Vic Toews

[Correctional Service Canada, April 22nd, 2002]

Mr. Speaker, under Canada's statutory release program a prisoner must be released after serving only two-thirds of his sentence if the prisoner is not a risk to public safety. However, it has been shown that at least 42% of all statutory releases last year resulted in repeat offences.

Why does the solicitor general continue to place prisoners back into society before it is safe to do so? Why is it that Canadians are always in second place?

[Criminal Code, April 22nd, 2002]

Mr. Speaker, it is my honour to speak on the subamendment brought forward by the member for Selkirk--Interlake and seconded by the member for Medicine Hat. I think the amendment is realistic. It is a good amendment. There are substantial issues that need to be discussed in the course of bringing this back to the committee, but I think in fairness there needs to be some time limit on this issue.

Every day new issues arise in respect of the bill which warrant the committee looking at this offence. One of the matters that was just raised with me, and I think it is a very significant issue, is the issue of rights of private citizens in respect of initiating prosecutions. As we know, through Bill C-15A there will be a new system. This new system will set up a screening mechanism before a judge. A judge will determine whether the offence in fact should be brought forward to the court.

It has been said by members opposite that the whole nature of the hearing that takes place is that it will be just a summary hearing. It will be a complainant going before a judge to show the evidence. As members know, that kind of arrangement would violate not only our charter of rights but even our basic rules governing natural and fundamental justice. We cannot go into a hearing and say to a judge that we believe there is sufficient evidence in order for this matter to go to hearing. It is the same way that a preliminary hearing used to take place or still does. An information is sworn. The matter is brought before a judge. A judge, on hearing from both the prosecutor and the defence, if the defence wants to submit evidence although there is no requirement for it to do so, will make that determination.

What we have now is a brand new preliminary hearing process that will complicate this proceeding. Those who say that this proceeding will now act as an effective screen to prevent people from having to go to court do not understand the nature of this process, nor do they understand the determination of radical animal rights groups to prosecute individuals.

We must remember, with all respect, that these groups do not have to worry about whether or not there is a conviction. A farmer in my riding, a hunter and a fisherman and others involved in these businesses are under a lot of stress. I think is simply unfair for them to have to face a criminal prosecution.

The other interesting point that now has been drawn to my attention is that we want to make sure that criminal cruelty is treated very severely in respect of animals. I think everyone agrees with that. The Canadian Alliance does not, nor do any of the other opposition parties, I believe, have an objection to the increase in penalties. What we saw the other day in Toronto was quite a surprising decision. I do not know if anyone has had an opportunity to review that decision, but we had a judge commenting on the skinning and otherwise mutilating of a cat over a period of time. He indicated that this was not the worst way in which a cat could die. I am just wondering if that judge could tell the House, in further written reasons perhaps, what he thinks is the worst way a cat could die. I think this shows part of the problem. The problem is not that we do not want stiffer penalties for genuine acts of cruelty, but that the courts today are not imposing the sentences that are already available. In this case the court could have imposed a sentence of two and a half years. Essentially it was time served, and I believe it was house arrest.

What we are going through here is an exercise in futility if the courts themselves do not recognize the seriousness of this offence. If the government wants to get serious about penalties and genuine cruelty penalties, it must put in minimum sentences. However, all that is happening here is that this is just a political statement designed to placate the animal rights organizations, to say, look, we are increasing the penalties, we are taking this more seriously. Everyone involved in the courts knows that is simply a fiction. It will not happen. We have seen it in the case of impaired driving. We have seen it over and over again. Unless there are minimum sentences imposed, the courts do not respond to increases in penalties. It is as simple as that.

The more troubling thing, even more troubling than this decision that came out of Toronto from the judge who felt that being skinned was not the worst way for a cat to die, is what happens now when we create not just a summary conviction offence but a hybrid offence. Is this in fact an indictable offence, then, such that now a private citizen perhaps can arrest a person for walking a dog wearing a choke collar? Can the private citizen saying that this looks like cruel and unusual punishment for the dog, that there is no legal justification for using a choke collar? If the person is placed under arrest, what are the consequences?

I see that my time has almost expired. I will leave it at that for now.

[Criminal Law Amendment Act, 2001, April 18th, 2002]

Mr. Speaker, I am pleased to rise with respect to the issue.

I remind members in the House that in the fall all opposition parties agreed to pass Bill C-15A as quickly as possible if the justice minister would agree to split the omnibus Bill C-15 into two parts. That did occur. Bill C-15 became Bill C-15A and Bill C-15B so we could move ahead as quickly as possible on Bill C-15A as a whole. However in view not only of the comments raised today but of other issues, events have overtaken the legislation. In particular, the decision of the British Columbia supreme court in the Sharpe case has raised new and troubling concerns hon. members will need to address.

Bill C-15A would create the offence of luring a child by means of a computer system. Under this offence a child would be defined by the ages already set out in the criminal code. Accordingly, it would be a crime with a maximum punishment of five years to use the Internet to lure a person under the age of 18 for purposes of prostitution, child pornography, sexual assault, incest or, where the accused is in a position of trust, sexual touching. It would prohibit the use of the Internet for luring persons under the age of 16 for abduction from his or her parents and for luring persons under the age of 14 for sexual interference.

Under Bill C-15A transmitting, making available or exporting child pornography through a computer system would be an offence punishable by a maximum penalty of 10 years. The bill would prohibit persons from intentionally accessing child pornography on the Internet. The maximum penalty would be five years and the material could be liable to forfeiture.

A motion has been brought forward to ask that a message be sent to the Senate to acquaint their honours that this House disagrees with the amendment. I too have concerns about the clause. Generally speaking we support the intent of the Senate to protect innocent third parties from prosecution without an appropriate level of mens rea. I will not get into the legal discussion because the parliamentary secretary has gone into it in some detail. I agree with many of the parliamentary secretary's comments in that respect.

