Vic Toews

[Justice, May 12th, 2003]

Mr. Speaker, a recent Ipsos-Reid poll stated that two out of three Canadians thought the Supreme Court of Canada was influenced by partisan politics. This conclusion is not surprising given the absolute right of the Prime Minister to appoint judges to the Supreme Court.

Why is the Prime Minister satisfied with seeing the court increasingly become an arm of the Prime Minister's Office because of this partisan appointment process?

[Health, May 12th, 2003]

Mr. Speaker, I too would like to direct my question to the hon. member for Yorkton—Melville.

I noted with interest that his motion is in fact focused on the health risks facing women who have undergone abortion. The motion does not mention the issue of whether the fetus constitutes human life, but restricts the examination to the health of the mother.

Because the motion focuses on the mother's health, I think each of us could support it. It would be in the best interests of women and women's health to have a discussion on that issue to make sure we are kept up to date on any developments in that respect.

Would the member elaborate more specifically on third trimester abortions and the concerns he may have regarding the impact these late abortions can have on a woman's health?

[Canada Elections Act, May 8th, 2003]

Mr. Speaker, the minister has shown no leadership after promising to show leadership and the Liberal government has shown no leadership in protecting the safety and security of Canadians. The Liberals refuse to overturn a court ruling giving convicted murderers the right to vote and they refuse to close their own legal loopholes that allow child pornography. There is no excuse for this Liberal government sacrificing the safety of our children.

Will the Prime Minister pledge today that he will end the right of murderers to vote and impose a zero tolerance policy for child pornography?

[Canada Elections Act, May 8th, 2003]

Mr. Speaker, voters in Perth--Middlesex are outraged that a convicted murderer will be voting in the byelection this Monday. The minister promised Canadians six months ago that he would review the decision to give prisoners the right to vote. On October 31 he said, “We will review the decision in great detail and respond to the House”.

Will the minister tell Canadians why after six months he has failed to make any report to Parliament on this important issue and why he continues to support equal rights for murderers?

[Supply, May 8th, 2003]

Mr. Speaker, on a point of order. I want the record to reflect that the member speaking is in fact the one who now opposes making this a votable motion.

[Supply, May 8th, 2003]

moved:

That this House call upon the government to bring in measures to protect and reassert the will of Parliament against certain court decisions that: (a) threaten the traditional definition of marriage as decided by the House as, “the union of one man and one woman to the exclusion of all others”; (b) grant house arrest to child sexual predators and make it easier for child sexual predators to produce and possess child pornography; and (c) grant prisoners the right to vote.

Mr. Speaker, I am pleased to rise today to sponsor this motion on behalf of the Canadian Alliance.

The Canadian Alliance is concerned and Canadians across the country are concerned that recent court decisions do not represent the view of Parliament nor the values of Canadian society as a whole.

The three issues outlined in the motion are of particular importance to the constituents in the riding of Provencher and indeed to ordinary citizens across the country, citizens whom I speak to and whom I receive letters from on a daily basis.

Under the assumed authority of the Canadian Charter of Rights and Freedoms the courts have moved beyond their traditional role as arbiters of legal disputes and into the realm of policy making. Indeed, they have become politicians.

While it was anticipated that the charter would grant the courts new powers to review the constitutionality of Parliament's decisions, it has become clear that the courts have taken for themselves an authority that Parliament either expressly withheld from the courts at the time of the drafting of the charter or an authority that no reasonable interpretation of the provisions of the charter could support. Specifically, recent decisions of the courts such as those related to marriage, our laws governing the protection of children and prisoner voting rights are not decisions that are properly grounded in the constitutional jurisdiction granted to the judiciary by Parliament.

An unaccountable and unelected judiciary has simply and erroneously appropriated the jurisdiction to legislate by judicial fiat matters of social policy.

In the opinion of the Canadian Alliance, and indeed in my personal opinion, this was never intended to be the jurisdiction of the courts. Political decisions related to social policy must remain the exclusive jurisdiction of a democratically elected Parliament.

While Canadians enthusiastically support the charter they are becoming increasingly concerned about the political direction of the courts. Nevertheless, judges in Canada have taken on a greater role in shaping government policy, an area that was previously reserved for elected officials.

In many cases where the judiciary has confined itself to its proper constitutional role its decisions have had a positive effect. However in many other cases, such as the Sharpe child pornography case, the effect has had detrimental effects on our society and our ability to protect our children.

