Parliament debates Judge Shaw

Quotes from the debate in Parliament include:

The statements of the then Minister of Justice Anne McLellan arguing against Parliament protecting Canadians against abuses of power by the Court.

“We are mindful of the importance of protecting the rights that have been guaranteed to us under the Canadian Charter of Rights and Freedoms. We respect the need to balance the powers of the state with the rights and liberties of individuals.”

“The right to appeal a decision of the trial courts in our country is a fundamental and effective element of our legal system.”
( How do you have a meaningful right of appeal if there is discretion by judges to disregard the transcript )

“It is in this way that we live in a system where the rule of law is respected. It is in this way that we live in a free and democratic society where its constitution and charter of rights have meaning. It is in this way that we enjoy a justice system that is the envy of the world.”

Various Parliamentarians arguing for protecting Canadians from abuses by the Courts

“We want the rule of law. The constitution of this land says that this parliament has the power and in fact the responsibility to override irresponsible decisions by the courts.”

“They are made by those who are getting paid to take sides on issues, and that is incorrect.”

“Why is it that the judiciary and the legal industry are rewriting and seem to be even creating the laws of our country within the courtrooms, and it is not done here in the House of Commons?”

“This is not a time for politicians to walk away from their responsibility and once again ask the lawyers and judges of our country to do the job that we do not have the courage to do.”

“What I do not want to hear today or tonight is the justice minister saying “Oh, we are going to look after it. We are going to bring in a bunch of lawyers from the federal government to intervene on an appeal court case which could last a year or more”

“In fact one British Columbia judge has just thrown out one child pornography possession case because of Judge Shaw’s ill founded, intemperate decision. Another 40 child pornography possession cases are on the books of British Columbia. Across Canada there could be hundreds which are in jeopardy, but even the fact this one case was thrown out because of this case is the reason we in parliament are debating the issue today.

“Surely this mockery of the charter by this judge is enough to shake the government out of its lethargy.”

“Let us do it right now. If I were to move that we vote right now to pass the motion we would save a lot of debate. Let us get it done now. Canadians want it done. We want people like Mr. Shaw to know that Canadians do not respect him, that parliament does not respect him, nor should they.”

“I want to tell the parliamentary secretary that I am an officer of the court and I have the highest respect for our justice system. My father was a judge in this country for 25 years and I have learned to respect our justice system.

That does not mean it is infallible. That does not mean it is perfect. We cannot abrogate our responsibility. There is nothing stopping us today from acting. We have a duty to protect citizens right across the country.”

“I was very surprised by the judge’s interpretation of the legislation and by his intellectual contortion of certain provisions of the Criminal Code and of the Canadian Charter of Rights and Freedoms.”

“I think it is important for parliament to reassert its intention both with respect to the charter and with respect to …. the criminal code.”

“Canadians want us to be involved and they want to know that their politicians and their parliamentarians are in a position to and willing to assert their values over the values of the courts when those values being asserted by the courts are found to be so out of whack with ordinary everyday common moral sense”

“We stand with the entire Canadian population it seems to me in wanting parliament to say something and to commit to doing something should this judgment not be eliminated in the course of the days to come. Canadians also want a commitment I think from the government that if the legal process turns out to be a long drawn out one that the government would have the freedom to act and not have to wait until the final legal act. That is where the whole question of timing comes in.the primary purpose of government is to maintain law and order, to protect those people who cannot protect themselves, to protect the citizens of Canada and to provide for our peace and safety.”

“We have people walking free who are committing criminal, despicable acts offensive to most Canadians. We need to punish criminal behaviour. Our children cannot protect themselves. Our citizens, men and women and children, are at risk because of this judge’s decision.”

“Another reason for the minister to show leadership in this matter is the state of flux within our justice system until the matter is resolved in months or, more realistically, in years by our courts….. is also aware that the courts are already dismissing charges as a result of the present ruling.”

“The people of British Columbia deserve to be protected right now.”

“The Minister of Justice says to wait and see what the courts decide. That appeal could run its course. We all agree it should be appealed. We all agree that this man should be brought back before the courts. He should be convicted. He should be sent to jail, but that does not preclude us from doing something today, right now.”

“As legislators we have an obligation to conduct ourselves in a manner that respects the rule of law. This is the highest court in the land and the laws that we make here are not done in a cavalier manner or in a manner that would suggest that when we feel like it, those laws are applied.”

“What will the government do not only to look at this decision but, as this is an example of the problem of the appointment of judges, what will the government do to improve the accountability of who is on the bench and doing the deciding as well as what is being decided?”

“I suggest to her that the Canadian people view the process as failing them….I would say courts are not the solution, courts are the problem.”

“the decision of one man, Mr. Justice Shaw, has undone all the work by the people’s representatives.”

“This is about far more. It is about respecting our constitution. This is another example of the courts interpreting the charter of rights in a manner in which it was not intended.”

“It was almost 800 years ago that the British had the Magna Carta which introduced such concepts of guarantees of rights and the rule of law, as well as laying the foundation for parliamentary democracy.”

“I cannot overemphasize the importance of this case to the value of the charter and to the courts in general. I suspect very few Canadians can list the benefits that the charter has brought in their day to day lives.”

“If the charter of rights and accompanying court decisions are to have any value at all in the lives of Canadians then they must have the support of Canadians. Decisions like this left to stand will drive away any of the support that might still remain for the charter of rights and our constitution.”

“A constitution or a charter of rights that does not have the support of the people is an empty document. It is a document that is devoid of any relevancy. That is our challenge today, to make sure our charter of rights respects the feelings of Canadians and has relevancy to all our lives in Canada.”