I will address the concern of mens rea. The government's concern that the protection is too broad and may exempt some offenders is valid. There should be an amendment to require criminal intent or state that there must be a clear expression of criminal intent. I noted with interest the government's position with respect to mens rea. It indicated there is some clarity but has not proceeded in the same fashion with respect to Bill C-5, which has been the subject of substantive and fruitful debate with respect to a number of issues.

Lately it has been more about the protection of property rights. The government should not have the ability to take away people's property without fair and reasonable compensation being determined by the courts or some other objective tribunal. Compensation should never be left solely in the hands of the government. Property is far too important an instrument in our society to be left at the free disposal of government.

Not only did we in my party have concerns with respect to property rights in Bill C-5. We were concerned the bill would not accept one of the most important legal principles in a just and democratic society: that where one is charged with a criminal offence there be an appropriate level of mens rea. We must examine this statute closely to ensure it is there. We do not want to see innocent third parties, whether Internet providers, couriers, truck drivers or anyone, prosecuted for a criminal offence where there is no appropriate level of mens rea.

While the Senate amendment was a valid concern, the response the Senate has provided to the House is not satisfactory in ensuring that while innocent people would be safe from prosecution the guilty would be appropriately convicted where an appropriate level of mens rea was demonstrated in the context of the prosecution.

The second issue I will deal with is much more troubling. The amendment would replace subsections 163.1(6) and (7) of the act with:

(6) Where the accused is charged with an offence under subsection (2), (3), (4), or (4.1), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

I emphasize the words artistic merit.

The amendment would apply existing defences for child pornography to child pornography on the Internet to ensure consistency. This must be carefully considered in light of the March 26, 2002 B.C. supreme court decision on the child pornography case involving Mr. Sharpe. It was ruled that he could not be convicted for his violent writings because they had artistic merit despite being sadomasochistic in nature and glorifying these types of acts by adults in relation to children.

Members on this side of the House and we in the Canadian Alliance believe the decision does not properly reflect society's interest in protecting children from sexual predators. In protecting Mr. Sharpe's violent writings which target vulnerable children the court's interpretation of artistic merit has been too broad.

We urge the British Columbia attorney general to review the case carefully. He has the power to do so. In British Columbia if the attorney general instructs an appeal he must set it out in writing. Whatever the mechanism, whether he personally instructs the appeal or whether it is done by crown prosecutors acting on his behalf, I urge the B.C attorney general to appeal the Sharpe case.

There are a number of other concerns. I will take time to examine a proposal and give credit to the hon. member for Pickering--Ajax--Uxbridge. Yes, he is on the other side of the House but I commend him for taking a proactive role in bringing together members of the House with members of the police and other communities to deal with the troubling decision of the B.C. supreme court.

On Tuesday, April 16 almost 30 members of parliament met with police officials, psychiatrists and others related to this important issue who work with the police in prosecuting these matters. We had a profitable discussion. The hon. member for Calgary Southeast was there and contributed in a positive way to the discussion. We saw things that absolutely horrified members of parliament. We heard the anxiety of police and other professionals regarding the problematic issue of child pornography.

The police showed us pictures. They were run of the mill pictures in the context of this horrible activity which showed physical and sexual assaults on children. I am not a good estimator of age but they were very young children. The police told us children as young as six months or younger are subjected to this kind of abuse in Canada and pictures and other materials depicting the abuse are circulated on the Internet or through written documentation.

I can only imagine what it must be like to be a police officer on the front lines trying to protect our society against this filth. They have to examine it on a daily basis to present cases to court and achieve convictions. It is a difficult situation. In one case police seized 400,000 pictures. Can we even imagine 400,000 pictures? The police must go through each and every picture and categorize it to present a brief to defence counsel for the purposes of the defence. One case in Toronto has virtually overwhelmed the unit in charge of these investigations.

The police need our assistance. The children of Canada need our assistance. I examined the provisions of the criminal code this morning. I looked at the defences available with respect to advocating genocide and hate literature. I did not see anything in the criminal code that said people were allowed to advocate the killing of another human being and have an exception of artistic merit.

Can members imagine me standing and arguing in the House that butchers who advocate hate and the murder of human beings should have the defence of artistic merit? It is inconceivable. Yet for some reason parliament has said this when talking about the sexual and violent abuse of children as young as six months and even younger.

There were some horrifying things that were taught to us that evening, sexual assault on children where the umbilical cord was still present. I cannot even imagine it.

When I was a prosecutor I prosecuted pornography cases. I was involved on behalf of the government of Manitoba in the Butler case. This involved so-called adult pornography. I was horrified by some of things I saw. The deterioration of the ability of our law not only to protect adult human beings but now children is very troubling.

In the Butler case the supreme court clearly said that the combination of harm and sexual exploitation was not acceptable. It is sufficient for parliament to prohibit that. We have clear direction from the supreme court in the Butler case that says the combination of those two, the exploitation of sex in conjunction with violence, is wrong and parliament has the legal and moral right to pass laws that prohibit that in respect of adults.

What do we say about children? We say that, yes, we can abuse or depict pictures of children as young as six months old being violently abused. Yet we are worried about the defence of artistic merit. How can there possibly be, in a free, just and democratic society, an ability to ever tolerate that kind of abuse of children? How can the weighing of the interests of freedom of expression against that kind of harm ever come out to that conclusion? Then that kind of material must be banned.

I was troubled by a number of supreme court decisions. I took a position on behalf of the government of Manitoba against it, to see the expansion of freedom of expression to include things beyond our traditional British and Canadian understanding of free expression as relating to the exchange of political ideas and other types of ideas. That was certainly the understanding that most had when we enacted the charter.

I appeared before the supreme court on behalf of the government of Manitoba in the reference to subsection 193.1(1)(c) of the criminal code relating to the communication of prostitution or prostitution-related messages. The Supreme Court of Canada said the communication for sexual purposes on a public street corner was protected by free speech.