Whether or not ordinary Canadians agree with conclusions reached by the courts, it is apparent that Parliament's social policy leadership is becoming irrelevant since its choices are limited by the political choices of the courts as Parliament is ordered to comply with judicial policy directions in all existing and future legislation. As a law-making body, Parliament is becoming less relevant, less creative, less effective, and less vigorous as a result of this shift in power.

Recently, three provincial courts have ventured into the realm of social policy and have ordered Parliament to redefine the institution of marriage. It is important to note that Canada is the only country in the world whose courts have determined the issue of same sex marriage to be a rights based issue. The two countries that have legalized to some extent so-called same sex marriage, the Netherlands and Belgium, have done so as a matter of public policy through the legislative process, not on the basis of judicial compulsion.

In respect of this issue, this new wave of judicial activism appears to pay little heed to either Parliament or indeed the comments of the Supreme Court of Canada as set out in prior decisions. In the Egan Supreme Court decision in 1995, Justice La Forest, writing for four judges for a nine court panel, specifically rejected the idea that the traditional definition of marriage improperly discriminated against same sex couples. Rather, he concluded that Parliament was properly entitled to make a distinction between marriage and all other social units. In his words:

...the distinction made by Parliament is grounded in a social relationship, a social unit that is fundamental to society. That unit, as I have attempted to explain, is unique. It differs from all other couples, including homosexual couples.

The other five judges chose not to base their decision on this issue and in the result the decision of Justice La Forest, together with the judgment of Justice Sopinka who concurred in the result arrived at by Justice La Forest, forms the authoritative basis of the decision. Although both Justice La Forest, on behalf of those who addressed this issue, and Parliament have clearly expressed their support for traditional marriage legal challenges continue to mount.

Last week, when the British Columbia Court of Appeal ruled that prohibiting same sex marriage was discriminatory, it joined two other recent lower court rulings in Ontario and Quebec. I was surprised, perhaps I should not have been, but I was certainly disappointed to hear the justice minister suggesting the possibility that he may choose not to appeal the British Columbia decision, particularly since he along with the majority of his cabinet colleagues voted in support of a Reform Party resolution in 1999 that stated:

...marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps to preserve this definition of marriage in Canada.

The Liberals are now deserting their commitment that they made to the public of Canada. The former finance minister who hopes to be Canada's next Prime Minister has failed to articulate a clear position on this issue. He has said that he would support the decision of the courts and would not use the parliamentary override, the notwithstanding clause, to preserve traditional marriage.

This is astounding considering that he voted to take all necessary steps to do so four years ago. He is failing to show leadership. He is deserting the commitment he made to Canadians four years ago. Knowing that public opinion is divided on this issue, the Liberals may find it convenient to leave this hot potato with the courts in order to shift the responsibility for this matter onto the unelected and unaccountable judiciary that cannot be voted out of office.

However, if the Liberals decide not to challenge this court decision, as they have apparently done, they will have failed in their responsibility to demonstrate leadership on this important social issue.

As the chief law officer of Canada, the justice minister has a clear obligation to Canadians to appeal the B.C. Court of Appeal decision to the Supreme Court of Canada. If the Supreme Court then chooses to abolish traditional marriage by overturning the Egan decision in the comments of Justice La Forest, then the minister is obligated, in keeping with the promise he made to Canadians in 1999, to invoke section 3 of the Canadian Charter of Rights and Freedoms.

At this point the decision is properly back in the hands of parliamentarians and not in the hands of those who would improperly take this jurisdiction away from the elected representatives of the people. Those parliamentarians who choose to allow the courts to make these decisions, because they do not have the courage to make the decisions themselves, fabricate an excuse by saying it is the Constitution that makes us do this.

Let us make it perfectly clear that section 33 is, in fact, an appropriate mechanism by which Parliament retains supremacy in this country. Although the courts may successfully be pressured by interest groups into a position on marriage based on what may be new and fashionable, it is the duty of Parliament to await the test of time through rigorous debate. This is particularly true because these views and theories on marriage are so oddly out of step with the views of ordinary Canadians, and indeed historical and sociological precedents on marriage across the world.

