An Act to amend the Supreme Court Act

This bill was last introduced in the 37th Parliament, 1st Session, which ended in September 2002.

Sponsor

John Bryden  Liberal

Introduced as a private member’s bill. (These don’t often become law.)

Status

Not active, as of Feb. 6, 2001
(This bill did not become law.)

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Supreme Court ActPrivate Members' Business

March 19th, 2001 / 11:50 a.m.
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Erie—Lincoln Ontario

Liberal

John Maloney LiberalParliamentary Secretary to Minister of Justice and Attorney General of Canada

Mr. Speaker, I rise today on behalf of the Minister of Justice to address Bill C-234, an act to amend the Supreme Court Act, introduced by the hon. member for Ancaster—Dundas—Flamborough—Aldershot.

It is healthy in a democratic country such as ours to have debate about the respective roles of the judiciary and parliament and the dialogue between those institutions. I thank the member for giving us the opportunity to debate the issue before the House of Commons.

After consideration of Bill C-234 and the effect of the proposed amendments on judicial independence, it would be impossible for the minister to support the bill. Allow me to explain.

Bill C-234 proposes two amendments to the Supreme Court Act. Both amendments would apply only in constitutional cases. The first amendment, section 52.1, would require the supreme court to consider parliamentary and other extrinsic materials that deal with the purpose or intended effect of a provision or act when the constitutional validity of a statutory provision is at issue. The amendment lists commission of inquiry or law commission reports, debates of the House of Commons or Senate, and debates of the provincial legislatures as examples of the types of materials the court would consider.

The proposed amendment at best simply codifies an approach that has been adopted by the Supreme Court of Canada since at least the Anti-Inflation Act reference of 1976. In that case, Mr. Justice Ritchie wrote that it was not only permissible but essential to consider the material the legislature had before it when the statute was enacted. It is expected that parties before the court will bring evidence of the purpose and intent of the impugned legislation to the court's attention. Such materials indeed form an integral part of the government's arguments under section 1 of the Canadian Charter of Rights and Freedoms.

However, there is a danger that the provision could be more broadly interpreted as requiring the court to independently research any such evidentiary materials that have not been brought forward by the parties. Such an application of the provision would significantly increase the court's already heavy workload and could result in possible delays in the administration of justice.

Furthermore, the reading of the proposed section would run contrary to a basic tenet of our common law and adversarial system: that it is for the parties alone to decide the issues and the evidence that will be brought before the court. As a result, the Minister of Justice is unable to support the proposed introduction of section 52.1.

I now turn to the second proposed amendment in Bill C-234 which, in only a couple of sentences, would create uncertainty in the law and raise serious questions about equal access to the law.

The proposed amendment would make only unanimous supreme court decisions on constitutional matters binding on all Canadians. Where the decision was not unanimous the judgment of the court would be deemed to be only applicable to the case being heard. In other words, the decision would not be considered a precedent in relation to other circumstances in which the same constitutional issue arose.

The Minister of Justice is equally unable to support the proposed amendment. The amendment is clearly contrary to the doctrine of precedent that underlies Canadian constitutional law and that supports the need for certainty in the law. Pursuant to this doctrine, the decisions of a court are binding on courts lower in the judicial hierarchy regardless of whether the decisions are unanimous or by majority.

Not only Canada but all common law countries have accepted the doctrine of precedent which enables parties to rely on a court judgment with the knowledge that people in like circumstances will be treated alike. Adoption of the proposed amendment would result in confusion, uncertainty and increased litigation within the Canadian legal system as parties, including governments, would be required to repeatedly contest or defend the constitutional validity of legislation whenever a unanimous decision was not reached.

The enactment of section 52.2 could have the further consequence of creating an unequal application of laws. Under the proposed provision, the circumstances of individuals or organizations other than the parties before the court would not be covered by a majority decision and further litigation would be required for redress. However not all those affected by the challenge legislation have the necessary means to assert their rights in court and consequently would not enjoy the same benefits of the law. The minister cannot support such unequal application of the law.

The Minister of Justice is further compelled to oppose both of the proposed amendments to the supreme court act as they will quite likely be construed as violating the constitutional principle of judicial independence.