It upheld the legislation itself, the prohibition against that, on the basis of subsection 1. As a result the prohibition stood in that case. In the Butler case, it said that pornographic materials fell within subsection 2(b) of the charter of freedom of expression. As a result it upheld the prohibition on the basis of subsection 1. Given the result we wanted, we won the case.

If we look at the reasoning of that decision, there is the genesis of the result we see in the Sharpe decision, the breaking down of the abhorrence of this kind of activity.

The issue that is before us today is much more significant than it would have been even a month ago. When the first Sharpe decision came out members on this side said to use the notwithstanding clause. They said to get rid of that decision because it was wrong, it was perverse. We wanted the government to appeal the decision using the notwithstanding clause right away to stem the tide of this filth.

What was said by ministers on the other side, but not all members on the other side I might add, was that they had faith in the British Columbia court of appeal to do the right thing. The British Columbia court of appeal did not do the right thing. It absolutely did the wrong thing.

As politicians we should not be afraid to say that a court has made a mistake. The courts enter the political arena and make decisions on political bases, no less than members of the House do. The only difference is that if I were to stand in the House and say that freedom of expression should include the sexual exploitation of children, I would be expelled from this House, and rightly so.

Unfortunately, or perhaps fortunately, we do not have the same kind of control over the judiciary because it is independent. Independence does not mean that it cannot be held accountable. Ultimately it is this House that must hold it accountable if it comes out with perverse decisions.

That is the purpose of the notwithstanding clause, to correct the serious mistakes that have been made that damage the fabric of our nation and destroy the broader societal values that hold our country together. The kind of decisions that were made by Justice Duncan Shaw tears apart the moral fabric of our nation.

We not only have the right but the obligation to move in that direction. When the British Columbia court of appeal failed to do the right thing this House should have done the right thing by passing the notwithstanding clause and appealing that court's decision in the Supreme Court of Canada. The notwithstanding clause is a five year term. It is a temporary override but we should have used it and we should not apologize for it.

Our political agenda is different than the political agenda of the courts. The political agenda of the courts is primarily to defend the individual rights of Canadians. Our responsibility is to look at that decision, weigh it and to say that through the use of the notwithstanding clause the individual rights of a child pornographer to glorify the violent sexual exploitation of children should be subject to the wishes of the people of Canada in preventing that type of activity from occurring.

I want to get back to what the hon. member for Pickering--Ajax--Uxbridge said. He prepared an important paper for our discussion on child protection issues and options. He just presented this paper to me and I have had occasion to read some it. The ideas are good ones. They come as a result of the committee meeting that he chaired. True to his word he said he would work quickly on this issue to get something before us so we could consider this at our next meeting.

It is important for us to consider this at our next meeting. The member deserves to be commended. However it is not just the meeting of that group of 30 MPs who need to consider the recommendations that flow out of the discussions that all of us had on Tuesday, April 16.

There are numerous decisions and recommendations made in this paper. In view of the Senate motion, the Sharpe decision, and the work that has been done on this paper we need to think very clearly about what we should be doing as a House.

There are all kinds of amendments. One of the amendments that must be made which is not set out specifically in the member's paper, but which was raised by the police and other members at that meeting, is the keeping of information by Internet providers. It was stressed at the meeting of April 16 that police, in investigating these serious crimes, were met with the challenge that there was no obligation on the part of Internet providers to store information.

One might think that is a huge challenge but it is not. Other countries have laws where they require the retention and storage of this information for six months, a year or otherwise. It can be done. It is done in other countries and it can be done here. We must bear that in mind.

The recommendations, the issues identified and the options set out in this paper must not be considered by only members on this side of the House, backbench members or frontbench members across the way. The Minister of Justice must read this document. This is good work. It is the expression of the careful thought of the people present at that meeting and the expression of the hard work of the hon. member for Pickering--Ajax--Uxbridge, and it should not be discarded.

Parliamentarians and ministers stand up, throw their hands up and say what will we do about this? There is a good start here. It is not just because it corresponds with my thoughts on many of the issues. Perhaps it was a happy coincidence but this comes from years of reflection by the member on this issue and by other members on this issue.

There are issues and I want to deal with some of them because they are important. I want the record to show that there are solutions to these problems. It is not sufficient for us to say that the courts have decided and we would like to help the people of Canada but we cannot. To shrug our shoulders is an avoidance of our responsibility.

Parliamentarians, government policy advisers and government lawyers look at the charter as a barrier to social progress and programs that need to be implemented. Instead of looking at what the problem is and setting out a solution that works, often these policy advisers look at the charter, anticipate what the reaction of judges is going to be and then create the policy in that context. The result is a solution that does not work.

We have seen it in the context of the organized crime law. I can tell the House, not because I am a prophet but because I know, that legislation will fail. It will fail because the excuse that was offered consistently in refusing to follow recommendations that would have ensured effective legislation was “our charter does not allow us to do that kind of thing”.

Rather than setting it out in the legislation and addressing the problem, they concerned themselves with what the reaction of the judges would be. We should not do that. We should create solutions that address the problems and then prepare the legal arguments that justify our position. That is the nature of the political debate, or it should be the nature of political debate between the House and the judiciary in the Supreme Court of Canada.

We should not make an apology that we have genuine political differences and genuine differences of interest. We do not think consistently on all occasions. We share general principles to which we want to adhere and see enacted to strengthen our country.

The point I am getting to is the options paper that was written. This paper in a thoughtful way, mindful of constitutional parameters in a general way, suggests solutions that work and presents us with options. There are options that may affect an appropriate result. For example, issue two on page two of the options paper gets right to the Senate amendment and that is why this discussion is relevant. The member has written:

The defence of artistic merit 163.1(6) as currently expressed by the Supreme Court of Canada and interpreted by Justice Shaw exempts child pornography clearly harmful to children as the subject of criminal prosecution.