In the case of John Robin Sharpe, our ability as Canadians to protect children from sexual abuse and exploitation has been seriously eroded by the courts. Parents breathed a sigh of relief after a January 2001 Supreme Court decision substantially upheld Canada's laws against child pornography. Unfortunately, the exception created for personal writings was defined in such a broad way that violent and anti-social text that glorified the sexual exploitation of our children by adults like Sharpe could be justified under the law.

We would never tolerate that kind of abuse of minorities in this country. We would not tolerate that kind of abuse of women in this country. Yet the Liberal government is prepared to tolerate the abuse of the most vulnerable people in our society, our children. We did not see this immediately, but a year later, when Sharpe was re-tried in the B.C. Supreme Court, the judge interpreted Sharpe's pornographic works involving children, the sexual abuse of children, as having artistic merit. It is shameful.

Not surprisingly this was the same judge who had originally struck down the law as unconstitutional in 1999. Clearly, what he could not do by declaring the law unconstitutional, he simply did by applying an absurdly broad definition of artistic merit. Sharpe's writings are not art by any reasonable standards. His writings depict sexually explicit material that glorifies the violent sexual exploitation of children by adults. The loophole of artistic merit remains in the new Liberal bill, Bill C-20.

Although the Liberal government has used smoke and mirrors to pretend that it has made the loophole disappear, a prominent Liberal lawyer, David Matas, who represented Beyond Borders, has in fact said the new Liberal legislation would create a larger loophole than artistic merit. Yet these members opposite claim that they have addressed the problem. They have not done anything in Bill C-20 that purports to abolish the defence of artistic merit. They are misleading the public when they suggest that the defence of the public good is a satisfactory answer.

The other issue of importance is the law that allows convicts, including child sexual predators, to serve their terms in the community, otherwise known as house arrest. The Liberal government instituted this policy in 1996 in order to reduce incarceration rates. Whatever happened to the overriding concern about the protection of society?

The Liberals have become bureaucrats who say that we need to reduce incarceration rates. What about the protection of children, people in the streets, our cities, towns, and rural countryside? Serious criminals who still pose a risk to the community have abused these sentences and the government has done nothing to take steps to prevent that.

For example, in 2001 a New Brunswick man was handed a six month conditional sentence and 18 months probation after he pleaded guilty to possession and trading of child pornography on the Internet. The pornographer dealt in pictures involving children between the ages of 10 and 12. Although the law directs the courts to impose the sentence only in those circumstances where serving the sentence in the community would not endanger the safety of the community, that principle appears to have been long forgotten by the courts.

The courts have ignored the federal justice minister's stated intention that these house arrests would not apply to violent crimes. Even the concept of imposing a prison sentence to deter others no longer seems to be applied as a result of the Liberal law.

In another more recent case the supreme court overturned a 1993 law passed by Parliament prohibiting prisoners serving a sentence of two years or more from voting in federal elections.

In another more recent case the Supreme Court overturned a 1993 law passed by Parliament prohibiting prisoners serving a sentence of two years or more from voting in federal elections. It was found that the law infringed section 3 of the Charter of Rights and Freedoms, which gives Canadians the right to vote. As a result, the motorcycle gang member and convicted murderer who challenged the law won the right to vote. In the days and weeks following the ruling, polls showed that the overwhelming majority of Canadians disagreed with the decision.

In the upcoming May 12 byelection in Perth--Middlesex, a prisoner has been placed on the voter's list who recently was convicted of stabbing his wife to death while their children watched. Canadians are outraged that murderers and violent criminals can take part in the democratic process for which they have shown contempt.

By the court substituting its political opinion, and I emphasize it is a political decision on the part of the court, this is not a legal decision, for that of elected parliamentarians, Canadians have no reason to believe in the legitimacy of democratic government and the rule of law. Unfortunately, although the Canadian Alliance introduced a motion last year that would end prisoner voting, the Liberal government refused to support it, suggesting that it would deal with the problem in some other mysterious way. In actual fact the constitutional amendment, as outlined in the motion, is the only way by which Parliament can reverse the effects of this damaging and ill-conceived court decision.

If a member of Parliament makes laws with which Canadians do not agree, that member of Parliament may not be re-elected. However Canadians do not have the opportunity to remove judges who make significant decisions that do not reflect the values of our citizens and our country.