The amendments impinge directly on the decision making process. Judicial independence is a fundamental principle under the Canadian constitution. Its dominant requirement is that judges be completely separate in authority and function from all other participants in the judicial system, including the legislature.

One of the three essential elements of judicial independence is the constitutional independence of the court with respect to issues bearing directly on its judicial functions.

The process by the which the court reaches its decisions is clearly an integral aspect of its judicial functions. That process includes the evidence the court is required to take into consideration, as raised by the proposed section 52.1. Section 52.2 of the hon. member's bill could be seen to even more directly infringe upon judicial independence if it has the purpose or effect of forcing courts to make unanimous decisions.

The provision would contravene the individual as well as the institutional independence of judges to make their decisions impartially and free of extraneous influence. Such interference with judicial independence could only serve to erode public confidence in Canada's judiciary.

Together the two provisions raise serious concerns regarding both their constitutionality and their legal efficacy. In light of these considerations the Minister of Justice is unable to support the bill.

Supreme Court ActPrivate Members' Business

March 19th, 2001 / 11:30 a.m.
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Bloc

Michel Bellehumeur Bloc Berthier—Montcalm, QC

Mr. Speaker, actions such as these show us that the system has become a bit outmoded. Sometimes we get to make fine speeches here without even any chance to vote. We are not even able to really have a finger on the pulse of the government.

An additional aberration: the bill is presented by a government MP and it is the members of the government who are refusing to have it made votable. That is a pretty special situation. Independent of whether people are for or against such a bill, I believe the House should be allowed to vote on it.

A vote would allow us to make it very clear that we in the Bloc Quebecois cannot support such a bill. This would at least show the consequences of such actions and would also make the government's position known. We have a bill being presented by a member of the government side and the government is saying no to making votable. This is rather unusual.

That said, I will address the bill directly since I have only 10 minutes or so to discuss it and to tell the House what an extremely dangerous bill it is.

I cannot support such a bill since it mixes up some key principles which provide Quebec and Canada with a justice system that works overall. We agree that there is always room for improvement. Generally speaking, however, Quebec and Canada have a justice system that has developed over the years into something that in large part meets the expectations of the public.

One of the reasons it does work is that Canada has a separation of powers which and this is important for a balanced justice system. In other words, we have the legislative, the judiciary and the executive components of the one state called Canada. That is why we can end up with decisions that may not suit us, decisions from the higher courts that we might have liked to see otherwise, but when the rules and the law are being applied, the system generally works.

For those who lack familiarity with the rules I have just mentioned, the legislative system is us. People pass legislation that applies to everyone. Especially, since the arrival of the charter of rights and freedoms, the laws have applied to everyone, unless parliament decides, through the use of the notwithstanding clause, that a law does not apply to a particular category or, more specifically, to others. Let us be clear that up until now, no legislature has used the notwithstanding clause. The laws apply to everyone, as the legislative system provides.

The judicial system comprises people who apply the laws passed by the legislative system. How do they do it? By interpreting each of the sections of the law. There is a principle of law, of justice, which provides that the legislator is not deemed to speak in vain. Therefore all the clauses of a bill have significance and they are interpreted one after another by the judicial system. It is however possible to not agree with a given decision.

It would be a free for all if parliament intervened whenever the Canadian constitution was involved or whenever the rights set out in the charter were involved. In nearly all decisions the supreme court examines, one of its criteria for agreeing to examine them is that the matter involves the Canadian Charter of Rights and Freedoms or, very specifically, the interpretation of a statute of significance to Canada and a province, such as Quebec, for example, if the decision comes from Quebec.

One of the most important points the supreme court addressed in recent years was the interpretation of the Canadian Charter of Rights and Freedoms. If Bill C-234 came into effect, the House would always have to deal with issues and interpretations relating to the constitutional validity of an act. The issue is whether or not the act respects the Canadian constitution or the Canadian Charter of Rights and Freedoms. We would always be ruling on issues, thus depriving the supreme court of one of its responsibilities so as to keep us parliamentarians busy doing something. This is not how the system works.

The executive branch is the third level of power. It is the government that sets in place the judiciary and the executive branches. The separation between these three branches is extremely important and must continue to exist.

