moved:
That, in the opinion of this House, federal legislation should not be altered by judicial rulings, as happened in the redefinition of the term “spouse” in the Rosenberg decision, and that, accordingly, the government should immediately appeal the Rosenberg decision.
Mr. Speaker, the first part of this motion is to call all who believe in a representative democracy in our country to come to its defence. The case referred to in the motion is just one more example of a court ruling that is undermining the voice of Canadians in the democratic parliamentary process.
The Rosenberg decision is a good example for today because it is current and, as we will detail, it is clearly contrary to the statements and positions taken by the leaders of this House and the members collectively. It is also a timely example because if the federal government would act it can protect the legislative process and ensure the voice of the people is not ignored.
Am I being too strong or melodramatic when I say that increasingly judicial rulings are undermining democracy in this country? On the contrary, I know there are many who believe I am not stating the situation strongly enough.
My colleagues and I are confident that members will join with others in the House who are calling for specific steps to be taken not only in the Rosenberg case but in defence of the democratic process in general.
During the course of today's debate members may hear the term judicial activism. This recently coined term refers to rulings by judges which go well beyond the intent of the law and in fact substantively change the law to the point where judges have taken on the role of legislators or law makers as opposed to simply interpreting and applying the law.
To my knowledge this type of activity by some judges is relatively new but an increasingly prevalent phenomenon in Canada. Prior to 1982 there was an understanding that under the Canadian bill of rights we all had inherent rights unless they were limited by a particular legislation. In addition, certain rights would receive protection from government interference or intervention in the lives of our citizens.
With the constitutionalization of the charter of rights and freedoms in 1982 some judiciary have taken greater power than warranted or authorized.
Today as in the Rosenberg case which I will examine more closely in a moment and in many cases like it, laws constructed and reviewed by the people's elected legislators in the House have been struck down or changed based on the courts' inconsistently applied charter rights arguments.
In the Schachter case in 1992 the supreme court decided that judges could rewrite statutes by reading into the legislation. Effectively in this case the supreme court read into the Constitution its ability to read in words into specific legislation. This right was not and has never been explicitly given to the courts in either the charter or the Constitution.
When an increasing number of unaccountable, unelected judges read in new wording into legislation that has been debated and passed by duly elected parliamentarians, a warning bell of a free and democratic society must ring loudly. Today we are sounding that alarm. There are a number of cases I could quote from to illustrate the point I am making. I have a list of them here but for the sake of time I trust that my peers will refer to many of these examples. I will move on to a specific example. If up until now anyone has not clearly grasped the concern we have, an examination of the Rosenberg case will bring some clarity to the issue. It will serve as an illustrative example.
The Rosenberg case concerns the federal Income Tax Act which specifically stated “words referring to a spouse at any time of a taxpayer including the person of the opposite sex who cohabits at that time with the taxpayer in a conjugal relationship”. The Ontario Court of Appeal which heard the Rosenberg case decided to add words or read words into the law made by parliament. The law will now read “words referring to a spouse at any time of a taxpayer including the person of the opposite sex or same sex who cohabits at that time with the taxpayer in a conjugal relationship”.
As in some of the other examples I referred to, this case with the court's redefinition of spouse to include same sex relationships is a significant change to the law. If this undemocratic, unaccountable change to the law is allowed to stand, at least 40 other federal statutes which utilize the term spouse will be affected. With the reading in of the definition of spouse marriage itself is automatically redefined to include same sex conjugal relationships because the definition of marriage in the law is dependent on the definition of spouse.
Did the people of Canada have a say in this? No. Did parliament? It is interesting that parliament has clearly expressed itself on this issue which is why this example is so illustrative. In the 35th parliament Motion No. 264 was proposed. It proposed the legal recognition of same sex spouses. Parliament spoke clearly by defeating the motion with 52 in favour and 124 against legal recognition of same sex spouses. This is the collective voice of the Canadian people defending the validity of the current Canadian law which Canadians have shaped through the democratic process. The judges in this court have ignored that and have independently done exactly what parliament by almost a three to one margin said not to do.
