Mr. Speaker, I am pleased to take part in this debate in the House. I am also pleased to hear the comments and the speech made by my friend, the member for Charlesbourg—Jacques-Cartier, who always presents an important, intelligent and sometimes somewhat provocative perspective.
This is a very important motion. The member for St. Albert has presented us with a very important issue for debate. The motion touches on a subject matter that we in the Progressive Conservative Party have discussed, most recently at a convention in Edmonton where we very much touched on the subject matter presented by Motion No. 79.
The motion clearly recommends that we change the way in which members of the Supreme Court of Canada receive positions on the bench. This is certainly a subject matter that deserves greater scrutiny and greater contemplation of change. In recent years Canadians have become increasingly concerned about the appearance that courts have encroached upon the supremacy of Canadian Parliament by reading into our laws interpretations that appear in many cases to be inconsistent or outside the intent of the laws as passed by Parliament.
This is of course a direct result of the adoption of the Charter of Rights and Freedoms. Without a doubt, the adoption of the Charter of Rights and Freedoms was the most empowering document for the Supreme Court, or its ability at least, to strike down laws passed by the Parliament of Canada.
In the past year we have borne witness to a number of cases at the Supreme Court level which have very much taken away or at the very least eroded the concept of the supremacy of Parliament and which in many cases seem to contradict societal views and values that Canadians hold dear. I need only cite the case of John Robin Sharpe. In that recent decision, individuals were permitted or in effect allowed to embark upon or invoke a defence of artistic merit when discussing the possession of child pornography. Without getting into the esoteric argument of what is in many instances a landmark case, we have to time and time again go back to the values, the principles and the wishes of ordinary Canadians when we are discussing matters of societal values.
A friend of mine who is currently practising law expressed the opinion that there can be no doubt that those who sit on the highest court in the land have outstanding academic laurels, but to the everyday, ordinary Canadian they too often seem to be lacking in pragmatic and, sometimes, practical experience to ensure that the will of the people and the will of individuals is properly represented in these decisions. That is not said with any disrespect. It is simply stating what is perhaps the obvious: that their course in life and their ascent to the Supreme Court of Canada has in essence sanitized them or distanced them from the everyday experience that Canadians are living, for example, Canadians who do not understand how the court could allow the potential endangerment of children by accepting this definition of artistic merit as a defence, which highlights that disconnect.
All of this is to say that scrutiny by members of Parliament of appointees to the highest court in the land would go a long way in determining the suitability and the appropriateness of those individuals who aspire and wish to serve, and it could possibly allow for, I believe, a greater recognition or reflection of present day values.
To many it seems that the “reading in” of the intent of laws by courts and by judges seems to be in some ways a violation of very basic constitutional principles, that is to say, Parliament makes laws, the executive implements them, and the courts in many cases naturally interpret them, but reading in to laws very often steps over that sometimes very blurry line. The root of this perception of judicial activism is that the 1982 Constitution Act included for the first time in Canada a constitutionally entrenched guarantee of civil rights through the Charter of Rights and Freedoms, which required courts to determine the constitutionality of laws in light of the charter.
Again, without getting into an academic debate about the merits of the charter, we had a system that evolved much differently. It is more in line with that of the United Kingdom where it was not so much Cartesian thinking, where everything was written down, but was more in keeping with the tradition of what was not written down, where what was not documented was acceptable.
I would say that Canada in essence has taken part of what is more like an American model, one of rights that are clearly enunciated and written down, and has tried to superimpose that onto our current system, which evolved in a different way through the British traditions of constitutional law. That is not to say that there is not a clear recognition that Canada evolved as two founding nations coming together as one. There is very much the civil code, which is also reflected in our constitutional law. Some have argued that this evolution has allowed for an erosion of the supremacy of Parliament, in which place democratic accountability has been replaced by the supremacy of the Constitution as interpreted by the Supreme Court. The motion before us would allow for greater public scrutiny and therefore I reinforce the sentiment of believing that public confidence in the process without jeopardizing judicial independence is extremely important. My colleague from Charlevoix also talked about how the perception that justice is being done is as equally important as justice actually being done, and about the confidence that therefore flows from that.
In our party's democratic reform package that was accepted and passed in Edmonton in August, we made a number of suggestions, which included a recommendation similar to that which is brought forward by my friend from St. Albert today. One was the recommendation that the name and qualifications of any person proposed for appointment by the Prime Minister to the Supreme Court of Canada shall be presented to Parliament, which shall, after debate, make a recommendation on the suitability of that nominee's candidacy. It is the way in which it is presented, I suppose, and the practical application of this that very much makes up where we go from here in adapting this motion. Further, a vote in the House of Commons should be conducted and the outcome communicated to the governor in council prior to any such appointment being made.
I do not believe for a moment that the intent of my hon. friend's motion is to follow in essence the American example, which allows for, in some cases, the spectacle of delving into every dark corner of an individual candidate's life. That, I truly believe, would diminish further the respect for and legitimacy of an appointee.
In essence what I am saying is that we have to be clear in putting certain parameters around the process that is envisioned. We do not want to, for example, draw attention to the finances or the personal life choices of an individual. There is a cost to doing so, just as there is a cost to the denigration that sometimes occurs of all professions, including our own. There is a cost to deterring individuals from taking that step, from offering to become a judge. Many in the practice of law make more money in that practice than they would if they were to accept an appointment to the bench. That is simply a reality one has to be cognizant of. Clearly we want to have the best people, the best minds, the best individuals, assume these positions. That is truly the spirit and the intent behind my friend's motion.
There is no need for a committee to examine financial records of a candidate or the financial records of a spouse. I do not believe that this type of information would be relevant. Similarly, I am sure the motion is aimed at empowering the role of judges in the country. I see a committee process as an opportunity to allow parliamentarians, acting as representatives in the stead of their constituents and Canadians, to have the chance to delve into some of the beliefs of appointees, for example, through previous decisions that they may have rendered. As I said, no one wants to see an American style of confirmation hearing.
I very much support the principle behind the motion. It is an interesting, timely and important one. I hope that we allow Canadians to further discuss and engage in this process. I am hopeful that with the new and enlightened attitude in this place we in fact will see a day when Supreme Court judges are appointed with greater input by Parliament.