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.