He brings forward four options, some not necessarily exclusive of each other but options that we should be considering.

The first one is to eliminate the defence of artistic merit to child pornography by repealing section 163.1(6) of the Criminal Code of Canada. People ask how we can repeal the defence of artistic merit when in the judgment of the supreme court there is a reference to artistic merit. Have we constitutionalized the defence of artistic merit in respect of child pornography? We have not done it in respect of hate literature or the advocacy of genocide. Why should children be the subject of abuse, of violent sexual attacks, and allow these sexual predators to rely on artistic merit?

If we amend the legislation to delete artistic merit completely, I want to hear the Supreme Court of Canada say “There is artistic merit in the sexual abuse and the depiction of that sexual abuse of six month old children”. If that is what the court is going to say, then the House has another responsibility and we have alternatives, but let us not anticipate what the court is going to say.

Personally I do not believe that Mr. Justice Shaw got it right. I think he got it wrong. The judiciary should be given a chance. We need to appeal this matter, but in the meantime let us look at the option of eliminating the artistic merit defence. In this respect, I have a serious problem with the motion.

The second option is to amend section 163.1(6) to apply a community standards test similar to the Butler decision. What a wonderful opportunity we have here. If in the context of adult pornography where there is a combination of violence and sex that can be prohibited on the basis of community standards, why would the same defence not be available in the context of child pornography and the abuse of children? Eliminate artistic merit and bring in the community standards test specifically. I am surprised that there is not already implicit in that offence the understanding that somehow the community cannot tolerate this kind of activity.

The third option is directly relevant to some of the comments I have been making. The member has identified the option to include the definition of child pornography as part of the hate crimes section 319, which has a different and more restrictive exemption. Again this is a very different type of exemption. There are exemptions but they are not of the nature that we have seen that allow the child pornographers to do what they do to our children and our grandchildren.

The last option under issue two is to amend section 163.1(6) to exclude material of which a prominent characteristic is not the description of a legal sexual activity involving children or which is not intended for sexual gratification. It is a little more technical but it is an option.

To the minister who might be tempted to throw up his hands and shrug his shoulders, although I have not seen him do that yet and he has not commented on the decision, I would ask him to read this paper before he does that. I would ask the parliamentary secretary to the minister to read the paper and consider our options. Let us not apologize for standing up to protect children from sexual, violent abuse.

In summary, I feel that these are issues which needed to be said. I again thank the member for Pickering--Ajax--Uxbridge for the paper. True to his word, he delivered in record time. On behalf of all the members who are in the House or were at the meeting on April 16, I thank the hon. member. This is a good start and we can conclude on a positive note if the minister and the cabinet consider these options and recommendations very seriously.

[Canadian Charter of Rights and Freedoms, April 17th, 2002]

Mr. Speaker, I am pleased to rise today in recognition of the 20th anniversary of the Canadian Charter of Rights and Freedoms.

Many Canadians can trace their origins to groups of refugees and immigrants who came to this country over the past hundreds of years. Many came to escape religious and political persecution by oppressive authorities, including my own family who came to Canada to escape the injustices of the brutal Soviet regime of the 1920s. These experiences are not easily forgotten by the collective memory of their descendants.

However, even in Canada the descendants of these immigrants and refugees learned through bitter experience that such matters as education and religion were not always guaranteed. Indeed aboriginal Canadians as well know that the government has sometimes hindered their development as equal partners in Canadian society.

The Canadian Charter of Rights and Freedoms has proven to be a powerful check on the power of government to unreasonably intrude on our rights and freedoms. Canadians today give their overwhelming support to the Canadian Charter of Rights and Freedoms. What Canadians from all regions say they like most of all about the charter are the aspects that promote unity, such as the protection of minority rights and the promotion of equality rights.

However, the charter is not a cure all for all the injustices of our society. Canadians have often disagreed with some of the changes the charter has affected in our society as a result of certain court decisions. These include, for example, the case of John Robin Sharpe and the court's conclusion that freedom of expression and artistic merit include the production of material glorifying the violent sexual exploitation of children by adults.

Indeed the charter is not a perfect document. Certain fundamental rights such as property rights are not entrenched in the charter. As a result, under such legislation as the species at risk act the federal government would be able to legally expropriate land and resources from Canadians without full, just and timely compensation.

Since the advent of the charter there is a growing reluctance on the part of politicians to advance legitimate political initiatives or substitute their political opinions for those of the courts.

While the charter of rights does allow parliament to temporarily overrule the decisions of the courts by the use of the notwithstanding clause, the hesitation of politicians to use this clause arises out of a concern that to do so would be seen as a failure to respect the constitution. As a result, politicians are simply accepting judgments that prefer the narrow interest of individuals even where these decisions are contrary to the interest of society as a whole. As parliamentarians we must continue to be watchful that the charter does not become a device that limits the effectiveness of democratic institutions including parliament.

As a nation we need to be mindful of the concern that in protecting our individual rights and freedoms we do not destroy our responsibility to nurture and protect broader societal values. Our ability to live together in a civilized society demands our continued vigilance.

[An Act to Amend the Criminal Code (Cruelty to Animals and Firearms) and the Firearms Act, April 11th, 2002]

Mr. Speaker, I was quite interested to hear the comments on Bill C-15-A. It sets up a whole new system of preliminary hearings and will in fact cost farmers more money. Maybe the chicken farmers have more money than other farmers, but I represent a lot of chicken farmers in my riding and I know they do not have the time nor the money to spend on frivolous prosecutions, which they will have to go to court to defend even to get the charge thrown out in that whole preliminary hearing system.

I want to focus on the issue of gophers. I have heard all kinds of discussion about the protection of gophers in other speeches.

When I was young I worked on my uncle's farm. There were two ways to get rid of gophers. One was with a .22. If we did not have the ammunition or the money to buy a .22, the other way was to put water down the hole. When the gopher came up, we disposed of the gopher in the most expeditious way. I am not saying that is the best way to get rid of gophers, but I know that gophers are a huge problem for farmers in western Canada.

