Mr. Speaker, I want to congratulate my colleague from Charlesbourg—Haute-Saint-Charles. This motion is similar to another one that was introduced during another Parliament. I agree with the principle of this motion. It is a very intelligent initiative, and it is very good for our country, for the judges, and for the whole system in general.
This motion would result in the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness having a subcommittee created with a mandate to examine the process for the appointment of the federal judiciary and make recommendations for reform. Clearly, the primary goal of those recommendations would be to eliminate political partisanship from the process, which is something we in the Conservative Party completely embrace and favour.
If adopted, this particular process would be completed by October 31, 2005, which would cause a great deal of activity over the summer, but that is what we are here to do. Certainly, this is an issue of great importance.
Before I begin my remarks on the substance of the motion, I must put personal reservations and concerns on the record regarding the wording at the beginning of the motion, wherein the hon. member indicates that we would condemn or, in the words used here, denounce the opinion of a judge. This strikes me as bringing this motion sadly into the realm of political commentary on the judiciary. In my view this somewhat undermines the actual principle and spirit of the motion, which is to move away from partisanship and not indulge in it further.
I have had discussions with the hon. member and I understand his passion for this issue. My own belief is that it would be preferential if in fact we could remove that particular reference and have the issue itself referred to a judicial counsel in the province of Quebec where it would be dealt with in an internal fashion and by an appropriate panel of peers as to the appropriateness or in this case the inappropriateness of this comment that is on the record now sadly outside of a courtroom, which again is problematic.
The removal of the first line would go a long way to improve this motion quite frankly. Having said that, this is a matter that should be above the political games that sometimes get in the way of motions such as this. We in the Conservative Party favour the creation, cleansing or purging of the politics from the political process in which appointments are made to courts throughout the land. They should be transparent and free from political interference.
I have a great deal of respect for the hon. member and the work that went into this motion. I appreciate his longstanding passion and commitment to this issue. He is very consistent in his work in the House and in committee.
I believe the motion may not be seen to be on the radar screens of many Canadians but it should be, in particular in light of some very disturbing allegations of Liberal patronage appointments to the bench that stem from testimony given by a Liberal at the Gomery commission.
I would say that many Canadians, particularly those who are in the practice of law or who are associated with the judiciary, are greatly concerned, and with cause, over these damning allegations about political interference and, essentially, reward for political support that led to appointments.
I reiterate my belief that the political partisanship should be set aside when it comes to issues such as this and we as parliamentarians have to try to raise that standard and raise the bar itself.
I will use my time remaining to reference some of the salient points around the pith and substance of the motion.
Canadians have been concerned about the appearance and, in some cases, the reality of the encroachment of the Supreme Court, the supremacy of the courts versus the supremacy of Parliament and the practice of reading into our laws interpretations that could be viewed and, in some cases, very much seen inconsistent with or outside the intent of the law when it was passed by Parliament.
Now there is a normal maturing process and there is a normal living tree analogy that is often used with respect to laws of the land but this atmosphere has led to a renewed interest in just how those who compose the bench at the appellant and at the supreme court level receive their appointments.
In the last few years we have witnessed a number of cases, at both the provincial supreme court level and the Canadian supreme court level, that seem to effectively take away or diminish the supremacy of Parliament. This contradicts, in my view, the intent of the Canadian Constitution and some of the societal values, which are the subject of these court decisions, that are held very dear by Canadians.
Yes, Canadians question the process and the individuals responsible for making these decisions, unelected versus elected. For example, the John Robin Sharpe case comes to mind. The decision by the British Columbia Superior Court and on into the Supreme Court of Canada allowed convicted felons the right to essentially have materials which were deemed by the police in the initial investigation and prosecutors to be of a pornographic nature.
There are other cases that involve the rights of felons currently serving in federal and provincial institutions to vote. This I and many Canadians find repugnant.
As well, we have witnessed how diverse decisions from superior courts of Ontario, Quebec, British Columbia and other provinces have dealt with the issue of same sex marriage. This is why I think it is fair to say that part of the Supreme Court decision, on the reference question, as referred to by the government, was to send it back to Parliament for consideration when it came to the definition of marriage itself. Those opposed to judicial activism seemed to be very concerned about the contradiction that appears to be developing.
