Jason Kenney

[Business Of The House, June 9th, 1998]

Mr. Speaker, I rise on a point of order. I believe I heard the hon. member for Notre-Dame-de-Grâce—Lachine remark that the House leader of the official opposition is an idiot. I think that is out of order.

[Supply, June 8th, 1998]

Madam Speaker, obviously I cannot speak for the government. That is the purpose of the motion.

This is a very important case and we would like clarification and answers to questions such as that. We will not get them until this judgment has run its course, which is why it must be appealed to the Supreme Court of Canada. Then this parliament can revisit the issue.

There are far more questions than there are answers. This government has said in the past that its position is to maintain the current traditional definition of spouse and spousal benefits. Will it or will it not do that? That is the question before this House today. I hope that we soon get an answer from the justice minister.

[Supply, June 8th, 1998]

Madam Speaker, I reject the spurious premise of the hon. member's comment.

This motion speaks very clearly to two issues. First, the broad issue of judicial activism; generally, that federal legislation should not be amended or redrafted by judicial rulings. That is a subject which is very worthy of debate. Second, it speaks to the specific issue with respect to appealing the Rosenberg decision. There are two issues at question in this motion. We are not trying to do more than debate those two issues.

What would we do to restrain a hyperactive judiciary? To begin with, we could adopt mechanisms of parliamentary review for the nomination of justices so that we as parliamentarians, on behalf of the Canadian people, can be assured, in a fully transparent and public process, that the people who are taking positions on the bench believe in the constitutional framework of our founders and the parliamentary system.

We would like to have the ability as parliamentarians to question proposed nominees to the bench. We also believe that the courts should have the power to invalidate acts of parliament, but not to rewrite them. This parliament should maintain, as it has for hundreds of years, the ultimate power to re-enact legislation which it believes is consistent with our constitutional framework.

That is why the framers of the 1982 Constitution Act included section 33, the notwithstanding clause, as the ultimate guarantor of parliamentary supremacy and we ought not be afraid to use it at the appropriate time.

[Supply, June 8th, 1998]

Madam Speaker, that was an interesting little rant from the member opposite.

As I said, I want to address some of the remarks made by the House leader of the fifth party. He said that this judgment was a very narrow one, merely a technical application and that members of my party were trying for some malicious reason to argue unreasonably that this affects the law more broadly than it actually does.

I find it entirely inconsistent when he argues that it is unreasonable for this parliament to define spouse as including members of the opposite sex but that it is reasonable for this House to define marriage as including members of the opposite sex alone. In other words, he is in favour of discrimination, in his words, when it comes to marriage, but he is against it when it comes to spouse. I find this kind of legalistic pettifogging, quite frankly, to be incoherent.

I will read the relevant section of the Income Tax Act which was affected by the Rosenberg judgment into the record so we can all see exactly what this judgment did:

In this Act,

(a) words referring to a spouse at any time of a taxpayer include the person of the opposite sex who cohabits at that time with the taxpayer in a conjugal relationship...

(b) references to marriage shall be read as if a conjugal relationship between 2 individuals who are, because of paragraph (a), spouses of each other were a marriage;

(c) provisions that apply to a person who is married apply to a person who is, because of paragraph (a), a spouse of a taxpayer; and

(d) provisions that apply to a person who is unmarried do not apply to a person who is, because of paragraph (a), a spouse of a taxpayer.

In the arcane language of the Income Tax Act, that is essentially saying that the definition of spouse and marriage for the purposes of this section of the Income Tax Act, as affected by the Rosenberg decision, are synonymous. I can only assume that the House leader of the fifth party did not read the relevant section of the statute because it makes it absolutely clear that by redefining spouse the court has also indirectly redefined marriage.

The hon. leader of the fifth party said that it is reasonable for this parliament to discriminate in terms of the definition of marriage; to discriminate positively and justifiably in favour of marriage conceived as it has been throughout the millennia as an institution consisting of members of opposite sexes.

