Mr. Speaker, let me sound a warning. There is a myth that exists here in this place, and perhaps in the bureaucracy as well, that our supreme court is mandated in the same way as the U.S. supreme court under the constitution.
I just heard the parliamentary secretary's remarks and I must have missed something, but in fact I do not see anything in our constitution that describes the role of the supreme court and judicial independence. It only gets a passing reference. The role of the supreme court is in fact defined under the Supreme Court Act rather than our constitution.
The warning I would like to sound is this: in fact, our supreme court has no protection from parliament. In fact, we can change the role of the supreme court. We can do whatever we want with the supreme court by changing the Supreme Court Act.
Moreover, we can basically nullify the impact of the supreme court by the use of the notwithstanding provision. We do not want to do that, but I am afraid that if the supreme court's decisions continue to be interpreted in a way that is out of sync with Canadian society the supreme court will lose its credibility. It only exists in the parliamentary system because we believe in it. I believe in it here in this legislature, but it has no protection.
If we do not do something as parliamentarians to ensure that public confidence, instead of being eroded as is the case now, is enhanced in the supreme court, then maybe another justice minister 10 years from now will act in the public interest, or as a result of public sentiment, and fall down upon the supreme court and reign it in, in ways in which we on all sides of the House would not want to see. Once public confidence in the supreme court is lost it can never be recovered.
The problem is that the supreme court, when it comes to legislation, can only make a decision based on the information presented before it. If the government lawyer or the government side, for example, does not present a full case, the justices will come to a decision that is in error because they have not heard the full case.
In Marshall, the justices said that there was no representation made by the government on whether the 1760 treaty rights had been extinguished. Had the government made that representation the court would have considered it. It did not make that representation because the government was convinced that it would win just basically because the treaty itself was not applicable.
In Singh it was a similar situation. The justices there said that had the government made an argument under the reasonable clause or the reasonable provision in section 1 of the charter of rights, that might have changed its decision with respect to the seven convention refugees, but because it was not presented it was not considered.
This is why we have to come up with some sort of plan whereby if it is a unanimous decision, it is acceptable, and that is fine. If it is unanimous, then obviously there has been sufficient evidence before the court that we as the Canadian public—not just members of parliament but the Canadian public at large, if there is unanimity—can believe or have reasonable reason to believe that the court has sufficiently considered the issue and that should be the last word.
When it is a split decision, when some of the justices in their wisdom have gone on the other side of the case, as in Marshall—if we read the two decisions they are like black and white—I would say the majority of Canadians would agree with the minority decision. So we have this terrible situation arising in which there is a split decision that has been applied to all Canadians forever and the government has interpreted it to apply to all aboriginals across the country, all natural resources.
This is an intolerable situation. The answer is not just to debate. I realize the government can never accept a change such as I was proposing. Never in a month of Sundays would it have ever accepted some radical change like that, but as the members opposite have suggested, there has to be debate. I suggest that if a debate cannot be had in the House of Commons, then this is a subject matter that should be sent to the Senate and the senators should consider this for as long as it takes.