The hon. member drafted his bill in a way that would obviously jeopardize the balance that currently exists. The Bloc Quebecois cannot support that. Regardless of the fact that we are sovereignists and that we support Quebec's sovereignty—this is the best thing that could happen to Quebec in terms of the legality of the justice system—over the years, Quebecers have made major contributions to improve Canada's justice system. I want to preserve that system and I will fight to protect it.

A bill such as the one just introduced by the member for Ancaster—Dundas—Flamborough—Aldershot does not make sense. I might have understood if it had been proposed by the Canadian Alliance, but I am very surprised to see this from the Liberals. The sponsor of the bill could easily cross the floor and join the Canadian Alliance. I hope he represents only a very small minority among government members. This is dangerous legislation.

More important, did members listen to his speech? His intentions were barely veiled. He said that supreme court justices make rulings without even examining the substance of the issue and that they render repetitive judgments. We know that supreme court justices are extremely competent and they are serious when they issue rulings. They have clerks working for them. They have access to a whole staff of researchers and to libraries. The supreme court makes Canada proud, and even Quebec, as there are Quebecers who sit on the court.

The hon. member said that members should draft our laws because we review them very thoroughly. I want to give him an example. I am a member of the Standing Committee on Justice and Human Rights. There are Quebecers and members from other regions of Canada who sit on that committee.

Just to give one example of how ridiculous the member's arguments are, in the case of the young offenders bill, the committee heard from 60 or so witnesses from Quebec. No one in Quebec supports the minister's bill. During clause by clause study, all members from Quebec present voted in favour of the bill. What is the point of spending hours and hours going over something if the ultimate decision lies with the Prime Minister anyway?

In all sincerity, I would far rather have competent judges handing down rulings on a case by case basis in light of existing statutes and regulations, independently of the legislative arm. Cases such as Shaw may involve treaties and customs but we also take these into account when we pass legislation here.

As I said, decisions are, in the main, consistent with the thinking of parliament and of Quebecers and Canadians.

I could go on and on. I will discuss at length the two clauses in the bill to amend the Supreme Court Act in order to rebut, as it were, all the arguments brought in support of this bill, which does not really deserve our serious attention. We should move on to something else as quickly as possible.

Supreme Court ActPrivate Members' Business

March 19th, 2001 / 11:20 a.m.
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Canadian Alliance

Vic Toews Canadian Alliance Provencher, MB

Mr. Speaker, I commend the member for Ancaster—Dundas—Flamborough—Aldershot for bringing this matter before the House today. I will be asking for unanimous consent that this matter be deemed votable and referred to the Standing Committee on Justice and Human Rights.

The member has articulated his comments very succinctly. As he indicated, this is an issue that has not received much discussion in the House or in committees. The member, in bringing this forward, does a great public service not only for the House but for the courts and for the people of Canada.

There are a number of issues that I would like to raise. I do not necessarily agree with everything in the bill but I think that is why we need to have discussions.

This bill would amend the Supreme Court Act by adding a number of paragraphs, the first being that when the question heard by the court is of a constitutional nature that the court consider parliamentary and other extrinsic materials, such as the Debates of the House of Commons, the Senate, legislatures, and law commission reports.

The second is when the question heard by the court is of a constitutional nature and the decision of the court is not unanimous, the decision should not be considered a precedent in other circumstances in which the same constitutional issue arises.

I do have some concerns with respect to the first matter. The courts in many circumstances routinely consider this type of information when it is presented to the court by one or more of the parties. The courts hold that this type of information is admissible and then consider the weight of this evidence.

I am familiar with this evidentiary issue. In my former life I was a constitutional lawyer. I was the director of constitutional law for the province of Manitoba. The legislative evidence to which my colleague referred provides an important context in assisting with interpreting the legislation. As a director, I often referred to this type of evidence, which is important in order to give the court a clearer understanding of this legislative background. This type of evidence was called a Brandeis brief. That is an American term but is utilized quite extensively in Canada.

The bill would not only allow the introduction of Brandeis briefs by counsel but, in addition, puts a positive onus on the court to consider the intent of the legislators and not simply go off on a frolic of its own, as has often been the case with some judicial activists on the court. It is a very important and positive onus on the courts which I think should be there.