“I believe that the justice minister should have acted on this issue in a far more decisive way. It does not give me pleasure to be debating this because there should be no debate. The children of Canada must be protected. Under this justice minister, under this government, that is not happening.”

“The definition of civilization is that we protect those who cannot protect themselves. We must look after the children of Canada. The people of Canada are saying to us in the House protect our children.

The judicial activism that is presently underway not in any way reflecting the values of Canadians is hampering the police in their ability to do their job.”

“There has been mischief by the charter of rights and it has been mischief that has been brought forward by the law society in Canada.”

“The people of Canada assume that the House of Commons is the supreme power in the country. Under this justice minister and her predecessor, under this solicitor general and his predecessor, the government has allowed the courts to become the lawmakers and the law restricters in Canada.”

“We must stand up. We must be counted. It is up to members of parliament to reflect the values of the people of Canada. The people of Canada are saying “Protect our children, protect our children now”.

“In British Columbia the law is not in place and search warrants cannot happen. The police are being restricted in being able to stop this most reprehensible of all crimes.”

“The charter of rights and freedoms is a legal instrument we have given ourselves to guarantee the fundamental rights and freedoms of everyone. This is an instrument we are proud of, and rightly so. It represents our core values.”

“In the final analysis who is on the hook if a judge screws up? It is the Prime Minister and the justice minister”

“It is not good enough to say that from now until whenever the government stands aside and watches while Canadian children are put at risk, to watch the process take a step by step management rather than leadership approach to dealing with the problem. It will just not accomplish what needs to be done.”

“A new generation is coming and it will judge the previous generation on both its actions and its inactions. It will judge this House on whether it acted or whether it just let so-called justice take its course and possibly end up as being an injustice because of our lack of action.”

“Parliament has the final responsibility in this country. We have appeal courts and the supreme court to review previous decisions but parliament has the final responsibility. With responsibility should come authority and parliament must not be afraid to act on that authority. It must not fail to use the authority.

Are we saying that in our country the buck stops down the road on Wellington where the supreme court justices have final say over the laws and intentions of this House which were produced in accordance with what our constituents asked of us when they said they want just laws, laws that provide equality, democracy, righteousness, freedom? Or are we to say down the road is where you will find those things and you will have to fight your way through every court, right through the provincial courts to the Supreme Court of Canada at great expense? Or can we be expected to act here for the people who we purport to represent?”

“Today we see the ultimate consequences of a completely unencumbered, unaccountable judiciary.”

“I believe that in Canada we have a system where we have parliamentary supremacy. That means we have a responsibility. We cannot abdicate it and say that every question has to go to the supreme court. We can act here in the House.”

“What concerns me is must we have more victims before we can determine if there is harm? We talked about the determination of harm being the criteria before we will decide whether it is reasonable to shut this kind of thing down. How much harm must we endure before we can say there has been enough? How many more children, victims, need to be involved in this kind of sick thing before we can say there has been enough?”

“It may be a lawyer’s dream to see this tragedy played out in the court system, but it is our responsibility as parliamentarians to protect the vulnerable and the innocent.”

“this Minister of Justice is not defending the rule of law. She is undermining it today by refusing to assert the sovereignty of this parliament to defend innocent children.”

“The whole issue of trusting the judicial process to address this tragic situation is wrong.”

“If we are ever going to send a message to the judiciary that parliamentary supremacy over legislation is meaningful, and if the public at large is going to receive that message as well, there is no better time to use this than at a time when something so offends the common sensibilities of people.”

“They place greater emphasis on the importance of the authority of judges as opposed to those of us who place greater emphasis on the importance of the authority of parliament. It is a legitimate debate to have in a democracy.”

“This is not a political issue. I suspect and hope there are members of all parties who will support this motion this evening.”

“I call on my colleagues on all sides of the House to not impute motives to one another here but let us assert the sovereignty of this parliament. We can act. The Constitution gives us the power to act and we must act. To do otherwise is to abdicate our fundamental democratic responsibility.”

“It is not at all surprising that such an offensive attack on the values of society comes from the benches of the unelected and the unaccountable. Judicial activism, a recently coined term, refers to rulings by judges which go well beyond the intent of the law. These decision substantively change the law to the point where judges have taken on the role of legislators or law makers as opposed to simply interpreting and applying the law.”

“the position taken by Mr. Justice Shaw do not appear to be in line with our party’s views of what is reasonable in a free and democratic society.”

“Courts cannot replace elected officials. The judges are unelected. They are unaccountable. It is we in this House who have to think, who have to act. We cannot tinker with the law. We need a law that has strong teeth which can give protection to society, which can give protection to the children and the most vulnerable in society.”

“I point out that what distinguishes our society from non-democratic societies is the rule of law. There is no question that no one in the House today has indicated anything but abhorrence for the decision of the chief justice of the British Columbia supreme court.”

The last comment made when Parliament failed to resolve the issue and allowed the Courts to self-regulate:
“Mr. Speaker, I rise on a point of order. Based on an earlier decision of a vote in the House, may I recommend we close this place and let the judges and courts run this country. “

Link to the Feb 2nd, 1999 debate in Parliament.

Interestingly enough in 1999 during these debates Parliament did also seek the removal of Justice Flahiff

“That this House, barring a decision in appeal quashing the decision at trial level, recommend the removal of Mr. Justice Robert Flahiff, judge of the Quebec Superior Court, because of his inability to properly perform his duties due to
(a) a lack of honour and dignity;
(b) failure to perform his duties as judge under the Judges Act; and
(c) a lack of integrity as set forth in the Ethical Principles for Judges of the Canadian Judicial Council;
And that this removal have as its immediate consequence the revocation of the current salary and the right of the said judge to the enjoyment of a pension under the Judges Act.”

Link to PDF on full debate dialogue from Hansard.