I will be brief.
I would like to respond to my Conservative colleague. I want to emphasize my appreciation for the fact that he took the time to read the motion. That's what we have to do when serious motions are put forward.
Here's how I have understood the parliamentary secretary's and Mr. Rathgeber's statements. They say that, in any case, the courts would be there to do their job if ever an error was made. That reminds me a bit of what would happen when I was working in labour law and a collective agreement was being drafted. Some people around this table may not agree with me, but I have always said that, when we produce something, we have to make sure it's as perfect as possible, even though perfection is unattainable.
Canada's legal system has rules. Jurisprudence and various other things provide us with tools, unless something totally new is created, in which case we have to go off the beaten track. I can understand that we may have a bit more difficulty in such cases. The best example is that of experts who talk to us about bills introduced by the government or the Senate and say that we have problems. You will tell me that this is their interpretation, but they say that we have problems when it comes to the charter, and that a given provision does not comply with the charter.
That's exactly the type of discussion or debate the Minister of Justice faced when section 4.1 was being studied and Department of Justice experts issued an opinion. I don't think it's appropriate to say that, in any case, the courts will do their job when we get to that stage. On the contrary, we should ensure, to the extent possible, that people subject to trial—those for whom we work, Canadians—do not have to go through the courts to find out whether or not the legislation complies with the charter.
There have been some challenges, and I don't think the fact that they were successful before the courts means that the courts are interfering in the wonderful world of legislative authority. All they are doing is restoring the right. The committee and House parliamentarians should have seen that. Section 4.1 was adopted so that people wouldn't have to go before the courts.
I will tell you the same thing I told my clients when we were drafting a collective agreement. I would tell them that, if I did my job properly, they wouldn't see me again, and if I didn't do my job properly, they would see me again, as all kinds of things would be unclear and there would be grievances arising from interpretation. If we do our job as legislators properly and ensure that our laws are consistent with charters and with the division of powers under the Canadian Constitution, in principle, there shouldn't be any problems.
I find our approach to be a bit casual, and I think we are trusting somewhat blindly if we think that, in any case, the courts will ultimately take care of things. As you and I know, anyone who has had to go before the courts knows how expensive that is. We are familiar with the issues in terms of access to justice. I am not sure I want to say to Canadians that, since the legislation may be illegal, all they have to do is go before the courts and challenge its legality under the charter.
The legal action taken by Mr. Schmidt may be sounding the alarm. That gave us all a bit of a jolt and made us wonder whether the tests are really being carried out properly or, as the parliamentary secretary said, whether the system has always worked well over the past 30 years.
We know that many appeals under the charter have been successful. I would like to say to the parliamentary secretary that all those appeals mean something. If I was the lawyer in charge of the case, I would be asked why I had said this matter made sense, yet our case was criticized by the Supreme Court of Canada. Don't tell me that, over the past 30 years, no appeals under the charter have been successful before the Supreme Court of Canada. On the contrary, we could come up with a whole list.
That doesn't mean that Department of Justice experts won't sometimes say so. I have prepared many such legal opinions, where we say that a given theory makes sense and state what we think is important, but where another argument is possible. At least, we know that the exercise is being carried out.
I'm worried about the fact that we are somewhat indifferent. That concern has made me suggest that the committee view the matter from another angle. I don't think it's enough to say that this is what the law stipulates, this is how things are done, and that, for an argument to pass the test, it must be bona fide and reasonable, likely to be heard and accepted by the courts. Usually, the courts will accept and hear just about anything submitted to them. However, that doesn't mean a careful analysis has really been carried out pursuant to the charter.
I think our obligation is not to rely on the courts in the future, as that does not necessarily contribute to Canadians' well-being. We have to do our work properly from the outset in order to avoid that kind of a situation.