Once the Prime Minister appoints a judge, by virtue of our Constitution a judge may remain in his or her position until age 75. Because of the important decisions our judges are called upon to make, many people in Canada believe that the closed door process for choosing judges, controlled by the Prime Minister, should be changed. In fact Canadian Alliance policy specifically calls for Supreme Court of Canada judges to be chosen by a multi-party committee of the House of Commons after open hearings. Others would like to go further. A recent survey taken by the polling company Environics suggested that two-thirds of Canadians believe that Supreme Court judges should be elected.

Regardless, I believe the closed door process for choosing Supreme Court and Court of Appeal judges is in need of review. Although the Prime Minister consults with interest groups such as law societies, bar associations and individual members of the legal associations and the legal community including judges, as well as the justice minister himself when making appointments, given the significance of court decisions since the advent of the charter, it is increasingly necessary for these appointments to come before Parliament in some fashion so that a broader spectrum of Canadians are involved in this decision.

I dare say there are not many members of the House who could name the nine Supreme Court judges who have so much power over the lives of individual Canadians and our democracy. I doubt if one person could stand in the House and name all nine. At the very least, Canadians have indicated that judicial appointments must allow for greater direct input by citizens to help ensure that those we appoint as judges properly reflect the values of Canadians rather than simply the political interests of a particular Prime Minister.

My time is drawing to a close, but I would direct the readers or the listeners to go back to some of the earlier Supreme Court of Canada decisions where the courts said in very lofty terms that these rights and freedoms were not to be interpreted in a vacuum, but they needed to be interpreted in the context of our historical and cultural roots. The courts have cut off those roots. They have gone on a frolic of their own. It is time that it stops. Ultimately it is the duty of Parliament, as a federal legislative body, to bring our public policy and our laws into line with the views and values of Canadians, and so I encourage all members to support the motion.

[Canada Elections Act, May 7th, 2003]

Mr. Speaker, that minister promised to review the decision and come back with a decision and he has done nothing. That minister has been silent on this issue because he knows the only way to change it is through a constitutional amendment. Because the Liberals refused to act, the Canadian Alliance put forward a constitutional amendment in the House of Commons last December and the minister refused to support it.

Why does the minister continue to support the right of murderers to vote?

[Canada Elections Act, May 7th, 2003]

Mr. Speaker, in the upcoming byelection in Perth-Middlesex a prisoner has been placed on the voters list who has been convicted of stabbing his wife to death while their children watched.

Canadians are outraged that murderers and violent criminals take part in the democratic process for which they have shown contempt.

The minister promised to review the decision last fall. Why is he allowing this person to vote on Monday?

[Appointment of Judges, May 6th, 2003]

Madam Speaker, I am pleased to address this motion today by my colleague from the Bloc, the hon. member for Charlesbourg—Jacques-Cartier. As we have heard, the motion asks the Standing Committee on Justice and Human Rights to study the process by which judges are appointed to courts of appeal and to the Supreme Court of Canada.

The parliamentary secretary outlined the process. As impressive as it sounds, it is remarkable that in the vast majority of cases the decisive criteria is the fact that the candidate has very close connections to the governing party. It has been the Liberal Party for some time. I dare say if we took a list of all the candidates who have been appointed, those Liberal connections would come very clearly.

I do not know whether that is simply coincidence but it reminds me a lot of the story about the emperor not having any clothes. We have gone through this charade of saying that this is the careful process we follow in selecting our nominees. We get all these nominees together in one big pile and then out of that pile, we magically pick the ones with the Liberal connections. We all know they are all well qualified but the overriding qualification is either the Liberal membership or the connection with the Liberal Party. I would challenge members opposite to take a look at these credentials. That is the truth of the matter. Let us not pretend that the emperor has clothes when he has no clothes.

I am pleased to support this motion. The Canadian Alliance has long held that since non-elected judges exercise so much influence on the laws passed by elected officials, the process of appointing them requires more openness.

Indeed in the past 20 years since the event of the charter, the responsibility for making moral, cultural and indeed political decisions has fallen out of the hands of Parliament and into the hands of the non-elected judiciary. As a result, the judiciary currently exercises substantial political power. At the same time, politicians have become increasingly more reluctant to advance legitimate political initiatives, putting increasingly more power into the hands of a selected few.

I would invite my colleagues to read the editorial today in the Ottawa Citizen dealing with the entire issue of marriage. The Ottawa editorial has come out very clearly in saying that this is not an issue for judges to determine. This is a matter, a social policy issue for Parliament to determine, yet we see courts unilaterally usurping the power of Parliament.

