Mr. Speaker, I rise today with pleasure to speak on behalf of the constituents of Battlefords—Lloydminister on the motion that my colleague from Calgary Centre has placed before this House.
I would like to take a moment to clarify something. The member for Windsor—St. Clair read a motion in her debate and it certainly is not what we are proposing today. Our motion states:
That, in the opinion of this House, federal legislation should not be altered by judicial rulings, as happened in the redefinition of the term “spouse” in the Rosenberg decision, and that, accordingly, the government should immediately (repeal) that decision.
That is what our motion reads today; not the one that she came up with.
I believe that all duly elected members of this legislature can see the logic in the first part of the motion. We are sent here by the voters of our respective ridings to represent their wishes in this House and we all go through a lot of trouble to get here. Occasionally we disagree on how to reflect those wishes, but when we come up with legislation we expect that it is the best that can be written and passed, once again by a majority of votes, and that it will be acceptable to a majority of our electorate.
If we want to continue to fight against what we see to be bad legislation, then we do so in public. Ultimately we stand for re-election based on what the voter sees as our view of that legislative program.
Of course, no law is perfect and for the purposes of reviewing those laws and testing their fairness we have a judicial branch whose job it is to uphold or strike down individual statutes. Judges at various levels are asked to interpret laws as well, but this means it is their job to define the meaning that the words contained in the statute were meant to have, and only the meaning.
Nowhere and at no time have judges ever been given the task of putting words in that are not there now. Not only are judges not elected by popular will, they are not chosen to write laws or to create public policy with the potential to affect millions of lives or dictate the expenditure of millions of taxpayers' dollars.
Revolutions have been fought over the issue of the people being taxed without representation, but in this country we seem willing to ignore history; if not blatantly, we re-write it and hand over authority to unelected individuals or groups who have their own narrow agenda as their driving force.
The case we cited as an example of judges overstepping their bounds involves the redefinition of spouse in the Income Tax Act, but it has implications for hundreds of other statutes and regulations as well. No doubt many commentators will read into this example that Reform is on its high horse about the sanctity of marriage and the restriction of family to certain approved forms to the exclusion of others. This is a complex issue and no one is suggesting here today that people should not be allowed to choose how they want to order their lives.
The issue is whether or not judges have the right to impose on all of society an interpretation of laws written by elected representatives—and I stress elected—and debated openly in our public forum here in this House. Where the interpretation involves adding words that were never included in the statutes in the first place is wrong. Canadians should be worried about this growing tendency of courts to re-write legislation on the fly and I would like to touch on some examples which have no doubt been brought up already today.
Professor Ted Morton of the University of Calgary relates how the Supreme Court of Canada struck down provisions in the Elections Act that prohibited prisoners from voting, and it did this not once but twice. In the first instance it disallowed a blanket prohibition which may have been unfair to the odd individual, but even after the act was amended to include only convicts serving two years or more the justices felt that it was unreasonable. The only thing unreasonable was the nonsense being perpetrated on law-abiding Canadian voters by these self-styled guardians of democracy.
As Professor Morton writes:
Giving prisoners the right to vote is not only bad policy but also bad law—. To allow those who break the law to make the law is an insult to all law-abiding citizens and devalues the meaning of citizenship. It is for this reason that there is no other nation where prisoners enjoy a constitutional right to vote.
At a time when we are struggling to instil in our next generation respect for the law and a sense of social and civic responsibility, the beliefs and actions of this unelected elite who supposedly represent the law itself are undermining all of our efforts and their status as well.
Another professor at the University of Western Ontario, Mr. Rob Martin, writes in a recent issue of Law Times that it was Justice Antonio Lamer who first invented the idea that judges could read in what they feel to be missing from legislation. In Dr. Martin's opinion, Justice Lamer has even suggested that he and his colleagues could fill in gaps in the Constitution, creating new institutions whenever they felt so inclined. A little overstepping their bounds.
It must be clear to even the most hardened sceptic that the practice of allowing judges to rewrite statutes, order public money spent and change the very meaning of our language to suit special interest agendas can only mean that parliament will become unnecessary.
Society at large will be subject to the whims of a handful of individuals meeting in private and handing down decisions without ever having to justify themselves or those decisions.
Of course this is a worst case scenario and aside from having lots of other institutions break down at the same time, one would also have to believe that the individuals on the various judicial benches all had some sort of evil intent. Far from it.
I want to make it clear that I do not believe that is the case here but let us also be clear that even good intentions can lead to bad policies and bad decisions. As the old saying goes, the road to hell is paved with good intentions, and some of these judges just seem to want to get there and put in street lights and traffic signs while they can.
I have read where lawyers are complaining that they not longer have any idea what kind of decision is going to come out of a high court proceeding. Maybe this is an indication that justices have painted themselves into so many corners they cannot remember if they are half way through painting the floor black or half way through painting it white. These hints of confusion and disagreement among the justices may explain some of the recent decisions we have seen.
Look at the 1985 Singh decision or the more recent Halm decision that together create a massive bureaucracy to handle refugees. The irony is that according to Professor Morton, the UN had regarded Canada's immigration system as one of the world's best before the justices started to mess with the handling of refugees.
Now we have massive backlogs, $179 million in extra expense, millions going to a refugee industry run by lawyers, and thanks to another supreme court decision we are forced to treat convicted drug traffickers as choir boys. They are not guilty here yet.
I suppose since the immigration minister herself has apparently tossed the rulebook out the window regarding accepted convicted criminals, perhaps the justices felt it was time to rewrite the Immigration Act on behalf of Canadian people. We can see that prisoner voting and the extraordinary rights of convicted criminals as refugees in Canada form a pattern and the final piece of that puzzle was supplied last year in the Feeney decision. In that case a young man allegedly beat an old man to death and returned to his trailer to sleep off a drunken stupor.
The police had every reason to believe they had found their man and within the law as they understood it they could make an arrest. They had probable cause. Not so, said the justices. A warrant was necessary in that case although previously it had not been.
We are not talking here about innocent people caught up in an irresponsible system. It is not a question of presumed innocence being abused but of law officers on our streets and in our immigration system doing their jobs by the rules of law as set out by parliament, the legislators.
When our police cannot count on the rules, how can they expect the private citizen to respect and obey them? What tends to happen is that police are discouraged and frustrated to the point of taking matters into their own hands, leading to less liberty, not more.
I have a final word about Rosenberg. It is true that the Reform Party policy sets out that marriage exists as a union between a man and a woman and subsequently that spouse refers to the members of the opposite sex in that union, as the justice minister herself has stated in her communique.
This is what the law has said for centuries and is what the vast majority of the Canadian people believe and there are many good empirical reasons why that definition should form the basis of Canadian society for years to come. This is not exclusionary. People are still free to choose. They still have rights. If it is a question of how individuals are to share social programs to reflect their lifestyles, then by all means we will look at the benefits in a separate scenario. But let us do it here in this House where the debates can be followed by every interested party and where we can have input from a variety of viewpoints. We do not have to redefine society to suit every individual if we can simply redefine benefit.
I offer another quote from Professor Martin: “It is a principle of our law that constitutional issues should only be raised as a last resort. If a case can be resolved on non-constitutional ground, then it should be.”
We must put an end of the knee-jerk reaction that suggests every identifiable group is a victim simple in need of extra rights to go along with the ones they already have.
