Mr. Speaker, I will be sharing my time with the hon. member for Mississauga West.
I rise to address the motion before the House today. The member opposite appears a bit confused about how our democracy works, about the checks and balances put in place to ensure our system of democracy is well protected. The simple truth is that the decision by the Ontario Court of Appeal regarding the Rosenberg case is one of hundreds decided across Canada daily involving one branch or another of the federal government.
It is a supreme irony that members of the official opposition have focused so much attention on a decision of the Ontario Court of Appeal while there are hundreds of others of great importance they have chosen to ignore. This decision was recently rendered by the Ontario Court of Appeal. It is my understanding that it is being considered by officials and that in due course the Attorney General of Canada in collaboration with her colleague, the Minister of Finance, who is responsible for the Income Tax Act, will come to a decision as to how to best proceed.
I ask whether the hon. member is suggesting that all litigation conducted against the Government of Canada at whatever court level must be debated before this House. I would think not and I would hope not. That would clearly be unworkable and would prevent this House from carrying on the serious business of government.
With respect to the suggestion in the motion that the judiciary is overreaching its jurisdiction, let me clarify for members opposite how our democracy works. The courts continue to play their traditional and rightful role. As all Canadians know, the courts have a legitimate role which they were given long ago when our Constitution was first established. Our Constitution is an important guarantee of democracy.
It is the Constitution that sets out the power of this parliament and the power of the provincial legislatures. It is for this reason that elections are mandated within a strict time period and that the governor general is given a role as is the Senate.
It is the legitimate important role of the courts as provided by the Constitution to review any action taken by this House or by the provincial legislatures. And that they do to ensure the action was properly conducted by which I mean within proper jurisdiction.
It would not do for the federal government to begin to legislate in areas within provincial jurisdiction or vice versa, or outside the limitations of the fundamental rights and freedoms guaranteed to all Canadians by the charter of rights and freedoms. The fundamental importance of the balance of power set out in and by the Constitution and the ability of ordinary Canadians to challenge their government is part of what makes this country what it is, a shining example of democracy and fairness.
The courts have been tasked with interpreting the Constitution and making decisions on behalf of all citizens. Sometimes that role will require courts to point out to the government not only where their actions are clearly outside of their authority but where unintended consequences may potentially exist as a result of legislation passed in good faith by the House. It is the responsibility then of the courts to signal even those occasions where there was no intention of acting outside of their authority and where legislation was passed in good faith by the House.
Canadians understand and appreciate the need for governments to balance the interests of all Canadians and to try to be fair. After all, governments are elected by the majority, but in a democracy their duty is to serve the interests of all Canadians. Laws and the duty of government cannot responsibly reflect only one vision of what is right or the debate would endlessly revolve around who had the power to shape these norms and focus all Canadians to live them.
This decision is not the first to bring to the attention of the government that there is need to find some fair solution to an important equality issue. The decision itself is not the end of the story, as the hon. member well knows. What is most intriguing is that he seems to object to the court as he sees it assuming some of the role of parliament by changing the legislation. But he is not suggesting that it should be the House that does the job. Rather he suggests an appeal to another court, this time the Supreme Court of Canada. It is a very strange twist of logic indeed.
I assure the House that there is no such thing as judicial legislation, although some alarmists have tried very hard recently to convince us of the existence of this creature used only by “radical judges” who are “out of control”.
Let me suggest rather that it is entirely more accurate to understand that the courts are only playing the same role they have always performed, that of reviewing government action and in a few cases where they believe the answer is clear attempting to help both the Canadians before them and parliament with a suggested solution.
Again, the remedy chosen in this case that is written in is not our preferred choice of remedy, but then again it is hardly written in stone as some seem to believe. Even if the decision is not appealed there remain a number of options open to the House including legislating a solution, which is preferable to us as long as that solution complies with the Constitution and in particular with the charter of rights and freedoms.
As I see it, the courts and legislatures are still engaged in a constructive dialogue in this area of the charter. Courts interpret our constitutional principles and apply them to legislation. If courts think legislatures have it wrong, courts then will declare that provision invalid, but it will always remain open to parliament to introduce a new law that meets the concerns set out by the court.
Because of this the motion is simply inappropriate and shows a lack of appreciation of how democracy works. There is no need to interfere with the routine process with this kind of case or these kinds of cases which have been handled within the government system since Confederation. There is no need for parliament to begin to discuss conduct of individual court cases. Furthermore, it would be entirely inappropriate for parliament to begin to comment on specific cases and decisions of the court.
Public confidence in the courts and in the justice system is largely dependent on the independence of the judiciary. An important element of judicial independence is the ability of judges to make decisions free from interference. It is a cornerstone of the Canadian democratic system and one well worth noting. That freedom also includes freedom from interference by parliament.
This motion, if passed, would represent a serious precedent for interference with the judiciary in attempting to tell the courts what kind of remedies they can and cannot order when a court finds a provision unconstitutional. Instead we should leave this decision, as we have hundreds of others, to the usual process.
Sociologists have pointed out that the variety of household forms in today's society should perhaps be recognized in some way by increasing flexibility to reflect all relationships of economic dependency.
Statistics show that one of the most common household forms for people over the age of 65 is two siblings living together who may well be able to afford an apartment only by combining income. In the coming years some argue that government policies must struggle with the values of Canadian society and with what kind of society we want to have: a society that treats everyone as individuals or a society that facilitates caring, as one socialist has put it.
Certainly part of our stability as a nation comes from the strength of our families. Families continue to be the foundation of our nation, as acknowledged in this House and in all of the homes of this great nation.
In summarizing what this motion means and what it represents, I want to first point out that it is inappropriate in four ways. First, the conduct of court cases by the government is within the sole jurisdiction of the attorney general and this House should not set a precedent by interfering with the mandate or with the ordinary process of determining the appropriate action of a court decision.
Second, this House should not set a precedent by beginning to debate how each and every court case concerning the federal government should be conducted. That would be absolutely ludicrous.
Third, this House should not set a precedent which would appear to Canadians to interfere with the independence of the judiciary. If we do not agree with the court decision, the answer is not to address the decision itself, but to determine other methods of proceeding.
Finally, fourth, not only do Canadians not view this specific court decision as the judges taking over, but they continue to believe that the balance between the role of the courts and the role of parliament is essential to the proper workings of democracy.
I believe that after careful reflection most members of this House will agree with the points I have made.
