Vic Toews

[Supply, September 16th, 2003]

Mr. Speaker, I think that is the point exactly. I want to commend the member for Ancaster—Dundas—Flamborough—Aldershot for some of the other work that he has done in respect of trying to open up the institution of Parliament.

Parliament, with all of its defects, is not reason enough to simply say there are shortcomings in our democratic process. That member and other members have worked hard to make this a more democratic process. Certainly for members of the Canadian Alliance and Preston Manning, the former leader of my party, that was the raison d'être to come here. Yes, this is not only about the institution of marriage. This is about the institution of Parliament, and I thank the member for bringing that up.

[Supply, September 16th, 2003]

Mr. Speaker, it does not surprise me that member, who puts the jackboot of fascism on the necks of our people with Bill C-250, would say things like that. I expect it of him, but I thank you, Mr. Speaker, for bringing the member in line. It will not do any good because his ideology is fascism and not free speech.

In respect of the specific issue that has been raised by this individual and the comments of the Prime Minister, I believe somewhere in the range of January 29, 1981, the Prime Minister who was then minister of justice stated that he did not want sexual orientation in the Charter of Rights. He was remarkably clear for that individual that it had no place in the Charter of Rights. Perhaps at another time he said something else and it does not surprise me if he did because he likes to be on many sides of every issue.

In 1985 after the Constitution was drafted, the committee members went around and came up with a resolution saying that they should include sexual orientation. I am taking the member's word for that. I will have to check that out but I will take his word for it.

The proper response then is to bring an amendment to the Charter. It is not to say, “We five committee members we would like it changed, so maybe the judges will do the work for us”. If one wants to change the Constitution there is a process and it does not simply involve passing a resolution of a committee. It involves passing a resolution of this House, the other place and the proper representation from the provinces.

[Supply, September 16th, 2003]

Mr. Speaker, those are all good points that have been raised and I thank the member for bringing them forward.

These are exactly the kinds of discussions that we should have in Parliament. It should not be up to the courts to dictate this issue for us. I take issue not with the member's comments as much as I do with the appropriation by the courts of this entire social policy issue, effectively stifling debate in the House. This is a complex matter.

I refer the courts and the member to some of the earlier charter decisions where the courts said that they did not create these rights in a vacuum, that they looked at the historical, cultural, social and all aspects of our society in arriving at a definition of what these principles include. What we increasingly have seen is the courts simply substituting their own political decision for that of elected representatives.

There should be deference by the courts in respect of defining this kind of an issue when they knew that this was an area of the law that was specifically reserved to Parliament, not only under the BNA Act of 1867 or the Constitution Act, 1867, but through the votes that led up to the debate of the final drafting of the charter.

The comments that the member makes are worthy of debate and the place to debate them is here. I would like to hear the Supreme Court of Canada say that those lower courts were wrong in appropriating that jurisdiction, that the hot potato should be sent back to Parliament and let parliamentarians stand, earn their money and make the decisions.

[Supply, September 16th, 2003]

Mr. Speaker, since the lower court ruling in Ontario in Halpern v the Attorney General struck down the definition of marriage as unconstitutional 14 months ago, this is the first opportunity that elected members of Parliament have had to discuss this issue on the floor of the House of Commons. Naturally, I am pleased to have the opportunity to address the issue of same sex marriage in Parliament, in the public, democratic forum that Canadians look to for both leadership and representation on social policy issues.

Unfortunately however, so far the expectations of Canadians have been frustrated on both fronts. Recent decisions regarding the status of the definition of marriage in Canada have taken place almost entirely outside of the context of public debate or consideration of the public's elected representatives, something which is astounding considering the magnitude of the societal change these decisions are likely to effect.

Most, if not all of us, agree that this debate today is long overdue and should be looked upon as a starting point for parliamentary debate on this important social policy matter. I would like to begin with a quotation and it states:

Let me state again for the record that the government has no intention of changing the definition of marriage or of legislating same sex marriages...I fundamentally do not believe that it is necessary to change the definition of marriage in order to accommodate the equality issues around same sex partners which now face us as Canadians.