With respect to the second paragraph in my colleague's bill, there is some concern that it may cause some confusion to the principles of precedent that have been established in Great Britain, in Canada and, to a lesser extent, other Commonwealth countries, and indeed the United States.

However, I am sympathetic to this provision because the intent is clearly to get the judiciary to focus on the issues before them and to attempt to arrive at greater uniformity and clarity in the judgment. This is so important given the fact that the rights and freedoms of Canadians hang on the interpretation of these words. Multiple judgments only serve to cause confusion among those who are required to carry out, enforce and obey the laws. Again, the examples my colleague brought forward to the House are very germane to the discussion.

It is ironic that when the courts criticize legislation for being vague and over broad, the courts often do so in language that is itself vague and over broad. My colleague has brought a few examples to the attention of the House. There are many more.

We read judgments of the court where they criticize legislators' language and yet the language that they use and their conclusions are so hopelessly over broad and vague that they have done nothing to assist in the administration of justice or the enforcement of laws.

The only beneficiary of these multiple types of judgments are the legal profession. I, too, am a lawyer so I include myself in this as well. However, the only beneficiaries of these multiple judgments are the legal profession who are then free to embark on a new, fresh round of litigation involving the same issues.

This type of discussion, whether the bill is accepted as such or otherwise, is very important for us to try to have the courts focus on what is important, on the issues that are in fact before them.

Generally speaking, I would express my overall support for the bill. Despite my concerns, I think the intent of the bill is to grant elected members of parliament a greater voice in the constitutional decisions that influence the laws of Canada. I would also say that the bill is in part a reaction to the phenomena of the judiciary substituting its legal and social preferences for those made by the elected representatives of the people in parliament and the legislatures.

Decisions made by the supreme court have a tremendous impact on the principles and institutions of our democracy. We want to preserve our democracy. We want to live in harmony with the courts. We recognize the very valuable function of the courts but our respective roles as parliamentarians, as those who pass laws that implement social and legal policy are interpreted by the courts in their proper legal context. We do not want that straying of the courts into the area of social and legal policy.

There are the dangers of legal and constitutional anarchy that are reflected in some of the former judgments of the Supreme Court of Canada, and I cannot think of a better example than the Singh decision. This decision certainly created difficulties for our bureaucrats and others who want to see fair laws.

The member opposite made the point about this depriving legitimate visitors to Canada who would like to see their families but are denied access because there is now an overabundance of caution that parliamentarians have to exercise because of some very misguided and confusing decisions. Perhaps confusing is a better word than misguided. I am sure the courts, in going through these judgments, are also trying to do their best. We need to focus more clearly on the real issues.

I indicated earlier that I would ask for the unanimous consent of the House that Bill C-234 be deemed votable and referred to the Standing Committee on Justice and Human Rights. Failing that, I would move that the subject matter of the bill be referred to the Standing Committee on Justice and Human Rights.

I commend my colleague opposite for bringing the matter forward. It deserves the support of all opposition members and certainly all members from the party that the member opposite represents.

Supreme Court ActPrivate Members' Business

March 19th, 2001 / 11:05 a.m.
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Liberal

John Bryden Liberal Ancaster—Dundas—Flamborough—Aldershot, ON

moved that Bill C-234, an act to amend the Supreme Court Act be read the second time and referred to a committee.

Mr. Speaker, it is a pleasure to rise to speak to the bill today. I am only going to address one-half of the bill because the motion is not votable and there is only one hour of debate. So in the interests of time I am going to only look at the second clause of the bill that would limit the application of charter decisions by the supreme court. If a decision is not unanimous on the part of the supreme court judges, then the case at hand would apply only to the case at hand and would not be broadly applied as is the usual case now.

The bill arises from the fact that so often when an appeal is brought before the supreme court that has charter implications, when the supreme court rules, whether it is a unanimous decision or a majority decision, the government, Mr. Speaker, usually applies its decision universally. It takes it as a direction in law and a charter direction, and it usually has enormous impact on Canadian society.

