Peter MacKay

[Firearms Registry, February 4th, 2003]

Mr. Speaker, with the reports tabled yesterday, Canadians were shown again that the Canadian firearms registry is a flawed, overly complex, bureaucratic mess. The reports prove the registry will not only cost Canadian taxpayers more millions, but there is no guarantee of success and no connection to public safety. Another $15 million is called for to fix the faulty database with another system that will fail.

Will the Minister of Justice break his government's money wasting addiction on this ridiculous registry, given there are no assurances that the new guidelines, new timeframes or costs are any more realistic than the previous ones?

[Divorce Act, February 4th, 2003]

Madam Speaker, although I am aware of the atmosphere of cynicism and doubt around this issue, I try to be instinctively optimistic that we can in fact improve the situation.

I find myself in complete agreement though with the hon. member's condemnation of his own government and the length of time it has taken to get this matter back before Parliament in such a fashion that we can do something about it.

Yes, I hear from constituents quite regularly. I heard from them during the time I was practising law about the frustration and the need to go back to basics in offering an approach that is balanced toward ensuring that the rights of both parents and grandparents are protected, all those persons interested in the well-being of the child, and that the rights of children are protected.

The hon. member is certainly correct to suggest that in some instances it is apparent that it would be preferable to have a lawyer there speaking solely for the child. There have been rare instances where the court has appointed counsel for a child in cases where the warring parents become so driven and obsessed with their own interests that the child becomes very much the victim.

I look forward to working with the member and hearing from those who are still striving to improve the situation, and who will come before committee. Our objective is to bring forward a bill that will in fact improve the situation and not exacerbate it. I have real concerns that the way the bill is currently presented will not improve the situation, but cause further problems for parents and for children in situations of divorce and separation.

[Divorce Act, February 4th, 2003]

Madam Speaker, I thank my friend from Mississauga. I think he will find that within the body of my remarks I did refer to all of these. In particular, I agree with the point on the omission of some specific reference to grandparents, because of that special relationship.

Similarly, this presumptive maternal custody that is still very prevalent in courts does pose a particular problem for paternal participants in the process. I feel that in many cases fathers do emerge from the courts extremely frustrated. The word “balance” is going to be thrown around a great deal in the discussion and yet the balance in my view is still not correct. It still does not favour an approach that is completely level as far as a parent's participation and a father's participation in the nurturing and raising of a child is concerned.

I am hoping, and I know that my colleague will be participating in these hearings as well, that we will somehow try to re-calibrate the approach that the courts are taking. I will admit that I myself come from a home where my parents separated when I was quite young. It goes through a child in such a painful way to see that happen. When the father is excluded from access and significant participation in a child's life the damage is fourfold, depending on how other family members react.

The ability to give the courts the opportunity to give the father that type of participation, that type of access and in some instances the custody of a child is an extremely important and powerful decision. I would suggest that we have to somehow adjust the legislation so that it does not continue to reflect a bias toward one parent over the other.

The enforcement also becomes very difficult. My friend is correct. There is nothing that I have seen in my time practising law that was more disturbing than having to send police or child support workers to a home to remove a child from one parent or the other because that child was being used as a tool to injure the other parent. That trauma lasts a lifetime as well. With regard to the enforcement mechanisms, I think we are going to have to rely on great expertise, like that of the hon. member himself, to determine the way in which we go about enforcing the law without doing further harm to the child and the relationship with the child's parents and family members.

I thank the hon. member for his questions. I know that he has been an active and passionate advocate for parents in situations such as this.

[Divorce Act, February 4th, 2003]

Madam Speaker, it is a pleasure to see you in the chair this morning. It is always a pleasure.

Clearly, this is a very important bill for Canada. Divorce is a very complex and emotional subject. The implications for children, parents and all families throughout the country are significant. These issues can have a very negative impact on society.

So, the government must respond by passing a bill that takes a very clear and very direct stand on these issues.

The debate, clearly, will evoke some very emotional responses from members of Parliament who have been involved in this issue for many years. I know the member from Mississauga, as well as my colleague from the NDP, have followed the issue very closely and will present compelling arguments and important perspectives as we move forward with the legislation.

However we must constantly be cognizant of the fact that the changes we initiate in the bill can have a profound impact on people's lives, particularly those with children and those with families in general. The bill could have significant, long-lasting and, at the risk of sounding overly dramatic, life-lasting implications.

Legislation is part of the answer. I would suggest that there is attitude and obviously a need to put protections in place, as has been referred by my colleague from Winnipeg. It is always difficult to legislate morality, just as it is difficult to legislate against immoral and sometimes simply stupid behaviour.

I prefaced my remarks by saying that Parliament began by investigating this important issue back in the mid-1990s. You would know this, Madam Speaker, because you were very much a part of that study and a part of that committee. In fact, a Special Joint Committee on Child Custody and Access was established during the 36th session of Parliament. The committee's recommendations were presented to Canadians through Parliament back in 1998.