These are the words of the former justice minister, the current Minister of Health and MP for Edmonton West, from Hansard on June 8, 1999. On February 15, 2000, during the parliamentary debate on Bill C-23, the Modernization of Benefits and Obligations Act, she said:

This definition of marriage, which has been consistently applied in Canada and which was reaffirmed last year through a resolution of the House, dates back to 1866. It has served us well and will not change. We recognize that marriage is a fundamental value and important to Canadians.

She added, and I think importantly for this debate:

Important matters of social policy should not be left to the courts to decide. If parliament does not address the issue, the courts will continue to hand down decisions in a piecemeal fashion, interpreting narrow points of law on the specific questions before them. This guarantees confusion and continuing costly litigation. Most worrisome, it risks removing us from the social policy process altogether.

What she was talking about when she referred to us was the democratic institution of Parliament.

Just four years later, and the minister's words notwithstanding, the jurisdiction of Parliament to legislate on matters of social policy has been effectively derailed by the courts.

The 1999 promise to protect marriage was made by the former justice minister, the Prime Minister, the former finance minister who will soon become the next Prime Minister, the current Minister of Justice, and by a total of 31 current cabinet ministers. They have broken their word to Canadians and they have consistently failed to clearly explain why they have done so.

Canadians expect better than this from their government. It is clear that the Liberals have failed Canadians and they have failed democracy. Despite the former and the current justice minister's promise to take all necessary steps to preserve the definition of marriage, they have failed to do so. Indeed, they have failed to take even the most basic step of appealing the decision of the Ontario Court of Appeal to the Supreme Court.

They have sat idly by while lower courts have improperly appropriated the jurisdiction to redefine marriage and the courts have fundamentally changed the definition of marriage.

Some have suggested that the charter is there to protect the minority against the tyranny of the majority. That is not correct. I find it amazing, coming from a party that calls itself the New Democratic Party, this absolute abdication of its responsibility as the democratic voice on social policy matters by simply turning them over to unelected judicial figures appointed by the Prime Minister.

The charter is not there to protect the minority against the tyranny of the majority. It protects everyone who relies on its provisions, regardless of whether one agrees or disagrees with the application of that principle.

We look at what are the principles in the charter. The institution of marriage is a matter that was specifically reserved for Parliament in 1982 and does not fall within the scope of the charter. As such, the time honoured rules of parliamentary democracy, including a majority vote, are applicable to this social policy issue. It is not for the courts to alter these rules. It is for the court to obey the law by properly applying the principles that Parliament enshrined in the charter.

If the charter is to be amended, the courts must, in our democracy, defer to the judgment of Parliament in respect of the nature of those amendments. There is a democratic deficit in the House and it comes from the frontbenches of our Liberal government.

They have failed to appeal the British Columbia and Ontario court decisions to the Supreme Court of Canada, despite the justice minister's clear responsibility as the chief law officer of Canada to uphold the jurisdiction of Parliament. As the Attorney General, the Minister of Justice does not have a responsibility to the government. He has a responsibility to the rule of law and he has substituted the rule of law for crass party politics. He has confused his political role as a Minister of Justice with the legal office he holds as the Attorney General and he has done the bidding of the Liberal Party rather than his duty as the Attorney General.

Despite spending $250,000 and having heard from over 400 witnesses in person in a dozen cities with an additional 400 written briefs submitted, this minister simply decided to shut down the justice committee because he was not getting the response he needed to sell the same sex marriage debate to Canadians.

It is not enough that he shut down the justice committee. It is not enough that he refused to appeal the Ontario Court of Appeal decision. He went further to actively undermine those who would seek leave to the Supreme Court of Canada, who hoped to be able to argue their case in front of the Supreme Court to clarify that this was an issue that remained within the jurisdiction of Parliament and that the Supreme Court clearly tell the lower courts that they had overstepped their jurisdiction and had wrongfully appropriated the jurisdiction of this democratic institution.

The justice minister's reference to the Supreme Court does not address the constitutionality of the traditional definition of marriage. All it does is ask the court whether same sex marriage is constitutional. This softball lob to the Supreme Court is worded in such a way that the court has little choice but to agree.

What do the nine Supreme Court justices feel like, being used as a political tool by the Prime Minister and the Minister of Justice? They should stand up and say they will hear the appeal, they will do the right thing, and they will respect the jurisdiction of Parliament to make decisions on matters of social policy.

