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.