My concern for this issue arises out of the Marshall case about two years ago. In that case, Donald Marshall and several other aboriginals were caught by fisheries officials with 464 pounds of eels that they had taken out of season and were selling. They had even used an illegal net. In other words, these individuals were poaching.

They were brought before the courts and would have been subject to a considerable fine but their defence before the lower courts was that they had a right to take the eels under a treaty of 1760 between the British crown and the Mi'kmaq. That went through two levels of courts, the provincial court and then it was appealed. Finally, it came before the supreme court.

Members must bear in mind that the convictions were upheld by the two lower courts. However, when it came before the supreme court, seven justices sat, five ruled in favour of the accused. In other words, they overturned the decisions of the lower courts. Two ruled in favour of the lower courts and upheld the conviction.

Members have to see how it works. The appeal process that goes to the supreme court chiefly consists of bringing before the court, and the court accepts the particular case at hand. The supreme court reviews all the evidence of the lower court and allows one hour for each side to present its case. There is a certain provision in time for interveners who the supreme court can decide to allow to intervene or not. All in all the entire decision making process takes less than three hours in open court and for the most part the deliberations are done in camera with the justices using their law clerks to prepare a digest of the evidence. They make their decisions based on that.

Where in this place it may take many days and many levels of debate in order to pass legislation; first reading, second reading, report stage, third reading and the Senate. In the case of the supreme court, it is a matter of only a few hours of open court and the rest by law clerks and individual justices themselves.

In the case of Marshall, this decision to uphold the rights of Mr. Marshall and others to gather the eels out of season, it is not really the problem of how the justices came to that decision which concerns us here today. If we put 100 people in a room and asked them whether they would agree with the decision in the Marshall case, I think we would probably find only 3 or 4 would.

The implications of the Marshall case were that it allowed aboriginals to not only fish out of season but to fish for commercial reasons, for sale. The five supreme court justices who upheld the appeal cited reasons that we find difficulty following. They said it was the honour of the crown. They had to read into the treaty of 1760 that which was not there because they had to put it in an historical context. They admitted that they were doing something historians were expected to do. They were at odds with historians but they took it upon themselves to be the historians and set the expert testimony aside.

The justices also admitted that while they did not hear all the particular testimony, they still felt that they could come to this conclusion regardless.

They even made a political decision. They said in their conclusion that the aboriginals were entitled to make a moderate livelihood and they said that regulations could certainly be made to make this work. Where we in the House would spend days to devise a policy with respect to the fisheries, just to devise a policy, and have extensive debate to establish the rules pertaining to the fisheries, the five judges in the Marshall case determined that it could be done just like that.

I do not want to get into questioning the decisions of the justices. The point is, Mr. Speaker, is they came down with their decision with the two judges dissenting and the two judges who were dissenting simply said that the treaty of 1760 applied to 1760 and we could not apply it to the present. We would agree with that. So they rejected it and five accepted it.

That is not the issue. What happened right after that, which concerns us here and is the reason for this legislation, is immediately the Department of Fisheries and Oceans issued an internal memo. One of the clauses of the memo about the implications of the Marshall decision, which I remind members was a split decision, said:

While the immediate focus is on access to the fishery, the judgement will have application to other resources. Development of a comprehensive response will involve many departments of the federal government, and provincial governments as Treaty beneficiaries pursue harvest of wildlife and timber.

In other words, Mr. Speaker, the federal government immediately saw in Marshall a broad application to aboriginal rights to all resources to not only gather it for sustenance, but to gather it for a moderate livelihood, in other words, for sale. It is no wonder that a few days later the Minister of Indian and Northern Affairs came out publicly and said that this was a decision that was going to entitle aboriginals across the country to have special rights to natural resources, to not only exploit natural resources but to sell them.

We know what happened. There was a terrible conflict around Burnt Church in Nova Scotia. That conflict continues. There has been a tremendous unease across the country with the thought that there could be a situation where aboriginals have rights to natural resources and rights to the exploitation of natural resources based on race alone.

It did not need to be that way. In fact, there is nothing in Canadian law anywhere that says that a decision of the supreme court, any decision for that matter, has broad application when it is a charter decision. It just does not exist. What has happened is that a myth has been created since the charter was passed in 1982 that somehow the supreme court in Canada has the same context in the interpretation of laws and the application of laws as in the United States.

