Madam Speaker, the people of Lachine are very happy that you pointed out that they live in my federal riding.
Today I have the honour of speaking to the opposition motion that proposes debating the respective roles of the judiciary and the legislative branch.
The motion asks the opinion of the House on whether federal legislation should not be amended or rewritten by our judiciary. For the benefit of the House and Canadians across the country who may be following this debate right now, I would like to reiterate what, exactly, the motion says.
The Canadian Alliance motion moved by the member for Provencher proposes:
That this House call upon the government to bring in measures to protect and reassert the will of Parliament against certain court decisions that: (a) threaten the traditional definition of marriage as decided by the House as, “the union of one man and one woman to the exclusion of all others”; (b) grant house arrest to child sexual predators and make it easier for child sexual predators to produce and possess child pornography; and (c) grant prisoners the right to vote.
That is the motion we are considering today.
Democratic society depends on the intervention of several levels, such as Parliament, the executive and the judiciary.
I would like to remind members that it is not the courts that restrict Parliament, but our Constitution as well as the Canadian Charter of Rights and Freedoms. This debate on the role of our courts should not be surprising, given how new our charter is. There is no doubt that the role of Canadian courts is to interpret our laws, our constitution and our charter.
Since the charter was enacted, 20 years ago, this role has taken on a new meaning. There is nothing ambiguous about the fact that the charter has had a direct and indirect impact on the lives of Canadians.
The result is that a dynamic dialogue has been established between the courts, the executive and Parliament. I believe that this dynamic dialogue is healthy for society and democracy.
Unconstitutional legislation is regularly replaced by legislation with similar objectives that meets constitutional criteria. Interpreting the charter gives the courts a greater role in the life of Canadians.
Since the charter was enacted, the courts have certainly had a greater impact on Canadian law. Decisions handed down by our courts are based on the constitution and follow well-established rules used to interpret the constitution and legislation, not on the intellectual or philosophical preferences of each judge.
The critics of judicial activism are deliberately creating the impression that the courts are usurping Parliament's role. This has caused Canadians to wonder about the legitimate role of the courts in interpreting legislation.
Inevitably, some individuals or groups will disagree with some of the decisions by our courts. Normally, the public only becomes aware of the debate when a court hands down a controversial decision.
Canadian judges have an increasingly demanding constitutional role, ruling on issues that are fundamental to all Canadians.
I am the first to recognize that the decision-making role of judges is often not the most popular. This is inevitable, given that the legislator asks them at times to make difficult and controversial decisions on economic, social and legal matters.
For these reasons, our judges must not base their decisions on an issue's popularity or pressure from certain lobbies. This is essential for all Canadians, so as to preserve the independence of the judiciary. Its independence is one of the most important tenets of the Constitution, so as to instill in Canadians trust in our judicial system.
Despite the fact that some members of society will not necessarily agree with a particular decision, the public must understand that our judicial system in Canada makes its decisions without interference from any corner.
These attacks that insinuate that there is a problem with the judicial system and the role of judges undermine the trust of Canadians in our judges and courts. Moreover, they also have a disinformation effect on the public regarding the role of the judiciary. Judicial tribunals have demonstrated that they recognize their role within a democratic society.
It should be noted that judges must be independent and free to make decisions that are often difficult and unpopular. This independence adds to the public's respect for equity and the rule of law.
In spite of this, elected Parliaments, acting through their members—like the hon. members of this House here today—remain free to amend legislation or introduce new legislation in the public interest. Still, such legislation must also go through the test of constitutionality. Why? Because we live in a democratic society based on a constitution and, for 20 years now, a charter of rights and freedoms.
I agree that there should be an informed public debate on the role of the courts. I am happy to say that this debate is going on today in this House, as well as in society at large. In order to see through the often groundless attacks on the judicial system, the public needs to have a better knowledge of the important role of the judiciary in our Canadian democratic system.
The opposition motion presented by the hon. member for Provencher is related to judicial decisions on three issues. The first is the issue of “the definition of marriage as decided by the House as, 'the union of one man and one woman to the exclusion of all others'”. The second part of this motion concerns court decisions that “grant house arrest to child sexual predators and make it easier for child sexual predators to produce and possess child pornography”.
Lastly, the third part of the motion is opposed to judges' decisions granting inmates the right to vote.
I will start by looking at the issue of inmates' rights. According to the Canada Elections Act, any person serving a sentence of two years duration, or longer, was ineligible to vote. A court judgment found it was unconstitutional to impose a blanket prohibition on the right to vote of all those sentenced to over two years.
