Madam Speaker, it is an honour to take part in this very important debate today in the House.
Over the past several years our court system, the judiciary, has gone far beyond its mandate of interpreting the law reflected through the intent of parliament to reading in meanings never intended by the elected representatives of the nation. This process which has slowly evolved has put the creation of law through precedent setting opinions into the hands of our judiciary.
Canadians are saying that they do not want a few unelected individuals to make these decisions. There is no counterbalance in the current system to rectify the problem when the government, which is intended to reflect the will of the majority, refuses to take responsibility.
I would argue that the Liberal government has abrogated its responsibility in this case and in many others concerning the idea of judicial activism, whether it be the Feeney case in 1997, the Delgamuukw decision of 1997, the Eldridge decision, the Halm decision, the Singh decision, the Prosper decision or the Heywood decision. We could go on and on.
The motion being presented today is about the idea of judicial activism and that the courts determine the law of the nation through the precedent setting decisions they make. That is what we are debating today. We are asking whether this is something that should be happening.
If this is something that we clearly endorse, we have to ask ourselves why in the world we are here as elected representatives of the nation. If the courts are simply to determine what law is in the nation, why in the world are we here?
We are here, I would argue, to debate openly and freely the merits of arguments and decisions that are made. We as elected representatives of the nation have been sent here to debate issues just like this one to speak our minds, to speak the wills of our constituents in this place and not to be afraid to do so.
I turn my attention to a very important court decision mentioned in the motion. I have no fear in referring to the Rosenberg decision. That decision or the government's lack of action in response to the decision illustrates that the government has once again failed to demonstrate leadership. It is simply allowing the courts to go ahead and read words into a decision which could have a profound impact on many other pieces of federal legislation, without lifting a finger, without even mentioning it, hoping that this case and others like it will just go away as well as all kinds of different areas and different topics.
The justice minister as our attorney general has until June 22 to appeal the decision. To date she has offered no indication that she is willing to do so. In fact she stated to my colleague in the House, the hon. member for Yorkton—Melville, on May 27:
In the Rosenberg case the judiciary was doing what it was constitutionally obligated to do, interpret and apply the Law.
I would argue that the justice minister is sorely missing the point in the fact that she cannot see that words read into that decision will have a profound impact on federal legislation. We are burying our heads in the sand if we say in this place that the decisions founded by a court do not have any precedent in later decisions. That is simply not what history has taught us in this place. History has taught us that decisions made in our courts set a precedent for future decisions and affect the law.
I would also like to state I am sharing my time with my colleague, which I neglected to say at the beginning of my speech.
The judiciary is making the law, reinterpreting it based on its philosophical framework. There is no timely action from the justice minister which we heard in relation to the Young Offenders Act.
Members of the opposition ask if the minister will continue to do nothing, to sleepwalk and to demonstrate her weakness on serious issues. It is quite telling that the predecessor to the Minister of Justice, the current Minister of Health, tried to reassure parliamentarians that the Canadian Human Rights Tribunal was not “going to get into the business of redefining spouse or family or any of that”. In referring to Commissioner Max Yalden he stated:
He has spoken about benefits, but he has said he's not going to get into redefining these terms legally.
All should be fine then. In fact we should not have any concerns at all.
In 1996 in Canada v. Moore, again a case centring on same sex benefits, the government tried to solve the problem by using the term partner which would have rectified the situation. That would have been a solution to the situation. In June 1997 the commission instructed Treasury Board that the term partner was not good enough and ordered Treasury Board to refer to same sex partners as spouses.
The commission that the former justice minister said had no intention of redefining the term spouse completely contradicted him. In fact we have to look back at his words to see them for what they were, just empty words with no action from the Minister of Justice. Talk, debate or words can be empty if no action follows. In debate on Bill C-33 the former justice minister stated:
We should not rely upon the courts to make public policy in matters of this kind. That is up to the legislators, and we should have the courage to do it.
I ask the former justice minister if he might nudge his seatmate and get her to take some action on this case and many others.
Parliament has a responsibility to make the nation's laws as citizens give legislators that right when they vote them into office. Parliament has the unique role of debating the balance between rights and responsibilities in a democratic society and the courts should give them the opportunity to do so. The legislatures are subject to public scrutiny and the best place to have a debate matters of critical social importance is in the House of Commons.
Why the concern with regard to this case and to others? What impact does this decision have for the future? If the attorney general fails to act then the Rosenberg decision will likely set a precedent which will have a domino effect on over 40 pieces of legislation, all of which will strike at the heart of the definition of spouse and the definition of marriage in Canadian law.
Marriage is the fundamental cornerstone of any society. A supreme court justice in the Egan decision in 1995 stated:
Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of longstanding philosophical and religious traditions. But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship.
I would continue by saying that Canadians have to wonder what are the motivation and intent of the government. I remember no mention of redefining marriage in the Liberals' red book platform in last year's election or in the Speech from the Throne.
We are wondering what it is that the government is doing. Will it simply allow this decision to go ahead without taking any action, in fact allowing a precedent to be set upon which further decisions of the courts will be founded?
Failing to appeal the Rosenberg case simply restates this weak government's lack of direction, lack of responsibility and disregard for marriage and family as cornerstones of Canadian society. The Minister of Justice and the Prime Minister have a window of opportunity to act.
The Prime Minister has scoffed at a recent resolution raised by over 1,200 Reform Party members at an assembly to conduct a family impact analysis to federal legislation. Again I state that actions speak louder than words.
Official opposition members urge the government to act and to put the creation of law back into the hands of elected representatives. To do any less is a signal to Canadians that the government is failing once again.
