Mr. Speaker, I appreciate the opportunity to speak on this private member's motion put forward by my colleague from St. Albert, an experienced and fine parliamentarian himself. I also appreciate the comments made by my two colleagues who spoke after the member for St. Albert.
I particularly agreed with the comments of my colleague from Pictou--Antigonish--Guysborough and specifically with his concerns about us not going to a U.S. style system. He is quite right about that. If we look at the American system and its most recent experiences with the senate confirmation process of supreme court nominees, I think he is quite right. We can look at the example of Robert Bork, when he was nominated by President Reagan and what he went through and how the court became so politicized in that process, and the example of the confirmation process of Clarence Thomas and how that became so politicized.
I think of the American example that my colleague raised. As we all know, yesterday was election day in the United States. In the state of New Hampshire, Jeanne Shaheen, the Democratic incumbent governor, was running for the senate against John Sununu. John Sununu's father was chief of staff to the first President Bush. She had a campaign rally on Monday night to try to get out the vote for the Tuesday election. It was quite something. She was asked by reporters if she were elected to the U.S. senate what she would do when President George W. Bush puts forward nominees for the Supreme Court. She said she would stand firm on a woman's right to choose and would not vote for the confirmation of any justice who does not agree with her view as a legislator on Roe v. Wade, which is the enabling legislation to allow women have the right to choose to have an abortion in the United States.
I found it very fascinating. Because of the confirmation process it has become politicized. It goes to the United States senate and the United States senators themselves at the judiciary committee vote up or down on whether or not people become justices of the U.S. supreme court. It was fascinating that somebody running for office, in order to get out the vote, politicized the process itself by saying that regardless of the person's qualifications, regardless of who the president puts forward, regardless of what that person's background is and so on, she as an individual senator would not vote to confirm that person because of that person's view on this one previous court decision. From what I understand Governor Shaheen is not a lawyer and has never been a justice herself, but it shows that the politicization of the courts in the process can be very dangerous, which is why the language of the motion put forward by my colleague from St. Albert is very helpful.
Specifically, the motion states:
That, in the opinion of this House, appointees and potential appointees to the positions of Justice of the Supreme Court of Canada and Chief Justice of the Supreme Court of Canada should receive parliamentary scrutiny, and that Standing Orders 110 and 111 of the House of Commons should be amended to include such appointees and potential appointees.
It is important to note that Standing Orders 110 and 111 referred to in the motion are those which currently allow the vetting by a House of Commons standing committee of certain individuals who have been appointed to non-judicial posts. In many ways, the motion is merely extending a principle already been accepted by the House to encompass one of the most influential positions in the land. The power, the role, of the Supreme Court over public policy and in the lives of Canadians is immense.
The Charter of Rights and Freedoms and programs like the Court Challenges Program give Canadian citizens an extraordinary power, one not found in many other democracies. Citizens can ask the courts to declare illegal a law that has been passed by the Canadian Parliament. In a system of checks and balances, this is one check that truly puts power into the hands of everyday Canadians.
The Canadian Charter of Rights and Freedoms is not just some legal codification of some legal rights that we think might be a good idea. There is a principle behind any bill of rights, be it the American bill of rights, the bill of rights that Voltaire was talking about, or the Canadian Charter of Rights and Freedoms. The principle behind a bill of rights is that we try to codify natural law: that human beings have some rights. No matter who is elected, no matter what their campaign platform is, no matter how many people vote for them, human beings have core human rights that cannot be infringed upon no matter the democratic choice and the will of the majority. The fact that a citizen can take a political decision made by the state and politicians straight to the courts and say “I think this violates my charter rights” is a power that is unheard of in the vast majority of countries on this planet.
But here is what is interesting, and I have to make this point, which partly fuels the concerns of many people in our country. I have to make a point here of mentioning Professor Ted Morton and Professor Rainer Knopff, two professors at the University of Calgary who have done extraordinary academic work in studying Canada's judicial system and how it can be cleaned up to be more reflective of not necessarily a democratic society but a society that lives and understands the rule of law and the balancing of that supremacy of Parliament.