We are debating a very serious thing. The House leader of the fifth party also said that he would rather have us discuss more important issues. I cannot conceive of a more important issue for members of this place to deliberate than whether or not this parliament is maintaining the supremacy which properly belongs to it by our constitutional history.

In this respect I will quote from Mr. Justice John McClung of the Alberta appeals court. In the Vriend decision he said: “When unelected judges choose to legislate, parliamentary checks, balances and conventions are simply shelved. Yet those cornerstones took centuries to assemble. They came at great cost. Our constitutional heritage is but a calendar of their acquisition, sometimes bloody, for both royal and commoner. All of these formative resources stand suspended when rights restless judges pitchfork their courts into the uncertain waters of political debate”. I could not say it more eloquently.

I appeal to all members to think deeply about the implications not just of this decision, but of courts that have begun to regard themselves as legislators. We represent the people, the judges do not.

[Supply, June 8th, 1998]

Thank you, Madam Speaker, for that clarification. It was not my intention and I will not be attacking justices here.

It is worth mentioning that those who believe that judges ought to be in power with the authority to rewrite the laws of this parliament do not believe that they should be subject to public criticism. I think there is a double standard there. If we have judges who believe that they ought to be essentially glorified politicians, they ought to be prepared to allow their judgments to undergo full public debate and scrutiny, which is what we are seeking to do here.

I was speaking about the justice who wrote the majority decision in Rosenberg and who is the very same justice who the justice minister decided not to appoint to the Supreme Court of Canada. One could logically infer from the most recent appointment to the supreme court that the justice minister lacked sufficient confidence in Madam Justice Rosalie Abella to appoint her to the Supreme Court of Canada. At the same time, she has not yet decided to let the supreme court decide the issue. In other words, the same justice who made the decision is being allowed to have the final say when the justice minister did not have sufficient confidence in that justice to put her on the highest court of tribunal. I find a certain inconsistency here.

Let me address some of the remarks made by the learned and hon. House leader of the fifth party. I found his remarks disappointing and somewhat incoherent logically. The first point is that he argued the Rosenberg decision was extremely—

[Supply, June 8th, 1998]

Madam Speaker, I am not aware of any standing order or convention of this place which prohibits members from referring to specific judgments made by specific justices. I do not know how I can quote from particular judgments, as I intend to do in my remarks, made by certain justices without referring to their names.

[Supply, June 8th, 1998]

Madam Speaker, I am pleased to rise in debate on the supply day motion before us, that in the opinion of the House federal legislation should not be amended or redrafted by judicial rulings as has happened in the redefinition of the term spouse in the Rosenberg decision and that accordingly the government should immediately appeal the Rosenberg decision.

At the outset I would like to make something clear which seems not to have been completely understood in this debate to this point. We are essentially debating two propositions in this motion.

First is the general proposition that federal legislation should not be amended or redrafted by judicial rulings, in other words, the proposition of the principle of parliamentary supremacy. That is a centrally important subject which ought to seize all members of this place. All Canadians ought to be engaged in the dynamic and centrally important debate about the appropriate role of the courts vis-à-vis the supremacy of parliament. This essentially is a debate not between parliamentary supremacy and judicial review, but between parliamentary supremacy or judicial supremacy.

Ultimately in any system of government where checks and balances are divided and authority is separated between different branches of government, one must be supreme. We cannot avoid that ultimate question. The answer which the tradition of parliament and our common law has provided to us over the last several hundred years is that parliament is supreme. This is the highest court of the land. The buck stops here with respect to the law that is made for all Canadians.

That is the first general premise of the motion to which I will speak.

I want to emphasize the second element of the motion which is that the government should immediately appeal the Rosenberg decision.

I cannot understand for the life of me why any member would oppose at least the second proposition in this motion, that the government ought immediately to appeal the Rosenberg decision. As it appears from the debate this morning, there are members among us who believe that the courts ought to have the power to rewrite federal legislation regardless of what we or our constituents believe. That is a respectable position to hold, but we have not yet allowed the courts to have the final word on this.