In fact this is not so at all. For the supreme court, or high courts as we have, interpreting constitutional law, is basically something that has evolved since the second world war. For the most part, most countries prior to the second world war functioned on a parliamentary democracy system. What has happened since the second world war, and probably as a result of the second world war, is many countries, including Canada, felt there should be some restriction on the opportunities of the executive. Thus high courts were implemented, including our own.

Nothing in the constitution that was brought back in 1982 actually defines the role of the supreme court. There are a few passing references only, but nothing dictates that the federal government should interpret split decisions of the supreme court as being broadly applicable across the country. We do not need to go down that route. One of the sad things about this entire situation is that there has never been a serious parliamentary debate examining the role of the supreme court's decisions and its application to charter law and how charter law should be applied to Canadians. I think it is high time that this situation was brought forward.

The other classic case involving the supreme court, just to give another example of what has happened, is the charter was passed in 1982 and in 1986 a challenge was brought before the charter that led to the Singh decision. It involved seven convention refugees who were all in Canada illegally. One in fact had come in on a visa with a forged passport. The refugees were caught and the court ruled, after various levels had suggested that they should be expelled without a full hearing and according to the legislation at the time, that they were entitled to a full hearing and upset the lower courts' rulings.

What a lot of people do not realize is the Singh decision was not a unanimous decision. Three judges only found evidence in the charter that suggested that the existing immigration law was not charter compliant and was unfair to the accused. The other three justices came to their decision based on the Canadian Bill of Rights.

It is very important to understand that the Singh decision was a split decision. Indeed, the three justices who chose the Canadian Bill of Rights to argue that the seven should have a full hearing specifically said that they were not considering the charter in their decision. There we have a classic example where a split decision of the court has had manifest impact on Canadian society.

Not only has it made it very difficult for Canada to control aliens coming into the country who perhaps have criminal connections or whatever, but every one of us in the House has a problem with people seeking visas to come to visit their loved ones and relatives in the country. Every office has this problem. What we need to do is turn those people back because according to the Singh decision there is every possibility that if they decide not to return according to their visa then they have recourse to due process. Tens of thousands of people are denied entry into Canada because of the Singh decision.

It is very important to realize that the Singh decision was confusing. The three justices decided on the basis of the charter that the seven accused were entitled to an oral hearing. However it was the other three, in terms of the Canadian Bill of Rights, who cited section 2(e), which said that no law should “deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of the rights and obligations”. It was that section which led to the problem where we are turning back all these visa applications. It is not a charter problem at all. It is the problem of the interpretation of the Canadian Bill of Rights in the Singh decision.

The irony is that at the beginning of that section it says that there is a notwithstanding provision in the Canadian Bill of Rights, that the government has the choice under the Canadian Bill of Rights to suspend 2(e) in special circumstances, and yet the government has never done it.

The problem is simply that it is not the supreme court with which we have difficulty. It is not the charter with which we have difficulty. The problem is we have difficulty with successive governments that have interpreted the decisions of the courts more broadly than anything in law requires them to do, and indeed more broadly than anything in parliamentary tradition that Canada, the United States or Europe requires them to do.

We need to review the situation with respect to how government interprets the decisions of the supreme court. It is high time that parliament, both the House of Commons and the Senate, took a look at what the government is doing and set rules whereby, in my view, it should be only unanimous decisions of the supreme court that should be broadly applied, not split decisions.

Right Of Landing FeePrivate Members' Business

March 2nd, 2001 / 1:35 p.m.
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The Acting Speaker (Ms. Bakopanos)

Does the hon. member have the unanimous consent of the House to make Bill C-234 votable?

Right Of Landing FeePrivate Members' Business

March 2nd, 2001 / 1:35 p.m.
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Liberal

John Bryden Liberal Ancaster—Dundas—Flamborough—Aldershot, ON

Madam Speaker, I rise on a point of order. Being that this is private members' hour, I would like to seek unanimous consent to make Bill C-234 votable.

This is a bill that would amend the Supreme Court of Canada Act and require the supreme court to consult parliament in the context of its deliberations on charter challenges.