However I believe they can take solace in the court's decision to do just that, including the chief justice of the Supreme Court suggesting, quite appropriately, that this was a matter for Parliament.
The court's refusal to answer that question could also be interpreted as an admission of parliamentary supremacy in regard to that specific issue. The court's answer that it would not exercise discretion and not address the matter is somewhat unprecedented, in my view, that they would take the very direct step to send it back to Parliament to have this issue addressed by the elected body of the land, the Parliament of Canada.
That is a view the courts have held and a view I think Canadians generally hold. I believe it is a sign that the balance in our system can be struck and that our court system can be respectful to Parliament, just as we should be respectful of the role of the courts.
What it also suggests is that, despite court decisions, the government appeared to be prepared to forge ahead and amend the law as it saw fit regardless of the court's direction. This, I admit, may be a broad interpretation but relevant nonetheless.
By eliminating political partisanship from the appointment process and eliminating the perception or reality of interference, we would be making informed decisions on who comprises the bench based on skill, on academic laurels and on merit which is the critical issue in all of this. We need the best minds, the best individuals and the most qualified persons comprising the bench at all levels. Having spent time in the courts, these are day to day decisions that impact directly on the lives of Canadians, directly in a way that can alter their families, their financial welfare, their very being and their freedoms.
I believe that the role of a judge in Canada equals, in many ways, the role of individual parliamentarians. In fact, in a more practical way, those judges on a day to day basis are interacting with Canadians on the basic rights and freedoms, privileges and protections that need to be supported and above any disrepute or suggestion of political bias.
By eliminating these suggestions and eliminating any direction that would lead to that bias and putting in place a more pristine process, a process that would be beyond any dispute, I believe we would enhance the role of judges in a significant way.
No one can argue that a shift away from partisanship is not a shift in the right direction. I believe the scrutiny by members of Parliament of appointees to the highest court would go a long way to determining the suitability of those wishing to serve and could possibly allow for greater diversity in the views reflected of those who seek to serve as judges.
This is not to in any way diminish the role of provincial bar associations or laypersons' input and the process that we currently have in place. It can all be incorporated into this view and vetting process that is suggested by virtue of the motion. In fact, the motion does not even go so far as to provide the detail of how this process of scrutiny would work.
To many it seems that the reading into the intent of laws in the courts can be viewed as a violation of the basic constitutional principle that Parliament makes the laws, the executive implements them and the courts interpret them.
However the root of the perception of judicial activism is in the Constitution itself. For the first time in Canada a constitutionally entrenched guarantee of civil rights through the Charter of Rights and Freedoms requiring the courts to determine the constitutionality of laws created this scenario and it is unprecedented, I would suggest, based on the British constitutional process in which we now have inserted a charter.
I do not mean to be crude in this analogy but it is like taking a carburetor from one car and putting it into the engine of another car. The system in my view is still working this anomaly.
Some have argued that this insertion of the charter has allowed for the erosion of parliamentary supremacy in which democratic accountability has been replaced by the supremacy of the Constitution as interpreted by the courts.
Should the motion lead to a change in the appointment process, it ultimately would allow for greater public scrutiny. Again, transparency, openness and public scrutiny raises public confidence in the process without jeopardizing judicial independence.
Our party has put forward suggestions, including the recommendation that the name and qualifications of a person proposed for appointment by the Prime Minister to the Supreme Court shall be presented to Parliament which shall after debate make a recommendation on the suitability of the nominee's candidacy. This type of directive would also be applied to the appointment of those at the appellate level.
One contrary view is that this would dissuade individuals interested in serving in that capacity from applying. It is always once again a consideration of the balance in the public interest. I would suggest that anyone qualified or who presents himself or herself as qualified for that position should be prepared for scrutiny, including public scrutiny.
I would not stand in this place and suggest that we should use the American model, not that the American model is frightening. It is what they have chosen to do and I do not think we should belittle that model. However I do not believe it is consistent with the Canadian traditions and the way in which we would pursue this matter. It does allow for perhaps a more public spectacle and an examination that can sometimes go very awry as we have seen in the case of the Clarence Thomas appointment.
A vote in the House of Commons on this particular matter could be conducted and the outcome communicated to the governor in council prior to such appointments being made.
