Mr. Speaker, I commend the member for Ancaster—Dundas—Flamborough—Aldershot for bringing this matter before the House today. I will be asking for unanimous consent that this matter be deemed votable and referred to the Standing Committee on Justice and Human Rights.
The member has articulated his comments very succinctly. As he indicated, this is an issue that has not received much discussion in the House or in committees. The member, in bringing this forward, does a great public service not only for the House but for the courts and for the people of Canada.
There are a number of issues that I would like to raise. I do not necessarily agree with everything in the bill but I think that is why we need to have discussions.
This bill would amend the Supreme Court Act by adding a number of paragraphs, the first being that when the question heard by the court is of a constitutional nature that the court consider parliamentary and other extrinsic materials, such as the Debates of the House of Commons, the Senate, legislatures, and law commission reports.
The second is when the question heard by the court is of a constitutional nature and the decision of the court is not unanimous, the decision should not be considered a precedent in other circumstances in which the same constitutional issue arises.
I do have some concerns with respect to the first matter. The courts in many circumstances routinely consider this type of information when it is presented to the court by one or more of the parties. The courts hold that this type of information is admissible and then consider the weight of this evidence.
I am familiar with this evidentiary issue. In my former life I was a constitutional lawyer. I was the director of constitutional law for the province of Manitoba. The legislative evidence to which my colleague referred provides an important context in assisting with interpreting the legislation. As a director, I often referred to this type of evidence, which is important in order to give the court a clearer understanding of this legislative background. This type of evidence was called a Brandeis brief. That is an American term but is utilized quite extensively in Canada.
The bill would not only allow the introduction of Brandeis briefs by counsel but, in addition, puts a positive onus on the court to consider the intent of the legislators and not simply go off on a frolic of its own, as has often been the case with some judicial activists on the court. It is a very important and positive onus on the courts which I think should be there.
With respect to the second paragraph in my colleague's bill, there is some concern that it may cause some confusion to the principles of precedent that have been established in Great Britain, in Canada and, to a lesser extent, other Commonwealth countries, and indeed the United States.
However, I am sympathetic to this provision because the intent is clearly to get the judiciary to focus on the issues before them and to attempt to arrive at greater uniformity and clarity in the judgment. This is so important given the fact that the rights and freedoms of Canadians hang on the interpretation of these words. Multiple judgments only serve to cause confusion among those who are required to carry out, enforce and obey the laws. Again, the examples my colleague brought forward to the House are very germane to the discussion.
It is ironic that when the courts criticize legislation for being vague and over broad, the courts often do so in language that is itself vague and over broad. My colleague has brought a few examples to the attention of the House. There are many more.
We read judgments of the court where they criticize legislators' language and yet the language that they use and their conclusions are so hopelessly over broad and vague that they have done nothing to assist in the administration of justice or the enforcement of laws.
The only beneficiary of these multiple types of judgments are the legal profession. I, too, am a lawyer so I include myself in this as well. However, the only beneficiaries of these multiple judgments are the legal profession who are then free to embark on a new, fresh round of litigation involving the same issues.
This type of discussion, whether the bill is accepted as such or otherwise, is very important for us to try to have the courts focus on what is important, on the issues that are in fact before them.
Generally speaking, I would express my overall support for the bill. Despite my concerns, I think the intent of the bill is to grant elected members of parliament a greater voice in the constitutional decisions that influence the laws of Canada. I would also say that the bill is in part a reaction to the phenomena of the judiciary substituting its legal and social preferences for those made by the elected representatives of the people in parliament and the legislatures.
Decisions made by the supreme court have a tremendous impact on the principles and institutions of our democracy. We want to preserve our democracy. We want to live in harmony with the courts. We recognize the very valuable function of the courts but our respective roles as parliamentarians, as those who pass laws that implement social and legal policy are interpreted by the courts in their proper legal context. We do not want that straying of the courts into the area of social and legal policy.
There are the dangers of legal and constitutional anarchy that are reflected in some of the former judgments of the Supreme Court of Canada, and I cannot think of a better example than the Singh decision. This decision certainly created difficulties for our bureaucrats and others who want to see fair laws.
The member opposite made the point about this depriving legitimate visitors to Canada who would like to see their families but are denied access because there is now an overabundance of caution that parliamentarians have to exercise because of some very misguided and confusing decisions. Perhaps confusing is a better word than misguided. I am sure the courts, in going through these judgments, are also trying to do their best. We need to focus more clearly on the real issues.
I indicated earlier that I would ask for the unanimous consent of the House that Bill C-234 be deemed votable and referred to the Standing Committee on Justice and Human Rights. Failing that, I would move that the subject matter of the bill be referred to the Standing Committee on Justice and Human Rights.
I commend my colleague opposite for bringing the matter forward. It deserves the support of all opposition members and certainly all members from the party that the member opposite represents.