The Rosenberg decision, which we are discussing, was a decision of the appeals court of the province of Ontario. The last I checked my constitutional law, the appeals court of a province is not the highest judicial tribunal of the land, but rather the Supreme Court of Canada is.

All we are asking in the second element of this motion is for the Attorney General of Canada to have her officials file an order to appeal before the Supreme Court of Canada the judgment of the Ontario appeals court. I say to my colleagues here who support the notion of judicial supremacy over parliamentary supremacy to allow their allies in the judiciary, allow the marvellous judges of the supreme court to have their say which they have not yet had.

I find a certain irony in all of this. The learned judge who wrote the majority decision at the Ontario appeals court, Madam Justice Rosalie Abella, we understand was very much in the running for appointment to the most recent opening to the Supreme Court of Canada. Is it not interesting that the very same justice minister who has been prevaricating now for six weeks on whether or not to appeal Madam Justice Abella's decision to the Supreme Court of Canada is the very same attorney general who would not appoint that justice to the Supreme Court of Canada.

[Immigration, June 5th, 1998]

Mr. Speaker, the fact is that the supreme court has ruled that this person has a right to a hearing when he is a convicted drug dealer who is a threat to this country and its citizens.

When will this government stand up for Canadians instead of the rights of drug dealers by amending the legislation?

[Immigration, June 5th, 1998]

Mr. Speaker, we asked the minister of immigration for a straight answer on a simple question about whether or not she believes a convicted drug dealer should be allowed to stay in Canada and seek refugee status and she gives us a haughty little lecture about the rule of law.

Let me tell her about the rule of law. This parliament is sovereign and it can exercise its sovereign power to amend the legislation to ensure that convicted drug dealers like this get kicked out of the country like they should be.

Will this minister act or not?

[Judges Act, June 4th, 1998]

Mr. Speaker, I am pleased to rise to continue debating Bill C-37, at this time on Motion No. 2 put by my colleague, the hon. member for Crowfoot. It would amend the bill to require that a report of a commission established to review judicial compensation would require a hearing at presentation with discussion, debate and the appearance of witnesses at committee, presumably the Standing Committee on Justice and Human Rights chaired by the hon. member who just preceded me.

That hon. member said during her remarks that already there is provision which can allow for reports of this nature to be tabled at committee and to be discussed at committee and commented on by witnesses. That is at the discretion of the government. The report need not be tabled at committee. It only is tabled at committee if the government decides that it should be tabled at committee.

What we are seeking to do through Motion No. 2 is to require full public scrutiny and transparency of reports of this nature so that the people who are paying the bills have a chance to comment on them at committee stage. It is entirely different from the status quo arrangement to which the hon. member opposite referred.

This really begs the question, whenever we have an opportunity to broaden parliamentary scrutiny of matters of this nature, why is it that the government is always opposed? Why does it always oppose greater parliamentary scrutiny? These people when they were in opposition were the great champions and heroes of parliamentary scrutiny, democracy and transparency in such matters.

Whenever a motion such as this one is brought forward on a bill of this nature the government members always predictably oppose it. I ask why. What are they trying to hide? Who would be harmed? What damage would be done to parliament, to the government's agenda, to the independence of the judiciary were reports of this nature on judges' compensation to be tabled and heard with the comment of witnesses at committee?

I submit that no damage would be done. The only damage that could be done would be to the government's ability to control the agenda and to sweep these things under the carpet. That is why the government is opposing it.

Let me be consistent because we are going through a similar exercise right now. By way of analogy, the Parliament of Canada Act requires that after a general election a commission be appointed by the Governor General in council to review indemnities and allowances for members of parliament. This was followed of course by the government.

Following the election the government appointed the Blais commission, three independent Canadians to sit on a commission to review MP compensation. This commission reported back to parliament but the hearings were held in camera without the appearance of witnesses.