The Special Joint Committee on Child Custody and Access brought forward a report entitled, “For the Sake of the Children”. It provided an indepth examination of all issues surrounding children and divorce and, in total, made 48 important recommendations. Some of those recommendations have found their way into this legislation.

Unfortunately, I would underline, for children and their families, 13 key points, which I think are crucial to the legislation, did not make their way into the legislation. I will discuss some of those in my remarks today.

A few of those major omissions include the omission of the use of the maximum contact principle in which each of the parents are required to have a maximum amount of contact for the best interests of children.

The requirement for parents to attend post-separation education programs and create parenting plans before being able to proceed with their applications for a parenting order also did not find its way into the report. I strongly suggest that this would have added a greater transition period for families going through the trauma of a divorce.

Recognizing the importance of family relationships with other extended family members is also something that is difficult to legislate but there could have been some inclusion in the legislation.

The amendments to the Criminal Code regarding punishment for intentionally false allegations of abuse or neglected family law matters. I cannot underscore this enough because, as much as I strongly agree and wrap my arms around the discussion put forward by my colleague from Winnipeg, the implications of abuse and the need to protect women, children and all members of the family from the terrible implications of violence and sexual violence, the false allegations, although on a scale are not as serious, do have a tremendous impact on a person's life and his or her reputation in the community if these allegations are made falsely.

According to the minister's legal team, which would be formidable in size and legal knowledge, the most substantive changes to the Divorce Act attempt to remove the tensions that exist between parents wishing to divorce. As members know, our judicial system is based on the adversarial model where one person is the winner and one is the loser. That sadly is often the feeling at the outcome.

In essence, the government will remove the terms “custody” and “access” and replace them with what it feels is less contentious wording, such as “parenting orders”.

These changes are outlined in clause 16(1), which reads:

A court of competent jurisdiction may make an order relating to the exercise of parental responsibilities in respect of any child of the marriage, on application....

The government believes that this change in terminology, the elimination of the words “custody” and “access”, which tend to focus on a parent's rights rather than on their responsibilities toward children, will have a beneficial effect. Well, as the old saying goes, time will tell.

What this represents is a conceptual shift, which, unfortunately, in my view will not change the dynamics present in cases of divorce. Regardless of what we call it, sole custody parenting, one parent will be the winner and one parent will still be the loser. It will take more than the bill to change societal attitudes and values in this regard.

The rationale that a change in terminology will make a divorce easier on families and by extension children, is beyond debate. Not only will it be virtually impossible for the court to extend a change in societal attitudes and values but realistically it is unworkable. By not taking into consideration the reality of divorce and some of the more preventable motivating factors, we stand to put at risk the well-being of a child further. All too often parents are more concerned about hurting one another than they are with the best interests of children, and the children unwittingly become pawns in the game of one-upmanship.

Having practised law, I far too often saw this occur. There really was no winner and loser in the final analysis. It appeared to me that everyone seemed to be losing some of their dignity and some of their emotional well-being. Some might argue that the winners were the lawyers in terms of their billable hours. However, all kidding aside, it is a very disturbing situation when this tension plays itself out through a divorce and children are thrown into the middle of the conflict and left with two competing parents, whom they love dearly, using the children to hurt one another. I cannot think of a more gutting situation for a young, impressionable child beginning life. It is a terrible situation and difficult to remedy, but we are missing an opportunity in the legislation unless some corrections and amendments are brought about.

The concerns of course deal with worse case scenarios. It is important to recognize that there are cases, and I would suggest many cases, where parents do put the best interests of their children at the forefront, regardless of their feelings in a breakdown over their own relationship with one another. Emotion often overtakes rational thinking in that regard and even some of the subtleties can be very detrimental to a child.

We in the Progressive Conservative Party are very concerned with the minister's approach, which seems to remain in the status quo with regard to grandparents.

That is my opinion. This is a very important question. Grandparents also need protection in this bill.

This is a very real failing in the legislation. It seems to defy logic and ignores the legitimate rights of maternal and paternal grandparents to access children. Clause 16(1)(b) outlines those persons other than a parent who can ask the court to review the parenting orders. It reads:

a person, other than a spouse, who is a parent, stands in the place of a parent or intends to stand in the place of a parent.

We all know there is a broad range of individuals who can fill the role of guardian. It might be a sibling or a close relative such as a nephew, a niece, an aunt or an uncle. However I would suggest that grandparents deserve special consideration in circumstances of a family breakup. I would suggest that there should be a legislated recognition of the special role that a grandparent can play in the life of a child.

While there is no specific reference to grandparents, the clause I just referenced, clause 16(1)(b), deals with the application by a grandparent to the court to seek leave of the court to make the request to assume the role of guardian.