Perhaps the member could tell us a little bit about the problems caused to livestock and even humans falling down the gopher holes and breaking their legs.

[An Act to Amend the Criminal Code (Cruelty to Animals and Firearms) and the Firearms Act, April 11th, 2002]

Mr. Speaker, the last participant in this discussion is a medical doctor. He is certainly well respected in his field. He would have some expertise to offer the House on the whole issue of what the animal rights organizations are saying in terms of their refusal to in any way give medical researchers, scientists and doctors protection in respect of the important work that they do in the area of health research.

My concern with the bill is that in moving these subsections out of the property rights sections we have moved them into a separate section where only the general defences under subsection 8(3) apply, sections that have always applied to all of the various offences in the criminal code. We have removed those specific defences that were particularly focused on these kinds of offences. Where we do not have in many provinces specific authorization to conduct work on animals in furtherance of health care and medical research we are leaving these researchers vulnerable. Indeed, we are then leaving health care vulnerable.

Would the hon. member agree with a letter written by Pierre Berton, who is the senior patron of Canadians for Medical Progress? He gave that letter to the Standing Committee on Justice and Human Rights. He took the position that the radical animal rights activists were misguided in their support of Bill C-15B. He stated:

One glaring example of a Canadian private prosecution undertaken by the Life-Force component of the animal-rights movement against Dr. William Rapley and Dr. Bernard Wolfe of the University of Western Ontario, ground through the courts in London, Ontario in 1985, and was finally thrown out of the courts because of its frivolous and malicious nature. The private prosecution was undertaken because the public prosecutor had refused to lay charges. There have also been many such cases in different U.S. jurisdictions over the year.

He goes on to say that the decision to move animals from the property section in Bill C-15B would most surely open the door to an abundance of similar, frivolous private prosecution from the animal rights movement against the research enterprise in the future.

Does the hon. member have any comments to add to what I consider remarks made by a distinguished Canadian?

[Child Pornography, April 11th, 2002]

Mr. Speaker, today Focus on the Family launched a nationwide anti-child pornography campaign. Its leadership came to Ottawa today to speak on behalf of thousands of Canadian children put at risk by the court decision.

Will the Minister of Justice support this effort by condemning this dangerous decision and by taking steps to end the legal licence the courts have handed child molesters?

[Child Pornography, April 11th, 2002]

Mr. Speaker, on March 26 the British Columbia supreme court destroyed the effectiveness of our child pornography laws by protecting the rights of child sexual predators to glorify violent sexual acts involving children.

The Minister of Justice has been silent on the issue. Why will the Minister of Justice not stand and tell Canadians that the British Columbia court made a mistake in throwing our children to the wolves?

[An Act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act, April 10th, 2002]

Madam Speaker, I am pleased to take part in the debate today on Bill C-15B, the legislation dealing with animal cruelty and amendments to the Firearms Act.

I will not get into much detail on the firearms registry other than to say that gun control and the registry are two absolutely different things.

The citizens of this country realize that this registry has been one of the greatest boondoggles we have ever seen in the history of law enforcement. The government has dumped $700 million down the toilet for no apparent public safety purpose. In fact it continues to spend $100 million a year to prosecute duck hunters, farmers and others.

My colleague who just spoke indicated that there are offences occurring in respect of sawed off shotguns. Sawed off shotguns are prohibited. We cannot register sawed off shotguns. The things he said have nothing to do with reality. The only reality that we have seen with this gun registry is to strip frontline police officers of the resources that they need to fight crime effectively.

We on our side will continue to oppose this registry that takes resources away from our frontline police officers and gives jobs to bureaucrats. There is nothing wrong with bureaucrats, I was one for many years, but let us put bureaucrats to good use. I am sure they do not want to be sitting there spending taxpayers money for no apparent valid purpose.

Moving on from the firearms amendments, the most contentious aspects of the bill concern the proposed changes to the animal cruelty sections of the criminal code. I have in fact received hundreds of letters regarding the bill. Letters in favour have been almost exclusively from large urban area such as Toronto and Vancouver and their surrounding areas. The letters opposed have been exclusively from rural areas.

Farmers from my riding of Provencher and from all across Canada are very worried that the legislation and the impact it will have will undoubtedly impact negatively on their livelihood. They are afraid that one day the provisions that we are debating could put them in front of a judge for practices that they, their parents and their grandparents have been carrying out for generations. Many of my constituents perceive this bill as just one more example of how the government has pitted urban Canadians against rural Canadians to gain political favour among a small but powerful circle of special interest groups.

A 1998 Department of Justice consultation document acknowledged that well organized groups can and do initiate letter writing campaigns on this issue and that such campaigns can have an influence on government policy. For several years now organizations, such as the Animal Alliance of Canada and Zoocheck Canada, have been appealing to Canadians and to the government on an emotional rather than a rational level, using slogans such as “They're getting away with murder”.

During the past several years a great deal of misinformation has been circulated by animal rights groups, by the press and by individuals who believe that we need to pass the legislation in order to prevent horrific crimes against animals, such as those we have heard about over the past several months, including some of the ones referred to by the Liberal member who spoke previously, stories of cat skinnings and of dogs being starved, tortured or otherwise abused or neglected.

The extensive media coverage on this issue seems to indicate that many Canadians have been advised that somehow we do not already have laws to prosecute those who skin cats and drag dogs behind vehicles for pleasure. This erroneous idea, which has been perpetuated by animal rights groups in Canada, is completely false.

The animal cruelty laws on the books are good laws. They already criminalize intentional acts of cruelty against animals and there is no urgent need for that aspect of the law to be changed. The penalties for these offences are admittedly inadequate and I strongly support raising the penalties for these offences but the laws themselves must not be changed in the manner proposed by the legislation.

