House of Commons Hansard #117 of the 36th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was wheat.
Jim Pankiw Reform Saskatoon—Humboldt, SK
Mr. Speaker, I thank the hon. member very much for his question. At least part of it was on issue, that is, the issue of the supremacy of the courts versus parliament.
The authority of a court should be to rule whether a law is valid or invalid, whether it is constitutional or not. The courts do not and should not have the authority to rewrite laws which they have done in this case.
Mr. Speaker, I hear absolutely rude and obscene heckling. I would like you to intervene.
SupplyGovernment Orders
The Acting Speaker (Mr. McClelland)
We have another minute for questions and comments. If you would like to finish your comment.
Jim Pankiw Reform Saskatoon—Humboldt, SK
That is absolutely pathetic.
The last thing I would like to say is that this is not singling out groups for discrimination. It is simply saying that for the entire history of our country, a spouse has been defined as a union of a man and a woman.
Jim Pankiw Reform Saskatoon—Humboldt, SK
I am saying that I am proud to stand here and defend the definition of a spouse that we have had since the beginning of the history of our country as the union of a man and a woman. Frankly, the minister's heckling is obscene and disgusting.
Bill Graham Liberal Toronto Centre—Rosedale, ON
Mr. Speaker, I am glad the member who last spoke did concede that this is an issue which we should be discussing and that we are on solid ground.
Let us talk for a moment in this House about the Rosenberg decision and what we are trying to achieve in the House. Rosenberg was a decision by one of the highest and most respected courts in this country. It was about the interpretation of the charter, the fundamental document which governs us in our democratic society. It guarantees that this legislature and all legislatures across the country will conduct themselves in accordance with the principles which govern us as Canadian citizens and as legislatures.
I believe that that charter decision was right. I believe that it was right in what it was stating about us and our society. It was right about what it was trying to do in ensuring that people were not discriminated against because from a practical point of view it does not make sense in today's world, and I will come back to that point. It is right in principle and it is right about what it is doing in society. It is right about what it is doing in my riding of Toronto Centre—Rosedale and in all members' ridings in terms of people who are living in similar circumstances who are paying taxes, leading decent lives and who have a right to be treated the same as everybody else.
To go back to the issue of which is supreme, the courts or parliament, I made this point when I asked the member my question. In my view the charter is supreme. Parliament spoke. The people of this country approved of the charter. We as legislators and the legislatures of the various provinces approved of the charter precisely because the people were aware that one day people could stand up and make the allegations of the type that are being made in this House. The people were aware that they wanted a bulwark of courts and law to stand between them and the type of rhetoric we have been listening to this afternoon.
When it is said the charter is being misinterpreted by the court in the Rosenberg decision, where were those members when we adopted the changes to the human rights act? I was in the House that night. Seventy-five per cent of the members in the House voted in favour of changing the human rights act to provide against discrimination. They represented the will of the Canadian people. When the Rosenberg judges read what we were doing in this House and they made that decision, they were saying Canadians do not believe in discrimination and that they as the courts are not in the business of enforcing it. If you read that decision—
Bill Graham Liberal Toronto Centre—Rosedale, ON
Oh, yes, you are. You have not read the Rosenberg and the Supreme Court of Canada decisions which clearly say that these measures are discriminatory and cannot be saved under section 1 of the charter. They can only be saved under section 7 if they are to be justified in a reasonable and democratic society which our courts have said they cannot.
Let me finish with my point and then we can engage in this debate further about the nature of the charter, the nature of the courts and ourselves.
Let us talk for a moment about ordinary people trying to work and live in our society and trying to create a life for themselves. These are decent everyday people who are saying “I do not understand something. I am working and paying into a pension plan. I do not get the same tax treatment as somebody else”. This is not a case about family values in the sense that the member is trying to cast it. This is not a threat to the traditional family. I do not believe that the traditional families in my riding of Toronto Centre—Rosedale believe that their existence is so fragile that it has to be built by discriminating against somebody else. That is not the nature of traditional family values.
The traditional family values in our country are ones of tolerance, of working with one another, of trying to work out our differences, of working out how we can survive together. The best employers in the city of Toronto follow these principles. I speak of the University of Toronto and other employers, but I also speak of the Toronto Sun which does not happen to be known as being a paragon of crazy Liberal values.