The Progressive Conservative Party has taken the approach that we want to advocate for grandparents' rights when seeking custody of grandchildren. This issue was given considerable examination by the joint special committee, and you, as Speaker, will recall that there were many representations by grandparents.

I know that other members of my caucus, the member for St. John's East and the member for Saint John, New Brunswick, have met with grandparents groups in their communities and have heard with passion the concern that grandparents have about getting this recognition, not just to seek leave but to have automatic consideration by the courts.

The requirement that the grandparents apply for leave can become extremely costly and unnecessarily time consuming so on November 4 of this year I introduced a private member's bill that deals with a specific amendment to the Divorce Act which would allow grandparents to apply directly for custody of their grandchildren without leave of the court. Such an important amendment would allow grandparents greater ability to nurture, protect and care for children in the stead of parents. This is of course only if parents are unable, unwilling or deemed unfit to care for their children. It is an issue that should be acted upon when the bill goes to committee and an issue that has been completely ignored in the bill in its current form.

I am going to list some of the most important omissions in this bill. For example, there was no mention of the principle of maximum human contact with the parents or guardians, nor of amendments to the Criminal Code regarding false allegations of abuse or neglect with respect to family law. The most important omission is, perhaps, that it is impossible for grandparents to directly intervene regarding child custody.

This bill provides a very important opportunity for the Parliament of Canada to improve existing legislation.

There are difficulties as well with subclause 16.2(2) of the proposed legislation, which sets out the criteria that the court must consider when determining the best interests of the child. This section directs the court to consider all the needs and circumstances of the children, not necessarily an approach which will ultimately protect the child.

The criteria in paragraphs 16.2(2)(a) to (l) of the bill consider such things as the physical, emotional and psychological needs of the child, taking into account the child's age and stage of development; the benefit to the child of developing and maintaining meaningful relationships; the history of care for the child; any family violence, including its impact on the safety of the child and other family members; and the child's well-being.

I believe that this section, although it tries to go through an exhaustive list, is a sort of Cartesian thinking. It might in fact have been better to have approached this the other way and in fact have put in place the phraseology for what would not be in the best interests of the child rather than trying to include an exhaustive list of everything that is important for the child.

According to the government in this presentation of the bill, all the criteria in this section will carry the same weight, although the judge will certainly give priority to different sections depending on each case.

For example, there may be some competing interests at times. Paragraph (h), which speaks of the nature, strength and stability of the relationship between the child and each spouse, will carry the same weight as paragraph (c), the history of care for the child, although I suggest that there are instances where one parent may have been absent in terms of child care and then this would carry more weight with the judge when making his or her decision. That is to say, if one parent is working outside the home it may afford an unfair advantage to the parent providing the most day to day, hands-on care.

I find that the way in which the legislation is worded may be cumbersome. It may be setting up a situation whereby the judge is forced to make a decision on somewhat arbitrary terms because of the way in which the legislation has been set out.

Surely there are important decisions that the judges across the land are making already, based on the evidence provided to the court, and that is what ultimately should be the determining factor: factual, backed up information that is presented during the course of a hearing which allows judges to make a case by case proper determination to the best of their abilities in what will best serve the interests of the child.

The legislation is coming forward at a time when there is a sense of need. There is a sense of confusion, I would suggest, in the courts in many instances in cases involving children, particularly when the parents have taken a very adversarial approach toward one another. It is my hope that the legislation will provide further direction, yet that is one of the real concerns I have. Because of the way in which it is presented, it may throw the courts into further confusion.

The government's reasoning behind certain sections of the legislation, which set out in detail what constitute the best interests of the children, may in fact focus away from the rights of the parents. The rights of the parents also have to be given ample consideration when going through the process of determining access and custody and contact with the child. They place the focus on the best interests of the child, which have to be given primary consideration, but again, this will of course be subject to a judge's interpretation. More likely than not the end result may of course be that it causes further strife and tension because of an improper decision, because of a decision that may in fact exclude one parent from the desired contact. There are then terrible ramifications which can lead to situations that we have sadly borne witness to, where children are abducted, where parents react violently, where parents, motivated, I am quick to add, by a strong love and a strong desire to see that child, respond emotionally and irrationally.

The situation is always volatile. I can think of few other situations with such potential for a terrible result than when a parent is deprived of the right to be with a child, the right to foster and nurture a loving relationship with a child.

We are all, in this tumultuous world, aware of the violence that is taking place around the world and the images of children suffering that are constantly portrayed on the television. That tends in some cases to almost desensitize people, yet I do not think that there is any desensitization when it comes to people's connection to their child and the thought that they might lose that contact.

So the federal government is quietly spending almost twice as much money on advertising and on training lawyers about the new divorce law when it could be putting that money, I suggest, more productively into areas like counselling, like mediation for separating parents, into helping ease the pain and the excruciating emotional strain that occurs in some divorces.