I have numerous representations from all sides of the House, from MPs who would like to speak to this bill. If I could get unanimous consent, I would be deeply grateful.

PrivilegeOral Question Period

February 22nd, 2001 / 3:10 p.m.
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Liberal

John Bryden Liberal Ancaster—Dundas—Flamborough—Aldershot, ON

Mr. Speaker, I am quite taken by surprise by this question of privilege and I certainly take it very, very seriously.

But let me begin in my own defence by saying that I only wish that I did have some of the information that was discussed in camera with respect to the private members' bills that were deemed votable or not votable.

As you are very well aware, Mr. Speaker, one of the awkward things about this subcommittee is it is dominated by the opposition members. It deliberates in camera. A report is tabled in the House and there is no opportunity at any time for the members affected by whether their bill is chosen to be votable or non-votable. There is no opportunity at anytime to know the reason why the bill is deemed votable or not votable.

Now, if I may just go through my letter. I think I need to defend myself. I am sure, Mr. Speaker, you will agree that I have not said anything in my letter that besmirches the reputations of my colleagues opposite, nor in any sense, shall we say deviates from the information that I have fairly acquired.

First of all, the first paragraph said:

My Bill C-234 to amend the Supreme Court Act was ruled non-votable by the opposition members on the sub-committee for private members' business even though it met all the criteria for votability.

I invite you, Mr. Speaker, to examine my bill versus the known criteria for votability and you will find there is no argument. It met every one of those criteria for votability.

As far as my knowing that the opposition members voted against making my bill votable, I can assure the House that that arises from the fact that I had and still have great confidence that certainly the Liberal member on the subcommittee for private members' business would not have argued against his own colleague's bill. So by elimination, Mr. Speaker, it was very clear that the opposition members, now by their own admission, Mr. Speaker, in this Chamber, now the opposition members do admit that they did speak against my bill.

The second paragraph said:

The bill would have required the Supreme Court to consider the intent of parliament when considering Charter cases. It would also have prevented the government from broadly applying split-decisions like that of Marshall where the Micmac were given an aboriginal right to the fishery.

Mr. Speaker, you will agree that there is nothing contentious in that, which merits a point of privilege. It is a mere statement of the truth and a mere statement of what my bill would have done.

I think the third paragraph may have caused a little bit of awkwardness on the part of my colleagues opposite, where I say:

Crude partisanship has thus deprived all MPs of a debate on judicial activism and judge-made Charter law that most of us have been crying out for.

I submit, first and foremost that in this place of all places, to accuse another member of being partisan is one of the most normal things that could possibly occur here, because indeed more often than not, particularly during question period, we pride ourselves on being partisan.

Perhaps the adjective “crude” was a little offensive. But, Mr. Speaker, I would draw your attention to the fact that when items are selected for their votability, among the many items that come before the subcommittee, is that they have the option of selecting 10 items. In this instance they only selected seven. They could have selected three Liberal items.

I point out that it was not only me that had an item before the committee. The member for Davenport and the member for Lac-Saint-Louis, both Liberal members, also had items before the committee yet they were not chosen to be votable.

I can only conclude, as a member, that crude partisanship must have taken effect because all three of these Liberal items met all the criteria. If the people who were deliberating on this wanted to reject other opposition bills, that was perfectly fair. But I really do feel that there is no point of privilege here. As I stated:

Opposition MPs have been complaining about the lack of opportunity of backbench MPs and the irrelevance of Parliament. Yet when given a chance to do something about it, they failed to take it.

Mr. Speaker, I merely stated the truth.

Supreme Court ActRoutine Proceedings

February 6th, 2001 / 10:15 a.m.
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Liberal

John Bryden Liberal Ancaster—Dundas—Flamborough—Aldershot, ON

moved for leave to introduce Bill C-234, an act to amend the Supreme Court Act.

Mr. Speaker, the bill would require the Supreme Court of Canada to hear from and consider the intentions of parliament when it considers charter challenges. Moreover, it would also require that in the event of a less than unanimous decision on a charter challenge, the supreme court's decision would not be considered binding other than to the case being heard at the time.

(Motions deemed adopted, bill read the first time and printed)