The issue is not whether or not we support legislation to deal with cruelty to animals. It is not about whether the majority of Canadians support this concept, because clearly they do. The issue is about the implications that this poorly drafted and poorly thought out legislation could have on potentially a very large number of Canadians.

To those who claim that something must be done about animal abuse, I agree. Those who intentionally abuse or neglect animals must be prosecuted to the full extent of the law. No one wants to see animals abused. I own a dog and I do not use that term apologetically. I own a dog and I would be shocked and angry if he were harmed in any way.

My colleagues and I in the Canadian Alliance abhor animal cruelty and, as I have said, strongly support changes to the law that would strengthen the penalties for animal cruelty offences. However, we do not support the amendments to the criminal code found in Bill C-15B because they will significantly alter the ability of farmers, ranchers and medical researchers, among others, to engage in the legitimate and beneficial activities that they presently undertake.

One of the biggest problems in the legislation is the issue of animal cruelty offences being moved out of the property section of the criminal code. A few weeks ago in the London Free Press a journalist wrote that listing animal cruelty offences under the property section, as they currently are, is “a lot like saying hitting your horse with a 2x4 is akin to bashing your refrigerator”. The mistaken logic in this argument, apart from the unreasonable implication that a judge cannot tell the difference between a refrigerator and a horse, is at odds with the fact that people naturally have an interest in protecting their property, not harming it.

The overwhelming majority of animal owners, be they ranchers or dog lovers, have an overriding interest in ensuring the health and safety of an animal that they have purchased and cared for over time. In any case, the removal of the animal cruelty offences from the property section of the criminal code, as this legislation proposes to do, will have both a lasting symbolic effect as well as causing practical difficulties for many Canadians.

Moving animal cruelty offences out of the property section of the code is applauded by extreme animal rights movements because it will cause a fundamental change in the way that animals are perceived in our society and it will certainly change the way the courts view these offences. Judges will take into account these changes and attempt to interpret the reasoning and the intent behind it when applying the legislation to any future prosecutions laid under these provisions.

The prior justice minister and the justice department claim that moving the animal cruelty offences out of the property rights section has no legal significance. The member just stated that the minister has said that what was lawful before remains lawful now, so in essence there is no legal significance to this. If there is no legal significance to this, if what is lawful now remains lawful with this new legislation, it begs the question, why do it at all? If we are saying to judges that we are altering the legislation substantially but it is of no legal consequence, I can hardly believe that a judge would think that parliament would go through this exercise in order to do absolutely nothing.

Let us not mislead anyone. These provisions are making substantive changes. What is lawful now may well not be lawful tomorrow if the bill is passed. If that is not the case, why make these changes?

Although the former minister of justice who introduced Bill C-15B stated that it was not her intention to substantially change the law governing animal cruelty, in fact the proposals would remove the defences currently applicable to those who engage in activities ranging from traditional and legitimate farming practices to medical research that ultimately benefits the development of better health care for all of us.

Radical animal rights groups in Canada certainly will use this new legislation as the basis for legal harassment and unjust prosecutions, and in fact already have stated their intention to do so. The cost of defending an unjust prosecution, even if there eventually is a not guilty verdict, is a burden that ordinary Canadians cannot afford, nor should they be subjected to this burden. The animal rights lobby has argued consistently that legal rights for animals cannot be achieved until animals are no longer considered property under the law. I want to give the House just a few examples that illustrate the true intentions of these groups.

A lawyer for the World Society for the Protection of Animals, Lesli Bisgould, has been quoted as saying:

In fact, the legal status of animals today is analogous with that of oppressed groups in society over the past century, the right not to be seen as a means to an end, the right not to be property.

In a 1999 recommendation to the justice department, the Ontario SPCA said that pets should:

...become literally a part of the family and any abuse, wilful or otherwise, would be treated the same as abuse of a child.

Such groups who would chose to compare the life of an animal to the life of a human child should not be taken seriously, especially given the fact that they represent only a minute percentage of Canadian society, yet we have a Liberal government adopting that philosophy. They are the groups that are influencing government policy. They are the groups saying that animals are equivalent to children. It demeans children. It demeans human beings. This is the type of philosophy that the Liberal government is asking Canadians to accept.

Liz White, the director of the Animal Alliance of Canada, has stated in particular reference to this legislation:

I can't overstate the importance of this change. This elevation of animals in our moral and legal view is precedent setting and will have far, far reaching effects.

At least this individual is telling the people of Canada the truth. She is saying that what is lawful today will not be lawful tomorrow because these animal rights groups that have the inside track to the federal government, to the federal Department of Justice, will ensure that these prosecutions are undertaken.

She has also told her membership this:

My worry is that people think that this is the means to the end, but this is just the beginning. It doesn't matter what the legislation says if no one uses it, if no one takes it to court, if nobody tests it. The onus is on humane societies and other groups on the front lines to push this legislation to the limit, to test the parameters of this law and have the courage and conviction to lay charges. That's what this is all about. Make no mistake about it.

This is nothing about reforming the law. This is everything about adopting a radical animal rights agenda in order to prosecute farmers and others in the food production industry, as well as medical researchers.

A spokesman for the Voice for Animals Society in Edmonton made a statement in the Edmonton Sun on June 6, 2001, in reference to cattle branding, a practice which, I understand, has been going on for some time. It is lawful today to brand cattle. The spokesperson stated:

I sincerely hope the new law does lead to [court action]. We need to fundamentally reconsider some of these practices.

This is in reference to cattle branding. The spokesperson also stated:

I think that's what this law is for, to challenge the thinking. Cattlemen just want it to be business as usual.

That is what the minister has said, that it will be business as usual, that the law is not changing. That is what the member across the way has said, that the law today will be the law tomorrow. What is lawful today will be lawful tomorrow.

However, we know from these changes, and any reasonable lawyer, which is not an oxymoron as I am a lawyer myself, reading these provisions will understand, that something substantive has happened here in the House. If nothing substantive has happened, what are we doing here? Why make all these changes if there are no substantive changes?