Then the Prime Minister attempts to pass this charade off with a so-called free vote. When the same sex legislation eventually comes before Parliament, sooner or later, even if it is soundly defeated in the House, same sex marriage will continue to be the law in Canada since it is now the law by default, by judicial fiat.

The Prime Minister told his caucus as much in a closed door meeting. Unfortunately, he has not shown the courage to tell the general public the same.

Even those countries that have legalized the marriage of same sex couples do not treat those relationships in exactly the same manner as the traditional marriage relationship. For example, in Belgium, same sex married couples are not permitted to adopt children. Furthermore, the decision to legalize same sex marriage in both the cases of Belgium and the Netherlands is not based on a judicial interpretation of human rights as is the case in Canada. It was done as a matter of social policy.

It is interesting to note that the final vote on Bill C-250 is scheduled to take place tomorrow. Make no mistake about it, Bill C-250 is one side of the same sex marriage debate. It is the side that brings the weight of the criminal law to bear on those who for one reason or another disagree with the institution of same sex marriage. The one agenda is to push same sex marriage, the other is to stop any criticism of it by the imposition of criminal penalties. Bill C-250 will further erode the ability of Canadians to speak out in a free and open manner.

The suppression of legitimate expression is a threat to our democracy, to our basic freedoms, and the values that are in fact enshrined in the charter of rights. There is no comfort in the promise of the justice minister that religious freedoms will be protected. He has broken his word in the past and there is no reason to take him on his word now.

I want to focus for a few moments on the assertion that some of the courts are simply adhering to the charter by imposing same sex marriage on Canadian society. The proponents of this view have conveniently forgotten that in 1981 the House of Commons subcommittee debated for two days whether to include sexual orientation in section 15 and it voted to leave it out. It voted to leave it within the jurisdiction of Parliament to determine. Of course the courts wrongfully appropriated that jurisdiction by improperly amending our Constitution.

The last clear statement we have from the Supreme Court of Canada on this issue is from Mr. Justice La Forest. It should be stated that those who would discount that judgment failed to point out that of the four judges who agreed with the La Forest judgment, none of the others disagreed. They were silent.

The last clear statement we have from four judges of the Supreme Court who constituted the majority decision in Egan was a defence of the definition of a marriage and the rejection that Parliament, providing special support and recognition to the traditional definition of marriage, does not constitute discrimination against other types of relationships, including common-law heterosexual relationships or homosexual relationships.

To avoid living up to the responsibilities, the Prime Minister and the Minister of Justice said in respect of the 1999 resolution that they did not somehow realize that this might involve a commitment to the use of the notwithstanding clause. As the leader of the Canadian Alliance stated earlier, that is an argument that is without merit. However I want to make it easier for anyone who has any concerns about voting for the traditional definition of marriage as one man and one woman because of the reference to all necessary steps in the 1999 motion and the motion here before us.

Accordingly, I make the following motion, seconded by the member for Crowfoot. I move:

That the motion be amended by deleting all the words after the word “others”.

I will bring this forward Mr. Speaker, and I am sure the Clerk will pick that up.

Today I say to this Minister of Justice, the cabinet and colleagues, now is the time to end the deafening silence and tell Canadians where we stand. Do we believe in the traditional definition of marriage or not?

With my proposed amendment, the motion is clear. Where do we stand on the definition of marriage? It is time to end the kind of nonsense that the Liberals have tried to raise in order to take a clear stand on this issue. Will members reaffirm the definition of marriage as being one man and one woman to the exclusion of all others or do members vote against that definition?

The members' votes on the amended motion will tell Canada where they stand.

[Criminal Code, September 15th, 2003]

Mr. Speaker, I am pleased to rise today to discuss this bill, an act to amend the Criminal Code (criminal liability of organizations).

The incident that took place in the Westray Mine near New Glasgow, Nova Scotia in 1992, in which 26 miners were killed, resulted from gross negligence on the part of managers, directors and workplace inspectors. It was a tragedy that could have been prevented. It was a crime that should never have taken place.

I think it is appropriate that we have this discussion to determine whether that action on the part of the corporation and its directors in fact should result in the criminal penalties being proposed here.

The inquiry released in November 1997 by Mr. Justice Peter Richard made the recommendation for the federal government to institute a study of the accountability of corporate executives and directors for the wrongful or negligent acts of the corporations and suggested that the government introduce amendments to ensure that corporate executives and directors are held accountable for workplace safety and health.