The Toronto Sun does its best to ensure that its employees are not discriminated against in their pension benefits. Why? Because it wants to hire the very best people. The city of Toronto almost unanimously—only two councillors voted against it on Friday—voted on the issue we are talking about today. They said they did not want as a city to be paying taxes and into benefit systems which could not guarantee that their employees of whatever nature would be treated on the same basis.
That is what we are talking about. That is what the Government of Nova Scotia was talking about when it adopted a similar measure recently. Nobody was talking about destroying family values.
I can understand why Reformers want to cloak this issue in family values. In that way they can rally around people who are frightened and who are seriously worried about what is happening in society. I am as concerned as they are about divorce rates, family break-ups and other issues of that nature. To suggest they are talking about how people will be treated economically is a mistake. I say that sincerely because I believe they are seeking to use the example of family values on the backs of other people to discriminate against them.
The member who spoke before me spoke about family values and the definition of spouse. I can remember when I was a young law student that the definition of spouse at that time would not have included common law spouses. It would not have included men and women living together for more than three, four or five years and contributing together in circumstances that were not part of the traditional family. The Income Tax Act and other acts in those days discriminated against such people.
We have learned since then that we must recognize the right of Canadians to be able to choose their own lives. I am surprised by the Reform Party which is always talking about getting the state out of the face of people and getting the government away from dictating how they should live.
I suggest the true social engineer is the Reform Party. It is not us who say do not let individuals choose their lives when they are not harming anyone and are making a contribution to society. It is Reform members when they stand in the House to say they want to social engineer us into living in a certain type of relationship or being discriminated against in terms of pensions in other benefits. That is the true social engineering of the Reform Party.
It is a mistake on behalf of Reformers to bring forward the motion at this time. They have misread the nature of the Rosenberg decision and the nature of the mood of our country and of the House. Let us live with tolerance and encourage citizens who are willing to work and live together to create constructive social units in our cities and in our rural areas and make real contributions to the country. Let them be a part of the Canadian family. Let them all work together. Let us all work together to create that type of society, not a discriminatory one.
I am reminded that I am to split my time with the member for Windsor—St. Clair.
Grant McNally Reform Dewdney—Alouette, BC
Mr. Speaker, I listened with great interest to my colleague's debate. I would like to ask him a question about how this decision might impact further on other individuals in our society.
I think of my own mother who is a widow and her sister who is just recently widowed and the fact they might be living together very shortly. Would they fit under the same definition for recognizing benefits? They would be of the same sex but not in a conjugal relationship. What about other individuals in similar situations, two friends living together or whomever else it might be?
What does my hon. colleague think about the courts setting direction and reading meanings into law? Does he agree with that or that decisions should be made in the House?
Bill Graham Liberal Toronto Centre—Rosedale, ON
Mr. Speaker, I thank the hon. member for his very reasonable question. It is something we have to discuss in the House.
My first principle is that we passed the charter. We cannot interpret the charter ourselves. We gave the courts the responsibility of interpreting the charter. The time will come when a case similar to that of his mother and aunt living together in similar circumstances might arise. They could go to a Canadian court to say they should not be discriminated against when other groups in society are not being discriminated against. They may well find the law at that point, as the court in the Rosenberg case decided, fits them within it. If that is what the courts say I will support it wholeheartedly. I will support it in the House. I will support it as a matter of public policy.
I do not think it will cost the exchequer of the country enormous amounts of money. It will provide an opportunity for people who are living together in similar circumstances and have made similar contributions to society to be recognized in our laws.
I cannot prejudge what a court would say. I can say that it is the type of issue I would be more than happy to discuss with the member. It is perfectly reasonable. If we could keep our discussion on that sort of level we would all be much further ahead in the House.
Ken Epp Reform Elk Island, AB
Mr. Speaker, I will ask the member a question with respect to the nub of the debate today, the supremacy of the legislative function.
I do not think anyone argues with the fact that the Supreme Court of Canada has the final say on judicial matters. It has long been accepted that the legislative arm of government is vested in parliament, in the House of Commons with the rubber stamp of the Senate, which is appointed, not elected and therefore of some questionable legitimacy.
If the court makes a decision contrary to the will of the people as expressed in the House of Commons, would the member take objection to it? I am speaking specifically of the issues we are talking about. In parliament we have specifically debated and in free votes have clearly rejected this premise. In the votes managed by the front benches over there things have gone the opposite way, which is also a violation of democracy.
I would like him to respond. Does parliament have supremacy in the legislative function of our land or does it not?