Again it is an issue of priorities, I would suggest. While we agree that the Divorce Act needs to be modified and modernized to represent the current societal trends, we are concerned that this legislation does not quite fit the bill, does not quite live up to the standard that is going to be required as we go into the future with this type of legislation.

It will require and will receive examination at the committee level, I suggest, and I look forward to taking part in those committee hearings. I hope that we will be able to improve this legislation. I cannot think of a bill that is more closely tied to the societal trends that exist in Canada today, that deals with the issue of the proper rearing and nurturing of children, an important issue that all Canadians and all parliamentarians are clearly concerned with.

I look forward on behalf of the Progressive Conservative Party to bringing forward amendments that I think will improve the bill. Hopefully we are going to get this right. We have the opportunity.

We have the opportunity to develop a very productive and positive bill for the future of families and the country.

[Question No. 91, January 31st, 2003]

With respect to “smart regulations” cited in Throne Speech 2002, specifically regulations associated with environmental assessment processes: ( a ) what action is the government taking to ratify the Protocol on Environmental Protection to the Antarctic Treaty; ( b ) what departments are involved; ( c ) what government officials are involved; and ( d ) what is the time frame allotted for Canada's ratification?

[Youth Criminal Justice Act, January 28th, 2003]

Madam Speaker, it is a pleasure for me to rise in this debate and to see you back in the Chair.

This bill is one which I think I can fairly say most members of Parliament would embrace wholeheartedly given the idea of parental responsibility, given the necessity I would state to hold parents in most instances responsible for the supervision and the proper accounting as to where their children are and how they are behaving.

The difficulty that I have with it at the outset is the possible criminal ramifications for a parent. I understand the way in which the bill is presented. The intent is to have these probation orders in force so that they are enforced, that is, the parents themselves will be brought before the court to require them to ensure that their children, within the definition of the Youth Criminal Justice Act, formerly the Young Offenders Act, will in fact comply with curfews, with other conditions of non-association, with not drinking or using drugs.

I have had experience, as has the mover of the motion, with the practicalities. I listened to his remarks and I congratulate him on his intent. He has had the experience, as he said, of the frustration that is felt on the part of the court, both the crown and the defence, social workers, victims services and the police, all those involved in the justice system who see these probational orders routinely flouted, that is, conditions that are in place as a result of criminal conviction, as a result of the court's real attempts to hold young people to account and to control their behaviour. Let us be very frank about what the sentence is supposed to do. In meting out those conditions, what the court is suggesting is that the anti-social behaviour has to be controlled.

The difficulty is one of vicarious responsibility. There are a number of offences in the Criminal Code that deal with this very issue. It is a tricky issue, to say the least. For example, there are Criminal Code provisions that require persons, once they begin to render assistance, to continue to render assistance. This type of legislation is akin to that. There is a new creation of a criminal offence by virtue of the Firearms Act, which in essence creates a criminal offence for not doing something. Without getting into all the lack of merits that we find in the gun registry, we know that this flawed piece of legislation will eventually collapse under its own weight due to mismanagement and ineffectiveness.

However, this type of legislation in essence criminalizes a parent's behaviour for not doing something, for not enforcing or supervising an order of the court. It is worrisome in that regard. The act, if it were to be passed, in a sense would make mandatory the imposition of these probation orders, be it a curfew or other conditions, for any young person found guilty of a home invasion and holds the parent or those responsible for the child responsible directly in relation to the enforcement of the curfew, upon threat, I am quick to add, of a criminal conviction. Those who are responsible for the child but are not the parents is another area that has to be examined closely, because we know that there are foster parent situations, there are agencies occasionally involved in the enforcement, and there are siblings, grandparents or others who would fit that definition as the person responsible for that child. The act would hold that person or group of persons directly responsible.

I agree that there are innumerable areas of improvement in this new Youth Criminal Justice Act. This is probably one of the most cumbersome and confusing pieces of legislation ever passed through the Parliament of Canada. It is a bit like the Income Tax Act. That is how complicated it is. When we were examining this bill at committee, of which you were a member, Madam Speaker, you might recall that there were judges who had difficulty interpreting sections of the Youth Criminal Justice Act. It is unfortunate, because we had a chance to get it right.

I am sure, Madam Speaker, that as parents you and other members of the House would be ill at ease to know that you could be held criminally responsible for the actions of your child. As much as you love that child and try to foster the very best environment, there are occasions, sadly, and we have seen them, where despite the best efforts of a parent, young people, for reasons that may be related to their mental health or related to their propensity to be involved in drugs or alcohol or their involvement with another group of youths who are on the wrong track, find themselves in the justice system and find themselves under a probation order. Again, despite the very best legitimate efforts of the parent, they break those conditions.

Sometimes those conditions are broken by a very short margin. I can think of an instance where a young person confined by a curfew misses a bus and does not get home under the curfew. Because it would be the parent's responsibility to see that the young person was in the strict parameters of a court order, this scenario could result in a parent being charged criminally. I am uncomfortable with that. It is not a stretch to suggest that it might play out that way.