In the last session of Parliament, a private member's bill to deal with this issue, Bill C-284, was approved in principle by all parties in the House of Commons, including the Canadian Alliance. However, at that time we cited concerns about the legislation and maintained that certain constitutional issues must be addressed before the bill could be passed.

In May 2002, the justice committee referred the subject matter to the Department of Justice in order to draft legislation in accordance with the objectives of the bill. The result is Bill C-45.

Bill C-45 accomplishes three main goals: first, it makes changes to the Canada Labour Code to protect against workplace hazards; second, through changes to the Criminal Code, if employers and managers do not take reasonable measures to protect employee safety and harm results, the organization could be charged; and third, it expands conditions for liability.

I fully agree that the issue of corporations providing safe working conditions for employees must be addressed by the federal law. I agree that it is not sufficient that we simply have provincial legislation in place. However, I would at the same time caution members of the House against passing legislation that could be legally or constitutionally flawed. If the legislation is in fact put to use in the future, let us not put the families of future victims through the agony of a trial only to find out that there are legislative or constitutional flaws that make the entire legal proceeding under these provisions defective.

It should be noted that one defence that previously existed under the Criminal Code has been repealed by this legislation. For example, section 391 of the Criminal Code states:

Where an offence is committed under section 388, 389 or 390 by a person who acts in the name of a corporation, firm or partnership, no person other than the person who does the act by means of which the offence is committed or who is secretly privy to the doing of that act is guilty of the offence.

Without this defence, concerns have been raised that a person could be held responsible for an offence even if he had no knowledge of the commission of that offence. While the motivation behind the bill and its predecessors are obviously well intentioned, and I think strive to meet an existing need, we must carefully consider the implications of these amendments. That is why we need to be careful in the context of our constitutional framework to ensure that they do in fact comply with the requirements of our Constitution.

In further discussion on the bill it must be remembered that the one of the principal reasons that businesses choose to incorporate in the first place is to protect shareholders and directors from personal liability arising from the activities of the business. I am not suggesting that simply because individuals have arranged their affairs in such a way as to avoid personal responsibility it should excuse criminal conduct. Criminal conduct should be punished whether it is done directly by individuals or indirectly through the mechanism of the corporation.

Executives, directors or other officers and employees of the corporation presently do not and should not have the benefit of immunity from criminal liability. Under our current Criminal Code provisions, they are legally accountable for their own personal wrongdoing. As well, corporations can be held criminally liable in their own right. In cases of offences of absolute or strict liability, a corporation would be subject to penal liability for unlawful acts or omissions of such persons who, because of their position or authority in the corporation, may be said to constitute the directing mind of the corporation.

However, this bill expands further conditions of liability, which must be carefully studied once the legislation is referred to the committee.

Another matter to consider is that this legislation could create concerns among corporations, be they large or small, successful or struggling. I am not suggesting that we jeopardize the health or safety of our workers at the expense of economic growth and jobs, but we do have to be mindful of the impact that these amendments may have if the legislation is not legally or constitutionally sound.

Furthermore, some businesses may have difficulties in attracting viable candidates to sit on a board with the prospect of such Criminal Code penalties. Smaller or struggling companies would be at a particular disadvantage if such standards for accountability were universally applied.

The question that must be asked is whether these provisions will dissuade from managing corporations precisely those who could provide the appropriate guidance to strengthen the health and safety of the workers. If we pass legislation, will it discourage those individuals in our society who would make responsible directors and managers from in fact directing and managing those corporations? If by our legislative action we frighten those individuals, we then leave corporations in the hands of those who do not care about the safety of workers and that is a situation that we need to avoid. Given the civil liability that has attached to directors, will this increase the difficulties that many corporations find in attracting qualified and competent directors?

I think everyone here wants a safe workplace. They want viable economic units that create jobs and keep the engine of wealth moving in this country. We need to balance these concerns against some of the proposals being made here. I am not in a position yet to say whether these amendments in fact do that in an inappropriate way. On a reading of the legislation, I find much to commend it.

We do not want to create the situation where we dissuade competent people from becoming the directing minds of corporations. We want to encourage competent people who exercise sound skill and judgment to continue working through the vehicle of corporations to ensure that jobs are preserved and created in Canada.