Let us look at that. It was in the Sauvé decision of October 31, 2002, that the Supreme Court of Canada, the highest court of this land under our Constitution, ruled that the blanket prohibition violated the constitutional rights of federal prisoners to vote under section 3 of the charter and could not be justified as a reasonable limit in a free and democratic society under section 1 of the charter. This is the second time that the Supreme Court of Canada has ruled in favour of the voting rights of prisoners.
The Government of Canada must respect the court's decision. What does that mean? In my personal view, it does not mean necessarily that all prisoners who have been sentenced to two years or more of imprisonment constitutionally have the right to vote. What that decision says is that we may not, by blanket decision, remove the right to vote for all.
I would suggest that our government should look at the possibility of putting into place a legislative system with the proper checks and balances. It would allow a judge, for example, when declaring someone who has been condemned to more than two years as a dangerous offender to hear a submission from the Crown that the judge should also order that the individual would not be allowed to vote. We could do a reference to the Supreme of Canada asking it whether that kind of limitation would be constitutional or a violation that is unjustified under section 1 of the charter? I think there is an interest in doing that.
I agree, however, with the Supreme Court of Canada that a blanket prohibition is not constitutional. A prohibition should be well defined for certain offences under specific conditions and where it is not blanket, where there is an independent decision that is made, and where the individual's charter right to vote may be limited or taken away, there must be an opportunity for that individual to speak to the issue and to defend his or her right. That is my personal opinion.
However, I would not be in favour of using the notwithstanding clause. I believe that a proposal to amend the charter of rights is not a realistic option given that such an amendment would require resolutions of the Senate and the House, as well as the legislative assemblies of at least seven provinces that have in total at least 50% of the population. The special voting rules of the Canada Elections Act allow prisoners to vote who are serving sentences of less than two years. Elections Canada has adopted those rules to collect the votes of those federal inmates who are Canadian citizens and are serving a sentence of less than two years.
To reassure Canadians, prisoners vote by special ballot. Their votes are counted in Ottawa by the special voting rules administrator. Prisoners vote for a candidate in the riding where their place of ordinary residence is located. This is not the penitentiary or the prison, but the place where they lived before being incarcerated. If there are fears on the part of some Canadians that the fact that they live in a federal riding where a federal penitentiary or prison is located and that this might have some impact on who actually is elected, there would be little risk of votes by prisoners significantly affecting the result in any given riding.
I understand that there are some members who have been elected with a one vote majority, a five vote majority and a 10 vote majority. I understand their concern if they are in a riding where a penitentiary is located. However, as I said, the votes taking place in the penitentiary are not attributed to that riding unless the inmate casting the vote lived in that riding prior to being incarcerated.
There are approximately 12,000 prisoners in federal penitentiaries. The national average of prisoners associated with each federal riding is approximately 40. It could go up. It could be somewhat less, but it is the national average. The government has already referred the matter to the Standing Committee on Procedure and House Affairs pursuant to Standing Order 108(2) with a request that the committee consider the impact of the Sauvé decision and the scope for legislation in light of the ruling.
Members have already heard a suggestion from my part as to how the committee may wish to look at blanket prohibition, but there is the possibility that we could develop a definite scheme that would meet the test under the charter. Another part of the motion deals with marriage.
Marriage is a recognition of the union of same-sex partners. As I said, the motion addresses the fact that lower courts in British Columbia, Ontario and Quebec have brought down divergent judgments on the heterosexual requirement of marriage.
These judgments were appealed and a decision was brought down just recently by the British Columbia Appeal Court, on May 1, 2003. The Ontario appeal was heard in late April of 2003, and is still pending. The date for the appeal hearing in Quebec will be set shortly.
As hon. members are aware, the three lower court decisions were appealed because the government wanted clarification from the courts on certain legal matters on which judges had given a variety of interpretations.
Marriage, however, goes beyond the strict limitations of the law. I acknowledge that, I agree with that. The Minister of Justice has said that he firmly believes that Parliament is the best place for us, as a society, to address this important issue.
On November 12, 2002, the minister announced that he was referring the issue of marriage and recognition of same-sex unions to the Standing Committee on Justice and Human Rights, He asked the committee to study possible policy approaches to this issue, to hear from Canadians and to provide him with recommendations on possible legislative reform. We are waiting for the committee report and hope that recommendations will be forthcoming.
I am a member of that committee. We travelled all across Canada, and heard from hundreds of Canadians. Now we are drafting the report and holding in camera discussions. I cannot say more on this, therefore, but the government is treating this seriously.