moved that Bill C-234, an act to amend the Supreme Court Act be read the second time and referred to a committee.
Mr. Speaker, it is a pleasure to rise to speak to the bill today. I am only going to address one-half of the bill because the motion is not votable and there is only one hour of debate. So in the interests of time I am going to only look at the second clause of the bill that would limit the application of charter decisions by the supreme court. If a decision is not unanimous on the part of the supreme court judges, then the case at hand would apply only to the case at hand and would not be broadly applied as is the usual case now.
The bill arises from the fact that so often when an appeal is brought before the supreme court that has charter implications, when the supreme court rules, whether it is a unanimous decision or a majority decision, the government, Mr. Speaker, usually applies its decision universally. It takes it as a direction in law and a charter direction, and it usually has enormous impact on Canadian society.
My concern for this issue arises out of the Marshall case about two years ago. In that case, Donald Marshall and several other aboriginals were caught by fisheries officials with 464 pounds of eels that they had taken out of season and were selling. They had even used an illegal net. In other words, these individuals were poaching.
They were brought before the courts and would have been subject to a considerable fine but their defence before the lower courts was that they had a right to take the eels under a treaty of 1760 between the British crown and the Mi'kmaq. That went through two levels of courts, the provincial court and then it was appealed. Finally, it came before the supreme court.
Members must bear in mind that the convictions were upheld by the two lower courts. However, when it came before the supreme court, seven justices sat, five ruled in favour of the accused. In other words, they overturned the decisions of the lower courts. Two ruled in favour of the lower courts and upheld the conviction.
Members have to see how it works. The appeal process that goes to the supreme court chiefly consists of bringing before the court, and the court accepts the particular case at hand. The supreme court reviews all the evidence of the lower court and allows one hour for each side to present its case. There is a certain provision in time for interveners who the supreme court can decide to allow to intervene or not. All in all the entire decision making process takes less than three hours in open court and for the most part the deliberations are done in camera with the justices using their law clerks to prepare a digest of the evidence. They make their decisions based on that.
Where in this place it may take many days and many levels of debate in order to pass legislation; first reading, second reading, report stage, third reading and the Senate. In the case of the supreme court, it is a matter of only a few hours of open court and the rest by law clerks and individual justices themselves.
In the case of Marshall, this decision to uphold the rights of Mr. Marshall and others to gather the eels out of season, it is not really the problem of how the justices came to that decision which concerns us here today. If we put 100 people in a room and asked them whether they would agree with the decision in the Marshall case, I think we would probably find only 3 or 4 would.
The implications of the Marshall case were that it allowed aboriginals to not only fish out of season but to fish for commercial reasons, for sale. The five supreme court justices who upheld the appeal cited reasons that we find difficulty following. They said it was the honour of the crown. They had to read into the treaty of 1760 that which was not there because they had to put it in an historical context. They admitted that they were doing something historians were expected to do. They were at odds with historians but they took it upon themselves to be the historians and set the expert testimony aside.
The justices also admitted that while they did not hear all the particular testimony, they still felt that they could come to this conclusion regardless.
They even made a political decision. They said in their conclusion that the aboriginals were entitled to make a moderate livelihood and they said that regulations could certainly be made to make this work. Where we in the House would spend days to devise a policy with respect to the fisheries, just to devise a policy, and have extensive debate to establish the rules pertaining to the fisheries, the five judges in the Marshall case determined that it could be done just like that.
I do not want to get into questioning the decisions of the justices. The point is, Mr. Speaker, is they came down with their decision with the two judges dissenting and the two judges who were dissenting simply said that the treaty of 1760 applied to 1760 and we could not apply it to the present. We would agree with that. So they rejected it and five accepted it.
That is not the issue. What happened right after that, which concerns us here and is the reason for this legislation, is immediately the Department of Fisheries and Oceans issued an internal memo. One of the clauses of the memo about the implications of the Marshall decision, which I remind members was a split decision, said:
While the immediate focus is on access to the fishery, the judgement will have application to other resources. Development of a comprehensive response will involve many departments of the federal government, and provincial governments as Treaty beneficiaries pursue harvest of wildlife and timber.