The first clause of Bill C-204 amends the Criminal Code and subsection 2(1) of the Youth Criminal Justice Act in this instance, involving break and enter and a list of offences that is outlined in the act. This clause is mainly a housekeeping amendment. It does specifically introduce a related offence into the act, which would be interpreted as adding more weight to the specific offence of home invasion, which again I am quick to embrace, but Parliament has to be extremely careful when prioritizing certain offences. In this vein we need to examine whether other offences might be considered as part of this envelope.

Second, the clause that amends subsection 42(2) is where we find the substance of the bill of the hon. member for Saanich--Gulf Islands. This clause would force the court to impose automatic probation on a young offender convicted of a crime as a condition of that probation. That is an automatic curfew. I have no difficulty with that because I believe that the offence of home invasion is so serious. I believe that the offence of home invasion often results in violent confrontations. We are going to hear in a short time from the hon. member from Surrey who, sadly, can speak from personal experience about what happened to his family in his home. This is a very real and substantive issue that is before the House.

The imposition of a curfew on a young person convicted is not necessarily a negative, by any means. In fact, it definitely would send this message of deterrence, which is one, I have found in my experience, that the government would like to stay away from. It does not like to use the word deterrent. It does not believe that this is the proper phraseology. I suggest that there is a common parlance, a common use of deterrents in courts of all levels across the country every day. The idea is that both the protection of the public and the sending of a message of general and specific deterrence are very much at the root of the bill.

The condition of probation would remain in effect for a period of at least one year, or at least until a person reaches the age of 18, to a maximum of three years. Again, this approach is a practical one. It amends the act, requiring those convicted of subsequent offences to spend a mandatory minimum of 30 days in custody. Arguably this takes away from the flexibility that currently exists for young offenders and again I suggest we would have to look at that in greater detail. It does put down firm parameters in the Youth Criminal Justice Act, where often those parameters are lacking.

The increase of a minimum of 30 days in custody for a second conviction also could be construed as a move that denotes the seriousness of this type of offence. This offence of going into a person's home is extremely detrimental and has extremely serious consequences.

However, to go back to my initial assessment, my main difficulty with the bill is the amendment that makes it mandatory for the parents reporting to a probation officer any violation of a young person's curfew. The difficulty I have is that the legislation that deals directly with the way in which the parent or guardian interacts with a child is what amounts to a disciplinary action against the parent. It seems to me to raise a question of morality.

This bill essentially is penalizing and criminalizing a type of parenting. I have great difficulty with that. It pains me to say that I could not support the bill for that reason, but unless this legislation were at least amended in such a fashion that it would make the parents' attendance at court mandatory and make it necessary for the parents to come and explain their actions or lack of actions in supervising the child, denoting where they were at the time of the offence, I cannot support the vicarious criminal liability that would flow to a parent.

I congratulate the member for bringing the matter forward. I think it is timely and important. It is an approach that is novel. I agree with the majority of the bill in substance, but that aspect of it causes me great difficulty. For that reason, until we get the bill in such a form that this clause is removed, I am afraid I cannot support the bill.

[Criminal Code, January 27th, 2003]

Absolutely, Mr. Speaker. I again want to congratulate my colleague who has taken a great interest in this issue and has been consistent in his efforts to improve the legislation. That is exactly the type of improvement that I think should occur. A definition in the Criminal Code that the judges, the judiciary, the crown attorneys, the police, the lawyers and the victims could look to for direction as to what constitutes pornography is a very useful and positive suggestion. It is one I hope he and members of the government will support; given the source that they would support their own words.

Sadly we have seen too many examples in the past that common sense which prevailed on the backbench was annihilated by the front bench. This is not a partisan issue. This is by far the most practical, pragmatic issue that could come before the House on the very first day.

I am pleased and I am instinctively optimistic that parliamentarians will put aside partisanship in an effort to address this. I would suggest that this is the ideal opportunity on our first day back in the year 2003 to put that foot forward. I issue that challenge to all members, particularly on the government side.

[Criminal Code, January 27th, 2003]

Mr. Speaker, I began my remarks by saying that people become emotional over this issue. I understand my hon. friend's frustration. He asks me why the Progressive Conservative Party supports the legislation at this stage. It is because we have no choice. This is the forum to try to improve legislation.

There are elements, I am sure my friend would agree, that are positive. There are elements here that create a new offence of voyeurism, measures to protect children and vulnerable persons, measures in the courtroom that will protect them from being cross-examined by their abuser, tougher sentencing provisions, a category of sexual exploitation, elements that are there to strengthen the current provisions.

Does the bill go far enough? Does it close the loophole? No, it does not, but it is process that we have to follow. I would rather keep pushing the rock up the hill than jump off the hill, just because we are not at the top yet.

