proof there would be less production of pornographic films if simple possession of this type of material were criminalized. I think the judge made a mistake with the evidence I saw in the decision. I think this finding was proven wrong.
The judge mentioned that “freedom of expression plays an important role in this matter. An individual's personal effects assume the person's particular character, their personality. A ban on simple possession acts on a very intimate part and interferes with an individual's right to privacy”. According to his point of view, this is hugely important.
I think this is where the judge himself went awry. There is one route he should not have taken—and that is when he weighed the pros and cons of all this. I think the judge really erred in law in his assessment.
The judge added that “—an important aspect of every person's right to privacy is the ability to enjoy that freedom in one's own home”. I fully agree with that view. In this case, the police went to Mr. Sharpe's home to seize his collection of material, which was presumed to be of a pornographic nature. Indeed, 14 boxes of pornographic material were seized.
To violate a person's freedom of expression and right to privacy is a serious matter. The prohibition of possession applies to any person, including those who use pornographic material in a dangerous manner, and they may be collectors of such material, regardless of their interests. However, these people are not necessarily dangerous. And, given the evidence heard by the court, it is not obvious that he is right.
In balancing these views, the judge concluded that the first test of the charter of rights was not met and that the individual had to be acquitted.
I think that decision is totally wrong and that we in this House must do something.
The first step is to support the official opposition's motion, as it is worded in the Order Paper. I agree with the wording used by the Reform Party. However, I do not agree with the amendment it moved and the inclusion of the word “immediately”. I cannot agree with the inclusion of that word. Therefore, I will vote against the amendment to the motion, but I will support the main motion, since we are part of a process. I agree with the Parliamentary Secretary to the Minister of Justice regarding the section of the act that was invalidated by the judge. It is true that the act is currently not in effect in British Columbia.
But this does not prevent the police from doing their job. This does not prevent the crown prosecutors from continuing to examine cases, prepare them and so forth. Let us wait and see how the Court of Appeal judges rule. Let us wait for their reaction to what they have just heard, for they are members of society too. They are aware that the lawmakers in the House of Commons find this trial level decision unacceptable.
I am convinced that right-thinking judges, judges with solid legal training, Appeal Court judges who know how to listen to what is going on, will overturn this trial level decision. We will probably not have the opportunity or the need to go as far as invoking the notwithstanding clause in section 33 of the Charter.
However, and I will close with this, should the Court of Appeal uphold the trial level decision, that will be the time for lawmakers, for members of Parliament, to unite and invoke the notwithstanding clause. I think that it is premature to do so today.
Points Of Order February 1st, 1999
Mr. Speaker, I am seeking the unanimous consent of the House to introduce a motion seconded by the hon. member for West Vancouver—Sunshine Coast, which reads as follows:
That this House, barring a decision in appeal quashing the decision at trial level, recommend the removal of Mr. Justice Robert Flahiff, judge of the Quebec Superior Court, because of his inability to properly perform his duties due to
(a) a lack of honour and dignity;
(b) failure to perform his duties as judge under the Judges Act; and
(c) a lack of integrity as set forth in the Ethical Principles for Judges of the Canadian Judicial Council;
And that this removal have as its immediate consequence the revocation of the current salary and the right of the said judge to the enjoyment of a pension under the Judges Act.
Tributes December 10th, 1998
Mr. Speaker, yesterday, December 9, our colleague Shaughnessy Cohen collapsed here in the House. Strongly committed to democratic values and deeply involved in the community, she had devoted herself to serving her constituents.
The member for Windsor—St. Clair is no longer with us, leaving behind a family, a profession and, I happen to know, a party that she loved.
Ms. Cohen was born in London, Ontario, on February 11, 1948. After graduating from the University of Windsor with a BA in English studies in 1969, she obtained an MA in sociology from the same university in 1973, followed by a law degree in 1977.
From 1971 to 1974, she taught at the St. Clair College of Applied Arts and Technology. From 1979 to 1993, she practised law, concentrating on criminal and labour law, and served as an assistant crown prosecutor.
She had represented the riding of Windsor—St. Clair since first being elected in 1993, and had chaired the Standing Committee on Justice and Human Rights since 1996. She was also well known as co-chair of the Liberal Party's caucus committee on gun control.
Having had the privilege of working closely with Ms. Cohen on the standing committee on justice, I can easily imagine how deeply her loss will be felt by the Liberal caucus.
Although we did not always see things the same way, I always respected Shaughnessy for her sense of professionalism and, above all, her passion for the law and for justice. There were many areas in which we shared the same ideals and values. Once again, although we did not always see eye to eye, we had great respect for each other.
I wish to offer my deepest condolences personally and on behalf of the Bloc Quebecois to her husband Jerome and her daughter Dena.
I believe strongly that it is by keeping someone's memory alive that we push back the boundaries of death. Those who had the honour of knowing you, Shaughnessy, will remember you as a woman of your word, and as a woman of action. Émile Henriot put it well when he wrote: “It is my firm belief that the dead live on in the memories of those they leave behind.”
We will not forget you, Shaughnessy. Thank you, Shaughnessy, for your time with us and your highly regarded devotion to your work.
Canada Customs And Revenue Agency Act December 8th, 1998
It takes out the baseball bat.