Shaughnessy Cohen

[Skylink Aviation Inc., June 11th, 1998]

Mr. Speaker, I want to pay tribute today to a Canadian company that is playing a leadership role internationally through the provision of rapid deployment evacuation air services.

Skylink Aviation, based in Toronto with operations throughout the world including a freight service in Windsor, has demonstrated incredible courage moving people out of dangerous circumstances.

It provided evacuation services on behalf of UNICEF and the world food program in flood ravaged Somalia. On May 16 and 17, Skylink flew into Jakarta, Indonesia and evacuated 420 Canadian nationals. Skylink was the only cargo carrier to provide food and medical supplies to Afghanistan while evacuating seriously ill people and UN personnel.

Last Friday, Skylink undertook a most dangerous mission in Eritrea on behalf of the United States state department. During bombing and air fire resulting in the downing of an Ethiopian plane, Skylink landed and safely evacuated 220 people out of Eritrea to Frankfurt.

It is most gratifying to see a Canadian company demonstrating leadership and courage in the protection of human lives throughout the world.

[Supply, June 9th, 1998]

Mr. Speaker, I wonder if the hon. member has considered that there are more parts to the country than Cumberland—Colchester. In a city like Windsor, Ontario, which abuts on the great city of Detroit, Michigan, we see the impact every day of having no gun control and having no gun registry. Every night when we watch the news on television we see shootings in schools being treated as though they are car accidents. I do not want Canada to turn out that way. I want Canada to be a distinct and different culture from that of the United States.

Does the hon. member think by having people wear sidearms and by not taking care of things such as crime prevention and our children that this will be a better place? Does he believe that municipalities do not pay for the services of the RCMP? I think he is on a stretch here.

[Supply, June 8th, 1998]

Mr. Speaker, the answer is no. I do not view this as stuff. I view this as an important issue in our constitutional history and an important issue to be debated here.

Let me say that if the justice minister asked me for my opinion, my view is that we should not appeal Rosenberg. I believe it is the view of many of my colleagues on this high side of the House that we should not appeal it. Quite frankly, I do not think it has anything to do with whatever fears the hon. member may be expressing implicitly in his statements.

[Supply, June 8th, 1998]

Mr. Speaker, I thank the hon. member for his questions. It simply reinforces what I said in the past and what I will continue to say, which is that in that party and in those quarters there is a fundamental misunderstanding of the system, of the charter of rights and freedoms and of our Constitution which is the highest law in the land.

Let me say that I do support the courts in their ongoing mandate to uphold the rights and the freedoms of all Canadians, including minority rights.

The member specifically referred to the Rosenberg decision. Then he talked about marriage. Rosenberg has nothing to do with marriage.

Let me ask the hon. member and his stern faced colleagues over there this question rhetorically. By extending these rights to the people involved in the Rosenberg decision, by allowing two people who care for one another to take care of one another in a living situation, how does that detract from them and their style of life?

[Supply, June 8th, 1998]

Mr. Speaker, the motion asks that in the opinion of the House federal legislation should not be amended or redrafted by judicial ruling. In effect the opposition is asking that the House express an opinion contrary to our Canadian constitution which clearly sets out the respective roles of parliament, the courts and the executive.

The proper functioning of a democratic society depends on a number of key players: parliament, the executive and the judiciary. This is a classic situation where the sum is greater or bigger than the parts and when each of these three parts respects the others we enjoy a strong democratic society. I submit that the Reform Party neither respects the House nor the executive nor the courts. This is a problem.

To go back to constitutional law 101, it is not the courts that limit parliament. It is the constitution which includes the charter that limits parliament. The Canadian parliament, the Canadian government, made a deliberate choice to provide the courts with a role in interpreting, not in rewriting, not in amending, the charter and the constitution. That role includes the power to declare unconstitutional legislation invalid.

The Reformers do not believe in the charter. They have not had the nerve to say it but they would like to get rid of the Charter of Rights and Freedoms. They claim to support the equality of all citizens but they continually try to undermine the one legislative instrument which guarantees equality, the Charter of Rights and Freedoms.

Perhaps members of the Reform Party just do not understand the role of the charter in the courts and the protection of basic human rights. I must say I have heard them support the constitutional role of the courts once in a while but only when they are interpreting legislation in such a way that the courts are actually agreeing with Reform.

The new gun registry is being challenged by the courts. If the courts support Reform's point of view on the gun registry, does anyone think we will hear any complaints about the courts? I do not think so. There is no question that the rule of the courts in interpreting the charter has given the courts a higher profile and a more direct effect on the daily lives of Canadians. That is not something that they are doing arbitrarily. It is a power that we in this assembly gave to them, that nine out of ten provincial legislatures in the country gave to the courts.