The Progressive Conservative Party will support this flawed legislation at this stage in the hopes of improving it. It is simply a straightforward approach that we have to take. Hopefully common sense, which, as the hon. member has pointed out, is so sorely lacking, will prevail. Members of the government may be shamed into bringing about the necessary improvements by their own constituents. I hope that is the case but I know I can count on my hon. friend to continue to fight the good fight to protect children in this country.

[Criminal Code, January 27th, 2003]

Mr. Speaker, I would like to thank my colleague for this important question.

The issue of public good, which is central to the debate, is what is so unfortunate because the public good can never be served where there is tolerance for child pornography, which is what has happened. The legislation does not close the loophole. Albeit the loophole has been narrowed and is not as broad it is still open to misinterpretation. I do not think the public good could ever be interpreted as allowing for child pornography to exist in any form. There has to be a clear signal and putting down some clear stakes in the ground on this issue is what the legislation should be aimed at.

The second part of my friend's question speaks to the exercise of the notwithstanding clause which is, to use the vernacular, the nuclear bomb within the charter that would obliterate an area of law for a substantive period of time. It is a final step. I would suggest that all preferable routes should be pursued. I suggest that the legislation, with the work and input of my hon. friend, is the answer if we can amend the legislation to get it right. If members of the House of Commons and members of my friend's government would support amendments that would close that loophole we would not have to go the route of invoking the notwithstanding clause.

I am one who is not suggesting that we should never use the notwithstanding clause. It is there for a reason. Members of Parliament should be aware of situations when the notwithstanding clause should be invoked. I strongly suggest that if the legislation is not corrected and remains in such a way that it will leave this type of abuse open then we should use the notwithstanding clause. The Government of Canada should seriously consider doing that. If that is what is needed to protect children then by all means.

[Criminal Code, January 27th, 2003]

Mr. Speaker, I am pleased to take part in this very important debate. Bill C-20 provides us with an opportunity to better protect children in Canada.

This particular debate will evoke a great deal of emotion and there is no doubt that Canadians are watching closely as to how the government and the Parliament of Canada will respond to this important issue. Since the decision in the Sharpe case brought this issue to the forefront, I think that police agencies, victims' groups and Canadians in general have viewed this as an issue of timeliness and an issue requiring immediate action. Sadly, that has not been the case. Although I applaud the government for finally bringing this legislation forward, I lament the fact that it has taken almost two years.

I respectfully disagree with the commentary from my NDP colleague, although I take his comments very much to heart when he speaks of balance. Yes, there is often a need for balance when dealing with issues such as this one, but I also agree with the commentary that there is a time for decisiveness, particularly and fundamentally on an issue that is so grave in the harm that can come to children.

This bill has taken a long time to come before the Parliament of Canada. One would have hoped that in that time it would have come in a perfect form or at least close to a perfect form. That is not the case. I am very fearful that this legislation does not go far enough to alleviate the inexcusable production of child pornography. The bill does not address the current lack of resources in the country vis-à-vis the police and those who deal directly with all efforts to try to attack and remove this scourge on society.

I will preface my remarks by saying that there are many favourable aspects of the legislation. I suspect that on closer scrutiny by the justice committee, it will no doubt prove to be beneficial. For example, clause 5 amends subsection 161(1) of the Criminal Code to expand the definition of those convicted or discharged on conditions prescribed in a probation order and can be viewed as a positive step. The addition of offences under this section will increase the number of offences for which a judge can place a probation order, leading to a greater number of victims being protected. I have a private member's bill that is in the same vein. It would allow a judge to place a provision on a sexual offender barring his or her presence in a dwelling house in the presence of a child unless escorted by an adult. Those are the types of expanded protections that we should be constantly seeking as far as legislation such as this is concerned.

A total crackdown on child pornography is happening in many jurisdictions, including in the United Kingdom. That type of response sends a strong message, a message of deterrence and a message that embraces public protection. That is in and of itself part of what should occur when the law is brought to the forefront.

Sadly, the government has a record of producing complex and cumbersome legislation that is difficult to enforce and often difficult for the courts to interpret. The replacement of the Young Offenders Act is a perfect example, as are the terrorist legislation and the gang law. All of these, although well intended, came far short of accomplishing what one would hope because of the abstract, complex nature in which they were presented.

Getting back to the substance of the bill, the amendments to sections 151 and 152 of the code also maintain the indictable offence maximum of 10 years and increase the level of punishment under summary conviction, by directing the court to incarcerate not exceeding 18 months, making it a hybrid offence, in essence. Again, I view this as positive. It expands the range of sentences available to judges to send that message of deterrence and keeps in mind the balance necessary to at the very least try to rehabilitate.