With that in mind, on the Supreme Court of Canada website one will find an address by Chief Justice Beverley McLachlin, where she says the following:
Twenty years ago, Canada came of full constitutional age with the patriation of the Constitution and enactment of the Canadian Charter of Rights and Freedoms. The Charter is a uniquely Canadian document and a product of our distinctive history. It is also the product, not just of politicians, but of ordinary Canadians who worked tirelessly to ensure that it would reflect their vision of Canada...
Here is the punch line:
Accordingly, Canadian courts, including the Supreme Court of Canada, must constantly strive to reflect these values in their decisions.
What Chief Justice McLachlin is implying is that the Constitution is a living, breathing document, that it is not a set in stone, firm constitutional model that tries to codify human rights, and not just legal rights, and that her position as a supreme court justice, and indeed as the head of the supreme court, is not to take legislation from the Parliament and hold it up against the Charter of Rights and Freedoms and ensure that people's core rights are balanced with the political rights established in legislation. She says that the Supreme Court of Canada, “must constantly strive to reflect these values in their decisions”. What she is suggesting is not an objective legal role for the courts but in fact a subjective role, where the court gets to decide and ensure that the law is passed by the Parliament of Canada and ratified by the Senate, and that these laws reflect the values that were inherent in the individual charter.
That kind of attitude is frightening. It is a legitimate position for somebody to have, particularly somebody who is aspiring to become a federal judge or a Supreme Court justice, but it has to be challenged. There are legitimate reasons why it is a frightening position.
This motion and the idea behind this motion would be to have these Supreme Court nominees come before a committee to challenge them on that view. Is the Constitution in fact a living, interpretive document or is legislation interpretive that should be held up against a Charter of Rights and Freedoms that codifies the rights of people and legislation gets interpreted and not the Constitution itself? It is a very delicate balance.
The concerns that a number of Canadians have about the active nature of a supreme court, a supreme court looking at the subjective nature of legislation, is that it sees its role as an evolving role in protecting the values that were inherent when the Constitution was drafted in 1982 and imposed on Canada almost unilaterally. On se souvient aussi. These are legitimate concerns, not abstract academic concerns. These are concerns that have a real impact on public policy.
In recent years, Canada's Supreme Court has had to deal with a variety of tough issues, ranging from the clarity act, to same sex couples having more rights, to cigarette warnings, to the status of school boards and to the religiosity of school boards. These are real concerns. The courts having unilateral power over these kind of decisions is a frightening thing.
We hear conversations and see rumours in the newspapers that the Minister of Justice is considering bringing before the House legislation to change the definition of marriage. Basically there are four ways that the federal Parliament can go. First, we can continue the status quo, which is that marriage is the union between one man and one woman, to the exclusion of all others. Second, we can amend the definition of marriage to include same sex couples. Third, the governments can get out of marriage altogether and say that if two people love each other regardless of who they are it is none of the business of politicians or government to get involved in their lives. Fourth, the government could go down the road of establishing some sort of civil union, which is in essence an expanded concept of the legality of marriage. Four very different public policy perspectives, four very different tracks that we can go down, but that is a debate that should happen in the House of Commons.
The institution of marriage is historic. The institution of marriage and its impact on our social culture, on our economy and on how we organize ourselves as human beings in communities, is a fundamentally difficult question to address. However that question should be reflected here in the House of Commons. It should be addressed through free votes in the House of Commons. I would say quite honestly to the House, I believe, as only I can speak as a Canadian Alliance member of Parliament, that there would be a broad diversity of views on that issue within the official opposition.
Those are the sorts of issues that need to be addressed in the House. We need to vet Supreme Court justices to ensure that they understand the proper legal role of the courts, the proper legal role of the House of Commons and the proper legal role of the bureaucracy, if they have different perspectives on those things. Those things need to be understood, need to be vetted and people need to be accountable.
I applaud my colleague for St. Albert for trying to establish a greater transparency in trying to bring some clarity to this issue. It is an important motion. It puts it in the right direction. I appreciate his motion and I fully support it.