Again, that is an issue we need to bear in mind given the difficulty that many corporations today may have in attracting directors to their boards.

In summary, I think it is important to be careful that this legislation does not open up the door to penalties for people who may not have acted with criminal intent. That, I think, is the major issue the House needs to consider. Our Constitution does not support imposing criminal penalties where there is no criminal intent. If we pass legislation that is constitutionally flawed, it does not help the families of those workers who may face a tragedy in the future. I want to hear from witnesses at the justice committee before formally proposing any amendments to the legislation.

I would like to note that the member for Kootenay--Columbia and other Canadian Alliance representatives have done a substantial amount of work in this area. They have met with representatives of the Westray victims' families and other parties around Antigonish. In fact, the member for Kootenay--Columbia will be addressing this legislation and will share some of the insight he has gained.

I want to say that the Canadian Alliance supports the intent of this legislation and we look forward to working proactively to overcome any identified legal and charter concerns that may be present in the proposed legislation.

[Justice, June 10th, 2003]

Mr. Speaker, we do not protect sex offenders in the way that the Liberal government does.

On another issue, the definition of marriage is a matter that falls within the exclusive jurisdiction of Parliament. In 1999 the House affirmed the definition of marriage as being between one man and one woman. Today the Ontario Court of Appeal made a fundamental error of jurisdiction in redefining marriage.

Will the Minister of Justice protect the jurisdiction of Parliament by immediately appealing this decision and having the Supreme Court correct the Ontario court?

[Justice, June 10th, 2003]

Mr. Speaker, following the brutal killing of 10-year-old Holly Jones in Toronto, there have been a string of attempted kidnappings in the same Toronto neighbourhood. Parents across Canada are concerned about the failure of the government to implement an effective national sex offender registry.

When the Liberal registry comes into effect, it will be absolutely blank with no names on it. Why, after 10 years, has the government failed to do anything to install an appropriate national sex offender registry?

[Criminal Code, June 6th, 2003]

Mr. Speaker, I want to indicate that member, the member for Burnaby—Douglas, keeps on speaking about freedom of speech and every time someone tries to make a point he stands up and interrupts because he has no belief in freedom of speech. He is only concerned about a particular agenda. We all know what that agenda is and it has nothing to do with freedom or equality. It has everything to do with the suppression of people who disagree with him. It is unfortunate in a democracy when that individual feels only his point of view is a valid one.

I commend the amendments to the members of the House to consider them for this very important bill.

[Criminal Code, June 6th, 2003]

Mr. Speaker, it is certainly my honour to speak in respect of this bill and the amendments that have been raised, two of which I have brought forward.

I want to make it clear that the Canadian Alliance rejects hatred directed at any group in Canada. We have heard the kind of vitriolic statements made by the member for Burnaby—Douglas against certain groups in our society. Even if he does not share their religious beliefs, a little more respect toward those religious groups would be in order. Our party does not choose and pick favourites. We reject hatred directed at any group in Canada. In that context we have consistently expressed concern about Bill C-250 on the basis that it raises serious concerns for fundamental freedoms.

While this bill may be motivated by good intentions, and I give the member the benefit of that doubt because I have no reason to doubt his word as an hon. member, good intentions however often have unintended consequences. When those intentions and unintended consequences form a part of our laws, the impact can significantly interfere with the ability of people to communicate or to adhere to essential matters of personal belief, religious or otherwise.

Constituents have brought forward a number of examples throughout the court system, looking at the fear they have of where this legislation is going.

For example, back in 1997 Sylvia MacEachern, the editor of a Roman Catholic journal, was subjected to an investigation by the hate crimes unit of the Ottawa-Carleton Regional Police for stating on an Ottawa radio station that she supported the teaching and the catechism of the Catholic church regarding homosexuality. The charges were not proceeded with because there was no provision for sexual orientation in the hate crimes section of the Criminal Code. Here we have a clear example of a Catholic expressing an essential element of her faith being subjected to a police investigation in our country.

Hugh Owens, a Christian, was taken to court by the Saskatchewan Human Rights Commission for placing an advertisement in the Saskatoon Star-Phoenix that listed bible verses opposed to homosexual acts. In a ruling on December 11, 2002, the Court of Queen's Bench for Saskatchewan found that the advertisement exposed homosexuals to hatred and indeed classified the bible in that context as hate literature.