What can be done? In the short term the federal government can defend Canadian law in the court and appeal the Ontario court ruling. This would protect the democratic process and our fundamental freedoms from a court that is making its own law. The ruling came down in the Rosenberg case on April 23, 1998. The federal government has 60 days to appeal before the law is effectively locked in. This means the federal government has two weeks left to launch an appeal. Time is running out. Will it appeal? What is its position? Doing nothing, as it has, would suggest that it supports how and what the court is doing.
Perhaps we can get some insight into what the government will do from responses given to constituents by the justice ministers of the Liberal government. I will quote from two letters that were sent to constituents by the justice ministers in the 35th and 36th parliaments. The first is dated April 24. The current justice minister told a constituent the following: “Thus the definition of marriage is already clear in law in Canada as the union of two persons of the opposite sex. Counsel from my department have successfully defended and will continue to defend this concept of marriage in the court”.
The justice minister went on: “The issues of benefits for same sex partners have been before the courts and tribunals for some time now. I continue to believe that it is not necessary to change well understood concepts of spouse and marriage to deal with any fairness considerations the courts and tribunals may find”.
I have a similar letter that quotes almost verbatim the same things from the justice minister in the 35th parliament.
From the sound of these letters one might be hopeful that this Liberal government will actually defend Canadian law and the process. But allow me to now quote from Hansard a question asked of the same justice minister a few days ago in the House. The question put to the justice minister at that time was: “Does the justice minister believe it is right for unelected judges to make changes like this, or should those changes be made by this parliament, by the elected representatives of the people of Canada?”. I should point out this question was referring to the Rosenberg case.
I will not read the whole answer of the justice minister, but the key part is the last sentence: “In the Rosenberg case the judiciary was doing what it was constitutionally obligated to do, interpret and apply the law”.
What I point out here is that this issue needs some clear leadership. What this illustrates is one message to a concerned constituent but when it comes forward in the House of Commons we hear a very different response from the one she sent to that concerned constituent. Two opposite positions in a five week period. What is the government's position on this?
I hope, as do many of my colleagues, that this government might start with this case and follow through on its own commitment to Canadians and demonstrate to those judges who are changing the law, who are acting outside of their job description, that it must stop.
In spite of the conflicting messages from the justice minister we are hopeful and we are asking for the Liberal government to wake up, stand up, grab hold of the reins of government and defend the democratic freedoms and the integrity of the legislation process in this land.
We have some excellent, dedicated men and women in our court system in Canada, people of high integrity who give a great deal of energy to the cause of justice in these difficult times. I have quotes from many of them here today and many of them are concerned about the very crux of the motion we are debating here today. But perhaps in honour of his recent passing it would be best to quote from the very succinct Mr. Justice Sopinka who wisely stated what every judge should know and what every Canadian expects: “The court must be conscious of its proper role in the constitutional make-up of our form of democratic government and not seek to make fundamental changes to the longstanding policy on the basis of general constitutional principles in its own view of the wisdom of the legislation”.
The problem of some judges and courts becoming unaccountable, unauthorized legislators, or what some call judicial activism, is a growing one in Canada. But Reformers believe it is a problem that can be addressed if there is the political will to do so. Reform has addressed this issue. In Reform's new Canada act which was recently published and is being made available across Canada, a specific section is included on how the supreme court can be made more accountable and it details a process to ensure that those appointed have the correct judicial philosophy and qualifications to maintain order within Canadians institutions.
Finally allow me to return to the motion on the floor. This most critical motion simply calls for the federal government to take steps to protect Canadian law and the role of parliament. There is a two week window on this particular case within which it can act.
We encourage and call upon the government on behalf of all Canadians to give a clear signal that law and order will be maintained in the land and our democratic institutions will be secure. For the health of our democracy I urge every member of this House, in fact I think every member of this House is obligated to support this motion and require that the government finally take a correct firm position to maintain our freedoms and the integrity of the democratic process.