This is not a new matter. As I mentioned, the member who proposed the motion brought forward a similar motion in the last session that would have invoked a process that could have led to a recommendation of Parliament to change the current parameters of these appointments.
If the motion today were adopted it would simply empower the parliamentary committee to study it further. We did have a very involved committee study that reported its conclusions in a discussion paper on the issue. Unfortunately, the committee's recommendations in its main report were insufficient and not acted upon.
The four recommendations in the report were: first, there must be substantive input from all the provinces and territories into the compilation of the lists of suitable Supreme Court of Canada nominees and that the input from the provinces and territories at that stage would not be made public; second, there must be a public review of a short list of nominees before a parliamentary committee, which is what this motion speaks to; third, that parliamentary ratification of the chosen nominee must be achieved and that the form of ratification must not infringe upon the constitutional right of the governor in council to make the actual appointment. It therefore would not be taking that power away but simply buttressing it with parliamentary authority and backing. The last recommendations is: that appointments must be made so that the appointment process becomes mandated, again adding to the legitimacy of it.
Unfortunately, the government has yet to make any substantial changes to the mechanics of the appointment process. I hate to sound dismissive of the process but it really was a sham. The decision had already been taken and the committee was simply being asked to give an after the fact rubber stamp approval of the decision that was taken. It was unprecedented. I would be the first to admit and acknowledge to the Minister of Justice that this was a step in the right direction but it was not consistent with nor in keeping with the commitment to make the process more open to parliamentary involvement and discretion because, as I said, the decision was taken and the consultation was after the fact.
In reality, there is a need for parliamentary scrutiny. In fact, appearances before a specialized committee could take place in camera provided the parameters of questions were clearly laid out beforehand, and I believe that is appropriate. There should be limitations on the parameters of those questions. We should state on the record that we do not want to dissuade individuals from coming forward. We do not want to give the impression that this is an effort to pry into people's private lives and private affairs but to get to the central issue of merit, capability and appropriateness.
This does not mean that the committee would have a right, for example, to delve into financial records of an appointee or, for that matter, that the financial records of a person's spouse or partner would be subject to examination. I do not believe that type of information should be given any relevancy in terms of the appointee's ability to interpret the law. If there was some suggestion that, for example, in a federal or provincial court matter there might be some perception of bias or some conflict of interest that could arise because of a person's financial interest, that may open the door, but in general we should not go in that direction because it would, in my view, dissuade many.
The motion is aimed at ensuring the proper representation of Canadian views and values and I suggest that those views and values are not the property of any one political party. Those views and values of members democratically elected to represent Canadians should have the confidence to have input into such a critical issue. In this way we could provide a unique balance and a perspective in the process of judicial appointments that is uniquely Canadian.
I see this committee process as an opportunity to allow members of Parliament to act on behalf of those in their constituencies, those who have elected them to represent them here in the House of Commons, the highest court in the land, to delve into some of those beliefs of the appointees through examination, in some cases, of previous decisions rendered.
Again, I believe that type of examination should be taking place in camera. Those types of discussions are relevant when one examines the merits of appointments and the philosophic belief of judges that does bear on the appropriateness of their appointment.
I reiterate that no one wants to go down the road of confirmation hearings, a public spectacle that very much can damage a person's reputation, but strictly done for the purposes of avoiding political partisanship or the perception thereof.
The motion before us today could lead to the creation of a new appointment process that would invigorate and, in my view, further legitimize the appointment process. It would do away with some of the real and perceived bias, particularly around the appointment of judges to the highest court in the land. This would go to rebalancing what is sometimes seen as an unfair, secretive and partisan process by its very nature.
I believe that we support the spirit and intent of this motion in principle. I still am very much troubled by the preamble of the motion which calls for commentary from the House of Commons. I would have requested a friendly amendment from my learned colleague, my friend from Charlesbourg—Haute-Saint-Charles, yet I understand his position on this clearly. That is why we in the Conservative Party intend to view this as a very open matter, one on which we will be consulting further.
I have appreciated very much the opportunity to participate in this important debate. This debate has far-reaching ramifications not only for the courts, but for the important role that parliamentarians can play in improving the reputations and perception of judges and the confidence Canadians should have in judges who serve them on a day to day basis.