Sadly, when it comes to child pornography and individuals who engage actively in the manufacturing, production and proliferation of child pornography, just as for those involved in pedophilia and sexual assaults, the chances of rehabilitation are often very slim. The preference in my view, and I suggest in the view of many, is that the emphasis has to be put on the protection of the public when these types of offences are involved. These offences are referred to as sexual assault cases but they are violent offences. Sexual assaults inevitably can be characterized as violent and the effects are long-lasting, lifelong in many instances. A life sentence is what is handed to a victim of this type of horrific invasion.

The fundamental question in this debate must centre around the harm caused to those who are most vulnerable: children, obviously. Underlying this, we must give thought to the role of the court in the context of judicial policy as it pertains to the supremacy of Parliament. We must show how this new legislation would eradicate child pornography within the context of artistic merit.

My overall assessment is that this legislation narrows but does not eliminate or eradicate artistic merit from the Criminal Code. Unfortunately for Canadians, the legislation does not go far enough, I suggest, for it once again could be subjected to judicial interpretation, putting children at risk.

Does the two step analysis of which the minister spoke serve the public good? Some of the questions from my hon. colleague from Mississauga and other members of the House posed the rhetorical question: What possible public good or merit could be found in something that exploits children? There is no merit. There is no public good that could be found in such material.

The second part of this two step analysis of which the minister spoke asks if it goes beyond what serves the public good. I find that statement in and of itself completely puzzling. There is no merit in the depiction of children in a way which degrades them. There is harm in and of itself. There definitely will be constitutional challenges. There always are and there always will be on issues such as this. As surely as night follows day, there will be a challenge based on this new legislation. That is inevitable. Yet Parliament has a strong role to play when it comes to issues of public good. It has a strong role to play in drawing lines on moral issues. Why not be definitive in the first instance if we know that it is going to go to the courts?

There is an inherent danger to society as a whole when we fail to recognize just how detrimental child pornography is at a basic level. No one is suggesting that the works of Nabokov in Lolita or Plato in Symposium or other classics that touch to some degree on issues involving children be removed from circulation based on the promotion of sexual conduct with minors. As my colleague from Saint John suggested, the Charter of Rights and Freedoms provides protections for freedom of thought and expression, yet implicit in that are responsibilities as well. The question of what constitutes a reasonable limit is central to this debate. Common sense surely must be the guiding principle, common sense that is so often lacking in legislation that appears in this place.

Subclause 7(1) of Bill C-20 amends subsection 163.1(1) of the Criminal Code, defining child pornography to include:

any written material, the dominant characteristic of which is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years--

While the addition of a clear section for the purpose of defining what constitutes child pornography is welcome, the removal of the words “for a sexual purpose” would, in my opinion, completely change the meaning of the legislation and its purpose. The exclusion of those four words could send a clear message to the judiciary, removing the subjectivity of the purpose of the work and putting the emphasis on the acts within.

There is also in legislation before the House the issue of dealing with raising the age of consent. I would suggest again that an opportunity was missed to send a clear message on this. There is easily a remedy when it comes to a pure exemption. It would have clarified this supposed reason that the government is putting forward for not raising the age of consent because it would involve sexually active teenagers, that somehow the activities of two teenagers at a drive-in could result in criminal charges being brought forward. There is already the two year exemption that is applied, which again is a common sense approach that surely would prevail, yet the message it sends is one of ambivalence. I know that there certainly are examples that we can all imagine whereby a very streetwise 13 year old, up against a naive 17 year old, would fall outside the current parameters or even the parameters that are presented in raising the age of consent. Again one would hope that common sense would prevail in the courts of the land.

There is always a need to streamline legislation and to put it in common parlance so that people, and particularly young people, can understand it. We seem to, in this place, continually stack legislation upon legislation. My grandfather used to speak about the need to strip away old shingles before putting new shingles on the roof. That same approach, I suggest, would often apply in legislation such as this, as the definition of child pornography should not be open to interpretation through intent or by any other means, that is to say, the thought process behind the writing and whether or not a work was produced for a sexual purpose would be of no consequence. We simply need to state the definition of what is acceptable and what is not, with the clear definition that the judiciary is removed from the public-private nature of the debate.

As a remedy to the problem associated with subsection 163.1(6) of the code, subclause 7(2) replaces subsection 163.1(6) with another subsection which states that no person will be convicted of an offence under the section

if the acts that are alleged to constitute the offence, or if the material related to those acts that is alleged to contain child pornography, serve the public good and do not extend beyond what serves the public good.

What on earth does that mean? Where could there be public good found in some form of child pornography?

I understand the intent of the minister's legislation, yet I fear that what has been presented will not be sufficient to protect against the abhorrent creation of child pornography, of material depicting children in a pornographic way. Members of the public, along with child advocacy groups, members of the House of Commons and Canadians in general, have continually called upon the government to produce a clear, concise piece of legislation which would completely remove the chance that material of this nature would ever find its way into public hands.

The Catholic Women's League of Antigonish and groups from all over the riding of Pictou—Antigonish—Guysborough, from across Nova Scotia and from across the country have continuously carried on the white ribbon campaign in an effort to have the government bring forward strong laws against child pornography. This bill, sadly, does not meet the standard that they are searching for.