We see often the defenders of the judiciary say that they are only exercising the power we have given them. That is nonsense. It is like hiring a contractor to build a two or three bedroom bungalow, then coming back and finding a house that does not meet the standards or is completely different. Yet the contractor says that he has been hired to do this and that it is time to pay, with no one else to correct the mistake that has been made.

Once empowered, judges are virtually unaccountable in our democratic system. We need to ensure that those who are appointed are people who reflect the values and the cultures of all Canadians.

Look at the Charter of Rights. When the charter first came in, we heard the courts say that the powers and freedoms in the Charter of Rights could not be examined in a vacuum. We had to look at the cultural background and the historical political context. Yet we see the courts drifting away from that context.

Judges in Canada have taken on a greater role in shaping government policy, an area, as I have said, that had been reserved for elected officials.

In some cases this role has had a positive effect, such as the protection of minority and equality rights. In other cases, such as the Sharpe decision, the child pornography case, the effect has had detrimental effects on our society and our ability to protect the most vulnerable in our society, our children.

One case that has resulted in numerous problems in our immigration system is the 1985 court decision called Singh. In this case the Supreme Court of Canada extended the Charter of Rights and Freedoms to anyone setting foot on Canadian soil.

While most Canadians would agree that non-citizens and refugees must be entitled to certain legal rights, such as the right to a fair trial, I would say the indisputable right to enter into and remain in Canada should be reserved for citizens and landed immigrants. This is certainly the approach that has been adopted by western civilized democracy. Extending that right to everyone has opened the door to abuse, to dangerous terrorists and other violent criminals looking to find a safe haven in Canada. Unfortunately, this kind of unilateral approach by the courts jeopardizes the safety and security of all law-abiding Canadians, be they citizens, landed immigrants or potential refugees.

Other examples include the recent decision of the Supreme Court of Canada giving the right to prisoners to vote. Convicted murderers now enjoy the same rights that veterans who fought for this country enjoy in terms of the right to vote.

By the court substituting its own political opinion for that of elected parliamentarians, Canadians will lose faith in the democratic process, in the legitimacy of democratic government and the rule of law.

All these examples illustrate that because of the important decisions our judges are called upon to make many people in Canada believe that the closed door process, the real process for choosing judges, controlled by the Prime Minister, should be changed. In fact Canadian Alliance policy specifically calls for Supreme Court of Canada judges being chosen by a multi-party committee of the House of Commons after open hearings.

Others would like to go further. In fact recent surveys by Environics indicate that two-thirds of Canadians believe that Supreme Court of Canada judges should be elected.

Regardless, I strongly believe that the closed door process for choosing Supreme Court of Canada judges and appeal court judges is in need of review. Although the Prime Minister does consult with interest groups such as law societies, bar associations and individual members of the legal community, as well as other judges, when it comes to making these appointments, given the significance of court decisions since the advent of the charter, it is increasingly necessary for those appointments to come before Parliament in some fashion so that a broader spectrum of Canadians is involved in that decision by reference to parliamentarians' input.

I am not fixed on any particular way but this is a wonderful opportunity for the justice committee to examine the process. My colleague, the parliamentary secretary, has indicated it is a wonderful process. Let us look at the process. Let the parliamentary committee look at the process and see what is happening. If it is a good process, the process will stand the light of day and it will stand scrutiny.

I see no problem in supporting this very thoughtful and well written motion.

[Appointment of Judges, May 6th, 2003]

Madam Speaker, I thank the member for bringing forward the motion. It is something that I certainly will be supporting. I know that the member brought forward the motion on a non-partisan basis; however, there must be some alternatives that the member is considering without committing to any particular alternative.

Perhaps he could outline some of the ideas that perhaps the justice committee could consider. There are various alternatives, including a review of Supreme Court of Canada candidates by an independent committee, elections and terms. With past experience as a member of a cabinet in a provincial government, I know that whenever those ideas have been raised in the past, the bar associations and the law societies immediately attacked any suggestion of change as being somehow an interference with the independence of the judiciary.

Unfortunately I think that this is a little shortsighted given the changes that have happened in the legal landscape with the changes to the charter and indeed in the area of federalism. I know that my colleague sitting as a member for the Bloc would be very concerned about who is judging the powers of the federal government vis-à-vis the province. I think that if we had a system that in fact addressed those kinds of concerns and was truly impartial, perhaps we could make this Confederation work a little better.