Bill Graham Liberal Toronto Centre—Rosedale, ON
Mr. Speaker, I answered that question when I first started. Parliament has supremacy in the legislative functions we exercise subject to the constraints we chose freely to impose upon ourselves through the charter, the supreme law of the land. The same is true of all provincial legislatures. The same is true of ours. Unless we choose to adopt the notwithstanding clause we have accepted to fetter our jurisdiction in that way, and I have no trouble with that.
I think the hon. member is operating from a false premise. He says we have spoken on the issue and the courts have gone against how we spoke. We have not spoken on the issue since parliament adopted the Human Rights Act amendments in a free vote, not imposed by the front bench.
The House will remember very well that it was a free vote. There was a lot of controversy here as to whether or not it should be a free vote. Many people felt it should not have been. The fact that it was a free vote, and that 75% of members of the House at that time said they were not in favour of discriminatory measures of the type we are hearing about today, sent a clear message to us as legislators and to the courts that the Rosenberg decision as it stands is consistent with the mood of the House. It is consistent with the mood of the country and it is consistent with the basic principles which govern us as a democratic society.
Peter Adams LiberalParliamentary Secretary to Leader of the Government in the House of Commons
Mr. Speaker, there have been consultations among the parties and I think you would find unanimous consent for the following motion:
That, notwithstanding any Standing Order of usual practice, when proceedings on the business of supply expire at 6.30 p.m. this day, the House shall continue to sit to consider the report stage of Bill C-30, the report stage and third reading of Bill S-9, the third reading stage of Bill S-3, and the consideration of Senate amendments stage of Bill C-4;
That, any division requested on the said business shall be deferred until the conclusion of the consideration of Government Orders on Tuesday, June 9, 1998;
That, during the consideration of the aforementioned business, no quorum calls, requests for unanimous consent or dilatory motions shall be received; and
That, when no Member rises to speak during consideration of Bill C-4, the debate shall be adjourned and the House shall adjourn to the next sitting day.
Business Of The HouseGovernment Orders
The Acting Speaker (Mr. McClelland)
Does the hon. parliamentary secretary to the government House leader have unanimous consent of the House to move the motion?
Business Of The HouseGovernment Orders
The Acting Speaker (Mr. McClelland)
The House has heard the terms of the motion. Is it the pleasure of the House to adopt the motion?
Peter Adams Liberal Peterborough, ON
Mr. Speaker, again, following consultations among the parties, I think you would find unanimous consent for this motion:
That, notwithstanding the Special Order of February 9, 1998, the length of speeches and the rotation between parties during the consideration of the business of supply on June 9, 1998 shall be as provided in the Standing Orders and in the usual practice of the House in considering Government Orders.
Business Of The HouseGovernment Orders
The Acting Speaker (Mr. McClelland)
Does the hon. parliamentary secretary to the government House leader have unanimous consent of the House to move the motion?
Business Of The HouseGovernment Orders
The Acting Speaker (Mr. McClelland)
The House has heard the terms of the motion. Is it the pleasure of the House to adopt the motion?
The House resumed consideration of the motion.
Shaughnessy Cohen Liberal Windsor—St. Clair, ON
Mr. Speaker, the motion asks that in the opinion of the House federal legislation should not be amended or redrafted by judicial ruling. In effect the opposition is asking that the House express an opinion contrary to our Canadian constitution which clearly sets out the respective roles of parliament, the courts and the executive.
The proper functioning of a democratic society depends on a number of key players: parliament, the executive and the judiciary. This is a classic situation where the sum is greater or bigger than the parts and when each of these three parts respects the others we enjoy a strong democratic society. I submit that the Reform Party neither respects the House nor the executive nor the courts. This is a problem.
To go back to constitutional law 101, it is not the courts that limit parliament. It is the constitution which includes the charter that limits parliament. The Canadian parliament, the Canadian government, made a deliberate choice to provide the courts with a role in interpreting, not in rewriting, not in amending, the charter and the constitution. That role includes the power to declare unconstitutional legislation invalid.
The Reformers do not believe in the charter. They have not had the nerve to say it but they would like to get rid of the Charter of Rights and Freedoms. They claim to support the equality of all citizens but they continually try to undermine the one legislative instrument which guarantees equality, the Charter of Rights and Freedoms.