Now we have a report tabled by the committee on procedure and House affairs which has not had public scrutiny or input. An independent commission is set up that reports but with no public comment, no opportunity for public scrutiny, no opportunity for witnesses to appear. Then a report is tabled in this place and presumably will be passed.

I have a serious problem with this procedure, not just as it affects judges but also as it affects MPs or anybody else in the public sector. When we are discussing raising compensation for people from the public purse, in a sense taking money from taxpayers, using the coercive power that we wield in this place to levy taxes on people, to pay additional compensation to ourselves or to others such as judges, that ought to be done with the greatest of possible public scrutiny.

That is precisely what Motion No. 2 seeks to do with respect to Bill C-37. I really wonder why the government is opposing this. Once again, it raises the whole question not just of the compensation of judges but of the lack of transparency in the manner through which judges are appointed.

Canada is probably the only one of the modern democracies that does not allow for candidates for the judiciary to first be screened by, questioned by or to testify in front of members of the national legislature.

We know that our friends to the south require a senatorial review of judicial nominees before they can be confirmed. It is a sensible policy because it ensures that there is a check and balance on the power of the executive in loading people who support its political agenda on the judiciary.

Let us not be mistaken. While we have many marvellous hardworking justices who simply interpret the law narrowly and strictly, we also have on the benches of this country many judges who regard themselves as glorified legislators. They sit on the bench and legislate from the bench. They do not interpret the law. They make the law.

We have no means as the representatives of the people, as the guardians ultimately of the Constitution to ensure that the people appointed to that bench are going to interpret rather than to legislate from the bench.

I ask that we have greater transparency when it comes to compensation for judges in Bill C-37. So too, we call for greater transparency in the appointment of judges so that the public and its representatives in this place, in the upper chamber, know what they are getting when the Prime Minister and the Governor General in council, when the cabinet decides to foist on the bench some radical politician who calls himself or herself a judge.

I also suggest that this principle should be applied throughout the public sector. We ought not to isolate judges. Whenever we are discussing compensation increases for senior people in the public sector, including ourselves, why should we not allow for complete, full and absolute public scrutiny?

Do you know something, Mr. Speaker? There is nothing to be afraid of. It is quite possible that experts and ordinary Canadians would look at a proposed pay increase or adjustment to compensation such as the one proposed in Bill C-37, an 8.3% increase over two years and would say “Hey, this is well deserved. These people work hard. They have earned this increase”. Let us not prejudge the wisdom of the public. That is what we are doing by shutting out public commentary and expert commentary through witnesses on this matter.

I commented earlier that I find it hard to believe the kind of bizarre judicial decisions we see coming with greater and greater frequency from federally appointed judges.

I commented earlier on the Feeney decision where a judge appointed by cabinet decided that a man who was clearly, unquestionably guilty of first degree murder was acquitted. Why? Because an RCMP officer failed to secure a search warrant in a rural area in British Columbia when he followed the trace of evidence to this man's residence. What did he do? He announced himself as a peace officer. He asked for permission to enter. No one responded. He went in and found the accused passed out on the bed covered in the blood of the murdered victim. The judge in that case, a judge appointed by the government without parliamentary oversight, allowed that man to be acquitted.

This happens all too often with respect to sentencing and conditional sentencing. It happens all too often when judges decide they are going to make the law in their own image claiming some specious authority in the charter of rights and freedoms.

Now we are proposing to give those very same judges who are accountable to utterly no one but themselves a pay increase almost uncontemplated anywhere else in the public sector, and I would submit the private sector, in a country where people are earning less now than they did 20 years ago. At the same time the government is telling us that we cannot even put such a report before a committee before it comes to the House to allow for proper disclosure and proper transparency.

I know from private conservations that there are members opposite who are very concerned about Bill C-37. I ask them to test their whip for once and vote for greater transparency in this place by supporting Motion No. 2 on Bill C-37.