The minister has left open to interpretation by the courts a matter that strikes at the very heart of our democracy. The intent of the bill is to protect children from all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect, and yet unfortunately the definitions of public good will be vague and insufficient and not of a level to objectively put forward to the courts any type of pornography and how it might be used. It is not clear. Once again there is a question of the acceptability to the individual. Obviously an argument as to what constitutes the public good will predominate, leaving the children vulnerable again. There can be no levels of child pornography, just like there are no levels of pregnancy. It either is or is not.

I ask the minister why this legislation took the government so long to produce if it is going to be brought forward in such a flawed manner. The overall effect of the Sharpe decision by Mr. Justice Shaw in many cases had people absolutely recoiling in horror that this decision could have been produced by someone from the bench. Yet that learned judge, by his decision, in fact has kicked open the door, and by this legislation it has been left open by the minister. The door is left open to potential pedophiles who would take advantage of youth, who denigrate images and engage in writings that have a very corrosive effect on societal norms. This is a travesty. Works of this nature go against the very fabric of what is acceptable in a just and moral society. There can be no denial. A direct correlation exists between the fantasies of sick-minded individuals and the harm to children that is created. Why risk the potential danger, I ask rhetorically, when the collective will of the people would see this material stricken from existence?

In handing down the Sharpe decision, Justice Shaw effectively broadened the interpretation of the current exemption of defence for artistic merit. Section 1 of the Charter of Rights and Freedoms guarantees the rights and freedoms set out in the charter “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The contention of that section, which is that limits are justifiable, in this case is correct when weighed against the potential harm to children and the intent of Parliament to protect the rights of those who are most vulnerable.

The essence of the debate today is that the protection of children must come first. Simply put, it is my belief the Supreme Court of Canada erred in its favourable interpretation of the Shaw decision. Unfortunately, and I say that respectfully of the courts, the justice minister's lawyers have weighed the rights of the individual against the rights of the child and once again we are left with a mediocre half measure, an attempt to correct. The Canadian public realizes that this is a serious problem yet this is the legislation that the government has produced.

If the Liberal government is unwilling to protect the rights of children and, by extension, their families, I suggest that it might at the very least take the opportunity presented by the upcoming budget to consider supporting victims of crime financially.

The Progressive Conservative Party of Canada has always been supportive of attempts by the law enforcement community, victims groups and child advocates who are constantly tasked and constantly struggling with the lack of resources available to them.

Given what we saw wasted by the government in the production of a long gun registry that is ineffective and a complete disaster, what if that type of money were put into expanding the registry for the DNA data bank, expanding the sexual offenders registry or a missing persons registry, which should be the next step in this attempt to put information online? What about having a victims' ombudsman's office for timely access to information as to matters that were before the court and individuals who are about to be released from prison who were offenders? Funding for legal aid in this country is a disgrace. This, in and of itself, would be an opportunity to put more money into the system to allow for a better brand of justice.

There are so many greater priorities that would have assisted and enhanced our justice system rather than wasting money on a long gun registry that has no connection to public safety and was poorly managed by the government. The Liberals are not good managers, clearly. The fact remains that criminals, particularly the Hell's Angels, will never register their guns. The entire premise of this ill-fated registry is flawed and yet the government continues to support it with taxpayer money. The priorities for where they put the money do not seem to be in line with the public priorities.

As I have said before, what could be more fundamental than the issue of protecting children? We know that the lasting impact on victims of sexual abuse is a life sentence and many of these drastic debilitating effects are sadly passed on and further victims are the result. Very often the mental anguish and detrimental effect on the development of young people is everlasting.

It is incumbent upon Parliament to take every opportunity to make for a safer, kinder, gentler society. I do not want to see Parliament miss that opportunity again.

With the technology that is available, the Internet, there is a great opportunity for police, given the proper resources, to combat this problem in a more effective way. They are crying out for it. Police groups recently have drawn that comparison, what they could have done with $1 billion to address this issue. There is a need to support victims and to have more support and stronger legislation in that regard. It talks directly to the issue of respect and dignity for those who have been victimized. It is clear that there has to be an equitable approach taken by the government, which is why we need this victims' ombudsman's office.

While we debate the merits of the bill, alleviating the philosophic discussions of public good, it becomes evident that the legislation is wanting; the problems associated with the Shaw decision, the Sharpe decision. For the sake of the children, the government has to do better.

In conclusion, we will support the legislation as far as getting it to the committee to try to improve it and add some substance to it. The legislation is a half measure. We want to see the whole measure. People who abuse children must be prosecuted and severely punished. Bringing down laws that are strict, clear and pragmatic is the way to approach this. The legislation is wanting. We in the Progressive Conservative Party hope to make a contribution to see that this will in fact protect children and improve their lives.