I was a former prosecutor. I can just imagine appearing before the judge saying “Well, Your Honour, there have been substantial movements in these sections, substantial changes in the wording. We have taken these offences out of the property sections and moved them to a new part, but, Your Honour, I want you to think nothing of it. Nothing has really happened. There have been no substantive changes made”.

The defences that apply to the property sections, which now do not apply to these new sections, do not make any difference because apparently, from the reasoning across the way, those defences in the criminal code were mere window dressing. The member opposite said that in 40 years those defences have never been used. Does he not get the connection as to why those defences have never been used? Does anyone know why they have never been used? Because they would not allow an unjust prosecution to be commenced.

Those defences in the code stop the offence from being charged. A prosecutor looking at the property section would say there is a section he would like to use prosecute a person who commits an offence, but then he would say there seem to be these defences there, so he could not prosecute. The defences are there. These things never come to court, so of course they are never used in court.

The thinking across the way astounds me. The problem is, I do not think any of these people have ever been inside a court and have actually heard judges or lawyers make arguments. This seems to be an academic's dream and a cattleman's nightmare.

The intention of these groups is clear. As soon as the legislation is passed into law their members will commence private prosecution against farmers, ranchers, researchers and anyone else presently using animals for lawful and legitimate purposes. Most, if not all, of these charges may eventually be thrown out by the presiding judge, but the fact is that such prosecutions not only will tie up our courts and our justice system needlessly, they will cause great expense to the very people who cannot afford to be abused in this way.

I can just picture myself in front of one of my farmers who is charged under this private prosecution and saying that there is this great new thing that we do; we go up in front of a judge who is going to clear whether or not that charge can proceed. What we are doing is imposing a whole new system of preliminary hearings. On the one hand the former minister of justice has introduced legislation disposing of preliminary hearings. The defence lawyers were very angry about that because preliminary hearings are a good way to make money. Now what the government has done is institute preliminary hearings to see whether or not private prosecution should proceed.

The accused would go in front of a judge. Even if he is unjustly accused he has to hire a lawyer and argue against this. That is what a screening process is. It would be a legal hearing with all the attendant costs. What this does is fly in face of common law tradition, which states that the attorney general of the province can come into court and stay the charge if it is a frivolous prosecution. In respect of contentious charges, there are often sections in the criminal code that say that the prosecution shall not be commenced without the consent of the attorney general.

Rather than simply putting in that kind of provision, what has the government done? It has instituted a bureaucratic nightmare that will impact adversely on the pocketbook of somebody who has been unjustly prosecuted. That is what this is all about. This is the biggest piece of nonsense I have seen introduced in legislation in years. Believe me, I have seen a lot of nonsense and I have had to prosecute under it, but this is one of the biggest pieces of nonsense. Somehow the government is trying to tell the people of Canada that it is doing this for their own protection.

I could go on for hours outlining what appear to be the intentions of the animal rights lobby, but one of the most alarming aspects of this campaign is revealed in a fundraising letter from Liz White of the Animal Alliance. She stated:

Getting our politicians to pass good animal protection laws is about reward and punishment--rewarding them for doing a good job and punishing them for doing a poor one.

That is interesting. She continued, stating that:

The Liberals have done a good job on Bill C-15B--

She says it has done a good job on Bill C-15B and I say it has done a good job on the Canadian people. She continued, stating that:

--and our first chance to reward them will be in the upcoming byelection in Calgary Southwest.

She also referred to the last federal election in the former justice minister's riding. She stated:

Because of a commitment made by the Minister of Justice...in the House of Commons to pass C15B, Environment Voters campaigned for her re-election. Under attack by hunters and gun owners and a cabal of extremist right wing groups, [the minister] was in a losing campaign. Environment Voters stepped in and championed her election...Good to her word, [the minister] introduced the breakthrough animal protection legislation.

Talk about reward and punishment. According to the people who have supported and who have stood shoulder to shoulder with the former justice minister, the bill is the political payoff that that minister has to pay. Her own supporters are saying that and acknowledging it publicly. Is it not nice to know that these groups view Bill C-15B as a political payoff for the minister having introduced legislation in accordance with a radical agenda. Unfortunately the Liberals will not be running a campaign in Calgary Southwest.

The fact of the matter is that the goal of these groups is to fundamentally change the way in which animals are viewed in society. The Liberals continue to claim in committee hearings and in the media that frivolous, nuisance prosecutions will not be pursued and that they do not intend to prosecute farmers, hunters or medical researchers carrying out lawful activities. Yet their private statements to their own members is radically different from what they are telling the public, and I have quoted them extensively.

In a posting on an Internet chat site called Animal Rights News one subscriber wrote in reference to justice committee proceedings. It said:

The good news is that animal rights groups have researchers, hunters, fur people, farmers and other animal exploiters shaking in their boots and they feel that we are a real and genuine threat to their barbaric ways.

These are the groups who are supporting this legislation, who supported the former justice minister and who said publicly that the law as it is today will be the same tomorrow and we are going through this exercise of changing the law. We obviously are changing it for substantive reasons and those reasons are, simply put, a political payoff as these groups have acknowledged.

The extreme nature of their agenda is demonstrated by the fact that they claim that using animals for food, research, clothing or even as pets as people have done since the beginning of human civilizations, are “barbaric” practices and should be stopped.

I would now like to quote from a letter written by Pierre Berton, senior patron of Canadians for Medical Progress to the Standing Committee on Justice and Human Rights, that refutes the common claim by many of these radical groups and by government members themselves that private prosecutions will not be pursued using this new legislation. He stated:

One glaring example of a Canadian private prosecution undertaken by the Life-Force component of the animal-rights movement against Dr. William Rapley and Dr. Bernard Wolfe of the University of Western Ontario, ground through the courts in London, Ontario in 1985, and was finally thrown out of the courts because of its frivolous and malicious nature. The private prosecution was undertaken because the public prosecutor had refused to lay charges. There have also been many such cases in different U.S. jurisdictions over the year

He went on to say:

The decision to move animals from the Property section in Bill C15-B, will most surely open the door to an abundance of similar frivolous private prosecutions from the animal rights movement, against the research enterprise, in the future.