While the courts exercise considerable influence on the shape of Canadian law, they do so under well-established rules of constitutional and statutory interpretation, not on the basis of philosophical preference on the part of judges, and certainly they should not be doing it on the basis of the philosophical presence of a small rump party like Reform.

I would suggest, having read the polls today, that the 12% solution that the Reform Party offers to Canadians is not the solution that most Canadians would prefer.

The Canadian people do not trust the Reform Party to protect basic human rights for good reason. Under the Reform approach people would once again live in fear of the power of the state to dictate how they live. The power of the government and the legislature would be absolute, with no protection for the rights of minorities.

In the new Canada act which it proposed, the Reform Party says it is going to ask the legislature to give it the power to review supreme court decisions and modify the law if necessary. We reviewed a supreme court decision in the last parliament when we dealt with the issue of the rape shield law. We were trying to protect people who had been abused. I would like to ask where the Reform Party was then. Did it show leadership in this matter? No. It followed along, kept its toes in the water and took its toes out. One member actually speculated at committee on why we were not trying to protect the rights of men in this bill and whether innocent men were being harassed by the courts. The Reform Party cannot be trusted.

Only the most difficult issues of national importance are heard by the Supreme Court of Canada. It is inevitable, therefore, that there will be a body of opinion that will disagree with a decision handed down by that court. The supreme court, in particular, is aware of the importance of adhering to legal standards in deciding matters and in deciding issues before it.

I am confident, and the majority of members of the House are confident, that the Canadian courts have demonstrated and will continue to demonstrate the necessary appreciation of their role in a democratic society.

The charter has in effect resulted in a dynamic dialogue, a conversation among the courts, the executive and parliament. Unconstitutional legislation is usually replaced by legislation which is designed to accomplish similar objectives in a more constitutionally tailored form. This dialogue enhances the democratic process.

In terms of recent rulings which have read in provisions to a statute, this is a remedy the courts have used rarely and only after careful examination. Again, this is part of the dialogue. Legislatures are free to respond by correcting legislation with limitations that may be justified under section 1 of the charter.

Canadian judges have been asked to assume increasingly demanding constitutional functions in determining issues of fundamental importance to all Canadians. I am the first to recognize that in doing their jobs judges and their decisions are not always popular. It seems to me that this is inevitable given that we, the legislators, gave them the sometimes unenviable task of determining some of the most difficult and divisive legal, social and economic issues of our time.

It is for this very reason that we do not want “popular judges”. Indeed, it has always been of primary importance to all Canadians that judges be independent and free to make those difficult and sometimes unpopular decisions.

As Madam Justice Rosalie Abella recently observed:

Governments necessarily prefer to rely on perceived majoritarian wishes; courts, particularly in the enforcement of minority rights, are necessarily frequently obliged to override them—.While elected governments may wait for changing attitudes in order to preserve public confidence and credibility, both public confidence and institutional credibility argue in favour of courts being free to make independent judgments notwithstanding those same attitudes.

That is the crux of it: the independence of our judiciary. It is the key constitutional principle and one which 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 know that the courts will make decisions free from the interference of the likes of those people across the way and their fellow travellers.

The universal declaration on the independence of justice adopted in Montreal in 1993 states:

Judges individually, shall be free, and it shall be their duty, to decide matters before them impartially in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

The United Nations General Assembly endorsed basic principles on the independence of the judiciary in 1985. One of the principles states:

There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review—

All democratic governments have endorsed these principles of judicial independence. In adopting these principles, governments and legislatures have agreed to constrain their power to ensure the judiciary remains independent and has the legitimacy necessary for continued public confidence in the justice system.

I say to the other side: Stop harping. Read the Constitution. If they cannot figure it out, they ought to get some advice. That is what their budget is for.

[Supply, June 8th, 1998]

Madam Speaker, I rise on a point of order. The opposition cannot split hairs here. Not to mention the judge's name is fine but then one cannot, having referred to her already, say scurrilous things like a particular judge was not chosen to go to the Supreme Court of Canada.

The hon. member does not have a clue, nor do I or anyone else in the House except for the Prime Minister, as to who the justice minister considered for that appointment to the Supreme Court of Canada. He has no clue. For him to besmirch—

[Supply, June 8th, 1998]

Madam Speaker, I rise on a point of order. There have been several rulings in this House by Speakers of which the member is well aware to the effect that it is inappropriate to name a specific judge. It is absolutely inappropriate. If members want to speak generally about the judiciary that is fine, but to name a specific judge who cannot defend herself is an abuse of the privileges of this House and it is cowardly.

[Supply, June 8th, 1998]

Madam Speaker, I commend the Conservative House leader on his excellent speech.

If the government decides not to undertake an appeal of the Rosenberg decision, is the House leader for the Conservative Party saying that he personally would support that decision and that his party would as well?

