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.