Mr. Speaker, the motion asks the House to call upon the government to bring in measures to protect and reassert the will of Parliament against decisions of the courts that certain members do not agree with.
With the greatest of respect, I believe this reflects a fundamental misunderstanding of the role of the judiciary in our democratic process. In the proper functioning of a democratic society, it depends on a number of key participants. Under our Constitution, Parliament, the courts and the executive form those key participants. We enjoy a strong and free democracy because the sum of those three parts is greater than the whole.
It is also important that we maintain a healthy and continued respect among Parliament, the courts and the executive. That respect is undermined when parliamentarians engage in unfounded attacks on the judiciary and judicial institutions.
Canadians are justifiably proud of their Constitution. They are proud of the rights and freedoms they all enjoy and which the Constitution protects. They are also proud of our judiciary which has the difficult and sometimes unenviable task of deciding when those rights and freedoms have been violated.
Our judicial institutions are among the finest in the world. Other nations look to us as an example for developing their own judicial systems. Canada is a leader in preserving and promoting judicial independence. I for one, who has had an opportunity to see other countries struggling with this question, want to ensure that the tradition continues well into the future.
Our system of justice, indeed our democracy, is based on the rule of law. The rule of law simply cannot exist without a healthy, vibrant and independent judiciary. We do not have to look much further than the evening news to understand what life is like in countries where there is no independent judiciary, where judges are pressured to toe the government line. I know that is not what Canadians would want to see happen in this country.
The Constitution is the supreme law of our country. Since 1867 we have called upon the courts to interpret and apply the Constitution and they have done so, striking down laws that offend federal or provincial jurisdiction. Since 1982 we have called upon the courts to interpret and apply our Charter of Rights and Freedoms. In many ways this task is different because it involves consideration of the fundamental values and beliefs that we hold dear. However, in many ways the task is the same.
The courts are interpreting the supreme law of our land and applying it in the best way they know how. This is a difficult job. It is not easy trying to figure out what equality, or freedom of expression, or fundamental justice mean.
We have to remember that the courts did not ask for this task; we in this Parliament gave that task to them. Therefore it is simply not right for this chamber to turn around and chastize judges for doing the job that we gave to them.
It is completely consistent with the rule of law that judges be able to strike down laws that are inconsistent with the Constitution. They have been doing it in one form or another for almost 136 years. If they did not have this power, how would the rule of law be protected? How could we require governments to comply with the Constitution? The answer clearly is, we could not.
Underlying this motion is the notion that courts have somehow usurped or limited the role of Parliament by inserting their views on issues of public policy. However it is not the courts that limit Parliament. It is the Constitution, including the charter, which limits Parliament.
We have made a deliberate choice to provide the courts with a role and that role is interpreting the charter and the Constitution. That role includes the power to declare unconstitutional legislation that is invalid. When the courts find that legislation is unconstitutional, the legislature can respond by crafting legislation that contains limits that are reasonable and justified in a free and democratic society as set out in section 1 of the charter. There is certainly no question that with the advent of the charter, the courts have had a more direct impact on the lives of Canadians. As a result, there has been public scrutiny of their decisions.
However to the extent that courts play a role in shaping public law and policy, they do so in accordance with well established rules of constitutional and statutory interpretation, not based on any philosophical preference on the part of the judges. For example, this motion talks about the same sex issue. Some disagree with the court decisions on opposite sex requirement for marriage. They have expressed concern that the courts, rather than the elected members of Parliament, are making decisions to change fundamental social institutions. They are concerned that judges are making law in accordance with their own opinions.
I disagree. In my view, the courts are simply trying to apply the charter in a way that is consistent with the law and past court decisions. Indeed, as my colleague has noted, the courts in all of these cases have gone to great pains to underscore the importance of Parliament. Each decision has given Parliament time to consider how to address the important concerns that have been identified. Rather than trying to usurp or ignore Parliament, I would suggest that these decisions specifically acknowledge the essential role that Parliament has to play in deciding important social questions such as these.
As we all know, last November, the Minister of Justice referred the question of marriage and the legal recognition of same sex unions to the Standing Committee on Justice and Human Rights. He asked the committee to consider policy approaches, to hear from Canadians and to report back with recommendations on possible legislative reform. Members of the standing committee have just recently finished their hearings on this issue and are considering their report and recommendations right now. I understand that the committee hopes to report back to the minister in early June.
I am the first to recognize that judges and their decisions are not always popular but judicial decision making is not about popularity. It is about interpreting and applying the law which, like it or not, happens to include our Constitution. We as legislators have given the courts the task of determining some of the most difficult and divisive legal, social and economic issues of our time. Judges must be independent and free to make those difficult and sometimes very unpopular decisions.
The independence of the judiciary is a key constitutional principle and one that is critical for the public's confidence in the judicial system. Although all members of the public will not necessarily agree with a particular decision, it is important that the public knows that the courts will make decisions free from interference.
Through several international agreements, all democratic governments, including Canada's, have endorsed the basic principles of judicial independence. In adopting these principles of judicial independence, governments and legislatures have agreed to constrain their power to ensure that the judiciary remains independent and has the legitimacy necessary for the continued public support and confidence in the justice system.
Our system of governance has worked well and will continue to work well as we enter the next millennium. The effectiveness of our system of governance depends on a judiciary that is independent and willing to make difficult and sometimes unpopular decisions in accordance with the rule of law.
Parliament is never prevented from amending or introducing new legislation in the public interest so long as that legislation is constitutional. The Canadian people expect no less from us as parliamentarians.
Our Constitution and what it stands for is the underpinning of this entire country. We as a Parliament chose, based on principles some 21 years ago, to add a Charter of Rights and Freedoms to that Constitution. I think each and every one of us has to stop, look at the principles that underline that charter, as it is entrenched, and make a decision; do we believe in the principles that it espouses or not. If we do, there is ample room for us as legislators to go forward within the confines of those principles to legislate and to do the job Canadians expect us to do in a way that is fundamental to the preservation of the society that we know.