Mr. Speaker, I am pleased to rise today to participate in the debate.
I was talking to a constituent earlier who wanted to know what we were debating today. She was wondering if we were changing the definition of marriage in the statutes of the Government of Canada. I told her that we were not changing the definition of marriage in the statutes of Canada and that the Reform Party, the official opposition, was bringing forward a motion to clarify that we would not do that. She then wanted to know why the motion was before the House if we were not doing that. I told her that there had been some recent court cases which suggested that some of the laws that are presently on the books in Canada are unconstitutional and discriminate against same sex partners on the basis of the receiving of benefits. She then wanted to know what that had to do with marriage. I told her that it had nothing to do with marriage.
As I begin my remarks, I want to reiterate that the decisions of the courts of the land have done nothing to change the definition of marriage. I believe that the results of today's vote will clearly state to the people of Canada that the courts have not changed the definition of marriage nor is it the intention of the government to change the definition of marriage. However, we will address those issues which the courts have rightly pointed out to us, those issues which may, in the courts' views, be treating some citizens of the country in a discriminatory manner. That is the role of the courts.
As part of my remarks, I will focus on the role of the courts in these important discussions on public policy issues. When the courts signal to parliament that the charter of rights is not being protected for all Canadians, elected legislatures, whether it is the federal or provincial government that has passed a law that the court has ruled on, are free to choose how to respond. However, the solution must be constitutional.
We have a constitution and a charter of rights and freedoms in Canada that we, as parliamentarians and all elected officials across the land, have an obligation to live up to. We must live up to the values and principles that are enshrined in that charter of rights and freedoms. I believe I have a responsibility, as the member for Thornhill, to do that not only on behalf of my constituents but on behalf of all constituents in Canada who expect legislators and parliamentarians to protect their freedoms.
While we may not always like the decisions of the courts, we must take heed when they say we are not protecting the rights of all individuals, that we are discriminating against some. We must update our laws to bring them into compliance with our constitutional responsibility.
In the government's view, the courts have demonstrated an appreciation for their role in a democratic society. I believe, and the government believes, that courts must continue to be independent and free to make difficult decisions in accordance with the principles set down in our charter of rights and freedoms. That is the role that we Canadians have given to our courts.
While there is much room for debate on how exactly that role should be carried out, in my view it serves no constructive purpose to attack the courts for what Canadians have asked them to do.
On the contrary, some of the comments that we have heard in the House and elsewhere have suggested that the courts have no business making decisions that declare unconstitutional laws that have been passed in parliament. In doing so, some would suggest they are usurping the public interest and the public policy functions of parliament.
This term is often described as judicial activism. Critics of judicial activism, in my view, are deliberately creating an impression that the courts are usurping to themselves a role that is not contemplated in our democratic constitutional structure, an impression which causes people to question the legitimacy of the role of the courts in the development of law.
I think that has a negative impact on the pride we have in our institutions and on the important role that we play. There is clearly a difference between the role of parliament and the role of the courts. We need both of those institutions to hold the respect of the public if we are to succeed in the kind of public policy making that is in the interests of Canadians.
The impression that is being left as to the inappropriateness of the courts having this role is not only misleading, but it raises the potential for serious harm to the credibility of an important institution, the Canadian court, and the public perception of our whole justice system.
I give this cautionary note not only to the people who are in this House today listening to this debate but also those who are watching. When concerns are expressed about the extent to which the courts are now prepared to use the power of judicial review under the charter, it is helpful to bear in mind not only that the power of judicial review has always existed under Canada's constitution but also, quite apart from the power of judicial review, Canada's courts have always had a significant role to play in relation to the law making function of government, particularly through the development of Canadian common law.
It is the courts in their interpretation that have given us the body of court cases and common law that is the foundation of our judicial system. I would say to the House that if we tear that down, we tear down not only a fundamental institution in our society but we tear down the freedom and the right of Canadians to expect fairness in the judicial system.
There is no question that the courts have a more high profile role since we have the charter, a charter, I might say, that was brought to us by our now prime minister. I know it is something he is particularly proud of after 36 years in this wonderful House. His pride in the Canadian Charter of Rights and Freedoms is something that I think all Canadians can share. It is their charter of rights and freedoms, and it is their supreme court that makes the interpretations of that charter that guards the rights and freedoms of all Canadians.
I think that is one of the reasons that the United Nations, for the sixth year in a row, has declared Canada the number one country in the world. There are many things for us to be proud of, but the important role of our judiciary in safeguarding our rights and freedoms, and sometimes pushing parliamentarians and legislators to do the right thing, is a very important function.
The present debate about the role of the courts is not surprising because of how young our charter is. When we look around the world we see that wherever there is a constitution it is constantly being defined and refined according to community values and standards in the courts in the free world.
The truth of the matter is that the Supreme Court of Canada has shown itself to be very sensitive to the concerns about judicial review, but that critics of judicial activism over the years have done a great disservice to our court. We are not only talking about a judiciary that holds legislation unconstitutional with great abandon. They do not do that. They are a very conservative court. If we look at the record of their judgments, they have acted appropriately in the interest of Canadians.
We should keep in mind the observations of Peter Hogg, one of Canada's pre-eminent constitutional scholars, who said:
Judicial review is not a veto over the politics of a nations, but rather, the beginning of a dialogue as to how best to reconcile the individualistic values of the charter with the accomplishments of social policies for the benefit of the community as a whole.
I hope today's debate will not confuse anyone. I hope today's debate will not send out a message to anyone that is different from the facts.
The fact is that the decisions of the court have been consistent with protecting the rights and privileges of every Canadian. The decisions of the courts have said to the governments that they cannot and must not discriminate against individuals. Those decisions have done nothing to change the definition of marriage in the country and it is not the policy of the Liberal government to change the definition of marriage. What makes the debate today very important is that it gives us a chance to state that clearly.
As I wind up the debate, I say to the House that it has been a privilege to have the opportunity to clarify and state on behalf of the people of Thornhill that I believe that the courts play an important role in protecting our rights and freedoms in Canada.