In other words, Mr. Speaker, the federal government immediately saw in Marshall a broad application to aboriginal rights to all resources to not only gather it for sustenance, but to gather it for a moderate livelihood, in other words, for sale. It is no wonder that a few days later the Minister of Indian and Northern Affairs came out publicly and said that this was a decision that was going to entitle aboriginals across the country to have special rights to natural resources, to not only exploit natural resources but to sell them.
We know what happened. There was a terrible conflict around Burnt Church in Nova Scotia. That conflict continues. There has been a tremendous unease across the country with the thought that there could be a situation where aboriginals have rights to natural resources and rights to the exploitation of natural resources based on race alone.
It did not need to be that way. In fact, there is nothing in Canadian law anywhere that says that a decision of the supreme court, any decision for that matter, has broad application when it is a charter decision. It just does not exist. What has happened is that a myth has been created since the charter was passed in 1982 that somehow the supreme court in Canada has the same context in the interpretation of laws and the application of laws as in the United States.
In fact this is not so at all. For the supreme court, or high courts as we have, interpreting constitutional law, is basically something that has evolved since the second world war. For the most part, most countries prior to the second world war functioned on a parliamentary democracy system. What has happened since the second world war, and probably as a result of the second world war, is many countries, including Canada, felt there should be some restriction on the opportunities of the executive. Thus high courts were implemented, including our own.
Nothing in the constitution that was brought back in 1982 actually defines the role of the supreme court. There are a few passing references only, but nothing dictates that the federal government should interpret split decisions of the supreme court as being broadly applicable across the country. We do not need to go down that route. One of the sad things about this entire situation is that there has never been a serious parliamentary debate examining the role of the supreme court's decisions and its application to charter law and how charter law should be applied to Canadians. I think it is high time that this situation was brought forward.
The other classic case involving the supreme court, just to give another example of what has happened, is the charter was passed in 1982 and in 1986 a challenge was brought before the charter that led to the Singh decision. It involved seven convention refugees who were all in Canada illegally. One in fact had come in on a visa with a forged passport. The refugees were caught and the court ruled, after various levels had suggested that they should be expelled without a full hearing and according to the legislation at the time, that they were entitled to a full hearing and upset the lower courts' rulings.
What a lot of people do not realize is the Singh decision was not a unanimous decision. Three judges only found evidence in the charter that suggested that the existing immigration law was not charter compliant and was unfair to the accused. The other three justices came to their decision based on the Canadian Bill of Rights.
It is very important to understand that the Singh decision was a split decision. Indeed, the three justices who chose the Canadian Bill of Rights to argue that the seven should have a full hearing specifically said that they were not considering the charter in their decision. There we have a classic example where a split decision of the court has had manifest impact on Canadian society.
Not only has it made it very difficult for Canada to control aliens coming into the country who perhaps have criminal connections or whatever, but every one of us in the House has a problem with people seeking visas to come to visit their loved ones and relatives in the country. Every office has this problem. What we need to do is turn those people back because according to the Singh decision there is every possibility that if they decide not to return according to their visa then they have recourse to due process. Tens of thousands of people are denied entry into Canada because of the Singh decision.
It is very important to realize that the Singh decision was confusing. The three justices decided on the basis of the charter that the seven accused were entitled to an oral hearing. However it was the other three, in terms of the Canadian Bill of Rights, who cited section 2(e), which said that no law should “deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of the rights and obligations”. It was that section which led to the problem where we are turning back all these visa applications. It is not a charter problem at all. It is the problem of the interpretation of the Canadian Bill of Rights in the Singh decision.
The irony is that at the beginning of that section it says that there is a notwithstanding provision in the Canadian Bill of Rights, that the government has the choice under the Canadian Bill of Rights to suspend 2(e) in special circumstances, and yet the government has never done it.
The problem is simply that it is not the supreme court with which we have difficulty. It is not the charter with which we have difficulty. The problem is we have difficulty with successive governments that have interpreted the decisions of the courts more broadly than anything in law requires them to do, and indeed more broadly than anything in parliamentary tradition that Canada, the United States or Europe requires them to do.
We need to review the situation with respect to how government interprets the decisions of the supreme court. It is high time that parliament, both the House of Commons and the Senate, took a look at what the government is doing and set rules whereby, in my view, it should be only unanimous decisions of the supreme court that should be broadly applied, not split decisions.