[Judges Act, June 4th, 1998]

Mr. Speaker, I want to take a minute to set out the government's position with respect to Motion No. 2 and to point out that Standing Orders 32(5) of the House of Commons already provides for the referral of any tabled report to the appropriate standing committee.

The second part of my submission would be that Standing Order 108(2) allows the justice committee or any other committee of its own volition to make a study at any time of a matter within the jurisdiction of the departments it oversees. As a result it seems to me that this is a redundant section. I do not know if it is appropriate to override House standing orders by statute.

Standing Order 32(5) states that reports laid before the House in accordance with an act of Parliament, which is what this would be, shall thereon be deemed to have been permanently referred to the appropriate standing committee. The point is that it is already referred to us. It does not need to be referred by statute because the standing orders already do that.

The Standing Committee on Justice and Human Rights is free to determine whether public hearings are in the public interest. I want to point out too that at the time of tabling, it is always open to the House to make a motion requiring the committee to report back. That has been done from time to time.

The Standing Committee on Justice and Human Rights has a busy schedule but there is no reason why such a report could not be studied by it and should not be studied by it, if it is the will of the committee.

I thank the member for her submission. It is an interesting one. It is helpful to have these debates, but I would suggest that Motion No. 2 is unnecessary in this legislation.

[Judges Act, June 4th, 1998]

Mr. Speaker, with respect to Motion No. 1, members have been talking specifically about the salary increases. However, I think it is important for us to acknowledge and to realize that, in general, while the bill focuses in part on salaries, it focuses on other things too. That seems to have escaped the attention of all of the opposition parties.

In particular, attention should be given to the initiative to create unified family courts. I see that the hon. member for London West is in the House. She will know, because she practised law before the courts in London, that the unified family court, an experiment which began in the city of London, Ontario, has been a very great boon to that community. It has allowed the justice system to become streamlined in an area that is crucial to family life and to the good operation of a community.

When these disputes come before a court, it is important that we create a system that allows them to be dealt with as efficiently as possible.

I want to comment on the mood of this debate, particularly with respect to the comments that have been made about specific members of the judiciary and the judiciary in general. When I hear comments like “judges should be independent of parliament but not of their communities” I think that sounds good. Judges live in communities. They should be in touch with their communities. That is good. That is why the government has created committees composed of members of communities who are not all judges but lay people as well. These committees vet applications for judicial positions and pass judgment on applicants before they come to the minister's attention.

I think of the implications of the statement that judges should be independent of parliament but not of their communities. The hon. member seems to be saying that if a community group or people in the community do not like a judgment, even though that judgment is correct in law, then somehow they can yank the chain to bring the judge to attention and to account.

I heard a member from Calgary suggest, with respect to the Rosenberg decision, that a particular judge was promoting her own political goals and views. These are very serious allegations to be made about a group of people, or even about specific people, who are themselves public servants and not in a position to defend themselves. Before we use our privileges in the House to speak publicly, freely and without any repercussions, I would suggest that we be very careful.

When we look at other countries such as Cuba, or countries where we have concerns about the absence of democratic rights, we look for certain characteristics when we test them for their beliefs in democratic principles. We look for a free parliamentary assembly where people are elected and more than one party can run. We look for privileges for parliamentarians so they can speak freely. We also look for an independent judiciary. A sign of democracy is having systems in place which allow the judiciary to operate independently and not worry about whether their salaries will be paid or about whether they will be yanked back or punished by a community group with a particular agenda if they make a correct decision in law in relation to the constitution.

Reformers are playing with a very serious concept here. Judicial independence is more important than almost any other principle of democracy. It is certainly as important as our right to speak freely in this House, and I would suggest that members opposite be very careful about how they use or abuse that privilege.

We must keep in mind that whether we are in opposition or in government, parliamentarians are part of the justice system. We make the laws. We are every bit as much a part of the justice system as judges, police officers, victims, criminals and litigants in civil law suits.

It is incumbent on us when we are debating these principles to keep the level of debate at a point where we ourselves are not undermining the institutions that we value. The institution of the independent judiciary is so fundamental to our democracy that it should be protected. It should be nurtured. It should not be attacked in an irresponsible and ill-informed manner. I would suggest that that is what we are hearing today.

Judges cannot respond because it is not appropriate for them to respond. It is not appropriate for them to respond because of their position. That makes them sitting ducks for people who are promoting an agenda of fear and intolerance so that they can then use that to further their political agenda.

We have to be very careful to preserve these precious rights. We have to be very careful to make sure that our judiciary is respected and is taken care of so that they can continue to do the fine job that they are doing.

For those reasons, I will be opposing Motion No. 1 and voting against it. I am very happy to be able to support Bill C-37. I just wish we could hear some more about the good things that that bill is doing, including the unified family court.