Madam Speaker, the hon. member hits on an extremely important point. When I went to law school, and this was pre-Charter days I am afraid to admit, the issues were simply that a judge was there to interpret what was in front of him and to build on precedents that existed. That was the circumscribed area in which judges could deal with the cases in front of them.
With the advent of the charter, we have opened up that whole realm of interpretation and we have developed this concept of the living tree. This living tree sometimes, one would think perhaps just exactly what a judge wants it to be at any given time, allows a judge to interpret not only what he thinks Parliament meant but also what he thinks possibly the law should be.
That brings us four-square into the concept of the supremacy of Parliament. In some respects Parliament does have the “trump card” in the notwithstanding clause but it is a very crude idea and something that any government would be quite reluctant to use.
We are faced with the reality that Parliament may put forward a piece of legislation. However once we hit on section 15 and it is found to be discriminatory, whether it is intentional, we end up in a section 1 analysis and if it cannot be justified, then that particular law does not survive.
The hon. member asks a very important question and I think in some respects that is the root question that is behind this motion: Is Parliament still supreme? I think there are a lot of us saying that if it is supreme, it is not perfectly obvious that it is.