This is the eminent Pierre Berton telling us as we on this side of the House already know, that these animal rights activists will attempt to disrupt medical research that means a difference in our health care standards in this country.

This legislation would not only change fundamentally the way in which animals are viewed by the courts and by society, but moving animal cruelty offences out of the property section into a section or a part of its own removes the legal protections currently in place.

The phrase “legal justification or excuse and colour of right” in section 429(2) of the criminal code currently provides protection to those who commit any type of property offence and protects them from the charges being laid in the first place. Courts have held that these defences apply where the accused had the honest belief in a state of facts which, if true, would constitute a legal justification or excuse. For example, an honest but mistaken belief that it was necessary to kill an animal to put it out of its misery after a person had accidentally shot and wounded it while trying to frighten it off the land would be sufficient to provide a colour of right defence under these provisions.

This also applies to the performance of research on animals and a range of other legitimate activities. However, in the new bill, the fact that the animal cruelty provisions would be moved out of the general classification of property offences and into a section of their own would remove these provisions outside the scope of that protection and, therefore, charges could be laid, whereas previously the charges could not be laid.

The Canadian Alliance asked the government members to make the defences in section 429(2) explicit in the new legislation, but they refused. I believe it was my colleague from the Bloc who made that amendment.

In justice committee proceedings, the minister's parliamentary secretary attempted to assure the committee that it was the government's intention that the defences in section 429(2) of the code would continue to apply to cruelty to animals offences and that these defences were implicit in the new legislation. However, when the amendments were moved that would have made these defences explicit, the government members opposed them.

If these defences are already implicit, what possible objection could there be to make them explicit, other than to deny these protections to farmers and others who will be subjected to unfair prosecutions?

Instead of making these defences explicit in the legislation, the minister amended the bill to confirm that the common law defences available under section 8(3) of the criminal code would continue to apply to any cruelty to animal offences. This of course is meaningless. Section 8(3) already applies to the entire criminal code. Making that amendment does nothing. What the Liberals are trying to do is evade the direct, explicit protection that those defences in section 429(2) would have provided to these farmers.

Furthermore, as noted by the Canadian Council for Animal Care in committee testimony, these defences in section 8(3) do not necessarily encompass a recognition of the lawfulness of using animals for research and medical testing. Although common law defences could encompass activities authorized by statutes, such as the slaughter of animals for food, laws authorizing animal use in research only applies to six of the thirteen provinces and territories, and there is no federal legislation authorizing this kind of activity. Needless to say, many medical research groups and universities are very concerned with the implications this bill may bring if it is passed as currently written.

In answer to these concerns, and I need to reiterate this again, the former minister amended the bill to provide this screening mechanism which she claimed was a powerful tool to prevent frivolous private prosecutions.

What kind of a system is it? Well the mechanism would allow a provincial court judge to prescreen such prosecutions and decide whether they should proceed. The provincial judge does not get a file on his or her desk in his or her chambers and consider this. This is a prescreening that occurs in open court. This is a legal process and at a legal process I am sure the animal rights groups will have their lawyers there. Now we have the farmer or medical researcher being prosecuted.

My colleague across the way says that they do not need a lawyer. If the animal rights groups have all of the lawyers, we cannot have the farmer sitting there without a lawyer, and we know it will be an expensive process.

I want to reiterate what I said. What we are doing is creating a whole new class of preliminary hearings with day after day of evidence to see whether there is a reasonable basis for the charge to be laid. That is essentially what a preliminary hearing does. Now we are putting it in there instead of a simple provision that says that the consent of the attorney general in the province where the prosecution is taking place must be obtained before the prosecution proceedings.

Why do they not trust the public prosecutors? The Liberals do not trust them because the public prosecutes do not have a political agenda to go after farmers and medical researchers. They have not been bought off by the animal rights activists who are collecting on a debt their minister incurred during the last federal election, as the animal rights people have indicated.

Instead of alleviating the fears of farmers and other groups who rely on animals for their livelihood, this process being put into place by the government will only lengthen an already cumbersome and expensive legal process to which this farmer or medical researcher would be subjected.

It might be all right for Liberals with deep pockets to be prosecuted for this kind of an offence. They can hire all the lawyers, appear in front of the judge and argue with the animal rights activists. However there are a lot of people in my riding who earn a living the honest way, on the farm, producing food for the people of Canada. They will be taking the brunt of this radical animal rights agenda.

None of the concerns raised in committee hearings or in the House of Commons by those in favour of Bill C-15B would address the pressing need to ensure that cruelty to animals would be more effectively addressed by these amendments.

None of these examples demonstrated that. In fact even the provisions to increase the penalties are really a fiction because we know that those maximum penalties under the existing law are rarely, if ever, imposed. Therefore we can increase the penalties all we want. It will not make a difference if the judges do not impose or the prosecutors do not request those maximum penalties.

There are many other points that I would like to make in respect to this case but I think that the drift of the debate has gone far enough. I realize my time is drawing to a close, but the House and the committee needs to consider this further. Therefore I move:

That the motion be amended by deleting all of the words after the word “That” and substituting the following therefore:

“Bill C-15B, An Act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act be not now read a third time, but be referred back to the Standing Committee on Justice and Human Rights for the purpose of reconsidering clause 8, taking into consideration the importance of ensuring that the legitimate use of animals by farmers, sportsmen and medical researchers should be protected under this bill.

[An Act to Amend the Criminal Code (Cruelty to Animals and Firearms) and the Firearms Act, April 10th, 2002]

That is because the defences were there. My goodness. Can you believe this?