In his defence Owens cited the guarantees of freedom of speech and freedom of religion in subsection 14(2) of the same human rights code and section 2 of the Canadian Charter of Rights and Freedoms. However the judge held that those guaranteed freedoms did not extend to expressions of hatred. Having classified those comments as exposing homosexuals to hatred, he then made the finding against Mr. Owens.

Clearly the bill, as currently worded, does not address the legitimate concerns of many Canadians about their continued right to freedom of expression and religion.

The first amendment that I brought forward would broaden the requirement of the Attorney General's consent to proceed with a hate propaganda prosecution. The member for Burnaby—Douglas has been stating in communications that no prosecutions can be undertaken without the consent of the Attorney General in these sections. He knows that is not correct. Currently, this requirement only applies to section 318 and subsection 319(2).

The amendment would broaden the application to all of section 319. The amendment does not solve all of our concerns with the bill, but it goes at least some way to expand the oversight of the provincial attorney general and to provide additional safeguards against frivolous prosecutions.

Having said that, I am very concerned about giving the attorney general, who ultimately is a political figure, the right to determine who will be and who will not be prosecuted for expressing religious views. That should not be the function of the police or of the attorney general, much less an elected politician. This is a dangerous section and additional safeguards need to be brought forward. Ultimately the amendment alone does not alleviate all of the concerns that my constituents and thousands of others have brought forward.

One of my colleagues indicates he has received 4,000 pieces of communication on this bill alone out of his riding. That is absolutely astounding. I have never heard, out of one constituency, those kinds of numbers. In my own constituency, I believe I am somewhere at around 1,000, but my constituents know where I stand on this bill and I have encouraged them to advise other members of Parliament about the dangers that they see in the bill.

The second amendment would explicitly protect religious texts under section 320, the criminal provisions specifically dealing with the seizure of hate propaganda. If we take for example the classification of the Human Rights Commission and the Saskatchewan Court of Queen's Bench as certain sections of the Bible promoting hatred, the substantive legal definitions are the same. The onus of proof might be different in a human rights context as opposed to a Criminal Code context but the concepts are exactly the same. There needs to be protection to ensure that religious texts do not fall within the definition of hate propaganda.

It has long been the position of the Canadian Alliance that without such an explicit protection, the bill would be problematic for a number of common publications, since it would criminalize statements and texts that pertain to homosexuality. Such publications as the Catholics have indicated and as the Evangelicals have indicated to me in letters and presentations would include the Bible, the Koran and the Catholic Catechism. If texts such as the Bible or the Koran are used by someone to promote hatred or advocate genocide in that context, then of necessity those texts would be considered hate literature.

When the Department of Justice officials appeared on Bill C-250, they could not give a definitive answer to the question of whether religious publications would be subject to censorship or even prohibition. I simply refer the Speaker and the members of the House to their specific testimony. I do not think it is sufficient for the people of this country to simply have to rely on a hope and a prayer that their words and their scriptures will not be criminalized and will not be seized as hate propaganda. We have an obligation in dealing with the criminal law to ensure that those concerns are addressed.

I also commend to the members of the House the reading of the Keegstra decision. It was a four-three decision of the Supreme Court of Canada in which the court upheld the section under consideration, section 319, as constitutional under section 1, having breached the substantive freedoms and guarantees. It said that one of the reasons the majority upheld it was because it was narrow clearly drafted. We do not know the implications of this amendment and these terms. This House was deprived of the benefit of committee debating and discussing this in committee because of the filibuster of the sponsor.

It is a travesty that a bill would move in that--

[Criminal Code, June 6th, 2003]

moved:

That Bill C-250 be amended by adding after line 9 on page 1 the following new clause:

“2. Subsection 319(6) of the the Act is replaced by the following:

(6) No proceeding for an offence under subsection (1) or (2) shall be instituted without the consent of the Attorney General.”

That Bill C-250 be amended by adding after line 9 on page 1 the following new clause:

“3. The definition “hate propaganda” in subsection 320(8) of the Act is replaced by the following:

“hate propaganda” means any writing, sign or visible representation that advocates or promotes genocide or the communication of which by any person would constitute an offence under section 319 and does not include any religious text or part thereof;”