Mr. Speaker, in this context I would like to ask a rhetorical question: in a democratic society, who should ultimately have the final political power and authority to make decisions?
In 1982 Canada made a major change. Up to that time we believed in the principle of the supremacy of parliament. We believed that the 301 men and women who were elected to parliament every four or five years would ultimately have the final say on our laws in Canada.
In 1982 we changed that. We brought in a constitution that included a charter of rights. The charter basically and essentially transferred the ultimate power and authority to our judges. That is like giving the referee in a hockey game the rule book and telling him that if he does not like the rules he can change them as he goes along; it is like giving the umpire at a baseball game the same kind of power.
Three premiers, all lawyers at that time and two of them Rhodes scholars, Mr. Blakeney, Mr. Lyon and Mr. Lougheed, saw great danger in this change. As a condition of adopting both constitutional changes, they insisted that we have a safeguard in our constitution. That safeguard was the notwithstanding clause. The notwithstanding clause was there to give parliament the final say on our lawmaking abilities in this place.
As a result of the federal government's unwillingness to exercise the notwithstanding clause, we have had a Supreme Court of Canada that has made some fairly major astounding decisions in our times, which have had tremendous fiscal impacts on Canada. I am talking about things that could have caught the Minister of Finance totally off guard, costing $5 billion, $6 billion or $7 billion a crack. Its decisions have had major economic and social consequences. I could mention specific cases but I do not think there is much merit in that. I will, however, mention the Singh decision, which has had a radical impact on immigration law in Canada.
What I am getting at is that if we are going to have this system in the future, we need a strong independent system for appointing people and we have to make sure that the people who are appointed are people with very high standards of integrity and honesty. That is very important.
We have already talked about some of the appointment criteria. I can give an example from my home province. It is well known among lawyers that one of the larger law firms had a lawyer in its employ that it did not really want or like, and since it was its turn to send in a name, as the member from Calgary mentioned, it sent in that lawyer's name. Unfortunately the public had to live with that judge for 20 years and with his decisions. There are a lot of inadequacies in the appointment process.
In terms of salary and benefits, I want to emphasize the point that service above monetary rewards should be the compelling reason to serve on a court of appeal or the Supreme Court of Canada. I know many noble and honourable lawyers who would find it a great privilege to be asked to serve on the Supreme Court of Canada. I have often wondered why we have to go around seeking applications from people. Why we do not seek out these folks and make sure that we get the very best on our Supreme Court of Canada? If we have a Gretzky equivalent in the legal community, why are we not seeking that person's service on our Supreme Court of Canada? I do not think money would really be a major problem with these people. They would see it as a great privilege to serve on the court.
I am a bit concerned that the court will ultimately have the power to decide whether this independent committee is independent enough. If it finds that it is not independent enough, we will receive some court decisions that sort of imply or suggest that the court would ultimately have the power to decide what are fair enumerations and benefits.
What is very important to note is that when the public interest cries out for action, it is parliament that has the final say on what our laws should be not the judges. If I go back to how I would like to see things operate and I would use the analogy of a hockey game. The league owners and teams decide on the rules. They create a rule book that they give to judges, who are called referees and officials, and they would decide off sides and whether its a goal and so on but they do not make the rules.
We are in a very difficult bind because we have given tremendous power to a handful of people at the court level. I wonder where this mentality came from in 1992. It seems to me that implicit in the whole argument of shifting from the supremacy of parliament to the supremacy of the Supreme Court of Canada was that there was something dangerous about democracy. It implies that to elect men and women to our system of government and have them make decisions is dangerous.
That sort of belief implies that because a person has spent a lot of years as a lawyer and a lot of years doing partisan things for his or her political party, and fundraising seems to be one of the things that lawyers are really good at in the partisan sense, that this somehow qualifies the person as an elite. It further implies that the elite know better than the democratic will of the people and that nine or ten people should have the final wisdom on decisions on public policy.
I find that whole notion very disturbing. Some people would suggest that if we took that far enough it would get us into an authoritarian type system. It would perhaps be a more benevolent type of dictatorship than that of other countries. However these folks are not elected. They do not have to face the media scrums after a day in parliament. They do not have to come into parliament and be accountable for their actions and decisions. They are pretty immune from it. The finance minister has to determine how he pays for their decisions and other ministers have to determine how to deal with the economic and social impact of the decisions. A lot of times it is like trying to drive a square peg into a round hole.
I think it would be far better if those decisions were made by our elected people. We have a lot problems with our elected system but, as Sir Winston Churchill said many years ago, it is a terrible system of government but it is better than all other forms of government invented by now.
I would be interested to hear what other parliamentarians think about the mentality behind the transfer of democratic power from our elected men and women to an appointed group of eight or nine people. Implicit in that appointment is that they are smarter and wiser than the public's will, as expressed through our election process, and that they are a better judge of deciding what is good for society.
My own view is that it is a liberal value. During the election we were going to debate values, but one of the legacies of liberalism is that it is better to have elites make the decisions for people. It is dangerous for people to make decisions for themselves. It is also dangerous to have elected democracies because these people are not quite smart enough. I recall one prime minister saying that we were nobodies when we were two feet out of the House of Commons. He had a lot to do with some of this stuff, if I recall things correctly.
It seems that some individuals had some good intentions. They were going to create a superior system of government, our parliamentary system and our present way of doing things. I refer to the words of William Shakespeare who said something that I think is very relevant to this topic, “The road to Hell is paved with good intentions.”
I believe the person responsible for this fundamental change in our system of government had good intentions. I am not exactly sure that living with the results of this system are really showing the sort of things we want in our society, such as accountability and good public policy. Judges can make very major decisions and simply walk away from it, leaving people sitting in parliament trying to deal with the carnage and the damage that results from these sorts of decisions.
I could give some very specific examples in recent times of those kind of decisions. The Marshall decision on lobster fishing rights off Nova Scotia would be one that is very current to me. That decision will cost us a lot of money and it will cause a lot of unnecessary conflict and division in our society. We will need to tackle those problems. The people that made those decisions in the Supreme Court of Canada are not accountable for those decisions.
I have major reservations about the bill. The Supreme Court of Canada said that if it had independent commissions to decide salary and remuneration, it would accept that. We should bear in mind that the Supreme Court of Canada will decide whether that is independent enough for it or not. With some of the cases involving provincial court judges, they superimposed themselves in there and have become the decision makers for their salary and remuneration. In Saskatchewan, there was a fairly significant increase in provincial court salaries because of this sort of approach.
Anyone who would review that process would know it is flawed. How can we have people with that much power decide salary and then use something like judicial independence as an argument for this sort of thing? Does somebody seriously think that our judges are in trouble because they are receiving $190,000 a year? Does anyone think that they do not have a roof over their heads, cannot put three meals on the table or take care of themselves, and so on? That is utter nonsense. They are in the top 1% of the country. Most Canadians would just love to have that level of remuneration.
I think the salaries for our judges have always been adequate. That is not a problem. I think it is absolute nonsense for judges to imply that somehow their judicial independence would be usurped by having salaries decided by somebody outside their own control.
They would have control in the final run as to what would be an independent committee. Parliament would not have that decision. Like all other things in society, with a government that does not wish to use the notwithstanding clause they would have the final say.