Madam Speaker, it is my pleasure to make some remarks today on behalf of our party's justice critic, the member for Pictou--Antigonish--Guysborough, in support of Motion No. 288 which reads:
That the Standing Committee on Justice and Human Rights study the process by which judges are appointed to Courts of Appeal and to the Supreme Court of Canada.
This is a very measured and very considered motion that affords the opportunity for parliamentarians to discuss this particular issue. The Progressive Conservative Party is in favour of the motion itself.
The motion would have the Standing Committee on Justice and Human Rights study the process by which judges are appointed. This could lead to recommendations on ways to change how judges are appointed to the courts.
In recent years Canadians have become concerned about the appearance that courts have encroached upon the supremacy of the Canadian Parliament by reading into our laws interpretations that appear to be inconsistent with or outside the intent of the laws when passed by Parliament. More often than not, we find that is the fault of the legislators and not a misinterpretation by the court itself. It is our duty to ensure the laws are strong and clear.
This has led to a renewed interest in how those who comprise the bench at the appellate level and at the Supreme Court level receive their appointments.
In the last year we have witnessed a number of cases at the Supreme Court level which have in effect seemed to take away from the supremacy of Parliament and seem to contradict the societal values that we hold dear. The most provocative of these is the John Robin Sharpe case. There is also the most recent decision allowing convicted felons the right to vote. The decisions of the court in those two examples stand outside, I would suggest, the interests of Canadians in terms of their societal values and outside the parameters of what the intent of Parliament was in the first place.
For example, Canadians do not understand how the court could allow the potential endangerment of children by allowing the artistic merit defence. That the courts could allow such a travesty goes beyond the rational thought process for Canadians.
All this is to say that scrutiny by members of Parliament of appointees to the highest court could go a long way in determining the suitability of those wishing to serve and could possibly allow for a greater recognition or reflection of present day values.
To many it seems that this reading into the intent of laws by the courts seems to be a violation of the basic constitutional principle that Parliament makes the laws, the executive implements them and the courts interpret them.
The root of this perception of what some individuals deem as judicial activism is the 1982 Constitution Act. It included for the first time in Canada a constitutional entrenchment that guaranteed civil rights through the Charter of Rights and Freedoms, requiring courts to determine the constitutionality of our laws in light of the charter.
Although I categorically support the charter, we all know that there are issues that have become problematic from time to time where the intent of Parliament has had to withstand that particular litmus test. Some have argued that this has allowed an erosion of parliamentary supremacy in which democratic accountability has been replaced by the supremacy of the Constitution as interpreted by the courts.
Should this motion lead to a change in the appointment process, it would ultimately allow for greater public scrutiny and therefore reinforce, I believe, public confidence in the process without jeopardizing judicial independence.
In our democratic reform package we have made a number of suggestions, including the recommendation that the name and qualifications of any person proposed for appointment by the prime minister to the Supreme Court of Canada should be presented to Parliament, which shall, after debate, make a recommendation on the suitability of the nominee's candidacy. This type of directive could also be applied to the appointment of those at the appellate level. A vote in the House of Commons should be conducted and the outcome communicated to the governor in council prior to such appointments being made.
In the past there has been the suggestion that a special committee be struck to examine those recommended for appointment. There is a need for parliamentary scrutiny and in fact, appearances before a specialized committee, provided the parameters of questions are clearly laid out beforehand. In my opinion this would be appropriate.
This does not mean the committee would have the right to examine the financial records of an appointee or for that matter the financial records of a spouse or a partner. I do not believe this type of information can be seen as having any relevance in terms of the appointee's ability to interpret the law.
This motion is aimed at ensuring the proper representation of Canadian views and values through those members democratically elected to represent Canadians and could provide a unique balance and perspective in the process of judicial appointments.
I see the committee process as an opportunity to allow members of Parliament acting on behalf of their constituents a chance to delve into some of the beliefs of the appointees through previous decisions rendered.
No one, and I believe I am speaking for the member from the NDP, wants to see the American style confirmation hearings, strictly political partisan affairs, which we have seen as in the example of Justice Thomas. I would not be an advocate on a personal basis of having the individuals who ascend to the bench itself be elected. That would clearly politicize the process in a very extraordinary way. However, there are some things we could do from a parliamentary perspective. Anything we do that mitigates the perception that the individuals on our benches have a political element would be a helpful service.
Both the Liberal Party of Canada and the Progressive Conservative Party of Canada have appointed Supreme Court judges in the past. If there is one element where we have actually made sure that we have done it right each and every time, it is at the Supreme Court level. No prime minister, regardless of party stripe, has in my view politicized our most sacred court in the land.
I spoke very briefly about a document that our membership voted on at our national convention in Edmonton in August. At that convention we reviewed a myriad of issues in terms of renewing the country's democratic institutions, issues pertaining to free votes, the roles of Commons committees, codes of ethics for Parliament and a discipline for parliamentarians, the problems with legislative federalism, ensuring that we have the power of the purse so that Parliament actually votes on the estimates as opposed to doing it in one single vote. It is a travesty that we approve the estimates, about $180 billion, with one vote with no scrutiny to speak of on a committee of the whole basis.
There are opportunities for us to review issues such as Senate reform and correct the wrong that we have in the west. It is clear that western Canada is not represented in the capacity it should be in terms of the respect of its population and the influence that they have in this country.
We have to move to an elected Senate as well and give senators the moral right to make interventions to the degree that they want to, the legislative authority to do so by being elected, democratically selected individuals.
We talked about issues such as citizen initiatives and referenda, rights for citizens to petition.
These were all issues that we spoke to. However the debate that we have before is the relationship between Parliament and the courts. I would like to read three points which I think would be valuable proposals for Parliament to consider.
First, we propose that Parliament undertake to ensure the maintenance of a proper balance between itself and the courts. We should have a pre-legislation review to ensure that Parliament clearly specifies within each statute the intent of the statute and obtains independent legal advice and charter compatibility of bills before they leave Parliament in the first place.
Second, we propose to establish a judicial review committee of Parliament to prepare an appropriate response to those court decisions which Parliament believes should be addressed through legislation.
Third, we believe that the name and qualifications of any person proposed for appointment by the prime minister to the Supreme Court of Canada should be presented to Parliament which shall after debate make a recommendation on the suitability of that person's nomination.
We do not want to co-opt an American system. When it comes to the Supreme Court perspective, we have it right for the most part.