Mr. Speaker, I welcome the opportunity to speak to this private member's bill, and I commend the hon. member for bringing it forward. I think we all agree that the subject matter bears consideration in the Chamber. It is an issue of critical importance to the way we do business as a nation, to the way we engage in debate, and to the role the Supreme Court of Canada would play.
Looking at the substance of the bill for a moment, it refers to the ability of legislators to demand or to mandate that the supreme court should take into consideration debates of the Chamber and debates that may transpire in committees. That is not a bad idea in and of itself. The difficulty I have is perhaps in the way it is worded, in that it would require or demand that the courts do just that.
A previous speaker, who is a former attorney general of Manitoba and a constitutional lawyer, succinctly summed up best what is currently at work: the courts, the supreme court included, have the ability to look at legislative debates. They have the ability to ponder the background of how decisions were arrived at when legislation was drafted. They have the ability to go quite far afield. It is critical to say that in that context it is up to the lawyers who may be arguing the case, or the parties to the matter before the courts, to bring the matter forward.
It is not unheard of for the supreme court or superior courts throughout the land to have researchers delve into this field. I have difficulty with the mandate to tie the hands of the courts. I understand the background reasoning, but it is basically saying that we are important and have to be considered by them in their deliberations. There are many members, myself included, who have some difficulty with imposing that upon the courts.
On issues of constitutional considerations or charter cases the bill would require, in essence, a unanimous decision. That would be required in all cases where the charter came into play. We know that charter issues seem to be predominant in the number of cases before the courts. We would very much be curtailing the way the courts function, the way the courts have independently acted since the mists of antiquity, since the times the courts were assembled to preside over and to protect citizens from an unruly or dictatorial legislator. I will refrain from making any references to the current administration.
To say that in every case there has to be a unanimous decision troubles me. There have been many instances of important dictum or comment by the court in the context of a judge who did not agree with the majority. Looking at the circumstances and the way in which decisions are arrived at by the courts, I would say that this would perhaps unduly constrain the way judges react and interact with one another.
I am reluctant to delve into the tying of the hands of judges in what some would argue is sacred ground. The impartiality of the courts would be impugned to a degree, to say they had to be unanimous in each and every case where constitutional issues were before them.
I also recognize, and as part of the debate I think it is important to recognize it, that there has been a number of decisions. The hon. member opposite referred specifically to the Marshall case. I say to him with the greatest respect that a great deal of responsibility for the way this case was decided rests in the hands of the Department of Fisheries and Oceans and in the hands of the department of aboriginal affairs.
The Marshall decision, which incidentally came from Antigonish county in Nova Scotia, dealt with native fishing rights as they pertain quite narrowly to eels. What we saw resulting from the Marshall decision has opened a huge debate in the country. An enormous chasm has occurred when it comes to natural resources, because we know this case will have application or that at least there will be an attempt to apply it to all natural resources and to land rights. We have already seen references to the case throughout the land where native rights are currently before the courts. That is not to say that because of what transpired in the Marshall case we should react quickly in somehow rejigging and reconfiguring the way the courts operate. I agree that it is an important issue that must be debated. Perhaps what we need to do as a matter of course is look at the entire Supreme Court Act.
Very much behind the sentiment of the hon. member is the idea that we should be looking at the way the courts have currently construed their powers. To a large extent we have seen instances where legislators were sidelined or completely put to one side and instances where, the Chair will recall, the supreme court has told legislators that they must come back and fix something, even within a specific time period. We have known instances where legislators did not comply, much to the chagrin I am sure of the Supreme Court of Canada.
The implications for any changes to the Supreme Court Act are long term. For that reason alone I do not think we can trundle into this exercise with any degree of levity. We must look very carefully at what we are mandating the courts to do, because again there are very distinct roles. The hon. member from the Bloc Quebecois set out quite succinctly the different roles that are to be played by legislators, the executive branch and our courts, our judiciary.
The Marshall decision is probably not the best starting point when we enter into this exercise because, for any number of reasons, emotions are certainly running high at this point. I have one correction for the record: Burnt Church is in New Brunswick, not Nova Scotia. I say that with the greatest respect.
The bands are currently facing a situation, not to get off into a separate debate, where the interim agreements will expire this month. That certainly brings a real sense of urgency to resolution of the issue of natural resources and access to them.
I also agree with the commentary in the debate about the language that is often used and the need for clarification. We saw that occur in Marshall. We know that rulings which contain specific references to things such as moderate living are open to a great deal of interpretation and misinterpretation.
Another case comes to mind where the supreme court talked about exigent circumstances in police pursuits. It resulted in a great deal of consternation in the law enforcement community. We have seen ample evidence of supreme court decisions where legislators are either implicitly or very directly called upon to come in and fix what their decisions will result in because of the confusion that can reign from what the supreme courts have handed down.
We cannot, I would suggest, take out certain sections of the Supreme Court Act and attempt to try, in what is often an old legal maxim, to do through the back door what one is prevented from doing through the front. We cannot try to somehow, in a roundabout way, get the courts to behave differently.
In a broader context, either at committee level or perhaps in some sort of broader study, we must try to examine the role of the courts vis-à-vis elected officials who, I would suggest and certainly many in this place would agree, have a much broader mandate. They have the same constituency, but a much more specific mandate as to what their role is to be.
I commend the hon. member for bringing the matter to the floor of the House. This is the proper forum for the discussion. I am reluctant to support the legislation in its current form, although I realize that it is brought forward for debate and to flesh out a problem that currently exists in the courts of Canada. We must preserve the independence and the separate roles and look at the issue again perhaps in a broader circumstance in the near future.