Perhaps members of the Reform Party just do not understand the role of the charter in the courts and the protection of basic human rights. I must say I have heard them support the constitutional role of the courts once in a while but only when they are interpreting legislation in such a way that the courts are actually agreeing with Reform.
The new gun registry is being challenged by the courts. If the courts support Reform's point of view on the gun registry, does anyone think we will hear any complaints about the courts? I do not think so. There is no question that the rule of the courts in interpreting the charter has given the courts a higher profile and a more direct effect on the daily lives of Canadians. That is not something that they are doing arbitrarily. It is a power that we in this assembly gave to them, that nine out of ten provincial legislatures in the country gave to the courts.
While the courts exercise considerable influence on the shape of Canadian law, they do so under well-established rules of constitutional and statutory interpretation, not on the basis of philosophical preference on the part of judges, and certainly they should not be doing it on the basis of the philosophical presence of a small rump party like Reform.
I would suggest, having read the polls today, that the 12% solution that the Reform Party offers to Canadians is not the solution that most Canadians would prefer.
The Canadian people do not trust the Reform Party to protect basic human rights for good reason. Under the Reform approach people would once again live in fear of the power of the state to dictate how they live. The power of the government and the legislature would be absolute, with no protection for the rights of minorities.
In the new Canada act which it proposed, the Reform Party says it is going to ask the legislature to give it the power to review supreme court decisions and modify the law if necessary. We reviewed a supreme court decision in the last parliament when we dealt with the issue of the rape shield law. We were trying to protect people who had been abused. I would like to ask where the Reform Party was then. Did it show leadership in this matter? No. It followed along, kept its toes in the water and took its toes out. One member actually speculated at committee on why we were not trying to protect the rights of men in this bill and whether innocent men were being harassed by the courts. The Reform Party cannot be trusted.
Only the most difficult issues of national importance are heard by the Supreme Court of Canada. It is inevitable, therefore, that there will be a body of opinion that will disagree with a decision handed down by that court. The supreme court, in particular, is aware of the importance of adhering to legal standards in deciding matters and in deciding issues before it.
I am confident, and the majority of members of the House are confident, that the Canadian courts have demonstrated and will continue to demonstrate the necessary appreciation of their role in a democratic society.
The charter has in effect resulted in a dynamic dialogue, a conversation among the courts, the executive and parliament. Unconstitutional legislation is usually replaced by legislation which is designed to accomplish similar objectives in a more constitutionally tailored form. This dialogue enhances the democratic process.
In terms of recent rulings which have read in provisions to a statute, this is a remedy the courts have used rarely and only after careful examination. Again, this is part of the dialogue. Legislatures are free to respond by correcting legislation with limitations that may be justified under section 1 of the charter.
Canadian judges have been asked to assume increasingly demanding constitutional functions in determining issues of fundamental importance to all Canadians. I am the first to recognize that in doing their jobs judges and their decisions are not always popular. It seems to me that this is inevitable given that we, the legislators, gave them the sometimes unenviable task of determining some of the most difficult and divisive legal, social and economic issues of our time.
It is for this very reason that we do not want “popular judges”. Indeed, it has always been of primary importance to all Canadians that judges be independent and free to make those difficult and sometimes unpopular decisions.
As Madam Justice Rosalie Abella recently observed:
Governments necessarily prefer to rely on perceived majoritarian wishes; courts, particularly in the enforcement of minority rights, are necessarily frequently obliged to override them—.While elected governments may wait for changing attitudes in order to preserve public confidence and credibility, both public confidence and institutional credibility argue in favour of courts being free to make independent judgments notwithstanding those same attitudes.
That is the crux of it: the independence of our judiciary. It is the key constitutional principle and one which is critical for the public's confidence in the judicial system.
Although all members of the public will not necessarily agree with a particular decision, it is important that the public know that the courts will make decisions free from the interference of the likes of those people across the way and their fellow travellers.
The universal declaration on the independence of justice adopted in Montreal in 1993 states:
Judges individually, shall be free, and it shall be their duty, to decide matters before them impartially in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.
The United Nations General Assembly endorsed basic principles on the independence of the judiciary in 1985. One of the principles states:
There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review—
All democratic governments have endorsed these principles of judicial independence. In adopting these principles, governments and legislatures have agreed to constrain their power to ensure the judiciary remains independent and has the legitimacy necessary for continued public confidence in the justice system.
I say to the other side: Stop harping. Read the Constitution. If they cannot figure it out, they ought to get some advice. That is what their budget is for.